DUMLAO vs.
COMELEC necessity that the constiutional question be passed upon in order to decide the case
MELENCIO-HERRERA, J:
This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order
filed by petitioners, in their own behalf and all others allegedly similarly situated,
seeking to enjoin respondent Commission on Elections (COMELEC) from
implementing certain provisions of Batas Pambansa Big. 51, 52, and 53 for being
unconstitutional.
The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva
Vizcaya, who has filed his certificate of candidacy for said position of Governor in the
forthcoming elections of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a
qualified voter and a member of the Bar who, as such, has taken his oath to support
the Constitution and obey the laws of the land. Petitioner, Alfredo Salapantan, Jr., is
also a taxpayer, a qualified voter, and a resident of San Miguel, Iloilo.
Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas
Pambansa Blg. 52 as discriminatory and contrary to the equal protection and due
process guarantees of the Constitution. Said Section 4 provides:
Sec. 4. Special Disqualification in addition to violation of section 10 of Art. XI I-C of
the Constitution and disqualification mentioned in existing laws, which are hereby
declared as disqualification for any of the elective officials enumerated in section 1
hereof.
Any retired elective provincial city or municipal official who has received payment of
the retirement benefits to which he is entitled under the law, and who shall have
been 6,5 years of age at the commencement of the term of office to which he seeks
to be elected shall not be qualified to run for the same elective local office from which
he has retired (Emphasis supplied)
Petitioner Dumlao alleges that the aforecited provision is directed insidiously against
him, and that the classification provided therein is based on "purely arbitrary grounds
and, therefore, class legislation."
For their part, petitioners igot and Salapantan, Jr. assail the validity of the following
statutory provisions:
Sec 7. Terms of Office — Unless sooner removed for cause, all local elective officials
hereinabove mentioned shall hold office for a term of six (6) years, which shall
commence on the first Monday of March 1980.
.... (Batas Pambansa Blg. 51) Sec. 4.
Sec. 4. ...
Any person who has committed any act of disloyalty to the State, including acts
amounting to subversion, insurrection, rebellion or other similar crimes, shall not be
qualified to be a candidate for any of the offices covered by this Act, or to participate
in any partisan political activity therein:
provided that a judgment of conviction for any of the aforementioned crimes shall be
conclusive evidence of such fact and
the filing of charges for the commission of such crimes before a civil court or military
tribunal after preliminary investigation shall be prima fascie evidence of such fact.
... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied).
Section 1. Election of certain Local Officials — ... The election shall be held on
January 30, 1980. (Batas Pambansa, Blg. 52)
Section 6. Election and Campaign Period — The election period shall be fixed by the
Commission on Elections in accordance with Section 6, Art. XII-C of the Constitution.
The period of campaign shall commence on December 29, 1979 and terminate on
January 28, 1980. (ibid.)
In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also
question the accreditation of some political parties by respondent COMELEC, as
authorized by Batas Pambansa Blg. 53, on the ground that it is contrary to section
9(1)Art. XIIC of the Constitution, which provides that a "bona fide candidate for any
public office shall be it. from any form of harassment and discrimination. "The
question of accreditation will not be taken up in this case but in that of Bacalso, et
als. vs. COMELEC et als. No. L-52232) where the issue has been squarely raised,
Petitioners then pray that the statutory provisions they have challenged be declared
null and void for being violative of the Constitution.
I . The procedural Aspect
At the outset, it should be stated that this Petition suffers from basic procedural
infirmities, hence, traditionally unacceptable for judicial resolution. For one, there is a
misjoinder of parties and actions. Petitioner Dumlao's interest is alien to that of
petitioners Igot and Salapantan Petitioner Dumlao does not join petitioners Igot and
Salapantan in the burden of their complaint, nor do the latter join Dumlao in his. The
respectively contest completely different statutory provisions. Petitioner Dumlao has
joined this suit in his individual capacity as a candidate. The action of petitioners Igot
and Salapantan is more in the nature of a taxpayer's suit. Although petitioners plead
nine constraints as the reason of their joint Petition, it would have required only a
modicum more of effort tor petitioner Dumlao, on one hand said petitioners lgot and
Salapantan, on the other, to have filed separate suits, in the interest of orderly
procedure.
For another, there are standards that have to be followed inthe exercise of the
function of judicial review, namely (1) the existence of an appropriate case:, (2) an
interest personal and substantial by the party raising the constitutional question: (3)
the plea that the function be exercised at the earliest opportunity and (4) the
(People vs. Vera 65 Phil. 56 [1937]).
It may be conceded that the third requisite has been complied with, which is, that the
parties have raised the issue of constitutionality early enough in their pleadings.
This Petition, however, has fallen far short of the other three criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is limited to the determination of actual
cases and controversies.
Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of
Batas Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection
clause guaranteed by the Constitution, and seeks to prohibit respondent COMELEC
from implementing said provision. Yet, Dumlao has not been adversely affected by
the application of that provision. No petition seeking Dumlao's disqualification has
been filed before the COMELEC. There is no ruling of that constitutional body on the
matter, which this Court is being asked to review on Certiorari. His is a question
posed in the abstract, a hypothetical issue, and in effect, a petition for an advisory
opinion from this Court to be rendered without the benefit of a detailed factual record
Petitioner Dumlao's case is clearly within the primary jurisdiction (see concurring
Opinion of now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96
[1978]) of respondent COMELEC as provided for in section 2, Art. XII-C, for the
Constitution the pertinent portion of which reads:
"Section 2. The Commission on Elections shall have the following power and
functions:
1) xxx
2) Be the sole judge of all contests relating to the elections, returns and qualifications
of all members of the National Assembly and elective provincial and city officials.
(Emphasis supplied)
The aforequoted provision must also be related to section 11 of Art. XII-C, which
provides:
Section 11. Any decision, order, or ruling of the Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty days from his receipt
of a copy thereof.
B. Proper party.
The long-standing rule has been that "the person who impugns the validity of a
statute must have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement" (People vs.
Vera, supra).
In the case of petitioners Igot and Salapantan, it was only during the hearing, not in
their Petition, that Igot is said to be a candidate for Councilor. Even then, it cannot be
denied that neither one has been convicted nor charged with acts of disloyalty to the
State, nor disqualified from being candidates for local elective positions. Neither one
of them has been calle ed to have been adversely affected by the operation of the
statutory provisions they assail as unconstitutional Theirs is a generated grievance.
They have no personal nor substantial interest at stake. In the absence of any litigate
interest, they can claim no locus standi in seeking judicial redress.
It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's
suit, and that the rule enunciated in People vs. Vera, above stated, has been relaxed
in Pascual vs. The Secretary of Public Works (110 Phil. 331 [1960], thus:
... it is well settled that the validity of a statute may be contested only by one who will
sustain a direct injury in consequence of its enforcement. Yet, there are many
decisions nullifying at the instance of taxpayers, laws providing for the disbursement
of public funds, upon the theory that "the expenditure of public funds, by an officer of
the State for the purpose of administering an unconstitutional act constitutes a
misapplication of such funds," which may be enjoined at the request of a taxpayer.
In the same vein, it has been held:
In the determination of the degree of interest essential to give the requisite standing
to attack the constitutionality of a statute, the general rule is that not only persons
individually affected, but also taxpayers have sufficient interest in preventing the
illegal expenditure of moneys raised by taxation and they may, therefore, question
the constitutionality of statutes requiring expenditure of public moneys. (Philippine
Constitution Association, Inc., et als., vs. Gimenez, et als., 15 SCRA 479 [1965]).
However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg.
51, and sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of
public funds. While, concededly, the elections to be held involve the expenditure of
public moneys, nowhere in their Petition do said petitioners allege that their tax
money is "being extracted and spent in violation of specific constitutional protections
against abuses of legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that
there is a misapplication of such funds by respondent COMELEC (see Pascual vs.
Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being
deflected to any improper purpose. Neither do petitioners seek to restrain respondent
from wasting public funds through the enforcement of an invalid or unconstitutional
law. (Philippine Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing
Philippine Constitution Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the
institution of a taxpayer's suit, per se is no assurance of judicial review. As held by
this Court in Tan vs. Macapagal (43 SCRA 677 [1972]), speaking through our
present Chief Justice, this Court is vested with discretion as to whether or not a
taxpayer's suit should be entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People vs. Vera, "it is a wellsettled rule that the
constitutionality of an act of the legislature will not be determined by the courts
unless that question is properly raised and presented in appropriate cases and is
necessary to a determination of the case; i.e., the issue of constitutionality must be
the very lis mota presented."
We have already stated that, by the standards set forth in People vs. Vera, the
present is not an "appropriate case" for either petitioner Dumlao or for petitioners Igot
and Salapantan. They are actually without cause of action. It follows that the
necessity for resolving the issue of constitutionality is absent, and procedural
regularity would require that this suit be dismissed.
II. The substantive viewpoint.
We have resolved, however, to rule squarely on two of the challenged provisions, the
Courts not being entirely without discretion in the matter. Thus, adherence to the
strict procedural standard was relaxed in Tinio vs. Mina (26 SCRA 512 [1968]); Edu
vs. Ericta (35 SCRA 481 [1970]); and in Gonzalez vs. Comelec (27 SCRA 835
[1969]), the Opinion in the Tinio and Gonzalez cases having been penned by our
present Chief Justice. The reasons which have impelled us are the paramount public
interest involved and the proximity of the elections which will be held only a few days
hence.
Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against
him personally is belied by the fact that several petitions for the disqualification of
other candidates for local positions based on the challenged provision have already
been filed with the COMELEC (as listed in p. 15, respondent's Comment). This
tellingly overthrows Dumlao's contention of intentional or purposeful discrimination.
The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of equal
protection is neither well taken. The constitutional guarantee of equal protection of
the laws is subject to rational classification. If the groupings are based on reasonable
and real differentiations, one class can be treated and regulated differently from
another class. For purposes of public service, employees 65 years of age, have been
validly classified differently from younger employees. Employees attaining that age
are subject to compulsory retirement, while those of younger ages are not so
compulsorily retirable.
In respect of election to provincial, city, or municipal positions, to require that
candidates should not be more than 65 years of age at the time they assume office,
if applicable to everyone, might or might not be a reasonable classification although,
as the Solicitor General has intimated, a good policy of the law would be to promote
the emergence of younger blood in our political elective echelons. On the other hand,
it might be that persons more than 65 years old may also be good elective local
officials.
Coming now to the case of retirees. Retirement from government service may or
may not be a reasonable disqualification for elective local officials. For one thing,
there can also be retirees from government service at ages, say below 65. It may
neither be reasonable to disqualify retirees, aged 65, for a 65 year old retiree could
be a good local official just like one, aged 65, who is not a retiree.
But, in the case of a 65-year old elective local official, who has retired from a
provincial, city or municipal office, there is reason to disqualify him from running for
the same office from which he had retired, as provided for in the challenged
provision. The need for new blood assumes relevance. The tiredness of the retiree
for government work is present, and what is emphatically significant is that the retired
employee has already declared himself tired and unavailable for the same
government work, but, which, by virtue of a change of mind, he would like to assume
again. It is for this very reason that inequality will neither result from the application of
the challenged provision. Just as that provision does not deny equal protection
neither does it permit of such denial (see People vs. Vera, 65 Phil. 56 [1933]).
Persons similarly situated are sinlilarly treated.
In fine, it bears reiteration that the equal protection clause does not forbid all legal
classification. What is proscribes is a classification which is arbitrary and
unreasonable. That constitutional guarantee is not violated by a reasonable
classification based upon substantial distinctions, where the classification is germane
to the purpose of the law and applies to all Chose belonging to the same class
(Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606
[1966]; Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA
336 [1967]; Inchong etc., et al. vs. Hernandez 101 Phil. 1155 [1957]). The purpose of
the law is to allow the emergence of younger blood in local governments. The
classification in question being pursuant to that purpose, it cannot be considered
invalid "even it at times, it may be susceptible to the objection that it is marred by
theoretical inconsistencies" (Chief Justice Fernando, The Constitution of the
Philippines, 1977 ed., p. 547).
There is an additional consideration. Absent herein is a showing of the clear invalidity
of the questioned provision. Well accepted is the rule that to justify the nullification of
a law, there must be a clear and unequivocal breach of the Constitution, not a
doubtful and equivocal breach. Courts are practically unanimous in the
pronouncement that laws shall not be declared invalid unless the conflict with the
Constitution is clear beyond reasonable doubt (Peralta vs. COMELEC, 82 SCRA 55
[1978], citing Cooper vs. Telfair 4 Dall 14; Dodd, Cases on Constitutional Law, 3rd
ed. 1942, 56). Lastly, it is within the compentence of the legislature to prescribe
qualifications for one who desires to become a candidate for office provided they are
reasonable, as in this case.
In so far as the petition of Igot and Salapantan are concerned, the second paragraph
of section 4 of Batas Pambansa Blg. 52, quoted in full earlier, and which they
challenge, may be divided in two parts. The first provides:
a. judgment of conviction jor any of the aforementioned crimes shall be conclusive
evidence of such fact ...
The supremacy of the Constitution stands out as the cardinal principle. We are
aware of the presumption of validity that attaches to a challenged statute, of the well-
settled principle that "all reasonable doubts should be resolved in favor of
constitutionality," and that Courts will not set aside a statute as constitutionally
defective "except in a clear case." (People vs. Vera, supra). We are constrained to
hold that this is one such clear case.
Explicit is the constitutional provision that, in all criminal prosecutions, the accused
shall be presumed innocent until the contrary is proved, and shall enjoy the right to
be heard by himself and counsel (Article IV, section 19, 1973 Constitution). An
accusation, according to the fundamental law, is not synonymous with guilt. The
challenged proviso contravenes the constitutional presumption of innocence, as a
candidate is disqualified from running for public office on the ground alone that
charges have been filed against him before a civil or military tribunal. It condemns
before one is fully heard. In ultimate effect, except as to the degree of proof, no
distinction is made between a person convicted of acts of dislotalty and one against
whom charges have been filed for such acts, as both of them would be ineligible to
run for public office. A person disqualified to run for public office on the ground that
charges have been filed against him is virtually placed in the same category as a
person already convicted of a crime with the penalty of arresto, which carries with it
the accessory penalty of suspension of the right to hold office during the term of the
sentence (Art. 44, Revised Penal Code).
And although the filing of charges is considered as but prima facie evidence, and
therefore, may be rebutted, yet. there is "clear and present danger" that because of
the proximity of the elections, time constraints will prevent one charged with acts of
disloyalty from offering contrary proof to overcome the prima facie evidence against
him.
Additionally, it is best that evidence pro and con of acts of disloyalty be aired before
the Courts rather than before an administrative body such as the COMELEC. A
highly possible conflict of findings between two government bodies, to the extreme
detriment of a person charged, will thereby be avoided. Furthermore, a
legislative/administrative determination of guilt should not be allowed to be
substituted for a judicial determination.
Being infected with constitutional infirmity, a partial declaration of nullity of only that
objectionable portion is mandated. It is separable from the first portion of the second
paragraph of section 4 of Batas Pambansa Big. 52 which can stand by itself.
WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang 52 is
hereby declared valid. Said paragraph reads:
SEC. 4. Special disqualification. — In addition to violation of Section 10 of Article
XII(C) of the Constitution and disqualifications mentioned in existing laws which are
hereby declared as disqualification for any of the elective officials enumerated in
Section 1 hereof, any retired elective provincial, city or municipal official, who has
received payment of the retirement benefits to which he is entitled under the law and
who shall have been 65 years of age at the commencement of the term of office to
which he seeks to be elected, shall not be qualified to run for the same elective local
office from which he has retired.
2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52
providing that "... the filing of charges for the commission of such crimes before a
civil court or military tribunal after preliminary investigation shall be prima facie
evidence of such fact", is hereby declared null and void, for being violative of the
constitutional presumption of innocence guaranteed to an accused.
SO ORDERED.
QUINTO vs. COMELEC (2009)
NACHURA, J.: 
In our predisposition to discover the original intent of a statute, courts
become the unfeeling pillars of the status quo. Little do we realize that statutes or
even constitutions are bundles of compromises thrown our way by their framers.
Unless we exercise vigilance, the statute may already be out of tune and irrelevant to
our day.[1] It is in this light that we should address the instant case.
 
Before the Court is a petition for prohibition and certiorari, with prayer
for the issuance of a temporary restraining order and a writ of preliminary injunction,
assailing Section 4(a) of Resolution No. 8678 of the Commission on Elections
(COMELEC). In view of pressing contemporary events, the petition begs for
immediate resolution.
 
The Antecedents
 
This controversy actually stems from the law authorizing the
COMELEC to use an automated election system (AES).
 
On December 22, 1997, Congress enacted Republic Act (R.A.) No.
8436, entitled AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS TO
USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL OR
LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL ELECTORAL
EXERCISES, PROVIDING FUNDS THEREFOR AND FOR OTHER PURPOSES.
Section 11 thereof reads:

SEC. 11. Official Ballot.The
Commission shall prescribe the size and form of the
official ballot which shall contain the titles of the
positions to be filled and/or the propositions to be
voted upon in an initiative, referendum or plebiscite.
Under each position, the names of candidates shall
be arranged alphabetically by surname and uniformly
printed using the same type size. A fixed space where
the chairman of the Board of Election inspectors shall
affix his/her signature to authenticate the official ballot
shall be provided.
 
Both sides of the ballots may be used
when necessary.
 
For this purpose, the deadline for
the filing of certificate of candidacy/petition for
registration/manifestation to participate in the
election shall not be later than one hundred
twenty (120) days before the elections: Provided,
That, any elective official, whether national or
local, running for any office other than the one
which he/she is holding in a permanent capacity,
except for president and vice president, shall be
deemed resigned only upon the start of the
campaign period corresponding to the position
for which he/she is running: Provided, further,
That, unlawful acts or omissions applicable to a
candidate shall take effect upon the start of the
aforesaid campaign period: Provided, finally, That,
for purposes of the May 11, 1998 elections, the
deadline for filing of the certificate of candidacy for the
positions of President, Vice President, Senators and
candidates under the Party-List System as well as
petitions for registration and/or manifestation to
participate in the Party-List System shall be on
February 9, 1998 while the deadline for the filing of
certificate of candidacy for other positions shall be on
March 27, 1998.
 
The official ballots shall be printed by
the National Printing Office and/or the Bangko Sentral
ng Pilipinas at the price comparable with that of
private printers under proper security measures which
the Commission shall adopt. The Commission may
contract the services of private printers upon
certification by the National Printing Office/Bangko
Sentral ng Pilipinas that it cannot meet the printing
requirements. Accredited political parties and
deputized citizens' arms of the Commission may
assign watchers in the printing, storage and
distribution of official ballots.
To prevent the use of fake ballots, the
Commission through the Committee shall ensure that
the serial number on the ballot stub shall be printed in
magnetic ink that shall be easily detectable by
inexpensive hardware and shall be impossible to
reproduce on a photocopying machine and that
identification marks, magnetic strips, bar codes and
other technical and security markings, are provided
on the ballot.
 
The official ballots shall be printed and
distributed to each city/municipality at the rate of one
(1) ballot for every registered voter with a provision of
additional four (4) ballots per precinct.[2]
 
 
Almost a decade thereafter, Congress amended the law on January
23, 2007 by enacting R.A. No. 9369, entitled AN ACT AMENDING REPUBLIC ACT
NO. 8436, ENTITLED AN ACT AUTHORIZING THE COMMISSION ON ELECTIONS
TO USE AN AUTOMATED ELECTION SYSTEM IN THE MAY 11, 1998 NATIONAL
OR LOCAL ELECTIONS AND IN SUBSEQUENT NATIONAL AND LOCAL
ELECTORAL EXERCISES, TO ENCOURAGE TRANSPARENCY, CREDIBILITY,
FAIRNESS AND ACCURACY OF ELECTIONS, AMENDING FOR THE PURPOSE
BATAS PAMPANSA BLG. 881, AS AMEMDED, REPUBLIC ACT NO. 7166 AND
OTHER RELATED ELECTION LAWS, PROVIDING FUNDS THEREFOR AND FOR
OTHER PURPOSES. Section 13 of the amendatory law modified Section 11 of R.A.
No. 8436, thus:
SEC. 13. Section 11 of Republic Act
No. 8436 is hereby amended to read as follows:
 
Section 15. Official Ballot.The
Commission shall prescribe the format of the
electronic display and/or the size and form of the
official ballot, which shall contain the titles of the
position to be filled and/or the propositions to be voted
upon in an initiative, referendum or plebiscite. Where
practicable, electronic displays must be constructed to
present the names of all candidates for the same
position in the same page or screen, otherwise, the
electronic displays must be constructed to present the
entire ballot to the voter, in a series of sequential
pages, and to ensure that the voter sees all of the
ballot options on all pages before completing his or
her vote and to allow the voter to review and change
all ballot choices prior to completing and casting his or
her ballot. Under each position to be filled, the names
of candidates shall be arranged alphabetically by
surname and uniformly indicated using the same type
size. The maiden or married name shall be listed in
the official ballot, as preferred by the female
candidate. Under each proposition to be vote upon,
the choices should be uniformly indicated using the
same font and size.
 
A fixed space where the chairman of
the board of election inspectors shall affix his/her
signature to authenticate the official ballot shall be
provided.
 
For this purpose, the Commission
shall set the deadline for the filing of certificate of
candidacy/petition of registration/manifestation to
participate in the election. Any person who files
his certificate of candidacy within this period shall
only be considered as a candidate at the start of
the campaign period for which he filed his
certificate of candidacy: Provided, That, unlawful
acts or omissions applicable to a candidate shall
take effect only upon the start of the aforesaid
campaign period: Provided, finally, That any
person holding a public appointive office or
position, including active members of the armed
forces, and officers and employees in
government-owned or -controlled corporations,
shall be considered ipso facto resigned from
his/her office and must vacate the same at the
start of the day of the filing of his/her certificate of
candidacy.
Political parties may hold political
conventions to nominate their official candidates
within thirty (30) days before the start of the period for
filing a certificate of candidacy.
 
With respect to a paper-based
election system, the official ballots shall be printed by
the National Printing Office and/or the Bangko Sentral
ng Pilipinas at the price comparable with that of
private printers under proper security measures which
the Commission shall adopt. The Commission may
contract the services of private printers upon
certification by the National Printing Office/Bangko
Sentral ng Pilipinas that it cannot meet the printing
requirements. Accredited political parties and
deputized citizens arms of the Commission shall
assign watchers in the printing, storage and
distribution of official ballots.
 
To prevent the use of fake ballots, the
Commission through the Committee shall ensure that
the necessary safeguards, such as, but not limited to,
bar codes, holograms, color shifting ink, microprinting,
are provided on the ballot.
 
The official ballots shall be printed and
distributed to each city/municipality at the rate of one
 ballot for every registered voter with a provision of
additional three ballots per precinct.[3]
 
 
Pursuant to its constitutional mandate to enforce and administer
election laws, COMELEC issued Resolution No. 8678,[4] the Guidelines on the Filing
of Certificates of Candidacy (CoC) and Nomination of Official Candidates of
Registered Political Parties in Connection with the May 10, 2010 National and Local
Elections. Sections 4 and 5 of Resolution No. 8678 provide:
SEC. 4. Effects of Filing Certificates of
Candidacy.a) Any person holding a public appointive
office or position including active members of the
Armed Forces of the Philippines, and other officers
and employees in government-owned or controlled
corporations, shall be considered ipso facto resigned
from his office upon the filing of his certificate of
candidacy.
 
b) Any person holding an elective
office or position shall not be considered resigned
upon the filing of his certificate of candidacy for the
same or any other elective office or position.
SEC. 5. Period for filing Certificate of
Candidacy.The certificate of candidacy shall be filed
on regular days, from November 20 to 30, 2009,
during office hours, except on the last day, which shall
be until midnight.
 
Alarmed that they will be deemed ipso facto resigned from their
offices the moment they file their CoCs, petitioners Eleazar P. Quinto and Gerino A.
Tolentino, Jr., who hold appointive positions in the government and who intend to run
in the coming elections,[5] filed the instant petition for prohibition and certiorari,
seeking the declaration of the afore-quoted Section 4(a) of Resolution No. 8678 as
null and void.
The Petitioners Contention
 
Petitioners contend that the COMELEC gravely abused its discretion
when it issued the assailed Resolution. They aver that the advance filing of CoCs for
the 2010 elections is intended merely for the purpose of early printing of the official
ballots in order to cope with time limitations. Such advance filing does not
automatically make the person who filed the CoC a candidate at the moment of filing.
In fact, the law considers him a candidate only at the start of the campaign period.
Petitioners then assert that this being so, they should not be deemed ipso facto
resigned from their government offices when they file their CoCs, because at such
time they are not yet treated by law as candidates. They should be considered
resigned from their respective offices only at the start of the campaign period when
they are, by law, already considered as candidates.[6]
 
Petitioners also contend that Section 13 of R.A. No. 9369, the basis
of the assailed COMELEC resolution, contains two conflicting provisions. These
must be harmonized or reconciled to give effect to both and to arrive at a declaration
that they are not ipso facto resigned from their positions upon the filing of their CoCs.
[7]
 
Petitioners further posit that the provision considering them as ipso
facto resigned from office upon the filing of their CoCs is discriminatory and violates
the equal protection clause in the Constitution.[8]
 
The Respondents Arguments
On the procedural aspect of the petition, the Office of the Solicitor General (OSG),
representing respondent COMELEC, argues that petitioners have no legal standing
to institute the suit. Petitioners have not yet filed their CoCs, hence, they are not yet
affected by the assailed provision in the COMELEC resolution. The OSG further
claims that the petition is premature or unripe for judicial determination. Petitioners
have admitted that they are merely planning to file their CoCs for the coming 2010
elections. Their interest in the present controversy is thus merely speculative and
contingent upon the filing of the same. The OSG likewise contends that petitioners
availed of the wrong remedy. They are questioning an issuance of the COMELEC
made in the exercise of the latters rule-making power. Certiorari under Rule 65 is
then an improper remedy.[9]
On the substantive aspect, the OSG maintains that the COMELEC did not gravely
abuse its discretion in phrasing Section 4(a) of Resolution No. 8678 for it merely
copied what is in the law. The OSG, however, agrees with petitioners that there is a
conflict in Section 13 of R.A. No. 9369 that should be resolved. According to the
OSG, there seems to be no basis to consider appointive officials as ipso facto
resigned and to require them to vacate their positions on the same day that they file
their CoCs, because they are not yet considered as candidates at that time. Further,
this deemed resigned provision existed in Batas Pambansa Bilang (B.P. Blg.) 881,
and no longer finds a place in our present election laws with the innovations brought
about by the automated system.[10]
Our Ruling
 
I.
 
At first glance, the petition suffers from an incipient procedural defect.
What petitioners assail in their petition is a resolution issued by the COMELEC in the
exercise of its quasi-legislative power. Certiorari under Rule 65, in relation to Rule
64, cannot be availed of, because it is a remedy to question decisions, resolutions
and issuances made in the exercise of a judicial or quasi-judicial function.[11]
Prohibition is also an inappropriate remedy, because what petitioners actually seek
from the Court is a determination of the proper construction of a statute and a
declaration of their rights thereunder. Obviously, their petition is one for declaratory
relief,[12] over which this Court does not exercise original jurisdiction.[13]
However, petitioners raise a challenge on the constitutionality of the
questioned provisions of both the COMELEC resolution and the law. Given this
scenario, the Court may step in and resolve the instant petition.
 
The transcendental nature and paramount importance of the issues
raised and the compelling state interest involved in their early resolutionthe period for
the filing of CoCs for the 2010 elections has already started and hundreds of civil
servants intending to run for elective offices are to lose their employment, thereby
causing imminent and irreparable damage to their means of livelihood and, at the
same time, crippling the governments manpowerfurther dictate that the Court must,
for propriety, if only from a sense of obligation, entertain the petition so as to
expedite the adjudication of all, especially the constitutional, issues.
In any event, the Court has ample authority to set aside errors of
practice or technicalities of procedure and resolve the merits of a case. Repeatedly
stressed in our prior decisions is the principle that the Rules were promulgated to
provide guidelines for the orderly administration of justice, not to shackle the hand
that dispenses it. Otherwise, the courts would be consigned to being mere slaves to
technical rules, deprived of their judicial discretion.[14]
 
II.
 
To put things in their proper perspective, it is imperative that we trace
the brief history of the assailed provision. Section 4(a) of COMELEC Resolution No.
8678 is a reproduction of the second proviso in the third paragraph of Section 13 of
R.A. No. 9369, which for ready reference is quoted as follows:
 
For this purpose, the Commission
shall set the deadline for the filing of certificate of
candidacy/petition for registration/manifestation to
participate in the election. Any person who files his
certificate of candidacy within this period shall only be
considered as a candidate at the start of the
campaign period for which he filed his certificate of
candidacy: Provided, That, unlawful acts or omissions
applicable to a candidate shall take effect only upon
the start of the aforesaid campaign period: Provided,
finally, That any person holding a public
appointive office or position, including active
members of the armed forces, and officers and
employees in government-owned or -controlled
corporations, shall be considered ipso facto
resigned from his/her office and must vacate the
same at the start of the day of the filing of his/her
certificate of candidacy.[15]
 
Notably, this proviso is not present in Section 11 of R.A. No. 8436,
the law amended by R.A. No. 9369. The proviso was lifted from Section 66 of B.P.
Blg. 881 or the Omnibus Election Code (OEC) of the Philippines, which reads:
 Sec. 66. Candidates holding
appointive office or position.Any person holding a
public appointive office or position, including active
members of the Armed Forces of the Philippines, and
officers and employees in government-owned or
controlled corporations, shall be considered ipso facto
resigned from his office upon the filing of his
certificate of candidacy.
 
It may be recalledin inverse chronologythat earlier, Presidential
Decree No. 1296, or the 1978 Election Code, contained a similar provision, thus
 
SECTION 29. Candidates holding
appointive office or position. Every person holding a
public appointive office or position, including active
members of the Armed Forces of the Philippines, and
officers and employees in government-owned or
controlled corporations, shall ipso facto cease in his
office or position on the date he files his certificate of
candidacy. Members of the Cabinet shall continue in
the offices they presently hold notwithstanding the
filing of certificate of candidacy, subject to the
pleasure of the President of the Philippines.
Much earlier, R.A. No. 6388, or the Election Code of 1971, likewise
stated in its Section 23 the following:
 
SECTION 23. Candidates Holding
Appointive Office or Position. Every person holding a
public appointive office or position, including active
members of the Armed Forces of the Philippines and
every officer or employee in government-owned or
controlled corporations, shall ipso facto cease in his
office or position on the date he files his certificate of
candidacy: Provided, That the filing of a certificate of
candidacy shall not affect whatever civil, criminal or
administrative liabilities which he may have incurred.
Going further back in history, R.A. No. 180, or the Revised Election
Code approved on June 21, 1947, also provided that
 
SECTION 26. Automatic cessation of
appointive officers and employees who are
candidates. Every person holding a public appointive
office or position shall ipso facto cease in his office or
position on the date he files his certificate of
candidacy.
During the Commonwealth era, Commonwealth Act (C.A.) No. 725,
entitled AN ACT TO PROVIDE FOR THE NEXT ELECTION FOR PRESIDENT AND
VICE-PRESIDENT OF THE PHILIPPINES, SENATORS AND MEMBERS OF THE
HOUSE OF REPRESENTATIVES, AND APPROPRIATING THE NECESSARY
FUNDS THEREFOR, approved on January 5, 1946, contained, in the last paragraph
of its Section 2, the following:
A person occupying any civil office by appointment in
the government or any of its political subdivisions or
agencies or government-owned or controlled
corporations, whether such office by appointive or
elective, shall be considered to have resigned from
such office from the moment of the filing of such
certificate of candidacy.
 
Significantly, however, C.A. No. 666, entitled AN ACT TO PROVIDE FOR THE
FIRST ELECTION FOR PRESIDENT AND VICE-PRESIDENT OF THE
PHILIPPINES, SENATORS, AND MEMBERS OF THE HOUSE OF
REPRESENTATIVES, UNDER THE CONSTITUTION AND THE AMENDMENTS
THEREOF, enacted without executive approval on June 22, 1941, the precursor of
C.A. No. 725, only provided for automatic resignation of elective, but not appointive,
officials.
 
Nevertheless, C.A. No. 357, or the Election Code approved on
August 22, 1938, had, in its Section 22, the same verbatim provision as Section 26 of
R.A. No. 180.
 
The earliest recorded Philippine law on the subject is Act No. 1582,
or the Election Law enacted by the Philippine Commission in 1907, the last
paragraph of Section 29 of which reads:
 
Sec. 29. Penalties upon officers. x x x.
No public officer shall offer himself as
a candidate for election, nor shall he be eligible during
the time that he holds said public office to election, at
any municipal, provincial or Assembly election, except
for reelection to the position which he may be holding,
and no judge of the Court of First Instance, justice of
the peace, provincial fiscal, or officer or employee of
the Bureau of Constabulary or of the Bureau of
Education shall aid any candidate or influence in any
manner or take any part in any municipal, provincial,
or Assembly election under penalty of being deprived
of his office and being disqualified to hold any public
office whatever for a term of five years: Provided,
however, That the foregoing provisions shall not be
construed to deprive any person otherwise qualified of
the right to vote at any election.
From this brief historical excursion, it may be gleaned that the second
proviso in the third paragraph of Section 13 of R.A. No. 9369that any person holding
a public appointive office or position, including active members of the armed forces,
and officers, and employees in government-owned or controlled corporations, shall
be considered ipso facto resigned from his/her office and must vacate the same at
the start of the day of the filing of his/her certificate of candidacytraces its roots to the
period of the American occupation.
 
In fact, during the deliberations of Senate Bill No. 2231, the bill later
to be consolidated with House Bill No. 5352 and enacted as R.A. No. 9369, Senator
Richard Gordon, the principal author of the bill, acknowledged that the said proviso in
the proposed legislative measure is an old provision which was merely copied from
earlier existing legislation, thus
Senator Osmea. May I just opine here and perhaps
obtain the opinion of the good Sponsor. This reads
like, ANY PERSON HOLDING [means currently] A
PUBLIC APPOINTIVE POSITION SHALL BE
CONSIDERED IPSO FACTO RESIGNED [which
means that the prohibition extends only to appointive
officials] INCLUDING ACTIVE MEMBERS OF THE
ARMED FORCES, OFFICERS AND EMPLOYEES
This is a prohibition, Mr. President. This means if one
is chairman of SSS or PDIC, he is deemed ipso facto
resigned when he files his certificate of candidacy. Is
that the intention?
Senator Gordon. This is really an old provision, Mr.
President.
Senator Osmea. It is in bold letters, so I think it was a
Committee amendment.
Senator Gordon. No, it has always been there.
Senator Osmea. I see.
Senator Gordon. I guess the intention is not to give
them undue advantage, especially certain people.
Senator Osmea. All right.[16]
 
In that Senate deliberation, however, Senator Miriam Defensor-
Santiago expressed her concern over the inclusion of the said provision in the new
law, given that the same would be disadvantageous and unfair to potential
candidates holding appointive positions, while it grants a consequent preferential
treatment to elective officials, thus
 
Senator Santiago. On page 15, line 31, I know that
this is a losing cause, so I make this point more as a
matter of record than of any feasible hope that it can
possibly be either accepted or if we come to a division
of the House, it will be upheld by the majority.
 
 I am referring to page 15, line 21. The proviso begins:
PROVIDED FINALLY, THAT ANY PERSON
HOLDING A PUBLIC APPOINTIVE OFFICESHALL
BE CONSIDERED IPSO FACTO RESIGNED FROM
HIS/HER OFFICE.
The point that I made during the appropriate debate in
the past in this Hall is that there is, for me, no valid
reason for exempting elective officials from this
inhibition or disqualification imposed by the law. If we
are going to consider appointive officers of the
government, including AFP members and officers of
government-owned and controlled corporations, or
any other member of the appointive sector of the civil
service, why should it not apply to the elective sector
for, after all, even senators and congressmen are
members of the civil service as well?
 
Further, it is self-serving for the Senate, or for the
Congress in general, to give an exception to itself
which is not available to other similarly situated
officials of government. Of course, the answer is, the
reason why we are special is that we are elected.
Since we are imposing a disqualification on all other
government officials except ourselves, I think, it is the
better part of delicadeza to inhibit ourselves as well,
so that if we want to stay as senators, we wait until
our term expires. But if we want to run for some other
elective office during our term, then we have to be
considered resigned just like everybody else. That is
my proposed amendment. But if it is unacceptable to
the distinguished Sponsor, because of sensitivity to
the convictions of the rest of our colleagues, I will
understand.
 
Senator Gordon. Mr. President, I think the suggestion
is well-thought of. It is a good policy. However, this is
something that is already in the old law which was
upheld by the Supreme court in a recent case that the
rider was not upheld and that it was valid.[17]
 
The obvious inequality brought about by the provision on automatic
resignation of appointive civil servants must have been the reason why Senator
Recto proposed the inclusion of the following during the period of amendments: ANY
PERSON WHO FILES HIS CERTIFICATE OF CANDIDACY WITHIN THIS PERIOD
SHALL ONLY BE CONSIDERED AS A CANDIDATE AT THE START OF THE
CAMPAIGN PERIOD FOR WHICH HE FILED HIS COC.[18] The said proviso seems
to mitigate the situation of disadvantage afflicting appointive officials by considering
persons who filed their CoCs as candidates only at the start of the campaign period,
thereby, conveying the tacit intent that persons holding appointive positions will only
be considered as resigned at the start of the campaign period when they are already
treated by law as candidates.
Parenthetically, it may be remembered that Section 67 of the OEC
and Section 11 of R.A. No. 8436 contained a similar provision on automatic
resignation of elective officials upon the filing of their CoCs for any office other than
that which they hold in a permanent capacity or for President or Vice-President.
However, with the enactment of R.A. No. 9006, or the Fair Election Act, [19] in 2001,
this provision was repealed by Section 14[20] of the said act. There was, thus,
created a situation of obvious discrimination against appointive officials who were
deemed ipso facto resigned from their offices upon the filing of their CoCs, while
elective officials were not.
This situation was incidentally addressed by the Court in Farias v.
The Executive Secretary[21] when it ruled that
Section 14 of Rep. Act No. 9006
Is Not Violative of the Equal
Protection Clause of the Constitution
The petitioners contention, that the
repeal of Section 67 of the Omnibus Election Code
pertaining to elective officials gives undue benefit to
such officials as against the appointive ones and
violates the equal protection clause of the
constitution, is tenuous.
The equal protection of the law clause
in the Constitution is not absolute, but is subject to
reasonable classification. If the groupings are
characterized by substantial distinctions that make
real differences, one class may be treated and
regulated differently from the other. The Court has
explained the nature of the equal protection
guarantee in this manner:
The equal protection of the
law clause is against undue favor
and individual or class privilege, as
well as hostile discrimination or the
oppression of inequality. It is not
intended to prohibit legislation which
is limited either in the object to
which it is directed or by territory
within which it is to operate. It does
not demand absolute equality
among residents; it merely requires
that all persons shall be treated
alike, under like circumstances and
conditions both as to privileges
conferred and liabilities enforced.
The equal protection clause is not
infringed by legislation which applies
only to those persons falling within a
specified class, if it applies alike to
all persons within such class, and
reasonable grounds exist for making
a distinction between those who fall
within such class and those who do
not.
 
Substantial distinctions clearly exist
between elective officials and appointive officials. The
former occupy their office by virtue of the mandate of
the electorate. They are elected to an office for a
definite term and may be removed therefrom only
upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of their
designation thereto by an appointing authority. Some
appointive officials hold their office in a permanent
capacity and are entitled to security of tenure while
others serve at the pleasure of the appointing
authority.
Another substantial distinction
between the two sets of officials is that under Section
55, Chapter 8, Title I, Subsection A. Civil Service
Commission, Book V of the Administrative Code of
1987 (Executive Order No. 292), appointive officials,
as officers and employees in the civil service, are
strictly prohibited from engaging in any partisan
political activity or take part in any election except to
vote. Under the same provision, elective officials, or
officers or employees holding political offices, are
obviously expressly allowed to take part in political
and electoral activities.
 
By repealing Section 67 but retaining
Section 66 of the Omnibus Election Code, the
legislators deemed it proper to treat these two classes
of officials differently with respect to the effect on their
tenure in the office of the filing of the certificates of
candidacy for any position other than those occupied
by them. Again, it is not within the power of the Court
to pass upon or look into the wisdom of this
classification.
Since the classification justifying
Section 14 of Rep. Act No. 9006, i.e., elected officials
vis-a-vis appointive officials, is anchored upon
material and significant distinctions and all the
persons belonging under the same classification are
similarly treated, the equal protection clause of the
Constitution is, thus, not infringed.[22]
 
However, it must be remembered that the Court, in Farias, was
intently focused on the main issue of whether the repealing clause in the Fair
Election Act was a constitutionally proscribed rider, in that it unwittingly failed to
ascertain with stricter scrutiny the impact of the retention of the provision on
automatic resignation of persons holding appointive positions (Section 66) in the
OEC, vis--vis the equal protection clause. Moreover, the Courts vision in Farias was
shrouded by the fact that petitioners therein, Farias et al., never posed a direct
challenge to the constitutionality of Section 66 of the OEC. Farias et al. rather merely
questioned, on constitutional grounds, the repealing clause, or Section 14 of the Fair
Election Act. The Courts afore-quoted declaration in Farias may then very well be
considered as an obiter dictum.
 
III.
 
The instant case presents a rare opportunity for the Court, in view of
the constitutional challenge advanced by petitioners, once and for all, to settle the
issue of whether the second proviso in the third paragraph of Section 13 of R.A. No.
9369, a reproduction of Section 66 of the OEC, which, as shown above, was based
on provisions dating back to the American occupation, is violative of the equal
protection clause.
 
But before delving into the constitutional issue, we shall first address
the issues on legal standing and on the existence of an actual controversy.
 
Central to the determination of locus standi is the question of whether
a party has alleged such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon
which the court so largely depends for illumination of difficult constitutional questions.
[23] In this case, petitioners allege that they will be directly affected by COMELEC
Resolution No. 8678 for they intend, and they all have the qualifications, to run in the
2010 elections. The OSG, for its part, contends that since petitioners have not yet
filed their CoCs, they are not yet candidates; hence, they are not yet directly affected
by the assailed provision in the COMELEC resolution.
The Court, nevertheless, finds that, while petitioners are not yet
candidates, they have the standing to raise the constitutional challenge, simply
because they are qualified voters. A restriction on candidacy, such as the challenged
measure herein, affects the rights of voters to choose their public officials. The rights
of voters and the rights of candidates do not lend themselves to neat separation;
laws that affect candidates always have at least some theoretical, correlative effect
on voters.[24] The Court believes that both candidates and voters may challenge, on
grounds of equal protection, the assailed measure because of its impact on voting
rights.[25]
 
In any event, in recent cases, this Court has relaxed the stringent
direct injury test and has observed a liberal policy allowing ordinary citizens,
members of Congress, and civil organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and rulings.[26]
 
We have also stressed in our prior decisions that the exercise by this
Court of judicial power is limited to the determination and resolution of actual cases
and controversies.[27] The Court, in this case, finds that an actual case or
controversy exists between the petitioners and the COMELEC, the body charged
with the enforcement and administration of all election laws. Petitioners have alleged
in a precise manner that they would engage in the very acts that would trigger the
enforcement of the provisionthey would file their CoCs and run in the 2010 elections.
Given that the assailed provision provides for ipso facto resignation upon the filing of
the CoC, it cannot be said that it presents only a speculative or hypothetical obstacle
to petitioners candidacy.[28]
IV.
 
Having hurdled what the OSG posed as obstacles to judicial review,
the Court now delves into the constitutional challenge.
 
It is noteworthy to point out that the right to run for public office
touches on two fundamental freedoms, those of expression and of association. This
premise is best explained in Mancuso v. Taft,[29] viz.:
 
Freedom of expression guarantees to
the individual the opportunity to write a letter to the
local newspaper, speak out in a public park, distribute
handbills advocating radical reform, or picket an
official building to seek redress of grievances. All of
these activities are protected by the First Amendment
if done in a manner consistent with a narrowly defined
concept of public order and safety. The choice of
means will likely depend on the amount of time and
energy the individual wishes to expend and on his
perception as to the most effective method of
projecting his message to the public. But interest and
commitment are evolving phenomena. What is an
effective means for protest at one point in time may
not seem so effective at a later date. The dilettante
who participates in a picket line may decide to devote
additional time and resources to his expressive
activity. As his commitment increases, the means of
effective expression changes, but the expressive
quality remains constant. He may decide to lead the
picket line, or to publish the newspaper. At one point
in time he may decide that the most effective way to
give expression to his views and to get the attention
of an appropriate audience is to become a candidate
for public office-means generally considered among
the most appropriate for those desiring to effect
change in our governmental systems. He may seek to
become a candidate by filing in a general election as
an independent or by seeking the nomination of a
political party. And in the latter instance, the
individual's expressive activity has two dimensions:
besides urging that his views be the views of the
elected public official, he is also attempting to become
a spokesman for a political party whose substantive
program extends beyond the particular office in
question. But Cranston has said that a certain type of
its citizenry, the public employee, may not become a
candidate and may not engage in any campaign
activity that promotes himself as a candidate for
public office. Thus the city has stifled what may be the
most important expression an individual can summon,
namely that which he would be willing to effectuate,
by means of concrete public action, were he to be
selected by the voters.
It is impossible to ignore the additional
fact that the right to run for office also affects the
freedom to associate. In Williams v. Rhodes, supra,
the Court used strict review to invalidate an Ohio
election system that made it virtually impossible for
third parties to secure a place on the ballot. The Court
found that the First Amendment protected the
freedom to associate by forming and promoting a
political party and that that freedom was infringed
when the state effectively denied a party access to its
electoral machinery. The Cranston charter provision
before us also affects associational rights, albeit in a
slightly different way. An individual may decide to join
or participate in an organization or political party that
shares his beliefs. He may even form a new group to
forward his ideas. And at some juncture his
supporters and fellow party members may decide that
he is the ideal person to carry the group's standard
into the electoral fray. To thus restrict the options
available to political organization as the Cranston
charter provision has done is to limit the effectiveness
of association; and the freedom to associate is
intimately related with the concept of making
expression effective. Party access to the ballot
becomes less meaningful if some of those selected by
party machinery to carry the party's programs to the
people are precluded from doing so because those
nominees are civil servants.
Whether the right to run for office is
looked at from the point of view of individual
expression or associational effectiveness, wide
opportunities exist for the individual who seeks public
office. The fact of candidacy alone may open
previously closed doors of the media. The candidate
may be invited to discuss his views on radio talk
shows; he may be able to secure equal time on
television to elaborate his campaign program; the
newspapers may cover his candidacy; he may be
invited to debate before various groups that had
theretofore never heard of him or his views. In short,
the fact of candidacy opens up a variety of
communicative possibilities that are not available to
even the most diligent of picketers or the most loyal of
party followers. A view today, that running for public
office is not an interest protected by the First
Amendment, seems to us an outlook stemming from
an earlier era when public office was the preserve of
the professional and the wealthy. Consequently we
hold that candidacy is both a protected First
Amendment right and a fundamental interest. Hence
any legislative classification that significantly burdens
that interest must be subjected to strict equal
protection review.[30]

 
Here, petitioners interest in running for public office, an interest protected by
Sections 4 and 8 of Article III of the Constitution, is breached by the proviso in
Section 13 of R.A. No. 9369. It is now the opportune time for the Court to strike down
the said proviso for being violative of the equal protection clause and for being
overbroad.
 
In considering persons holding appointive positions as ipso facto resigned from their
posts upon the filing of their CoCs, but not considering as resigned all other civil
servants, specifically the elective ones, the law unduly discriminates against the first
class. The fact alone that there is substantial distinction between those who hold
appointive positions and those occupying elective posts, does not justify such
differential treatment.
In order that there can be valid classification so that a discriminatory governmental
act may pass the constitutional norm of equal protection, it is necessary that the four
(4) requisites of valid classification be complied with, namely:
(1)  It must be based upon substantial distinctions;
(2)  It must be germane to the purposes of the law;
(3)  It must not be limited to existing conditions only; and
(4)  It must apply equally to all members of the class.
The first requirement means that there must be real and substantial
differences between the classes treated differently. As illustrated in the fairly recent
Mirasol v. Department of Public Works and Highways,[31] a real and substantial
distinction exists between a motorcycle and other motor vehicles sufficient to justify
its classification among those prohibited from plying the toll ways. Not all motorized
vehicles are created equala two-wheeled vehicle is less stable and more easily
overturned than a four-wheel vehicle.
 
Nevertheless, the classification would still be invalid if it does not
comply with the second requirementif it is not germane to the purpose of the law.
Justice Isagani A. Cruz (Ret.), in his treatise on constitutional law, explains,
 
The classification, even if based on substantial
distinctions, will still be invalid if it is not germane to
the purpose of the law. To illustrate, the accepted
difference in physical stamina between men and
women will justify the prohibition of the latter from
employment as miners or stevedores or in other
heavy and strenuous work. On the basis of this same
classification, however, the law cannot provide for a
lower passing average for women in the bar
examinations because physical strength is not the test
for admission to the legal profession. Imported cars
may be taxed at a higher rate than locally assembled
automobiles for the protection of the national
economy, but their difference in origin is no
justification for treating them differently when it comes
to punishing violations of traffic regulations. The
source of the vehicle has no relation to the
observance of these rules.[32]
 
The third requirement means that the classification must be enforced not only for the
present but as long as the problem sought to be corrected continues to exist. And,
under the last requirement, the classification would be regarded as invalid if all the
members of the class are not treated similarly, both as to rights conferred and
obligations imposed.[33]
Applying the four requisites to the instant case, the Court finds that the differential
treatment of persons holding appointive offices as opposed to those holding elective
ones is not germane to the purposes of the law.
 
The obvious reason for the challenged provision is to prevent the use of a
governmental position to promote ones candidacy, or even to wield a dangerous or
coercive influence on the electorate. The measure is further aimed at promoting the
efficiency, integrity, and discipline of the public service by eliminating the danger that
the discharge of official duty would be motivated by political considerations rather
than the welfare of the public.[34] The restriction is also justified by the proposition
that the entry of civil servants to the electoral arena, while still in office, could result in
neglect or inefficiency in the performance of duty because they would be attending to
their campaign rather than to their office work.
If we accept these as the underlying objectives of the law, then the assailed provision
cannot be constitutionally rescued on the ground of valid classification. Glaringly
absent is the requisite that the classification must be germane to the purposes of the
law. Indeed, whether one holds an appointive office or an elective one, the evils
sought to be prevented by the measure remain. For example, the Executive
Secretary, or any Member of the Cabinet for that matter, could wield the same
influence as the Vice-President who at the same time is appointed to a Cabinet post
(in the recent past, elected Vice-Presidents were appointed to take charge of
national housing, social welfare development, interior and local government, and
foreign affairs). With the fact that they both head executive offices, there is no valid
justification to treat them differently when both file their CoCs for the elections. Under
the present state of our law, the Vice-President, in the example, running this time, let
us say, for President, retains his position during the entire election period and can
still use the resources of his office to support his campaign.
As to the danger of neglect, inefficiency or partisanship in the
discharge of the functions of his appointive office, the inverse could be just as true
and compelling. The public officer who files his certificate of candidacy would be
driven by a greater impetus for excellent performance to show his fitness for the
position aspired for.
Mancuso v. Taft,[35] cited above, explains that the measure on automatic
resignation, which restricts the rights of civil servants to run for officea right
inextricably linked to their freedom of expression and association, is not reasonably
necessary to the satisfaction of the state interest. Thus, in striking down a similar
measure in the United States, Mancuso succinctly declares
In proceeding to the second stage of
active equal protection review, however, we do see
some contemporary relevance of the Mitchell
decision. National Ass'n of Letter Carriers, supra. In
order for the Cranston charter provision to withstand
strict scrutiny, the city must show that the exclusion of
all government employees from candidacy is
necessary to achieve a compelling state interest. And,
as stated in Mitchell and other cases dealing with
similar statutes, see Wisconsin State Employees,
supra; Broadrick, supra, government at all levels has
a substantial interest in protecting the integrity of its
civil service. It is obviously conceivable that the
impartial character of the civil service would be
seriously jeopardized if people in positions of authority
used their discretion to forward their electoral
ambitions rather than the public welfare. Similarly if a
public employee pressured other fellow employees to
engage in corrupt practices in return for promises of
post-election reward, or if an employee invoked the
power of the office he was seeking to extract special
favors from his superiors, the civil service would be
done irreparable injury. Conversely, members of the
public, fellow-employees, or supervisors might
themselves request favors from the candidate or
might improperly adjust their own official behavior
towards him. Even if none of these abuses actually
materialize, the possibility of their occurrence might
seriously erode the public's confidence in its public
employees. For the reputation of impartiality is
probably as crucial as the impartiality itself; the
knowledge that a clerk in the assessor's office who is
running for the local zoning board has access to
confidential files which could provide pressure points
for furthering his campaign is destructive regardless
of whether the clerk actually takes advantage of his
opportunities. For all of these reasons we find that the
state indeed has a compelling interest in maintaining
the honesty and impartiality of its public work force.
We do not, however, consider the
exclusionary measure taken by Cranston-a flat
prohibition on office-seeking of all kinds by all kinds of
public employees-as even reasonably necessary to
satisfaction of this state interest. As Justice Marshall
pointed out in Dunn v. Blumstein, [s]tatutes affecting
constitutional rights must be drawn with precision. For
three sets of reasons we conclude that the Cranston
charter provision pursues its objective in a far too
heavy-handed manner and hence must fall under the
equal protection clause. First, we think the nature of
the regulation-a broad prophylactic rule-may be
unnecessary to fulfillment of the city's objective.
Second, even granting some sort of prophylactic rule
may be required, the provision here prohibits
candidacies for all types of public office, including
 many which would pose none of the problems at
which the law is aimed. Third, the provision excludes
the candidacies of all types of public employees,
without any attempt to limit exclusion to those
employees whose positions make them vulnerable to
corruption and conflicts of interest.
 
