G. R. No.
180989               February 7, 2012 Philippines; and, second, to contribute to accelerating
GUALBERTO J. DELA LLANA, Petitioner,  government operations by curbing undue bureaucratic
vs.
THE CHAIRPERSON, COMMISSION ON AUDIT,
THE EXECUTIVE SECRETARY and THE
NATIONAL TREASURER, Respondents.
DECISION
SERENO, J.:
This is a Petition for Certiorari under Rule 65 of the
Rules of Court with a prayer for the issuance of a
temporary restraining order pursuant to Section 7,
Article IX-D of the 1987 Constitution, seeking to annul
and set aside Commission on Audit (COA) Circular
No. 89-299, which lifted its system of pre-audit of
government financial transactions.
Statement of the Facts and the Case
On 26 October 1982, the COA issued Circular No. 82-
195, lifting the system of pre-audit of government
financial transactions, albeit with certain exceptions.
The circular affirmed the state policy that all resources
of the government shall be managed, expended or
utilized in accordance with law and regulations, and
safeguarded against loss or wastage through illegal or
improper disposition, with a view to ensuring
efficiency, economy and effectiveness in the
operations of government. Further, the circular
emphasized that the responsibility to ensure faithful
adherence to the policy rested directly with the chief
or head of the government agency concerned. The
circular was also designed to further facilitate or
expedite government transactions without impairing
their integrity.
After the change in administration due to the February
1986 revolution, grave irregularities and anomalies in
the government’s financial transactions were
uncovered. Hence, on 31 March 1986, the COA
issued Circular No. 86-257, which reinstated the pre-
audit of selected government transactions. The
selective pre-audit was perceived to be an effective,
although temporary, remedy against the said
anomalies.
With the normalization of the political system and the
stabilization of government operations, the COA saw
it fit to issue Circular No. 89-299, which again lifted
the pre-audit of government transactions of national
government agencies (NGAs) and government-owned
or -controlled corporations (GOCCs). The rationale for
the circular was, first, to reaffirm the concept that
fiscal responsibility resides in management as
embodied in the Government Auditing Code of the
the delivery of public services and improving
red tape and ensuring facilitation of government
transactions, while continuing to preserve and protect
the integrity of these transactions. Concomitant to the
lifting of the pre-audit of government transactions of
NGAs and GOCCs, Circular No. 89-299 mandated the
installation, implementation and monitoring of an
adequate internal control system, which would be the
direct responsibility of the government agency head.
Circular No. 89-299 further provided that the pre-audit
activities retained by the COA as therein outlined shall
no longer be a pre-requisite to the implementation or
prosecution of projects and the payment of claims.
The COA aimed to henceforth focus its efforts on the
post-audit of financial accounts and transactions, as
well as on the assessment and evaluation of the
adequacy and effectivity of the agency’s fiscal control
process. However, the circular did not include the
financial transactions of local government units
(LGUs) in its coverage.
The COA later issued Circular No. 94-006 on 17
February 1994 and Circular No. 95-006 on 18 May
1995. Both circulars clarified and expanded the total
lifting of pre-audit activities on all financial
transactions of NGAs, GOCCs, and LGUs. The
remaining audit activities performed by COA auditors
would no longer be pre-requisites to the
implementation or prosecution of projects, perfection
of contracts, payment of claims, and/or approval of
applications filed with the agencies.
1 
It also issued COA Circular No. 89-299, as amended
by Circular No. 89-299A, which in Section 3.2
provides:
3.2 Whenever circumstances warrant, however, such
as where the internal control system of a government
agency is inadequate, This Commission may
reinstitute pre-audit or adopt such other control
measures, including temporary or special pre-audit,
as are necessary and appropriate to protect the funds
and property of the agency.
On 18 May 2009, COA issued Circular No. 2009-002,
which reinstituted the selective pre-audit of
government transactions in view of the rising incidents
of irregular, illegal, wasteful and anomalous
disbursements of huge amounts of public funds and
disposals of public property. Two years later, or on 22
July 2011, COA issued Circular No. 2011-002, which
lifted the pre-audit of government transactions
implemented by Circular No. 2009-002. In its
assessment, subsequent developments had shown
heightened vigilance of government agencies in
safeguarding their resources.
In the interregnum, on 3 May 2006, petitioner dela
Llana wrote to the COA regarding the
recommendation of the Senate Committee on
Agriculture and Food that the Department of
Agriculture set up an internal pre-audit service. On 18
July 2006, the COA replied to petitioner, informing him
of the prior issuance of Circular No. 89-299. The 18
2 
July 2006 reply of the COA further emphasized the
required observance of Administrative Order No. 278
dated 8 June 1992, which directed the strengthening
of internal control systems of government offices
through the installation of an internal audit service
(IAS).
On 15 January 2008, petitioner filed this Petition for
Certiorari under Rule 65. He alleges that the pre-audit
duty on the part of the COA cannot be lifted by a mere
circular, considering that pre-audit is a constitutional
mandate enshrined in Section 2 of Article IX-D of the
1987 Constitution. He further claims that, because of
3 
the lack of pre-audit by COA, serious irregularities in
government transactions have been committed, such
as the ₱728-million fertilizer fund scam, irregularities
in the ₱550-million call center laboratory project of the
Commission on Higher Education, and many others.
On 22 February 2008, public respondents filed their
Comment on the Petition. They argue therein that the
4  contravention of the law or the Constitution. Petitioner
Petition must be dismissed, as it is not proper for a
petition for certiorari, considering that (1) there is no
allegation showing that the COA exercised judicial or
quasi-judicial functions when it promulgated Circular
No. 89-299; and (2) there is no convincing explanation
showing how the promulgation of the circular was
done with grave abuse of discretion. Further, the
Petition is allegedly defective in form, in that there is
no discussion of material dates as to when petitioner
received a copy of the circular; there is no factual
background of the case; and petitioner failed to attach
a certified true copy of the circular. In any case, public
respondents aver that the circular is valid, as the COA
has the power under the 1987 Constitution to
promulgate it.
On 9 May 2008, petitioner filed his Reply to the
5  required in certiorari proceedings. Conversely,
Comment.
On 17 June 2008, this Court resolved to require the
parties to submit their respective memoranda. On 12
September 2008, public respondents submitted their
Memorandum. On 15 September 2008, Amethya dela
6  Constitution or by law, any decision, order, or ruling of
Llana-Koval, daughter of petitioner, manifested to the
Court his demise on 8 July 2008 and moved that she
be allowed to continue with the Petition and substitute
for him. Her motion for substitution was granted by
this Court in a Resolution dated 7 October 2008. On 5
January 2009, petitioner, substituted by his
daughter, filed his Memorandum.
7  8 
The main issue for our resolution in this Petition is
whether or not petitioner is entitled to the
extraordinary writ of certiorari.
Procedural Issues
Technical Defects of the Petition
Public respondents correctly allege that petitioner
failed to attach a certified true copy of the assailed
Order, and that the Petition lacked a statement of
material dates. In view, however, of the serious
matters dealt with in this Petition, this Court opts to
tackle the merits thereof with least regard to
technicalities. A perusal of the Petition shows that the
factual background of the case, although brief, has
been sufficiently alleged by petitioner.
Standing
This Petition has been filed as a taxpayer’s suit.
A taxpayer is deemed to have the standing to raise a
constitutional issue when it is established that public
funds from taxation have been disbursed in alleged
9 
claims that the issuance of Circular No. 89-299 has
led to the dissipation of public funds through
numerous irregularities in government financial
transactions. These transactions have allegedly been
left unchecked by the lifting of the pre-audit performed
by COA, which, petitioner argues, is its Constitutional
duty. Thus, petitioner has standing to file this suit as a
taxpayer, since he would be adversely affected by the
illegal use of public money.
Propriety of Certiorari
Public respondents aver that a petition for certiorari is
not proper in this case, as there is no indication that
the writ is directed against a tribunal, a board, or an
officer exercising judicial or quasi-judicial functions, as
10 
petitioner for his part claims that certiorari is proper
under Section 7, Article IX-A of the 1987 Constitution,
which provides in part:
Section 7. x x x. Unless otherwise provided by this
each Commission may be brought to the Supreme
Court on certiorari by the aggrieved party within thirty
days from receipt of a copy thereof.
Petitioner is correct in that decisions and orders of the
COA are reviewable by the court via a petition for
certiorari. However, these refer to decisions and
orders which were rendered by the COA in its quasi-
judicial capacity. Circular No. 89-299 was
promulgated by the COA under its quasi-legislative or
rule-making powers. Hence, Circular No. 89-299 is
not reviewable by certiorari.
Neither is a petition for prohibition appropriate in this
case. A petition for prohibition is filed against any
tribunal, corporation, board, or person — whether
exercising judicial, quasi-judicial, or ministerial
functions — who has acted without or in excess of
jurisdiction or with grave abuse of discretion, and the
petitioner prays that judgment be rendered,
commanding the respondent to desist from further
proceeding in the action or matter specified in the
petition. However, prohibition only lies against judicial
11 
or ministerial functions, but not against legislative or
quasi-legislative functions. 12 
Nonetheless, this Court has in the past seen fit to step
in and resolve petitions despite their being the subject
of an improper remedy, in view of the public importa
nce of the issues raised therein (transcedental
importance). In this case, petitioner avers that the
13 
conduct of pre-audit by the COA could have
prevented the occurrence of the numerous alleged
irregularities in government transactions that involved
substantial amounts of public money. This is a serious
allegation of a grave deficiency in observing a
constitutional duty if proven correct.
This Court can use its authority to set aside errors of
practice or technicalities of procedure, including the
aforementioned technical defects of the Petition, and
resolve the merits of a case with such serious
allegations of constitutional breach. Rules of
procedure were promulgated to provide guidelines for
the orderly administration of justice, not to shackle the
hand that dispenses it. 14 
Substantive Issues
The 1987 Constitution has made the COA the
guardian of public funds, vesting it with broad powers
over all accounts pertaining to government revenues
and expenditures and the use of public funds and
property, including the exclusive authority to define
the scope of its audit and examination; to establish
the techniques and methods for the review; and to
promulgate accounting and auditing rules and
regulations. Its exercise of its general audit power is
15 
among the constitutional mechanisms that give life to
the check and balance system inherent in our form of
government. 16 
Petitioner claims that the constitutional duty of COA
includes the duty to conduct pre-audit.  A pre-audit is
1âwphi1
an examination of financial transactions before their
consumption or payment. It seeks to determine
17 
whether the following conditions are present: (1) the
proposed expenditure complies with an appropriation
law or other specific statutory authority; (2) sufficient
funds are available for the purpose; (3) the proposed
expenditure is not unreasonable or extravagant, and
the unexpended balance of appropriations to which it
will be charged is sufficient to cover the entire amount
of the expenditure; and (4) the transaction is approved
by the proper authority and the claim is duly
supported by authentic underlying evidence. It could,
18 
among others, identify government agency
transactions that are suspicious on their face prior to
their implementation and prior to the disbursement of
funds.
Petitioner anchors his argument on Section 2 of
Article IX-D of the 1987 Constitution, which reads as
follows:
Section 2.
1. The Commission on Audit shall have the
power, authority, and duty to examine, audit,
and settle all accounts pertaining to the
revenue and receipts of, and expenditures or
uses of funds and property, owned or held in
trust by, or pertaining to, the Government, or
any of its subdivisions, agencies, or
instrumentalities, including government-owned
or controlled corporations with original
charters, and on a post- audit basis:
a. constitutional bodies, commissions
and offices that have been granted
fiscal autonomy under this
Constitution;
b. autonomous state colleges and
universities;
c. other government-owned or
controlled corporations and their
subsidiaries; and
d. such non-governmental entities
receiving subsidy or equity, directly or
indirectly, from or through the
Government, which are required by
law or the granting institution to submit
to such audit as a condition of subsidy
or equity. However, where the internal
control system of the audited agencies
is inadequate, the Commission may
adopt such measures, including
temporary or special pre-audit, as are
 necessary and appropriate to correct WE CONCUR:
the deficiencies. It shall keep the
general accounts of the Government
and, for such period as may be
provided by law, preserve the
vouchers and other supporting papers
pertaining thereto.

2. The Commission shall have exclusive

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

He claims that under the first paragraph quoted

above, government transactions must undergo a pre-
audit, which is a COA duty that cannot be lifted by a
mere circular.

We find for public respondents.

Petitioner’s allegations find no support in the

aforequoted Constitutional provision. There is nothing
in the said provision that requires the COA to conduct
a pre-audit of all government transactions and for all
government agencies. The only clear reference to a
pre-audit requirement is found in Section 2, paragraph
1, which provides that a post-audit is mandated for
certain government or private entities with state
subsidy or equity and only when the internal control
system of an audited entity is inadequate. In such a
situation, the COA may adopt measures, including a
temporary or special pre-audit, to correct the
deficiencies.

Hence, the conduct of a pre-audit is not a mandatory

duty that this Court may compel the COA to perform.
This discretion on its part is in line with the
constitutional pronouncement that the COA has the
exclusive authority to define the scope of its audit and
examination. When the language of the law is clear
and explicit, there is no room for interpretation, only
application. Neither can the scope of the provision be
19 

unduly enlarged by this Court.

WHEREFORE, premises considered, the Petition is

DISMISSED.

SO ORDERED.

MARIA LOURDES P. A. SERENO

Associate Justice

G.R. No. 185053               February 15, 2012
EUSTAQUIO CANDARI, Jr., RENE ESPULGAR,
EDITHA DACIA, GONZALO PALMA, Jr., ANDRES
DE LEON, ARNOLD BAJAR, PETER BAYBAYAN,
EUGENIO TABURNO, MATEO ALOJADO,
ANSELMO LIGTAS, FLORITA BULANGIS,
ADELAIDA PENIG, ATTY. LEVI SALIGUMBA,
EDITHA JIMENA, CYNTHIA BELARMA and
ANTONIA BANTING, Petitioners,  assuming office and exercising the powers conferred
vs.
ROLAND DONASCO, LIDIO VILLA, RENE GAID,
PEPITO GUMBAN, OSCAR ANDRADA, ROMEO
CASTONES, ROSEMARY CORDOVA, GLORIA
MATULLANO, PONCIANO ABALOS, RESTITUTO
BATIANCILLA, Respondents.
DECISION
SERENO, J.:
Respondents were members of the board of directors
of Dolefil Agrarian Reform Beneficiaries Cooperative,
Incorporated (DARBCI). They were elected into office
on 12 July 1998 and their terms should have ended
on 12 July 2000. However, they continued to occupy
their positions in a holdover capacity until the
controversy in this case arose.
On 23 November 2005, respondents instituted Civil
Case No. 471-05 at Branch 39 of the Regional Trial
Court (RTC) of Polomolok, South Cotabato to enjoin
petitioners from holding a special general assembly
(GA) and an election of officers. Respondents alleged
that the process by which the GA had been called
was not in accordance with Sec. 35 of Republic Act
No. 6938, otherwise known as the Cooperative Code
of the Philippines.
On 24 November 2005, the RTC issued a 72-hour
Temporary Restraining Order (TRO) to restrain
petitioners from holding the GA. 1 
Despite the TRO, but without the participation of
petitioners, 5,910 members – or 78.68% of the total
membership of the cooperative – went through with
the GA on 26 November 2005 and elected petitioners
in absentia as new members of the board.
On 1 December 2005, the TRO was extended to its
full term of twenty (20) days from issuance. 2 
The trial court considered the evidence adduced
during the hearing on the application for a writ of
preliminary injunction. In addition, it considered the
supervening events that occurred since the issuance
of the TRO. These events were the holding of the GA
on 26 November 2005 and the election of new
officers. Thus, on 8 December 2005, the RTC, finding
the provisional remedy of preliminary injunction to be
moot, issued a Resolution denying respondents’
3 
prayer for the issuance of a writ of preliminary
injunction and quashing the TRO previously issued.
Thereafter, respondents filed an Amended
Complaint seeking to enjoin petitioners from
4 
on directors of DARBCI.
On 29 November 2006, the RTC issued an Omnibus
Order dismissing the Amended Complaint, ruling as
5 
follows:
Gauging from these allegations that plaintiffs were
incumbent BOD members of DARBCI and did not
consent or sanctioned (sic) the 26 November 2005
BOD election, which was conducted despite the
existing TRO, do not confer a right unto them that
ought to be respected by defendants (sic); neither the
Tripartite Agreement among Board I, II, and III help
their cause. The supervening factors, i.e. the General
Assembly Meeting and the Election of Officers by the
overriding majority members of DARBCI then
occurring (sic) rendered these averments insignificant.
Resultantly, no delict or wrong can be imputed to the
latter owing to said factors which were duly
established during the hearings and found by the
Honorable Court.
x x x           x x x          x x x
In sum, the Amended Complaint and the evidence
thus far adduced disclose that plaintiffs have neither
legal right nor the requisite personality to file an action
for nullification of the assailed DARBCI General
Assembly and Election. Hence, their aforesaid
Complaint is doomed for dismissal for failing to state a
cause of action. The Court must hold, as it holds now,
that the present action cannot pass muster on sheer
dictates of law and equity. (Emphasis supplied.)
Respondents thereafter filed a Petition for
Certiorari with the Court of Appeals (CA) docketed as
6 
CA-G.R. SP No. 01851. They contended that the trial
court committed grave abuse of discretion when it
considered the evidence adduced in the hearing for
the issuance of a writ of preliminary injunction. They
further alleged that the Amended Complaint clearly
stated a cause of action based on their rights as the
then incumbent officers of DARBCI.
The CA rendered the assailed Decision, which 7 
remanded the case to the RTC for further
proceedings. In allowing the Petition, the appellate
court stated that the "lingering organization and
leadership crisis in the DARBCI undermines the
cooperative’s viability to pursue its objectives." It
considered the case to be one that might become an
impediment to the State’s land reform program in
Polomolok. Thus, it took cognizance of the case in the
interest of public welfare and the advancement of
public policy.
The CA found that respondents’ Amended Complaint
contained sufficient allegations that constituted a
cause of action against herein petitioners. Thus, it
held that the RTC gravely abused its discretion when
the latter dismissed the case for lack of cause of
action.
Petitioners moved for reconsideration, but this motion
was subsequently denied. 8 
Petitioners now come before this Court, alleging that
the CA erred in allowing respondents’ Petition for
Certiorari despite being the wrong remedy. They also
insist that the CA erred in ruling that a cause of action
existed despite the fact that the issue had become
moot. They allege that the trial court was not limited to
the allegations of the Complaint, but it may also
consider the evidence presented during the hearing
for the issuance of the writ of preliminary injunction.
Finally, they contend that the CA misappreciated the
facts of the case in stating that the issue was with
regard to the implementation of the agrarian reform
program, when it was merely the legality of the
elections of the new board of directors.
Respondents, in their Comment, assert that their
9 
Amended Complaint stated a cause of action, and
that the trial court should have conducted a trial on
the merits instead of dismissing the Amended
Complaint, especially when petitioners failed to
present proof that a GA and an election of officers
were held on 26 November 2005. Finally, respondents
contend that the RTC’s act of dismissing the case was
in grave abuse of discretion, reviewable via their
Petition for Certiorari.
On 8 July 2009, petitioners filed a Reply to
respondents’ Comment. They informed this Court
10 
that two more GA meetings had been held.
During the 20 December 2008 meeting, the GA
ratified the Amended Articles of Cooperation and the
Amended By-Laws of the cooperative. A Certificate of
Registration to that effect was issued by Cooperative
Development Authority (CDA) on 9 February 2009. 11  (2/3) vote of all members of the general
Article X, Sec. 1 of the Amended By-Laws provides:
The incumbent members of the Board of Directors
and various committees who were elected into office
during the November 25, 2005 special elections shall
continue to serve the cooperative until their
successors have been elected and qualified into
office. They shall be deemed to have served for one
term only;
The Court notes that the 25 November 2005 GA
meeting referred to by the by-laws was actually held
on 26 November 2005. However, considering the
clear language and intent of the provision, the Court
deems the date contained in the Amended By-laws to
be a mere typographical error.
On 29 March 2009, the second meeting was held
whereby a new set of officers was elected by the GA.
In Joya v. Presidential Commission on Good
Government, we said:
12 
For a court to exercise its power of adjudication, there
must be an actual case or controversy — one which
involves a conflict of legal rights, an assertion of
opposite legal claims susceptible of judicial resolution;
the case must not be moot or academic or based on
extra-legal or other similar considerations not
cognizable by a court of justice. A case becomes
moot and academic when its purpose has become
stale, such as the case before us.
Sec. 34 of the Cooperative Code states that the
highest policy-making body of the cooperative is the
GA, to wit:
The general assembly shall be the highest policy-
making body of the cooperative and shall exercise
such powers as are stated in this Code, in the articles
of cooperation and in the by-laws of the cooperative.
The general assembly shall have the following
exclusive powers which cannot be delegated:
(1) To determine and approve amendments to
the articles of cooperation and by-laws;
(2) To elect or appoint the members of the
board of directors, and to remove them for
cause;
(3) To approve developmental plans of the
cooperative; and
(4) Such other matters requiring a two-thirds
assembly, as provided in this Code.
In the present case, the GA has clearly expressed its
intentions through the subsequent amendment of
DARBCI’s Articles of Cooperation and By-Laws and
through the election of new officers.
In Kilusang Bayan sa Paglilingkod ng mga Magtitinda
ng Bagong Pamilihang Bayan ng Muntinlupa, Inc.
(KBMBPM) v. Dominguez, we denied the Petition on
13 
when they filed the case with the RTC, as their terms
had ended on 12 July 2000. Undoubtedly, it would be
a futile attempt and a waste of resources to remand
the case to the trial court. There would be nothing left
for the trial court to execute, should respondents be
successful in their Petition.

the ground that the issue had become moot and
academic considering that the GA of KBMPM already
elected a new set of officers, even if it was found that
the right to due process of petitioners therein were
clearly violated, to wit:
In the instant case, there was no notice of a hearing
on the alleged petition of the general membership of
the KBMBPM; there was, as well, not even a
semblance of a hearing. The Order was based solely
on an alleged petition by the general membership of
the KBMBPM. There was then a clear denial of due
process. It is most unfortunate that it was done after
democracy was restored through the peaceful people
revolt at EDSA and the overwhelming ratification of a
new Constitution thereafter, which preserves for the
generations to come the gains of that historic struggle
which earned for this Republic universal admiration.
If there were genuine grievances against petitioners,
the affected members should have timely raise (sic)
these issues in the annual general assembly or in a
special general assembly. Or, if such a remedy would
be futile for some reason or another, judicial recourse
was available.
Be that as it may, petitioners cannot, however, be
restored to their positions.  Their terms expired in
1âwphi1
It is clear from the Omnibus Order of the RTC that it
dismissed the Amended Complaint because the
supervening events had rendered the case moot
through the voluntary act of the GA – as the highest
policy-making body of the cooperative – to declare the
contested positions vacant and to elect a new set of
officers. As a consequence, respondents no longer
had the personality or the cause of action to maintain
the case against petitioners herein. Thus, the RTC
committed no error when it dismissed the case.
WHEREFORE, in view of the foregoing, the Petition is
hereby GRANTED. The assailed Court of Appeals
Decision in CA-G.R. SP No. 01851 dated 6 August
2008 and the Resolution dated 14 October 2008 are
hereby REVERSED and SET ASIDE. The Order
dated 21 November 2006 issued by Branch 39 of the
Regional Trial Court of Polomolok, South Cotabato is
hereby AFFIRMED and REINSTATED.
SO ORDERED.
MARIA LOURDES P. A. SERENO
Associate Justice
WE CONCUR:

1989, thereby rendering their prayer for reinstatement

moot and academic. Pursuant to Section 13 of the by-
laws, during the election at the first annual general
assembly after registration, one-half plus one (4) of
the directors obtaining the highest number of votes
shall serve for two years, and the remaining directors
(3) for one year; thereafter, all shall be elected for a
term of two years. Hence, in 1988, when the board
was disbanded, there was a number of directors
whose terms would have expired the next year (1989)
and a number whose terms would have expired two
years after (1990). Reversion to the status quo
preceding October 1988 would not be feasible in view
of this turn of events. Besides, elections were held in
1990 and 1991. The affairs of the cooperative are
presently being managed by a new board of directors
duly elected in accordance with the cooperative's by-
laws.

In the present case, the replacement of respondents

with other members of the board was willed by the
GA. It is also important to note that respondents were
only occupying their positions in a holdover capacity

G.R. No. 193978               February 28, 2012
JELBERT B. GALICTO, Petitioner, 
vs.
H.E. PRESIDENT BENIGNO SIMEON C. AQUINO
III, in his capacity as President of the Republic of
the Philippines; ATTY. PAQUITO N. OCHOA, JR.,
in his capacity as Executive Secretary; and
FLORENCIO B. ABAD, in his capacity as Secretary
of the Department of Budget and
Management, Respondents.
RESOLUTION
BRION, J.:
Before us is a Petition for Certiorari and Prohibition
with Application for Writ of Preliminary Injunction
and/or Temporary Restraining Order, seeking to
1 
nullify and enjoin the implementation of Executive
Order No. (EO) 7 issued by the Office of the President
on September 8, 2010. Petitioner Jelbert B. Galicto
asserts that EO 7 is unconstitutional for having been
issued beyond the powers of the President and for
being in breach of existing laws.
The petitioner is a Filipino citizen and an employee of
the Philippine Health Insurance Corporation
(PhilHealth). He is currently holding the position of
2 
Court Attorney IV and is assigned at the PhilHealth
Regional Office CARAGA. 3 
Respondent Benigno Simeon C. Aquino III is the
President of the Republic of the Philippines (Pres.
Aquino); he issued EO 7 and has the duty of
implementing it. Respondent Paquito N. Ochoa, Jr. is
the incumbent Executive Secretary and, as the alter
ego of Pres. Aquino, is tasked with the
implementation of EO 7. Respondent Florencio B.
Abad is the incumbent Secretary of the Department of
Budget and Management (DBM) charged with the
implementation of EO 7. 4 
The Antecedent Facts
On July 26, 2010, Pres. Aquino made public in his first
State of the Nation Address the alleged excessive
allowances, bonuses and other benefits of Officers
and Members of the Board of Directors of the Manila
Waterworks and Sewerage System – a government
owned and controlled corporation (GOCC) which has
been unable to meet its standing
obligations. Subsequently, the Senate of the
5 
Philippines (Senate), through the Senate Committee
on Government Corporations and Public Enterprises,
conducted an inquiry in aid of legislation on the
reported excessive salaries, allowances, and other
benefits of GOCCs and government financial
institutions (GFIs). 6 
Based on its findings that "officials and governing
boards of various [GOCCs] and [GFIs] x x x have
been granting themselves unwarranted allowances,
bonuses, incentives, stock options, and other benefits
[as well as other] irregular and abusive practices," the
7 
Senate issued Senate Resolution No. 17 "urging the
President to order the immediate suspension of the
unusually large and apparently excessive allowances,
bonuses, incentives and other perks of members of
the governing boards of [GOCCs] and [GFIs]." 8 
Heeding the call of Congress, Pres. Aquino, on
September 8, 2010, issued EO 7, entitled "Directing
the Rationalization of the Compensation and Position
Classification System in the [GOCCs] and [GFIs], and
for Other Purposes." EO 7 provided for the guiding
principles and framework to establish a fixed
compensation and position classification system for
GOCCs and GFIs. A Task Force was also created to
review all remunerations of GOCC and GFI
employees and officers, while GOCCs and GFIs were
ordered to submit to the Task Force information
regarding their compensation. Finally, EO 7 ordered
(1) a moratorium on the increases in the salaries and
other forms of compensation, except salary
adjustments under EO 8011 and EO 900, of all GOCC
and GFI employees for an indefinite period to be set
by the President, and (2) a suspension of all
9 
allowances, bonuses and incentives of members of
the Board of Directors/Trustees until December 31,
2010.10 
EO 7 was published on September 10, 2010. It took
11 
effect on September 25, 2010 and precluded the
Board of Directors, Trustees and/or Officers of
GOCCs from granting and releasing bonuses and
allowances to members of the board of directors, and
from increasing salary rates of and granting new or
additional benefits and allowances to their employees.
The Petition
The petitioner claims that as a PhilHealth employee,
he is affected by the implementation of EO 7, which
was issued with grave abuse of discretion amounting
to lack or excess of jurisdiction, based on the
following arguments:
I.
EXECUTIVE ORDER NO. 7 IS NULL AND
VOID FOR LACK OF LEGAL BASIS DUE TO
THE FOLLOWING GROUNDS:
A. P.D. 985 IS NOT APPLICABLE AS
BASIS FOR EXECUTIVE ORDER
NO. 7 BECAUSE THE
GOVERNMENT-OWNED AND
CONTROLLED CORPORATIONS
WERE SUBSEQUENTLY GRANTED
THE POWER TO FIX
COMPENSATION LONG AFTER
SUCH POWER HAS BEEN
REVOKED BY P.D. 1597 AND R.A.
6758.
B. THE GOVERNMENT-OWNED
AND CONTROLLED
CORPORATIONS DO NOT NEED TO
HAVE ITS COMPENSATION PLANS,
RATES AND POLICIES REVIEWED
BY THE DBM AND APPROVED BY
THE PRESIDENT BECAUSE P.D.
1597 REQUIRES ONLY THE GOCCs
TO REPORT TO THE OFFICE TO
THE PRESIDENT THEIR
COMPENSATION PLANS AND
RATES BUT THE SAME DOES NOT
GIVE THE PRESIDENT THE POWER
OF CONTROL OVER THE FISCAL
POWER OF THE GOCCs.
C. J.R. NO. 4, [SERIES] 2009 IS NOT
APPLICABLE AS LEGAL BASIS
BECAUSE IT HAD NOT RIPENED
INTO X X X LAW, THE SAME NOT
HAVING BEEN PUBLISHED.
D. ASSUMING ARGUENDO THAT
J.R. NO. 1, S. 2004 (sic) AND J.R. 4,
S. 2009 ARE VALID, STILL THEY
ARE NOT APPLICABLE AS LEGAL
BASIS BECAUSE THEY ARE NOT
LAWS WHICH MAY VALIDLY
DELEGATE POWER TO THE
PRESIDENT TO SUSPEND THE
POWER OF THE BOARD TO FIX
COMPENSATION.
II.
EXECUTIVE ORDER NO. 7 IS INVALID FOR
DIVESTING THE BOARD OF DIRECTORS
OF [THE] GOCCS OF THEIR POWER TO
FIX THE COMPENSATION, A POWER
WHICH IS A LEGISLATIVE GRANT AND
WHICH COULD NOT BE REVOKED OR
MODIFIED BY AN EXECUTIVE FIAT.
III.
EXECUTIVE ORDER NO. 7 IS BY
SUBSTANCE A LAW, WHICH IS A
DEROGATION OF CONGRESSIONAL
PREROGATIVE AND IS THEREFORE
UNCONSTITUTIONAL.
IV.
THE ACTS OF SUSPENDING AND
IMPOSING MORATORIUM ARE ULTRA
VIRES ACTS BECAUSE J.R. NO. 4 DOES
NOT EXPRESSLY AUTHORIZE THE
PRESIDENT TO EXERCISE SUCH
POWERS.
V.
EXECUTIVE ORDER NO. 7 IS AN INVALID
ISSUANCE BECAUSE IT HAS NO
SUFFICIENT STANDARDS AND IS
THEREFORE ARBITRARY,
UNREASONABLE AND A VIOLATION OF
SUBSTANTIVE DUE PROCESS.
VI.
EXECUTIVE ORDER NO. 7 INVOLVES THE
DETERMINATION AND DISCRETION AS TO
WHAT THE LAW SHALL BE AND IS
THEREFORE INVALID FOR ITS
USURPATION OF LEGISLATIVE POWER.
VII.
CONSISTENT WITH THE DECISION OF
THE SUPREME COURT IN PIMENTEL V.
AGUIRRE CASE, EXECUTIVE ORDER NO. 7
IS ONLY DIRECTORY AND NOT
MANDATORY. 12 
The Case for the Respondents
On December 13, 2010, the respondents filed their
Comment. They pointed out the following procedural
defects as grounds for the petition’s dismissal: (1) the
petitioner lacks locus standi; (2) the petitioner failed to
attach a board resolution or secretary’s certificate
authorizing him to question EO 7 in behalf of
PhilHealth; (3) the petitioner’s signature does not
indicate his PTR Number, Mandatory Continuing
Legal Education (MCLE) Compliance Number and
Integrated Bar of the Philippines (IBP) Number; (4)
the jurat of the Verification and Certification of Non-
Forum Shopping failed to indicate a valid identification
card as provided under A.M. No. 02-8-13-SC; (5) the
President should be dropped as a party respondent
as he is immune from suit; and (6) certiorari is not
applicable to this case.13 
The respondents also raised substantive defenses to
support the validity of EO 7. They claim that the
President exercises control over the governing boards
of the GOCCs and GFIs; thus, he can fix their
compensation packages. In addition, EO 7 was issued
in accordance with law for the purpose of controlling
the grant of excessive salaries, allowances, incentives
and other benefits to GOCC and GFI employees.
They also advocate the validity of Joint Resolution
(J.R.) No. 4, which they point to as the authority for
issuing EO 7. 14 
Meanwhile, on June 6, 2011, Congress enacted
Republic Act (R.A.) No. 10149, otherwise known as
15 
the "GOCC Governance Act of 2011." Section 11 of
RA 10149 expressly authorizes the President to fix
the compensation framework of GOCCs and GFIs.
The Court’s Ruling
We resolve to DISMISS the petition for its patent
formal and procedural infirmities, and for having been
mooted by subsequent events.
A. Certiorari is not the proper remedy.
Under the Rules of Court, petitions for Certiorari and
Prohibition are availed of to question judicial, quasi-
judicial and mandatory acts. Since the issuance of an
EO is not judicial, quasi-judicial or a mandatory act, a
petition for certiorari and prohibition is an incorrect
remedy; instead a petition for declaratory relief under
Rule 63 of the Rules of Court, filed with the Regional
Trial Court (RTC), is the proper recourse to assail the
validity of EO 7:
Section 1. Who may file petition. Any person
interested under a deed, will, contract or other written
instrument, 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. (Emphases ours.)
Liga ng mga Barangay National v. City Mayor of
Manila is a case in point. In Liga, we dismissed the
16  17 
petition for certiorari to set aside an EO issued by a
City Mayor and insisted that a petition for declaratory
relief should have been filed with the RTC. We
painstakingly ruled:
After due deliberation on the pleadings filed, we
resolve to dismiss this petition for certiorari.
First, the respondents neither acted in any judicial or
quasi-judicial capacity nor arrogated unto themselves
any judicial or quasi-judicial prerogatives. A petition
for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure is a special civil action that may be invoked
only against a tribunal, board, or officer exercising
judicial or quasi-judicial functions.
Section 1, Rule 65 of the 1997 Rules of Civil
Procedure provides:
SECTION 1. Petition for certiorari. — When any
tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its
or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there
is no appeal, or any plain, speedy, and adequate
remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and
justice may require.
Elsewise stated, for a writ of certiorari to issue, the
following requisites must concur: (1) it must be
directed against a tribunal, board, or officer exercising
judicial or quasi-judicial functions; (2) the tribunal,
board, or officer must have acted without or in excess
of jurisdiction or with grave abuse of discretion
amounting [to] lack or excess of jurisdiction; and (3)
there is no appeal or any plain, speedy, and adequate
remedy in the ordinary course of law.
A respondent is said to be
exercising judicial function where he has the power to
determine what the law is and what the legal rights of
the parties are, and then undertakes to determine
these questions and adjudicate upon the rights of the
parties.
Quasi-judicial function, on the other hand, is "a term
which applies to the actions, discretion, etc., of public
administrative officers or bodies … required to
investigate facts or ascertain the existence of facts,
hold hearings, and draw conclusions from them as a
basis for their official action and to exercise discretion
of a judicial nature."
Before a tribunal, board, or officer may exercise
judicial or quasi-judicial acts, it is necessary that there
be a law that gives rise to some specific rights of
persons or property under which adverse claims to
such rights are made, and the controversy ensuing
therefrom is brought before a tribunal, board, or officer
clothed with power and authority to determine the law
and adjudicate the respective rights of the contending
parties.
The respondents do not fall within the ambit
of tribunal, board, or officer exercising judicial or
quasi-judicial functions. As correctly pointed out by
the respondents, the enactment by the City Council of
Manila of the assailed ordinance and the issuance by
respondent Mayor of the questioned executive order
were done in the exercise of legislative and executive
functions, respectively, and not of judicial or quasi-
judicial functions. On this score alone, certiorari will
not lie.
Second, although the instant petition is styled as a
petition for certiorari, in essence, it seeks the
declaration by this Court of the unconstitutionality or
illegality of the questioned ordinance and executive
order. It, thus, partakes of the nature of a petition for
declaratory relief over which this Court has only
appellate, not original, jurisdiction. Section 5, Article
VIII of the Constitution provides:
Sec. 5. The Supreme Court shall have the following
powers:
(1) Exercise original jurisdiction over cases
affecting ambassadors, other public ministers
and consuls, and over petitions for certiorari,
prohibition, mandamus, quo warranto, and
habeas corpus.
(2) Review, revise, reverse, modify, or affirm
on appeal or certiorari as the law or the Rules
of Court may provide, final judgments and
orders of lower courts in:
(a) All cases in which
the constitutionality or validity of any
treaty, international or executive
agreement, law, presidential decree,
proclamation, order,
instruction, ordinance, or regulation is
in question. (Italics supplied).
As such, this petition must necessar[ily] fail, as this
Court does not have original jurisdiction over a
petition for declaratory relief even if only questions of
law are involved. 18 
Likewise, in Southern Hemisphere Engagement
Network, Inc. v. Anti Terrorism Council, we similarly
19 
dismissed the petitions for certiorari and prohibition
challenging the constitutionality of R.A. No. 9372,
otherwise known as the "Human Security Act of
2007," since the respondents therein (members of the
Anti-Terrorism Council) did not exercise judicial or
quasi-judicial functions.
While we have recognized in the past that we can
exercise the discretion and rulemaking authority we
are granted under the Constitution, and set aside
20 
procedural considerations to permit parties to bring a
suit before us at the first instance through certiorari
and/or prohibition, this liberal policy remains to be an
21 
exception to the general rule, and thus, has its limits.
In Concepcion v. Commission on Elections
(COMELEC), we emphasized the importance of
22 
availing of the proper remedies and cautioned against
the wrongful use of certiorari in order to assail the
quasi-legislative acts of the COMELEC, especially by
the wrong party. In ruling that liberality and the
transcendental doctrine cannot trump blatant
disregard of procedural rules, and considering that the
petitioner had other available remedies (such as a
petition for declaratory relief with the appropriate RTC
under the terms of Rule 63 of the Rules of Court), as
in this case, we categorically ruled:
The petitioner’s unusual approaches and use of Rule
65 of the Rules of Court do not appear to us to be the
result of any error in reading Rule 65, given the way
the petition was crafted. Rather, it was a backdoor
approach to achieve what the petitioner could not
directly do in his individual capacity under Rule 65. It
was, at the very least, an attempted bypass of other
available, albeit lengthier, modes of review that the
Rules of Court provide. While we stop short of
concluding that the petitioner’s approaches constitute
an abuse of process through a manipulative reading
and application of the Rules of Court, we nevertheless
resolve that the petition should be dismissed for its
blatant violation of the Rules. The transgressions
alleged in a petition, however weighty they may
sound, cannot be justifications for blatantly
disregarding the rules of procedure, particularly when
remedial measures were available under these same
rules to achieve the petitioner’s objectives. For our
part, we cannot and should not – in the name of
liberality and the "transcendental importance" doctrine
– entertain these types of petitions. As we held in the
very recent case of Lozano, et al. vs. Nograles, albeit
from a different perspective, our liberal approach has
its limits and should not be abused. [emphasis
23 
supplied]
B. Petitioner lacks locus standi.
"Locus standi or legal standing has been defined as a
personal and substantial interest in a case such that
the party has sustained or will sustain direct injury as
a result of the governmental act that is being
challenged. The gist of the question on standing is
whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of
issues upon which the court depends for illumination
of difficult constitutional questions." This requirement
24 
of standing relates to the constitutional mandate that
this Court settle only actual cases or controversies. 25 
Thus, as a general rule, a party is allowed to "raise a
constitutional question" when (1) he can show that he
will personally suffer some actual or threatened injury
because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the
challenged action; and (3) the injury is likely to be
redressed by a favorable action. 26 
Jurisprudence defines interest as "material interest,
an interest in issue and to be affected by the decree,
as distinguished from mere interest in the question
involved, or a mere incidental interest. By real interest
is meant a present substantial interest, as
distinguished from a mere expectancy or a future,
contingent, subordinate, or consequential interest." 27  means trifle. Not only does it assure the vigorous
To support his claim that he has locus standi to file
the present petition, the petitioner contends that as an
employee of PhilHealth, he "stands to be prejudiced
by [EO] 7, which suspends or imposes a moratorium
on the grants of salary increases or new or increased
benefits to officers and employees of GOCC[s] and x
x x curtail[s] the prerogative of those officers who are
to fix and determine his compensation." The 28  Neither can the lack of locus standi be cured by the
petitioner also claims that he has standing as a
member of the bar in good standing who has an
interest in ensuring that laws and orders of the
Philippine government are legally and validly issued
and implemented.
The respondents meanwhile argue that the petitioner
is not a real party-in-interest since future increases in
salaries and other benefits are merely contingent
events or expectancies. The petitioner, too, is not
29  IBP of its duty to preserve the rule of law and nothing
asserting a public right for which he is entitled to seek
judicial protection. Section 9 of EO 7 reads:
Section 9. Moratorium on Increases in Salaries,
Allowances, Incentives and Other Benefits. –
Moratorium on increases in the rates of salaries, and
the grant of new increases in the rates of allowances,
incentives and other benefits, except salary
adjustments pursuant to Executive Order No. 8011
dated June 17, 2009 and Executive Order No. 900
dated June 23, 2010, are hereby imposed until
specifically authorized by the President. [emphasis
ours]
In the present case, we are not convinced that the
petitioner has demonstrated that he has a personal
stake or material interest in the outcome of the case
because his interest, if any, is speculative and based
on a mere expectancy. In this case, the curtailment of
future increases in his salaries and other benefits
cannot but be characterized as contingent events or
expectancies. To be sure, he has no vested rights to
salary increases and, therefore, the absence of such
right deprives the petitioner of legal standing to assail
EO 7.
It has been held that as to the element of injury, such
aspect is not something that just anybody with some
grievance or pain may assert. It has to be direct and
substantial to make it worth the court’s time, as well
as the effort of inquiry into the constitutionality of the
acts of another department of government. If the
asserted injury is more imagined than real, or is
merely superficial and insubstantial, then the courts
may end up being importuned to decide a matter that
does not really justify such an excursion into
constitutional adjudication. The rationale for this
30 
constitutional requirement of locus standi is by no
adversary presentation of the case; more importantly,
it must suffice to warrant the Judiciary’s overruling the
determination of a coordinate, democratically elected
organ of government, such as the President, and the
clear approval by Congress, in this case. Indeed, the
rationale goes to the very essence of representative
democracies. 31 
petitioner’s claim that he is instituting the present
petition as a member of the bar in good standing who
has an interest in ensuring that laws and orders of the
Philippine government are legally and validly issued.
This supposed interest has been branded by the
Court in Integrated Bar of the Phils. (IBP) v. Hon.
Zamora, "as too general an interest which is shared
32 
by other groups and [by] the whole citizenry." Thus,
33 
the Court ruled in IBP that the mere invocation by the
more, while undoubtedly true, is not sufficient to
clothe it with standing in that case. The Court made a
similar ruling in Prof. David v. Pres. Macapagal-
Arroyo and held that the petitioners therein, who are
34 
national officers of the IBP, have no legal standing,
having failed to allege any direct or potential injury
which the IBP, as an institution, or its members may
suffer as a consequence of the issuance of
Presidential Proclamation No. 1017 and General
Order No. 5. 35 
We note that while the petition raises vital
constitutional and statutory questions concerning the
power of the President to fix the compensation
packages of GOCCs and GFIs with possible
implications on their officials and employees, the
same cannot "infuse" or give the petitioner locus
standi under the transcendental importance or
paramount public interest doctrine. In Velarde v.
Social Justice Society, we held that even if the Court
36 
could have exempted the case from the stringent
locus standi requirement, such heroic effort would be
futile because the transcendental issue could not be
resolved any way, due to procedural infirmities and
shortcomings, as in the present case. In other words,
37 
giving due course to the present petition which is
saddled with formal and procedural infirmities
explained above in this Resolution, cannot but be an
exercise in futility that does not merit the Court’s
liberality. As we emphasized in Lozano v.
Nograles, "while the Court has taken an
38 
increasingly liberal approach to the rule of locus
standi, evolving from the stringent requirements
of ‘personal injury’ to the broader ‘transcendental
importance’ doctrine, such liberality is not to be
abused." 39 
Finally, since the petitioner has failed to demonstrate
a material and personal interest in the issue in
dispute, he cannot also be considered to have filed
the present case as a representative of PhilHealth. In
this regard, we cannot ignore or excuse the blatant
failure of the petitioner to provide a Board Resolution
or a Secretary’s Certificate from PhilHealth to act as
its representative.
C. The petition has a defective jurat.
The respondents claim that the petition should be
dismissed for failing to comply with Section 3, Rule 7
of the Rules of Civil Procedure, which requires the
party or the counsel representing him to sign the
pleading and indicate an address that should not be a
post office box. The petition also allegedly violated the
Supreme Court En Banc Resolution dated November
12, 2001, requiring counsels to indicate in their
pleadings their Roll of Attorneys Number, their PTR
Number and their IBP Official Receipt or Lifetime
Member Number; otherwise, the pleadings would be
considered unsigned and dismissible. Bar Matter No.
1922 likewise states that a counsel should note down
his MCLE Certificate of Compliance or Certificate of
Exemption in the pleading, but the petitioner had
failed to do so.40 
We do not see any violation of Section 3, Rule 7 of
the Rules of Civil Procedure as the petition bears the
petitioner’s signature and office address. The present
suit was brought before this Court by the petitioner
himself as a party litigant and not through counsel.
Therefore, the requirements under the Supreme Court
En Banc Resolution dated November 12, 2001 and
Bar Matter No. 1922 do not apply. In Bar Matter No.
1132, April 1, 2003, we clarified that a party who is not
a lawyer is not precluded from signing his own
pleadings as this is allowed by the Rules of Court; the
purpose of requiring a counsel to indicate his IBP
Number and PTR Number is merely to protect the
public from bogus lawyers. A similar construction
should be given to Bar Matter No. 1922, which
requires lawyers to indicate their MCLE Certificate of
Compliance or Certificate of Exemption; otherwise,
the provision that allows parties to sign their own
pleadings will be negated.
However, the point raised by the respondents
regarding the petitioner’s defective jurat is correct.
Indeed, A.M. No. 02-8-13-SC, dated February 19,
2008, calls for a current identification document
issued by an official agency bearing the photograph
and signature of the individual as competent evidence
of identity. Nevertheless, we hasten to clarify that the
defective jurat in the Verification/Certification of Non-
Forum Shopping is not a fatal defect, as we held in In-
N-Out Burger, Inc. v. Sehwani, Incorporated. The
41 
verification is only a formal, not a jurisdictional,
requirement that the Court may waive.
D. The petition has been mooted by supervening
events.
Because of the transitory nature of EO 7, it has been
pointed out that the present case has already been
rendered moot by these supervening events: (1) the
lapse on December 31, 2010 of Section 10 of EO 7
that suspended the allowances and bonuses of the
directors and trustees of GOCCs and GFIs; and (2)
the enactment of R.A. No. 10149 amending the
provisions in the charters of GOCCs and GFIs
empowering their board of directors/trustees to
determine their own compensation system, in favor of
the grant of authority to the President to perform this
act.
With the enactment of the GOCC Governance Act of
2011, the President is now authorized to fix the
compensation framework of GOCCs and GFIs. The
pertinent provisions read:
Section 5. Creation of the Governance Commission
for Government-Owned or -Controlled Corporations.
— There is hereby created an advisory, monitoring,
and oversight body with authority to formulate,
implement and coordinate policies to be known as the
Governance Commission for Government-Owned or-
Controlled Corporations, hereinafter referred to as the
GCG, which shall be attached to the Office of the
President. The GCG shall have the following powers
and functions:
xxxx
h) Conduct compensation studies, develop and
recommend to the President a competitive
compensation and remuneration system which shall
attract and retain talent, at the same time allowing the
GOCC to be financially sound and sustainable;
xxxx
Section 8. Coverage of the Compensation and
Position Classification System. — The GCG, after
conducting a compensation study, shall develop a
Compensation and Position Classification System
which shall apply to all officers and employees of the
GOCCs whether under the Salary Standardization
GFIs. For the Court to still rule upon the supposed
unconstitutionality of EO 7 will merely be an academic
exercise. Any further discussion of the constitutionality
of EO 7 serves no useful purpose since such issue is
moot in its face in light of the enactment of R.A. No.
10149. In the words of the eminent constitutional law
expert, Fr. Joaquin Bernas, S.J., "the Court normally
[will not] entertain a petition touching on an issue that
has become moot because x x x there would [be] no
longer x x x a ‘flesh and blood’ case for the Court to
resolve."44 

Law or exempt therefrom and shall consist of classes

of positions grouped into such categories as the GCG All told, in view of the supervening events rendering
may determine, subject to approval of the President. the petition moot, as well as its patent formal and
procedural infirmities, we no longer see any reason
Section 9. Position Titles and Salary Grades. — All for the Court to resolve the other issues raised in the
positions in the Positions Classification System, as certiorari petition.
determined by the GCG and as approved by the
President, shall be allocated to their proper position WHEREFORE, premises considered, the petition is
titles and salary grades in accordance with an Index DISMISSED. No costs.
of Occupational Services, Position Titles and Salary
Grades of the Compensation and Position SO ORDERED.
Classification System, which shall be prepared by the
GCG and approved by the President. ARTURO D. BRION
Associate Justice
xxxx
WE CONCUR:
[N]o GOCC shall be exempt from the coverage of the
Compensation and Position Classification System
developed by the GCG under this Act.

As may be gleaned from these provisions, the new

law amended R.A. No. 7875 and other laws that
enabled certain GOCCs and GFIs to fix their own
compensation frameworks; the law now authorizes
the President to fix the compensation and position
classification system for all GOCCs and GFIs, as well
as other entities covered by the law. This means that,
the President can now reissue an EO containing
these same provisions without any legal constraints. 1âwphi1

A moot case is "one that ceases to present a

justiciable controversy by virtue of supervening
events, so that a declaration thereon would be of no
practical use or value." "[A]n action is considered
42 

‘moot’ when it no longer presents a justiciable

controversy because the issues involved have
become academic or dead[,] or when the matter in
dispute has already been resolved and hence, one is
not entitled to judicial intervention unless the issue is
likely to be raised again between the parties x x x.
Simply stated, there is nothing for the x x x court to
resolve as [its] determination x x x has been
overtaken by subsequent events." 43 

This is the present situation here. Congress, thru R.A.

