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POLITICAL LAW conjugal partnership of the spouses

Francisco Reyes Diaz and Felisa Espiras; (4)


A.M. No. 133-J May 31, 1982 Declaring Lot No. 2304 and 1/4 of Lot No.
3416 as belonging to the spouses Francisco
Reyes Diaz and Irene Ondez in common
BERNARDITA R. MACARIOLA, complainant, partnership; (5) Declaring that 1/2 of Lot
vs. No. 1184 as belonging exclusively to the
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First deceased Francisco Reyes Diaz; (6)
Instance of Leyte, respondent. Declaring the defendant Bernardita R.
Macariola, being the only legal and forced
MAKASIAR,J: heir of her mother Felisa Espiras, as the
In a verified complaint dated August 6, 1968 Bernardita R. Macariola exclusive owner of one-half of each of Lots
charged respondent Judge Elias B. Asuncion of the Court of First Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506;
Instance of Leyte, now Associate Justice of the Court of Appeals, with and the remaining one-half (1/2) of each of
"acts unbecoming a judge." said Lots Nos. 4474, 4475, 4892, 5265, 4803,
4581, 4506 and one-half (1/2) of one-fourth
(1/4) of Lot No. 1154 as belonging to the
The factual setting of the case is stated in the report dated May 27, 1971
estate of Francisco Reyes Diaz; (7) Declaring
of then Associate Justice Cecilia Muñoz Palma of the Court of Appeals
Irene Ondez to be the exclusive owner of
now retired Associate Justice of the Supreme Court, to whom this case
one-half (1/2) of Lot No. 2304 and one-half
was referred on October 28, 1968 for investigation, thus:
(1/2) of one-fourth (1/4) of Lot No. 3416;
the remaining one-half (1/2) of Lot 2304
Civil Case No. 3010 of the Court of First Instance of and the remaining one-half (1/2) of one-
Leyte was a complaint for partition filed by fourth (1/4) of Lot No. 3416 as belonging to
Sinforosa R. Bales, Luz R. Bakunawa, Anacorita the estate of Francisco Reyes Diaz; (8)
Reyes, Ruperto Reyes, Adela Reyes, and Priscilla Directing the division or partition of the
Reyes, plaintiffs, against Bernardita R. Macariola, estate of Francisco Reyes Diaz in such a
defendant, concerning the properties left by the manner as to give or grant to Irene Ondez,
deceased Francisco Reyes, the common father of the as surviving widow of Francisco Reyes
plaintiff and defendant. Diaz, a hereditary share of. one-twelfth
(1/12) of the whole estate of Francisco
In her defenses to the complaint for partition, Mrs. Reyes Diaz (Art. 996 in relation to Art. 892,
Macariola alleged among other things that; a) par 2, New Civil Code), and the remaining
plaintiff Sinforosa R. Bales was not a daughter of portion of the estate to be divided among
the deceased Francisco Reyes; b) the only legal heirs the plaintiffs Sinforosa R. Bales, Luz R.
of the deceased were defendant Macariola, she Bakunawa, Anacorita Reyes, Ruperto
being the only offspring of the first marriage of Reyes, Adela Reyes, Priscilla Reyes and
Francisco Reyes with Felisa Espiras, and the defendant Bernardita R. Macariola, in such
remaining plaintiffs who were the children of the a way that the extent of the total share of
deceased by his second marriage with Irene Ondez; plaintiff Sinforosa R. Bales in the hereditary
c) the properties left by the deceased were all the estate shall not exceed the equivalent of
conjugal properties of the latter and his first wife, two-fifth (2/5) of the total share of any or
Felisa Espiras, and no properties were acquired by each of the other plaintiffs and the
the deceased during his second marriage; d) if there defendant (Art. 983, New Civil Code), each
was any partition to be made, those conjugal of the latter to receive equal shares from the
properties should first be partitioned into two hereditary estate, (Ramirez vs. Bautista, 14
parts, and one part is to be adjudicated solely to Phil. 528; Diancin vs. Bishop of Jaro, O.G.
defendant it being the share of the latter's deceased [3rd Ed.] p. 33); (9) Directing the parties,
mother, Felisa Espiras, and the other half which is within thirty days after this judgment shall
the share of the deceased Francisco Reyes was to be have become final to submit to this court,
divided equally among his children by his two for approval a project of partition of the
marriages. hereditary estate in the proportion above
indicated, and in such manner as the parties
may, by agreement, deemed convenient
On June 8, 1963, a decision was rendered by and equitable to them taking into
respondent Judge Asuncion in Civil Case 3010, the consideration the location, kind, quality,
dispositive portion of which reads: nature and value of the properties involved;
(10) Directing the plaintiff Sinforosa R.
IN VIEW OF THE FOREGOING Bales and defendant Bernardita R.
CONSIDERATIONS, the Court, upon a Macariola to pay the costs of this suit, in the
preponderance of evidence, finds and so proportion of one-third (1/3) by the first
holds, and hereby renders judgment (1) named and two-thirds (2/3) by the second
Declaring the plaintiffs Luz R. Bakunawa, named; and (I 1) Dismissing all other claims
Anacorita Reyes, Ruperto Reyes, Adela of the parties [pp 27-29 of Exh. C].
Reyes and Priscilla Reyes as the only
children legitimated by the subsequent The decision in civil case 3010 became final
marriage of Francisco Reyes Diaz to Irene for lack of an appeal, and on October 16,
Ondez; (2) Declaring the plaintiff Sinforosa 1963, a project of partition was submitted to
R. Bales to have been an illegitimate child of Judge Asuncion which is marked Exh. A.
Francisco Reyes Diaz; (3) Declaring Lots Notwithstanding the fact that the project of
Nos. 4474, 4475, 4892, 5265, 4803, 4581, 4506 partition was not signed by the parties
and 1/4 of Lot 1145 as belonging to the themselves but only by the respective
counsel of plaintiffs and defendant, Judge and the defendant approving the above
Asuncion approved it in his Order dated Project of Partition, and that both lawyers
October 23, 1963, which for convenience is had represented to the Court that they are
quoted hereunder in full: given full authority to sign by themselves
the Project of Partition, the Court, therefore,
finding the above-quoted Project of
The parties, through their respective
Partition to be in accordance with law,
counsels, presented to this Court for
hereby approves the same. The parties,
approval the following project of partition:
therefore, are directed to execute such
papers, documents or instrument sufficient
COMES NOW, the plaintiffs and the in form and substance for the vesting of the
defendant in the above-entitled case, to this rights, interests and participations which
Honorable Court respectfully submit the were adjudicated to the respective parties,
following Project of Partition: as outlined in the Project of Partition and
the delivery of the respective properties
l. The whole of Lots Nos. 1154, 2304 and adjudicated to each one in view of said
4506 shall belong exclusively to Bernardita Project of Partition, and to perform such
Reyes Macariola; other acts as are legal and necessary to
effectuate the said Project of Partition.

2. A portion of Lot No. 3416 consisting of


2,373.49 square meters along the eastern SO ORDERED.
part of the lot shall be awarded likewise to
Bernardita R. Macariola; Given in Tacloban City, this 23rd day of
October, 1963.
3. Lots Nos. 4803, 4892 and 5265 shall be
awarded to Sinforosa Reyes Bales; (SGD) ELIAS B. ASUNCION Judge

4. A portion of Lot No. 3416 consisting of EXH. B.


1,834.55 square meters along the western
part of the lot shall likewise be awarded to
Sinforosa Reyes-Bales; The above Order of October 23, 1963, was amended
on November 11, 1963, only for the purpose of
giving authority to the Register of Deeds of the
5. Lots Nos. 4474 and 4475 shall be divided Province of Leyte to issue the corresponding
equally among Luz Reyes Bakunawa, transfer certificates of title to the respective
Anacorita Reyes, Ruperto Reyes, Adela adjudicatees in conformity with the project of
Reyes and Priscilla Reyes in equal shares; partition (see Exh. U).

6. Lot No. 1184 and the remaining portion One of the properties mentioned in the project of
of Lot No. 3416 after taking the portions partition was Lot 1184 or rather one-half thereof
awarded under item (2) and (4) above shall with an area of 15,162.5 sq. meters. This lot, which
be awarded to Luz Reyes Bakunawa, according to the decision was the exclusive
Anacorita Reyes, Ruperto Reyes, Adela property of the deceased Francisco Reyes, was
Reyes and Priscilla Reyes in equal shares, adjudicated in said project of partition to the
provided, however that the remaining plaintiffs Luz, Anacorita Ruperto, Adela, and
portion of Lot No. 3416 shall belong Priscilla all surnamed Reyes in equal shares, and
exclusively to Priscilla Reyes. when the project of partition was approved by the
trial court the adjudicatees caused Lot 1184 to be
WHEREFORE, it is respectfully prayed that subdivided into five lots denominated as Lot 1184-
the Project of Partition indicated above A to 1184-E inclusive (Exh. V).
which is made in accordance with the
decision of the Honorable Court be Lot 1184-D was conveyed to Enriqueta D. Anota, a
approved. stenographer in Judge Asuncion's court (Exhs. F, F-
1 and V-1), while Lot 1184-E which had an area of
Tacloban City, October 16, 1963. 2,172.5556 sq. meters was sold on July 31, 1964 to
Dr. Arcadio Galapon (Exh. 2) who was issued
transfer certificate of title No. 2338 of the Register
(SGD) BONIFACIO RAMO Atty. for the of Deeds of the city of Tacloban (Exh. 12).
Defendant Tacloban City

On March 6, 1965, Dr. Arcadio Galapon and his


(SGD) ZOTICO A. TOLETE Atty. for the wife Sold a portion of Lot 1184-E with an area of
Plaintiff Tacloban City around 1,306 sq. meters to Judge Asuncion and his
wife, Victoria S. Asuncion (Exh. 11), which
While the Court thought it more desirable particular portion was declared by the latter for
for all the parties to have signed this Project taxation purposes (Exh. F).
of Partition, nevertheless, upon assurance
of both counsels of the respective parties to On August 31, 1966, spouses Asuncion and spouses
this Court that the Project of Partition, as Galapon conveyed their respective shares and
above- quoted, had been made after a interest in Lot 1184-E to "The Traders
conference and agreement of the plaintiffs
Manufacturing and Fishing Industries Inc." (Exit 15 Atty. Zotico A. Tolete were dismissed with the conformity of
& 16). At the time of said sale the stockholders of complainant herein, plaintiff therein, and her counsel.
the corporation were Dominador Arigpa Tan,
Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First
Asuncion, and the latter's wife, Victoria S.
Instance of Leyte, who was directed and authorized on June 2, 1969 by
Asuncion, with Judge Asuncion as the President
the then Secretary (now Minister) of Justice and now Minister of
and Mrs. Asuncion as the secretary (Exhs. E-4 to E-
National Defense Juan Ponce Enrile to hear and decide Civil Case No.
7). The Articles of Incorporation of "The Traders
4234, rendered a decision, the dispositive portion of which reads as
Manufacturing and Fishing Industries, Inc." which
follows:
we shall henceforth refer to as "TRADERS" were
registered with the Securities and Exchange
Commission only on January 9, 1967 (Exh. E) [pp. A. IN THE CASE AGAINST JUDGE ELIAS B.
378-385, rec.]. ASUNCION

Complainant Bernardita R. Macariola filed on August 9, 1968 the instant (1) declaring that only Branch IV of the Court of
complaint dated August 6, 1968 alleging four causes of action, to wit: [1] First Instance of Leyte has jurisdiction to take
that respondent Judge Asuncion violated Article 1491, paragraph 5, of cognizance of the issue of the legality and validity
the New Civil Code in acquiring by purchase a portion of Lot No. 1184- of the Project of Partition [Exhibit "B"] and the two
E which was one of those properties involved in Civil Case No. 3010 Orders [Exhibits "C" and "C- 3"] approving the
decided by him; [2] that he likewise violated Article 14, paragraphs I and partition;
5 of the Code of Commerce, Section 3, paragraph H, of R.A. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act, Section (2) dismissing the complaint against Judge Elias B.
12, Rule XVIII of the Civil Service Rules, and Canon 25 of the Canons of Asuncion;
Judicial Ethics, by associating himself with the Traders Manufacturing
and Fishing Industries, Inc., as a stockholder and a ranking officer while
he was a judge of the Court of First Instance of Leyte; [3] that respondent (3) adjudging the plaintiff, Mrs. Bernardita R.
was guilty of coddling an impostor and acted in disregard of judicial Macariola to pay defendant Judge Elias B.
decorum by closely fraternizing with a certain Dominador Arigpa Tan Asuncion,
who openly and publicly advertised himself as a practising attorney
when in truth and in fact his name does not appear in the Rolls of (a) the sum of FOUR
Attorneys and is not a member of the Philippine Bar; and [4] that there HUNDRED THOUSAND
was a culpable defiance of the law and utter disregard for ethics by PESOS [P400,000.00] for moral
respondent Judge (pp. 1-7, rec.). damages;

Respondent Judge Asuncion filed on September 24, 1968 his answer to (b) the sum of TWO
which a reply was filed on October 16, 1968 by herein complainant. In HUNDRED THOUSAND
Our resolution of October 28, 1968, We referred this case to then Justice PESOS [P200,000.001 for
Cecilia Muñoz Palma of the Court of Appeals, for investigation, report exemplary damages;
and recommendation. After hearing, the said Investigating Justice
submitted her report dated May 27, 1971 recommending that
(c) the sum of FIFTY
respondent Judge should be reprimanded or warned in connection with
THOUSAND PESOS
the first cause of action alleged in the complaint, and for the second
[P50,000.00] for nominal
cause of action, respondent should be warned in case of a finding that
damages; and
he is prohibited under the law to engage in business. On the third and
fourth causes of action, Justice Palma recommended that respondent
Judge be exonerated. (d) he sum of TEN
THOUSAND PESOS
[PI0,000.00] for Attorney's
The records also reveal that on or about November 9 or 11, 1968 (pp. 481,
Fees.
477, rec.), complainant herein instituted an action before the Court of
First Instance of Leyte, entitled "Bernardita R. Macariola, plaintiff, versus
Sinforosa R. Bales, et al., defendants," which was docketed as Civil Case B. IN THE CASE AGAINST
No. 4235, seeking the annulment of the project of partition made THE DEFENDANT
pursuant to the decision in Civil Case No. 3010 and the two orders MARIQUITA VILLASIN, FOR
issued by respondent Judge approving the same, as well as the partition HERSELF AND FOR THE
of the estate and the subsequent conveyances with damages. It appears, HEIRS OF THE DECEASED
however, that some defendants were dropped from the civil case. For GERARDO VILLASIN —
one, the case against Dr. Arcadio Galapon was dismissed because he
was no longer a real party in interest when Civil Case No. 4234 was filed, (1) Dismissing the complaint against the
having already conveyed on March 6, 1965 a portion of lot 1184-E to defendants Mariquita Villasin and the heirs of the
respondent Judge and on August 31, 1966 the remainder was sold to the deceased Gerardo Villasin;
Traders Manufacturing and Fishing Industries, Inc. Similarly, the case
against defendant Victoria Asuncion was dismissed on the ground that
she was no longer a real party in interest at the time the aforesaid Civil (2) Directing the plaintiff to pay the defendants
Case No. 4234 was filed as the portion of Lot 1184 acquired by her and Mariquita Villasin and the heirs of Gerardo Villasin
respondent Judge from Dr. Arcadio Galapon was already sold on the cost of the suit.
August 31, 1966 to the Traders Manufacturing and Fishing industries,
Inc. Likewise, the cases against defendants Serafin P. Ramento, Catalina C. IN THE CASE AGAINST
Cabus, Ben Barraza Go, Jesus Perez, Traders Manufacturing and Fishing THE DEFENDANT
Industries, Inc., Alfredo R. Celestial and Pilar P. Celestial, Leopoldo SINFOROSA R. BALES, ET
Petilla and Remedios Petilla, Salvador Anota and Enriqueta Anota and AL., WHO WERE
PLAINTIFFS IN CIVIL CASE 1963 project of partition made pursuant to the June 8, 1963 decision, had
NO. 3010 — long become final for there was no appeal from said orders.

(1) Dismissing the complaint against defendants Furthermore, respondent Judge did not buy the lot in question on March
Sinforosa R. Bales, Adela R. Herrer, Priscilla R. 6, 1965 directly from the plaintiffs in Civil Case No. 3010 but from Dr.
Solis, Luz R. Bakunawa, Anacorita R. Eng and Arcadio Galapon who earlier purchased on July 31, 1964 Lot 1184-E from
Ruperto O. Reyes. three of the plaintiffs, namely, Priscilla Reyes, Adela Reyes, and Luz R.
Bakunawa after the finality of the decision in Civil Case No. 3010. It may
D. IN THE CASE AGAINST be recalled that Lot 1184 or more specifically one-half thereof was
adjudicated in equal shares to Priscilla Reyes, Adela Reyes, Luz
DEFENDANT BONIFACIO
Bakunawa, Ruperto Reyes and Anacorita Reyes in the project of
RAMO —
partition, and the same was subdivided into five lots denominated as
Lot 1184-A to 1184-E. As aforestated, Lot 1184-E was sold on July 31,
(1) Dismissing the complaint against Bonifacio 1964 to Dr. Galapon for which he was issued TCT No. 2338 by the
Ramo; Register of Deeds of Tacloban City, and on March 6, 1965 he sold a
portion of said lot to respondent Judge and his wife who declared the
(2) Directing the plaintiff to pay the defendant same for taxation purposes only. The subsequent sale on August 31,
Bonifacio Ramo the cost of the suit. 1966 by spouses Asuncion and spouses Galapon of their respective
shares and interest in said Lot 1184-E to the Traders Manufacturing and
Fishing Industries, Inc., in which respondent was the president and his
SO ORDERED [pp. 531-533, rec.] wife was the secretary, took place long after the finality of the decision
in Civil Case No. 3010 and of the subsequent two aforesaid orders
It is further disclosed by the record that the aforesaid decision was therein approving the project of partition.
elevated to the Court of Appeals upon perfection of the appeal on
February 22, 1971. While it appears that complainant herein filed on or about November 9 or
11, 1968 an action before the Court of First Instance of Leyte docketed as
WE find that there is no merit in the contention of complainant Civil Case No. 4234, seeking to annul the project of partition and the two
Bernardita R. Macariola, under her first cause of action, that respondent orders approving the same, as well as the partition of the estate and the
Judge Elias B. Asuncion violated Article 1491, paragraph 5, of the New subsequent conveyances, the same, however, is of no moment.
Civil Code in acquiring by purchase a portion of Lot No. 1184-E which
was one of those properties involved in Civil Case No. 3010. 'That The fact remains that respondent Judge purchased on March 6, 1965 a
Article provides: portion of Lot 1184-E from Dr. Arcadio Galapon; hence, after the finality
of the decision which he rendered on June 8, 1963 in Civil Case No. 3010
Article 1491. The following persons cannot acquire and his two questioned orders dated October 23, 1963 and November
by purchase, even at a public or judicial action, 11, 1963. Therefore, the property was no longer subject of litigation.
either in person or through the mediation of
another: The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234
can no longer alter, change or affect the aforesaid facts — that the
xxx xxx xxx questioned sale to respondent Judge, now Court of Appeals Justice, was
effected and consummated long after the finality of the aforesaid
decision or orders.
(5) Justices, judges, prosecuting attorneys, clerks of
superior and inferior courts, and other officers and
employees connected with the administration of Consequently, the sale of a portion of Lot 1184-E to respondent Judge
justice, the property and rights in litigation or having taken place over one year after the finality of the decision in Civil
levied upon an execution before the court within Case No. 3010 as well as the two orders approving the project of
whose jurisdiction or territory they exercise their partition, and not during the pendency of the litigation, there was no
respective functions; this prohibition includes the violation of paragraph 5, Article 1491 of the New Civil Code.
act of acquiring by assignment and shall apply to
lawyers, with respect to the property and rights It is also argued by complainant herein that the sale on July 31, 1964 of
which may be the object of any litigation in which Lot 1184-E to Dr. Arcadio Galapon by Priscilla Reyes, Adela Reyes and
they may take part by virtue of their profession Luz R. Bakunawa was only a mere scheme to conceal the illegal and
[emphasis supplied]. unethical transfer of said lot to respondent Judge as a consideration for
the approval of the project of partition. In this connection, We agree with
The prohibition in the aforesaid Article applies only to the sale or the findings of the Investigating Justice thus:
assignment of the property which is the subject of litigation to the
persons disqualified therein. WE have already ruled that "... for the And so we are now confronted with this all-
prohibition to operate, the sale or assignment of the property must take important question whether or not the acquisition
place during the pendency of the litigation involving the property" (The by respondent of a portion of Lot 1184-E and the
Director of Lands vs. Ababa et al., 88 SCRA 513, 519 [1979], Rosario vda. subsequent transfer of the whole lot to "TRADERS"
de Laig vs. Court of Appeals, 86 SCRA 641, 646 [1978]). of which respondent was the President and his wife
the Secretary, was intimately related to the Order of
In the case at bar, when the respondent Judge purchased on March 6, respondent approving the project of partition, Exh.
1965 a portion of Lot 1184-E, the decision in Civil Case No. 3010 which A.
he rendered on June 8, 1963 was already final because none of the parties
therein filed an appeal within the reglementary period; hence, the lot in Respondent vehemently denies any interest or
question was no longer subject of the litigation. Moreover, at the time of participation in the transactions between the
the sale on March 6, 1965, respondent's order dated October 23, 1963 and Reyeses and the Galapons concerning Lot 1184-E,
the amended order dated November 11, 1963 approving the October 16, and he insists that there is no evidence whatsoever
to show that Dr. Galapon had acted, in the purchase
of Lot 1184-E, in mediation for him and his wife. rather 1/4 thereof was adjudicated to Mrs.
(See p. 14 of Respondent's Memorandum). Macariola. It is this 1/4 share in Lot 1154 which
complainant sold to Dr. Decena on October 22,
xxx xxx xxx 1963, several days after the preparation of the
project of partition.

On this point, I agree with respondent that there is


Counsel for complainant stresses the view,
no evidence in the record showing that Dr. Arcadio
however, that the latter sold her one-fourth share in
Galapon acted as a mere "dummy" of respondent in
acquiring Lot 1184-E from the Reyeses. Dr. Galapon Lot 1154 by virtue of the decision in Civil Case 3010
and not because of the project of partition, Exh. A.
appeared to this investigator as a respectable
Such contention is absurd because from the
citizen, credible and sincere, and I believe him
decision, Exh. C, it is clear that one-half of one-
when he testified that he bought Lot 1184-E in good
fourth of Lot 1154 belonged to the estate of
faith and for valuable consideration from the
Francisco Reyes Diaz while the other half of said
Reyeses without any intervention of, or previous
understanding with Judge Asuncion (pp. 391- 394, one-fourth was the share of complainant's mother,
Felisa Espiras; in other words, the decision did not
rec.).
adjudicate the whole of the one-fourth of Lot 1154
to the herein complainant (see Exhs. C-3 & C-4).
On the contention of complainant herein that respondent Judge acted Complainant became the owner of the entire one-
illegally in approving the project of partition although it was not signed fourth of Lot 1154 only by means of the project of
by the parties, We quote with approval the findings of the Investigating partition, Exh. A. Therefore, if Mrs. Macariola sold
Justice, as follows: Lot 1154 on October 22, 1963, it was for no other
reason than that she was wen aware of the
1. I agree with complainant that respondent should distribution of the properties of her deceased father
have required the signature of the parties more as per Exhs. A and B. It is also significant at this
particularly that of Mrs. Macariola on the project of point to state that Mrs. Macariola admitted during
partition submitted to him for approval; however, the cross-examination that she went to Tacloban
whatever error was committed by respondent in City in connection with the sale of Lot 1154 to Dr.
that respect was done in good faith as according to Decena (tsn p. 92, November 28, 1968) from which
Judge Asuncion he was assured by Atty. Bonifacio we can deduce that she could not have been kept
Ramo, the counsel of record of Mrs. Macariola, That ignorant of the proceedings in civil case 3010
he was authorized by his client to submit said relative to the project of partition.
project of partition, (See Exh. B and tsn p. 24,
January 20, 1969). While it is true that such written Complainant also assails the project of partition
authority if there was any, was not presented by because according to her the properties adjudicated
respondent in evidence, nor did Atty. Ramo appear to her were insignificant lots and the least valuable.
to corroborate the statement of respondent, his Complainant, however, did not present any direct
affidavit being the only one that was presented as and positive evidence to prove the alleged gross
respondent's Exh. 10, certain actuations of Mrs. inequalities in the choice and distribution of the real
Macariola lead this investigator to believe that she properties when she could have easily done so by
knew the contents of the project of partition, Exh. presenting evidence on the area, location, kind, the
A, and that she gave her conformity thereto. I refer assessed and market value of said properties.
to the following documents: Without such evidence there is nothing in the
record to show that there were inequalities in the
1) Exh. 9 — Certified true copy of OCT No. 19520 distribution of the properties of complainant's
covering Lot 1154 of the Tacloban Cadastral Survey father (pp. 386389, rec.).
in which the deceased Francisco Reyes holds a "1/4
share" (Exh. 9-a). On tills certificate of title the Finally, while it is. true that respondent Judge did not violate paragraph
Order dated November 11, 1963, (Exh. U) 5, Article 1491 of the New Civil Code in acquiring by purchase a portion
approving the project of partition was duly entered of Lot 1184-E which was in litigation in his court, it was, however,
and registered on November 26, 1963 (Exh. 9-D); improper for him to have acquired the same. He should be reminded of
Canon 3 of the Canons of Judicial Ethics which requires that: "A judge's
2) Exh. 7 — Certified copy of a deed of absolute sale official conduct should be free from the appearance of impropriety, and
executed by Bernardita Reyes Macariola on October his personal behavior, not only upon the bench and in the performance
22, 1963, conveying to Dr. Hector Decena the one- of judicial duties, but also in his everyday life, should be beyond
fourth share of the late Francisco Reyes-Diaz in Lot reproach." And as aptly observed by the Investigating Justice: "... it was
1154. In this deed of sale the vendee stated that she unwise and indiscreet on the part of respondent to have purchased or
was the absolute owner of said one-fourth share, acquired a portion of a piece of property that was or had been in
the same having been adjudicated to her as her litigation in his court and caused it to be transferred to a corporation of
share in the estate of her father Francisco Reyes which he and his wife were ranking officers at the time of such transfer.
Diaz as per decision of the Court of First Instance of One who occupies an exalted position in the judiciary has the duty and
Leyte under case No. 3010 (Exh. 7-A). The deed of responsibility of maintaining the faith and trust of the citizenry in the
sale was duly registered and annotated at the back courts of justice, so that not only must he be truly honest and just, but
of OCT 19520 on December 3, 1963 (see Exh. 9-e). his actuations must be such as not give cause for doubt and mistrust in
the uprightness of his administration of justice. In this particular case of
respondent, he cannot deny that the transactions over Lot 1184-E are
In connection with the abovementioned documents damaging and render his actuations open to suspicion and distrust.
it is to be noted that in the project of partition dated Even if respondent honestly believed that Lot 1184-E was no longer in
October 16, 1963, which was approved by litigation in his court and that he was purchasing it from a third person
respondent on October 23, 1963, followed by an and not from the parties to the litigation, he should nonetheless have
amending Order on November 11, 1963, Lot 1154 or refrained from buying it for himself and transferring it to a corporation
in which he and his wife were financially involved, to avoid possible Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912])
suspicion that his acquisition was related in one way or another to his that:
official actuations in civil case 3010. The conduct of respondent gave
cause for the litigants in civil case 3010, the lawyers practising in his By well-settled public law, upon the cession of
court, and the public in general to doubt the honesty and fairness of his
territory by one nation to another, either following
actuations and the integrity of our courts of justice" (pp. 395396, rec.).
a conquest or otherwise, ... those laws which are
political in their nature and pertain to the
II prerogatives of the former government
immediately cease upon the transfer of sovereignty.
(Opinion, Atty. Gen., July 10, 1899).
With respect to the second cause of action, the complainant alleged that
respondent Judge violated paragraphs 1 and 5, Article 14 of the Code of
Commerce when he associated himself with the Traders Manufacturing While municipal laws of the newly acquired
and Fishing Industries, Inc. as a stockholder and a ranking officer, said territory not in conflict with the, laws of the new
corporation having been organized to engage in business. Said Article sovereign continue in force without the express
provides that: assent or affirmative act of the conqueror, the
political laws do not. (Halleck's Int. Law, chap. 34,
par. 14). However, such political laws of the prior
Article 14 — The following cannot engage in
sovereignty as are not in conflict with the
commerce, either in person or by proxy, nor can
constitution or institutions of the new sovereign,
they hold any office or have any direct,
may be continued in force if the conqueror shall so
administrative, or financial intervention in
commercial or industrial companies within the declare by affirmative act of the commander-in-
chief during the war, or by Congress in time of
limits of the districts, provinces, or towns in which
peace. (Ely's Administrator vs. United States, 171
they discharge their duties:
U.S. 220, 43 L. Ed. 142). In the case of American and
Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26
1. Justices of the Supreme Court, judges and U.S.] 511, 542, 7 L. Ed. 242), Chief Justice Marshall
officials of the department of public prosecution in said:
active service. This provision shall not be applicable
to mayors, municipal judges, and municipal
On such transfer (by cession)
prosecuting attorneys nor to those who by chance
of territory, it has never been
are temporarily discharging the functions of judge
held that the relations of the
or prosecuting attorney.
inhabitants with each other
undergo any change. Their
xxx xxx xxx relations with their former
sovereign are dissolved, and
5. Those who by virtue of laws or special provisions new relations are created
may not engage in commerce in a determinate between them and the
territory. government which has
acquired their territory. The
same act which transfers their
It is Our considered view that although the aforestated provision is country, transfers the
incorporated in the Code of Commerce which is part of the commercial allegiance of those who remain
laws of the Philippines, it, however, partakes of the nature of a political in it; and the law which may be
law as it regulates the relationship between the government and certain denominated political, is
public officers and employees, like justices and judges. necessarily changed, although
that which regulates the
Political Law has been defined as that branch of public law which deals intercourse and general
with the organization and operation of the governmental organs of the conduct of individuals,
State and define the relations of the state with the inhabitants of its remains in force, until altered
territory (People vs. Perfecto, 43 Phil. 887, 897 [1922]). It may be recalled by the newly- created power of
that political law embraces constitutional law, law of public the State.
corporations, administrative law including the law on public officers
and elections. Specifically, Article 14 of the Code of Commerce partakes Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated
more of the nature of an administrative law because it regulates the that: "It is a general principle of the public law that on acquisition of
conduct of certain public officers and employees with respect to territory the previous political relations of the ceded region are totally
engaging in business: hence, political in essence. abrogated. "