There is thus no valid justification to treat appointive officials
differently from the elective ones. The classification simply fails to meet the test that it
should be germane to the purposes of the law. The measure encapsulated in the
second proviso of the third paragraph of Section 13 of R.A. No. 9369 and in Section
66 of the OEC violates the equal protection clause.
 
V.
The challenged provision also suffers from the infirmity of being overbroad.
 
First, the provision pertains to all civil servants holding appointive
posts without distinction as to whether they occupy high positions in government or
not. Certainly, a utility worker in the government will also be considered as ipso facto
resigned once he files his CoC for the 2010 elections. This scenario is absurd for,
indeed, it is unimaginable how he can use his position in the government to wield
influence in the political world.
While it may be admitted that most appointive officials who seek
public elective office are those who occupy relatively high positions in government,
laws cannot be legislated for them alone, or with them alone in mind. For the right to
seek public elective office is universal, open and unrestrained, subject only to the
qualification standards prescribed in the Constitution and in the laws. These
qualifications are, as we all know, general and basic so as to allow the widest
participation of the citizenry and to give free rein for the pursuit of ones highest
aspirations to public office. Such is the essence of democracy.
Second, the provision is directed to the activity of seeking any and all
public offices, whether they be partisan or nonpartisan in character, whether they be
in the national, municipal or barangay level. Congress has not shown a compelling
state interest to restrict the fundamental right involved on such a sweeping scale.[36]
 
Specific evils require specific treatments, not through overly broad
measures that unduly restrict guaranteed freedoms of the citizenry. After all,
sovereignty resides in the people, and all governmental power emanates from them.
 
Mancuso v. Taft,[37] on this point, instructs
As to approaches less restrictive than
a prophylactic rule, there exists the device of the
leave of absence. Some system of leaves of absence
would permit the public employee to take time off to
pursue his candidacy while assuring him his old job
should his candidacy be unsuccessful. Moreover, a
leave of absence policy would eliminate many of the
opportunities for engaging in the questionable
practices that the statute is designed to prevent.
While campaigning, the candidate would feel no
conflict between his desire for election and his
publicly entrusted discretion, nor any conflict between
his efforts to persuade the public and his access to
confidential documents. But instead of adopting a
reasonable leave of absence policy, Cranston has
chosen a provision that makes the public employee
cast off the security of hard-won public employment
should he desire to compete for elected office.
 
The city might also promote its
interest in the integrity of the civil service by enforcing,
through dismissal, discipline, or criminal prosecution,
rules or statutes that treat conflict of interests, bribery,
or other forms of official corruption. By thus attacking
the problem directly, instead of using a broad
prophylactic rule, the city could pursue its objective
without unduly burdening the First Amendment rights
of its employees and the voting rights of its citizens.
Last term in Dunn v. Blumstein, the Supreme Court
faced an analogous question when the State of
Tennessee asserted that the interest of ballot box
purity justified its imposition of one year and three
month residency requirements before a citizen could
vote. Justice Marshall stated, inter alia, that
Tennessee had available a number of criminal
statutes that could be used to punish voter fraud
without unnecessary infringement on the newcomer's
right to vote. Similarly, it appears from the record in
this case that the Cranston charter contains some
provisions that might be used against opportunistic
public employees.
Even if some sort of prophylactic rule
is necessary, we cannot say that Cranston has put
much effort into tailoring a narrow provision that
attempts to match the prohibition with the problem.
The charter forbids a Cranston public employee from
running for any office, anywhere. The prohibition is
not limited to the local offices of Cranston, but rather
extends to statewide offices and even to national
offices. It is difficult for us to see that a public
employee running for the United States Congress
poses quite the same threat to the civil service as
would the same employee if he were running for a
local office where the contacts and information
provided by his job related directly to the position he
was seeking, and hence where the potential for
various abuses was greater. Nor does the Cranston
charter except the public employee who works in
Cranston but aspires to office in another local
jurisdiction, most probably his town of residence. Here
again the charter precludes candidacies which can
pose only a remote threat to the civil service. Finally,
the charter does not limit its prohibition to partisan
office-seeking, but sterilizes also those public
employees who would seek nonpartisan elective
office. The statute reviewed in Mitchell was limited to
partisan political activity, and since that time other
courts have found the partisan-nonpartisan distinction
a material one. See Kinnear, supra; Wisconsin State
Employees, supra; Gray v. Toledo, supra. While the
line between nonpartisan and partisan can often be
blurred by systems whose true characters are
disguised by the names given them by their
architects, it seems clear that the concerns of a truly
partisan office and the temptations it fosters are
sufficiently different from those involved in an office
removed from regular party politics to warrant
distinctive treatment in a charter of this sort.
 
The third and last area of excessive
and overinclusive coverage of the Cranston charter
relates not to the type of office sought, but to the type
of employee seeking the office. As Justice Douglas
pointed out in his dissent in Mitchell, 330 U.S. at 120-
126, 67 S.Ct. 556, restrictions on administrative
employees who either participate in decision-making
or at least have some access to information
concerning policy matters are much more justifiable
than restrictions on industrial employees, who, but for
the fact that the government owns the plant they work
in, are, for purposes of access to official information,
identically situated to all other industrial workers.
Thus, a worker in the Philadelphia mint could be
distinguished from a secretary in an office of the
Department of Agriculture; so also could a janitor in
the public schools of Cranston be distinguished from
an assistant comptroller of the same city. A second
line of distinction that focuses on the type of
employee is illustrated by the cases of Kinnear and
Minielly, supra. In both of these cases a civil service
deputy decided to run for the elected office of sheriff.
The courts in both cases felt that the no-candidacy
laws in question were much too broad and indicated
that perhaps the only situation sensitive enough to
justify a flat rule was one in which an inferior in a
public office electorally challenged his immediate
superior. Given all these considerations, we think
Cranston has not given adequate attention to the
problem of narrowing the terms of its charter to deal
with the specific kinds of conflict-of-interest problems
it seeks to avoid.
 
We also do not find convincing the
arguments that after-hours campaigning will drain the
energy of the public employee to the extent that he is
incapable of performing his job effectively and that
inevitable on-the-job campaigning and discussion of
his candidacy will disrupt the work of others. Although
it is indisputable that the city has a compelling interest
in the performance of official work, the exclusion is
 not well-tailored to effectuate that interest.
Presumably the city could fire the individual if he
clearly shirks his employment responsibilities or
disrupts the work of others. Also, the efficiency
rationale common to both arguments is significantly
underinclusive. It applies equally well to a number of
non-political, extracurricular activities that are not
prohibited by the Cranston charter. Finally, the
connection between after-hours campaigning and the
state interest seems tenuous; in many cases a public
employee would be able to campaign aggressively
and still continue to do his job well.[38]
 
Incidentally, Clements v. Fashing[39] sustained as constitutional a
provision on the automatic resignation of District Clerks, County Clerks, County
Judges, County Treasurers, Criminal District Attorneys, County Surveyors,
Inspectors of Hides and Animals, County Commissioners, Justices of the Peace,
Sheriffs, Assessors and Collectors of Taxes, District Attorneys, County Attorneys,
Public Weighers, and Constables if they announce their candidacy or if they become
candidates in any general, special or primary election.
In Clements, it may be readily observed that a provision treating
differently particular officials, as distinguished from all others, under a classification
that is germane to the purposes of the law, merits the stamp of approval from
American courts. Not, however, a general and sweeping provision, and more so one
violative of the second requisite for a valid classification, which is on its face
unconstitutional.
On a final note, it may not be amiss to state that the Americans, from
whom we copied the provision in question, had already stricken down a similar
measure for being unconstitutional. It is high-time that we, too, should follow suit and,
thus, uphold fundamental liberties over age-old, but barren, restrictions to such
freedoms.
WHEREFORE, premises considered, the petition is GRANTED. The
second proviso in the third paragraph of Section 13 of Republic Act No. 9369,
Section 66 of the Omnibus Election Code and Section 4(a) of COMELEC Resolution
No. 8678 are declared as UNCONSTITUTIONAL.
SO ORDERED.
QUINTO vs. COMELEC (2010)
PUNO, C.J.:
Upon a careful review of the case at bar, this Court resolves to grant the respondent
Commission on Elections (COMELEC) motion for reconsideration, and the movants-
intervenors motions for reconsideration-in-intervention, of this Courts December 1,
2009 Decision (Decision).[1]
 
The assailed Decision granted the Petition for Certiorari and
Prohibition filed by Eleazar P. Quinto and Gerino A. Tolentino, Jr. and declared as
unconstitutional the second proviso in the third paragraph of Section 13 of Republic
Act No. 9369,[2] Section 66 of the Omnibus Election Code[3] and Section 4(a) of
COMELEC Resolution No. 8678,[4] mainly on the ground that they violate the equal
protection clause of the Constitution and suffer from overbreadth. The assailed
Decision thus paved the way for public appointive officials to continue discharging
the powers, prerogatives and functions of their office notwithstanding their entry into
the political arena.
In support of their respective motions for reconsideration, respondent
COMELEC and movants-intervenors submit the following arguments:
(1) The assailed Decision is contrary to, and/or violative of, the
constitutional proscription against the participation of public
appointive officials and members of the military in partisan
political activity;
(2) The assailed provisions do not violate the equal protection clause
when they accord differential treatment to elective and
appointive officials, because such differential treatment rests
on material and substantial distinctions and is germane to the
purposes of the law;
(3) The assailed provisions do not suffer from the infirmity of
overbreadth; and
(4) There is a compelling need to reverse the assailed Decision, as
public safety and interest demand such reversal.
 
We find the foregoing arguments meritorious.
I.
Procedural Issues
First, we shall resolve the procedural issues on the timeliness of the
COMELECs motion for reconsideration which was filed on December 15, 2009, as
well as the propriety of the motions for reconsideration-in-intervention which were
filed after the Court had rendered its December 1, 2009 Decision.
 
i.                   Timeliness of COMELECs Motion for Reconsideration
 
Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court,[5] in relation to Section
1, Rule 52 of the same rules,[6] COMELEC had a period of fifteen days from receipt
of notice of the assailed Decision within which to move for its reconsideration.
COMELEC received notice of the assailed Decision on December 2, 2009, hence,
had until December 17, 2009 to file a Motion for Reconsideration.
 
The Motion for Reconsideration of COMELEC was timely filed. It was
filed on December 14, 2009. The corresponding Affidavit of Service (in substitution of
the one originally submitted on December 14, 2009) was subsequently filed on
December 17, 2009 still within the reglementary period.
 
ii.     Propriety of the Motions for Reconsideration-in-Intervention
Section 1, Rule 19 of the Rules of Court provides:
 
A person who has legal interest in the matter in
litigation or in the success of either of the parties, or
an interest against both, or is so situated as to be
adversely affected by a distribution or other
disposition of property in the custody of the court or of
an officer thereof may, with leave of court, be allowed
to intervene in the action. The court shall consider
whether or not the intervention will unduly delay or
prejudice the adjudication of the rights of the original
parties, and whether or not the intervenors rights may
be fully protected in a separate proceeding.
Pursuant to the foregoing rule, this Court has held that a motion for
intervention shall be entertained when the following requisites are satisfied: (1) the
would-be intervenor shows that he has a substantial right or interest in the case; and
(2) such right or interest cannot be adequately pursued and protected in another
proceeding.[7]
 
Upon the other hand, Section 2, Rule 19 of the Rules of Court
provides the time within which a motion for intervention may be filed, viz.:
 
SECTION 2.  Time to intervene. The motion for
intervention may be filed at any time before rendition
of judgment by the trial court.  A copy of the pleading-
in-intervention shall be attached to the motion and
served on the original parties.  (italics supplied)
This rule, however, is not inflexible. Interventions have been allowed
even beyond the period prescribed in the Rule, when demanded by the higher
interest of justice.  Interventions have also been granted to afford indispensable
parties, who have not been impleaded, the right to be heard even after a decision
has been rendered by the trial court,[8] when the petition for review of the judgment
has already been submitted for decision before the Supreme Court,[9] and even
where the assailed order has already become final and executory.[10] In Lim v. 
Pacquing,[11] the motion for intervention filed by the Republic of the Philippines was
allowed by this Court to avoid grave injustice and injury and to settle once and for all
the substantive issues raised by the parties.
In fine, the allowance or disallowance of a motion for intervention
rests on the sound discretion of the court[12] after consideration of the appropriate
circumstances.[13] We stress again that Rule 19 of the Rules of Court is a rule of
procedure whose object is to make the powers of the court fully and completely
available for justice.[14] Its purpose is not to hinder or delay, but to facilitate and
promote the administration of justice.[15]
We rule that, with the exception of the IBP Cebu City Chapter, all the
movants-intervenors may properly intervene in the case at bar.
  
First, the movants-intervenors have each sufficiently established a
substantial right or interest in the case.
As a Senator of the Republic, Senator Manuel A. Roxas has a right to
challenge the December 1, 2009 Decision, which nullifies a long established law; as
a voter, he has a right to intervene in a matter that involves the electoral process;
and as a public officer, he has a personal interest in maintaining the trust and
confidence of the public in its system of government.
 
On the other hand, former Senator Franklin M. Drilon and Tom V.
Apacible are candidates in the May 2010 elections running against appointive
officials who, in view of the December 1, 2009 Decision, have not yet resigned from
their posts and are not likely to resign from their posts. They stand to be directly
injured by the assailed Decision, unless it is reversed.
Moreover, the rights or interests of said movants-intervenors cannot
be adequately pursued and protected in another proceeding. Clearly, their rights will
be foreclosed if this Courts Decision attains finality and forms part of the laws of the
land.
With regard to the IBP Cebu City Chapter, it anchors its standing on
the assertion that this case involves the constitutionality of elections laws for this
coming 2010 National Elections, and that there is a need for it to be allowed to
intervene xxx so that the voice of its members in the legal profession would also be
heard before this Highest Tribunal as it resolves issues of transcendental
importance.[16]
 
Prescinding from our rule and ruling case law, we find that the IBP-
Cebu City Chapter has failed to present a specific and substantial interest sufficient
to clothe it with standing to intervene in the case at bar. Its invoked interest is, in
character, too indistinguishable to justify its intervention.
 
We now turn to the substantive issues.
II.
Substantive Issues
The assailed Decision struck down Section 4(a) of Resolution 8678,
the second proviso in the third paragraph of Section 13 of Republic Act (RA) 9369,
and Section 66 of the Omnibus Election Code, on the following grounds:
 
(1) They violate the equal protection clause of the Constitution
because of the differential treatment of persons holding
appointive offices and those holding elective positions;
(2) They are overbroad insofar as they prohibit the candidacy of all
civil servants holding appointive posts: (a) without distinction
as to whether or not they occupy high/influential positions in
the government, and (b) they limit these civil servants activity
regardless of whether they be partisan or nonpartisan in
character, or whether they be in the national, municipal or
barangay level; and
(3) Congress has not shown a compelling state interest to restrict the
fundamental right of these public appointive officials.
 
We grant the motions for reconsideration. We now rule that Section
4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second
proviso in the third paragraph of Section 13 of RA 9369 are not unconstitutional, and
accordingly reverse our December 1, 2009 Decision.
III.
Section 4(a) of COMELEC Resolution 8678 Compliant with Law
Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of
the present state of the law and jurisprudence on the matter, viz.:
Incumbent Appointive Official. - Under Section 13 of RA 9369,
which reiterates Section 66 of the Omnibus Election Code, any
person holding a public appointive office or position, including active
members of the Armed Forces of the Philippines, and officers and
employees in government-owned or -controlled corporations, shall be
considered ipso facto resigned from his office upon the filing of his
certificate of candidacy.
 
Incumbent Elected Official. Upon the other hand, pursuant to
Section 14 of RA 9006 or the Fair Election Act, [17] which repealed
Section 67 of the Omnibus Election Code[18] and rendered
ineffective Section 11 of R.A. 8436 insofar as it considered an elected
official as resigned only upon the start of the campaign period
corresponding to the positions for which they are running,[19] an
elected official is not deemed to have resigned from his office upon
the filing of his certificate of candidacy for the same or any other
elected office or position. In fine, an elected official may run for
another position without forfeiting his seat.
 
These laws and regulations implement Section 2(4), Article IX-B of the 1987
Constitution, which prohibits civil service officers and employees from engaging in
any electioneering or partisan political campaign.
The intention to impose a strict limitation on the participation of civil service officers
and employees in partisan political campaigns is unmistakable. The exchange
between Commissioner Quesada and Commissioner Foz during the deliberations of
the Constitutional Commission is instructive:
MS. QUESADA.
 
xxxx
 
Secondly, I would like to address the issue here as
provided in Section 1 (4), line 12, and I quote: "No
officer or employee in the civil service shall engage,
directly or indirectly, in any partisan political activity."
This is almost the same provision as in the 1973
Constitution. However, we in the government service
have actually experienced how this provision has
been violated by the direct or indirect partisan political
activities of many government officials.
So, is the Committee willing to include certain clauses
that would make this provision more strict, and which
would deter its violation?
MR. FOZ. Madam President, the existing Civil
Service Law and the implementing rules on the
matter are more than exhaustive enough to really
prevent officers and employees in the public service
from engaging in any form of partisan political activity.
But the problem really lies in implementation
because, if the head of a ministry, and even the
superior officers of offices and agencies of
government will themselves violate the constitutional
injunction against partisan political activity, then no
string of words that we may add to what is now here
in this draft will really implement the constitutional
intent against partisan political activity. x x x[20]
(italics supplied)
To emphasize its importance, this constitutional ban on civil service
officers and employees is presently reflected and implemented by a number of
statutes. Section 46(b)(26), Chapter 7 and Section 55, Chapter 8 both of Subtitle A,
Title I, Book V of the Administrative Code of 1987 respectively provide in relevant
part:
 
Section 44. Discipline: General Provisions:
xxxx
(b) The following shall be grounds for disciplinary
action:
xxxx
 
(26) Engaging directly or indirectly in
partisan political activities by one
 holding a non-political office.
 
xxxx
 
Section 55. Political Activity. No officer or employee in
the Civil Service including members of the Armed
Forces, shall engage directly or indirectly in any
partisan political activity or take part in any election
except to vote nor shall he use his official authority or
influence to coerce the political activity of any other
person or body. Nothing herein provided shall be
understood to prevent any officer or employee from
expressing his views on current political problems or
issues, or from mentioning the names of his
candidates for public office whom he supports:
Provided, That public officers and employees holding
political offices may take part in political and electoral
activities but it shall be unlawful for them to solicit
contributions from their subordinates or subject them
to any of the acts involving subordinates prohibited in
the Election Code.
 
Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further
makes intervention by civil service officers and employees in partisan political
activities an election offense, viz.:
 
SECTION 261. Prohibited Acts. The following shall be
guilty of an election offense:
xxxx
 
(i) Intervention of public officers and employees. Any
officer or employee in the civil service, except those
holding political offices; any officer, employee, or
member of the Armed Forces of the Philippines, or
any police force, special forces, home defense forces,
barangay self-defense units and all other para-military
units that now exist or which may hereafter be
organized who, directly or indirectly, intervenes in any
election campaign or engages in any partisan political
activity, except to vote or to preserve public order, if
he is a peace officer.
 
The intent of both Congress and the framers of our Constitution to
limit the participation of civil service officers and employees in partisan political
activities is too plain to be mistaken.
But Section 2(4), Article IX-B of the 1987 Constitution and the
implementing statutes apply only to civil servants holding apolitical offices. Stated
differently, the constitutional ban does not cover elected officials,
notwithstanding the fact that [t]he civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including government-owned or
controlled corporations with original charters.[21] This is because elected public
officials, by the very nature of their office, engage in partisan political activities almost
all year round, even outside of the campaign period.[22] Political partisanship is the
inevitable essence of a political office, elective positions included.[23]
 
The prohibition notwithstanding, civil service officers and employees
are allowed to vote, as well as express their views on political issues, or mention the
names of certain candidates for public office whom they support. This is crystal clear
from the deliberations of the Constitutional Commission, viz.:
MS. AQUINO: Mr. Presiding Officer, my proposed
amendment is on page 2, Section 1, subparagraph 4,
lines 13 and 14. On line 13, between the words "any"
and "partisan," add the phrase ELECTIONEERING
AND OTHER; and on line 14, delete the word
"activity" and in lieu thereof substitute the word
CAMPAIGN.
May I be allowed to explain my proposed
amendment?
 
THE PRESIDING OFFICER (Mr. Treas):
Commissioner Aquino may proceed.
 
MS. AQUINO: The draft as presented by the
Committee deleted the phrase "except to vote" which
was adopted in both the 1935 and 1973 Constitutions.
The phrase "except to vote" was not intended as a
guarantee to the right to vote but as a qualification of
the general prohibition against taking part in elections.
 
Voting is a partisan political activity. Unless it is
explicitly provided for as an exception to this
prohibition, it will amount to disenfranchisement. We
know that suffrage, although plenary, is not an
unconditional right. In other words, the Legislature
can always pass a statute which can withhold from
any class the right to vote in an election, if public
interest so required. I would only like to reinstate the
qualification by specifying the prohibited acts so that
those who may want to vote but who are likewise
prohibited from participating in partisan political
campaigns or electioneering may vote.
 
MR. FOZ: There is really no quarrel over this point,
but please understand that there was no intention on
the part of the Committee to disenfranchise any
government official or employee. The elimination of
the last clause of this provision was precisely
intended to protect the members of the civil service in
the sense that they are not being deprived of the
freedom of expression in a political contest. The last
phrase or clause might have given the impression
that a government employee or worker has no right
whatsoever in an election campaign except to vote,
which is not the case. They are still free to express
their views although the intention is not really to allow
them to take part actively in a political campaign.[24]
 
IV.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and
Section 66 of the Omnibus Election Code Do Not Violate the
Equal Protection Clause
 
We now hold that Section 4(a) of Resolution 8678, Section 66 of the
Omnibus Election Code, and the second proviso in the third paragraph of Section 13
of RA 9369 are not violative of the equal protection clause of the Constitution.
 
i.                   Farias, et al. v. Executive Secretary, et al. is Controlling
In truth, this Court has already ruled squarely on whether these
deemed-resigned provisions challenged in the case at bar violate the equal
protection clause of the Constitution in Farias, et al. v. Executive Secretary, et al.
[25]
 
In Farias, the constitutionality of Section 14 of the Fair Election Act,
in relation to Sections 66 and 67 of the Omnibus Election Code, was assailed on the
ground, among others, that it unduly discriminates against appointive officials. As
Section 14 repealed Section 67 (i.e., the deemed-resigned provision in respect of
elected officials) of the Omnibus Election Code, elected officials are no longer
considered ipso facto resigned from their respective offices upon their filing of
certificates of candidacy. In contrast, since Section 66 was not repealed, the
limitation on appointive officials continues to be operative they are deemed resigned
when they file their certificates of candidacy.
The petitioners in Farias thus brought an equal protection challenge
against Section 14, with the end in view of having the deemed-resigned provisions
apply equally to both elected and appointive officials. We held, however, that the
legal dichotomy created by the Legislature is a reasonable classification, as there are
material and significant distinctions between the two classes of officials.
Consequently, the contention that Section 14 of the Fair Election Act, in relation to
Sections 66 and 67 of the Omnibus Election Code, infringed on the equal protection
clause of the Constitution, failed muster. We ruled:
The petitioners' contention, that the
repeal of Section 67 of the Omnibus Election Code
pertaining to elective officials gives undue benefit to
such officials as against the appointive ones and
violates the equal protection clause of the
 constitution, is tenuous.
 
The equal protection of the law clause
in the Constitution is not absolute, but is subject to
reasonable classification. If the groupings are
characterized by substantial distinctions that make
real differences, one class may be treated and
regulated differently from the other. The Court has
explained the nature of the equal protection
guarantee in this manner:
 
The equal protection of the law clause is
against undue favor and individual or class
privilege, as well as hostile discrimination
or the oppression of inequality. It is not
intended to prohibit legislation which is
limited either in the object to which it is
directed or by territory within which it is to
operate. It does not demand absolute
equality among residents; it merely
requires that all persons shall be treated
alike, under like circumstances and
conditions both as to privileges conferred
and liabilities enforced. The equal
protection clause is not infringed by
legislation which applies only to those
persons falling within a specified class, if it
applies alike to all persons within such
class, and reasonable grounds exist for
making a distinction between those who fall
within such class and those who do not.
Substantial distinctions clearly exist
between elective officials and appointive officials. The
former occupy their office by virtue of the mandate of
the electorate. They are elected to an office for a
definite term and may be removed therefrom only
upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of their
designation thereto by an appointing authority. Some
appointive officials hold their office in a permanent
capacity and are entitled to security of tenure while
others serve at the pleasure of the appointing
authority.
 
Another substantial distinction
between the two sets of officials is that under Section
55, Chapter 8, Title I, Subsection A. Civil Service
Commission, Book V of the Administrative Code of
1987 (Executive Order No. 292), appointive officials,
as officers and employees in the civil service, are
strictly prohibited from engaging in any partisan
political activity or take (sic) part in any election
except to vote. Under the same provision, elective
officials, or officers or employees holding political
offices, are obviously expressly allowed to take part in
political and electoral activities.
 
By repealing Section 67 but retaining
Section 66 of the Omnibus Election Code, the
legislators deemed it proper to treat these two classes
of officials differently with respect to the effect on their
tenure in the office of the filing of the certificates of
candidacy for any position other than those occupied
by them. Again, it is not within the power of the Court
to pass upon or look into the wisdom of this
classification.
Since the classification justifying
Section 14 of Rep. Act No. 9006, i.e., elected officials
vis--vis appointive officials, is anchored upon material
and significant distinctions and all the persons
belonging under the same classification are similarly
treated, the equal protection clause of the Constitution
is, thus, not infringed.[26]
The case at bar is a crass attempt to resurrect a dead issue. The
miracle is that our assailed Decision gave it new life. We ought to be guided by the
doctrine of stare decisis et non quieta movere. This doctrine, which is really
adherence to precedents, mandates that once a case has been decided one way,
then another case involving exactly the same point at issue should be decided in the
same manner.[27] This doctrine is one of policy grounded on the necessity for
securing certainty and stability of judicial decisions. As the renowned jurist Benjamin
Cardozo stated in his treatise The Nature of the Judicial Process:
 
It will not do to decide the same question one way
between one set of litigants and the opposite way
between another. If a group of cases involves the
same point, the parties expect the same decision. It
would be a gross injustice to decide alternate cases
on opposite principles. If a case was decided against
me yesterday when I was a defendant, I shall look for
the same judgment today if I am plaintiff. To decide
differently would raise a feeling of resentment and
wrong in my breast; it would be an infringement,
material and moral, of my rights." Adherence to
precedent must then be the rule rather than the
exception if litigants are to have faith in the even-
handed administration of justice in the courts.[28]
 
Our Farias ruling on the equal protection implications of the deemed-
resigned provisions cannot be minimalized as mere obiter dictum. It is trite to state
that an adjudication on any point within the issues presented by the case cannot be
considered as obiter dictum.[29] This rule applies to all pertinent questions that are
presented and resolved in the regular course of the consideration of the case and
lead up to the final conclusion, and to any statement as to the matter on which the
decision is predicated.[30] For that reason, a point expressly decided does not lose
its value as a precedent because the disposition of the case is, or might have been,
made on some other ground; or even though, by reason of other points in the case,
the result reached might have been the same if the court had held, on the particular
point, otherwise than it did.[31] As we held in Villanueva, Jr. v. Court of Appeals,
et al.:[32]
A decision which the case could have turned on is not
regarded as obiter dictum merely because, owing to
the disposal of the contention, it was necessary to
consider another question, nor can an additional
reason in a decision, brought forward after the case
has been disposed of on one ground, be regarded as
dicta. So, also, where a case presents two (2) or more
points, any one of which is sufficient to determine the
ultimate issue, but the court actually decides all such
points, the case as an authoritative precedent as to
every point decided, and none of such points can be
regarded as having the status of a dictum, and one
point should not be denied authority merely because
another point was more dwelt on and more fully
argued and considered, nor does a decision on one
proposition make statements of the court regarding
other propositions dicta.[33] (italics supplied)
 
ii.                 Classification Germane to the Purposes of the Law
 
The Farias ruling on the equal protection challenge stands on solid
ground even if reexamined.
 
To start with, the equal protection clause does not require the
universal application of the laws to all persons or things without distinction. [34] What
it simply requires is equality among equals as determined according to a valid
classification.[35] The test developed by jurisprudence here and yonder is that of
reasonableness,[36] which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.[37]
Our assailed Decision readily acknowledged that these deemed-
resigned provisions satisfy the first, third and fourth requisites of reasonableness. It,
however, proffers the dubious conclusion that the differential treatment of appointive
officials vis--vis elected officials is not germane to the purpose of the law, because
whether one holds an appointive office or an elective one, the evils sought to be
prevented by the measure remain, viz.:
For example, the Executive Secretary, or any Member
of the Cabinet for that matter, could wield the same
influence as the Vice-President who at the same time
is appointed to a Cabinet post (in the recent past,
elected Vice-Presidents were appointed to take
 charge of national housing, social welfare
development, interior and local government, and
foreign affairs). With the fact that they both head
executive offices, there is no valid justification to treat
them differently when both file their [Certificates of
Candidacy] for the elections. Under the present state
of our law, the Vice-President, in the example,
running this time, let us say, for President, retains his
position during the entire election period and can still
use the resources of his office to support his
campaign.[38]
 
Sad to state, this conclusion conveniently ignores the long-standing
rule that to remedy an injustice, the Legislature need not address every
manifestation of the evil at once; it may proceed one step at a time.[39] In addressing
a societal concern, it must invariably draw lines and make choices, thereby creating
some inequity as to those included or excluded.[40] Nevertheless, as long as the
bounds of reasonable choice are not exceeded, the courts must defer to the
legislative judgment.[41] We may not strike down a law merely because the
legislative aim would have been more fully achieved by expanding the class.[42]
Stated differently, the fact that a legislative classification, by itself, is underinclusive
will not render it unconstitutionally arbitrary or invidious.[43] There is no constitutional
requirement that regulation must reach each and every class to which it might be
applied;[44] that the Legislature must be held rigidly to the choice of regulating all or
none.
Thus, any person who poses an equal protection challenge must
convincingly show that the law creates a classification that is palpably arbitrary or
capricious.[45] He must refute all possible rational bases for the differing treatment,
whether or not the Legislature cited those bases as reasons for the enactment,[46]
such that the constitutionality of the law must be sustained even if the
reasonableness of the classification is fairly debatable.[47] In the case at bar, the
petitioners failed and in fact did not even attempt to discharge this heavy burden. Our
assailed Decision was likewise silent as a sphinx on this point even while we
submitted the following thesis:
... [I]t is not sufficient grounds for
invalidation that we may find that the statutes
distinction is unfair, underinclusive, unwise, or not the
best solution from a public-policy standpoint; rather,
we must find that there is no reasonably rational
reason for the differing treatment.[48]
 
In the instant case, is there a rational
justification for excluding elected officials from the
operation of the deemed resigned provisions? I
submit that there is.
An election is the embodiment of the
popular will, perhaps the purest expression of the
sovereign power of the people.[49] It involves the
choice or selection of candidates to public office by
popular vote.[50] Considering that elected officials are
put in office by their constituents for a definite term,
it may justifiably be said that they were excluded from
the ambit of the deemed resigned provisions in
utmost respect for the mandate of the sovereign will.
In other words, complete deference is accorded to the
will of the electorate that they be served by such
officials until the end of the term for which they were
elected. In contrast, there is no such expectation
insofar as appointed officials are concerned.
The dichotomized treatment of
appointive and elective officials is therefore
germane to the purposes of the law. For the law
was made not merely to preserve the integrity,
efficiency, and discipline of the public service; the
Legislature, whose wisdom is outside the rubric
of judicial scrutiny, also thought it wise to balance
this with the competing, yet equally compelling,
interest of deferring to the sovereign will.[51]
(emphasis in the original)
 
In fine, the assailed Decision would have us equalize the playing field
by invalidating provisions of law that seek to restrain the evils from running riot.
Under the pretext of equal protection, it would favor a situation in which the evils are
unconfined and vagrant, existing at the behest of both appointive and elected
officials, over another in which a significant portion thereof is contained. The
absurdity of that position is self-evident, to say the least.
 
The concern, voiced by our esteemed colleague, Mr. Justice
Nachura, in his dissent, that elected officials (vis--vis appointive officials) have
greater political clout over the electorate, is indeed a matter worth exploring but not
by this Court. Suffice it to say that the remedy lies with the Legislature. It is the
Legislature that is given the authority, under our constitutional system, to balance
competing interests and thereafter make policy choices responsive to the exigencies
of the times. It is certainly within the Legislatures power to make the deemed-
resigned provisions applicable to elected officials, should it later decide that the evils
sought to be prevented are of such frequency and magnitude as to tilt the balance in
favor of expanding the class. This Court cannot and should not arrogate unto itself
the power to ascertain and impose on the people the best state of affairs from a
public policy standpoint.
 
iii.              Mancuso v. Taft Has Been Overruled
 
Finding no Philippine jurisprudence to prop up its equal protection
ruling, our assailed Decision adverted to, and extensively cited, Mancuso v. Taft.
[52] This was a decision of the First Circuit of the United States Court of Appeals
promulgated in March 1973, which struck down as unconstitutional a similar statutory
provision. Pathetically, our assailed Decision, relying on Mancuso, claimed:
(1) The right to run for public office is inextricably linked with two
fundamental freedoms freedom of expression and
association;
(2) Any legislative classification that significantly burdens this
fundamental right must be subjected to strict equal protection
review; and
(3) While the state has a compelling interest in maintaining the
honesty and impartiality of its public work force, the deemed-
resigned provisions pursue their objective in a far too heavy-
handed manner as to render them unconstitutional.
It then concluded with the exhortation that since the Americans, from whom we
copied the provision in question, had already stricken down a similar measure for
being unconstitutional[,] it is high-time that we, too, should follow suit.
 
Our assailed Decisions reliance on Mancuso is completely misplaced. We cannot
blink away the fact that the United States Supreme Court effectively overruled
Mancuso three months after its promulgation by the United States Court of Appeals.
In United States Civil Service Commission, et al. v. National Association of
Letter Carriers AFL-CIO, et al.[53] and Broadrick, et al. v. State of Oklahoma, et
al.,[54] the United States Supreme Court was faced with the issue of whether
statutory provisions prohibiting federal[55] and state[56] employees from taking an
active part in political management or in political campaigns were unconstitutional as
to warrant facial invalidation. Violation of these provisions results in dismissal from
employment and possible criminal sanctions.
The Court declared these provisions compliant with the equal
protection clause. It held that (i) in regulating the speech of its employees, the state
as employer has interests that differ significantly from those it possesses in
regulating the speech of the citizenry in general; (ii) the courts must therefore
balance the legitimate interest of employee free expression against the interests of
the employer in promoting efficiency of public services; (iii) if the employees
expression interferes with the maintenance of efficient and regularly functioning
services, the limitation on speech is not unconstitutional; and (iv) the Legislature is to
be given some flexibility or latitude in ascertaining which positions are to be covered
by any statutory restrictions.[57] Therefore, insofar as government employees are
concerned, the correct standard of review is an interest-balancing approach, a
means-end scrutiny that examines the closeness of fit between the governmental
interests and the prohibitions in question.[58]
Letter Carriers elucidated on these principles, as follows:
 
Until now, the judgment of Congress,
the Executive, and the country appears to have been
that partisan political activities by federal employees
must be limited if the Government is to operate
effectively and fairly, elections are to play their proper
part in representative government, and employees
themselves are to be sufficiently free from improper
influences. The restrictions so far imposed on federal
employees are not aimed at particular parties, groups,
or points of view, but apply equally to all partisan
activities of the type described. They discriminate
against no racial, ethnic, or religious minorities. Nor
do they seek to control political opinions or beliefs, or
to interfere with or influence anyone's vote at the
polls.
 
But, as the Court held in Pickering v.
Board of Education,[59] the government has an
interest in regulating the conduct and the speech of
its employees that differ(s) significantly from those it
possesses in connection with regulation of the
speech of the citizenry in general. The problem in any
case is to arrive at a balance between the interests of
the (employee), as a citizen, in commenting upon
matters of public concern and the interest of the
(government), as an employer, in promoting the
efficiency of the public services it performs through its
employees. Although Congress is free to strike a
different balance than it has, if it so chooses, we think
the balance it has so far struck is sustainable by the
obviously important interests sought to be served by
the limitations on partisan political activities now
contained in the Hatch Act.
 
It seems fundamental in the first place  
that employees in the Executive Branch of the
Broadrick likewise definitively stated that the assailed statutory provision is
Government, or those working for any of its agencies,
constitutionally permissible, viz.:
should administer the law in accordance with the will
of Congress, rather than in accordance with their own  
or the will of a political party. They are expected to
enforce the law and execute the programs of the
Government without bias or favoritism for or against
any political party or group or the members thereof. A
major thesis of the Hatch Act is that to serve this great
end of Government-the impartial execution of the
laws-it is essential that federal employees, for
example, not take formal positions in political parties,
not undertake to play substantial roles in partisan
political campaigns, and not run for office on partisan
political tickets. Forbidding activities like these will
reduce the hazards to fair and effective government.
 
There is another consideration in this
judgment: it is not only important that the Government
and its employees in fact avoid practicing political
justice, but it is also critical that they appear to the
public to be avoiding it, if confidence in the system of
representative Government is not to be eroded to a
disastrous extent.
 
Another major concern of the
restriction against partisan activities by federal
employees was perhaps the immediate occasion for
enactment of the Hatch Act in 1939. That was the
conviction that the rapidly expanding Government
work force should not be employed to build a
powerful, invincible, and perhaps corrupt political
machine. The experience of the 1936 and 1938
campaigns convinced Congress that these dangers
were sufficiently real that substantial barriers should
be raised against the party in power-or the party out
of power, for that matter-using the thousands or
hundreds of thousands of federal employees, paid for
at public expense, to man its political structure and
political campaigns.
 
A related concern, and this remains as
important as any other, was to further serve the goal
that employment and advancement in the
Government service not depend on political
performance, and at the same time to make sure that
Government employees would be free from pressure
and from express or tacit invitation to vote in a certain
way or perform political chores in order to curry favor
with their superiors rather than to act out their own
beliefs. It may be urged that prohibitions against
coercion are sufficient protection; but for many years
the joint judgment of the Executive and Congress has
been that to protect the rights of federal employees
with respect to their jobs and their political acts and
beliefs it is not enough merely to forbid one employee
to attempt to influence or coerce another. For
example, at the hearings in 1972 on proposed
legislation for liberalizing the prohibition against
political activity, the Chairman of the Civil Service
Commission stated that the prohibitions against active
participation in partisan political management and
partisan political campaigns constitute the most
significant safeguards against coercion . . .. Perhaps
Congress at some time will come to a different view of
the realities of political life and Government service;
but that is its current view of the matter, and we are
not now in any position to dispute it. Nor, in our view,
does the Constitution forbid it.
 
Neither the right to associate nor the
right to participate in political activities is absolute in
any event.[60] x x x
 
xxxx
 
As we see it, our task is not to destroy
the Act if we can, but to construe it, if consistent with
the will of Congress, so as to comport with
constitutional limitations. (italics supplied)
Appellants do not question Oklahoma's right to place
even-handed restrictions on the partisan political
conduct of state employees. Appellants freely
concede that such restrictions serve valid and
important state interests, particularly with respect to
attracting greater numbers of qualified people by
insuring their job security, free from the vicissitudes of
the elective process, and by protecting them from
political extortion. Rather, appellants maintain that
however permissible, even commendable, the goals
of s 818 may be, its language is unconstitutionally
vague and its prohibitions too broad in their sweep,
failing to distinguish between conduct that may be
proscribed and conduct that must be permitted. For
these and other reasons, appellants assert that the
sixth and seventh paragraphs of s 818 are void in toto
and cannot be enforced against them or anyone else.
 
We have held today that the Hatch Act is not
impermissibly vague.[61] We have little doubt that s
818 is similarly not so vague that men of common
intelligence must necessarily guess at its meaning.
[62] Whatever other problems there are with s 818, it
is all but frivolous to suggest that the section fails to
give adequate warning of what activities it proscribes
or fails to set out explicit standards' for those who
must apply it. In the plainest language, it prohibits any
state classified employee from being an officer or
member of a partisan political club or a candidate for
any paid public office. It forbids solicitation of
contributions for any political organization, candidacy
or other political purpose and taking part in the
management or affairs of any political party or in any
political campaign. Words inevitably contain germs of
uncertainty and, as with the Hatch Act, there may be
disputes over the meaning of such terms in s 818 as
partisan, or take part in, or affairs of political parties.
But what was said in Letter Carriers, is applicable
here: there are limitations in the English language
with respect to being both specific and manageably
brief, and it seems to us that although the prohibitions
may not satisfy those intent on finding fault at any
cost, they are set out in terms that the ordinary person
exercising ordinary common sense can sufficiently
understand and comply with, without sacrifice to the
public interest.' x x x
 
xxxx
 
[Appellants] nevertheless maintain that the statute is
overbroad and purports to reach protected, as well as
unprotected conduct, and must therefore be struck
down on its face and held to be incapable of any
constitutional application. We do not believe that the
overbreadth doctrine may appropriately be invoked in
this manner here.
 
 xxxx
The consequence of our departure
from traditional rules of standing in the First
Amendment area is that any enforcement of a statute
thus placed at issue is totally forbidden until and
unless a limiting construction or partial invalidation so
narrows it as to remove the seeming threat or
deterrence to constitutionally protected expression.
Application of the overbreadth doctrine in this manner
is, manifestly, strong medicine. It has been employed
by the Court sparingly and only as a last resort. x x x
 
x x x But the plain import of our cases is, at the very
least, that facial over-breadth adjudication is an
exception to our traditional rules of practice and that
its function, a limited one at the outset, attenuates as
the otherwise unprotected behavior that it forbids the
State to sanction moves from pure speech toward
conduct and that conduct-even if expressive-falls
within the scope of otherwise valid criminal laws that
reflect legitimate state interests in maintaining
comprehensive controls over harmful, constitutionally
unprotected conduct. Although such laws, if too
broadly worded, may deter protected speech to some
unknown extent, there comes a point where that
effect-at best a prediction-cannot, with confidence,
justify invalidating a statute on its face and so
prohibiting a State from enforcing the statute against
conduct that is admittedly within its power to
proscribe. To put the matter another way, particularly
where conduct and not merely speech is involved, we
believe that the overbreadth of a statute must not only
be real, but substantial as well, judged in relation to
the statute's plainly legitimate sweep. It is our view
that s 818 is not substantially overbroad and that
whatever overbreadth may exist should be cured
through case-by-case analysis of the fact situations to
which its sanctions, assertedly, may not be applied.
 
Unlike ordinary breach-of-the peace
statutes or other broad regulatory acts, s 818 is
directed, by its terms, at political expression which if
engaged in by private persons would plainly be
protected by the First and Fourteenth Amendments.
But at the same time, s 818 is not a censorial statute,
directed at particular groups or viewpoints. The
statute, rather, seeks to regulate political activity in an
even-handed and neutral manner. As indicted, such
statutes have in the past been subject to a less
exacting overbreadth scrutiny. Moreover, the fact
remains that s 818 regulates a substantial spectrum
of conduct that is as manifestly subject to state
regulation as the public peace or criminal trespass.
This much was established in United Public Workers
v. Mitchell, and has been unhesitatingly reaffirmed
today in Letter Carriers. Under the decision in Letter
Carriers, there is no question that s 818 is valid at
least insofar as it forbids classified employees from:
soliciting contributions for partisan candidates,
political parties, or other partisan political purposes;
becoming members of national, state, or local
committees of political parties, or officers or
committee members in partisan political clubs, or
candidates for any paid public office; taking part in the
management or affairs of any political party's partisan
political campaign; serving as delegates or alternates
to caucuses or conventions of political parties;
addressing or taking an active part in partisan political
rallies or meetings; soliciting votes or assisting voters
at the polls or helping in a partisan effort to get voters
to the polls; participating in the distribution of partisan
campaign literature; initiating or circulating partisan
nominating petitions; or riding in caravans for any
political party or partisan political candidate.
 
x x x It may be that such restrictions
are impermissible and that s 818 may be susceptible
of some other improper applications. But, as
presently construed, we do not believe that s 818
must be discarded in toto because some persons
arguably protected conduct may or may not be
caught or chilled by the statute. Section 818 is not
substantially overbroad and it not, therefore,
unconstitutional on its face. (italics supplied)
It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny
the principles enunciated in Letter Carriers and Broadrick. He would hold,
nonetheless, that these cases cannot be interpreted to mean a reversal of Mancuso,
since they pertain to different types of laws and were decided based on a different
set of facts, viz.:
 
In Letter Carriers, the plaintiffs alleged
that the Civil Service Commission was enforcing, or
threatening to enforce, the Hatch Acts prohibition
against active participation in political management or
political campaigns. The plaintiffs desired to campaign
for candidates for public office, to encourage and get
federal employees to run for state and local offices, to
participate as delegates in party conventions, and to
hold office in a political club.
 
In Broadrick, the appellants sought the
invalidation for being vague and overbroad a
provision in the (sic) Oklahomas Merit System of
Personnel Administration Act restricting the political
activities of the States classified civil servants, in
much the same manner as the Hatch Act proscribed
partisan political activities of federal employees. Prior
to the commencement of the action, the appellants
actively participated in the 1970 reelection campaign
of their superior, and were administratively charged
for asking other Corporation Commission employees
to do campaign work or to give referrals to persons
who might help in the campaign, for soliciting money
for the campaign, and for receiving and distributing
campaign posters in bulk.
 
Mancuso, on the other hand, involves,
as aforesaid, an automatic resignation provision.
Kenneth Mancuso, a full time police officer and
classified civil service employee of the City of
Cranston, filed as a candidate for nomination as
representative to the Rhode Island General
Assembly. The Mayor of Cranston then began the
process of enforcing the resign-to-run provision of the
City Home Rule Charter.
 
Clearly, as the above-cited US cases
pertain to different types of laws and were decided
based on a different set of facts, Letter Carriers and
Broadrick cannot be interpreted to mean a reversal of
Mancuso. x x x (italics in the original)
 
We hold, however, that his position is belied by a plain reading of
these cases. Contrary to his claim, Letter Carriers, Broadrick and Mancuso all
concerned the constitutionality of resign-to-run laws, viz.:
 
(1) Mancuso involved a civil service employee who filed as a
candidate for nomination as representative to the Rhode
Island General Assembly. He assailed the constitutionality of
14.09(c) of the City Home Rule Charter, which prohibits
continuing in the classified service of the city after becoming
a candidate for nomination or election to any public office.
 
(2) Letter Carriers involved plaintiffs who alleged that the Civil
Service Commission was enforcing, or threatening to enforce,
the Hatch Acts prohibition against active participation in
political management or political campaigns[63] with respect
to certain defined activities in which they desired to engage.
The plaintiffs relevant to this discussion are:
 
a) The National Association of Letter
Carriers, which alleged that its members
were desirous of, among others, running
in local elections for offices such as
school board member, city council
member or mayor;
b) Plaintiff Gee, who alleged that he desired
to, but did not, file as a candidate for the
office of Borough Councilman in his local
community for fear that his participation
 in a partisan election would endanger his
job; and
c) Plaintiff Myers, who alleged that he
desired to run as a Republican candidate
in the 1971 partisan election for the
mayor of West Lafayette, Indiana, and
that he would do so except for fear of
losing his job by reason of violation of the
Hatch Act.
 
The Hatch Act defines active participation in political
management or political campaigns by cross-referring to the
rules made by the Civil Service Commission. The rule
pertinent to our inquiry states:
30. Candidacy for local office: Candidacy
for a nomination or for election to any
National, State, county, or municipal office
is not permissible. The prohibition against
political activity extends not merely to
formal announcement of candidacy but
also to the preliminaries leading to such
announcement and to canvassing or
soliciting support or doing or permitting to
be done any act in furtherance of
candidacy. The fact that candidacy, is
merely passive is immaterial; if an
employee acquiesces in the efforts of
friends in furtherance of such candidacy
such acquiescence constitutes an
infraction of the prohibitions against
political activity. (italics supplied)
 
Section 9(b) requires the immediate removal of violators and
forbids the use of appropriated funds thereafter to pay
compensation to these persons.[64]
 
(3) Broadrick was a class action brought by certain Oklahoma state
employees seeking a declaration of unconstitutionality of two
sub-paragraphs of Section 818 of Oklahomas Merit System of
Personnel Administration Act. Section 818 (7), the paragraph
relevant to this discussion, states that [n]o employee in the
classified service shall be a candidate for nomination or
election to any paid public office Violation of Section 818
results in dismissal from employment, possible criminal
sanctions and limited state employment ineligibility.
 
Consequently, it cannot be denied that Letter Carriers and
Broadrick effectively overruled Mancuso. By no stretch of the imagination could
Mancuso still be held operative, as Letter Carriers and Broadrick (i) concerned
virtually identical resign-to-run laws, and (ii) were decided by a superior court, the
United States Supreme Court. It was thus not surprising for the First Circuit Court of
Appeals the same court that decided Mancuso to hold categorically and
emphatically in Magill v. Lynch[65] that Mancuso is no longer good law. As we
priorly explained:
 
Magill involved Pawtucket, Rhode
Island firemen who ran for city office in 1975.
Pawtuckets Little Hatch Act prohibits city employees
from engaging in a broad range of political activities.
Becoming a candidate for any city office is specifically
proscribed,[66] the violation being punished by
removal from office or immediate dismissal. The
firemen brought an action against the city officials on
the ground that that the provision of the city charter
was unconstitutional. However, the court, fully
cognizant of Letter Carriers and Broadrick, took
the position that Mancuso had since lost
considerable vitality. It observed that the view that
political candidacy was a fundamental interest
which could be infringed upon only if less
restrictive alternatives were not available, was a
position which was no longer viable, since the
Supreme Court (finding that the governments
interest in regulating both the conduct and
speech of its employees differed significantly
from its interest in regulating those of the
citizenry in general) had given little weight to the
argument that prohibitions against the coercion of
government employees were a less drastic means
to the same end, deferring to the judgment of
Congress, and applying a balancing test to
determine whether limits on political activity by
public employees substantially served
government interests which were important
enough to outweigh the employees First
Amendment rights.[67]
 
It must be noted that the Court of
Appeals ruled in this manner even though the election
in Magill was characterized as nonpartisan, as it
was reasonable for the city to fear, under the
circumstances of that case, that politically active
bureaucrats might use their official power to help
political friends and hurt political foes. Ruled the court:
The question before us is whether
Pawtucket's charter provision, which bars a
city employee's candidacy in even a
nonpartisan city election, is constitutional.
The issue compels us to extrapolate two
recent Supreme Court decisions, Civil
Service Comm'n v. Nat'l Ass'n of Letter
Carriers and Broadrick v. Oklahoma. Both
dealt with laws barring civil servants from
partisan political activity. Letter Carriers
reaffirmed United Public Workers v.
Mitchell, upholding the constitutionality of
the Hatch Act as to federal employees.
Broadrick sustained Oklahoma's Little
Hatch Act against constitutional attack,
limiting its holding to Oklahoma's
construction that the Act barred only
activity in partisan politics. In Mancuso v.
Taft, we assumed that proscriptions of
candidacy in nonpartisan elections would
not be constitutional. Letter Carriers and
Broadrick compel new analysis.
xxxx
 
What we are obligated to do in
this case, as the district court recognized,
is to apply the Courts interest balancing
approach to the kind of nonpartisan
election revealed in this record. We believe
that the district court found more residual
vigor in our opinion in Mancuso v. Taft than
remains after Letter Carriers. We have
particular reference to our view that
political candidacy was a fundamental
interest which could be trenched upon only
if less restrictive alternatives were not
available. While this approach may still be
viable for citizens who are not government
employees, the Court in Letter Carriers
recognized that the government's interest
in regulating both the conduct and speech
of its employees differs significantly from
its interest in regulating those of the
citizenry in general. Not only was United
Public Workers v. Mitchell "unhesitatingly"
reaffirmed, but the Court gave little weight
to the argument that prohibitions against
the coercion of government employees
were a less drastic means to the same
end, deferring to the judgment of the
Congress. We cannot be more precise
than the Third Circuit in characterizing the
Court's approach as "some sort of
'balancing' process".[68] It appears that the
government may place limits on
campaigning by public employees if the
limits substantially serve government
interests that are "important" enough to
outweigh the employees' First Amendment
rights. x x x (italics supplied)
 
Upholding thus the constitutionality of
the law in question, the Magill court detailed the
major governmental interests discussed in Letter
Carriers and applied them to the Pawtucket provision
as follows:
 
 In Letter Carriers[,] the first
interest identified by the Court was that of
an efficient government, faithful to the
Congress rather than to party. The district
court discounted this interest, reasoning
that candidates in a local election would
not likely be committed to a state or
national platform. This observation
undoubtedly has substance insofar as
allegiance to broad policy positions is
concerned. But a different kind of possible
political intrusion into efficient
administration could be thought to threaten
municipal government: not into broad
policy decisions, but into the particulars of
administration favoritism in minute
decisions affecting welfare, tax
assessments, municipal contracts and
purchasing, hiring, zoning, licensing, and
inspections. Just as the Court in Letter
Carriers identified a second governmental
interest in the avoidance of the appearance
of "political justice" as to policy, so there is
an equivalent interest in avoiding the
appearance of political preferment in
privileges, concessions, and benefits. The
appearance (or reality) of favoritism that
the charter's authors evidently feared is not
exorcised by the nonpartisan character of
the formal election process. Where, as
here, party support is a key to successful
campaigning, and party rivalry is the norm,
the city might reasonably fear that
politically active bureaucrats would use
their official power to help political friends
and hurt political foes. This is not to say
that the city's interest in visibly fair and
effective administration necessarily justifies
a blanket prohibition of all employee
campaigning; if parties are not heavily
involved in a campaign, the danger of
favoritism is less, for neither friend nor foe
is as easily identified.
 