No. 10149, has expressly empowered the President
to establish the compensation systems of GOCCs and

G.R. No. 192791               April 24, 2012
DENNIS A. B. FUNA, Petitioner,  Before the Court could resolve this petition, Villar, via
vs.
THE CHAIRMAN, COMMISSION ON AUDIT,
REYNALDO A. VILLAR, Respondent.
DECISION
VELASCO, JR., J.:
In this Petition for Certiorari and Prohibition under
Rule 65, Dennis A. B. Funa challenges the
constitutionality of the appointment of Reynaldo A.
Villar as Chairman of the Commission on Audit and
accordingly prays that a judgment issue "declaring the
unconstitutionality" of the appointment.
The facts of the case are as follows:
On February 15, 2001, President Gloria Macapagal-
Arroyo (President Macapagal-Arroyo) appointed
Guillermo N. Carague (Carague) as Chairman of the
Commission on Audit (COA) for a term of seven (7)
years, pursuant to the 1987 Constitution. Carague’s
1 
term of office started on February 2, 2001 to end on
February 2, 2008.
Meanwhile, on February 7, 2004, President
Macapagal-Arroyo appointed Reynaldo A. Villar
(Villar) as the third member of the COA for a term of
seven (7) years starting February 2, 2004 until
February 2, 2011.
Following the retirement of Carague on February 2,
2008 and during the fourth year of Villar as COA
Commissioner, Villar was designated as Acting
Chairman of COA from February 4, 2008 to April 14,
2008. Subsequently, on April 18, 2008, Villar was
nominated and appointed as Chairman of the COA.
Shortly thereafter, on June 11, 2008, the Commission
on Appointments confirmed his appointment. He was
to serve as Chairman of COA, as expressly indicated
in the appointment papers, until the expiration of the
original term of his office as COA Commissioner or on
February 2, 2011. Challenged in this recourse, Villar,
in an obvious bid to lend color of title to his hold on
the chairmanship, insists that his appointment as COA
Chairman accorded him a fresh term of seven (7)
years which is yet to lapse. He would argue, in fine,
that his term of office, as such chairman, is up to
February 2, 2015, or 7 years reckoned from February
2, 2008 when he was appointed to that position.
Meanwhile, Evelyn R. San Buenaventura (San
Buenaventura) was appointed as COA Commissioner
to serve the unexpired term of Villar as Commissioner
or up to February 2, 2011.
a letter dated February 22, 2011 addressed to
President Benigno S. Aquino III, signified his intention
to step down from office upon the appointment of his
replacement. True to his word, Villar vacated his
position when President Benigno Simeon Aquino III
named Ma. Gracia Pulido-Tan (Chairman Tan) COA
Chairman. This development has rendered this
petition and the main issue tendered therein moot and
academic.
case is considered moot and academic when its
purpose has become stale, or when it ceases to
2 
present a justiciable controversy owing to the onset of
supervening events, so that a resolution of the case
3 
or a declaration on the issue would be of no practical
value or use. In such instance, there is no actual
4 
substantial relief which a petitioner would be entitled
to, and which will anyway be negated by the dismissal
of the basic petition. As a general rule, it is not within
5 
Our charge and function to act upon and decide a
moot case. However, in David v. Macapagal-
Arroyo, We acknowledged and accepted certain
6 
exceptions to the issue of mootness, thus:
The "moot and academic" principle is not a magical
formula that can automatically dissuade the courts in
resolving a case. Courts will decide cases, otherwise
moot and academic, if: first, there is a grave violation
of the Constitution, second, the exceptional character
of the situation and the paramount public interest is
involved, third, when constitutional issue raised
requires formulation of controlling principles to guide
the bench, the bar, and the public, and fourth, the
case is capable of repetition yet evading review.
Although deemed moot due to the intervening
appointment of Chairman Tan and the resignation of
Villar, We consider the instant case as falling within
the requirements for review of a moot and academic
case, since it asserts at least four exceptions to the
mootness rule discussed in David, namely: there is a
grave violation of the Constitution; the case involves a
situation of exceptional character and is of paramount
public interest; the constitutional issue raised requires
the formulation of controlling principles to guide the
bench, the bar and the public; and the case is capable
of repetition yet evading review. The situation
7 
presently obtaining is definitely of such exceptional
nature as to necessarily call for the promulgation of
principles that will henceforth "guide the bench, the
bar and the public" should like circumstance arise.
Confusion in similar future situations would be
smoothed out if the contentious issues advanced in
the instant case are resolved straightaway and settled
definitely. There are times when although the dispute
has disappeared, as in this case, it nevertheless cries
out to be addressed. To borrow from Javier v.
Pacificador, "Justice demands that we act then, not
8 
only for the vindication of the outraged right, though
gone, but also for the guidance of and as a restraint in
the future."
Both procedural and substantive issues are raised in
this proceeding. The procedural aspect comes down
to the question of whether or not the following
requisites for the exercise of judicial review of an
executive act obtain in this petition, viz: (1) there must
be an actual case or justiciable controversy before the
court; (2) the question before it must be ripe for
adjudication; (3) the person challenging the act must
be a proper party; and (4) the issue of constitutionality
must be raised at the earliest opportunity and must be
the very litis mota of the case. 9 
To Villar, all the requisites have not been met, it being
alleged in particular that petitioner, suing as a
taxpayer and citizen, lacks the necessary standing to
challenge his appointment. On the other hand, the
10 
Office of the Solicitor General (OSG), while
recognizing the validity of Villar’s appointment for the
period ending February 11, 2011, has expressed the
view that petitioner should have had filed a petition for
declaratory relief or quo warranto under Rule 63 or
Rule 66, respectively, of the Rules of Court instead of
certiorari under Rule 65.
Villar’s posture on the absence of some of the
mandatory requisites for the exercise by the Court of
its power of judicial review must fail. As a general rule,
a petitioner must have the necessary personality or
standing (locus standi) before a court will recognize
the issues presented. In Integrated Bar of the
Philippines v. Zamora, We defined locus standi as:
x x x a personal and substantial interest in the case
such that the party has sustained or will sustain a
direct injury as a result of the governmental act that is
being challenged. The term "interest" means a
material interest, an interest in issue affected by the
decree, as distinguished from mere interest in the
question involved, or a mere incidental interest. The
gist of the question of standing is whether a party
alleges "such personal stake in the outcome of the
controversy as to assure the concrete adverseness
which sharpens the presentation of issues upon which
the court depends for illumination of difficult
constitutional questions."11 
To have legal standing, therefore, a suitor must show
that he has sustained or will sustain a "direct injury"
as a result of a government action, or have a "material
interest" in the issue affected by the challenged
official act. However, the Court has time and again
12 
acted liberally on the locus standi requirements and
has accorded certain individuals, not otherwise
directly injured, or with material interest affected, by a
Government act, standing to sue provided a
constitutional issue of critical significance is at
stake. The rule on locus standi is after all a mere
13 
procedural technicality in relation to which the Court,
in a catena of cases involving a subject of
transcendental import, has waived, or relaxed, thus
allowing non-traditional plaintiffs, such as concerned
citizens, taxpayers, voters or legislators, to sue in the
public interest, albeit they may not have been
personally injured by the operation of a law or any
other government act. In David, the Court laid out the
14 
bare minimum norm before the so-called "non-
traditional suitors" may be extended standing to sue,
thusly:
1.) For taxpayers, there must be a claim of
illegal disbursement of public funds or that the
tax measure is unconstitutional;
2.) For voters, there must be a showing of
obvious interest in the validity of the election
law in question;
3.) For concerned citizens, there must be a
showing that the issues raised are of
transcendental importance which must be
settled early; and
4.) For legislators, there must be a claim that
the official action complained of infringes their
prerogatives as legislators.
This case before Us is of transcendental importance,
since it obviously has "far-reaching implications," and
there is a need to promulgate rules that will guide the
bench, bar, and the public in future analogous cases.
We, thus, assume a liberal stance and allow petitioner
to institute the instant petition.
Anent the aforestated posture of the OSG, there is no
serious disagreement as to the propriety of the
availment of certiorari as a medium to inquire on
whether the assailed appointment of respondent Villar
as COA Chairman infringed the constitution or was
infected with grave abuse of discretion. For under the
expanded concept of judicial review under the 1987
Constitution, the corrective hand of certiorari may be
invoked not only "to settle actual controversies
involving rights which are legally demandable and
enforceable," but also "to determine whether or not
there has been a grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government." "Grave
15 
abuse of discretion" denotes:
such capricious and whimsical exercise of judgment
as is equivalent to lack of jurisdiction, or, in other
words, where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to
amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined or to act in
contemplation of law. 16 
We find the remedy of certiorari applicable to the
instant case in view of the allegation that then
President Macapagal-Arroyo exercised her appointing
power in a manner constituting grave abuse of
discretion.
This brings Us to the pivotal substantive issue of
whether or not Villar’s appointment as COA
Chairman, while sitting in that body and after having
served for four (4) years of his seven (7) year term as
COA commissioner, is valid in light of the term
limitations imposed under, and the circumscribing
concepts tucked in, Sec. 1 (2), Art. IX(D) of the
Constitution, which reads:
(2) The Chairman and Commissioners [on Audit] shall
be appointed by the President with the consent of the
Commission on Appointments for a term of seven
years without reappointment. Of those first appointed,
the Chairman shall hold office for seven years, one
commissioner for five years, and the other
commissioner for three years, without reappointment.
Appointment to any vacancy shall be only for the
unexpired portion of the term of the predecessor. In
no case shall any member be appointed or
designated in a temporary or acting capacity.
(Emphasis added.) 17  appointments and qualifications of the
And if valid, for how long can he serve?
At once clear from a perusal of the aforequoted
provision are the defined restricting features in the
matter of the composition of COA and the
appointment of its members (commissioners and
chairman) designed to safeguard the independence
and impartiality of the commission as a body and that
of its individual members. These are, first, the
18  the appointee. (Italization in the original;
rotational plan or the staggering term in the
commission membership, such that the appointment
of commission members subsequent to the original
set appointed after the effectivity of the 1987
Constitution shall occur every two years; second, the
maximum but a fixed term-limit of seven (7) years for
all commission members whose appointments came
about by reason of the expiration of term save the
aforementioned first set of appointees and those
made to fill up vacancies resulting from certain
causes; third, the prohibition against reappointment of
commission members who served the full term of
seven years or of members first appointed under the
Constitution who served their respective terms of
office; fourth, the limitation of the term of a member to
the unexpired portion of the term of the predecessor;
and fifth, the proscription against temporary
appointment or designation.
To elucidate on the mechanics of and the adverted
limitations on the matter of COA-member
appointments with fixed but staggered terms of office,
the Court lays down the following postulates
deducible from pertinent constitutional provisions, as
construed by the Court:
1. The terms of office and appointments of the
first set of commissioners, or the seven, five
and three-year termers referred to in Sec.
1(2), Art. IX(D) of the Constitution, had
already expired. Hence, their respective terms
of office find relevancy for the most part only
in understanding the operation of the
rotational plan. In Gaminde v. Commission on
Audit, the Court described how the smooth
19 
functioning of the rotational system
contemplated in said and like provisions
covering the two other independent
commissions is achieved thru the staggering
of terms:
x x x [T]he terms of the first Chairmen and
Commissioners of the Constitutional
Commissions under the 1987 Constitution
must start on a common date [February 02,
1987, when the 1987 Constitution was ratified]
irrespective of the variations in the dates of
appointees in order that the expiration of the
first terms of seven, five and three years
should lead to the regular recurrence of the
two-year interval between the expiration of the
terms.
x x x In case of a belated appointment, the
interval between the start of the terms and the
actual appointment shall be counted against
20 
emphasis added.)
Early on, in Republic v. Imperial, the
21 
Court wrote of two conditions, "both
indispensable to [the] workability" of
the rotational plan. These conditions
may be described as follows: (a) that
 the terms of the first batch of
commissioners should start on a
common date; and (b) that any
vacancy due to death, resignation or
disability before the expiration of the
term should be filled only for the
unexpired balance of the term.
Otherwise, Imperial continued, "the
regularity of the intervals between
appointments would be destroyed."
There appears to be near unanimity
as to the purpose/s of the rotational
system, as originally conceived, i.e., to
place in the commission a new
appointee at a fixed interval (every two
years presently), thus preventing a
four-year administration appointing
more than one permanent and regular
commissioner, or to borrow from
22 
Commissioner Monsod of the 1986
CONCOM, "to prevent one person
(the President of the Philippines) from
dominating the commissions." It has
23 
been declared too that the rotational
plan ensures continuity in, and, as
indicated earlier, secure the
independence of, the commissions as
a body. 24 
2. An appointment to any vacancy in COA,
which arose from an expiration of a term, after
the first chairman and commissioners
appointed under the 1987 Constitution have
bowed out, shall, by express constitutional
fiat, be for a term of seven (7) years, save
when the appointment is to fill up a vacancy
for the corresponding unserved term of an
outgoing member. In that case, the
appointment shall only be for the unexpired
portion of the departing commissioner’s term
of office. There can only be an unexpired
portion when, as a direct result of his demise,
disability, resignation or impeachment, as the
case may be, a sitting member is unable to
complete his term of office. To repeat, should
25 
the vacancy arise out of the expiration of the
term of the incumbent, then there is
technically no unexpired portion to speak of.
The vacancy is for a new and complete
seven-year term and, ergo, the appointment
thereto shall in all instances be for a maximum
seven (7) years.
3. Sec. 1(2), Art. IX(D) of the 1987
Constitution prohibits the "reappointment" of a
member of COA after his appointment for
seven (7) years. Writing for the Court in
Nacionalista Party v. De Vera, a case
26 
involving the promotion of then COMELEC
Commissioner De Vera to the position of
chairman, then Chief Justice Manuel Moran
called attention to the fact that the prohibition
against "reappointment" comes as a
continuation of the requirement that the
commissioners––referring to members of the
COMELEC under the 1935 Constitution––
shall hold office for a term of nine (9) years.
This sentence formulation imports, notes
Chief Justice Moran, that reappointment is not
an absolute prohibition.
4. The adverted system of regular rotation or
the staggering of appointments and terms in
the membership for all three constitutional
commissions, namely the COA, Commission
on Elections (COMELEC) and Civil Service
Commission (CSC) found in the 1987
Constitution was patterned after the amended
1935 Constitution for the appointment of the
members of COMELEC with this difference:
27 
the 1935 version entailed a regular interval of
vacancy every three (3) years, instead of the
present two (2) years and there was no
express provision on appointment to any
vacancy being limited to the unexpired portion
of the his predecessor’s term. The model
1935 provision reads:
Section 1. There shall be an independent Commission
on Elections composed of a Chairman and two other
members to be appointed by the President with the
consent of the Commission on Appointments, who
shall hold office for a term of nine years and may not
be reappointed. Of the Members of the Commission
first appointed, one shall hold office for nine years,
another for six years and the third for three years. x x
x
Petitioner now asseverates the view that Sec. 1(2),
Art. IX(D) of the 1987 Constitution proscribes
reappointment of any kind within the commission, the
point being that a second appointment, be it for the
same position (commissioner to another position of
commissioner) or upgraded position (commissioner to
chairperson) is a prohibited reappointment and is a
nullity ab initio. Attention is drawn in this regard to the
Court’s disposition in Matibag v. Benipayo. 28 
Villar’s promotional appointment, so it is argued, is
void from the start, constituting as it did a
reappointment enjoined by the Constitution, since it
actually needed another appointment to a different
office and requiring another confirmation by the
Commission on Appointments.
Central to the adjudication of the instant petition is the
correct meaning to be given to Sec. 1(2), Article IX(D)
of the Constitution on the ban against reappointment
in relation to the appointment issued to respondent
Villar to the position of COA Chairman.
Without question, the parties have presented two (2)
contrasting and conflicting positions. Petitioner
contends that Villar’s appointment is proscribed by the
constitutional ban on reappointment under the
aforecited constitutional provision. On the other hand,
respondent Villar initially asserted that his
appointment as COA Chairman is valid up to February
2, 2015 pursuant to the same provision.
The Court finds petitioner’s position bereft of merit.
The flaw lies in regarding the word "reappointment"
as, in context, embracing any and all species of
appointment.
The rule is that if a statute or constitutional provision
is clear, plain and free from ambiguity, it must be
given its literal meaning and applied without
attempted interpretation. This is known as the plain
29  obvious intent of the framers is to prevent the
meaning rule enunciated by the maxim verba legis
non est recedendum, or from the words of a statute
there should be no departure. 30  commissioners.
The primary source whence to ascertain constitutional
intent or purpose is the language of the provision
itself. If possible, the words in the Constitution must
31  reappointment to be extended to commissioner-
be given their ordinary meaning, save where technical
terms are employed. J.M. Tuason & Co., Inc. v. Land
Tenure Administration illustrates the verbal legis rule
in this wise:
We look to the language of the document itself in our
search for its meaning. We do not of course stop
there, but that is where we begin. It is to be assumed
that the words in which constitutional provisions are
couched express the objective sought to be attained.
They are to be given their ordinary meaning except
where technical terms are employed in which case the
significance thus attached to them prevails. As the
Constitution is not primarily a lawyer’s document, it
being essential for the rule of law to obtain that it
should ever be present in the people’s consciousness,
its language as much as possible should be
understood in the sense they have in common use.
What it says according to the text of the provision to
be construed compels acceptance and negates the
power of the courts to alter it, based on the postulate
that the framers and the people mean what they say.
Thus there are cases where the need for construction
is reduced to a minimum. (Emphasis supplied.)
32  position and the term to which he will be appointed to
Let us dissect and examine closely the provision in
question:
(2) The Chairman and Commissioners [on Audit] shall
be appointed by the President with the consent of the
Commission on Appointments for a term of seven
years without reappointment. Of those first appointed,
the Chairman shall hold office for seven years, one
commissioner for five years, and the other
commissioner for three years, without reappointment.
Appointment to any vacancy shall be only for the
unexpired portion of the term of the predecessor. x x x
(Emphasis added.)
The first sentence is unequivocal enough. The COA
Chairman shall be appointed by the President for a
term of seven years, and if he has served the full
term, then he can no longer be reappointed or
extended another appointment. In the same vein, a
Commissioner who was appointed for a term of seven
years who likewise served the full term is barred from
being reappointed. In short, once the Chairman or
Commissioner shall have served the full term of seven
years, then he can no longer be reappointed to either
the position of Chairman or Commissioner. The
president from "dominating" the Commission by
allowing him to appoint an additional or two more
The same purpose obtains in the second sentence of
Sec. 1(2). The Constitutional Convention barred
members first appointed under the 1987 Constitution
to prevent the President from controlling the
commission. Thus, the first Chairman appointed under
the 1987 Constitution who served the full term of
seven years can no longer be extended a
reappointment. Neither can the Commissioners first
appointed for the terms of five years and three years
be eligible for reappointment. This is the plain
meaning attached to the second sentence of Sec.
1(2), Article IX(D).
On the other hand, the provision, on its face, does not
prohibit a promotional appointment from
commissioner to chairman as long as the
commissioner has not served the full term of seven
years, further qualified by the third sentence of Sec.
1(2), Article IX (D) that "the appointment to any
vacancy shall be only for the unexpired portion of the
term of the predecessor." In addition, such
promotional appointment to the position of Chairman
must conform to the rotational plan or the staggering
of terms in the commission membership such that the
aggregate of the service of the Commissioner in said
the position of Chairman must not exceed seven
years so as not to disrupt the rotational system in the
commission prescribed by Sec. 1(2), Art. IX(D).
In conclusion, there is nothing in Sec. 1(2), Article
IX(D) that explicitly precludes a promotional
appointment from Commissioner to Chairman,
provided it is made under the aforestated
circumstances or conditions.
It may be argued that there is doubt or ambiguity on
whether Sec. 1(2), Art. IX(D), as couched, allows a
promotional appointment from Commissioner to
Chairman. Even if We concede the existence of an
ambiguity, the outcome will remain the same. J.M.
Tuason & Co., Inc. teaches that in case of doubt as
33 
to the import and react of a constitutional provision,
resort should be made to extraneous aids of
construction, such as debates and proceedings of the
Constitutional Convention, to shed light on and
ascertain the intent of the framers or the purpose of
the provision being construed.
The understanding of the Convention as to what was
meant by the terms of the constitutional provision
which was the subject of the deliberation goes a long
way toward explaining the understanding of the
people when they ratified it. The Court applied this
principle in Civil Liberties Union v. Executive
Secretary:
A foolproof yardstick in constitutional construction is
the intention underlying the provision under
consideration. Thus, it has been held that the Court in
construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and
the evils, if any, sought to be prevented or remedied.
A doubtful provision will be examined in the light of
the history of the times, and the condition and
circumstances under which the Constitution was
framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the
particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole
as to make the words consonant to that reason and
calculated to effect that purpose. (Emphasis added.)
34 
And again in Nitafan v. Commissioner on Internal
Revenue:
x x x The ascertainment of that intent is but in keeping
with the fundamental principle of constitutional
construction that the intent of the framers of the
organic law and of the people adopting it should be
given effect. The primary task in constitutional
construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the
people in the adoption of the Constitution. It may also
be safely assumed that the people in ratifying the
Constitution were guided mainly by the explanation
offered by the framers. (Emphasis added.)
35 
Much weight and due respect must be accorded to
the intent of the framers of the Constitution in
interpreting its provisions.
Far from prohibiting reappointment of any kind,
including a situation where a commissioner is
upgraded to the position of chairman, the 1987
Constitution in fact unequivocally allows promotional
appointment, but subject to defined parameters. The
ensuing exchanges during the deliberations of the
1986 Constitutional Commission (CONCOM) on a
draft proposal of what would eventually be Sec. 1(2),
Art. IX(D) of the present Constitution amply support
the thesis that a promotional appointment is allowed
provided no one may be in the COA for an aggregate
threshold period of 7 years:
MS. AQUINO: In the same paragraph, I would
propose an amendment x x x. Between x x x the
sentence which begins with "In no case," insert THE
APPOINTEE SHALL IN NO CASE SERVE AN
AGGREGATE PERIOD OF MORE THAN SEVEN
YEARS. I was thinking that this may approximate the
situation wherein a commissioner is first appointed as
chairman. I am willing to withdraw that amendment if
there is a representation on the part of the Committee
that there is an implicit intention to prohibit a term that
in the aggregate will exceed more than seven years. If
that is the intention, I am willing to withdraw my
amendment.
MR. MONSOD: If the [Gentlewoman] will read the
whole Article, she will notice that there is no
reappointment of any kind and, therefore, as a whole
there is no way somebody can serve for more than
seven years. The purpose of the last sentence is to
make sure that this does not happen by including in
the appointment both temporary and acting
capacities.
MS. AQUINO. Yes. Reappointment is fine; that is
accounted for. But I was thinking of a situation
wherein a commissioner is upgraded to a position of
chairman. But if this provision is intended to cover that
kind of situation, then I am willing to withdraw my
amendment.
MR. MONSOD. It is covered.
MR. FOZ. There is a provision on line 29 precisely to
cover that situation. It states: "Appointment to any
vacancy shall be only for the unexpired portion of the
predecessor." In other words, if there is upgrading of
position from commissioner to chairman, the
appointee can serve only the unexpired portion of the
term of the predecessor.
MS. AQUINO: But we have to be very specific x x x
because it might shorten the term because he serves
only the unexpired portion of the term of the
predecessor.
MR. FOZ: He takes it at his own risk. He knows that
he will only have to serve the unexpired portion of the
term of the predecessor. (Emphasis added.) 36 
The phrase "upgrading of position" found in the
underscored portion unmistakably shows that Sec.
1(2), Art. IX(D) of the 1987 Constitution, for all its
caveat against reappointment, does not per se
preclude, in any and all cases, the promotional
appointment or upgrade of a commissioner to
chairman, subject to this proviso: the appointee’s
tenure in office does not exceed 7 years in all. Indeed,
such appointment does not contextually come within
the restricting phrase "without reappointment" twice
written in that section. Delegate Foz even cautioned,
as a matter of fact, that a sitting commissioner
accepting a promotional appointment to fill up an
unexpired portion pertaining to the higher office does
so at the risk of shortening his original term. To
illustrate the Foz’s concern: assume that Carague left
COA for reasons other than the expiration of his
threshold 7-year term and Villar accepted an
appointment to fill up the vacancy. In this situation, the
latter can only stay at the COA and served the
unexpired portion of Carague’s unexpired term as
departing COA Chairman, even if, in the process, his
(Villar’s) own 7-year term as COA commissioner has
not yet come to an end. In this illustration, the
inviolable regularity of the intervals between
appointments in the COA is preserved.
Moreover, jurisprudence tells us that the word
"reappointment" means a second appointment to one
and the same office. As Justice Arsenio Dizon
37 
(Justice Dizon) aptly observed in his dissent in Visarra
v. Miraflor, the constitutional prohibition against the
38 
reappointment of a commissioner refers to his second
appointment to the same office after holding it for nine
years. As Justice Dizon observed, "[T]he occupant of
39 
an office obviously needs no such second
appointment unless, for some valid cause, such as
the expiration of his term or resignation, he had
ceased to be the legal occupant thereof."  The
40 
inevitable implication of Justice Dizon’s cogent
observation is that a promotion from commissioner to
chairman, albeit entailing a second appointment,
involves a different office and, hence, not, in the strict
legal viewpoint, a reappointment. Stated a bit
differently, "reappointment" refers to a movement to
one and the same office. Necessarily, a movement to
a different position within the commission (from
Commissioner to Chairman) would constitute an
appointment, or a second appointment, to be precise,
but not reappointment.
A similar opinion was expressed in the same Visarra
case by the concurring Justice Angelo Bautista,
although he expressly alluded to a promotional
appointment as not being a prohibited appointment
under Art. X of the 1935 Constitution.
Petitioner’s invocation of Matibag as additional
argument to contest the constitutionality of Villar’s
elevation to the COA chairmanship is inapposite. In
Matibag, then President Macapagal-Arroyo appointed,
ad interim, Alfredo Benipayo as COMELEC Chairman
and Resurreccion Borra and Florentino Tuason as
Commissioners, each for a term of office of seven (7)
years. All three immediately took their oath of, and
assumed, office. These appointments were twice
renewed because the Commission on Appointments
failed to act on the first two ad interim appointments.
Via a petition for prohibition, some disgruntled
COMELEC officials assail as infirm the appointments
of Benipayo, et al.
Matibag lists (4) four situations where the prohibition
on reappointment would arise, or to be specific, where
the proviso "[t]he Chairman and the Commissioners
shall be appointed x x x for a term of seven years
without reappointment" shall apply. Justice Antonio T.
Carpio declares in his dissent that Villar’s appointment
falls under a combination of two of the four situations.
Conceding for the nonce the correctness of the
premises depicted in the situations referred to in
Matibag, that case is of doubtful applicability to the
instant petition. Not only is it cast against a different
milieu, but the lis mota of the case, as expressly
declared in the main opinion, "is the very
constitutional issue raised by petitioner." And what
41 
is/are this/these issue/s? Only two defined issues
in Matibag are relevant, viz: (1) the nature of an ad
interim appointment and subsumed thereto the effect
of a by-passed ad interim appointment; and (2) the
constitutionality of renewals of ad interim
appointments. The opinion defined these issues in the
following wise: "Petitioner [Matibag] filed the instant
petition questioning the appointment and the right to
remain in office of Benipayo, Borra and Tuason as
Chairman and Commissioners of the COMELEC,
respectively. Petitioner claims that the ad interim
appointments of Benipayo, et al. violate the
constitutional provisions on the independence of
COMELEC, as well as on the prohibitions on
temporary appointments and reappointments of its
Chairman and members." As may distinctly be noted,
an upgrade or promotion was not in issue in Matibag.
We shall briefly address the four adverted situations
outlined in Matibag, in which, as there urged, the
uniform proviso on no reappointment––after a
member of any of the three constitutional
commissions is appointed for a term of seven (7)
years––shall apply. Matibag made the following
formulation:
The first situation is where an ad interim appointee
after confirmation by the Commission on
Appointments serves his full 7-year term. Such person
cannot be reappointed whether as a member or as
chairman because he will then be actually serving
more than seven (7) years.
The second situation is where the appointee, after
confirmation, serves part of his term and then resigns
before his seven-year term of office ends. Such
person cannot be reappointed whether as a member
or as chair to a vacancy arising from retirement
because a reappointment will result in the appointee
serving more than seven years.
The third situation is where the appointee is confirmed
to serve the unexpired portion of someone who died
or resigned, and the appointee completes the
unexpired term. Such person cannot be reappointed
whether as a member or as chair to a vacancy arising
from retirement because a reappointment will result in
the appointee also serving more than seven (7) years.
The fourth situation is where the appointee has
previously served a term of less than seven (7) years,
and a vacancy arises from death or resignation. Even
if it will not result in his serving more than seven
years, a reappointment of such person to serve an
unexpired term is also prohibited because his
situation will be similar to those appointed under the
second sentence of Sec. 1(20), Art. IX-C of the
Constitution [referring to the first set of appointees
(the 5 and 3 year termers) whose term of office are
less than 7 years but are barred from being
reappointed under any situation]." (Words in brackets
42 
and emphasis supplied.)
The situations just described constitute an obiter
dictum, hence without the force of adjudication, for the
corresponding formulation of the four situations was
not in any way necessary to resolve any of the
determinative issues specifically defined in Matibag.
An opinion entirely unnecessary for the decision of the
case or one expressed upon a point not necessarily
involved in the determination of the case is an obiter.43 
There can be no serious objection to the scenarios
depicted in the first, second and third situations, both
hewing with the proposition that no one can stay in
any of the three independent commissions for an
aggregate period of more than seven (7) years. The
fourth situation, however, does not commend itself for
concurrence inasmuch as it is basically predicated on
the postulate that reappointment, as earlier herein
defined, of any kind is prohibited under any and all
circumstances. To reiterate, the word "reappointment"
means a second appointment to one and the same
office; and Sec. 1(2), Art. IX(D) of the 1987
Constitution and similar provisions do not peremptorily
prohibit the promotional appointment of a
commissioner to chairman, provided the new
appointee’s tenure in both capacities does not exceed
seven (7) years in all. The statements in Matibag
enunciating the ban on reappointment in the
aforecited fourth situation, perforce, must be
abandoned, for, indeed, a promotional appointment
from the position of Commissioner to that of Chairman
is constitutionally permissible and not barred by Sec.
1(2), Art. IX (D) of the Constitution.
One of the aims behind the prohibition on
reappointment, petitioner urges, is to ensure and
preserve the independence of COA and its
members, citing what the dissenting Justice J.B.L
44 
Reyes wrote in Visarra, that once appointed and
confirmed, the commissioners should be free to act as
their conscience demands, without fear of retaliation
or hope or reward. Pursued to its logical conclusion,
petitioner’s thesis is that a COA member may no
longer act with independence if he or she can be
rewarded with a promotion or appointment, for then
he or she will do the bidding of the appointing
authority in the hope of being promoted or
reappointed.
The unstated reason behind Justice J.B.L. Reyes’
counsel is that independence is really a matter of
choice. Without taking anything away from the gem
imparted by the eminent jurist, what Chief Justice
Moran said on the subject of independence is just as
logically sound and perhaps even more compelling,
as follows:
A Commissioner, hopeful of reappointment may strive
to do good. Whereas, without that hope or other hope
of material reward, his enthusiasm may decline as the
end of his term approaches and he may even lean to
abuses if there is no higher restrain in his moral
character. Moral character is no doubt the most
effective safeguard of independence. With moral
integrity, a commissioner will be independent with or
without the possibility of reappointment.
45 
The Court is likewise unable to sustain Villar’s
proposition that his promotional appointment as COA
Chairman gave him a completely fresh 7-year term––
from February 2008 to February 2015––given his four
(4)-year tenure as COA commissioner devalues all
the past pronouncements made by this Court, starting
in De Vera, then Imperial, Visarra, and finally Matibag.
While there had been divergence of opinion as to the
import of the word "reappointment," there has been
unanimity on the dictum that in no case can one be a
COA member, either as chairman or commissioner, or
a mix of both positions, for an aggregate term of more
than 7 years. A contrary view would allow a
circumvention of the aggregate 7-year service
limitation and would be constitutionally offensive as it
would wreak havoc to the spirit of the rotational
system of succession. Imperial, passing upon the
rotational system as it applied to the then
organizational set-up of the COMELEC, stated:
The provision that of the first three commissioners
appointed "one shall hold office for 9 years, another
for 6 years and the third for 3 years," when taken
together with the prescribed term of office for 9 years
without reappointment, evinces a deliberate plan to
have a regular rotation or cycle in the membership of
the commission, by having subsequent members
appointable only once every three years. 46 
To be sure, Villar’s appointment as COA Chairman
partakes of a promotional appointment which, under
appropriate setting, would be outside the purview of
the constitutional reappointment ban in Sec 1(2), Art.
IX(D) of the Constitution. Nonetheless, such
appointment, even for the term appearing in the
underlying appointment paper, ought still to be struck
down as unconstitutional for the reason as shall be
explained.
Consider:
In a mandatory tone, the aforecited constitutional
provision decrees that the appointment of a COA
member shall be for a fixed 7-year term if the vacancy
results from the expiration of the term of the
predecessor. We reproduce in its pertinent part the
provision referred to:
(2) The Chairman and Commissioners [on Audit] shall
be appointed x x x for a term of seven years without
reappointment. x x x Appointment to any vacancy
shall be only for the unexpired portion of the term of
the predecessor. x x x
Accordingly, the promotional appointment as COA
Chairman of Villar for a stated fixed term of less than
seven (7) years is void for violating a clear, but
mandatory constitutional prescription. There can be
no denying that the vacancy in the position of COA
chairman when Carague stepped down in February 2,
2008 resulted from the expiration of his 7-year term.
Hence, the appointment to the vacancy thus created
ought to have been one for seven (7) years in line
with the verbal legis approach of interpreting the
47 
Constitution. It is to be understood, however, following
Gaminde, that in case of a belated appointment, the
interval between the start of the term and the actual
appointment shall be counted against the 7-year term
of the appointee. Posing, however, as an
insurmountable barrier to a full 7-year appointment for
Villar is the rule against one serving the commission
for an aggregate term of more than seven (7) years.
Where the Constitution or, for that matter, a statute,
has fixed the term of office of a public official, the
appointing authority is without authority to specify in
the appointment a term shorter or longer than what
the law provides. If the vacancy calls for a full seven-
year appointment, the President is without discretion
to extend a promotional appointment for more or for
less than seven (7) years. There is no in between. He
or she cannot split terms. It is not within the power of
the appointing authority to override the positive
provision of the Constitution which dictates that the
term of office of members of constitutional bodies
shall be seven (7) years. A contrary reasoning "would
48 
make the term of office to depend upon the pleasure
or caprice of the [appointing authority] and not upon
the will [of the framers of the Constitution] of the
legislature as expressed in plain and undoubted
language in the law."49 
In net effect, then President Macapagal-Arroyo could
not have had, under any circumstance, validly
appointed Villar as COA Chairman, for a full 7-year
appointment, as the Constitution decrees, was not
legally feasible in light of the 7-year aggregate rule.
Villar had already served 4 years of his 7-year term as
COA Commissioner. A shorter term, however, to
comply with said rule would also be invalid as the
corresponding appointment would effectively breach
the clear purpose of the Constitution of giving to every
appointee so appointed subsequent to the first set of
commissioners, a fixed term of office of 7 years. To
recapitulate, a COA commissioner like respondent
Villar who serves for a period less than seven (7)
years cannot be appointed as chairman when such
position became vacant as a result of the expiration of
the 7-year term of the predecessor (Carague). Such
appointment to a full term is not valid and
constitutional, as the appointee will be allowed to
serve more than seven (7) years under the
constitutional ban.
On the other hand, a commissioner who resigned
before serving his 7- year term can be extended an
appointment to the position of chairman for the
unexpired period of the term of the latter, provided the
aggregate of the period he served as commissioner
and the period he will serve as chairman will not
exceed seven (7) years. This situation will only obtain
when the chairman leaves the office by reason of
death, disability, resignation or impeachment. Let us
consider, in the concrete, the situation of then
Chairman Carague and his successor, Villar. Carague
was appointed COA Chairman effective February 2,
2001 for a term of seven (7) years, or up to February
2, 2008. Villar was appointed as Commissioner on
February 2, 2004 with a 7-year term to end on
February 2, 2011. If Carague for some reason
vacated the chairmanship in 2007, then Villar can
resign as commissioner in the same year and later be
appointed as chairman to serve only up to February 2,
2008, the end of the unexpired portion of Carague’s
term. In this hypothetical scenario, Villar’s
appointment to the position of chairman is valid and
constitutional as the aggregate periods of his two (2)
appointments will only be five (5) years which neither
distorts the rotational scheme nor violates the rule that
the sum total of said appointments shall not exceed
seven (7) years. Villar would, however, forfeit two (2)
years of his original seven (7)-year term as
Commissioner, since, by accepting an upgraded
appointment to Carague’s position, he agreed to
serve the unexpired portion of the term of the
predecessor. As illustrated earlier, following Mr. Foz’s
line, if there is an upgrading of position from
commissioner to chairman, the appointee takes the
risk of cutting short his original term, knowing pretty
well before hand that he will serve only the unexpired
portion of the term of his predecessor, the outgoing
COA chairman.
In the extreme hypothetical situation that Villar
vacates the position of chairman for causes other than
the expiration of the original term of Carague, the
President can only appoint the successor of Villar for
the unexpired portion of the Carague term in line with
Sec. 1(2), Art. IX(D) of the Constitution. Upon the
expiration of the original 7-year term of Carague, the
President can appoint a new chairman for a term of
seven (7) full years.
In his separate dissent, my esteemed colleague, Mr.
Justice Mendoza, takes strong exception to the view
that the promotional appointment of a sitting
commissioner is plausible only when he is appointed
to the position of chairman for the unexpired portion of
the term of said official who leaves the office by
reason of any the following reasons: death, disability,
resignation or impeachment, not when the vacancy
arises out as a result of the expiration of the 7-year
term of the past chairman. There is nothing in the
Constitution, so Justice Mendoza counters, that
restricts the promotion of an incumbent commissioner
to the chairmanship only in instances where the
tenure of his predecessor was cut short by any of the
four events referred to. As earlier explained, the
majority view springs from the interplay of the
following premises: The explicit command of the
Constitution is that the "Chairman and the
Commissioners shall be appointed by the President x
x x for a term of seven years [and] appointment to any
vacancy shall be only for the unexpired portion of the
term of the predecessor." To repeat, the President
has two and only two options on term appointments.
Either he extends an appointment for a full 7-year
term when the vacancy results from the expiration of
term, or for a shorter period corresponding to the
unexpired term of the predecessor when the vacancy
occurs by reason of death, physical disability,
resignation or impeachment. If the vacancy calls for a
full seven-year appointment, the Chief Executive is
barred from extending a promotional appointment for
less than seven years. Else, the President can trifle
with terms of office fixed by the Constitution.
Justice Mendoza likewise invites attention to an
instance in history when a commissioner had been
promoted chairman after the expiration of the term of
his predecessor, referring specifically to the
appointment of then COMELEC Commissioner
Gaudencio Garcia to succeed Jose P. Carag after the
expiration of the latter’s term in 1959 as COMELEC
chairman. Such appointment to the position of
chairman is not constitutionally permissible under the
1987 Constitution because of the policy and intent of
its framers that a COA member who has served his
full term of seven (7) years or even for a shorter
period can no longer be extended another
appointment to the position of chairman for a full term
of seven (7) years. As revealed in the deliberations of
the Constitutional Commission that crafted the 1987
Constitution, a member of COA who also served as a
commissioner for less than seven (7) years in said
position cannot be appointed to the position of
chairman for a full term of seven (7) years since the
aggregate will exceed seven (7) years. Thus, the
adverted Garcia appointment in 1959 made under the
1935 Constitution cannot be used as a precedent to
an appointment of such nature under the 1987
Constitution. The dissent further notes that the
upgrading remained uncontested. In this regard,
suffice it to state that the promotion in question was
either legal or it was not. If it were not, no amount of
repetitive practices would clear it of invalidating taint.
Lastly, Villar’s appointment as chairman ending
February 2, 2011 which Justice Mendoza considers
as valid is likewise unconstitutional, as it will destroy
the rationale and policy behind the rotational system
or the staggering of appointments and terms in COA
as prescribed in the Constitution. It disturbs in a way
the staggered rotational system of appointment under
Sec. 1(2), Art. IX(D) of the 1987 Constitution.
Consider: If Villar’s term as COA chairman up to
February 2, 2011 is viewed as valid and constitutional
as espoused by my esteemed colleague, then two
vacancies have simultaneously occurred and two (2)
COA members going out of office at once, opening
positions for two (2) appointables on that date as
Commissioner San Buenaventura’s term also expired
on that day. This is precisely one of the mischiefs the
staggering of terms and the regular intervals
appointments seek to address. Note that San
Buenaventura was specifically appointed to succeed
Villar as commissioner, meaning she merely occupied
the position vacated by her predecessor whose term
as such commissioner expired on February 2, 2011.
The result is what the framers of the Constitution
doubtless sought to avoid, a sitting President with a 6-
year term of office, like President Benigno C. Aquino
III, appointing all or at least two (2) members of the
three-man Commission during his term. He appointed
Ma. Gracia Pulido-Tan as Chairman for the term
ending February 2, 2015 upon the relinquishment of
the post by respondent Villar, and Heidi Mendoza was
appointed Commissioner for a 7-year term ending
February 2, 2018 to replace San Buenaventura. If
Justice Mendoza’s version is adopted, then situations
like the one which obtains in the Commission will
definitely be replicated in gross breach of the
Constitution and in clear contravention of the intent of
its framers. Presidents in the future can easily control
the Commission depriving it of its independence and
impartiality.
To sum up, the Court restates its ruling on Sec. 1(2),
Art. IX(D) of the Constitution, viz:
1. The appointment of members of any of the
three constitutional commissions, after the
expiration of the uneven terms of office of the
first set of commissioners, shall always be for
a fixed term of seven (7) years; an
appointment for a lesser period is void and
unconstitutional.
The appointing authority cannot validly
shorten the full term of seven (7) years in case
of the expiration of the term as this will result
in the distortion of the rotational system
prescribed by the Constitution.
2. Appointments to vacancies resulting from
certain causes (death, resignation, disability or
impeachment) shall only be for the unexpired
portion of the term of the predecessor, but
such appointments cannot be less than the
unexpired portion as this will likewise disrupt
the staggering of terms laid down under Sec.
1(2), Art. IX(D).
3. Members of the Commission, e.g. COA,
COMELEC or CSC, who were appointed for a
full term of seven years and who served the
entire period, are barred from reappointment
to any position in the Commission. Corollarily,
the first appointees in the Commission under
the Constitution are also covered by the
prohibition against reappointment.
4. A commissioner who resigns after serving
in the Commission for less than seven years
is eligible for an appointment to the position of
Chairman for the unexpired portion of the term
of the departing chairman. Such appointment
is not covered by the ban on reappointment,
provided that the aggregate period of the
length of service as commissioner and the
unexpired period of the term of the
predecessor will not exceed seven (7) years
and provided further that the vacancy in the
position of Chairman resulted from death,
resignation, disability or removal by
impeachment. The Court clarifies that
"reappointment" found in Sec. 1(2), Art. IX(D)
means a movement to one and the same
office (Commissioner to Commissioner or
Chairman to Chairman). On the other hand,
an appointment involving a movement to a
different position or office (Commissioner to
Chairman) would constitute a new
appointment and, hence, not, in the strict legal
sense, a reappointment barred under the
Constitution.
5. Any member of the Commission cannot be
appointed or designated in a temporary or
acting capacity.
WHEREFORE the petition is PARTLY GRANTED.
The appointment of then Commissioner Reynaldo A.
Villar to the position of Chairman of the Commission
on Audit to replace Guillermo N. Carague, whose term
of office as such chairman has expired, is hereby
declared UNCONSTITUTIONAL for violation of Sec.
1(2), Art. IX(D) of the Constitution.

G.R. No. 202242               April 16, 2013
FRANCISCO I. CHAVEZ, Petitioner,  WHEREFORE, the parties are hereby directed to
vs.
JUDICIALAND BAR COUNCIL, SEN. FRANCIS
JOSEPH G. ESCUDERO and REP. NIEL C. TUPAS,
JR., Respondents.
RESOLUTION
MENDOZA, J.:
This resolves the Motion for Reconsideration1 filed by
the Office of the Solicitor General (OSG) on behalf of
the respondents, Senator Francis Joseph G.
Escudero and Congressman Niel C. Tupas, Jr.
(respondents), duly opposed2 by the petitioner, former
Solicitor General Francisco I. Chavez (petitioner).
By way of recapitulation, the present action stemmed
from the unexpected departure of former Chief Justice
Renato C. Corona on May 29, 2012, and the
nomination of petitioner, as his potential successor. In
his initiatory pleading, petitioner asked the Court to
determine 1] whether the first paragraph of Section 8,
Article VIII of the 1987 Constitution allows more than
one (1) member of Congress to sit in the JBC; and 2]
if the practice of having two (2) representatives from
each House of Congress with one (1) vote each is
sanctioned by the Constitution.
On July 17, 2012, the Court handed down the
assailed subject decision, disposing the same in the
following manner:
WHEREFORE, the petition is GRANTED. The current
numerical composition of the Judicial and Bar Council
is declared UNCONSTITUTIONAL. The Judicial and
Bar Council is hereby enjoined to reconstitute itself so
that only one (1) member of Congress will sit as a
representative in its proceedings, in accordance with
Section 8(1), Article VIII of the 1987 Constitution.
This disposition is immediately executory.
SO ORDERED.
On July 31, 2012, following respondents’ motion for
reconsideration and with due regard to Senate
Resolution Nos. 111,3 112,4 113,5 and 114,6 the Court
set the subject motion for oral arguments on August 2,
2012.7 On August 3, 2012, the Court discussed the
merits of the arguments and agreed, in the meantime,
to suspend the effects of the second paragraph of the
dispositive portion of the July 17, 2012 Decision which
decreed that it was immediately executory. The
decretal portion of the August 3, 2012
Resolution8 reads:
submit their respective MEMORANDA within ten (10)
days from notice. Until further orders, the Court
hereby SUSPENDS the effect of the second
paragraph of the dispositive portion of the Court’s July
17, 2012 Decision, which reads: "This disposition is
immediately executory."9
Pursuant to the same resolution, petitioner and
respondents filed their respective memoranda.10
Brief Statement of the Antecedents
In this disposition, it bears reiterating that from the
birth of the Philippine Republic, the exercise of
appointing members of the Judiciary has always been
the exclusive prerogative of the executive and
legislative branches of the government. Like their
progenitor of American origins, both the Malolos
Constitution11 and the 1935 Constitution12vested the
power to appoint the members of the Judiciary in the
President, subject to confirmation by the Commission
on Appointments. It was during these times that the
country became witness to the deplorable practice of
aspirants seeking confirmation of their appointment in
the Judiciary to ingratiate themselves with the
members of the legislative body.13
Then, under the 1973 Constitution,14 with the fusion of
the executive and legislative powers in one body, the
appointment of judges and justices ceased to be
subject of scrutiny by another body. The power
became exclusive and absolute to the Executive,
subject only to the condition that the appointees must
have all the qualifications and none of the
disqualifications.
Prompted by the clamor to rid the process of
appointments to the Judiciary of the evils of political
pressure and partisan activities,15 the members of the
Constitutional Commission saw it wise to create a
separate, competent and independent body to
recommend nominees to the President.
Thus, it conceived of a body, representative of all the
stakeholders in the judicial appointment process, and
called it the Judicial and Bar Council (JBC). The
Framers carefully worded Section 8, Article VIII of the
1987 Constitution in this wise:
Section 8. (1) A Judicial and Bar Council is hereby
created under the supervision of the Supreme Court
composed of the Chief Justice as ex officio Chairman,
the Secretary of Justice, and a representative of the
Congress as ex officio Members, a representative of
the Integrated Bar, a professor of law, a retired
Member of the Supreme Court, and a representative
of the private sector.
From the moment of the creation of the JBC,
Congress designated one (1) representative to sit in
the JBC to act as one of the ex-officio
members.16 Pursuant to the constitutional provision
that Congress is entitled to one (1) representative,
each House sent a representative to the JBC, not
together, but alternately or by rotation.
In 1994, the seven-member composition of the JBC
was substantially altered.  An eighth member was
1âwphi1
added to the JBC as the two (2) representatives from
Congress began sitting simultaneously in the JBC,
with each having one-half (1/2) of a vote.17
In 2001, the JBC En Banc decided to allow the
representatives from the Senate and the House of
Representatives one full vote each.18 It has been the
situation since then.
Grounds relied upon by Respondents
Through the subject motion, respondents pray that the
Court reconsider its decision and dismiss the petition
on the following grounds: 1] that allowing only one
representative from Congress in the JBC would lead
to absurdity considering its bicameral nature; 2] that
the failure of the Framers to make the proper
adjustment when there was a shift from unilateralism
to bicameralism was a plain oversight; 3] that two
representatives from Congress would not subvert the
intention of the Framers to insulate the JBC from
political partisanship; and 4] that the rationale of the
Court in declaring a seven-member composition
would provide a solution should there be a stalemate
is not exactly correct.
While the Court may find some sense in the reasoning
in amplification of the third and fourth grounds listed
by respondents, still, it finds itself unable to reverse
the assailed decision on the principal issues covered
by the first and second grounds for lack of merit.
Significantly, the conclusion arrived at, with respect to
the first and second grounds, carries greater bearing
in the final resolution of this case.
As these two issues are interrelated, the Court shall
discuss them jointly.
Ruling of the Court
The Constitution evinces the direct action of the
Filipino people by which the fundamental powers of
government are established, limited and defined and
by which those powers are distributed among the
several departments for their safe and useful exercise
for the benefit of the body politic.19 The Framers
reposed their wisdom and vision on one suprema lex
to be the ultimate expression of the principles and the
framework upon which government and society were
to operate. Thus, in the interpretation of the
constitutional provisions, the Court firmly relies on the
basic postulate that the Framers mean what they say.
The language used in the Constitution must be taken
to have been deliberately chosen for a definite
purpose. Every word employed in the Constitution
must be interpreted to exude its deliberate intent
which must be maintained inviolate against
disobedience and defiance. What the Constitution
clearly says, according to its text, compels
acceptance and bars modification even by the branch
tasked to interpret it.
For this reason, the Court cannot accede to the
argument of plain oversight in order to justify
constitutional construction. As stated in the July 17,
2012 Decision, in opting to use the singular letter "a"
to describe "representative of Congress," the Filipino
people through the Framers intended that Congress
be entitled to only one (1) seat in the JBC. Had the
intention been otherwise, the Constitution could have,
in no uncertain terms, so provided, as can be read in
its other provisions.
A reading of the 1987 Constitution would reveal that
several provisions were indeed adjusted as to be in
tune with the shift to bicameralism. One example is
Section 4, Article VII, which provides that a tie in the
presidential election shall be broken "by a majority of
all the Members of both Houses of the Congress,
voting separately."20 Another is Section 8 thereof
which requires the nominee to replace the Vice-
President to be confirmed "by a majority of all the
Members of both Houses of the Congress, voting
separately."21 Similarly, under Section 18, the
proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus may be revoked
or continued by the Congress, voting separately, by a
vote of at least a majority of all its Members."22 In all
these provisions, the bicameral nature of Congress
was recognized and, clearly, the corresponding
adjustments were made as to how a matter would be
handled and voted upon by its two Houses.
Thus, to say that the Framers simply failed to adjust
Section 8, Article VIII, by sheer inadvertence, to their
decision to shift to a bicameral form of the legislature,
is not persuasive enough. Respondents cannot just
lean on plain oversight to justify a conclusion
favorable to them. It is very clear that the Framers
were not keen on adjusting the provision on
congressional representation in the JBC because it
was not in the exercise of its primary function – to
legislate. JBC was created to support the executive
power to appoint, and Congress, as one whole body,
was merely assigned a contributory non-legislative
function.
The underlying reason for such a limited participation
can easily be discerned. Congress has two (2)
Houses. The need to recognize the existence and the
role of each House is essential considering that the
Constitution employs precise language in laying down
the functions which particular House plays, regardless
of whether the two Houses consummate an official act
by voting jointly or separately. Whether in the exercise
of its legislative23 or its non-legislative functions such
as inter alia, the power of appropriation,24 the
declaration of an existence of a state of
war,25 canvassing of electoral returns for the President
and Vice-President,26 and impeachment,27 the
dichotomy of each House must be acknowledged and
recognized considering the interplay between these
two Houses. In all these instances, each House is
constitutionally granted with powers and functions
peculiar to its nature and with keen consideration to 1)
its relationship with the other chamber; and 2) in
consonance with the principle of checks and
balances, as to the other branches of government.
In checkered contrast, there is essentially no
interaction between the two Houses in their
participation in the JBC. No mechanism is required
between the Senate and the House of
Representatives in the screening and nomination of
judicial officers. Rather, in the creation of the JBC, the
Framers arrived at a unique system by adding to the
four (4) regular members, three (3) representatives
from the major branches of government - the Chief
Justice as ex-officio Chairman (representing the
Judicial Department), the Secretary of Justice
(representing the Executive Department), and a
representative of the Congress (representing the
Legislative Department). The total is seven (7), not
eight. In so providing, the Framers simply gave
recognition to the Legislature, not because it was in
the interest of a certain constituency, but in reverence
to it as a major branch of government.
On this score, a Member of Congress, Hon. Simeon
A. Datumanong, from the Second District of
Maguindanao, submitted his well-considered
position28 to then Chief Justice Reynato S. Puno:
I humbly reiterate my position that there should be
only one representative of Congress in the JBC in
accordance with Article VIII, Section 8 (1) of the 1987
Constitution x x x.
The aforesaid provision is clear and unambiguous and
does not need any further interpretation. Perhaps, it is
apt to mention that the oft-repeated doctrine that
"construction and interpretation come only after it has
been demonstrated that application is impossible or
inadequate without them."
Further, to allow Congress to have two
representatives in the Council, with one vote each, is
to negate the principle of equality among the three
branches of government which is enshrined in the
Constitution.
In view of the foregoing, I vote for the proposition that
the Council should adopt the rule of single
representation of Congress in the JBC in order to
respect and give the right meaning to the above-
quoted provision of the Constitution. (Emphases and
underscoring supplied)
On March 14, 2007, then Associate Justice Leonardo
A. Quisumbing, also a JBC Consultant, submitted to
the Chief Justice and ex-officio JBC Chairman his
opinion,29 which reads:
8. Two things can be gleaned from the excerpts and
citations above: the creation of the JBC is intended to
curtail the influence of politics in Congress in the
appointment of judges, and the understanding is that
seven (7) persons will compose the JBC. As such, the
interpretation of two votes for Congress runs counter
to the intendment of the framers. Such interpretation
actually gives Congress more influence in the
appointment of judges. Also, two votes for Congress
would increase the number of JBC members to eight,
which could lead to voting deadlock by reason of
even-numbered membership, and a clear violation of
7 enumerated members in the Constitution.
(Emphases and underscoring supplied)
In an undated position paper,30 then Secretary of
Justice Agnes VST Devanadera opined:
As can be gleaned from the above constitutional
provision, the JBC is composed of seven (7)
representatives coming from different sectors. From
the enumeration it is patent that each category of
members pertained to a single individual only. Thus,
while we do not lose sight of the bicameral nature of
our legislative department, it is beyond dispute that
Art. VIII, Section 8 (1) of the 1987 Constitution is
explicit and specific that "Congress" shall have only
"xxx a representative." Thus, two (2) representatives
from Congress would increase the number of JBC
members to eight (8), a number beyond what the
Constitution has contemplated. (Emphases and
underscoring supplied)
In this regard, the scholarly dissection on the matter
by retired Justice Consuelo Ynares-Santiago, a
former JBC consultant, is worth reiterating.31 Thus:
A perusal of the records of the Constitutional
Commission reveals that the composition of the JBC
reflects the Commission’s desire "to have in the
Council a representation for the major elements of the
community." xxx The ex-officio members of the
Council consist of representatives from the three main
branches of government while the regular members
are composed of various stakeholders in the judiciary.
The unmistakeable tenor of Article VIII, Section 8(1)
was to treat each ex-officio member as representing
one co-equal branch of government. xxx Thus, the
JBC was designed to have seven voting members
with the three ex-officio members having equal say in
the choice of judicial nominees.
xxx
No parallelism can be drawn between the
representative of Congress in the JBC and the
exercise by Congress of its legislative powers under
Article VI and constituent powers under Article XVII of
the Constitution. Congress, in relation to the executive
and judicial branches of government, is
constitutionally treated as another co-equal branch in
the matter of its representative in the JBC. On the
other hand, the exercise of legislative and constituent
powers requires the Senate and the House of
Representatives to coordinate and act as distinct
bodies in furtherance of Congress’ role under our
constitutional scheme. While the latter justifies and, in
fact, necessitates the separateness of the two Houses
of Congress as they relate inter se, no such
dichotomy need be made when Congress interacts
with the other two co-equal branches of government.
It is more in keeping with the co-equal nature of the
three governmental branches to assign the same
weight to considerations that any of its
representatives may have regarding aspiring
nominees to the judiciary. The representatives of the
Senate and the House of Representatives act as such
for one branch and should not have any more
quantitative influence as the other branches in the
exercise of prerogatives evenly bestowed upon the
three. Sound reason and principle of equality among
the three branches support this conclusion.
[Emphases and underscoring supplied]
The argument that a senator cannot represent a
member of the House of Representatives in the JBC
and vice-versa is, thus, misplaced. In the JBC, any
member of Congress, whether from the Senate or the
House of Representatives, is constitutionally
empowered to represent the entire Congress. It may
be a constricted constitutional authority, but it is not
an absurdity.
From this score stems the conclusion that the lone
representative of Congress is entitled to one full vote.
This pronouncement effectively disallows the scheme
of splitting the said vote into half (1/2), between two
representatives of Congress. Not only can this
unsanctioned practice cause disorder in the voting
process, it is clearly against the essence of what the
Constitution authorized. After all, basic and
reasonable is the rule that what cannot be legally
done directly cannot be done indirectly. To permit or
tolerate the splitting of one vote into two or more is
clearly a constitutional circumvention that cannot be
countenanced by the Court. Succinctly put, when the
Constitution envisioned one member of Congress
sitting in the JBC, it is sensible to presume that this
representation carries with him one full vote.
It is also an error for respondents to argue that the
President, in effect, has more influence over the JBC
simply because all of the regular members of the JBC
are his appointees. The principle of checks and
balances is still safeguarded because the
appointment of all the regular members of the JBC is
subject to a stringent process of confirmation by the
Commission on Appointments, which is composed of
members of Congress.
Respondents’ contention that the current irregular
composition of the JBC should be accepted, simply
because it was only questioned for the first time
through the present action, deserves scant
consideration. Well-settled is the rule that acts done in
violation of the Constitution no matter how frequent,
usual or notorious cannot develop or gain acceptance
under the doctrine of estoppel or laches, because
once an act is considered as an infringement of the
Constitution it is void from the very beginning and
cannot be the source of any power or authority.
It would not be amiss to point out, however, that as a
general rule, an unconstitutional act is not a law; it
confers no rights; it imposes no duties; it affords no
protection; it creates no office; it is inoperative as if it
has not been passed at all. This rule, however, is not
absolute. Under the doctrine of operative facts,
actions previous to the declaration of
unconstitutionality are legally recognized. They are
not nullified. This is essential in the interest of fair
play. To reiterate the doctrine enunciated in Planters
Products, Inc. v. Fertiphil Corporation:32
The doctrine of operative fact, as an exception to the amount of practical logic or convenience can convince
general rule, only applies as a matter of equity and the Court to perform either an excision or an insertion
fair play. It nullifies the effects of an unconstitutional that will change the manifest intent of the Framers. To
law by recognizing that the existence of a statute prior broaden the scope of congressional representation in
to a determination of unconstitutionality is an the JBC is tantamount to the inclusion of a subject
operative fact and may have consequences which matter which was not included in the provision as
cannot always be ignored. The past cannot always be enacted. True to its constitutional mandate, the Court
erased by a new judicial declaration. The doctrine is cannot craft and tailor constitutional provisions in
applicable when a declaration of unconstitutionality order to accommodate all of situations no matter how
will impose an undue burden on those who have ideal or reasonable the proposed solution may sound.
relied on the invalid law. Thus, it was applied to a To the exercise of this intrusion, the Court declines.
criminal case when a declaration of unconstitutionality
would put the accused in double jeopardy or would WHEREFORE, the Motion for Reconsideration filed
put in limbo the acts done by a municipality in reliance by respondents is hereby DENIED.
upon a law creating it.33
The suspension of the effects of the second
Under the circumstances, the Court finds the paragraph of the dispositive portion of the July 17,
exception applicable in this case and holds that 2012 Decision of the Court, which reads, "This
notwithstanding its finding of unconstitutionality in the disposition is immediately executory," is hereby
current composition of the JBC, all its prior official LIFTED.
actions are nonetheless valid.
SO ORDERED.
Considering that the Court is duty bound to protect the
Constitution which was ratified by the direct action of JOSE CATRAL MENDOZA
the Filipino people, it cannot correct what respondents Associate Justice
perceive as a mistake in its mandate. Neither can the
Court, in the exercise of its power to interpret the spirit
WE CONCUR:
of the Constitution, read into the law something that is
contrary to its express provisions and justify the same
as correcting a perceived inadvertence. To do so MARIA LOURDES P. A. SERENO
would otherwise sanction the Court action of making Chief Justice
amendment to the Constitution through a judicial
pronouncement.
ANTONIO T. PRESBITERO J.
CARPIO VELASCO, JR.
In other words, the Court cannot supply the legislative
Associate Justice Associate Justice
omission. According to the rule of casus omissus "a
case omitted is to be held as intentionally
omitted."34 "The principle proceeds from a reasonable TERESITA J.
certainty that a particular person, object or thing has ARTURO D.
LEONARDO-DE
been omitted from a legislative BRION
CASTRO
enumeration."35 Pursuant to this, "the Court cannot Associate Justice
Associate Justice
under its power of interpretation supply the omission
even though the omission may have resulted from
inadvertence or because the case in question was not DIOSDADO M. LUCAS P.
foreseen or contemplated."36 "The Court cannot PERALTA BERSAMIN
supply what it thinks the legislature would have Associate Justice Associate Justice
supplied had its attention been called to the omission,
as that would be judicial legislation."37 MARIANO C. DEL ROBERTO A.
CASTILLO ABAD
Stated differently, the Court has no power to add Associate Justice Associate Justice
another member by judicial construction.