It is significant to note that the present Code of Commerce is the Spanish There appears no enabling or affirmative act that continued the
Code of Commerce of 1885, with some modifications made by the effectivity of the aforestated provision of the Code of Commerce after
"Commission de Codificacion de las Provincias de Ultramar," which was the change of sovereignty from Spain to the United States and then to
extended to the Philippines by the Royal Decree of August 6, 1888, and the Republic of the Philippines. Consequently, Article 14 of the Code of
took effect as law in this jurisdiction on December 1, 1888. Commerce has no legal and binding effect and cannot apply to the
respondent, then Judge of the Court of First Instance, now Associate
Upon the transfer of sovereignty from Spain to the United States and Justice of the Court of Appeals.
later on from the United States to the Republic of the Philippines, Article
14 of this Code of Commerce must be deemed to have been abrogated It is also argued by complainant herein that respondent Judge violated
because where there is change of sovereignty, the political laws of the paragraph H, Section 3 of Republic Act No. 3019, otherwise known as
former sovereign, whether compatible or not with those of the new the Anti-Graft and Corrupt Practices Act, which provides that:
sovereign, are automatically abrogated, unless they are expressly re-
enacted by affirmative act of the new sovereign.
Sec. 3. Corrupt practices of public officers. — In automatically upon the transfer of sovereignty from Spain to America,
addition to acts or omissions of public officers because it is political in nature.
already penalized by existing law, the following
shall constitute corrupt practices of any public Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil
officer and are hereby declared to be unlawful:
Code against the purchase by judges of a property in litigation before
the court within whose jurisdiction they perform their duties, cannot
xxx xxx xxx apply to respondent Judge because the sale of the lot in question to him
took place after the finality of his decision in Civil Case No. 3010 as well
(h) Directly or indirectly as his two orders approving the project of partition; hence, the property
was no longer subject of litigation.
having financial or pecuniary
interest in any business,
contract or transaction in In addition, although Section 12, Rule XVIII of the Civil Service Rules
connection with which he made pursuant to the Civil Service Act of 1959 prohibits an officer or
intervenes or takes part in his employee in the civil service from engaging in any private business,
official capacity, or in which he vocation, or profession or be connected with any commercial, credit,
is prohibited by the agricultural or industrial undertaking without a written permission
Constitution or by any Iaw from the head of department, the same, however, may not fall within
from having any interest. the purview of paragraph h, Section 3 of the Anti-Graft and Corrupt
Practices Act because the last portion of said paragraph speaks of a
prohibition by the Constitution or law on any public officer from having
Respondent Judge cannot be held liable under the aforestated
paragraph because there is no showing that respondent participated or any interest in any business and not by a mere administrative rule or
regulation. Thus, a violation of the aforesaid rule by any officer or
intervened in his official capacity in the business or transactions of the
employee in the civil service, that is, engaging in private business
Traders Manufacturing and Fishing Industries, Inc. In the case at bar,
without a written permission from the Department Head may not
the business of the corporation in which respondent participated has
constitute graft and corrupt practice as defined by law.
obviously no relation or connection with his judicial office. The business
of said corporation is not that kind where respondent intervenes or takes
part in his capacity as Judge of the Court of First Instance. As was held On the contention of complainant that respondent Judge violated
in one case involving the application of Article 216 of the Revised Penal Section 12, Rule XVIII of the Civil Service Rules, We hold that the Civil
Code which has a similar prohibition on public officers against directly Service Act of 1959 (R.A. No. 2260) and the Civil Service Rules
or indirectly becoming interested in any contract or business in which it promulgated thereunder, particularly Section 12 of Rule XVIII, do not
is his official duty to intervene, "(I)t is not enough to be a public official apply to the members of the Judiciary. Under said Section 12: "No officer
to be subject to this crime; it is necessary that by reason of his office, he or employee shall engage directly in any private business, vocation, or
has to intervene in said contracts or transactions; and, hence, the official profession or be connected with any commercial, credit, agricultural or
who intervenes in contracts or transactions which have no relation to his industrial undertaking without a written permission from the Head of
office cannot commit this crime.' (People vs. Meneses, C.A. 40 O.G. 11th Department ..."
Supp. 134, cited by Justice Ramon C. Aquino; Revised Penal Code, p.
1174, Vol. 11 [1976]).
It must be emphasized at the outset that respondent, being a member of
the Judiciary, is covered by Republic Act No. 296, as amended,
It does not appear also from the records that the aforesaid corporation otherwise known as the Judiciary Act of 1948 and by Section 7, Article
gained any undue advantage in its business operations by reason of X, 1973 Constitution.
respondent's financial involvement in it, or that the corporation
benefited in one way or another in any case filed by or against it in court.
Under Section 67 of said law, the power to remove or dismiss judges
It is undisputed that there was no case filed in the different branches of
was then vested in the President of the Philippines, not in the
the Court of First Instance of Leyte in which the corporation was either Commissioner of Civil Service, and only on two grounds, namely,
party plaintiff or defendant except Civil Case No. 4234 entitled
serious misconduct and inefficiency, and upon the recommendation of
"Bernardita R. Macariola, plaintiff, versus Sinforosa O. Bales, et al.," wherein
the Supreme Court, which alone is authorized, upon its own motion, or
the complainant herein sought to recover Lot 1184-E from the aforesaid
upon information of the Secretary (now Minister) of Justice to conduct
corporation. It must be noted, however, that Civil Case No. 4234 was
the corresponding investigation. Clearly, the aforesaid section defines
filed only on November 9 or 11, 1968 and decided on November 2, 1970
the grounds and prescribes the special procedure for the discipline of
by CFI Judge Jose D. Nepomuceno when respondent Judge was no
judges.
longer connected with the corporation, having disposed of his interest
therein on January 31, 1967.
And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only
the Supreme Court can discipline judges of inferior courts as well as
Furthermore, respondent is not liable under the same paragraph
other personnel of the Judiciary.
because there is no provision in both the 1935 and 1973 Constitutions of
the Philippines, nor is there an existing law expressly prohibiting
members of the Judiciary from engaging or having interest in any lawful It is true that under Section 33 of the Civil Service Act of 1959: "The
business. Commissioner may, for ... violation of the existing Civil Service Law and
rules or of reasonable office regulations, or in the interest of the service,
remove any subordinate officer or employee from the service, demote
It may be pointed out that Republic Act No. 296, as amended, also
him in rank, suspend him for not more than one year without pay or
known as the Judiciary Act of 1948, does not contain any prohibition to fine him in an amount not exceeding six months' salary." Thus, a
that effect. As a matter of fact, under Section 77 of said law, municipal
violation of Section 12 of Rule XVIII is a ground for disciplinary action
judges may engage in teaching or other vocation not involving the
against civil service officers and employees.
practice of law after office hours but with the permission of the district
judge concerned.
However, judges cannot be considered as subordinate civil service
officers or employees subject to the disciplinary authority of the
Likewise, Article 14 of the Code of Commerce which prohibits judges Commissioner of Civil Service; for, certainly, the Commissioner is not
from engaging in commerce is, as heretofore stated, deemed abrogated
the head of the Judicial Department to which they belong. The Revised
Administrative Code (Section 89) and the Civil Service Law itself state
that the Chief Justice is the department head of the Supreme Court (Sec. With respect to the third and fourth causes of action, complainant
20, R.A. No. 2260) [1959]); and under the 1973 Constitution, the Judiciary alleged that respondent was guilty of coddling an impostor and acted in
is the only other or second branch of the government (Sec. 1, Art. X, 1973 disregard of judicial decorum, and that there was culpable defiance of
Constitution). Besides, a violation of Section 12, Rule XVIII cannot be the law and utter disregard for ethics. WE agree, however, with the
considered as a ground for disciplinary action against judges because to recommendation of the Investigating Justice that respondent Judge be
recognize the same as applicable to them, would be adding another exonerated because the aforesaid causes of action are groundless, and
ground for the discipline of judges and, as aforestated, Section 67 of the WE quote the pertinent portion of her report which reads as follows:
Judiciary Act recognizes only two grounds for their removal, namely,
serious misconduct and inefficiency.
The basis for complainant's third cause of action is
the claim that respondent associated and closely
Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the fraternized with Dominador Arigpa Tan who
Commissioner of Civil Service who has original and exclusive openly and publicly advertised himself as a
jurisdiction "(T)o decide, within one hundred twenty days, after practising attorney (see Exhs. I, I-1 and J) when in
submission to it, all administrative cases against permanent officers and truth and in fact said Dominador Arigpa Tan does
employees in the competitive service, and, except as provided by law, to not appear in the Roll of Attorneys and is not a
have final authority to pass upon their removal, separation, and member of the Philippine Bar as certified to in Exh.
suspension and upon all matters relating to the conduct, discipline, and K.
efficiency of such officers and employees; and prescribe standards,
guidelines and regulations governing the administration of discipline"
The "respondent denies knowing that Dominador
(emphasis supplied). There is no question that a judge belong to the non-
Arigpa Tan was an "impostor" and claims that all
competitive or unclassified service of the government as a Presidential
the time he believed that the latter was a bona
appointee and is therefore not covered by the aforesaid provision. WE fide member of the bar. I see no reason for
have already ruled that "... in interpreting Section 16(i) of Republic Act
disbelieving this assertion of respondent. It has
No. 2260, we emphasized that only permanent officers and employees
been shown by complainant that Dominador
who belong to the classified service come under the exclusive
Arigpa Tan represented himself publicly as an
jurisdiction of the Commissioner of Civil Service" (Villaluz vs. Zaldivar,
attorney-at-law to the extent of putting up a
15 SCRA 710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619 [1963]).
signboard with his name and the words "Attorney-
at Law" (Exh. I and 1- 1) to indicate his office, and it
Although the actuation of respondent Judge in engaging in private was but natural for respondent and any person for
business by joining the Traders Manufacturing and Fishing Industries, that matter to have accepted that statement on its
Inc. as a stockholder and a ranking officer, is not violative of the face value. "Now with respect to the allegation of
provissions of Article 14 of the Code of Commerce and Section 3(h) of complainant that respondent is guilty of
the Anti-Graft and Corrupt Practices Act as well as Section 12, Rule fraternizing with Dominador Arigpa Tan to the
XVIII of the Civil Service Rules promulgated pursuant to the Civil extent of permitting his wife to be a godmother of
Service Act of 1959, the impropriety of the same is clearly Mr. Tan's child at baptism (Exh. M & M-1), that fact
unquestionable because Canon 25 of the Canons of Judicial Ethics even if true did not render respondent guilty of
expressly declares that: violating any canon of judicial ethics as long as his
friendly relations with Dominador A. Tan and
family did not influence his official actuations as a
A judge should abstain from making personal
investments in enterprises which are apt to be judge where said persons were concerned. There is
no tangible convincing proof that herein
involved in litigation in his court; and, after his
respondent gave any undue privileges in his court
accession to the bench, he should not retain such
to Dominador Arigpa Tan or that the latter
investments previously made, longer than a period
benefitted in his practice of law from his personal
sufficient to enable him to dispose of them without
relations with respondent, or that he used his
serious loss. It is desirable that he should, so far as
reasonably possible, refrain from all relations influence, if he had any, on the Judges of the other
which would normally tend to arouse the suspicion branches of the Court to favor said Dominador Tan.
that such relations warp or bias his judgment, or
prevent his impartial attitude of mind in the Of course it is highly desirable for a member of the
administration of his judicial duties. ... judiciary to refrain as much as possible from
maintaining close friendly relations with practising
WE are not, however, unmindful of the fact that respondent Judge and attorneys and litigants in his court so as to avoid
suspicion 'that his social or business relations or
his wife had withdrawn on January 31, 1967 from the aforesaid
friendship constitute an element in determining his
corporation and sold their respective shares to third parties, and it
judicial course" (par. 30, Canons of Judicial Ethics),
appears also that the aforesaid corporation did not in anyway benefit in
but if a Judge does have social relations, that in
any case filed by or against it in court as there was no case filed in the
itself would not constitute a ground for disciplinary
different branches of the Court of First Instance of Leyte from the time
of the drafting of the Articles of Incorporation of the corporation on action unless it be clearly shown that his social
relations be clouded his official actuations with bias
March 12, 1966, up to its incorporation on January 9, 1967, and the
and partiality in favor of his friends (pp. 403-405,
eventual withdrawal of respondent on January 31, 1967 from said
rec.).
corporation. Such disposal or sale by respondent and his wife of their
shares in the corporation only 22 days after the incorporation of the
corporation, indicates that respondent realized that early that their In conclusion, while respondent Judge Asuncion, now Associate Justice
interest in the corporation contravenes the aforesaid Canon 25. of the Court of Appeals, did not violate any law in acquiring by
Respondent Judge and his wife therefore deserve the commendation for purchase a parcel of land which was in litigation in his court and in
their immediate withdrawal from the firm after its incorporation and engaging in business by joining a private corporation during his
before it became involved in any court litigation incumbency as judge of the Court of First Instance of Leyte, he should
be reminded to be more discreet in his private and business activities,
because his conduct as a member of the Judiciary must not only be
III
characterized with propriety but must always be above suspicion.
WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE
COURT OF APPEALS IS HEREBY REMINDED TO BE MORE
DISCREET IN HIS PRIVATE AND BUSINESS ACTIVITIES. MALACAÑANG
MANILABY THE PRESIDENT OF THE PHILIPPINES
SO ORDERED.
PROCLAMATION NO. 2
CONSTITUTIONAL LAW
PROCLAIMING THE LIFTING OF THE SUSPENSION OF THE
PRIVILEGE OF THE WRIT OF HABEAS CORPUS THROUGHOUT
A.) The February 1986 Revolution and the Proclamation of the
THE PHILIPPINES
Provisional Constitution

WHEREAS, the then President Ferdinand E. Marcos, issuing


MALACAÑANG
Proclamation No. 2045 dated 17 January 1981 and Proclamation No.
MANILA
2045-A dated 23 July 1983, suspended the privilege of the writ of habeas
corpus in the two autonomous regions of Mindanao and in all other
PROCLAMATION NO. 1 places with respect to persons detained “for all cases involving the
crimes of insurrection, rebellion, subversion, conspiracy or proposal to
Sovereignty resides in the people and all government authority commit such crimes, sedition, conspiracy to commit sedition, inciting to
emanates from them. sedition, and for all other crimes or offenses committed by them in
furtherance or on the occasion thereof, or incident thereto, or in
connection therewith, such as but not limited to offenses involving
On the basis of the people’s mandate clearly manifested last February 7, economic sabotage, illegal assemblies, illegal associations, tumults and
I and Salvador H. Laurel are taking power in the name and by the will other disturbances of public orders, unlawful fuse of means of
of the Filipino people as President and Vice President, respectively. publication and unlawful utterances, and alarms and scandals, or with
respect to any person whose arrest or detention was, in the judgment of
The people expect a reorganization of government. Merit will be the President, required by public safety as a means to repel or quell the
rewarded. As a first step to restore public confidence I expect all rebellion in the country;
appointed public officials to submit their courtesy resignations
beginning with the members of the Supreme Court. WHEREAS, the proclamations and decrees mentioned and all the
related decrees, instructions, orders and rules were not warranted by the
I pledge to do justice to the numerous victims of human rights requirements of public safety since the existing rebellion could have
violations. been contained by government sincerity at reforms, by peaceful
negotiations and reconciliation, and by steadfast devotion to the rule of
law;
Consistent with the demands of the sovereign people, we pledge a
government dedicated to uphold truth and justice, morality and
decency in government, freedom and democracy. WHEREAS, instead of serving its purpose of suppressing the rebellion
and other threats to national security, the suspension of the privilege of
the writ of habeas corpus drove many to the hills and fanned the
To help me run the government, I have issued Executive Order No.
conspiracy to overthrow the government by violence and force; and
1 dated February 25, 1986 appointing key cabinet ministers and creating
certain task forces.
WHEREAS, the Filipino people have established a new government
bound to the ideals of genuine liberty and freedom for all.
I ask our people not to relax but to be even more vigilant in this one
moment of triumph. The Motherland cannot thank them enough. Yet,
we all realize that more is required of each and everyone of us to redeem NOW, THEREFORE, I, CORAZON C. AQUINO, President of the
our promises and prove to create a truly just society for our people. Philippines, by virtue of the powers vested in me by the Constitution
and the Filipino people, do hereby revoke Proclamations No. 2045 and
2045-A, and do hereby lift the suspension of the privilege of the writ of
This is just the beginning. The same spirit which animated our
habeas corpus so that this guardian of liberty and freedom may be
campaign, and has led to our triumph, will once more prevail, by the
available to all.
power of the people and by the grace of God.

IN WITNESS WHEREOF, I have hereunto set my hand and caused the


Done in the City of Manila, this 25th of February in the year of Our Lord,
seal of the Republic of the Philippines to be affixed to this proclamation.
nineteen hundred and eighty-six.

DONE in the City of Manila, this 2nd day of March, in the year of Our
(Sgd.) CORAZON C. AQUINO
Lord, Nineteen Hundred and Eighty-Six.

President
(Sgd.) CORAZON C. AQUINO

(Sgd.) JOKER P. ARROYO


Executive Secretary
LAWYERS LEAGUE V AQUINO G.R. No. 73748 - May 22, 1986 G.R. No. 76180 October 24, 1986
LAWYERS LEAGUE FOR A BETTER PHILIPPINES vs. AQUINO
(G.R. No. 73748 - May 22, 1986)
IN RE: SATURNINO V. BERMUDEZ, petitioner.
------------------------
(There is no "Full-Text" of this case. This is a Minute Resolution made
by the SC.) R E S O L U T IO N

Minute Resolutions

EN BANC
PER CURIAM:
[G.R. No. 73748, May 22, 1986]

LAWYERS LEAGUE FOR A BETTER PHILIPPINES AND/OR In a petition for declaratory relief impleading no respondents,
OLIVER A. LOZANO VS. PRESIDENT CORAZON C. AQUINO, ET petitioner, as a lawyer, quotes the first paragraph of Section 5 (not
AL. Section 7 as erroneously stated) of Article XVIII of the proposed 1986
SIRS/MESDAMES: Constitution, which provides in full as follows:

Quoted hereunder, for your information, is a resolution of this Court Sec. 5. The six-year term of the incumbent President and Vice-President
MAY 22, 1986. elected in the February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to noon of June 30, 1992.
In G.R. No. 73748, Lawyers League for a Better Philippines vs.
President Corazon C. Aquino, et al.; G.R. No. 73972, People's Crusade
The first regular elections for the President and Vice-President under
for Supremacy of the Constitution vs. Mrs. Cory Aquino, et al., and
this Constitution shall be held on the second Monday of May, 1992.
G.R. No. 73990, Councilor Clifton U. Ganay vs. Corazon C. Aquino, et
al., the legitimacy of the government of President Aquino is
questioned. It is claimed that her government is illegal because it was Claiming that the said provision "is not clear" as to whom it refers, he
not established pursuant to the 1973 Constitution. then asks the Court "to declare and answer the question of the
construction and definiteness as to who, among the present incumbent
As early as April 10, 1986, this Court* had already voted to dismiss President Corazon Aquino and Vice-President Salvador Laurel and the
the petitions for the reasons to be stated below. On April 17, 1986, elected President Ferdinand E. Marcos and Vice-President Arturo M.
Atty. Lozano as counsel for the petitioners in G.R. Nos. 73748 and Tolentino being referred to under the said Section 7 (sic) of ARTICLE
73972 withdrew the petitions and manifested that they would pursue XVIII of the TRANSITORY PROVISIONS of the proposed 1986
the question by extra-judicial methods. The withdrawal is functus Constitution refers to, . ...
oficio.
The petition is dismissed outright for lack of jurisdiction and for lack for
The three petitions obviously are not impressed with merit. Petitioners
cause of action.
have no personality to sue and their petitions state no cause of action.
For the legitimacy of the Aquino government is not a justiciable matter.
It belongs to the realm of politics where only the people of the Prescinding from petitioner's lack of personality to sue or to bring this
Philippines are the judge. And the people have made the judgment; action, (Tan vs. Macapagal, 43 SCRA 677), it is elementary that this
they have accepted the government of President Corazon C. Aquino Court assumes no jurisdiction over petitions for declaratory relief. More
which is in effective control of the entire country so that it is not merely importantly, the petition amounts in effect to a suit against the
a de factogovernment but is in fact and law a de jure government. incumbent President of the Republic, President Corazon C. Aquino, and
Moreover, the community of nations has recognized the legitimacy of it is equally elementary that incumbent Presidents are immune from suit
the present government. All the eleven members of this Court, as or from being brought to court during the period of their incumbency
reorganized, have sworn to uphold the fundamental law of the and tenure.
Republic under her government.
The petition furthermore states no cause of action. Petitioner's allegation
In view of the foregoing, the petitions are hereby dismissed. of ambiguity or vagueness of the aforequoted provision is manifestly
gratuitous, it being a matter of public record and common public
knowledge that the Constitutional Commission refers therein to
Very truly yours, incumbent President Corazon C. Aquino and Vice-President Salvador
H. Laurel, and to no other persons, and provides for the extension of
(Sgd.) GLORIA C. PARAS their term to noon of June 30, 1992 for purposes of synchronization of
Clerk of Court elections. Hence, the second paragraph of the cited section provides for
the holding on the second Monday of May, 1992 of the first regular
The community of nations has recognized the legitimacy of the new elections for the President and Vice-President under said 1986
government. Constitution. In previous cases, the legitimacy of the government of
President Corazon C. Aquino was likewise sought to be questioned with
the claim that it was not established pursuant to the 1973 Constitution.
The said cases were dismissed outright by this court which held that:

Petitioners have no personality to sue and their petitions state no cause


of action. For the legitimacy of the Aquino government is not a
justiciable matter. It belongs to the realm of politics where only the
people of the Philippines are the judge. And the people have made the
judgment; they have accepted the government of President Corazon C.
Aquino which is in effective control of the entire country so that it is not
merely a de facto government but in fact and law a de jure government.
Moreover, the community of nations has recognized the legitimacy of
tlie present government. All the eleven members of this Court, as shall be appointed by the President of the Philippines. The Presiding
reorganized, have sworn to uphold the fundamental law of the Republic Justice shall be so designated in his appointment and the Associate
under her government. (Joint Resolution of May 22, 1986 in G.R. No. Justice shall have precedence according to the dates of their respective
73748 [Lawyers League for a Better Philippines, etc. vs. President appointments, or when the appointments of two or more shall bear the
Corazon C. Aquino, et al.]; G.R. No. 73972 [People's Crusade for same date, according to the order in which their appointments were
Supremacy of the Constitution. etc. vs. Mrs. Cory Aquino, et al.]; and issued by the President. Any Member who is reappointed to the Court
G.R. No. 73990 [Councilor Clifton U. Ganay vs. Corazon C. Aquino, et after rendering service in any other position in the government shall
al.]) retain the precedence to which he was entitled under his original
appointment, and his service in the Court shall, for all intents and
For the above-quoted reason, which are fully applicable to the petition purpose be considered as continuous and uninterrupted." 6
at bar, mutatis mutandis, there can be no question that President Corazon
Petitioner elaborates that President Aquino is presumed to have
C. Aquino and Vice-President Salvador H. Laurel are the incumbent and
intended to comply with her own Executive Order No. 33 so much so
legitimate President and Vice-President of the Republic of the
that the correction of the inadvertent error would only implement the
Philippines.or the above-quoted reasons, which are fully applicable to
intent of the President as well as the spirit of Executive Order No. 33 and
the petition at bar,
will not provoke any kind of constitutional confrontation (between the
President and the Supreme Court). 7
ACCORDINGLY, the petition is hereby dismissed.
Petitioner points to the case of Justice Oscar Victoriano, former
Presiding Justice of the Court of Appeals who, according to petitioner,
[A.M. No. 90-11-2697-CA. June 29, 1992.] was transferred from his position as Justice of the Court of Appeals to
the Ministry of Justice as Commissioner of Land Registration and in
LETTER OF ASSOCIATE JUSTICE REYNATO S. PUNO of the Court 1986 was reappointed to the Court of Appeals. Petitioner states that his
of Appeals dated 14 November 1990. (Victoriano’s) stint in the Commission of Land Registration did not
adversely affect his seniority ranking in the Court of Appeals, for, in his
case, Executive Order No. 33 was correctly applied. 8
RESOLUTION
PADILLA, J.: In a resolution of the Court en banc dated 29 November 1990, the Court
Petitioner Associate Justice Reynato S. Puno, a member of the Court of granted Justice Puno’s request. 9 It will be noted that before the issuance
Appeals, wrote a letter dated 14 November 1990 addressed to this Court, of said resolution, there was no written opposition to, or comment on
seeking the correction of his seniority ranking in the Court of Appeals. petitioner’s aforesaid request. The dispositive portion of the resolution
reads:jgc:chanrobles.com.ph
It appears from the records that petitioner was first appointed Associate
Justice of the Court of Appeals on 20 June 1980 but took his oath of office "IN VIEW WHEREOF, the petition of Associate Justice Reynato S. Puno
for said position only on 29 November 1982, after serving as Assistant for correction of his seniority ranking in the Court of Appeals is granted.
Solicitor General in the Office of the Solicitor General since 1974. 1 The presiding Justice of the Court of Appeals, the Honorable Rodolfo A.
Nocon, is hereby directed to correct the seniority rank of Justice Puno
On 17 January 1983, the Court of Appeals was reorganized and became from number twelve (12) to number five (5). Let copies of this Resolution
the Intermediate Appellate Court pursuant to Batas Pambansa Blg. 129 be furnished the Court Administrator and the Judicial and Bar Council
entitled "An Act Reorganizing the Judiciary. Appropriating Funds for their guidance and information." 10
Therefor and For Other Purposes." 2 Petitioner was appointed Appellate
Justice in the First Special Cases Division of the Intermediate Appellate A motion for reconsideration of the resolution of the Court en banc
Court. On 7 November 1984, petitioner accepted an appointment to be dated 29 November 1990 was later filed by Associate Justices Jose C.
ceased to be a member of the Judiciary. 3 Campos, Jr. and Luis A. Javellana, two (2) of the Associate Justices
affected by the ordered correction. They contend that the present Court
The aftermath of the EDSA Revolution in February 1986 brought about of Appeals is a new Court with fifty one (51) members and that
a reorganization of the entire government, including the Judiciary. To petitioner could not claim a reappointment to a prior court; neither can
effect the reorganization of the Intermediate Appellate Court and other he claim that he was returning to his former court, for the courts where
lower courts, a Screening Committee was created, with the then Minister he had previously been appointed ceased to exist at the date of his last
of Justice, now Senator Neptali Gonzales as Chairman and then Solicitor appointment. 11
General, now Philippine Ambassador to the United Nations Sedfrey
Ordoñez as Vice Chairman. President Corazon C. Aquino, exercising The Court en banc in a resolution dated 17 January 1992 required the
legislative powers by virtue of the revolution, issued Executive Order petitioner to file his comment on the motion for reconsideration of the
No. 33 to govern the aforementioned reorganization of the Judiciary. 4 resolution dated 29 November 1990.