A second major governmental
interest identified in Letter Carriers was
avoiding the danger of a powerful political
machine. The Court had in mind the large
and growing federal bureaucracy and its
partisan potential. The district court felt this
was only a minor threat since parties had
no control over nominations. But in fact
candidates sought party endorsements,
and party endorsements proved to be
highly effective both in determining who
would emerge from the primary election
and who would be elected in the final
election. Under the prevailing customs,
known party affiliation and support were
highly significant factors in Pawtucket
elections. The charter's authors might
reasonably have feared that a politically
active public work force would give the
incumbent party, and the incumbent
workers, an unbreakable grasp on the reins
of power. In municipal elections especially,
the small size of the electorate and the
limited powers of local government may
inhibit the growth of interest groups
powerful enough to outbalance the weight
of a partisan work force. Even when
nonpartisan issues and candidacies are at
stake, isolated government employees may  
seek to influence voters or their co-workers
improperly; but a more real danger is that a
the district court for further proceedings in respect of the
central party structure will mass the
petitioners overbreadth charge. Noting that invalidating a
scattered powers of government workers
statute for being overbroad is not to be taken lightly, much
behind a single party platform or slate.
less to be taken in the dark, the court held:
Occasional misuse of the public trust to
pursue private political ends is tolerable,
especially because the political views of
individual employees may balance each
other out. But party discipline eliminates
this diversity and tends to make abuse
systematic. Instead of a handful of
employees pressured into advancing their
immediate superior's political ambitions,
the entire government work force may be
expected to turn out for many candidates in
every election. In Pawtucket, where parties
are a continuing presence in political
campaigns, a carefully orchestrated use of
city employees in support of the incumbent
party's candidates is possible. The danger
is scarcely lessened by the openness of
Pawtucket's nominating procedure or the
lack of party labels on its ballots.
 
The third area of proper
governmental interest in Letter Carriers
was ensuring that employees achieve
advancement on their merits and that they
be free from both coercion and the
prospect of favor from political activity. The
district court did not address this factor, but
looked only to the possibility of a civil
servant using his position to influence
voters, and held this to be no more of a
threat than in the most nonpartisan of
elections. But we think that the possibility
of coercion of employees by superiors
remains as strong a factor in municipal
elections as it was in Letter Carriers. Once
again, it is the systematic and coordinated
exploitation of public servants for political
ends that a legislature is most likely to see
as the primary threat of employees' rights.
Political oppression of public employees
will be rare in an entirely nonpartisan
system. Some superiors may be inclined to
ride herd on the politics of their employees
even in a nonpartisan context, but without
party officials looking over their shoulders
most supervisors will prefer to let
employees go their own ways.
 
In short, the government may
constitutionally restrict its employees'
participation in nominally nonpartisan
elections if political parties play a large role
in the campaigns. In the absence of
substantial party involvement, on the other
hand, the interests identified by the Letter
Carriers Court lose much of their force.
While the employees' First Amendment
rights would normally outbalance these
diminished interests, we do not suggest
that they would always do so. Even when
parties are absent, many employee
campaigns might be thought to endanger
at least one strong public interest, an
interest that looms larger in the context of
municipal elections than it does in the
national elections considered in Letter
Carriers. The city could reasonably fear the
prospect of a subordinate running directly
against his superior or running for a
position that confers great power over his
superior. An employee of a federal agency
who seeks a Congressional seat poses
less of a direct challenge to the command
and discipline of his agency than a fireman
or policeman who runs for mayor or city
council. The possibilities of internal
discussion, cliques, and political
bargaining, should an employee gather
substantial political support, are
considerable. (citations omitted)
The court, however, remanded the case to
 
The governing case is Broadrick,
which introduced the doctrine of
"substantial" overbreadth in a closely
analogous case. Under Broadrick, when
one who challenges a law has engaged in
constitutionally unprotected conduct (rather
than unprotected speech) and when the
 challenged law is aimed at unprotected
conduct, "the overbreadth of a statute must
not only be real, but substantial as well,
judged in relation to the statute's plainly
legitimate sweep." Two major uncertainties
attend the doctrine: how to distinguish
speech from conduct, and how to define
"substantial" overbreadth. We are spared
the first inquiry by Broadrick itself. The
plaintiffs in that case had solicited support
for a candidate, and they were subject to
discipline under a law proscribing a wide
range of activities, including soliciting
contributions for political candidates and
becoming a candidate. The Court found
that this combination required a substantial
overbreadth approach. The facts of this
case are so similar that we may reach the
same result without worrying unduly about
the sometimes opaque distinction between
speech and conduct.
 
The second difficulty is not so easily
disposed of. Broadrick found no substantial
overbreadth in a statute restricting partisan
campaigning. Pawtucket has gone further,
banning participation in nonpartisan
campaigns as well. Measuring the
substantiality of a statute's overbreadth
apparently requires, inter alia, a rough
balancing of the number of valid
applications compared to the number of
potentially invalid applications. Some
sensitivity to reality is needed; an invalid
application that is far-fetched does not
deserve as much weight as one that is
probable. The question is a matter of
degree; it will never be possible to say that
a ratio of one invalid to nine valid
applications makes a law substantially
overbroad. Still, an overbreadth challenger
has a duty to provide the court with some
idea of the number of potentially invalid
applications the statute permits. Often,
simply reading the statute in the light of
common experience or litigated cases will
suggest a number of probable invalid
applications. But this case is different.
Whether the statute is overbroad depends
in large part on the number of elections
that are insulated from party rivalry yet
closed to Pawtucket employees. For all the
record shows, every one of the city, state,
or federal elections in Pawtucket is actively
contested by political parties. Certainly the
record suggests that parties play a major
role even in campaigns that often are
entirely nonpartisan in other cities. School
committee candidates, for example, are
endorsed by the local Democratic
committee.
 
The state of the record does not
permit us to find overbreadth; indeed such
a step is not to be taken lightly, much less
to be taken in the dark. On the other hand,
the entire focus below, in the short period
before the election was held, was on the
constitutionality of the statute as applied.
Plaintiffs may very well feel that further
efforts are not justified, but they should be
afforded the opportunity to demonstrate
that the charter forecloses access to a
significant number of offices, the candidacy
for which by municipal employees would
not pose the possible threats to
government efficiency and integrity which
Letter Carriers, as we have interpreted it,
deems significant. Accordingly, we remand
for consideration of plaintiffs' overbreadth
claim. (italics supplied, citations omitted)
Clearly, Letter Carriers, Broadrick,
and Magill demonstrate beyond doubt that Mancuso
v. Taft, heavily relied upon by the ponencia, has
effectively been overruled.[69] As it is no longer good
law, the ponencias exhortation that [since] the Americans,
from whom we copied the provision in question, had
already stricken down a similar measure for being
unconstitutional[,] it is high-time that we, too, should follow
suit is misplaced and unwarranted.[70] 
Accordingly, our assailed Decisions submission that the right to run for public office
is inextricably linked with two fundamental freedoms those of expression and
association lies on barren ground. American case law has in fact never recognized
a fundamental right to express ones political views through candidacy,[71] as
to invoke a rigorous standard of review.[72] Bart v. Telford[73] pointedly stated
that [t]he First Amendment does not in terms confer a right to run for public office,
and this court has held that it does not do so by implication either. Thus, ones
interest in seeking office, by itself, is not entitled to constitutional protection.[74]
Moreover, one cannot bring ones action under the rubric of freedom of association,
absent any allegation that, by running for an elective position, one is advancing the
political ideas of a particular set of voters.[75]
 
Prescinding from these premises, it is crystal clear that the provisions challenged in
the case at bar, are not violative of the equal protection clause. The deemed-
resigned provisions substantially serve governmental interests (i.e., (i) efficient civil
service faithful to the government and the people rather than to party; (ii) avoidance
of the appearance of political justice as to policy; (iii) avoidance of the danger of a
powerful political machine; and (iv) ensuring that employees achieve advancement
on their merits and that they be free from both coercion and the prospect of favor
from political activity). These are interests that are important enough to outweigh the
non-fundamental right of appointive officials and employees to seek elective office.
 
En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v.
Fashing[76] and Morial, et al. v. Judiciary Commission of the State of
Louisiana, et al.[77] to buttress his dissent. Maintaining that resign-to-run provisions
are valid only when made applicable to specified officials, he explains:
U.S. courts, in subsequent cases, sustained the
constitutionality of resign-to-run provisions when
applied to specified or particular officials, as
distinguished from all others,[78] under a
classification that is germane to the purposes of
the law. These resign-to-run legislations were not
expressed in a general and sweeping provision,
and thus did not violate the test of being germane
to the purpose of the law, the second requisite for a
valid classification. Directed, as they were, to
particular officials, they were not overly encompassing
as to be overbroad. (emphasis in the original)
This reading is a regrettable misrepresentation of Clements and
Morial. The resign-to-run provisions in these cases were upheld not because they
referred to specified or particular officials (vis--vis a general class); the questioned
provisions were found valid precisely because the Court deferred to legislative
judgment and found that a regulation is not devoid of a rational predicate
simply because it happens to be incomplete. In fact, the equal protection
challenge in Clements revolved around the claim that the State of Texas failed to
explain why some public officials are subject to the resign-to-run provisions, while
others are not. Ruled the United States Supreme Court:
 
Article XVI, 65, of the Texas
Constitution provides that the holders of certain
offices automatically resign their positions if they
become candidates for any other elected office,
unless the unexpired portion of the current term is one
year or less. The burdens that 65 imposes on
candidacy are even less substantial than those
imposed by 19. The two provisions, of course, serve
essentially the same state interests. The District Court
found 65 deficient, however, not because of the
nature or extent of the provision's restriction on
candidacy, but because of the manner in which the
offices are classified. According to the District Court,
the classification system cannot survive equal
protection scrutiny, because Texas has failed to
explain sufficiently why some elected public officials
are subject to 65 and why others are not. As with the
case of 19, we conclude that 65 survives a challenge
under the Equal Protection Clause unless appellees
can show that there is no rational predicate to the
classification scheme.
The history behind 65 shows that it
may be upheld consistent with the "one step at a
time" approach that this Court has undertaken with
regard to state regulation not subject to more
 vigorous scrutiny than that sanctioned by the Do Not Suffer from Overbreadth
traditional principles. Section 65 was enacted in 1954
as a transitional provision applying only to the 1954  
election. Section 65 extended the terms of those Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of
offices enumerated in the provision from two to four RA 9369, and Section 66 of the Omnibus Election Code on equal protection ground,
years. The provision also staggered the terms of other our assailed Decision struck them down for being overbroad in two respects, viz.:
offices so that at least some county and local offices
would be contested at each election. The automatic  
resignation proviso to 65 was not added until 1958. In
(1) The assailed provisions limit the candidacy of all civil servants
that year, a similar automatic resignation provision
holding appointive posts without due regard for the type of
was added in Art. XI, 11, which applies to
position being held by the employee seeking an elective post
officeholders in home rule cities who serve terms
and the degree of influence that may be attendant thereto;
longer than two years. Section 11 allows home rule
[79] and
cities the option of extending the terms of municipal
offices from two to up to four years. (2) The assailed provisions limit the candidacy of any and all civil
servants holding appointive positions without due regard for
 
the type of office being sought, whether it be partisan or
Thus, the automatic resignation nonpartisan in character, or in the national, municipal or
provision in Texas is a creature of the State's barangay level.
electoral reforms of 1958. That the State did not go
 
further in applying the automatic resignation provision
to those officeholders whose terms were not Again, on second look, we have to revise our assailed Decision.
extended by 11 or 65, absent an invidious purpose, is
not the sort of malfunctioning of the State's  
lawmaking process forbidden by the Equal Protection i.                   Limitation on Candidacy Regardless of
Clause. A regulation is not devoid of a rational
predicate simply because it happens to be Incumbent Appointive Officials Position, Valid
incomplete. The Equal Protection Clause does not
forbid Texas to restrict one elected officeholder's  
candidacy for another elected office unless and until it According to the assailed Decision, the challenged provisions of law
places similar restrictions on other officeholders. The are overly broad because they apply indiscriminately to all civil servants holding
provision's language and its history belie any notion appointive posts, without due regard for the type of position being held by the
that 65 serves the invidious purpose of denying employee running for elective office and the degree of influence that may be
access to the political process to identifiable classes attendant thereto.
of potential candidates. (citations omitted and italics
supplied)  

  Its underlying assumption appears to be that the evils sought to be

prevented are extant only when the incumbent appointive official running for elective
Furthermore, it is unfortunate that the dissenters took the Morial line office holds an influential post.
that there is no blanket approval of restrictions on the right of public employees to
become candidates for public office out of context. A correct reading of that line  
readily shows that the Court only meant to confine its ruling to the facts of that case,
Such a myopic view obviously fails to consider a different, yet equally
as each equal protection challenge would necessarily have to involve weighing
plausible, threat to the government posed by the partisan potential of a large and
governmental interests vis--vis the specific prohibition assailed. The Court held:
growing bureaucracy: the danger of systematic abuse perpetuated by a powerful
  political machine that has amassed the scattered powers of government workers so
as to give itself and its incumbent workers an unbreakable grasp on the reins of
The interests of public employees in free expression power.[80] As elucidated in our prior exposition:[81]
and political association are unquestionably entitled to
the protection of the first and fourteenth amendments.  
Nothing in today's decision should be taken to imply
Attempts by government employees to
that public employees may be prohibited from
wield influence over others or to make use of their
expressing their private views on controversial topics
respective positions (apparently) to promote their own
in a manner that does not interfere with the proper
candidacy may seem tolerable even innocuous
performance of their public duties. In today's decision,
particularly when viewed in isolation from other similar
there is no blanket approval of restrictions on the right
attempts by other government employees. Yet it
of public employees to become candidates for public
would be decidedly foolhardy to discount the equally
office. Nor do we approve any general restrictions on
(if not more) realistic and dangerous possibility that
the political and civil rights of judges in particular. Our
such seemingly disjointed attempts, when taken
holding is necessarily narrowed by the methodology
together, constitute a veiled effort on the part of an
employed to reach it. A requirement that a state judge
emerging central party structure to advance its own
resign his office prior to becoming a candidate for
agenda through a carefully orchestrated use of
non-judicial office bears a reasonably necessary
[appointive and/or elective] officials coming from
relation to the achievement of the state's interest in
various levels of the bureaucracy.
preventing the actuality or appearance of judicial
impropriety. Such a requirement offends neither the  
first amendment's guarantees of free expression and
association nor the fourteenth amendment's [T]he avoidance of such a politically
guarantee of equal protection of the laws. (italics active public work force which could give an emerging
supplied) political machine an unbreakable grasp on the reins of
power is reason enough to impose a restriction on the
  candidacies of all appointive public officials without
further distinction as to the type of positions being
Indeed, the Morial court even quoted Broadrick and stated that:
held by such employees or the degree of influence
  that may be attendant thereto. (citations omitted)

In any event, the legislature must have some leeway  

in determining which of its employment positions
 
require restrictions on partisan political activities and
which may be left unregulated. And a State can hardly ii.                 Limitation on Candidacy
be faulted for attempting to limit the positions upon
which such restrictions are placed. (citations omitted) Regardless of Type of Office Sought, Valid

   

 
V.
Section 4(a) of Resolution 8678, Section 13 of RA 9369,
and Section 66 of the Omnibus Election Code
The assailed Decision also held that the challenged provisions of law
are overly broad because they are made to apply indiscriminately to all civil servants
holding appointive offices, without due regard for the type of elective office being
sought, whether it be partisan or nonpartisan in character, or in the national,
municipal or barangay level.
 This erroneous ruling is premised on the assumption that the
concerns of a truly partisan office and the temptations it fosters are sufficiently
different from those involved in an office removed from regular party politics [so as]
to warrant distinctive treatment,[82] so that restrictions on candidacy akin to those
imposed by the challenged provisions can validly apply only to situations in which the
elective office sought is partisan in character. To the extent, therefore, that such
restrictions are said to preclude even candidacies for nonpartisan elective offices, the
challenged restrictions are to be considered as overbroad.
Again, a careful study of the challenged provisions and related laws
on the matter will show that the alleged overbreadth is more apparent than real. Our
exposition on this issue has not been repudiated, viz.:
A perusal of Resolution 8678 will
immediately disclose that the rules and guidelines set
forth therein refer to the filing of certificates of
candidacy and nomination of official candidates of
registered political parties, in connection with the
May 10, 2010 National and Local Elections.[83]
Obviously, these rules and guidelines, including the
restriction in Section 4(a) of Resolution 8678, were
issued specifically for purposes of the May 10, 2010
National and Local Elections, which, it must be noted,
are decidedly partisan in character. Thus, it is clear
that the restriction in Section 4(a) of RA 8678 applies
only to the candidacies of appointive officials vying for
partisan elective posts in the May 10, 2010 National
and Local Elections. On this score, the overbreadth
challenge leveled against Section 4(a) is clearly
unsustainable.
 
Similarly, a considered review of
Section 13 of RA 9369 and Section 66 of the
Omnibus Election Code, in conjunction with other
related laws on the matter, will confirm that these
provisions are likewise not intended to apply to
elections for nonpartisan public offices.
 
The only elections which are relevant to the present
inquiry are the elections for barangay offices, since
these are the only elections in this country which
involve nonpartisan public offices.[84]
 
In this regard, it is well to note that
from as far back as the enactment of the Omnibus
Election Code in 1985, Congress has intended that
these nonpartisan barangay elections be governed by
special rules, including a separate rule on deemed
resignations which is found in Section 39 of the
Omnibus Election Code. Said provision states:
Section 39. Certificate of Candidacy. No
person shall be elected punong
barangay or kagawad ng sangguniang
barangay unless he files a sworn
certificate of candidacy in triplicate on
any day from the commencement of the
election period but not later than the day
before the beginning of the campaign
period in a form to be prescribed by the
Commission. The candidate shall state
the barangay office for which he is a
candidate.
 
xxxx
 
Any elective or appointive municipal,
city, provincial or national official or
employee, or those in the civil or military
service, including those in government-
owned or-controlled corporations, shall
be considered automatically resigned
upon the filing of certificate of candidacy
for a barangay office.
Since barangay elections are
governed by a separate deemed resignation rule,
under the present state of law, there would be no
occasion to apply the restriction on candidacy found
in Section 66 of the Omnibus Election Code, and later
reiterated in the proviso of Section 13 of RA 9369, to
any election other than a partisan one. For this
reason, the overbreadth challenge raised against
Section 66 of the Omnibus Election Code and the
pertinent proviso in Section 13 of RA 9369 must also
fail. [85]
In any event, even if we were to assume, for the sake of argument,
that Section 66 of the Omnibus Election Code and the corresponding provision in
Section 13 of RA 9369 are general rules that apply also to elections for nonpartisan
public offices, the overbreadth challenge would still be futile. Again, we explained:
In the first place, the view that
Congress is limited to controlling only partisan
behavior has not received judicial imprimatur,
because the general proposition of the relevant US
cases on the matter is simply that the government has
an interest in regulating the conduct and speech of its
employees that differs significantly from those it
possesses in connection with regulation of the speech
of the citizenry in general.[86]
 
Moreover, in order to have a statute
declared as unconstitutional or void on its face for
being overly broad, particularly where, as in this case,
conduct and not pure speech is involved, the
overbreadth must not only be real, but substantial as
well, judged in relation to the statutes plainly
legitimate sweep.[87]
 
In operational terms, measuring the
substantiality of a statutes overbreadth would entail,
among other things, a rough balancing of the number
of valid applications compared to the number of
potentially invalid applications.[88] In this regard,
some sensitivity to reality is needed; an invalid
application that is far-fetched does not deserve as
much weight as one that is probable.[89] The
question is a matter of degree.[90] Thus, assuming for
the sake of argument that the partisan-nonpartisan
distinction is valid and necessary such that a statute
which fails to make this distinction is susceptible to an
overbreadth attack, the overbreadth challenge
presently mounted must demonstrate or provide this
Court with some idea of the number of potentially
invalid elections (i.e. the number of elections that
were insulated from party rivalry but were
nevertheless closed to appointive employees) that
may in all probability result from the enforcement of
the statute.[91]
The state of the record, however,
does not permit us to find overbreadth. Borrowing
from the words of Magill v. Lynch, indeed, such a step
is not to be taken lightly, much less to be taken in the
dark,[92] especially since an overbreadth finding in
this case would effectively prohibit the State from
enforcing an otherwise valid measure against conduct
that is admittedly within its power to proscribe.[93]
 
 
This Court would do well to proceed with tiptoe caution, particularly
when it comes to the application of the overbreadth doctrine in the analysis of
statutes that purportedly attempt to restrict or burden the exercise of the right to
freedom of speech, for such approach is manifestly strong medicine that must be
used sparingly, and only as a last resort.[94]
 
In the United States, claims of facial overbreadth have been
entertained only where, in the judgment of the court, the possibility that protected
speech of others may be muted and perceived grievances left to fester (due to the
possible inhibitory effects of overly broad statutes) outweighs the possible harm to
society in allowing some unprotected speech or conduct to go unpunished. [95] Facial
overbreadth has likewise not been invoked where a limiting construction could be
placed on the challenged statute, and where there are readily apparent constructions
that would cure, or at least substantially reduce, the alleged overbreadth of the
statute.[96]
 
 In the case at bar, the probable harm to society in permitting known as the Party-List System Act.[4]
incumbent appointive officials to remain in office, even as they actively pursue
elective posts, far outweighs the less likely evil of having arguably protected  
candidacies blocked by the possible inhibitory effect of a potentially overly broad Ang Ladlad is an organization composed of men and women who identify
statute. themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003,
  Ang Ladlad first applied for registration with the COMELEC in 2006. The application for accreditation
was denied on the ground that the organization had no substantial membership base. On August 17,
In this light, the conceivably impermissible applications of the 2009, Ang Ladlad again filed a Petition[5] for registration with the COMELEC.
challenged statutes which are, at best, bold predictions cannot justify invalidating
these statutes in toto and prohibiting the State from enforcing them against conduct  
that is, and has for more than 100 years been, unquestionably within its power and Before the COMELEC, petitioner argued that the LGBT community is a
interest to proscribe.[97] Instead, the more prudent approach would be to deal with marginalized and under-represented sector that is particularly disadvantaged because of their sexual
these conceivably impermissible applications through case-by-case adjudication orientation and gender identity; that LGBTs are victims of exclusion, discrimination, and violence; that
rather than through a total invalidation of the statute itself.[98] because of negative societal attitudes, LGBTs are constrained to hide their sexual orientation; and that
  Ang Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-
OFW Labor Party v. Commission on Elections.[6] Ang Ladlad laid out its national membership base
Indeed, the anomalies spawned by our assailed Decision have taken consisting of individual members and organizational supporters, and outlined its platform of
place. In his Motion for Reconsideration, intervenor Drilon stated that a number of governance.[7]
high-ranking Cabinet members had already filed their Certificates of Candidacy
without relinquishing their posts.[99] Several COMELEC election officers had  
likewise filed their Certificates of Candidacy in their respective provinces.[100] Even On November 11, 2009, after admitting the petitioners evidence, the COMELEC
the Secretary of Justice had filed her certificate of substitution for representative of (Second Division) dismissed the Petition on moral grounds, stating that:
the first district of Quezon province last December 14, 2009[101] even as her
position as Justice Secretary includes supervision over the City and Provincial x x x This Petition is dismissible on moral
Prosecutors,[102] who, in turn, act as Vice-Chairmen of the respective Boards of grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual
Canvassers.[103] The Judiciary has not been spared, for a Regional Trial Court and Transgender (LGBT) Community, thus:
Judge in the South has thrown his hat into the political arena. We cannot allow the
 
tilting of our electoral playing field in their favor.
x x x a marginalized and under-represented sector
 
that is particularly disadvantaged because of their
For the foregoing reasons, we now rule that Section 4(a) of sexual orientation and gender identity.
Resolution 8678 and Section 13 of RA 9369, which merely reiterate Section 66 of the
Omnibus Election Code, are not unconstitutionally overbroad.
and proceeded to define sexual orientation as that which:
 
 
IN VIEW WHEREOF, the Court RESOLVES to GRANT the
respondents and the intervenors Motions for Reconsideration; REVERSE and SET x x x refers to a persons capacity for profound
ASIDE this Courts December 1, 2009 Decision; DISMISS the Petition; and ISSUE emotional, affectional and sexual attraction to, and
this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4(a) of intimate and sexual relations with, individuals of a
COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of different gender, of the same gender, or more than
Section 13 of Republic Act No. 9369, and (3) Section 66 of the Omnibus Election one gender.
Code.
 
 
This definition of the LGBT sector makes it crystal clear that
SO ORDERED. petitioner tolerates immorality which offends religious beliefs. In
Romans 1:26, 27, Paul wrote:
ANG LADLAD vs. COMELEC
 
DEL CASTILLO, J.:
For this cause God gave them up into vile affections,
  for even their women did change the natural use
into that which is against nature: And likewise also
... [F]reedom to differ is not limited to things that do not matter
the men, leaving the natural use of the woman,
much. That would be a mere shadow of freedom. The test of its
burned in their lust one toward another; men with
substance is the right to differ as to things that touch the heart of
men working that which is unseemly, and receiving
the existing order.
in themselves that recompense of their error which
was meet.
Justice Robert A. Jackson  
West Virginia State Board of Education v. Barnette[1] In the Koran, the hereunder verses are pertinent:
   
One unavoidable consequence of everyone having the freedom to choose is that others may make For ye practice your lusts on men in preference to
different choices choices we would not make for ourselves, choices we may disapprove of, even women ye are indeed a people transgressing
choices that may shock or offend or anger us. However, choices are not to be legally prohibited merely beyond bounds. (7.81) And we rained down on
because they are different, and the right to disagree and debate about important questions of public them a shower (of brimstone): Then see what was
policy is a core value protected by our Bill of Rights. Indeed, our democracy is built on genuine the end of those who indulged in sin and crime!
recognition of, and respect for, diversity and difference in opinion. (7:84) He said: O my Lord! Help Thou me against
people who do mischief (29:30).
 
Since ancient times, society has grappled with deep disagreements about the
definitions and demands of morality. In many cases, where moral convictions are concerned, harmony As correctly pointed out by the Law Department in its Comment
among those theoretically opposed is an insurmountable goal. Yet herein lies the paradox philosophical dated October 2, 2008:
justifications about what is moral are indispensable and yet at the same time powerless to create
 
agreement. This Court recognizes, however, that practical solutions are preferable to ideological
stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will The ANG LADLAD apparently advocates sexual
allow persons of diverse viewpoints to live together, if not harmoniously, then, at least, civilly. immorality as indicated in the Petitions par. 6F:
Consensual partnerships or relationships by gays
 
and lesbians who are already of age. It is further
Factual Background indicated in par. 24 of the Petition which waves for
the record: In 2007, Men Having Sex with Men or
  MSMs in the Philippines were estimated as 670,000
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an (Genesis 19 is the history of Sodom and
application for a writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) Gomorrah).
against the Resolutions of the Commission on Elections (COMELEC) dated November 11, 2009[2]  
(the First Assailed Resolution) and December 16, 2009[3] (the Second Assailed Resolution) in SPP
No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELECs Laws are deemed incorporated in every contract,
refusal to accredit Ang Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise permit, license, relationship, or accreditation. Hence,
 pertinent provisions of the Civil Code and the Revised
Penal Code are deemed part of the requirement to be
complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil
Code which defines nuisance as Any act, omission,
establishment, business, condition of property, or
anything else which x x x (3) shocks, defies; or
disregards decency or morality x x x
 
It also collides with Article 1306 of the Civil Code: The
contracting parties may establish such stipulations,
clauses, terms and conditions as they may deem
convenient, provided they are not contrary to law,
morals, good customs, public order or public policy. Art
1409 of the Civil Code provides that Contracts whose
cause, object or purpose is contrary to law, morals,
good customs, public order or public policy are
inexistent and void from the beginning.
 
Finally to safeguard the morality of the Filipino community, the
Revised Penal Code, as amended, penalizes Immoral doctrines,
obscene publications and exhibitions and indecent shows as
follows:
 
Art. 201. Immoral doctrines, obscene publications and
exhibitions, and indecent shows. The penalty of prision
mayor or a fine ranging from six thousand to twelve
thousand pesos, or both such imprisonment and fine,
shall be imposed upon:
 
1. Those who shall publicly expound or proclaim
doctrines openly contrary to public morals;
 
2.  (a) The authors of obscene literature, published with
their knowledge in any form; the editors publishing
such literature; and the owners/operators of the
establishment selling the same;
 
(b)  Those who, in theaters, fairs, cinematographs or
any other place, exhibit indecent or immoral plays,
scenes, acts or shows, it being understood that the
obscene literature or indecent or immoral plays,
scenes, acts or shows, whether live or in film, which are
prescribed by virtue hereof, shall include those which:
(1) glorify criminals or condone crimes; (2) serve no
other purpose but to satisfy the market for violence, lust
or pornography; (3) offend any race or religion; (4) tend
to abet traffic in and use of prohibited drugs; and (5) are
contrary to law, public order, morals, good customs,
established policies, lawful orders, decrees and edicts.
3.  Those who shall sell, give away or exhibit films,
prints, engravings, sculpture or literature which are
offensive to morals.
Petitioner should likewise be denied accreditation not only for
advocating immoral doctrines but likewise for not being truthful
when it said that it or any of its nominees/party-list
representatives have not violated or failed to comply with laws,
rules, or regulations relating to the elections.
Furthermore, should this Commission grant the petition, we will be exposing our
youth to an environment that does not conform to the teachings
of our faith. Lehman Strauss, a famous bible teacher and writer in
the U.S.A. said in one article that older practicing homosexuals
are a threat to the youth. As an agency of the government, ours
too is the States avowed duty under Section 13, Article II of the
Constitution to protect our youth from moral and spiritual
degradation.[8]
 
When Ang Ladlad sought reconsideration,[9] three commissioners voted to
overturn the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and
Armando Velasco), while three commissioners voted to deny Ang Ladlads Motion for Reconsideration
(Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC
Chairman, breaking the tie and speaking for the majority in his Separate Opinion, upheld the First
Assailed Resolution, stating that:
I.                 The Spirit of Republic Act No. 7941
 
Ladlad is applying for accreditation as a sectoral party in the
party-list system. Even assuming that it has properly proven its
under-representation and marginalization, it cannot be said that
Ladlads expressed sexual orientations per se would benefit the
nation as a whole.
 
Section 2 of the party-list law unequivocally states that the
purpose of the party-list system of electing congressional
representatives is to enable Filipino citizens belonging to
marginalized and under-represented sectors, organizations and
parties, and who lack well-defined political constituencies but who
could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become
members of the House of Representatives.
 
If entry into the party-list system would depend only on the ability
of an organization to represent its constituencies, then all
representative organizations would have found themselves into
the party-list race. But that is not the intention of the framers of the
law. The party-list system is not a tool to advocate tolerance and
acceptance of misunderstood persons or groups of persons.
Rather, the party-list system is a tool for the realization of
aspirations of marginalized individuals whose interests are
also the nations only that their interests have not been brought
to the attention of the nation because of their under
representation. Until the time comes when Ladlad is able to
justify that having mixed sexual orientations and
transgender identities is beneficial to the nation, its
application for accreditation under the party-list system will
remain just that.
 
II.             No substantial differentiation
 
In the United States, whose equal protection doctrine pervades
Philippine jurisprudence, courts do not recognize lesbians, gays,
homosexuals, and bisexuals (LGBT) as a special class of
individuals. x x x Significantly, it has also been held that
homosexuality is not a constitutionally protected fundamental
right, and that nothing in the U.S. Constitution discloses a
comparable intent to protect or promote the social or legal
equality of homosexual relations, as in the case of race or religion
or belief.
 
xxxx
Thus, even if societys understanding, tolerance, and acceptance
of LGBTs is elevated, there can be no denying that Ladlad
constituencies are still males and females, and they will remain
either male or female protected by the same Bill of Rights
that applies to all citizens alike.
xxxx
 
IV. Public Morals
x x x There is no question about not imposing on Ladlad
Christian or Muslim religious practices. Neither is there any
attempt to any particular religious groups moral rules on Ladlad.
Rather, what are being adopted as moral parameters and
precepts are generally accepted public morals. They are
possibly religious-based, but as a society, the Philippines
cannot ignore its more than 500 years of Muslim and
Christian upbringing, such that some moral precepts
espoused by said religions have sipped [sic] into society
and these are not publicly accepted moral norms.
V.           Legal Provisions
 
 But above morality and social norms, they have become part of
the law of the land. Article 201 of the Revised Penal Code
imposes the penalty of prision mayor upon Those who shall
publicly expound or proclaim doctrines openly contrary to public
morals. It penalizes immoral doctrines, obscene publications and
exhibition and indecent shows. Ang Ladlad apparently falls
under these legal provisions. This is clear from its Petitions
paragraph 6F: Consensual partnerships or relationships by gays
and lesbians who are already of age It is further indicated in par.
24 of the Petition which waves for the record: In 2007, Men
Having Sex with Men or MSMs in the Philippines were
estimated as 670,000. Moreoever, Article 694 of the Civil Code
defines nuisance as any act, omission x x x or anything else x x x
which shocks, defies or disregards decency or morality x x x.
These are all unlawful.[10]
 
 
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the
Assailed Resolutions and direct the COMELEC to grant Ang Ladlads application for accreditation.
Ang Ladlad also sought the issuance ex parte of a preliminary mandatory injunction against the
COMELEC, which had previously announced that it would begin printing the final ballots for the May
2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its
Comment on behalf of COMELEC not later than 12:00 noon of January 11, 2010.[11] Instead of filing a
Comment, however, the OSG filed a Motion for Extension, requesting that it be given until January 16,
2010 to Comment.[12] Somewhat surprisingly, the OSG later filed a Comment in support of petitioners
application.[13] Thus, in order to give COMELEC the opportunity to fully ventilate its position, we
required it to file its own comment.[14] The COMELEC, through its Law Department, filed its Comment
on February 2, 2010.[15]
In the meantime, due to the urgency of the petition, we issued a temporary
restraining order on January 12, 2010, effective immediately and continuing until further orders from this
Court, directing the COMELEC to cease and desist from implementing the Assailed Resolutions.[16]
 
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion
to Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention.[17] The
CHR opined that the denial of Ang Ladlads petition on moral grounds violated the standards and
principles of the Constitution, the Universal Declaration of Human Rights (UDHR), and the International
Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we granted the CHRs motion to
intervene.
 
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene[18]
which motion was granted on February 2, 2010.[19]
 
The Parties Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion
by using religious dogma, violated the constitutional guarantees against the establishment of religion.
Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to privacy,
freedom of speech and assembly, and equal protection of laws, as well as constituted violations of the
Philippines international obligations against discrimination based on sexual orientation.
proposition that only those sectors specifically enumerated in the law or related to said sectors (labor,
peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth,
veterans, overseas workers, and professionals) may be registered under the party-list system. As we
explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections,[20] the
enumeration of marginalized and under-represented sectors is not exclusive. The crucial element is not
whether a sector is specifically enumerated, but whether a particular organization complies with the
requirements of the Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its petition
when it alleged that it had nationwide existence through its members and affiliate organizations. The
COMELEC claims that upon verification by its field personnel, it was shown that save for a few isolated
places in the country, petitioner does not exist in almost all provinces in the country.[21]
This argument that petitioner made untruthful statements in its petition when it
alleged its national existence is a new one; previously, the COMELEC claimed that petitioner was not
being truthful when it said that it or any of its nominees/party-list representatives have not violated or
failed to comply with laws, rules, or regulations relating to the elections. Nowhere was this ground for
denial of petitioners accreditation mentioned or even alluded to in the Assailed Resolutions. This, in
itself, is quite curious, considering that the reports of petitioners alleged non-existence were already
available to the COMELEC prior to the issuance of the First Assailed Resolution. At best, this is irregular
procedure; at worst, a belated afterthought, a change in respondents theory, and a serious violation of
petitioners right to procedural due process.
Nonetheless, we find that there has been no misrepresentation. A cursory perusal of
Ang Ladlads initial petition shows that it never claimed to exist in each province of the Philippines.
Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute at
least 670,000 persons; that it had 16,100 affiliates and members around the country, and 4,044
members in its electronic discussion group.[22] Ang Ladlad also represented itself to be a national
LGBT umbrella organization with affiliates around the Philippines composed of the following LGBT
networks:
                  Abra Gay Association
                  Aklan Butterfly Brigade (ABB) Aklan
                  Albay Gay Association
                  Arts Center of Cabanatuan City Nueva Ecija
                  Boys Legion Metro Manila
                  Cagayan de Oro People Like Us (CDO PLUS)
                  Cant Live in the Closet, Inc. (CLIC) Metro Manila
                  Cebu Pride Cebu City
                  Circle of Friends
                  Dipolog Gay Association Zamboanga del Norte
                  Gay, Bisexual, & Transgender Youth Association
(GABAY)
                  Gay and Lesbian Activists Network for Gender Equality
(GALANG) Metro Manila
                  Gay Mens Support Group (GMSG) Metro Manila
                  Gay United for Peace and Solidarity (GUPS) Lanao del
Norte
                  Iloilo City Gay Association Iloilo City

                    Kabulig Writers Group Camarines Sur

The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in denying                   Lesbian Advocates Philippines, Inc. (LEAP)
petitioners application for registration since there was no basis for COMELECs allegations of                   LUMINA Baguio City
immorality. It also opined that LGBTs have their own special interests and concerns which should have
been recognized by the COMELEC as a separate classification. However, insofar as the purported                   Marikina Gay Association Metro Manila
violations of petitioners freedom of speech, expression, and assembly were concerned, the OSG
maintained that there had been no restrictions on these rights.                   Metropolitan Community Church (MCC) Metro Manila

                    Naga City Gay Association Naga City

In its Comment, the COMELEC reiterated that petitioner does not have a concrete                   ONE BACARDI
and genuine national political agenda to benefit the nation and that the petition was validly dismissed on                   Order of St. Aelred (OSAe) Metro Manila
moral grounds. It also argued for the first time that the LGBT sector is not among the sectors
enumerated by the Constitution and RA 7941, and that petitioner made untruthful statements in its                   PUP LAKAN
petition when it alleged its national existence contrary to actual verification reports by COMELECs field
                  RADAR PRIDEWEAR
personnel.
                  Rainbow Rights Project (R-Rights), Inc. Metro Manila
Our Ruling 
                  San Jose del Monte Gay Association Bulacan
We grant the petition.
                  Sining Kayumanggi Royal Family Rizal
 Compliance with the Requirements of the Constitution and Republic Act No. 7941
                  Society of Transexual Women of the Philippines
The COMELEC denied Ang Ladlads application for registration on the ground that
(STRAP) Metro Manila
the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it associated with or
related to any of the sectors in the enumeration.                   Soul Jive Antipolo, Rizal
                    The Link Davao City
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the                   Tayabas Gay Association Quezon
                   Womens Bisexual Network Metro Manila
                  Zamboanga Gay Association
Zamboanga City[23]
Since the COMELEC only searched for the names ANG LADLAD LGBT or
LADLAD LGBT, it is no surprise that they found that petitioner had no presence in any of these regions.
In fact, if COMELECs findings are to be believed, petitioner does not even exist in Quezon City, which
is registered as Ang Ladlads principal place of business.
 
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its
compliance with the legal requirements for accreditation. Indeed, aside from COMELECs moral
objection and the belated allegation of non-existence, nowhere in the records has the respondent ever
found/ruled that Ang Ladlad is not qualified to register as a party-list organization under any of the
requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC claims,
lies in Ang Ladlads morality, or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlads Petition for Registration
Our Constitution provides in Article III, Section 5 that [n]o law shall be made
respecting an establishment of religion, or prohibiting the free exercise thereof. At bottom, what our non-
establishment clause calls for is government neutrality in religious matters.[24] Clearly, governmental
reliance on religious justification is inconsistent with this policy of neutrality.[25] We thus find that it was
grave violation of the non-establishment clause for the COMELEC to utilize the Bible and the Koran to
justify the exclusion of Ang Ladlad.
 
Rather than relying on religious belief, the legitimacy of the Assailed Resolutions
should depend, instead, on whether the COMELEC is able to advance some justification for its rulings
beyond mere conformity to religious doctrine. Otherwise stated, government must act for secular
purposes and in ways that have primarily secular effects. As we held in Estrada v. Escritor:[26]
 
x x x The morality referred to in the law is public and necessarily
secular, not religious as the dissent of Mr. Justice Carpio holds.
"Religious teachings as expressed in public debate may
influence the civil public order but public moral disputes may be
resolved only on grounds articulable in secular terms." Otherwise,
if government relies upon religious beliefs in formulating public
policies and morals, the resulting policies and morals would
require conformity to what some might regard as religious
programs or agenda. The non-believers would therefore be
compelled to conform to a standard of conduct buttressed by a
religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon
religious beliefs, it would tacitly approve or endorse that belief and
thereby also tacitly disapprove contrary religious or non-religious
views that would not support the policy. As a result, government
will not provide full religious freedom for all its citizens, or even
make it appear that those whose beliefs are disapproved are
second-class citizens.
In other words, government action, including its proscription of
immorality as expressed in criminal law like concubinage, must
have a secular purpose. That is, the government proscribes this
conduct because it is "detrimental (or dangerous) to those
conditions upon which depend the existence and progress of
human society" and not because the conduct is proscribed by
the beliefs of one religion or the other. Although admittedly, moral
judgments based on religion might have a compelling influence
on those engaged in public deliberations over what actions would
be considered a moral disapprobation punishable by law. After
all, they might also be adherents of a religion and thus have
religious opinions and moral codes with a compelling influence
on them; the human mind endeavors to regulate the temporal
and spiritual institutions of society in a uniform manner,
harmonizing earth with heaven. Succinctly put, a law could be
religious or Kantian or Aquinian or utilitarian in its deepest roots,
but it must have an articulable and discernible secular purpose
and justification to pass scrutiny of the religion clauses. x x x
Recognizing the religious nature of the Filipinos and the elevating
influence of religion in society, however, the Philippine
constitution's religion clauses prescribe not a strict but a
benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the
same time strive to uphold religious liberty to the greatest extent
possible within flexible constitutional limits. Thus, although the
morality contemplated by laws is secular, benevolent neutrality
could allow for accommodation of morality based on religion,
provided it does not offend compelling state interests.[27]
Public Morals as a Ground to Deny Ang Ladlads Petition for Registration
Respondent suggests that although the moral condemnation of homosexuality and
homosexual conduct may be religion-based, it has long been transplanted into generally accepted
public morals. The COMELEC argues:
Petitioners accreditation was denied not necessarily because
their group consists of LGBTs but because of the danger it poses
to the people especially the youth. Once it is recognized by the
government, a sector which believes that there is nothing wrong
in having sexual relations with individuals of the same gender is a
bad example. It will bring down the standard of morals we cherish
in our civilized society. Any society without a set of moral precepts
is in danger of losing its own existence.[28]
 
 
We are not blind to the fact that, through the years, homosexual conduct, and
perhaps homosexuals themselves, have borne the brunt of societal disapproval. It is not difficult to
imagine the reasons behind this censure religious beliefs, convictions about the preservation of
marriage, family, and procreation, even dislike or distrust of homosexuals themselves and their
perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize
homosexual conduct. Evidently, therefore, these generally accepted public morals have not been
convincingly transplanted into the realm of law.[29]
 
The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad.
Even the OSG agrees that there should have been a finding by the COMELEC that the groups
members have committed or are committing immoral acts.[30] The OSG argues:
 
x x x A person may be sexually attracted to a person of the same
gender, of a different gender, or more than one gender, but mere
attraction does not translate to immoral acts. There is a great
divide between thought and action. Reduction ad absurdum. If
immoral thoughts could be penalized, COMELEC would have its
hands full of disqualification cases against both the straights and
the gays. Certainly this is not the intendment of the law.[31]
 
 
Respondent has failed to explain what societal ills are sought to be prevented, or
why special protection is required for the youth. Neither has the COMELEC condescended to justify its
position that petitioners admission into the party-list system would be so harmful as to irreparably
damage the moral fabric of society. We, of course, do not suggest that the state is wholly without
authority to regulate matters concerning morality, sexuality, and sexual relations, and we recognize that
the government will and should continue to restrict behavior considered detrimental to society.
Nonetheless, we cannot countenance advocates who, undoubtedly with the loftiest of intentions,
situate morality on one end of an argument or another, without bothering to go through the rigors of
legal reasoning and explanation. In this, the notion of morality is robbed of all value. Clearly then, the
bare invocation of morality will not remove an issue from our scrutiny.
 
We also find the COMELECs reference to purported violations of our penal and civil
laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil Code defines a nuisance as any act,
omission, establishment, condition of property, or anything else which shocks, defies, or disregards
decency or morality, the remedies for which are a prosecution under the Revised Penal Code or any
local ordinance, a civil action, or abatement without judicial proceedings.[32] A violation of Article 201 of
the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a
criminal conviction. It hardly needs to be emphasized that mere allegation of violation of laws is not
proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal
proceedings and a judicial determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient
governmental interest to justify exclusion of homosexuals from participation in the party-list system. The
denial of Ang Ladlads registration on purely moral grounds amounts more to a statement of dislike and
disapproval of homosexuals, rather than a tool to further any substantial public interest. Respondents
blanket justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals
themselves as a class, not because of any particular morally reprehensible act. It is this selective
targeting that implicates our equal protection clause.
Equal Protection
 
Despite the absolutism of Article III, Section 1 of our Constitution, which provides nor
shall any person be denied equal protection of the laws, courts have never interpreted the provision as
an absolute prohibition on classification. Equality, said Aristotle, consists in the same treatment of similar
persons.[33] The equal protection clause guarantees that no person or class of persons shall be
deprived of the same protection of laws which is enjoyed by other persons or other classes in the same
place and in like circumstances.[34]
Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a
suspect class, we will uphold the classification as long as it bears a rational relationship to some
legitimate government end.[35] In Central Bank Employees Association, Inc. v. Banko Sentral ng
Pilipinas,[36] we declared that [i]n our jurisdiction, the standard of analysis of equal protection
challenges x x x have followed the rational basis test, coupled with a deferential attitude to legislative
classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal
breach of the Constitution.[37]
The COMELEC posits that the majority of the Philippine population considers
homosexual conduct as immoral and unacceptable, and this constitutes sufficient reason to disqualify
the petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such belief.
No law exists to criminalize homosexual behavior or expressions or parties about homosexual
behavior. Indeed, even if we were to assume that public opinion is as the COMELEC describes it, the
asserted state interest here that is, moral disapproval of an unpopular minority is not a legitimate state
interest that is sufficient to satisfy rational basis review under the equal protection clause. The
COMELECs differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute to the
formulation of legislation that would benefit the nation, furthers no legitimate state interest other than
disapproval of or dislike for a disfavored group.
 
From the standpoint of the political process, the lesbian, gay, bisexual, and
transgender have the same interest in participating in the party-list system on the same basis as other
political parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of
general application should apply with equal force to LGBTs, and they deserve to participate in the party-
list system on the same basis as other marginalized and under-represented sectors.
It bears stressing that our finding that COMELECs act of differentiating LGBTs from
heterosexuals insofar as the party-list system is concerned does not imply that any other law
distinguishing between heterosexuals and homosexuals under different circumstances would similarly
fail. We disagree with the OSGs position that homosexuals are a class in themselves for the purposes
of the equal protection clause.[38] We are not prepared to single out homosexuals as a separate class
meriting special or differentiated treatment. We have not received sufficient evidence to this effect, and it
is simply unnecessary to make such a ruling today. Petitioner itself has merely demanded that it be
recognized under the same basis as all other groups similarly situated, and that the COMELEC made
an unwarranted and impermissible classification not justified by the circumstances of the case.
Freedom of Expression and Association
 
Under our system of laws, every group has the right to promote its agenda and
attempt to persuade society of the validity of its position through normal democratic means.[39] It is in
the public square that deeply held convictions and differing opinions should be distilled and deliberated
upon. As we held in Estrada v. Escritor:[40]
 
In a democracy, this common agreement on political and moral
ideas is distilled in the public square. Where citizens are free,
every opinion, every prejudice, every aspiration, and every moral
discernment has access to the public square where people
deliberate the order of their life together. Citizens are the bearers
of opinion, including opinion shaped by, or espousing religious
belief, and these citizens have equal access to the public square.
In this representative democracy, the state is prohibited from
determining which convictions and moral judgments may be
proposed for public deliberation. Through a constitutionally
designed process, the people deliberate and decide. Majority rule
is a necessary principle in this democratic governance. Thus,
when public deliberation on moral judgments is finally crystallized
into law, the laws will largely reflect the beliefs and preferences of
the majority, i.e., the mainstream or median groups.
Nevertheless, in the very act of adopting and accepting a
constitution and the limits it specifies including protection of
religious freedom "not only for a minority, however small not only
for a majority, however large but for each of us" the majority
imposes upon itself a self-denying ordinance. It promises not to
do what it otherwise could do: to ride roughshod over the
dissenting minorities.
 
Freedom of expression constitutes one of the essential foundations of a democratic
society, and this freedom applies not only to those that are favorably received but also to those that
offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate
aim pursued. Absent any compelling state interest, it is not for the COMELEC or this Court to impose its
views on the populace. Otherwise stated, the COMELEC is certainly not free to interfere with speech
for no better reason than promoting an approved message or discouraging a disfavored one.
 
This position gains even more force if one considers that homosexual conduct is not
illegal in this country. It follows that both expressions concerning ones homosexuality and the activity of
forming a political association that supports LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even overwhelming
public perception that homosexual conduct violates public morality does not justify criminalizing same-
sex conduct.[41] European and United Nations judicial decisions have ruled in favor of gay rights
claimants on both privacy and equality grounds, citing general privacy and equal protection provisions
in foreign and international texts.[42] To the extent that there is much to learn from other jurisdictions
that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These
foreign authorities, while not formally binding on Philippine courts, may nevertheless have persuasive
influence on the Courts analysis.
In the area of freedom of expression, for instance, United States courts have ruled
that existing free speech doctrines protect gay and lesbian rights to expressive conduct. In order to
justify the prohibition of a particular expression of opinion, public institutions must show that their actions
were caused by something more than a mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint.[43]
 
With respect to freedom of association for the advancement of ideas and beliefs, in
Europe, with its vibrant human rights tradition, the European Court of Human Rights (ECHR) has
repeatedly stated that a political party may campaign for a change in the law or the constitutional
structures of a state if it uses legal and democratic means and the changes it proposes are consistent
with democratic principles. The ECHR has emphasized that political ideas that challenge the existing
order and whose realization is advocated by peaceful means must be afforded a proper opportunity of
expression through the exercise of the right of association, even if such ideas may seem shocking or
unacceptable to the authorities or the majority of the population.[44] A political group should not be
hindered solely because it seeks to publicly debate controversial political issues in order to find solutions
capable of satisfying everyone concerned.[45] Only if a political party incites violence or puts forward
policies that are incompatible with democracy does it fall outside the protection of the freedom of
association guarantee.[46]
We do not doubt that a number of our citizens may believe that homosexual
conduct is distasteful, offensive, or even defiant. They are entitled to hold and express that view. On the
other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships
between individuals of the same sex are morally equivalent to heterosexual relationships. They, too, are
entitled to hold and express that view. However, as far as this Court is concerned, our democracy
precludes using the religious or moral views of one part of the community to exclude from consideration
the values of other members of the community.
Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may
be that this Decision will only serve to highlight the discrepancy between the rigid constitutional analysis
of this Court and the more complex moral sentiments of Filipinos. We do not suggest that public
opinion, even at its most liberal, reflect a clear-cut strong consensus favorable to gay rights claims and
we neither attempt nor expect to affect individual perceptions of homosexuality through this Decision.
 
The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed
on Ang Ladlad, and its members have not been deprived of their right to voluntarily associate, then
there has been no restriction on their freedom of expression or association. The OSG argues that:
 
There was no utterance restricted, no publication censored, or
any assembly denied. [COMELEC] simply exercised its authority
to review and verify the qualifications of petitioner as a sectoral
party applying to participate in the party-list system. This lawful
exercise of duty cannot be said to be a transgression of Section
4, Article III of the Constitution.
 
xxxx
 
A denial of the petition for registration x x x does not deprive the
members of the petitioner to freely take part in the conduct of
elections. Their right to vote will not be hampered by said denial.
In fact, the right to vote is a constitutionally-guaranteed right which
cannot be limited.
 
As to its right to be elected in a genuine periodic election,
petitioner contends that the denial of Ang Ladlads petition has the
clear and immediate effect of limiting, if not outrightly nullifying the
capacity of its members to fully and equally participate in public life
through engagement in the party list elections.
This argument is puerile. The holding of a
public office is not a right but a privilege subject to limitations
imposed by law. x x x[47]
The OSG fails to recall that petitioner has, in fact, established its qualifications to
participate in the party-list system, and as advanced by the OSG itself the moral objection offered by
the COMELEC was not a limitation imposed by law. To the extent, therefore, that the petitioner has
been precluded, because of COMELECs action, from publicly expressing its views as a political party
and participating on an equal basis in the political process with other equally-qualified party-list
candidates, we find that there has, indeed, been a transgression of petitioners fundamental rights.
Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope and
promise, international human rights law, in particular, has grown dynamically in its attempt to bring
about a more just and humane world order. For individuals and groups struggling with inadequate
structural and governmental support, international human rights norms are particularly significant, and
should be effectively enforced in domestic legal systems so that such norms may become actual,
rather than ideal, standards of conduct.
 
Our Decision today is fully in accord with our international obligations to protect and
promote human rights. In particular, we explicitly recognize the principle of non-discrimination as it
relates to the right to electoral participation, enunciated in the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:
 
Article 26
 
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all
persons equal and effective protection against discrimination on
any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other
status.
 
In this context, the principle of non-discrimination requires that laws of general
application relating to elections be applied equally to all persons, regardless of sexual orientation.
Although sexual orientation is not specifically enumerated as a status or ratio for discrimination in Article
26 of the ICCPR, the ICCPR Human Rights Committee has opined that the reference to sex in Article
26 should be construed to include sexual orientation.[48] Additionally, a variety of United Nations
bodies have declared discrimination on the basis of sexual orientation to be prohibited under various
international agreements.[49]
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the
government of his country, directly or through freely chosen
representatives.
Likewise, the ICCPR states:
Article 25  communities are divided in opinion. This Courts role is not to impose its own view of acceptable
Every citizen shall have the right and the
opportunity, without any of the distinctions mentioned in article 2
and without unreasonable restrictions:
(a) To take part in the conduct of public affairs,
directly or through freely chosen representatives;
(b) To vote and to be elected at genuine
periodic elections which shall be by universal and equal suffrage
and shall be held by secret ballot, guaranteeing the free
expression of the will of the electors;
(c) To have access, on general terms of
equality, to public service in his country.
 