The call for judicial activism fails to stir the sensibilities MARTIN S. JOSE PORTUGAL
of the Court tasked to guard the Constitution against VILLARAMA, JR. PEREZ
usurpation. The Court remains steadfast in confining Associate Justice Associate Justice
its powers in the sphere granted by the Constitution
itself. Judicial activism should never be allowed to BIENVENIDO L. ESTELA M.
become judicial exuberance.38 In cases like this, no

PERLAS-
REYES
BERNABE
Associate Justice
Associate Justice
MARVIC MARIO VICTOR F. LEONEN
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution,
T hereby certify that the conclusions in the above
Resolution had been reached in consultation before
the case was assigned to the writer of the opinion of
the Court.
MARIA LOURDES P. A. SERENO
Chief Justice
Footnotes
1
 Rollo, pp. 257-286.
2
 Id. at 287-298.
3
 Entitled "Resolution expressing the sense of
the Senate that the Judicial and Bar Council
(JBC) defer the consideration of all nominees
and the preparation of the short list to be
submitted to the President for the position of
Chief Justice of the Supreme Court;" id. at
303-304.
4
 Entitled "Resolution expressing anew the
sense of the Senate that the Senate and
House of Representatives should have one
(1) representative each in the Judicial and Bar
Council (JBC) and that each representative is
entitled to a full vote;" id. at 305-307.
5
 Entitled "Resolution to file an urgent motion
with the Supreme Court to set for oral
argument the motion for reconsideration filed
by the representatives of Congress to the
Judicial and Bar Council (JBC) in the case of
Francisco Chavez v. Judicial and Bar Council,
Sen. Francis Joseph G.. Escudero and Rep.
Niel Tupas Jr., G.R. No. 2022242 considering
the primordial importance of the constitutional
issues involved;" id. at 308-310.
6
 Entitled "Resolution authorizing Senator
Joker P. Arroyo to argue, together with the
Counsel-of-record, the motion for
reconsideration filed by the representative of
the Senate to the Judicial and Bar Council in
the case of Francisco Chavez v. Judicial and
Bar Council, Sen. Francis Joseph G.
Escudero and Rep. Niel Tupas, Jr.;" id. at
311-312.
7
 Id. at 313-314.
8
 Id. at (318-I)-(318-K).
9
 Id. at 318-J.
 Petitioner’s Memorandum, id. at 326-380;
10
Respondents’ Memorandum, id. at 381-424.
11
 Malolos Constitution Article 80 Title X. – The
Chief Justice of the Supreme Court and the
Solicitor-General shall be chosen by the
National Assembly in concurrence with the
President of the Republic and the Secretaries
of the Government, and shall be absolutely
independent of the Legislative and Executive
Powers."
12
 1935 Constitution Article VIII, Section 5. –
The Members of the Supreme Court and all
judges of inferior courts shall be appointed by
the President with the consent of the
Commission on Appointments."
 1 Records of the Constitutional Commission
13
Proceedings and Debates, 437.
 Section 4 Article X of the 1973 Constitution
14
provides: "The Members of the Supreme
Court and judges of inferior courts shall be
appointed by the President."
 1 Records, Constitutional Commission,
15
Proceedings and Debates, p. 487.
 List of JBC Chairpersons, Ex-Officio and
16
Regular Members, Ex Officio Secretaries and
Consultants, issued by the Office of the
Executive Officer, Judicial and Bar Council,
rollo, pp. 62-63.
17
 Id.
 Id. at 80, citing Minutes of the 1st En Banc
18
Executive Meeting, January 12, 2000 and
Minutes of the 12th En Banc Meeting, May 30,
2001.
19
 Malcolm, The Constitutional Law of the
Philippine Islands (2nd ed. 1926), p. 26.
20
 1987 Constitution, Article VII, Section 4. –
The President and the Vice-President shall be
elected by direct vote of the people for a term
of six years which shall begin at noon on the
thirtieth day of June next following the day of
the election and shall end at noon of the same
date, six years thereafter. The President shall
not be eligible for any re-election. No person
who has succeeded as President and has
served as such for more than four years shall
be qualified for election to the same office at
any time.
xxx
The person having the highest number
of votes shall be proclaimed elected,
but in case two or more shall have an
equal and highest number of votes,
one of them shall forthwith be chosen
by the vote of a majority of all the
Members of both Houses of the
Congress, voting separately.
(Emphasis supplied)
x x x.
21
 1987 Constitution, Article VII, Section 9. –
Whenever there is a vacancy in the Office of
the Vice-President during the term for which
he was elected, the President shall nominate
a Vice-President from among the Members of
the Senate and the House of Representatives
who shall assume office upon confirmation by
a majority vote of all the Members of both
Houses of the Congress, voting separately.
(Emphasis supplied)
22
 1987 Constitution, Article VII, Section 18. –
The President shall be the Commander-in-
Chief of all armed forces of the Philippines
and whenever it becomes necessary, he may
call out such armed forces to prevent or
suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion,
when the public safety requires it, he may, for
a period not exceeding sixty days, suspend
the privilege of the writ of habeas corpus or
place the Philippines or any part thereof under
martial law. Within forty-eight hours from the
proclamation of martial law or the suspension
of the privilege of the writ of habeas corpus,
the President shall submit a report in person
or in writing to the Congress. The Congress,
voting jointly, by a vote of at least a majority of
all its Members in regular or special session,
may revoke such proclamation or suspension,
which revocation shall not be set aside by the
President. Upon the initiative of the President,
the Congress may, in the same manner,
extend such proclamation or suspension for a
period to be determined by the Congress, if
the invasion or rebellion shall persist and
public safety requires it. (Emphasis supplied)
23
 1987 Constitution, Article VI Section 27(1). –
Every bill passed by the Congress shall,
before it becomes a law, be presented to the
President. If he approves the same, he shall
sign it; otherwise, he shall veto it and return
the same with his objections to the House
where it originated, which shall enter the
objections at large in its Journal and proceed
to reconsider it. If, after such reconsideration,
two-thirds of all the Members of such House
shall agree to pass the bill, it shall be sent,
together with the objections, to the other
House by which it shall likewise be
reconsidered, and if approved by two-thirds of
all the Members of that House, it shall become
a law. In all such cases, the votes of each
House shall be determined by yeas or nays,
and the names of the Members voting for or
against shall be entered in its Journal. The
President shall communicate his veto of any
bill to the House where it originated within
thirty days after the date of receipt thereof;
otherwise, it shall become a law as if he had
signed it.
24
 1987 Constitution, Article VI Section 24. –
All appropriation, revenue or tariff bills, bills
authorizing increase of public debt, bills of
local application, and private bills shall
originate exclusively in the House of
Representatives, but the Senate may propose
or concur with amendments.
 1987 Constitution, Article VI Section 23 (1).
25
– The Congress, by a vote of two-thirds of
both Houses in joint session assembled,
voting separately, shall have the sole power to
declare the existence of a state of war.
26
 1987 Constitution, Article VII Section 4. –
The returns of every election for President and
Vice-President, duly certified by the board of
canvassers of each province or city, shall be
transmitted to the Congress, directed to the
President of the Senate. Upon receipt of the
certificates of canvass, the President of the
Senate shall, not later than thirty days after
the day of the election, open all certificates in
the presence of the Senate and the House of
Representatives in joint public session, and
the Congress, upon determination of the
authenticity and due execution thereof in the
manner provided by law, canvass the votes.
The person having the highest number
of votes shall be proclaimed elected,
but in case two or more shall have an
equal and highest number of votes,
one of them shall forthwith be chosen
by the vote of a majority of all the
Members of both Houses of the
Congress, voting separately.
 1987 Constitution, Article XI Section 3 (1). –
27
The House of Representatives shall have the
exclusive power to initiate all cases of
impeachment.
xxx
(6) The Senate shall have the sole
power to try and decide all cases of
impeachment. When sitting for that
purpose, the Senators shall be on
oath or affirmation. When the
President of the Philippines is on trial,
the Chief Justice of the Supreme
Court shall preside, but shall not vote.
No person shall be convicted without
the concurrence of two-thirds of all the
Members of the Senate.
 Dated March 27, 2007; Annex "D," rollo, p.
28
104.
29
 Annex C, id. at 95. Quoting the
interpretation of Article VIII, Section (1) of the
Constitution by Fr. Joaquin Bernas in page
984 of his book, The 1987 Constitution of the
Republic of the Philippines, A Commentary.
He quoted another author, Hector de Leon,
and portions of the decisions of this Court in
Flores v. Drilon, and Escalante v. Santos,
before extensively quoting the Record of the
Constitutional Commission of 1986 (pages
444 to 491).
30
 Annex "E," id. at 1205.
31
 Rollo, pp. 91-93.
 G.R. No. 166006, March 14, 2008, 548
32
SCRA 485.
33
 Id. at 516-517. (Citations omitted.)
34
 Black’s Law Dictionary, Fifth ed., p. 198.
 Agpalo, Statutory Construction, 2009 ed., p.
35
231.
 Id., citing Cartwrite v. Cartwrite, 40 A2d 30,
36
155 ALR 1088 (1944).
37
 Id., Agpalo, p. 232
38
 Dissenting Opinion, Chief Justice
Panganiban, Central Bank (Now Bangko
Sentral Ng Pilipinas) Employees Association,
Inc. v. Bangko Sentral ng Pilipinas, G.R. No.
148208, December 15, 2004, 446 SCRA 299,
citing Peralta v. COMELEC. No. L-47771,
March 11, 1978, 82 SCRA 30, 77, citing
concurring and dissenting opinion of former
Chief Justice Fernando, citing Malcolm.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
ABAD, J.:
On July 17, 2012, the Court rendered a
Decision1 granting the petition for declaration of
unconstitutionality, prohibition, and injunction filed by
petitioner Francisco I. Chavez, and declaring that the
current numerical composition of the Judicial and Bar
Council (JBC) is unconstitutional. The Court also
enjoined the JBC to reconstitute itself so that only one
member of Congress will sit as a representative in its
proceedings, in accordance with Section 8(1), Article
VIII of the 1987 Constitution.
On July 24, 2012, respondents Senator Francis
Joseph G. Escudero and Congressman Niel C.
Tupas, Jr. moved for reconsideration.2 The Court then
conducted and heard the parties in oral arguments on
the following Issues:
1. Whether or not the current practice of the JBC to
perform its functions with eight members, two of
whom are members of Congress, runs counter to the
letter and spirit of Section 8(1), Article VIII of the 1987
Constitution.
A. Whether or not the JBC should be composed of
seven members only.
B. Whether or not Congress is entitled to more than
one seat in the JBC.
C. Assuming Congress is entitled to more than one
seat, whether or not each representative of Congress
should be entitled to exercise one whole vote.
I maintain my dissent to the majority opinion now
being reconsidered.
To reiterate, the vital question that needs to be
resolved is: whether or not the Senate and the House
of Representatives are entitled to one representative
each in the JBC, both with the right to cast one full
vote in its deliberations.
At the core of the present controversy is Section 8(1),
Article VIII of the 1987 Constitution, which provides
that:
Section 8. (1) A Judicial and Bar Council is hereby
created under the supervision of the Supreme Court
composed of the Chief Justice as ex officio Chairman,
the Secretary of Justice, and a representative of the
Congress as ex officio Members, a representative of
the Integrated Bar, a professor of law, a retired
Member of the Supreme Court, and a representative
of the private sector. (Emphasis supplied)
In interpreting Section 8(1) above, the majority opinion
reiterated that in opting to use the singular letter "a" to
describe "representative of the Congress," the Filipino
people through the framers of the 1987 Constitution
intended Congress to just have one representative in
the JBC. The majority opinion added that there could
not have been any plain oversight in the wordings of
the provision since the other provisions of the 1987
Constitution were amended accordingly with the shift
to a bicameral legislative body.
The mere fact, however, that adjustments were made
in some provisions should not mislead the Court into
concluding that all provisions have been amended to
recognize the bicameral nature of Congress. As I
have previously noted in my dissenting opinion, Fr.
Joaquin G. Bernas, a member of the Constitutional
Commission himself, admitted that the committee
charged with making adjustments in the previously
passed provisions covering the JBC, failed to consider
the impact of the changed character of the Legislature
on the inclusion of "a representative of the Congress"
in the membership of the JBC.3
Indeed, to insist that only one member of Congress
from either the Senate or the House of
Representatives should sit at any time in the JBC, is
to ignore the fact that they are still separate and
distinct from each other although they are both
involved in law-making. Both legislators are elected
differently, maintain separate administrative
organizations, and deliberate on laws independently.
In fact, neither the Senate nor the House of
Representatives can by itself claim to represent the
Congress.
Again, that the framers of the 1987 Constitution did
not intend to limit the term "Congress" to just either of
the two Houses can be seen from the words that they
used in crafting Section 8(1 ). While the provision
provides for just "a representative of the Congress," it
also provides that such representation is "ex officio" or
"by virtue of one's office, or position."4
Under the Senate rules, the Chairperson of its Justice
Committee is automatically the Senate representative
to the JBC. In the same way, under the House of
Representatives rules, the Chairperson of its Justice
Committee is the House representative to the JBC.
Consequently, there are actually two persons in
Congress who hold separate offices or positions with
the attached function of sitting in the JBC. If the Court
adheres to a literal translation of Section 8(1 ), no
representative from Congress will qualify as "ex
officio" member of the JBC. This would deny
Congress the representation that the framers of the
1987 Constitution intended it to have.
Having said that the Senate and the House of
Representatives should have one representative each
in the JBC, it is logical to conclude that each should
also have the right to cast one full vote in its
deliberations. To split the vote between the two
legislators would be an absurdity since it would
diminish their standing and make them second class
members of the JBC, something that the Constitution
clearly does not contemplate. Indeed, the JBC
abandoned the half-a-vote practice on January 12,
2000 and recognized the right of both legislators to
cast one full vote each. Only by recognizing this right
can the true spirit and reason of Section 8(1) be
attained.
For the above reasons, I vote to GRANT the motion
for reconsideration.
ROBERTO A. ABAD
Associate Justice
Footnotes
1
 Rollo, pp. 226-250.
2
 Id. at 257-284.
 3
 http://opinion.inquirer.net/31813/jbc-odds-
and-ends (last accessed February 15, 2013).
 Webster's New World College Dictionary, 3rd
4
Edition, p. 477.
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
LEONEN, J.:
I dissent.
Both the Senate and the House of Representatives
must be represented in the Judicial and Bar Council.
This is the Constitution's mandate read as a whole
and in the light of the ordinary and contemporary
understanding of our people of the structure of our
government. Any other interpretation diminishes
Congress and negates the effectivity of its
representation in the Judicial and Bar Council.
It is a Constitution we are interpreting. More than
privileging a textual preposition, our duty is to ensure
that the constitutional project ratified by our people is
given full effect.
At issue in this case is the interpretation of Article VIII,
Section 8 of the Constitution which provides the
following:
Section 8. (1) A Judicial and Bar Council is hereby
created under the supervision of the Supreme Court
composed of the Chief Justice as ex officio Chairman,
the Secretary of
Justice, and a representative of the Congress as ex
officio Members, a representative of the Integrated
Bar, a professor of law, a retired Member of the
Supreme Court, and a representative of the private
sector. (Emphasis provided)
Mainly deploying verba legis as its interpretative
modality, the main opinion chooses to focus on the
article "a." As correctly pointed out in the original
dissent of Justice Robert A bad, the entire phrase
includes the words "representative of Congress" and
"ex officio Members." In the context of the
constitutional plan involving a bicameral Congress,
these words create ambiguity.
A Bicameral Congress
Our Constitution creates a Congress consisting of two
chambers. Thus, in Article VI, Section 1, the
Constitution provides the following:
The legislative power shall be vested in the
Congress of the Philippines which shall consist of
a Senate and a House of Representatives x x x.
(Emphasis provided)
Senators are "elected at large by the qualified voters
of the Philippines".1 Members of the House of
Representatives, on the other hand, are elected by
legislative districts2 or through the party list
system.3 The term of a Senator4 is different from that
of a Member of the House of
Representatives.5 Therefore, the Senate and the
House of Representatives while component parts of
the Congress are not the same in terms of their
representation. The very rationale of a bicameral
system is to have the Senators represent a national
constituency. Representatives of the House of
Representatives, on the other hand, are dominantly
from legislative districts except for one fifth which are
from the party list system.
Each chamber is organized separately.6 The Senate
and the House each promulgates their own rules of
procedure.7 Each chamber maintains separate
Journals.8 They each have separate Records of their
proceedings.9The Senate and the House of
Representatives discipline their own respective
members.10
To belabor the point: There is no presiding officer for
the Congress of the Philippines, but there is a Senate
President and a Speaker of the House of
Representatives. There is no single journal for the
Congress of the Philippines, but there is a journal for
the Senate and a journal for the House of
Representatives. There is no record of proceedings
for the entire Congress of the Philippines, but there is
a Record of proceedings for the Senate and a Record
of proceedings for the House of Representatives. The
Congress of the Philippines does not discipline its
members. It is the Senate that promulgates its own
rules and disciplines its members. Likewise, it is the
House that promulgates its own rules and disciplines
its members.
No Senator reports to the Congress of the Philippines.
Rather, he or she reports to the Senate. No Member
of the House of Representatives reports to the
Congress of the Philippines. Rather, he or she reports
to the House of Representatives.
Congress, therefore, is the Senate and the House of
Representatives. Congress does not exist separate
from the Senate and the House of Representatives.
Any Senator acting ex officio or as a representative of
the Senate must get directions from the Senate. By
constitutional design, he or she cannot get
instructions from the House of Representatives. If a
Senator represents the Congress rather than simply
the Senate, then he or she must be open to amend or
modify the instructions given to him or her by the
Senate if the House of Representatives’ instructions
are different. Yet, the Constitution vests disciplinary
power only on the Senate for any Senator.
The same argument applies to a Member of the
House of Representatives.
No Senator may carry instructions from the House of
Representatives. No Member of the House of
Representatives may carry instructions from the
Senate. Neither Senator nor Member of the House of
Representatives may therefore represent Congress
as a whole.
The difference between the Senate and the House of
Representative was a subject of discussion in the
Constitutional Commission. In the July 21, 1986
Records of the Constitutional Commission,
Commissioner Jose F. S. Bengzon presented the
following argument during the discussion on
bicameralism, on the distinction between
Congressmen and Senators, and the role of the
Filipino people in making these officials accountable:
I grant the proposition that the Members of the House
of Representatives are closer to the people that they
represent. I grant the proposition that the Members of
the House of Representatives campaign on a one-to-
one basis with the people in the barrios and their
constituencies. I also grant the proposition that the
candidates for Senator do not have as much time to
mingle around with their constituencies in their
respective home bases as the candidates for the
House. I also grant the proposition that the candidates
for the Senate go around the country in their efforts to
win the votes of all the members of the electorate at a
lesser time than that given to the candidates for the
House of Representatives. But then the lesson of the
last 14 years has made us mature in our political
thinking and has given us political will and self-
determination. We really cannot disassociate the fact
that the Congressman, the Member of the House of
Representatives, no matter how national he would like
to think, is very much strongly drawn into the
problems of his local constituents in his own district.
Due to the maturity of the Filipinos for the last 14
years and because of the emergence of people
power, I believe that this so-called people power can
be used to monitor not only the Members of the
House of Representatives but also the Members of
the Senate. As I said we may have probably adopted
the American formula in the beginning but over these
years, I think we have developed that kind of a system
and adopted it to our own needs. So at this point in
time, with people power working, it is not only the
Members of the House who can be subjected to
people power but also the Members of the Senate
because they can also be picketed and criticized
through written articles and talk shows. And even the
people not only from their constituencies in their
respective regions and districts but from the whole
country can exercise people power against the
Members of the Senate because they are supposed
to represent the entire country. So while the Members
of Congress become unconsciously parochial in their
desire to help their constituencies, the Members of the
Senate are there to take a look at all of these
parochial proposals and coordinate them with the
national problems. They may be detached in that
sense but they are not detached from the people
because they themselves know and realize that they
owe their position not only to the people from their
respective provinces but also to the people from the
whole country. So, I say that people power now will be
able to monitor the activities of the Members of the
House of Representatives and that very same people
power can be also used to monitor the activities of the
Members of the Senate.11
Commissioner Bengzon provided an illustration of the
fundamental distinction between the House of
Representatives and the Senate, particularly
regarding their respective constituencies and
electorate. These differences, however, only illustrate
that the work of the Senate and the House of
Representatives taken together results in a Congress
functioning as one branch of government. Article VI,
Section 1, as approved by the Commission, spoke of
one Congress whose powers are vested in both the
House of Representatives and the Senate.
Thus, when the Constitution provides that a
"representative of Congress" should participate in the
Judicial and Bar Council, it cannot mean a Senator
carrying out the instructions of the House or a
Member of the House of Representative carrying out
instructions from the Senate. It is not the kind of a
single Congress contemplated by our Constitution.
The opinion therefore that a Senator or a Member of
the House of Representative may represent the
Congress as a whole is contrary to the intent of the
Constitution. It is unworkable.
One mechanism used in the past to work out the
consequence of the majority’s opinion is to allow a
Senator and a Member of the House of
Representative to sit in the Judicial and Bar Council
but to each allow them only half a vote.
Within the Judicial and Bar Council, the Chief Justice
is entitled to one vote. The Secretary of Justice is also
entitled to one whole vote and so are the Integrated
Bar of the Philippines, the private sector, legal
academia, and retired justices. Each of these sectors
are given equal importance and rewarded with one
whole vote. However, in this view, the Senate is only
worth fifty percent of the wisdom of these sectors.
Likewise, the wisdom of the House of Representatives
is only worth fifty percent of these institutions.
This is constitutionally abominable. It is inconceivable
that our people, in ratifying the Constitution granting
awesome powers to Congress, intended to diminish
its component parts. After all, they are institutions
composed of people who have submitted themselves
to the electorate. In creating shortlists of possible
candidates to the judiciary, we can safely suppose
that their input is not less than the input of the
professor of law or the member of the Integrated Bar
of the Philippines or the member from the private
sector.
The other solution done in the past was to alternate
the seat between a Senator and a Member of the
House of Representatives.
To alternate the seat given to Congress between the
Senate and the House of Representatives would
mean not giving a seat to the Congress at all. Again,
when a Senator is seated, he or she represents the
Senate and not Congress as a whole. When a
Member of the House of Representative is seated, he
or she can only represent Congress as a whole. Thus,
alternating the seat not only diminishes congressional
representation; it negates it.
Constitutional Interpretation
The argument that swayed the majority in this case’s
original decision was that if those who crafted our
Constitution intended that there be two
representatives from Congress, it would not have
used the preposition "a" in Article VIII, Section 8 (1).
However, beyond the number of representatives, the
Constitution intends that in the Judicial and Bar
Council, there will be representation from Congress
and that it will be "ex officio", i.e., by virtue of their
positions or offices. We note that the provision did not
provide for a number of members to the Judicial and
Bar Council. This is unlike the provisions creating
many other bodies in the Constitution.12
In other words, we could privilege or start our
interpretation only from the preposition "a" and from
there provide a meaning that ensures a difficult and
unworkable result -- one which undermines the
concept of a bicameral congress implied in all the
other 114 other places in the Constitution that uses
the word "Congress".
Or, we could give the provision a reasonable
interpretation that is within the expectations of the
people who ratified the Constitution by also seeing
and reading the words "representative of Congress"
and "ex officio."
This proposed interpretation does not violate the basic
tenet regarding the authoritativeness of the text of the
Constitution. It does not detract from the text. It
follows the canonical requirement of verba legis. But
in doing so, we encounter an ambiguity.
In Macalintal v. Presidential Electoral Tribunal,13 we
said:
As the Constitution is not primarily a lawyer’s
document, it being essential for the rule of law to
obtain that it should ever be present in the people’s
consciousness, its language as much as possible
should be understood in the sense they have in
common use. What it says according to the text of the
provision to be construed compels acceptance and
negates the power of the courts to alter it, based on
the postulate that the framers and the people mean
what they say. Thus these are cases where the need
for construction is reduced to a minimum.
However, where there is ambiguity or doubt, the
words of the Constitution should be interpreted in
accordance with the intent of its framers or ratio legis
et anima. A doubtful provision must be examined in
light of the history of the times, and the condition and
circumstances surrounding the framing of the
Constitution. In following this guideline, courts should
bear in mind the object sought to be accomplished in
adopting a doubtful constitutional provision, and the
evils sought to be prevented or remedied.
Consequently, the intent of the framers and the
people ratifying the constitution, and not the
panderings of self-indulgent men, should be given
effect.
Last, ut magis valeat quam pereat – the Constitution
is to be interpreted as a whole. We intoned thus in the
landmark case of Civil Liberties Union v. Executive
Secretary:
It is a well-established rule in constitutional
construction that no one provision of the Constitution
is to be separated from all the others, to be
considered alone, but that all the provisions bearing
upon a particular subject are to be brought into view
and to be so interpreted as to effectuate the great
purposes of the instrument. Sections bearing on a
particular subject should be considered and
interpreted together as to effectuate the whole
purpose of the Constitution and one section is not to
be allowed to defeat another, if by any reasonable
construction, the two can be made to stand together.
In other words, the court must harmonize them, if
practicable, and must lean in favor of a construction
which will render every word operative, rather than
one which may make the words idle and nugatory.
(Emphasis provided)
And in Civil Liberties Union v. Executive
Secretary,13 we said:
A foolproof yardstick in constitutional construction is
the intention underlying the provision under
consideration. Thus, it has been held that the Court in
construing a Constitution should bear in mind the
object sought to be accomplished by its adoption, and
the evils, if any, sought to be prevented or remedied.
A doubtful provision will be examined in the light of
the history of the times, and the condition and
circumstances under which the Constitution was
framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the
particular provision and the purpose sought to be
accomplished thereby, in order to construe the whole
as to make the words consonant to that reason and
calculated to effect that purpose.
The authoritativeness of text is no excuse to provide
an unworkable result or one which undermines the
intended structure of government provided in the
Constitution. Text is authoritative, but it is not
exhaustive of the entire universe of meaning.
There is no compelling reason why we should blind
ourselves as to the meaning of "representative of
Congress" and "ex officio." There is no compelling
reason why there should only be one representative
of a bicameral Congress.
Proposed Reasons for Only One Representative of
Congress
The first reason to support the need for only one
representative of Congress is the belief that there
needs to be an odd number in the Judicial and Bar
Council.
This is true only if the decision of the constitutional
organ in question is a dichotomous one, i.e., a yes or
a no. It is in this sense that a tie-breaker will be
necessary.
However, the Judicial and Bar Council is not that sort
of a constitutional organ. Its duty is to provide the
President with a shortlist of candidates to every
judicial position. We take judicial notice that for
vacancies, each member of the Judicial and Bar
Council is asked to list at least three (3) names. All
these votes are tallied and those who garner a
specific plurality are thus put on the list and
transmitted to the President. There had been no
occasion when the Judicial and Bar Council ever
needed to break a tie. The Judicial and Bar Council’s
functions proceed regardless of whether they have
seven or eight members.
The second reason that the main opinion accepted as
persuasive was the opinion that Congress does not
discharge its function to check and balance the power
of both the Judiciary and the Executive in the Judicial
and Bar Council. From this premise, it then proceeds
to argue that the Representative of Congress, who is
ex officio, does not need to consult with Congress as
a whole.
This is very perplexing and difficult to accept.
By virtue of the fundamental premise of separation of
powers, the appointing power in the judiciary should
be done by the Supreme Court. However, for judicial
positions, this is vested in the Executive. Furthermore,
because of the importance of these appointments, the
President’s discretion is limited to a shortlist submitted
to him by the Judicial and Bar Council which is under
the supervision of the Supreme Court but composed
of several components.
The Judicial and Bar Council represents the
constituents affected by judicial appointments and by
extension, judicial decisions. It provides for those who
have some function vis a vis the law that should be
applied and interpreted by our courts. Hence,
represented are practicing lawyers (Integrated Bar of
the Philippines), prosecutors (Secretary of the
Department of Justice), legal academia (professor of
law), and judges or justices (retired justice and the
Chief Justice). Also represented in some way are
those that will be affected by the interpretation directly
(private sector representative).
Congress is represented for many reasons.
One, it crafts statutes and to that extent may want to
ensure that those who are appointed to the judiciary
are familiar with these statutes and will have the
competence, integrity, and independence to read its
meaning.
Two, the power of judicial review vests our courts with
the ability to nullify their acts. Congress, therefore,
has an interest in the judicial philosophy of those
considered for appointment into our judiciary.
Three, Congress is a political organ. As such, it is
familiar with the biases of our political leaders
including that of the President. Thus, it will have
greater sensitivity to the necessity for political
accommodations if there be any. Keeping in mind the
independence required of our judges and justices, the
Members of Congress may be able to appreciate the
kind of balance that will be necessary -- the same
balance that the President might be able to likewise
appreciate -- when putting a person in the shortlist of
judicial candidates. Not only do they appreciate this
balance, they embody it. Senators and Members of
the House of Representatives (unlike any of the other
members of the Judicial and Bar Council), periodically
submit themselves to the electorate.
It is for these reasons that the Congressional
representatives in the Judicial and Bar Council may
be instructed by their respective chambers to consider
some principles and directions. Through resolutions or
actions by the Congressional Committees they
represent, the JBC Congressional representatives’
choices may be constrained. Therefore, they do not
sit there just to represent themselves. Again, they are
"representatives of Congress" "ex officio".
The third reason to support only one representative of
Congress is the belief that there is the "unmistakable
tenor" in the provision in question that one co-equal
branch should be represented only by one
Representative.14 It may be true that the Secretary of
Justice is the political alter ego of the President or the
Executive. However, Congress as a whole does not
have a political alter ego. In other words, while the
Executive may be represented by a single individual,
Congress cannot be represented by an individual.
Congress, as stated earlier, operates through the
Senate and the House of Representatives. Unlike the
Executive, the Legislative branch cannot be
represented by only one individual.
A Note on the Work of the Constitutional Commission
Time and again, we have clarified the interpretative
value to Us of the deliberations of the Constitutional
Commission. Thus in Civil Liberties Union v.
Executive Secretary, we emphasized:
While it is permissible in this jurisdiction to consult the
debates and proceedings of the constitutional
convention in order to arrive at the reason and
purpose of the resulting Constitution, resort thereto
may be had only when other guides fail as said
proceedings are powerless to vary the terms of the
Constitution when the meaning is clear. Debates in
the constitutional convention ‘are of value as showing
the views of the individual members, and as indicating
the reason for their votes, but they give Us no light as
to the views of the large majority who did not talk,
much less of the mass or our fellow citizens whose
votes at the polls gave that instrument the force of
fundamental law. We think it safer to construe the
constitution from what appears upon its face.’The
proper interpretation therefore depends more on
how it was understood by the people adopting it
than in the framers’ understanding
thereof.15 (Emphasis provided)
Also worth Our recall is the celebrated comment of
Charles P. Curtis, Jr. on the role of history in
constitutional exegesis:16
The intention of the framers of the Constitution, even
assuming we could discover what it was, when it is
not adequately expressed in the Constitution, that is
to say, what they meant when they did not say it,
surely that has no binding force upon us. If we look
behind or beyond what they set down in the
document, prying into what else they wrote and
what they said, anything we may find is only
advisory. They may sit in at our councils. There is
no reason why we should eavesdrop on
theirs.17 (Emphasis provided)
In addition to the interpretative value of the discussion
in the Constitutional Commission, we should always
be careful when we quote from their records without
understanding their context.
The Committees of the Constitutional Commission
were all tasked to finish their reports not later than
July 7, 1986.18 The Second and Third Readings were
scheduled to finish not later than August 15,
1986.19 The members of the Sponsorship and Style
Committee were tasked to finish their work of
formulating and polishing the style of the final draft of
the new Constitution scheduled for submission to the
entire membership of the Commission not later than
August 25, 1986.20
The Rules of the Constitutional Commission also
provided for a process of approving resolutions and
amendments.
Constitutional proposals were embodied in resolutions
signed by the author.21 If they emanated from a
committee, the resolution was signed by its
chairman.22 Resolutions were filed with the Secretary-
General.23 The First Reading took place when the
titles of the resolutions were read and referred to the
appropriate committee.24
The Committees then submitted a Report on each
resolution.25 The Steering Committee took charge of
including the committee report in the Calendar for
Second Reading.26 The Second Reading took place
on the day set for the consideration of a Commission for the whole day.
resolution.27 The provisions were read in full with the
amendments proposed by the committee, if there Then, a vote on the structure of Congress took
were any.28 place.43 Forty four (44) commissioners cast their votes
during the roll call.44 The vote was 23 to 22.45
A motion to close debate took place after three
speeches for and two against, or if only one speech On October 8, 1986, the Article on the Judiciary was
has been raised and none against it.29 The President reopened for purposes of introducing amendments to
of the Constitutional Commission had the prerogative the proposed Sections 3, 7, 10, 11, 13, and 14.46
to allow debates among those who had indicated that
they intended to be heard on certain matters.30 After On October 9, 1986, the entire Article on the
the close of the debate, the Constitutional Legislature was approved on Third Reading.47
Commission proceeded to consider the Committee
amendments.31
By October 10, 1986, changes in style on the Article
on the Legislature were introduced.48
After a resolution was approved on Second Reading,
it was included in the Calendar for Third
On October 15, 1986, Commissioner Guingona
Reading.32 Neither further debate nor amendment
presented the 1986 Constitution to the President of
shall be made on the resolution on its Third
the Constitutional Commission, Cecilia Munoz-
Reading.33 All constitutional proposals approved by
Palma.49
the Commission after Third Reading were referred to
the Committees on Sponsorship and Style for
collation, organization, and consolidation into a It is apparent that the Constitutional Commission
complete and final draft of the Constitution.34 The final either through the Style and Sponsorship Committee
draft was submitted to the Commission for the sole or the Committees on the Legislature and the
purpose of determining whether it reflects faithfully Judiciary was not able to amend the provision
and accurately the proposals as approved on Second concerning the Judicial and Bar Council after the
Reading.35 Commission had decided to propose a bicameral
Congress. We can take judicial notice of the
chronology of events during the deliberations of the
With respect to the provision which is now Article VIII,
Constitutional Commission. The chronology should be
Section 8 (1), the timetable was as follows:
taken as much as the substance of discussions
exchanged between the Commissioners.
On July 10, 1986, the Committee on the Judiciary
presented its Report to the
The quotations from the Commissioners mentioned in
Commission.36 Deliberations then took place on the
the main opinion and in the proposed resolution of the
same day; on July 11, 1986; and on July 14, 1986. It
present Motion for Reconsideration should thus be
was on July 10 that Commissioner Rodrigo raised
appreciated in its proper context.
points regarding the Judicial and Bar Council.37 The
discussion spoke of the Judicial and Bar Council
having seven members. The interpellation involving Commissioners Rodrigo
and Concepcion took place on July 10, 1986 and on
July 14, 1986.50 These discussions were about
Numerous mentions of the Judicial and Bar Council
Committee Report No. 18 on the Judiciary. Thus:
being comprised of seven members were also made
by Commissioners on July 14, 1986. On the same
day, the amended article was approved by unanimous MR. RODRIGO: Let me go to another point then.
voting.38
On page 2, Section 5, there is a novel provision about
On July 19, 1986, the vote on Third Reading on the appointments of members of the Supreme Court and
Article on the Judiciary took place.39 The vote was 43 of judges of lower courts. At present it is the President
and none against.40 who appoints them. If there is a Commission on
Appointments, then it is the President with the
confirmation of the Commission on Appointments. In
Committee Report No. 22 proposing an article on a
this proposal, we would like to establish a new office,
National Assembly was reported out by July 21,
a sort of a board composed of seven members, called
1986.41 It provided for a unicameral assembly.
the Judicial and Bar Council. And while the President
Commissioner Hilario Davide, Jr., made the
will still appoint the members of the judiciary, he will
presentation and stated that they had a very difficult
be limited to the recommendees of this Council.
decision to make regarding bicameralism and
unicameralism.42 The debate occupied the
 xxxx
MR. RODRIGO: Of the seven members of the Judicial
and Bar Council, the President appoints four of them
who are the regular members.
xxxx
MR. CONCEPCION: The only purpose of the
Committee is to eliminate partisan politics.51
xxxx
It must also be noted that during the same day and in
the same discussion, both Commissioners Rodrigo
and Concepcion later on referred to a ‘National
Assembly’ and not a ‘Congress,’ as can be seen here:
MR. RODRIGO: Another point. Under our present
Constitution, the National Assembly may enact rules
of court, is that right? On page 4, the proviso on lines
17 to 19 of the Article on the Judiciary provides:
The National Assembly may repeal, alter, or
supplement the said rules with the advice and
concurrence of the Supreme Court.
MR. CONCEPCION: Yes.
MR. RODRIGO: So, two things are required of the
National Assembly before it can repeal, alter or
supplement the rules concerning the protection and
enforcement of constitutional rights, pleading, etc. —
it must have the advice and concurrence of the
Supreme Court.
MR. CONCEPCION: That is correct.52
On July 14, 1986, the Commission proceeded with the
Period of Amendments. This was when the exchange
noted in the main opinion took place. Thus:
MR. RODRIGO: If my amendment is approved, then
the provision will be exactly the same as the provision
in the 1935 Constitution, Article VIII, Section 5.
xxxx
If we do not remove the proposed amendment on the
creation of the Judicial and Bar Council, this will be a
diminution of the appointing power of the highest
magistrate of the land, of the President of the
Philippines elected by all the Filipino people. The
appointing power will be limited by a group of seven
people who are not elected by the people but only
appointed.
Mr. Presiding Officer, if this Council is created, there
will be no uniformity in our constitutional provisions on
appointments. The members of the Judiciary will be
segregated from the rest of the government. Even a
municipal judge cannot be appointed by the President
except upon recommendation or nomination of three
names by this committee of seven people,
commissioners of the Commission on Elections, the
COA and Commission on Civil Service x x x even
ambassadors, generals of the Army will not come
under this restriction. Why are we going to segregate
the Judiciary from the rest of our government in the
appointment of the high-ranking officials?
Another reason is that this Council will be ineffective.
It will just besmirch the honor of our President without
being effective at all because this Council will be
under the influence of the President. Four out of
seven are appointees of the President, and they can
be reappointed when their term ends. Therefore, they
would kowtow to the President. A fifth member is the
Minister of Justice, an alter ego of the President.
Another member represents the legislature. In all
probability, the controlling party in the legislature
belongs to the President and, therefore, this
representative from the National Assembly is also
under the influence of the President. And may I say,
Mr. Presiding Officer, that even the Chief Justice of
the Supreme Court is an appointee of the President.
So, it is futile; he will be influenced anyway by the
President.53
It must again be noted that during this day and period
of amendments after the quoted passage in the
Decision, the Commission later on made use of the
term ‘National Assembly’ and not ‘Congress’ again:
MR. MAAMBONG: Presiding Officer and members of
the Committee, I propose to delete the last sentence
on Section 16, lines 28 to 30 which reads: "The Chief
Justice shall address the National Assembly at the
opening of each regular session."
May I explain that I have gone over the operations of
other deliberative assemblies in some parts of the
world, and I noticed that it is only the Chief Executive
or head of state who addresses the National
Assembly at its opening. When we say "opening," we
are referring to the first convening of any national
assembly. Hence, when the Chief Executive or head
of state addresses the National Assembly on that
occasion, no other speaker is allowed to address the
body.
So I move for the deletion of this last sentence.54
Based on the chronology of events, the discussions
cited by the main ponencia took place when the
commissioners were still contemplating a unicameral
legislature in the course of this discussion.
Necessarily, only one Representative would be
needed to fully effect the participation of a unicameral
legislature. Therefore, any mention of the composition
of the JBC having seven members in the records of
the Constitutional Commission, particularly during the
dates cited, was obviously within the context that the
Commission had not yet voted and agreed upon a
bicameral legislature.
The composition of the Congress as a bilateral
legislature became final only after the JBC
discussions as a seven-member Council indicated in
the Records of the Constitutional Commission took
place. This puts into the proper context the
recognition by Commissioner Christian Monsod on
July 30, 1986, which runs as follows:
ordinary people who seek to understand this most
basic law through Our decisions would understand
that beyond a single isolated text -- even beyond a
prepos1t10n in Article VIII, Section 8 (1 ), our
primordial values and principles are framed,
congealed and will be given full effect.
In a sense, we do not just read words in a legal
document; we give meaning to a Constitution.
For these reasons, I vote to grant the Motion for
Reconsideration and deny the Petition for lack of
merit.
MARVIC MARIO VICTOR F. LEONEN
Associate Justice

Last week, we voted for a bicameral legislature.

Perhaps it is symptomatic of what the thinking of this
group is, that all the provisions that were being drafted
up to that time assumed a unicameral government.55

The repeated mentions of the JBC having seven

members as indicated in the Records of the
Constitutional Commission do not justify the points
raised by petitioner. This is a situation where the
records of the Constitutional Commission do not serve
even as persuasive means to ascertain intent at least
in so far as the intended numbers for the Judicial and
Bar Council. Certainly they are not relevant even to
advise us on how Congress is to be represented in
that constitutional organ.

We should never forget that when we interpret the

Constitution, we do so with full appreciation of every
part of the text within an entire document understood
by the people as they ratified it and with all its
contemporary consequences. As an eminent author in
constitutional theory has observed while going
through the various interpretative modes presented in
jurisprudence: "x x x all of the methodologies that will
be discussed, properly understood, figure in
constitutional analysis as opportunities: as starting
points, constituent parts of complex arguments, or
concluding evocations." 56

Discerning that there should be a Senator and a

Member of the House of Representatives that sit in
the Judicial and Bar Council so that Congress can be
fully represented ex officio is not judicial activism. It is
in keeping with the constitutional project of a
bicameral Congress that is effective whenever and
wherever it is represented. It is in tune with how our
people understand Congress as described in the
fundamental law. It is consistent with our duty to read
the authoritative text of the Constitution so that