The Screening Committee recommended the return of petitioner as In his Comment, petitioner argues that, by virtue of Executive Order No.
Associate Justice of the new Court of Appeals and assigned him the rank 33 read in relation to B.P. Blg. 129, his seniority ranking in the Court of
of number eleven (11) in the roster of appellate court justices. When the Appeals is now number five (5) for, though President Aquino rose to
appointments were signed by President Aquino on 28 July 1986, power by virtue of a revolution, she had pledged at the issuance of
petitioner’s seniority ranking changed, however, from number eleven Proclamation No. 3 (otherwise known as the Freedom Constitution) that
(11) to number twenty six (26). 5 "no right provided under the unratified 1973 Constitution (shall) be
absent in the Freedom Constitution." 12
Petitioner now alleges that the change in his seniority ranking could
only be attributed to inadvertence for, otherwise, it would run counter Moreover, since the last sentence of Section 2 of Executive Order No. 33
to the provisions of Section 2 of Executive Order No. 33, which virtually re-enacted the last sentence of Sec. 3, Chapter 1 of B.P. Blg. 129,
reads:chanrobles virtual lawlibrary statutory construction rules on simultaneous repeal and re-enactment
mandate, according to petitioner, the preservation and enforcement of
"SECTION 2. Section 3, Chapter 1 of Batas Pambansa Blg. 129, is hereby all rights and liabilities which had accrued under the original statute. 13
amended to read as follows:jgc:chanrobles.com.ph Furthermore, petitioner avers that, although the power of appointment
is executive in character and cannot be usurped by any other branch of
"SEC. 2. Organization. — There is hereby created a Court of Appeals the Government, such power can still be regulated by the Constitution
which shall consist of a Presiding Justice and fifty Associate Justices who and by the appropriate law, in this case, by the limits set by Executive
Order NO. 33 14 for the power of appointment cannot be wielded in Constitution, 24 read:jgc:chanrobles.com.ph
violation of law. 15
"WHEREAS, the new government under President Corazon C. Aquino
Justices Javellana and Campos were required by the Court to file their was installed through a direct exercise of the power of the Filipino
reply to Justice Puno’s comment on their motion for reconsideration of people assisted by units of the New Armed Forces of the Philippines;
the resolution of the Court en banc dated 24 January
1991.chanrobles.com:cralaw:red "WHEREAS, the heroic action of the people was done in defiance of the
provisions of the 1973 Constitution, as amended;
In their Reply and Supplemental Reply, Associate Justices Javellana and
Campos submit that the appeal or request for correction filed by the "WHEREFORE, I, Corazon C. Aquino, President of the Philippines, by
petitioner was addressed to the wrong party. They aver that as virtue of the powers vested in me by the sovereign mandate of the
petitioner himself had alleged the mistake to be an "inadvertent error" people, do hereby promulgate the following Provisional
of the Office of the President, ergo, he should have filed his request for Constitution."25cralaw:red
correction also with said Office of the President and not directly with
the Supreme Court. 16 Furthermore, they point out that petitioner had These summarize the Aquino government’s position that its mandate is
indeed filed with the Office of the President a request or petition for taken from "a direct exercise of the power of the Filipino people." 26
correction of his ranking, (seniority) but the same was not approved
such that his recourse should have been an appropriate action before the Discussions and opinions of legal experts also proclaim that the Aquino
proper court and impleading all parties concerned. The aforesaid non- government was "revolutionary in the sense that it came into existence
approval by the Office of the President they argue, should be respected in defiance of the existing legal processes" 27 and that it was a
by the Supreme Court "not only on the basis of the doctrine of separation revolutionary government "instituted by the direct action of the people
of powers but also their presumed knowledge ability and even expertise and in opposition to the authoritarian values and practices of the
in the laws they are entrusted to enforce" 17 for it (the non-approval) is overthrown government." 28
a confirmation that petitioner’s seniority ranking at the time of his
appointment by President Aquino was, in fact, deliberate and not an A question which naturally comes to mind is whether the then existing
"inadvertent error" as petitioner would have the Court believe. 18 legal order was overthrown by the Aquino government. "A legal order
is the authoritative code of a polity. Such code consists of all the rules
The resolution of this controversy is not a pleasant task for the Court found in the enactments of the organs of the polity. Where the state
since it involves not only members of the next highest court of the land operates under a written constitution, its organs may be readily
but persons who are close to members of this Court. But the controversy determined from a reading of its provisions. Once such organs are
has to be resolved. The core issue in this case is whether the present ascertained, it becomes an easy matter to locate their enactments. The
Court of Appeals is a new court such that it would negate any claim to rules in such enactments, along with those in the constitution, comprise
precedence or seniority admittedly enjoyed by petitioner in the Court of the legal order of that constitutional state." 29 It is assumed that the legal
Appeals and Intermediate Appellate Court existing prior to Executive order remains as a "culture system" of the polity as long as the latter
Order No. 33 or whether the present Court of Appeals is merely a endures 30 and that a point may be reached, however, where the legal
continuation of the Court of Appeals and Intermediate Appellate Court system ceases to be operative as a whole for it is no longer obeyed by
existing prior to said Executive Order No. 33. the population nor enforced by the officials. 31

It is the holding of the Court that the present Court of Appeals is a new It is widely known that Mrs. Aquino’s rise to the presidency was not due
entity, different and distinct from the Court of Appeals or the to constitutional processes; in fact, it was achieved in violation of the
Intermediate Appellate Court existing prior to Executive Order No. 33, provisions of the 1973 Constitution as a Batasang Pambansa resolution
for it was created in the wake of the massive reorganization launched had earlier declared Mr. Marcos at the winner in the 1986 presidential
by the revolutionary government of Corazon C. Aquino in the aftermath election. 32 Thus it can be said that the organization of Mrs. Aquino’s
of the people power (EDSA) revolution in 1986. Government which was met by little resistance and her control of the
state evidenced by the appointment of the Cabinet and other key officers
A resolution has been defined as "the complete overthrow of the of the administration, the departure of the Marcos Cabinet officials,
established government in any country or state by those who were revampt of the Judiciary and the Military signalled the point where the
previously subject to it" 19 or as "a sudden, radical and fundamental legal system then in effect, had ceased to be obeyed by the Filipino.
change in the government or political system, usually effected with
violence or at least some acts of violence." 20 In Kelsen’s book, General The Court holds that the Court of Appeals and Intermediate Appellate
Theory of Law and State, it is defined as that which "occurs whenever Court existing prior to Executive Order No. 33 phased out as part of the
the legal order of a community is nullified and replaced by a new order legal system abolished by the revolution and that the Court of Appeals
. . . a way not prescribed by the first order itself." 21 established under Executive Order No. 33 was an entirely new court
with appointments thereto having no relation to earlier appointments to
It was through the February 1986 revolution, a relatively peaceful one, the abolished courts, and that the reference to precedence in rank
and more popularly known as the "people power revolution" that the contained in the last sentence of Sec. 2, BP Blg. No. 129 as amended by
Filipino people tore themselves away from an existing regime. This Executive Order No. 33 refers to prospective situations as distinguished
revolution also saw the unprecedented rise to power of the Aquino from retroactive ones.
government.
But even assuming, arguendo, that Executive Order No. 33 did not
From the natural law point of view, the right of revolution has been abolish the precedence or seniority ranking resulting from previous
defined as "an inherent right of a people to cast out their rulers, change appointment to the Court of Appeals or Intermediate Appellate Court
their policy or effect radical reforms in their system of government or existing prior to the 1986 revolution, it is believed that President Aquino
institutions by force or a general uprising when the legal and as head of then revolutionary government, could disregard or set aside
constitutional methods of making such change have proved inadequate such precedence or seniority in ranking when she made her
or are so obstructed as to be unavailable." 22 It has been said that "the appointments to the reorganized Court of Appeals in 1986.
locus of positive law-making power lies with the people of the state" and
from there is derived "the right of the people to abolish, to reform and It is to be noted that, at the time of the issuance of Executive Order No.
to alter any existing form of government without regard to the existing 33, President Aquino was still exercising the powers of a revolutionary
constitution." 23 government, encompassing both executive and legislative powers, such
that she could, if she so desired, amend, modify or repeal any part of
The three (3) clauses that precede the text of the Provisional (Freedom) B.P. Blg. 129 or her own Executive Order No. 33. It should also be
remembered that the same situation was still in force when she issued (Duties and Obligations of Citizens), and ARTICLE VI (Suffrage) of the
the 1986 appointments to the Court of Appeals. In other words, 1973 Constitution, as amended, remain in the force and effect and are
President Aquino, at the time of the issuance of the 1986 appointments, hereby adopted in toto as part of this Provisional Constitution.
modified or disregarded the rule embodied in B.P. Blg. 129 as amended
by Executive Order No. 33, on precedence or seniority in the case of the
SECTION 2. The provision of ARTICLE II (Declaration of Principles and
petitioner, for reasons known only to her. Since the appointment
State Policies), ARTICLE VII (The President), ARTICLE X (The
extended by the President to the petitioner in 1986 for membership in
Judiciary), ARTICLE XI (Local Government), ARTICLE XIII
the new Court of Appeals with its implicit ranking in the roster of
(Accountability of Public Officers), ARTICLE XIV (The National
justices, was a valid appointment anchored on the President’s exercise
Economy and Patrimony of the Nation), ARTICLE XV (General
of her then revolutionary powers, it is not for the Court at this time to Provisions) of the 1973 Constitution, as amended, are hereby adopted as
question or correct that exercise.
part of this Provisional Constitution, as amended, are hereby adopted
as part of this Provisional Constitution, insofar as they are not
ACCORDINGLY, the Court GRANTS the Motion for Reconsideration
inconsistent with the provisions of this Proclamation.
and the seniority rankings of members of the Court of Appeals,
including that of the petitioner, at the time the appointments were made
by the President in 1986, are recognized and upheld. ARTICLE II
THE PRESIDENT,
SO ORDERED. THE VICE-PRESIDENT, AND THE CABINET

SECTION 1. Until a legislature is elected and convened under a New


Constitution, the President shall continue to exercise legislative power.
MALACAÑANG
MANILA
The President shall give priority to measures to achieve the mandate of
the people to:
BY THE PRESIDENT OF THE PHILIPPINES

a) Completely reorganize the government and eradicate unjust and


PROCLAMATION NO. 3 oppressive structures, and all iniquitous vestiges of the previous regime;

DECLARING A NATIONAL POLICY TO IMPLEMENT REFORMS b) Make effective the guarantees of civil, political, human, social,
MANDATED BY THE PEOPLE PROTECTING THEIR BASIC
economic and cultural rights and freedoms of the Filipino people, and
RIGHTS, ADOPTING A PROVISIONAL CONSTITUTION, AND
provide remedies against violations thereof;
PROVIDING FOR AN ORDERLY TRANSITION TO A
GOVERNMENT UNDER A NEW CONSTITUTION
c) Rehabilitate the economy and promote the nationalist aspirations
of the people;
WHEREAS, the new government was installed through a direct exercise
of the power of the Filipino people assisted by units of the New Armed
Forces of the Philippines; d) Recover ill-gotten properties amassed by the leaders and
supporters of the previous regime and protect the interest of the people
through orders of sequestration or freezing of assets of accounts;
WHEREAS, the heroic action of the people was done in defiance of the
provisions of the 1973 Constitution, as amended;
e) Eradicate graft and corruption in government and punish those
guilty thereof; and,
WHEREAS, the direct mandate of the people as manifested by their
extraordinary action demands the complete reorganization of the
government, restoration of democracy, protection of basic rights, f) Restore peace and order, settle the problem of insurgency, and
rebuilding of confidence in the entire government system, eradication pursue national reconciliation based on justice.
of graft and corruption, restoration of peace and order, maintenance of
the supremacy of civilian authority over the military, and the transition SECTION 2. The President shall be assisted by a Cabinet which shall be
to government under a New Constitution in the shortest time possible; composed of Ministers with or without portfolio who shall be appointed
by the President. They shall be accountable to and hold office at the
WHEREAS, during the period of transition to a New Constitution it pleasure of the President.
must be guaranteed that the government will respect basic human rights
and fundamental freedoms; SECTION 3. The President shall have control of and exercise general
supervision over all local governments.
WHEREFORE, I, CORAZON C. AQUINO, President of the
Philippines, by virtue of the power vested in me by the sovereign SECTION 4. In case of permanent vacancy arising from death,
mandate of the people; do hereby promulgate the following incapacity or resignation of the President, the Vice-President shall
Constitution: become President.

PROVISIONAL CONSTITUTION In case of death, permanent incapacity, or resignation of the Vice-


OF President, the Cabinet shall choose from among themselves the Minister
THE REPUBLIC OF THE PHILIPPINES
with portfolio who shall act as President.

ARTICLE 1
SECTION 5. The Vice-President may be appointed Member of the
ADOPTION OF CERTAIN PROVISIONS OF THE
Cabinet and may perform such other functions as may be assigned to
1973 CONSTITUTION, AS AMENDED
him by the President.

SECTION 1. The provisions of ARTICLE I (National Territory),


ARTICLE III (Citizenship), ARTICLE IV (Bill of Rights), ARTICLE V
SECTION 6. The President, the Vice-President, and the Members of the SECTION 5. The New Constitution shall be presented by the
Cabinet shall be subject to the disabilities provided for in Section 8, Commission to the President who shall fix the date for the holding of a
Article VII, and in Section 6 and 7 Article IX, respectively, of the 1973 plebiscite. It shall become valid and effective upon ratification by a
Constitution, as amended. majority of the votes cast in such plebiscite which shall be held within a
period of sixty (60) days following its submission to the President.
ARTICLE III
GOVERNMENT REORGANIZATION ARTICLE VI
HOLDING OF ELECTIONS
SECTION 1. In the reorganization of the government, priority shall be
given to measures to promote economy, efficiency, and the eradication SECTION 1. National elections shall be held as may be provided by the
of graft and corruption. New Constitution.

SECTION 2. All elective and appointive officials and employees under SECTION 2. Local elections shall be held on a date to be determined by
the 1973 Constitution shall continue in the office until otherwise the President which shall be held on a date to be determined by the
provided by proclamation or executive order or upon the designation or President which shall not be earlier than the date of the plebiscite for the
appointment and qualification of their successors, if such is made within ratification of the New Constitution.
a period of one year from February 25, 1986.
ARTICLE VII
SECTION 3. Any public office or employees separated from the service EFFECTIVE DATE
as a result of the reorganization effected under this Proclamation shall,
if entitled under the laws then in force, receive the retirement and other SECTION 1. This Proclamation shall take effect upon its promulgation
benefits accuring thereunder. by the President.

SECTION 4. The records, equipment, buildings, facilities and other SECTION 2. Pursuant to the letter and spirit of this Proclamation, a
properties of all government offices shall be carefully preserved. In case consolidated official text of the Provisional Constitution shall be
any office or body is abolished or reorganized pursuant to this promulgated by the President and published in English and Pilipino in
Proclamation, its funds and properties shall be transferred to the office the official Gazette and in newspapers of general circulation to insure
or body to which its powers, functions, and responsibilities substantially widespread dissemination.
pertain.

DONE in the City of Manila, the 25th of March, in the year of Our Lord,
ARTICLE IV Nineteen Hundred and Eighty-Six.
EXISTING LAWS

(Sgd.) CORAZON C. AQUINO


SECTION 1. All existing laws, decrees, executive orders, proclamations,
letters of instruction, implementing rules and regulations, and other
executive issuances not inconsistent with this Proclamation shall remain By the President:
operative until amended, modified, or repealed by the President or the
regular legislative body to be established under a New Constitution. (Sgd.) JOKER P. ARROYO
Executive Secretary
SECTION 2. The President may review all contracts, concessions,
permits, or other forms of privileges for the exploration, development, B.) Adoption and Effectivity of the Present Constitution
exploitation, or utilization of natural resources entered into, granted,
issued, or acquired before the date of this proclamation and when the
national interest requires, amend, modify, or revoke them.  Article V of the Provisional Constitution
 Section 27, Article XVIII of the 1987 Constitution

ARTICLE V
ADOPTION OF A NEW CONSTITUTION MALACAÑANG
MANILA

SECTION 1. Within sixty (60) days from date of this Proclamation, a


Commission shall be appointed by the President to draft a New BY THE PRESIDENT OF THE PHILIPPINES
Constitution. The Commission shall be composed of not less than thirty
(30) nor more than fifty (50) natural born citizens of the Philippines, of PROCLAMATION NO. 58
recognized probity, known for their independence, nationalism and
patriotism. They shall be chosen by the President after consultation with
PROCLAIMING THE RATIFICATION OF THE CONSTITUTION OF
various sectors of society.
THE REPUBLIC OF THE PHILIPPINES ADOPTED BY THE
CONSTITUTIONAL COMMISSION OF 1986, INCLUDING THE
SECTION 2. The Commission shall complete its work within as short a ORDINANCE APPENDED THERETO
period as may be consistent with the need both to hasten the return of
normal constitutional government to draft a document truly reflective
WHEREAS, the Constitutional Commission of 1986 adopted the
of the ideals and aspirations of the Filipino people.
Constitution of the Republic of the Philippines on October 15, 1986,
together with the Ordinance appended thereto, which shall become
SECTION 3. The Commission shall conduct public hearings to insure valid and effective upon ratification by a majority of the votes cast in a
that the people will have adequate participation in the formulation of plebiscite called for the purpose;
the New Constitution.
WHEREAS, the Commission on Elections, sitting as the national board
SECTION 4. The plenary session of the Commission shall be public and of canvassers for the February 2, 1987 plebiscite on the proposed
fully recorded. Constitution, certified that:
(1) The Commission on Elections canvassed the returns from 83,288 On February 9, 1987, petitioner Alfredo M, de Leon received a
voting precincts throughout the country involving 21,785,216 votes cast; Memorandum antedated December 1, 1986 but signed by respondent
and OIC Governor Benjamin Esguerra on February 8, 1987 designating
respondent Florentino G. Magno as Barangay Captain of Barangay
Dolores, Taytay, Rizal. The designation made by the OIC Governor was
(2) On the basis of the canvass made by the Commission on Elections,
"by authority of the Minister of Local Government."
the results thereof are as follows:

Also on February 8, 1987, respondent OIC Governor signed a


(a) Affirmative votes: 16,622,111
(b) Negative Votes: 4,953,375 Memorandum, antedated December 1, 1986 designating respondents
Remigio M. Tigas, Ricardo Z. Lacanienta Teodoro V. Medina, Roberto S.
(c) Abstentions: 209,730
Paz and Teresita L. Tolentino as members of the Barangay Council of
the same Barangay and Municipality.
A copy of the Certificate of Canvass of the Votes Cast in the Plebiscite
Held on February 2, 1987, of the Commission on Elections dated
February 7, 1987 is hereto attached as Annex “A” of this Proclamation. That the Memoranda had been antedated is evidenced by the Affidavit
of respondent OIC Governor, the pertinent portions of which read:

NOW, THEREFORE, I, CORAZON C. AQUINO, President of the


xxx xxx xxx
Philippines, by virtue of the powers vested in me by the sovereign
mandate of the people, do hereby proclaim that the Constitution of the
Republic of the Philippines adopted by the Constitutional Commission That I am the OIC Governor of Rizal having been
of 1986, including the Ordinance appended thereto, has been duly appointed as such on March 20, 1986;
ratified by the Filipino people and is therefore effective and in full force
and effect.
That as being OIC Governor of the Province of Rizal
and in the performance of my duties thereof, I
IN WITNESS WHEREOF, I have hereunto set my hand and caused the among others, have signed as I did sign the
seal of the Republic of the Philippines to be affixed. unnumbered memorandum ordering the
replacement of all the barangay officials of all the
barangay(s) in the Municipality of Taytay, Rizal;
Done in the City of Manila, this 11th day of February in the year of Our
Lord, nineteen hundred and eighty-seven.
That the above cited memorandum dated
December 1, 1986 was signed by me personally on
(SGD) CORAZON C. AQUINO
February 8,1987;
President of the Philippines

That said memorandum was further deciminated


By the President:
(sic) to all concerned the following day, February 9.
1987.
(SGD) JOKER P. ARROYO
Executive Secretary
FURTHER AFFIANT SAYETH NONE.

G.R. No. 78059 August 31, 1987


Pasig, Metro Manila, March 23, 1987.

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


ANA, JOSE C. TOLENTINO, ROGELIO J. DE LA ROSA and JOSE M. Before us now, petitioners pray that the subject Memoranda of February
RESURRECCION, petitioners, 8, 1987 be declared null and void and that respondents be prohibited
vs. from taking over their positions of Barangay Captain and Barangay
HON. BENJAMIN B. ESGUERRA, in his capacity as OIC Governor of Councilmen, respectively. Petitioners maintain that pursuant to Section
the Province of Rizal, HON. ROMEO C. DE LEON, in his capacity as 3 of the Barangay Election Act of 1982 (BP Blg. 222), their terms of office
OIC Mayor of the Municipality of Taytay, Rizal, FLORENTINO G. "shall be six (6) years which shall commence on June 7, 1982 and shall
MAGNO, REMIGIO M. TIGAS, RICARDO Z. LACANIENTA, continue until their successors shall have elected and shall have
TEODORO V. MEDINA, ROSENDO S. PAZ, and TERESITA L. qualified," or up to June 7, 1988. It is also their position that with the
TOLENTINO, respondents. ratification of the 1987 Constitution, respondent OIC Governor no
longer has the authority to replace them and to designate their
successors.
MELENCIO-HERRERA, J.:

On the other hand, respondents rely on Section 2, Article III of the


An original action for Prohibition instituted by petitioners seeking to
Provisional Constitution, promulgated on March 25, 1986, which
enjoin respondents from replacing them from their respective positions
provided:
as Barangay Captain and Barangay Councilmen of Barangay Dolores,
Municipality of Taytay, Province of Rizal.
SECTION 2. All elective and appointive officials
and employees under the 1973 Constitution shall
As required by the Court, respondents submitted their Comment on the
continue in office until otherwise provided by
Petition, and petitioner's their Reply to respondents' Comment.
proclamation or executive order or upon the
designation or appointment and qualification of
In the Barangay elections held on May 17, 1982, petitioner Alfredo M. their successors, if such appointment is made
De Leon was elected Barangay Captain and the other petitioners Angel within a period of one year from February 25,1986.
S. Salamat, Mario C. Sta. Ana, Jose C. Tolentino, Rogelio J. de la Rosa
and Jose M. Resurreccion, as Barangay Councilmen of Barangay
By reason of the foregoing provision, respondents contend that the
Dolores, Taytay, Rizal under Batas Pambansa Blg. 222, otherwise known
terms of office of elective and appointive officials were abolished and
as the Barangay Election Act of 1982.
that petitioners continued in office by virtue of the aforequoted
provision and not because their term of six years had not yet expired; WHEREFORE, (1) The Memoranda issued by respondent OIC Governor
and that the provision in the Barangay Election Act fixing the term of on February 8, 1987 designating respondents as the Barangay Captain
office of Barangay officials to six (6) years must be deemed to have been and Barangay Councilmen, respectively, of Barangay Dolores, Taytay,
repealed for being inconsistent with the aforequoted provision of the Rizal, are both declared to be of no legal force and effect; and (2) the Writ
Provisional Constitution. of Prohibition is granted enjoining respondents perpetually from
proceeding with the ouster/take-over of petitioners' positions subject of
this Petition. Without costs.
Examining the said provision, there should be no question that
petitioners, as elective officials under the 1973 Constitution, may
continue in office but should vacate their positions upon the occurrence SO ORDERED.
of any of the events mentioned. 1
C.) Compare with Effectivity of Statutes
Since the promulgation of the Provisional Constitution, there has been
no proclamation or executive order terminating the term of elective G.R. No. L-63915 April 24, 1985
Barangay officials. Thus, the issue for resolution is whether or not the
designation of respondents to replace petitioners was validly made
during the one-year period which ended on February 25, 1987. LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD,
INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
Considering the candid Affidavit of respondent OIC Governor, we hold vs.
that February 8, 1977, should be considered as the effective date of HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the
replacement and not December 1,1986 to which it was ante dated, in President, HON. JOAQUIN VENUS, in his capacity as Deputy
keeping with the dictates of justice. Executive Assistant to the President , MELQUIADES P. DE LA CRUZ,
in his capacity as Director, Malacañang Records Office, and
But while February 8, 1987 is ostensibly still within the one-year FLORENDO S. PABLO, in his capacity as Director, Bureau of
deadline, the aforequoted provision in the Provisional Constitution Printing, respondents.
must be deemed to have been overtaken by Section 27, Article XVIII of
the 1987 Constitution reading. ESCOLIN, J.:

SECTION 27. This Constitution shall take effect Invoking the people's right to be informed on matters of public concern,
immediately upon its ratification by a majority of a right recognized in Section 6, Article IV of the 1973 Philippine
the votes cast in a plebiscite held for the purpose Constitution, 1 as well as the principle that laws to be valid and
and shall supersede all previous Constitutions. enforceable must be published in the Official Gazette or otherwise
effectively promulgated, petitioners seek a writ of mandamus to compel
The 1987 Constitution was ratified in a plebiscite on February 2, 1987. respondent public officials to publish, and/or cause the publication in
By that date, therefore, the Provisional Constitution must be deemed to the Official Gazette of various presidential decrees, letters of
have been superseded. Having become inoperative, respondent OIC instructions, general orders, proclamations, executive orders, letter of
Governor could no longer rely on Section 2, Article III, thereof to implementation and administrative orders.
designate respondents to the elective positions occupied by petitioners.
Specifically, the publication of the following presidential issuances is
Petitioners must now be held to have acquired security of tenure sought:
specially considering that the Barangay Election Act of 1982 declares it
"a policy of the State to guarantee and promote the autonomy of the a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64,
barangays to ensure their fullest development as self-reliant 103, 171, 179, 184, 197, 200, 234, 265, 286, 298, 303,
communities.2 Similarly, the 1987 Constitution ensures the autonomy of 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368,
local governments and of political subdivisions of which the barangays 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503,
form a part, 3 and limits the President's power to "general supervision" 504, 521, 528, 551, 566, 573, 574, 594, 599, 644, 658,
over local governments. 4 Relevantly, Section 8, Article X of the same 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935,
1987 Constitution further provides in part: 961, 1017-1030, 1050, 1060-1061, 1085, 1143, 1165,
1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772,
Sec. 8. The term of office of elective local officials, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-
except barangay officials, which shall be 1847.
determined by law, shall be three years ...
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108,
Until the term of office of barangay officials has been determined by law, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180, 187,
therefore, the term of office of six (6) years provided for in the Barangay 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-
Election Act of 1982 5 should still govern. 224, 226-228, 231-239, 241-245, 248, 251, 253-261,
263-269, 271-273, 275-283, 285-289, 291, 293, 297-
299, 301-303, 309, 312-315, 325, 327, 343, 346, 349,
Contrary to the stand of respondents, we find nothing inconsistent 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405,
between the term of six (6) years for elective Barangay officials and the 438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527,
1987 Constitution, and the same should, therefore, be considered as still 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612,
operative, pursuant to Section 3, Article XVIII of the 1987 Constitution, 615, 641, 642, 665, 702, 712-713, 726, 837-839, 878-
reading: 879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.

Sec. 3. All existing laws, decrees, executive orders, c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64
proclamations letters of instructions, and other & 65.
executive issuances not inconsistent, with this
Constitution shall remain operative until amended,
repealed or revoked. d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196,
1270, 1281, 1319-1526, 1529, 1532, 1535, 1538, 1540-
1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, legal or special interest in the result, it being sufficient to show that he is
1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697- a citizen and as such interested in the execution of the laws [High,
1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746- Extraordinary Legal Remedies, 3rd ed., sec. 431].
1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797,
1800, 1802-1804, 1806-1807, 1812-1814, 1816, 1825-
Thus, in said case, this Court recognized the relator Lope Severino, a
1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-
private individual, as a proper party to the mandamus proceedings
1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868,
brought to compel the Governor General to call a special election for the
1870, 1876-1889, 1892, 1900, 1918, 1923, 1933, 1952,
position of municipal president in the town of Silay, Negros Occidental.
1963, 1965-1966, 1968-1984, 1986-2028, 2030-2044,
Speaking for this Court, Mr. Justice Grant T. Trent said:
2046-2145, 2147-2161, 2163-2244.

We are therefore of the opinion that the weight of


e] Executive Orders Nos.: 411, 413, 414, 427, 429-
authority supports the proposition that the relator
454, 457- 471, 474-492, 494-507, 509-510, 522, 524-
is a proper party to proceedings of this character
528, 531-532, 536, 538, 543-544, 549, 551-553, 560,
when a public right is sought to be enforced. If the
563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- general rule in America were otherwise, we think
647, 649-677, 679-703, 705-707, 712-786, 788-852,
that it would not be applicable to the case at bar for
854-857.
the reason 'that it is always dangerous to apply a
general rule to a particular case without keeping in
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, mind the reason for the rule, because, if under the
25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107, 120, particular circumstances the reason for the rule
122, 123. does not exist, the rule itself is not applicable and
reliance upon the rule may well lead to error'
g] Administrative Orders Nos.: 347, 348, 352-354,
360- 378, 380-433, 436-439. No reason exists in the case at bar for applying the
general rule insisted upon by counsel for the
The respondents, through the Solicitor General, would have this case respondent. The circumstances which surround
this case are different from those in the United
dismissed outright on the ground that petitioners have no legal
States, inasmuch as if the relator is not a proper
personality or standing to bring the instant petition. The view is
party to these proceedings no other person could
submitted that in the absence of any showing that petitioners are
be, as we have seen that it is not the duty of the law
personally and directly affected or prejudiced by the alleged non-
officer of the Government to appear and represent
publication of the presidential issuances in question 2 said petitioners
are without the requisite legal personality to institute this mandamus the people in cases of this character.
proceeding, they are not being "aggrieved parties" within the meaning
of Section 3, Rule 65 of the Rules of Court, which we quote: The reasons given by the Court in recognizing a private citizen's legal
personality in the aforementioned case apply squarely to the present
petition. Clearly, the right sought to be enforced by petitioners herein is
SEC. 3. Petition for Mandamus.—When any tribunal,
a public right recognized by no less than the fundamental law of the
corporation, board or person unlawfully neglects
the performance of an act which the law specifically land. If petitioners were not allowed to institute this proceeding, it
would indeed be difficult to conceive of any other person to initiate the
enjoins as a duty resulting from an office, trust, or
same, considering that the Solicitor General, the government officer
station, or unlawfully excludes another from the
generally empowered to represent the people, has entered his
use a rd enjoyment of a right or office to which such
appearance for respondents in this case.
other is entitled, and there is no other plain, speedy
and adequate remedy in the ordinary course of law,
the person aggrieved thereby may file a verified Respondents further contend that publication in the Official Gazette is
petition in the proper court alleging the facts with not a sine qua non requirement for the effectivity of laws where the laws
certainty and praying that judgment be rendered themselves provide for their own effectivity dates. It is thus submitted
commanding the defendant, immediately or at that since the presidential issuances in question contain special
some other specified time, to do the act required to provisions as to the date they are to take effect, publication in the Official
be done to Protect the rights of the petitioner, and Gazette is not indispensable for their effectivity. The point stressed is
to pay the damages sustained by the petitioner by anchored on Article 2 of the Civil Code:
reason of the wrongful acts of the defendant.
Art. 2. Laws shall take effect after fifteen days
Upon the other hand, petitioners maintain that since the subject of the following the completion of their publication in the
petition concerns a public right and its object is to compel the Official Gazette, unless it is otherwise provided, ...
performance of a public duty, they need not show any specific interest
for their petition to be given due course.
The interpretation given by respondent is in accord with this Court's
construction of said article. In a long line of decisions, 4 this Court has
The issue posed is not one of first impression. As early as the 1910 case ruled that publication in the Official Gazette is necessary in those cases
of Severino vs. Governor General, 3 this Court held that while the general where the legislation itself does not provide for its effectivity date-for
rule is that "a writ of mandamus would be granted to a private then the date of publication is material for determining its date of
individual only in those cases where he has some private or particular effectivity, which is the fifteenth day following its publication-but not
interest to be subserved, or some particular right to be protected, when the law itself provides for the date when it goes into effect.
independent of that which he holds with the public at large," and "it is
for the public officers exclusively to apply for the writ when public
Respondents' argument, however, is logically correct only insofar as it
rights are to be subserved [Mithchell vs. Boardmen, 79 M.e., 469],"
equates the effectivity of laws with the fact of publication. Considered
nevertheless, "when the question is one of public right and the object of
in the light of other statutes applicable to the issue at hand, the
the mandamus is to procure the enforcement of a public duty, the people conclusion is easily reached that said Article 2 does not preclude the
are regarded as the real party in interest and the relator at whose
requirement of publication in the Official Gazette, even if the law itself
instigation the proceedings are instituted need not show that he has any
provides for the date of its effectivity. Thus, Section 1 of Commonwealth In a time of proliferating decrees, orders and letters
Act 638 provides as follows: of instructions which all form part of the law of the
land, the requirement of due process and the Rule
Section 1. There shall be published in the Official of Law demand that the Official Gazette as the
official government repository promulgate and
Gazette [1] all important legisiative acts and
publish the texts of all such decrees, orders and
resolutions of a public nature of the, Congress of
instructions so that the people may know where to
the Philippines; [2] all executive and administrative
obtain their official and specific contents.
orders and proclamations, except such as have no
general applicability; [3] decisions or abstracts of
decisions of the Supreme Court and the Court of The Court therefore declares that presidential issuances of general
Appeals as may be deemed by said courts of application, which have not been published, shall have no force and
sufficient importance to be so published; [4] such effect. Some members of the Court, quite apprehensive about the
documents or classes of documents as may be possible unsettling effect this decision might have on acts done in
required so to be published by law; and [5] such reliance of the validity of those presidential decrees which were
documents or classes of documents as the President published only during the pendency of this petition, have put the
of the Philippines shall determine from time to time question as to whether the Court's declaration of invalidity apply to
to have general applicability and legal effect, or P.D.s which had been enforced or implemented prior to their
which he may authorize so to be published. ... publication. The answer is all too familiar. In similar situations in the
past this Court had taken the pragmatic and realistic course set forth
in Chicot County Drainage District vs. Baxter Bank 8 to wit:
The clear object of the above-quoted provision is to give the general
public adequate notice of the various laws which are to regulate their
actions and conduct as citizens. Without such notice and publication, The courts below have proceeded on the theory that
there would be no basis for the application of the maxim "ignorantia the Act of Congress, having been found to be
legis non excusat." It would be the height of injustice to punish or unconstitutional, was not a law; that it was
otherwise burden a citizen for the transgression of a law of which he had inoperative, conferring no rights and imposing no
no notice whatsoever, not even a constructive one. duties, and hence affording no basis for the
challenged decree. Norton v. Shelby County, 118
U.S. 425, 442; Chicago, 1. & L. Ry. Co. v. Hackett,
Perhaps at no time since the establishment of the Philippine Republic
228 U.S. 559, 566. It is quite clear, however, that
has the publication of laws taken so vital significance that at this time
such broad statements as to the effect of a
when the people have bestowed upon the President a power heretofore
determination of unconstitutionality must be taken
enjoyed solely by the legislature. While the people are kept abreast by
with qualifications. The actual existence of a
the mass media of the debates and deliberations in the Batasan
statute, prior to such a determination, is an
Pambansa—and for the diligent ones, ready access to the legislative
records—no such publicity accompanies the law-making process of the operative fact and may have consequences which
cannot justly be ignored. The past cannot always be
President. Thus, without publication, the people have no means of
erased by a new judicial declaration. The effect of
knowing what presidential decrees have actually been promulgated,
the subsequent ruling as to invalidity may have to
much less a definite way of informing themselves of the specific contents
be considered in various aspects-with respect to
and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
particular conduct, private and official. Questions
denominacion generica de leyes, se comprenden tambien los
reglamentos, Reales decretos, Instrucciones, Circulares y Reales ordines of rights claimed to have become vested, of status,
of prior determinations deemed to have finality and
dictadas de conformidad con las mismas por el Gobierno en uso de su
acted upon accordingly, of public policy in the light
potestad.5
of the nature both of the statute and of its previous
application, demand examination. These questions
The very first clause of Section I of Commonwealth Act 638 reads: "There are among the most difficult of those which have
shall be published in the Official Gazette ... ." The word "shall" used engaged the attention of courts, state and federal
therein imposes upon respondent officials an imperative duty. That and it is manifest from numerous decisions that an
duty must be enforced if the Constitutional right of the people to be all-inclusive statement of a principle of absolute
informed on matters of public concern is to be given substance and retroactive invalidity cannot be justified.
reality. The law itself makes a list of what should be published in the
Official Gazette. Such listing, to our mind, leaves respondents with no
Consistently with the above principle, this Court in Rutter vs.
discretion whatsoever as to what must be included or excluded from
such publication. Esteban 9 sustained the right of a party under the Moratorium Law, albeit
said right had accrued in his favor before said law was declared
unconstitutional by this Court.
The publication of all presidential issuances "of a public nature" or "of
general applicability" is mandated by law. Obviously, presidential
Similarly, the implementation/enforcement of presidential decrees
decrees that provide for fines, forfeitures or penalties for their violation
or otherwise impose a burden or. the people, such as tax and revenue prior to their publication in the Official Gazette is "an operative fact
which may have consequences which cannot be justly ignored. The past
measures, fall within this category. Other presidential issuances which
cannot always be erased by a new judicial declaration ... that an all-
apply only to particular persons or class of persons such as
inclusive statement of a principle of absolute retroactive invalidity
administrative and executive orders need not be published on the
cannot be justified."
assumption that they have been circularized to all concerned. 6