 
As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is
elaborated by the Human Rights Committee in its General Comment No. 25 (Participation in Public
Affairs and the Right to Vote) as follows:
 
1. Article 25 of the Covenant recognizes and
protects the right of every citizen to take part in the conduct of
public affairs, the right to vote and to be elected and the right to
have access to public service. Whatever form of constitution or
government is in force, the Covenant requires States to adopt
such legislative and other measures as may be necessary to
ensure that citizens have an effective opportunity to enjoy the
rights it protects. Article 25 lies at the core of democratic
government based on the consent of the people and in
conformity with the principles of the Covenant.
 
xxxx
15. The effective implementation of the right
and the opportunity to stand for elective office ensures that
persons entitled to vote have a free choice of candidates. Any
restrictions on the right to stand for election, such as minimum
age, must be justifiable on objective and reasonable criteria.
Persons who are otherwise eligible to stand for election should
not be excluded by unreasonable or discriminatory requirements
such as education, residence or descent, or by reason of political
affiliation. No person should suffer discrimination or disadvantage
of any kind because of that person's candidacy. States parties
should indicate and explain the legislative provisions which
exclude any group or category of persons from elective office.[50]
We stress, however, that although this Court stands willing to assume the
responsibility of giving effect to the Philippines international law obligations, the blanket invocation of
international law is not the panacea for all social ills. We refer now to the petitioners invocation of the
Yogyakarta Principles (the Application of International Human Rights Law In Relation to Sexual
Orientation and Gender Identity),[51] which petitioner declares to reflect binding principles of
international law.
 
At this time, we are not prepared to declare that these Yogyakarta Principles contain
norms that are obligatory on the Philippines. There are declarations and obligations outlined in said
Principles which are not reflective of the current state of international law, and do not find basis in any of
the sources of international law enumerated under Article 38(1) of the Statute of the International Court
of Justice.[52] Petitioner has not undertaken any objective and rigorous analysis of these alleged
principles of international law to ascertain their true status.
We also hasten to add that not everything that society or a certain segment of
society wants or demands is automatically a human right. This is not an arbitrary human intervention
that may be added to or subtracted from at will. It is unfortunate that much of what passes for human
rights today is a much broader context of needs that identifies many social desires as rights in order to
further claims that international law obliges states to sanction these innovations. This has the effect of
diluting real human rights, and is a result of the notion that if wants are couched in rights language, then
they are no longer controversial.
Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a
declaration formulated by various international law professors, are at best de lege ferenda and do not
constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is
characterized by the soft law nomenclature, i.e., international law is full of principles that promote
international cooperation, harmony, and respect for human rights, most of which amount to no more
than well-meaning desires, without the support of either State practice or opinio juris.[53]
As a final note, we cannot help but observe that the social issues presented by this
case are emotionally charged, societal attitudes are in flux, even the psychiatric and religious
behavior. Rather, it is to apply the Constitution and laws as best as it can, uninfluenced by public
opinion, and confident in the knowledge that our democracy is resilient enough to withstand vigorous
debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections
dated November 11, 2009 and December 16, 2009 in SPP No. 09-228 (PL) are hereby SET ASIDE.
The Commission on Elections is directed to GRANT petitioners application for party-list accreditation.
SO ORDERED.
TRILLANES vs. PIMENTEL
CARPIO MORALES, J.:
At the wee hours of July 27, 2003, a group of more than 300 heavily armed soldiers
led by junior officers of the Armed Forces of the Philippines (AFP) stormed into the
Oakwood Premier Apartments in Makati City and publicly demanded the resignation
of the President and key national officials.
Later in the day, President Gloria Macapagal Arroyo issued Proclamation No. 427
and General Order No. 4 declaring a state of rebellion and calling out the Armed
Forces to suppress the rebellion. 1 A series of negotiations quelled the teeming
tension and eventually resolved the impasse with the surrender of the militant
soldiers that evening.
In the aftermath of this eventful episode dubbed as the "Oakwood Incident,"
petitioner Antonio F. Trillanes IV was charged, along with his comrades, with coup
d’etat defined under Article 134-A of the Revised Penal Code before the Regional
Trial Court (RTC) of Makati. The case was docketed as Criminal Case No. 03-2784,
"People v. Capt. Milo D. Maestrecampo, et al."
Close to four years later, petitioner, who has remained in detention, 2 threw his hat in
the political arena and won a seat in the Senate with a six-year term commencing at
noon on June 30, 2007.3
Before the commencement of his term or on June 22, 2007, petitioner filed with the
RTC, Makati City, Branch 148, an "Omnibus Motion for Leave of Court to be Allowed
to Attend Senate Sessions and Related Requests" 4 (Omnibus Motion). Among his
requests were:
(a) To be allowed to go to the Senate to attend all official functions of the Senate
(whether at the Senate or elsewhere) particularly when the Senate is in session, and
to attend the regular and plenary sessions of the Senate, committee hearings,
committee meetings, consultations, investigations and hearings in aid of legislation,
caucuses, staff meetings, etc., which are normally held at the Senate of the
Philippines located at the GSIS Financial Center, Pasay City (usually from Mondays
to Thursdays from 8:00 a.m. to 7:00 p.m.);
(b) To be allowed to set up a working area at his place of detention at the Marine
Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, with a personal desktop
computer and the appropriate communications equipment (i.e., a telephone line and
internet access) in order that he may be able to work there when there are no
sessions, meetings or hearings at the Senate or when the Senate is not in session.
The costs of setting up the said working area and the related equipment and utility
costs can be charged against the budget/allocation of the Office of the accused from
the Senate;
(c) To be allowed to receive members of his staff at the said working area at his
place of detention at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig
City, at reasonable times of the day particularly during working days for purposes of
meetings, briefings, consultations and/or coordination, so that the latter may be able
to assists (sic) him in the performance and discharge of his duties as a Senator of
the Republic;
(d) To be allowed to give interviews and to air his comments, reactions and/or
opinions to the press or the media regarding the important issues affecting the
country and the public while at the Senate or elsewhere in the performance of his
duties as Senator to help shape public policy and in the light of the important role of
the Senate in maintaining the system of checks and balance between the three (3)
co-equal branches of Government;
(e) With prior notice to the Honorable Court and to the accused and his custodians,
to be allowed to receive, on Tuesdays and Fridays, reporters and other members of
the media who may wish to interview him and/or to get his comments, reactions
and/or opinion at his place of confinement at the Marine Brig, Marine Barracks
Manila, Fort Bonifacio, Taguig City, particularly when there are no sessions,
meetings or hearings at the Senate or when the Senate is not in session; and
(f) To be allowed to attend the organizational meeting and election of officers of the
Senate and related activities scheduled in the morning (9:00 or 10:00 a.m.) of 23 July
2007 at the Senate of the Philippines located at the GSIS Financial Center, Pasay
City.5
By Order of July 25, 2007, 6 the trial court denied all the requests in the Omnibus
Motion. Petitioner moved for reconsideration in which he waived his requests in
paragraphs (b), (c) and (f) to thus trim them down to three. 7 The trial court just the
same denied the motion by Order of September 18, 2007. 8
Hence, the present petition for certiorari to set aside the two Orders of the trial court,
and for prohibition and mandamus to (i) enjoin respondents from banning the Senate
staff, resource persons and guests from meeting with him or transacting business
with him in his capacity as Senator; and (ii) direct respondents to allow him access to
the Senate staff, resource persons and guests and permit him to attend all sessions
and official functions of the Senate. Petitioner preliminarily prayed for the
maintenance of the status quo ante of having been able hitherto to convene his staff,
resource persons and guests 9 at the Marine Brig.
Impleaded as co-respondents of Judge Oscar Pimentel, Sr. are AFP Chief of Staff,
Gen. Hermogenes Esperon (Esperon); Philippine Navy’s Flag Officer-in-Command,
Vice Admiral Rogelio Calunsag; Philippine Marines’ Commandant, Major Gen.
Benjamin Dolorfino; and Marine Barracks Manila Commanding Officer, Lt. Col.
Luciardo Obeña (Obeña).
Petitioner later manifested, in his Reply of February 26, 2008, that he has, since
November 30, 2007, been in the custody of the Philippine National Police (PNP)
Custodial Center following the foiled take-over of the Manila Peninsula Hotel 10 the
day before or on November 29, 2007.
Such change in circumstances thus dictates the discontinuation of the action as
against the above-named military officers-respondents. The issues raised in relation
to them had ceased to present a justiciable controversy, so that a determination
thereof would be without practical value and use. Meanwhile, against those not made
parties to the case, petitioner cannot ask for reliefs from this Court. 11 Petitioner did
not, by way of substitution, implead the police officers currently exercising custodial
responsibility over him; and he did not satisfactorily show that they have adopted or
continued the assailed actions of the former custodians. 12
Petitioner reiterates the following grounds which mirror those previously raised in his
Motion for Reconsideration filed with the trial court:
I.
THE JURISPRUDENCE CITED BY THE HONORABLE COURT A QUO IS
CLEARLY INAPPLICABLE TO THE INSTANT CASE BECAUSE OF THE
FOLLOWING REASONS:
A.
UNLIKE IN THIS CASE, THE ACCUSED IN THE JALOSJOS CASE WAS ALREADY
CONVICTED AT THE TIME HE FILED HIS MOTION. IN THE INSTANT CASE,
ACCUSED/PETITIONER HAS NOT BEEN CONVICTED AND, THEREFORE, STILL
ENJOYS THE PRESUMPTION OF INNOCENCE;
B.
THE ACCUSED IN THE JALOJOS (SIC) CASE WAS CHARGED WITH TWO (2)
COUNTS OF STATUTORY RAPE AND SIX (6) COUNTS OF ACTS OF
LASCIVIOUSNESS, CRIMES INVOLVING MORAL TURPITUDE. HEREIN
ACCUSED/PETITIONER IS CHARGED WITH THE OFFENSE OF "COUP D’ETAT",
A CHARGE WHICH IS COMMONLY REGARDED AS A POLITICAL OFFENSE;
C.
THE ACCUSED IN THE JALOSJOS CASE ATTEMPTED TO FLEE PRIOR TO
BEING ARRESTED. THE ACCUSED/ PETITIONER VOLUNTARILY
SURRENDERED TO THE AUTHORITIES AND AGREED TO TAKE
RESPONSIBILITY FOR HIS ACTS AT OAKWOOD;
II.
GEN. ESPERON DID NOT OVERRULE THE RECOMMENDATION OF THE
MARINE BRIG’S COMMANDING OFFICER TO ALLOW PETITIONER TO ATTEND
THE SENATE SESSIONS;
III.
ACCUSED/PETITIONER SUBMITS THAT THE FACT THAT THE PEOPLE, IN
THEIR SOVEREIGN CAPACITY, ELECTED HIM TO THE POSITION OF SENATOR
OF THE REPUBLIC PROVIDES THE PROPER LEGAL JUSTIFICATION TO
ALLOW HIM TO WORK AND SERVE HIS MANDATE AS A SENATOR;
- AND -
IV.
MOREOVER, THERE ARE ENOUGH PRECEDENTS TO ALLOW LIBERAL
TREATMENT OF DETENTION PRISONERS WHO ARE HELD WITHOUT BAIL AS
IN THE CASE OF FORMER PRESIDENT JOSEPH "ERAP" ESTRADA AND
FORMER ARMM GOV. NUR MISUARI.13
The petition is bereft of merit.
In attempting to strike a distinction between his case and that of Jalosjos, petitioner
chiefly points out that former Rep. Romeo Jalosjos (Jalosjos) was already convicted,
albeit his conviction was pending appeal, when he filed a motion similar to
petitioner’s Omnibus Motion, whereas he (petitioner) is a mere detention prisoner.
He asserts that he continues to enjoy civil and political rights since the presumption
of innocence is still in his favor.
Further, petitioner illustrates that Jalosjos was charged with crimes involving moral
turpitude, i.e., two counts of statutory rape and six counts of acts of lasciviousness,
whereas he is indicted for coup d’etat which is regarded as a "political offense."
Furthermore, petitioner justifies in his favor the presence of noble causes in
expressing legitimate grievances against the rampant and institutionalized practice of
graft and corruption in the AFP.
In sum, petitioner’s first ground posits that there is a world of difference between his
case and that of Jalosjos respecting the type of offense involved, the stage of filing of
the motion, and other circumstances which demonstrate the inapplicability of
Jalosjos.14
A plain reading of. Jalosjos suggests otherwise, however.
The distinctions cited by petitioner were not elemental in the pronouncement in
Jalosjos that election to Congress is not a reasonable classification in criminal law
enforcement as the functions and duties of the office are not substantial distinctions
which lift one from the class of prisoners interrupted in their freedom and restricted in
liberty of movement.15
It cannot be gainsaid that a person charged with a crime is taken into custody for
purposes of the administration of justice. No less than the Constitution provides:
All persons, except those charged with offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before conviction, be bailable by sufficient
sureties, or be released on recognizance as may be provided by law. The right to bail
shall not be impaired even when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required. 16 (Underscoring supplied)
The Rules also state that no person charged with a capital offense, 17 or an offense
punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when
evidence of guilt is strong, regardless of the stage of the criminal action. 18
That the cited provisions apply equally to rape and coup d’etat cases, both being
punishable by reclusion perpetua,19 is beyond cavil. Within the class of offenses
covered by the stated range of imposable penalties, there is clearly no distinction as
to the political complexion of or moral turpitude involved in the crime charged.
In the present case, it is uncontroverted that petitioner’s application for bail and for
release on recognizance was denied. 20 The determination that the evidence of guilt is
strong, whether ascertained in a hearing of an application for bail 21 or imported from
a trial court’s judgment of conviction, 22 justifies the detention of an accused as a valid
curtailment of his right to provisional liberty. This accentuates the proviso that the
denial of the right to bail in such cases is "regardless of the stage of the criminal
action." Such justification for confinement with its underlying rationale of public self-
defense23 applies equally to detention prisoners like petitioner or convicted prisoners-
appellants like Jalosjos.
As the Court observed in Alejano v. Cabuay,24 it is impractical to draw a line between
convicted prisoners and pre-trial detainees for the purpose of maintaining jail
security; and while pre-trial detainees do not forfeit their constitutional rights upon
confinement, the fact of their detention makes their rights more limited than those of
the public.
The Court was more emphatic in People v. Hon. Maceda:25
As a matter of law, when a person indicted for an offense is arrested, he is deemed
placed under the custody of the law. He is placed in actual restraint of liberty in jail so
that he may be bound to answer for the commission of the offense. He must be
detained in jail during the pendency of the case against him, unless he is authorized
by the court to be released on bail or on recognizance. Let it be stressed that all
prisoners whether under preventive detention or serving final sentence can not
practice their profession nor engage in any business or occupation, or hold office,
elective or appointive, while in detention. This is a necessary consequence of arrest
and detention.26 (Underscoring supplied)
These inherent limitations, however, must be taken into account only to the extent
that confinement restrains the power of locomotion or actual physical movement. It
bears noting that in Jalosjos, which was decided en banc one month after Maceda,
the Court recognized that the accused could somehow accomplish legislative
results.27
The trial court thus correctly concluded that the presumption of innocence does not
carry with it the full enjoyment of civil and political rights.
Petitioner is similarly situated with Jalosjos with respect to the application of the
presumption of innocence during the period material to the resolution of their
respective motions. The Court in Jalosjos did not mention that the presumption of
innocence no longer operates in favor of the accused pending the review on appeal
of the judgment of conviction. The rule stands that until a promulgation of final
conviction is made, the constitutional mandate of presumption of innocence
prevails.28
In addition to the inherent restraints, the Court notes that petitioner neither denied
nor disputed his agreeing to a consensus with the prosecution that media access to
him should cease after his proclamation by the Commission on Elections. 29
Petitioner goes on to allege that unlike Jalosjos who attempted to evade trial, he is
not a flight risk since he voluntarily surrendered to the proper authorities and such
can be proven by the numerous times he was allowed to travel outside his place of
detention.
Subsequent events reveal the contrary, however. The assailed Orders augured well
when on November 29, 2007 petitioner went past security detail for some reason and
proceeded from the courtroom to a posh hotel to issue certain statements. The
account, dubbed this time as the "Manila Pen Incident," 30 proves that petitioner’s
argument bites the dust. The risk that he would escape ceased to be neither remote
nor nil as, in fact, the cause for foreboding became real.
Moreover, circumstances indicating probability of flight find relevance as a factor in
ascertaining the reasonable amount of bail and in canceling a discretionary grant of
bail.31 In cases involving non-bailable offenses, what is controlling is the
determination of whether the evidence of guilt is strong. Once it is established that it
is so, bail shall be denied as it is neither a matter of right nor of discretion. 32
Petitioner cannot find solace in Montano v. Ocampo33 to buttress his plea for leeway
because unlike petitioner, the therein petitioner, then Senator Justiniano Montano,
who was charged with multiple murder and multiple frustrated murder, 34 was able to
rebut the strong evidence for the prosecution. Notatu dignum is this Court’s
pronouncement therein that "if denial of bail is authorized in capital cases, it is only
on the theory that the proof being strong, the defendant would flee, if he has the
opportunity, rather than face the verdict of the jury." 35 At the time Montano was
indicted, when only capital offenses were non-bailable where evidence of guilt is
strong,36 the Court noted the obvious reason that "one who faces a probable death
sentence has a particularly strong temptation to flee." 37 Petitioner’s petition for bail
having earlier been denied, he cannot rely on Montano to reiterate his requests
which are akin to bailing him out.
Second, petitioner posits that, contrary to the trial court’s findings, Esperon did not
overrule Obeña’s recommendation to allow him to attend Senate sessions. Petitioner
cites the Comment38 of Obeña that he interposed no objection to such request but
recommended that he be transported by the Senate Sergeant-at-Arms with adequate
Senate security. And petitioner faults the trial court for deeming that Esperon, despite
professing non-obstruction to the performance of petitioner’s duties, flatly rejected all
his requests, when what Esperon only disallowed was the setting up of a political
office inside a military installation owing to AFP’s apolitical nature. 39
The effective management of the detention facility has been recognized as a valid
objective that may justify the imposition of conditions and restrictions of pre-trial
detention.40 The officer with custodial responsibility over a detainee may undertake
such reasonable measures as may be necessary to secure the safety and prevent
the escape of the detainee. 41 Nevertheless, while the comments of the detention
officers provide guidance on security concerns, they are not binding on the trial court
in the same manner that pleadings are not impositions upon a court.
Third, petitioner posits that his election provides the legal justification to allow him to
serve his mandate, after the people, in their sovereign capacity, elected him as
Senator. He argues that denying his Omnibus Motion is tantamount to removing him
from office, depriving the people of proper representation, denying the people’s will,
repudiating the people’s choice, and overruling the mandate of the people.
Petitioner’s contention hinges on the doctrine in administrative law that "a public
official can not be removed for administrative misconduct committed during a prior
term, since his re-election to office operates as a condonation of the officer’s
previous misconduct to the extent of cutting off the right to remove him therefor." 42
The assertion is unavailing. The case against petitioner is not administrative in
nature. And there is no "prior term" to speak of. In a plethora of cases, 43 the Court
categorically held that the doctrine of condonation does not apply to criminal cases.
Election, or more precisely, re-election to office, does not obliterate a criminal
charge. Petitioner’s electoral victory only signifies pertinently that when the voters
elected him to the Senate, "they did so with full awareness of the limitations on his
freedom of action [and] x x x with the knowledge that he could achieve only such
legislative results which he could accomplish within the confines of prison." 44
In once more debunking the disenfranchisement argument, 45 it is opportune to wipe
out the lingering misimpression that the call of duty conferred by the voice of the
people is louder than the litany of lawful restraints articulated in the Constitution and
echoed by jurisprudence. The apparent discord may be harmonized by the
overarching tenet that the mandate of the people yields to the Constitution which the
people themselves ordained to govern all under the rule of law.
The performance of legitimate and even essential duties by public officers has never
been an excuse to free a person validly in prison. The duties imposed by the
"mandate of the people" are multifarious. The accused-appellant asserts that the
duty to legislate ranks highest in the hierarchy of government. The accused-appellant
is only one of 250 members of the House of Representatives, not to mention the 24
members of the Senate, charged with the duties of legislation. Congress continues to
function well in the physical absence of one or a few of its members. x x x Never has
the call of a particular duty lifted a prisoner into a different classification from those
others who are validly restrained by law.46 (Underscoring supplied)
Lastly, petitioner pleads for the same liberal treatment accorded certain detention
prisoners who have also been charged with non-bailable offenses, like former
President Joseph Estrada and former Governor Nur Misuari who were allowed to
attend "social functions." Finding no rhyme and reason in the denial of the more
serious request to perform the duties of a Senator, petitioner harps on an alleged
violation of the equal protection clause.
In arguing against maintaining double standards in the treatment of detention
prisoners, petitioner expressly admits that he intentionally did not seek preferential
treatment in the form of being placed under Senate custody or house arrest, 47 yet he
at the same time, gripes about the granting of house arrest to others.
Emergency or compelling temporary leaves from imprisonment are allowed to all
prisoners, at the discretion of the authorities or upon court orders. 48 That this
discretion was gravely abused, petitioner failed to establish. In fact, the trial court
previously allowed petitioner to register as a voter in December 2006, file his
certificate of candidacy in February 2007, cast his vote on May 14, 2007, be
proclaimed as senator-elect, and take his oath of office 49 on June 29, 2007. In a
seeming attempt to bind or twist the hands of the trial court lest it be accused of
taking a complete turn-around,50 petitioner largely banks on these prior grants to him
and insists on unending concessions and blanket authorizations.
Petitioner’s position fails. On the generality and permanence of his requests alone,
petitioner’s case fails to compare with the species of allowable leaves. Jaloslos
succinctly expounds:
x x x Allowing accused-appellant to attend congressional sessions and committee
meetings for five (5) days or more in a week will virtually make him a free man with
all the privileges appurtenant to his position. Such an aberrant situation not only
elevates accused-appellant’s status to that of a special class, it also would be a
mockery of the purposes of the correction system. 51
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
SORIANO vs. LAGUARDIA
VELASCO, JR., J.:
In these two petitions for certiorari and prohibition under Rule 65,
petitioner Eliseo F. Soriano seeks to nullify and set aside an order and a decision of
the Movie and Television Review and Classification Board (MTRCB) in connection
with certain utterances he made in his television show, Ang Dating Daan.
 
Facts of the Case
On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang
Dating Daan, aired on UNTV 37, made the following remarks:
Lehitimong anak ng demonyo; sinungaling;
 
Gago ka talaga Michael, masahol ka pa sa putang
babae o di ba. Yung putang babae ang gumagana
lang doon yung ibaba, [dito] kay Michael ang
gumagana ang itaas, o di ba! O, masahol pa sa
putang babae yan. Sabi ng lola ko masahol pa sa
putang babae yan. Sobra ang kasinungalingan ng
mga demonyong ito.[1] x x x
 
Two days after, before the MTRCB, separate but almost identical
affidavit-complaints were lodged by Jessie L. Galapon and seven other private
respondents, all members of the Iglesia ni Cristo (INC),[2] against petitioner in
connection with the above broadcast. Respondent Michael M. Sandoval, who felt
directly alluded to in petitioners remark, was then a minister of INC and a regular
host of the TV program Ang Tamang Daan.[3] Forthwith, the MTRCB sent petitioner
a notice of the hearing on August 16, 2004 in relation to the alleged use of some
cuss words in the August 10, 2004 episode of Ang Dating Daan.[4]
After a preliminary conference in which petitioner appeared, the
MTRCB, by Order of August 16, 2004, preventively suspended the showing of Ang PROCESS OF LAW AND EQUAL PROTECTION
Dating Daan program for 20 days, in accordance with Section 3(d) of Presidential UNDER THE LAW; CONSEQUENTLY, THE [IRR],
Decree No. (PD) 1986, creating the MTRCB, in relation to Sec. 3, Chapter XIII of the RULES OF PROCEDURE, AND OFFICIAL ACTS OF
2004 Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of THE MTRCB PURSUANT THERETO, I.E.,
the MTRCB Rules of Procedure.[5] The same order also set the case for preliminary DECISION DATED 27 SEPTEMBER 2004 AND
investigation. ORDER DATED 19 OCTOBER 2004, ARE
  LIKEWISE CONSTITUTIONALLY INFIRM AS
The following day, petitioner sought reconsideration of the preventive APPLIED IN THE CASE AT BENCH; AND
suspension order, praying that Chairperson Consoliza P. Laguardia and two other  
members of the adjudication board recuse themselves from hearing the case.[6] Two III
days after, however, petitioner sought to withdraw[7] his motion for reconsideration,  
followed by the filing with this Court of a petition for certiorari and prohibition, [8] [PD] 1986 IS NOT COMPLETE IN ITSELF AND
docketed as G.R. No. 164785, to nullify the preventive suspension order thus issued. DOES NOT PROVIDE FOR A SUFFICIENT
  STANDARD FOR ITS IMPLEMENTATION THEREBY
On September 27, 2004, in Adm. Case No. 01-04, the MTRCB RESULTING IN AN UNDUE DELEGATION OF
issued a decision, disposing as follows: LEGISLATIVE POWER BY REASON THAT IT DOES
  NOT PROVIDE FOR THE PENALTIES FOR
WHEREFORE, in view of all the VIOLATIONS OF ITS PROVISIONS.
foregoing, a Decision is hereby rendered, finding CONSEQUENTLY, THE [IRR], RULES OF
respondent Soriano liable for his utterances and PROCEDURE, AND OFFICIAL ACTS OF THE
thereby imposing on him a penalty of three (3) months MTRCB PURSUANT THERETO, I.E. DECISION
suspension from his program, Ang Dating Daan. DATED 27 SEPTEMBER 2004 AND ORDER DATED
  19 OCTOBER 2004, ARE LIKEWISE
Co-respondents Joselito Mallari, CONSTITUTIONALLY INFIRM AS APPLIED IN THE
Luzviminda Cruz and UNTV Channel 37 and its CASE AT BENCH[11]
owner, PBC, are hereby exonerated for lack of  
evidence. G.R. No. 164785
   
SO ORDERED.[9] We shall first dispose of the issues in G.R. No. 164785, regarding the
  assailed order of preventive suspension, although its implementability had already
Petitioner then filed this petition for certiorari and prohibition with been overtaken and veritably been rendered moot by the equally assailed
prayer for injunctive relief, docketed as G.R. No. 165636. September 27, 2004 decision.
   
In a Resolution dated April 4, 2005, the Court consolidated G.R. No. It is petitioners threshold posture that the preventive suspension
164785 with G.R. No. 165636. imposed against him and the relevant IRR provision authorizing it are invalid
  inasmuch as PD 1986 does not expressly authorize the MTRCB to issue preventive
In G.R. No. 164785, petitioner raises the following issues: suspension.
   
THE ORDER OF PREVENTIVE SUSPENSION Petitioners contention is untenable.
PROMULGATED BY RESPONDENT [MTRCB]  
DATED 16 AUGUST 2004 AGAINST THE Administrative agencies have powers and functions which may be
TELEVISION PROGRAM ANG DATING DAAN x x x administrative, investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix
IS NULL AND VOID FOR BEING ISSUED WITH of the five, as may be conferred by the Constitution or by statute.[12] They have in
GRAVE ABUSE OF DISCRETION AMOUNTING TO fine only such powers or authority as are granted or delegated, expressly or
LACK OR EXCESS OF JURISDICTION impliedly, by law.[13] And in determining whether an agency has certain powers, the
  inquiry should be from the law itself. But once ascertained as existing, the authority
(A)       BY REASON THAT THE [IRR] IS INVALID given should be liberally construed.[14]
INSOFAR AS IT PROVIDES FOR THE  
ISSUANCE OF PREVENTIVE A perusal of the MTRCBs basic mandate under PD 1986 reveals the
SUSPENSION ORDERS; possession by the agency of the authority, albeit impliedly, to issue the challenged
(B)       BY REASON OF LACK OF DUE HEARING IN order of preventive suspension. And this authority stems naturally from, and is
THE CASE AT BENCH; necessary for the exercise of, its power of regulation and supervision.
(C)       FOR BEING VIOLATIVE OF EQUAL
PROTECTION UNDER THE LAW; Sec. 3 of PD 1986 pertinently provides the following:
(D)       FOR BEING VIOLATIVE OF FREEDOM OF  
RELIGION; AND Section 3. Powers and Functions.The BOARD shall
(E)        FOR BEING VIOLATIVE OF FREEDOM OF have the following functions, powers and duties:
SPEECH AND EXPRESSION.[10]
  xxxx
In G.R. No. 165636, petitioner relies on the following grounds: c)    To approve or disapprove, delete objectionable
  portions from and/or prohibit the x x x production, x x
SECTION 3(C) OF [PD] 1986, IS PATENTLY x exhibition and/or television broadcast of the motion
UNCONSTITUTIONAL AND ENACTED WITHOUT pictures, television programs and publicity materials
OR IN EXCESS OF JURISDICTION x x x subject of the preceding paragraph, which, in the
CONSIDERING THAT: judgment of the board applying contemporary Filipino
  cultural values as standard, are objectionable for
I being immoral, indecent, contrary to law and/or good
  customs, injurious to the prestige of the Republic of
SECTION 3(C) OF [PD] 1986, AS APPLIED TO the Philippines or its people, or with a dangerous
PETITIONER, UNDULY INFRINGES ON THE tendency to encourage the commission of violence or
CONSTITUTIONAL GUARANTEE OF FREEDOM OF of wrong or crime such as but not limited to:
RELIGION, SPEECH, AND EXPRESSION AS IT  
PARTAKES OF THE NATURE OF A SUBSEQUENT xxxx
PUNISHMENT CURTAILING THE SAME; vi) Those which are libelous or defamatory to
CONSEQUENTLY, THE IMPLEMENTING RULES the good name and reputation of any person,
AND REGULATIONS, RULES OF PROCEDURE, whether living or dead;
AND OFFICIAL ACTS OF THE MTRCB PURSUANT
THERETO, I.E. DECISION DATED 27 SEPTEMBER xxxx
2004 AND ORDER DATED 19 OCTOBER 2004, ARE (d) To supervise, regulate, and grant, deny or
LIKEWISE CONSTITUTIONALLY INFIRM AS cancel, permits for the x x x production, copying,
APPLIED IN THE CASE AT BENCH; distribution, sale, lease, exhibition, and/or television
  broadcast of all motion pictures, television programs
  and publicity materials, to the end that no such
  pictures, programs and materials as are
II determined by the BOARD to be objectionable in
  accordance with paragraph (c) hereof shall be x x x
SECTION 3(C) OF [PD] 1986, AS APPLIED TO produced, copied, reproduced, distributed, sold,
PETITIONER, UNDULY INFRINGES ON THE leased, exhibited and/or broadcast by television;
CONSTITUTIONAL GUARANTEE OF DUE xxxx
 k)    To exercise such powers and functions as may
be necessary or incidental to the attainment of the
purposes and objectives of this Act x x x. (Emphasis
added.)
 
The issuance of a preventive suspension comes well within the scope
of the MTRCBs authority and functions expressly set forth in PD 1986, more
particularly under its Sec. 3(d), as quoted above, which empowers the MTRCB to
supervise, regulate, and grant, deny or cancel, permits for the x x x exhibition, and/or
television broadcast of all motion pictures, television programs and publicity
materials, to the end that no such pictures, programs and materials as are
determined by the BOARD to be objectionable in accordance with paragraph (c)
hereof shall be x x x exhibited and/or broadcast by television.
Surely, the power to issue preventive suspension forms part of the
MTRCBs express regulatory and supervisory statutory mandate and its investigatory
and disciplinary authority subsumed in or implied from such mandate. Any other
construal would render its power to regulate, supervise, or discipline illusory.
 
Preventive suspension, it ought to be noted, is not a penalty by itself,
being merely a preliminary step in an administrative investigation.[15] And the power
to discipline and impose penalties, if granted, carries with it the power to investigate
administrative complaints and, during such investigation, to preventively suspend the
person subject of the complaint.[16]
 
To reiterate, preventive suspension authority of the MTRCB springs
from its powers conferred under PD 1986. The MTRCB did not, as petitioner
insinuates, empower itself to impose preventive suspension through the medium of
the IRR of PD 1986. It is true that the matter of imposing preventive suspension is
embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides:
Sec. 3. PREVENTION SUSPENSION
ORDER.Any time during the pendency of the case,
and in order to prevent or stop further violations or for
the interest and welfare of the public, the Chairman of
the Board may issue a Preventive Suspension Order
mandating the preventive x x x suspension of the
permit/permits involved, and/or closure of the x x x
television network, cable TV station x x x provided
that the temporary/preventive order thus issued shall
have a life of not more than twenty (20) days from the
date of issuance.
 
But the mere absence of a provision on preventive suspension in PD
1986, without more, would not work to deprive the MTRCB a basic disciplinary tool,
such as preventive suspension. Recall that the MTRCB is expressly empowered by
statute to regulate and supervise television programs to obviate the exhibition or
broadcast of, among others, indecent or immoral materials and to impose sanctions
for violations and, corollarily, to prevent further violations as it investigates. Contrary
to petitioners assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986
nor extended the effect of the law. Neither did the MTRCB, by imposing the assailed
preventive suspension, outrun its authority under the law. Far from it. The preventive
suspension was actually done in furtherance of the law, imposed pursuant, to repeat,
to the MTRCBs duty of regulating or supervising television programs, pending a
determination of whether or not there has actually been a violation. In the final
analysis, Sec. 3, Chapter XIII of the 2004 IRR merely formalized a power which PD
1986 bestowed, albeit impliedly, on MTRCB.
 
Sec. 3(c) and (d) of PD 1986 finds application to the present case,
sufficient to authorize the MTRCBs assailed action. Petitioners restrictive reading of
PD 1986, limiting the MTRCB to functions within the literal confines of the law, would
give the agency little leeway to operate, stifling and rendering it inutile, when Sec.
3(k) of PD 1986 clearly intends to grant the MTRCB a wide room for flexibility in its
operation. Sec. 3(k), we reiterate, provides, To exercise such powers and functions
as may be necessary or incidental to the attainment of the purposes and objectives
of this Act x x x. Indeed, the power to impose preventive suspension is one of the
implied powers of MTRCB. As distinguished from express powers, implied powers
are those that can be inferred or are implicit in the wordings or conferred by
necessary or fair implication of the enabling act.[17] As we held in Angara v.
Electoral Commission, when a general grant of power is conferred or a duty
enjoined, every particular power necessary for the exercise of one or the
performance of the other is also conferred by necessary implication.[18] Clearly, the
power to impose preventive suspension pending investigation is one of the implied or
inherent powers of MTRCB.
 
We cannot agree with petitioners assertion that the aforequoted IRR
provision on preventive suspension is applicable only to motion pictures and publicity
materials. The scope of the MTRCBs authority extends beyond motion pictures.
What the acronym MTRCB stands for would suggest as much. And while the law
makes specific reference to the closure of a television network, the suspension of a
television program is a far less punitive measure that can be undertaken, with the
purpose of stopping further violations of PD 1986. Again, the MTRCB would
regretfully be rendered ineffective should it be subject to the restrictions petitioner
envisages.
 
Just as untenable is petitioners argument on the nullity of the
preventive suspension order on the ground of lack of hearing. As it were, the MTRCB
handed out the assailed order after petitioner, in response to a written notice,
appeared before that Board for a hearing on private respondents complaint. No less
than petitioner admitted that the order was issued after the adjournment of the
hearing,[19] proving that he had already appeared before the MTRCB. Under Sec. 3,
Chapter XIII of the IRR of PD 1986, preventive suspension shall issue [a]ny time
during the pendency of the case. In this particular case, it was done after MTRCB
duly apprised petitioner of his having possibly violated PD 1986 [20] and of
administrative complaints that had been filed against him for such violation.[21]
 
At any event, that preventive suspension can validly be meted out
even without a hearing.[22]
Petitioner next faults the MTRCB for denying him his right to the
equal protection of the law, arguing that, owing to the preventive suspension order,
he was unable to answer the criticisms coming from the INC ministers.
Petitioners position does not persuade. The equal protection clause
demands that all persons subject to legislation should be treated alike, under like
circumstances and conditions both in the privileges conferred and liabilities imposed.
[23] It guards against undue favor and individual privilege as well as hostile
discrimination.[24] Surely, petitioner cannot, under the premises, place himself in the
same shoes as the INC ministers, who, for one, are not facing administrative
complaints before the MTRCB. For another, he offers no proof that the said
ministers, in their TV programs, use language similar to that which he used in his
own, necessitating the MTRCBs disciplinary action. If the immediate result of the
preventive suspension order is that petitioner remains temporarily gagged and is
unable to answer his critics, this does not become a deprivation of the equal
protection guarantee. The Court need not belabor the fact that the circumstances of
petitioner, as host of Ang Dating Daan, on one hand, and the INC ministers, as hosts
of Ang Tamang Daan, on the other, are, within the purview of this case, simply too
different to even consider whether or not there is a prima facie indication of
oppressive inequality.
Petitioner next injects the notion of religious freedom, submitting that
what he uttered was religious speech, adding that words like putang babae were said
in exercise of his religious freedom.
 
The argument has no merit.
 
The Court is at a loss to understand how petitioners utterances in
question can come within the pale of Sec. 5, Article III of the 1987 Constitution on
religious freedom. The section reads as follows:
 
No law shall be made respecting the
establishment of a religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of
religious profession and worship, without
discrimination or preference, shall forever be allowed.
No religious test shall be required for the exercise of
civil or political rights.
 
There is nothing in petitioners statements subject of the complaints
expressing any particular religious belief, nothing furthering his avowed evangelical
mission. The fact that he came out with his statements in a televised bible exposition
program does not automatically accord them the character of a religious discourse.
Plain and simple insults directed at another person cannot be elevated to the status
of religious speech. Even petitioners attempts to place his words in context show that
he was moved by anger and the need to seek retribution, not by any religious
conviction. His claim, assuming its veracity, that some INC ministers distorted his
statements respecting amounts Ang Dating Daan owed to a TV station does not
convert the foul language used in retaliation as religious speech. We cannot accept
that petitioner made his statements in defense of his reputation and religion, as they
constitute no intelligible defense or refutation of the alleged lies being spread by a
rival religious group. They simply illustrate that petitioner had descended to the level
of name-calling and foul-language discourse. Petitioner could have chosen to
contradict and disprove his detractors, but opted for the low road.
 
Petitioner, as a final point in G.R. No. 164785, would have the Court
nullify the 20-day preventive suspension order, being, as insisted, an unconstitutional
abridgement of the freedom of speech and expression and an impermissible prior
restraint. The main issue tendered respecting the adverted violation and the
arguments holding such issue dovetails with those challenging the three-month
suspension imposed under the assailed September 27, 2004 MTRCB decision
subject of review under G.R. No. 165636. Both overlapping issues and arguments
shall be jointly addressed.
 
G.R. No. 165636
 
Petitioner urges the striking down of the decision suspending him
from hosting Ang Dating Daan for three months on the main ground that the decision
violates, apart from his religious freedom, his freedom of speech and expression
guaranteed under Sec. 4, Art. III of the Constitution, which reads:
 
No law shall be passed abridging the
freedom of speech, of expression, or of the press, or
the right of the people peaceably to assemble and
petition the government for redress of grievance.
 
 
He would also have the Court declare PD 1986, its Sec. 3(c) in
particular, unconstitutional for reasons articulated in this petition.
  
We are not persuaded as shall be explained shortly. But first, we
restate certain general concepts and principles underlying the freedom of speech
and expression.
 
It is settled that expressions by means of newspapers, radio,
television, and motion pictures come within the broad protection of the free speech
and expression clause.[25] Each method though, because of its dissimilar presence
in the lives of people and accessibility to children, tends to present its own problems
in the area of free speech protection, with broadcast media, of all forms of
communication, enjoying a lesser degree of protection.[26] Just as settled is the rule
that restrictions, be it in the form of prior restraint, e.g., judicial injunction against
publication or threat of cancellation of license/franchise, or subsequent liability,
whether in libel and damage suits, prosecution for sedition, or contempt proceedings,
are anathema to the freedom of expression. Prior restraint means official
government restrictions on the press or other forms of expression in advance of
actual publication or dissemination.[27] The freedom of expression, as with the other
freedoms encased in the Bill of Rights, is, however, not absolute. It may be regulated
to some extent to serve important public interests, some forms of speech not being
protected. As has been held, the limits of the freedom of expression are reached
when the expression touches upon matters of essentially private concern.[28] In the
oft-quoted expression of Justice Holmes, the constitutional guarantee obviously was
not intended to give immunity for every possible use of language.[29] From Lucas v.
Royo comes this line: [T]he freedom to express ones sentiments and belief does not
grant one the license to vilify in public the honor and integrity of another. Any
sentiments must be expressed within the proper forum and with proper regard for the
rights of others.[30]
Indeed, as noted in Chaplinsky v. State of New Hampshire,[31] there
are certain well-defined and narrowly limited classes of speech that are harmful, the
prevention and punishment of which has never been thought to raise any
Constitutional problems. In net effect, some forms of speech are not protected by the
Constitution, meaning that restrictions on unprotected speech may be decreed
without running afoul of the freedom of speech clause.[32] A speech would fall under
the unprotected type if the utterances involved are no essential part of any exposition
of ideas, and are of such slight social value as a step of truth that any benefit that
may be derived from them is clearly outweighed by the social interest in order and
morality.[33] Being of little or no value, there is, in dealing with or regulating them, no
imperative call for the application of the clear and present danger rule or the
balancing-of-interest test, they being essentially modes of weighing competing
values,[34] or, with like effect, determining which of the clashing interests should be
advanced.
 
Petitioner asserts that his utterance in question is a protected form of
speech.
 
The Court rules otherwise. It has been established in this jurisdiction
that unprotected speech or low-value expression refers to libelous statements,
obscenity or pornography, false or misleading advertisement, insulting or fighting
words, i.e., those which by their very utterance inflict injury or tend to incite an
immediate breach of peace and expression endangering national security.
 
The Court finds that petitioners statement can be treated as obscene,
at least with respect to the average child. Hence, it is, in that context, unprotected
speech. In Fernando v. Court of Appeals, the Court expressed difficulty in
formulating a definition of obscenity that would apply to all cases, but nonetheless
stated the ensuing observations on the matter:
 
There is no perfect definition of
obscenity but the latest word is that of Miller v.
California which established basic guidelines, to wit:
(a) whether to the average person, applying
contemporary standards would find the work, taken as
a whole, appeals to the prurient interest; (b) whether
the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken
as a whole, lacks serious literary, artistic, political, or
scientific value. But, it would be a serious misreading
of Miller to conclude that the trier of facts has the
unbridled discretion in determining what is patently
offensive. x x x What remains clear is that obscenity is
an issue proper for judicial determination and should
be treated on a case to case basis and on the judges
sound discretion.[35]
 
 
Following the contextual lessons of the cited case of Miller v.
California,[36] a patently offensive utterance would come within the pale of the term
obscenity should it appeal to the prurient interest of an average listener applying
contemporary standards.
A cursory examination of the utterances complained of and the circumstances of the
case reveal that to an average adult, the utterances Gago ka talaga x x x, masahol
ka pa sa putang babae x x x. Yung putang babae ang gumagana lang doon yung
ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! may not constitute
obscene but merely indecent utterances. They can be viewed as figures of speech or
merely a play on words. In the context they were used, they may not appeal to the
prurient interests of an adult. The problem with the challenged statements is that
they were uttered in a TV program that is rated G or for general viewership, and in a
time slot that would likely reach even the eyes and ears of children.
 
While adults may have understood that the terms thus used were not
to be taken literally, children could hardly be expected to have the same
discernment. Without parental guidance, the unbridled use of such language as that
of petitioner in a television broadcast could corrupt impressionable young minds. The
term putang babae means a female prostitute, a term wholly inappropriate for
children, who could look it up in a dictionary and just get the literal meaning, missing
the context within which it was used. Petitioner further used the terms, ang
gumagana lang doon yung ibaba, making reference to the female sexual organ and
how a female prostitute uses it in her trade, then stating that Sandoval was worse
than that by using his mouth in a similar manner. Children could be motivated by
curiosity and ask the meaning of what petitioner said, also without placing the phrase
in context. They may be inquisitive as to why Sandoval is different from a female
prostitute and the reasons for the dissimilarity. And upon learning the meanings of
the words used, young minds, without the guidance of an adult, may, from their end,
view this kind of indecent speech as obscene, if they take these words literally and
use them in their own speech or form their own ideas on the matter. In this particular
case, where children had the opportunity to hear petitioners words, when speaking of
the average person in the test for obscenity, we are speaking of the average child,
not the average adult. The average child may not have the adults grasp of figures of
speech, and may lack the understanding that language may be colorful, and words
may convey more than the literal meaning. Undeniably the subject speech is very
suggestive of a female sexual organ and its function as such. In this sense, we find
petitioners utterances obscene and not entitled to protection under the umbrella of
freedom of speech.
Even if we concede that petitioners remarks are not obscene but merely indecent
speech, still the Court rules that petitioner cannot avail himself of the constitutional
protection of free speech. Said statements were made in a medium easily accessible
to children. With respect to the young minds, said utterances are to be treated as
unprotected speech.
 
No doubt what petitioner said constitutes indecent or offensive utterances. But while
a jurisprudential pattern involving certain offensive utterances conveyed in different
mediums has emerged, this case is veritably one of first impression, it being the first
time that indecent speech communicated via television and the applicable norm for
its regulation are, in this jurisdiction, made the focal point. Federal Communications
Commission (FCC) v. Pacifica Foundation,[37] a 1978 American landmark case cited
in Eastern Broadcasting Corporation v. Dans, Jr.[38] and Chavez v. Gonzales,[39] is
a rich source of persuasive lessons. Foremost of these relates to indecent speech
without prurient appeal component coming under the category of protected speech
depending on the context within which it was made, irresistibly suggesting that,
within a particular context, such indecent speech may validly be categorized as
unprotected, ergo, susceptible to restriction.
 
In FCC, seven of what were considered filthy words[40] earlier recorded in a
monologue by a satiric humorist later aired in the afternoon over a radio station
owned by Pacifica Foundation. Upon the complaint of a man who heard the pre-
recorded monologue while driving with his son, FCC declared the language used as
patently offensive and indecent under a prohibiting law, though not necessarily
obscene. FCC added, however, that its declaratory order was issued in a special
factual context, referring, in gist, to an afternoon radio broadcast when children were
undoubtedly in the audience. Acting on the question of whether the FCC could
regulate the subject utterance, the US Supreme Court ruled in the affirmative, owing
to two special features of the broadcast medium, to wit: (1) radio is a pervasive
medium and (2) broadcasting is uniquely accessible to children. The US Court,
however, hastened to add that the monologue would be protected speech in other
contexts, albeit it did not expound and identify a compelling state interest in putting
FCCs content-based regulatory action under scrutiny.
 
The Court in Chavez[41] elucidated on the distinction between regulation or
restriction of protected speech that is content-based and that which is content-
neutral. A content-based restraint is aimed at the contents or idea of the expression,
whereas a content-neutral restraint intends to regulate the time, place, and manner
of the expression under well-defined standards tailored to serve a compelling state
interest, without restraint on the message of the expression. Courts subject content-
based restraint to strict scrutiny.
 
With the view we take of the case, the suspension MTRCB imposed under the
premises was, in one perspective, permissible restriction. We make this disposition
against the backdrop of the following interplaying factors: First, the indecent speech
was made via television, a pervasive medium that, to borrow from Gonzales v. Kalaw
Katigbak,[42] easily reaches every home where there is a set [and where] [c]hildren
will likely be among the avid viewers of the programs therein shown; second, the
broadcast was aired at the time of the day when there was a reasonable risk that
children might be in the audience; and third, petitioner uttered his speech on a G or
for general patronage rated program. Under Sec. 2(A) of Chapter IV of the IRR of the
MTRCB, a show for general patronage is [s]uitable for all ages, meaning that the
material for television x x x in the judgment of the BOARD, does not contain anything
unsuitable for children and minors, and may be viewed without adult guidance or
supervision. The words petitioner used were, by any civilized norm, clearly not
suitable for children. Where a language is categorized as indecent, as in petitioners
utterances on a general-patronage rated TV program, it may be readily proscribed as
unprotected speech.
 
A view has been advanced that unprotected speech refers only to pornography, [43]
false or misleading advertisement,[44] advocacy of imminent lawless action, and
expression endangering national security. But this list is not, as some members of
the Court would submit, exclusive or carved in stone. Without going into specifics, it
may be stated without fear of contradiction that US decisional law goes beyond the
aforesaid general exceptions. As the Court has been impelled to recognize
exceptions to the rule against censorship in the past, this particular case constitutes
yet another exception, another instance of unprotected speech, created by the
necessity of protecting the welfare of our children. As unprotected speech,
petitioners utterances can be subjected to restraint or regulation.
 
Despite the settled ruling in FCC which has remained undisturbed since 1978,
petitioner asserts that his utterances must present a clear and present danger of
bringing about a substantive evil the State has a right and duty to prevent and such
danger must be grave and imminent.[45]
 
Petitioners invocation of the clear and present danger doctrine, arguably the most
permissive of speech tests, would not avail him any relief, for the application of said
test is uncalled for under the premises. The doctrine, first formulated by Justice
Holmes, accords protection for utterances so that the printed or spoken words may
not be subject to prior restraint or subsequent punishment unless its expression
creates a clear and present danger of bringing about a substantial evil which the
government has the power to prohibit.[46] Under the doctrine, freedom of speech
and of press is susceptible of restriction when and only when necessary to prevent
grave and immediate danger to interests which the government may lawfully protect.
As it were, said doctrine evolved in the context of prosecutions for rebellion and other
crimes involving the overthrow of government.[47] It was originally designed to
determine the latitude which should be given to speech that espouses anti-
government action, or to have serious and substantial deleterious consequences on
the security and public order of the community.[48] The clear and present danger
rule has been applied to this jurisdiction.[49] As a standard of limitation on free
speech and press, however, the clear and present danger test is not a magic
incantation that wipes out all problems and does away with analysis and judgment in
the testing of the legitimacy of claims to free speech and which compels a court to
release a defendant from liability the moment the doctrine is invoked, absent proof of
imminent catastrophic disaster.[50] As we observed in Eastern Broadcasting
Corporation, the clear and present danger test does not lend itself to a simplistic and
all embracing interpretation applicable to all utterances in all forums.[51]
 
To be sure, the clear and present danger doctrine is not the only test which has been
applied by the courts. Generally, said doctrine is applied to cases involving the
overthrow of the government and even other evils which do not clearly undermine
national security. Since not all evils can be measured in terms of proximity and
degree the Court, however, in several casesAyer Productions v. Capulong[52] and
Gonzales v. COMELEC,[53] applied the balancing of interests test. Former Chief
Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate
Opinion that where the legislation under constitutional attack interferes with the
freedom of speech and assembly in a more generalized way and where the effect of
the speech and assembly in terms of the probability of realization of a specific
danger is not susceptible even of impressionistic calculation,[54] then the balancing
of interests test can be applied.
 
The Court explained also in Gonzales v. COMELEC the balancing of interests test:
When particular conduct is regulated in the
interest of public order, and the regulation
results in an indirect, conditional, partial
abridgment of speech, the duty of the courts is
to determine which of the two conflicting
interests demands the greater protection
under the particular circumstances presented.
x x x We must, therefore, undertake the
delicate and difficult task x x x to weigh the
circumstances and to appraise the
substantiality of the reasons advanced in
support of the regulation of the free enjoyment
of rights x x x.
 
In enunciating standard premised on a judicial
balancing of the conflicting social values and
individual interests competing for ascendancy
in legislation which restricts expression, the
court in Douds laid the basis for what has
been called the balancing-of-interests test
which has found application in more recent
decisions of the U.S. Supreme Court. Briefly
stated, the balancing test requires a court to
take conscious and detailed consideration of
the interplay of interests observable in a given
situation or type of situation.
 
xxxx
 
Although the urgency of the public interest
sought to be secured by Congressional power
restricting the individuals freedom, and the
social importance and value of the freedom so
restricted, are to be judged in the concrete,
not on the basis of abstractions, a wide range
of factors are necessarily relevant in
ascertaining the point or line of equilibrium.
Among these are (a) the social value and
importance of the specific aspect of the
particular freedom restricted by the legislation;
(b) the specific thrust of the restriction, i.e.,
whether the restriction is direct or indirect,
whether or not the persons affected are few;
(c) the value and importance of the public
interest sought to be secured by the
legislationthe reference here is to the nature
and gravity of the evil which Congress seeks
to prevent; (d) whether the specific restriction
decreed by Congress is reasonably
appropriate and necessary for the protection
of such public interest; and (e) whether the
necessary safeguarding of the public interest
involved may be achieved by some other
measure less restrictive of the protected
freedom.[55]
 
 
This balancing of interest test, to borrow from Professor Kauper,[56] rests on the
theory that it is the courts function in a case before it when it finds public interests
served by legislation, on the one hand, and the free expression clause affected by it,
on the other, to balance one against the other and arrive at a judgment where the
greater weight shall be placed. If, on balance, it appears that the public interest
served by restrictive legislation is of such nature that it outweighs the abridgment of
freedom, then the court will find the legislation valid. In short, the balance-of-interests
theory rests on the basis that constitutional freedoms are not absolute, not even
those stated in the free speech and expression clause, and that they may be
abridged to some extent to serve appropriate and important interests.[57] To the
mind of the Court, the balancing of interest doctrine is the more appropriate test to
follow.
In the case at bar, petitioner used indecent and obscene language and a three (3)-
month suspension was slapped on him for breach of MTRCB rules. In this setting,
the assertion by petitioner of his enjoyment of his freedom of speech is ranged
against the duty of the government to protect and promote the development and
welfare of the youth.
 