G.R. No. 192088               October 9, 2012
INITIATIVES FOR DIALOGUE AND
EMPOWERMENT THROUGH ALTERNATIVE
LEGAL SERVICES, INC. (IDEALS, INC.),
represented by its Executive Director, Mr.
Edgardo Ligon, and FREEDOM FROM DEBT
COALITION (FDC), represented by its Vice
President Rebecca L. Malay, AKBAYAN CITIZEN'S
ACTION PARTY, represented by its Chair
Emeritus Loretta Anne P. Rosales, ALLIANCE OF
PROGRESSIVE LABOR, represented by its
Chairperson, Daniel L. Edralin, REP. WALDEN
BELLO, in his capacity as duly-elected Member of
the House of Representatives, Petitioners, 
vs.
POWER SECTOR ASSETS AND LIABILITIES
MANAGEMENT CORPORATION (PSALM),
represented by its Acting President and Chief
Executive Officer Atty. Ma. Luz L. Caminero,
METROPOLITAN WATERWORKS AND
SEWERAGE SYSTEM (MWSS), represented by its
Administrator Atty. Diosdado M. Allado,
NATIONAL IRRIGATION ADMINISTRATION (NIA),
represented by its Administrator Carlos S.
Salazar, KOREA WATER RESOURCES
CORPORATION, represented by its Chief
Executive Officer, Kim Kuen-Ho and/or Attorneys-
in-fact, Atty. Anna Bianca L. Torres and Atty.
Luther D. Ramos, FIRST GEN NORTHERN
ENERGY CORP., represented by its President, Mr.
Federico R. Lopez, SAN MIGUEL CORP.,
represented by its President, Mr. Ramon S. Ang,
SNABOITIZ POWER-PANGASINAN INC.,
represented by its President, Mr. Antonio R.
Moraza, TRANS-ASIA OIL AND ENERGY
DEVELOPMENT CORPORATION, represented by
its President and CEO, Mr. Francisco L. Viray, and
DMCI POWER CORP., represented by its
President, Mr. Nestor Dadivas, Respondents.
DECISION
VILLARAMA, J.:
Before us is a petition for certiorari and prohibition
seeking to permanently enjoin the sale of the Angat
Hydro-Electric Power Plant (AHEPP) to Korea Water
Resources Corporation (K-Water) which won the
public bidding conducted by the Power Sector Assets
and Liabilities Management Corporation (PSALM).
The Facts
Respondent PSALM is a government-owned and
controlled corporation created by virtue of Republic
Act No. 9136, otherwise known as the "Electric Power
1 
Industry Reform Act of 2001" (EPIRA). The
EPIRAprovided a framework for the restructuring of
the electric power industry, including the privatization
of the assets of the National Power Corporation
(NPC), the transition to the desired competitive
structure, and the definition of the responsibilities of
the various government agencies and private entities.
Said law mandated PSALM to manage the orderly
sale, disposition, and privatization of NPC generation
assets, real estate and other disposable assets, and
Independent Power Producer (IPP) contracts with the
objective of liquidating all NPC financial obligations
and stranded contract costs in an optimal manner,
which liquidation is to be completed within PSALM’s
25-year term of existence. 2 
Sometime in August 2005, PSALM commenced the
privatization of the 246-megawatt (MW) AHEPP
located in San Lorenzo, Norzagaray, Bulacan.
AHEPP’s main units built in 1967 and 1968, and 5
auxiliary units, form part of the Angat Complex which
includes the Angat Dam, Angat Reservoir and the
outlying watershed area. A portion of the AHEPP - the
10 MW Auxiliary Unit No. 4 completed on June 16,
1986 and the 18 MW Auxiliary Unit No. 5 completed
on January 14, 1993 - is owned by respondent
Metropolitan Waterworks and Sewerage System
(MWSS). The main units produce a total of 200 MW
3 
of power while the auxiliary units yield the remaining
46 MW of power. The Angat Dam and AHEPP are
utilized for power generation, irrigation, water supply
and flood control purposes. Because of its multi-
functional design, the operation of the Angat Complex
involves various government agencies, namely: (1)
NPC; (2) National Water Resources Board (NWRB);
(3) MWSS; (4) respondent National Irrigation
Administration (NIA); and (5) Philippine Atmospheric,
Geophysical and Astronomical Services
Administration (PAG-ASA).
On December 15, 2009, PSALM’s Board of Directors
approved the Bidding Procedures for the privatization
of the AHEPP. An Invitation to Bid was published on
January 11, 12 and 13, 2010 in three major national
newspapers. Subject of the bid was the AHEPP
consisting of 4 main units and 3 auxiliary units with an
aggregate installed capacity of 218 MW. The two
auxiliary units owned by MWSS were excluded from
the bid.
The following terms and conditions for the purchase of
AHEPP were set forth in the Bidding Package:
IB-05 CONDITION OF THE SALE
The Asset shall be sold on an "AS IS, WHERE
IS" basis.
The Angat Dam (which is part of the Non-Power
Components) is a multi-purpose hydro facility which
currently supplies water for domestic use, irrigation
and power generation. The four main units of the
Angat Plant release water to an underground trailrace
that flows towards the Bustos Dam which is owned
and operated by the National Irrigation Administration
("NIA") and provides irrigation requirements to certain
areas in Bulacan. The water from the auxiliary units 1,
2 and 3 flows to the Ipo Dam which is owned and
operated by MWSS and supplies domestic water to
Metro Manila and other surrounding cities.
The priority of water usage under Philippine Law
would have to be observed by the Buyer/Operator.
The Winning Bidder/Buyer shall be requested to enter
into an operations and maintenance agreement with
PSALM for the Non-Power Components in
accordance with the terms and conditions of the O &
M Agreement to be issued as part of the Final
Transaction Documents. The Buyer, as Operator,
shall be required to operate and maintain the Non-
Power Components at its own cost and expense.
PSALM is currently negotiating a water protocol
agreement with various parties which are currently the
MWSS, NIA, the National Water Resources Board
and NPC. If required by PSALM, the Buyer will be
required to enter into the said water protocol
agreement as a condition to the award of the Asset.
The Buyer shall be responsible for securing the
necessary rights to occupy the land underlying the
Asset. (Emphasis supplied.)
4  (3) the bidding was not conducted in an open and
All participating bidders were required to comply with
the following:
(a) submission of a Letter of Interest; (b) execution of
Confidentiality Agreement and Undertaking; and (c)
payment of a non-refundable fee of US$ 2,500 as
Participation Fee. After holding pre-bid conferences
5 
and forum discussions with various stakeholders,
PSALM received the following bids from six
competing firms:
US$
K-Water
440,880,000.00
First Gen Northern Energy 365,000,678.00
Corporation  
San Miguel Corporation 312,500,000.00
SNAboitiz Power-Pangasinan,
256,000,000.00
Inc.
Trans-Asia Oil & Energy 237,000,000.00
Development Corporation  
DMCI Power Corporation 188,890,000.00
On May 5, 2010, and after a post-bid evaluation,
PSALM’s Board of Directors approved and confirmed
the issuance of a Notice of Award to the highest
bidder, K-Water. 6 
On May 19, 2010, the present petition with prayer for
a temporary restraining order (TRO) and/or writ of
preliminary injunction was filed by the Initiatives for
Dialogue and Empowerment Through Alternative
Legal Services, Inc. (IDEALS), Freedom from Debt
Coalition (FDC), AKBAYAN Citizen’s Action Party
(AKBAYAN) and Alliance of Progressive Labor.
On May 24, 2010, this Court issued a Status QuoAnte
Order directing the respondents to maintain the status
quo prevailing before the filing of the petition and to
file their respective Comments on the petition. 7 
Arguments of the Parties
Petitioners contend that PSALM gravely abused its
discretion when, in the conduct of the bidding it
disregarded and violated the people’s right to
information guaranteed under the Constitution, as
follows: (1) the bidding process was commenced by
PSALM without having previously released to the
public critical information such as the terms and
conditions of the sale, the parties qualified to bid and
the minimum bid price, as laid down in the case of
Chavez v. Public Estates Authority ; (2) PSALM
8 
refused to divulge significant information requested by
petitioners, matters which are of public concern; and
transparent manner, participation was indiscriminately
restricted to the private sectors in violation of the
EPIRA which provides that its provisions shall be
"construed in favor of the establishment, promotion,
preservation of competition and people empowerment
so that the widest participation of the people, whether
directly or indirectly, is ensured."
9 
Petitioners also assail the PSALM in not offering the
sale of the AHEPP to MWSS which co-owned the
Angat Complex together with NPC and NIA. Being a
mere co-owner, PSALM cannot sell the AHEPP
without the consent of co-owners MWSS and NIA,
and being an indivisible thing, PSALM has a positive
obligation to offer its undivided interest to the other
co-owners before selling the same to an outsider.
Hence, PSALM’s unilateral disposition of the said
hydro complex facility violates the Civil Code rules on
co-ownership (Art. 498) and Sec. 47 (e) of the EPIRA
which granted PSALM the legal option of transferring
possession, control and operation of NPC generating
assets like the AHEPP to another entity in order "to
protect potable water, irrigation and all other
requirements imbued with public interest."
As to the participation in the bidding of and award of
contract to K-Water which is a foreign corporation,
petitioners contend that PSALM clearly violated the
constitutional provisions on the appropriation and
utilization of water as a natural resource, as
implemented by the Water Code of the Philippines
limiting water rights to Filipino citizens and
corporations which are at least 60% Filipino-owned.
Further considering the importance of the Angat Dam
which is the source of 97% of Metro Manila’s water
supply, as well as irrigation for farmlands in 20
municipalities and towns in Pampanga and Bulacan,
petitioners assert that PSALM should prioritize such
domestic and community use of water over that of
power generation.
They maintain that the Philippine Government, along
with its agencies and subdivisions, have an obligation
under international law, to recognize and protect the
legally enforceable human right to water of petitioners
and the public in general.
Petitioners cite the Advisory on the "Right to Water in
Light of the Privatization of the Angat Hydro-Electric
Power Plant" dated November 9, 2009 issued by the
10  bidding in an open and transparent manner, through a
Commission on Human Rights (CHR) urging the
Government to revisit and reassess its policy on water
resources vis-à-vis its concurrent obligations under
international law to provide, and ensure and sustain,
among others, "safe, sufficient, affordable and
convenient access to drinking water." Since
investment in hydropower business is primarily driven
by generation of revenues both for the government
and private sector, the CHR warns that once the
AHEPP is privatized, there will be less accessible
water supply, particularly for those living in Metro
Manila and the Province of Bulacan and nearby areas
which are currently benefited by the AHEPP. The
CHR believes that the management of AHEPP is
better left to MWSS being a government body and
considering the public interest involved. However,
should the decision to privatize the AHEPP become
inevitable, the CHR strongly calls for specific and
concrete safeguards to ensure the right to water of all,
as the domestic use of water is more fundamental
than the need for electric power.
Petitioners thus argue that the protection of their right
to water and of public interest requires that the
bidding process initiated by PSALM be declared null
and void for violating such right, as defined by
international law and by domestic law establishing the
State’s obligation to ensure water security for its
people.
In its Comment With Urgent Motion to Lift Status Quo
Ante Order, respondent PSALM prayed for the
dismissal of the petition on the following procedural
grounds: (a) a petition for certiorari is not the proper
remedy because PSALM was not acting as a tribunal
or board exercising judicial or quasi-judicial functions
when it commenced the privatization of AHEPP; (b)
the present petition is rendered moot by the issuance
of a Notice of Award in favor of K-Water; (c) assuming
the petition is not mooted by such contract award, this
Court has no jurisdiction over the subject matter of the
controversy involving a political question, and also
because if it were the intent of Congress to exclude
the AHEPP in the privatization of NPC assets, it
should have clearly expressed such intent as it did
with the Agus and Pulangui power plants under Sec.
47 of the EPIRA; (d) petitioners’ lack of standing to
question the bidding process for failure to show any
injury as a result thereof, while Rep. Walden Bello
likewise does not have such legal standing in his
capacity as a duly elected member of the House of
Representatives as can be gleaned from the rulings in
David v. Arroyo and Philippine Constitutional
11 
Association v. Enriquez.12 
On the alleged violation of petitioners’ right to
information, PSALM avers that it conducted the
series of events in accordance with the governing
rules on public bidding. The non-disclosure of certain
information in the invitation to bid was
understandable, such as the minimum or reserve
price which are still subject to negotiation and
approval of PSALM’s Board of Directors. The ruling in
Chavez v. Public Estates Authority is inapplicable
13 
since it involved government property which has
become unserviceable or was no longer needed and
thus fell under Sec. 79 of the Government Auditing
Code whereas the instant case concerns a
hydroelectric power plant adjacent to a dam which still
provides water supply to Metro Manila. In the bidding
for the AHEPP, PSALM claims that it relied on the
Rules and Regulations Implementing the EPIRA, as
well as COA Circular No. 89-296 on the general
procedures for bidding by government agencies and
instrumentalities of assets that will be divested or
government property that will be disposed of. PSALM
likewise avers that it was constrained to deny
petitioner IDEALS’ letter dated April 20, 2010
requesting documents relative to the privatization of
Angat Dam due to non-submission of a Letter of
Interest, Confidentiality and Undertaking and non-
payment of the Participation Fee. With regard to
IDEALS’ request for information about the winning
bidder, as contained in its letter dated May 14, 2010,
the same was already referred to respondent K-
Water’s counsel for appropriate action.
In any case, PSALM maintains that not all details
relative to the privatization of the AHEPP can be
readily disclosed; the confidentiality of certain matters
was necessary to ensure the optimum bid price for the
property.
PSALM further refutes the assertion of petitioners that
the Angat Complex is an indivisible system and co-
owned with MWSS and NIA. It contends that MWSS’s
contribution in the funds used for the construction of
the AHEPP did not give rise to a regime of co-
ownership as the said funds were merely in exchange
for the supply of water that MWSS would get from the
Angat Dam, while the Umiray-AngatTransbasin
Rehabilitation Project the improvement and repair of
which were funded by MWSS, did not imply a co-
ownership as these facilities are located in remote
places. Moreover, PSALM points out that PSALM,
MWSS and NIA each was issued a water permit, and
are thus holders of separate water rights.
On the alleged violation of petitioners’ and the
people’s right to water, PSALM contends that such is
baseless and proceeds from the mistaken assumption
that the Angat Dam was sold and as a result thereof,
the continuity and availability of domestic water supply
will be interrupted. PSALM stresses that only the
hydroelectric facility is being sold and not the Angat
Dam which remains to be owned by PSALM, and that
the NWRB still governs the water allocation therein
while the NPC-FFWSDO still retains exclusive control
over the opening of spillway gates during rainy
season. The foregoing evinces the continued
collective control by government agencies over the
Angat Dam, which in the meantime, is in dire need of
repairs, the cost of which cannot be borne by the
Government.
PSALM further debunks the nationality issue raised by
petitioners, citing previous opinions rendered by the
Department of Justice (DOJ) consistently holding that
the utilization of water by a hydroelectric power plant
does not constitute appropriation of water from its
natural source considering that the source of water
(dam) that enters the intake gate of the power plant is
an artificial structure. Moreover, PSALM is mindful of
the State’s duty to protect the public’s right to water
when it sold the AHEPP. In fact, such concern as
taken into consideration by PSALM in devising a
privatization scheme for the AHEPP whereby the
water allocation is continuously regulated by the
NWRB and the dam and its spillway gates remain
under the ownership and control of NPC.
In its Comment, respondent MWSS asserts that by
14 
virtue of its various statutory powers since its creation
in 1971, which includes the construction, maintenance
and operation of dams, reservoir and other
waterworks within its territorial jurisdiction, it has
supervision and control over the Angat Dam given
that the Angat Reservoir supplies approximately 97%
of the water requirements of Metro Manila. Over the
course of its authority over the Angat Dam, Dykes and
Reservoir, MWSS has incurred expenses to maintain
their upkeep, improve and upgrade their facilities.
Thus, in 1962, MWSS contributed about 20% for the
construction cost of the Angat Dam and Dykes (then
equivalent to about ₱ 21 million); in 1992, MWSS
contributed about ₱ 218 million for the construction of
Auxiliary Unit No. 5; in 1998, MWSS contributed ₱
73.5 million for the construction cost of the low level
outlet; and subsequently, MWSS invested ₱ 3.3 billion
to build the Umiray-AngatTransbasin Tunnel to
supplement the water supply available from the Angat
Dam, which tunnel contributes a minimum of about 9
cubic meters per second to the Angat Reservoir, thus
increasing power generation. MWSS argues that its
powers over waterworks are vested upon it by a
special law (MWSS Charter) which prevails over the
EPIRA which is a general law, as well as other special
laws, issuances and presidential edicts. And as
contained in Sec. 1 of the MWSS Charter, which
remains valid and effective, it is expressly provided
that the establishment, operation and maintenance of
waterworks systems must always be supervised by
the State.
MWSS further alleges that after the enactment of
EPIRA, it had expressed the desire to acquire
ownership and control of the AHEPP so as not to
leave the operation of the Angat Reservoir to private
discretion that may prejudice the water allocation to
MWSS as dictated by NWRB rules.
Representations were thereafter made with the Office
of the President (OP) for the turn over of the
management of these facilities to MWSS, and joint
consultation was also held with PSALM officials for
the possibility of a Management Committee to
manage and control the Angat Dam Complex under
the chairmanship of the water sector, which position
was supported by former Secretary
HermogenesEbdane of the Department of Public
Works and Highways (DPWH). In March 2008,
PSALM proposed the creation of an inter-agency
technical working group (TWG) to draft the Operations
and Maintenance (O & M) Agreement for the AHEPP
that will be in effect after its privatization. PSALM
likewise sought the view of the Office of the
Government Corporate Counsel (OGCC) which
opined that PSALM may turn over the facility to a
qualified entity such as MWSS without need of public
bidding. In 2009, various local governments supported
the transfer of the control and management of the
AHEPP to MWSS, while the League of Cities and
Municipalities interposed its opposition to the
privatization of the AHEPP fearing that it might
increase the cost of water in Metro Manila, and also
because it will be disadvantageous to the national
government since the AHEPP only contributes 246
MW of electricity to the Luzon Grid. Even the CHR
has advised the Government to reassess its
privatization policy and to always consider paramount
the most basic resources necessary and
indispensable for human survival, which includes
water.
MWSS further avers that upon the facilitation of the
OGCC and participated in by various stakeholders,
including its two concessionaires, Manila Water
Company, Inc. and Maynilad Water Services, Inc.,
various meetings and conferences were held relative
to the drafting of the
Memorandum of Agreement on the Angat Water
Protocol. On April 20, 2010, the final draft of the Angat
Water Protocol was finally complete. However, as of
June 18, 2010, only MWSS and NIA signed the said
final draft. MWSS thus contends that PSALM failed to
institute any safeguards as prescribed in Sec. 47 of
the EPIRA when it proceeded with the privatization of
the AHEPP.
As to the issue of nationality requirement in the
appropriation of water resources under the
Constitution, MWSS cites the case of Manila Prince
Hotel v. Government Service Insurance
System which interpreted paragraph 2, Sec. 10, Art.
15 
XII of the 1987 Constitution providing that "in the grant
of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give
preference to qualified Filipinos" to imply "a
mandatory, positive command which is complete in
itself and which needs no further guidelines or
implementing laws or rules for its enforcement x xx
and is per se judicially enforceable." In this case, the
AHEPP is in dire danger of being wholly-owned by a
Korean corporation which probably merely considers
it as just another business opportunity, and as such
cannot be expected to observe and ensure the
smooth facilitation of the more critical purposes of
water supply and irrigation.
Respondent First Gen Northern Energy Corporation
(FGNEC) also filed a Comment disagreeing with the
16  Power Corporation, Trans-Asia Oil and Energy
contentions of petitioners and respondent MWSS on
account of the following: (1) the NPC charter vested
upon it complete jurisdiction and control over
watersheds like the Angat Watershed surrounding the
reservoir of the power plants, and hence Art. 498 of
the Civil Code is inapplicable; (2) NPC, MWSS and
NIA are not co-owners of the various rights over the
Angat Dam as in fact each of them holds its own
water rights; (3) the State through the EPIRA
expressly mandates PSALM to privatize all NPC
assets, which necessarily includes the AHEPP; (4) the
privatization of the AHEPP will not affect the priority of
water for domestic and municipal uses as there are
sufficient safeguards to ensure the same, and also
because the Water Code specifically mandates that
such use shall take precedence over other uses, and
even the EPIRA itself gives priority to use of water for
domestic and municipal purposes over power
generation; (5) the Water Protocol also safeguards
priority of use of water for domestic purposes; (6) the
bidding procedure for the AHEPP was valid, and the
bidding was conducted by PSALM in an open and
transparent manner; and (7) the right to information of
petitioners and the public in general was fully
satisfied, and PSALM adopted reasonable rules and
regulations for the orderly conduct of its functions
pursuant to its mandate under the EPIRA.
FGNEC nevertheless prays of this Court to declare
the nationality requirements for the ownership,
operation and maintenance of the AHEPP as
prescribed by the Constitution and pertinent laws.
Considering the allegation of petitioners that K-Water
is owned by the Republic of South Korea, FGNEC
asserts that PSALM should not have allowed said
entity to participate in the bidding because under our
Constitution, the exploration, development and
utilization of natural resources are reserved to Filipino
citizens or to corporations with 60% of their capital
being owned by Filipinos.
Respondent NIA filed its Comment stating that its
17 
interest in this case is limited only to the protection of
its water allocation drawn from the Angat Dam as
determined by the NWRB. Acknowledging that it has
to share the meager water resources with other
government agencies in fulfilment of their respective
mandate, NIA submits that it is willing to sit down and
discuss issues relating to water allocation, as
evidenced by the draft Memorandum of Agreement on
the Angat Water Protocol. Since the reliefs prayed for
in the instant petition will not be applicable to NIA
which was not involved in the bidding conducted by
PSALM, it will thus not be affected by the outcome of
the case.
Respondents San Miguel Corporation (SMC), DMCI
Development Corporation and SNAboitiz Power-
Pangasinan, Inc. filed their respective
Comments with common submission that they are
18 
not real parties-in-interest and should be excluded
from the case. They assert that PSALM acted
pursuant to its mandate to privatize the AHEPP when
it conducted the bidding, and there exists no reason
for them to take any action to invalidate the said
bidding wherein they lost to the highest bidder K-
Water.
On its part, respondent K-Water filed a Manifestation
In Lieu of Comment stating that it is not in a position
19  the requirement under COA Circular 89-296 as
to respond to petitioners’ allegations, having justifiably
relied on the mandate and expertise of PSALM in the
conduct of public bidding for the privatization of the
AHEPP and had no reason to question the legality or
constitutionality of the privatization process, including
the bidding. K-Water submits that its participation in
the bidding for the AHEPP was guided at all times by
an abiding respect for the Constitution and the laws of
the Philippines, and hopes for a prompt resolution of
the present petition to further strengthen and enhance
the investment environment – considering the level of
investment entailed, not only in financial terms – by
providing a definitive resolution and reliable guidance
for investors, whether Filipino or foreign, as basis for
effective investment and business decisions.
In their Consolidated Reply, petitioners contend that
20  and management of the Non-Power Components,
the instant petition is not mooted with the issuance of
a Notice of Award to K-Water because the
privatization of AHEPP is not finished until and unless
the deed of absolute sale has been executed. They
cite the ruling in David v. Arroyo, that courts will
21  absence of a signed Water Protocol is alarming in the
decide cases, otherwise moot and academic, if:
first, there is a grave violation of the Constitution;
second, the exceptional character of the situation and
the paramount public interest is involved; third, when
constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar and
the public; and fourth, the case is capable of repetition
yet evading review.
Petitioners reiterate their legal standing to file the
present suit in their capacity as taxpayers, or as
Filipino citizens asserting the promotion and
protection of a public right, aside from being directly
injured by the proceedings of PSALM. As to the
absence of Certification and Verification of Non-
Forum Shopping from petitioner Bello in the file copy
of PSALM, the same was a mere inadvertence in
photocopying the same.
On the matter of compliance with an open and
transparent bidding, petitioners also reiterate as held
in Chavez v. Public Estates Authority, that the Court’s
22  was constructed in 1967, or four years before the
interpretation of public bidding applies to any law
which requires public bidding, especially since Sec.
79 of the Government Auditing Code does not
enumerate the data that must be disclosed to the
public. PSALM should have followed the minimum
requirements laid down in said case instead of
adopting the "format generally used by government
entities in their procurement of goods, infrastructure
and consultancy services," considering that what was
involved in Chavez is an amended Joint Venture
Agreement which seeks to transfer title and ownership
over government property. Petitioners point out that
regards confidentiality covers only sealed proposals
and not all information relating to the AHEPP
privatization. PSALM’s simple referral of IDEALS’
request letter to the counsel of K-Water is very telling,
indicating PSALM’s limited knowledge about a
company it allowed to participate in the bidding and
which even won the bidding.
On the transfer of water rights to K-Water, petitioners
reiterate that this violates the Water Code, and
contrary to PSALM’s statements, once NPC transfers
its water permit to K-Water, in accordance with the
terms of the Asset Purchase Agreement, NPC gives
up its authority to extract or utilize water from the
Angat River. Petitioners further assert that the terms
of the sale of AHEPP allowing the buyer the operation
constitutes a relinquishment of government control
over the Angat Dam, in violation of Art. XII, Sec. 2 of
the Constitution. PSALM likewise has not stated that
all stakeholders have signed the Water Protocol. Such
light of PSALM’s pronouncement that the terms of the
sale to K-Water would still subject to negotiation. Is
PSALM’s refusal to sign the Water Protocol part of its
strategy to negotiate the terms of the sale with the
bidders? If so, then PSALM is blithely and cavalierly
bargaining away the Filipinos’ right to water.
Responding to the claims of MWSS in its Comment,
PSALM contends that MWSS’s allegations regarding
the bidding process is belied by MWSS’s own
admission that it held discussions with PSALM to
highlight the important points and issues surrounding
the AHEPP privatization that needed to be threshed
out. Moreover, MWSS also admits having
participated, along with other agencies and
stakeholders, various meetings and conferences
relative to the drafting of a Memorandum of
Agreement on the Angat Water Protocol.
As regards the Angat Dam, PSALM emphasizes that
MWSS never exercised jurisdiction and control over
the said facility. PSALM points out that the Angat Dam
enactment of Republic Act No. 6234, upon the
commissioning thereof by the NPC and the
consequent construction by Grogun, Inc., a private
corporation. MWSS’ attempt to base its claim of
jurisdiction over the Angat Dam upon its
characterization of EPIRA as a general law must
likewise fail. PSALM explains that EPIRA cannot be
classified as a general law as it applies to a particular
portion of the State, i.e., the energy sector. The
EPIRA must be deemed an exception to the provision
in the Revised MWSS Charter on MWSS’s general
jurisdiction over waterworks systems.
PSALM stresses that pursuant to the EPIRA, PSALM
took ownership of all existing NPC generation assets,
liabilities, IPP contracts, real estate and other
disposable assets, which necessarily includes the
AHEPP Complex, of which the Angat Dam is part. As
to the OGCC opinion cited by MWSS to support its
position that control and management of the Angat
Dam Complex should be turned over to MWSS, the
OGCC had already issued a second opinion dated
August 20, 2008 which clarified the tenor of its earlier
Opinion No. 107, s. 2008, stating that "the disposal of
the Angat HEPP by sale through public bidding – the
principal mode of disposition under EPIRA – remains
PSALM’s primary option." Moreover, as pointed out
by the National Economic Development Authority
(NEDA) in its letter dated September 16, 2009, the
ownership and operation of a hydropower plant goes
beyond the mandate of MWSS. This view is
consistent with the provisions of EPIRA mandating the
transfer of ownership and control of NPC generation
assets, IPP Contracts, real estate and other
disposable assets to a private person or entity.
Consequently, a transfer to another government entity
of the said NPC assets would be a clear violation of
the EPIRA. Even assuming such is allowed by EPIRA,
it would not serve the objective of the EPIRA, i.e., that
of liquidating all NPC’s financial obligations and would
merely transfer NPC’s debts from the hands of one
government entity to another, the funds that would be
utilized by MWSS in the acquisition of the AHEPP
would doubtless come from the pockets of the Filipino
people.
As regards the opposition of various local government
units to the sale of the AHEPP, PSALM said that a
forum was held specifically to address their concerns.
After the said forum, these LGUs did not anymore
raise the same concerns; such inaction on their part
could be taken as an acquiescence to, and
acceptance of, the explanations made by PSALM
during the forum.
PSALM had made it clear that it is only the AHEPP
and not the Angat Dam which was being privatized.
The same wrong premise underpinned the position of
the CHR with its erroneous allegation that MWSS is
allowed, under its Revised Charter, to operate and
maintain a power plant.
PSALM further contends that the sale of AHEPP to K-
Water did not violate the Constitution’s provision on
the State’s natural resources and neither is the ruling
in Manila Prince Hotel applicable as said case was
decided under different factual circumstances. It
reiterates that the AHEPP, being a generation asset,
can be sold to a foreign entity, under the EPIRA, in
accordance with the policy reforms said law
introduced in the power sector; the EPIRA aims to
enable open access in the electricity market and then
enable the government to concentrate more fully on
the supply of basic needs to the Filipino people.
Owing to the competitive and open nature of the
generation sector, foreign corporation may own
generation assets.
Issues
The present controversy raised the following issues:
1) Legal standing of petitioners;
2) Mootness of the petition;
3) Violation of the right to information;
4) Ownership of the AHEPP;
5) Violation of Sec. 2, Art. XII of the Constitution;
6) Violation of the Water Code provisions on the grant
of water rights; and
7) Failure of PSALM to comply with Sec. 47 (e) of
EPIRA.
Mootness and Locus Standi
PSALM’s contention that the present petition had
already been mooted by the issuance of the Notice of
Award to K-Water is misplaced. Though petitioners
had sought the immediate issuance of injunction
against the bidding commenced by PSALM --
specifically enjoining it from proceeding to the next
step of issuing a notice of award to any of the bidders
-- they further prayed that PSALM be permanently
enjoined from disposing of the AHEPP through
privatization. The petition was thus filed not only as a
means of enforcing the State’s obligation to protect
the citizens’ "right to water" that is recognized under
international law and legally enforceable under our
Constitution, but also to bar a foreign corporation from
exploiting our water resources in violation of Sec. 2,
Art. XII of the 1987 Constitution. If the impending sale
of the AHEPP to K-Water indeed violates the
Constitution, it is the duty of the Court to annul the
contract award as well as its implementation. As this
Court held in Chavez v. Philippine Estates
Authority, "supervening events, whether intended or
23 
accidental, cannot prevent the Court from rendering a
decision if there is a grave violation of the
Constitution."
We also rule that petitioners possess the requisite
legal standing in filing this suit as citizens and
taxpayers.
"Legal standing" or locus standi has been defined as
a personal and substantial interest in the case such
that the party has sustained or will sustain direct injury
as a result of the governmental act that is being
challenged, alleging more than a generalized
grievance. The gist of the question of standing is
whether a party alleges "such personal stake in the
outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of
issues upon which the court depends for illumination
of difficult constitutional questions." This Court,
24 
however, has adopted a liberal attitude on the locus
standi of a petitioner where the petitioner is able to
craft an issue of transcendental significance to the
people, as when the issues raised are of paramount
importance to the public. Thus, when the proceeding
25 
involves the assertion of a public right, the mere fact
that the petitioner is a citizen satisfies the requirement
of personal interest.26 
There can be no doubt that the matter of ensuring
adequate water supply for domestic use is one of
paramount importance to the public. That the
continued availability of potable water in Metro Manila
might be compromised if PSALM proceeds with the
privatization of the hydroelectric power plant in the
Angat Dam Complex confers upon petitioners such
personal stake in the resolution of legal issues in a
petition to stop its implementation.
Moreover, we have held that if the petition is anchored
on the people’s right to information on matters of
public concern, any citizen can be the real party in
interest. The requirement of personal interest is
satisfied by the mere fact that the petitioner is a
citizen, and therefore, part of the general public which
possesses the right. There is no need to show any
special interest in the result. It is sufficient that
petitioners are citizens and, as such, are interested in
the faithful execution of the laws.27 
Violation of Right to Information
The people’s right to information is provided in
Section 7, Article III of the Constitution, which reads:
Sec. 7. The right of the people to information on
matters of public concern shall be recognized. Access
to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions,
as well as to government research data used as basis
for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.
(Emphasis supplied.)
The people’s constitutional right to information is
intertwined with the government’s constitutional duty
of full public disclosure of all transactions involving
public interest. Section 28, Article II of the
28 
Constitution declares the State policy of full
transparency in all transactions involving public
interest, to wit:
Sec. 28. Subject to reasonable conditions prescribed
by law, the State adopts and implements a policy of
full public disclosure of all its transactions involving
public interest. (Italics supplied.)
The foregoing constitutional provisions seek to
promote transparency in policy-making and in the
operations of the government, as well as provide the
people sufficient information to exercise effectively
other constitutional rights. They are also essential to
hold public officials "at all times x xx accountable to
the people," for unless citizens have the proper
information, they cannot hold public officials
accountable for anything. Armed with the right
information, citizens can participate in public
discussions leading to the formulation of government
policies and their effective implementation. An
informed citizenry is essential to the existence and
proper functioning of any democracy. 29 
Consistent with this policy, the EPIRA was enacted to
provide for "an orderly and transparent privatization"
of NPC’s assets and liabilities. Specifically, said law
30 
mandated that "all assets of NPC shall be sold in an
open and transparent manner through public
bidding."31 
In Chavez v. Public Estates Authority involving the
32 
execution of an Amended Joint Venture Agreement
on the disposition of reclaimed lands without public
bidding, the Court held:
x x xBefore the consummation of the contract, PEA
must, on its own and without demand from anyone,
disclose to the public matters relating to the
disposition of its property. These include the size,
location, technical description and nature of the
property being disposed of, the terms and conditions
of the disposition, the parties qualified to bid, the
minimum price and similar information. PEA must
prepare all these data and disclose them to the public
at the start of the disposition process, long before the
consummation of the contract, because the
Government
Auditing Code requires public bidding. If PEA fails to
make this disclosure, any citizen can demand from
PEA this information at any time during the bidding
process.
Information, however, on on-going evaluation or
review of bids or proposals being undertaken by the
bidding or review committee is not immediately
accessible under the right to information. While the
evaluation or review is still on-going, there are no
"official acts, transactions, or decisions" on the bids or
proposals. However, once the committee makes its
official recommendation, there arises a "definite
proposition" on the part of the government. From this
moment, the public’s right to information attaches, and
any citizen can access all the non-proprietary
information leading to such definite proposition. In
Chavez v. PCGG, the Court ruled as follows:
"Considering the intent of the framers of the
Constitution, we believe that it is incumbent upon the
PCGG and its officers, as well as other government
representatives, to disclose sufficient public
information on any proposed settlement they have
decided to take up with the ostensible owners and
holders of ill-gotten wealth. Such information, though,
must pertain to definite propositions of the
government not necessarily to intra-agency or inter-
agency recommendations or communications during
the stage when common assertions are still in the
process of being formulated or are in the "exploratory"
stage. There is need, of course, to observe the same
restrictions on disclosure of information in general, as
discussed earlier – such as on matters involving
national security, diplomatic or foreign relations,
intelligence and other classified information."
(Emphasis supplied.)
Chavez v. Public Estates Authority thus laid down the
rule that the constitutional right to information includes
official information on on-going negotiations before a
final contract. The information, however, must
constitute definite propositions by the government and
should not cover recognized exceptions like privileged
information, military and diplomatic secrets and similar
matters affecting national security and public order. In
addition, Congress has prescribed other limitations on
the right to information in several legislations.
33  government contract.
In this case, petitioners’ first letter dated April 20,
2010 requested for documents such as Terms of
Reference and proposed bids submitted by the
bidders. At that time, the bids were yet to be
submitted at the bidding scheduled on April 28, 2010.
It is also to be noted that PSALM’s website carried
news and updates on the sale of AHEPP, providing
important information on bidding activities and
clarifications regarding the terms and conditions of the
Asset Purchase Agreement (APA) to be signed by
PSALM and the winning bidder (Buyer). 34  with the constitutional requirement and inconsistent
In Chavez v. National Housing Authority, the Court
35 
held that pending the enactment of an enabling law,
the release of information through postings in public
bulletin boards and government websites satisfies the
constitutional requirement, thus:
It is unfortunate, however, that after almost twenty
(20) years from birth of the 1987 Constitution, there is
still no enabling law that provides the mechanics for
the compulsory duty of government agencies to
disclose information on government transactions.
Hopefully, the desired enabling law will finally see the
light of day if and when Congress decides to approve
the proposed "Freedom of Access to Information Act."
In the meantime, it would suffice that government
agencies post on their bulletin boards the documents
incorporating the information on the steps and
negotiations that produced the agreements and the
agreements themselves, and if finances permit, to
upload said information on their respective websites
for easy access by interested parties. Without any law
or regulation governing the right to disclose
information, the NHA or any of the respondents
cannot be faulted if they were not able to disclose
information relative to the SMDRP to the public in
general. (Emphasis supplied.)
36 
The Court, however, distinguished the duty to disclose
information from the duty to permit access to
information on matters of public concern under Sec. 7,
Art. III of the Constitution. Unlike the disclosure of
information which is mandatory under the
Constitution, the other aspect of the people’s right to
know requires a demand or request for one to gain
access to documents and paper of the particular
agency. Moreover, the duty to disclose covers only
transactions involving public interest, while the duty to
allow access has a broader scope of information
which embraces not only transactions involving public
interest, but any matter contained in official
communications and public documents of the
government agency. Such relief must be granted to
37 
the party requesting access to official records,
documents and papers relating to official acts,
transactions, and decisions that are relevant to a
Here, petitioners’ second letter dated May 14, 2010
specifically requested for detailed information
regarding the winning bidder, such as company
profile, contact person or responsible officer, office
address and Philippine registration. But before
PSALM could respond to the said letter, petitioners
filed the present suit on May 19, 2010. PSALM’s
letter-reply dated May 21, 2010 advised petitioners
that their letter-re quest was referred to the counsel of
K-Water. We find such action insufficient compliance
with the policy under EPIRA to implement the
privatization of NPC assets in an "open and
transparent" manner. PSALM’s evasive response to
the request for information was unjustified because all
bidders were required to deliver documents such as
company profile, names of authorized
officers/representatives, financial and technical
experience.
Consequently, this relief must be granted to
petitioners by directing PSALM to allow petitioners
access to the papers and documents relating to the
company profile and legal capacity of the winning
bidder. Based on PSALM’s own press releases, K-
Water is described as a Korean firm with extensive
experience in implementing and managing water
resources development projects in South Korea, and
also contributed significantly to the development of
that country’s heavy and chemical industries and the
modernization of its national industrial structure.
AngatHEPP is Under the Jurisdiction of
the Department of Energy Through NPC
It must be clarified that though petitioners had alleged
a co-ownership by virtue of the joint supervision in the
operation of the Angat Complex by MWSS, NPC and
NIA, MWSS actually recognized the ownership and
jurisdiction of NPC over the hydroelectric power plant
itself. While MWSS had initially sought to acquire
ownership of the AHEPP without public bidding, it now
prays that PSALM be ordered to turn over the
possession and control of the said facility to MWSS.
MWSS invokes its own authority or "special powers"
by virtue of its general jurisdiction over waterworks
systems, and in consideration of its substantial
investments in the construction of two auxiliary units
in the AHEPP, as well as the construction of the
Umiray-AngatTransbasin Tunnel to supplement the
water intake at the Angat Reservoir which resulted in
increased power generation.
Records disclosed that as early as December 2005,
following the decision of PSALM’s Board of Directors
to commence the sale process of the AHEPP along
with Magat and AmlanHEPPs in August 2005, MWSS
was actively cooperating and working with PSALM
regarding the proposed Protocol for the Privatization
of the AHEPP, specifically on the terms and
conditions for the management, control and operation
of the Angat Dam Complex taking into consideration
the concerns of its concessionaires. A Technical
Working Group (TWG) similar to that formed for the
Operation and Management Agreement of
Pantabangan and Magat dams was created,
consisting of representatives from PSALM, MWSS
and other concerned agencies, to formulate strategies
for the effective implementation of the privatization of
AHEPP and appropriate structure for the operation
and management of the Angat Dam Complex. 38 
In March 2008, PSALM sought legal advice from the
OGCC on available alternatives to a sale structure for
the AHEPP. On May 27, 2008, then Government
Corporate Counsel Alberto C. Agra issued Opinion
No. 107, s. 2008 stating that PSALM is not limited to
39 
"selling" as a means of fulfilling its mandate under the
EPIRA, and that in dealing with the AHEPP, PSALM
has the following options:
1. Transfer the ownership, possession, control, and
operation of the Angat Facility to another entity, which
may or may not be a private enterprise, as specifically
provided under Section 47 (e) of RA 9136;
2. Transfer the Angat Facility, through whatever form,
to another entity for the purpose of protecting the
public interest. 40 
The OGCC cited COA Circular No. 89-296 which
provides that government property or assets that are
no longer serviceable or needed "may be transferred
to other government entities/agencies without cost or
at an appraised value upon authority of the head or
governing body of the agency or corporation, and
upon due accomplishment of an Invoice and Receipt
of Property." Pointing out the absence of any
prohibition under R.A. No. 9136 and its IRR for
PSALM to transfer the AHEPP to another government
instrumentality, and considering that MWSS is
allowed under its charter to acquire the said facility,
the OGCC expressed the view that PSALM may, "in
the interest of stemming a potential water crisis, turn
over the ownership, operations and management of
the Angat Facility to a qualified entity, such as the
MWSS, without need of public bidding as the latter is
also a government entity." 41 
Consequently, MWSS requested the Office of the
President (OP) to exclude the AHEPP from the list of
NPC assets to be privatized under the EPIRA. Said
request was endorsed to the Department of Finance
(DOF) which requested the National Economic
Development Authority (NEDA) to give its comments.
Meanwhile, on August 20, 2008, the OGCC issued a
Clarification on its Opinion No. 107, s. 2008 stating
42 
that the tenor of the latter issuance was "permissive"
and "necessarily, the disposal of the AHEPP by sale
through public bidding – the principal mode of
disposition under x xx R.A. 9136 – remains PSALM’s
primary option." The OGCC further explained its
position, thus:
If, in the exercise of PSALM’s discretion, it determines
that privatization by sale through public bidding is the
best mode to fulfill its mandate under R.A. 9136, and
that this mode will not contravene the State’s declared
policy on water resources, then the same is legally
permissible.
Finally, in OGCC Opinion No. 107 s. 2008, this Office
underscored "the overriding policy of the State x xx
recognizing that ‘water is vital to national development
x xx’ and the crucial role which the Angat Facility
plays in the uninterrupted and adequate supply and
distribution of potable water to residents of Metro
Manila." This Office reiterates "the primacy of the
State’s interest in mitigating the possible deleterious
effects of an impending "water crisis" encompassing
areas even beyond Metro Manila." Any transfer of the
AHEPP to be undertaken by PSALM – whether to a
private or public entity – must not contravene the
State’s declared policy of ensuring the flow of clean,
potable water under RA 6395 and 9136, and
Presidential Decree 1067. Hence, said transfer and/or
privatization scheme must ensure the preservation of
the AHEPP as a vital source of water for Metro Manila
and the surrounding provinces. (Emphasis supplied.)
43 
On September 16, 2009, NEDA Deputy Director
General Rolando G. Tungpalan, by way of comment
to MWSS’s position, wrote the DOF stating that
MWSS’s concern on ensuring an uninterrupted and
adequate supply of water for domestic use is amply
protected and consistently addressed in the EPIRA.
Hence, NEDA concluded that there appears to be no
basis to exclude AHEPP from the list of NPC
generation assets to be privatized and no compelling
reason to transfer its management, operations and
control to MWSS. NEDA further pointed out that:
44  through five auxiliary turbines where it is diverted to
Ownership and operation of a hydropower plant,
however, goes beyond the mandate of MWSS.To
operate a power generation plant, given the sector’s
legislative setup would require certification and
permits that has to be secured by the operator.
MWSS does not have the technical capability to
undertake the operation and maintenance of the
AHEPP nor manage the contract of a contracted
private party to undertake the task for MWSS. While
MWSS may tap NPC to operate and maintain the
AHEPP, this, similar to contracting out a private party,
may entail additional transaction costs, and ultimately
result to higher generation rates. (Emphasis
45  and other works for the purpose of developing
supplied.)
Thereafter, MWSS sought the support of the DPWH in
a letter dated September 24, 2009 addressed to then
Secretary Hermogenes E. Ebdane, Jr., for the
exclusion of the AHEPP from the list of NPC assets to
be privatized and instead transfer the ownership,
possession and control thereof to MWSS with
reasonable compensation. Acting on the said request,
Secretary Ebdane, Jr. wrote a memorandum for the
President recommending that "the Angat Dam be
excluded from the list of NPC assets to be privatized,
and that the ownership, management and control of
the Dam be transferred from NPC to MWSS, with
reasonable compensation." 46 
Based on the foregoing factual backdrop, there seems
to be no dispute as to the complete jurisdiction of
NPC over the government-owned Angat Dam and
AHEPP.
The Angat Reservoir and Dam were constructed from
1964 to 1967 and have become operational since
1968. They have multiple functions:
1) To provide irrigation to about 31,000 hectares of
land in 20 municipalities and towns in Pampanga and
Bulacan;
2) To supply the domestic and industrial water
requirements of residents in Metro Manila;
3) To generate hydroelectric power to feed the Luzon
Grid; and
4) To reduce flooding to downstream towns and
villages. 47 
The Angat Dam is a rockfill dam with a spillway
equipped with three gates at a spilling level of 219
meters and has storage capacity of about 850 million
cubic meters. Water supply to the MWSS is released
the two tunnels going to the Ipo Dam. The Angat
48 
Dam is one of the dams under the management of
NPC while the La Mesa and Ipo dams are being
managed by MWSS. MWSS is a government
corporation existing by virtue of R.A. No.
6234. NAPOCOR or NPC is also a government-
49 
owned corporation created under Commonwealth Act
(C.A.) No. 120, which, among others, was vested
50 
with the following powers under Sec. 2, paragraph (g):
(g) To construct, operate and maintain power plants,
auxiliary plants, dams, reservoirs, pipes, mains,
transmission lines, power stations and substations,
hydraulic power from any river, creek, lake, spring and
waterfall in the Philippines and supplying such power
to the inhabitants thereof; to acquire, construct, install,
maintain, operate and improve gas, oil, or steam
engines, and/or other prime movers, generators and
other machinery in plants and/or auxiliary plants for
the production of electric power; to establish, develop,
operate, maintain and administer power and lighting
system for the use of the Government and the general
public; to sell electric power and to fix the rates and
provide for the collection of the charges for any
service rendered: Provided, That the rates of charges
shall not be subject to revision by the Public Service
Commission;
x x x x (Emphasis supplied.)
On September 10, 1971, R.A. No. 6395 was enacted
which revised the charter of NPC, extending its
corporate life to the year 2036. NPC thereafter
continued to exercise complete jurisdiction over dams
and power plants including the Angat Dam, Angat
Reservoir and AHEPP. While the NPC was expressly
granted authority to construct, operate and maintain
power plants, MWSS was not vested with similar
function. Section 3 (f), (o) and (p) of R.A. No. 6234
provides that MWSS’s powers and attributes include
the following –
(f) To construct, maintain, and operate dams,
reservoirs, conduits, aqueducts, tunnels, purification
plants, water mains, pipes, fire hydrants, pumping
stations, machineries and other waterworks for the
purpose of supplying water to the inhabitants of its
territory, for domestic and other purposes; and to
purify, regulate and control the use, as well as prevent
the wastage of water;
xxxx
(o) To assist in the establishment, operation and
maintenance of waterworks and sewerage systems
within its jurisdiction under cooperative basis;
(p) To approve and regulate the establishment and
construction of waterworks and sewerage systems in
privately owned subdivisions within its jurisdiction; x
xx. (Emphasis supplied.)
On December 9, 1992, by virtue of R.A. No.
7638, NPC was placed under the Department of
51 
Energy (DOE) as one of its attached agencies.
Aside from its ownership and control of the Angat
Dam and AHEPP, NPC was likewise mandated to
exercise complete jurisdiction and control over its
watershed, pursuant to Sec. 2 (n) and (o) of R.A. No.
6395 for development and conservation purposes:
(n) To exercise complete jurisdiction and control over
watersheds surrounding the reservoirs of plants
and/or projects constructed or proposed to be
constructed by the Corporation. Upon determination
by the Corporation of the areas required for
watersheds for a specific project, the Bureau of
Forestry, the Reforestation Administration and the
Bureau of Lands shall, upon written advice by the
Corporation, forthwith surrender jurisdiction to the
Corporation of all areas embraced within the
watersheds, subject to existing private rights, the
needs of waterworks systems, and the requirements
of domestic water supply;
(o) In the prosecution and maintenance of its projects,
the Corporation shall adopt measures to prevent
environmental pollution and promote the
conservation, development and maximum utilization
of natural resources; and
x x x x (Emphasis supplied.)
On December 4, 1965, Presidential Proclamation No.
505 was issued amending Proclamation No. 71 by
transferring the administration of the watersheds
established in Montalban, San Juan del Monte,
Norzagaray, Angat, San Rafael, Peñaranda and
Infanta, Provinces of Rizal, Bulacan, Nueva Ecija and
Quezon, to NPC. Subsequent executive issuances
Presidential Decree (P.D.) No. 1515 which was
signed in June 1978 and amended by P.D. No. 1749
in December 1980 led to the creation of the NPC
Watershed Management Division which presently has
11 watershed areas under its management. 52 
Privatization of AHEPP Mandatory Under EPIRA
With the advent of EPIRA in 2001, PSALM came into
existence for the principal purpose of managing the
orderly sale, privatization and disposition of
generation assets, real estate and other disposable
assets of the NPC including IPP Contracts.
Accordingly, PSALM was authorized to take title to
and possession of, those assets transferred to it.
EPIRA mandated that all such assets shall be sold
through public bidding with the exception of Agus and
Pulangui complexes in Mindanao, the privatization of
which was left to the discretion of PSALM in
consultation with Congress, thus:
53 
Sec. 47. NPC Privatization. – Except for the assets of
SPUG, the generation assets, real estate, and other
disposable assets as well as IPP contracts of NPC
shall be privatized in accordance with this Act. Within
six (6) months from the effectivity of this Act, the
PSALM Corp. shall submit a plan for the endorsement
by the Joint Congressional Power Commission and
the approval of the President of the Philippines, on the
total privatization of the generation assets, x xx of
NPC and thereafter, implement the same, in
accordance with the following guidelines, except as
provided for in paragraph (f) herein:
x xxx
(d) All assets of NPC shall be sold in an open and
transparent manner through public bidding, x xx;
x xxx
(f) The Agus and the Pulangui complexes in
Mindanao shall be excluded from among the
generation companies that will be initially privatized.
Their ownership shall be transferred to the PSALM
Corp. and both shall continue to be operated by the
NPC. Said complexes may be privatized not earlier
than ten (10) years from the effectivity of this Act, x
xx.The privatization of Agus and Pulangui complexes
shall be left to the discretion of PSALM Corp. in
consultation with Congress;
x xxx (Emphasis supplied.)
The intent of Congress not to exclude the AHEPP
from the privatization of NPC generation assets is
evident from the express provision exempting only the
aforesaid two power plants in Mindanao. Had the
legislature intended that PSALM should likewise be
allowed discretion in case of NPC generation assets
other than those mentioned in Sec. 47, it could have
explicitly provided for the same. But the EPIRA
exempted from privatization only those two plants in
Mindanao and the Small Power Utilities Group
(SPUG). Expressiouniusestexclusioalterius, the
54  296 likewise has no application to NPC generating
express inclusion of one implies the exclusion of all
others. 55  needed by the Government for the purpose of
It is a settled rule of statutory construction that the
express mention of one person, thing, or
consequence implies the exclusion of all others. The
rule is expressed in the familiar maxim,
expressiouniusestexclusioalterius.
The rule of expressiouniusestexclusioalterius is
formulated in a number of ways. One variation of the
rule is principle that what is expressed puts an end to
that which is implied. Expressiumfacitcessaretacitum.
Thus, where a statute, by its terms, is expressly
limited to certain matters, it may not, by interpretation
or construction, be extended to other matters.
x xxx
The rule of expressiouniusestexclusioalterius and its
variations are canons of restrictive interpretation.
They are based on the rules of logic and the natural
workings of the human mind. They are predicated
upon one’s own voluntary act and not upon that of
others. They proceed from the premise that the
legislature would not have made specified
enumeration in a statute had the intention been not to
restrict its meaning and confine its terms to those
expressly mentioned. 56  utilization of natural resources shall be under the full
The Court therefore cannot sustain the position of
petitioners, adopted by respondent MWSS, that
PSALM should have exercised the discretion not to
proceed with the privatization of AHEPP, or at least
the availability of the option to transfer the said facility
to another government entity such as MWSS. Having
no such discretion in the first place, PSALM
committed no grave abuse of discretion when it
commenced the sale process of AHEPP pursuant to
the EPIRA.
In any case, the Court finds that the operation and
maintenance of a hydroelectric power plant is not
among the statutorily granted powers of MWSS.
Although MWSS was granted authority to construct
and operate dams and reservoirs, such was for the
specific purpose of supplying water for domestic and
other uses, and the treatment, regulation and control
of water usage, and not power generation. Moreover,
57 
since the sale of AHEPP by PSALM merely
implements the legislated reforms for the electric
power industry through schemes that aim "to enhance
the inflow of private capital and broaden the
ownership base of the power generation, transmission
and distribution sectors," the proposed transfer to
58 
MWSS which is another government entity
contravenes that State policy. COA Circular No. 89-
assets which are still serviceable and definitely
liquidating NPC’s accumulated debts amounting to
billions in US Dollars. Said administrative circular
cannot prevail over the EPIRA, a special law
governing the disposition of government properties
under the jurisdiction of the DOE through NPC.
Sale of Government-Owned AHEPP
to a Foreign Corporation Not Prohibited
But Only Filipino Citizens and Corporations
60% of whose capital is owned by Filipinos
May be Granted Water Rights
The core issue concerns the legal implications of the
acquisition by K-Water of the AHEPP in relation to the
constitutional policy on our natural resources.
Sec. 2, Art. XII of the 1987 Constitution provides in
part:
SEC.2. All lands of the public domain, waters,
minerals, coal, petroleum, and other mineral oils, all
forces of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural resources
are owned by the State. With the exception of
agricultural lands, all other natural resources shall not
be alienated. The exploration, development, and
control and supervision of the State. The State may
directly undertake such activities, or it may enter into
co-production, joint venture, or production-sharing
agreements with Filipino citizens, or corporations or
associations at least sixty per centum of whose capital
is owned by such citizens. Such agreements may be
for a period not exceeding twenty-five years,
renewable for not more than twenty-five years, and
under such terms and conditions as may be provided
by law. In case of water rights for irrigation, water
supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be
the measure and limit of the grant.
x xxx (Emphasis supplied.)
The State’s policy on the management of water
resources is implemented through the regulation of
water rights. Presidential Decree No. 1067, otherwise
known as "The Water Code of the Philippines" is the
basic law governing the ownership, appropriation
utilization, exploitation, development, conservation
and protection of water resources and rights to land
related thereto. The National Water Resources
Council (NWRC) was created in 1974 under P.D. No.
424 and was subsequently renamed as National
Water Resources Board (NWRB) pursuant to
Executive Order No. 124-A. The NWRB is the chief
59  government-owned or controlled corporations, shall
coordinating and regulating agency for all water
resources management development activities which
is tasked with the formulation and development of
policies on water utilization and appropriation, the
control and supervision of water utilities and
franchises, and the regulation and rationalization of
water rates.60 
The pertinent provisions of Art. 3, P.D. No. 1067
provide:
Art. 3. The underlying principles of this
code are:
a. All waters belong to the State.
b. All waters that belong to the State
can not be the subject to acquisitive
prescription.
c. The State may allow the use or
development of waters by
administrative concession.
d. The utilization, exploitation,
development, conservation and
protection of water resources shall be
subject to the control and regulation of
the government through the National
Water Resources Council x xx
e. Preference in the use and
development of waters shall consider
current usages and be responsive to
the changing needs of the country.
x xxx
Art. 9. Waters may be appropriated and used in
accordance with the provisions of this Code.
Appropriation of water, as used in this Code, is the
acquisition of rights over the use of waters or the
taking or diverting of waters from a natural source in
the manner and for any purpose allowed by law.
Art. 10. Water may be appropriated for
the following purposes:
x xxx
(d) Power generation
x xxx
Art. 13. Except as otherwise herein provided, no
person including government instrumentalities or
appropriate water without a water right, which shall be
evidenced by a document known as a water permit.
Water right is the privilege granted by the government
to appropriate and use water.
x xxx
Art. 15. Only citizens of the Philippines, of legal age,
as well as juridical persons, who are duly qualified by
law to exploit and develop water resources, may apply
for water permits. (Emphasis supplied.)
It is clear that the law limits the grant of water rights
only to Filipino citizens and juridical entities duly
qualified by law to exploit and develop water
resources, including private corporations with sixty
percent of their capital owned by Filipinos. In the case
of Angat River, the NWRB has issued separate water
permits to MWSS, NPC and NIA. 61 
Under the EPIRA, the generation of electric power, a
business affected with public interest, was opened to
private sector and any new generation company is
required to secure a certificate of compliance from the
Energy Regulatory Commission (ERC), as well as
health, safety and environmental clearances from the
concerned government agencies. Power generation
shall not be considered a public utility operation, and
62 
hence no franchise is necessary. Foreign investors
are likewise allowed entry into the electric power
industry. However, there is no mention of water rights
in the privatization of multi-purpose hydropower
facilities. Section 47 (e) addressed the issue of water
security, as follows:
(e) In cases of transfer of possession, control,
operation or privatization of multi-purpose hydro
facilities, safeguards shall be prescribed to ensure
that the national government may direct water usage
in cases of shortage to protect potable water,
irrigation, and all other requirements imbued with
public interest;
x xxx (Emphasis supplied.)
This provision is consistent with the priority accorded
to domestic and municipal uses of water under the
63  safe and reliable operation of the hydropower plants.
Water Code, thus:
Art. 22. Between two or more appropriators of water
from the same sources of supply, priority in time of
appropriation shall give the better right, except that in
times of emergency the use of water for domestic and
municipal purposes shall have a better right over all
other uses; Provided, That, where water shortage is
recurrent and the appropriator for municipal use has a
lower priority in time of appropriation, then it shall be
his duty to find an alternative source of supply in
accordance with conditions prescribed by the Board.
(Emphasis supplied.)
Rule 23, Section 6 of the Implementing Rules and
Regulations (IRR) of the EPIRA provided for the
structure of appropriation of water resources in multi-
purpose hydropower plants which will undergo
privatization, as follows:
Section 6. Privatization of Hydroelectric Generation
Plants.
(a) Consistent with Section 47(e) of the Act and
Section 4(f) of this Rule, the Privatization of hydro
facilities of NPC shall cover the power component
including assignable long-term water rights
agreements for the use of water, which shall be
passed onto and respected by the buyers of the
hydroelectric power plants.
(b) The National Water Resources Board (NWRB)
shall ensure that the allocation for irrigation, as
indicated by the NIA and requirements for domestic
water supply as provided for by the appropriate Local
Water District(s) are recognized and provided for in
the water rights agreements. NPC or PSALM may
also impose additional conditions in the shareholding
agreement with the winning bidders to ensure national
security, including, but not limited to, the use of water
during drought or calamity.
(c) Consistent with Section 34(d) of the Act, the NPC
shall continue to be responsible for watershed
rehabilitation and management and shall be entitled to
the environmental charge equivalent to one-fourth of
one centavo per kilowatt-hour sales (P0.0025/kWh),
which shall form part of the Universal Charge. This
environmental fund shall be used solely for watershed
rehabilitation and management and shall bemanaged
by NPC under existing arrangements. NPC shall
submit an annual report to the DOE detailing the
progress of the water shed rehabilitation program.
(d) The NPC and PSALM or NIA, as the case may be,
shall continue to be responsible for the dam structure
and all other appurtenant structures necessary for the
The NPC and PSALM or NIA, as the case may be,
shall enter into an operations and maintenance
agreement with the private operator of the power plant
to cover the dam structure and all other appurtenant
facilities. (Emphasis supplied.)
In accordance with the foregoing implementing
regulations, and in furtherance of the Asset Purchase
Agreement (APA), PSALM, NPC and K-Water
64 
executed on April 28, 2010 an Operations and
Maintenance Agreement (O & M Agreement) for the
65 
administration, rehabilitation, operation, preservation
and maintenance, by K-Water as the eventual owner
of the AHEPP, of the Non-Power Components
meaning the Angat Dam, non-power equipment,
facilities, installations, and appurtenant devices and
structures, including the water sourced from the
Angat Reservoir.
It is the position of PSALM that as the new owner only
of the hydroelectric power plant, K-Water will be a
mere operator of the Angat Dam. In the power
generation activity, K-Water will have to utilize the
waters already extracted from the river and
impounded on the dam. This process of generating
electric power from the dam water entering the power
plant thus does not constitute appropriation within the
meaning of natural resource utilization in the
Constitution and the Water Code.
The operation of a typical hydroelectric power plant
has been described as follows:
Hydroelectric energy is produced by the force of
falling water. The capacity to produce this energy is
dependent on both the available flow and the height
from which it falls. Building up behind a high dam,
water accumulates potential energy. This is
transformed into mechanical energy when the water
rushes down the sluice and strikes the rotary blades
of turbine. The turbine's rotation spins electromagnets
which generate current in stationary coils of wire.
Finally, the current is put through a transformer where
the voltage is increased for long distance transmission
over power lines.66 
Foreign ownership of a hydropower facility is not
prohibited under existing laws. The construction,
rehabilitation and development of hydropower plants
are among those infrastructure projects which even
wholly-owned foreign corporations are allowed to
undertake under the Amended Build-Operate-Transfer
(Amended BOT) Law (R.A. No. 7718). 67 
Beginning 1987, the policy has been openness to
foreign investments as evident in the fiscal incentives
provided for the restructuring and privatization of the
power industry in the Philippines, under the Power
Sector Restructuring Program (PSRP) of the Asian
Development Bank.
The establishment of institutional and legal framework
for the entry of private sector in the power industry
began with the issuance by President Corazon C.
Aquino of Executive Order No. 215 in 1987. Said
order allowed the entry of private sector – the IPPs –
to participate in the power generation activities in the
country. The entry of IPPs was facilitated and made
attractive through the first BOT Law in 1990 (R.A. No.
6957) which aimed to "minimize the burden of
infrastructure projects on the national government
budget, minimize external borrowing for infrastructure
projects, and use the efficiency of the private sector in
delivering a public good." In 1993, the Electric Power
Crisis Act was passed giving the President
emergency powers to urgently address the power
crisis in the country. The full implementation of the
68 
restructuring and privatization of the power industry
was achieved when Congress passed the EPIRA in
2001.
With respect to foreign investors, the nationality issue
had been framed in terms of the character or nature of
the power generation process itself, i.e., whether the
activity amounts to utilization of natural resources
within the meaning of Sec. 2, Art. XII of the
Constitution. If so, then foreign companies cannot
engage in hydropower generation business; but if not,
then government may legally allow even foreign-
owned companies to operate hydropower facilities.
The DOJ has consistently regarded hydropower
generation by foreign entities as not constitutionally
proscribed based on the definition of water
appropriation under the Water Code, thus:
Opinion No. 173, 1984
This refers to your request for opinion on the
possibility of granting water permits to foreign
corporations authorized to do business in the
Philippines x xx
x xxx
x xx while the Water Code imposes a nationality
requirement for the grant of water permits, the same
refers to the privilege "to appropriate and use water."
This should be interpreted to mean the extraction of
water from its natural source (Art. 9, P.D. No. 1067).
Once removed therefrom, they cease to be a part of
the natural resources of the country and are the
subject of ordinary commerce and may be acquired
by foreigners (Op. No. 55, series of 1939). x xx in
case of a contract of lease, the water permit shall be
secured by the lessor and included in the lease as an
improvement. The water so removed from the natural
source may be appropriated/used by the foreign
corporation leasing the property.
Opinion No. 14, S. 1995
The nationality requirement imposed by the Water
Code refers to the privilege "to appropriate and use
water." This, we have consistently interpreted to mean
the extraction of water directly from its natural source.
Once removed from its natural source the water
ceases to be a part of the natural resources of the
country and may be subject of ordinary commerce
and may even be acquired by foreigners. (Secretary
of Justice Op. No. 173, s. 1984; No. 24, s. 1989; No.
100 s. 1994)
In fine, we reiterate our earlier view that a foreign
entity may legally process or treat water after its
removal from a natural source by a qualified person,
natural or juridical.
Opinion No. 122, s. 1998
The crucial issue at hand is the determination of
whether the utilization of water by the power plant to
be owned and operated by a foreign-owned
corporation (SRPC) will violate the provisions of the
Water Code.
As proposed, the participation of SRPC to the
arrangement commences upon construction of the
power station, consisting of a dam and a power plant.
After the completion of the said station, its ownership
and control shall be turned over to NPC. However,
SRPC shall remain the owner of the power plant and
shall operate it for a period of twenty-five (25) years.
It appears that the dam, which will be owned and
controlled by NPC, will block the natural flow of the
river. The power plant, which is situated next to it, will
entirely depend upon the dam for its water supply
which will pass through an intake gate situated one
hundred (100) meters above the riverbed. Due to the
distance from the riverbed, water could not enter the
power plant absent the dam that traps the flow of the
river. It appears further that no water shall enter the
power tunnel without specific dispatch instructions
from NPC, and such supplied water shall be used only
by SRPC for power generation and not for any other
purpose. When electricity is generated therein, the
same shall be supplied to NPC for distribution to the
public. These facts x xx viewed in relation to the
Water Code, specifically Article 9 thereof, x xx clearly
show that there is no circumvention of the law.
This Department has declared that the nationality
requirement imposed by the Water Code refers to the
privilege "to appropriate and use water" and has
interpreted this phrase to mean the extraction of water
directly from its natural source (Secretary of Justice
Opinion No. 14, s. 1995). "Natural" is defined as that
which is produced without aid of stop, valves, slides,
or other supplementary means (see Webster’s New
International Dictionary, Second Edition, p. 1630). The
water that is used by the power plant could not enter
the intake gate without the dam, which is a man-made
structure. Such being the case, the source of the
water that enters the power plant is of artificial
character rather than natural. This Department is
consistent in ruling, that once water is removed from
its natural source, it ceases to be a part of the natural
resources of the country and may be the subject of
ordinary commerce and may even be acquired by
foreigners. (Ibid., No. 173, s. 1984; No. 24, s. 1989;
No. 100, s. 1994).
It is also significant to note that NPC, a government-
owned and controlled corporation, has the effective
control over all elements of the extraction process,
including the amount and timing thereof considering
that x xx the water will flow out of the power tunnel
and through the power plant, to be used for the
generation of electricity, only when the Downstream
Gates are opened, which occur only upon the specific
water release instructions given by NPC to SRPC.
This specific feature of the agreement, taken together
with the above-stated analysis of the source of water
that enters the plant, support the view that the
nationality requirement embodied in Article XII,
Section 2 of the present Constitution and in Article 15
of the Water Code, is not violated. 69 
(Emphasis supplied.)
The latest executive interpretation is stated in DOJ
Opinion No. 52, s. 2005 which was rendered upon the
request of PSALM in connection with the proposed
sale structure for the privatization of hydroelectric and
geothermal generation assets (Gencos) of NPC.
PSALM sought a ruling on the legality of its proposed
privatization scheme whereby the non-power
components (dam, reservoir and appurtenant
structures and watershed area) shall be owned by the
State through government entities like NPC or NIA
which shall exercise control over the release of water,
while the ownership of the power components (power
plant and related facilities) is open to both Filipino
citizens/corporations and 100% foreign-owned
corporations.
Sustaining the position of PSALM, then Secretary
Raul M. Gonzalez opined:
Premised on the condition that only the power
components shall be transferred to the foreign bidders
while the non-power components/structures shall be
retained by state agencies concerned, we find that
both PSALM’s proposal and position are tenable.
x xxx
x xx as ruled in one case by a U.S. court:
Where the State of New York took its natural
resources consisting of Saratoga Spring and, through
a bottling process, put those resources into preserved
condition where they could be sold to the public in
competition with private waters, the state agencies
were not immune from federal taxes imposed upon
bottled waters on the theory that state was engaged
in the sale of "natural resources."
Applied to the instant case, and construed in relation
to the earlier-mentioned constitutional inhibition, it
would appear clear that while both waters and
geothermal steam are, undoubtedly "natural
resources", within the meaning of Section 2 Article XII
of the present Constitution, hence, their exploitation,
development and utilization should be limited to
Filipino citizens or corporations or associations at
least sixty per centum of the capital of which is owned
by Filipino citizens, the utilization thereof can be
opened even to foreign nationals, after the same have
been extracted from the source by qualified persons
or entities. The rationale is because, since they no
longer form part of the natural resources of the
country, they become subject to ordinary commerce.
A contrary interpretation, i.e., that the removed or
extracted natural resources would remain inalienable
especially to foreign nationals, can lead to absurd
consequences, e.g. that said waters and geothermal
steam, and any other extracted natural resources,
cannot be acquired by foreign nationals for sale within
or outside the country, which could not have been
intended by the framers of the Constitution.
The fact that under the proposal, the non-power
components and structures shall be retained and
maintained by the government entities concerned is,
to us, not only a sufficient compliance of constitutional
requirement of "full control and supervision of the
State" in the exploitation, development and utilization
of natural resources. It is also an enough safeguard
against the evil sought to be avoided by the
constitutional reservation x xx. (Italics in the original,
70 
emphasis supplied.)
Appropriation of water, as used in the Water
Code refers to the "acquisition of rights over the use
of waters or the taking or diverting of waters from a
natural source in the manner and for any purpose
allowed by law." This definition is not as broad as the
71  functions previously under NPC. While the NPC
concept of appropriation of water in American
jurisprudence:
An appropriation of water flowing on the public
domain consists in the capture, impounding, or
diversion of it from its natural course or channel and
its actual application to some beneficial use private or
personal to the appropriator, to the entire exclusion
(or exclusion to the extent of the water appropriated)
of all other persons. x xx 72  through bilateral contracts with generation companies
On the other hand, "water right" is defined in
the Water Code as the privilege granted by the
government to appropriate and use water. Black’s
73  their energy output based on such terms and
Law Dictionary defined "water rights" as "a legal right,
in the nature of a corporeal hereditament, to use the
water of a natural stream or water furnished through a
ditch or canal, for general or specific purposes, such
as irrigation, mining, power, or domestic use, either to
its full capacity or to a measured extent or during a
defined portion of the time," or "the right to have the
water flow so that some portion of it may be reduced
to possession and be made private property of
individual, and it is therefore the right to divert water
from natural stream by artificial means and apply the
same to beneficial use." 74  between PSALM and K-Water stipulated:
Under the Water Code concept of appropriation, a
foreign company may not be said to be
"appropriating" our natural resources if it utilizes the
waters collected in the dam and converts the same
into electricity through artificial devices. Since the
NPC remains in control of the operation of the dam by
virtue of water rights granted to it, as determined
under DOJ Opinion No. 122, s. 1998, there is no legal
impediment to foreign-owned companies undertaking
the generation of electric power using waters already
appropriated by NPC, the holder of water permit.
Such was the situation of hydropower projects under
the BOT contractual arrangements whereby foreign
investors are allowed to finance or undertake
construction and rehabilitation of infrastructure
projects and/or own and operate the facility
constructed. However, in case the facility requires a
public utility franchise, the facility operator must be a
Filipino corporation or at least 60% owned by
Filipino.
75 
With the advent of privatization of the electric power
industry which resulted in its segregation into four
sectors -- generation, transmission, distribution and
supply – NPC’s generation and transmission functions
were unbundled. Power generation and transmission
were treated as separate sectors governed by distinct
rules under the new regulatory framework introduced
by EPIRA. The National Transmission Corporation
(TRANSCO) was created to own and operate the
transmission assets and perform the transmission
continues to undertake missionary electrification
programs through the SPUG, PSALM was also
created to liquidate the assets and liabilities of NPC.
Under the EPIRA, NPC’s generation function was
restricted as it was allowed to "generate and sell
electricity only from the undisposed generating assets
and IPP contracts of PSALM" and was prohibited from
incurring "any new obligations to purchase power
or other suppliers." PSALM, on the other hand, was
76 
tasked "to structure the sale, privatization or
disposition of NPC assets and IPP contracts and/or
conditions which shall optimize the value and sale
prices of said assets." In the case of multi-purpose
77 
hydropower plants, the IRR of R.A. No. 9136 provided
that their privatization would extend to water rights
which shall be transferred or assigned to the buyers
thereof, subject to safeguards mandated by Sec.
47(e) to enable the national government to direct
water usage in cases of shortage to protect water
requirements imbued with public interest.
Accordingly, the Asset Purchase Agreement executed
2.04 Matters Relating to the Non-Power Component
x xxx
Matters relating to Water Rights
NPC has issued a certification (the "Water
Certification") wherein NPC consents, subject to
Philippine Law, to the (i) transfer of the Water Permit
to the BUYER or its Affiliate, and (ii) use by the
BUYER or its Affiliate of the water covered by the
Water Permit from Closing Date up to a maximum
period of one (1) year thereafter to enable the BUYER
to appropriate and use water sourced from Angat
reservoir for purposes of power generation; provided,
that should the consent or approval of any
Governmental Body be required for either (i) or (ii),
the BUYER must secure such consent or approval.
The BUYER agrees and shall fully comply with the
Water Permit and the Water Certification. x xx
x xxx
Multi-Purpose Facility
The BUYER is fully aware that the Non-Power
Components is a multi-purpose hydro-facility and the
water is currently being appropriated for domestic
use, municipal use, irrigation and power generation.
Anything in this Agreement notwithstanding, the
BUYER shall, at all times even after the Payment
Date, fully and faithfully comply with Philippine Law,
including the Instructions, the Rule Curve and
Operating Guidelines and the Water
Protocol. (Emphasis supplied.)
78 
Lease or transfer of water rights is allowed under the
Water Code, subject to the approval of NWRB after
due notice and hearing. However, lessees or
79 
transferees of such water rights must comply with the
citizenship requirement imposed by the Water Code
and its IRR. But regardless of such qualification of
water permit holders/transferees, it is to be noted that
there is no provision in the EPIRA itself authorizing
the NPC to assign or transfer its water rights in case
of transfer of operation and possession of multi-
purpose hydropower facilities. Since only the power
plant is to be sold and privatized, the operation of the
non-power components such as the dam and
reservoir, including the maintenance of the
surrounding watershed, should remain under the
jurisdiction and control of NPC which continue to be a
government corporation. There is therefore no
necessity for NPC to transfer its permit over the water
rights to K-Water. Pursuant to its purchase and
operation/management contracts with K-Water, NPC
may authorize the latter to use water in the dam to
generate electricity.
NPC’s water rights remain an integral aspect of its
jurisdiction and control over the dam and reservoir.
That the EPIRAitselfdid not ordain any transfer of
water rights leads us to infer that Congress intended
NPC to continue exercising full supervision over the
dam, reservoir and, more importantly, to remain in
complete control of the extraction or diversion of water
from the Angat River. Indeed, there can be no debate
that the best means of ensuring that PSALM/NPC can
fulfill the duty to prescribe "safeguards to enable the
national government to direct water usage to protect
potable water, irrigation, and all other requirements
imbued with public interest" is for it to retain the water
rights over those water resources from where the dam
waters are extracted. In this way, the State’s full
supervision and control over the country’s water
resources is also assured notwithstanding the
privatized power generation business.
Section 6 (a) of the IRR of R.A. No. 9136 insofar as it
directs the transfer of water rights in the privatization
of multi-purpose hydropower facilities, is thus merely
directory.
It is worth mentioning that the Water Code explicitly
provides that Filipino citizens and juridical persons
who may apply for water permits should be "duly
qualified by law to exploit and develop water
resources."
Thus, aside from the grant of authority to construct
and operate dams and power plants, NPC’s Revised
Charter specifically authorized it –
(f) To take water from any public stream, river, creek,
lake, spring or waterfall in the Philippines, for the
purposes specified in this Act; to intercept and divert
the flow of waters from lands of riparian owners and
from persons owning or interested in waters which are
or may be necessary for said purposes, upon
payment of just compensation therefor; to alter,
straighten, obstruct or increase the flow of water in
streams or water channels intersecting or connecting
therewith or contiguous to its works or any part
thereof: Provided, That just compensation shall be
paid to any person or persons whose property is,
directly or indirectly, adversely affected or damaged
thereby.80 
The MWSS is likewise vested with the power to
construct, maintain and operate dams and reservoirs
for the purpose of supplying water for domestic and
other purposes, as well to construct, develop,
maintain and operate such artesian wells and springs
as may be needed in its operation within its
territory. On the other hand, NIA, also a water permit
81 
holder in Angat River, is vested with similar authority
to utilize water resources, as follows:
(b) To investigate all available and possible water
resources in the country for the purpose of utilizing
the same for irrigation, and to plan, design and
construct the necessary projects to make the ten to
twenty-year period following the approval of this Act
as the Irrigation Age of the Republic of the
Philippines; 82 
(c) To construct multiple-purpose water resources
projects designed primarily for irrigation, and
secondarily for hydraulic power development and/or
other uses such as flood control, drainage, land
reclamation, domestic water supply, roads and
highway construction and reforestation, among
others, provided, that the plans, designs and the
construction thereof, shall be undertaken in
coordination with the agencies concerned; 83 
To reiterate, there is nothing in the EPIRAwhich
declares that it is mandatory for PSALM or NPC to
transfer or assign NPC’s water rights to buyers of its
multi-purpose hydropower facilities as part of the
privatization process. While PSALM was mandated to
transfer the ownership of all hydropower plants except
those mentioned in Sec. 47 (f), any transfer of
possession, operation and control of the multi-
purpose hydropower facilities, the intent to preserve
water resources under the full supervision and control
of the State is evident when PSALM was obligated to
prescribe safeguards to enable the national
government to direct water usage to domestic and
other requirements "imbued with public interest."
There is no express requirement for the transfer of
water rights in all cases where the operation of
hydropower facilities in a multi-purpose dam complex
is turned over to the private sector.
As the new owner of the AHEPP, K-Water will have to
utilize the waters in the Angat Dam for hydropower
generation. Consistent with the goals of the EPIRA,
private entities are allowed to undertake power
generation activities and acquire NPC’s generation
assets. But since only the hydroelectric power plants
and appurtenances are being sold, the privatization
scheme should enable the buyer of a hydroelectric
power plant in NPC’s multi-purpose dam complex to
have beneficialuse of the waters diverted or collected
in the Angat Dam for its hydropower generation
activities, and at the same time ensure that the NPC
retains full supervision and control over the extraction
and diversion of waters from the Angat River.
In fine, the Court rules that while the sale of AHEPP to
a foreign corporation pursuant to the privatization
mandated by the EPIRA did not violate Sec. 2, Art. XII
of the 1987 Constitution which limits the exploration,
development and utilization of natural resources
under the full supervision and control of the State or
the State’s undertaking the same through joint
venture, co-production or production sharing
agreements with Filipino corporations 60% of the
capital of which is owned by Filipino citizens, the
stipulation in the Asset Purchase Agreement and
Operations and Maintenance Agreement whereby
NPC consents to the transfer of water rights to the
foreign buyer, K-Water, contravenes the aforesaid
constitutional provision and the Water Code. 1âwphi1
Section 6, Rule 23 of the IRR of EPIRA, insofar as it
ordered NPC’s water rights in multi-purpose
hydropower facilities to be included in the sale
thereof, is declared as merely directoryand not an
absolute condition in the privatization scheme. In this
case, we hold that NPC shall continue to be the
holder of the water permit even as the operational
control and day-to-day management of the AHEPP is
turned over to K-Water under the terms and
conditions of their APA and O & M Agreement,
whereby NPC grants authority to K-Water to utilize the
waters diverted or collected in the Angat Dam for
hydropower generation. Further, NPC and K-Water
shall faithfully comply with the terms and conditions of
the Memorandum of Agreement on Water Protocol, as
well as with such other regulations and issuances of
the NWRB governing water rights and water usage.
WHEREFORE, the present petition for certiorari and
prohibition with prayer for injunctive relief/s
is PARTLY GRANTED.
The following DISPOSITIONS are in ORDER:
1) The bidding conducted and the Notice of
Award issued by PSALM in favor of the
winning bidder, KOREA WATER
RESOURCES CORPORATION (K-WATER),
are declared VALID and LEGAL;
2) PSALM is directed to FURNISH the
petitioners with copies of all documents and
records in its files pertaining to K-Water;
3) Section 6 (a), Rule 23, IRR of the EPIRA, is
hereby declared as merely DIRECTORY, and
not an absolute condition in all cases where
NPC-owned hydropower generation facilities
are privatized;
4) NPC shall CONTINUE to be
the HOLDER of Water Permit No. 6512
issued by the National Water Resources
Board. NPC shall authorize K-Water to utilize
the waters in the Angat Dam for hydropower
generation, subject to the NWRB’s rules and
regulations governing water right and usage.
The Asset Purchase Agreement and
Operation & Management Agreement
between NPC/PSALM and K- Water are thus
amended accordingly.
Except for the requirement of securing a water
permit, K-Water remains BOUND by its
undertakings and warranties under the APA
and O & M Agreement;
5) NPC shall be a CO-PARTY with K-Water in
the Water Protocol Agreement with MWSS
and NIA, and not merely as a conforming
authority or agency; and
6) The Status Quo Ante Order issued by this
Court on May 24, 2010 is hereby LIFTED and
SET ASIDE.
No pronouncement as to costs.
SO ORDERED.