It is needless to add that the publication of presidential issuances "of a From the report submitted to the Court by the Clerk of Court, it appears
that of the presidential decrees sought by petitioners to be published in
public nature" or "of general applicability" is a requirement of due
the Official Gazette, only Presidential Decrees Nos. 1019 to 1030,
process. It is a rule of law that before a person may be bound by law, he
inclusive, 1278, and 1937 to 1939, inclusive, have not been so
must first be officially and specifically informed of its contents. As
published. 10 Neither the subject matters nor the texts of these PDs can
Justice Claudio Teehankee said in Peralta vs. COMELEC 7:
be ascertained since no copies thereof are available. But whatever their
subject matter may be, it is undisputed that none of these unpublished
PDs has ever been implemented or enforced by the government.
In Pesigan vs. Angeles, 11 the Court, through Justice Ramon Aquino, ruled In the Comment 3 required of the then Solicitor General, he claimed first
that "publication is necessary to apprise the public of the contents of that the motion was a request for an advisory opinion and should
[penal] regulations and make the said penalties binding on the persons therefore be dismissed, and, on the merits, that the clause "unless it is
affected thereby. " The cogency of this holding is apparently recognized otherwise provided" in Article 2 of the Civil Code meant that the
by respondent officials considering the manifestation in their comment publication required therein was not always imperative; that
that "the government, as a matter of policy, refrains from prosecuting publication, when necessary, did not have to be made in the Official
violations of criminal laws until the same shall have been published in Gazette; and that in any case the subject decision was concurred in only
the Official Gazette or in some other publication, even though some by three justices and consequently not binding. This elicited a
criminal laws provide that they shall take effect immediately. Reply 4 refuting these arguments. Came next the February Revolution
and the Court required the new Solicitor General to file a Rejoinder in
view of the supervening events, under Rule 3, Section 18, of the Rules of
WHEREFORE, the Court hereby orders respondents to publish in the
Court. Responding, he submitted that issuances intended only for the
Official Gazette all unpublished presidential issuances which are of
internal administration of a government agency or for particular
general application, and unless so published, they shall have no binding
persons did not have to be 'Published; that publication when necessary
force and effect.
must be in full and in the Official Gazette; and that, however, the
decision under reconsideration was not binding because it was not
SO ORDERED. supported by eight members of this Court. 5

G.R. No. L-63915 December 29, 1986 The subject of contention is Article 2 of the Civil Code providing as
follows:
LORENZO M. TAÑ;ADA, ABRAHAM F. SARMIENTO, and
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, ART. 2. Laws shall take effect after fifteen days following the
INTEGRITY AND NATIONALISM, INC. (MABINI), petitioners, completion of their publication in the Official Gazette, unless it
vs. is otherwise provided. This Code shall take effect one year
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the after such publication.
President, HON. JOAQUIN VENUS, in his capacity as Deputy
Executive Assistant to the President, MELQUIADES P. DE LA CRUZ,
ETC., ET AL., respondents. After a careful study of this provision and of the arguments of the
parties, both on the original petition and on the instant motion, we have
come to the conclusion and so hold, that the clause "unless it is otherwise
RESOLUTION provided" refers to the date of effectivity and not to the requirement of
publication itself, which cannot in any event be omitted. This clause
CRUZ, J.: does not mean that the legislature may make the law effective
immediately upon approval, or on any other date, without its previous
publication.
Due process was invoked by the petitioners in demanding the disclosure
of a number of presidential decrees which they claimed had not been
published as required by law. The government argued that while Publication is indispensable in every case, but the legislature may in its
publication was necessary as a rule, it was not so when it was "otherwise discretion provide that the usual fifteen-day period shall be shortened
provided," as when the decrees themselves declared that they were to or extended. An example, as pointed out by the present Chief Justice in
become effective immediately upon their approval. In the decision of his separate concurrence in the original decision, 6 is the Civil Code
this case on April 24, 1985, the Court affirmed the necessity for the which did not become effective after fifteen days from its publication in
publication of some of these decrees, declaring in the dispositive portion the Official Gazette but "one year after such publication." The general
as follows: rule did not apply because it was "otherwise provided. "

WHEREFORE, the Court hereby orders respondents to It is not correct to say that under the disputed clause publication may be
publish in the Official Gazette all unpublished presidential dispensed with altogether. The reason. is that such omission would
issuances which are of general application, and unless so offend due process insofar as it would deny the public knowledge of the
published, they shall have no binding force and effect. laws that are supposed to govern the legislature could validly provide
that a law e effective immediately upon its approval notwithstanding
the lack of publication (or after an unreasonably short period after
The petitioners are now before us again, this time to move for
publication), it is not unlikely that persons not aware of it would be
reconsideration/clarification of that decision. 1Specifically, they ask the
prejudiced as a result and they would be so not because of a failure to
following questions:
comply with but simply because they did not know of its existence,
Significantly, this is not true only of penal laws as is commonly
1. What is meant by "law of public nature" or "general applicability"? supposed. One can think of many non-penal measures, like a law on
prescription, which must also be communicated to the persons they may
2. Must a distinction be made between laws of general applicability and affect before they can begin to operate.
laws which are not?
We note at this point the conclusive presumption that every person
3. What is meant by "publication"? knows the law, which of course presupposes that the law has been
published if the presumption is to have any legal justification at all. It is
no less important to remember that Section 6 of the Bill of Rights
4. Where is the publication to be made? recognizes "the right of the people to information on matters of public
concern," and this certainly applies to, among others, and indeed
5. When is the publication to be made? especially, the legislative enactments of the government.

Resolving their own doubts, the petitioners suggest that there should be The term "laws" should refer to all laws and not only to those of general
no distinction between laws of general applicability and those which are application, for strictly speaking all laws relate to the people in general
not; that publication means complete publication; and that the albeit there are some that do not apply to them directly. An example is
publication must be made forthwith in the Official Gazette. 2 a law granting citizenship to a particular individual, like a relative of
President Marcos who was decreed instant naturalization. It surely There is much to be said of the view that the publication need not be
cannot be said that such a law does not affect the public although it made in the Official Gazette, considering its erratic releases and limited
unquestionably does not apply directly to all the people. The subject of readership. Undoubtedly, newspapers of general circulation could
such law is a matter of public interest which any member of the body better perform the function of communicating, the laws to the people as
politic may question in the political forums or, if he is a proper party, such periodicals are more easily available, have a wider readership, and
even in the courts of justice. In fact, a law without any bearing on the come out regularly. The trouble, though, is that this kind of publication
public would be invalid as an intrusion of privacy or as class legislation is not the one required or authorized by existing law. As far as we know,
or as an ultra vires act of the legislature. To be valid, the law must no amendment has been made of Article 2 of the Civil Code. The
invariably affect the public interest even if it might be directly applicable Solicitor General has not pointed to such a law, and we have no
only to one individual, or some of the people only, and t to the public as information that it exists. If it does, it obviously has not yet been
a whole. published.

We hold therefore that all statutes, including those of local application At any rate, this Court is not called upon to rule upon the wisdom of a
and private laws, shall be published as a condition for their effectivity, law or to repeal or modify it if we find it impractical. That is not our
which shall begin fifteen days after publication unless a different function. That function belongs to the legislature. Our task is merely to
effectivity date is fixed by the legislature. interpret and apply the law as conceived and approved by the political
departments of the government in accordance with the prescribed
procedure. Consequently, we have no choice but to pronounce that
Covered by this rule are presidential decrees and executive orders
under Article 2 of the Civil Code, the publication of laws must be made
promulgated by the President in the exercise of legislative powers
in the Official Gazett and not elsewhere, as a requirement for their
whenever the same are validly delegated by the legislature or, at
effectivity after fifteen days from such publication or after a different
present, directly conferred by the Constitution. administrative rules and
regulations must a also be published if their purpose is to enforce or period provided by the legislature.
implement existing law pursuant also to a valid delegation.
We also hold that the publication must be made forthwith or at least as
soon as possible, to give effect to the law pursuant to the said Article 2.
Interpretative regulations and those merely internal in nature, that is,
There is that possibility, of course, although not suggested by the parties
regulating only the personnel of the administrative agency and not the
public, need not be published. Neither is publication required of the so- that a law could be rendered unenforceable by a mere refusal of the
executive, for whatever reason, to cause its publication as required. This
called letters of instructions issued by administrative superiors
is a matter, however, that we do not need to examine at this time.
concerning the rules or guidelines to be followed by their subordinates
in the performance of their duties.
Finally, the claim of the former Solicitor General that the instant motion
Accordingly, even the charter of a city must be published is a request for an advisory opinion is untenable, to say the least, and
notwithstanding that it applies to only a portion of the national territory deserves no further comment.
and directly affects only the inhabitants of that place. All presidential
decrees must be published, including even, say, those naming a public The days of the secret laws and the unpublished decrees are over. This
place after a favored individual or exempting him from certain is once again an open society, with all the acts of the government subject
prohibitions or requirements. The circulars issued by the Monetary to public scrutiny and available always to public cognizance. This has to
Board must be published if they are meant not merely to interpret but be so if our country is to remain democratic, with sovereignty residing
to "fill in the details" of the Central Bank Act which that body is in the people and all government authority emanating from them.
supposed to enforce.
Although they have delegated the power of legislation, they retain the
However, no publication is required of the instructions issued by, say, authority to review the work of their delegates and to ratify or reject it
the Minister of Social Welfare on the case studies to be made in petitions according to their lights, through their freedom of expression and their
for adoption or the rules laid down by the head of a government agency right of suffrage. This they cannot do if the acts of the legislature are
on the assignments or workload of his personnel or the wearing of office concealed.
uniforms. Parenthetically, municipal ordinances are not covered by this
rule but by the Local Government Code.
Laws must come out in the open in the clear light of the sun instead of
skulking in the shadows with their dark, deep secrets. Mysterious
We agree that publication must be in full or it is no publication at all pronouncements and rumored rules cannot be recognized as binding
since its purpose is to inform the public of the contents of the laws. As unless their existence and contents are confirmed by a valid publication
correctly pointed out by the petitioners, the mere mention of the number intended to make full disclosure and give proper notice to the people.
of the presidential decree, the title of such decree, its whereabouts (e.g., The furtive law is like a scabbarded saber that cannot feint parry or cut
"with Secretary Tuvera"), the supposed date of effectivity, and in a mere unless the naked blade is drawn.
supplement of the Official Gazette cannot satisfy the publication
requirement. This is not even substantial compliance. This was the WHEREFORE, it is hereby declared that all laws as above defined shall
manner, incidentally, in which the General Appropriations Act for FY
immediately upon their approval, or as soon thereafter as possible, be
1975, a presidential decree undeniably of general applicability and
published in full in the Official Gazette, to become effective only after
interest, was "published" by the Marcos administration. 7 The evident
fifteen days from their publication, or on another date specified by the
purpose was to withhold rather than disclose information on this vital
legislature, in accordance with Article 2 of the Civil Code.
law.

SO ORDERED.
Coming now to the original decision, it is true that only four justices
were categorically for publication in the Official Gazette 8 and that six
others felt that publication could be made elsewhere as long as the
people were sufficiently informed. 9 One reserved his vote 10 and another
merely acknowledged the need for due publication without indicating
where it should be made. 11 It is therefore necessary for the present
membership of this Court to arrive at a clear consensus on this matter
and to lay down a binding decision supported by the necessary vote.
EXECUTIVE ORDER NO. 200 June 18, 1987 D.) Classification of Constitutions

E.) Basic Principles of Constitutional Interpretation


PROVIDING FOR THE PUBLICATION OF LAWS EITHER IN THE
OFFICIAL GAZETTE OR IN A NEWSPAPER OF GENERAL
CIRCULATION IN THE PHILIPPINES AS A REQUIREMENT FOR G.R. No. 122156 February 3, 1997
THEIR EFFECTIVITY
MANILA PRINCE HOTEL petitioner,
WHEREAS, Article 2 of the Civil Code partly provides that "laws shall vs.
take effect after fifteen days following the completion of their GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA
publication in the Official Gazette, unless it is otherwise provided . . .;" HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and
OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.
WHEREAS, the requirement that for laws to be effective only a
publication thereof in the Official Gazette will suffice has entailed some
problems, a point recognized by the Supreme Court in Tañada. et al. vs. BELLOSILLO, J.:
Tuvera, et al. (G.R. No. 63915, December 29, 1986) when it observed that
"[t]here is much to be said of the view that the publication need not be The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the
made in the Official Gazette, considering its erratic release and limited grant of rights, privileges, and concessions covering the national economy and
readership"; patrimony, the State shall give preference to qualified Filipinos,1 is in oked by
petitioner in its bid to acquire 51% of the shares of the Manila Hotel
WHEREAS, it was likewise observed that "[u]ndoubtedly, newspapers Corporation (MHC) which owns the historic Manila Hotel. Opposing,
of general circulation could better perform the function of respondents maintain that the provision is not self-executing but
communicating the laws to the people as such periodicals are more requires an implementing legislation for its enforcement. Corollarily,
easily available, have a wider readership, and come out regularly"; and they ask whether the 51% shares form part of the national economy and
patrimony covered by the protective mantle of the Constitution.
WHEREAS, in view of the foregoing premises Article 2 of the Civil Code
should accordingly be amended so the laws to be effective must be The controversy arose when respondent Government Service Insurance
published either in the Official Gazette or in a newspaper of general System (GSIS), pursuant to the privatization program of the Philippine
circulation in the country; Government under Proclamation No. 50 dated 8 December 1986,
decided to sell through public bidding 30% to 51% of the issued and
outstanding shares of respondent MHC. The winning bidder, or the
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the
eventual "strategic partner," is to provide management expertise and/or an
Philippines, by virtue of the powers vested in me by the Constitution,
international marketing/reservation system, and financial support to
do hereby order:
strengthen the profitability and performance of the Manila Hotel.2 In a close
bidding held on 18 September 1995 only two (2) bidders participated:
Sec. 1. Laws shall take effect after fifteen days following the completion petitioner Manila Prince Hotel Corporation, a Filipino corporation,
of their publication either in the Official Gazette or in a newspaper of which offered to buy 51% of the MHC or 15,300,000 shares at P41.58 per
general circulation in the Philippines, unless it is otherwise provided. share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton as its
hotel operator, which bid for the same number of shares at P44.00 per
Sec. 2. Article 2 of Republic Act No. 386, otherwise known as the "Civil share, or P2.42 more than the bid of petitioner.
Code of the Philippines," and all other laws inconsistent with this
Executive Order are hereby repealed or modified accordingly. Pertinent provisions of the bidding rules prepared by respondent GSIS
state —
Sec. 3. This Executive Order shall take effect immediately after its
publication in the Official Gazette. I. EXECUTION OF THE
NECESSARY CONTRACTS
Done in the City of Manila, this 18th day of June, in the year of Our Lord, WITH GSIS/MHC —
nineteen hundred and eighty-seven.
1. The Highest Bidder must comply with the
conditions set forth below by October 23, 1995
(reset to November 3, 1995) or the Highest Bidder
will lose the right to purchase the Block of Shares
and GSIS will instead offer the Block of Shares to
the other Qualified Bidders:

a. The Highest Bidder must


negotiate and execute with the
GSIS/MHC the Management
Contract, International
Marketing/Reservation
System Contract or other type
of contract specified by the
Highest Bidder in its strategic
plan for the Manila Hotel. . . .

b. The Highest Bidder must


execute the Stock Purchase
and Sale Agreement with GSIS
....
K. DECLARATION OF THE Respondents except. They maintain that: First, Sec. 10, second par., Art.
WINNING XII, of the 1987 Constitution is merely a statement of principle and
BIDDER/STRATEGIC policy since it is not a self-executing provision and requires implementing
PARTNER — legislation(s) . . . Thus, for the said provision to Operate, there must be existing
laws "to lay down conditions under which business may be done."9
The Highest Bidder will be declared the Winning
Bidder/Strategic Partner after the following Second, granting that this provision is self-executing, Manila Hotel does
conditions are met: not fall under the term national patrimony which only refers to lands of
the public domain, waters, minerals, coal, petroleum and other mineral
oils, all forces of potential energy, fisheries, forests or timber, wildlife,
a. Execution of the necessary
flora and fauna and all marine wealth in its territorial sea, and exclusive
contracts with GSIS/MHC not
marine zone as cited in the first and second paragraphs of Sec. 2, Art.
later than October 23, 1995
XII, 1987 Constitution. According to respondents, while petitioner
(reset to November 3, 1995);
speaks of the guests who have slept in the hotel and the events that have
and
transpired therein which make the hotel historic, these alone do not
make the hotel fall under the patrimony of the nation. What is more, the
b. Requisite approvals from mandate of the Constitution is addressed to the State, not to respondent
the GSIS/MHC and COP GSIS which possesses a personality of its own separate and distinct from
(Committee on the Philippines as a State.
Privatization)/OGCC (Office
of the Government Corporate
Third, granting that the Manila Hotel forms part of the national
Counsel) are obtained.3
patrimony, the constitutional provision invoked is still inapplicable since
what is being sold is only 51% of the outstanding shares of the
Pending the declaration of Renong Berhad as the winning corporation, not the hotel building nor the land upon which the building
bidder/strategic partner and the execution of the necessary contracts, stands. Certainly, 51% of the equity of the MHC cannot be considered
petitioner in a letter to respondent GSIS dated 28 September 1995 part of the national patrimony. Moreover, if the disposition of the shares
matched the bid price of P44.00 per share tendered by Renong of the MHC is really contrary to the Constitution, petitioner should have
Berhad.4 In a subsequent letter dated 10 October 1995 petitioner sent a questioned it right from the beginning and not after it had lost in the
manager's check issued by Philtrust Bank for Thirty-three Million Pesos bidding.
(P33.000.000.00) as Bid Security to match the bid of the Malaysian Group,
Messrs. Renong Berhad . . .5 which respondent GSIS refused to accept.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding
rules which provides that if for any reason, the Highest Bidder cannot be
On 17 October 1995, perhaps apprehensive that respondent GSIS has awarded the Block of Shares, GSIS may offer this to the other Qualified Bidders
disregarded the tender of the matching bid and that the sale of 51% of that have validly submitted bids provided that these Qualified Bidders are
the MHC may be hastened by respondent GSIS and consummated with willing to match the highest bid in terms of price per share, is misplaced.
Renong Berhad, petitioner came to this Court on prohibition Respondents postulate that the privilege of submitting a matching bid
and mandamus. On 18 October 1995 the Court issued a temporary has not yet arisen since it only takes place if for any reason, the Highest
restraining order enjoining respondents from perfecting and Bidder cannot be awarded the Block of Shares. Thus the submission by
consummating the sale to the Malaysian firm. petitioner of a matching bid is premature since Renong Berhad could
still very well be awarded the block of shares and the condition giving
On 10 September 1996 the instant case was accepted by the Court En rise to the exercise of the privilege to submit a matching bid had not yet
Banc after it was referred to it by the First Division. The case was then taken place.
set for oral arguments with former Chief Justice Enrique M. Fernando
and Fr. Joaquin G. Bernas, S.J., as amici curiae. Finally, the prayer for prohibition grounded on grave abuse of discretion
should fail since respondent GSIS did not exercise its discretion in a
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 capricious, whimsical manner, and if ever it did abuse its discretion it
Constitution and submits that the Manila Hotel has been identified with was not so patent and gross as to amount to an evasion of a positive
the Filipino nation and has practically become a historical monument which duty or a virtual refusal to perform a duty enjoined by law. Similarly,
reflects the vibrancy of Philippine heritage and culture. It is a proud legacy of the petition for mandamus should fail as petitioner has no clear legal right
an earlier generation of Filipinos who believed in the nobility and sacredness of to what it demands and respondents do not have an imperative duty to
independence and its power and capacity to release the full potential of the perform the act required of them by petitioner.
Filipino people. To all intents and purposes, it has become a part of the national
patrimony.6 Petitioner also argues that since 51% of the shares of the We now resolve. A constitution is a system of fundamental laws for the
MHC carries with it the ownership of the business of the hotel which is governance and administration of a nation. It is supreme, imperious,
owned by respondent GSIS, a government-owned and controlled absolute and unalterable except by the authority from which it
corporation, the hotel business of respondent GSIS being a part of the emanates. It has been defined as the fundamental and paramount law of the
tourism industry is unquestionably a part of the national economy. nation. 10 It prescribes the permanent framework of a system of
Thus, any transaction involving 51% of the shares of stock of the MHC government, assigns to the different departments their respective
is clearly covered by the term national economy, to which Sec. 10, second powers and duties, and establishes certain fixed principles on which
par., Art. XII, 1987 Constitution, applies.7 government is founded. The fundamental conception in other words is
that it is a supreme law to which all other laws must conform and in
It is also the thesis of petitioner that since Manila Hotel is part of the accordance with which all private rights must be determined and all
national patrimony and its business also unquestionably part of the public authority administered. 11 Under the doctrine of constitutional
national economy petitioner should be preferred after it has matched the supremacy, if a law or contract violates any norm of the constitution that
bid offer of the Malaysian firm. For the bidding rules mandate that if for law or contract whether promulgated by the legislative or by the
any reason, the Highest Bidder cannot be awarded the Block of Shares, GSIS executive branch or entered into by private persons for private purposes
may offer this to the other Qualified Bidders that have validly submitted bids is null and void and without any force and effect. Thus, since the
provided that these Qualified Bidders are willing to match the highest bid in Constitution is the fundamental, paramount and supreme law of the nation, it
terms of price per share.8 is deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and other financial structures, et cetera (emphasis supplied
principles. Their provisions command the legislature to enact laws and by respondents)
carry out the purposes of the framers who merely establish an outline of
government providing for the different departments of the MR. RODRIGO. It is just a matter of style.
governmental machinery and securing certain fundamental and
inalienable rights of citizens. 12 A provision which lays down a general
principle, such as those found in Art. II of the 1987 Constitution, is MR. NOLLEDO Yes, 16
usually not self-executing. But a provision which is complete in itself
and becomes operative without the aid of supplementary or enabling Quite apparently, Sec. 10, second par., of Art XII is couched in such a
legislation, or that which supplies sufficient rule by means of which the way as not to make it appear that it is non-self-executing but simply for
right it grants may be enjoyed or protected, is self-executing. Thus a purposes of style. But, certainly, the legislature is not precluded from
constitutional provision is self-executing if the nature and extent of the enacting other further laws to enforce the constitutional provision so
right conferred and the liability imposed are fixed by the constitution long as the contemplated statute squares with the Constitution. Minor
itself, so that they can be determined by an examination and details may be left to the legislature without impairing the self-executing
construction of its terms, and there is no language indicating that the nature of constitutional provisions.
subject is referred to the legislature for action. 13

In self-executing constitutional provisions, the legislature may still enact


As against constitutions of the past, modern constitutions have been legislation to facilitate the exercise of powers directly granted by the
generally drafted upon a different principle and have often become in constitution, further the operation of such a provision, prescribe a
effect extensive codes of laws intended to operate directly upon the practice to be used for its enforcement, provide a convenient remedy for
people in a manner similar to that of statutory enactments, and the the protection of the rights secured or the determination thereof, or place
function of constitutional conventions has evolved into one more like reasonable safeguards around the exercise of the right. The mere fact
that of a legislative body. Hence, unless it is expressly provided that a that legislation may supplement and add to or prescribe a penalty for
legislative act is necessary to enforce a constitutional mandate, the the violation of a self-executing constitutional provision does not render
presumption now is that all provisions of the constitution are self- such a provision ineffective in the absence of such legislation. The
executing If the constitutional provisions are treated as requiring omission from a constitution of any express provision for a remedy for
legislation instead of self-executing, the legislature would have the enforcing a right or liability is not necessarily an indication that it was
power to ignore and practically nullify the mandate of the fundamental not intended to be self-executing. The rule is that a self-executing
law.14 This can be cataclysmic. That is why the prevailing view is, as it provision of the constitution does not necessarily exhaust legislative
has always been, that — power on the subject, but any legislation must be in harmony with the
constitution, further the exercise of constitutional right and make it
. . . in case of doubt, the Constitution should be more available. 17 Subsequent legislation however does not necessarily
considered self-executing rather than non-self- mean that the subject constitutional provision is not, by itself, fully
executing . . . . Unless the contrary is clearly enforceable.
intended, the provisions of the Constitution should
be considered self-executing, as a contrary rule Respondents also argue that the non-self-executing nature of Sec. 10,
would give the legislature discretion to determine second par., of Art. XII is implied from the tenor of the first and third
when, or whether, they shall be effective. These paragraphs of the same section which undoubtedly are not self-
provisions would be subordinated to the will of the executing. 18 The argument is flawed. If the first and third paragraphs
lawmaking body, which could make them entirely are not self-executing because Congress is still to enact measures to
meaningless by simply refusing to pass the needed encourage the formation and operation of enterprises fully owned by
implementing statute. 15 Filipinos, as in the first paragraph, and the State still needs legislation to
regulate and exercise authority over foreign investments within its
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 national jurisdiction, as in the third paragraph, then a fortiori, by the
Constitution is clearly not self-executing, as they quote from discussions same logic, the second paragraph can only be self-executing as it does
on the floor of the 1986 Constitutional Commission — not by its language require any legislation in order to give preference to
qualified Filipinos in the grant of rights, privileges and concessions
covering the national economy and patrimony. A constitutional
MR. RODRIGO. Madam President, I am asking this
provision may be self-executing in one part and non-self-executing in
question as the Chairman of the Committee on
another. 19
Style. If the wording of "PREFERENCE" is given to
QUALIFIED FILIPINOS," can it be understood as a
preference to qualified Filipinos vis-a-vis Filipinos Even the cases cited by respondents holding that certain constitutional
who are not qualified. So, why do we not make it provisions are merely statements of principles and policies, which are
clear? To qualified Filipinos as against aliens? basically not self-executing and only placed in the Constitution as moral
incentives to legislation, not as judicially enforceable rights — are
simply not in point. Basco v. Philippine Amusements and Gaming
THE PRESIDENT. What is the question of Corporation 20 speaks of constitutional provisions on personal
Commissioner Rodrigo? Is it to remove the word
dignity, 21 the sanctity of family life, 22 the vital role of the youth in
"QUALIFIED?".
nation-building 23 the promotion of social justice, 24 and the values of
education. 25 Tolentino v. Secretary of Finance 26 refers to the constitutional
MR. RODRIGO. No, no, but say definitely "TO provisions on social justice and human rights 27 and on
QUALIFIED FILIPINOS" as against whom? As education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on the
against aliens or over aliens? promotion of general welfare, 30 the sanctity of family life, 31 the vital role
of the youth in nation-building 32 and the promotion of total human
liberation and development. 33A reading of these provisions indeed
MR. NOLLEDO. Madam President, I think that is
clearly shows that they are not judicially enforceable constitutional
understood. We use the word "QUALIFIED"
rights but merely guidelines for legislation. The very terms of the
because the existing laws or prospective laws will
always lay down conditions under which business may provisions manifest that they are only principles upon which the
be done. For example, qualifications on the setting up of legislations must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 respondents' claim that the Filipino First Policy provision is not
Constitution is a mandatory, positive command which is complete in applicable since what is being sold is only 51% of the outstanding shares of
itself and which needs no further guidelines or implementing laws or the corporation, not the Hotel building nor the land upon which the building
rules for its enforcement. From its very words the provision does not stands. 38
require any legislation to put it in operation. It is per se judicially
enforceable When our Constitution mandates that [i]n the grant of rights, The argument is pure sophistry. The term qualified Filipinos as used in
privileges, and concessions covering national economy and patrimony, the Our Constitution also includes corporations at least 60% of which is
State shall give preference to qualified Filipinos, it means just that —
owned by Filipinos. This is very clear from the proceedings of the 1986
qualified Filipinos shall be preferred. And when our Constitution
Constitutional Commission
declares that a right exists in certain specified circumstances an action
may be maintained to enforce such right notwithstanding the absence of
any legislation on the subject; consequently, if there is no statute THE PRESIDENT. Commissioner Davide is
especially enacted to enforce such constitutional right, such right recognized.
enforces itself by its own inherent potency and puissance, and from
which all legislations must take their bearings. Where there is a right MR. DAVIDE. I would like to introduce an
there is a remedy. Ubi jus ibi remedium. amendment to the Nolledo amendment. And the
amendment would consist in substituting the words
As regards our national patrimony, a member of the 1986 Constitutional "QUALIFIED FILIPINOS" with the following:
Commission 34 explains — "CITIZENS OF THE PHILIPPINES OR
CORPORATIONS OR ASSOCIATIONS WHOSE
CAPITAL OR CONTROLLING STOCK IS WHOLLY
The patrimony of the Nation that should be
OWNED BY SUCH CITIZENS.
conserved and developed refers not only to out rich
natural resources but also to the cultural heritage of
out race. It also refers to our intelligence in arts, xxx xxx xxx
sciences and letters. Therefore, we should develop
not only our lands, forests, mines and other natural MR. MONSOD. Madam President, apparently the
resources but also the mental ability or faculty of proponent is agreeable, but we have to raise a
our people. question. Suppose it is a corporation that is 80-percent
Filipino, do we not give it preference?
We agree. In its plain and ordinary meaning, the term patrimony
pertains to heritage. 35 When the Constitution speaks of national MR. DAVIDE. The Nolledo amendment would refer
patrimony, it refers not only to the natural resources of the Philippines, to an individual Filipino. What about a corporation
as the Constitution could have very well used the term natural resources, wholly owned by Filipino citizens?
but also to the cultural heritage of the Filipinos.