After a careful examination of the factual milieu and the arguments raised by
petitioner in support of his claim to free speech, the Court rules that the governments
interest to protect and promote the interests and welfare of the children adequately
buttresses the reasonable curtailment and valid restraint on petitioners prayer to
continue as program host of Ang Dating Daan during the suspension period.
 
No doubt, one of the fundamental and most vital rights granted to citizens of a State
is the freedom of speech or expression, for without the enjoyment of such right, a
free, stable, effective, and progressive democratic state would be difficult to attain.
Arrayed against the freedom of speech is the right of the youth to their moral,
spiritual, intellectual, and social being which the State is constitutionally tasked to
promote and protect. Moreover, the State is also mandated to recognize and support
the vital role of the youth in nation building as laid down in Sec. 13, Art. II of the 1987
Constitution.
 
The Constitution has, therefore, imposed the sacred obligation and responsibility on
the State to provide protection to the youth against illegal or improper activities which
may prejudice their general well-being. The Article on youth, approved on second
reading by the Constitutional Commission, explained that the State shall extend
social protection to minors against all forms of neglect, cruelty, exploitation,
immorality, and practices which may foster racial, religious or other forms of
discrimination.[58]
 
Indisputably, the State has a compelling interest in extending social protection to
minors against all forms of neglect, exploitation, and immorality which may pollute
innocent minds. It has a compelling interest in helping parents, through regulatory
mechanisms, protect their childrens minds from exposure to undesirable materials
and corrupting experiences. The Constitution, no less, in fact enjoins the State, as
earlier indicated, to promote and protect the physical, moral, spiritual, intellectual,
and social well-being of the youth to better prepare them fulfill their role in the field of
nation-building.[59] In the same way, the State is mandated to support parents in the
rearing of the youth for civic efficiency and the development of moral character.[60]
 
Petitioners offensive and obscene language uttered in a television broadcast, without
doubt, was easily accessible to the children. His statements could have exposed
children to a language that is unacceptable in everyday use. As such, the welfare of
children and the States mandate to protect and care for them, as parens patriae,[61]
constitute a substantial and compelling government interest in regulating petitioners
utterances in TV broadcast as provided in PD 1986.
 
FCC explains the duty of the government to act as parens patriae to protect the
children who, because of age or interest capacity, are susceptible of being corrupted
or prejudiced by offensive language, thus:
 
[B]roadcasting is uniquely accessible to children, even
those too young to read. Although Cohens written
message, [Fuck the Draft], might have been
incomprehensible to a first grader, Pacificas
broadcast could have enlarged a childs vocabulary in
an instant. Other forms of offensive expression may
be withheld from the young without restricting the
 expression at its source. Bookstores and motion
picture theaters, for example, may be prohibited from
making indecent material available to children. We
held in Ginsberg v. New York that the governments
interest in the well-being of its youth and in supporting
parents claim to authority in their own household
justified the regulation of otherwise protected
expression. The ease with which children may obtain
access to broadcast material, coupled with the
concerns recognized in Ginsberg, amply justify
special treatment of indecent broadcasting.
 
 
Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to
attend to the welfare of the young:
x x x It is the consensus of this Court that where
television is concerned, a less liberal approach calls
for observance. This is so because unlike motion
pictures where the patrons have to pay their way,
television reaches every home where there is a set.
Children then will likely will be among the avid viewers
of the programs therein shown. As was observed by
Circuit Court of Appeals Judge Jerome Frank, it is
hardly the concern of the law to deal with the sexual
fantasies of the adult population. It cannot be denied
though that the State as parens patriae is called upon
to manifest an attitude of caring for the welfare of the
young.[62]
 
 
The compelling need to protect the young impels us to sustain the regulatory action
MTRCB took in the narrow confines of the case. To reiterate, FCC justified the
restraint on the TV broadcast grounded on the following considerations: (1) the use
of television with its unique accessibility to children, as a medium of broadcast of a
patently offensive speech; (2) the time of broadcast; and (3) the G rating of the Ang
Dating Daan program. And in agreeing with MTRCB, the court takes stock of and
cites with approval the following excerpts from FCC:
 
It is appropriate, in conclusion, to
emphasize the narrowness of our holding. This case
does not involve a two-way radio conversation
between a cab driver and a dispatcher, or a telecast
of an Elizabethan comedy. We have not decided that
an occasional expletive in either setting would justify
any sanction. x x x The [FFCs] decision rested
entirely on a nuisance rationale under which context
is all important. The concept requires consideration of
a host of variables. The time of day was emphasized
by the [FFC]. The content of the program in which the
language is used will affect the composition of the
audience x x x. As Mr. Justice Sutherland wrote a
nuisance may be merely a right thing in the wrong
place, like a pig in the parlor instead of the barnyard.
We simply hold that when the [FCC] finds that a pig
has entered the parlor, the exercise of its regulatory
power does not depend on proof that the pig is
obscene. (Citation omitted.)
 
There can be no quibbling that the remarks in question petitioner uttered on prime-
time television are blatantly indecent if not outright obscene. It is the kind of speech
that PD 1986 proscribes necessitating the exercise by MTRCB of statutory
disciplinary powers. It is the kind of speech that the State has the inherent
prerogative, nay duty, to regulate and prevent should such action served and further
compelling state interests. One who utters indecent, insulting, or offensive words on
television when unsuspecting children are in the audience is, in the graphic language
of FCC, a pig in the parlor. Public interest would be served if the pig is reasonably
restrained or even removed from the parlor.
 
Ergo, petitioners offensive and indecent language can be subjected to prior restraint.
 
Petitioner theorizes that the three (3)-month suspension is either prior restraint or
subsequent punishment that, however, includes prior restraint, albeit indirectly.
 
After a review of the facts, the Court finds that what MTRCB imposed on petitioner is
an administrative sanction or subsequent punishment for his offensive and obscene
language in Ang Dating Daan.
 
To clarify, statutes imposing prior restraints on speech are generally illegal and
presumed unconstitutional breaches of the freedom of speech. The exceptions to
prior restraint are movies, television, and radio broadcast censorship in view of its
access to numerous people, including the young who must be insulated from the
prejudicial effects of unprotected speech. PD 1986 was passed creating the Board of
Review for Motion Pictures and Television (now MTRCB) and which requires prior
permit or license before showing a motion picture or broadcasting a TV program. The
Board can classify movies and television programs and can cancel permits for
exhibition of films or television broadcast.
 
The power of MTRCB to regulate and even impose some prior restraint on radio and
television shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of
Appeals. Speaking through Chief Justice Reynato S. Puno, the Court wrote:
 
We thus reject petitioners postulate that its religious
program is per se beyond review by the respondent
Board. Its public broadcast on TV of its religious
program brings it out of the bosom of internal belief.
Television is a medium that reaches even the eyes
and ears of children. The Court iterates the rule that
the exercise of religious freedom can be regulated by
the State when it will bring about the clear and
present danger of some substantive evil which the
State is duty bound to prevent, i.e., serious detriment
to the more overriding interest of public health, public
morals, or public welfare. x x x
xxxx
 
While the thesis has a lot to commend itself, we are
not ready to hold that [PD 1986] is unconstitutional for
Congress to grant an administrative body quasi-
judicial power to preview and classify TV programs
and enforce its decision subject to review by our
courts. As far back as 1921, we upheld this setup in
Sotto vs. Ruiz, viz:
 
The use of the mails
by private persons is in the nature of a
privilege which can be regulated in
order to avoid its abuse. Persons
possess no absolute right to put into
the mail anything they please,
regardless of its character.[63]
 
Bernas adds:
 
Under the decree a movie
classification board is made the arbiter of what
movies and television programs or parts of either are
fit for public consumption. It decides what movies are
immoral, indecent, contrary to law and/or good
customs, injurious to the prestige of the Republic of
the Philippines or its people, and what tend to incite
subversion, insurrection, rebellion or sedition, or tend
to undermine the faith and confidence of the people in
their government and/or duly constituted authorities,
etc. Moreover, its decisions are executory unless
stopped by a court.[64]
 
 
Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,[65] it was held that the
power of review and prior approval of MTRCB extends to all television programs and
is valid despite the freedom of speech guaranteed by the Constitution. Thus, all
broadcast networks are regulated by the MTRCB since they are required to get a
permit before they air their television programs. Consequently, their right to enjoy
their freedom of speech is subject to that requirement. As lucidly explained by
Justice Dante O. Tinga, government regulations through the MTRCB became a
necessary evil with the government taking the role of assigning bandwidth to
individual broadcasters. The stations explicitly agreed to this regulatory scheme;
otherwise, chaos would result in the television broadcast industry as competing
broadcasters will interfere or co-opt each others signals. In this scheme, station
owners and broadcasters in effect waived their right to the full enjoyment of their right
to freedom of speech in radio and television programs and impliedly agreed that said
right may be subject to prior restraintdenial of permit or subsequent punishment, like
suspension or cancellation of permit, among others.
 
The three (3) months suspension in this case is not a prior restraint on the right of
petitioner to continue with the broadcast of Ang Dating Daan as a permit was already
issued to him by MTRCB for such broadcast. Rather, the suspension is in the form of
permissible administrative sanction or subsequent punishment for the offensive and
obscene remarks he uttered on the evening of August 10, 2004 in his television
program, Ang Dating Daan. It is a sanction that the MTRCB may validly impose
under its charter without running afoul of the free speech clause. And the imposition
is separate and distinct from the criminal action the Board may take pursuant to Sec.
3(i) of PD 1986 and the remedies that may be availed of by the aggrieved private
party under the provisions on libel or tort, if applicable. As FCC teaches, the
imposition of sanctions on broadcasters who indulge in profane or indecent
broadcasting does not constitute forbidden censorship. Lest it be overlooked, the
sanction imposed is not per se for petitioners exercise of his freedom of speech via
television, but for the indecent contents of his utterances in a G rated TV program.
 
More importantly, petitioner is deemed to have yielded his right to his full enjoyment
of his freedom of speech to regulation under PD 1986 and its IRR as television
station owners, program producers, and hosts have impliedly accepted the power of
MTRCB to regulate the broadcast industry.
Neither can petitioners virtual inability to speak in his program during the period of
suspension be plausibly treated as prior restraint on future speech. For viewed in its
proper perspective, the suspension is in the nature of an intermediate penalty for
uttering an unprotected form of speech. It is definitely a lesser punishment than the
permissible cancellation of exhibition or broadcast permit or license. In fine, the
suspension meted was simply part of the duties of the MTRCB in the enforcement
and administration of the law which it is tasked to implement. Viewed in its proper
context, the suspension sought to penalize past speech made on prime-time G rated
TV program; it does not bar future speech of petitioner in other television programs; it
is a permissible subsequent administrative sanction; it should not be confused with a
prior restraint on speech. While not on all fours, the Court, in MTRCB,[66] sustained
the power of the MTRCB to penalize a broadcast company for exhibiting/airing a pre-
taped TV episode without Board authorization in violation of Sec. 7 of PD 1986.
 
Any simplistic suggestion, however, that the MTRCB would be crossing the limits of
its authority were it to regulate and even restrain the prime-time television broadcast
of indecent or obscene speech in a G rated program is not acceptable. As made
clear in Eastern Broadcasting Corporation, the freedom of television and radio
broadcasting is somewhat lesser in scope than the freedom accorded to newspaper
and print media. The MTRCB, as a regulatory agency, must have the wherewithal to
enforce its mandate, which would not be effective if its punitive actions would be
limited to mere fines. Television broadcasts should be subject to some form of
regulation, considering the ease with which they can be accessed, and violations of
the regulations must be met with appropriate and proportional disciplinary action.
The suspension of a violating television program would be a sufficient punishment
and serve as a deterrent for those responsible. The prevention of the broadcast of
petitioners television program is justified, and does not constitute prohibited prior
restraint. It behooves the Court to respond to the needs of the changing times, and
craft jurisprudence to reflect these times.
 
Petitioner, in questioning the three-month suspension, also tags as unconstitutional
the very law creating the MTRCB, arguing that PD 1986, as applied to him, infringes
also upon his freedom of religion. The Court has earlier adequately explained why
petitioners undue reliance on the religious freedom cannot lend justification, let alone
an exempting dimension to his licentious utterances in his program. The Court sees
no need to address anew the repetitive arguments on religious freedom. As earlier
discussed in the disposition of the petition in G.R. No. 164785, what was uttered was
in no way a religious speech. Parenthetically, petitioners attempt to characterize his
speech as a legitimate defense of his religion fails miserably. He tries to place his
words in perspective, arguing evidently as an afterthought that this was his method
of refuting the alleged distortion of his statements by the INC hosts of Ang Tamang
Daan. But on the night he uttered them in his television program, the word simply
came out as profane language, without any warning or guidance for undiscerning
ears.
 
As to petitioners other argument about having been denied due process and equal
protection of the law, suffice it to state that we have at length debunked similar
arguments in G.R. No. 164785. There is no need to further delve into the fact that
petitioner was afforded due process when he attended the hearing of the MTRCB,
and that he was unable to demonstrate that he was unjustly discriminated against in
the MTRCB proceedings.
 
Finally, petitioner argues that there has been undue delegation of legislative power,
as PD 1986 does not provide for the range of imposable penalties that may be
applied with respect to violations of the provisions of the law.
 
The argument is without merit.
 
In Edu v. Ericta, the Court discussed the matter of undue delegation
of legislative power in the following wise:
 
It is a fundamental principle flowing
from the doctrine of separation of powers that
Congress may not delegate its legislative power to the
two other branches of the government, subject to the
exception that local governments may over local
affairs participate in its exercise. What cannot be
delegated is the authority under the Constitution to
make laws and to alter and repeal them; the test is
the completeness of the statute in all its term and
provisions when it leaves the hands of the legislature.
To determine whether or not there is an undue
delegation of legislative power, the inquiry must be
directed to the scope and definiteness of the measure
enacted. The legislature does not abdicate its
functions when it describes what job must be done,
who is to do it, and what is the scope of his authority.
For a complex economy, that may indeed be the only
way in which the legislative process can go forward. A
distinction has rightfully been made between
delegation of power to make laws which necessarily
involves a discretion as to what it shall be, which
constitutionally may not be done, and delegation of
authority or discretion as to its execution to be
exercised under and in pursuance of the law, to which
no valid objection can be made. The Constitution is
thus not to be regarded as denying the legislature the
necessary resources of flexibility and practicability.
 
To avoid the taint of unlawful
delegation, there must be a standard, which implies at
the very least that the legislature itself determines
matters of principle and lays down fundamental
policy. Otherwise, the charge of complete abdication
may be hard to repel. A standard thus defines
legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it.
It indicates the circumstances under which the
legislative command is to be effected. It is the
criterion by which legislative purpose may be carried
out. Thereafter, the executive or administrative office
designated may in pursuance of the above guidelines
promulgate supplemental rules and regulations.[67]
 
 
Based on the foregoing pronouncements and analyzing the law in
question, petitioners protestation about undue delegation of legislative power for the
sole reason that PD 1986 does not provide for a range of penalties for violation of the
law is untenable. His thesis is that MTRCB, in promulgating the IRR of PD 1986,
prescribing a schedule of penalties for violation of the provisions of the decree, went
beyond the terms of the law.
 
Petitioners posture is flawed by the erroneous assumptions holding it together, the
first assumption being that PD 1986 does not prescribe the imposition of, or
authorize the MTRCB to impose, penalties for violators of PD 1986. As earlier
indicated, however, the MTRCB, by express and direct conferment of power and
functions, is charged with supervising and regulating, granting, denying, or canceling
permits for the exhibition and/or television broadcast of all motion pictures, television
programs, and publicity materials to the end that no such objectionable pictures,
programs, and materials shall be exhibited and/or broadcast by television.
Complementing this provision is Sec. 3(k) of the decree authorizing the MTRCB to
exercise such powers and functions as may be necessary or incidental to the
attainment of the purpose and objectives of [the law]. As earlier explained, the
investiture of supervisory, regulatory, and disciplinary power would surely be a
meaningless grant if it did not carry with it the power to penalize the supervised or
the regulated as may be proportionate to the offense committed, charged, and
proved. As the Court said in Chavez v. National Housing Authority:
 
x x x [W]hen a general grant of power
is conferred or duty enjoined, every particular power
necessary for the exercise of the one or the
performance of the other is also conferred. x x x
[W]hen the statute does not specify the particular
method to be followed or used by a government
agency in the exercise of the power vested in it by
law, said agency has the authority to adopt any
reasonable method to carry out its function.[68]
 
 
Given the foregoing perspective, it stands to reason that the power of the MTRCB to
regulate and supervise the exhibition of TV programs carries with it or necessarily
implies the authority to take effective punitive action for violation of the law sought to
be enforced. And would it not be logical too to say that the power to deny or cancel a
permit for the exhibition of a TV program or broadcast necessarily includes the lesser
power to suspend?
 
The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which,
for reference, provides that agency with the power [to] promulgate such rules and
regulations as are necessary or proper for the implementation of this Act, and the
accomplishment of its purposes and objectives x x x. And Chapter XIII, Sec. 1 of the
IRR providing:
Section 1. VIOLATIONS AND
ADMINISTRATIVE SANCTIONS.Without prejudice to
the immediate filing of the appropriate criminal action
and the immediate seizure of the pertinent articles
pursuant to Section 13, any violation of PD 1986
and its Implementing Rules and Regulations
governing motion pictures, television programs,
and related promotional materials shall be
penalized with suspension or cancellation of
permits and/or licenses issued by the Board
and/or with the imposition of fines and other
administrative penalty/penalties. The Board
recognizes the existing Table of Administrative
Penalties attached without prejudice to the power of
the Board to amend it when the need arises. In the
meantime the existing revised Table of Administrative
Penalties shall be enforced. (Emphasis added.)
 
 
This is, in the final analysis, no more than a measure to specifically implement the
aforequoted provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the
IRR does not expand the mandate of the MTRCB under the law or partake of the
nature of an unauthorized administrative legislation. The MTRCB cannot shirk its
responsibility to regulate the public airwaves and employ such means as it can as a
guardian of the public.
In Sec. 3(c), one can already find the permissible actions of the
MTRCB, along with the standards to be applied to determine whether there have
been statutory breaches. The MTRCB may evaluate motion pictures, television
programs, and publicity materials applying contemporary Filipino cultural values as
standard, and, from there, determine whether these audio and video materials are
objectionable for being immoral, indecent, contrary to law and/or good customs, [etc.] the rules and procedures for the collection of CWT on the sale of real properties
x x x and apply the sanctions it deems proper. The lawmaking body cannot possibly categorized as ordinary assets. Petitioner contends that these revenue regulations
provide for all the details in the enforcement of a particular statute. [69] The grant of are contrary to law for two reasons: first, they ignore the different treatment by RA
the rule-making power to administrative agencies is a relaxation of the principle of 8424 of ordinary assets and capital assets and second, respondent Secretary of
separation of powers and is an exception to the non-delegation of legislative powers. Finance has no authority to collect CWT, much less, to base the CWT on the gross
[70] Administrative regulations or subordinate legislation calculated to promote the selling price or fair market value of the real properties classified as ordinary assets.
public interest are necessary because of the growing complexity of modern life, the  
multiplication of the subjects of governmental regulations, and the increased difficulty Petitioner also asserts that the enumerated provisions of the subject revenue
of administering the law.[71] Allowing the MTRCB some reasonable elbow-room in regulations violate the due process clause because, like the MCIT, the government
its operations and, in the exercise of its statutory disciplinary functions, according it collects income tax even when the net income has not yet been determined. They
ample latitude in fixing, by way of an appropriate issuance, administrative penalties contravene the equal protection clause as well because the CWT is being levied
with due regard for the severity of the offense and attending mitigating or aggravating upon real estate enterprises but not on other business enterprises, more particularly
circumstances, as the case may be, would be consistent with its mandate to those in the manufacturing sector.
effectively and efficiently regulate the movie and television industry.  
  The issues to be resolved are as follows:
But even as we uphold the power of the MTRCB to review and
impose sanctions for violations of PD 1986, its decision to suspend petitioner must (1) whether or not this Court should take cognizance of the present
be modified, for nowhere in that issuance, particularly the power-defining Sec. 3 nor case;
in the MTRCB Schedule of Administrative Penalties effective January 1, 1999 is the (2) whether or not the imposition of the MCIT on domestic
Board empowered to suspend the program host or even to prevent certain people corporations is unconstitutional and
from appearing in television programs. The MTRCB, to be sure, may prohibit the (3) whether or not the imposition of CWT on income from sales of
broadcast of such television programs or cancel permits for exhibition, but it may not real properties classified as ordinary assets under RRs 2-
suspend television personalities, for such would be beyond its jurisdiction. The 98, 6-2001 and 7-2003, is unconstitutional.
MTRCB cannot extend its exercise of regulation beyond what the law provides. Only
persons, offenses, and penalties clearly falling clearly within the letter and spirit of
PD 1986 will be considered to be within the decrees penal or disciplinary operation. OVERVIEW OF THE ASSAILED PROVISIONS
And when it exists, the reasonable doubt must be resolved in favor of the person  
charged with violating the statute and for whom the penalty is sought. Thus, the  
MTRCBs decision in Administrative Case No. 01-04 dated September 27, 2004 and Under the MCIT scheme, a corporation, beginning on its fourth year
the subsequent order issued pursuant to said decision must be modified. The of operation, is assessed an MCIT of 2% of its gross income when such MCIT is
suspension should cover only the television program on which petitioner appeared greater than the normal corporate income tax imposed under Section 27(A).[4] If the
and uttered the offensive and obscene language, which sanction is what the law and regular income tax is higher than the MCIT, the corporation does not pay the MCIT.
the facts obtaining call for. Any excess of the MCIT over the normal tax shall be carried forward and credited
  against the normal income tax for the three immediately succeeding taxable years.
In ending, what petitioner obviously advocates is an unrestricted Section 27(E) of RA 8424 provides:
speech paradigm in which absolute permissiveness is the norm. Petitioners flawed  
belief that he may simply utter gutter profanity on television without adverse Section 27 (E). [MCIT] on Domestic Corporations. -
consequences, under the guise of free speech, does not lend itself to acceptance in  
this jurisdiction. We repeat: freedoms of speech and expression are not absolute (1)      Imposition of Tax. A [MCIT] of two percent (2%)
freedoms. To say any act that restrains speech should be greeted with furrowed of the gross income as of the end of the taxable
brows is not to say that any act that restrains or regulates speech or expression is year, as defined herein, is hereby imposed on a
per se invalid. This only recognizes the importance of freedoms of speech and corporation taxable under this Title, beginning
expression, and indicates the necessity to carefully scrutinize acts that may restrain on the fourth taxable year immediately following
or regulate speech. the year in which such corporation commenced
  its business operations, when the minimum
WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 income tax is greater than the tax computed
dated September 27, 2004 is hereby AFFIRMED with the MODIFICATION of limiting under Subsection (A) of this Section for the
the suspension to the program Ang Dating Daan. As thus modified, the fallo of the taxable year.
MTRCB shall read as follows:  
  (2)      Carry Forward of Excess Minimum Tax. Any
WHEREFORE, in view of all the excess of the [MCIT] over the normal income
foregoing, a Decision is hereby rendered, imposing a tax as computed under Subsection (A) of this
penalty of THREE (3) MONTHS SUSPENSION on Section shall be carried forward and credited
the television program, Ang Dating Daan, subject against the normal income tax for the three (3)
of the instant petition. immediately succeeding taxable years.
   
Co-respondents Joselito Mallari, (3)      Relief from the [MCIT] under certain conditions.
Luzviminda Cruz, and UNTV Channel 37 and its The Secretary of Finance is hereby authorized
owner, PBC, are hereby exonerated for lack of to suspend the imposition of the [MCIT] on any
evidence. corporation which suffers losses on account of
  prolonged labor dispute, or because of force
SO ORDERED. majeure, or because of legitimate business
reverses.
CHAMBER OF REAL vs. ROMULU  
The Secretary of Finance is hereby
CORONA, J.:
authorized to promulgate, upon
 
recommendation of the Commissioner, the
 
necessary rules and regulations that shall
In this original petition for certiorari and mandamus,[1] petitioner Chamber of Real
define the terms and conditions under which he
Estate and Builders Associations, Inc. is questioning the constitutionality of Section
may suspend the imposition of the [MCIT] in a
27 (E) of Republic Act (RA) 8424[2] and the revenue regulations (RRs) issued by the
meritorious case.
Bureau of Internal Revenue (BIR) to implement said provision and those involving
 
creditable withholding taxes.[3]
(4)      Gross Income Defined. For
 
purposes of applying the [MCIT] provided under
Petitioner is an association of real estate developers and builders in the Philippines.
Subsection (E) hereof, the term gross income
It impleaded former Executive Secretary Alberto Romulo, then acting Secretary of
shall mean gross sales less sales returns,
Finance Juanita D. Amatong and then Commissioner of Internal Revenue Guillermo
discounts and allowances and cost of goods
Parayno, Jr. as respondents.
sold. Cost of goods sold shall include all
 
business expenses directly incurred to produce
Petitioner assails the validity of the imposition of minimum corporate income tax
the merchandise to bring them to their present
(MCIT) on corporations and creditable withholding tax (CWT) on sales of real
location and use.
properties classified as ordinary assets.
 
 
For trading or merchandising
Section 27(E) of RA 8424 provides for MCIT on domestic
concern, cost of goods sold shall include the
corporations and is implemented by RR 9-98. Petitioner argues that the MCIT
invoice cost of the goods sold, plus import
violates the due process clause because it levies income tax even if there is no
duties, freight in transporting the goods to the
realized gain.
place where the goods are actually sold
 
including insurance while the goods are in
Petitioner also seeks to nullify Sections 2.57.2(J) (as amended by RR 6-2001) and
transit.
2.58.2 of RR 2-98, and Section 4(a)(ii) and (c)(ii) of RR 7-2003, all of which prescribe
  
For a manufacturing concern, cost of in Sec. 2.57.5 of these regulations.  
goods manufactured and sold shall include all  
costs of production of finished goods, such as
raw materials used, direct labor and
manufacturing overhead, freight cost, insurance    
premiums and other costs incurred to bring the With a selling price of five hundred thousand pesos (P500,000.00) or  
raw materials to the factory or warehouse. less.
 
In the case of taxpayers engaged in
the sale of service, gross income means gross    
receipts less sales returns, allowances, With a selling price of more than five hundred thousand pesos  
discounts and cost of services. Cost of services (P500,000.00) but not more than two million pesos (P2,000,000.00).  
shall mean all direct costs and expenses  
necessarily incurred to provide the services
required by the customers and clients including
(A) salaries and employee benefits of
   
personnel, consultants and specialists directly
With selling price of more than two million pesos (P2,000,000.00)  
rendering the service and (B) cost of facilities
directly utilized in providing the service such as
depreciation or rental of equipment used and
cost of supplies: Provided, however, that in the
 
case of banks, cost of services shall include
xxx xxx xxx
interest expense.
 
 
Gross selling price shall mean the consideration
 
stated in the sales document or the fair market value
On August 25, 1998, respondent Secretary of Finance (Secretary), on the
determined in accordance with Section 6 (E) of the
recommendation of the Commissioner of Internal Revenue (CIR), promulgated RR 9-
Code, as amended, whichever is higher. In an
98 implementing Section 27(E).[5] The pertinent portions thereof read:
exchange, the fair market value of the property
 
received in exchange, as determined in the Income
Sec. 2.27(E) [MCIT] on Domestic Corporations.
Tax Regulations shall be used.
 
 
 
Where the consideration or part thereof is payable on
(1)     Imposition of the Tax. A [MCIT] of two percent
installment, no withholding tax is required to be made
(2%) of the gross income as of the end of the
on the periodic installment payments where the buyer
taxable year (whether calendar or fiscal year,
is an individual not engaged in trade or business. In
depending on the accounting period employed)
such a case, the applicable rate of tax based on the
is hereby imposed upon any domestic
entire consideration shall be withheld on the last
corporation beginning the fourth (4 th) taxable
installment or installments to be paid to the seller.
year immediately following the taxable year in
 
which such corporation commenced its
However, if the buyer is engaged in trade or business,
business operations. The MCIT shall be
whether a corporation or otherwise, the tax shall be
imposed whenever such corporation has zero
deducted and withheld by the buyer on every
or negative taxable income or whenever the
installment.
amount of minimum corporate income tax is
 
greater than the normal income tax due from
such corporation.
This provision was amended by RR 6-2001 on July 31, 2001:
 
Sec. 2.57.2. Income payment subject
 
to [CWT] and rates prescribed thereon:
For purposes of these Regulations, the term, normal
xxx xxx xxx
income tax means the income tax rates
(J)      Gross selling price or total amount of
prescribed under Sec. 27(A) and Sec. 28(A)(1)
consideration or its equivalent paid to the
of the Code xxx at 32% effective January 1,
seller/owner for the sale, exchange or
2000 and thereafter.
transfer of real property classified as ordinary
 
asset. - A [CWT] based on the gross selling
xxx xxx xxx
price/total amount of consideration or the fair
 
market value determined in accordance with
(2)      Carry forward of excess [MCIT]. Any excess
Section 6(E) of the Code, whichever is
of the [MCIT] over the normal income tax as
higher, paid to the seller/owner for the sale,
computed under Sec. 27(A) of the Code shall
transfer or exchange of real property, other
be carried forward on an annual basis and
than capital asset, shall be imposed upon the
credited against the normal income tax for the
withholding agent,/buyer, in accordance with
three (3) immediately succeeding taxable years.
the following schedule:
 
 
xxx
xxx xxx Where the seller/transferor is exempt from [CWT] in accordance with Sec. 2.57.5 of
  these regulations.
 
Meanwhile, on April 17, 1998, respondent Secretary, upon recommendation of
respondent CIR, promulgated RR 2-98 implementing certain provisions of RA 8424  
involving the withholding of taxes.[6] Under Section 2.57.2(J) of RR No. 2-98, income Upon the following values of real property, where the seller/transferor is habitually engaged
payments from the sale, exchange or transfer of real property, other than capital in the real estate business.
assets, by persons residing in the Philippines and habitually engaged in the real
estate business were subjected to CWT:  
  With a selling price of Five Hundred Thousand Pesos (P500,000.00) or less.
Sec. 2.57.2. Income payment subject
to [CWT] and rates prescribed thereon:
   
xxx xxx xxx With a selling price of more than Five Hundred Thousand Pesos (P500,000.00) but
  not more than Two Million Pesos (P2,000,000.00).
(J) Gross selling price or total amount
of consideration or its equivalent paid to the
seller/owner for the sale, exchange or transfer of.
Real property, other than capital assets, sold by an  
individual, corporation, estate, trust, trust fund or With a selling price of more than two Million Pesos (P2,000,000.00).
pension fund and the seller/transferor is habitually
engaged in the real estate business in accordance
with the following schedule xxx xxx xxx
 
Those which are exempt from a withholding tax at source as prescribed   Gross selling price shall remain the
 consideration stated in the sales document or the
fair market value determined in accordance with
Section 6 (E) of the Code, as amended, whichever is
higher. In an exchange, the fair market value of the
property received in exchange shall be considered
as the consideration.
 
xxx xxx xxx
 
However, if the buyer is engaged in
trade or business, whether a corporation or
otherwise, these rules shall apply:
(i) If the sale is a sale of property on the
installment plan (that is, payments in the
year of sale do not exceed 25% of the
selling price), the tax shall be deducted
and withheld by the buyer on every
installment.
 
(ii) If, on the other hand, the sale is on a
cash basis or is a deferred-payment sale
not on the installment plan (that is,
payments in the year of sale exceed
25% of the selling price), the buyer shall
withhold the tax based on the gross
selling price or fair market value of the
property, whichever is higher, on the first
installment.
 
In any case, no Certificate Authorizing
Registration (CAR) shall be issued to the buyer
unless the [CWT] due on the sale, transfer or
exchange of real property other than capital asset has
been fully paid. (Underlined amendments in the
original)
Section 2.58.2 of RR 2-98 implementing Section 58(E) of RA 8424
provides that any sale, barter or exchange subject to the CWT will not be recorded
by the Registry of Deeds until the CIR has certified that such transfers and
conveyances have been reported and the taxes thereof have been duly paid:[7]
 
Sec. 2.58.2. Registration with the Register of Deeds.
Deeds of conveyances of land or land and
building/improvement thereon arising from sales,
barters, or exchanges subject to the creditable
expanded withholding tax shall not be recorded by
the Register of Deeds unless the [CIR] or his duly
authorized representative has certified that such
transfers and conveyances have been reported and
the expanded withholding tax, inclusive of the
documentary stamp tax, due thereon have been fully
paid xxxx.
 
 
On February 11, 2003, RR No. 7-2003[8] was promulgated, providing for the
guidelines in determining whether a particular real property is a capital or an ordinary
asset for purposes of imposing the MCIT, among others. The pertinent portions
thereof state:
Section 4. Applicable taxes on
sale, exchange or other disposition of real
property. - Gains/Income derived from sale,
exchange, or other disposition of real properties
shall, unless otherwise exempt, be subject to
applicable taxes imposed under the Code,
depending on whether the subject properties
are classified as capital assets or ordinary
assets;
 
a.            In the case of individual
citizen (including estates and trusts),
resident aliens, and non-resident
aliens engaged in trade or business
in the Philippines;
 
x has a direct adverse effect on the individual challenging it.[12]
x
x Contrary to respondents assertion, we do not have to wait until
 
(ii)               The sale of real
property located in the
Philippines, classified as
ordinary assets, shall be
subject to the [CWT]
(expanded) under Sec.
2.57..2(J) of [RR 2-98], as
amended, based on the
gross selling price or
current fair market value as
determined in accordance
with Section 6(E) of the
Code, whichever is higher,
and consequently, to the
ordinary income tax
imposed under Sec. 24(A)
(1)(c) or 25(A)(1) of the
Code, as the case may be,
based on net taxable
income.
xx xxx xxx
 
c.       In the case of domestic corporations.
 
xxx xxx xxx
 
(ii)               The sale of land and/or building
classified as ordinary asset and other real
property (other than land and/or building
treated as capital asset), regardless of the
classification thereof, all of which are located
in the Philippines, shall be subject to the
[CWT] (expanded) under Sec. 2.57.2(J) of
[RR 2-98], as amended, and consequently, to
the ordinary income tax under Sec. 27(A) of
the Code. In lieu of the ordinary income tax,
however, domestic corporations may become
subject to the [MCIT] under Sec. 27(E) of the
Code, whichever is applicable.
 
xxx xxx xxx
 
We shall now tackle the issues raised.
EXISTENCE OF A JUSTICIABLE CONTROVERSY
 
Courts will not assume jurisdiction over a constitutional question
unless the following requisites are satisfied: (1) there must be an actual case calling
for the exercise of judicial review; (2) the question before the court must be ripe for
adjudication; (3) the person challenging the validity of the act must have standing to
do so; (4) the question of constitutionality must have been raised at the earliest
opportunity and (5) the issue of constitutionality must be the very lis mota of the
case.[9]
 
Respondents aver that the first three requisites are absent in this
case. According to them, there is no actual case calling for the exercise of judicial
power and it is not yet ripe for adjudication because
 
[petitioner] did not allege that CREBA, as a corporate
entity, or any of its members, has been assessed by
the BIR for the payment of [MCIT] or [CWT] on sales
of real property. Neither did petitioner allege that its
members have shut down their businesses as a result
of the payment of the MCIT or CWT. Petitioner has
raised concerns in mere abstract and hypothetical
form without any actual, specific and concrete
instances cited that the assailed law and revenue
regulations have actually and adversely affected it.
Lacking empirical data on which to base any
conclusion, any discussion on the constitutionality of
the MCIT or CWT on sales of real property is
essentially an academic exercise.
 
Perceived or alleged hardship to taxpayers alone is
not an adequate justification for adjudicating abstract
issues. Otherwise, adjudication would be no different
from the giving of advisory opinion that does not really
settle legal issues.[10]
 
An actual case or controversy involves a conflict of legal rights or an
assertion of opposite legal claims which is susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute.[11] On the other
hand, a question is considered ripe for adjudication when the act being challenged
 
petitioners members have shut down their operations as a result of the MCIT or
CWT. The assailed provisions are already being implemented. As we stated in
Didipio Earth-Savers Multi-Purpose Association, Incorporated (DESAMA) v. Gozun:
[13]
 
By the mere enactment of the
questioned law or the approval of the challenged act,
the dispute is said to have ripened into a judicial
controversy even without any other overt act. Indeed,
 even a singular violation of the Constitution and/or the
law is enough to awaken judicial duty.[14]
If the assailed provisions are indeed unconstitutional, there is no better time than the
present to settle such question once and for all.
 
Respondents next argue that petitioner has no legal standing to sue:
 
Petitioner is an association of some of
the real estate developers and builders in the
Philippines. Petitioners did not allege that [it] itself is
in the real estate business. It did not allege any
material interest or any wrong that it may suffer from
the enforcement of [the assailed provisions].[15]
Legal standing or locus standi is a partys personal and substantial
interest in a case such that it has sustained or will sustain direct injury as a result of
the governmental act being challenged.[16] In Holy Spirit Homeowners Association,
Inc. v. Defensor,[17] we held that the association had legal standing because its
members stood to be injured by the enforcement of the assailed provisions:
 
Petitioner association has the legal
standing to institute the instant petition xxx. There is
no dispute that the individual members of petitioner
association are residents of the NGC. As such they
are covered and stand to be either benefited or
injured by the enforcement of the IRR, particularly as
regards the selection process of beneficiaries and lot
allocation to qualified beneficiaries. Thus, petitioner
association may assail those provisions in the IRR
which it believes to be unfavorable to the rights of its
members. xxx Certainly, petitioner and its members
have sustained direct injury arising from the
enforcement of the IRR in that they have been
disqualified and eliminated from the selection
process.[18]
 
In any event, this Court has the discretion to take cognizance of a suit which does
not satisfy the requirements of an actual case, ripeness or legal standing when
paramount public interest is involved.[19] The questioned MCIT and CWT affect not
only petitioners but practically all domestic corporate taxpayers in our country. The
transcendental importance of the issues raised and their overreaching significance to
society make it proper for us to take cognizance of this petition.[20]
CONCEPT AND RATIONALE OF THE MCIT
 
The MCIT on domestic corporations is a new concept introduced by
RA 8424 to the Philippine taxation system. It came about as a result of the perceived
inadequacy of the self-assessment system in capturing the true income of
corporations.[21] It was devised as a relatively simple and effective revenue-raising
instrument compared to the normal income tax which is more difficult to control and
enforce. It is a means to ensure that everyone will make some minimum contribution
to the support of the public sector. The congressional deliberations on this are
illuminating:
Senator Enrile. Mr. President, we are not unmindful of
the practice of certain corporations of reporting
constantly a loss in their operations to avoid the
payment of taxes, and thus avoid sharing in the cost
of government. In this regard, the Tax Reform Act
introduces for the first time a new concept called the
[MCIT] so as to minimize tax evasion, tax avoidance,
tax manipulation in the country and for administrative
convenience. This will go a long way in ensuring that
corporations will pay their just share in supporting our
public life and our economic advancement.[22]
 
Domestic corporations owe their corporate existence and their
privilege to do business to the government. They also benefit from the efforts of the
government to improve the financial market and to ensure a favorable business
climate. It is therefore fair for the government to require them to make a reasonable
contribution to the public expenses.
 
Congress intended to put a stop to the practice of corporations which,
while having large turn-overs, report minimal or negative net income resulting in
minimal or zero income taxes year in and year out, through under-declaration of
income or over-deduction of expenses otherwise called tax shelters.[23]
 
Mr. Javier (E.) [This] is what the Finance Dept. is
trying to remedy, that is why they have proposed the
[MCIT]. Because from experience too, you have
corporations which have been losing year in and year
out and paid no tax. So, if the corporation has been
losing for the past five years to ten years, then that
corporation has no business to be in business. It is
dead. Why continue if you are losing year in and year
out? So, we have this provision to avoid this type of
tax shelters, Your Honor.[24]
The primary purpose of any legitimate business is to earn a profit.
Continued and repeated losses after operations of a corporation or consistent reports
of minimal net income render its financial statements and its tax payments suspect.
For sure, certain tax avoidance schemes resorted to by corporations are allowed in
our jurisdiction. The MCIT serves to put a cap on such tax shelters. As a tax on gross
income, it prevents tax evasion and minimizes tax avoidance schemes achieved
through sophisticated and artful manipulations of deductions and other stratagems.
Since the tax base was broader, the tax rate was lowered.
 
To further emphasize the corrective nature of the MCIT, the following safeguards
were incorporated into the law:
First, recognizing the birth pangs of businesses and the reality of the
need to recoup initial major capital expenditures, the imposition of the MCIT
commences only on the fourth taxable year immediately following the year in which
the corporation commenced its operations.[25] This grace period allows a new
business to stabilize first and make its ventures viable before it is subjected to the
MCIT.[26]
 
Second, the law allows the carrying forward of any excess of the
MCIT paid over the normal income tax which shall be credited against the normal
income tax for the three immediately succeeding years.[27]
Third, since certain businesses may be incurring genuine repeated
losses, the law authorizes the Secretary of Finance to suspend the imposition of
MCIT if a corporation suffers losses due to prolonged labor dispute, force majeure
and legitimate business reverses.[28]
Even before the legislature introduced the MCIT to the Philippine
taxation system, several other countries already had their own system of minimum
corporate income taxation. Our lawmakers noted that most developing countries,
particularly Latin American and Asian countries, have the same form of safeguards
as we do. As pointed out during the committee hearings:
[Mr. Medalla:] Note that most developing countries
where you have of course quite a bit of room for
underdeclaration of gross receipts have this same
form of safeguards.
 
In the case of Thailand, half a percent (0.5%), theres
a minimum of income tax of half a percent (0.5%) of
gross assessable income. In Korea a 25% of taxable
income before deductions and exemptions. Of
course the different countries have different basis for
that minimum income tax.
The other thing youll notice is the preponderance of
Latin American countries that employed this method.
Okay, those are additional Latin American countries.
[29]
 
 
At present, the United States of America, Mexico, Argentina, Tunisia, Panama and
Hungary have their own versions of the MCIT.[30]
MCIT IS NOT VIOLATIVE OF DUE PROCESS
 
Petitioner claims that the MCIT under Section 27(E) of RA 8424 is unconstitutional
because it is highly oppressive, arbitrary and confiscatory which amounts to
deprivation of property without due process of law. It explains that gross income as
defined under said provision only considers the cost of goods sold and other direct
expenses; other major expenditures, such as administrative and interest expenses
which are equally necessary to produce gross income, were not taken into account.
[31] Thus, pegging the tax base of the MCIT to a corporations gross income is
tantamount to a confiscation of capital because gross income, unlike net income, is
not realized gain.[32]
 
We disagree.
 
Taxes are the lifeblood of the government. Without taxes, the
government can neither exist nor endure. The exercise of taxing power derives its
source from the very existence of the State whose social contract with its citizens
obliges it to promote public interest and the common good.[33]
 
Taxation is an inherent attribute of sovereignty.[34] It is a power that
is purely legislative.[35] Essentially, this means that in the legislature primarily lies
the discretion to determine the nature (kind), object (purpose), extent (rate),
coverage (subjects) and situs (place) of taxation.[36] It has the authority to prescribe
a certain tax at a specific rate for a particular public purpose on persons or things
within its jurisdiction. In other words, the legislature wields the power to define what
tax shall be imposed, why it should be imposed, how much tax shall be imposed,
against whom (or what) it shall be imposed and where it shall be imposed.
 
As a general rule, the power to tax is plenary and unlimited in its range,
acknowledging in its very nature no limits, so that the principal check against its
abuse is to be found only in the responsibility of the legislature (which imposes the
tax) to its constituency who are to pay it.[37] Nevertheless, it is circumscribed by
constitutional limitations. At the same time, like any other statute, tax legislation
carries a presumption of constitutionality.
 
The constitutional safeguard of due process is embodied in the fiat
[no] person shall be deprived of life, liberty or property without due process of law. In
Sison, Jr. v. Ancheta, et al.,[38] we held that the due process clause may properly be
invoked to invalidate, in appropriate cases, a revenue measure[39] when it amounts
to a confiscation of property.[40] But in the same case, we also explained that we will
not strike down a revenue measure as unconstitutional (for being violative of the due
process clause) on the mere allegation of arbitrariness by the taxpayer.[41] There
must be a factual foundation to such an unconstitutional taint.[42] This merely
adheres to the authoritative doctrine that, where the due process clause is invoked,
considering that it is not a fixed rule but rather a broad standard, there is a need for
proof of such persuasive character.[43]
Petitioner is correct in saying that income is distinct from capital.[44]
Income means all the wealth which flows into the taxpayer other than a mere return
on capital. Capital is a fund or property existing at one distinct point in time while
income denotes a flow of wealth during a definite period of time. [45] Income is gain
derived and severed from capital.[46] For income to be taxable, the following
requisites must exist:
(1) there must be gain;
(2) the gain must be realized or received and
(3) the gain must not be excluded by law or treaty from
taxation.[47]
 
Certainly, an income tax is arbitrary and confiscatory if it taxes capital because
capital is not income. In other words, it is income, not capital, which is subject to
income tax. However, the MCIT is not a tax on capital.
The MCIT is imposed on gross income which is arrived at by
deducting the capital spent by a corporation in the sale of its goods, i.e., the cost of
goods[48] and other direct expenses from gross sales. Clearly, the capital is not
being taxed.
 
Furthermore, the MCIT is not an additional tax imposition. It is imposed in lieu of the
normal net income tax, and only if the normal income tax is suspiciously low. The
MCIT merely approximates the amount of net income tax due from a corporation,
pegging the rate at a very much reduced 2% and uses as the base the corporations
gross income.
 
Besides, there is no legal objection to a broader tax base or taxable income by
eliminating all deductible items and at the same time reducing the applicable tax rate.
[49]
 
Statutes taxing the gross "receipts,"
"earnings," or "income" of particular corporations
are found in many jurisdictions. Tax thereon is
generally held to be within the power of a state to
impose; or constitutional, unless it interferes with
interstate commerce or violates the requirement as to
uniformity of taxation.[50]
 
 
The United States has a similar alternative minimum tax (AMT)
system which is generally characterized by a lower tax rate but a broader tax base.
[51] Since our income tax laws are of American origin, interpretations by American
courts of our parallel tax laws have persuasive effect on the interpretation of these
laws.[52] Although our MCIT is not exactly the same as the AMT, the policy behind
them and the procedure of their implementation are comparable. On the question of
the AMTs constitutionality, the United States Court of Appeals for the Ninth Circuit
stated in Okin v. Commissioner:[53]
In enacting the minimum tax, Congress attempted to
remedy general taxpayer distrust of the system
growing from large numbers of taxpayers with large
incomes who were yet paying no taxes.
 
xxx xxx xxx
We thus join a number of other courts in upholding
the constitutionality of the [AMT]. xxx [It] is a rational
means of obtaining a broad-based tax, and therefore
is constitutional.[54]
 
 
The U.S. Court declared that the congressional intent to ensure that corporate
taxpayers would contribute a minimum amount of taxes was a legitimate
governmental end to which the AMT bore a reasonable relation.[55]
American courts have also emphasized that Congress has the power to condition,
limit or deny deductions from gross income in order to arrive at the net that it
chooses to tax.[56] This is because deductions are a matter of legislative grace.[57]
 
Absent any other valid objection, the assignment of gross income,
instead of net income, as the tax base of the MCIT, taken with the reduction of the
tax rate from 32% to 2%, is not constitutionally objectionable.
Moreover, petitioner does not cite any actual, specific and concrete
negative experiences of its members nor does it present empirical data to show that
the implementation of the MCIT resulted in the confiscation of their property.
In sum, petitioner failed to support, by any factual or legal basis, its
allegation that the MCIT is arbitrary and confiscatory. The Court cannot strike down a
law as unconstitutional simply because of its yokes.[58] Taxation is necessarily
burdensome because, by its nature, it adversely affects property rights.[59] The party
alleging the laws unconstitutionality has the burden to demonstrate the supposed
violations in understandable terms.[60]
RR 9-98 MERELY CLARIFIES SECTION 27(E) OF RA 8424
 
Petitioner alleges that RR 9-98 is a deprivation of property without
due process of law because the MCIT is being imposed and collected even when
there is actually a loss, or a zero or negative taxable income:
Sec. 2.27(E) [MCIT] on Domestic Corporations.
(1) Imposition of the Tax. xxx The MCIT shall be
imposed whenever such corporation has zero or
negative taxable income or whenever the amount of
[MCIT] is greater than the normal income tax due
from such corporation. (Emphasis supplied)
 
RR 9-98, in declaring that MCIT should be imposed whenever such
corporation has zero or negative taxable income, merely defines the coverage of
Section 27(E). This means that even if a corporation incurs a net loss in its business
operations or reports zero income after deducting its expenses, it is still subject to an
MCIT of 2% of its gross income. This is consistent with the law which imposes the
MCIT on gross income notwithstanding the amount of the net income. But the law
also states that the MCIT is to be paid only if it is greater than the normal net income.
Obviously, it may well be the case that the MCIT would be less than the net income
of the corporation which posts a zero or negative taxable income.
 
We now proceed to the issues involving the CWT.
 
The withholding tax system is a procedure through which taxes
(including income taxes) are collected.[61] Under Section 57 of RA 8424, the types
of income subject to withholding tax are divided into three categories: (a) withholding
of final tax on certain incomes; (b) withholding of creditable tax at source and (c) tax-
free covenant bonds. Petitioner is concerned with the second category (CWT) and
maintains that the revenue regulations on the collection of CWT on sale of real
estate categorized as ordinary assets are unconstitutional.
 
Petitioner, after enumerating the distinctions between capital and
ordinary assets under RA 8424, contends that Sections 2.57.2(J) and 2.58.2 of RR
2-98 and Sections 4(a)(ii) and (c)(ii) of RR 7-2003 were promulgated with grave
abuse of discretion amounting to lack of jurisdiction and patently in contravention of
law[62] because they ignore such distinctions. Petitioners conclusion is based on the
following premises: (a) the revenue regulations use gross selling price (GSP) or fair
market value (FMV) of the real estate as basis for determining the income tax for the
sale of real estate classified as ordinary assets and (b) they mandate the collection
of income tax on a per transaction basis, i.e., upon consummation of the sale via the
CWT, contrary to RA 8424 which calls for the payment of the net income at the end
of the taxable period.[63]
Petitioner theorizes that since RA 8424 treats capital assets and
ordinary assets differently, respondents cannot disregard the distinctions set by the
legislators as regards the tax base, modes of collection and payment of taxes on
income from the sale of capital and ordinary assets.
Petitioners arguments have no merit.
 
AUTHORITY OF THE SECRETARY OF FINANCE TO ORDER THE COLLECTION
OF CWT ON SALES OF REAL PROPERTY CONSIDERED AS ORDINARY
ASSETS
 
The Secretary of Finance is granted, under Section 244 of RA 8424,
the authority to promulgate the necessary rules and regulations for the effective
enforcement of the provisions of the law. Such authority is subject to the limitation
that the rules and regulations must not override, but must remain consistent and in
harmony with, the law they seek to apply and implement.[64] It is well-settled that an
administrative agency cannot amend an act of Congress.[65]
 
We have long recognized that the method of withholding tax at source is a procedure
of collecting income tax which is sanctioned by our tax laws.[66] The withholding tax
system was devised for three primary reasons: first, to provide the taxpayer a
convenient manner to meet his probable income tax liability; second, to ensure the
collection of income tax which can otherwise be lost or substantially reduced through
failure to file the corresponding returns and third, to improve the governments cash
flow.[67] This results in administrative savings, prompt and efficient collection of
taxes, prevention of delinquencies and reduction of governmental effort to collect
taxes through more complicated means and remedies.[68]
Respondent Secretary has the authority to require the withholding of
a tax on items of income payable to any person, national or juridical, residing in the
Philippines. Such authority is derived from Section 57(B) of RA 8424 which provides:
SEC. 57. Withholding of Tax at Source.
 
xxx xxx xxx
 
(B)     Withholding of Creditable Tax
at Source. The [Secretary]
may, upon the
recommendation of the
[CIR], require the
withholding of a tax on the
items of income payable to
natural or juridical persons,
residing in the Philippines,
by payor-
corporation/persons as
provided for by law, at the
rate of not less than one
percent (1%) but not more
than thirty-two percent
(32%) thereof, which shall
be credited against the
income tax liability of the
taxpayer for the taxable
year.
 
 
The questioned provisions of RR 2-98, as amended, are well within
the authority given by Section 57(B) to the Secretary, i.e., the graduated rate of
1.5%-5% is between the 1%-32% range; the withholding tax is imposed on the
income payable and the tax is creditable against the income tax liability of the
taxpayer for the taxable year.
EFFECT OF RRS ON THE TAX BASE FOR THE INCOME TAX OFINDIVIDUALS
OR CORPORATIONS ENGAGED IN THE REAL ESTATE BUSINESS
 
 
 
Petitioner maintains that RR 2-98, as amended, arbitrarily shifted the tax base of a
real estate business income tax from net income to GSP or FMV of the property sold.
Petitioner is wrong.
 