MARTIN S. VILLARAMA, JR.

Associate Justice

WE CONCUR:

G.R. No. 192986               January 15, 2013

ADVOCATES FOR TRUTH IN LENDING, INC. and

EDUARDO B. OLAGUER, Petitioners, 
vs.
BANGKO SENTRAL MONETARY BOARD,
represented by its Chairman, GOVERNOR
ARMANDO M. TETANGCO, JR., and its incumbent
members: JUANITA D. AMATONG, ALFREDO C.
ANTONIO, PETER FA VILA, NELLY F.
VILLAFUERTE, IGNACIO R. BUNYE and CESAR V.
PURISIMA, Respondents.

DECISION

REYES, J.:

Petitioners, claiming that they are raising issues of

transcendental importance to the public, filed directly
with this Court this Petition for Certiorari under Rule
65 of the 1997 Rules of Court, seeking to declare that
the Bangko Sentral ng Pilipinas Monetary Board
(BSP-MB), replacing the Central Bank Monetary
Board (CB-MB) by virtue of Republic Act (R.A.) No.
7653, has no authority to continue enforcing Central
Bank Circular No. 905,1 issued by the CB-MB in 1982,
which "suspended" Act No. 2655, or the Usury Law of
1916.

Factual Antecedents

Petitioner "Advocates for Truth in Lending, Inc."

(AFTIL) is a non-profit, non-stock corporation
organized to engage in pro bono concerns and
activities relating to money lending issues. It was
incorporated on July 9, 2010,2 and a month later, it
filed this petition, joined by its founder and president,
Eduardo B. Olaguer, suing as a taxpayer and a
citizen.

R.A. No. 265, which created the Central Bank (CB) of

the Philippines on June 15, 1948, empowered the CB-
MB to, among others, set the maximum interest rates
which banks may charge for all types of loans and
other credit operations, within limits prescribed by the
Usury Law. Section 109 of R.A. No. 265 reads:
Sec. 109. Interest Rates, Commissions and Charges.
— The Monetary Board may fix the maximum rates of
interest which banks may pay on deposits and on
other obligations.
The Monetary Board may, within the limits prescribed
in the Usury Law fix the maximum rates of interest
which banks may charge for different types of loans
and for any other credit operations, or may fix the
maximum differences which may exist between the
interest or rediscount rates of the Central Bank and
the rates which the banks may charge their customers
if the respective credit documents are not to lose their
eligibility for rediscount or advances in the Central
Bank.
Any modifications in the maximum interest rates
permitted for the borrowing or lending operations of
the banks shall apply only to future operations and not
to those made prior to the date on which the
modification becomes effective.
In order to avoid possible evasion of maximum
interest rates set by the Monetary Board, the Board
may also fix the maximum rates that banks may pay
to or collect from their customers in the form of
commissions, discounts, charges, fees or payments of
any sort. (Underlining ours)
On March 17, 1980, the Usury Law was amended by
Presidential Decree (P.D.) No. 1684, giving the CB-
MB authority to prescribe different maximum rates of
interest which may be imposed for a loan or renewal
thereof or the forbearance of any money, goods or
credits, provided that the changes are effected
gradually and announced in advance. Thus, Section
1-a of Act No. 2655 now reads:
Sec. 1-a. The Monetary Board is hereby authorized to
prescribe the maximum rate or rates of interest for the
loan or renewal thereof or the forbearance of any
money, goods or credits, and to change such rate or
rates whenever warranted by prevailing economic and
social conditions: Provided, That changes in such rate
or rates may be effected gradually on scheduled
dates announced in advance.
In the exercise of the authority herein granted the
Monetary Board may prescribe higher maximum rates
for loans of low priority, such as consumer loans or
renewals thereof as well as such loans made by
pawnshops, finance companies and other similar
credit institutions although the rates prescribed for
these institutions need not necessarily be uniform.
The Monetary Board is also authorized to prescribe
different maximum rate or rates for different types of
borrowings, including deposits and deposit
substitutes, or loans of financial intermediaries.
(Underlining and emphasis ours)
In its Resolution No. 2224 dated December 3,
1982,3 the CB-MB issued CB Circular No. 905, Series
of 1982, effective on January 1, 1983. Section 1 of the
Circular, under its General Provisions, removed the
ceilings on interest rates on loans or forbearance of
any money, goods or credits, to wit:
Sec. 1. The rate of interest, including commissions,
premiums, fees and other charges, on a loan or
forbearance of any money, goods, or credits,
regardless of maturity and whether secured or
unsecured, that may be charged or collected by any
person, whether natural or juridical, shall not be
subject to any ceiling prescribed under or pursuant to
the Usury Law, as amended. (Underscoring and
emphasis ours)
The Circular then went on to amend Books I to IV of
the CB’s "Manual of Regulations for Banks and Other
Financial Intermediaries" (Manual of Regulations) by
removing the applicable ceilings on specific interest
rates. Thus, Sections 5, 9 and 10 of CB Circular No.
905 amended Book I, Subsections 1303, 1349,
1388.1 of the Manual of Regulations, by removing the
ceilings for interest and other charges, commissions,
premiums, and fees applicable to commercial banks;
Sections 12 and 17 removed the interest ceilings for
thrift banks (Book II, Subsections 2303, 2349);
Sections 19 and 21 removed the ceilings applicable to
rural banks (Book III, Subsection 3152.3-c); and,
Sections 26, 28, 30 and 32 removed the ceilings for
non-bank financial intermediaries (Book IV,
Subsections 4303Q.1 to 4303Q.9, 4303N.1, 4303P).4
On June 14, 1993, President Fidel V. Ramos signed
into law R.A. No. 7653 establishing the Bangko
Sentral ng Pilipinas (BSP) to replace the CB. The
repealing clause thereof, Section 135, reads:
Sec. 135. Repealing Clause. — Except as may be
provided for in Sections 46 and 132 of this Act,
Republic Act No. 265, as amended, the provisions of
any other law, special charters, rule or regulation
issued pursuant to said Republic Act No. 265, as
amended, or parts thereof, which may be inconsistent
with the provisions of this Act are hereby repealed.
Presidential Decree No. 1792 is likewise repealed.
Petition for Certiorari
To justify their skipping the hierarchy of courts and
going directly to this Court to secure a writ of
certiorari, petitioners contend that the transcendental
importance of their Petition can readily be seen in the
issues raised therein, to wit:
a) Whether under R.A. No. 265 and/or P.D.
No. 1684, the CB-MB had the statutory or
constitutional authority to prescribe the
maximum rates of interest for all kinds of
credit transactions and forbearance of money,
goods or credit beyond the limits prescribed in
the Usury Law;
b) If so, whether the CB-MB exceeded its
authority when it issued CB Circular No. 905,
which removed all interest ceilings and thus
suspended Act No. 2655 as regards usurious
interest rates;
c) Whether under R.A. No. 7653, the new
BSP-MB may continue to enforce CB Circular
No. 905.5
Petitioners attached to their petition copies of several
Senate Bills and Resolutions of the 10th Congress,
which held its sessions from 1995 to 1998, calling for
investigations by the Senate Committee on Banks and
Financial Institutions into alleged unconscionable
commercial rates of interest imposed by these
entities. Senate Bill (SB) Nos. 376 and 1860,7 filed by
Senator Vicente C. Sotto III and the late Senator Blas
F. Ople, respectively, sought to amend Act No. 2655
by fixing the rates of interest on loans and
forbearance of credit; Philippine Senate Resolution
(SR) No. 1053,8 10739 and 1102,10 filed by Senators
Ramon B. Magsaysay, Jr., Gregorio B. Honasan and
Franklin M. Drilon, respectively, urged the aforesaid
Senate Committee to investigate ways to curb the
high commercial interest rates then obtaining in the
country; Senator Ernesto Maceda filed SB No. 1151
to prohibit the collection of more than two months of
advance interest on any loan of money; and Senator
Raul Roco filed SR No. 114411seeking an investigation
into an alleged cartel of commercial banks, called
"Club 1821", reportedly behind the regime of high
interest rates. The petitioners also attached news
clippings12 showing that in February 1998 the banks’
prime lending rates, or interests on loans to their best
borrowers, ranged from 26% to 31%.
Petitioners contend that under Section 1-a of Act No.
2655, as amended by P.D. No. 1684, the CB-MB was
authorized only to prescribe or set the maximum rates
of interest for a loan or renewal thereof or for the
forbearance of any money, goods or credits, and to
change such rates whenever warranted by prevailing
economic and social conditions, the changes to be
effected gradually and on scheduled dates; that
nothing in P.D. No. 1684 authorized the CB-MB to lift
or suspend the limits of interest on all credit
transactions, when it issued CB Circular No. 905.
They further insist that under Section 109 of R.A. No.
265, the authority of the CB-MB was clearly only to fix
the banks’ maximum rates of interest, but always
within the limits prescribed by the Usury Law.
Thus, according to petitioners, CB Circular No. 905,
which was promulgated without the benefit of any
prior public hearing, is void because it violated Article
5 of the New Civil Code, which provides that "Acts
executed against the provisions of mandatory or
prohibitory laws shall be void, except when the law
itself authorizes their validity."
They further claim that just weeks after the issuance
of CB Circular No. 905, the benchmark 91-day
Treasury bills (T-bills),13 then known as "Jobo"
bills14 shot up to 40% per annum, as a result. The
banks immediately followed suit and re-priced their
loans to rates which were even higher than those of
the "Jobo" bills. Petitioners thus assert that CB
Circular No. 905 is also unconstitutional in light of
Section 1 of the Bill of Rights, which commands that
"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."
Finally, petitioners point out that R.A. No. 7653 did not
re-enact a provision similar to Section 109 of R.A. No.
265, and therefore, in view of the repealing clause in
Section 135 of R.A. No. 7653, the BSP-MB has been
stripped of the power either to prescribe the maximum
rates of interest which banks may charge for different
kinds of loans and credit transactions, or to suspend
Act No. 2655 and continue enforcing CB Circular No.
905.
Ruling
The petition must fail.
A. The Petition is procedurally infirm.
The decision on whether or not to accept a petition for
certiorari, as well as to grant due course thereto, is
addressed to the sound discretion of the court.15 A
petition for certiorari being an extraordinary remedy,
the party seeking to avail of the same must strictly
observe the procedural rules laid down by law, and
non-observance thereof may not be brushed aside as
mere technicality.16
As provided in Section 1 of Rule 65, a writ of certiorari
is directed against a tribunal exercising judicial or
quasi-judicial functions.17 Judicial functions are
exercised by a body or officer clothed with authority to
determine what the law is and what the legal rights of
the parties are with respect to the matter in
controversy. Quasi-judicial function is a term that
applies to the action or discretion of public
administrative officers or bodies given the authority to
investigate facts or ascertain the existence of facts,
hold hearings, and draw conclusions from them as a
basis for their official action using discretion of a
judicial nature.18
The CB-MB (now BSP-MB) was created to perform
executive functions with respect to the establishment,
operation or liquidation of banking and credit
institutions, and branches and agencies thereof.19 It
does not perform judicial or quasi-judicial functions.
Certainly, the issuance of CB Circular No. 905 was
done in the exercise of an executive function.
Certiorari will not lie in the instant case.20
B. Petitioners have no locus standi to file the Petition
Locus standi is defined as "a right of appearance in a
court of justice on a given question." In private suits,
Section 2, Rule 3 of the 1997 Rules of Civil Procedure
provides that "every action must be prosecuted or
defended in the name of the real party in interest,"
who 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, a party’s
standing is based on his own right to the relief
sought.21
Even in public interest cases such as this petition, the
Court has generally adopted the "direct injury" test
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."22 Thus, while petitioners assert a
public right to assail CB Circular No. 905 as an illegal
executive action, it is nonetheless required of them to
make out a sufficient interest in the vindication of the
public order and the securing of relief. It is significant
that in this petition, the petitioners do not allege that
they sustained any personal injury from the issuance
of CB Circular No. 905.
Petitioners also do not claim that public funds were
being misused in the enforcement of CB Circular No.
905. In Kilosbayan, Inc. v. Morato,23 involving the on-
line lottery contract of the PCSO, there was no
allegation that public funds were being misspent,
which according to the Court would have made the
action a public one, "and justify relaxation of the
requirement that an action must be prosecuted in the
name of the real party-in-interest." The Court held,
moreover, that the status of Kilosbayan as a people’s
organization did not give it the requisite personality to
question the validity of the contract. Thus:
Petitioners do not in fact show what particularized
interest they have for bringing this suit. It does not
detract from the high regard for petitioners as civic
leaders to say that their interest falls short of that
required to maintain an action under the Rule 3, Sec.
2.24
C. The Petition raises no issues of transcendental
importance.
In the 1993 case of Joya v. Presidential Commission
on Good Government,25 it was held that no question
involving the constitutionality or validity of a law or
governmental act may be heard and decided by the
court unless there is compliance with the legal
requisites for judicial inquiry, namely: (a) that the
question must be raised by the proper party; (b) that
there must be an actual case or controversy; (c) that
the question must be raised at the earliest possible
opportunity; and (d) that the decision on the
constitutional or legal question must be necessary to
the determination of the case itself.
In Prof. David v. Pres. Macapagal-Arroyo,26 the Court
summarized the requirements before taxpayers,
voters, concerned citizens, and legislators can be
accorded a standing to sue, viz:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of
illegal disbursement of public funds or that the
tax measure is unconstitutional;
(3) for voters, there must be a showing of
obvious interest in the validity of the election
law in question;
(4) for concerned citizens, there must be a
showing that the issues raised are of
transcendental importance which must be
settled early; and
(5) for legislators, there must be a claim that
the official action complained of infringes upon
their prerogatives as legislators.
While the Court may have shown in recent decisions
a certain toughening in its attitude concerning the
question of legal standing, it has nonetheless always
made an exception where the transcendental
importance of the issues has been established,
notwithstanding the petitioners’ failure to show a direct
injury.27 In CREBA v. ERC,28 the Court set out the
following instructive guides as determinants on
whether a matter is of transcendental importance,
namely: (1) the character of the funds or other assets
involved in the case; (2) the presence of a clear case
of disregard of a constitutional or statutory prohibition
by the public respondent agency or instrumentality of
the government; and (3) the lack of any other party
with a more direct and specific interest in the
questions being raised. Further, the Court stated in
Anak Mindanao Party-List Group v. The Executive
Secretary29 that the rule on standing will not be waived
where these determinants are not established.
In the instant case, there is no allegation of misuse of
public funds in the implementation of CB Circular No.
905. Neither were borrowers who were actually
affected by the suspension of the Usury Law joined in
this petition. Absent any showing of transcendental
importance, the petition must fail.
More importantly, the Court notes that the instant
petition adverted to the regime of high interest rates
which obtained at least 15 years ago, when the banks’
prime lending rates ranged from 26% to 31%,30 or
even 29 years ago, when the 91-day Jobo bills
reached 40% per annum. In contrast, according to the
BSP, in the first two (2) months of 2012 the bank
lending rates averaged 5.91%, which implies that the
banks’ prime lending rates were lower; moreover,
deposit interests on savings and long-term deposits
have also gone very low, averaging 1.75% and
1.62%, respectively.31
Judging from the most recent auctions of T-bills, the
savings rates must be approaching 0%.  In the
1âwphi1
auctions held on November 12, 2012, the rates of 3-
month, 6-month and 1-year T-bills have dropped to
0.150%, 0.450% and 0.680%,
respectively.32 According to Manila Bulletin, this very
low interest regime has been attributed to "high
liquidity and strong investor demand amid positive
economic indicators of the country."33
While the Court acknowledges that cases of
transcendental importance demand that they be
settled promptly and definitely, brushing aside, if we
must, technicalities of procedure,34 the delay of at
least 15 years in the filing of the instant petition has
actually rendered moot and academic the issues it
now raises.
For its part, BSP-MB maintains that the petitioners’
allegations of constitutional and statutory violations of
CB Circular No. 905 are really mere challenges made
by petitioners concerning the wisdom of the Circular.
It explains that it was in view of the global economic
downturn in the early 1980’s that the executive
department through the CB-MB had to formulate
policies to achieve economic recovery, and among
these policies was the establishment of a market-
oriented interest rate structure which would require
the removal of the government-imposed interest rate
ceilings.35
D. The CB-MB merely suspended the effectivity of the
Usury Law when it issued CB Circular No. 905.
The power of the CB to effectively suspend the Usury
Law pursuant to P.D. No. 1684 has long been
recognized and upheld in many cases. As the Court
explained in the landmark case of Medel v.
CA,36 citing several cases, CB Circular No. 905 "did
not repeal nor in anyway amend the Usury Law but
simply suspended the latter’s effectivity;"37that "a CB
Circular cannot repeal a law, [for] only a law can
repeal another law;"38 that "by virtue of CB Circular
No. 905, the Usury Law has been rendered
ineffective;"39 and "Usury has been legally non-
existent in our jurisdiction. Interest can now be
charged as lender and borrower may agree upon."40
In First Metro Investment Corp. v. Este Del Sol
Mountain Reserve, Inc.41 cited in DBP v. Perez,42 we
also belied the contention that the CB was engaged in
self-legislation. Thus:
Central Bank Circular No. 905 did not repeal nor in
any way amend the Usury Law but simply suspended
the latter’s effectivity. The illegality of usury is wholly
the creature of legislation. A Central Bank Circular
cannot repeal a law. Only a law can repeal another
law. x x x.43
In PNB v. Court of Appeals,44 an escalation clause in a
loan agreement authorized the PNB to unilaterally
increase the rate of interest to 25% per annum, plus a
penalty of 6% per annum on past dues, then to 30%
on October 15, 1984, and to 42% on October 25,
1984. The Supreme Court invalidated the rate
increases made by the PNB and upheld the 12%
interest imposed by the CA, in this wise:
P.D. No. 1684 and C.B. Circular No. 905 no more
than allow contracting parties to stipulate freely
regarding any subsequent adjustment in the interest
rate that shall accrue on a loan or forbearance of
money, goods or credits. In fine, they can agree to
adjust, upward or downward, the interest previously
stipulated. x x x.45
Thus, according to the Court, by lifting the interest
ceiling, CB Circular No. 905 merely upheld the parties’
freedom of contract to agree freely on the rate of
interest. It cited Article 1306 of the New Civil Code,
under which 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.
E. The BSP-MB has authority to enforce CB Circular
No. 905.
Section 1 of CB Circular No. 905 provides that "The
rate of interest, including commissions, premiums,
fees and other charges, on a loan or forbearance of
any money, goods, or credits, regardless of maturity
and whether secured or unsecured, that may be
charged or collected by any person, whether natural
or juridical, shall not be subject to any ceiling
prescribed under or pursuant to the Usury Law, as
amended." It does not purport to suspend the Usury
Law only as it applies to banks, but to all lenders.
Petitioners contend that, granting that the CB had
power to "suspend" the Usury Law, the new BSP-MB
did not retain this power of its predecessor, in view of
Section 135 of R.A. No. 7653, which expressly
repealed R.A. No. 265. The petitioners point out that
R.A. No. 7653 did not reenact a provision similar to
Section 109 of R.A. No. 265.
A closer perusal shows that Section 109 of R.A. No.
265 covered only loans extended by banks, whereas
under Section 1-a of the Usury Law, as amended, the
BSP-MB may prescribe the maximum rate or rates of
interest for all loans or renewals thereof or the
forbearance of any money, goods or credits, including
those for loans of low priority such as consumer
loans, as well as such loans made by pawnshops,
finance companies and similar credit institutions. It
even authorizes the BSP-MB to prescribe different
maximum rate or rates for different types of
borrowings, including deposits and deposit
substitutes, or loans of financial intermediaries.
Act No. 2655, an earlier law, is much broader in
scope, whereas R.A. No. 265, now R.A. No. 7653,
merely supplemented it as it concerns loans by banks
and other financial institutions. Had R.A. No. 7653
been intended to repeal Section 1-a of Act No. 2655,
it would have so stated in unequivocal terms.
Moreover, the rule is settled that repeals by
implication are not favored, because laws are
presumed to be passed with deliberation and full
knowledge of all laws existing pertaining to the
subject.46 An implied repeal is predicated upon the
condition that a substantial conflict or repugnancy is
found between the new and prior laws. Thus, in the
absence of an express repeal, a subsequent law
cannot be construed as repealing a prior law unless
an irreconcilable inconsistency and repugnancy exists
in the terms of the new and old laws.47 We find no
such conflict between the provisions of Act 2655 and
R.A. No. 7653.
F. The lifting of the ceilings for interest rates does not
authorize stipulations charging excessive,
unconscionable, and iniquitous interest.
It is settled that nothing in CB Circular No. 905 grants
lenders a carte blanche authority to raise interest
rates to levels which will either enslave their
borrowers or lead to a hemorrhaging of their
assets.48 As held in Castro v. Tan:49
The imposition of an unconscionable rate of interest
on a money debt, even if knowingly and voluntarily
assumed, is immoral and unjust. It is tantamount to a
repugnant spoliation and an iniquitous deprivation of
property, repulsive to the common sense of man. It
has no support in law, in principles of justice, or in the
human conscience nor is there any reason
whatsoever which may justify such imposition as
righteous and as one that may be sustained within the
sphere of public or private morals.50
Stipulations authorizing iniquitous or unconscionable
interests have been invariably struck down for being
contrary to morals, if not against the law.51 Indeed,
under Article 1409 of the Civil Code, these contracts
are deemed inexistent and void ab initio, and
therefore cannot be ratified, nor may the right to set
up their illegality as a defense be waived.
Nonetheless, the nullity of the stipulation of usurious
interest does not affect the lender’s right to recover
the principal of a loan, nor affect the other terms
thereof.52 Thus, in a usurious loan with mortgage, the
right to foreclose the mortgage subsists, and this right
can be exercised by the creditor upon failure by the
debtor to pay the debt due. The debt due is
considered as without the stipulated excessive
interest, and a legal interest of 12% per annum will be
added in place of the excessive interest formerly
imposed,53following the guidelines laid down in the
landmark case of Eastern Shipping Lines, Inc. v.
Court of Appeals,54 regarding the manner of
computing legal interest:
II. With regard particularly to an award of interest in
the concept of actual and compensatory damages,
the rate of interest, as well as the accrual thereof, is
imposed, as follows:
1. When the obligation is breached, and it
consists in the payment of a sum of money,
i.e., a loan or forbearance of money, the
interest due should be that which may have
been stipulated in writing. Furthermore, the
interest due shall itself earn legal interest from
the time it is judicially demanded. In the
absence of stipulation, the rate of interest
shall be 12% per annum to be computed from
default, i.e., from judicial or extrajudicial
demand under and subject to the provisions of
Article 1169 of the Civil Code.
 2. When an obligation, not constituting a loan
or forbearance of money, is breached, an
interest on the amount of damages awarded
may be imposed at the discretion of the court
at the rate of 6% per annum. No interest,
however, shall be adjudged on unliquidated
claims or damages except when or until the
demand can be established with reasonable
certainty. Accordingly, where the demand is
established with reasonable certainty, the
interest shall begin to run from the time the
claim is made judicially or extrajudicially (Art.
1169, Civil Code) but when such certainty
cannot be so reasonably established at the
time the demand is made, the interest shall
begin to run only from the date the judgment
of the court is made (at which time the
quantification of damages may be deemed to
have been reasonably ascertained). The
actual base for the computation of legal
interest shall, in any case, be on the amount
finally adjudged.
3. When the judgment of the court awarding a
sum of money becomes final and executory,
the rate of legal interest, whether the case
falls under paragraph 1 or paragraph 2,
above, shall be 12% per annum from such
finality until its satisfaction, this interim period
being deemed to be by then an equivalent to a
forbearance of credit.55 (Citations omitted)
The foregoing rules were further clarified in Sunga-
Chan v. Court of Appeals, 56 as follows:
Eastern Shipping Lines, Inc. synthesized the rules on
the imposition of interest, if proper, and the applicable
rate, as follows: The 12% per annum rate under CB
Circular No. 416 shall apply only to loans or
forbearance of money, goods, or credits, as well as to
judgments involving such loan or forbearance of
money, goods, or credit, while the 6% per annum
under Art. 2209 of the Civil Code applies "when the
transaction involves the payment of indemnities in the
concept of damage arising from the breach or a delay
in the performance of obligations in general," with the
application of both rates reckoned "from the time the
complaint was filed until the [adjudged] amount is fully
paid." In either instance, the reckoning period for the
commencement of the running of the legal interest
shall be subject to the condition "that the courts are
vested with discretion, depending on the equities of
each case, on the award of interest."57 (Citations
omitted)
WHEREFORE, premises considered, the Petition for
certiorari is DISMISSED.
SO ORDERED.
BIENVENIDO L. REYES
Associate Justice
G.R. No. 191644               February 19, 2013
DENNIS A.B. FUNA, Petitioner, 
vs.
CTING SECRETARY OF JUSTICE ALBERTO C.
AGRA, IN HIS OFFICIAL CONCURRENT
CAPACITIES AS ACTING SECRETARY OF THE
DEPARTMENT OF JUSTICE AND AS ACTING
SOLICITOR GENERAL, EXECUTIVE SECRETARY
LEANDRO R. MENDOZA, OFFICE OF THE
PRESIDENT, Respondents.
DECISION
BERSAMIN, J.:
Section 13, Article VII of the 1987 Constitution
expressly prohibits the President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants from holding any other office or
employment during their tenure unless otherwise
provided in the Constitution. Complementing the
prohibition is Section 7, paragraph (2), Article IX-B of
the 1987 Constitution, which bans any appointive
official from holding any other office or employment in
the Government or any subdivision, agency or
instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries, unless
otherwise allowed by law or the primary functions of
his position.
These prohibitions under the Constitution are at the
core of this special civil action for certiorari and
prohibition commenced on April 7, 2010 to assail the
designation of respondent Hon. Alberto C. Agra, then
the Acting Secretary of Justice, as concurrently the
Acting Solicitor General.
Antecedents
The petitioner alleges that on March 1, 2010,
President Gloria M. Macapagal-Arroyo appointed
Agra as the Acting Secretary of Justice following the
resignation of Secretary Agnes VST Devanadera in
order to vie for a congressional seat in Quezon
Province; that on March 5, 2010, President Arroyo
designated Agra as the Acting Solicitor General in a
concurrent capacity;1 that on April 7, 2010, the
petitioner, in his capacity as a taxpayer, a concerned
citizen and a lawyer, commenced this suit to
challenge the constitutionality of Agra’s concurrent
appointments or designations, claiming it to be
prohibited under Section 13, Article VII of the 1987
Constitution; that during the pendency of the suit,
President Benigno S. Aquino III appointed Atty. Jose
Anselmo I. Cadiz as the Solicitor General; and that
Cadiz assumed as the Solicitor General and
commenced his duties as such on August 5, 2010.2
Agra renders a different version of the antecedents.
He represents that on January 12, 2010, he was then
the Government Corporate Counsel when President
Arroyo designated him as the Acting Solicitor General
in place of Solicitor General Devanadera who had
been appointed as the Secretary of Justice;3 that on
March 5, 2010, President Arroyo designated him also
as the Acting Secretary of Justice vice Secretary
Devanadera who had meanwhile tendered her
resignation in order to run for Congress representing
a district in Quezon Province in the May 2010
elections; that he then relinquished his position as the
Government Corporate Counsel; and that pending the
appointment of his successor, Agra continued to
perform his duties as the Acting Solicitor General.4
Notwithstanding the conflict in the versions of the
parties, the fact that Agra has admitted to holding the
two offices concurrently in acting capacities is settled,
which is sufficient for purposes of resolving the
constitutional question that petitioner raises herein.
The Case
In Funa v. Ermita,5 the Court resolved a petition
for certiorari, prohibition and mandamus brought by
herein petitioner assailing the constitutionality of the
designation of then Undersecretary of the Department
of Transportation and Communications (DOTC) Maria
Elena H. Bautista as concurrently the Officer-in-
Charge of the Maritime Industry Authority. The
petitioner has adopted here the arguments he
advanced in Funa v. Ermita, and he has rested his
grounds of challenge mainly on the pronouncements
in Civil Liberties Union v. Executive
Secretary6and Public Interest Center, Inc. v. Elma.7
What may differentiate this challenge from those in
the others is that the appointments being hereby
challenged were in acting or temporary capacities.
Still, the petitioner submits that the prohibition under
Section 13, Article VII of the 1987 Constitution does
not distinguish between an appointment or
designation of a Member of the Cabinet in an acting
or temporary capacity, on the one hand, and one in a
permanent capacity, on the other hand; and that
Acting Secretaries, being nonetheless Members of the
Cabinet, are not exempt from the constitutional ban.
He emphasizes that the position of the Solicitor
General is not an ex officio position in relation to the
position of the Secretary of Justice, considering that
the Office of the Solicitor General (OSG) is an
independent and autonomous office attached to the
Department of Justice (DOJ).8 He insists that the fact
that Agra was extended an appointment as the Acting
Solicitor General shows that he did not occupy that
office in an ex officio capacity because an ex
officio position does not require any further warrant or
appointment.
Respondents contend, in contrast, that Agra’s
concurrent designations as the Acting Secretary of
Justice and Acting Solicitor General were only in a
temporary capacity, the only effect of which was to
confer additional duties to him. Thus, as the Acting
Solicitor General and Acting Secretary of Justice,
Agra was not "holding" both offices in the strict
constitutional sense.9 They argue that an
appointment, to be covered by the constitutional
prohibition, must be regular and permanent, instead of
a mere designation.
Respondents further contend that, even on the
assumption that Agra’s concurrent designation
constituted "holding of multiple offices," his continued
service as the Acting Solicitor General was akin to a
hold-over; that upon Agra’s designation as the Acting
Secretary of Justice, his term as the Acting Solicitor
General expired in view of the constitutional
prohibition against holding of multiple offices by the
Members of the Cabinet; that under the principle of
hold-over, Agra continued his service as the Acting
Solicitor General "until his successor is elected and
qualified"10 to "prevent a hiatus in the government
pending the time when a successor may be chosen
and inducted into office;"11 and that during his
continued service as the Acting Solicitor General, he
did not receive any salaries and emoluments from the
OSG after becoming the Acting Secretary of Justice
on March 5, 2010.12
Respondents point out that the OSG’s independence
and autonomy are defined by the powers and
functions conferred to that office by law, not by the
person appointed to head such office;13 and that
although the OSG is attached to the DOJ, the DOJ’s
authority, control and supervision over the OSG are
limited only to budgetary purposes.14
In his reply, petitioner counters that there was no
"prevailing special circumstance" that justified the
non-application to Agra of Section 13, Article VII of the
1987 Constitution;15 that the temporariness of the
appointment or designation is not an excuse to
disregard the constitutional ban against holding of
multiple offices by the Members of the Cabinet;16 that
Agra’s invocation of the principle of hold-over is
misplaced for being predicated upon an erroneous
presentation of a material fact as to the time of his
designation as the Acting Solicitor General and Acting
Secretary of Justice; that Agra’s concurrent
designations further violated the Administrative Code
of 1987 which mandates that the OSG shall be
autonomous and independent.17
Issue
Did the designation of Agra as the Acting Secretary of
Justice, concurrently with his position of Acting
Solicitor General, violate the constitutional prohibition
against dual or multiple offices for the Members of the
Cabinet and their deputies and assistants?
Ruling
The petition is meritorious.
The designation of Agra as Acting Secretary of
Justice concurrently with his position of Acting
Solicitor General was unconstitutional and void for
being in violation of the constitutional prohibition
under Section 13, Article VII of the 1987 Constitution.
1.
Requisites of judicial review not in issue
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
assail the validity of the subject act or issuance, that
is, 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.18
Here, the OSG does not dispute the justiciability and
ripeness for consideration and resolution by the Court
of the matter raised by the petitioner. Also, the locus
standi of the petitioner as a taxpayer, a concerned
citizen and a lawyer to bring a suit of this nature has
already been settled in his favor in rulings by the
Court on several other public law litigations he
brought. In Funa v. Villar,19 for one, the Court has
held:
To have legal standing, therefore, a suitor must show
that he has sustained or will sustain a "direct injury"
as a result of a government action, or have a "material
interest" in the issue affected by the challenged
official act. However, the Court has time and again
acted liberally on the locus standi requirements
and has accorded certain individuals, not
otherwise directly injured, or with material interest
affected, by a Government act, standing to sue
provided a constitutional issue of critical
significance is at stake. The rule on locus
standi is after all a mere procedural technicality in
relation to which the Court, in a catena of cases
involving a subject of transcendental import, has
waived, or relaxed, thus allowing non-traditional
plaintiffs, such as concerned citizens, taxpayers,
voters or legislators, to sue in the public interest,
albeit they may not have been personally injured
by the operation of a law or any other government
act. In David, the Court laid out the bare minimum
norm before the so-called "non-traditional
suitors" may be extended standing to sue, thusly:
1.) For taxpayers, there must be a claim of
illegal disbursement of public funds or that the
tax measure is unconstitutional;
2.) For voters, there must be a showing of
obvious interest in the validity of the election
law in question;
3.) For concerned citizens, there must be a
showing that the issues raised are of
transcendental importance which must be
settled early; and
4.) For legislators, there must be a claim that
the official action complained of infringes their
prerogatives as legislators.
This case before Us is of transcendental
importance, since it obviously has "far-reaching
implications," and there is a need to promulgate
rules that will guide the bench, bar, and the public
in future analogous cases. We, thus, assume a
liberal stance and allow petitioner to institute the
instant petition.20 (Bold emphasis supplied)
In Funa v. Ermita,21 the Court recognized the locus
standi of the petitioner as a taxpayer, a concerned
citizen and a lawyer because the issue raised therein
involved a subject of transcendental importance
whose resolution was necessary to promulgate rules
to guide the Bench, Bar, and the public in similar
cases.
But, it is next posed, did not the intervening
appointment of and assumption by Cadiz as the
Solicitor General during the pendency of this suit
render this suit and the issue tendered herein moot
and academic?
A moot and academic case is one that ceases to
present a justiciable controversy by virtue of
supervening events, so that a declaration thereon
would be of no practical use or value.22 Although the
controversy could have ceased due to the intervening
appointment of and assumption by Cadiz as the
Solicitor General during the pendency of this suit, and
such cessation of the controversy seemingly rendered
moot and academic the resolution of the issue of the
constitutionality of the concurrent holding of the two
positions by Agra, the Court should still go forward
and resolve the issue and not abstain from exercising
its power of judicial review because this case comes
under several of the well-recognized exceptions
established in jurisprudence. Verily, the Court did not
desist from resolving an issue that a supervening
event meanwhile rendered moot and academic if any
of the following recognized exceptions obtained,
namely: (1) there was a grave violation of the
Constitution; (2) the case involved a situation of
exceptional character and was of paramount public
interest; (3) the constitutional issue raised required
the formulation of controlling principles to guide the
Bench, the Bar and the public; and (4) the case was
capable of repetition, yet evading review.23
It is the same here. The constitutionality of the
concurrent holding by Agra of the two positions in the
Cabinet, albeit in acting capacities, was an issue that
comes under all the recognized exceptions. The issue
involves a probable violation of the Constitution, and
relates to a situation of exceptional character and of
paramount public interest by reason of its
transcendental importance to the people. The
resolution of the issue will also be of the greatest
value to the Bench and the Bar in view of the broad
powers wielded through said positions. The situation
further calls for the review because the situation is
capable of repetition, yet evading review.24 In other
words, many important and practical benefits are still
to be gained were the Court to proceed to the ultimate
resolution of the constitutional issue posed.
2.
Unconstitutionality of Agra’s concurrent
designation as Acting Secretary of Justice and
Acting Solicitor General
At the center of the controversy is the correct
application of Section 13, Article VII of the 1987
Constitution, viz:
Section 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment
during their tenure. They shall not, during said tenure,
directly or indirectly practice any other profession,
participate in any business, or be financially interested
in any contract with, or in any franchise, or special
privilege granted by the Government or any
subdivision, agency, or instrumentality thereof,
including government-owned or controlled
corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
A relevant and complementing provision is Section 7,
paragraph (2), Article IX-B of the 1987 Constitution, to
wit:
Section 7. x x x
Unless otherwise allowed by law or the primary
functions of his position, no appointive official shall
hold any other office or employment in the
Government or any subdivision, agency or
instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries.
The differentiation of the two constitutional provisions
was well stated in Funa v. Ermita,25 a case in which
the petitioner herein also assailed the designation of
DOTC Undersecretary as concurrent Officer-in-
Charge of the Maritime Industry Authority, with the
Court reiterating its pronouncement in Civil Liberties
Union v. The Executive Secretary26 on the intent of the
Framers behind these provisions of the
Constitution, viz:
Thus, while all other appointive officials in the civil
service are allowed to hold other office or employment
in the government during their tenure when such is
allowed by law or by the primary functions of their
positions, members of the Cabinet, their deputies and
assistants may do so only when expressly authorized
by the Constitution itself. In other words, Section 7,
Article IX-B is meant to lay down the general rule
applicable to all elective and appointive public
officials and employees, while Section 13, Article
VII is meant to be the exception applicable only to
the President, the Vice-President, Members of the
Cabinet, their deputies and assistants.
xxxx
Since the evident purpose of the framers of the 1987
Constitution is to impose a stricter prohibition on the
President, Vice-President, members of the Cabinet,
their deputies and assistants with respect to holding
multiple offices or employment in the government
during their tenure, the exception to this prohibition
must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so
that it must be understood as intended to be a positive
and unequivocal negation of the privilege of holding
multiple government offices or employment. Verily,
wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a
positive and unequivocal negation. The phrase
"unless otherwise provided in this Constitution"
must be given a literal interpretation to refer only
to those particular instances cited in the
Constitution itself, to wit: the Vice-President being
appointed as a member of the Cabinet under Section
3, par. (2), Article VII; or acting as President in those
instances provided under Section 7, pars. (2) and (3),
Article VII; and, the Secretary of Justice being ex-
officio member of the Judicial and Bar Council by
virtue of Section 8 (1), Article VIII. (Bold emphasis
supplied.)
Being designated as the Acting Secretary of Justice
concurrently with his position of Acting Solicitor
General, therefore, Agra was undoubtedly covered by
Section 13, Article VII, supra, whose text and spirit
were too clear to be differently read. Hence, Agra
could not validly hold any other office or employment
during his tenure as the Acting Solicitor General,
because the Constitution has not otherwise so
provided.27
It was of no moment that Agra’s designation was in an
acting or temporary capacity. The text of Section
13, supra, plainly indicates that the intent of the
Framers of the Constitution was to impose a stricter
prohibition on the President and the Members of his
Cabinet in so far as holding other offices or
employments in the Government or in government-
owned or government controlled-corporations was
concerned.28 In this regard, to hold an office means to
possess or to occupy the office, or to be in possession
and administration of the office, which implies nothing
less than the actual discharge of the functions and
duties of the office.29 Indeed, in the language of
Section 13 itself, supra, the Constitution makes no
reference to the nature of the appointment or
designation. The prohibition against dual or multiple
offices being held by one official must be construed as
to apply to all appointments or designations, whether
permanent or temporary, for it is without question that
the avowed objective of Section 13, supra, is to
prevent the concentration of powers in the Executive
Department officials, specifically the President, the
Vice-President, the Members of the Cabinet and their
deputies and assistants.30 To construe differently is to
"open the veritable floodgates of circumvention of an
important constitutional disqualification of officials in
the Executive Department and of limitations on the
President’s power of appointment in the guise of
temporary designations of Cabinet Members,
undersecretaries and assistant secretaries as officers-
in-charge of government agencies, instrumentalities,
or government-owned or controlled corporations."31
According to Public Interest Center, Inc. v. Elma,32 the
only two exceptions against the holding of multiple
offices are: (1) those provided for under the
Constitution, such as Section 3, Article VII, authorizing
the Vice President to become a member of the
Cabinet; and (2) posts occupied by Executive officials
specified in Section 13, Article VII without additional
compensation in ex officio capacities as provided by
law and as required by the primary functions of the
officials’ offices. In this regard, the decision in Public
Interest Center, Inc. v. Elma adverted to the
resolution issued on August 1, 1991 in Civil Liberties
Union v. The Executive Secretary, whereby the Court
held that the phrase "the Members of the Cabinet,
and their deputies or assistants" found in Section
13, supra, referred only to the heads of the various
executive departments, their undersecretaries and
assistant secretaries, and did not extend to other
public officials given the rank of Secretary,
Undersecretary or Assistant Secretary.33 Hence,
in Public Interest Center, Inc. v. Elma, the Court
opined that the prohibition under Section 13 did not
cover Elma, a Presidential Assistant with the rank of
Undersecretary.34
It is equally remarkable, therefore, that Agra’s
designation as the Acting Secretary of Justice was not
in an ex officio capacity, by which he would have
been validly authorized to concurrently hold the two
positions due to the holding of one office being the
consequence of holding the other. Being included in
the stricter prohibition embodied in Section 13, supra,
Agra cannot liberally apply in his favor the broad
exceptions provided in Section 7, paragraph 2, Article
IX-B of the Constitution ("Unless otherwise allowed by
law or the primary functions of his position") to justify
his designation as Acting Secretary of Justice
concurrently with his designation as Acting Solicitor
General, or vice versa. Thus, the Court has said –
[T]he qualifying phrase "unless otherwise provided in
this Constitution" in Section 13, Article VII cannot
possibly refer to the broad exceptions provided under
Section 7, Article IX-B of the 1987 Constitution. To
construe said qualifying phrase as respondents would
have us do, would render nugatory and meaningless
the manifest intent and purpose of the framers of the
Constitution to impose a stricter prohibition on the
President, Vice-President, Members of the Cabinet,
their deputies and assistants with respect to holding
other offices or employment in the government during
their tenure. Respondents’ interpretation that Section
13 of Article VII admits of the exceptions found in
Section 7, par. (2) of Article IX-B would obliterate the
distinction so carefully set by the framers of the
Constitution as to when the highranking officials of the
Executive Branch from the President to Assistant
Secretary, on the one hand, and the generality of civil
servants from the rank immediately below Assistant
Secretary downwards, on the other, may hold any
other office or position in the government during their
tenure.35
To underscore the obvious, it is not sufficient for Agra
to show that his holding of the other office was
"allowed by law or the primary functions of his
position." To claim the exemption of his concurrent
designations from the coverage of the stricter
prohibition under Section 13, supra, he needed to
establish herein that his concurrent designation was
expressly allowed by the Constitution. But, alas, he
did not do so.
To be sure, Agra’s concurrent designations as Acting
Secretary of Justice and Acting Solicitor General did
not come within the definition of an ex
officio capacity. Had either of his concurrent
designations been in an ex officio capacity in relation
to the other, the Court might now be ruling in his
favor.
The import of an ex officio capacity has been fittingly
explained in Civil Liberties Union v. Executive
Secretary,36 as follows:
x x x. The term ex officio means "from office; by virtue
of office." It refers to an "authority derived from official
character merely, not expressly conferred upon the
individual character, but rather annexed to the official
position." Ex officio likewise denotes an "act done in
an official character, or as a consequence of office,
and without any other appointment or authority other
than that conferred by the office." An ex
officio member of a board is one who is a member by
virtue of his title to a certain office, and without further
warrant or appointment. x x x.
xxxx
The ex officio position being actually and in legal
contemplation part of the principal office, it follows that
the official concerned has no right to receive
additional compensation for his services in the said
position. The reason is that these services are already
paid for and covered by the compensation attached to
his principal office. x x x.
Under the Administrative Code of 1987, the DOJ is
mandated to "provide the government with a principal
law agency which shall be both its legal counsel and
prosecution arm; administer the criminal justice
system in accordance with the accepted processes
thereof consisting in the investigation of the crimes,
prosecution of offenders and administration of the
correctional system; implement the laws on the
admission and stay of aliens, citizenship, land titling
system, and settlement of land problems involving
small landowners and members of indigenous cultural
minorities; and provide free legal services to indigent
members of the society."37 The DOJ’s specific powers
and functions are as follows:
(1) Act as principal law agency of the
government and as legal counsel and
representative thereof, whenever so required;
(2) Investigate the commission of crimes,
prosecute offenders and administer the
probation and correction system;
(3) Extend free legal
assistance/representation to indigents and
poor litigants in criminal cases and non-
commercial civil disputes;
(4) Preserve the integrity of land titles through
proper registration;
(5) Investigate and arbitrate untitled land
disputes involving small landowners and
members of indigenous cultural communities;
(6) Provide immigration and naturalization
regulatory services and implement the laws
governing citizenship and the admission and
stay of aliens;
(7) Provide legal services to the national
government and its functionaries, including
government-owned or controlled corporations
and their subsidiaries; and
(8) Perform such other functions as may be
provided by law.38
On the other hand, the Administrative Code of
1987 confers upon the Office of the Solicitor General
the following powers and functions, to wit:
The Office of the Solicitor General shall represent the
Government of the Philippines, its agencies and
instrumentalities and its officials and agents in any
litigation, proceeding, investigation or matter requiring
the services of lawyers. When authorized by the
President or head of the office concerned, it shall also
represent government owned or controlled
corporations. The Office of the Solicitor General shall
discharge duties requiring the services of lawyers. It
shall have the following specific powers and functions:
1. Represent the Government in the Supreme
Court and the Court of Appeals in all criminal
proceedings; represent the Government and
its officers in the Supreme Court, the Court of
Appeals, and all other courts or tribunals in all
civil actions and special proceedings in which
the Government or any officer thereof in his
official capacity is a party.
2. Investigate, initiate court action, or in any
manner proceed against any person,
corporation or firm for the enforcement of any
contract, bond, guarantee, mortgage, pledge
or other collateral executed in favor of the
Government. Where proceedings are to be
conducted outside of the Philippines the
Solicitor General may employ counsel to
assist in the discharge of the aforementioned
responsibilities.
3. Appear in any court in any action involving
the validity of any treaty, law, executive order
or proclamation, rule or regulation when in his
judgment his intervention is necessary or
when requested by the Court.
4. Appear in all proceedings involving the
acquisition or loss of Philippine citizenship.
5. Represent the Government in all land
registration and related proceedings. Institute
actions for the reversion to the Government of
lands of the public domain and improvements
thereon as well as lands held in violation of
the Constitution.
6. Prepare, upon request of the President or
other proper officer of the National
Government, rules and guidelines for
government entities governing the preparation
of contracts, making investments, undertaking
of transactions, and drafting of forms or other
writings needed for official use, with the end in
view of facilitating their enforcement and
insuring that they are entered into or prepared
conformably with law and for the best interests
of the public.
7. Deputize, whenever in the opinion of the
Solicitor General the public interest requires,
any provincial or city fiscal to assist him in the
performance of any function or discharge of
any duty incumbent upon him, within the
jurisdiction of the aforesaid provincial or city
fiscal. When so deputized, the fiscal shall be
under the control and supervision of the
Solicitor General with regard to the conduct of
the proceedings assigned to the fiscal, and he
may be required to render reports or furnish
information regarding the assignment.
8. Deputize legal officers of government
departments, bureaus, agencies and offices to
assist the Solicitor General and appear or
represent the Government in cased involving
their respective offices, brought before the
courts and exercise supervision and control
over such legal Officers with respect to such
cases.
9. Call on any department, bureau, office,
agency or instrumentality of the Government
for such service, assistance and cooperation
as may be necessary in fulfilling its functions
and responsibilities and for this purpose enlist
the services of any government official or
employee in the pursuit of his tasks.
10. Departments, bureaus, agencies, offices,
instrumentalities and corporations to whom
the Office of the Solicitor General renders
legal services are authorized to disburse
funds from their sundry operating and other
funds for the latter Office. For this purpose,
the Solicitor General and his staff are
specifically authorized to receive allowances
as may be provided by the Government
offices, instrumentalities and corporations
concerned, in addition to their regular
compensation.
11. Represent, upon the instructions of the
President, the Republic of the Philippines in
international litigations, negotiations or
conferences where the legal position of the
Republic must be defended or presented.
12. Act and represent the Republic and/or the
people before any court, tribunal, body or
commission in any matter, action or
proceedings which, in his opinion affects the
welfare of the people as the ends of justice
may require; and
13. Perform such other functions as may be
provided by law.39
The foregoing provisions of the applicable laws show
that one position was not derived from the other.
Indeed, the powers and functions of the OSG are
neither required by the primary functions nor included
by the powers of the DOJ, and vice versa. The OSG,
while attached to the DOJ,40 is not a constituent unit of
the latter,41 as, in fact, the Administrative Code of
1987 decrees that the OSG is independent and
autonomous.42 With the enactment of Republic Act
No. 9417,43 the Solicitor General is now vested with a
cabinet rank, and has the same qualifications for
appointment, rank, prerogatives, salaries, allowances,
benefits and privileges as those of the Presiding
Justice of the Court of Appeals.44
Moreover, the magnitude of the scope of work of the
Solicitor General, if added to the equally demanding
tasks of the Secretary of Justice, is obviously too
much for any one official to bear. Apart from the sure
peril of political pressure, the concurrent holding of the
two positions, even if they are not entirely
incompatible, may affect sound government
operations and the proper performance of duties.
Heed should be paid to what the Court has pointedly
observed in Civil Liberties Union v. Executive
Secretary: 45
Being head of an executive department is no mean
job. It is more than a full-time job, requiring full
attention, specialized knowledge, skills and expertise.
If maximum benefits are to be derived from a
department head’s ability and expertise, he should be
allowed to attend to his duties and responsibilities
without the distraction of other governmental offices or
employment. He should be precluded from dissipating
his efforts, attention and energy among too many
positions of responsibility, which may result in
haphazardness and inefficiency. Surely the
advantages to be derived from this concentration of
attention, knowledge and expertise, particularly at this
stage of our national and economic development, far
outweigh the benefits, if any, that may be gained from
a department head spreading himself too thin and
taking in more than what he can handle.
It is not amiss to observe, lastly, that assuming that
Agra, as the Acting Solicitor General, was not covered
by the stricter prohibition under Section 13, supra, due
to such position being merely vested with a cabinet
rank under Section 3, Republic Act No. 9417, he
nonetheless remained covered by the general
prohibition under Section 7, supra. Hence, his
concurrent designations were still subject to the
conditions under the latter constitutional provision. In
this regard, the Court aptly pointed out in Public
Interest Center, Inc. v. Elma:46
The general rule contained in Article IX-B of the 1987
Constitution permits an appointive official to hold more
than one office only if "allowed by law or by the
primary functions of his position." In the case
of Quimson v. Ozaeta, this Court ruled that, "[t]here is
no legal objection to a government official occupying
two government offices and performing the functions
of both as long as there is no incompatibility." The
crucial test in determining whether incompatibility
exists between two offices was laid out in People v.
Green - whether one office is subordinate to the
other, in the sense that one office has the right to
interfere with the other.
[I]ncompatibility between two offices, is an
inconsistency in the functions of the two; x x x Where
one office is not subordinate to the other, nor the
relations of the one to the other such as are
inconsistent and repugnant, there is not that
incompatibility from which the law declares that the
acceptance of the one is the vacation of the other.
The force of the word, in its application to this matter
is, that from the nature and relations to each other, of
the two places, they ought not to be held by the same
person, from the contrariety and antagonism which
would result in the attempt by one person to faithfully
and impartially discharge the duties of one, toward the
incumbent of the other. X x x The offices must
subordinate, one [over] the other, and they must, per
se, have the right to interfere, one with the other,
before they are incompatible at common law. x x x.
xxxx
While Section 7, Article IX-B of the 1987 Constitution
applies in general to all elective and appointive
officials, Section 13, Article VII, thereof applies in
particular to Cabinet secretaries, undersecretaries
and assistant secretaries. In the Resolution in Civil
Liberties Union v. Executive Secretary, this Court
already clarified the scope of the prohibition provided
in Section 13, Article VII of the 1987 Constitution.
Citing the case of US v. Mouat, it specifically identified
the persons who are affected by this prohibition as
secretaries, undersecretaries and assistant
secretaries; and categorically excluded public officers
who merely have the rank of secretary,
undersecretary or assistant secretary.
Another point of clarification raised by the Solicitor
General refers to the persons affected by the
constitutional prohibition. The persons cited in the
constitutional provision are the "Members of the
Cabinet, their deputies and assistants." These terms
must be given their common and general acceptation
as referring to the heads of the executive
departments, their undersecretaries and assistant
secretaries. Public officials given the rank equivalent
to a Secretary, Undersecretary, or Assistant
Secretary are not covered by the prohibition, nor is
the Solicitor General affected thereby. (Italics
supplied).
It is clear from the foregoing that the strict prohibition
under Section 13, Article VII of the 1987 Constitution
is not applicable to the PCGG Chairman nor to the
CPLC, as neither of them is a secretary,
undersecretary, nor an assistant secretary, even if the
former may have the same rank as the latter
positions.
It must be emphasized, however, that despite the
non-applicability of Section 13, Article VII of the 1987
Constitution to respondent Elma, he remains covered
by the general prohibition under Section 7, Article IX-
B and his appointments must still comply with the
standard of compatibility of officers laid down therein;
failing which, his appointments are hereby
pronounced in violation of the Constitution.47
Clearly, the primary functions of the Office of the
Solicitor General are not related or necessary to the
primary functions of the Department of Justice.
Considering that the nature and duties of the two
offices are such as to render it improper, from
considerations of public policy, for one person to
retain both,48 an incompatibility between the offices
exists, further warranting the declaration of Agra’s
designation as the Acting Secretary of Justice,
concurrently with his designation as the Acting
Solicitor General, to be void for being in violation of
the express provisions of the Constitution.
3.
Effect of declaration of unconstitutionality of
Agra’s concurrent appointment; the de
facto officer doctrine
In view of the application of the stricter prohibition
under Section 13, supra, Agra did not validly hold the
position of Acting Secretary of Justice concurrently
with his holding of the position of Acting Solicitor
General. Accordingly, he was not to be considered as
a de jure officer for the entire period of his tenure as
the Acting Secretary of Justice. A de jure officer is
one who is deemed, in all respects, legally appointed
and qualified and whose term of office has not
expired.49
That notwithstanding, Agra was a de facto officer
during his tenure as Acting Secretary of Justice.
In Civil Liberties Union v. Executive Secretary,50 the
Court said:
During their tenure in the questioned positions,
respondents may be considered de facto officers and
as such entitled to emoluments for actual services
rendered. It has been held that "in cases where there
is no de jure, officer, a de facto officer, who, in good
faith has had possession of the office and has
discharged the duties pertaining thereto, is legally
entitled to the emoluments of the office, and may in an
appropriate action recover the salary, fees and other
compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it
seems unjust that the public should benefit by the
services of an officer de facto and then be freed from
all liability to pay any one for such services. Any per
diem, allowances or other emoluments received by
the respondents by virtue of actual services rendered
in the questioned positions may therefore be retained
by them.
A de facto officer is one who derives his appointment
from one having colorable authority to appoint, if the
office is an appointive office, and whose appointment
is valid on its face.51 He may also be one who is in
possession of an office, and is discharging its duties
under color of authority, by which is meant authority
derived from an appointment, however irregular or
informal, so that the incumbent is not a mere
volunteer.52 Consequently, the acts of the de
facto officer are just as valid for all purposes as those
of a de jure officer, in so far as the public or third
persons who are interested therein are concerned. 53
In order to be clear, therefore, the Court holds that all
official actions of Agra as a de facto Acting Secretary
of Justice, assuming that was his later designation,
were presumed valid, binding and effective as if he
was the officer legally appointed and qualified for the
office. 54 This clarification is necessary in order to
protect the sanctity of the dealings by the public with
persons whose ostensible authority emanates from
the State. 55 Agra's official actions covered by this
claritlcation extend to but are not limited to the
promulgation of resolutions on petitions for review
filed in the Department of Justice, and the issuance of
department orders, memoranda and circulars relative
to the prosecution of criminal cases.
WHEREFORE, the Comi GRANTS the petition
for certiorari and prohibition; ANNULS AND
VOIDS the designation of Hon. Alberto C. Agra as the
Acting Secretary of Justice in a concurrent capacity
with his position as the Acting Solicitor General for
being unconstitutional and violative of Section 13,
Article VII of the 1987 Constitution;
and DECLARES that l-Ion. Alberto C. Agra was a de
facto officer during his tenure as Acting Secretary of
Justice.
No pronouncement on costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
G.R. Nos. L-68379-81 September 22, 1986