MR. MONSOD. At least 60 percent, Madam


Manila Hotel has become a landmark — a living testimonial of President.
Philippine heritage. While it was restrictively an American hotel when
it first opened in 1912, it immediately evolved to be truly Filipino,
Formerly a concourse for the elite, it has since then become the venue of MR. DAVIDE. Is that the intention?
various significant events which have shaped Philippine history. It was
called the Cultural Center of the 1930's. It was the site of the festivities MR. MONSOD. Yes, because, in fact, we would be
during the inauguration of the Philippine Commonwealth. Dubbed as limiting it if we say that the preference should only be
the Official Guest House of the Philippine Government. it plays host to 100-percent Filipino.
dignitaries and official visitors who are accorded the traditional
Philippine hospitality. 36
MR: DAVIDE. I want to get that meaning clear
because "QUALIFIED FILIPINOS" may refer only to
The history of the hotel has been chronicled in the book The Manila individuals and not to juridical personalities or
Hotel: The Heart and Memory of a City. 37During World War II the hotel entities.
was converted by the Japanese Military Administration into a military
headquarters. When the American forces returned to recapture Manila
MR. MONSOD. We agree, Madam President. 39
the hotel was selected by the Japanese together with Intramuros as the
two (2) places fro their final stand. Thereafter, in the 1950's and 1960's,
the hotel became the center of political activities, playing host to almost xxx xxx xxx
every political convention. In 1970 the hotel reopened after a renovation
and reaped numerous international recognitions, an acknowledgment MR. RODRIGO. Before we vote, may I request that
of the Filipino talent and ingenuity. In 1986 the hotel was the site of a the amendment be read again.
failed coup d' etat where an aspirant for vice-president was "proclaimed"
President of the Philippine Republic.
MR. NOLLEDO. The amendment will read: "IN THE
GRANT OF RIGHTS, PRIVILEGES AND
For more than eight (8) decades Manila Hotel has bore mute witness to CONCESSIONS COVERING THE NATIONAL
the triumphs and failures, loves and frustrations of the Filipinos; its ECONOMY AND PATRIMONY, THE STATE
existence is impressed with public interest; its own historicity associated SHALL GIVE PREFERENCE TO QUALIFIED
with our struggle for sovereignty, independence and nationhood. FILIPINOS." And the word "Filipinos" here, as
Verily, Manila Hotel has become part of our national economy and intended by the proponents, will include not only
patrimony. For sure, 51% of the equity of the MHC comes within the individual Filipinos but also Filipino-controlled
purview of the constitutional shelter for it comprises the majority and entities or entities fully-controlled by Filipinos. 40
controlling stock, so that anyone who acquires or owns the 51% will
have actual control and management of the hotel. In this instance, 51%
of the MHC cannot be disassociated from the hotel and the land on The phrase preference to qualified Filipinos was
which the hotel edifice stands. Consequently, we cannot sustain explained thus —
MR. FOZ. Madam President, I would like to request expertise in the hotel industry, or it has significant equity ownership in
Commissioner Nolledo to please restate his another hotel company, or it has an overall management and marketing
amendment so that I can ask a question. proficiency to successfully operate the Manila Hotel. 44

MR. NOLLEDO. "IN THE GRANT OF RIGHTS, The penchant to try to whittle away the mandate of the Constitution by
PRIVILEGES AND CONCESSIONS COVERING arguing that the subject provision is not self-executory and requires
THE NATIONAL ECONOMY AND PATRIMONY, implementing legislation is quite disturbing. The attempt to violate a
THE STATE SHALL GIVE PREFERENCE TO clear constitutional provision — by the government itself — is only too
QUALIFIED FILIPINOS." distressing. To adopt such a line of reasoning is to renounce the duty to
ensure faithfulness to the Constitution. For, even some of the provisions
of the Constitution which evidently need implementing legislation have
MR FOZ. In connection with that amendment, if a
juridical life of their own and can be the source of a judicial remedy. We
foreign enterprise is qualified and a Filipino
cannot simply afford the government a defense that arises out of the
enterprise is also qualified, will the Filipino enterprise
failure to enact further enabling, implementing or guiding legislation.
still be given a preference?
In fine, the discourse of Fr. Joaquin G. Bernas, S.J., on constitutional
government is apt —
MR. NOLLEDO. Obviously.
The executive department has a constitutional duty
MR. FOZ. If the foreigner is more qualified in some to implement laws, including the Constitution,
aspects than the Filipino enterprise, will the Filipino even before Congress acts — provided that there
still be preferred? are discoverable legal standards for executive
action. When the executive acts, it must be guided
MR. NOLLEDO. The answer is "yes." by its own understanding of the constitutional
command and of applicable laws. The
responsibility for reading and understanding the
MR. FOZ. Thank you, 41 Constitution and the laws is not the sole
prerogative of Congress. If it were, the executive
Expounding further on the Filipino First Policy provision Commissioner would have to ask Congress, or perhaps the Court,
Nolledo continues — for an interpretation every time the executive is
confronted by a constitutional command. That is
not how constitutional government operates. 45
MR. NOLLEDO. Yes, Madam President. Instead of
"MUST," it will be "SHALL — THE STATE SHALL
GlVE PREFERENCE TO QUALIFIED FILIPINOS. Respondents further argue that the constitutional provision is
This embodies the so-called "Filipino First" policy. addressed to the State, not to respondent GSIS which by itself possesses
That means that Filipinos should be given a separate and distinct personality. This argument again is at best
preference in the grant of concessions, privileges specious. It is undisputed that the sale of 51% of the MHC could only be
and rights covering the national patrimony. 42 carried out with the prior approval of the State acting through
respondent Committee on Privatization. As correctly pointed out by Fr.
Joaquin G. Bernas, S.J., this fact alone makes the sale of the assets of
The exchange of views in the sessions of the Constitutional Commission
respondents GSIS and MHC a "state action." In constitutional
regarding the subject provision was still further clarified by
jurisprudence, the acts of persons distinct from the government are
Commissioner Nolledo 43 —
considered "state action" covered by the Constitution (1) when the
activity it engages in is a "public function;" (2) when the government is
Paragraph 2 of Section 10 explicitly mandates the so significantly involved with the private actor as to make the
"Pro-Filipino" bias in all economic concerns. It is government responsible for his action; and, (3) when the government
better known as the FILIPINO FIRST Policy . . . This has approved or authorized the action. It is evident that the act of
provision was never found in previous respondent GSIS in selling 51% of its share in respondent MHC comes
Constitutions . . . . under the second and third categories of "state action." Without doubt
therefore the transaction. although entered into by respondent GSIS, is
The term "qualified Filipinos" simply means that in fact a transaction of the State and therefore subject to the
preference shall be given to those citizens who can constitutional command. 46
make a viable contribution to the common good,
because of credible competence and efficiency. It When the Constitution addresses the State it refers not only to the people
certainly does NOT mandate the pampering and but also to the government as elements of the State. After all,
preferential treatment to Filipino citizens or government is composed of three (3) divisions of power — legislative,
organizations that are incompetent or inefficient, executive and judicial. Accordingly, a constitutional mandate directed
since such an indiscriminate preference would be to the State is correspondingly directed to the three(3) branches of
counter productive and inimical to the common government. It is undeniable that in this case the subject constitutional
good. injunction is addressed among others to the Executive Department and
respondent GSIS, a government instrumentality deriving its authority
In the granting of economic rights, privileges, and from the State.
concessions, when a choice has to be made between
a "qualified foreigner" end a "qualified Filipino," the It should be stressed that while the Malaysian firm offered the higher
latter shall be chosen over the former." bid it is not yet the winning bidder. The bidding rules expressly provide
that the highest bidder shall only be declared the winning bidder after
Lastly, the word qualified is also determinable. Petitioner was so it has negotiated and executed the necessary contracts, and secured the
considered by respondent GSIS and selected as one of requisite approvals. Since the "Filipino First Policy provision of the
the qualified bidders. It was pre-qualified by respondent GSIS in Constitution bestows preference on qualified Filipinos the mere tending
accordance with its own guidelines so that the sole inference here is that of the highest bid is not an assurance that the highest bidder will be
petitioner has been found to be possessed of proven management declared the winning bidder. Resultantly, respondents are not bound to
make the award yet, nor are they under obligation to enter into one with forgetting that the Constitution lays down the basic conditions and
the highest bidder. For in choosing the awardee respondents are parameters for its actions.
mandated to abide by the dictates of the 1987 Constitution the
provisions of which are presumed to be known to all the bidders and Since petitioner has already matched the bid price tendered by Renong
other interested parties.
Berhad pursuant to the bidding rules, respondent GSIS is left with no
alternative but to award to petitioner the block of shares of MHC and to
Adhering to the doctrine of constitutional supremacy, the subject execute the necessary agreements and documents to effect the sale in
constitutional provision is, as it should be, impliedly written in the accordance not only with the bidding guidelines and procedures but
bidding rules issued by respondent GSIS, lest the bidding rules be with the Constitution as well. The refusal of respondent GSIS to execute
nullified for being violative of the Constitution. It is a basic principle in the corresponding documents with petitioner as provided in the
constitutional law that all laws and contracts must conform with the bidding rules after the latter has matched the bid of the Malaysian firm
fundamental law of the land. Those which violate the Constitution lose clearly constitutes grave abuse of discretion.
their reason for being.
The Filipino First Policy is a product of Philippine nationalism. It is
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the embodied in the 1987 Constitution not merely to be used as a guideline
Highest Bidder cannot be awarded the Block of Shares, GSIS may offer this to for future legislation but primarily to be enforced; so must it be enforced.
other Qualified Bidders that have validly submitted bids provided that these This Court as the ultimate guardian of the Constitution will never shun,
Qualified Bidders are willing to match the highest bid in terms of price per under any reasonable circumstance, the duty of upholding the majesty
share. 47 Certainly, the constitutional mandate itself is reason enough not of the Constitution which it is tasked to defend. It is worth emphasizing
to award the block of shares immediately to the foreign bidder that it is not the intention of this Court to impede and diminish, much
notwithstanding its submission of a higher, or even the highest, bid. In less undermine, the influx of foreign investments. Far from it, the Court
fact, we cannot conceive of a stronger reason than the constitutional encourages and welcomes more business opportunities but avowedly
injunction itself. sanctions the preference for Filipinos whenever such preference is
ordained by the Constitution. The position of the Court on this matter
In the instant case, where a foreign firm submits the highest bid in a could have not been more appropriately articulated by Chief Justice
public bidding concerning the grant of rights, privileges and Narvasa —
concessions covering the national economy and patrimony, thereby
exceeding the bid of a Filipino, there is no question that the Filipino will As scrupulously as it has tried to observe that it is
have to be allowed to match the bid of the foreign entity. And if the not its function to substitute its judgment for that of
Filipino matches the bid of a foreign firm the award should go to the the legislature or the executive about the wisdom
Filipino. It must be so if we are to give life and meaning to the Filipino and feasibility of legislation economic in nature, the
First Policy provision of the 1987 Constitution. For, while this may Supreme Court has not been spared criticism for
neither be expressly stated nor contemplated in the bidding rules, the decisions perceived as obstacles to economic
constitutional fiat is, omnipresent to be simply disregarded. To ignore it progress and development . . . in connection with a
would be to sanction a perilous skirting of the basic law. temporary injunction issued by the Court's First
Division against the sale of the Manila Hotel to a
This Court does not discount the apprehension that this policy may Malaysian Firm and its partner, certain statements
discourage foreign investors. But the Constitution and laws of the were published in a major daily to the effect that
Philippines are understood to be always open to public scrutiny. These injunction "again demonstrates that the Philippine
are given factors which investors must consider when venturing into legal system can be a major obstacle to doing
business in a foreign jurisdiction. Any person therefore desiring to do business here.
business in the Philippines or with any of its agencies or
instrumentalities is presumed to know his rights and obligations under Let it be stated for the record once again that while
the Constitution and the laws of the forum. it is no business of the Court to intervene in
contracts of the kind referred to or set itself up as
The argument of respondents that petitioner is now estopped from the judge of whether they are viable or attainable, it
questioning the sale to Renong Berhad since petitioner was well aware is its bounden duty to make sure that they do not
from the beginning that a foreigner could participate in the bidding is violate the Constitution or the laws, or are not
meritless. Undoubtedly, Filipinos and foreigners alike were invited to adopted or implemented with grave abuse of
the bidding. But foreigners may be awarded the sale only if no Filipino discretion amounting to lack or excess of
qualifies, or if the qualified Filipino fails to match the highest bid jurisdiction. It will never shirk that duty, no matter
tendered by the foreign entity. In the case before us, while petitioner was how buffeted by winds of unfair and ill-informed
already preferred at the inception of the bidding because of the criticism. 48
constitutional mandate, petitioner had not yet matched the bid offered
by Renong Berhad. Thus it did not have the right or personality then to Privatization of a business asset for purposes of enhancing its business
compel respondent GSIS to accept its earlier bid. Rightly, only after it viability and preventing further losses, regardless of the character of the
had matched the bid of the foreign firm and the apparent disregard by asset, should not take precedence over non-material values. A
respondent GSIS of petitioner's matching bid did the latter have a cause commercial, nay even a budgetary, objective should not be pursued at
of action. the expense of national pride and dignity. For the Constitution enshrines
higher and nobler non-material values. Indeed, the Court will always
Besides, there is no time frame for invoking the constitutional safeguard defer to the Constitution in the proper governance of a free society; after
unless perhaps the award has been finally made. To insist on selling the all, there is nothing so sacrosanct in any economic policy as to draw itself
Manila Hotel to foreigners when there is a Filipino group willing to beyond judicial review when the Constitution is involved. 49
match the bid of the foreign group is to insist that government be treated
as any other ordinary market player, and bound by its mistakes or gross Nationalism is inherent, in the very concept of the Philippines being a
errors of judgment, regardless of the consequences to the Filipino democratic and republican state, with sovereignty residing in the
people. The miscomprehension of the Constitution is regrettable. Thus Filipino people and from whom all government authority emanates. In
we would rather remedy the indiscretion while there is still an nationalism, the happiness and welfare of the people must be the goal.
opportunity to do so than let the government develop the habit of The nation-state can have no higher purpose. Any interpretation of any
constitutional provision must adhere to such basic concept. Protection G.R. No. 134015 July 19, 1999
of foreign investments, while laudible, is merely a policy. It cannot
override the demands of nationalism. 50 JUAN DOMINO, petitioner,
vs.
The Manila Hotel or, for that matter, 51% of the MHC, is not just any COMMISSION ON ELECTIONS, NARCISO Ra. GRAFILO, JR.,
commodity to be sold to the highest bidder solely for the sake of EDDY B. JAVA, JUAN P. BAYONITO, JR., ROSARIO SAMSON and
privatization. We are not talking about an ordinary piece of property in DIONISIO P. LIM, SR., respondent, LUCILLE CHIONGBIAN-
a commercial district. We are talking about a historic relic that has SOLON, intervenor.
hosted many of the most important events in the short history of the
Philippines as a nation. We are talking about a hotel where heads of
states would prefer to be housed as a strong manifestation of their desire
to cloak the dignity of the highest state function to their official visits to
the Philippines. Thus the Manila Hotel has played and continues to play DAVIDE, JR., CJ.:
a significant role as an authentic repository of twentieth century
Philippine history and culture. In this sense, it has become truly a Challenged in this case for certiorari with a prayer for preliminary
reflection of the Filipino soul — a place with a history of grandeur; a most injunction are the Resolution of 6 May 19981 of the Second Division of
historical setting that has played a part in the shaping of a country. 51 the Commission on Elections (hereafter COMELEC), declaring
petitioner Juan Domino (hereafter DOMINO) disqualified as candidate
This Court cannot extract rhyme nor reason from the determined efforts for representative of the Lone Legislative District of the Province of
of respondents to sell the historical landmark — this Grand Old Dame of Sarangani in the 11 May 1998 elections, and the Decision of 29 May
hotels in Asia — to a total stranger. For, indeed, the conveyance of this 19982 of the COMELEC en banc denying DOMINO's motion for
epic exponent of the Filipino psyche to alien hands cannot be less than reconsideration.
mephistophelian for it is, in whatever manner viewed, a veritable
alienation of a nation's soul for some pieces of foreign silver. And so we The antecedents are not disputed.1âwphi1.nêt
ask: What advantage, which cannot be equally drawn from a qualified
Filipino, can be gained by the Filipinos Manila Hotel — and all that it
On 25 March 1998, DOMINO filed his certificate of candidacy for the
stands for — is sold to a non-Filipino? How much of national pride will
position of Representative of the Lone Legislative District of the
vanish if the nation's cultural heritage is entrusted to a foreign entity?
Province of Sarangani indicating in item nine (9) of his certificate that he
On the other hand, how much dignity will be preserved and realized if
had resided in the constituency where he seeks to be elected for one (1)
the national patrimony is safekept in the hands of a qualified, zealous and
year and two (2) months immediately preceding the election.3
well-meaning Filipino? This is the plain and simple meaning of
the Filipino First Policy provision of the Philippine Constitution. And this
Court, heeding the clarion call of the Constitution and accepting the On 30 March 1998, private respondents Narciso Ra. Grafilo, Jr., Eddy B.
duty of being the elderly watchman of the nation, will continue to Java, Juan P. Bayonito, Jr., Rosario Samson and Dionisio P. Lim, Sr., fied
respect and protect the sanctity of the Constitution. with the COMELEC a Petition to Deny Due Course to or Cancel
Certificate of Candidacy, which was docketed as SPA No. 98-022 and
assigned to the Second Division of the COMELEC. Private respondents
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE
alleged that DOMINO, contrary to his declaration in the certificate of
SYSTEM, MANILA HOTEL CORPORATION, COMMITTEE ON
candidacy, is not a resident, much less a registered voter, of the province
PRIVATIZATION and OFFICE OF THE GOVERNMENT CORPORATE
of Sarangani where he seeks election. To substantiate their allegations,
COUNSEL are directed to CEASE and DESIST from selling 51% of the
private respondents presented the following evidence:
shares of the Manila Hotel Corporation to RENONG BERHAD, and to
ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL
CORPORATION to purchase the subject 51% of the shares of the Manila 1. Annex "A" — the Certificate of Candidacy of
Hotel Corporation at P44.00 per share and thereafter to execute the respondent for the position of Congressman of the
necessary clearances and to do such other acts and deeds as may be Lone District of the Province of Sarangani filed with
necessary for purpose. the Office of the Provincial Election Supervisor of
Sarangani on March 25, 1998, where in item 4
thereof he wrote his date of birth as December 5,
SO ORDERED.
1953; in item 9, he claims he have resided in the
constituency where he seeks election for one (1)
year and two (2) months; and, in item 10, that he is
registered voter of Precinct No. 14A-1, Barangay
Poblacion, Alabel, Sarangani;

2. Annex "B" — Voter's Registration Record with


SN 31326504 dated June 22, 1997 indicating
respondent's registration at Precinct No. 4400-A,
Old Balara, Quezon City;

3. Annex "C" — Respondent's Community Tax


Certificate No. 11132214C dated January 15, 1997;

4. Annex "D" — Certified true copy of the letter of


Herson D. Dema-ala, Deputy Provincial &
Municipal Treasurer of Alabel, Sarangani, dated
February 26, 1998, addressed to Mr. Conrado G.
Butil, which reads:
In connection with your letter of even date, we are For his defense, DOMINO maintains that he had complied with the one-
furnishing you herewith certified xerox copy of the year residence requirement and that he has been residing in Sarangani
triplicate copy of COMMUNITY TAX since January 1997. In support of the said contention, DOMINO
CERTIFICATE NO. 11132214C in the name of Juan presented before the COMELEC the following exhibits, to wit:
Domino.
1. Annex "1" — Copy of the Contract of Lease between
Furthermore, Community Tax Certificate No. Nora Dacaldacal as Lessor and Administrator of the
11132212C of the same stub was issued to Carlito properties of deceased spouses Maximo and
Engcong on September 5, 1997, while Certificate Remedios Dacaldacal and respondent as Lessee
No. 11132213C was also issued to Mr. Juan Domino executed on January 15, 1997, subscribed and sworn
but was cancelled and serial no. 11132215C was to before Notary Public Johnny P. Landero;
issued in the name of Marianita Letigio on
September 8, 1997.
2. Annex "2" — Copy of the Extra-Judicial Settlement
of Estate with Absolute Deed of sale executed by and
5. Annex "E" — The triplicate copy of the between the heirs of deceased spouses Maximo and
Community Tax Certificate No. 11132214C in the Remedios Dacaldacal, namely: Maria Lourdes, Jupiter
name of Juan Domino dated September 5, 1997; and Beberlie and the respondent on November 4,
1997, subscribed and sworn to before Notary Public
Jose A. Alegario;
6. Annex "F" — Copy of the letter of Provincial
Treasurer Lourdes P. Riego dated March 2, 1998
addressed to Mr. Herson D. Dema-ala, Deputy 3. Annex "3" — True Carbon Xerox copy of the
Provincial Treasurer and Municipal Treasurer of Decision dated January 19, 1998, of the Metropolitan
Alabel, Sarangani, which states: Trial Court of Metro Manila, Branch 35, Quezon City,
in Election Case NO. 725 captioned as "In the Matter
of the Petition for the Exclusion from the List of voters
For easy reference, kindly turn-over to the
undersigned for safekeeping, the stub of of Precinct No. 4400-A Brgy. Old Balara, Quezon City,
Spouses Juan and Zorayda Domino, Petitioners, -
Community Tax Certificate containing Nos.
versus- Elmer M. Kayanan, Election Officer, Quezon
11132201C-11132250C issued to you on June 13,
City, District III, and the Board of Election Inspectors
1997 and paid under Official Receipt No. 7854744.
of Precinct No. 4400-A, Old Balara, Quezon City,
Respondents." The dispositive portion of which reads:
Upon request of Congressman James L.
Chiongbian.
1. Declaring the registration of petitioners as voters of
Precinct No. 4400-A, Barangay Old Balara, in District
7. Annex "G" — Certificate of Candidacy of III Quezon City as completely erroneous as
respondent for the position of Congressman in the petitioners were no longer residents of Quezon City
3rd District of Quezon City for the 1995 elections but of Alabel, Sarangani where they have been
filed with the Office of the Regional Election residing since December 1996;
Director, National Capital Region, on March 17,
1995, where, in item 4 thereof, he wrote his birth
2. Declaring this erroneous registration of petitioners
date as December 22, 1953; in item 8 thereof his
in Quezon City as done in good faith due to an honest
"residence in the constituency where I seek to be
mistake caused by circumstances beyond their control
elected immediately preceding the election" as 3
years and 5 months; and, in item 9, that he is a and without any fault of petitioners;
registered voter of Precinct No. 182, Barangay
Balara, Quezon City; 3. Approving the transfer of registration of voters of
petitioners from Precint No. 4400-A of Barangay Old
Balara, Quezon City to Precinct No. 14A1 of Barangay
8. Annex "H" — a copy of the APPLICATION
FOR TRANSFER OF REGISTRATION RECORDS Poblacion of Alabel, Sarangani; and
DUE TO CHANGE OF RESIDENCE of respondent
dated August 30, 1997 addressed to and received by 4. Ordering the respondents to immediately transfer
Election Officer Mantil Alim, Alabel, Sarangani, on and forward all the election/voter's registration
September 22, 1997, stating among others, that records of the petitioners in Quezon City to the
"[T]he undersigned's previous residence is at 24 Election Officer, the Election Registration Board and
Bonifacio Street, Ayala Heights, Quezon City, III other Comelec Offices of Alabel, Sarangani where the
District, Quezon City; wherein he is a registered petitioners are obviously qualified to excercise their
voter" and "that for business and residence respective rights of suffrage.
purposes, the undersigned has transferred and
conducts his business and reside at Barangay
4. Annex "4" — Copy of the Application for Transfer
Poblacion, Alabel, Province of Sarangani prior to
of Registration Records due to Change of Residence
this application;" addressed to Mantil Alim, COMELEC Registrar,
Alabel, Sarangani, dated August 30, 1997.
9. Annex "I" — Copy of the SWORN
APPLICATION FOR OF CANCELLATION OF
5. Annex "5" — Certified True Copy of the Notice of
THE VOTER'S [TRANSFER OF] PREVIOUS
Approval of Application, the roster of applications for
REGISTRATION of respondent subscribed and registration approved by the Election Registration
sworn to on 22 October 1997 before Election Officer Board on October 20, 1997, showing the spouses Juan
Mantil Allim at Alabel, Sarangani. 4
and Zorayda Bailon Domino listed as numbers 111
and 112 both under Precinct No. 14A1, the last two
names in the slate indicated as transferees without residence requirement and likewise ordered the cancellation of his
VRR numbers and their application dated August 30, certificate of candidacy, on the basis of the following findings:
1997 and September 30, 1997, respectively.
What militates against respondent's claim that he
6. Annex "6" — same as Annex "5" has met the residency requirement for the position
sought is his own Voter's Registration Record No.
31326504 dated June 22, 1997 [Annex "B", Petition]
7. Annex "6-a" — Copy of the Sworn Application for
and his address indicated as 24 Bonifacio St., Ayala
Cancellation of Voter's Previous Registration (Annex
"I", Petition); Heights, Old Balara, Quezon City. This evidence,
standing alone, negates all his protestations that he
established residence at Barangay Poblacion,
8. Annex "7" — Copy of claim card in the name of Alabel, Sarangani, as early as January 1997. It is
respondent showing his VRR No. 31326504 dated highly improbable, nay incredible, for respondent
October 20, 1997 as a registered voter of Precinct No. who previously ran for the same position in the 3rd
14A1, Barangay Poblacion, Alabel, Sarangani; Legislative District of Quezon City during the
elections of 1995 to unwittingly forget the residency
9. Annex "7-a" — Certification dated April 16, 1998, requirement for the office sought.
issued by Atty. Elmer M. Kayanan, Election Officer
IV, District III, Quezon City, which reads: Counting, therefore, from the day after June 22,
1997 when respondent registered at Precinct No.
This is to certify that the spouses JUAN and 4400-A, up to and until the day of the elections on
ZORAYDA DOMINO are no longer registered voters May 11, 1998, respondent clearly lacks the one (1)
of District III, Quezon City. Their registration records year residency requirement provided for
(VRR) were transferred and are now in the possession candidates for Member of the House of
of the Election Officer of Alabel, Sarangani. Representatives under Section 6, Article VI of the
Constitution.