The taxes withheld are in the nature of advance tax payments by a taxpayer in order
to extinguish its possible tax obligation. [69] They are installments on the annual tax
which may be due at the end of the taxable year.[70]
Under RR 2-98, the tax base of the income tax from the sale of real
property classified as ordinary assets remains to be the entitys net income imposed
under Section 24 (resident individuals) or Section 27 (domestic corporations) in
relation to Section 31 of RA 8424, i.e. gross income less allowable deductions. The
CWT is to be deducted from the net income tax payable by the taxpayer at the end of
the taxable year.[71] Precisely, Section 4(a)(ii) and (c)(ii) of RR 7-2003 reiterate that
the tax base for the sale of real property classified as ordinary assets remains to be
the net taxable income:
 
Section 4. Applicable taxes on sale, exchange or
other disposition of real property. - Gains/Income
derived from sale, exchange, or other disposition of
real properties shall unless otherwise exempt, be
subject to applicable taxes imposed under the Code,
depending on whether the subject properties are
classified as capital assets or ordinary assets;
xxx xxx xxx
a. In the case of individual citizens
(including estates and trusts),
resident aliens, and non-resident
aliens engaged in trade or business
in the Philippines;
xxx xxx xxx
(ii) The sale of real property located in the
Philippines, classified as ordinary assets, shall be
subject to the [CWT] (expanded) under Sec.
2.57.2(j) of [RR 2-98], as amended, based on the
[GSP] or current [FMV] as determined in accordance
with Section 6(E) of the Code, whichever is higher,
and consequently, to the ordinary income tax
imposed under Sec. 24(A)(1)(c) or 25(A)(1) of the
Code, as the case may be, based on net taxable
income.
xxx xxx xxx
 
c. In the case of domestic corporations.
The sale of land and/or building classified as
ordinary asset and other real property (other than
land and/or building treated as capital asset),
regardless of the classification thereof, all of which
are located in the Philippines, shall be subject to
the [CWT] (expanded) under Sec. 2.57.2(J) of [RR
2-98], as amended, and consequently, to the
ordinary income tax under Sec. 27(A) of the
Code. In lieu of the ordinary income tax, however,
domestic corporations may become subject to the
[MCIT] under Sec. 27(E) of the same Code,
whichever is applicable. (Emphasis supplied)
 
Accordingly, at the end of the year, the taxpayer/seller shall file its income tax return
and credit the taxes withheld (by the withholding agent/buyer) against its tax due. If
the tax due is greater than the tax withheld, then the taxpayer shall pay the
difference. If, on the other hand, the tax due is less than the tax withheld, the
taxpayer will be entitled to a refund or tax credit. Undoubtedly, the taxpayer is taxed
on its net income.
The use of the GSP/FMV as basis to determine the withholding taxes
is evidently for purposes of practicality and convenience. Obviously, the withholding
agent/buyer who is obligated to withhold the tax does not know, nor is he privy to,
how much the taxpayer/seller will have as its net income at the end of the taxable
year. Instead, said withholding agents knowledge and privity are limited only to the
particular transaction in which he is a party. In such a case, his basis can only be the
GSP or FMV as these are the only factors reasonably known or knowable by him in
connection with the performance of his duties as a withholding agent.
 
NO BLURRING OF DISTINCTIONS BETWEEN ORDINARY ASSETS AND
CAPITAL ASSETS
 
 
RR 2-98 imposes a graduated CWT on income based on the GSP or FMV of the real
property categorized as ordinary assets. On the other hand, Section 27(D)(5) of RA
8424 imposes a final tax and flat rate of 6% on the gain presumed to be realized
from the sale of a capital asset based on its GSP or FMV. This final tax is also
withheld at source.[72]
The differences between the two forms of withholding tax, i.e.,
creditable and final, show that ordinary assets are not treated in the same manner as
capital assets. Final withholding tax (FWT) and CWT are distinguished as follows:
 
 
FWT
a) The amount of income tax withheld by the withholding agent is a
constituted as a full and final payment of the income tax due from the le
payee on the said income.
 
b)The liability for payment of the tax rests primarily on the payor as a b
withholding agent. d
p
th
c) The payee is not required to file an income tax return for the c
particular income.[73] p
As previously stated, FWT is imposed on the sale of capital assets. On the other
hand, CWT is imposed on the sale of ordinary assets. The inherent and substantial
differences between FWT and CWT disprove petitioners contention that ordinary
assets are being lumped together with, and treated similarly as, capital assets in
contravention of the pertinent provisions of RA 8424.
Petitioner insists that the levy, collection and payment of CWT at the
time of transaction are contrary to the provisions of RA 8424 on the manner and time
of filing of the return, payment and assessment of income tax involving ordinary
assets.[75]
The fact that the tax is withheld at source does not automatically
mean that it is treated exactly the same way as capital gains. As aforementioned, the
mechanics of the FWT are distinct from those of the CWT. The withholding
agent/buyers act of collecting the tax at the time of the transaction by withholding the
tax due from the income payable is the essence of the withholding tax method of tax
collection.
NO RULE THAT ONLY PASSIVE INCOMES CAN BE SUBJECT TO CWT
 
Petitioner submits that only passive income can be subjected to
withholding tax, whether final or creditable. According to petitioner, the whole of
Section 57 governs the withholding of income tax on passive income. The
enumeration in Section 57(A) refers to passive income being subjected to FWT. It
follows that Section 57(B) on CWT should also be limited to passive income:
 
SEC. 57. Withholding of Tax at Source.
 
(A) Withholding of Final Tax on Certain Incomes.
Subject to rules and regulations, the [Secretary] may
promulgate, upon the recommendation of the [CIR],
requiring the filing of income tax return by certain
income payees, the tax imposed or prescribed by
Sections 24(B)(1), 24(B)(2), 24(C), 24(D)(1); 25(A)
(2), 25(A)(3), 25(B), 25(C), 25(D), 25(E); 27(D)(1),
27(D)(2), 27(D)(3), 27(D)(5); 28(A)(4), 28(A)(5), 28(A)
(7)(a), 28(A)(7)(b), 28(A)(7)(c), 28(B)(1), 28(B)(2),
28(B)(3), 28(B)(4), 28(B)(5)(a), 28(B)(5)(b), 28(B)(5)
(c); 33; and 282 of this Code on specified items of
income shall be withheld by payor-corporation and/or
person and paid in the same manner and subject to
the same conditions as provided in Section 58 of this
Code.
(B) Withholding of Creditable Tax at Source. The
[Secretary] may, upon the recommendation of the
[CIR], require the withholding of a tax on the items of
income payable to natural or juridical persons,
residing in the Philippines, by payor-
corporation/persons as provided for by law, at the rate
of not less than one percent (1%) but not more than
thirty-two percent (32%) thereof, which shall be
credited against the income tax liability of the
taxpayer for the taxable year. (Emphasis supplied)
 
This line of reasoning is non sequitur.
Section 57(A) expressly states that final tax can be imposed on
certain kinds of income and enumerates these as passive income. The BIR defines
passive income by stating what it is not:
 
if the income is generated in the active
pursuit and performance of the corporations primary
purposes, the same is not passive income[76]
 
It is income generated by the taxpayers assets. These assets can be in the form of
real properties that return rental income, shares of stock in a corporation that earn
dividends or interest income received from savings.
On the other hand, Section 57(B) provides that the Secretary can
require a CWT on income payable to natural or juridical persons, residing in the
Philippines. There is no requirement that this income be passive income. If that were
the intent of Congress, it could have easily said so.
 
Indeed, Section 57(A) and (B) are distinct. Section 57(A) refers to FWT while Section
57(B) pertains to CWT. The former covers the kinds of passive income enumerated
therein and the latter encompasses any income other than those listed in 57(A).
Since the law itself makes distinctions, it is wrong to regard 57(A) and 57(B) in the
same way.
 
To repeat, the assailed provisions of RR 2-98, as amended, do not
modify or deviate from the text of Section 57(B). RR 2-98 merely implements the law
by specifying what income is subject to CWT. It has been held that, where a statute
does not require any particular procedure to be followed by an administrative
agency, the agency may adopt any reasonable method to carry out its functions. [77]
Similarly, considering that the law uses the general term income, the Secretary and
CIR may specify the kinds of income the rules will apply to based on what is feasible.
In addition, administrative rules and regulations ordinarily deserve to be given weight
and respect by the courts[78] in view of the rule-making authority given to those who
formulate them and their specific expertise in their respective fields.
NO DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS
 
Petitioner avers that the imposition of CWT on GSP/FMV of real
estate classified as ordinary assets deprives its members of their property without
due process of law because, in their line of business, gain is never assured by mere
receipt of the selling price. As a result, the government is collecting tax from net
income not yet gained or earned.
Again, it is stressed that the CWT is creditable against the tax due from the seller of
the property at the end of the taxable year. The seller will be able to claim a tax
refund if its net income is less than the taxes withheld. Nothing is taken that is not
due so there is no confiscation of property repugnant to the constitutional guarantee
of due process. More importantly, the due process requirement applies to the power
to tax.[79] The CWT does not impose new taxes nor does it increase taxes.[80] It
relates entirely to the method and time of payment.
 
Petitioner protests that the refund remedy does not make the CWT
less burdensome because taxpayers have to wait years and may even resort to
litigation before they are granted a refund.[81] This argument is misleading. The
practical problems encountered in claiming a tax refund do not affect the
constitutionality and validity of the CWT as a method of collecting the tax.
Petitioner complains that the amount withheld would have otherwise
been used by the enterprise to pay labor wages, materials, cost of money and other
expenses which can then save the entity from having to obtain loans entailing
considerable interest expense. Petitioner also lists the expenses and pitfalls of the
trade which add to the burden of the realty industry: huge investments and
borrowings; long gestation period; sudden and unpredictable interest rate surges;
continually spiraling development/construction costs; heavy taxes and prohibitive up-
front regulatory fees from at least 20 government agencies.[82]
Petitioners lamentations will not support its attack on the
constitutionality of the CWT. Petitioners complaints are essentially matters of policy
best addressed to the executive and legislative branches of the government.
Besides, the CWT is applied only on the amounts actually received or receivable by
the real estate entity. Sales on installment are taxed on a per-installment basis.[83]
Petitioners desire to utilize for its operational and capital expenses money earmarked
for the payment of taxes may be a practical business option but it is not a
fundamental right which can be demanded from the court or from the government.
 
 NO VIOLATION OF EQUAL PROTECTION
 
 
Petitioner claims that the revenue regulations are violative of the equal protection
clause because the CWT is being levied only on real estate enterprises. Specifically,
petitioner points out that manufacturing enterprises are not similarly imposed a CWT
on their sales, even if their manner of doing business is not much different from that
of a real estate enterprise. Like a manufacturing concern, a real estate business is
involved in a continuous process of production and it incurs costs and expenditures
on a regular basis. The only difference is that goods produced by the real estate
business are house and lot units.[84]
Again, we disagree.
 
The equal protection clause under the Constitution means that no
person or class of persons shall be deprived of the same protection of laws which is
enjoyed by other persons or other classes in the same place and in like
circumstances.[85] Stated differently, all persons belonging to the same class shall
be taxed alike. It follows that the guaranty of the equal protection of the laws is not
violated by legislation based on a reasonable classification. Classification, to be
valid, must (1) rest on substantial distinctions; (2) be germane to the purpose of the
law; (3) not be limited to existing conditions only and (4) apply equally to all members
of the same class.[86]
The taxing power has the authority to make reasonable classifications for purposes
of taxation.[87] Inequalities which result from a singling out of one particular class for
taxation, or exemption, infringe no constitutional limitation.[88] The real estate
industry is, by itself, a class and can be validly treated differently from other business
enterprises.
 
Petitioner, in insisting that its industry should be treated similarly as manufacturing
enterprises, fails to realize that what distinguishes the real estate business from
other manufacturing enterprises, for purposes of the imposition of the CWT, is not
their production processes but the prices of their goods sold and the number of
transactions involved. The income from the sale of a real property is bigger and its
frequency of transaction limited, making it less cumbersome for the parties to comply
with the withholding tax scheme.
 
On the other hand, each manufacturing enterprise may have tens of thousands of
transactions with several thousand customers every month involving both minimal
and substantial amounts. To require the customers of manufacturing enterprises, at
present, to withhold the taxes on each of their transactions with their tens or
hundreds of suppliers may result in an inefficient and unmanageable system of
taxation and may well defeat the purpose of the withholding tax system.
Petitioner counters that there are other businesses wherein expensive items are also
sold infrequently, e.g. heavy equipment, jewelry, furniture, appliance and other
capital goods yet these are not similarly subjected to the CWT.[89] As already
discussed, the Secretary may adopt any reasonable method to carry out its
functions.[90] Under Section 57(B), it may choose what to subject to CWT.
A reading of Section 2.57.2 (M) of RR 2-98 will also show that petitioners argument
is not accurate. The sales of manufacturers who have clients within the top 5,000
corporations, as specified by the BIR, are also subject to CWT for their transactions
with said 5,000 corporations.[91]
SECTION 2.58.2 OF RR NO. 2-98 MERELY IMPLEMENTS SECTION 58 OF RA
8424
 
 
 Lastly, petitioner assails Section 2.58.2 of RR 2-98, which provides
that the Registry of Deeds should not effect the regisration of any document
transferring real property unless a certification is issued by the CIR that the
withholding tax has been paid. Petitioner proffers hardly any reason to strike down
this rule except to rely on its contention that the CWT is unconstitutional. We have
ruled that it is not. Furthermore, this provision uses almost exactly the same wording
as Section 58(E) of RA 8424 and is unquestionably in accordance with it:
Sec. 58. Returns and Payment of Taxes Withheld at
Source.
(E) Registration with Register of Deeds. - No
registration of any document transferring real
property shall be effected by the Register of
Deeds unless the [CIR] or his duly authorized
representative has certified that such transfer
has been reported, and the capital gains or
[CWT], if any, has been paid: xxxx any violation of
this provision by the Register of Deeds shall be
subject to the penalties imposed under Section 269
of this Code. (Emphasis supplied)
 
 
CONCLUSION
 
 
The renowned genius Albert Einstein was once quoted as saying [the] hardest thing
in the world to understand is the income tax.[92] When a party questions the
constitutionality of an income tax measure, it has to contend not only with Einsteins
observation but also with the vast and well-established jurisprudence in support of
the plenary powers of Congress to impose taxes. Petitioner has miserably failed to
discharge its burden of convincing the Court that the imposition of MCIT and CWT is
unconstitutional.
WHEREFORE, the petition is hereby DISMISSED.
  
SO ORDERED.
BIRAOGO vs. PHIL TRUTH
MENDOZA, J.:
When the judiciary mediates to allocate
constitutional boundaries, it does not assert any
superiority over the other departments; it does not in
reality nullify or invalidate an act of the legislature, but
only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution
and to establish for the parties in an actual
controversy the rights which that instrument secures
and guarantees to them.
--- Justice Jose P. Laurel[1]
The role of the Constitution cannot be overlooked. It is through the Constitution that
the fundamental powers of government are established, limited and defined, and by
which these powers are distributed among the several departments. [2] The
Constitution is the basic and paramount law to which all other laws must conform
and to which all persons, including the highest officials of the land, must defer.[3]
Constitutional doctrines must remain steadfast no matter what may be the tides of
time. It cannot be simply made to sway and accommodate the call of situations and
much more tailor itself to the whims and caprices of government and the people who
run it.[4]
For consideration before the Court are two consolidated cases[5] both of which
essentially assail the validity and constitutionality of Executive Order No. 1, dated
July 30, 2010, entitled Creating the Philippine Truth Commission of 2010.
The first case is G.R. No. 192935, a special civil action for prohibition
instituted by petitioner Louis Biraogo (Biraogo) in his capacity as a citizen and
taxpayer. Biraogo assails Executive Order No. 1 for being violative of the legislative
power of Congress under Section 1, Article VI of the Constitution[6] as it usurps the
constitutional authority of the legislature to create a public office and to appropriate
funds therefor.[7]
The second case, G.R. No. 193036, is a special civil action for certiorari and
prohibition filed by petitioners Edcel C. Lagman, Rodolfo B. Albano Jr., Simeon A.
Datumanong, and Orlando B. Fua, Sr. (petitioners-legislators) as incumbent
members of the House of Representatives.
The genesis of the foregoing cases can be traced to the events prior to the historic
May 2010 elections, when then Senator Benigno Simeon Aquino III declared his
staunch condemnation of graft and corruption with his slogan, Kung walang corrupt,
walang mahirap. The Filipino people, convinced of his sincerity and of his ability to
carry out this noble objective, catapulted the good senator to the presidency.
To transform his campaign slogan into reality, President Aquino
found a need for a special body to investigate reported cases of graft and corruption
allegedly committed during the previous administration.
 
Thus, at the dawn of his administration, the President on July 30,
2010, signed Executive Order No. 1 establishing the Philippine Truth Commission of
2010 (Truth Commission). Pertinent provisions of said executive order read:
EXECUTIVE ORDER NO. 1
CREATING THE PHILIPPINE TRUTH COMMISSION
OF 2010
WHEREAS, Article XI, Section 1 of the 1987
Constitution of the Philippines solemnly enshrines the
principle that a public office is a public trust and
mandates that public officers and employees, who are
servants of the people, must at all times be
accountable to the latter, serve them with utmost
responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives;
 
WHEREAS, corruption is among the most despicable
acts of defiance of this principle and notorious violation
of this mandate;
 
WHEREAS, corruption is an evil and scourge which
seriously affects the political, economic, and social life
of a nation; in a very special way it inflicts untold
misfortune and misery on the poor, the marginalized
and underprivileged sector of society;
 
WHEREAS, corruption in the Philippines has reached
very alarming levels, and undermined the peoples
trust and confidence in the Government and its
institutions;
 
WHEREAS, there is an urgent call for the
determination of the truth regarding certain reports of
large scale graft and corruption in the government and
to put a closure to them by the filing of the appropriate
cases against those involved, if warranted, and to
deter others from committing the evil, restore the
peoples faith and confidence in the Government and in
their public servants;
WHEREAS, the Presidents battlecry during his
campaign for the Presidency in the last elections kung
walang corrupt, walang mahirap expresses a solemn
pledge that if elected, he would end corruption and the
evil it breeds;
WHEREAS, there is a need for a separate body
dedicated solely to investigating and finding out the
truth concerning the reported cases of graft and
corruption during the previous administration, and
which will recommend the prosecution of the offenders
and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of
Executive Order No. 292, otherwise known as the
Revised Administrative Code of the Philippines, gives
the President the continuing authority to reorganize
the Office of the President.
NOW, THEREFORE, I, BENIGNO SIMEON AQUINO
III, President of the Republic of the Philippines, by
virtue of the powers vested in me by law, do hereby
order:
SECTION 1. Creation of a Commission. There is
hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the
COMMISSION, which shall primarily seek and find the
truth on, and toward this end, investigate reports of
graft and corruption of such scale and magnitude that
shock and offend the moral and ethical sensibilities of
the people, committed by public officers and
employees, their co-principals, accomplices and
accessories from the private sector, if any, during the
previous administration; and thereafter recommend
the appropriate action or measure to be taken thereon
to ensure that the full measure of justice shall be
served without fear or favor.
The Commission shall be composed of a Chairman
and four (4) members who will act as an independent
collegial body.
SECTION 2. Powers and Functions. The Commission,
which shall have all the powers of an investigative
body under Section 37, Chapter 9, Book I of the
 Administrative Code of 1987, is primarily tasked to
conduct a thorough fact-finding investigation of
reported cases of graft and corruption referred to in
Section 1, involving third level public officers and
higher, their co-principals, accomplices and
accessories from the private sector, if any, during the
previous administration and thereafter submit its
finding and recommendations to the President,
Congress and the Ombudsman.
In particular, it shall:
 
a)      Identify and determine the reported cases of
such graft and corruption which it will investigate;
 
b)      Collect, receive, review and evaluate evidence
related to or regarding the cases of large scale
corruption which it has chosen to investigate, and to
this end require any agency, official or employee of the
Executive Branch, including government-owned or
controlled corporations, to produce documents, books,
records and other papers;
 
c)      Upon proper request or representation, obtain
information and documents from the Senate and the
House of Representatives records of investigations
conducted by committees thereof relating to matters or
subjects being investigated by the Commission;
 
d)      Upon proper request and representation, obtain
information from the courts, including the
Sandiganbayan and the Office of the Court
Administrator, information or documents in respect to
corruption cases filed with the Sandiganbayan or the
regular courts, as the case may be;
e)      Invite or subpoena witnesses and take their
testimonies and for that purpose, administer oaths or
affirmations as the case may be;
 
f)       Recommend, in cases where there is a need to
utilize any person as a state witness to ensure that the
ends of justice be fully served, that such person who
qualifies as a state witness under the Revised Rules of
Court of the Philippines be admitted for that purpose;
 
g)      Turn over from time to time, for expeditious
prosecution, to the appropriate prosecutorial
authorities, by means of a special or interim report and
recommendation, all evidence on corruption of public
officers and employees and their private sector co-
principals, accomplices or accessories, if any, when in
the course of its investigation the Commission finds
that there is reasonable ground to believe that they are
liable for graft and corruption under pertinent
applicable laws;
 
h)      Call upon any government investigative or
prosecutorial agency such as the Department of
Justice or any of the agencies under it, and the
Presidential Anti-Graft Commission, for such
assistance and cooperation as it may require in the
discharge of its functions and duties;
 
i)        Engage or contract the services of resource
persons, professionals and other personnel
determined by it as necessary to carry out its
mandate;
 
j)        Promulgate its rules and regulations or rules of
procedure it deems necessary to effectively and
efficiently carry out the objectives of this Executive
Order and to ensure the orderly conduct of its
investigations, proceedings and hearings, including
the presentation of evidence;
 
k)      Exercise such other acts incident to or are
appropriate and necessary in connection with the
objectives and purposes of this Order.
SECTION 3. Staffing Requirements. x x x.
 
SECTION 4. Detail of Employees. x x x.
SECTION 5. Engagement of Experts. x x x
 
SECTION 6. Conduct of Proceedings. x x x.
SECTION 7. Right to Counsel of Witnesses/Resource
Persons. x x x.
SECTION 8. Protection of Witnesses/Resource
Persons. x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or
Give Testimony. Any government official or personnel
who, without lawful excuse, fails to appear upon
subpoena issued by the Commission or who,
appearing before the Commission refuses to take oath
or affirmation, give testimony or produce documents
for inspection, when required, shall be subject to
administrative disciplinary action. Any private person
who does the same may be dealt with in accordance
with law.
SECTION 10. Duty to Extend Assistance to the
Commission. x x x.
SECTION 11. Budget for the Commission. The Office
of the President shall provide the necessary funds for
the Commission to ensure that it can exercise its
powers, execute its functions, and perform its duties
and responsibilities as effectively, efficiently, and
expeditiously as possible.
SECTION 12. Office. x x x.
 
SECTION 13. Furniture/Equipment. x x x.
 
SECTION 14. Term of the Commission. The
Commission shall accomplish its mission on or before
December 31, 2012.
 
SECTION 15. Publication of Final Report. x x x.
SECTION 16. Transfer of Records and Facilities of the
Commission. x x x.
 
SECTION 17. Special Provision Concerning Mandate.
If and when in the judgment of the President there is a
need to expand the mandate of the Commission as
defined in Section 1 hereof to include the investigation
of cases and instances of graft and corruption during
the prior administrations, such mandate may be so
extended accordingly by way of a supplemental
Executive Order.
 
 
 
SECTION 18. Separability Clause. If any provision of
this Order is declared unconstitutional, the same shall
not affect the validity and effectivity of the other
provisions hereof.
 
SECTION 19. Effectivity. This Executive Order shall
take effect immediately.
 
DONE in the City of Manila, Philippines, this 30 th day
of July 2010.
 
(SGD.) BENIGNO S. AQUINO III
 
By the President:
 
(SGD.) PAQUITO N. OCHOA, JR.
Executive Secretary
 
Nature of the Truth Commission
 
As can be gleaned from the above-quoted provisions, the Philippine
Truth Commission (PTC) is a mere ad hoc body formed under the Office of the
President with the primary task to investigate reports of graft and corruption
committed by third-level public officers and employees, their co-principals,
accomplices and accessories during the previous administration, and thereafter to
submit its finding and recommendations to the President, Congress and the
Ombudsman. Though it has been described as an independent collegial body, it is
essentially an entity within the Office of the President Proper and subject to his
control. Doubtless, it constitutes a public office, as an ad hoc body is one.[8]
To accomplish its task, the PTC shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the Administrative Code of
1987. It is not, however, a quasi-judicial body as it cannot adjudicate, arbitrate,
resolve, settle, or render awards in disputes between contending parties. All it can do
is gather, collect and assess evidence of graft and corruption and make
recommendations. It may have subpoena powers but it has no power to cite people
in contempt, much less order their arrest. Although it is a fact-finding body, it cannot
determine from such facts if probable cause exists as to warrant the filing of an
information in our courts of law. Needless to state, it cannot impose criminal, civil or
administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries
which have been created as official, transitory and non-judicial fact-finding bodies to
establish the facts and context of serious violations of human rights or of
international humanitarian law in a countrys past.[9] They are usually established by
states emerging from periods of internal unrest, civil strife or authoritarianism to
serve as mechanisms for transitional justice.
 
Truth commissions have been described as bodies that share the
following characteristics: (1) they examine only past events; (2) they investigate
patterns of abuse committed over a period of time, as opposed to a particular event;
(3) they are temporary bodies that finish their work with the submission of a report
containing conclusions and recommendations; and (4) they are officially sanctioned,
authorized or empowered by the State.[10] Commissions members are usually
empowered to conduct research, support victims, and propose policy
recommendations to prevent recurrence of crimes. Through their investigations, the
commissions may aim to discover and learn more about past abuses, or formally
acknowledge them. They may aim to prepare the way for prosecutions and
recommend institutional reforms.[11]
 
Thus, their main goals range from retribution to reconciliation. The
Nuremburg and Tokyo war crime tribunals are examples of a retributory or
vindicatory body set up to try and punish those responsible for crimes against
humanity. A form of a reconciliatory tribunal is the Truth and Reconciliation
Commission of South Africa, the principal function of which was to heal the wounds
of past violence and to prevent future conflict by providing a cathartic experience for
victims.
 
The PTC is a far cry from South Africas model. The latter placed
more emphasis on reconciliation than on judicial retribution, while the marching order
of the PTC is the identification and punishment of perpetrators. As one writer [12]
puts it:
 
The order ruled out reconciliation. It
translated the Draconian code spelled out by Aquino
in his inaugural speech: To those who talk about
reconciliation, if they mean that they would like us to
simply forget about the wrongs that they have
committed in the past, we have this to say: There can
be no reconciliation without justice. When we allow
crimes to go unpunished, we give consent to their
occurring over and over again.
 
The Thrusts of the Petitions
 
Barely a month after the issuance of Executive Order No. 1, the
petitioners asked the Court to declare it unconstitutional and to enjoin the PTC from
performing its functions. A perusal of the arguments of the petitioners in both cases
shows that they are essentially the same. The petitioners-legislators summarized
them in the following manner:
(a) E.O. No. 1 violates the separation
of powers as it arrogates the power of the Congress to
create a public office and appropriate funds for its
operation.
 
(b) The provision of Book III, Chapter
10, Section 31 of the Administrative Code of 1987
cannot legitimize E.O. No. 1 because the delegated
authority of the President to structurally reorganize the
Office of the President to achieve economy, simplicity
and efficiency does not include the power to create an
entirely new public office which was hitherto inexistent
like the Truth Commission.
 
(c) E.O. No. 1 illegally amended the
Constitution and pertinent statutes when it vested the
Truth Commission with quasi-judicial powers
duplicating, if not superseding, those of the Office of
the Ombudsman created under the 1987 Constitution
and the Department of Justice created under the
Administrative Code of 1987.
 
(d) E.O. No. 1 violates the equal
protection clause as it selectively targets for
investigation and prosecution officials and personnel
of the previous administration as if corruption is their
peculiar species even as it excludes those of the other
administrations, past and present, who may be
indictable.
 
(e) The creation of the Philippine Truth
Commission of 2010 violates the consistent and
general international practice of four decades wherein
States constitute truth commissions to exclusively
investigate human rights violations, which customary
practice forms part of the generally accepted
principles of international law which the Philippines is
mandated to adhere to pursuant to the Declaration of
Principles enshrined in the Constitution.
 
(f) The creation of the Truth
Commission is an exercise in futility, an adventure in
partisan hostility, a launching pad for trial/conviction
by publicity and a mere populist propaganda to
mistakenly impress the people that widespread
poverty will altogether vanish if corruption is
eliminated without even addressing the other major
causes of poverty.
 
(g) The mere fact that previous
commissions were not constitutionally challenged is of
no moment because neither laches nor estoppel can
bar an eventual question on the constitutionality and
validity of an executive issuance or even a statute.[13]
 
 
In their Consolidated Comment,[14] the respondents, through the
Office of the Solicitor General (OSG), essentially questioned the legal standing of
petitioners and defended the assailed executive order with the following arguments:
 
1] E.O. No. 1 does not arrogate the
powers of Congress to create a public office because
the Presidents executive power and power of control
necessarily include the inherent power to conduct
investigations to ensure that laws are faithfully
executed and that, in any event, the Constitution,
Revised Administrative Code of 1987 (E.O. No. 292),
[15] Presidential Decree (P.D.) No. 1416[16] (as
amended by P.D. No. 1772), R.A. No. 9970,[17] and
settled jurisprudence that authorize the President to
create or form such bodies.
 
2] E.O. No. 1 does not usurp the power
of Congress to appropriate funds because there is no
appropriation but a mere allocation of funds already
appropriated by Congress.
 
3] The Truth Commission does not
duplicate or supersede the functions of the Office of
the Ombudsman (Ombudsman) and the Department
of Justice (DOJ), because it is a fact-finding body and
not a quasi-judicial body and its functions do not
duplicate, supplant or erode the latters jurisdiction.
 
4] The Truth Commission does not
violate the equal protection clause because it was
validly created for laudable purposes.
 
The OSG then points to the continued existence and validity of other
executive orders and presidential issuances creating similar bodies to justify the
creation of the PTC such as Presidential Complaint and Action Commission (PCAC)
by President Ramon B. Magsaysay, Presidential Committee on Administrative
Performance Efficiency (PCAPE) by President Carlos P. Garcia and Presidential
Agency on Reform and Government Operations (PARGO) by President Ferdinand E.
Marcos.[18]
From the petitions, pleadings, transcripts, and memoranda, the
following are the principal issues to be resolved:
 
1.                           Whether or not the
petitioners have the legal standing to file their
respective petitions and question Executive Order No.
1;
 
2.                           Whether or not
Executive Order No. 1 violates the principle of
separation of powers by usurping the powers of
Congress to create and to appropriate funds for public
offices, agencies and commissions;
3. Whether or not Executive Order No.
1 supplants the powers of the Ombudsman and the
DOJ;
 
4. Whether or not Executive Order No.
1 violates the equal protection clause; and
 
5. Whether or not petitioners are
entitled to injunctive relief.
 
Essential requisites for judicial review
 
Before proceeding to resolve the issue of the constitutionality of Executive Order No.
1, the Court needs to ascertain whether the requisites for a valid exercise of its
power of judicial review are present.
 
Like almost all powers conferred by the Constitution, the power of judicial review is
subject to limitations, to wit: (1) there must be an actual case or controversy calling
for the exercise of judicial power; (2) the person challenging the act must have the
standing to question the validity of the subject act or issuance; otherwise stated, he
must have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement; (3) the question
of constitutionality must be raised at the earliest opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.[19]
 
Among all these limitations, only the legal standing of the petitioners has been put at
issue.
 
Legal Standing of the Petitioners
 
The OSG attacks the legal personality of the petitioners-legislators to
file their petition for failure to demonstrate their personal stake in the outcome of the
case. It argues that the petitioners have not shown that they have sustained or are
in danger of sustaining any personal injury attributable to the creation of the PTC.
Not claiming to be the subject of the commissions investigations, petitioners will not
sustain injury in its creation or as a result of its proceedings.[20]
 
The Court disagrees with the OSG in questioning the legal standing
of the petitioners-legislators to assail Executive Order No. 1. Evidently, their petition
primarily invokes usurpation of the power of the Congress as a body to which they
belong as members. This certainly justifies their resolve to take the cudgels for
Congress as an institution and present the complaints on the usurpation of their
power and rights as members of the legislature before the Court. As held in
Philippine Constitution Association v. Enriquez,[21]
 
To the extent the powers of Congress
are impaired, so is the power of each member thereof,
since his office confers a right to participate in the
exercise of the powers of that institution.
An act of the Executive which injures
the institution of Congress causes a derivative but
nonetheless substantial injury, which can be
questioned by a member of Congress. In such a case,
any member of Congress can have a resort to the
courts.
 
Indeed, legislators have a legal standing to see to it that the
prerogative, powers and privileges vested by the Constitution in their office remain
inviolate. Thus, they are allowed to question the validity of any official action which,
to their mind, infringes on their prerogatives as legislators.[22]
With regard to Biraogo, the OSG argues that, as a taxpayer, he has
no standing to question the creation of the PTC and the budget for its operations.
[23] It emphasizes that the funds to be used for the creation and operation of the
commission are to be taken from those funds already appropriated by Congress.
Thus, the allocation and disbursement of funds for the commission will not entail
congressional action but will simply be an exercise of the Presidents power over
contingent funds.
 
As correctly pointed out by the OSG, Biraogo has not shown that he
sustained, or is in danger of sustaining, any personal and direct injury attributable to
the implementation of Executive Order No. 1. Nowhere in his petition is an assertion
of a clear right that may justify his clamor for the Court to exercise judicial power and
to wield the axe over presidential issuances in defense of the Constitution. The case
of David v. Arroyo[24] explained the deep-seated rules on locus standi. Thus:
Locus standi is defined as a right of
appearance in a court of justice on a given question.
In private suits, standing is governed by the real-
parties-in interest rule as contained in Section 2, Rule
3 of the 1997 Rules of Civil Procedure, as amended. It
provides that every action must be prosecuted or
defended in the name of the real party in interest.
Accordingly, the real-party-in interest is the party who
stands to be benefited or injured by the judgment in
the suit or the party entitled to the avails of the suit.
Succinctly put, the plaintiffs standing is based on his
own right to the relief sought.
 
 The difficulty of determining locus
standi arises in public suits. Here, the plaintiff who
asserts a public right in assailing an allegedly illegal
official action, does so as a representative of the
general public. He may be a person who is affected
no differently from any other person. He could be
suing as a stranger, or in the category of a citizen, or
taxpayer. In either case, he has to adequately show
that he is entitled to seek judicial protection. In other
words, he has to make out a sufficient interest in the
vindication of the public order and the securing of
relief as a citizen or taxpayer.
 
Case law in most jurisdictions now
allows both citizen and taxpayer standing in public
actions. The distinction was first laid down in
Beauchamp v. Silk, where it was held that the plaintiff
in a taxpayers suit is in a different category from the
plaintiff in a citizens suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in
the latter, he is but the mere instrument of the public
concern. As held by the New York Supreme Court in
People ex rel Case v. Collins: In matter of mere public
right, howeverthe people are the real partiesIt is at
least the right, if not the duty, of every citizen to
interfere and see that a public offence be properly
pursued and punished, and that a public grievance be
remedied. With respect to taxpayers suits, Terr v.
Jordan held that the right of a citizen and a taxpayer
to maintain an action in courts to restrain the unlawful
use of public funds to his injury cannot be denied.
 
However, to prevent just about any
person from seeking judicial interference in any official
policy or act with which he disagreed with, and thus
hinders the activities of governmental agencies
engaged in public service, the United State Supreme
Court laid down the more stringent direct injury test
in Ex Parte Levitt, later reaffirmed in Tileston v.
Ullman. The same Court ruled that for a private
individual to invoke the judicial power to determine the
validity of an executive or legislative action, he must
show that he has sustained a direct injury as a
result of that action, and it is not sufficient that he
has a general interest common to all members of
the public.
 
This Court adopted the direct injury
test in our jurisdiction. In People v. Vera, it held that
the person who impugns the validity of a statute must
have a personal and substantial interest in the
case such that he has sustained, or will sustain
direct injury as a result. The Vera doctrine was
upheld in a litany of cases, such as, Custodio v.
President of the Senate, Manila Race Horse Trainers
Association v. De la Fuente, Pascual v. Secretary of
Public Works and Anti-Chinese League of the
Philippines v. Felix. [Emphases included. Citations
omitted]
 
Notwithstanding, the Court leans on the doctrine that the rule on
standing is a matter of procedure, hence, can be relaxed for nontraditional plaintiffs
like ordinary citizens, taxpayers, and legislators when the public interest so requires,
such as when the matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest.[25]
 
Thus, in Coconut Oil Refiners Association, Inc. v. Torres,[26] the
Court held that in cases of paramount importance where serious constitutional
questions are involved, the standing requirements may be relaxed and a suit may be
allowed to prosper even where there is no direct injury to the party claiming the right
of judicial review. In the first Emergency Powers Cases,[27] ordinary citizens and
taxpayers were allowed to question the constitutionality of several executive orders
although they had only an indirect and general interest shared in common with the
public.
The OSG claims that the determinants of transcendental
importance[28] laid down in CREBA v. ERC and Meralco[29] are non-existent in this
case. The Court, however, finds reason in Biraogos assertion that the petition covers
matters of transcendental importance to justify the exercise of jurisdiction by the
Court. There are constitutional issues in the petition which deserve the attention of
this Court in view of their seriousness, novelty and weight as precedents. Where the
issues are of transcendental and paramount importance not only to the public but
also to the Bench and the Bar, they should be resolved for the guidance of all.[30]
Undoubtedly, the Filipino people are more than interested to know the status of the
Presidents first effort to bring about a promised change to the country. The Court
takes cognizance of the petition not due to overwhelming political undertones that
clothe the issue in the eyes of the public, but because the Court stands firm in its
oath to perform its constitutional duty to settle legal controversies with overreaching
significance to society.
 
Power of the President to Create the Truth Commission
 
In his memorandum in G.R. No. 192935, Biraogo asserts that the
Truth Commission is a public office and not merely an adjunct body of the Office of
the President.[31] Thus, in order that the President may create a public office he
must be empowered by the Constitution, a statute or an authorization vested in him
by law. According to petitioner, such power cannot be presumed[32] since there is no
provision in the Constitution or any specific law that authorizes the President to
create a truth commission.[33] He adds that Section 31 of the Administrative Code of
1987, granting the President the continuing authority to reorganize his office, cannot
serve as basis for the creation of a truth commission considering the aforesaid
provision merely uses verbs such as reorganize, transfer, consolidate, merge, and
abolish.[34] Insofar as it vests in the President the plenary power to reorganize the
Office of the President to the extent of creating a public office, Section 31 is
inconsistent with the principle of separation of powers enshrined in the Constitution
and must be deemed repealed upon the effectivity thereof.[35]
 
Similarly, in G.R. No. 193036, petitioners-legislators argue that the
creation of a public office lies within the province of Congress and not with the
executive branch of government. They maintain that the delegated authority of the
President to reorganize under Section 31 of the Revised Administrative Code: 1)
does not permit the President to create a public office, much less a truth commission;
2) is limited to the reorganization of the administrative structure of the Office of the
President; 3) is limited to the restructuring of the internal organs of the Office of the
President Proper, transfer of functions and transfer of agencies; and 4) only to
achieve simplicity, economy and efficiency.[36] Such continuing authority of the
President to reorganize his office is limited, and by issuing Executive Order No. 1,
the President overstepped the limits of this delegated authority.
 
The OSG counters that there is nothing exclusively legislative about
the creation by the President of a fact-finding body such as a truth commission.
Pointing to numerous offices created by past presidents, it argues that the authority
of the President to create public offices within the Office of the President Proper has
long been recognized.[37] According to the OSG, the Executive, just like the other
two branches of government, possesses the inherent authority to create fact-finding
committees to assist it in the performance of its constitutionally mandated functions
and in the exercise of its administrative functions.[38] This power, as the OSG
explains it, is but an adjunct of the plenary powers wielded by the President under
Section 1 and his power of control under Section 17, both of Article VII of the
Constitution.[39]
 
It contends that the President is necessarily vested with the power to
conduct fact-finding investigations, pursuant to his duty to ensure that all laws are
enforced by public officials and employees of his department and in the exercise of
his authority to assume directly the functions of the executive department, bureau
and office, or interfere with the discretion of his officials.[40] The power of the
President to investigate is not limited to the exercise of his power of control over his
subordinates in the executive branch, but extends further in the exercise of his other
powers, such as his power to discipline subordinates,[41] his power for rule making,
adjudication and licensing purposes[42] and in order to be informed on matters which
he is entitled to know.[43]
 
The OSG also cites the recent case of Banda v. Ermita,[44] where it
was held that the President has the power to reorganize the offices and agencies in
the executive department in line with his constitutionally granted power of control and
by virtue of a valid delegation of the legislative power to reorganize executive offices
under existing statutes.
Thus, the OSG concludes that the power of control necessarily
includes the power to create offices. For the OSG, the President may create the PTC
in order to, among others, put a closure to the reported large scale graft and
corruption in the government.[45]
 
The question, therefore, before the Court is this: Does the creation of
the PTC fall within the ambit of the power to reorganize as expressed in Section 31
of the Revised Administrative Code? Section 31 contemplates reorganization as
limited by the following functional and structural lines: (1) restructuring the internal
organization of the Office of the President Proper by abolishing, consolidating or
merging units thereof or transferring functions from one unit to another; (2)
transferring any function under the Office of the President to any other
Department/Agency or vice versa; or (3) transferring any agency under the Office of
the President to any other Department/Agency or vice versa. Clearly, the provision
refers to reduction of personnel, consolidation of offices, or abolition thereof by
reason of economy or redundancy of functions. These point to situations where a
body or an office is already existent but a modification or alteration thereof has to be
effected. The creation of an office is nowhere mentioned, much less envisioned in
said provision. Accordingly, the answer to the question is in the negative.
 
To say that the PTC is borne out of a restructuring of the Office of the
President under Section 31 is a misplaced supposition, even in the plainest meaning
attributable to the term restructure an alteration of an existing structure. Evidently,
the PTC was not part of the structure of the Office of the President prior to the
enactment of Executive Order No. 1. As held in Buklod ng Kawaning EIIB v. Hon.
Executive Secretary,[46]
 
 
But of course, the list of legal basis
authorizing the President to reorganize any
department or agency in the executive branch does
not have to end here. We must not lose sight of the
very source of the power that which constitutes an
express grant of power. Under Section 31, Book III of
Executive Order No. 292 (otherwise known as the
Administrative Code of 1987), "the President, subject
to the policy in the Executive Office and in order to
achieve simplicity, economy and efficiency, shall have
the continuing authority to reorganize the
administrative structure of the Office of the President."
For this purpose, he may transfer the functions of
other Departments or Agencies to the Office of the
President. In Canonizado v. Aguirre [323 SCRA 312
(2000)], we ruled that reorganization "involves the
reduction of personnel, consolidation of offices, or
abolition thereof by reason of economy or redundancy
of functions." It takes place when there is an
alteration of the existing structure of government
offices or units therein, including the lines of
control, authority and responsibility between
them. The EIIB is a bureau attached to the
Department of Finance. It falls under the Office of the
President. Hence, it is subject to the Presidents
continuing authority to reorganize. [Emphasis
Supplied]
 
 
In the same vein, the creation of the PTC is not justified by the
Presidents power of control. Control is essentially the power to alter or modify or
nullify or set aside what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former with that of the latter.[47] Clearly,
the power of control is entirely different from the power to create public offices. The
former is inherent in the Executive, while the latter finds basis from either a valid
delegation from Congress, or his inherent duty to faithfully execute the laws.
 
The question is this, is there a valid delegation of power from
Congress, empowering the President to create a public office?
 
According to the OSG, the power to create a truth commission
pursuant to the above provision finds statutory basis under P.D. 1416, as amended
by P.D. No. 1772.[48] The said law granted the President the continuing authority to
reorganize the national government, including the power to group, consolidate
bureaus and agencies, to abolish offices, to transfer functions, to create and classify
functions, services and activities, transfer appropriations, and to standardize salaries
and materials. This decree, in relation to Section 20, Title I, Book III of E.O. 292 has
been invoked in several cases such as Larin v. Executive Secretary.[49]
 
The Court, however, declines to recognize P.D. No. 1416 as a
justification for the President to create a public office. Said decree is already stale,
anachronistic and inoperable. P.D. No. 1416 was a delegation to then President
Marcos of the authority to reorganize the administrative structure of the national
government including the power to create offices and transfer appropriations
pursuant to one of the purposes of the decree, embodied in its last Whereas clause:
 
WHEREAS, the transition towards the
parliamentary form of government will necessitate
flexibility in the organization of the national
government.
 
Clearly, as it was only for the purpose of providing manageability and
resiliency during the interim, P.D. No. 1416, as amended by P.D. No. 1772, became
functus oficio upon the convening of the First Congress, as expressly provided in
Section 6, Article XVIII of the 1987 Constitution. In fact, even the Solicitor General
agrees with this view. Thus:
 
 
ASSOCIATE JUSTICE CARPIO: Because P.D. 1416
was enacted was the last whereas clause of P.D. 1416
says it was enacted to prepare the transition from
presidential to parliamentary. Now, in a parliamentary
form of government, the legislative and executive
powers are fused, correct?
ASSOCIATE JUSTICE CARPIO: That is why, that
P.D. 1416 was issued. Now would you agree with me
that P.D. 1416 should not be considered effective
anymore upon the promulgation, adoption, ratification
of the 1987 Constitution.
SOLICITOR GENERAL CADIZ: Not the whole of P.D.
[No.] 1416, Your Honor.
ASSOCIATE JUSTICE CARPIO: The power of the
President to reorganize the entire National
Government is deemed repealed, at least, upon the
adoption of the 1987 Constitution, correct.
 
 
While the power to create a truth commission cannot pass muster on the basis of
P.D. No. 1416 as amended by P.D. No. 1772, the creation of the PTC finds
justification under Section 17, Article VII of the Constitution, imposing upon the
President the duty to ensure that the laws are faithfully executed. Section 17 reads:
 
Section 17. The President shall have
control of all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully
 executed. (Emphasis supplied).
 
As correctly pointed out by the respondents, the allocation of power
in the three principal branches of government is a grant of all powers inherent in
them. The Presidents power to conduct investigations to aid him in ensuring the
faithful execution of laws in this case, fundamental laws on public accountability and
transparency is inherent in the Presidents powers as the Chief Executive. That the
authority of the President to conduct investigations and to create bodies to execute
this power is not explicitly mentioned in the Constitution or in statutes does not mean
that he is bereft of such authority.[51] As explained in the landmark case of Marcos
v. Manglapus:[52]
 
x x x. The 1987 Constitution, however,
brought back the presidential system of government
and restored the separation of legislative, executive
and judicial powers by their actual distribution among
three distinct branches of government with provision
for checks and balances.
 
It would not be accurate, however, to
state that "executive power" is the power to enforce
the laws, for the President is head of state as well as
head of government and whatever powers inhere in
such positions pertain to the office unless the
Constitution itself withholds it. Furthermore, the
Constitution itself provides that the execution of the
laws is only one of the powers of the President. It also
grants the President other powers that do not involve
the execution of any provision of law, e.g., his power
over the country's foreign relations.
 
 
On these premises, we hold the view
that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the
President, it maintains intact what is traditionally
considered as within the scope of "executive power."
Corollarily, the powers of the President cannot be said
to be limited only to the specific powers enumerated
in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated.
 
It has been advanced that whatever
power inherent in the government that is neither
legislative nor judicial has to be executive. x x x.
 
 
Indeed, the Executive is given much leeway in ensuring that our laws are faithfully
executed. As stated above, the powers of the President are not limited to those
specific powers under the Constitution.[53] One of the recognized powers of the
President granted pursuant to this constitutionally-mandated duty is the power to
create ad hoc committees. This flows from the obvious need to ascertain facts and
determine if laws have been faithfully executed. Thus, in Department of Health v.
Camposano,[54] the authority of the President to issue Administrative Order No.
298, creating an investigative committee to look into the administrative charges filed
against the employees of the Department of Health for the anomalous purchase of
medicines was upheld. In said case, it was ruled:
 
The Chief Executives power to create the Ad hoc
Investigating Committee cannot be doubted.
Having been constitutionally granted full control of the
Executive Department, to which respondents belong,
the President has the obligation to ensure that all
executive officials and employees faithfully comply
with the law. With AO 298 as mandate, the legality of
the investigation is sustained. Such validity is not
affected by the fact that the investigating team and
the PCAGC had the same composition, or that the
former used the offices and facilities of the latter in
conducting the inquiry. [Emphasis supplied]
 
It should be stressed that the purpose of allowing ad hoc
investigating bodies to exist is to allow an inquiry into matters which the President is
entitled to know so that he can be properly advised and guided in the performance of
his duties relative to the execution and enforcement of the laws of the land. And if
history is to be revisited, this was also the objective of the investigative bodies
created in the past like the PCAC, PCAPE, PARGO, the Feliciano Commission, the
Melo Commission and the Zenarosa Commission. There being no changes in the
government structure, the Court is not inclined to declare such executive power as
non-existent just because the direction of the political winds have changed.
 
On the charge that Executive Order No. 1 transgresses the power of
Congress to appropriate funds for the operation of a public office, suffice it to say that
there will be no appropriation but only an allotment or allocations of existing funds
already appropriated. Accordingly, there is no usurpation on the part of the Executive
of the power of Congress to appropriate funds. Further, there is no need to specify
the amount to be earmarked for the operation of the commission because, in the
words of the Solicitor General, whatever funds the Congress has provided for the
Office of the President will be the very source of the funds for the commission.[55]
Moreover, since the amount that would be allocated to the PTC shall be subject to
existing auditing rules and regulations, there is no impropriety in the funding.
 
Power of the Truth Commission to Investigate
 
The Presidents power to conduct investigations to ensure that laws are faithfully
executed is well recognized. It flows from the faithful-execution clause of the
Constitution under Article VII, Section 17 thereof.[56] As the Chief Executive, the
president represents the government as a whole and sees to it that all laws are
enforced by the officials and employees of his department. He has the authority to
directly assume the functions of the executive department.[57]
 
Invoking this authority, the President constituted the PTC to primarily investigate
reports of graft and corruption and to recommend the appropriate action. As
previously stated, no quasi-judicial powers have been vested in the said body as it
cannot adjudicate rights of persons who come before it. It has been said that Quasi-
judicial powers involve the power to hear and determine questions of fact to which
the legislative policy is to apply and to decide in accordance with the standards laid
down by law itself in enforcing and administering the same law.[58] In simpler terms,
judicial discretion is involved in the exercise of these quasi-judicial power, such that it
is exclusively vested in the judiciary and must be clearly authorized by the legislature
in the case of administrative agencies.
 
The distinction between the power to investigate and the power to
adjudicate was delineated by the Court in Cario v. Commission on Human Rights.
[59] Thus:
 
"Investigate," commonly understood,
means to examine, explore, inquire or delve or probe
into, research on, study. The dictionary definition of
"investigate" is "to observe or study closely: inquire
into systematically: "to search or inquire into: x x to
subject to an official probe x x: to conduct an official
inquiry." The purpose of investigation, of course, is to
discover, to find out, to learn, obtain information.
Nowhere included or intimated is the notion of settling,
deciding or resolving a controversy involved in the
facts inquired into by application of the law to the facts
established by the inquiry.
 
The legal meaning of "investigate" is
essentially the same: "(t)o follow up step by step by
patient inquiry or observation. To trace or track; to
search into; to examine and inquire into with care and
accuracy; to find out by careful inquisition;
examination; the taking of evidence; a legal inquiry;"
"to inquire; to make an investigation," "investigation"
being in turn described as "(a)n administrative
function, the exercise of which ordinarily does not
require a hearing. 2 Am J2d Adm L Sec. 257; x x an
inquiry, judicial or otherwise, for the discovery and
collection of facts concerning a certain matter or
matters."
 
"Adjudicate," commonly or popularly
understood, means to adjudge, arbitrate, judge,
decide, determine, resolve, rule on, settle. The
dictionary defines the term as "to settle finally (the
rights and duties of the parties to a court case) on the
merits of issues raised: x x to pass judgment on: settle
judicially: x x act as judge." And "adjudge" means "to
decide or rule upon as a judge or with judicial or quasi-
judicial powers: x x to award or grant judicially in a
case of controversy x x."
In the legal sense, "adjudicate" means:
"To settle in the exercise of judicial authority. To
determine finally. Synonymous with adjudge in its
strictest sense;" and "adjudge" means: "To pass on
judicially, to decide, settle or decree, or to sentence or
condemn. x x. Implies a judicial determination of a
fact, and the entry of a judgment." [Italics included.
Citations Omitted]
 
Fact-finding is not adjudication and it cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial agency or office. The function of
receiving evidence and ascertaining therefrom the facts of a controversy is not a
judicial function. To be considered as such, the act of receiving evidence and arriving
at factual conclusions in a controversy must be accompanied by the authority of
applying the law to the factual conclusions to the end that the controversy may be
decided or resolved authoritatively, finally and definitively, subject to appeals or
modes of review as may be provided by law.[60] Even respondents themselves
admit that the commission is bereft of any quasi-judicial power.[61]
 
Contrary to petitioners apprehension, the PTC will not supplant the Ombudsman or
the DOJ or erode their respective powers. If at all, the investigative function of the
commission will complement those of the two offices. As pointed out by the Solicitor
General, the recommendation to prosecute is but a consequence of the overall task
of the commission to conduct a fact-finding investigation.[62] The actual prosecution
of suspected offenders, much less adjudication on the merits of the charges against
them,[63] is certainly not a function given to the commission. The phrase, when in
the course of its investigation, under Section 2(g), highlights this fact and gives
credence to a contrary interpretation from that of the petitioners. The function of
determining probable cause for the filing of the appropriate complaints before the
courts remains to be with the DOJ and the Ombudsman.[64]
 
At any rate, the Ombudsmans power to investigate under R.A. No. 6770 is not
exclusive but is shared with other similarly authorized government agencies. Thus, in
the case of Ombudsman v. Galicia,[65] it was written:
 
This power of investigation granted to the
Ombudsman by the 1987 Constitution and The
Ombudsman Act is not exclusive but is shared with
other similarly authorized government agencies
such as the PCGG and judges of municipal trial
courts and municipal circuit trial courts. The power to
conduct preliminary investigation on charges against
public employees and officials is likewise concurrently
shared with the Department of Justice. Despite the
passage of the Local Government Code in 1991, the
Ombudsman retains concurrent jurisdiction with the
Office of the President and the local Sanggunians to
investigate complaints against local elective officials.
[Emphasis supplied].
 
 
Also, Executive Order No. 1 cannot contravene the power of the Ombudsman to
investigate criminal cases under Section 15 (1) of R.A. No. 6770, which states:
 
(1) Investigate and prosecute on its
own or on complaint by any person, any act or
omission of any public officer or employee, office or
agency, when such act or omission appears to be
illegal, unjust, improper or inefficient. It has primary
jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of its primary
jurisdiction, it may take over, at any stage, from any
investigatory agency of government, the
investigation of such cases. [Emphases supplied]
 
 
The act of investigation by the Ombudsman as enunciated above
contemplates the conduct of a preliminary investigation or the determination of the
existence of probable cause. This is categorically out of the PTCs sphere of
functions. Its power to investigate is limited to obtaining facts so that it can advise
and guide the President in the performance of his duties relative to the execution and
enforcement of the laws of the land. In this regard, the PTC commits no act of
usurpation of the Ombudsmans primordial duties.
 