EVELIO B. JAVIER, petitioner, 
vs.
THE COMMISSION ON ELECTIONS, and ARTURO
F. PACIFICADOR, respondents.

Raul S. Roco and Lorna Patajo-Kapunan for

petitioner. 

CRUZ, J.:

The new Solicitor General has moved to dismiss this

petition on the ground that as a result of supervening
events it has become moot and academic. It is not as
simple as that. Several lives have been lost in
connection with this case, including that of the
petitioner himself. The private respondent is now in
hiding. The purity of suffrage has been defiled and the
popular will scorned through a confabulation of those
in authority. This Court cannot keep silent in the face
of these terrible facts. The motion is denied. 

The petitioner and the private respondent were

candidates in Antique for the Batasang Pambansa in
the May 1984 elections. The former appeared to enjoy
more popular support but the latter had the advantage
of being the nominee of the KBL with all its perquisites
of power. On May 13, 1984, the eve of the elections,
the bitter contest between the two came to a head
when several followers of the petitioner were
ambushed and killed, allegedly by the latter's men.
Seven suspects, including respondent Pacificador,
are now facing trial for these murders. The incident
naturally heightened tension in the province and
sharpened the climate of fear among the electorate.
Conceivably, it intimidated voters against supporting
the Opposition candidate or into supporting the
candidate of the ruling party.  It is a notorious fact decried by many people and even
It was in this atmosphere that the voting was held,
and the post-election developments were to run true
to form. Owing to what he claimed were attempts to
railroad the private respondent's proclamation, the
petitioner went to the Commission on Elections to
question the canvass of the election returns. His
complaints were dismissed and the private
respondent was proclaimed winner by the Second
Division of the said body. The petitioner thereupon
came to this Court, arguing that the proclamation was
void because made only by a division and not by the
Commission on Elections en banc as required by the
Constitution. Meanwhile, on the strength of his
proclamation, the private respondent took his oath as
a member of the Batasang Pambansa.  Antique in 1984 hewed to the line and equaled if it did
The case was still being considered by this Court
when on February 11, 1986, the petitioner was
gunned down in cold blood and in broad daylight. The
nation, already indignant over the obvious
manipulation of the presidential elections in favor of
Marcos, was revolted by the killing, which flaunted a
scornful disregard for the law by the assailants who
apparently believed they were above the law. This
ruthless murder was possibly one of the factors that
strengthened the cause of the Opposition in the
February revolution that toppled the Marcos regime
and installed the present government under President
Corazon C. Aquino.  is a matter of record that the petitioner complained
The abolition of the Batasang Pambansa and the
disappearance of the office in dispute between the
petitioner and the private respondent-both of whom
have gone their separate ways-could be a convenient
justification for dismissing this case. But there are
larger issues involved that must be resolved now,
once and for all, not only to dispel the legal
ambiguities here raised. The more important purpose
is to manifest in the clearest possible terms that this
Court will not disregard and in effect condone wrong
on the simplistic and tolerant pretext that the case has
become moot and academic.  this Court.
The Supreme Court is not only the highest arbiter of
legal questions but also the conscience of the
government. The citizen comes to us in quest of law
but we must also give him justice. The two are not
always the same. There are times when we cannot
grant the latter because the issue has been settled
and decision is no longer possible according to the
law. But there are also times when although the
dispute has disappeared, as in this case, it
nevertheless cries out to be resolved. Justice
demands that we act then, not only for the vindication
of the outraged right, though gone, but also for the
guidance of and as a restraint upon the future.  Laua-an, and also of San Remigio, where the
by the foreign press that elections during the period of
the Marcos dictatorship were in the main a
desecration of the right of suffrage. Vote-buying,
intimidation and violence, illegal listing of voters,
falsified returns, and other elections anomalies
misrepresented and vitiated the popular will and led to
the induction in office of persons who did not enjoy
the confidence of the sovereign electorate. Genuine
elections were a rarity. The price at times was human
lives. The rule was chicanery and irregularity, and on
all levels of the polls, from the barangay to the
presidential. This included the rigged plebiscites and
referenda that also elicited the derision and provoked
the resentments of the people. 
not surpass the viciousness of elections in other
provinces dominated by the KBL. Terrorism was a
special feature, as demonstrated by the killings
previously mentioned, which victimized no less than
one of the main protagonists and implicated his rival
as a principal perpetrator. Opposition leaders were in
constant peril of their lives even as their supporters
were gripped with fear of violence at the hands of the
party in power. 
What made the situation especially deplorable was
the apparently indifferent attitude of the Commission
on Elections toward the anomalies being committed. It
against the terroristic acts of his opponents. All the
electoral body did was refer the matter to the Armed
Forces without taking a more active step as befitted
its constitutional role as the guardian of free, orderly
and honest elections. A more assertive stance could
have averted the Sibalom election eve massacre and
saved the lives of the nine victims of the tragedy. 
Public confidence in the Commission on Elections
was practically nil because of its transparent bias in
favor of the administration. This prejudice left many
opposition candidates without recourse except only to
 
Alleging serious anomalies in the conduct of the
elections and the canvass of the election returns, the
petitioner went to the Commission on Elections to
prevent the impending proclamation of his rival, the
private respondent herein.   Specifically, the petitioner
1
charged that the elections were marred by "massive
terrorism, intimidation, duress, vote-buying, fraud,
tampering and falsification of election returns under
duress, threat and intimidation, snatching of ballot
boxes perpetrated by the armed men of respondent
Pacificador."   Particular mention was made of the
2
municipalities of Caluya, Cabate, Tibiao, Barbaza,
petitioner claimed the election returns were not placed
in the ballot boxes but merely wrapped in cement
bags or Manila paper. 
On May 18, 1984, the Second Division of the
Commission on Elections directed the provincial
board of canvassers of Antique to proceed with the
canvass but to suspend the proclamation of the
winning candidate until further orders.  On June 7,
3
1984, the same Second Division ordered the board to
immediately convene and to proclaim the winner
without prejudice to the outcome of the case before
the Commission.  On certiorari before this Court, the
4
proclamation made by the board of canvassers was
set aside as premature, having been made before the
lapse of the 5-day period of appeal, which the
petitioner had seasonably made.   Finally, on July 23,
5
1984, the Second Division promulgated the decision
now subject of this petition which inter alia proclaimed
Arturo F. Pacificador the elected assemblyman of the
province of Antique.  6
This decision was signed by Chairman Victoriano
Savellano and Commissioners Jaime Opinion and
Froilan M. Bacungan. Previously asked to inhibit
himself on the ground that he was a former law
partner of private respondent Pacificador, Opinion had
refused.7
The petitioner then came to this Court, asking us to
annul the said decision.  the private respondent was not yet a contest at that
The core question in this case is one of jurisdiction, to
wit: Was the Second Division of the Commission on
Elections authorized to promulgate its decision of July
23, 1984, proclaiming the private respondent the
winner in the election?  relative to the conduct of elections,  not its authority as
The applicable provisions are found in Article XII-C,
Sections 2 and 3, of the 1973 Constitution.  A contest, according to him, should involve a
Section 2 confers on the Commission on Elections the
power to:  intruder but also to have himself inducted into the
(2) Be the sole judge of all contests relating to
the election, returns and qualifications of all
member of the Batasang Pambansa and
elective provincial and city officials. 
Section 3 provides: 
The Commission on Elections may sit en
banc or in three divisions. All election cases
may be heard and decided by divisions except
contests involving members of the Batasang
Pambansa, which shall be heard and
decided en banc. Unless otherwise provided
by law, all election cases shall be decided
within ninety days from the date of their
submission for decision.
While both invoking the above provisions, the
petitioner and the respondents have arrived at
opposite conclusions. The records are voluminous
and some of the pleadings are exhaustive and in part
even erudite. And well they might be, for the noble
profession of the law-despite all the canards that have
been flung against it-exerts all efforts and considers
all possible viewpoints in its earnest search of the
truth. 
The petitioner complains that the Proclamation made
by the Second Division is invalid because all contests
involving the members of the Batasang Pambansa
come under the jurisdiction of the Commission on
Elections en banc. This is as it should be, he says, to
insure a more careful decision, considering the
importance of the offices involved. The respondents,
for their part, argue that only contests need to be
heard and decided en banc and all other cases can
be-in fact, should be-filed with and decided only by
any of the three divisions. 
The former Solicitor General makes much of this
argument and lays a plausible distinction between the
terms "contests" and "cases" to prove his
point.   Simply put, his contention is that the pre-
8
proclamation controversy between the petitioner and
time and therefore could be validly heard by a mere
division of the Commission on Elections, consonant
with Section 3. The issue was at this stage still
administrative and so was resoluble by the
Commission under its power to administer all laws
9
sole judge of the election contest. 
contention between the parties for the same office "in
which the contestant seeks not only to oust the
office."   No proclamation had as yet been made
10
when the petition was filed and later decided. Hence,
since neither the petitioner nor the private respondent
had at that time assumed office, there was no
Member of the Batasang Pambansa from Antique
whose election, returns or qualifications could be
examined by the Commission on Elections en banc.
In providing that the Commission on Elections could
act in division when deciding election cases,
according to this theory, the Constitution was laying
down the general rule. The exception was the election
contest involving the members of the Batasang
Pambansa, which had to be heard and decided en
banc.   The en banc requirement would apply only
11
from the time a candidate for the Batasang Pambansa
was proclaimed as winner, for it was only then that a
contest could be permitted under the law. All matters
arising before such time were, necessarily, subject to
decision only by division of the Commission as these
would come under the general heading of "election
cases."  controversies and any of its decisions, orders
As the Court sees it, the effect of this interpretation
would be to divide the jurisdiction of the Commission
on Elections into two, viz.: (1) over matters
arising before the proclamation, which should be
heard and decided by division in the exercise of its
administrative power; and (2) over matters
arising after the proclamation, which could be heard
and decided only en banc in the exercise of its judicial
power. Stated otherwise, the Commission as a whole
could not act as sole judge as long as one of its
divisions was hearing a pre-proclamation matter
affecting the candidates for the Batasang Pambansa
because there was as yet no contest; or to put it still
another way, the Commission en banc could not do
what one of its divisions was competent to do, i.e.,
decide a pre-proclamation controversy. Moreover, a
mere division of the Commission on Elections could
hear and decide, save only those involving the
election, returns and qualifications of the members of
the Batasang Pambansa, all cases involving elective
provincial and city officials from start to
finish, including pre-proclamation controversies and
up to the election protest. In doing so, it would
exercise first administrative and then judicial powers.
But in the case of the Commission en banc, its
jurisdiction would begin only after the proclamation
was made and a contest was filed and not at any time
and on any matter before that, and always in the
exercise only of judicial power.  included the quo warranto petition that could be filed
This interpretation would give to the part more powers
than were enjoyed by the whole, granting to the
division while denying to the banc. We do not think
this was the intention of the Constitution. The framers
could not have intended such an irrational rule.
We believe that in making the Commission on
Elections the sole judge of all contests involving the
election, returns and qualifications of the members of
the Batasang Pambansa and elective provincial and
city officials, the Constitution intended to give it full
authority to hear and decide these cases from
beginning to end and on all matters related thereto,
including those arising before the proclamation of the
winners.  sense under both Section 2(2) and Section 3 of Article
It is worth observing that the special procedure for the
settlement of what are now called "pre-proclamation
controversies" is a relatively recent innovation in our
laws, having been introduced only in 1978, through
P.D. No. 1296, otherwise known as the 1978 Election
Code. Section 175 thereof provided: 
Sec. 175. Suspension and annulment of
proclamation.-The Commission shall be the
sole judge of all pre-proclamation
or rulings shall be final and executory. It
may, motu proprio or upon written petition,
and after due notice and hearing order the
suspension of the proclamation of a
candidate-elect or annul any proclamation, if
one has been made, on any of the grounds
mentioned in Sections 172, 173 and 174
thereof. 
Before that time all proceedings affecting the election,
returns and qualifications of public officers came
under the complete jurisdiction of the competent court
or tribunal from beginning to end and in the exercise
of judicial power only. It therefore could not have been
the intention of the framers in 1935, when the
Commonwealth Charter was adopted, and even in
1973, when the past Constitution was imposed, to
divide the electoral process into the pre-proclamation
stage and the post-proclamation stage and to provide
for a separate jurisdiction for each stage, considering
the first administrative and the second judicial.
Besides, the term "contest" as it was understood at
the time Article XII-C. Section 2(2) was incorporated
in the 1973 Constitution did not follow the strict
definition of a contention between the parties for the
same office. Under the Election Code of 1971, which
presumably was taken into consideration when the
1973 Constitution was being drafted, election contests
by any voter on the ground of disloyalty or ineligibility
of the contestee although such voter was himself not
claiming the office involved.  12
The word "contests" should not be given a restrictive
meaning; on the contrary, it should receive the widest
possible scope conformably to the rule that the words
used in the Constitution should be interpreted
liberally. As employed in the 1973 Constitution, the
term should be understood as referring to any matter
involving the title or claim of title to an elective office,
made before or after proclamation of the winner,
whether or not the contestant is claiming the office in
dispute. Needless to stress, the term should be given
a consistent meaning and understood in the same
XII-C of the Constitution. 
The phrase "election, returns and qualifications"
should be interpreted in its totality as referring to all
matters affecting the validity of the contestee's title.
But if it is necessary to specify, we can say that
"election" referred to the conduct of the polls,
including the listing of voters, the holding of the
electoral campaign, and the casting and counting of
the votes; "returns" to the canvass of the returns and
the proclamation of the winners, including questions
concerning the composition of the board of
canvassers and the authenticity of the election returns
and "qualifications" to matters that could be raised in
a quo warranto proceeding against the proclaimed
winner, such as his disloyalty or ineligibility or the
inadequacy of his certificate of candidacy.  made on the contest by less than the Commission en
All these came under the exclusive jurisdiction of the
Commission on Elections insofar as they applied to
the members of the defunct Batasang Pambansa and,
under Article XII-C, Section 3, of the 1973
Constitution, could be heard and decided by it only en
banc.  body sitting en banc. In fact, the pre-proclamation
We interpret "cases" as the generic term denoting the
actions that might be heard and decided by the
Commission on Elections, only by division as a
general rule except where the case was a "contest"
involving members of the Batasang Pambansa, which
had to be heard and decided en banc.  respondent Commission on Elections is due process
As correctly observed by the petitioner, the purpose of
Section 3 in requiring that cases involving members of
the Batasang Pambansa be heard and decided by the
Commission en banc was to insure the most careful
consideration of such cases. Obviously, that objective
could not be achieved if the Commission could act en
banc only after the proclamation had been made, for
it might then be too late already. We are all-too-
familiar with the grab-the-proclamation-and-delay-the-
protest strategy of many unscrupulous candidates
which has resulted in the frustration of the popular will
and the virtual defeat of the real winners in the
election. The respondent's theory would make this
gambit possible for the pre- proclamation
proceedings, being summary in nature, could be
hastily decided by only three members in division,
without the care and deliberation that would have
otherwise been observed by the Commission en
banc.  motives of the Second Division when it rendered its
After that, the delay. The Commission en banc might
then no longer be able to rectify in time the
proclamation summarily and not very judiciously made
by the division. While in the end the protestant might
be sustained, he might find himself with only a Phyrric
victory because the term of his office would have
already expired.  impartial as an added assurance to the parties that his
It may be argued that in conferring the initial power to
decide the pre- proclamation question upon the
division, the Constitution did not intend to prevent the
Commission en banc from exercising the power
directly, on the theory that the greater power
embraces the lesser. It could if it wanted to but then it
could also allow the division to act for it. That
argument would militate against the purpose of the
provision, which precisely limited all questions
affecting the election contest, as distinguished from
election cases in general, to the jurisdiction of the
Commission en banc as sole judge thereof. "Sole
judge" excluded not only all other tribunals but also
and even the division of the Commission A decision
banc would not meet the exacting standard of care
and deliberation ordained by the Constitution 
Incidentally, in making the Commission the "sole
judge" of pre- proclamation controversies in Section
175, supra, the law was obviously referring to the
controversies involved in Aratuc vs. Commission on
Elections,   where the said provision was applied,
13
were heard and decided en banc. 
Another matter deserving the highest consideration of
this Court but accorded cavalier attention by the
of law, that ancient guaranty of justice and fair play
which is the hallmark of the free society.
Commissioner Opinion ignored it. Asked to inhibit
himself on the ground that he was formerly a law
partner of the private respondent, he obstinately
insisted on participating in the case, denying he was
biased. 14
Given the general attitude of the Commission on
Elections toward the party in power at the time, and
the particular relationship between Commissioner
Opinion and MP Pacificador, one could not be at least
apprehensive, if not certain, that the decision of the
body would be adverse to the petitioner. As in fact it
was. Commissioner Opinion's refusal to inhibit himself
and his objection to the transfer of the case to another
division cannot be justified by any criterion of
propriety. His conduct on this matter belied his
wounded protestations of innocence and proved the
decision. 
This Court has repeatedly and consistently demanded
"the cold neutrality of an impartial judge" as the
indispensable imperative of due process.   To bolster
15
that requirement, we have held that the judge must
not only be impartial but must also appear to be
decision will be just.  The litigants are entitled to no
16
less than that. They should be sure that when their
rights are violated they can go to a judge who shall
give them justice. They must trust the judge,
otherwise they will not go to him at all. They must
believe in his sense of fairness, otherwise they will not
seek his judgment. Without such confidence, there
would be no point in invoking his action for the justice
they expect.
Due process is intended to insure that confidence by
requiring compliance with what Justice Frankfurter
calls the rudiments of fair play. Fair play cans for
equal justice. There cannot be equal justice where a
suitor approaches a court already committed to the
other party and with a judgment already made and
waiting only to be formalized after the litigants shall
have undergone the charade of a formal hearing.
Judicial (and also extra-judicial) proceedings are not
orchestrated plays in which the parties are supposed
to make the motions and reach the denouement
according to a prepared script. There is no writer to
foreordain the ending. The judge will reach his
conclusions only after all the evidence is in and all the
arguments are filed, on the basis of the established
facts and the pertinent law.  Plaridel Sanchez IV and Aldrich Sanchez, the aunt of
The relationship of the judge with one of the parties
may color the facts and distort the law to the prejudice
of a just decision. Where this is probable or even only
posssible, due process demands that the judge inhibit
himself, if only out of a sense of delicadeza. For like
Caesar's wife, he must be above suspicion.
Commissioner Opinion, being a lawyer, should have
recognized his duty and abided by this well-known
rule of judicial conduct. For refusing to do so, he
divested the Second Division of the necessary vote
for the questioned decision, assuming it could act,
and rendered the proceeding null and void.  17
Since this case began in 1984, many significant
developments have taken place, not the least
significant of which was the February revolution of
"people power" that dislodged the past regime and
ended well nigh twenty years of travail for this captive
nation. The petitioner is gone, felled by a hail of
bullets sprayed with deadly purpose by assassins
whose motive is yet to be disclosed. The private
respondent has disappeared with the "pomp of power"
he had before enjoyed. Even the Batasang Pambansa
itself has been abolished, "an iniquitous vestige of the
previous regime" discontinued by the Freedom
Constitution. It is so easy now, as has been
suggested not without reason, to send the recrds of
this case to the archives and say the case is finished
and the book is closed.
But not yet.  closed.
Let us first say these meager words in tribute to a
fallen hero who was struck down in the vigor of his
youth because he dared to speak against tyranny.
Where many kept a meekly silence for fear of
retaliation, and still others feigned and fawned in
hopes of safety and even reward, he chose to fight.
He was not afraid. Money did not tempt him. Threats
did not daunt him. Power did not awe him. His was a
singular and all-exacting obsession: the return of
freedom to his country. And though he fought not in
the barricades of war amid the sound and smoke of
shot and shell, he was a soldier nonetheless, fighting
valiantly for the liberties of his people against the
enemies of his race, unfortunately of his race too, who
would impose upon the land a perpetual night of dark
enslavement. He did not see the breaking of the
dawn, sad to say, but in a very real sense Evelio B.
Javier made that dawn draw nearer because he was,
like Saul and Jonathan, "swifter than eagles and
stronger than lions." 
A year ago this Court received a letter which began: "I
am the sister of the late Justice Calixto Zaldivar. I am
the mother of Rhium Z. Sanchez, the grandmother of
Mamerta Zaldivar. I lost all four of them in the election
eve ambush in Antique last year." She pleaded, as so
did hundreds of others of her provincemates in
separate signed petitions sent us, for the early
resolution of that horrible crime, saying: "I am 82
years old now. I am sick. May I convey to you my
prayer in church and my plea to you, 'Before I die, I
would like to see justice to my son and grandsons.'
May I also add that the people of Antique have not
stopped praying that the true winner of the last
elections will be decided upon by the Supreme Court
soon."
That was a year ago and since then a new
government has taken over in the wake of the
February revolution. The despot has escaped, and
with him, let us pray, all the oppressions and
repressions of the past have also been banished
forever. A new spirit is now upon our land. A new
vision limns the horizon. Now we can look forward
with new hope that under the Constitution of the future
every Filipino shall be truly sovereign in his own
country, able to express his will through the pristine
ballow with only his conscience as his counsel. 
This is not an impossible dream. Indeed, it is an
approachable goal. It can and will be won if we are
able at last, after our long ordeal, to say never again
to tyranny. If we can do this with courage and
conviction, then and only then, and not until then, can
we truly say that the case is finished and the book is
 
WHEREFORE, let it be spread in the records of this
case that were it not for the supervening events that
have legally rendered it moot and academic, this
petition would have been granted and the decision of
the Commission on Elections dated July 23, 1984, set
aside as violative of the Constitution.

SO ORDERED.

Feria, Yap, Narvasa, Alampay and Paras, JJ., concur.

Fernan and Gutierrez, Jr., JJ., concur in the result.

G.R. No. 133486           January 28, 2000

ABS-CBN BROADCASTING
CORPORATION, petitioner, 
vs.
COMMISSION ON ELECTIONS, respondent.

PANGANIBAN, J.:

The holding of exit polls and the dissemination of their

results through mass media constitute an essential
part of the freedoms of speech and of the press.
Hence, the Comelec cannot ban them totally in the
guise of promoting clean, honest, orderly and credible
elections. Quite the contrary, exit polls — properly
conducted and publicized — can be vital tools in
eliminating the evils of election-fixing and fraud.
Narrowly tailored countermeasures may be prescribed
by the Comelec so as to minimize or suppress the
incidental problems in the conduct of exit polls,
without transgressing in any manner the fundamental
rights of our people.

The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of

the Rules of Court assailing Commission on Elections
(Comelec) en banc Resolution No. 98-1419 dated
1 

April 21, 1998. In the said Resolution, the poll body

RESOLVED to approve the issuance of a

restraining order to stop ABS-CBN or any
other groups, its agents or representatives
from conducting such exit survey and to
authorize the Honorable Chairman to issue
the same.
The Resolution was issued by the Comelec allegedly
upon "information from [a] reliable source that ABS-
CBN (Lopez Group) has prepared a project, with PR
groups, to conduct radio-TV coverage of the
elections . . . and to make [an] exit survey of the . . .
vote during the elections for national officials
particularly for President and Vice President, results
of which shall be [broadcast] immediately." The
2 
electoral body believed that such project might conflict
with the official Comelec count, as well as the
unofficial quick count of the National Movement for
Free Elections (Namfrel). It also noted that it had not
authorized or deputized Petitioner ABS-CBN to
undertake the exit survey.
On May 9, 1998, this Court issued the Temporary
Restraining Order prayed for by petitioner. We
directed the Comelec to cease and desist, until further
orders, from implementing the assailed Resolution or
the restraining order issued pursuant thereto, if any. In
fact, the exit polls were actually conducted and
reported by media without any difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the
Respondent Commission acted with grave abuse of
discretion amounting to a lack or excess of jurisdiction
when it approved the issuance of a restraining order
enjoining the petitioner or any [other group], its agents
or representatives from conducting exit polls during
the . . . May 11 elections." 3 
In his Memorandum, the solicitor general, in seeking
4 
to dismiss the Petition, brings up additional issues: (1)
mootness and (2) prematurity, because of petitioner's
failure to seek a reconsideration of the assailed
Comelec Resolution.
The Court's Ruling
The Petition is meritorious.
5  civil action for certiorari is therefore justified.
Procedural Issues:
Mootness and Prematurity
The solicitor general contends that the petition is moot
and academic, because the May 11, 1998 election
has already been held and done with. Allegedly, there
is no longer any actual controversy before us.
The issue is not totally moot. While the assailed
Resolution referred specifically to the May 11, 1998
election, its implications on the people's fundamental
freedom of expression transcend the past election.
The holding of periodic elections is a basic feature of
our democratic government. By its very nature, exit
polling is tied up with elections. To set aside the
resolution of the issue now will only postpone a task
that could well crop up again in future elections. 6 
In any event, in Salonga v. Cruz Paño, the Court had
occasion to reiterate that it "also has the duty to
formulate guiding and controlling constitutional
principles, precepts, doctrines, or rules. It has the
symbolic function of educating bench and bar on the
extent of protection given by constitutional
guarantees." Since the fundamental freedoms of
7 
speech and of the press are being invoked here, we
have resolved to settle, for the guidance of posterity,
whether they likewise protect the holding of exit polls
and the dissemination of data derived therefrom.
The solicitor general further contends that the Petition
should be dismissed for petitioner's failure to exhaust
available remedies before the issuing forum,
specifically the filing of a motion for reconsideration.
This Court, however, has ruled in the past that this
procedural requirement may be glossed over to
prevent a miscarriage of justice, when the issue
8 
involves the principle of social justice or the protection
of labor, when the decision or resolution sought to be
9 
set aside is a nullity, or when the need for relief is
10 
extremely urgent and certiorari is the only adequate
and speedy remedy available. 11 
The instant Petition assails a Resolution issued by the
Comelec en banc on April 21, 1998, only twenty (20)
days before the election itself. Besides, the petitioner
got hold of a copy thereof only on May 4, 1998. Under
the circumstances, there was hardly enough
opportunity to move for a reconsideration and to
obtain a swift resolution in time or the May 11, 1998
elections. Moreover, not only is time of the essence;
the Petition involves transcendental constitutional
issues. Direct resort to this Court through a special
Main Issue:
Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted
by qualified individuals or groups of individuals for the
purpose of determining the probable result of an
election by confidentially asking randomly selected
voters whom they have voted for, immediately after
they have officially cast their ballots. The results of the
survey are announced to the public, usually through
the mass media, to give an advance overview of how,
in the opinion of the polling individuals or
organizations, the electorate voted. In our electoral
history, exit polls had not been resorted to until the
recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation
maintains that it is a responsible member of the mass
media, committed to report balanced election-related
data, including "the exclusive results of Social
Weather Station (SWS) surveys conducted in fifteen
administrative regions."
It argues that the holding of exit polls and the
nationwide reporting their results are valid exercises
of the freedoms of speech and of the press. It submits
that, in precipitately and unqualifiedly restraining the
holding and the reporting of exit polls, the Comelec
gravely abused its discretion and grossly violated the
petitioner's constitutional rights.
Public respondent, on the other hand, vehemently
denies that, in issuing the assailed Resolution, it
gravely abused its discretion. It insists that the
issuance thereof was "pursuant to its constitutional
and statutory powers to promote a clean, honest,
orderly and credible May 11, 1998 elections"; and "to
protect, preserve and maintain the secrecy and
sanctity of the ballot." It contends that "the conduct of
exit surveys might unduly confuse and influence the
voters," and that the surveys were designed "to
condition the minds of people and cause confusion as
to who are the winners and the [losers] in the
election," which in turn may result in "violence and
anarchy."
Public respondent further argues that "exit surveys
indirectly violate the constitutional principle to
preserve the sanctity of the ballots," as the "voters are
lured to reveal the contents of ballots," in violation of
Section 2, Article V of the Constitution; and relevant
12 
provisions of the Omnibus Election Code. It submits
13 
that the constitutionally protected freedoms invoked
by petitioner "are not immune to regulation by the
State in the legitimate exercise of its police power,"
such as in the present case.
The solicitor general, in support of the public
respondent, adds that the exit polls pose a "clear and
present danger of destroying the credibility and
integrity of the electoral process," considering that
they are not supervised by any government agency
and can in general be manipulated easily. He insists
that these polls would sow confusion among the
voters and would undermine the official tabulation of
votes conducted by the Commission, as well as the
quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the
reporting of exit polls. The question can thus be more
narrowly defined: May the Comelec, in the exercise of
its powers, totally ban exit polls? In answering this
question, we need to review quickly our jurisprudence
on the freedoms of speech and of the press.
Nature and Scope of Freedoms of Speech
and of the Press
The freedom of expression is a fundamental principle
of our democratic government. It "is a 'preferred' right
and, therefore, stands on a higher level than
substantive economic or other liberties. . . . [T]his
must be so because the lessons of history, both
political and legal, illustrate that freedom of thought
and speech is the indispensable condition of nearly
every other form of freedom." 14 
Our Constitution clearly mandates that no law shall be
passed abridging the freedom of speech or of the
press. In the landmark case Gonzales
15 
v. Comelec, this Court enunciated that at the very
16 
least, free speech and a free press consist of the
liberty to discuss publicly and truthfully any matter of
public interest without prior restraint.
The freedom of expression is a means of assuring
individual self-fulfillment, of attaining the truth, of
securing participation by the people in social and
political decision-making, and of maintaining the
balance between stability and change. It represents a
17 
profound commitment to the principle that debates on
public issues should be uninhibited, robust, and wide
open. It means more than the right to approve
18 
existing political beliefs or economic arrangements, to
lend support to official measures, or to take refuge in
the existing climate of opinion on any of public
consequence. And paraphrasing the eminent Justice
Oliver Wendell Holmes, we stress that the freedom
19 
encompasses the thought we hate, no less than the
thought we agree with.
Limitations
The realities of life in a complex society, however,
preclude an absolute exercise of the freedoms of
speech and of the press. Such freedoms could not
remain unfettered and unrestrained at all times and
under all circumstances. They are not immune to
20 
regulation by the State in the exercise of its police
power. While the liberty to think is absolute, the
21 
power to express such thought in words and deeds
has limitations.
In Cabansag v. Fernandez this Court had occasion to
22 
discuss two theoretical test in determining the validity
of restrictions to such freedoms, as follows:
These are the "clear and present danger" rule
and the "dangerous tendency" rule. The first,
as interpreted in a number of cases, means
 that the evil consequence of the comment or
utterance must be "extremely serious and the
degree of imminence extremely high" before
the utterance can be punished. The danger to
be guarded against is the "substantive evil"
sought to be prevented. . . . 23 
The "dangerous tendency" rule, on the other
hand, . . . may be epitomized as follows: if the
words uttered create a dangerous tendency
which the state has a right to prevent, then
such words are punishable. It is not necessary
that some definite or immediate acts of force,
violence, or unlawfulness be advocated. It is
sufficient that such acts be advocated in
general terms. Nor is it necessary that the
language used be reasonably calculated to
incite persons to acts of force, violence, or
unlawfulness. It is sufficient if the natural
tendency and probable effect of the utterance
be to bring about the substantive evil which
the legislative body seeks to prevent.
Unquestionably, this Court adheres to the "clear and
present danger" test. It implicitly did in its earlier
decisions in Primicias v. Fugoso and American Bible
25 
Society v. City of Manila; as well as in later
26 
ones, Vera v. Arca, Navarro v. Villegas, Imbong
27  28 
v. Ferrer, Blo Umpar Adiong v. Comelec and, more
29  30 
recently, in Iglesia ni Cristo v. MTRCB. In setting the
31 
standard or test for the "clear and present danger"
doctrine, the Court echoed the words of Justice
Holmes: "The question in every case is whether the
words used are used in such circumstances and are
of such a nature as to create a clear and present
danger that they will bring about the substantive evils
that Congress has a right to prevent. It is a question of
proximity and degree." 32 
A limitation on the freedom of expression may be
justified only by a danger of such substantive
character that the state has a right to prevent. Unlike
in the "dangerous tendency" doctrine, the danger
must not only be clear but also present. "Present"
refers to the time element; the danger must not only
be probable but very likely to be inevitable. The evil
sought to be avoided must be so substantive as to
justify a clamp over one's mouth or a restraint of a
writing instrument. 34 
Justification for a Restriction
Doctrinally, the Court has always ruled in favor of the
freedom of expression, and any restriction is treated
an exemption. The power to exercise prior restraint is
not to be presumed; rather the presumption is against
its validity. And it is respondent's burden to overthrow
35 
such presumption. Any act that restrains speech
should be greeted with furrowed brows, so it has
36 
been said.
To justify a restriction, the promotion of a substantial
government interest must be clearly shown. Thus: 37 
A government regulation is sufficiently justified
if it is within the constitutional power of the
government, if it furthers an important or
substantial government interest; if the
governmental interest is unrelated to the
suppression of free expression; and if the
incidental restriction on alleged First
Amendment freedoms is no greater than is
essential to the furtherance of that interest. 38 
Hence, even though the government's purposes are
legitimate and substantial, they cannot be pursued by
means that broadly stifle fundamental personal
liberties, when the end can be more narrowly
achieved. 39 
24 
The freedoms of speech and of the press should all
the more be upheld when what is sought to be
curtailed is the dissemination of information meant. to
add meaning to the equally vital right of suffrage. We 40 
cannot support any ruling or order "the effect of which
would be to nullify so vital a constitutional right as free
speech." When faced with borderline situations in
41 
which the freedom of a candidate or a party to speak
or the freedom of the electorate to know is invoked
against actions allegedly made to assure clean and
free elections, this Court shall lean in favor of
freedom. For in the ultimate analysis, the freedom of
the citizen and the State's power to regulate should
not be antagonistic. There can be no free and honest
elections if, in the efforts to maintain them, the
freedom to speak and the right to know are unduly
curtailed.42 
True, the government has a stake in protecting the
fundamental right to vote by providing voting places
that are safe and accessible. It has the duty to secure
the secrecy of the ballot and to preserve the sanctity
and the integrity of the electoral process. However, in
33 
order to justify a restriction of the people's freedoms
of speech and of the press, the state's responsibility
of ensuring orderly voting must far outweigh them.
These freedoms have additional importance, because
exit polls generate important research data which may
be used to study influencing factors and trends in
voting behavior. An absolute prohibition would thus be
unreasonably restrictive, because it effectively
prevents the use of exit poll data not only for election-
day projections, but also for long-term research. 43 
Comelec Ban on Exit Polling
In the case at bar, the Comelec justifies its assailed
Resolution as having been issued pursuant to its
constitutional mandate to ensure a free, orderly,
honest, credible and peaceful election. While
admitting that "the conduct of an exit poll and the
broadcast of the results thereof [are] . . . an exercise
of press freedom," it argues that "[p]ress freedom may
be curtailed if the exercise thereof creates a clear and
present danger to the community or it has a
dangerous tendency." It then contends that "an exit
poll has the tendency to sow confusion considering
the randomness of selecting interviewees, which
further make[s] the exit poll highly unreliable. The
probability that the results of such exit poll may not be
in harmony with the official count made by the
Comelec . . . is ever present. In other words, the exit
poll has a clear and present danger of destroying the
credibility and integrity of the electoral process."
Such arguments are purely speculative and clearly
untenable. First, by the very nature of a survey, the
interviewees or participants are selected at random,
so that the results will as much as possible be
representative or reflective of the general sentiment or
view of the community or group polled. Second, the
survey result is not meant to replace or be at par with
the official Comelec count. It consists merely of the
opinion of the polling group as to who the electorate in
general has probably voted for, based on the limited
data gathered from polled individuals. Finally, not at
stake here are the credibility and the integrity of the
elections, which are exercises that are separate and
independent from the exit polls. The holding and the
reporting of the results of exit polls cannot undermine
those of the elections, since the former is only part of
the latter. If at all, the outcome of one can only be
indicative of the other.
The Comelec's concern with the possible
noncommunicative effect of exit polls — disorder and
confusion in the voting centers — does not justify a
total ban on them. Undoubtedly, the assailed Comelec
Resolution is too broad, since its application is without
qualification as to whether the polling is disruptive or
not. Concededly, the Omnibus Election Code
44 
prohibits disruptive behavior around the voting
centers. There is no showing, however, that exit polls
45 
or the means to interview voters cause chaos in
voting centers. Neither has any evidence been
presented proving that the presence of exit poll
reporters near an election precinct tends to create
disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the
collection of exit poll data and their use for any
purpose. The valuable information and ideas that
could be derived from them, based on the voters'
answer to the survey questions will forever remain
unknown and unexplored. Unless the ban is
restrained, candidates, researchers, social scientists
and the electorate in general would be deprived of
studies on the impact of current events and of
election-day and other factors on voters' choices. 1âwphi1.nêt
In Daily Herald Co. v. Munro, the US Supreme Court
46 
held that a statute, one of the purposes of which was
to prevent the broadcasting of early returns, was
unconstitutional because such purpose was
impermissible, and the statute was neither narrowly
tailored to advance a state interest nor the least
restrictive alternative. Furthermore, the general
interest of the State in insulating voters from outside
influences is insufficient to justify speech regulation.
Just as curtailing election-day broadcasts and
newspaper editorials for the reason that they might
indirectly affect the voters' choices is impermissible,
so is impermissible, so is regulating speech via an exit
poll restriction.
47 
The absolute ban imposed by the Comelec cannot,
therefore, be justified. It does not leave open any
alternative channel of communication to gather the
type of information obtained through exit polling. On
the other hand, there are other valid and reasonable
ways and means to achieve the Comelec end of
avoiding or minimizing disorder and confusion that
may be brought about by exit surveys.
For instance, a specific limited area for conducting
exit polls may be designated. Only professional
survey groups may be allowed to conduct the same.
Pollsters may be kept at a reasonable distance from
the voting center. They may be required to explain to
voters that the latter may refuse interviewed, and that
the interview is not part of the official balloting
process. The pollsters may further be required to wear
distinctive clothing that would show they are not
election officials. Additionally, they may be required
48 
to undertake an information campaign on the nature
of the exercise and the results to be obtained
therefrom. These measures, together with a general
prohibition of disruptive behavior, could ensure a
clean, safe and orderly election.
For its part, petitioner ABS-CBN explains its survey
methodology as follows: (1) communities are
randomly selected in each province; (2) residences to
be polled in such communities are also chosen at
random; (3) only individuals who have already voted,
as shown by the indelible ink on their fingers, are
interviewed; (4) the interviewers use no cameras of
any sort; (5) the poll results are released to the public
only on the day after the elections. These
49 
precautions, together with the possible measures
earlier stated, may be undertaken to abate the
Comelec's fear, without consequently and unjustifiably
stilling the people's voice.
With the foregoing premises, we conclude that the
interest of the state in reducing disruption is
outweighed by the drastic abridgment of the
constitutionally guaranteed rights of the media and the
electorate. Quite the contrary, instead of disrupting
elections, exit polls — properly conducted and
publicized — can be vital tools for the holding of
honest, orderly, peaceful and credible elections; and
for the elimination of election-fixing, fraud and other
electoral ills.

Violation of Ballot Secrecy

The contention of public respondent that exit polls

indirectly transgress the sanctity and the secrecy of
the ballot is off-tangent to the real issue. Petitioner
does not seek access to the ballots cast by the voters.
The ballot system of voting is not at issue here.

The reason behind the principle of ballot secrecy is to

avoid vote buying through voter identification. Thus,
voters are prohibited from exhibiting the contents of G.R. No. 148208             December 15, 2004
their official ballots to other persons, from making
copies thereof, or from putting distinguishing marks CENTRAL BANK (now Bangko Sentral ng
thereon so as to be identified. Also proscribed is Pilipinas) EMPLOYEES ASSOCIATION,
finding out the contents of the ballots cast by INC., petitioner, 
particular voters or disclosing those of disabled or vs.
illiterate voters who have been assisted. Clearly, what BANGKO SENTRAL NG PILIPINAS and the
is forbidden is the association of voters with their EXECUTIVE SECRETARY, respondents.
respective votes, for the purpose of assuring that the
votes have been cast in accordance with the
instructions of a third party. This result cannot,
however, be achieved merely through the voters'
verbal and confidential disclosure to a pollster of
whom they have voted for. DECISION

In exit polls, the contents of the official ballot are not

actually exposed. Furthermore, the revelation of
whom an elector has voted for is not compulsory, but
voluntary. Voters may also choose not to reveal their
identities. Indeed, narrowly tailored countermeasures
may be prescribed by the Comelec, so as to minimize
or suppress incidental problems in the conduct of exit
polls, without transgressing the fundamental rights of
our people.
WHEREFORE, the Petition is GRANTED, and the
Temporary Restraining Order issued by the Court on
May 9, 1998 is made PERMANENT. Assailed Minute
Resolution No. 98-1419 issued by the Comelec en
banc on April 21, 1998 is hereby NULLIFIED and SET
ASIDE. No costs.
PUNO, J.:
Can a provision of law, initially valid,
become subsequently unconstitutional, on the
ground that its continuedoperation would violate the
equal protection of the law? We hold that with the
passage of the subsequent laws amending the charter
of seven (7) other governmental financial institutions
(GFIs), the continued operation of the last proviso of
Section 15(c), Article II of Republic Act (R.A.) No.
7653, constitutes invidious discrimination on the 2,994
rank-and-file employees of the Bangko Sentral ng
Pilipinas (BSP).

SO ORDERED. I.

The Case

First the facts.