This certification is being issued upon the request of


Mr. JUAN DOMINO. All told, petitioner's evidence conspire to attest to
respondent's lack of residence in the constituency
where he seeks election and while it may be
10. Annex "8" — Affidavit of Nora Dacaldacal and conceded that he is a registered voter as
Maria Lourdes Dacaldacal stating the circumstances contemplated under Section 12 of R.A. 8189, he
and incidents detailing their alleged acquaintance lacks the qualification to run for the position of
with respondent. Congressman for the Lone District of the Province
of Sarangani.6
11. Annexes "8-a", "8-b", "8-c" and "8-d" — Copies of
the uniform affidavits of witness Myrna Dalaguit, On 11 May 1998, the day of the election, the COMELEC issued
Hilario Fuentes, Coraminda Lomibao and Elena V. Supplemental Omnibus Resolution No. 3046, ordering that the votes
Piodos subscribed and sworn to before Notary Public cast for DOMINO be counted but to suspend the proclamation if
Bonifacio F. Doria, Jr., on April 18, 1998, embodying winning, considering that the Resolution disqualifying him as candidate
their alleged personal knowledge of respondent's had not yet become final and executory.7
residency in Alabel, Sarangani;

The result of the election, per Statement of Votes certified by the


12. Annex "8-e" — A certification dated April 20, 1998, Chairman of the Provincial Board of Canvassers,8shows that DOMINO
subscribed and sworn to before Notary Public garnered the highest number of votes over his opponents for the
Bonifacio, containing a listing of the names of fifty- position of Congressman of the Province of Sarangani.
five (55) residents of Alabel, Sarangani, declaring and
certifying under oath that they personally know the
respondent as a permanent resident of Alabel, On 15 May 1998, DOMINO filed a motion for reconsideration of the
Sarangani since January 1997 up to present; Resolution dated 6 May 1998, which was denied by the COMELEC en
banc in its decision dated 29 May 1998. Hence, the present Petition
for Certiorari with prayer for Preliminary Mandatory Injunction
13. Annexes "9", "9-a" and "9-b" — Copies of alleging, in the main, that the COMELEC committed grave abuse of
Individual Income Tax Return for the year 1997, BIR discretion amounting to excess or lack of jurisdiction when it ruled that
form 2316 and W-2, respectively, of respondent; and, he did not meet the one-year residence requirement.

14. Annex "10" — The affidavit of respondent reciting On 14 July 1998, acting on DOMINO's Motion for Issuance of Temporary
the chronology of events and circumstances leading Restraining Order, the Court directed the parties to maintain the status
to his relocation to the Municipality of Alabel, quo prevailing at the time of the filing of the instant petition.9
Sarangani, appending Annexes "A", "B", "C", "D", "D-
1", "E", "F", "G" with sub-markings "G-1" and "G-2"
and "H" his CTC No. 111`32214C dated September 5, On 15 September 1998, Lucille L. Chiongbian-Solon, (hereafter
1997, which are the same as Annexes "1", "2", "4", "5", INTERVENOR), the candidate receiving the second highest number of
"6-a", "3", "7", "9" with sub-markings "9-a" and "9-b" votes, was allowed by the Court to Intervene.10 INTERVENOR in her
except Annex "H".5 Motion for Leave to Intervene and in her Comment in Intervention 11 is
asking the Court to uphold the disqualification of petitioner Juan
Domino and to proclaim her as the duly elected representative of
On 6 May 1998, the COMELEC 2nd Division promulgated a resolution Sarangani in the 11 May 1998 elections.
declaring DOMINO disqualified as candidate for the position of
representative of the lone district of Sarangani for lack of the one-year
Before us DOMINO raised the following issues for resolution, to wit:
a. Whether or not the judgment of the Metropolitan Trial Court of on the allegation that she is a Filipino citizen
Quezon City declaring petitioner as resident of Sarangani and not qualified to vote, her alleged Filipino citizenship
of Quezon City is final, conclusive and binding upon the whole would still have been left open to question.
world, including the Commission on Elections.
Moreover, the Metropolitan Trial Court of Quezon City in its 18 January
b. Whether or not petitioner herein has resided in the subject decision exceeded its jurisdiction when it declared DOMINO a resident
congressional district for at least one (1) year immediately of the Province of Sarangani, approved and ordered the transfer of his
preceding the May 11, 1998 elections; and voter's registration from Precinct No. 4400-A of Barangay Old Balara,
Quezon City to precinct 14A1 of Barangay Poblacion, Alabel, Sarangani.
It is not within the competence of the trial court, in an exclusion
c. Whether or not respondent COMELEC has jurisdiction over the
proceedings, to declare the challenged voter a resident of another
petition a quo for the disqualification of petitioner.12
municipality. The jurisdiction of the lower court over exclusion cases is
limited only to determining the right of voter to remain in the list of
The first issue. voters or to declare that the challenged voter is not qualified to vote in
the precint in which he is registered, specifying the ground of the voter's
The contention of DOMINO that the decision of the Metropolitan Trial disqualification. The trial court has no power to order the change or
Court of Quezon City in the exclusion proceedings declaring him a transfer of registration from one place of residence to another for it is the
resident of the Province of Sarangani and not of Quezon City is final and function of the election Registration Board as provided under Section 12
conclusive upon the COMELEC cannot be sustained. of R.A. No. 8189. 17 The only effect of the decision of the lower court
excluding the challenged voter from the list of voters, is for the Election
Registration Board, upon receipt of the final decision, to remove the
The COMELEC has jurisdiction as provided in Sec. 78, Art. IX of the voter's registration record from the corresponding book of voters, enter
Omnibus Election Code, over a petition to deny due course to or cancel the order of exclusion therein, and thereafter place the record in the
certificate of candidacy. In the exercise of the said jurisdiction, it is inactive file.18
within the competence of the COMELEC to determine whether false
representation as to material facts was made in the certificate of
candidacy, that will include, among others, the residence of the Finally, the application of the rule on res judicata is unavailing. Identity
candidate. of parties, subject matter and cause of action are indispensable
requirements for the application of said doctrine. Neither herein Private
Respondents nor INTERVENOR, is a party in the exclusion
The determination of the Metropolitan Trial Court of Quezon City in the proceedings. The Petition for Exclusion was filed by DOMINDO himself
exclusion proceedings as to the right of DOMINO to be included or and his wife, praying that he and his wife be excluded from the Voter's
excluded from the list of voters in the precinct within its territorial List on the ground of erroneous registration while the Petition to Deny
jurisdicton, does not preclude the COMELEC, in the determination of Due Course to or Cancel Certificate of Candidacy was filed by private
DOMINO's qualification as a candidate, to pass upon the issue of respondents against DOMINO for alleged false representation in his
compliance with the residency requirement. certificate of candidacy. For the decision to be a basis for the dismissal
by reason of res judicata, it is essential that there must be between the
The proceedings for the exclusion or inclusion of voters in the list of first and the second action identity of parties, identity of subject matter
voters are summary in character. Thus, the factual findings of the trial and identity of causes of action.19 In the present case, the aforesaid
court and its resultant conclusions in the exclusion proceedings on essential requisites are not present. In the case of Nuval v. Guray, et
matters other than the right to vote in the precinct within its territorial al., 20 the Supreme Court in resolving a similar issue ruled that:
jurisdiction are not conclusive upon the COMELEC. Although the court
in inclusion or exclusion proceedings may pass upon any question The question to be solved under the first
necessary to decide the issue raised including the questions of assignment of error is whether or not the judgment
citizenship and residence of the challenged voter, the authority to order rendered in the case of the petition for the exclusion
the inclusion in or exclusion from the list of voters necessarily caries of Norberto Guray's name from the election list of
with it the power to inquire into and settle all matters essential to the Luna, is res judicata, so as to prevent the institution
exercise of said authority. However, except for the right to remain in the and prosecution of an action in quo warranto, which
list of voters or for being excluded therefrom for the particular election is now before us.
in relation to which the proceedings had been held, a decision in an
exclusion or inclusion proceeding, even if final and unappealable, does
not acquire the nature of res judicata.13 In this sense, it does not operate The procedure prescribed by section 437 of the
as a bar to any future action that a party may take concerning the subject Administrative Code, as amended by Act No. 3387,
passed upon in the proceeding.14Thus, a decision in an exclusion is of a summary character and the judgment
proceeding would neither be conclusive on the voter's political status, rendered therein is not appealable except when the
nor bar subsequent proceedings on his right to be registered as a voter petition is tried before the justice of the peace of the
in any other election.15 capital or the circuit judge, in which case it may be
appealed to the judge of first instance, with whom
said two lower judges have concurrent jurisdiction.
Thus, in Tan Cohon v. Election Registrar16 we ruled that:

The petition for exclusion was presented by


. . . It is made clear that even as it is here held that Gregorio Nuval in his dual capacity as qualified
the order of the City Court in question has become voter of the municipality of Luna, and as a duly
final, the same does not constitute res adjudicata as registered candidate for the office of president of
to any of the matters therein contained. It is said municipality, against Norberto Guray as a
ridiculous to suppose that such an important and registered voter in the election list of said
intricate matter of citizenship may be passed upon municipality. The present proceeding
and determined with finality in such a summary of quo warranto was interposed by Gregorio Nuval
and peremptory proceeding as that of inclusion and in his capacity as a registered candidate voted for
exclusion of persons in the registry list of voters. the office of municipal president of Luna, against
Even if the City Court had granted appellant's Norberto Guray, as an elected candidate for the
petition for inclusion in the permanent list of voters same office. Therefore, there is no identity of parties
in the two cases, since it is not enough that there be effect a change of domicile one must demonstrate an actual removal or
an identity of persons, but there must be an identity an actual change of domicile; a bona fide intention of abandoning the
of capacities in which said persons litigate. (Art. former place of residence and establishing a new one and definite acts
1259 of the Civil Code; Bowler vs. Estate of Alvarez, which correspond with the
23 Phil., 561; 34 Corpus Juris, p. 756, par. 1165) purpose. 26 In other words, there must basically
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
In said case of the petition for the exclusion, the
time; the change of residence must be voluntary; and the residence at
object of the litigation, or the litigious matter was
the place chosen for the new domicile must be actual.27
the exclusion of Norberto Guray as a voter from the
election list of the municipality of Luna, while in
the present que warranto proceeding, the object of It is the contention of petitioner that his actual physical presence in
the litigation, or the litigious matter is his exclusion Alabel, Sarangani since December 1996 was sufficiently established by
or expulsion from the office to which he has been the lease of a house and lot located therein in January 1997 and by the
elected. Neither does there exist, then, any identity affidavits and certifications under oath of the residents of that place that
in the object of the litigation, or the litigious matter. they have seen petitioner and his family residing in their locality.

In said case of the petition for exclusion, the cause While this may be so, actual and physical is not in itself sufficient to
of action was that Norberto Guray had not the six show that from said date he had transferred his residence in that place.
months' legal residence in the municipality of Luna To establish a new domicile of choice, personal presence in the place
to be a qualified voter thereof, while in the present must be coupled with conduct indicative of that intention. While
proceeding of quo warranto, the cause of action is "residence" simply requires bodily presence in a given place, "domicile"
that Norberto Guray has not the one year's legal requires not only such bodily presence in that place but also a declared
residence required for eligibility to the office of and probable intent to make it one's fixed and permanent place of abode,
municipal president of Luna. Neither does there one's home.28
exist therefore, identity of causes of action.
As a general rule, the principal elements of domicile, physical presence
In order that res judicata may exist the following are in the locality involved and intention to adopt it as a domicile, must
necessary: (a) identity of parties; (b) identity of concur in order to establish a new domicile. No change of domicile will
things; and (c) identity of issues (Aquino v. Director result if either of these elements is absent. Intention to acquire a domicile
of Lands, 39 Phil. 850). And as in the case of the without actual residence in the locality does not result in acquisition of
petition for excluision and in the domicile, nor does the fact of physical presence without intention.29
present quo warranto proceeding, as there is no
identity of parties, or of things or litigious matter, The lease contract entered into sometime in January 1997, does not
or of issues or causes of action, there is no res
adequately support a change of domicile. The lease contract may be
judicata.
indicative of DOMINO's intention to reside in Sarangani but it does not
engender the kind of permanency required to prove abandonment of
The Second Issue. one's original domicile. The mere absence of individual from his
permanent residence, no matter how long, without the intention to
abandon it does not result in loss or change of
Was DOMINO a resident of the Province of Sarangani for at least one
domicile. 30 Thus the date of the contract of lease of a house and lot
year immediately preceding the 11 May 1998 election as stated in his
located in the province of Sarangani, i.e., 15 January 1997, cannot be
certificate of candidacy?
used, in the absence of other circumstances, as the reckoning period of
the one-year residence requirement.
We hold in the negative.
Further, Domino's lack of intention to abandon his residence in Quezon
It is doctrinally settled that the term "residence," as used in the law City is further strengthened by his act of registering as voter in one of
prescribing the qualifications for suffrage and for elective office, means the precincts in Quezon City. While voting is not conclusive of
the same thing as "domicile," which imports not only an intention to residence, it does give rise to a strong presumption of residence
reside in a fixed place but also personal presence in that place, coupled especially in this case where DOMINO registered in his former
with conduct indicative of such intention.21 "Domicile" denotes a fixed barangay. Exercising the right of election franchise is a deliberate public
permanent residence to which, whenever absent for business, pleasure, assertion of the fact of residence, and is said to have decided
or some other reasons, one intends to return.22 "Domicile" is a question preponderance in a doubtful case upon the place the elector claims as,
of intention and circumstances. In the consideration of circumstances, or believes to be, his residence.31The fact that a party continously voted
three rules must be borne in mind, namely: (1) that a man must have a in a particular locality is a strong factor in assisting to determine the
residence or domicile somewhere; (2) when once established it remains status of his domicile.32
until a new one is acquired; and (3) a man can have but one residence or
domicile at a time.23
His claim that his registration in Quezon City was erroneous and was
caused by events over which he had no control cannot be sustained. The
Records show that petitioner's domicile of origin was Candon, Ilocos general registration of voters for purposes of the May 1998 elections was
Sur 24 and that sometime in 1991, he acquired a new domicile of choice scheduled for two (2) consecutive weekends, viz.: June 14, 15, 21, and
at 24 Bonifacio St. Ayala Heights, Old Balara, Quezon City, as shown by 22.33
his certificate of candidacy for the position of representative of the 3rd
District of Quezon City in the May 1995 election. Petitioner is now
While, Domino's intention to establish residence in Sarangani can be
claiming that he had effectively abandoned his "residence" in Quezon
gleaned from the fact that be bought the house he was renting on
City and has established a new "domicile" of choice at the Province of
November 4, 1997, that he sought cancellation of his previous
Sarangani.
registration in Qezon City on 22 October 1997,34 and that he applied for
transfer of registration from Quezon City to Sarangani by reason of
A person's "domicile" once established is considered to continue and change of residence on 30 August 1997,35 DOMINO still falls short of the
will not be deemed lost until a new one is established. 25 To successfully one year residency requirement under the Constitution.
In showing compliance with the residency requirement, both intent and received the other votes would be to substitute our judgment for the
actual presence in the district one intends to represent must satisfy the mind of the voters. He could not be considered the first among qualified
length of time prescribed by the fundamental law.36 Domino's failure to candidates because in a field which excludes the qualified candidate, the
do so rendered him ineligible and his election to office null and void.37 conditions would have substantially changed.46

The Third Issue. Sound policy dictates that public elective offices are filled by those who
have received the highest number of votes cast in the election for that
office, and it is fundamental idea in all republican forms of government
DOMINO's contention that the COMELEC has no jurisdiction in the
present petition is bereft of merit. that no one can be declared elected and no measure can be declared
carried unless he or it receives a majority or plurality of the legal votes
cast in the election.47
As previously mentioned, the COMELEC, under Sec. 78, Art. IX of the
Omnibus Election Code, has jurisdiction over a petition to deny due
The effect of a decision declaring a person ineligible to hold an office is
course to or cancel certificate of candidacy. Such jurisdiction continues
even after election, if for any reason no final judgment of disqualification only that the election fails entirely, that the wreath of victory cannot be
transferred48 from the disqualified winner to the repudiated loser
is rendered before the election, and the candidate facing disqualification
because the law then as now only authorizes a declaration of election in
is voted for and receives the highest number of votes38 and provided
favor of the person who has obtained a plurality of votes49 and does not
further that the winning candidate has not been proclaimed or has taken
entitle the candidate receiving the next highest number of votes to be
his oath of office.39
declared elected. In such case, the electors have failed to make a choice
and the election is a nullity.50 To allow the defeated and repudiated
It has been repeatedly held in a number of cases, that the House of candidate to take over the elective position despite his rejection by the
Representatives Electoral Tribunal's sole and exclusive jurisdiction over electorate is to disenfranchise the electorate without any fault on their
all contests relating to the election, returns and qualifications of part and to undermine the importance and meaning of democracy and
members of Congress as provided under Section 17 of Article VI of the the people's right to elect officials of their choice.51
Constitution begins only after a candidate has become a member of the
House of Representatives. 40
INTERVENOR's plea that the votes cast in favor of DOMINO be
considered stray votes cannot be sustained. INTERVENOR's reliance on
The fact of obtaining the highest number of votes in an election does not the opinion made in the Labo, Jr. case52 to wit: if the electorate, fully
automatically vest the position in the winning candidate.41 A candidate aware in fact and in law of a candidate's disqualification so as to bring
must be proclaimed and must have taken his oath of office before he can such awareness within the realm of notoriety, would nevertheless cast
be considered a member of the House of Representatives. their votes in favor of the ineligible candidate, the electorate may be said
to have waived the validity and efficacy of their votes by notoriously
In the instant case, DOMINO was not proclaimed as Congressman-elect misapplying their franchise or throwing away their votes, in which case,
of the Lone Congressional District of the Province of Sarangani by the eligible candidate obtaining the next higher number of votes may be
reason of a Supplemental Omnibus Resolution issued by the COMELEC deemed elected, is misplaced.
on the day of the election ordering the suspension of DOMINO's
proclamation should he obtain the winning number of votes. This Contrary to the claim of INTERVENOR, petitioner was not notoriously
resolution was issued by the COMELEC in view of the non-finality of its known by the public as an ineligible candidate. Although the resolution
6 May 1998 resolution disqualifying DOMINO as candidate for the declaring him ineligible as candidate was rendered before the election,
position. however, the same is not yet final and executory. In fact, it was no less
than the COMELEC in its Supplemental Omnibus Resolution No. 3046
Cosidering that DOMINO has not been proclaimed as Congressman- that allowed DOMINO to be voted for the office and ordered that the
elect in the Lone Congressional District of the Province of Sarangani he votes cast for him be counted as the Resolution declaring him ineligible
cannot be deemed a member of the House of Representatives. Hence, it has not yet attained finality. Thus the votes cast for DOMINO are
is the COMELEC and not the Electoral Tribunal which has jurisdiction presumed to have been cast in the sincere belief that he was a qualified
over the issue of his ineligibility as a candidate.42 candidate, without any intention to misapply their franchise. Thus, said
votes can not be treated as stray, void, or meaningless.53

Issue raised by INTERVENOR.


WHEREFORE, the instant petition is DISMISSED. The resolution dated
6 May 1998 of the COMELEC 2nd Division and the decision dated 29
After finding that DOMINO is disqualified as candidate for the position May 1998 of the COMELEC En Banc, are hereby AFFIRMED.1âwphi1.nêt
of representative of the province of Sarangani, may INTERVENOR, as
the candidate who received the next highest number of votes, be
proclaimed as the winning candidate? SO ORDERED.

It is now settled doctrine that the candidate who obtains the second
highest number of votes may not be proclaimed winner in case the
winning candidate is disqualified.43 In every election, the people's choice
is the paramount consideration and their expressed will must, at all
times, be given effect. When the majority speaks and elects into office a
candidate by giving the highest number of votes cast in the election for
that office, no one can be declared elected in his place.44

It would be extremely repugnant to the basic concept of the


constitutionally guaranteed right to suffrage if a candidate who has not
acquired the majority or plurality of votes is proclaimed a winner and
imposed as the representative of a constituency, the majority of which
have positively declared through their ballots that they do not choose
him.45 To simplistically assume that the second placer would have
G.R. No. 161872 April 13, 2004

REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,


vs.
COMMISSION ON ELECTIONS, respondent.

RESOLUTION

TINGA, J.:

Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for
President on December 17, 2003. Respondent Commission on Elections
(COMELEC) refused to give due course to petitioner’s Certificate of
Candidacy in its Resolution No. 6558 dated January 17, 2004. The decision,
however, was not unanimous since Commissioners Luzviminda G.
Tancangco and Mehol K. Sadain voted to include petitioner as they
believed he had parties or movements to back up his candidacy.

On January 15, 2004, petitioner moved for reconsideration of Resolution


No. 6558. Petitioner’s Motion for Reconsideration was docketed as SPP
(MP) No. 04-001. The COMELEC, acting on petitioner’s Motion for
Reconsideration and on similar motions filed by other aspirants for
national elective positions, denied the same under the aegis of Omnibus
Resolution No. 6604 dated February 11, 2004. The COMELEC declared
petitioner and thirty-five (35) others nuisance candidates who could not
wage a nationwide campaign and/or are not nominated by a political
party or are not supported by a registered political party with a national
constituency. Commissioner Sadain maintained his vote for petitioner.
By then, Commissioner Tancangco had retired.

In this Petition For Writ of Certiorari, petitioner seeks to reverse the


resolutions which were allegedly rendered in violation of his right to
"equal access to opportunities for public service" under Section 26,
Article II of the 1987

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


those who can afford to wage a nationwide campaign and/or are
nominated by political parties. In so doing, petitioner argues that the
COMELEC indirectly amended the constitutional provisions on the
electoral process and limited the power of the sovereign people to
choose their leaders. The COMELEC supposedly erred in disqualifying
him since he is the most qualified among all the presidential
candidates, i.e., he possesses all the constitutional and legal
qualifications for the office of the president, he is capable of waging a
national campaign since he has numerous national organizations under
his leadership, he also has the capacity to wage an international
campaign since he has practiced law in other countries, and he has a
platform of government. Petitioner likewise attacks the validity of the
form for the Certificate of Candidacy prepared by the COMELEC.
Petitioner claims that the form does not provide clear and reasonable
guidelines for determining the qualifications of candidates since it does
not ask for the candidate’s bio-data and his program of government.

First, the constitutional and legal dimensions involved.

Implicit in the petitioner’s invocation of the constitutional provision


ensuring "equal access to opportunities for public office" is the claim that
there is a constitutional right to run for or hold public office and,
particularly in his case, to seek the presidency. There is none. What is
recognized is merely a privilege subject to limitations imposed by law.
Section 26, Article II of the Constitution neither bestows such a right nor
elevates the privilege to the level of an enforceable right. There is
nothing in the plain language of the provision which suggests such a
thrust or justifies an interpretation of the sort.

The "equal access" provision is a subsumed part of Article II of the


Constitution, entitled "Declaration of Principles and State Policies." The
provisions under the Article are generally considered not self-
executing,2 and there is no plausible reason for according a different Clearly, therefore, petitioner’s reliance on the equal access clause in
treatment to the "equal access" provision. Like the rest of the policies Section 26, Article II of the Constitution is misplaced.
enumerated in Article II, the provision does not contain any judicially
enforceable constitutional right but merely specifies a guideline for The rationale behind the prohibition against nuisance candidates and
legislative or executive action.3 The disregard of the provision does not
the disqualification of candidates who have not evinced a bona fide
give rise to any cause of action before the courts.4
intention to run for office is easy to divine. The State has a compelling
interest to ensure that its electoral exercises are rational, objective, and
An inquiry into the intent of the framers5 produces the same orderly. Towards this end, the State takes into account the practical
determination that the provision is not self-executory. The original considerations in conducting elections. Inevitably, the greater the
wording of the present Section 26, Article II had read, "The State shall number of candidates, the greater the opportunities for logistical
broaden opportunities to public office and prohibit public confusion, not to mention the increased allocation of time and resources
dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr. in preparation for the election. These practical difficulties should, of
successfully brought forth an amendment that changed the word course, never exempt the State from the conduct of a mandated electoral
"broaden" to the phrase "ensure equal access," and the substitution of exercise. At the same time, remedial actions should be available to
the word "office" to "service." He explained his proposal in this wise: alleviate these logistical hardships, whenever necessary and proper.
Ultimately, a disorderly election is not merely a textbook example of
inefficiency, but a rot that erodes faith in our democratic institutions. As
I changed the word "broaden" to "ENSURE EQUAL ACCESS
the United States Supreme Court held:
TO" because what is important would be equal access to the
opportunity. If you broaden, it would necessarily mean that
the government would be mandated to create as many [T]here is surely an important state interest in requiring some
offices as are possible to accommodate as many people as preliminary showing of a significant modicum of support
are also possible. That is the meaning of broadening before printing the name of a political organization and its
opportunities to public service. So, in order that we should candidates on the ballot – the interest, if no other, in avoiding
not mandate the State to make the government the number confusion, deception and even frustration of the democratic
one employer and to limit offices only to what may be [process].11
necessary and expedient yet offering equal opportunities to
access to it, I change the word "broaden."7 (emphasis
The COMELEC itself recognized these practical considerations when it
supplied)
promulgated Resolution No. 6558 on 17 January 2004, adopting the study
Memorandum of its Law Department dated 11 January 2004. As
Obviously, the provision is not intended to compel the State to enact observed in the COMELEC’s Comment:
positive measures that would accommodate as many people as possible
into public office. The approval of the "Davide amendment" indicates
There is a need to limit the number of candidates especially in
the design of the framers to cast the provision as simply enunciatory of
the case of candidates for national positions because the
a desired policy objective and not reflective of the imposition of a clear
election process becomes a mockery even if those who cannot
State burden.
clearly wage a national campaign are allowed to run. Their
names would have to be printed in the Certified List of
Moreover, the provision as written leaves much to be desired if it is to Candidates, Voters Information Sheet and the Official Ballots.
be regarded as the source of positive rights. It is difficult to interpret the These would entail additional costs to the government. For
clause as operative in the absence of legislation since its effective means the official ballots in automated counting and canvassing of
and reach are not properly defined. Broadly written, the myriad of votes, an additional page would amount to more or less
claims that can be subsumed under this rubric appear to be entirely FOUR HUNDRED FIFTY MILLION PESOS (₱450,000,000.00).
open-ended.8 Words and phrases such as "equal access,"
"opportunities," and "public service" are susceptible to countless
xxx[I]t serves no practical purpose to allow those candidates
interpretations owing to their inherent impreciseness. Certainly, it was
to continue if they cannot wage a decent campaign enough to
not the intention of the framers to inflict on the people an operative but
project the prospect of winning, no matter how slim.12
amorphous foundation from which innately unenforceable rights may
be sourced.
The preparation of ballots is but one aspect that would be affected by
allowance of "nuisance candidates" to run in the elections. Our election
As earlier noted, the privilege of equal access to opportunities to public
laws provide various entitlements for candidates for public office, such
office may be subjected to limitations. Some valid limitations specifically
as watchers in every polling place,13 watchers in the board of
on the privilege to seek elective office are found in the provisions9 of the
canvassers,14 or even the receipt of electoral contributions.15Moreover,
Omnibus Election Code on "Nuisance Candidates" and COMELEC
there are election rules and regulations the formulations of which are
Resolution No. 645210 dated December 10, 2002 outlining the instances
dependent on the number of candidates in a given election.
wherein the COMELEC may motu proprio refuse to give due course to or
cancel a Certificate of Candidacy.
Given these considerations, the ignominious nature of a nuisance
candidacy becomes even more galling. The organization of an election
As long as the limitations apply to everybody equally without
with bona fide candidates standing is onerous enough. To add into the
discrimination, however, the equal access clause is not violated.
mix candidates with no serious intentions or capabilities to run a viable
Equality is not sacrificed as long as the burdens engendered by the
campaign would actually impair the electoral process. This is not to
limitations are meant to be borne by any one who is minded to file a
mention the candidacies which are palpably ridiculous so as to
certificate of candidacy. In the case at bar, there is no showing that any
constitute a one-note joke. The poll body would be bogged by irrelevant
person is exempt from the limitations or the burdens which they create.
minutiae covering every step of the electoral process, most probably
posed at the instance of these nuisance candidates. It would be a
Significantly, petitioner does not challenge the constitutionality or senseless sacrifice on the part of the State.
validity of Section 69 of the Omnibus Election Code and COMELEC
Resolution No. 6452 dated 10 December 2003. Thus, their presumed
Owing to the superior interest in ensuring a credible and orderly
validity stands and has to be accorded due weight.
election, the State could exclude nuisance candidates and need not
indulge in, as the song goes, "their trips to the moon on gossamer
wings."
The Omnibus Election Code and COMELEC Resolution No. 6452 are G.R. No. 196271 February 28, 2012
cognizant of the compelling State interest to ensure orderly and credible
elections by excising impediments thereto, such as nuisance candidacies DATU MICHAEL ABAS KIDA, in his personal capacity, and in
that distract and detract from the larger purpose. The COMELEC is representation of MAGUINDANAO FEDERATION OF
mandated by the Constitution with the administration of elections16 and AUTONOMOUS IRRIGATORS ASSOCIATION, INC., HADJI
endowed with considerable latitude in adopting means and methods MUHMINA J. USMAN, JOHN ANTHONY L. LIM, JAMILON T.
that will ensure the promotion of free, orderly and honest ODIN, ASRIN TIMBOL JAIYARI, MUJIB M. KALANG, ALIH AL-
elections.17 Moreover, the Constitution guarantees that only bona SAIDI J. SAPI-E, KESSAR DAMSIE ABDIL, and BASSAM ALUH
fide candidates for public office shall be free from any form of SAUPI, Petitioners,
harassment and discrimination.18 The determination of bona vs.
fidecandidates is governed by the statutes, and the concept, to our mind SENATE OF THE PHILIPPINES, represented by its President JUAN
is, satisfactorily defined in the Omnibus Election Code. PONCE ENRILE, HOUSE OF REPRESENTATIVES, thru SPEAKER
FELICIANO BELMONTE, COMMISSION ON ELECTIONS, thru its
Now, the needed factual premises. Chairman, SIXTO BRILLANTES, JR., PAQUITO OCHOA, JR., Office
of the President Executive Secretary, FLORENCIO ABAD, JR.,
Secretary of Budget, and ROBERTO TAN, Treasurer of the
However valid the law and the COMELEC issuance involved are, their Philippines,Respondents.
proper application in the case of the petitioner cannot be tested and
reviewed by this Court on the basis of what is now before it. The assailed
resolutions of the COMELEC do not direct the Court to the evidence x-----------------------x
which it considered in determining that petitioner was a nuisance
candidate. This precludes the Court from reviewing at this instance G.R. No. 196305
whether the COMELEC committed grave abuse of discretion in
disqualifying petitioner, since such a review would necessarily take into BASARI D. MAPUPUNO, Petitioner,
account the matters which the COMELEC considered in arriving at its vs.
decisions. SIXTO BRILLANTES, in his capacity as Chairman of the Commission
on Elections, FLORENCIO ABAD, JR. in his capacity as Secretary of
Petitioner has submitted to this Court mere photocopies of various the Department of Budget and Management, PAQUITO OCHOA, JR.,
documents purportedly evincing his credentials as an eligible candidate in his capacity as Executive Secretary, JUAN PONCE ENRILE, in his
for the presidency. Yet this Court, not being a trier of facts, can not capacity as Senate President, and FELICIANO BELMONTE, in his
properly pass upon the reproductions as evidence at this level. Neither capacity as Speaker of the House of Representatives, Respondents.
the COMELEC nor the Solicitor General appended any document to
their respective Comments. x-----------------------x

The question of whether a candidate is a nuisance candidate or not is G.R. No. 197221
both legal and factual. The basis of the factual determination is not
before this Court. Thus, the remand of this case for the reception of
further evidence is in order. REP. EDCEL C. LAGMAN, Petitioner,
vs.
PAQUITO N. OCHOA, JR., in his capacity as the Executive Secretary,
A word of caution is in order. What is at stake is petitioner’s aspiration and the COMMISSION ON ELECTIONS,Respondents.
and offer to serve in the government. It deserves not a cursory treatment
but a hearing which conforms to the requirements of due process.
x-----------------------x

As to petitioner’s attacks on the validity of the form for the certificate of


G.R. No. 197280
candidacy, suffice it to say that the form strictly complies with Section
74 of the Omnibus Election Code. This provision specifically enumerates
what a certificate of candidacy should contain, with the required ALMARIM CENTI TILLAH, DATU CASAN CONDING CANA, and
information tending to show that the candidate possesses the minimum PARTIDO DEMOKRATIKO PILIPINO LAKAS NG BAYAN (PDP-
qualifications for the position aspired for as established by the LABAN), Petitioners,
Constitution and other election laws. vs.
THE COMMISSION ON ELECTIONS, through its Chairman, SIXTO
BRILLANTES, JR., HON. PAQUITO N. OCHOA, JR., in his capacity
IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-
as Executive Secretary, HON. FLORENCIO B. ABAD, JR., in his
001 is hereby remanded to the COMELEC for the reception of further
capacity as Secretary of the Department of Budget and Management,
evidence, to determine the question on whether petitioner Elly Velez and HON. ROBERTO B. TAN, in his capacity as Treasurer of the
Lao Pamatong is a nuisance candidate as contemplated in Section 69 of Philippines, Respondents.
the Omnibus Election Code.

x-----------------------x
The COMELEC is directed to hold and complete the reception of
evidence and report its findings to this Court with deliberate dispatch.
G.R. No. 197282

SO ORDERED.
ATTY. ROMULO B. MACALINTAL, Petitioner,
vs.
COMMISSION ON ELECTIONS and THE OFFICE OF THE
PRESIDENT, through EXECUTIVE SECRETARY PAQUITO N.
OCHOA, JR., Respondents.

x-----------------------x
G.R. No. 197392 IV. SECTION 3, ARTICLE XVII OF R.A. 9054 DOES NOT
VIOLATE SECTION 18, ARTICLE X OF THE
LOUIS "BAROK" C. BIRAOGO, Petitioner, CONSTITUTION.
vs.
THE COMMISSION ON ELECTIONS and EXECUTIVE V. BALANCE OF INTERESTS TILT IN FAVOR OF THE
SECRETARY PAQUITO N. OCHOA, JR., Respondents. DEMOCRATIC PRINCIPLE[.]1

x-----------------------x The petitioner in G.R. No. 197221 raises similar grounds, arguing that:

G.R. No. 197454 I. THE ELECTIVE REGIONAL EXECUTIVE AND


LEGISLATIVE OFFICIALS OF ARMM CANNOT BE
JACINTO V. PARAS, Petitioner, CONSIDERED AS OR EQUATED WITH THE
vs. TRADITIONAL LOCAL GOVERNMENT OFFICIALS IN
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., and THE THE LOCAL GOVERNMENT UNITS (LGUs) BECAUSE (A)
COMMISSION ON ELECTIONS, Respondents. THERE IS NO EXPLICIT CONSTITUTIONAL PROVISION
ON SUCH PARITY; AND (B) THE ARMM IS MORE
SUPERIOR THAN LGUs IN STRUCTURE, POWERS AND
MINORITY RIGHTS FORUM, PHILIPPINES, INC., Respondents- AUTONOMY, AND CONSEQUENTLY IS A CLASS OF ITS
Intervenor. OWN APART FROM TRADITIONAL LGUs.