The same holds true with respect to the DOJ. Its authority under Section 3 (2),
Chapter 1, Title III, Book IV in the Revised Administrative Code is by no means
exclusive and, thus, can be shared with a body likewise tasked to investigate the
commission of crimes.
 
Finally, nowhere in Executive Order No. 1 can it be inferred that the findings of the
PTC are to be accorded conclusiveness. Much like its predecessors, the Davide
Commission, the Feliciano Commission and the Zenarosa Commission, its findings
would, at best, be recommendatory in nature. And being so, the Ombudsman and
the DOJ have a wider degree of latitude to decide whether or not to reject the
recommendation. These offices, therefore, are not deprived of their mandated duties
but will instead be aided by the reports of the PTC for possible indictments for
violations of graft laws.
 
Violation of the Equal Protection Clause
 
Although the purpose of the Truth Commission falls within the
investigative power of the President, the Court finds difficulty in upholding the
constitutionality of Executive Order No. 1 in view of its apparent transgression of the
equal protection clause enshrined in Section 1, Article III (Bill of Rights) of the 1987
Constitution. Section 1 reads:
Section 1. No person shall be
deprived of life, liberty, or property without due
process of law, nor shall any person be denied the
equal protection of the laws.
 
The petitioners assail Executive Order No. 1 because it is violative of
this constitutional safeguard. They contend that it does not apply equally to all
members of the same class such that the intent of singling out the previous
administration as its sole object makes the PTC an adventure in partisan hostility. [66]
Thus, in order to be accorded with validity, the commission must also cover reports
of graft and corruption in virtually all administrations previous to that of former
President Arroyo.[67]
 
The petitioners argue that the search for truth behind the reported
cases of graft and corruption must encompass acts committed not only during the
administration of former President Arroyo but also during prior administrations where
the same magnitude of controversies and anomalies[68] were reported to have been
committed against the Filipino people. They assail the classification formulated by
the respondents as it does not fall under the recognized exceptions because first,
there is no substantial distinction between the group of officials targeted for
investigation by Executive Order No. 1 and other groups or persons who abused
their public office for personal gain; and second, the selective classification is not
germane to the purpose of Executive Order No. 1 to end corruption. [69] In order to
attain constitutional permission, the petitioners advocate that the commission should
deal with graft and grafters prior and subsequent to the Arroyo administration with
the strong arm of the law with equal force.[70]
 
Position of respondents
 
According to respondents, while Executive Order No. 1 identifies the
previous administration as the initial subject of the investigation, following Section 17
thereof, the PTC will not confine itself to cases of large scale graft and corruption
solely during the said administration.[71] Assuming arguendo that the commission
would confine its proceedings to officials of the previous administration, the
petitioners argue that no offense is committed against the equal protection clause for
the segregation of the transactions of public officers during the previous
administration as possible subjects of investigation is a valid classification based on
substantial distinctions and is germane to the evils which the Executive Order seeks
to correct.[72] To distinguish the Arroyo administration from past administrations, it
recited the following:
 
First. E.O. No. 1 was issued in view of
widespread reports of large scale graft and corruption
in the previous administration which have eroded
public confidence in public institutions. There is,
therefore, an urgent call for the determination of the
truth regarding certain reports of large scale graft and
corruption in the government and to put a closure to
them by the filing of the appropriate cases against
those involved, if warranted, and to deter others from
committing the evil, restore the peoples faith and
confidence in the Government and in their public
servants.
 
Second. The segregation of the
preceding administration as the object of fact-finding
is warranted by the reality that unlike with
administrations long gone, the current administration
will most likely bear the immediate consequence of
the policies of the previous administration.
 
Third. The classification of the
previous administration as a separate class for
investigation lies in the reality that the evidence of
possible criminal activity, the evidence that could lead
to recovery of public monies illegally dissipated, the
policy lessons to be learned to ensure that anti-
corruption laws are faithfully executed, are more
easily established in the regime that immediately
precede the current administration.
 
Fourth. Many administrations subject
the transactions of their predecessors to
investigations to provide closure to issues that are
pivotal to national life or even as a routine measure of
due diligence and good housekeeping by a nascent
administration like the Presidential Commission on
Good Government (PCGG), created by the late
President Corazon C. Aquino under Executive Order
No. 1 to pursue the recovery of ill-gotten wealth of her
predecessor former President Ferdinand Marcos and
his cronies, and the Saguisag Commission created by
former President Joseph Estrada under
Administrative Order No, 53, to form an ad-hoc and
independent citizens committee to investigate all the
facts and circumstances surrounding Philippine
Centennial projects of his predecessor, former
President Fidel V. Ramos.[73] [Emphases supplied]
Concept of the Equal Protection Clause
 
One of the basic principles on which this government was founded is that of the
equality of right which is embodied in Section 1, Article III of the 1987 Constitution.
The equal protection of the laws is embraced in the concept of due process, as every
unfair discrimination offends the requirements of justice and fair play. It has been
embodied in a separate clause, however, to provide for a more specific guaranty
against any form of undue favoritism or hostility from the government. Arbitrariness in
general may be challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality or prejudice, the sharper
weapon to cut it down is the equal protection clause.[74]
 
According to a long line of decisions, equal protection simply requires
that all persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed.[75] It requires public bodies and institutions
to treat similarly situated individuals in a similar manner.[76] The purpose of the
equal protection clause is to secure every person within a states jurisdiction against
intentional and arbitrary discrimination, whether occasioned by the express terms of
a statue or by its improper execution through the states duly constituted authorities.
[77] In other words, the concept of equal justice under the law requires the state to
govern impartially, and it may not draw distinctions between individuals solely on
differences that are irrelevant to a legitimate governmental objective.[78]
 
The equal protection clause is aimed at all official state actions, not
just those of the legislature.[79] Its inhibitions cover all the departments of the
government including the political and executive departments, and extend to all
actions of a state denying equal protection of the laws, through whatever agency or
whatever guise is taken. [80]
 
It, however, does not require the universal application of the laws to
all persons or things without distinction. What it simply requires is equality among
equals as determined according to a valid classification. Indeed, the equal protection
clause permits classification. Such classification, however, to be valid must pass the
test of reasonableness. The test has four requisites: (1) The classification rests on
substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited
to existing conditions only; and (4) It applies equally to all members of the same
class.[81] Superficial differences do not make for a valid classification.[82]
 
For a classification to meet the requirements of constitutionality, it
must include or embrace all persons who naturally belong to the class. [83] The
classification will be regarded as invalid if all the members of the class are not
similarly treated, both as to rights conferred and obligations imposed. It is not
necessary that the classification be made with absolute symmetry, in the sense that
the members of the class should possess the same characteristics in equal degree.
Substantial similarity will suffice; and as long as this is achieved, all those covered by
the classification are to be treated equally. The mere fact that an individual belonging
to a class differs from the other members, as long as that class is substantially
distinguishable from all others, does not justify the non-application of the law to him.
[84]
 
The classification must not be based on existing circumstances only,
or so constituted as to preclude addition to the number included in the class. It must
be of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. It must not leave out or underinclude those that
should otherwise fall into a certain classification. As elucidated in Victoriano v.
Elizalde Rope Workers' Union[85] and reiterated in a long line of cases,[86]
The guaranty of equal protection of the
laws is not a guaranty of equality in the application of
the laws upon all citizens of the state. It is not,
therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every
man, woman and child should be affected alike by a
statute. Equality of operation of statutes does not
mean indiscriminate operation on persons merely as
such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity
of rights. The Constitution does not require that things
which are different in fact be treated in law as though
they were the same. The equal protection clause does
not forbid discrimination as to things that are different.
It does not prohibit legislation which is limited either in
the object to which it is directed or by the territory
within which it is to operate.
The equal protection of the laws clause of the
Constitution allows classification. Classification in law,
as in the other departments of knowledge or practice,
is the grouping of things in speculation or practice
because they agree with one another in certain
particulars. A law is not invalid because of simple
inequality. The very idea of classification is that of
inequality, so that it goes without saying that the mere
fact of inequality in no manner determines the matter
of constitutionality. All that is required of a valid
classification is that it be reasonable, which means
that the classification should be based on substantial
distinctions which make for real differences, that it
must be germane to the purpose of the law; that it
must not be limited to existing conditions only; and that
it must apply equally to each member of the class.
This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable
foundation or rational basis and is not palpably
arbitrary. [Citations omitted]
 
Applying these precepts to this case, Executive Order No. 1 should
be struck down as violative of the equal protection clause. The clear mandate of the
envisioned truth commission is to investigate and find out the truth concerning the
reported cases of graft and corruption during the previous administration[87] only.
The intent to single out the previous administration is plain, patent and manifest.
Mention of it has been made in at least three portions of the questioned executive
order. Specifically, these are:
 
WHEREAS, there is a need for a separate body
dedicated solely to investigating and finding out the
truth concerning the reported cases of graft and
corruption during the previous administration, and
which will recommend the prosecution of the offenders
and secure justice for all;
 
SECTION 1. Creation of a Commission. There is
hereby created the PHILIPPINE TRUTH
COMMISSION, hereinafter referred to as the
COMMISSION, which shall primarily seek and find the
truth on, and toward this end, investigate reports of
graft and corruption of such scale and magnitude that
shock and offend the moral and ethical sensibilities of
the people, committed by public officers and
employees, their co-principals, accomplices and
accessories from the private sector, if any, during the
previous administration; and thereafter recommend
the appropriate action or measure to be taken thereon
to ensure that the full measure of justice shall be
served without fear or favor.
 
SECTION 2. Powers and Functions. The Commission,
which shall have all the powers of an investigative
body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987, is primarily tasked to
conduct a thorough fact-finding investigation of
reported cases of graft and corruption referred to in
Section 1, involving third level public officers and
higher, their co-principals, accomplices and
accessories from the private sector, if any, during the
previous administration and thereafter submit its
finding and recommendations to the President,
Congress and the Ombudsman. [Emphases supplied]
 
In this regard, it must be borne in mind that the Arroyo administration
is but just a member of a class, that is, a class of past administrations. It is not a
class of its own. Not to include past administrations similarly situated constitutes
arbitrariness which the equal protection clause cannot sanction. Such discriminating
differentiation clearly reverberates to label the commission as a vehicle for
vindictiveness and selective retribution.
 
Though the OSG enumerates several differences between the Arroyo
administration and other past administrations, these distinctions are not substantial
enough to merit the restriction of the investigation to the previous administration only.
The reports of widespread corruption in the Arroyo administration cannot be taken as
basis for distinguishing said administration from earlier administrations which were
also blemished by similar widespread reports of impropriety. They are not inherent
in, and do not inure solely to, the Arroyo administration. As Justice Isagani Cruz put
it, Superficial differences do not make for a valid classification.[88]
 
 
The public needs to be enlightened why Executive Order No. 1
chooses to limit the scope of the intended investigation to the previous administration
only. The OSG ventures to opine that to include other past administrations, at this
point, may unnecessarily overburden the commission and lead it to lose its
effectiveness.[89] The reason given is specious. It is without doubt irrelevant to the
legitimate and noble objective of the PTC to stamp out or end corruption and the evil
it breeds.[90]
The probability that there would be difficulty in unearthing evidence or
that the earlier reports involving the earlier administrations were already inquired into
is beside the point. Obviously, deceased presidents and cases which have already
prescribed can no longer be the subjects of inquiry by the PTC. Neither is the PTC
expected to conduct simultaneous investigations of previous administrations, given
the bodys limited time and resources. The law does not require the impossible (Lex
non cogit ad impossibilia).[91]
 
Given the foregoing physical and legal impossibility, the Court
logically recognizes the unfeasibility of investigating almost a centurys worth of graft
cases. However, the fact remains that Executive Order No. 1 suffers from arbitrary
classification. The PTC, to be true to its mandate of searching for the truth, must not
exclude the other past administrations. The PTC must, at least, have the authority to
investigate all past administrations. While reasonable prioritization is permitted, it
should not be arbitrary lest it be struck down for being unconstitutional. In the often
quoted language of Yick Wo v. Hopkins,[92]
 
 
 
Though the law itself be fair on its
face and impartial in appearance, yet, if applied and
administered by public authority with an evil eye and
an unequal hand, so as practically to make unjust and
illegal discriminations between persons in similar
circumstances, material to their rights, the denial of
equal justice is still within the prohibition of the
constitution. [Emphasis supplied]
 
It could be argued that considering that the PTC is an ad hoc body,
its scope is limited. The Court, however, is of the considered view that although its
focus is restricted, the constitutional guarantee of equal protection under the laws
should not in any way be circumvented. The Constitution is the fundamental and
paramount law of the nation to which all other laws must conform and in accordance
with which all private rights determined and all public authority administered. [93]
Laws that do not conform to the Constitution should be stricken down for being
unconstitutional.[94] While the thrust of the PTC is specific, that is, for investigation of
acts of graft and corruption, Executive Order No. 1, to survive, must be read together
with the provisions of the Constitution. To exclude the earlier administrations in the
guise of substantial distinctions would only confirm the petitioners lament that the
subject executive order is only an adventure in partisan hostility. In the case of US v.
Cyprian,[95] it was written: A rather limited number of such classifications have
routinely been held or assumed to be arbitrary; those include: race, national origin,
gender, political activity or membership in a political party, union activity or
membership in a labor union, or more generally the exercise of first amendment
rights.
 
To reiterate, in order for a classification to meet the requirements of
constitutionality, it must include or embrace all persons who naturally belong to the
class.[96] Such a classification must not be based on existing circumstances only, or
so constituted as to preclude additions to the number included within a class, but
must be of such a nature as to embrace all those who may thereafter be in similar
circumstances and conditions. Furthermore, all who are in situations and
circumstances which are relative to the discriminatory legislation and which are
indistinguishable from those of the members of the class must be brought under the
influence of the law and treated by it in the same way as are the members of the
class.[97]
 
The Court is not unaware that mere underinclusiveness is not fatal to
the validity of a law under the equal protection clause.[98] Legislation is not
unconstitutional merely because it is not all-embracing and does not include all the
evils within its reach.[99] It has been written that a regulation challenged under the
equal protection clause is not devoid of a rational predicate simply because it
happens to be incomplete.[100] In several instances, the underinclusiveness was not
considered a valid reason to strike down a law or regulation where the purpose can
be attained in future legislations or regulations. These cases refer to the step by step
process.[101] With regard to equal protection claims, a legislature does not run the
risk of losing the entire remedial scheme simply because it fails, through
inadvertence or otherwise, to cover every evil that might conceivably have been
attacked.[102]
 
In Executive Order No. 1, however, there is no inadvertence. That the
previous administration was picked out was deliberate and intentional as can be
gleaned from the fact that it was underscored at least three times in the assailed
executive order. It must be noted that Executive Order No. 1 does not even mention
any particular act, event or report to be focused on unlike the investigative
commissions created in the past. The equal protection clause is violated by
purposeful and intentional discrimination.[103]
 
To disprove petitioners contention that there is deliberate
discrimination, the OSG clarifies that the commission does not only confine itself to
cases of large scale graft and corruption committed during the previous
administration.[104] The OSG points to Section 17 of Executive Order No. 1, which
provides:
 
SECTION 17. Special Provision Concerning Mandate.
If and when in the judgment of the President there is a
need to expand the mandate of the Commission as
defined in Section 1 hereof to include the investigation
of cases and instances of graft and corruption during
the prior administrations, such mandate may be so
extended accordingly by way of a supplemental
Executive Order.
 
 
The Court is not convinced. Although Section 17 allows the President
the discretion to expand the scope of investigations of the PTC so as to include the
acts of graft and corruption committed in other past administrations, it does not
guarantee that they would be covered in the future. Such expanded mandate of the
commission will still depend on the whim and caprice of the President. If he would
decide not to include them, the section would then be meaningless. This will only
fortify the fears of the petitioners that the Executive Order No. 1 was crafted to tailor-
fit the prosecution of officials and personalities of the Arroyo administration.[105]
 
 
The Court tried to seek guidance from the pronouncement in the case
of Virata v. Sandiganbayan,[106] that the PCGG Charter (composed of Executive
Orders Nos. 1, 2 and 14) does not violate the equal protection clause. The decision,
however, was devoid of any discussion on how such conclusory statement was
arrived at, the principal issue in said case being only the sufficiency of a cause of
action.
A final word
The issue that seems to take center stage at present is - whether or
not the Supreme Court, in the exercise of its constitutionally mandated power of
Judicial Review with respect to recent initiatives of the legislature and the executive
department, is exercising undue interference. Is the Highest Tribunal, which is
expected to be the protector of the Constitution, itself guilty of violating fundamental
tenets like the doctrine of separation of powers? Time and again, this issue has been
addressed by the Court, but it seems that the present political situation calls for it to
once again explain the legal basis of its action lest it continually be accused of being
a hindrance to the nations thrust to progress.
 
The Philippine Supreme Court, according to Article VIII, Section 1 of
the 1987 Constitution, is vested with Judicial Power that includes the duty of the
courts of justice to settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not there has been a
grave of abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the government.
 
Furthermore, in Section 4(2) thereof, it is vested with the power of
judicial review which is the power to declare a treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction, ordinance, or
regulation unconstitutional. This power also includes the duty to rule on the
constitutionality of the application, or operation of presidential decrees,
proclamations, orders, instructions, ordinances, and other regulations. These
provisions, however, have been fertile grounds of conflict between the Supreme
Court, on one hand, and the two co-equal bodies of government, on the other. Many
times the Court has been accused of asserting superiority over the other
departments.
 
To answer this accusation, the words of Justice Laurel would be a
good source of enlightenment, to wit: And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of the legislature, but
only asserts the solemn and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution and to establish for
the parties in an actual controversy the rights which that instrument secures and
guarantees to them.[107]
 
Thus, the Court, in exercising its power of judicial review, is not
imposing its own will upon a co-equal body but rather simply making sure that any
act of government is done in consonance with the authorities and rights allocated to
it by the Constitution. And, if after said review, the Court finds no constitutional
violations of any sort, then, it has no more authority of proscribing the actions under
review. Otherwise, the Court will not be deterred to pronounce said act as void and
unconstitutional.
 
It cannot be denied that most government actions are inspired with
noble intentions, all geared towards the betterment of the nation and its people. But
then again, it is important to remember this ethical principle: The end does not justify
the means. No matter how noble and worthy of admiration the purpose of an act, but
if the means to be employed in accomplishing it is simply irreconcilable with
constitutional parameters, then it cannot still be allowed.[108] The Court cannot just
turn a blind eye and simply let it pass. It will continue to uphold the Constitution and
its enshrined principles.
 
The Constitution must ever remain
supreme. All must bow to the mandate of this law.
Expediency must not be allowed to sap its strength
nor greed for power debase its rectitude.[109]
 
Lest it be misunderstood, this is not the death knell for a truth
commission as nobly envisioned by the present administration. Perhaps a revision
of the executive issuance so as to include the earlier past administrations
would allow it to pass the test of reasonableness and not be an affront to the
Constitution. Of all the branches of the government, it is the judiciary which is the
most interested in knowing the truth and so it will not allow itself to be a hindrance or
obstacle to its attainment. It must, however, be emphasized that the search for the
truth must be within constitutional bounds for ours is still a government of laws and
not of men.[110]
 
WHEREFORE, the petitions are GRANTED. Executive Order No. 1 is
hereby declared UNCONSTITUTIONAL insofar as it is violative of the equal
protection clause of the Constitution.
 
As also prayed for, the respondents are hereby ordered to cease and
desist from carrying out the provisions of Executive Order No. 1.
 
SO ORDERED.
BOCEA vs. TEVES (supra)
DEL CASTILLO vs. PEOPLE
PERALTA, J.:
For this Court's consideration is the Petition for Review[1] on
Certiorari under Rule 45 of Ruben del Castillo assailing the Decision[2] dated July
31, 2006 and Resolution[3] dated December 13, 2007 of the Court of Appeals (CA)
in CA-G.R. CR No. 27819, which affirmed the Decision[4] dated March 14, 2003 of
the Regional Trial Court (RTC), Branch 12, Cebu, in Criminal Case No. CBU-46291,
finding petitioner guilty beyond reasonable doubt of violation of Section 16, Article III
of Republic Act (R.A.) 6425.
The facts, as culled from the records, are the following:
Pursuant to a confidential information that petitioner was engaged in selling shabu,
police officers headed by SPO3 Bienvenido Masnayon, after conducting surveillance
and test-buy operation at the house of petitioner, secured a search warrant from the SO ORDERED.[8]
RTC and around 3 o'clock in the afternoon of September 13, 1997, the same police  
operatives went to Gil Tudtud St., Mabolo, Cebu City to serve the search warrant to  
petitioner. Aggrieved, petitioner appealed his case with the CA, but the latter affirmed the
decision of the RTC, thus:
Upon arrival, somebody shouted raid, which prompted them to immediately  
disembark from the jeep they were riding and went directly to petitioner's house and WHEREFORE, the challenged Decision is
cordoned it. The structure of the petitioner's residence is a two-storey house and the AFFIRMED in toto and the appeal is DISMISSED,
petitioner was staying in the second floor. When they went upstairs, they met with costs against accused-appellant.
petitioner's wife and informed her that they will implement the search warrant. But  
before they can search the area, SPO3 Masnayon claimed that he saw petitioner run SO ORDERED.[9]
towards a small structure, a nipa hut, in front of his house. Masnayon chased him but  
to no avail, because he and his men were not familiar with the entrances and exits of  
the place. After the motion for reconsideration of petitioner was denied by the CA, petitioner
  filed with this Court the present petition for certiorari under Rule 45 of the Rules of
They all went back to the residence of the petitioner and closely guarded the place Court with the following arguments raised:
where the subject ran for cover. SPO3 Masnayon requested his men to get a  
barangay tanod and a few minutes thereafter, his men returned with two barangay 1.                  THE COURT OF APPEALS ERRED IN
tanods. ITS APPLICATION OF THE PROVISIONS OF THE
  CONSTITUTION, THE RULES OF COURT AND
In the presence of the barangay tanod, Nelson Gonzalado, and the elder sister of ESTABLISHED JURISPRUDENCE VIS-A-VIS
petitioner named Dolly del Castillo, searched the house of petitioner including the VALIDITY OF SEARCH WARRANT NO. 570-9-
nipa hut where the petitioner allegedly ran for cover. His men who searched the 1197-24;
residence of the petitioner found nothing, but one of the barangay tanods was able to  
confiscate from the nipa hut several articles, including four (4) plastic packs 2.                  THE COURT OF APPEALS ERRED IN
containing white crystalline substance. Consequently, the articles that were RULING THAT THE FOUR (4) PACKS OF WHITE
confiscated were sent to the PNP Crime Laboratory for examination. The contents of CRYSTALLINE POWDER ALLEGEDLY FOUND
the four (4) heat- sealed transparent plastic packs were subjected to laboratory ON THE FLOOR OF THE NIPA HUT OR
examination, the result of which proved positive for the presence of STRUCTURE ARE ADMISSIBLE IN EVIDENCE
methamphetamine hydrochloride, or shabu. AGAINST THE PETITIONER, NOT ONLY
  BECAUSE THE SAID COURT SIMPLY
Thus, an Information was filed before the RTC against petitioner, charging him with PRESUMED THAT IT WAS USED BY THE
violation of Section 16, Article III of R.A. 6425, as amended. The Information [5] PETITIONER OR THAT THE PETITIONER RAN
reads: TO IT FOR COVER WHEN THE SEARCHING
  TEAM ARRIVED AT HIS RESIDENCE, BUT ALSO,
That on or about the 13 th day of September 1997, at PRESUMING THAT THE SAID NIPA HUT OR
about 3:00 p.m. in the City of Cebu, Philippines and STRUCTURE WAS INDEED USED BY THE
within the jurisdiction of this Honorable Court, the PETITIONER AND THE FOUR (4) PACKS OF
said accused, with deliberate intent, did then and WHITE CRYSTALLINE POWDER WERE FOUND
there have in his possession and control four (4) THEREAT. THE SUBJECT FOUR (4) PACKS OF
packs of white crystalline powder, having a total WHITE CRYSTALLINE POWDER ARE FRUITS OF
weight of 0.31 gram, locally known as shabu, all THE POISONOUS TREE; and
containing methamphetamine hydrochloride, a  
regulated drug, without license or prescription from 3.                  THE COURT OF APPEALS ERRED IN
any competent authority. ITS APPLICATION OF THE ELEMENT OF
  POSSESSION AS AGAINST THE PETITIONER,
CONTRARY TO LAW.[6] AS IT WAS IN VIOLATION OF THE ESTABLISHED
  JURISPRUDENCE ON THE MATTER. HAD THE
  SAID COURT PROPERLY APPLIED THE
During arraignment, petitioner, with the assistance of his counsel, pleaded not guilty. ELEMENT IN QUESTION, IT COULD HAVE BEEN
[7] Subsequently, trial on the merits ensued. ASSAYED THAT THE SAME HAD NOT BEEN
  PROVEN.[10]
To prove the earlier mentioned incident, the prosecution presented the testimonies  
of SPO3 Bienvenido Masnayon, PO2 Milo Arriola, and Forensic Analyst, Police  
Inspector Mutchit Salinas. The Office of the Solicitor General (OSG), in its Comment dated
  February 10, 2009, enumerated the following counter-arguments:
The defense, on the other hand, presented the testimonies of petitioner, Jesusa del  
Castillo, Dalisay del Castillo and Herbert Aclan, which can be summarized as I
follows: SEARCH WARRANT No. 570-9-11-97-24 issued by
  Executive Judge Priscilla S. Agana of Branch 24,
On September 13, 1997, around 3 o'clock in the afternoon, petitioner was installing Regional Trial Court of Cebu City is valid.
the electrical wirings and airconditioning units of the Four Seasons Canteen and  
Beauty Parlor at Wacky Bldg., Cabancalan, Cebu. He was able to finish his job II
around 6 o'clock in the evening, but he was engaged by the owner of the The four (4) packs of shabu seized inside the shop of
establishment in a conversation. He was able to go home around 8:30-9 o'clock in petitioner are admissible in evidence against him.
the evening. It was then that he learned from his wife that police operatives searched  
his house and found nothing. According to him, the small structure, 20 meters away III
from his house where they found the confiscated items, was owned by his older The Court of Appeals did not err in finding him guilty of
brother and was used as a storage place by his father. illegal possession of prohibited drugs.[11]
   
After trial, the RTC found petitioner guilty beyond reasonable of the charge against  
him in the Information. The dispositive portion of the Decision reads: Petitioner insists that there was no probable cause to issue the search warrant,
  considering that SPO1 Reynaldo Matillano, the police officer who applied for it, had
WHEREFORE, premises considered, this Court finds no personal knowledge of the alleged illegal sale of drugs during a test-buy
the accused Ruben del Castillo alyas Boy Castillo, operation conducted prior to the application of the same search warrant. The OSG,
GUILTY of violating Section 16, Article III, Republic however, maintains that the petitioner, aside from failing to file the necessary motion
Act No. 6425, as amended. There being no mitigating to quash the search warrant pursuant to Section 14, Rule 127 of the Revised Rules
nor aggravating circumstances proven before this on Criminal Procedure, did not introduce clear and convincing evidence to show that
Court, and applying the Indeterminate Sentence Law, Masnayon was conscious of the falsity of his assertion or representation.
he is sentenced to suffer the penalty of Six (6) Months  
and One (1) Day as Minimum and Four (4) Years and Anent the second argument, petitioner asserts that the nipa hut located about 20
Two (2) Months as Maximum of Prision Correccional. meters away from his house is no longer within the permissible area that may be
  searched by the police officers due to the distance and that the search warrant did
The four (4) small plastic packets of white crystalline not include the same nipa hut as one of the places to be searched. The OSG, on the
substance having a total weight of 0.31 gram, positive other hand, argues that the constitutional guaranty against unreasonable searches
for the presence of methamphetamine hydrochloride, and seizure is applicable only against government authorities and not to private
are ordered confiscated and shall be destroyed in individuals such as the barangay tanod who found the folded paper containing
accordance with the law. packs of shabu inside the nipa hut.
   
As to the third argument raised, petitioner claims that the CA erred in finding him Q Who proceeded to the second floor of the house?
guilty beyond reasonable doubt of illegal possession of prohibited drugs, because A SPO1 Cirilo Pogoso and Milo Areola went upstairs
he could not be presumed to be in possession of the same just because they were and found nothing.
found inside the nipa hut. Nevertheless, the OSG dismissed the argument of the  
petitioner, stating that, when prohibited and regulated drugs are found in a house or Q What about you, where were you?
other building belonging to and occupied by a particular person, the presumption A I [was] watching his shop and I was with Matillano.
arises that such person is in possession of such drugs in violation of law, and the  
fact of finding the same is sufficient to convict. Q What about the barangay tanod?
  A Together with Milo and Pogoso.
This Court finds no merit on the first argument of petitioner.  
  Q When the search at the second floor of the
  house yielded negative what did you do?
  A They went downstairs because I was
The requisites for the issuance of a search warrant are: (1) probable cause is suspicious of his shop because he ran from his
present; (2) such probable cause must be determined personally by the judge; (3) shop, so we searched his shop.
the judge must examine, in writing and under oath or affirmation, the complainant  
and the witnesses he or she may produce; (4) the applicant and the witnesses testify Q Who were with you when you searched the
on the facts personally known to them; and (5) the warrant specifically describes the shop?
place to be searched and the things to be seized.[12] According to petitioner, there A The barangay tanod Nilo Gonzalado, the elder
was no probable cause. Probable cause for a search warrant is defined as such facts sister of Ruben del Castillo named Dolly del
and circumstances which would lead a reasonably discreet and prudent man to Castillo.
believe that an offense has been committed and that the objects sought in  
connection with the offense are in the place sought to be searched. [13] A finding of Q You mean to say, that when (sic) SPO1
probable cause needs only to rest on evidence showing that, more likely than not, a Reynaldo Matillano, Barangay Tanod Nilo
crime has been committed and that it was committed by the accused. Probable Gonzalado and the elder sister of Ruben del
cause demands more than bare suspicion; it requires less than evidence which Castillo were together in the shop?
would justify conviction.[14] The judge, in determining probable cause, is to consider A Yes.
the totality of the circumstances made known to him and not by a fixed and rigid  
formula,[15] and must employ a flexible, totality of the circumstances standard.[16] Q What happened at the shop?
The existence depends to a large degree upon the finding or opinion of the judge A One of the barangay tanods was able to pick
conducting the examination. This Court, therefore, is in no position to disturb the up white folded paper.
factual findings of the judge which led to the issuance of the search warrant. A  
magistrate's determination of probable cause for the issuance of a search warrant is Q What [were] the contents of that white folded
paid great deference by a reviewing court, as long as there was substantial basis for paper?
that determination.[17] Substantial basis means that the questions of the examining A A plastic pack containing white crystalline.
judge brought out such facts and circumstances as would lead a reasonably discreet  
and prudent man to believe that an offense has been committed, and the objects in Q Was that the only item?
connection with the offense sought to be seized are in the place sought to be A There are others like the foil, scissor.
searched.[18] A review of the records shows that in the present case, a substantial  
basis exists. Q Were you present when those persons found
  those tin foil and others inside the electric shop?
With regard to the second argument of petitioner, it must be remembered that the A Yes.[21]
warrant issued must particularly describe the place to be searched and persons or  
things to be seized in order for it to be valid. A designation or description that points  
out the place to be searched to the exclusion of all others, and on inquiry unerringly The fact that no items were seized in the residence of petitioner and that the items
leads the peace officers to it, satisfies the constitutional requirement of definiteness. that were actually seized were found in another structure by a barangay tanod, was
[19] In the present case, Search Warrant No. 570-9-1197-24[20] specifically corroborated by PO2 Arriola, thus:
designates or describes the residence of the petitioner as the place to be searched.  
Incidentally, the items were seized by a barangay tanod in a nipa hut, 20 meters FISCAL:
away from the residence of the petitioner. The confiscated items, having been found  
in a place other than the one described in the search warrant, can be considered as Q So, upon arriving at the house of Ruben del
fruits of an invalid warrantless search, the presentation of which as an evidence is a Castillo alias Boy, can you still recall what took
violation of petitioner's constitutional guaranty against unreasonable searches and place?
seizure. The OSG argues that, assuming that the items seized were found in another A We cordoned the area.
place not designated in the search warrant, the same items should still be admissible  
as evidence because the one who discovered them was a barangay tanod who is a Q And after you cordoned the area, did anything
private individual, the constitutional guaranty against unreasonable searches and happen?
seizure being applicable only against government authorities. The contention is A We waited for the barangay tanod.
devoid of merit.  
Q And did the barangay tanod eventually appear?
It was testified to during trial by the police officers who effected the search warrant A Yes. And then we started our search in the
that they asked the assistance of the barangay tanods, thus, in the testimony of presence of Ruben del Castillo's wife.
SPO3 Masnayon:  
  Q What is the name of the wife of Ruben del
  Castillo?
Fiscal Centino: A I cannot recall her name, but if I see her I can
  recall [her] face.
Q For how long did the chase take place?  
A Just a very few moments. Q What about Ruben del Castillo, was she around
  when [you] conducted the search?
Q After that, what did you [do] when you were not A No. Ruben was not in the house. But our team
able to reach him? leader, team mate Bienvenido Masnayon saw that
A I watched his shop and then I requested my men Ruben ran away from his adjacent electronic shop
to get a barangay tanod. near his house, in front of his house.
   
Q Were you able to get a barangay tanod? Q Did you find anything during the search in the
A Yes. house of Ruben del Castillo?
  A After our search in the house, we did not see
Q Can you tell us what is the name of the barangay anything. The house was clean.
tanod?  
A Nelson Gonzalado. Q What did you do afterwards, if any?
  A We left (sic) out of the house and proceeded to
Q For point of clarification, how many barangay his electronic shop.
tanod [did] your driver get?  
A Two. Q Do you know the reason why you proceeded to
  his electronic shop?
Q What happened after that? A Yes. Because our team leader Bienvenido
A We searched the house, but we found negative. Masnayon saw that (sic) Ruben run from that store
  and furthermore the door was open.
  
Q How far is the electronic shop from the house of
Ruben del Castillo?
A More or less, 5 to 6 meters in front of his house.
 
xxxx
 
Q So, who entered inside the electronic shop?
 
A The one who first entered the electronic shop is
our team leader Bienvenido Masnayon.
Q You mentioned that Masnayon entered first. Do
you mean to say that there were other persons or
other person that followed after Masnayon?
A Then we followed suit.
 
Q All of your police officers and the barangay tanod
followed suit?
A I led Otadoy and the barangay tanod.
 
Q What about you?
A I also followed suit.
 
Q And did anything happen inside the shop of
Ruben del Castillo?
A It was the barangay tanod who saw the folded
paper and I saw him open the folded paper
which contained four shabu deck.
Q How far were you when you saw the folded paper
and the tanod open the folded paper?
A We were side by side because the shop was very
small.[22]
 
 
SPO1 Pogoso also testified on the same matter, thus:
 
FISCAL CENTINO:
 
Q And where did you conduct the search, Mr.
Witness?
A At his residence, the two-storey house.
 
Q Among the three policemen, who were with you in
conducting the search at the residence of the
accused?
A I, Bienvenido Masnayon.
 
Q And what transpired after you searched the house
of Ruben del Castillo?
A Negative, no shabu.
 
Q And what happened afterwards, if any?
A We went downstairs and proceeded to the small
house.
 
Q Can you please describe to this Honorable Court,
what was that small house which you proceeded to?
A It is a nipa hut.
 
Q And more or less, how far or near was it from the
house of Ruben del Castillo?
A 5 to 10 meters.
 
Q And could you tell Mr. Witness, what was that
nipa hut supposed to be?
A That was the electronic shop of Ruben del
Castillo.
 
 
Q And what happened when your team
proceeded to the nipa hut?
A I was just outside the nipa hut.
Q And who among the team went inside?
A PO2 Milo Areola and the Barangay Tanod.[23]
 
 
Having been established that the assistance of the barangay tanods was sought by
the police authorities who effected the searched warrant, the same barangay tanods
therefore acted as agents of persons in authority. Article 152 of the Revised Penal
Code defines persons in authority and agents of persons in authority as:
 
x x x any person directly vested with jurisdiction,
whether as an individual or as a member of some
court or governmental corporation, board or
commission, shall be deemed a person in authority. A
barangay captain and a barangay chairman shall also
be deemed a person in authority.
A person who, by direct provision of law or by election
or by appointment by competent authority, is charged
with the maintenance of public order and the
protection and security of life and property, such
as barrio councilman, barrio policeman and
barangay leader, and any person who comes to
the aid of persons in authority, shall be deemed
an agent of a person in authority.
 
The Local Government Code also contains a provision which describes the function
of a barangay tanod as an agent of persons in authority. Section 388 of the Local
Government Code reads:
 
SEC. 388. Persons in Authority. - For purposes of
the Revised Penal Code, the punong barangay,
sangguniang barangay members, and members of
the lupong tagapamayapa in each barangay shall be
deemed as persons in authority in their jurisdictions,
while other barangay officials and members who
may be designated by law or ordinance and
charged with the maintenance of public order,
protection and security of life and property, or
the maintenance of a desirable and balanced
environment, and any barangay member who
comes to the aid of persons in authority, shall be
deemed agents of persons in authority.
 
 
By virtue of the above provisions, the police officers, as well as the barangay tanods
were acting as agents of a person in authority during the conduct of the search.
Thus, the search conducted was unreasonable and the confiscated items are
inadmissible in evidence. Assuming ex gratia argumenti that the barangay tanod who
found the confiscated items is considered a private individual, thus, making the same
items admissible in evidence, petitioner's third argument that the prosecution failed to
establish constructive possession of the regulated drugs seized, would still be
meritorious.
 
Appellate courts will generally not disturb the factual findings of the trial court since
the latter has the unique opportunity to weigh conflicting testimonies, having heard
the witnesses themselves and observed their deportment and manner of testifying,
[24] unless attended with arbitrariness or plain disregard of pertinent facts or
circumstances, the factual findings are accorded the highest degree of respect on
appeal[25] as in the present case.
 
It must be put into emphasis that this present case is about the violation of Section
16 of R.A. 6425. In every prosecution for the illegal possession of shabu, the
following essential elements must be established: (a) the accused is found in
possession of a regulated drug; (b) the person is not authorized by law or by duly
constituted authorities; and (c) the accused has knowledge that the said drug is a
regulated drug.[26]
 
In People v. Tira,[27] this Court explained the concept of possession of regulated
drugs, to wit:
 
This crime is mala prohibita, and, as such, criminal
intent is not an essential element. However, the
prosecution must prove that the accused had the
intent to possess (animus posidendi) the drugs.
Possession, under the law, includes not only actual
possession, but also constructive possession. Actual
possession exists when the drug is in the immediate
physical possession or control of the accused. On the
other hand, constructive possession exists when the
drug is under the dominion and control of the accused
or when he has the right to exercise dominion and
control over the place where it is found. Exclusive
possession or control is not necessary. The accused
cannot avoid conviction if his right to exercise control
and dominion over the place where the contraband is
located, is shared with another.[28]
 
While it is not necessary that the property to be searched or seized should be owned
by the person against whom the search warrant is issued, there must be sufficient
showing that the property is under appellants control or possession.[29] The CA, in
its Decision, referred to the possession of regulated drugs by the petitioner as a
constructive one. Constructive possession exists when the drug is under the
dominion and control of the accused or when he has the right to exercise dominion
and control over the place where it is found.[30] The records are void of any
evidence to show that petitioner owns the nipa hut in question nor was it established
that he used the said structure as a shop. The RTC, as well as the CA, merely
presumed that petitioner used the said structure due to the presence of electrical
materials, the petitioner being an electrician by profession. The CA, in its Decision,
noted a resolution by the investigating prosecutor, thus:
 
 x x x As admitted by respondent's wife, her husband is
an electrician by occupation. As such, conclusion
could be arrived at that the structure, which housed
the electrical equipments is actually used by the
respondent. Being the case, he has control of the
things found in said structure.[31]
 
In addition, the testimonies of the witnesses for the prosecution do not also provide
proof as to the ownership of the structure where the seized articles were found.
During their direct testimonies, they just said, without stating their basis, that the
same structure was the shop of petitioner.[32] During the direct testimony of SPO1
Pogoso, he even outrightly concluded that the electrical shop/nipa hut was owned by
petitioner, thus:
 
FISCAL CENTINO:
 
Q Can you please describe to this Honorable Court,
what was that small house which you proceeded to?
A It is a nipa hut.
Q And more or less, how far or near was it from the
house of Ruben del Castillo?
A 5 to 10 meters.
 
Q And could you tell Mr. Witness, what was that
nipa hut supposed to be?
A That was the electronic shop of Ruben del
Castillo.
Q And what happened when your team proceeded
to the nipa hut?
A I was just outside the nipa hut.[33]
 
However, during cross-examination, SPO3 Masnayon admitted that there was an
electrical shop but denied what he said in his earlier testimony that it was owned by
petitioner, thus:
ATTY. DAYANDAYAN:
Q You testified that Ruben del Castillo has an
electrical shop, is that correct?
A He came out of an electrical shop. I did not
say that he owns the shop.
 
Q Now, this shop is within a structure?
A Yes.
 
Q How big is the structure?
A It is quite a big structure, because at the other side
is a mahjong den and at the other side is a structure
rented by a couple.[34]
 
 
The prosecution must prove that the petitioner had knowledge of the existence and
presence of the drugs in the place under his control and dominion and the character
of the drugs.[35] With the prosecution's failure to prove that the nipa hut was under
petitioner's control and dominion, there casts a reasonable doubt as to his guilt. In
considering a criminal case, it is critical to start with the law's own starting
perspective on the status of the accused - in all criminal prosecutions, he is
presumed innocent of the charge laid unless the contrary is proven beyond
reasonable doubt.[36] Proof beyond reasonable doubt, or that quantum of proof
sufficient to produce a moral certainty that would convince and satisfy the
conscience of those who act in judgment, is indispensable to overcome the
constitutional presumption of innocence.[37]
 
WHEREFORE, the Decision dated July 31, 2006 of the Court of Appeals in CA-G. R.
No. 27819, which affirmed the Decision dated March 14, 2003 of the Regional Trial
Court, Branch 12, Cebu, in Criminal Case No. CBU-46291 is hereby REVERSED
and SET ASIDE. Petitioner Ruben del Castillo is ACQUITTED on reasonable doubt.
SO ORDERED.
COMMISSIONER OF CUSTOMS vs. HYPERMIX FEEDS
SERENO, J.:
Before us is a Petition for Review under Rule 45,[1] assailing the
Decision[2] and the Resolution[3] of the Court of Appeals (CA), which nullified the
Customs Memorandum Order (CMO) No. 27-2003[4] on the tariff classification of
wheat issued by petitioner Commissioner of Customs.
The antecedent facts are as follows:
On 7 November 2003, petitioner Commissioner of Customs issued
CMO 27-2003. Under the Memorandum, for tariff purposes, wheat was classified
according to the following: (1) importer or consignee; (2) country of origin; and (3)
port of discharge.[5] The regulation provided an exclusive list of corporations, ports
of discharge, commodity descriptions and countries of origin. Depending on these
factors, wheat would be classified either as food grade or feed grade. The
corresponding tariff for food grade wheat was 3%, for feed grade, 7%.
CMO 27-2003 further provided for the proper procedure for protest or
Valuation and Classification Review Committee (VCRC) cases. Under this
procedure, the release of the articles that were the subject of protest required the
importer to post a cash bond to cover the tariff differential.[6]
A month after the issuance of CMO 27-2003, on 19 December 2003,
respondent filed a Petition for Declaratory Relief[7] with the Regional Trial Court
(RTC) of Las Pias City. It anticipated the implementation of the regulation on its
imported and perishable Chinese milling wheat in transit from China.[8] Respondent
contended that CMO 27-2003 was issued without following the mandate of the
Revised Administrative Code on public participation, prior notice, and publication or
registration with the University of the Philippines Law Center.
Respondent also alleged that the regulation summarily adjudged it to
be a feed grade supplier without the benefit of prior assessment and examination;
thus, despite having imported food grade wheat, it would be subjected to the 7%
tariff upon the arrival of the shipment, forcing them to pay 133% more than was
proper.
Furthermore, respondent claimed that the equal protection clause of
the Constitution was violated when the regulation treated non-flour millers differently
from flour millers for no reason at all.
Lastly, respondent asserted that the retroactive application of the
regulation was confiscatory in nature.
On 19 January 2004, the RTC issued a Temporary Restraining Order
(TRO) effective for twenty (20) days from notice.[9]
Petitioners thereafter filed a Motion to Dismiss.[10] They alleged that:
(1) the RTC did not have jurisdiction over the subject matter of the case, because
respondent was asking for a judicial determination of the classification of wheat; (2)
an action for declaratory relief was improper; (3) CMO 27-2003 was an internal
administrative rule and not legislative in nature; and (4) the claims of respondent
were speculative and premature, because the Bureau of Customs (BOC) had yet to
examine respondents products. They likewise opposed the application for a writ of
preliminary injunction on the ground that they had not inflicted any injury through the
issuance of the regulation; and that the action would be contrary to the rule that
administrative issuances are assumed valid until declared otherwise.
On 28 February 2005, the parties agreed that the matters raised in
the application for preliminary injunction and the Motion to Dismiss would just be
resolved together in the main case. Thus, on 10 March 2005, the RTC rendered its
Decision[11] without having to resolve the application for preliminary injunction and
the Motion to Dismiss.
The trial court ruled in favor of respondent, to wit:
WHEREFORE, in view of the
foregoing, the Petition is GRANTED and the subject
Customs Memorandum Order 27-2003 is declared
INVALID and OF NO FORCE AND EFFECT.
Respondents Commissioner of Customs, the District
Collector of Subic or anyone acting in their behalf are
to immediately cease and desist from enforcing the
said Customs Memorandum Order 27-2003.
SO ORDERED.[12]
The RTC held that it had jurisdiction over the subject matter, given
that the issue raised by respondent concerned the quasi-legislative powers of
petitioners. It likewise stated that a petition for declaratory relief was the proper
remedy, and that respondent was the proper party to file it. The court considered that
respondent was a regular importer, and that the latter would be subjected to the
application of the regulation in future transactions.
With regard to the validity of the regulation, the trial court found that
petitioners had not followed the basic requirements of hearing and publication in the
issuance of CMO 27-2003. It likewise held that petitioners had substituted the quasi-
judicial determination of the commodity by a quasi-legislative predetermination.[13]
The lower court pointed out that a classification based on importers and ports of
discharge were violative of the due process rights of respondent.
Dissatisfied with the Decision of the lower court, petitioners appealed
to the CA, raising the same allegations in defense of CMO 27-2003.[14] The
appellate court, however, dismissed the appeal. It held that, since the regulation
affected substantial rights of petitioners and other importers, petitioners should have
observed the requirements of notice, hearing and publication.
Hence, this Petition.
Petitioners raise the following issues for the consideration of this
Court:
I.       THE COURT OF APPEALS DECIDED A
QUESTION OF SUBSTANCE WHICH IS
NOT IN ACCORD WITH THE LAW AND
PREVAILING JURISPRUDENCE.
II.    THE COURT OF APPEALS GRAVELY ERRED
IN DECLARING THAT THE TRIAL COURT
HAS JURISDICTION OVER THE CASE.
The Petition has no merit.
We shall first discuss the propriety of an action for declaratory relief.
Rule 63, Section 1 provides:
Who may file petition. Any person
interested under a deed, will, contract or other written
instrument, or whose rights are affected by a statute,
executive order or regulation, ordinance, or any other
governmental regulation may, before breach or
violation thereof, bring an action in the appropriate
Regional Trial Court to determine any question of
construction or validity arising, and for a declaration of
his rights or duties, thereunder.
The requirements of an action for declaratory relief are as follows: (1)
there must be a justiciable controversy; (2) the controversy must be between
persons whose interests are adverse; (3) the party seeking declaratory relief must
have a legal interest in the controversy; and (4) the issue involved must be ripe for
judicial determination.[15] We find that the Petition filed by respondent before the
lower court meets these requirements.
First, the subject of the controversy is the constitutionality of CMO 27-
2003 issued by petitioner Commissioner of Customs. In Smart Communications v.
NTC,[16] we held:
 
The determination of whether a
specific rule or set of rules issued by an administrative
agency contravenes the law or the constitution is
within the jurisdiction of the regular courts.  Indeed,
the Constitution vests the power of judicial review
or the power to declare a law, treaty, international
or executive agreement, presidential decree,
order, instruction, ordinance, or regulation in the
courts, including the regional trial courts.  This is
within the scope of judicial power, which includes
the authority of the courts to determine in an
appropriate action the validity of the acts of the
political departments.  Judicial power includes the
duty of the courts of justice to settle actual
controversies involving rights which are legally
demandable and enforceable, and to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the
Government. (Emphasis supplied)
Meanwhile, in Misamis Oriental Association of Coco Traders, Inc. v.
Department of Finance Secretary,[17] we said:
xxx [A] legislative rule is in the nature
of subordinate legislation, designed to implement a
primary legislation by providing the details thereof.
xxx
In addition such rule must be published. On the other
hand, interpretative rules are designed to provide
guidelines to the law which the administrative agency
is in charge of enforcing.
Accordingly, in considering a
legislative rule a court is free to make three
inquiries: (i) whether the rule is within the
delegated authority of the administrative agency;
(ii) whether it is reasonable; and (iii) whether it
was issued pursuant to proper procedure.  But the
court is not free to substitute its judgment as to the
desirability or wisdom of the rule for the legislative
body, by its delegation of administrative judgment,
has committed those questions to administrative
judgments and not to judicial judgments.  In the case
of an interpretative rule, the inquiry is not into the
validity but into the correctness or propriety of the
rule.  As a matter of power a court, when confronted
with an interpretative rule, is free to (i) give the force
of law to the rule; (ii) go to the opposite extreme and
substitute its judgment; or (iii) give some intermediate
degree of authoritative weight to the interpretative
rule. (Emphasis supplied)
Second, the controversy is between two parties that have adverse
interests. Petitioners are summarily imposing a tariff rate that respondent is refusing
to pay.
Third, it is clear that respondent has a legal and substantive interest
in the implementation of CMO 27-2003. Respondent has adequately shown that, as
a regular importer of wheat, on 14 August 2003, it has actually made shipments of
wheat from China to Subic. The shipment was set to arrive in December 2003. Upon
its arrival, it would be subjected to the conditions of CMO 27-2003. The regulation
calls for the imposition of different tariff rates, depending on the factors enumerated
therein. Thus, respondent alleged that it would be made to pay the 7% tariff applied
to feed grade wheat, instead of the 3% tariff on food grade wheat. In addition,
respondent would have to go through the procedure under CMO 27-2003, which
would undoubtedly toll its time and resources. The lower court correctly pointed out
as follows:
xxx As noted above, the fact that
petitioner is precisely into the business of importing
wheat, each and every importation will be
subjected to constant disputes which will result
into (sic) delays in the delivery, setting aside of
funds as cash bond required in the CMO as well
as the resulting expenses thereof. It is easy to see
that business uncertainty will be a constant
occurrence for petitioner. That the sums involved
are not minimal is shown by the discussions
during the hearings conducted as well as in the
pleadings filed. It may be that the petitioner can later
on get a refund but such has been foreclosed
because the Collector of Customs and the
Commissioner of Customs are bound by their own
CMO. Petitioner cannot get its refund with the said
agency. We believe and so find that Petitioner has
presented such a stake in the outcome of this
controversy as to vest it with standing to file this
petition.[18] (Emphasis supplied)
 
Finally, the issue raised by respondent is ripe for judicial
determination, because litigation is inevitable[19] for the simple and uncontroverted
reason that respondent is not included in the enumeration of flour millers classified
as food grade wheat importers. Thus, as the trial court stated, it would have to file a
protest case each time it imports food grade wheat and be subjected to the 7% tariff.
It is therefore clear that a petition for declaratory relief is the right
remedy given the circumstances of the case.
Considering that the questioned regulation would affect the
substantive rights of respondent as explained above, it therefore follows that
petitioners should have applied the pertinent provisions of Book VII, Chapter 2 of the
Revised Administrative Code, to wit:
Section 3. Filing. (1) Every agency
shall file with the University of the Philippines Law
Center three (3) certified copies of every rule adopted
by it. Rules in force on the date of effectivity of this
Code which are not filed within three (3) months from
that date shall not thereafter be the bases of any
sanction against any party of persons.
xxx xxx xxx
Section 9. Public Participation. - (1) If
not otherwise required by law, an agency shall, as far
as practicable, publish or circulate notices of
proposed rules and afford interested parties the
opportunity to submit their views prior to the adoption
 of any rule.
(2) In the fixing of rates, no rule or
final order shall be valid unless the proposed rates
shall have been published in a newspaper of general
circulation at least two (2) weeks before the first
hearing thereon.
(3) In case of opposition, the rules on
contested cases shall be observed.
 
When an administrative rule is merely interpretative in nature, its
applicability needs nothing further than its bare issuance, for it gives no real
consequence more than what the law itself has already prescribed. When, on the
other hand, the administrative rule goes beyond merely providing for the means that
can facilitate or render least cumbersome the implementation of the law but
substantially increases the burden of those governed, it behooves the agency to
accord at least to those directly affected a chance to be heard, and thereafter to be
duly informed, before that new issuance is given the force and effect of law.[20]
Likewise, in Taada v. Tuvera,[21] we held:
The clear object of the above-
quoted provision is to give the general public
adequate notice of the various laws which are to
regulate their actions and conduct as citizens.
Without such notice and publication, there would be
no basis for the application of the maxim ignorantia
legis non excusat. It would be the height of
injustice to punish or otherwise burden a citizen
for the transgression of a law of which he had no
notice whatsoever, not even a constructive one.
 