On July 3, 1993, R.A. No. 7653 (the New Central
Bank Act) took effect. It abolished the old Central
Bank of the Philippines, and created a new BSP.
On June 8, 2001, almost eight years after the
effectivity of R.A. No. 7653, petitioner Central Bank
(now BSP) Employees Association, Inc., filed a
petition for prohibition against BSP and the Executive
Secretary of the Office of the President, to restrain
respondents from further implementing the
last proviso in Section 15(c), Article II of R.A. No.
7653, on the ground that it is unconstitutional.
Article II, Section 15(c) of R.A. No. 7653 provides:
Section 15. Exercise of Authority - In the exercise of
its authority, the Monetary Board shall:
xxx       xxx       xxx
(c) establish a human resource management
system which shall govern the selection,
hiring, appointment, transfer, promotion, or
dismissal of all personnel. Such system shall
aim to establish professionalism and
excellence at all levels of the Bangko
Sentral in accordance with sound principles of
management.
A compensation structure, based on job
evaluation studies and wage surveys and
subject to the Board's approval, shall be
instituted as an integral component of
the Bangko Sentral's human resource
development program: Provided, That the
Monetary Board shall make its own system
conform as closely as possible with the
principles provided for under Republic Act No.
6758 [Salary Standardization Act]. Provided,
however, That compensation and wage
structure of employees whose positions
fall under salary grade 19 and below shall
be in accordance with the rates prescribed
under Republic Act No. 6758. [emphasis
supplied]
The thrust of petitioner's challenge is that the
above proviso makes
an unconstitutional cut between two classes of
employees in the BSP, viz: (1) the BSP officers or
those exempted from the coverage of the Salary
Standardization Law (SSL) (exempt class); and (2)
the rank-and-file (Salary Grade [SG] 19 and below),
or those not exempted from the coverage of the SSL
(non-exempt class). It is contended that this
classification is "a classic case of class legislation,"
allegedly not based on substantial distinctions which
make real differences, but solely on the SG of the
BSP personnel's position. Petitioner also claims that it
is not germane to the purposes of Section 15(c),
Article II of R.A. No. 7653, the most important of
which is to establish professionalism and
excellence at all levels in the BSP. Petitioner offers
1 
the following sub-set of arguments:
a. the legislative history of R.A. No. 7653
shows that the questioned proviso does not
appear in the original and amended versions
of House Bill No. 7037, nor in the original
version of Senate Bill No. 1235;  2 
b. subjecting the compensation of the BSP
rank-and-file employees to the rate prescribed
by the SSL actually defeats the purpose of the
law of establishing professionalism and
3 
excellence at all levels in the
BSP;  (emphasis supplied)
4 
c. the assailed proviso was the product of
amendments introduced during the
deliberation of Senate Bill No. 1235, without
showing its relevance to the objectives of the
law, and even admitted by one senator as
discriminatory against low-salaried employees
of the BSP; 5 
d. GSIS, LBP, DBP and SSS personnel are all
exempted from the coverage of the SSL; thus
within the class of rank-and-file personnel of
government financial institutions (GFIs), the
BSP rank-and-file are also discriminated
upon; and 6 
e. the assailed proviso has caused the
demoralization among the BSP rank-and-file
and resulted in the gross disparity between
their compensation and that of the BSP
officers'. 7 
In sum, petitioner posits that the classification is not
reasonable but arbitrary and capricious, and violates
the equal protection clause of the
Constitution. Petitioner also stresses: (a) that R.A. No.
8 
7653 has a separability clause, which will allow the
declaration of the unconstitutionality of the proviso in
question without affecting the other provisions; and (b)
the urgency and propriety of the petition, as
some 2,994 BSP rank-and-file employees have
been prejudiced since 1994 when the proviso was
implemented. Petitioner concludes that: (1) since the
inequitable proviso has no force and effect of law,
respondents' implementation of such amounts to lack
of jurisdiction; and (2) it has no appeal nor any other
plain, speedy and adequate remedy in the ordinary
course except through this petition for prohibition,
which this Court should take cognizance of,
considering the transcendental importance of the legal
issue involved.9 
Respondent BSP, in its comment, contends that the
10  affected alike by a statute. Equality of
provision does not violate the equal protection clause
and can stand the constitutional test, provided it is
construed in harmony with other provisions of the
same law, such as "fiscal and administrative
autonomy of BSP," and the mandate of the Monetary
Board to "establish professionalism and excellence at
all levels in accordance with sound principles of
management."
The Solicitor General, on behalf of respondent
Executive Secretary, also defends the validity of the
provision. Quite simplistically, he argues that the
classification is based on actual and real
differentiation, even as it adheres to the enunciated
policy of R.A. No. 7653 to establish professionalism
and excellence within the BSP subject to prevailing
laws and policies of the national government. 11  Classification in law, as in the other
II.
Issue
Thus, the sole - albeit significant - issue to be
resolved in this case is whether the last paragraph of
Section 15(c), Article II of R.A. No. 7653, runs afoul of
the constitutional mandate that "No person shall be. . .
denied the equal protection of the laws." 12 
III.
Ruling
A. UNDER THE PRESENT STANDARDS OF
EQUAL PROTECTION,
SECTION 15(c), ARTICLE II OF R.A. NO. 7653 IS
VALID.
Jurisprudential standards for equal protection
challenges indubitably show that the classification
created by the questioned proviso, on its face and in
its operation, bears no constitutional infirmities.
It is settled in constitutional law that the "equal
protection" clause does not prevent the Legislature
from establishing classes of individuals or objects
upon which different rules shall operate - so long as
the classification is not unreasonable. As held
in Victoriano v. Elizalde Rope Workers' Union, and
reiterated in a long line of cases:14  equal protection guaranty does not preclude
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
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.
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.
In the exercise of its power to make
classifications for the purpose of enacting
laws over matters within its jurisdiction, the
state is recognized as enjoying a wide range
of discretion. It is not necessary that the
classification be based on scientific or marked
differences of things or in their relation.
Neither is it necessary that the classification
be made with mathematical nicety. Hence,
legislative classification may in many cases
13  properly rest on narrow distinctions, for the
the legislature from recognizing degrees of
evil or harm, and legislation is addressed to
evils as they may appear. (citations omitted) 
Congress is allowed a wide leeway in providing for a
valid classification. The equal protection clause is not
15 
infringed by legislation which applies only to those
persons falling within a specified class. If the
16 
groupings are characterized by substantial distinctions
that make real differences, one class may be treated
and regulated differently from another. The 17 
classification must also be germane to the purpose of
the law and must apply to all those belonging to the
same class. 18 
In the case at bar, it is clear in the legislative
deliberations that the exemption of officers (SG 20
and above) from the SSL was intended to address the
BSP's lack of competitiveness in terms of attracting
competent officers and executives. It was not
intended to discriminate against the rank-and-file. If
the end-result did in fact lead to a disparity of
treatment between the officers and the rank-and-file in
terms of salaries and benefits, the discrimination or
distinction has a rational basis and is not palpably,
purely, and entirely arbitrary in the legislative sense. 
19 
That the provision was a product of amendments
introduced during the deliberation of the Senate Bill
does not detract from its validity. As early as 1947 and
reiterated in subsequent cases, this Court has
20 
subscribed to the conclusiveness of an enrolled bill to
refuse invalidating a provision of law, on the ground
that the bill from which it originated contained no such
provision and was merely inserted by the bicameral
conference committee of both Houses.
Moreover, it is a fundamental and familiar teaching
that all reasonable doubts should be resolved in favor
of the constitutionality of a statute. An act of the
21 
legislature, approved by the executive, is presumed to
be within constitutional limitations. To justify the
22 
nullification of a law, there must be a clear and
unequivocal breach of the Constitution, not a doubtful
and equivocal breach. 23 
B. THE ENACTMENT, HOWEVER, OF
SUBSEQUENT LAWS -
EXEMPTING ALL OTHER RANK-AND-FILE
EMPLOYEES
OF GFIs FROM THE SSL - RENDERS THE
CONTINUED
APPLICATION OF THE CHALLENGED PROVISION
A VIOLATION OF THE EQUAL PROTECTION
CLAUSE.
While R.A. No. 7653 started as a valid measure well
within the legislature's power, we hold that
the enactment of subsequent laws exempting all
rank-and-file employees of other GFIs leeched all
validity out of the challenged proviso.
1. The concept of relative constitutionality.
The constitutionality of a statute cannot, in every
instance, be determined by a mere comparison of its
provisions with applicable provisions of the
Constitution, since the statute may be constitutionally
valid as applied to one set of facts and invalid in its
application to another. 24 
A statute valid at one time may become void at
another time because of altered
circumstances. Thus, if a statute in its practical
25 
operation becomes arbitrary or confiscatory, its
validity, even though affirmed by a former
adjudication, is open to inquiry and investigation in the
light of changed conditions. 26 
Demonstrative of this doctrine is Vernon Park Realty
v. City of Mount Vernon, where the Court of
27 
Appeals of New York declared as unreasonable and
arbitrary a zoning ordinance which placed the
plaintiff's property in a residential district, although it
was located in the center of a business area. Later
amendments to the ordinance then prohibited the use
of the property except for parking and storage of
automobiles, and service station within a parking
area. The Court found the ordinance to constitute an
invasion of property rights which was contrary to
constitutional due process. It ruled:
While the common council has the
unquestioned right to enact zoning laws
respecting the use of property in accordance
with a well-considered and comprehensive
plan designed to promote public health, safety
and general welfare, such power is subject to
the constitutional limitation that it may not be
exerted arbitrarily or unreasonably and this is
so whenever the zoning ordinance precludes
the use of the property for any purpose for
which it is reasonably adapted. By the same
token, an ordinance valid when adopted
will nevertheless be stricken down as
invalid when, at a later time, its operation
under changed conditions proves
confiscatory such, for instance, as when the
greater part of its value is destroyed, for which
the courts will afford relief in an appropriate
case. (citations omitted, emphasis supplied)
28 
In the Philippine setting, this Court declared the
continued enforcement of a valid law as
unconstitutional as a consequence of significant
changes in circumstances. Rutter v.
Esteban upheld the constitutionality of the
29 
moratorium law - its enactment and operation being a
valid exercise by the State of its police power - but
30 
also ruled that the continued enforcement of the
otherwise valid law would be unreasonable and
oppressive. It noted the subsequent changes in the
country's business, industry and agriculture. Thus, the
law was set aside because its continued operation
would be grossly discriminatory and lead to the
oppression of the creditors. The landmark ruling
states:
31 
The question now to be determined is, is the
period of eight (8) years which Republic Act
No. 342 grants to debtors of a monetary
obligation contracted before the last global
war and who is a war sufferer with a claim
duly approved by the Philippine War Damage
Commission reasonable under the present
circumstances?
It should be noted that Republic Act No. 342
only extends relief to debtors of prewar
obligations who suffered from the ravages of
the last war and who filed a claim for their
losses with the Philippine War Damage
Commission. It is therein provided that said
obligation shall not be due and demandable
for a period of eight (8) years from and after
settlement of the claim filed by the debtor with
said Commission. The purpose of the law is to
afford to prewar debtors an opportunity to
rehabilitate themselves by giving them a
reasonable time within which to pay their
prewar debts so as to prevent them from
being victimized by their creditors. While it is
admitted in said law that since liberation
conditions have gradually returned to normal,
this is not so with regard to those who have
suffered the ravages of war and so it was
therein declared as a policy that as to them
the debt moratorium should be continued in
force (Section 1).
But we should not lose sight of the fact that
these obligations had been pending since
1945 as a result of the issuance of Executive
Orders Nos. 25 and 32 and at present their
enforcement is still inhibited because of the
enactment of Republic Act No. 342 and would
continue to be unenforceable during the eight-
year period granted to prewar debtors to
afford them an opportunity to rehabilitate
themselves, which in plain language means
that the creditors would have to observe a vigil
of at least twelve (12) years before they could
effect a liquidation of their investment dating
as far back as 1941. his period seems to us
unreasonable, if not oppressive. While the
purpose of Congress is plausible, and should
be commended, the relief accorded works
injustice to creditors who are practically left at
the mercy of the debtors. Their hope to effect
collection becomes extremely remote, more
so if the credits are unsecured. And the
injustice is more patent when, under the law,
the debtor is not even required to pay interest
during the operation of the relief, unlike similar
statutes in the United States.
xxx       xxx       xxx
In the face of the foregoing observations, and
consistent with what we believe to be as the
only course dictated by justice, fairness and
righteousness, we feel that the only way open
to us under the present circumstances is to
declare that the continued operation and
enforcement of Republic Act No. 342 at the
present time is unreasonable and
oppressive, and should not be prolonged a
minute longer, and, therefore, the same
should be declared null and void and
without effect. (emphasis supplied, citations
omitted)
2. Applicability of the equal protection clause.
In the realm of equal protection, the U.S. case
of Atlantic Coast Line R. Co. v. Ivey is illuminating.
32 
The Supreme Court of Florida ruled against the
continued application of statutes authorizing the
recovery of double damages plus attorney's fees
against railroad companies, for animals killed on
unfenced railroad right of way without proof of
negligence. Competitive motor carriers, though
creating greater hazards, were not subjected to
similar liability because they were not yet in
existence when the statutes were enacted. The Court
ruled that the statutes became invalid as denying
"equal protection of the law," in view of changed
conditions since their enactment.
In another U.S. case, Louisville & N.R. Co. v.
Faulkner, the Court of Appeals of Kentucky declared
33 
unconstitutional a provision of a statute which
imposed a duty upon a railroad company of proving
that it was free from negligence in the killing or injury
of cattle by its engine or cars. This, notwithstanding
that the constitutionality of the statute, enacted in
1893, had been previously sustained. Ruled the
Court:
The constitutionality of such legislation was
sustained because it applied to all similar
corporations and had for its object the safety
of persons on a train and the protection of
property…. Of course, there were no
automobiles in those days.
The subsequent inauguration and
development of transportation by motor
vehicles on the public highways by common
carriers of freight and passengers created
 even greater risks to the safety of occupants
of the vehicles and of danger of injury and
death of domestic animals. Yet, under the law
the operators of that mode of competitive
transportation are not subject to the same
extraordinary legal responsibility for killing
such animals on the public roads as are
railroad companies for killing them on their
private rights of way.  because of their effect in operation…. If a law
The Supreme Court, speaking through Justice
Brandeis in Nashville, C. & St. L. Ry. Co. v.
Walters, 294 U.S. 405, 55 S.Ct. 486, 488, 79
L.Ed. 949, stated, "A statute valid when
enacted may become invalid by change in
the conditions to which it is applied. The
police power is subject to the constitutional
limitation that it may not be exerted arbitrarily
or unreasonably." A number of prior opinions
of that court are cited in support of the
statement. The State of Florida for many
years had a statute, F.S.A. § 356.01 et seq.
imposing extraordinary and special duties
upon railroad companies, among which was
that a railroad company was liable for double
damages and an attorney's fee for killing
livestock by a train without the owner having
to prove any act of negligence on the part of
the carrier in the operation of its train. In
Atlantic Coast Line Railroad Co. v. Ivey, it was
held that the changed conditions brought
about by motor vehicle transportation
rendered the statute unconstitutional since if a
common carrier by motor vehicle had killed
the same animal, the owner would have been
required to prove negligence in the operation
of its equipment. Said the court, "This certainly
is not equal protection of the law." (emphasis
34 
supplied)
Echoes of these rulings resonate in our case
law, viz:
[C]ourts are not confined to the language of
the statute under challenge in determining
whether that statute has any discriminatory
effect. A statute nondiscriminatory on its
face may be grossly discriminatory in its
operation. Though the law itself be fair on its
face and impartial in appearance, yet, if it is
applied and administered by public authority
with an evil eye and 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
35 
supplied, citations omitted)
[W]e see no difference between a law
which denies equal protection and a law
which permits of such denial. A law may
appear to be fair on its face and impartial in
appearance, yet, if it permits of unjust and
illegal discrimination, it is within the
constitutional prohibition….. In other words,
statutes may be adjudged unconstitutional
has the effect of denying the equal protection
of the law it is unconstitutional. …. (emphasis
36 
supplied, citations omitted
3. Enactment of R.A. Nos. 7907 + 8282 + 8289 +
8291 + 8523 + 8763
+ 9302 = consequential unconstitutionality of
challenged proviso.
According to petitioner, the last proviso of Section
15(c), Article II of R.A. No. 7653 is also violative of the
equal protection clause because after it was enacted,
the charters of the GSIS, LBP, DBP and SSS were
also amended, but the personnel of the latter GFIs
were all exempted from the coverage of the
SSL. Thus, within the class of rank-and-file personnel
37 
of GFIs, the BSP rank-and-file are also discriminated
upon.
Indeed, we take judicial notice that after the new BSP
charter was enacted in 1993, Congress also
undertook the amendment of the charters of the
GSIS, LBP, DBP and SSS, and three other GFIs, from
1995 to 2004, viz:
1. R.A. No. 7907 (1995) for Land Bank of the
Philippines (LBP);
2. R.A. No. 8282 (1997) for Social Security
System (SSS);
3. R.A. No. 8289 (1997) for Small Business
Guarantee and Finance Corporation,
(SBGFC);
4. R.A. No. 8291 (1997) for Government
Service Insurance System (GSIS);
5. R.A. No. 8523 (1998) for Development
Bank of the Philippines (DBP);
6. R.A. No. 8763 (2000) for Home Guaranty
Corporation (HGC); and
38 
7. R.A. No. 9302 (2004) for Philippine Deposit
Insurance Corporation (PDIC).
It is noteworthy, as petitioner points out, that the
subsequent charters of the seven other GFIs
share this common proviso: a blanket exemption
of all their employees from the coverage of the SSL,
expressly or impliedly, as illustrated below:
1. LBP (R.A. No. 7907)
Section 10. Section 90 of [R.A. No. 3844] is
hereby amended to read as follows:
Section 90. Personnel. -
3. SBGFC (R.A. No. 8289)
xxx       xxx       xxx
All positions in the Bank shall be governed by
a compensation, position classification system
and qualification standards approved by the
Bank's Board of Directors based on a
comprehensive job analysis and audit of
actual duties and responsibilities. The
compensation plan shall be comparable with
the prevailing compensation plans in the
private sector and shall be subject to periodic
review by the Board no more than once every
two (2) years without prejudice to yearly merit
reviews or increases based on productivity
and profitability. The Bank shall therefore be
exempt from existing laws, rules and
regulations on compensation, position
classification and qualification
standards. It shall however endeavor to make
its system conform as closely as possible with
the principles under Republic Act No. 6758.
(emphasis supplied)
xxx       xxx       xxx
4. GSIS (R.A. No. 8291)
2. SSS (R.A. No. 8282)
Section 1. [Amending R.A. No. 1161, Section
3(c)]:  xxx       xxx       xxx
xxx       xxx       xxx
(c)The Commission, upon the
recommendation of the SSS President, shall
appoint an actuary and such other personnel
as may [be] deemed necessary; fix their
reasonable compensation, allowances and
other benefits; prescribe their duties and
establish such methods and procedures as
may be necessary to insure the efficient,
honest and economical administration of the
provisions and purposes of this Act: Provided,
however, That the personnel of the SSS
below the rank of Vice President shall be
appointed by the SSS President: Provided,
further, That the personnel appointed by the
SSS President, except those below the rank
of assistant manager, shall be subject to the
confirmation by the Commission; Provided
further, That the personnel of the SSS shall be
selected only from civil service eligibles and
be subject to civil service rules and
regulations: Provided, finally, That the SSS
shall be exempt from the provisions of
Republic Act No. 6758 and Republic Act
No. 7430. (emphasis supplied)
Section 8. [Amending R.A. No. 6977, Section
11]: 
xxx       xxx       xxx
The Small Business Guarantee and Finance
Corporation shall:
xxx       xxx       xxx
(e) notwithstanding the provisions of
Republic Act No. 6758, and Compensation
Circular No. 10, series of 1989 issued by the
Department of Budget and Management, the
Board of Directors of SBGFC shall have
the authority to extend to the employees
and personnel thereof the allowance and
fringe benefits similar to those extended to
and currently enjoyed by the employees
and personnel of other government
financial institutions. (emphases supplied)
Section 1. [Amending Section 43(d)]. 
Sec. 43. Powers and Functions of the Board
of Trustees. - The Board of Trustees shall
have the following powers and functions:
xxx       xxx       xxx
(d) upon the recommendation of the President
and General Manager, to approve the GSIS'
organizational and administrative structures
and staffing pattern, and to establish, fix,
review, revise and adjust the appropriate
compensation package for the officers and
employees of the GSIS with reasonable
allowances, incentives, bonuses, privileges
and other benefits as may be necessary or
 proper for the effective management,
operation and administration of the GSIS,
which shall be exempt from Republic Act
No. 6758, otherwise known as the Salary
Standardization Law and Republic Act No.
7430, otherwise known as the Attrition
Law. (emphasis supplied)
xxx       xxx       xxx
5. DBP (R.A. No. 8523)
Section 6. [Amending E.O. No. 81, Section
13]: 
Section 13. Other Officers and Employees. -
The Board of Directors shall provide for an
organization and staff of officers and
employees of the Bank and upon
recommendation of the President of the Bank,
fix their remunerations and other emoluments.
All positions in the Bank shall be governed by
the compensation, position classification
system and qualification standards approved
by the Board of Directors based on a
comprehensive job analysis of actual duties
and responsibilities. The compensation plan
shall be comparable with the prevailing
compensation plans in the private sector and
shall be subject to periodic review by the
Board of Directors once every two (2) years,
without prejudice to yearly merit or increases
based on the Bank's productivity and
profitability. The Bank shall, therefore, be
exempt from existing laws, rules, and
regulations on compensation, position
classification and qualification standards.
The Bank shall however, endeavor to make
its system conform as closely as possible
with the principles under Compensation
and Position Classification Act of 1989
(Republic Act No. 6758, as
amended). (emphasis supplied)
6. HGC (R.A. No. 8763)
Section 9. Powers, Functions and Duties of the Board
of Directors. - The Board shall have the following
powers, functions and duties:
xxx       xxx       xxx
(e) To create offices or positions necessary for
the efficient management, operation and
administration of the Corporation: Provided,
That all positions in the Home Guaranty
Corporation (HGC) shall be governed by a
compensation and position classification
system and qualifications standards approved
by the Corporation's Board of Directors based
on a comprehensive job analysis and audit of
actual duties and responsibilities: Provided,
further, That the compensation plan shall
be comparable with the prevailing
compensation plans in the private sector
and which shall be exempt from Republic
Act No. 6758, otherwise known as the
Salary Standardization Law, and from
other laws, rules and regulations on
salaries and compensations; and to
establish a Provident Fund and determine the
Corporation's and the employee's
contributions to the Fund; (emphasis supplied)
xxx       xxx       xxx
7. PDIC (R.A. No. 9302)
Section 2. Section 2 of [Republic Act No. 3591, as
amended] is hereby further amended to read:
xxx       xxx       xxx
3.
xxx       xxx       xxx
A compensation structure, based on job
evaluation studies and wage surveys and
subject to the Board's approval, shall be
instituted as an integral component of the
Corporation's human resource development
program: Provided, That all positions in the
Corporation shall be governed by a
compensation, position classification system
and qualification standards approved by the
Board based on a comprehensive job analysis
and audit of actual duties and
responsibilities. The compensation plan
shall be comparable with the prevailing
compensation plans of other government
financial institutions and shall be subject to
review by the Board no more than once every
two (2) years without prejudice to yearly merit
reviews or increases based on productivity
and profitability. The Corporation shall
therefore be exempt from existing laws,
rules and regulations on compensation,
position classification and qualification
standards. It shall however endeavor to make
its system conform as closely as possible with
the principles under Republic Act No. 6758, as
amended. (emphases supplied)
Thus, eleven years after the amendment of the
BSP charter, the rank-and-file of seven other GFIs
were granted the exemption that was specifically
denied to the rank-and-file of the BSP. And as if to
add insult to petitioner's injury, even the Securities
and Exchange Commission (SEC) was granted the
same blanket exemption from the SSL in 2000! 39 
The prior view on the constitutionality of R.A. No.
7653 was confined to an evaluation of its
classification between the rank-and-file and the
officers of the BSP, found reasonable because there
were substantial distinctions that made real
differences between the two classes.
The above-mentioned subsequent enactments,
however, constitute significant changes in
circumstancethat considerably alter the
reasonability of the continued operation of the
last proviso of Section 15(c), Article II of Republic
Act No. 7653, thereby exposing the proviso to
more serious scrutiny. This time, the scrutiny relates
to the constitutionality of the classification - albeit
made indirectly as a consequence of the passage of
eight other laws - between the rank-and-file of the
BSP and the seven other GFIs. The classification
must not only be reasonable, but must also apply
equally to all members of the
class. The proviso may be fair on its face and
impartial in appearance but it cannot be grossly
discriminatory in its operation, so as practically to
make unjust distinctions between persons who are
without differences.40  includes the prohibition against enacting laws that
Stated differently, the second level of inquiry deals
with the following questions: Given that Congress
chose to exempt other GFIs (aside the BSP) from the
coverage of the SSL, can the exclusion of the rank-
and-file employees of the BSP stand constitutional
scrutiny in the light of the fact that Congress did not
exclude the rank-and-file employees of the other
GFIs? Is Congress' power to classify so unbridled as
to sanction unequal and discriminatory treatment,
simply because the inequity manifested itself, not
instantly through a single overt act, but gradually and
progressively, through seven separate acts of
Congress? Is the right to equal protection of the law
bounded in time and space that: (a) the right can only
be invoked against a classification made directly and
deliberately, as opposed to a discrimination that
arises indirectly, or as a consequence of several other
acts; and (b) is the legal analysis confined to
determining the validity within the parameters of the
statute or ordinance (where the inclusion or exclusion
is articulated), thereby proscribing any evaluation vis-
à-vis the grouping, or the lack thereof, among several
similar enactments made over a period of time?
In this second level of scrutiny, the inequality of
treatment cannot be justified on the mere assertion
that each exemption (granted to the seven other
GFIs) rests "on a policy determination by the
legislature." All legislative enactments necessarily
rest on a policy determination - even those that
have been declared to contravene the Constitution.
Verily, if this could serve as a magic wand to sustain
the validity of a statute, then no due process and
equal protection challenges would ever prosper.
There is nothing inherently sacrosanct in a policy
determination made by Congress or by the Executive;
it cannot run riot and overrun the ramparts of
protection of the Constitution.
In fine, the "policy determination" argument may
support the inequality of treatment between the rank-
and-file and the officers of the BSP, but it cannot
justify the inequality of treatment between BSP rank-
and-file and other GFIs' who are similarly situated. It
fails to appreciate that what is at issue in the second
level of scrutiny is not the declared policy of each
law per se, but the oppressive results of Congress'
inconsistent and unequal policytowards the BSP
rank-and-file and those of the seven other GFIs. At
bottom, the second challenge to the constitutionality
of Section 15(c), Article II of Republic Act No. 7653 is
premised precisely on the irrational
discriminatory policy adopted by Congress in its
treatment of persons similarly situated. In the field
of equal protection, the guarantee that "no person
shall be … denied the equal protection of the laws"
allow invidious discrimination, directly or
indirectly. If a law has the effect of denying the equal
protection of the law, or permits such denial, it is
unconstitutional.41 
It is against this standard that the disparate treatment
of the BSP rank-and-file from the other GFIs cannot
stand judicial scrutiny. For as regards the exemption
from the coverage of the SSL, there exist no
substantial distinctions so as to differentiate, the BSP
rank-and-file from the other rank-and-file of the seven
GFIs. On the contrary, our legal history shows that
GFIs have long been recognized as comprising
one distinct class, separate from other
governmental entities.
Before the SSL, Presidential Decree (P.D.) No. 985
(1976) declared it as a State policy (1) to provide
equal pay for substantially equal work, and (2) to base
differences in pay upon substantive differences in
duties and responsibilities, and qualification
requirements of the positions. P.D. No. 985 was
passed to address disparities in pay among similar or
comparable positions which had given rise to
dissension among government employees. But even
then, GFIs and government-owned and/or
controlled corporations (GOCCs) were already
identified as a distinct class among government
employees. Thus, Section 2 also provided, "[t]hat
notwithstanding a standardized salary system
established for all employees, additional financial
incentives may be established by government
corporation and financial institutions for their
employees to be supported fully from their corporate
funds and for such technical positions as may be
approved by the President in critical government
agencies." 42 
The same favored treatment is made for the GFIs and
the GOCCs under the SSL. Section 3(b) provides that
one of the principles governing the Compensation and
Position Classification System of the Government is
that: "[b]asic compensation for all personnel in the
government and government-owned or controlled
corporations and financial institutions shall generally
be comparable with those in the private sector doing
comparable work, and must be in accordance with
prevailing laws on minimum wages."
Thus, the BSP and all other GFIs and GOCCs were
under the unified Compensation and Position
Classification System of the SSL, but rates of pay
43 
under the SSL were determined on the basis of,
among others, prevailing rates in the private sector for
comparable work. Notably, the Compensation and
Position Classification System was to be governed by
the following principles: (a) just and equitable wages,
with the ratio of compensation between pay
distinctions maintained at equitable levels; and (b)
44  authorized to determine and institute its own
basic compensation generally comparable with the
private sector, in accordance with prevailing laws on
minimum wages. Also, the Department of Budget and
45  or position - all employees of the GFI from the
Management was directed to use, as guide for
preparing the Index of Occupational Services, the
Benchmark Position Schedule, and the following
factors:
46  justify the grant or withdrawal of exemption from the
(1) the education and experience required to
perform the duties and responsibilities of the
positions;
(2) the nature and complexity of the work to
be performed;
(3) the kind of supervision received;
(4) mental and/or physical strain required in
the completion of the work;
(5) nature and extent of internal and external
relationships;
(6) kind of supervision exercised;
(7) decision-making responsibility;
(8) responsibility for accuracy of records and
reports;
(9) accountability for funds, properties and
equipment; and
(10) hardship, hazard and personal risk
involved in the job.
The Benchmark Position Schedule enumerates the
position titles that fall within Salary Grades 1 to 20.
Clearly, under R.A. No. 6758, the rank-and-file of all
GFIs were similarly situated in all aspects pertaining
to compensation and position classification, in
consonance with Section 5, Article IX-B of the 1997
Constitution.47 
Then came the enactment of the amended charter
of the BSP, implicitly exempting the Monetary Board
from the SSL by giving it express authority to
determine and institute its own compensation and
wage structure. However, employees whose positions
fall under SG 19 and below were specifically limited to
the rates prescribed under the SSL.
Subsequent amendments to the charters of other
GFIs followed. Significantly, each government
financial institution (GFI) was not only expressly
compensation and wage structure, but also explicitly
exempted - without distinction as to salary grade
SSL.
It has been proffered that legislative deliberations
SSL, based on the perceived need "to fulfill the
mandate of the institution concerned considering,
among others, that: (1) the GOCC or GFI is
essentially proprietary in character; (2) the GOCC or
GFI is in direct competition with
their [sic] counterparts in the private sector, not only
in terms of the provisions of goods or services, but
also in terms of hiring and retaining competent
personnel; and (3) the GOCC or GFI are or
were [sic] experiencing difficulties filling up plantilla
positions with competent personnel and/or retaining
these personnel. The need for the scope of
exemption necessarily varies with the particular
circumstances of each institution, and the
corresponding variance in the benefits received by
the employees is merely incidental."
The fragility of this argument is manifest. First, the
BSP is the central monetary authority, and 48 
the banker of the government and all its political
subdivisions. It has the sole power and authority to
49 
issue currency; provide policy directions in the areas
50 
of money, banking, and credit; and supervise banks
and regulate finance companies and non-bank
financial institutions performing quasi-banking
functions, including the exempted GFIs. Hence, the
51 
argument that the rank-and-file employees of the
seven GFIs were exempted because of the
importance of their institution's mandate cannot stand
any more than an empty sack can stand.
Second, it is certainly misleading to say that "the need
for the scope of exemption necessarily varies with the
particular circumstances of each institution." Nowhere
in the deliberations is there a cogent basis for the
exclusion of the BSP rank-and-file from the exemption
which was granted to the rank-and-file of the other
GFIs and the SEC. As point in fact, the BSP and the
seven GFIs are similarly situated in so far as
Congress deemed it necessary for these institutions
to be exempted from the SSL. True, the SSL-
exemption of the BSP and the seven GFIs was
granted in the amended charters of each GFI,
enacted separately and over a period of time. But it
bears emphasis that, while each GFI has a mandate
different and distinct from that of another, the
deliberations show that the raison d'être of the SSL-
exemption was inextricably linked to and for the most
part based on factors common to the eight GFIs, i.e.,
(1) the pivotal role they play in the economy; (2) the
necessity of hiring and retaining qualified and effective
personnel to carry out the GFI's mandate; and (3) the
recognition that the compensation package of these
GFIs is not competitive, and fall substantially below
industry standards. Considering further that (a) the
BSP was the first GFI granted SSL exemption; and (b)
the subsequent exemptions of other GFIs did not
distinguish between the officers and the rank-and-file;
it is patent that the classification made between the
BSP rank-and-file and those of the other seven
GFIs was inadvertent, and NOT intended, i.e., it was
not based on any substantial distinction vis-à-vis the
particular circumstances of each GFI. Moreover, the
exemption granted to two GFIs makes express
reference to allowance and fringe benefits similar to
those extended to and currently enjoyed by the
employees and personnel of other
GFIs, underscoring that GFIs are a particular class
52 
within the realm of government entities.
It is precisely this unpremeditated discrepancy in
treatment of the rank-and-file of the BSP - made
manifest and glaring with each and every
consequential grant of blanket exemption from the
SSL to the other GFIs - that cannot be rationalized or
justified. Even more so, when the SEC - which is not a
GFI - was given leave to have a compensation plan
that "shall be comparable with the prevailing
compensation plan in the [BSP] and other
[GFIs]," then granted a blanket exemption from the
53  during their service careers. Uprooted from
SSL, and its rank-and-file endowed a more preferred
treatment than the rank-and-file of the BSP.
The violation to the equal protection clause becomes
even more pronounced when we are faced with this
undeniable truth: that if Congress had enacted a law
for the sole purpose of exempting the eight GFIs from
the coverage of the SSL, the exclusion of the BSP
rank-and-file employees would have been devoid of
any substantial or material basis. It bears no moment,
therefore, that the unlawful discrimination was not a
direct result arising from one law. "Nemo potest
facere per alium quod non potest facere per
directum." No one is allowed to do indirectly what he
is prohibited to do directly.
It has also been proffered that "similarities alone are
not sufficient to support the conclusion that rank-and-
file employees of the BSP may be lumped together
with similar employees of the other GOCCs for
purposes of compensation, position classification and
qualification standards. The fact that certain persons
have some attributes in common does not
automatically make them members of the same class
with respect to a legislative classification." Cited is the
ruling in Johnson v. Robinson: "this finding of
54 
similarity ignores that a common characteristic shared
by beneficiaries and nonbeneficiaries alike, is not
sufficient to invalidate a statute when other
characteristics peculiar to only one group rationally
explain the statute's different treatment of the two
groups."
The reference to Johnson is inapropos. In Johnson,
the US Court sustained the validity of the
classification as there were quantitative and
qualitative distinctions, expressly recognized by
Congress, which formed a rational basis for the
classification limiting educational benefits to military
service veterans as a means of helping them readjust
to civilian life. The Court listed the peculiar
characteristics as follows:
First, the disruption caused by military service
is quantitatively greater than that caused by
alternative civilian service. A conscientious
objector performing alternative service is
obligated to work for two years. Service in the
Armed Forces, on the other hand, involves a
six-year commitment…
xxx       xxx       xxx
Second, the disruptions suffered by military
veterans and alternative service performers
are qualitatively different. Military veterans
suffer a far greater loss of personal freedom
 civilian life, the military veteran becomes part
of the military establishment, subject to its
discipline and potentially hazardous duty.
Congress was acutely aware of the peculiar
disabilities caused by military service, in
consequence of which military servicemen
have a special need for readjustment
benefits… (citations omitted)
55 
In the case at bar, it is precisely the fact that as
regards the exemption from the SSL, there are no
characteristics peculiar only to the seven GFIs or
their rank-and-file so as to justify the exemption
which BSP rank-and-file employees were
denied (not to mention the anomaly of the SEC
getting one). The distinction made by the law is not
only superficial, but also arbitrary. It is not based on
56  Pensions, once the State has chosen to confer
substantial distinctions that make real differences
between the BSP rank-and-file and the seven other
GFIs.  group is refused to another, even though the State is
Moreover, the issue in this case is not - as the
dissenting opinion of Mme. Justice Carpio-Morales
would put it - whether "being an employee of a GOCC
or GFI is reasonable and sufficient basis for
exemption" from R.A. No. 6758. It is Congress itself
that distinguished the GFIs from other
government agencies, not once but eight times,
through the enactment of R.A. Nos. 7653, 7907, 8282,
8289, 8291, 8523, 8763, and 9302. These laws may
have created a "preferred sub-class within
government employees," but the present challenge is
not directed at the wisdom of these laws. Rather, it is
a legal conundrum involving the exercise of legislative
power, the validity of which must be measured not
only by looking at the specific exercise in and by
itself (R.A. No. 7653), but also as to the legal
effects brought about by seven separate exercises -
albeit indirectly and without intent.
Thus, even if petitioner had not alleged "a comparable
change in the factual milieu as regards the
compensation, position classification and qualification
standards of the employees of the BSP (whether of
the executive level or of the rank-and-file) since the
enactment of the new Central Bank Act" is of no
moment. In GSIS v. Montesclaros, this Court
57 
resolved the issue of constitutionality notwithstanding
that claimant had manifested that she was no longer
interested in pursuing the case, and even when the
constitutionality of the said provision was not squarely
raised as an issue, because the issue involved not
only the claimant but also others similarly situated and
whose claims GSIS would also deny based on the
challenged proviso. The Court held that social justice
and public interest demanded the resolution of the
constitutionality of the proviso. And so it is with the
challenged proviso in the case at bar.
It bears stressing that the exemption from the SSL is
a "privilege" fully within the legislative prerogative to
give or deny. However, its subsequent grant to the
rank-and-file of the seven other GFIs and continued
denial to the BSP rank-and-file employees breached
the latter's right to equal protection. In other words,
while the granting of a privilege per se is a matter of
policy exclusively within the domain and prerogative
of Congress, the validity or legality of the exercise of
this prerogative is subject to judicial review. So when
58 
the distinction made is superficial, and not based on
substantial distinctions that make real differences
between those included and excluded, it becomes a
matter of arbitrariness that this Court has the duty and
the power to correct. As held in the United Kingdom
59 
case of Hooper v. Secretary of State for Work and
60 
benefits, "discrimination" contrary to law may occur
where favorable treatment already afforded to one
under no obligation to provide that favorable
treatment. 61 
The disparity of treatment between BSP rank-and-file
and the rank-and-file of the other seven GFIs
definitely bears the unmistakable badge of invidious
discrimination - no one can, with candor and fairness,
deny the discriminatory character of the subsequent
blanket and total exemption of the seven other GFIs
from the SSL when such was withheld from the
BSP. Alikes are being treated as unalikes without
any rational basis.
Again, it must be emphasized that the equal
protection clause does not demand absolute
equality but it requires that all persons shall be
treated alike, under like circumstances and
conditions both as to privileges conferred and
liabilities enforced. Favoritism and undue preference
cannot be allowed. For the principle is that equal
protection and security shall be given to every person
under circumstances which, if not identical, are
analogous. If law be looked upon in terms of burden
or charges, those that fall within a class should be
treated in the same fashion; whatever restrictions cast
on some in the group is equally binding on the rest. 62 
In light of the lack of real and substantial distinctions
that would justify the unequal treatment between the
rank-and-file of BSP from the seven other GFIs, it is
clear that the enactment of the seven subsequent
charters has rendered the continued application of the
challenged proviso anathema to the equal protection
of the law, and the same should be declared as an
outlaw.
IV.
 Equal Protection Under International Lens
In our jurisdiction, the standard and analysis of
equal protection challenges in the main have followed
the "rational basis" test, coupled with a deferential
attitude to legislative classifications and a reluctance
63  as to ends. Legislation qualifying for strict
to invalidate a law unless there is a showing of a clear
and unequivocal breach of the Constitution.  64  classification and statutory purpose than the
A. Equal Protection in the United States
In contrast, jurisprudence in the U.S. has gone
beyond the static "rational basis" test. Professor
Gunther highlights the development in equal
protection jurisprudential analysis, to wit: 
65 
"old" equal protection, a "new" equal
protection, connoting strict scrutiny, arose….
The intensive review associated with the new
equal protection imposed two demands - a
demand not only as to means but also one
scrutiny required a far closer fit between
rough and ready flexibility traditionally
tolerated by the old equal protection: means
had to be shown "necessary" to achieve
statutory ends, not merely "reasonably
related" ones. Moreover, equal protection
became a source of ends scrutiny as well:
legislation in the areas of the new equal

protection had to be justified by "compelling"

state interests, not merely the wide spectrum
Traditionally, equal protection supported only of "legitimate" state ends.
minimal judicial intervention in most contexts.
Ordinarily, the command of equal protection
The Warren Court identified the areas
was only that government must not impose
appropriate for strict scrutiny by searching
differences in treatment "except upon some
for two characteristics: the presence of a
reasonable differentiation fairly related to the
"suspect" classification; or an impact on
object of regulation." The old variety of equal
"fundamental" rights or interests. In the
protection scrutiny focused solely on
category of "suspect classifications," the
the means used by the legislature: it insisted
Warren Court's major contribution was to
merely that the classification in the
intensify the strict scrutiny in the traditionally
statute reasonably relates to the legislative
interventionist area of racial classifications.
purpose. Unlike substantive due process,
But other cases also suggested that there
equal protection scrutiny was not typically
might be more other suspect categories as
concerned with identifying "fundamental
well: illegitimacy and wealth for example. But
values" and restraining legislative ends. And
it was the 'fundamental interests" ingredient of
usually the rational
the new equal protection that proved
classification requirement was readily
particularly dynamic, open-ended, and
satisfied: the courts did not demand a tight fit
amorphous….. [Other fundamental interests
between classification and purpose; perfect
included voting, criminal appeals, and the right
congruence between means and ends was
of interstate travel ….]
not required.
xxx       xxx       xxx
xxx       xxx       xxx
The Burger Court and Equal Protection.
[From marginal intervention to major
cutting edge: The Warren Court's "new equal
protection" and the two-tier approach.] The Burger Court was reluctant to expand
the scope of the new equal protection,
although its best established ingredient
From its traditional modest role, equal
retains vitality. There was also mounting
protection burgeoned into a major
discontent with the rigid two-tier formulations
intervention tool during the Warren
of the Warren Court's equal protection
era, especially in the 1960s. The Warren
doctrine. It was prepared to use the clause as
Court did not abandon the deferential
an interventionist tool without resorting to the
ingredients of the old equal protection: in most
strict language of the new equal protection….
areas of economic and social legislation, the
[Among the fundamental interests identified
demands imposed by equal protection
during this time were voting and access to the
remained as minimal as ever…But the Court
ballot, while "suspect" classifications included
launched an equal protection revolution by
sex, alienage and illegitimacy.]
finding large new areas for strict rather than
deferential scrutiny. A sharply
differentiated two-tier approach evolved by xxx       xxx       xxx
the late 1960s: in addition to the deferential
Even while the two-tier scheme has often
been adhered to in form, there has also been
an increasingly noticeable resistance to the
sharp difference between deferential "old" and
interventionist "new" equal protection. A
number of justices sought formulations that
would blur the sharp distinctions of the two-
tiered approach or that would narrow the gap
between strict scrutiny and deferential review.
The most elaborate attack came from Justice
Marshall, whose frequently stated position
was developed most elaborately in his dissent
in the Rodriguez case:  66 
The Court apparently seeks to establish [that]
equal protection cases fall into one of two neat
categories which dictate the appropriate
standard of review - strict scrutiny or mere
rationality. But this (sic) Court's [decisions]
defy such easy categorization. A principled
reading of what this Court has done reveals
that it has applied a spectrum of standards in
reviewing discrimination allegedly violative of
the equal protection clause. This spectrum
clearly comprehends variations in the degree
of care with which Court will scrutinize
particular classification, depending, I believe,
on the constitutional and societal importance
of the interests adversely affected and the
recognized invidiousness of the basis upon
which the particular classification is drawn.
Justice Marshall's "sliding
scale" approach describes many of the
modern decisions, although it is a formulation
that the majority refused to embrace. But the
Burger Court's results indicate at least two
significant changes in equal protection
law: First, invocation of the "old" equal
protection formula no longer signals, as it did
with the Warren Court, an extreme deference
to legislative classifications and a virtually
automatic validation of challenged statutes.
Instead, several cases, even while voicing the
minimal "rationality" "hands-off" standards of
the old equal protection, proceed to find the
statute unconstitutional. Second, in some
areas the modern Court has put forth
standards for equal protection review that,
while clearly more intensive than the
deference of the "old" equal protection, are
less demanding than the strictness of the
"new" equal protection. Sex discrimination is
the best established example of
an "intermediate" level of review. Thus, in
one case, the Court said that "classifications
by gender must
serve important governmental objectives and
must be substantially related to achievement
of those objectives." That standard is
"intermediate" with respect to both ends and
means: where ends must be "compelling" to
survive strict scrutiny and merely "legitimate"
under the "old" mode, "important" objectives
are required here; and where means must be
"necessary" under the "new" equal protection,
and merely "rationally related" under the "old"
equal protection, they must be "substantially
related" to survive the "intermediate" level of
review. (emphasis supplied, citations omitted)
B. Equal Protection in Europe
The United Kingdom and other members of the
European Community have also gone forward in
discriminatory legislation and jurisprudence. Within
the United Kingdom domestic law, the most extensive
list of protected grounds can be found in Article 14 of
the European Convention on Human
Rights (ECHR). It prohibits discrimination on grounds
such as "sex, race, colour, language, religion, political
or other opinion, national or social origin, association
with a national minority, property, birth or other
status." This list is illustrative and not
exhaustive. Discrimination on the basis of race,
sex and religion is regarded as grounds that
require strict scrutiny. A further indication that
certain forms of discrimination are regarded
as particularly suspect under the Covenant can be
gleaned from Article 4, which, while allowing states to
derogate from certain Covenant articles in times of
national emergency, prohibits derogation by
measures that discriminate solely on the grounds of
"race, colour, language, religion or social origin." 67 
Moreover, the European Court of Human
Rights has developed a test of justification which
varies with the ground of discrimination. In
the Belgian Linguistics case the European Court
68 
set the standard of justification at a low level:
discrimination would contravene the Convention only
if it had no legitimate aim, or there was no reasonable
relationship of proportionality between the means
employed and the aim sought to be realised. But69 
over the years, the European Court has developed
a hierarchy of grounds covered by Article 14 of
the ECHR, a much higher level of justification
being required in respect of those regarded as
"suspect" (sex, race, nationality, illegitimacy, or
sexual orientation) than of others. Thus,
in Abdulaziz,  the European Court declared that:
70 
. . . [t]he advancement of the equality of the
sexes is today a major goal in the member
States of the Council of Europe. This means
that very weighty reasons would have to be
advanced before a difference of treatment on
 the ground of sex could be regarded as requiring State action. Article 26 of the ICCPR
compatible with the Convention. requires "guarantee[s]" of "equal and effective
protection against discrimination" while Articles 1 and
And in Gaygusuz v. Austria, the European
71  14 of the American and European Conventions oblige
Court held that "very weighty reasons would have States Parties "to ensure ... the full and free exercise
to be put forward before the Court could regard a of [the rights guaranteed] ... without any
difference of treatment based exclusively on the discrimination" and to "secure without discrimination"
ground of nationality as compatible with the the enjoyment of the rights guaranteed. These 82 

Convention." The European Court will then permit

72  provisions impose a measure of positive
States a very much narrower margin of obligation on States Parties to take steps to
appreciation in relation to discrimination on grounds eradicate discrimination.
of sex, race, etc., in the application of the Convention
rights than it will in relation to distinctions drawn by In the employment field, basic detailed minimum
states between, for example, large and small land- standards ensuring equality and prevention of
owners.  73 
discrimination, are laid down in the ICESCR and in a 83 

very large number of Conventions administered by the

C. Equality under International Law International Labour Organisation, a United Nations
body.  Additionally, many of the other international
84 

The principle of equality has long been recognized and regional human rights instruments have specific
under international law. Article 1 of the Universal provisions relating to employment. 85 

Declaration of Human Rights proclaims that all

human beings are born free and equal in dignity
and rights. Non-discrimination, together with equality
before the law and equal protection of the law without
any discrimination, constitutes basic principles in the
The United Nations Human Rights Committee has
also gone beyond the earlier tendency to view the
prohibition against discrimination (Article 26) as
confined to the ICCPR rights. In Broeks and Zwaan-
86  87 

protection of human rights.  74  de Vries, the issue before the Committee was
88 

whether discriminatory provisions in the Dutch

Most, if not all, international human rights Unemployment Benefits Act (WWV) fell within the
instruments include some prohibition on scope of Article 26. The Dutch government submitted
discrimination and/or provisions about equality. The75  that discrimination in social security benefit provision
general international provisions pertinent to was not within the scope of Article 26, as the right was
discrimination and/or equality are the International contained in the ICESCR and not the ICCPR. They
Covenant on Civil and Political Rights (ICCPR); the 76  accepted that Article 26 could go beyond the rights
International Covenant on Economic, Social and contained in the Covenant to other civil and political
Cultural Rights (ICESCR); the International rights, such as discrimination in the field of taxation,
Convention on the Elimination of all Forms of Racial but contended that Article 26 did not extend to the
Discrimination (CERD); the Convention on the
77  social, economic, and cultural rights contained in
Elimination of all Forms of Discrimination against ICESCR. The Committee rejected this argument. In its
Women (CEDAW); and the Convention on the Rights view, Article 26 applied to rights beyond the Covenant
of the Child (CRC). including the rights in other international treaties such
as the right to social security found in ICESCR:
In the broader international context, equality is also
enshrined in regional instruments such as the Although Article 26 requires that legislation
American Convention on Human Rights; the African
78  should prohibit discrimination, it does not of
Charter on Human and People's Rights; the 79  itself contain any obligation with respect to the
European Convention on Human Rights; the 80  matters that may be provided for by
European Social Charter of 1961 and revised Social legislation. Thus it does not, for example,
Charter of 1996; and the European Union Charter of require any state to enact legislation to
Rights (of particular importance to European states). provide for social security. However, when
Even the Council of the League of Arab States has such legislation is adopted in the exercise of a
adopted the Arab Charter on Human Rights in 1994, State's sovereign power, then such legislation
although it has yet to be ratified by the Member States must comply with Article 26 of the Covenant. 89 

of the League. 81 

Breaches of the right to equal protection occur directly

The equality provisions in these instruments do or indirectly. A classification may be struck down if it
not merely function as traditional "first has the purpose or effect of violating the right to
generation" rights, commonly viewed as equal protection. International law recognizes
concerned only with constraining rather than that discrimination may occur indirectly, as the
Human Rights Committee took into account the
90 
definitions of discrimination adopted by CERD and
CEDAW in declaring that:
. . . "discrimination" as used in the [ICCPR]
should be understood to imply any distinction,
exclusion, restriction or preference which
is based on any ground such as race,
colour, sex, language, religion, political or
other opinion, national or social origin,
property, birth or other status, and which has
the purpose or effect of nullifying or
impairing the recognition, enjoyment or
exercise by all persons, on an equal footing,
of all rights and freedoms.  (emphasis
91 
supplied)
Thus, the two-tier analysis made in the case at bar
of the challenged provision, and its conclusion of
unconstitutionality by subsequent operation, are
in cadence and in consonance with the
progressive trend of other jurisdictions and in
international law. There should be no hesitation in
using the equal protection clause as a major cutting
edge to eliminate every conceivable irrational
discrimination in our society. Indeed, the social justice
imperatives in the Constitution, coupled with the
special status and protection afforded to labor, compel
this approach.92 
Apropos the special protection afforded to labor under
our Constitution and international law, we held in
International School Alliance of Educators v.
Quisumbing:  93 
That public policy abhors inequality and
discrimination is beyond contention. Our
Constitution and laws reflect the policy against
these evils. The Constitution in the Article on
Social Justice and Human Rights exhorts
Congress to "give highest priority to the
enactment of measures that protect and
enhance the right of all people to human
dignity, reduce social, economic, and political
inequalities." The very broad Article 19 of the
Civil Code requires every person, "in the
exercise of his rights and in the performance
of his duties, [to] act with justice, give
everyone his due, and observe honesty and
good faith."
International law, which springs from general
principles of law, likewise proscribes
discrimination. General principles of law
include principles of equity, i.e., the general
principles of fairness and justice, based on the
test of what is reasonable. The Universal
Declaration of Human Rights, the International
Covenant on Economic, Social, and Cultural
Rights, the International Convention on the
Elimination of All Forms of Racial
Discrimination, the Convention against
Discrimination in Education, the Convention
(No. 111) Concerning Discrimination in
Respect of Employment and Occupation - all
embody the general principle against
discrimination, the very antithesis of fairness
and justice. The Philippines, through its
Constitution, has incorporated this principle as
part of its national laws.
In the workplace, where the relations between
capital and labor are often skewed in favor of
capital, inequality and discrimination by the
employer are all the more reprehensible.
The Constitution specifically provides that
labor is entitled to "humane conditions of
work." These conditions are not restricted to
the physical workplace - the factory, the office
or the field - but include as well the manner by
which employers treat their employees.
The Constitution also directs the State to
promote "equality of employment opportunities
for all." Similarly, the Labor Code provides that
the State shall "ensure equal work
opportunities regardless of sex, race or
creed." It would be an affront to both the spirit
and letter of these provisions if the State, in
spite of its primordial obligation to promote
and ensure equal employment opportunities,
closes its eyes to unequal and discriminatory
terms and conditions of employment.
xxx       xxx       xxx
Notably, the International Covenant on
Economic, Social, and Cultural Rights, in
Article 7 thereof, provides:
The States Parties to the present Covenant
recognize the right of everyone to the
enjoyment of just and [favorable] conditions of
work, which ensure, in particular:
a. Remuneration which provides all
workers, as a minimum, with:
i. Fair wages and equal
remuneration for work of equal
value without distinction of any
kind, in particular women
being guaranteed conditions of
work not inferior to those
enjoyed by men, with equal
 pay for equal work;  [I]n resolving constitutional disputes, [this Court]
xxx       xxx       xxx
The foregoing provisions impregnably
institutionalize in this jurisdiction the long
honored legal truism of "equal pay for equal
work." Persons who work with substantially
equal qualifications, skill, effort and
responsibility, under similar conditions, should
be paid similar salaries. (citations omitted)
Congress retains its wide discretion in providing for a
valid classification, and its policies should be
accorded recognition and respect by the courts of
justice except when they run afoul of the
Constitution. The deference stops where the
94  in Philippine society. The command to
classification violates a fundamental right, or
prejudices persons accorded special protection
by the Constitution. When these violations arise, this
Court must discharge its primary role as the vanguard
of constitutional guaranties, and require a stricter
and more exacting adherence to constitutional
limitations. Rational basis should not suffice.
Admittedly, the view that prejudice to persons
accorded special protection by the Constitution
requires a stricter judicial scrutiny finds no support in
American or English jurisprudence. Nevertheless,
these foreign decisions and authorities are not per
se controlling in this jurisdiction. At best, they are
persuasive and have been used to support many of
our decisions. We should not place undue and
95  the working class on the humane justification that
fawning reliance upon them and regard them as
indispensable mental crutches without which we
cannot come to our own decisions through the
employment of our own endowments. We live in a
different ambience and must decide our own
problems in the light of our own interests and needs,
and of our qualities and even idiosyncrasies as a
people, and always with our own concept of law and
justice. Our laws must be construed in accordance
96  least be approximated.
with the intention of our own lawmakers and such
intent may be deduced from the language of each law
and the context of other local legislation related
thereto. More importantly, they must be construed to
serve our own public interest which is the be-all and
the end-all of all our laws. And it need not be stressed
that our public interest is distinct and different from
others.97 
In the 2003 case of Francisco v. House of
Representatives, this Court has stated that:
"[A]merican jurisprudence and authorities, much less
the American Constitution, are of dubious application
for these are no longer controlling within our
jurisdiction and have only limited persuasive merit
insofar as Philippine constitutional law is concerned....
should not be beguiled by foreign jurisprudence some
of which are hardly applicable because they have
been dictated by different constitutional settings and
needs." Indeed, although the Philippine Constitution
98 
can trace its origins to that of the United States, their
paths of development have long since diverged.  99 
Further, the quest for a better and more "equal" world
calls for the use of equal protection as a tool of
effective judicial intervention.
Equality is one ideal which cries out for bold
attention and action in the Constitution. The
Preamble proclaims "equality" as an ideal
precisely in protest against crushing inequities
promote social justice in Article II, Section 10,
in "all phases of national development,"
further explicitated in Article XIII, are clear
commands to the State to take affirmative
action in the direction of greater equality.…
[T]here is thus in the Philippine Constitution
no lack of doctrinal support for a more
vigorous state effort towards achieving a
reasonable measure of equality. 100 
Our present Constitution has gone further in
guaranteeing vital social and economic rights to
marginalized groups of society, including
labor. Under the policy of social justice, the law
101 
bends over backward to accommodate the interests of
those with less privilege in life should have more in
law. And the obligation to afford protection to labor is
102 
incumbent not only on the legislative and executive
branches but also on the judiciary to translate this
pledge into a living reality. Social justice calls for the
103 
humanization of laws and the equalization of social
and economic forces by the State so that justice in its
rational and objectively secular conception may at
104 
V.
A Final Word
Finally, concerns have been raised as to the propriety
of a ruling voiding the challenged provision. It has
been proffered that the remedy of petitioner is not with
this Court, but with Congress, which alone has the
power to erase any inequity perpetrated by R.A. No.
7653. Indeed, a bill proposing the exemption of the
BSP rank-and-file from the SSL has supposedly been
filed.
Under most circumstances, the Court will exercise
judicial restraint in deciding questions of
constitutionality, recognizing the broad discretion
given to Congress in exercising its legislative power.
Judicial scrutiny would be based on the "rational
basis" test, and the legislative discretion would be
given deferential treatment. 105 
But if the challenge to the statute is premised on
the denial of a fundamental right, or the
perpetuation of prejudice against persons favored
by the Constitution with special protection,
judicial scrutiny ought to be more strict. A weak
and watered down view would call for the abdication
of this Court's solemn duty to strike down any law
repugnant to the Constitution and the rights it
enshrines. This is true whether the actor committing
the unconstitutional act is a private person or the
government itself or one of its instrumentalities.
Oppressive acts will be struck down regardless of the
character or nature of the actor.  106 
Accordingly, when the grant of power is
qualified, conditional or subject to limitations,
the issue on whether or not the prescribed
qualifications or conditions have been met, or
the limitations respected, is justiciable or non-
political, the crux of the problem being one of
legality or validity of the contested act, not its
wisdom. Otherwise, said qualifications,
conditions or limitations - particularly those
prescribed or imposed by the Constitution -
would be set at naught. What is more, the
judicial inquiry into such issue and the
settlement thereof are the main functions of
courts of justice under the Presidential form of
government adopted in our 1935 Constitution,
and the system of checks and balances, one
of its basic predicates. As a consequence, We
have neither the authority nor the
discretion to decline passing upon said
issue, but are under the ineluctable
obligation - made particularly more
exacting and peremptory by our oath, as
members of the highest Court of the land,
to support and defend the Constitution - to
settle it. This explains why, in Miller v.
Johnson, it was held that courts have a "duty,
rather than a power", to determine whether
another branch of the government has "kept
within constitutional limits." Not satisfied with
this postulate, the court went farther and
stressed that, if the Constitution provides how
it may be amended - as it is in our 1935
Constitution - "then, unless the manner is
followed, the judiciary as the interpreter of that
constitution, will declare the amendment
invalid." In fact, this very Court - speaking
through Justice Laurel, an outstanding
authority on Philippine Constitutional Law, as
well as one of the highly respected and
foremost leaders of the Convention that
drafted the 1935 Constitution - declared, as
early as July 15, 1936, that "(i)n times of
social disquietude or political excitement, the
great landmarks of the Constitution are apt to
be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial
department is the only constitutional organ
which can be called upon to determine the
proper allocation of powers between the
several departments" of the
government. (citations omitted; emphasis
107 
supplied)
In the case at bar, the challenged proviso operates on
the basis of the salary grade or officer-employee
status. It is akin to a distinction based on
economic class and status, with the higher grades
as recipients of a benefit specifically withheld from the
lower grades. Officers of the BSP now receive higher
compensation packages that are competitive with the
industry, while the poorer, low-salaried employees are
limited to the rates prescribed by the SSL. The
implications are quite disturbing: BSP rank-and-file
employees are paid the strictly regimented rates of
the SSL while employees higher in rank - possessing
higher and better education and opportunities for
career advancement - are given higher compensation
packages to entice them to stay. Considering that
majority, if not all, the rank-and-file employees
consist of people whose status and rank in life are
less and limited, especially in terms of job
marketability, it is they - and not the officers - who
have the real economic and financial need for the
adjustment This is in accord with the policy of the
Constitution "to free the people from poverty, provide
adequate social services, extend to them a decent
standard of living, and improve the quality of life for
all." Any act of Congress that runs counter to this
108 
constitutional desideratum deserves strict
scrutiny by this Court before it can pass muster.
To be sure, the BSP rank-and-file employees merit
greater concern from this Court. They represent the
more impotent rank-and-file government employees
who, unlike employees in the private sector, have no
specific right to organize as a collective bargaining
unit and negotiate for better terms and conditions of
employment, nor the power to hold a strike to protest
unfair labor practices. Not only are they impotent as a
labor unit, but their efficacy to lobby in Congress is
almost nil as R.A. No. 7653 effectively isolated them
from the other GFI rank-and-file in
compensation. These BSP rank-and-file employees
represent the politically powerless and they
should not be compelled to seek a political
solution to their unequal and iniquitous
treatment. Indeed, they have waited for many years
for the legislature to act. They cannot be asked to wait
some more for discrimination cannot be given any
waiting time. Unless the equal protection clause of the
Constitution is a mere platitude, it is the Court's duty
to save them from reasonless discrimination.