RESOLUTION II. THE UNMISTAKABLE AND UNEQUIVOCAL


CONSTITUTIONAL MANDATE FOR AN ELECTIVE AND
BRION, J.: REPRESENTATIVE EXECUTIVE DEPARTMENT AND
LEGISLATIVE ASSEMBLY IN ARMM INDUBITABLY
PRECLUDES THE APPOINTMENT BY THE PRESIDENT OF
We resolve: (a) the motion for reconsideration filed by petitioners Datu
OFFICERS-IN-CHARGE (OICs), ALBEIT MOMENTARY OR
Michael Abas Kida, et al. in G.R. No. 196271; (b) the motion for
TEMPORARY, FOR THE POSITIONS OF ARMM
reconsideration filed by petitioner Rep. Edcel Lagman in G.R. No.
GOVERNOR, VICE GOVERNOR AND MEMBERS OF THE
197221; (c) the ex abundante ad cautelam motion for reconsideration
REGIONAL ASSEMBLY.
filed by petitioner Basari Mapupuno in G.R. No. 196305; (d) the motion
for reconsideration filed by petitioner Atty. Romulo Macalintal in G.R.
No. 197282; (e) the motion for reconsideration filed by petitioners III. THE PRESIDENT’S APPOINTING POWER IS LIMITED
Almarim Centi Tillah, Datu Casan Conding Cana and Partido TO APPOINTIVE OFFICIALS AND DOES NOT EXTEND TO
Demokratiko Pilipino Lakas ng Bayan in G.R. No. 197280; (f) the ELECTIVE OFFICIALS EVEN AS THE PRESIDENT IS ONLY
manifestation and motion filed by petitioners Almarim Centi Tillah, et VESTED WITH SUPERVISORY POWERS OVER THE
al. in G.R. No. 197280; and (g) the very urgent motion to issue ARMM, THEREBY NEGATING THE AWESOME POWER
clarificatory resolution that the temporary restraining order (TRO) is TO APPOINT AND REMOVE OICs OCCUPYING
still existing and effective. ELECTIVE POSITIONS.

These motions assail our Decision dated October 18, 2011, where we IV. THE CONSTITUTION DOES NOT PROSCRIBE THE
upheld the constitutionality of Republic Act (RA) No. 10153. Pursuant HOLDOVER OF ARMM ELECTED OFFICIALS PENDING
to the constitutional mandate of synchronization, RA No. 10153 THE ELECTION AND QUALIFICATION OF THEIR
postponed the regional elections in the Autonomous Region in Muslim SUCCESSORS.
Mindanao (ARMM) (which were scheduled to be held on the second
Monday of August 2011) to the second Monday of May 2013 and V. THE RULING IN OSMENA DOES NOT APPLY TO
recognized the President’s power to appoint officers-in-charge (OICs) to ARMM ELECTED OFFICIALS WHOSE TERMS OF OFFICE
temporarily assume these positions upon the expiration of the terms of ARE NOT PROVIDED FOR BY THE CONSTITUTION BUT
the elected officials. PRESCRIBED BY THE ORGANIC ACTS.

The Motions for Reconsideration VI. THE REQUIREMENT OF A SUPERMAJORITY OF ¾


VOTES IN THE HOUSE OF REPRESENTATIVES AND THE
The petitioners in G.R. No. 196271 raise the following grounds in SENATE FOR THE VALIDITY OF A SUBSTANTIVE
support of their motion: AMENDMENT OR REVISION OF THE ORGANIC ACTS
DOES NOT IMPOSE AN IRREPEALABLE LAW.
I. THE HONORABLE COURT ERRED IN CONCLUDING
THAT THE ARMM ELECTIONS ARE LOCAL ELECTIONS, VII. THE REQUIREMENT OF A PLEBISCITE FOR THE
CONSIDERING THAT THE CONSTITUTION GIVES THE EFFECTIVITY OF A SUBSTANTIVE AMENDMENT OR
ARMM A SPECIAL STATUS AND IS SEPARATE AND REVISION OF THE ORGANIC ACTS DOES NOT UNDULY
DISTINCT FROM ORDINARY LOCAL GOVERNMENT EXPAND THE PLEBISCITE REQUIREMENT OF THE
UNITS. CONSTITUTION.

II. R.A. 10153 AND R.A. 9333 AMEND THE ORGANIC ACT. VIII. SYNCHRONIZATION OF THE ARMM ELECTION
WITH THE NATIONAL AND LOCAL ELECTIONS IS NOT
MANDATED BY THE CONSTITUTION.
III. THE SUPERMAJORITY PROVISIONS OF THE
ORGANIC ACT (R.A. 9054) ARE NOT IRREPEALABLE
LAWS. IX. THE COMELEC HAS THE AUTHORITY TO HOLD AND
CONDUCT SPECIAL ELECTIONS IN ARMM, AND THE
ENACTMENT OF AN IMPROVIDENT AND
UNCONSTITUTIONAL STATUTE IS AN ANALOGOUS TO A PLEBISCITE IN THE ARMM FOR APPROVAL BY ITS
CAUSE WARRANTING COMELEC’S HOLDING OF PEOPLE, WHICH PLEBISCITE REQUIREMENT CANNOT
SPECIAL ELECTIONS.2 (italics supplied) BE CIRCUMVENTED BY SIMPLY CHARACTERIZING THE
PROVISIONS OF R.A. NO. 10153 ON APPOINTMENT OF
OICs AS AN "INTERIM MEASURE".
The petitioner in G.R. No. 196305 further asserts that:

B.
I. BEFORE THE COURT MAY CONSTRUE OR INTERPRET
A STATUTE, IT IS A CONDITION SINE QUA NON THAT
THERE BE DOUBT OR AMBIGUITY IN ITS LANGUAGE. THE HONORABLE COURT ERRED IN RULING THAT THE
APPOINTMENT BY THE PRESIDENT OF OICs FOR THE
ARMM REGIONAL GOVERNMENT IS NOT VIOLATIVE
THE TRANSITORY PROVISIONS HOWEVER ARE CLEAR
OF THE CONSTITUTION.
AND UNAMBIGUOUS: THEY REFER TO THE 1992
ELECTIONS AND TURN-OVER OF ELECTIVE OFFICIALS.
C.
IN THUS RECOGNIZING A SUPPOSED "INTENT" OF THE
FRAMERS, AND APPLYING THE SAME TO ELECTIONS 20 THE HOLDOVER PRINCIPLE ADOPTED IN R.A. NO. 9054
YEARS AFTER, THE HONORABLE SUPREME COURT DOES NOT VIOLATE THE CONSTITUTION, AND BEFORE
MAY HAVE VIOLATED THEFOREMOST RULE IN THEIR SUCCESSORS ARE ELECTED IN EITHER AN
STATUTORY CONSTRUCTION. ELECTION TO BE HELD AT THE SOONEST POSSIBLE
TIME OR IN MAY 2013, THE SAID INCUMBENT ARMM
REGIONAL OFFICIALS MAY VALIDLY CONTINUE
xxxx
FUNCTIONING AS SUCH IN A HOLDOVER CAPACITY IN
ACCORDANCE WITH SECTION 7, ARTICLE VII OF R.A.
II. THE HONORABLE COURT SHOULD HAVE NO. 9054.
CONSIDERED THAT RA 9054, AN ORGANIC ACT, WAS
COMPLETE IN ITSELF. HENCE, RA 10153 SHOULD BE
D.
CONSIDERED TO HAVE BEEN ENACTED PRECISELY TO
AMEND RA 9054.
WITH THE CANCELLATION OF THE AUGUST 2011
xxxx ARMM ELECTIONS, SPECIAL ELECTIONS MUST
IMMEDIATELY BE HELD FOR THE ELECTIVE REGIONAL
OFFICIALS OF THE ARMM WHO SHALL SERVE UNTIL
III. THE HONORABLE COURT MAY HAVE COMMITTED THEIR SUCCESSORS ARE ELECTED IN THE MAY 2013
A SERIOUS ERROR IN DECLARING THE 2/3 VOTING SYNCHRONIZED ELECTIONS.4
REQUIREMENT SET FORTH IN RA 9054 AS
UNCONSTITUTIONAL.
Finally, the petitioners in G.R. No. 197280 argue that:

xxxx
a) the Constitutional mandate of synchronization does not
apply to the ARMM elections;
IV. THE HONORABLE COURT MAY HAVE COMMITTED
A SERIOUS ERROR IN HOLDING THAT A PLEBISCITE IS
b) RA No. 10153 negates the basic principle of republican
NOT NECESSARY IN AMENDING THE ORGANIC ACT.
democracy which, by constitutional mandate, guides the
governance of the Republic;
xxxx
c) RA No. 10153 amends the Organic Act (RA No. 9054) and,
V. THE HONORABLE COURT COMMITTED A SERIOUS thus, has to comply with the 2/3 vote from the House of
ERROR IN DECLARING THE HOLD-OVER OF ARMM Representatives and the Senate, voting separately, and be
ELECTIVE OFFICIALS UNCONSTITUTIONAL. ratified in a plebiscite;

xxxx d) if the choice is between elective officials continuing to hold


their offices even after their terms are over and non-elective
VI. THE HONORABLE COURT COMMITTED A SERIOUS individuals getting into the vacant elective positions by
ERROR IN UPHOLDING THE APPOINTMENT OF appointment as OICs, the holdover option is the better choice;
OFFICERS-IN-CHARGE.3 (italics and underscoring supplied)
e) the President only has the power of supervision over
The petitioner in G.R. No. 197282 contends that: autonomous regions, which does not include the power to
appoint OICs to take the place of ARMM elective officials; and

A.
f) it would be better to hold the ARMM elections separately
from the national and local elections as this will make it easier
ASSUMING WITHOUT CONCEDING THAT THE for the authorities to implement election laws.
APPOINTMENT OF OICs FOR THE REGIONAL
GOVERNMENT OF THE ARMM IS NOT
UNCONSTITUTIONAL TO BEGIN WITH, SUCH In essence, the Court is asked to resolve the following questions:
APPOINTMENT OF OIC REGIONAL OFFICIALS WILL
CREATE A FUNDAMENTAL CHANGE IN THE BASIC (a) Does the Constitution mandate the synchronization of
STRUCTURE OF THE REGIONAL GOVERNMENT SUCH ARMM regional elections with national and local elections?
THAT R.A. NO. 10153 SHOULD HAVE BEEN SUBMITTED
(b) Does RA No. 10153 amend RA No. 9054? If so, does RA This was presented by Commissioner Davide, so may we ask that
No. 10153 have to comply with the supermajority vote and Commissioner Davide be recognized.
plebiscite requirements?
THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner Davide is
(c) Is the holdover provision in RA No. 9054 constitutional? recognized.

(d) Does the COMELEC have the power to call for special MR. DAVIDE. Before going to the proposed amendment, I would only
elections in ARMM? state that in view of the action taken by the Commission on Section 2
earlier, I am formulating a new proposal. It will read as follows: "THE
SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES
(e) Does granting the President the power to appoint OICs
AND THE LOCAL OFFICIALS FIRST ELECTED UNDER THIS
violate the elective and representative nature of ARMM
CONSTITUTION SHALL SERVE UNTIL NOON OF JUNE 30, 1992."
regional legislative and executive offices?

I proposed this because of the proposed section of the Article on


(f) Does the appointment power granted to the President
Transitory Provisions giving a term to the incumbent President and
exceed the President’s supervisory powers over autonomous
Vice-President until 1992. Necessarily then, since the term provided by
regions?
the Commission for Members of the Lower House and for local officials
is three years, if there will be an election in 1987, the next election for
The Court’s Ruling said officers will be in 1990, and it would be very close to 1992. We could
never attain, subsequently, any synchronization of election which is
We deny the motions for lack of merit. once every three years.

Synchronization mandate includes ARMM elections So under my proposal we will be able to begin actual synchronization
in 1992, and consequently, we should not have a local election or an
election for Members of the Lower House in 1990 for them to be able to
The Court was unanimous in holding that the Constitution mandates complete their term of three years each. And if we also stagger the
the synchronization of national and local elections. While the Senate, upon the first election it will result in an election in 1993 for the
Constitution does not expressly instruct Congress to synchronize the Senate alone, and there will be an election for 12 Senators in 1990. But
national and local elections, the intention can be inferred from the for the remaining 12 who will be elected in 1987, if their term is for six
following provisions of the Transitory Provisions (Article XVIII) of the years, their election will be in 1993. So, consequently we will have
Constitution, which state: elections in 1990, in 1992 and in 1993. The later election will be limited
to only 12 Senators and of course to the local officials and the Members
Section 1. The first elections of Members of the Congress under this of the Lower House. But, definitely, thereafter we can never have an
Constitution shall be held on the second Monday of May, 1987. election once every three years, therefore defeating the very purpose of
the Commission when we adopted the term of six years for the President
and another six years for the Senators with the possibility of staggering
The first local elections shall be held on a date to be determined by the
with 12 to serve for six years and 12 for three years insofar as the first
President, which may be simultaneous with the election of the Members
Senators are concerned. And so my proposal is the only way to effect
of the Congress. It shall include the election of all Members of the city or
the first synchronized election which would mean, necessarily, a
municipal councils in the Metropolitan Manila area.
bonus of two years to the Members of the Lower House and a bonus
of two years to the local elective officials.
Section 2. The Senators, Members of the House of Representatives, and
the local officials first elected under this Constitution shall serve until
THE PRESIDING OFFICER (Mr. Rodrigo). What does the committee
noon of June 30, 1992.
say?

Of the Senators elected in the elections in 1992, the first twelve obtaining
MR. DE CASTRO. Mr. Presiding Officer.
the highest number of votes shall serve for six years and the remaining
twelve for three years.
THE PRESIDING OFFICER (Mr. Rodrigo). Commissioner de Castro is
recognized.
xxxx

MR. DE CASTRO. Thank you.


Section 5. The six-year term of the incumbent President and Vice-
President elected in the February 7, 1986 election is, for purposes of
synchronization of elections, hereby extended to noon of June 30, 1992. During the discussion on the legislative and the synchronization of
elections, I was the one who proposed that in order to synchronize the
elections every three years, which the body approved — the first
The first regular elections for the President and Vice-President under
national and local officials to be elected in 1987 shall continue in office
this Constitution shall be held on the second Monday of May, 1992.
for five years, the same thing the Honorable Davide is now proposing.
That means they will all serve until 1992, assuming that the term of the
To fully appreciate the constitutional intent behind these provisions, we President will be for six years and continue beginning in 1986. So from
refer to the discussions of the Constitutional Commission: 1992, we will again have national, local and presidential elections. This
time, in 1992, the President shall have a term until 1998 and the first
12 Senators will serve until 1998, while the next 12 shall serve until
MR. MAAMBONG. For purposes of identification, I will now read a
1995, and then the local officials elected in 1992 will serve until 1995.
section which we will temporarily indicate as Section 14. It reads: "THE
From then on, we shall have an election every three years.
SENATORS, MEMBERS OF THE HOUSE OF REPRESENTATIVES
AND THE LOCAL OFFICIALS ELECTED IN THE FIRST ELECTION
SHALL SERVE FOR FIVE YEARS, TO EXPIRE AT NOON OF JUNE So, I will say that the proposition of Commissioner Davide is in order, if
1992." we have to synchronize our elections every three years which was
already approved by the body.
Thank you, Mr. Presiding Officer. There shall be autonomous regions in Muslim Mindanao and the
Cordilleras as hereinafter provided.
xxxx
The inclusion of autonomous regions in the enumeration of political
subdivisions of the State under the heading "Local Government"
MR. GUINGONA. What will be synchronized, therefore, is the election
indicates quite clearly the constitutional intent to consider autonomous
of the incumbent President and Vice-President in 1992.
regions as one of the forms of local governments.

MR. DAVIDE. Yes.


That the Constitution mentions only the "national government" and the
"local governments," and does not make a distinction between the "local
MR. GUINGONA. Not the reverse. Will the committee not synchronize government" and the "regional government," is particularly revealing,
the election of the Senators and local officials with the election of the betraying as it does the intention of the framers of the Constitution to
President? consider the autonomous regions not as separate forms of government,
but as political units which, while having more powers and attributes
MR. DAVIDE. It works both ways, Mr. Presiding Officer. The attempt than other local government units, still remain under the category of
here is on the assumption that the provision of the Transitory Provisions local governments. Since autonomous regions are classified as local
on the term of the incumbent President and Vice-President would really governments, it follows that elections held in autonomous regions are
end in 1992. also considered as local elections.

MR. GUINGONA. Yes. The petitioners further argue that even assuming that the Constitution
mandates the synchronization of elections, the ARMM elections are not
covered by this mandate since they are regional elections and not local
MR. DAVIDE. In other words, there will be a single election in 1992 elections.
for all, from the President up to the municipal officials.5 (emphases
and underscoring ours)
In construing provisions of the Constitution, the first rule is verba legis,
"that is, wherever possible, the words used in the Constitution must be
The framers of the Constitution could not have expressed their objective given their ordinary meaning except where technical terms are
more clearly – there was to be a single election in 1992 for all elective employed."9 Applying this principle to determine the scope of "local
officials – from the President down to the municipal officials. elections," we refer to the meaning of the word "local," as understood in
Significantly, the framers were even willing to temporarily lengthen or its ordinary sense. As defined in Webster’s Third New International
shorten the terms of elective officials in order to meet this objective, Dictionary Unabridged, "local" refers to something "that primarily
highlighting the importance of this constitutional mandate. serves the needs of a particular limited district, often a community or
minor political subdivision." Obviously, the ARMM elections, which are
We came to the same conclusion in Osmeña v. Commission on held within the confines of the autonomous region of Muslim
Elections,6 where we unequivocally stated that "the Constitution has Mindanao, fall within this definition.
mandated synchronized national and local elections."7 Despite the
length and verbosity of their motions, the petitioners have failed to To be sure, the fact that the ARMM possesses more powers than other
convince us to deviate from this established ruling. provinces, cities, or municipalities is not enough reason to treat the
ARMM regional elections differently from the other local elections. Ubi
Neither do we find any merit in the petitioners’ contention that the lex non distinguit nec nos distinguire debemus. When the law does not
ARMM elections are not covered by the constitutional mandate of distinguish, we must not distinguish.10
synchronization because the ARMM elections were not specifically
mentioned in the above-quoted Transitory Provisions of the RA No. 10153 does not amend RA No. 9054
Constitution.

The petitioners are adamant that the provisions of RA No. 10153, in


That the ARMM elections were not expressly mentioned in the postponing the ARMM elections, amend RA No. 9054.
Transitory Provisions of the Constitution on synchronization cannot be
interpreted to mean that the ARMM elections are not covered by the
constitutional mandate of synchronization. We have to consider that the We cannot agree with their position.
ARMM, as we now know it, had not yet been officially organized at the
time the Constitution was enacted and ratified by the people. Keeping A thorough reading of RA No. 9054 reveals that it fixes the schedule for
in mind that a constitution is not intended to provide merely for the only the first ARMM elections;11 it does not provide the date for the
exigencies of a few years but is to endure through generations for as long succeeding regular ARMM elections. In providing for the date of the
as it remains unaltered by the people as ultimate sovereign, a regular ARMM elections, RA No. 9333 and RA No. 10153 clearly do not
constitution should be construed in the light of what actually is a amend RA No. 9054 since these laws do not change or revise any
continuing instrument to govern not only the present but also the provision in RA No. 9054. In fixing the date of the ARMM elections
unfolding events of the indefinite future. Although the principles subsequent to the first election, RA No. 9333 and RA No. 10153 merely
embodied in a constitution remain fixed and unchanged from the time filled the gap left in RA No. 9054.
of its adoption, a constitution must be construed as a dynamic process
intended to stand for a great length of time, to be progressive and not
We reiterate our previous observations:
static.8

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


To reiterate, Article X of the Constitution, entitled "Local Government,"
clearly shows the intention of the Constitution to classify autonomous the date of succeeding ARMM elections to legislative discretion – finds
support in ARMM’s recent history.
regions, such as the ARMM, as local governments. We refer to Section 1
of this Article, which provides:
To recall, RA No. 10153 is not the first law passed that rescheduled the
ARMM elections. The First Organic Act – RA No. 6734 – not only did
Section 1. The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays. not fix the date of the subsequent elections; it did not even fix the specific
date of the first ARMM elections, leaving the date to be fixed in another body may modify or abolish the acts passed by itself or its predecessors.
legislative enactment. Consequently, RA No. 7647, RA No. 8176, RA No. This power of repeal may be exercised at the same session at which the
8746, RA No. 8753, and RA No. 9012 were all enacted by Congress to fix original act was passed; and even while a bill is in its progress and before
the dates of the ARMM elections. Since these laws did not change or it becomes a law. This legislature cannot bind a future legislature to a
modify any part or provision of RA No. 6734, they were not particular mode of repeal. It cannot declare in advance the intent of
amendments to this latter law. Consequently, there was no need to subsequent legislatures or the effect of subsequent legislation upon
submit them to any plebiscite for ratification. existing statutes. [emphasis ours]

The Second Organic Act – RA No. 9054 – which lapsed into law on Under our Constitution, each House of Congress has the power to
March 31, 2001, provided that the first elections would be held on the approve bills by a mere majority vote, provided there is quorum. 17 In
second Monday of September 2001. Thereafter, Congress passed RA No. requiring all laws which amend RA No. 9054 to comply with a higher
9140 to reset the date of the ARMM elections. Significantly, while RA voting requirement than the Constitution provides (2/3 vote), Congress,
No. 9140 also scheduled the plebiscite for the ratification of the Second which enacted RA No. 9054, clearly violated the very principle which
Organic Act (RA No. 9054), the new date of the ARMM regional we sought to establish in Duarte. To reiterate, the act of one legislature
elections fixed in RA No. 9140 was not among the provisions ratified is not binding upon, and cannot tie the hands of, future legislatures. 18
in the plebiscite held to approve RA No. 9054. Thereafter, Congress
passed RA No. 9333, which further reset the date of the ARMM regional We also highlight an important point raised by Justice Antonio T. Carpio
elections. Again, this law was not ratified through a plebiscite. in his dissenting opinion, where he stated: "Section 1, Article XVII of RA
9054 erects a high vote threshold for each House of Congress to
From these legislative actions, we see the clear intention of Congress to surmount, effectively and unconstitutionally, taking RA 9054 beyond
treat the laws which fix the date of the subsequent ARMM elections as the reach of Congress’ amendatory powers. One Congress cannot limit
separate and distinct from the Organic Acts. Congress only acted or reduce the plenary legislative power of succeeding Congresses by
consistently with this intent when it passed RA No. 10153 without requiring a higher vote threshold than what the Constitution requires to
requiring compliance with the amendment prerequisites embodied in enact, amend or repeal laws. No law can be passed fixing such a higher
Section 1 and Section 3, Article XVII of RA No. 9054. 12 (emphases vote threshold because Congress has no power, by ordinary legislation,
supplied) to amend the Constitution."19

The petitioner in G.R. No. 196305 contends, however, that there is no Plebiscite requirement in RA No. 9054 overly broad
lacuna in RA No. 9054 as regards the date of the subsequent ARMM
elections. In his estimation, it can be implied from the provisions of RA Similarly, we struck down the petitioners’ contention that the plebiscite
No. 9054 that the succeeding elections are to be held three years after the requirement20 applies to all amendments of RA No. 9054 for being an
date of the first ARMM regional elections. unreasonable enlargement of the plebiscite requirement set forth in the
Constitution.
We find this an erroneous assertion. Well-settled is the rule that the
court may not, in the guise of interpretation, enlarge the scope of a Section 18, Article X of the Constitution provides that "[t]he creation of
statute and include therein situations not provided nor intended by the the autonomous region shall be effective when approved by majority of
lawmakers. An omission at the time of enactment, whether careless or the votes cast by the constituent units in a plebiscite called for the
calculated, cannot be judicially supplied however later wisdom may purpose[.]" We interpreted this to mean that only amendments to, or
recommend the inclusion.13 Courts are not authorized to insert into the revisions of, the Organic Act constitutionally-essential to the creation
law what they think should be in it or to supply what they think the of autonomous regions – i.e., those aspects specifically mentioned in the
legislature would have supplied if its attention had been called to the Constitution which Congress must provide for in the Organic Act21 –
omission.14Providing for lapses within the law falls within the exclusive require ratification through a plebiscite. We stand by this interpretation.
domain of the legislature, and courts, no matter how well-meaning,
have no authority to intrude into this clearly delineated space.
The petitioners argue that to require all amendments to RA No. 9054 to
comply with the plebiscite requirement is to recognize that sovereignty
Since RA No. 10153 does not amend, but merely fills in the gap in RA resides primarily in the people.
No. 9054, there is no need for RA No. 10153 to comply with the
amendment requirements set forth in Article XVII of RA No. 9054.
While we agree with the petitioners’ underlying premise that
sovereignty ultimately resides with the people, we disagree that this
Supermajority vote requirement makes RA No. 9054 an irrepealable law legal reality necessitates compliance with the plebiscite requirement for
all amendments to RA No. 9054. For if we were to go by the petitioners’
Even assuming that RA No. 10153 amends RA No. 9054, however, we interpretation of Section 18, Article X of the Constitution that all
have already established that the supermajority vote requirement set amendments to the Organic Act have to undergo the plebiscite
forth in Section 1, Article XVII of RA No. 9054 15 is unconstitutional for requirement before becoming effective, this would lead to impractical
violating the principle that Congress cannot pass irrepealable laws. and illogical results – hampering the ARMM’s progress by impeding
Congress from enacting laws that timely address problems as they arise
in the region, as well as weighing down the ARMM government with
The power of the legislature to make laws includes the power to amend
the costs that unavoidably follow the holding of a plebiscite.
and repeal these laws. Where the legislature, by its own act, attempts to
limit its power to amend or repeal laws, the Court has the duty to strike
down such act for interfering with the plenary powers of Congress. As Interestingly, the petitioner in G.R. No. 197282 posits that RA No. 10153,
we explained in Duarte v. Dade:16 in giving the President the power to appoint OICs to take the place of
the elective officials of the ARMM, creates a fundamental change in the
basic structure of the government, and thus requires compliance with
A state legislature has a plenary law-making power over all subjects,
the plebiscite requirement embodied in RA No. 9054.
whether pertaining to persons or things, within its territorial
jurisdiction, either to introduce new laws or repeal the old, unless
prohibited expressly or by implication by the federal constitution or Again, we disagree.
limited or restrained by its own. It cannot bind itself or its successors by
enacting irrepealable laws except when so restrained. Every legislative
The pertinent provision in this regard is Section 3 of RA No. 10153, Even assuming that a holdover is constitutionally permissible, and there
which reads: had been statutory basis for it (namely Section 7, Article VII of RA No.
9054), the rule of holdover can only apply as an available option where
Section 3. Appointment of Officers-in-Charge. — The President shall no express or implied legislative intent to the contrary exists; it cannot
apply where such contrary intent is evident.23
appoint officers-in-charge for the Office of the Regional Governor,
Regional Vice Governor and Members of the Regional Legislative
Assembly who shall perform the functions pertaining to the said offices Congress, in passing RA No. 10153 and removing the holdover option,
until the officials duly elected in the May 2013 elections shall have has made it clear that it wants to suppress the holdover rule expressed
qualified and assumed office. in RA No. 9054. Congress, in the exercise of its plenary legislative
powers, has clearly acted within its discretion when it deleted the
holdover option, and this Court has no authority to question the wisdom
We cannot see how the above-quoted provision has changed the basic
of this decision, absent any evidence of unconstitutionality or grave
structure of the ARMM regional government. On the contrary, this
abuse of discretion. It is for the legislature and the executive, and not
provision clearly preserves the basic structure of the ARMM regional
this Court, to decide how to fill the vacancies in the ARMM regional
government when it recognizes the offices of the ARMM regional
government and directs the OICs who shall temporarily assume these government which arise from the legislature complying with the
constitutional mandate of synchronization.
offices to "perform the functions pertaining to the said offices."