Perhaps at no time since the
establishment of the Philippine Republic has the
publication of laws taken so vital significance that at
this time when the people have bestowed upon the
President a power heretofore enjoyed solely by the
legislature. While the people are kept abreast by the
mass media of the debates and deliberations in the
Batasan Pambansa and for the diligent ones, ready
access to the legislative records no such publicity
accompanies the law-making process of the
President. Thus, without publication, the people
have no means of knowing what presidential
decrees have actually been promulgated, much
less a definite way of informing themselves of the
specific contents and texts of such decrees.
(Emphasis supplied)
Because petitioners failed to follow the requirements enumerated by
the Revised Administrative Code, the assailed regulation must be struck down.
Going now to the content of CMO 27-3003, we likewise hold that it is
unconstitutional for being violative of the equal protection clause of the Constitution.
The equal protection clause means that no person or class of
persons shall be deprived of the same protection of laws enjoyed by other persons or
other classes in the same place in like circumstances. Thus, the guarantee of the
equal protection of laws is not violated if there is a reasonable classification. For a
classification to be reasonable, it must be shown that (1) it rests on substantial
distinctions; (2) it is germane to the purpose of the law; (3) it is not limited to existing
conditions only; and (4) it applies equally to all members of the same class.[22]
Unfortunately, CMO 27-2003 does not meet these requirements. We
do not see how the quality of wheat is affected by who imports it, where it is
discharged, or which country it came from.
Thus, on the one hand, even if other millers excluded from CMO 27-
2003 have imported food grade wheat, the product would still be declared as feed
grade wheat, a classification subjecting them to 7% tariff. On the other hand, even if
the importers listed under CMO 27-2003 have imported feed grade wheat, they
would only be made to pay 3% tariff, thus depriving the state of the taxes due. The
regulation, therefore, does not become disadvantageous to respondent only, but
even to the state.
It is also not clear how the regulation intends to monitor more closely
wheat importations and thus prevent their misclassification. A careful study of CMO
27-2003 shows that it not only fails to achieve this end, but results in the opposite.
The application of the regulation forecloses the possibility that other corporations that
are excluded from the list import food grade wheat; at the same time, it creates an
assumption that those who meet the criteria do not import feed grade wheat. In the
first case, importers are unnecessarily burdened to prove the classification of their
wheat imports; while in the second, the state carries that burden.
Petitioner Commissioner of Customs also went beyond his powers
when the regulation limited the customs officers duties mandated by Section 1403 of
the Tariff and Customs Law, as amended. The law provides:
Section 1403. Duties of Customs
Officer Tasked to Examine, Classify, and Appraise
Imported Articles. The customs officer tasked to
examine, classify, and appraise imported articles
shall determine whether the packages designated
for examination and their contents are in
accordance with the declaration in the entry,
invoice and other pertinent documents and shall
make return in such a manner as to indicate
whether the articles have been truly and correctly
declared in the entry as regard their quantity,
measurement, weight, and tariff classification and
not imported contrary to law. He shall submit
samples to the laboratory for analysis when feasible
to do so and when such analysis is necessary for the
proper classification, appraisal, and/or admission into
the Philippines of imported articles.
Likewise, the customs officer shall
determine the unit of quantity in which they are
usually bought and sold, and appraise the
imported articles in accordance with Section 201
of this Code.
Failure on the part of the customs
officer to comply with his duties shall subject him to
the penalties prescribed under Section 3604 of this
Code.
The provision mandates that the customs officer must first assess and determine the
classification of the imported article before tariff may be imposed. Unfortunately,
CMO 23-2007 has already classified the article even before the customs officer had
the chance to examine it. In effect, petitioner Commissioner of Customs diminished
the powers granted by the Tariff and Customs Code with regard to wheat importation
when it no longer required the customs officers prior examination and assessment of
the proper classification of the wheat.
It is well-settled that rules and regulations, which are the product of a
delegated power to create new and additional legal provisions that have the effect of
law, should be within the scope of the statutory authority granted by the legislature to
the administrative agency. It is required that the regulation be germane to the objects
and purposes of the law; and that it be not in contradiction to, but in conformity with,
the standards prescribed by law.[23]
In summary, petitioners violated respondents right to due process in
the issuance of CMO 27-2003 when they failed to observe the requirements under
the Revised Administrative Code. Petitioners likewise violated respondents right to
equal protection of laws when they provided for an unreasonable classification in the
application of the regulation. Finally, petitioner Commissioner of Customs went
beyond his powers of delegated authority when the regulation limited the powers of
the customs officer to examine and assess imported articles.
WHEREFORE, in view of the foregoing, the Petition is DENIED.
SO ORDERED.
MANOTOK vs. HEIRS OF BARQUE
VILLARAMA, JR., J.:
 
At bar are the motions for reconsideration separately filed by the Manotoks, Barques
and Manahans of our Decision promulgated on August 24, 2010, the dispositive
portion of which reads:
WHEREFORE, the petitions filed by
the Manotoks under Rule 45 of the 1997 Rules of Civil
Procedure, as amended, as well as the petition-in-
intervention of the Manahans, are DENIED. The
petition for reconstitution of title filed by the Barques is
likewise DENIED. TCT No. RT-22481 (372302) in the
name of Severino Manotok IV, et al., TCT No. 210177
in the name of Homer L. Barque and Deed of
Conveyance No. V-200022 issued to Felicitas B.
Manahan, are all hereby declared NULL and VOID.
The Register of Deeds of Caloocan City and/or
Quezon City are hereby ordered to CANCEL the said
titles. The Court hereby DECLARES that Lot 823 of
the Piedad Estate, Quezon City legally belongs to the
NATIONAL GOVERNMENT OF THE REPUBLIC OF
THE PHILIPPINES, without prejudice to the institution
of REVERSION proceedings by the State through the
Office of the Solicitor General.
 With costs against the petitioners.
SO ORDERED.
The Manotoks raised the following grounds in their motion for reconsideration with
motion for oral arguments:
1. It is unjust and oppressive to
deprive the Manotoks of property they have long held
and acquired from the State, on consideration fully
paid and received, and under registered title issued
by the State itself, on nothing more than the assumed
failure of the States agents to inscribe a ministerial
approval on the transaction deeds.
2. The annulment of Friar Land sales,
simply because physical evidence of the Secretarys
ministerial approval can no longer be found, may void
transactions involving thousands of hectares of land,
and affect possibly millions of people to whom the
lands may have since been parceled out, sold and
resold.
3. The Manotoks were given no due
notice of the issue of reversion, which this case on
appeal did not include, and which was thrust upon the
Manotoks only in the final resolution disposing of the
appeal.
It would be error for the Honorable
Court to let this matter go without a serious and full
re-examination. This can be accomplished, among
others, by allowing this motion for reconsideration to
be heard on oral argument, to try to permit all
pertinent considerations to be aired before the Court
and taken into account.
4. These G.R. Nos. 162335 and
162605 were an appeal from administrative
reconstitution proceedings before LRA Reconstitution
officer Benjamin Bustos. But the Resolution dated 18
December 2008 which finally reversed the CAs
rulings, affirmed the denial by Bustos of the
application for administrative reconstitution of the
Barques purported transfer certificate of title, and
terminated the appeal introduced a new case on the
Manotok property. It ordered evidence-taking at the
CA, on which the Supreme Court proposed itself to
decide, in the first instance, an alleged ownership
controversy over the Manotok property.
5. The Manotoks objected to the
remand on jurisdictional and due process grounds.
The original and exclusive jurisdiction over the subject
matter of the case is vested by law on the regional
trial courts.
6. The Honorable Court erred in
proceeding to judgment divesting the Manotoks of
their title to Lot 823 of the Piedad Estate, without a
trial in the courts of original and exclusive jurisdiction,
and in disregard of process which the law accords to
all owners-in-possession.
7. The Honorable Court erred in
concluding that the Manotoks, despite being owners
in possession under a registered title, may be
compelled to produce the deeds by which the
Government had transferred the property to them,
and failing which can be divested of their ownership in
favor of the Government, even if the latter has not
demanded a reversion or brought suit for that
purpose.
8. The Honorable Court erred in
imposing on the Manotoks, contrary to Art. 541 of the
Civil Code, the obligation to prove their ownership of
the subject property, and in awarding their title to the
Government who has not even sued to contest that
ownership.
9. The Honorable Court erred in
finding that Sale Certificate No. 1054, which Severino
Manotok acquired by assignment in 1923, was not
approved by the Director of Lands and the Secretary
of Agriculture and Natural Resources, and in finding
that a Sale Certificate without the Secretarys approval
is void.
10. The Honorable Court erred in
concluding that the Manotoks had no valid Deed of
Conveyance of Lot 823 from the Government The
original of Deed of Conveyance No. 29204 gave the
register of deeds the authority to issue the transfer
certificate of title in the name of the buyer Severino
Manotok, which is required by law to be filed with and
retained in the custody of the register of deeds.We
presume that the copy thereof actually transmitted to
and received by the register of deeds did contain the
Secretarys signature because he in fact issued the
TCT. And we rely on this presumption because the
document itself can no longer be found.
11. Assuming arguendo that the
original Deed of Conveyance No. 29204 the register
of deeds received did not bear the Department
Secretarys signature, DENR Memorandum Order No.
16-05 dated October 27, 2005 cured the defect. To
deny the Manotoks the benefit of ratification under
said MO, on the erroneous interpretation that it
covered only those found in the records of the field
offices of the DENR and LMB, would be
discriminatory. The Department Secretarys
(assumed) failure to affix his signature on the deed of
conveyance could not defeat the Manotoks right to
the lot after they had fully paid for it.
Republic Act No. 9443 must be
applied, mutatis mutandis, to the Manotoks and the
Piedad Estate.
12. The Honorable Court erred in
denying their right to be informed of the CAs report
and be heard thereon prior to judgment, as basic
requirements of due process.
The Barques anchor their motion for reconsideration on the following:
I
THE HONORABLE SUPREME COURT GRAVELY
ERRED IN DENYING THE PETITION FOR
RECONSTITUTION FILED BY RESPONDENTS
HEIRS OF BARQUE WITHOUT STATING THE
GROUNDS FOR SUCH DENIAL.
II
THE HONORABLE SUPREME COURT GRAVELY
ERRED IN INSTANTLY DECLARING IN THE
DISPOSITIVE PORTION OF THE DECISION THAT
ALONG WITH FELICITAS B. MANAHANS TITLE,
RESPONDENTS HEIRS OF BARQUES TITLE TCT
NO. 210177 IS LIKEWISE NULL AND VOID,
WITHOUT STATING A CLEAR AND DEFINITE
BASIS THEREFOR.
III
THE HONORABLE SUPREME COURT GRAVELY
ERRED IN DECLARING TRANSFER CERTIFICATE
OF TITLE NO. 210177 IN THE NAME OF HOMER L.
BARQUE NULL AND VOID.
IV
THE HONORABLE COURT OF APPEALS FACTUAL
FINDINGS, ADOPTED BY THE HONORABLE
SUPREME COURT IN THE DECISION DATED 24
AUGUST 2010, ARE CONTRARY TO THE
EVIDENCE PRESENTED.
V
THE HONORABLE SUPREME COURTS FINDINGS
IN THE DECISION DATED 24 AUGUST 2010 ARE
CONTRARY TO LAW.
As to the Manahans, they seek a partial reconsideration and to allow further
reception of evidence, stating the following grounds:
I. As the original of Sale Certificate No. 511 could not
be found in the files of the LMB or the
DENR-NCR at the time of the hearings
before the Commissioners, the existence
of the certificate was proven by secondary
evidence. The Commissioners erred in
ignoring secondary evidence of the
contents of Sale Certificate No. 511
because of mere doubt and suspicion as
to its authenticity and in the absence of
contradicting evidence.
II. The OSG which has been tasked by the Honorable
Court to obtain documents from the LMB
and DENR-NCR relative to the
conveyance of Lot 823, Piedad Estate,
furnished intevenors with a certified true
copy of Sale Certificate No. 511 which it
obtained from the DENR-NCR on
 September 11, 2010, together with the
explanation of DENR-NCR why the
document is available only now. (Certified
true copy of Sale Certificate No. 511 and
Sworn Explanation of Evelyn G. Celzo
attached as Annexes I and II.
III. When Valentin Manahan offered to purchase Lot
823, Piedad Estate, being the actual
settler and occupant who under the law
enjoyed preference to buy the lot, his
status as actual settler and occupant must
have been verified by the Bureau of Public
Lands because the presumption is that
official duty has been regularly performed.
The administrative determination of the
status of Valentin Manahan as actual
settler and occupant can not now be
reviewed after the lapse of about eight (8)
decades when parties, witnesses,
documents and other evidence are hardly
or no longer available.
 
IV. Abundant evidence was submitted by intervenors
that they and their predecessors-in-
interest occupied and possessed Lot 823
up to 1948 when they were dispossessed
by armed men. It was error for the
Commissioners to ignore the evidence of
the intervenors, there being no
contradicting proof.
 
V. The Commissioners committed palpable error in
not according evidentiary value to the
Investigation Report of Evelyn dela Rosa
because it is allegedly practically a replica
or summation of Felicitas B. Manahans
allegations embodied in her petition.
Examination of the dates of the
documents will show that the Investigation
Report preceded the Petition. The
Petition, therefore, is based on the
Investigation Report, and not the other
way around.
 
VI. The pronouncement of the Commissioners that
Sale Certificate No. 511 is stale is
incorrect. Intervenors made continuing
efforts to secure a deed of conveyance
based on Sale Certificate No. 511.
Defense of staleness or laches belongs to
the party against whom the claim is
asserted; it is only that party who can
raise it. It can also be waived, as in this
case when the LMB which had the sole
authority under Act No. 1120 to convey
friar lands, issued to intervenor Felicitas
B. Manahan Deed of Conveyance No. V-
2000-22.
 
VII. The requirement of Act No. 1120 that a deed of
conveyance of friar land must be signed
by the Secretary of Interior was dispensed
with pursuant to law and Presidential
issuances which have the force of law.
VIII. Deeds of conveyance lacking the signature of the
Department Secretary were ratified by
President Joseph Estrada and DENR
Secretary Michael T. Defensor.
The motions are bereft of merit.
Upon the theory that this Court had no power to cancel their certificate of title over
Lot 823, Piedad Estate in the resolution of the present controversy, the Manotoks
contend that our Resolution of December 18, 2008 terminated the appeal from the
Land Registration Authority (LRA) administrative reconstitution proceedings by
reversing the CAs rulings and affirming the denial by LRA Reconstitution Officer
Benjamin M. Bustos of the application for administrative reconstitution of the Barques
Transfer Certificate of Title (TCT) No. 210177. The appeal having been terminated,
the Manotoks argued that the remand to the CA for evidence-taking had introduced a
new case in which this Court will decide, in the first instance, an alleged ownership
issue over the property. Such action is legally infirm since the law has vested
exclusive original jurisdiction over civil actions involving title to real property on the
trial courts.
The argument is untenable.
In our December 18, 2008 Resolution, we set aside the December
12, 2005 Decision rendered by the First Division and recalled the entry of judgment.
We ruled that neither the CA nor the LRA had jurisdiction to cancel the Manotok title,
a relief sought by the Barques in the administrative reconstitution proceedings. The
Court En Banc proceeded with the reevaluation of the cases on a pro hac vice basis.
During the oral arguments, there were controversial factual matters which emerged
as the parties fully ventilated their respective claims, in the course of which the
Barques claim of ownership was found to be exceedingly weak. Indeed, both the
LRA and CA erred in ruling that the Barques had the right to seek reconstitution of
their purported title. Reevaluation of the evidence on record likewise indicated that
the Manotoks claim to title is just as flawed as that of the Barques. Following the
approach in Alonso v. Cebu Country Club, Inc.[1] also involving a Friar Land,
Republic v. Court of Appeals[2] and Manotok Realty Inc. v. CLT Realty Development
Corporation,[3] the majority resolved to remand this case for reception of evidence
on the parties competing claims of ownership over Lot 823 of the Piedad Estate.
Given the contentious factual issues, it was necessary for this Court to resolve the
same for the complete determination of the present controversy involving a huge
tract of friar land. It was thus not the first time the Court had actually resorted to
referring a factual matter pending before it to the CA.
Maintaining their objection to the order for reception of evidence on remand, the
Manotoks argue that as owners in possession, they had no further duty to defend
their title pursuant to Article 541 of the Civil Code which states that: [a] possessor in
the concept of owner has in his favor the legal presumption that he possesses with a
just title and he cannot be obliged to show or prove it. But such presumption is prima
facie, and therefore it prevails until the contrary is proved.[4]In the light of serious
flaws in the title of Severino Manotok which were brought to light during the
reconstitution proceedings, the Court deemed it proper to give all the parties full
opportunity to adduce further evidence, and in particular, for the Manotoks to prove
their presumed just title over the property also claimed by the Barques and the
Manahans. As it turned out, none of the parties were able to establish by clear and
convincing evidence a valid alienation from the Government of the subject friar land.
The declaration of ownership in favor of the Government was but the logical
consequence of such finding.
We have ruled that the existence of Sale Certificate No. 1054 in the
records of the DENR-LMB was not duly established. No officer of the DENR-NCR or
LMB having official custody of sale certificates covering friar lands testified as to the
issuance and authenticity of Exh. 10 submitted by the Manotoks. And even assuming
that Exh. 10 was actually sourced from the DENR-LMB, there was no showing that it
was duly issued by the Director of Lands and approved by the Secretary of
Agriculture and Natural Resources (DENR). On this point, the Manotoks hinted that
the LMBs certifying the document (Exh. 10) at the Manotoks request was a
deliberate fraud in order to give them either a false document, the usual unsigned
copy of the signed original, or a fake copy.
The Manotoks further assert that this would imply that the LMB either
did not produce the genuine article, or could not produce it. This could only mean
that the document which the NBI found to be fake or spurious, if this Court accepts
that finding, was planted evidenceor evidence inserted in the LMB files to discredit
the Manotok title. Nonetheless, the Manotoks insist there were independent evidence
which supposedly established the prior existence of Sale Certificate No. 1054. These
documents are: (a) photocopy of Assignment of Sale Certificate No. 1054 dated
1929; (b) official receipt of payment for said certified copy; (c) photocopies of the
other assignment deeds dated 1923; (d) official receipts of installment payments on
Lot 823 issued to Severino Manotok; (e) file copies in the National Archives of the
Deed of Conveyance No. 29204; and (f) the notarial registers in which the said Deed
of Conveyance, as well as the assignment documents, were entered.
The contentions have no merit, and at best speculative. As this Court
categorically ruled in Alonso v. Cebu Country Club, Inc.,[5] approval by the Secretary
of Agriculture and Commerce of the sale of friar lands is indispensable for its validity,
hence, the absence of such approval made the sale null and void ab initio. In that
case, the majority declared that no valid titles can be issued on the basis of the sale
or assignment made in favor of petitioners father due to the absence of signature of
the Director of Lands and the Secretary of the Interior, and the approval of the
Secretary of Natural Resources in the Sale Certificate and Assignment of Sale
Certificate. Applying the Alonso ruling to these cases, we thus held that no legal right
over the subject friar land can be recognized in favor of the Manotoks under the
assignment documents in the absence of the certificate of sale duly signed by the
Director of Lands and approved by the Secretary of Agriculture and Natural
Resources.
That a valid certificate of sale was issued to Severino Manotoks
assignors cannot simply be presumed from the execution of assignment documents
in his favor. Neither can it be deduced from the alleged issuance of the half-torn TCT
No. 22813, itself a doubtful document as its authenticity was not established, much
less the veracity of its recitals because the name of the registered owner and date of
issuance do not appear at all. The Manotoks until now has not offered any
explanation as to such condition of the alleged title of Severino Manotok; they assert
that it is the Register of Deeds himself who should be in a position to explain that
condition of the TCT in his custody. But then, no Register of Deeds had testified and
attested to the fact that the original of TCT No. 22813 was under his/her custody, nor
that said certificate of title in the name of Severino Manotok existed in the files of the
Registry of Deeds of Caloocan or Quezon City. The Manotoks consistently evaded
having to explain the circumstances as to how and where TCT No. 22813 came
about. Instead, they urge this Court to validate their alleged title on the basis of the
disputable presumption of regularity in the performance of official duty. Such stance You did not see the sale certificate?
hardly satisfies the standard of clear and convincing evidence in these cases. Even
the existence of the official receipts showing payment of the price to the land by WITNESS:
Severino Manotok does not prove that the land was legally conveyed to him without Yes, Sir, but I asked only.
any contract of sale having been executed by the government in his favor. Neither
did the alleged issuance of TCT No. 22183 in his favor vest ownership upon him over ATTY. SAN JUAN:
the land nor did it validate the alleged purchase of Lot 283, which is null and void.
Who did you ask?
The absence of the Secretarys approval in Certificate of Sale No. 1054 made the
supposed sale null and void ab initio.[6] WITNESS:
In the light of the foregoing, the claim of the Barques who, just like The records officer, sir.
the Manahans, were unable to produce an authentic and genuine sale certificate,
must likewise fail. The Decision discussed extensively the findings of the CA that the ATTY. SAN JUAN:
Barques documentary evidence were either spurious or irregularly procured, which Whose name you can no longer recall, correct?
even buttressed the earlier findings mentioned in the December 18, 2008 Resolution.
The CAs findings and recommendations with respect to the claims of all parties, WITNESS:
have been fully adopted by this Court, as evident in our disquisitions on the
indispensable requirement of a validly issued Certificate of Sale over Lot 823, Piedad I can no longer recall, sir.
Estate. ATTY. SAN JUAN:
As to the motion of the Manahans to admit an alleged certified true And the information to you was the Sale Certificate
copy of Sale Certificate No. 511 dated June 23, 1913 in the name of Valentin No. 511 was issued after the price
Manahan which, as alleged in the attached Sworn Explanation of Evelyn G. Celzo, was fully paid?
the latter hadinadvertently failed to attach to her Investigation Report forwarded to
the CENRO, this Court cannot grant said motion. WITNESS:

This belatedly submitted copy of Sale Certificate No. 511 was not Yes, sir.
among those official documents which the Office of the Solicitor General (OSG)
ATTY. SAN JUAN:
offered as evidence, as in fact no copy thereof can be found in the records of either
the DENR-NCR or LMB. Moreover, the sudden emergence of this unauthenticated And it was only after he applied for the purchase of
document is suspicious, considering that Celzo who testified, as witness for both the the lot sometime after the survey of
OSG and the Manahans, categorically admitted that she never actually saw the 1939 that he was issued sale
application to purchase and alleged Sale Certificate No. 511 of the Manahans. The certificate No. 511?
relevant portions of the transcript of stenographic notes of the cross- examination of
said witness during the hearing before the CA are herein quoted: WITNESS:

ATTY. SAN JUAN: I am not aware of the issuance of sale certificate. I

am aware only of the deed of
How about this part concerning Valentin Manahan assignment, Sir.
having applied for the purchase of the
land? Did you get this from the x x x x[7] (Emphasis supplied.)
neighbors or from Felicitas Manahan? In view of the above admission, Celzos explanation that the copy of Sale Certificate
xxxx No. 511 signed by the Director of Lands and Secretary of the Interior was originally
attached to her Investigation Report, cannot be given credence. Even her testimony
WITNESS: regarding the conduct of her investigation of Lot 823, Piedad Estate and the
Investigation Report she submitted thereafter, failed to impress the CA on the validity
No, sir. Only the Records Section, sir, that Valentin
of the Manahans claim. Indeed, records showed that Celzos findings in her report
Manahan applied, sir.
were merely based on what Felicitas Manahan told her about the alleged occupation
ATTY. SAN JUAN: and possession by Valentin Manahan of the subject land.

You did not see Valentin Manahans application but  

only the Records Section saw it?
In their Offer of Additional Evidence, the Manahans submitted a photocopy of a letter
WITNESS: dated December 21, 2010 allegedly sent by Atty. Allan V. Barcena (OIC, Director) to
their counsel, Atty. Romeo C. dela Cruz, which reads:
Yes, sir.
 
ATTY. SAN JUAN:
This has reference to your letter dated
Did they tell you that they saw the application? August 20, 2010 addressed to the Secretary of the
WITNESS: Department of Environment and Natural Resources
(DENR) requesting that Deed of Conveyance No. V-
I did not go further, sir. 200022 issued on October 30, 2000 over Lot 823 of
the Piedad Estate in favor of Felicitas B. Manahan be
xxxx ratified or confirmed for reasons stated therein. The
ATTY. SAN JUAN: Office of the DENR Secretary in turn referred the
letter to us for appropriate action.
And this report of yours says that Valentin Manahan
was issued Sale Certificate No. 511  
after completing the payment of the Records of this Office on Lot 823 of the
price of P2,140? Piedad Estate, show that the Deed of Conveyance
WITNESS: No. V-200022 covering said lot in favor of Felicitas
Manahan was issued by then Director of the Land
Yes, sir. Management Bureau (LMB), now Undersecretary
Ernesto D. Adobo, Jr., on October 30, 2000. The
ATTY. SAN JUAN:
Deed was issued based on General Memorandum
You also got this from the records of the LMB, is that Order (GMO) No. 1 issued by then Secretary Jose J.
correct? Leido, Jr. of the Department of Natural Resources on
January 17, 1977, which authorized the Director of
WITNESS: Lands, now Director of LMB, to approve contracts of
Yes, sir. sale and deeds of conveyance affecting Friar Lands.

ATTY. SAN JUAN:  

You actually saw the sale certificate that was It is stressed that the confirmation of the
issued to Valentin Manahan after he Deed by this office is only as to the execution and
paid the price of P2,140? issuance based on the authority of LMB Director
under GMO No. 1. This is without prejudice to the
WITNESS: final decision of the Supreme Court as to its validity in
the case of Severino Manotok IV, et al. versus Heirs
No, sir. I did not go further. of Homer L, Barque (G.R. No. 162335 & 162605).
ATTY. SAN JUAN:  
 Please be guided accordingly.[8]
(Emphasis supplied.)
However, in the absence of a valid certificate of sale duly signed by
the Secretary of Interior or Agriculture and Natural Resources, such alleged
confirmation of the execution and issuance by the DENR-LMB of Deed of
Conveyance No V-00022 in favor of Felicitas Manahan on October 30, 2000 is still
insufficient to prove the Manahans claim over the subject land.
In a Supplemental Manifestation dated November 18, 2010, the
Manotoks submitted an affidavit supposedlyexecuted on November 11, 2010 by
former DENR Secretary Michael T. Defensor(Defensor Affidavit) clarifying that MO
16-05 applies to all Deeds of Conveyance that do not bear the signature of the
Secretary of Natural Resources, contrary to the CA and this Courts statement that
said issuance refers only to those deeds of conveyance on file with the records of the
DENR field offices.
 
By its express terms, however, MO 16-05 covered only deeds of
conveyances and not unsigned certificates of sale. The explanation of Secretary
Defensor stated theavowed purpose behind the issuance, which is to remove doubts
or dispel objections as to the validity of all Torrens transfer certificates of title issued
over friar lands thereby ratifying the deeds of conveyance to the friar land buyers
who have fully paid the purchase price, and are otherwise not shown to have
committed any wrong or illegality in acquiring such lands.
The Manahans propounded the same theory that contracts of sale over friar lands
without the approval of the Secretary of Natural Resources may be subsequently
ratified, but pointed out that unlike the Manotoks Deed of Conveyance No. 29204
(1932), their Deed of Conveyance No. V-2000-22 (2000) was issued and approved
by the Director of Lands upon prior authority granted by the Secretary.
In their Consolidated Memorandum dated December 19, 2010, the
Manahans reiterated their earlier argument that the LMB Director himself had the
authority to approve contracts of sale and deeds of conveyance over friar lands on
the basis of General Memorandum Order No. 1 issued in 1977 by then Secretary of
Natural Resources Jose J. Leido, Jr. delegating such function to the Director of
Lands. This delegated power can also be gleaned from Sec. 15, Chapter 1, Title XIV
of the Administrative Code of 1987 which provides that the Director of Lands shall
perform such other functions as may be provided by law or assigned by the
Secretary. Moreover, former President Corazon C. Aquino issued Executive Order
No. 131 dated January 20, 1987 reorganizing the LMB and providing that the LMB
Director shall, among others, perform other functions as may be assigned by the
Minister of Natural Resources.
On the basis of Art. 1317[9] of the Civil Code, the Manahans contend that deeds of
conveyance not bearing the signature of the Secretary can also be ratified. Further,
they cite Proclamation No. 172 issued by former President Joseph Ejercito Estrada
which declared that there should be no legal impediment for the LMB to issue such
deeds of conveyance since the applicants/purchasers have already paid the
purchase price of the lot, and as sellers in good faith, it is the obligation of the
Government to deliver to said applicants/purchasers the friar lands sold free of any
lien or encumbrance whatsoever. Eventually, when MO 16-05 was issued by
Secretary Defensor, all these deeds of conveyance lacking the signature of the
Secretary of Natural Resources are thus deemed signed or otherwise ratified. The
CA accordingly erred in holding that MO 16-05 cannot override Act No. 1120 which
requires that a deed of conveyance must be signed by the Secretary, considering
that MO 16-05 is based on law and presidential issuances, particularly EO 131,
which have the force of law.
Meanwhile, in compliance with our directive, the Solicitor General filed his Comment
on the Defensor Affidavit submitted by the Manotoks. The Solicitor General contends
that said document is hearsay evidence, hence inadmissible and without probative
value. He points out that former DENR Secretary Defensor was not presented as a
witness during the hearings at the CA, thus depriving the parties including the
government of the right to cross-examine him regarding his allegations therein. And
even assuming arguendo that such affidavit is admissible as evidence, the Solicitor
General is of the view that the Manotoks, Barques and Manahans still cannot benefit
from the remedial effect of MO 16-05 in view of the decision rendered by this Court
which ruled that none of the parties in this case has established a valid alienation
from the Government of Lot 823 of the Piedad Estate, and also because the curative
effect of MO 16-05 is intended only for friar land buyers whose deeds of conveyance
lack the signature of the Secretary of the Interior or Agriculture and Natural
Resources, have fully paid the purchase price and are otherwise not shown to have
committed any wrong or illegality in acquiring the friar lands. He then emphasizes
that this Court has ruled that it is not only the deed of conveyance which must be
signed by the Secretary but also the certificate of sale itself. Since none of the
parties has shown a valid disposition to any of them of Lot 823 of the Piedad Estate,
this Court therefore correctly held that said friar land is still part of the patrimonial
property of the national government.
The Court is not persuaded by the ratification theory espoused by the Manotoks and
Manahans.
The argument that the Director of Lands had delegated authority to
approve contracts of sale and deeds of conveyances over friar landsignores the
consistent ruling of this Court in controversies involving friar lands. The
aforementioned presidential/executive issuances notwithstanding, this Court held
in Solid State Multi-Products Corporation v. CA,[10] Liao v. Court of Appeals,[11]and
Alonso v. Cebu Country Club[12] that approval of the Secretary of Agriculture and
Commerce (later the Natural Resources) is indispensable to the validity of sale of
friar land pursuant to Sec. 18 of Act No. 1120 and that the procedure laid down by
said law must be strictly complied with.
As to the applicability of Art. 1317 of the Civil Code, we maintain that contracts of
sale lacking the approval of the Secretary fall under the class of void and inexistent
contracts enumerated in Art. 1409[13] which cannot be ratified. Section 18 of Act No.
1120 mandated the approval by the Secretary for a sale of friar land to be valid.
In his dissenting opinion, Justice Antonio T. Carpio disagreed with the majoritys
interpretation of Section 18 of Act No. 1120, and proposed that based on Section 12
of the same Act, it is the Deed of Conveyance that must bear the signature of the
Secretary of Interior/Agriculture and Natural Resources because it is only when the
final installment is paid that the Secretary can approve the sale, the purchase price
having been fully paid. It was pointed out that the majority itself expressly admit that
it is only a ministerial duty on the part of the Secretary to sign the Deed of
Conveyance once the applicant had made full payment on the purchase price of the
land, citing jurisprudence to the effect that notwithstanding the failure of the
government to issue the proper instrument of conveyance when the purchaser finally
pays the final installment of the purchase price, the purchase of the friar land still
acquired ownership.
We are unable to agree with the view that it is only the Director of Lands who signs
the Certificate of Sale.
The official document denominated as Sale Certificate clearly required both the
signatures of the Director of Lands who issued such sale certificate to an applicant
settler/occupant and the Secretary of the Interior/Agriculture and Natural Resources
indicating his approval of the sale. These forms had been prepared and issued by
the Chief of the Bureau of Public Lands under the supervision of the Secretary of the
Interior, consistent with Act No. 1120 as may be necessary x x x to carry into effect
all the provisions [thereof] that are to be administered by or under [his] direction, and
for the conduct of all proceedings arising under such provisions.[14]
We reiterate that Section 18 of Act No. 1120, as amended, is plain
and categorical in stating that:
SECTION 18. No lease or sale made
by the Chief of the Bureau of Public Lands under the
provisions of this Act shall be valid until approved by
the Secretary of the Interior.
Section 12 did not mention the requirement of signature or approval of the Secretary
in the sale certificate and deed of conveyance.
SECTION 12.    It shall be the duty of
the Chief of the Bureau of Public Lands by proper
investigation to ascertain what is the actual value of
the parcel of land held by each settler and occupant,
taking into consideration the location and quality of
each holding of land, and any other circumstances
giving [it] value. The basis of valuation shall likewise
be, so far as practicable, such [as] the aggregate of
the values of all the holdings included in each
particular tract shall be equal to the cost to the
Government to the entire tract, including the cost of
surveys, administration and interest upon the
purchase money to the time of sale. When the cost
thereof shall have been thus ascertained, the Chief of
the Bureau of Public Lands shall give the said settler
and occupant a certificate which shall set forth in
detail that the Government has agreed to sell to such
settler and occupant the amount of land so held by
him, at the price so fixed, payable as provided in this
Act at the office of the Chief of Bureau of Public
Lands, in gold coin of the United States or its
equivalent in Philippine currency, and that upon the
payment of the final installment together with [the]
accrued interest the Government will convey to such
settler and occupant the said land so held by him by
proper instrument of conveyance, which shall be
issued and become effective in the manner provided
in section one hundred and twenty-two of the Land
Registration Act. The Chief of the Bureau of Public
Lands shall, in each instance where a certificate is
given to the settler and occupant of any holding, take
his formal receipt showing the delivery of such
certificate, signed by said settler and occupant.
On the other hand, the first paragraph of Section 15 provides for the
reservation of title in the Government only for the purpose of ensuring payment of the
purchase price, which means that the sale was subject only to the resolutory
condition of non-payment, while the second paragraph states that the purchaser
thereby acquires the right of possession and purchase by virtue of a certificate of
sale signed under the provisions [thereof]. The certificate of sale evidences the
meeting of the minds between the Government and the applicant regarding the price,
the specific parcel of friar land, and terms of payment. In Dela Torre v. Court of
Appeals,[15]we explained that the non-payment of the full purchase price is the only
recognized resolutory condition in the case of sale of friar lands. We have also held
that it is the execution of the contract to sell and delivery of the certificate of sale that
vests title and ownership to the purchaser of friar land.[16] Where there is no
certificate of sale issued, the purchaser does not acquire any right of possession and
purchase, as implied from Section 15. By the mandatory language of Section 18, the
absence of approval of the Secretary of Interior/Agriculture and Natural Resources in
the lease or sale of friar land would invalidate the sale. These provisions read
together indicate that the approval of the Secretary is required in both the certificate
of sale and deed of conveyance, although the lack of signature of the Secretary in
the latter may not defeat the rights of the applicant who had fully paid the purchase
price.
Justice Conchita Carpio Morales dissent asserted that case law does
not categorically state that the required approval must be in the form of a signature
on the Certificate of Sale, and that there is no statutory basis for the requirement of
the Secretarys signature on the Certificate of Sale apart from a strained deduction of
Section 18.
As already stated, the official forms being used by the Government for this purpose
clearly show that the Director of Lands signs every certificate of sale issued covering
a specific parcel of friar land in favor of the applicant/purchaser while the Secretary
of Interior/Natural Resources signs the document indicating that the sale was
approved by him. To approve is to be satisfied with; to confirm, ratify, sanction, or
consent to some act or thing done by another; to sanction officially. [17] The
Secretary of Interior/Natural Resources signs and approves the Certificate of Sale to
confirm and officially sanction the conveyance of friar lands executed by the Chief of
the Bureau of Public Lands (later Director of Lands). It is worth mentioning thatSale
Certificate No. 651 in the name of one Ambrosio Berones dated June 23, 1913,
[18]also covering Lot 823 of the Piedad Estate and forming part of the official
documents on file with the DENR-LMB which was formally offered by the OSG as
part of the official records on file with the DENR and LMB pertaining to Lot 823,
contains the signature of both the Director of Lands and Secretary of the Interior. The
Assignment of Sale Certificate No. 651 dated April 19, 1930 was also signed by the
Director of Lands.[19]
Following the dissents interpretation that the Secretary is not required
to sign the certificate of sale while his signature in the Deed of Conveyance may also
appear although merely a ministerial act, it would result in the absurd situation
wherein thecertificate of sale and deed of conveyance both lacked the signature and
approval of the Secretary, and yet the purchasers ownership is ratified, courtesy of
DENR Memorandum Order (MO) No. 16-05. It is also not farfetched that greater
chaos will arise from conflicting claims over friar lands, which could not be definitively
settled until the genuine and official manifestation of the Secretarys approval of the
sale is discerned from the records and documents presented. This state of things is
simply not envisioned under the orderly and proper distribution of friar lands to bona
fide occupants and settlers whom the Chief of the Bureau of Public Lands was
tasked to identify.[20]
The existence of a valid certificate of sale therefore must first be
established with clear and convincing evidence before a purchaser is deemed to
have acquired ownership over a friar land notwithstanding the non-issuance by the
Government, for some reason or another, of a deed of conveyance after completing
the installment payments. In the absence of such certificate of sale duly signed by
the Secretary, no right can be recognized in favor of the applicant. Neither would any
assignee or transferee acquire any right over the subject land.
In Alonso v. Cebu Country Club, Inc.,[21] the Court categorically
ruled that the absence of approval by the Secretary of Agriculture and Commerce in
the sale certificate and assignment of sale certificate made the sale null and void ab
initio. Necessarily, there can be no valid titles issued on the basis of such sale or
assignment.[22]
Justice Carpio, however, opined that the ruling in Alonso was superseded with the
issuance by then Department of [Environment] and Natural Resources (DENR)
Secretary Michael T. Defensor of DENR Memorandum Order No. 16-05. It was
argued that the majority had construed a limited application when it declared that the
Manotoks could not benefit from said memorandum order because the latter refers
only to deeds of conveyance on file with the records of the DENR field offices.
We disagree with the view that Alonso is no longer applicable to this controversy
after the issuance of DENR MO No. 16-05 which supposedly cured the defect in the
Manotoks title.
First, DENR MO No. 16-05 explicitly makes reference only to Deeds of
Conveyances, not to Sale Certificates by which, under the express language of
Section 15, the purchaser of friar land acquires the right of possession and purchase
pending final payment and the issuance of title, such certificate being duly signed
under the provisions of Act No. 1120. Although the whereas clause of MO No. 16-05
correctly stated that it was only a ministerial duty on the part of the Secretary to sign
the Deed of Conveyance once the applicant had made full payment on the purchase
price of the land, it must be stressed that in those instances where the formality of
the Secretarys approval and signature is dispensed with, there was a valid certificate
of sale issued to the purchaser or transferor. In this case, there is no indication in the
records that a certificate of sale was actually issued to the assignors of Severino
Manotok, allegedly the original claimants of Lot 823, Piedad Estate.
Second, it is basic that an administrative issuance like DENR Memorandum Order
No. 16-05 must conform to and not contravene existing laws. In the interpretation
and construction of the statutes entrusted to them for implementation, administrative
agencies may not make rules and regulations which are inconsistent with the statute
it is administering, or which are in derogation of, or defeat its purpose. In case of
conflict between a statute and an administrative order, the former must prevail. [23]
DENR Memorandum Order No. 16-05 cannot supersede or amend the clear
mandate of Section 18, Act No. 1120 as to dispense with the requirement of approval
by the Secretary of the Interior/Agriculture and Natural Resources of every lease or
sale of friar lands.
But what is worse, as the dissent suggests, is that MO 16-05 would apply even to
those deeds of conveyances not found in the records of DENR or its field offices,
such as the Manotoks Deed of Conveyance No. 29204 sourced from the National
Archives. It would then cover cases of claimants who have not been issued any
certificate of sale but were able to produce a deed of conveyance in their names.
The Bureau of Lands was originally charged with the administration of all laws
relative to friar lands, pursuant to Act No. 2657 and Act No. 2711. Under Executive
Order No. 192,[24] the functions and powers previously held by the Bureau of Lands
were absorbed by the Lands Management Bureau (LMB) of the DENR, while those
functions and powers not absorbed by the LMB were transferred to the regional field
offices.[25] As pointed out by the Solicitor General in the Memorandum submitted to
the CA, since the LMB and DENR-NCR exercise sole authority over friar lands, they
are naturally the sole repository of documents and records relative to Lot No. 823 of
the Piedad Estate.[26]
Third, the perceived disquieting effects on titles over friar lands long held by
generations of landowners cannot be invoked as justification for legitimizing any
claim or acquisition of these lands obtained through fraud or without strict
compliance with the procedure laid down in Act No. 1120. This Court, in denying with
finality the motion for reconsideration filed by petitioner in Alonso v. Cebu Country
Club, Inc.[27] reiterated the settled rule that [a]pproval by the Secretary of the Interior
cannot simply be presumed or inferred from certain acts since the law is explicit in its
mandate.[28] Petitioners failed to discharge their burden of proving their acquisition
of title by clear and convincing evidence, considering the nature of the land involved.
As consistently held by this Court, friar lands can be alienated only upon proper
compliance with the requirements of Act No. 1120. The issuance of a valid certificate
of sale is a condition sine qua non for acquisition of ownership under the Friar Lands
Act. Otherwise, DENR Memorandum Order No. 16-05 would serve as administrative
imprimatur to holders of deeds of conveyance whose acquisition may have been
obtained through irregularity or fraud.
Contrary to the dissent of Justice Maria Lourdes P. A. Sereno that our decision has
created dangers for the system of property rights in the Philippines, the Court simply
adhered strictly to the letter and spirit of the Friar Lands Act and jurisprudence
interpreting its provisions. Such imagined scenario of instability and chaos in the
established property regime, suggesting several other owners of lands formerly
comprising the Piedad Estate who are supposedly similarly situated, remains in the
realm of speculation. Apart from their bare allegations, petitioners (Manotoks) failed
to demonstrate how the awardees or present owners of around more than 2,000
hectares of land in the Piedad Estate can be embroiled in legal disputes arising from
unsigned certificates of sale.
On the other hand, this Court must take on the task of scrutinizing
even certificates of title held for decades involving lands of the public domain and
those lands which form part of the Governments patrimonial property, whenever
necessary in the complete adjudication of the controversy before it or where
apparent irregularities and anomalies are shown by the evidence on record. There is
nothing sacrosanct about the landholdings in the Piedad Estate as even prior to the
years when Lot 823 could have been possibly sold or disposed by the Bureau of
Lands, there were already reported anomalies in the distribution of friar lands in
general.[29]
Significantly, subsequent to the promulgation of our decision in
Alonso, Republic Act No. (RA) 9443 was passed by Congress confirming and
declaring, subject to certain exceptions, the validity of existing TCTs and
reconstituted certificates of title covering the Banilad Friar Lands Estate situated in
Cebu. Alonso involved a friar land already titled but without a sale certificate, and
upon that ground we declared the registered owner as not having acquired
ownership of the land. RA 9443 validated the titles notwithstanding the lack of
signatures and/or approval of the then Secretary of Interior (later Secretary of
Agriculture and Natural Resources) and/or the then Chief of the Bureau of Public
lands (later Director of Public Lands) in the copies of the duly executed Sale
Certificate and Assignments of Sale Certificates, as the case may be, now on file
with the Community Environment and Natural Resources Office (CENRO), Cebu
City.
The enactment of RA 9443 signifies the legislatures recognition of the statutory basis
of the Alonso ruling to the effect that in the absence of signature and/or approval of
the Secretary of Interior/Natural Resources in the Certificates of Sale on file with the
CENRO, the sale is not valid and the purchaser has not acquired ownership of the
friar land. Indeed, Congress found it imperative to pass a new law in order to exempt
the already titled portions of the Banilad Friar Lands Estate from the operation of
Section 18. This runs counter to the dissents main thesis that a mere administrative
issuance (DENR MO No. 16-05) would be sufficient to cure the lack of signature and
approval by the Secretary in Certificate of Sale No. 1054 covering Lot 823 of the
Piedad Estate.
In any event, the Manotoks now seek the application of RA 9443 to
the Piedad Estate, arguing that for said law to be constitutionally valid, its continued
operation must be interpreted in a manner that does not collide with the equal
protection clause. Considering that the facts in Alonso from which RA 9443 sprung
are similar to those in this case, it is contended that there is no reason to exclude the
Piedad Estate from the ambit of RA 9443.
Justice Carpios dissent concurs with this view, stating that to limit its
application to the Banilad Friar Lands Estate will result in class legislation. RA 9443
supposedly should be extended to lands similarly situated, citing the case of Central
Bank Employees Association, Inc. v. Bangko Sentral ng Pilipinas.[30]
In the aforesaid case, the Court extended the benefits of subsequent
laws exempting all rank-and-file employees of other government financing institutions
(GFIs) from the Salary Standardization Law (SSL) to the rank-and-file employees of
the BSP. We upheld the position of petitioner association that the continued
operation of Section 15 (c), Article II of RA 7653 (the New Central Bank Act), which
provides that the compensation and wage structure of employees whose position fall
under salary grade 19 and below shall be in accordance with the rates prescribed
under RA 6758 (SSL), constitutes invidious discrimination on the 2,994 rank-and-file
employees of the [BSP]. Thus, as regards the exemption from the SSL, we declared
that there were no characteristics peculiar only to the seven GFIs or their rank-and-
file so as to justify the exemption from the SSL which BSP rank-and-file employees
were denied. The distinction made by the law is superficial, arbitrary and not based
on substantial distinctions that make real differences between BSP rank-and-file and
the seven other GFIs.[31]
We are of the opinion that the provisions of RA 9443 may not be applied to the
present case as to cure the lack of signature of the Director of Lands and approval
by the Secretary of Agriculture and Natural Resources in Sale Certificate No. 1054.
The Court has explained the nature of equal protection guarantee in this manner:
The equal protection of the law clause
is against undue favor and individual or class
privilege, as well as hostile discrimination or the
oppression of inequality. It is not intended to
prohibit legislation which is limited either in the
object to which it is directed or by territory within
which it is to operate. It does not demand absolute
equality among residents; it merely requires that all
persons shall be treated alike, under like
circumstances and conditions both as to
privileges conferred and liabilities enforced. The
equal protection clause is not infringed by legislation
which applies only to those persons falling within a
specified class, if it applies alike to all persons within
such class, and reasonable grounds exist for making
a distinction between those who fall within such class
and those who do not.[32] (Emphasis and
underscoring supplied.)
Section 1 of RA 9443 provides:
Section 1. All existing Transfer
Certificates of Title and Reconstituted Certificates
of Title duly issued by the Register of Deeds of
Cebu Province and/or Cebu City covering any portion
of the Banilad Friar Lands Estate, notwithstanding the
lack of signatures and/or approval of the then
Secretary of the Interior (later Secretary of Agriculture
and Natural Resources) and/or the then Chief of the
Bureau of Public Lands (later Director of Public
Lands) in the copies of the duly executed Sale
Certificates and Assignments of Sales
Certificates, as the case may be, now on file with
the Community Environment and Natural
Resources Office (CENRO), Cebu City, are hereby
confirmed and declared as valid titles and the
registered owners recognized as absolute owners
thereof.
This confirmation and declaration of
validity shall in all respects be entitled to like effect
and credit as a decree of registration, binding the land
and quieting the title thereto and shall be conclusive
upon and against all persons, including the national
government and al1 branches thereof; except when,
in a given case involving a certificate of title or
areconstituted certificate of title, there is clear
evidence that such certificate of title or
reconstituted certificate of title was obtained
through fraud, in which case the solicitor general or
his duly designated representative shall institute the
necessary judicial proceeding to cancel the certificate
of title or reconstituted certificate of title as the case
may be, obtained through such fraud.(Emphasis
supplied.)
Without ruling on the issue of violation of equal protection guarantee if the curative
effect of RA 9443 is not made applicable to all titled lands of the Piedad Estate, it is
clear that the Manotoks cannot invoke this law to confirm and validate their alleged
title over Lot 823. It must be stressed that the existence and due issuance of TCT
No. 22813 in the name of Severino Manotok was not established by the evidence on
record. There is likewise no copy of a duly executed certificate of sale on file with the
DENR regional office. In the absence of an existing certificate of title in the name of
the predecessor-in-interest of the Manotoks and certificate of sale on file with the
DENR/CENRO, there is nothing to confirm and validate through the application of RA
9443.
 
Moreover, RA 9443 expressly excludes from its coverage those
cases involving certificates of title which were shown to have been fraudulently or
irregularly issued. As the reconstitution and remand proceedings in these cases
revealed, the Manotoks title to the subject friar land, just like the Barques and
Manahans, is seriously flawed. The Court cannot allow them now to invoke the
benefit of confirmation and validation of ownership of friar lands under duly executed
documents, which they never had in the first place. Strict application by the courts of
the mandatory provisions of the Friar Lands Act is justified by the laudable policy
behind its enactment -- to ensure that the lands acquired by the government would
go to the actual occupants and settlers who were given preference in their
distribution.[33]
The dissent reiterates that the existence of Sale Certificate No. 1054
was clearly and convincingly established by the original of Assignment of Sale
Certificate No. 1054 dated May 4, 1923 between M. Teodoro and Severino Manotok
as assignors and Severino Manotok as assignee (approved by the Director of Lands
on June 23, 1923), which is on file with the LMB, as well as the Deed of Conveyance
No. 29204 secured from the National Archives which is the repository of government
and official documents, the original of Official Receipt No. 675257 dated 20 February
1920 for certified copy of Assignment of Sale Certificate No. 1054 on Lot 823 and the
original of the Provincial Assessors declaration of title in Severino Manotoks name
for tax purposes on August 9, 1933 assessing him beginning with the year 1933. The
dissent further listed some of those alleged sale certificates, assignment deeds and
deeds of conveyance either signed by the Director of Lands only or unsigned by both
Director of Lands and Secretary of Interior/Natural Resources, gathered by the
Manotoks from the LMB. It was stressed that if MO 16-05 is not applied to these
huge tracts of land within and outside Metro Manila, [H]undreds of thousands, if not
millions, of landowners would surely be dispossessed of their lands in these areas, a
blow to the integrity of our Torrens system and the stability of land titles in this
country.
The Court has thoroughly examined the evidence on record and
exhaustively discussed the merits of the Manotoks ownership claim over Lot 823, in
the light of established precedents interpreting the provisions of the Friar Lands Act.
The dissent even accused the majority of mistakenly denigrating the records of the
National Archives which, under R.A. No. 9470 enacted on May 21, 2007, is
mandated to store and preserve any public archive transferred to the National
Archives and tasked with issuing certified true copies or certifications on public
archives and for extracts thereof.
The Friar Lands Act mandated a system of recording all sale
contracts to be implemented by the Director of Lands, which has come to be known
as the Friar Lands Sales Registry.
SEC. 6. The title, deeds and
instruments of conveyance pertaining to the lands in
each province, when executed and delivered by said
grantors to the Government and placed in the keeping
of the Chief of the Bureau of Public Lands, as above
provided, shall be by him transmitted to the register of
deeds of each province in which any part of said
lands lies, for registration in accordance with law. But
before transmitting the title, deeds, and
instruments of conveyance in this section
mentioned to the register of deeds of each
province for registration, the Chief of the Bureau
of Public Lands shall record all such deeds and
instruments at length in one or more books to be
provided by him for that purpose and retained in
the Bureau of Public Lands, when duly certified by
him shall be received in all courts of the Philippine
Islands as sufficient evidence of the contents of the
instrument so recorded whenever it is not practicable
to produce the originals in court. (Section 1, Act No.
1287).
It is thus the primary duty of the Chief of the Bureau of Public Lands
to record all these deeds and instruments in sales registry books which shall be
retained in the Bureau of Public Lands. Unfortunately, the LMB failed to produce the
sales registry book in court, which could have clearly shown the names of claimants,
the particular lots and areas applied for, the sale certificates issued and other
pertinent information on the sale of friar lands within the Piedad Estate. Witness
Teresita J. Reyes, a retired Assistant Chief of the Records Management Division
(RMD), LMB who was presented by the Manahans, testified that when the LMB was
decentralized, the sales registry books pertaining to friar lands were supposedly
turned over to the regional offices. These consisted of copies of the appropriate
pages of the sales registry books in the LMB RMD main office which has an
inventory of lots subject of deeds of conveyance and sales certificates. However,
Reyes said that the sales registry book itself is no longer with the RMD. On the other
hand, the alleged affidavit of Secretary Defensor dated November 11, 2010 states
that MO 16-05 was intended to address situations when deeds of conveyance lacked
the signature of the Secretary of Agriculture and Commerce, or such deeds or
records from which the Secretarys signature or approval may be verified were lost or
unavailable.
Whether the friar lands registry book is still available in the LMB or
properly turned over to the regional offices remains unclear. With the statutorily
prescribed record-keeping of sales of friar lands apparently in disarray, it behooves
on the courts to be more judicious in settling conflicting claims over friar lands. Titles
with serious flaws must still be carefully scrutinized in each case. Thus, we find that
the approach in Alonso remains as the more rational and prudent course than the
wholesale ratification introduced by MO 16-05.
The prospect of litigants losing friar lands they have possessed for
years or decades had never deterred courts from upholding the stringent
requirements of the law for a valid acquisition of these lands. The courts duty is to
apply the law. Petitioners concern for other landowners which may be similarly
affected by our ruling is, without doubt, a legitimate one. The remedy though lies
elsewhere -- in the legislature, as what R.A. 9443 sought to rectify.
 WHEREFORE, the present motions for reconsideration are all hereby
DENIED withFINALITY.The motions for oral arguments and further reception of
evidence are likewise DENIED..
SO ORDERED.