COMELEC has no authority to hold special elections


Unconstitutionality of the holdover provision

The petitioners are one in defending the constitutionality of Section 7(1), Neither do we find any merit in the contention that the Commission on
Elections (COMELEC) is sufficiently empowered to set the date of
Article VII of RA No. 9054, which allows the regional officials to remain
special elections in the ARMM. To recall, the Constitution has merely
in their positions in a holdover capacity. The petitioners essentially
empowered the COMELEC to enforce and administer all laws and
argue that the ARMM regional officials should be allowed to remain in
regulations relative to the conduct of an election.24 Although the
their respective positions until the May 2013 elections since there is no
legislature, under the Omnibus Election Code (Batas Pambansa Bilang
specific provision in the Constitution which prohibits regional elective
officials from performing their duties in a holdover capacity. [BP] 881), has granted the COMELEC the power to postpone elections
to another date, this power is confined to the specific terms and
circumstances provided for in the law. Specifically, this power falls
The pertinent provision of the Constitution is Section 8, Article X which within the narrow confines of the following provisions:
provides:
Section 5. Postponement of election. - When for any serious cause such
Section 8. The term of office of elective local officials, except barangay as violence, terrorism, loss or destruction of election paraphernalia or
officials, which shall be determined by law, shall be three years and no records, force majeure, and other analogous causes of such a nature
such official shall serve for more than three consecutive terms. that the holding of a free, orderly and honest election should become
[emphases ours] impossible in any political subdivision, the Commission, motu proprio or
upon a verified petition by any interested party, and after due notice
On the other hand, Section 7(1), Article VII of RA No. 9054 provides: and hearing, whereby all interested parties are afforded equal
opportunity to be heard, shall postpone the election therein to a date
which should be reasonably close to the date of the election not held,
Section 7. Terms of Office of Elective Regional Officials. – (1) Terms of suspended or which resulted in a failure to elect but not later than
Office. The terms of office of the Regional Governor, Regional Vice thirty days after the cessation of the cause for such postponement or
Governor and members of the Regional Assembly shall be for a period suspension of the election or failure to elect.
of three (3) years, which shall begin at noon on the 30th day of
September next following the day of the election and shall end at noon
of the same date three (3) years thereafter. The incumbent elective Section 6. Failure of election. - If, on account of force
officials of the autonomous region shall continue in effect until their majeure, violence, terrorism, fraud, or other analogous causes the
successors are elected and qualified. election in any polling place has not been held on the date
fixed, or had been suspended before the hour fixed by law for the
closing of the voting, or after the voting and during the preparation and
The clear wording of Section 8, Article X of the Constitution expresses the transmission of the election returns or in the custody or canvass
the intent of the framers of the Constitution to categorically set a thereof, such election results in a failure to elect, and in any of such
limitation on the period within which all elective local officials can cases the failure or suspension of election would affect the result of the
occupy their offices. We have already established that elective ARMM election, the Commission shall, on the basis of a verified petition by any
officials are also local officials; they are, thus, bound by the three-year interested party and after due notice and hearing, call for the holding or
term limit prescribed by the Constitution. It, therefore, becomes continuation of the election not held, suspended or which resulted in a
irrelevant that the Constitution does not expressly prohibit elective failure to elect on a date reasonably close to the date of the election not
officials from acting in a holdover capacity. Short of amending the held, suspended or which resulted in a failure to elect but not later than
Constitution, Congress has no authority to extend the three-year term thirty days after the cessation of the cause of such postponement or
limit by inserting a holdover provision in RA No. 9054. Thus, the term suspension of the election or failure to elect. [emphases and
of three years for local officials should stay at three (3) years, as fixed by underscoring ours]
the Constitution, and cannot be extended by holdover by Congress.

As we have previously observed in our assailed decision, both Section 5


Admittedly, we have, in the past, recognized the validity of holdover and Section 6 of BP 881 address instances where elections have already
provisions in various laws. One significant difference between the been scheduled to take place but do not occur or had to be suspended
present case and these past cases22 is that while these past cases all refer because of unexpected and unforeseen circumstances, such as violence,
to elective barangay or sangguniang kabataan officials whose terms of fraud, terrorism, and other analogous circumstances.
office are not explicitly provided for in the Constitution, the present case
refers to local elective officials - the ARMM Governor, the ARMM Vice
Governor, and the members of the Regional Legislative Assembly - In contrast, the ARMM elections were postponed by law, in furtherance
whose terms fall within the three-year term limit set by Section 8, Article of the constitutional mandate of synchronization of national and local
X of the Constitution.
elections. Obviously, this does not fall under any of the circumstances MR. REGALADO. Madam President, the Committee accepts the
contemplated by Section 5 or Section 6 of BP 881. proposed amendment because it makes it clear that those other officers
mentioned therein do not have to be confirmed by the Commission on
More importantly, RA No. 10153 has already fixed the date for the next Appointments.26
ARMM elections and the COMELEC has no authority to set a different
election date. The first group of presidential appointments, specified as the heads of
the executive departments, ambassadors, other public ministers and
consuls, or officers of the Armed Forces, and other officers whose
Even assuming that the COMELEC has the authority to hold special
elections, and this Court can compel the COMELEC to do so, there is appointments are vested in the President by the Constitution, pertains
to the appointive officials who have to be confirmed by the Commission
still the problem of having to shorten the terms of the newly elected
on Appointments.
officials in order to synchronize the ARMM elections with the May 2013
national and local elections. Obviously, neither the Court nor the
COMELEC has the authority to do this, amounting as it does to an The second group of officials the President can appoint are "all other
amendment of Section 8, Article X of the Constitution, which limits the officers of the Government whose appointments are not otherwise
term of local officials to three years. provided for by law, and those whom he may be authorized by law to
appoint."27 The second sentence acts as the "catch-all provision" for the
President’s appointment power, in recognition of the fact that the power
President’s authority to appoint OICs
to appoint is essentially executive in nature.28 The wide latitude given to
the President to appoint is further demonstrated by the recognition of
The petitioner in G.R. No. 197221 argues that the President’s power to the President’s power to appoint officials whose appointments are not
appoint pertains only to appointive positions and cannot extend to even provided for by law. In other words, where there are offices which
positions held by elective officials. have to be filled, but the law does not provide the process for filling
them, the Constitution recognizes the power of the President to fill the
The power to appoint has traditionally been recognized as executive in office by appointment.
nature.25 Section 16, Article VII of the Constitution describes in broad
strokes the extent of this power, thus: Any limitation on or qualification to the exercise of the President’s
appointment power should be strictly construed and must be clearly
Section 16. The President shall nominate and, with the consent of the stated in order to be recognized.29 Given that the President derives his
Commission on Appointments, appoint the heads of the executive power to appoint OICs in the ARMM regional government from law, it
departments, ambassadors, other public ministers and consuls, or falls under the classification of presidential appointments covered by
officers of the armed forces from the rank of colonel or naval captain, the second sentence of Section 16, Article VII of the Constitution; the
and other officers whose appointments are vested in him in this President’s appointment power thus rests on clear constitutional basis.
Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by The petitioners also jointly assert that RA No. 10153, in granting the
law, and those whom he may be authorized by law to appoint. The President the power to appoint OICs in elective positions, violates
Congress may, by law, vest the appointment of other officers lower in Section 16, Article X of the Constitution,30 which merely grants the
rank in the President alone, in the courts, or in the heads of departments, President the power of supervision over autonomous regions.
agencies, commissions, or boards. [emphasis ours]
This is an overly restrictive interpretation of the President’s
The 1935 Constitution contained a provision similar to the one quoted appointment power. There is no incompatibility between the President’s
above. Section 10(3), Article VII of the 1935 Constitution provides: power of supervision over local governments and autonomous regions,
and the power granted to the President, within the specific confines of
(3) The President shall nominate and with the consent of the RA No. 10153, to appoint OICs.
Commission on Appointments, shall appoint the heads of the executive
departments and bureaus, officers of the Army from the rank of colonel, The power of supervision is defined as "the power of a superior officer
of the Navy and Air Forces from the rank of captain or commander, and to see to it that lower officers perform their functions in accordance with
all other officers of the Government whose appointments are not herein law."31 This is distinguished from the power of control or "the power of
otherwise provided for, and those whom he may be authorized by law an officer to alter or modify or set aside what a subordinate officer had
to appoint; but the Congress may by law vest the appointment of done in the performance of his duties and to substitute the judgment of
inferior officers, in the President alone, in the courts, or in the heads of the former for the latter."32
departments. [emphasis ours]
The petitioners’ apprehension regarding the President’s alleged power
The main distinction between the provision in the 1987 Constitution and of control over the OICs is rooted in their belief that the President’s
its counterpart in the 1935 Constitution is the sentence construction; appointment power includes the power to remove these officials at will.
while in the 1935 Constitution, the various appointments the President In this way, the petitioners foresee that the appointed OICs will be
can make are enumerated in a single sentence, the 1987 Constitution beholden to the President, and act as representatives of the President
enumerates the various appointments the President is empowered to and not of the people.
make and divides the enumeration in two sentences. The change in style
is significant; in providing for this change, the framers of the 1987
Constitution clearly sought to make a distinction between the first group Section 3 of RA No. 10153 expressly contradicts the petitioners’
of presidential appointments and the second group of presidential supposition. The provision states:
appointments, as made evident in the following exchange:
Section 3. Appointment of Officers-in-Charge. — The President shall
MR. FOZ. Madame President x x x I propose to put a period (.) after appoint officers-in-charge for the Office of the Regional Governor,
"captain" and x x x delete "and all" and substitute it with HE SHALL Regional Vice Governor and Members of the Regional Legislative
ALSO APPOINT ANY. Assembly who shall perform the functions pertaining to the said offices
until the officials duly elected in the May 2013 elections shall have
qualified and assumed office.
The wording of the law is clear. Once the President has appointed the the President of Mujiv Hataman as acting Governor and Bainon Karon
OICs for the offices of the Governor, Vice Governor and members of the as acting Vice Governor of the ARMM. They argue that since our
Regional Legislative Assembly, these same officials will remain in office previous decision was based on a close vote of 8-7, and given the
until they are replaced by the duly elected officials in the May 2013 numerous motions for reconsideration filed by the parties, the
elections. Nothing in this provision even hints that the President has the President, in recognition of the principle of judicial courtesy, should
power to recall the appointments he already made. Clearly, the have refrained from implementing our decision until we have ruled
petitioners’ fears in this regard are more apparent than real. with finality on this case.

RA No. 10153 as an interim measure We find the petitioners’ reasoning specious.

We reiterate once more the importance of considering RA No. 10153 not Firstly, the principle of judicial courtesy is based on the hierarchy of
in a vacuum, but within the context it was enacted in. In the first place, courts and applies only to lower courts in instances where, even if there
Congress enacted RA No. 10153 primarily to heed the constitutional is no writ of preliminary injunction or TRO issued by a higher court, it
mandate to synchronize the ARMM regional elections with the national would be proper for a lower court to suspend its proceedings for
and local elections. To do this, Congress had to postpone the scheduled practical and ethical considerations.35 In other words, the principle of
ARMM elections for another date, leaving it with the problem of how to "judicial courtesy" applies where there is a strong probability that the
provide the ARMM with governance in the intervening period, between issues before the higher court would be rendered moot and moribund
the expiration of the term of those elected in August 2008 and the as a result of the continuation of the proceedings in the lower court or
assumption to office – twenty-one (21) months away – of those who will court of origin.36Consequently, this principle cannot be applied to the
win in the synchronized elections on May 13, 2013. President, who represents a co-equal branch of government. To suggest
otherwise would be to disregard the principle of separation of powers,
on which our whole system of government is founded upon.
In our assailed Decision, we already identified the three possible
solutions open to Congress to address the problem created by
synchronization – (a) allow the incumbent officials to remain in office Secondly, the fact that our previous decision was based on a slim vote
after the expiration of their terms in a holdover capacity; (b) call for of 8-7 does not, and cannot, have the effect of making our ruling any less
special elections to be held, and shorten the terms of those to be elected effective or binding. Regardless of how close the voting is, so long as
so the next ARMM regional elections can be held on May 13, 2013; or (c) there is concurrence of the majority of the members of the en banc who
recognize that the President, in the exercise of his appointment powers actually took part in the deliberations of the case,37 a decision garnering
and in line with his power of supervision over the ARMM, can appoint only 8 votes out of 15 members is still a decision of the Supreme Court
interim OICs to hold the vacated positions in the ARMM regional en banc and must be respected as such. The petitioners are, therefore,
government upon the expiration of their terms. We have already not in any position to speculate that, based on the voting, "the
established the unconstitutionality of the first two options, leaving us to probability exists that their motion for reconsideration may be
consider the last available option. granted."38

In this way, RA No. 10153 is in reality an interim measure, enacted to Similarly, the petitioner in G.R. No. 197282, in his Very Urgent Motion
respond to the adjustment that synchronization requires. Given the to Issue Clarificatory Resolution, argues that since motions for
context, we have to judge RA No. 10153 by the standard of reconsideration were filed by the aggrieved parties challenging our
reasonableness in responding to the challenges brought about by October 18, 2011 decision in the present case, the TRO we initially issued
synchronizing the ARMM elections with the national and local elections. on September 13, 2011 should remain subsisting and effective. He
In other words, "given the plain unconstitutionality of providing for a further argues that any attempt by the Executive to implement our
holdover and the unavailability of constitutional possibilities for October 18, 2011 decision pending resolution of the motions for
lengthening or shortening the term of the elected ARMM officials, is the reconsideration "borders on disrespect if not outright insolence"39 to this
choice of the President’s power to appoint – for a fixed and specific Court.
period as an interim measure, and as allowed under Section 16, Article
VII of the Constitution – an unconstitutional or unreasonable choice for
In support of this theory, the petitioner cites Samad v.
Congress to make?"33
COMELEC,40 where the Court held that while it had already issued a
decision lifting the TRO, the lifting of the TRO is not yet final and
We admit that synchronization will temporarily disrupt the election executory, and can also be the subject of a motion for reconsideration.
process in a local community, the ARMM, as well as the community’s The petitioner also cites the minute resolution issued by the Court in
choice of leaders. However, we have to keep in mind that the adoption Tolentino v. Secretary of Finance,41 where the Court reproached the
of this measure is a matter of necessity in order to comply with a Commissioner of the Bureau of Internal Revenue for manifesting its
mandate that the Constitution itself has set out for us. Moreover, the intention to implement the decision of the Court, noting that the Court
implementation of the provisions of RA No. 10153 as an interim measure had not yet lifted the TRO previously issued.42
is comparable to the interim measures traditionally practiced when, for
instance, the President appoints officials holding elective offices upon
We agree with the petitioner that the lifting of a TRO can be included as
the creation of new local government units.
a subject of a motion for reconsideration filed to assail our decision. It
does not follow, however, that the TRO remains effective until after we
The grant to the President of the power to appoint OICs in place of the have issued a final and executory decision, especially considering the
elective members of the Regional Legislative Assembly is neither novel clear wording of the dispositive portion of our October 18, 2011 decision,
nor innovative. The power granted to the President, via RA No. 10153, which states:
to appoint members of the Regional Legislative Assembly is comparable
to the power granted by BP 881 (the Omnibus Election Code) to the
WHEREFORE, premises considered, we DISMISS the consolidated
President to fill any vacancy for any cause in the Regional Legislative
petitions assailing the validity of RA No. 10153 for lack of merit, and
Assembly (then called the Sangguniang Pampook).34
UPHOLD the constitutionality of this law. We likewise LIFT the
temporary restraining order we issued in our Resolution of September
Executive is not bound by the principle of judicial courtesy 13, 2011. No costs.43 (emphases ours)

The petitioners in G.R. No. 197280, in their Manifestation and Motion In this regard, we note an important distinction between Tolentino and
dated December 21, 2011, question the propriety of the appointment by the present case. While it may be true that Tolentino and the present case
are similar in that, in both cases, the petitions assailing the challenged G.R. No. 202242 April 16, 2013
laws were dismissed by the Court, an examination of the dispositive
portion of the decision in Tolentino reveals that the Court did not FRANCISCO I. CHAVEZ, Petitioner,
categorically lift the TRO. In sharp contrast, in the present case, we vs.
expressly lifted the TRO issued on September 13, 2011.1âwphi1 There is, JUDICIALAND BAR COUNCIL, SEN. FRANCIS JOSEPH G.
therefore, no legal impediment to prevent the President from exercising ESCUDERO and REP. NIEL C. TUPAS, JR.,Respondents.
his authority to appoint an acting ARMM Governor and Vice Governor
as specifically provided for in RA No. 10153.
RESOLUTION

Conclusion
MENDOZA, J.:

As a final point, we wish to address the bleak picture that the petitioner
in G.R. No. 197282 presents in his motion, that our Decision has virtually This resolves the Motion for Reconsideration1 filed by the Office of the
given the President the power and authority to appoint 672,416 OICs in Solicitor General (OSG) on behalf of the respondents, Senator Francis
the event that the elections of barangay and Sangguniang Kabataan Joseph G. Escudero and Congressman Niel C. Tupas, Jr. (respondents),
officials are postponed or cancelled. duly opposed2 by the petitioner, former Solicitor General Francisco I.
Chavez (petitioner).

We find this speculation nothing short of fear-mongering.


By way of recapitulation, the present action stemmed from the
unexpected departure of former Chief Justice Renato C. Corona on May
This argument fails to take into consideration the unique factual and 29, 2012, and the nomination of petitioner, as his potential successor. In
legal circumstances which led to the enactment of RA No. 10153. RA No. his initiatory pleading, petitioner asked the Court to determine 1]
10153 was passed in order to synchronize the ARMM elections with the whether the first paragraph of Section 8, Article VIII of the 1987
national and local elections. In the course of synchronizing the ARMM Constitution allows more than one (1) member of Congress to sit in the
elections with the national and local elections, Congress had to grant the JBC; and 2] if the practice of having two (2) representatives from each
President the power to appoint OICs in the ARMM, in light of the fact House of Congress with one (1) vote each is sanctioned by the
that: (a) holdover by the incumbent ARMM elective officials is legally Constitution.
impermissible; and (b) Congress cannot call for special elections and
shorten the terms of elective local officials for less than three years.
On July 17, 2012, the Court handed down the assailed subject decision,
disposing the same in the following manner:
Unlike local officials, as the Constitution does not prescribe a term limit
for barangay and Sangguniang Kabataan officials, there is no legal
proscription which prevents these specific government officials from WHEREFORE, the petition is GRANTED. The current numerical
continuing in a holdover capacity should some exigency require the composition of the Judicial and Bar Council is declared
postponement of barangay or Sangguniang Kabataan elections. Clearly, UNCONSTITUTIONAL. The Judicial and Bar Council is hereby
these fears have neither legal nor factual basis to stand on. 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.
For the foregoing reasons, we deny the petitioners’ motions for
reconsideration.
This disposition is immediately executory.

WHEREFORE, premises considered, we DENY with FINALITY the


motions for reconsideration for lack of merit and UPHOLD the SO ORDERED.
constitutionality of RA No. 10153.
On July 31, 2012, following respondents’ motion for reconsideration and
SO ORDERED. 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 As these two issues are interrelated, the Court shall discuss them jointly.
in the President, subject to confirmation by the Commission on
Appointments. It was during these times that the country became Ruling of the Court
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 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
Then, under the 1973 Constitution,14 with the fusion of the executive and several departments for their safe and useful exercise for the benefit of
legislative powers in one body, the appointment of judges and justices the body politic.19 The Framers reposed their wisdom and vision on one
ceased to be subject of scrutiny by another body. The power became suprema lex to be the ultimate expression of the principles and the
exclusive and absolute to the Executive, subject only to the condition framework upon which government and society were to operate. Thus,
that the appointees must have all the qualifications and none of the in the interpretation of the constitutional provisions, the Court firmly
disqualifications. relies on the basic postulate that the Framers mean what they say. The
language used in the Constitution must be taken to have been
Prompted by the clamor to rid the process of appointments to the deliberately chosen for a definite purpose. Every word employed in the
Judiciary of the evils of political pressure and partisan activities,15 the Constitution must be interpreted to exude its deliberate intent which
members of the Constitutional Commission saw it wise to create a must be maintained inviolate against disobedience and defiance. What
separate, competent and independent body to recommend nominees to the Constitution clearly says, according to its text, compels acceptance
the President. and bars modification even by the branch tasked to interpret it.

Thus, it conceived of a body, representative of all the stakeholders in the For this reason, the Court cannot accede to the argument of plain
judicial appointment process, and called it the Judicial and Bar Council oversight in order to justify constitutional construction. As stated in the
(JBC). The Framers carefully worded Section 8, Article VIII of the 1987 July 17, 2012 Decision, in opting to use the singular letter "a" to describe
Constitution in this wise: "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
Section 8. (1) A Judicial and Bar Council is hereby created under the
uncertain terms, so provided, as can be read in its other provisions.
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 reading of the 1987 Constitution would reveal that several provisions
a professor of law, a retired Member of the Supreme Court, and a were indeed adjusted as to be in tune with the shift to bicameralism. One
representative of the private sector. 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
From the moment of the creation of the JBC, Congress designated one
8 thereof which requires the nominee to replace the Vice-President to be
(1) representative to sit in the JBC to act as one of the ex-officio
confirmed "by a majority of all the Members of both Houses of the
members.16 Pursuant to the constitutional provision that Congress is
Congress, voting separately."21 Similarly, under Section 18, the
entitled to one (1) representative, each House sent a representative to
proclamation of martial law or the suspension of the privilege of the writ
the JBC, not together, but alternately or by rotation.
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
In 1994, the seven-member composition of the JBC was substantially these provisions, the bicameral nature of Congress was recognized and,
altered.1âwphi1 An eighth member was added to the JBC as the two (2) clearly, the corresponding adjustments were made as to how a matter
representatives from Congress began sitting simultaneously in the JBC, would be handled and voted upon by its two Houses.
with each having one-half (1/2) of a vote.17
Thus, to say that the Framers simply failed to adjust Section 8, Article
In 2001, the JBC En Banc decided to allow the representatives from the VIII, by sheer inadvertence, to their decision to shift to a bicameral form
Senate and the House of Representatives one full vote each.18 It has been of the legislature, is not persuasive enough. Respondents cannot just
the situation since then. 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
Grounds relied upon by Respondents 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
Through the subject motion, respondents pray that the Court reconsider merely assigned a contributory non-legislative function.
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 The underlying reason for such a limited participation can easily be
Framers to make the proper adjustment when there was a shift from discerned. Congress has two (2) Houses. The need to recognize the
unilateralism to bicameralism was a plain oversight; 3] that two existence and the role of each House is essential considering that the
representatives from Congress would not subvert the intention of the Constitution employs precise language in laying down the functions
Framers to insulate the JBC from political partisanship; and 4] that the which particular House plays, regardless of whether the two Houses
rationale of the Court in declaring a seven-member composition would consummate an official act by voting jointly or separately. Whether in
provide a solution should there be a stalemate is not exactly correct. 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
While the Court may find some sense in the reasoning in amplification Vice-President,26 and impeachment,27 the dichotomy of each House
of the third and fourth grounds listed by respondents, still, it finds itself must be acknowledged and recognized considering the interplay
unable to reverse the assailed decision on the principal issues covered between these two Houses. In all these instances, each House is
by the first and second grounds for lack of merit. Significantly, the constitutionally granted with powers and functions peculiar to its
conclusion arrived at, with respect to the first and second grounds, nature and with keen consideration to 1) its relationship with the other
carries greater bearing in the final resolution of this case. 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 In this regard, the scholarly dissection on the matter by retired Justice
Houses in their participation in the JBC. No mechanism is required Consuelo Ynares-Santiago, a former JBC consultant, is worth
between the Senate and the House of Representatives in the screening reiterating.31 Thus:
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
A perusal of the records of the Constitutional Commission reveals that
members, three (3) representatives from the major branches of
the composition of the JBC reflects the Commission’s desire "to have in
government - the Chief Justice as ex-officio Chairman (representing the
the Council a representation for the major elements of the community."
Judicial Department), the Secretary of Justice (representing the
xxx The ex-officio members of the Council consist of representatives
Executive Department), and a representative of the Congress
from the three main branches of government while the regular members
(representing the Legislative Department). The total is seven (7), not are composed of various stakeholders in the judiciary. The
eight. In so providing, the Framers simply gave recognition to the
unmistakeable tenor of Article VIII, Section 8(1) was to treat each ex-
Legislature, not because it was in the interest of a certain constituency,
officio member as representing one co-equal branch of government. xxx
but in reverence to it as a major branch of government.
Thus, the JBC was designed to have seven voting members with the
three ex-officio members having equal say in the choice of judicial
On this score, a Member of Congress, Hon. Simeon A. Datumanong, nominees.
from the Second District of Maguindanao, submitted his well-
considered position28 to then Chief Justice Reynato S. Puno:
xxx

I humbly reiterate my position that there should be only one


No parallelism can be drawn between the representative of Congress in
representative of Congress in the JBC in accordance with Article VIII,
the JBC and the exercise by Congress of its legislative powers under
Section 8 (1) of the 1987 Constitution x x x. Article VI and constituent powers under Article XVII of the
Constitution. Congress, in relation to the executive and judicial branches
The aforesaid provision is clear and unambiguous and does not need of government, is constitutionally treated as another co-equal branch in
any further interpretation. Perhaps, it is apt to mention that the oft- the matter of its representative in the JBC. On the other hand, the
repeated doctrine that "construction and interpretation come only after exercise of legislative and constituent powers requires the Senate and
it has been demonstrated that application is impossible or inadequate the House of Representatives to coordinate and act as distinct bodies in
without them." 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
Further, to allow Congress to have two representatives in the Council,
made when Congress interacts with the other two co-equal branches of
with one vote each, is to negate the principle of equality among the three
government.
branches of government which is enshrined in the Constitution.

It is more in keeping with the co-equal nature of the three governmental


In view of the foregoing, I vote for the proposition that the Council
branches to assign the same weight to considerations that any of its
should adopt the rule of single representation of Congress in the JBC in
representatives may have regarding aspiring nominees to the judiciary.
order to respect and give the right meaning to the above-quoted
The representatives of the Senate and the House of Representatives act
provision of the Constitution. (Emphases and underscoring supplied)
as such for one branch and should not have any more quantitative
influence as the other branches in the exercise of prerogatives evenly
On March 14, 2007, then Associate Justice Leonardo A. Quisumbing, bestowed upon the three. Sound reason and principle of equality among
also a JBC Consultant, submitted to the Chief Justice and ex-officio JBC the three branches support this conclusion. [Emphases and
Chairman his opinion,29 which reads: underscoring supplied]

8. Two things can be gleaned from the excerpts and citations above: the The argument that a senator cannot represent a member of the House of
creation of the JBC is intended to curtail the influence of politics in Representatives in the JBC and vice-versa is, thus, misplaced. In the JBC,
Congress in the appointment of judges, and the understanding is that any member of Congress, whether from the Senate or the House of
seven (7) persons will compose the JBC. As such, the interpretation of Representatives, is constitutionally empowered to represent the entire
two votes for Congress runs counter to the intendment of the framers. Congress. It may be a constricted constitutional authority, but it is not
Such interpretation actually gives Congress more influence in the an absurdity.
appointment of judges. Also, two votes for Congress would increase the
number of JBC members to eight, which could lead to voting deadlock
From this score stems the conclusion that the lone representative of
by reason of even-numbered membership, and a clear violation of 7
Congress is entitled to one full vote. This pronouncement effectively
enumerated members in the Constitution. (Emphases and underscoring
disallows the scheme of splitting the said vote into half (1/2), between
supplied)
two representatives of Congress. Not only can this unsanctioned
practice cause disorder in the voting process, it is clearly against the
In an undated position paper,30 then Secretary of Justice Agnes VST essence of what the Constitution authorized. After all, basic and
Devanadera opined: 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
As can be gleaned from the above constitutional provision, the JBC is two or more is clearly a constitutional circumvention that cannot be
composed of seven (7) representatives coming from different sectors. countenanced by the Court. Succinctly put, when the Constitution
From the enumeration it is patent that each category of members envisioned one member of Congress sitting in the JBC, it is sensible to
pertained to a single individual only. Thus, while we do not lose sight presume that this representation carries with him one full vote.
of the bicameral nature of our legislative department, it is beyond
dispute that Art. VIII, Section 8 (1) of the 1987 Constitution is explicit It is also an error for respondents to argue that the President, in effect,
and specific that "Congress" shall have only "xxx a representative." Thus, has more influence over the JBC simply because all of the regular
two (2) representatives from Congress would increase the number of members of the JBC are his appointees. The principle of checks and
JBC members to eight (8), a number beyond what the Constitution has balances is still safeguarded because the appointment of all the regular
contemplated. (Emphases and underscoring supplied) 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 no matter how ideal or reasonable the proposed solution may sound. To
JBC should be accepted, simply because it was only questioned for the the exercise of this intrusion, the Court declines.
first time through the present action, deserves scant consideration. Well-
settled is the rule that acts done in violation of the Constitution no WHEREFORE, the Motion for Reconsideration filed by respondents is
matter how frequent, usual or notorious cannot develop or gain
hereby DENIED.
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. 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.
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 SO ORDERED.
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

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