IN VIEW WHEREOF, we hold that the continued

operation and implementation of the last proviso of
Section 15(c), Article II of Republic Act No. 7653 is
unconstitutional.

Davide, Jr., C.J., Quisumbing, Ynares-Santiago,

Sandoval-Gutierrez, Austria-Martinez, Azcuna, Tinga,
and Chico-Nazario, JJ., concur.

Panganiban, Carpio, Carpio-Morales, and Garcia,

JJ., see dissenting.
G.R. No. 74457 March 20, 1987
Corona, and Callejo, Sr., JJ., on leave.
RESTITUTO YNOT, petitioner, 
vs.
INTERMEDIATE APPELLATE COURT, THE
STATION COMMANDER, INTEGRATED NATIONAL
POLICE, BAROTAC NUEVO, ILOILO and THE
REGIONAL DIRECTOR, BUREAU OF ANIMAL
INDUSTRY, REGION IV, ILOILO CITY, respondents.

Ramon A. Gonzales for petitioner.

CRUZ, J.:

The essence of due process is distilled in the immortal

cry of Themistocles to Alcibiades "Strike — but hear
me first!" It is this cry that the petitioner in effect
repeats here as he challenges the constitutionality of
Executive Order No. 626-A.

The said executive order reads in full as follows:

WHEREAS, the President has given

orders prohibiting the interprovincial
movement of carabaos and the
slaughtering of carabaos not
complying with the requirements of
Executive Order No. 626 particularly
with respect to age;

WHEREAS, it has been observed that

despite such orders the violators still
manage to circumvent the prohibition
against inter-provincial movement of
carabaos by transporting carabeef
instead; and

WHEREAS, in order to achieve the

purposes and objectives of Executive
Order No. 626 and the prohibition
 against interprovincial movement of
carabaos, it is necessary to strengthen
the said Executive Order and provide
for the disposition of the carabaos and
carabeef subject of the violation;
NOW, THEREFORE, I, FERDINAND
E. MARCOS, President of the
Philippines, by virtue of the powers
vested in me by the Constitution, do
hereby promulgate the following:
SECTION 1. Executive Order No. 626
is hereby amended such that
henceforth, no carabao regardless of
age, sex, physical condition or
purpose and no carabeef shall be
transported from one province to
another. The carabao or carabeef
transported in violation of this
Executive Order as amended shall be
subject to confiscation and forfeiture
by the government, to be distributed to
charitable institutions and other similar
institutions as the Chairman of the
National Meat Inspection Commission
may ay see fit, in the case of carabeef,
and to deserving farmers through
dispersal as the Director of Animal
Industry may see fit, in the case of
carabaos.
SECTION 2. This Executive Order
shall take effect immediately.
Done in the City of Manila, this 25th
day of October, in the year of Our
Lord, nineteen hundred and eighty.
The petitioner had transported six carabaos in a pump
boat from Masbate to Iloilo on January 13, 1984,
when they were confiscated by the police station
commander of Barotac Nuevo, Iloilo, for violation of
the above measure. 1 The petitioner sued for recovery, and the
Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of
a supersedeas bond of P12,000.00. After considering the merits of the
case, the court sustained the confiscation of the carabaos and, since they
could no longer be produced, ordered the confiscation of the bond. The
court also declined to rule on the constitutionality of the executive order, as
raise by the petitioner, for lack of authority and also for its presumed
validity. 2
The petitioner appealed the decision to the
Intermediate Appellate Court,*   which upheld the trial
3
court, ** and he has now come before us in this petition for review
on certiorari.
The thrust of his petition is that the executive order is
unconstitutional insofar as it authorizes outright
confiscation of the carabao or carabeef being
transported across provincial boundaries. His claim is
that the penalty is invalid because it is imposed
without according the owner a right to be heard before
a competent and impartial court as guaranteed by due
process. He complains that the measure should not
have been presumed, and so sustained, as
constitutional. There is also a challenge to the
improper exercise of the legislative power by the
former President under Amendment No. 6 of the 1973
Constitution.  4
While also involving the same executive order, the
case of Pesigan v. Angeles   is not applicable here.
5
The question raised there was the necessity of the
previous publication of the measure in the Official
Gazette before it could be considered enforceable.
We imposed the requirement then on the basis of due
process of law. In doing so, however, this Court did
not, as contended by the Solicitor General, impliedly
affirm the constitutionality of Executive Order No. 626-
A. That is an entirely different matter.
This Court has declared that while lower courts should
observe a becoming modesty in examining
constitutional questions, they are nonetheless not
prevented from resolving the same whenever
warranted, subject only to review by the highest
tribunal.   We have jurisdiction under the Constitution
6
to "review, revise, reverse, modify or affirm on appeal
or certiorari, as the law or rules of court may provide,"
final judgments and orders of lower courts in, among
others, all cases involving the constitutionality of
(SGD.) FERDINAND E.  This simply means that the
certain measures. 
7
MARCOS resolution of such cases may be made in the first
instance by these lower courts.
President
And while it is true that laws are presumed to be
Republicconstitutional,
of the that presumption is not by any means
conclusive and in fact may be rebutted. Indeed, if
Philippines
there be a clear showing of their invalidity, and of the
need to declare them so, then "will be the time to
make the hammer fall, and heavily,"   to recall Justice
8
Laurel's trenchant warning. Stated otherwise, courts
should not follow the path of least resistance by
simply presuming the constitutionality of a law when it
is questioned. On the contrary, they should probe the
issue more deeply, to relieve the abscess,
paraphrasing another distinguished jurist,   and so
9
heal the wound or excise the affliction.
Judicial power authorizes this; and when the exercise
is demanded, there should be no shirking of the task
for fear of retaliation, or loss of favor, or popular
censure, or any other similar inhibition unworthy of the
bench, especially this Court.
The challenged measure is denominated an executive
order but it is really presidential decree, promulgating
a new rule instead of merely implementing an existing
law. It was issued by President Marcos not for the
purpose of taking care that the laws were faithfully
executed but in the exercise of his legislative authority
under Amendment No. 6. It was provided thereunder
that whenever in his judgment there existed a grave
emergency or a threat or imminence thereof or
whenever the legislature failed or was unable to act
adequately on any matter that in his judgment
required immediate action, he could, in order to meet
the exigency, issue decrees, orders or letters of
instruction that were to have the force and effect of
law. As there is no showing of any exigency to justify
the exercise of that extraordinary power then, the
petitioner has reason, indeed, to question the validity
of the executive order. Nevertheless, since the
determination of the grounds was supposed to have
been made by the President "in his judgment, " a
phrase that will lead to protracted discussion not really
necessary at this time, we reserve resolution of this
matter until a more appropriate occasion. For the
nonce, we confine ourselves to the more fundamental
question of due process.
It is part of the art of constitution-making that the
provisions of the charter be cast in precise and
unmistakable language to avoid controversies that
might arise on their correct interpretation. That is the
Ideal. In the case of the due process clause, however,
this rule was deliberately not followed and the wording
was purposely kept ambiguous. In fact, a proposal to
delineate it more clearly was submitted in the
Constitutional Convention of 1934, but it was rejected
by Delegate Jose P. Laurel, Chairman of the
Committee on the Bill of Rights, who forcefully argued
against it. He was sustained by the body. 10
The due process clause was kept intentionally vague so it would remain
also conveniently resilient. This was felt necessary because due process is
not, like some provisions of the fundamental law, an "iron rule" laying down
an implacable and immutable command for all seasons and all persons.
Flexibility must be the best virtue of the guaranty. The very elasticity of the
due process clause was meant to make it adapt easily to every situation,
enlarging or constricting its protection as the changing times and
circumstances may require.
Aware of this, the courts have also hesitated to adopt
their own specific description of due process lest they
confine themselves in a legal straitjacket that will
deprive them of the elbow room they may need to
vary the meaning of the clause whenever indicated.
Instead, they have preferred to leave the import of the
protection open-ended, as it were, to be "gradually
ascertained by the process of inclusion and exclusion
in the course of the decision of cases as they
arise." 11 Thus, Justice Felix Frankfurter of the U.S. Supreme Court, for
example, would go no farther than to define due process — and in so doing
sums it all up — as nothing more and nothing less than "the embodiment of
the sporting Idea of fair play." 12 
When the barons of England extracted from their sovereign liege the
reluctant promise that that Crown would thenceforth not proceed against
the life liberty or property of any of its subjects except by the lawful
judgment of his peers or the law of the land, they thereby won for
themselves and their progeny that splendid guaranty of fairness that is now
the hallmark of the free society. The solemn vow that King John made at
Runnymede in 1215 has since then resounded through the ages, as a
ringing reminder to all rulers, benevolent or base, that every person, when
confronted by the stern visage of the law, is entitled to have his say in a fair
and open hearing of his cause.
The closed mind has no place in the open society. It is
part of the sporting Idea of fair play to hear "the other
side" before an opinion is formed or a decision is
made by those who sit in judgment. Obviously, one
side is only one-half of the question; the other half
must also be considered if an impartial verdict is to be
reached based on an informed appreciation of the
issues in contention. It is indispensable that the two
sides complement each other, as unto the bow the
arrow, in leading to the correct ruling after
examination of the problem not from one or the other
perspective only but in its totality. A judgment based
on less that this full appraisal, on the pretext that a
hearing is unnecessary or useless, is tainted with the
vice of bias or intolerance or ignorance, or worst of all,
in repressive regimes, the insolence of power.
The minimum requirements of due process are notice
and hearing 13 which, generally speaking, may not be dispensed with
because they are intended as a safeguard against official arbitrariness. It is
a gratifying commentary on our judicial system that the jurisprudence of this
country is rich with applications of this guaranty as proof of our fealty to the
rule of law and the ancient rudiments of fair play. We have consistently
declared that every person, faced by the awesome power of the State, is
entitled to "the law of the land," which Daniel Webster described almost two
hundred years ago in the famous Dartmouth College Case, 14 as "the law
which hears before it condemns, which proceeds upon inquiry and renders
judgment only after trial." It has to be so if the rights of every person are to
be secured beyond the reach of officials who, out of mistaken zeal or plain
arrogance, would degrade the due process clause into a worn and empty
catchword.
This is not to say that notice and hearing are
imperative in every case for, to be sure, there are a
number of admitted exceptions. The conclusive
presumption, for example, bars the admission of
contrary evidence as long as such presumption is
based on human experience or there is a rational
connection between the fact proved and the fact
ultimately presumed therefrom. 15 There are instances when
the need for expeditions action will justify omission of these requisites, as in
the summary abatement of a nuisance per se, like a mad dog on the loose,
which may be killed on sight because of the immediate danger it poses to
the safety and lives of the people. Pornographic materials, contaminated
meat and narcotic drugs are inherently pernicious and may be summarily
destroyed. The passport of a person sought for a criminal offense may be
cancelled without hearing, to compel his return to the country he has
fled. 16 Filthy restaurants may be summarily padlocked in the interest of the
public health and bawdy houses to protect the public morals. 17 In such
instances, previous judicial hearing may be omitted without violation of due
process in view of the nature of the property involved or the urgency of the
need to protect the general welfare from a clear and present danger.
The protection of the general welfare is the particular
function of the police power which both restraints and
is restrained by due process. The police power is
simply defined as the power inherent in the State to
regulate liberty and property for the promotion of the
general welfare. 18 By reason of its function, it extends to all the
great public needs and is described as the most pervasive, the least
limitable and the most demanding of the three inherent powers of the State,
far outpacing taxation and eminent domain. The individual, as a member of
society, is hemmed in by the police power, which affects him even before
he is born and follows him still after he is dead — from the womb to beyond
the tomb — in practically everything he does or owns. Its reach is virtually
limitless. It is a ubiquitous and often unwelcome intrusion. Even so, as long
as the activity or the property has some relevance to the public welfare, its
regulation under the police power is not only proper but necessary. And the
justification is found in the venerable Latin maxims, Salus populi est
suprema lex and Sic utere tuo ut alienum non laedas, which call for the
subordination of individual interests to the benefit of the greater number.
It is this power that is now invoked by the government
to justify Executive Order No. 626-A, amending the
basic rule in Executive Order No. 626, prohibiting the
slaughter of carabaos except under certain conditions.
The original measure was issued for the reason, as
expressed in one of its Whereases, that "present
conditions demand that the carabaos and the
buffaloes be conserved for the benefit of the small
farmers who rely on them for energy needs." We
affirm at the outset the need for such a measure. In
the face of the worsening energy crisis and the
increased dependence of our farms on these
traditional beasts of burden, the government would
have been remiss, indeed, if it had not taken steps to
protect and preserve them.  female upon issuance of the necessary permit, the
A similar prohibition was challenged in United States
v. Toribio, 19 where a law regulating the registration, branding and
slaughter of large cattle was claimed to be a deprivation of property without
due process of law. The defendant had been convicted thereunder for
having slaughtered his own carabao without the required permit, and he
appealed to the Supreme Court. The conviction was affirmed. The law was
sustained as a valid police measure to prevent the indiscriminate killing of
carabaos, which were then badly needed by farmers. An epidemic had
stricken many of these animals and the reduction of their number had
resulted in an acute decline in agricultural output, which in turn had caused
an incipient famine. Furthermore, because of the scarcity of the animals
and the consequent increase in their price, cattle-rustling had spread
alarmingly, necessitating more effective measures for the registration and
branding of these animals. The Court held that the questioned statute was a
valid exercise of the police power and declared in part as follows:
To justify the State in thus interposing
its authority in behalf of the public, it
must appear, first, that the interests of
the public generally, as distinguished
from those of a particular class,
require such interference; and second,
that the means are reasonably
necessary for the accomplishment of
the purpose, and not unduly
oppressive upon individuals. ...  killed anywhere, with no less difficulty in one province
From what has been said, we think it
is clear that the enactment of the
provisions of the statute under
consideration was required by "the
interests of the public generally, as
distinguished from those of a
particular class" and that the
prohibition of the slaughter of
carabaos for human consumption, so
long as these animals are fit for
agricultural work or draft purposes
was a "reasonably necessary"
limitation on private ownership, to
protect the community from the loss of
the services of such animals by their
slaughter by improvident owners,
tempted either by greed of momentary
gain, or by a desire to enjoy the luxury
of animal food, even when by so doing
the productive power of the
community may be measurably and
dangerously affected.
In the light of the tests mentioned above, we hold with
the Toribio Case that the carabao, as the poor man's
tractor, so to speak, has a direct relevance to the
public welfare and so is a lawful subject of Executive
Order No. 626. The method chosen in the basic
measure is also reasonably necessary for the purpose
sought to be achieved and not unduly oppressive
upon individuals, again following the above-cited
doctrine. There is no doubt that by banning the
slaughter of these animals except where they are at
least seven years old if male and eleven years old if
executive order will be conserving those still fit for
farm work or breeding and preventing their
improvident depletion. 
But while conceding that the amendatory measure
has the same lawful subject as the original executive
order, we cannot say with equal certainty that it
complies with the second requirement, viz., that there
be a lawful method. We note that to strengthen the
original measure, Executive Order No. 626-A imposes
an absolute ban not on the slaughter of the carabaos
but on their movement, providing that "no carabao
regardless of age, sex, physical condition or purpose
(sic) and no carabeef shall be transported from one
province to another." The object of the prohibition
escapes us. The reasonable connection between the
means employed and the purpose sought to be
achieved by the questioned measure is missing
We do not see how the prohibition of the inter-
provincial transport of carabaos can prevent their
indiscriminate slaughter, considering that they can be
than in another. Obviously, retaining the carabaos in
one province will not prevent their slaughter there, any
more than moving them to another province will make
it easier to kill them there. As for the carabeef, the
prohibition is made to apply to it as otherwise, so says
executive order, it could be easily circumvented by
simply killing the animal. Perhaps so. However, if the
movement of the live animals for the purpose of
preventing their slaughter cannot be prohibited, it
should follow that there is no reason either to prohibit
their transfer as, not to be flippant dead meat.
Even if a reasonable relation between the means and
the end were to be assumed, we would still have to
reckon with the sanction that the measure applies for
violation of the prohibition. The penalty is outright
confiscation of the carabao or carabeef being
transported, to be meted out by the executive
authorities, usually the police only. In the Toribio
Case, the statute was sustained because the penalty
prescribed was fine and imprisonment, to be imposed
by the court after trial and conviction of the accused.
Under the challenged measure, significantly, no such
trial is prescribed, and the property being transported
is immediately impounded by the police and declared,
by the measure itself, as forfeited to the government.
In the instant case, the carabaos were arbitrarily
confiscated by the police station commander, were
returned to the petitioner only after he had filed a
complaint for recovery and given a supersedeas bond
of P12,000.00, which was ordered confiscated upon
his failure to produce the carabaos when ordered by
the trial court. The executive order defined the
prohibition, convicted the petitioner and immediately
imposed punishment, which was carried out forthright.
The measure struck at once and pounced upon the
petitioner without giving him a chance to be heard,
thus denying him the centuries-old guaranty of
elementary fair play.
It has already been remarked that there are occasions
when notice and hearing may be validly dispensed
with notwithstanding the usual requirement for these
minimum guarantees of due process. It is also
conceded that summary action may be validly taken in
administrative proceedings as procedural due process
is not necessarily judicial only.   In the exceptional
20
cases accepted, however. there is a justification for
the omission of the right to a previous hearing, to wit,
the immediacy of the problem sought to be corrected
and the urgency of the need to correct it.
In the case before us, there was no such pressure of
time or action calling for the petitioner's peremptory
treatment. The properties involved were not even
inimical per se as to require their instant destruction.
There certainly was no reason why the offense
prohibited by the executive order should not have
been proved first in a court of justice, with the
accused being accorded all the rights safeguarded to
him under the Constitution. Considering that, as we
held in Pesigan v. Angeles,   Executive Order No.
21
626-A is penal in nature, the violation thereof should
have been pronounced not by the police only but by a
court of justice, which alone would have had the
authority to impose the prescribed penalty, and only
after trial and conviction of the accused.
We also mark, on top of all this, the questionable
manner of the disposition of the confiscated property
as prescribed in the questioned executive order. It is
there authorized that the seized property shall "be
distributed to charitable institutions and other similar
institutions as the Chairman of the National Meat
Inspection Commission may see fit, in the case of
carabeef, and to deserving farmers through dispersal
as the Director of Animal Industry may see fit, in the
case of carabaos." (Emphasis supplied.) The
phrase "may see fit" is an extremely generous and
dangerous condition, if condition it is. It is laden with
perilous opportunities for partiality and abuse, and
even corruption. One searches in vain for the usual
standard and the reasonable guidelines, or better still,
the limitations that the said officers must observe
when they make their distribution. There is none.
Their options are apparently boundless. Who shall be
the fortunate beneficiaries of their generosity and by
what criteria shall they be chosen? Only the officers
named can supply the answer, they and they alone
may choose the grantee as they see fit, and in their
own exclusive discretion. Definitely, there is here a
"roving commission," a wide and sweeping authority
that is not "canalized within banks that keep it from
overflowing," in short, a clearly profligate and
therefore invalid delegation of legislative powers.
To sum up then, we find that the challenged measure
is an invalid exercise of the police power because the
method employed to conserve the carabaos is not
reasonably necessary to the purpose of the law and,
worse, is unduly oppressive. Due process is violated
because the owner of the property confiscated is
denied the right to be heard in his defense and is
immediately condemned and punished. The
conferment on the administrative authorities of the
power to adjudge the guilt of the supposed offender is
a clear encroachment on judicial functions and
militates against the doctrine of separation of powers.
There is, finally, also an invalid delegation of
legislative powers to the officers mentioned therein
who are granted unlimited discretion in the distribution
of the properties arbitrarily taken. For these reasons,
we hereby declare Executive Order No. 626-A
unconstitutional.
We agree with the respondent court, however, that
the police station commander who confiscated the
petitioner's carabaos is not liable in damages for
enforcing the executive order in accordance with its
mandate. The law was at that time presumptively
valid, and it was his obligation, as a member of the
police, to enforce it. It would have been impertinent of
him, being a mere subordinate of the President, to
declare the executive order unconstitutional and, on
his own responsibility alone, refuse to execute it. Even
the trial court, in fact, and the Court of Appeals itself
did not feel they had the competence, for all their
superior authority, to question the order we now
annul.

The Court notes that if the petitioner had not seen fit
to assert and protect his rights as he saw them, this
case would never have reached us and the taking of
his property under the challenged measure would
have become a faitaccompli despite its invalidity. We
commend him for his spirit. Without the present
challenge, the matter would have ended in that pump
boat in Masbate and another violation of the
Constitution, for all its obviousness, would have been
perpetrated, allowed without protest, and soon
forgotten in the limbo of relinquished rights.

The strength of democracy lies not in the rights it

guarantees but in the courage of the people to invoke
them whenever they are ignored or violated. Rights
are but weapons on the wall if, like expensive
tapestry, all they do is embellish and impress. Rights,
as weapons, must be a promise of protection. They
become truly meaningful, and fulfill the role assigned
to them in the free society, if they are kept bright and
sharp with use by those who are not afraid to assert
them.

WHEREFORE, Executive Order No. 626-A is hereby

declared unconstitutional. Except as affirmed above,
the decision of the Court of Appeals is reversed.
The supersedeas bond is cancelled and the amount
thereof is ordered restored to the petitioner. No costs. 

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez,

Jr., Paras, Gancayco, Padilla Bidin Sarmiento and
Cortes, JJ., concur.

Melencio-Herrera and Feliciano, JJ., are on leave.


G.R. No. 182065               October 27, 2009
EVELYN ONGSUCO and ANTONIA
SALAYA, Petitioners, 
vs.
HON. MARIANO M. MALONES, both in his private
and official capacity as Mayor of the Municipality
of Maasin, Iloilo, Respondent.
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari under Rule
45 of the Rules of Court, assailing the Decision1 dated
28 November 2006, rendered by the Court of Appeals
in CA-G.R. SP No. 86182, which affirmed the
Decision2 dated 15 July 2003, of the Regional Trial
Court (RTC), Branch 39, of Iloilo City, in Civil Case
No. 25843, dismissing the special civil action for
Mandamus/Prohibition with Prayer for Issuance of a
Temporary Restraining Order and/or Writ of
Preliminary Injunction, filed by petitioners Evelyn
Ongsuco and Antonia Salaya against respondent
Mayor Mariano Malones of the Municipality of Maasin,
Iloilo.
Petitioners are stall holders at the Maasin Public
Market, which had just been newly renovated. In a
letter3 dated 6 August 1998, the Office of the
Municipal Mayor informed petitioners of a meeting
scheduled on 11 August 1998 concerning the
municipal public market. Revenue measures were
discussed during the said meeting, including the
increase in the rentals for the market stalls and the
imposition of "goodwill fees" in the amount of
₱20,000.00,4payable every month.
On 17 August 1998, the Sangguniang Bayan of
Maasin approved Municipal Ordinance No. 98-01,
entitled "The Municipal Revised Revenue Code." The
Code contained a provision for increased rentals for
the stalls and the imposition of goodwill fees in the
amount of ₱20,000.00 and ₱15,000.00 for stalls
located on the first and second floors of the municipal
public market, respectively. The same Code
authorized respondent to enter into lease contracts
over the said market stalls,5 and incorporated a
standard contract of lease for the stall holders at the
municipal public market. 
Only a month later, on 18 September 1998,
the Sangguniang Bayan of Maasin approved
Resolution No. 68, series of 1998,6 moving to have
the meeting dated 11 August 1998 declared
inoperative as a public hearing, because majority of
the persons affected by the imposition of the goodwill
fee failed to agree to the said measure. However,
Resolution No. 68, series of 1998, of
the Sangguniang Bayan of Maasin was vetoed by
respondent on 30 September 1998.7
After Municipal Ordinance No. 98-01 was approved
on 17 August 1998, another purported public hearing
was held on 22 January 1999.8
On 9 June 1999, respondent wrote a letter to
petitioners informing them that they were occupying
stalls in the newly renovated municipal public market
without any lease contract, as a consequence of
which, the stalls were considered vacant and open for
qualified and interested applicants.9
This prompted petitioners, together with other similarly
situated stall holders at the municipal public
market,10 to file before the RTC on 25 June 1999 a
Petition for Prohibition/Mandamus, with Prayer for
Issuance of Temporary Restraining Order and/or Writ
of Preliminary Injunction,11 against respondent. The
Petition was docketed as Civil Case No. 25843. 
Petitioners alleged that they were bona fide occupants
of the stalls at the municipal public market, who had
been religiously paying the monthly rentals for the
stalls they occupied. 
Petitioners argued that public hearing was mandatory
in the imposition of goodwill fees. Section 186 of the
Local Government Code of 1991 provides that an
ordinance levying taxes, fees, or charges shall not be
enacted without any prior hearing conducted for the
purpose. Municipal Ordinance No. 98-01, imposing
goodwill fees, is invalid on the ground that the
conferences held on 11 August 1998 and 22 January
1999 could not be considered public hearings.
According to Article 277(b)(3) of the Implementing
Rules and Regulations of the Local Government
Code:
(3) The notice or notices shall specify the date or
dates and venue of the public hearing or hearings.
The initial public hearing shall be held not earlier than
ten (10) days from the sending out of the notice or
notices, or the last day of publication, or date of
posting thereof, whichever is later. (Emphasis ours.)
The letter from the Office of the Municipal Mayor was
sent to stall holders on 6 August 1998, informing the
latter of the meeting to be held, as was in fact held, on
11 August 1998, only five days after notice.12
Hence, petitioners prayed that respondent be
enjoined from imposing the goodwill fees pending the
determination of the reasonableness thereof, and
from barring petitioners from occupying the stalls at
the municipal public market and continuing with the
operation of their businesses.  Section 187 of the Local Government
Respondent, in answer, maintained that Municipal
Ordinance No. 98-01 is valid. He reasoned that
Municipal Ordinance No. 98-01 imposed goodwill fees
to raise income to pay for the loan obtained by the
Municipality of Maasin for the renovation of its public
market. Said ordinance is not per se a tax or revenue
measure, but involves the operation and management
of an economic enterprise of the Municipality of
Maasin as a local government unit; thus, there was no
mandatory requirement to hold a public hearing for
the enactment thereof. And, even granting that a
public hearing was required, respondent insisted that
public hearings take place on 11 August 1998 and 22
January 1999.
Respondent further averred that petitioners were
illegally occupying the market stalls, and the only way
petitioners could legitimize their occupancy of said
market stalls would be to execute lease contracts with
the Municipality of Maasin. While respondent admitted
that petitioners had been paying rentals for their
market stalls in the amount of ₱45.00 per month prior
to the renovation of the municipal public market,
respondent asserted that no rentals were paid or
collected from petitioners ever since the renovation
began.  rentals in the amount of ₱350.00 for each stall from
Respondent sought from the RTC an award for moral
damages in the amount of not less than ₱500,000.00,
for the social humiliation and hurt feelings he suffered
by reason of the unjustified filing by petitioners of Civil
Case No. 25843; and an order for petitioners to
vacate the renovated market stalls and pay
reasonable rentals from the date they began to
occupy said stalls until they vacate the same. 13
The RTC subsequently rendered a Decision14 on 15
July 2003 dismissing the Petition in Civil Case No.
25843. 
The RTC found that petitioners could not avail
themselves of the remedy of mandamus or
prohibition. It reasoned that mandamus would not lie
in this case where petitioners failed to show a clear
legal right to the use of the market stalls without
paying the goodwill fees imposed by the municipal
government. Prohibition likewise would not apply to
the present case where respondent’s acts, sought to
be enjoined, did not involve the exercise of judicial or
quasi-judicial functions. 
The RTC also dismissed the Petition in Civil Case No.
25843 on the ground of non-exhaustion of
administrative remedies. Petitioners’ failure to
question the legality of Municipal Ordinance No. 98-01
before the Secretary of Justice, as provided under
Code,15 rendered the Petition raising the very same
issue before the RTC premature. 
The dispositive part of the RTC Decision dated 15
July 2003 reads:
WHEREFORE, in view of all the foregoing, and
finding the petition without merit, the same is, as it is
hereby ordered, dismissed. 16
On 12 August 2003, petitioners and their co-plaintiffs
filed a Motion for Reconsideration.17 The RTC denied
petitioners’ Motion for Reconsideration in a Resolution
dated 18 June 2004.18
While Civil Case No. 25843 was pending, respondent
filed before the 12th Municipal Circuit Trial Court
(MCTC) of Cabatuan-Maasin, Iloilo City a case in
behalf of the Municipality of Maasin against petitioner
Evelyn Ongsuco, entitled Municipality of Maasin v.
Ongsuco, a Complaint for Unlawful Detainer with
Damages, docketed as MCTC Civil Case No. 257. On
18 June 2002, the MCTC decided in favor of the
Municipality of Maasin and ordered petitioner
Ongsuco to vacate the market stalls she occupied,
Stall No. 1-03 and Stall No. 1-04, and to pay monthly
October 2001 until she vacates the said market
stalls.19 On appeal, Branch 36 of the RTC of Maasin,
Iloilo City, promulgated a Decision, dated 29 April
2003, in a case docketed as Civil Case No. 02-
27229 affirming the decision of the MCTC. A Writ of
Execution was issued by the MCTC on 8 December
2003.20
Petitioners, in their appeal before the Court of
Appeals, docketed as CA-G.R. SP No. 86182,
challenged the dismissal of their Petition for
Prohibition/Mandamus docketed as Civil Case No.
25843 by the RTC. Petitioners explained that they did
appeal the enactment of Municipal Ordinance No. 98-
01 before the Department of Justice, but their appeal
was not acted upon because of their failure to attach a
copy of said municipal ordinance. Petitioners claimed
that one of their fellow stall holders, Ritchelle
Mondejar, wrote a letter to the Officer-in-Charge
(OIC), Municipal Treasurer of Maasin, requesting a
copy of Municipal Ordinance No. 98-01, but received
no reply.21
In its Decision dated 28 November 2006 in CA-G.R.
SP No. 86182, the Court of Appeals again ruled in
respondent’s favor. 
The Court of Appeals declared that the "goodwill fee"
was a form of revenue measure, which the
Municipality of Maasin was empowered to impose
under Section 186 of the Local Government Code.
Petitioners failed to establish any grave abuse of
discretion committed by respondent in enforcing
goodwill fees. 
The Court of Appeals additionally held that even if
respondent acted in grave abuse of discretion,
petitioners’ resort to a petition for prohibition was
improper, since respondent’s acts in question herein
did not involve the exercise of judicial, quasi-judicial,
or ministerial functions, as required under Section 2,
Rule 65 of the Rules of Court. Also, the filing by
petitioners of the Petition for Prohibition/Mandamus
before the RTC was premature, as they failed to
exhaust administrative remedies prior thereto. The
appellate court did not give any weight to petitioners’
assertion that they filed an appeal challenging the
legality of Municipal Ordinance No. 98-01 before the
Secretary of Justice, as no proof was presented to
support the same.  further, That any question on the constitutionality or
In the end, the Court of Appeals decreed:
WHEREFORE, in view of the foregoing, this Court
finds the instant appeal bereft of merit. The assailed
decision dated July 15, 2003 as well as the
subsequent resolution dated 18 June 2004 are hereby
AFFIRMED and the instant appeal is hereby
DISMISSED. 22
Petitioners filed a Motion for Reconsideration23 of the
foregoing Decision, but it was denied by the Court of
Appeals in a Resolution24 dated 8 February 2008.
Hence, the present Petition, where petitioners raise
the following issues:
I means of administrative processes afforded him or
WHETHER OR NOT THE PETITIONERS
HAVE EXHAUSTED ADMINISTRATIVE
REMEDIES BEFORE FILING THE INSTANT
CASE IN COURT;
II
WHETHER OR NOT EXHAUSTION OF
ADMINISTRATIVE REMEDIES IS
APPLICABLE IN THIS CASE; AND
III
WHETHER OR NOT THE APPELLEE
MARIANO MALONES WHO WAS THEN THE
MUNICIPAL MAYOR OF MAASIN, ILOILO
HAS COMMITTED GRAVE ABUSE OF
DISCRETION.25
After a close scrutiny of the circumstances that gave
rise to this case, the Court determines that there is no
need for petitioners to exhaust administrative
remedies before resorting to the courts.
The findings of both the RTC and the Court of
Appeals that petitioners’ Petition for
Prohibition/Mandamus in Civil Case No. 25843 was
premature is anchored on Section 187 of the Local
Government Code, which reads:
Section 187. Procedure for Approval and Effectivity of
Tax Ordinances and Revenue Measures; Mandatory
Public Hearings.—The procedure for approval of local
tax ordinances and revenue measures shall be in
accordance with the provisions of this Code:
Provided, That public hearings shall be conducted for
the purpose prior to the enactment thereof: Provided,
legality of tax ordinances or revenue measures may
be raised on appeal within thirty (30) days from the
effectivity thereof to the Secretary of Justice who shall
render a decision within sixty (60) days from the date
of receipt of the appeal: Provided, however, That such
appeal shall not have the effect of suspending the
effectivity of the ordinance and the accrual and
payment of the tax, fee, or charge levied therein:
Provided, finally, That within thirty (30) days after
receipt of the decision or the lapse of the sixty-day
period without the Secretary of Justice acting upon
the appeal, the aggrieved party may file appropriate
proceedings with a court of competent jurisdiction.
(Emphasis ours.)
It is true that the general rule is that before a party is
allowed to seek the intervention of the court, he or she
should have availed himself or herself of all the
her. Hence, if resort to a remedy within the
administrative machinery can still be made by giving
the administrative officer concerned every opportunity
to decide on a matter that comes within his or her
jurisdiction, then such remedy should be exhausted
first before the court’s judicial power can be sought.
The premature invocation of the intervention of the
court is fatal to one’s cause of action. The doctrine of
exhaustion of administrative remedies is based on
practical and legal reasons. The availment of
administrative remedy entails lesser expenses and
provides for a speedier disposition of controversies.
Furthermore, the courts of justice, for reasons of
comity and convenience, will shy away from a dispute
until the system of administrative redress has been
completed and complied with, so as to give the
administrative agency concerned every opportunity to
correct its error and dispose of the case. However,
there are several exceptions to this rule. 26
The rule on the exhaustion of administrative remedies
is intended to preclude a court from arrogating unto
itself the authority to resolve a controversy, the
jurisdiction over which is initially lodged with an
administrative body of special competence. Thus, a
case where the issue raised is a purely legal question,
well within the competence; and the jurisdiction of the
court and not the administrative agency, would clearly
constitute an exception.27 Resolving questions of law,
which involve the interpretation and application of
laws, constitutes essentially an exercise of judicial
power that is exclusively allocated to the Supreme
Court and such lower courts the Legislature may
establish. 28
In this case, the parties are not disputing any factual
matter on which they still need to present evidence.
The sole issue petitioners raised before the RTC in
Civil Case No. 25843 was whether Municipal
Ordinance No. 98-01 was valid and enforceable
despite the absence, prior to its enactment, of a public
hearing held in accordance with Article 276 of the
Implementing Rules and Regulations of the Local
Government Code. This is undoubtedly a pure
question of law, within the competence and
jurisdiction of the RTC to resolve.
Paragraph 2(a) of Section 5, Article VIII of the
Constitution, expressly establishes the appellate
jurisdiction of this Court, and impliedly recognizes the
original jurisdiction of lower courts over cases
involving the constitutionality or validity of an
ordinance:
Section 5. The Supreme Court shall have the
following powers:
xxxx
(2) Review, revise, reverse, modify or affirm on appeal
or certiorari, as the law or the Rules of Court may
provide, final judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of
any treaty, international or executive agreement, law,
presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question. (Emphases
ours.)
In J.M. Tuason and Co., Inc. v. Court of
Appeals,29 Ynot v. Intermediate Appellate Court,30 and
Commissioner of Internal Revenue v. Santos,31 the
Court has affirmed the jurisdiction of the RTC to
resolve questions of constitutionality and validity of
laws (deemed to include local ordinances) in the first
instance, without deciding questions which pertain to
legislative policy.
Although not raised in the Petition at bar, the Court is
compelled to discuss another procedural issue,
specifically, the declaration by the RTC, and affirmed
by the Court of Appeals, that petitioners availed
themselves of the wrong remedy in filing a Petition for
Prohibition/Mandamus before the RTC. 
Sections 2 and 3, Rule 65 of the Rules of the Rules of
Court lay down under what circumstances petitions for
prohibition and mandamus may be filed, to wit:
SEC. 2. Petition for prohibition. – When the
proceedings of any tribunal, corporation, board, officer
or person, whether exercising judicial, quasi-judicial or
ministerial functions, are without or in excess of its or
his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there
is no appeal or any other plain, speedy, and adequate
remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the
proper court, alleging the facts with certainty and
praying that judgment be rendered commanding the
respondent to desist from further proceedings in the
action or matter specified therein, or otherwise
granting such incidental reliefs as law and justice may
require. 
SEC. 3. Petition for mandamus. – When any tribunal,
corporation, board, officer or person unlawfully
neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from
the use and enjoyment of a right or office to which
such other is entitled, and there is no other plain,
speedy and adequate remedy in the ordinary course
of law, the person aggrieved thereby may file a
verified petition in the proper court, alleging the facts
with certainty and praying that judgment be rendered
commanding the respondent, immediately or at some
other time to be specified by the court, to do the act
required to be done to protect the rights of the
petitioner, and to pay the damages sustained by the
petitioner by reason of the wrongful acts of the
respondent. (Emphases ours.)
In a petition for prohibition against any tribunal,
corporation, board, or person -- whether exercising
judicial, quasi-judicial, or ministerial functions -- who
has acted without or in excess of jurisdiction or with
grave abuse of discretion, the petitioner prays that
judgment be rendered, commanding the
respondent to desist from further proceeding in the
action or matter specified in the petition.32 On the
other hand, the remedy of mandamus lies to
compelperformance of a ministerial duty.33 The
petitioner for such a writ should have a well-defined,
clear and certain legal right to the performance of the
act, and it must be the clear and imperative duty of
respondent to do the act required to be done.34
In this case, petitioners’ primary intention is to prevent
respondent from implementing Municipal Ordinance
No. 98-01, i.e., by collecting the goodwill fees from
petitioners and barring them from occupying the stalls
at the municipal public market. Obviously, the writ
petitioners seek is more in the nature of prohibition
(commanding desistance), rather than mandamus
(compelling performance).
For a writ of prohibition, the requisites are: (1) the
impugned act must be that of a "tribunal, corporation,
board, officer, or person, whether exercising judicial,
quasi-judicial or ministerial functions"; and (2) there is
no plain, speedy, and adequate remedy in the
ordinary course of law."35
The exercise of judicial function consists of the power
to determine what the law is and what the legal rights
of the parties are, and then to adjudicate upon the
rights of the parties. The term quasi-judicial function
applies to the action and discretion of public
administrative officers or bodies that are required to
investigate facts or ascertain the existence of facts,
hold hearings, and draw conclusions from them as a
basis for their official action and to exercise discretion
of a judicial nature. In implementing Municipal
Ordinance No. 98-01, respondent is not called upon to
adjudicate the rights of contending parties or to
exercise, in any manner, discretion of a judicial
nature.  Municipal Ordinance No. 98-01 imposes increased
A ministerial function is one that an officer or tribunal
performs in the context of a given set of facts, in a
prescribed manner and without regard for the exercise
of his or its own judgment, upon the propriety or
impropriety of the act done.36
The Court holds that respondent herein is performing
a ministerial function.
It bears to emphasize that Municipal Ordinance No.
98-01 enjoys the presumption of validity, unless
declared otherwise. Respondent has the duty to carry
out the provisions of the ordinance under Section 444
of the Local Government Code: 
Section 444. The Chief Executive: Powers, Duties,
Functions and Compensation. – (a) The Municipal
mayor, as the chief executive of the municipal
government, shall exercise such powers and perform
such duties and functions as provided by this Code
and other laws.
(b) For efficient, effective and economical governance
the purpose of which is the general welfare of the
municipality and its inhabitants pursuant to Section 16
of this Code, the Municipal mayor shall:
xxxx
(2) Enforce all laws and ordinances relative to the
governance of the municipality and the exercise of its
corporate powers provided for under Section 22 of
this Code, implement all approved policies, programs,
projects, services and activities of the municipality x x
x.
xxxx
(3) Initiate and maximize the generation of resources
and revenues, and apply the same to the
implementation of development plans, program
objectives sand priorities as provided for under
Section 18 of this Code, particularly those resources
and revenues programmed for agro-industrial
development and country-wide growth and progress,
and relative thereto, shall:
xxxx
(iii) Ensure that all taxes and other revenues of the
municipality are collected, and that municipal funds
are applied in accordance with law or ordinance to the
payment of expenses and settlement of obligations of
the municipality; x x x. (Emphasis ours.)
rentals and goodwill fees on stall holders at the
renovated municipal public market, leaving
respondent, or the municipal treasurer acting as his
alter ego, no discretion on whether or not to collect
the said rentals and fees from the stall holders, or
whether or to collect the same in the amounts fixed by
the ordinance. 
The Court further notes that respondent already
deemed petitioners’ stalls at the municipal public
market vacated. Without such stalls, petitioners would
be unable to conduct their businesses, thus, depriving
them of their means of livelihood. It is imperative on
petitioners’ part to have the implementation of
Municipal Ordinance No. 98-01 by respondent
stopped the soonest. As this Court has established in
its previous discussion, there is no more need for
petitioners to exhaust administrative remedies,
considering that the fundamental issue between them
and respondent is one of law, over which the courts
have competence and jurisdiction. There is no other
plain, speedy, and adequate remedy for petitioners in
the ordinary course of law, except to seek from the
courts the issuance of a writ of prohibition
commanding respondent to desist from continuing to
implement what is allegedly an invalid ordinance. 1 a vv p h i 1
This brings the Court to the substantive issue in this
Petition on the validity of Municipal Ordinance N. 98-
01.  charges shall not be enacted without any prior public
Respondent maintains that the imposition of goodwill
fees upon stall holders at the municipal public market
is not a revenue measure that requires a prior public
hearing. Rentals and other consideration for
occupancy of the stalls at the municipal public market
are not matters of taxation.  reproduced below:
Respondent’s argument is specious.  Section 277. Publication of Tax Ordinance and
Article 219 of the Local Government Code provides
that a local government unit exercising its power to
impose taxes, fees and charges should comply with
the requirements set in Rule XXX, entitled "Local
Government Taxation":
Article 219. Power to Create Sources of Revenue.—
Consistent with the basic policy of local autonomy,
each LGU shall exercise its power to create its own
sources of revenue and to levy taxes, fees, or
charges, subject to the provisions of this Rule. Such
taxes, fees, or charges shall accrue exclusively to the
LGU. (Emphasis ours.)
Article 221(g) of the Local Government Code of 1991
defines "charges" as:
Article 221. Definition of Terms.
x x x x  notices, or the last day of publication, or date of
(g) Charges refer to pecuniary liability, as rents or
fees against persons or property. (Emphasis ours.)
Evidently, the revenues of a local government unit do
not consist of taxes alone, but also other fees and
charges. And rentals and goodwill fees, imposed by
Municipal Ordinance No. 98-01 for the occupancy of
the stalls at the municipal public market, fall under the
definition of charges. 
For the valid enactment of ordinances imposing
charges, certain legal requisites must be met. Section
186 of the Local Government Code identifies such
requisites as follows:
Section 186. Power to Levy Other Taxes, Fees or
Charges.—Local government units may exercise the
power to levy taxes, fees or charges on any base or
subject not otherwise specifically enumerated herein
or taxed under the provisions of the National Internal
Revenue Code, as amended, or other applicable
laws: Provided, That the taxes, fees or charges shall
not be unjust, excessive, oppressive, confiscatory or
contrary to declared national policy: Provided, further,
That the ordinance levying such taxes, fees or
hearing conducted for the purpose. (Emphasis ours.)
Section 277 of the Implementing Rules and
Regulations of the Local Government Code
establishes in detail the procedure for the enactment
of such an ordinance, relevant provisions of which are
Revenue Measures.—x x x. 
x x x x 
(b) The conduct of public hearings shall be governed
by the following procedure:
xxxx
(2) In addition to the requirement for publication or
posting, the sanggunian concerned shall cause the
sending of written notices of the proposed ordinance,
enclosing a copy thereof, to the interested or affected
parties operating or doing business within the
territorial jurisdiction of the LGU concerned.
(3) The notice or notices shall specify the date or
dates and venue of the public hearing or hearings.
The initial public hearing shall be held not earlier than
ten (10) days from the sending out of the notice or
posting thereof, whichever is later;
xxxx
(c) No tax ordinance or revenue measure shall be
enacted or approved in the absence of a public ordinance. Petitioners are also DECLARED as lawful
hearing duly conducted in the manner provided under occupants of the market stalls they occupied at the
this Article. (Emphases ours.) time they filed the Petition for Mandamus/Prohibition
docketed as Civil Case No. 25843. In the event that
It is categorical, therefore, that a public hearing be they were deprived of possession of the said market
held prior to the enactment of an ordinance levying stalls, petitioners are entitled to recover possession of
taxes, fees, or charges; and that such public hearing these stalls.
be conducted as provided under Section 277 of the
Implementing Rules and Regulations of the Local SO ORDERED.
Government Code. 
MINITA V. CHICO-NAZARIO
There is no dispute herein that the notices sent to Associate Justice
petitioners and other stall holders at the municipal
public market were sent out on 6 August 1998,
informing them of the supposed "public hearing" to be
held on 11 August 1998. Even assuming that
petitioners received their notice also on 6 August
1998, the "public hearing" was already scheduled,
and actually conducted, only five days later, on 11
August 1998. This contravenes Article 277(b)(3) of the
Implementing Rules and Regulations of the Local
Government Code which requires that the public
hearing be held no less than ten days from the time
the notices were sent out, posted, or published. 

When the Sangguniang Bayan of Maasin sought to

correct this procedural defect through Resolution No.
68, series of 1998, dated 18 September 1998,
respondent vetoed the said resolution. Although the
Sangguniang Bayan may have had the power to
override respondent’s veto,37 it no longer did so. 

The defect in the enactment of Municipal Ordinance

No. 98 was not cured when another public hearing
was held on 22 January 1999, after the questioned
ordinance was passed by the Sangguniang Bayan
and approved by respondent on 17 August 1998.
Section 186 of the Local Government Code
prescribes that the public hearing be held prior to the
enactment by a local government unit of an ordinance
levying taxes, fees, and charges. 

Since no public hearing had been duly conducted

prior to the enactment of Municipal Ordinance No. 98-
01, said ordinance is void and cannot be given any
effect. Consequently, a void and ineffective ordinance
could not have conferred upon respondent the
jurisdiction to order petitioners’ stalls at the municipal
public market vacant. 

IN VIEW OF THE FOREGOING, the instant Petition is

GRANTED. The assailed Decision dated 28
November 2006 of the Court of Appeals in CA-G.R.
SP No. 86182 is REVERSED and SET ASIDE.
Municipal Ordinance No. 98-01 is DECLARED void
and ineffective, and a writ of prohibition is ISSUED
commanding the Mayor of the Municipality of Maasin,
Iloilo, to permanently desist from enforcing the said

G.R. No. L-23127 April 29, 1971
FRANCISCO SERRANO DE AGBAYANI, plaintiff-
appellee,  of the loan remaining unpaid. Plaintiff countered with
vs.
PHILIPPINE NATIONAL BANK and THE
PROVINCIAL SHERIFF OF PANGASINAN,
defendants, PHILIPPINE NATIONAL
BANK, defendant-appellant.
Dionisio E. Moya for plaintiff-appellee.  Sheriff, which was made permanent in the decision
Ramon B. de los Reyes for defendant-appellant.
FERNANDO, J.:
A correct appreciation of the controlling doctrine as to
the effect, if any, to be attached to a statute
subsequently adjudged invalid, is decisive of this
appeal from a lower court decision. Plaintiff Francisco
Serrano de Agbayani, now appellee, was able to
obtain a favorable judgment in her suit against
defendant, now appellant Philippine National Bank,
permanently enjoining the other defendant, the
Provincial Sheriff of Pangasinan, from proceeding with
an extra-judicial foreclosure sale of land belonging to
plaintiff mortgaged to appellant Bank to secure a loan
declared no longer enforceable, the prescriptive
period having lapsed. There was thus a failure to
sustain the defense raised by appellant that if the
moratorium under an Executive Order and later an Act
subsequently found unconstitutional were to be
counted in the computation, then the right to foreclose
the mortgage was still subsisting. In arriving at such a
conclusion, the lower court manifested a tenacious
adherence to the inflexible view that an
unconstitutional act is not a law, creating no rights and
imposing no duties, and thus as inoperative as if it
had never been. It was oblivious to the force of the
principle adopted by this Court that while a statute's
repugnancy to the fundamental law deprives it of its
character as a juridical norm, its having been
operative prior to its being nullified is a fact that is not
devoid of legal consequences. As will hereafter be
explained, such a failing of the lower court resulted in
an erroneous decision. We find for appellant
Philippine National Bank, and we reverse.
There is no dispute as to the facts. Plaintiff obtained
the loan in the amount of P450.00 from defendant
Bank dated July 19, 1939, maturing on July 19, 1944,
secured by real estate mortgage duly registered
covering property described in T.C.T. No. 11275 of
the province of Pangasinan. As of November 27,
1959, the balance due on said loan was in the amount
of P1,294.00. As early as July 13 of the same year,
defendant instituted extra-judicial foreclosure
proceedings in the office of defendant Provincial
Sheriff of Pangasinan for the recovery of the balance
his suit against both defendants on August 10, 1959,
her main allegation being that the mortgage sought to
be foreclosed had long prescribed, fifteen years
having elapsed from the date of maturity, July 19,
1944. She sought and was able to obtain a writ of
preliminary injunction against defendant Provincial
now on appeal. Defendant Bank in its answer prayed
for the dismissal of the suit as even on plaintiff's own
theory the defense of prescription would not be
available if the period from March 10, 1945, when
Executive Order No. 32  was issued, to July 26, 1948,
1
when the subsequent legislative act  extending the
2
period of moratorium was declared invalid, were to be
deducted from the computation of the time during
which the bank took no legal steps for the recovery of
the loan. As noted, the lower court did not find such
contention persuasive and decided the suit in favor of
plaintiff.
Hence this appeal, which, as made clear at the outset,
possesses merit, there being a failure on the part of
the lower court to adhere to the applicable
constitutional doctrine as to the effect to be given to a
statute subsequently declared invalid.
1. The decision now on appeal reflects the orthodox
view that an unconstitutional act, for that matter an
executive order or a municipal ordinance likewise
suffering from that infirmity, cannot be the source of
any legal rights or duties. Nor can it justify any official
act taken under it. Its repugnancy to the fundamental
law once judicially declared results in its being to all
intents and purposes a mere scrap of paper. As the
new Civil Code puts it: "When the courts declare a law
to be inconsistent with the Constitution, the former
shall be void and the latter shall govern.
Administrative or executive acts, orders and
regulations shall be valid only when they are not
contrary to the laws of the Constitution.  It is
3
understandable why it should be so, the Constitution
being supreme and paramount. Any legislative or
executive act contrary to its terms cannot survive.
Such a view has support in logic and possesses the
merit of simplicity. It may not however be sufficiently
realistic. It does not admit of doubt that prior to the
declaration of nullity such challenged legislative or
executive act must have been in force and had to be
complied with. This is so as until after the judiciary, in
an appropriate case, declares its invalidity, it is
entitled to obedience and respect. Parties may have
acted under it and may have changed their positions.
What could be more fitting than that in a subsequent
litigation regard be had to what has been done while
such legislative or executive act was in operation and
presumed to be valid in all respects. It is now
accepted as a doctrine that prior to its being nullified,
its existence as a fact must be reckoned with. This is
merely to reflect awareness that precisely because
the judiciary is the governmental organ which has the
final say on whether or not a legislative or executive
measure is valid, a period of time may have elapsed
before it can exercise the power of judicial review that
may lead to a declaration of nullity. It would be to
deprive the law of its quality of fairness and justice
then, if there be no recognition of what had transpired
prior to such adjudication.
In the language of an American Supreme Court
decision: "The actual existence of a statute, prior to
such a determination [of unconstitutionality], is an
operative fact and may have consequences which
cannot justly be ignored. The past cannot always be
erased by a new judicial declaration. The effect of the
subsequent ruling as to invalidity may have to be
considered in various aspects, with respect to
particular relations, individual and corporate, and
particular conduct, private and official."  This language
4 circumstances confronting the legitimate government
has been quoted with approval in a resolution
in Araneta v. Hill  and the decision in Manila Motor
5 device was needed and badly so. An unyielding
Co., Inc. v. Flores.  An even more recent instance is
6 insistence then on the rights to property on the part of
the opinion of Justice Zaldivar speaking for the Court
in Fernandez v. Cuerva and Co. 7 sympathy. Time passed however, and conditions did
2. Such an approach all the more commends itself
whenever police power legislation intended to
promote public welfare but adversely affecting
property rights is involved. While subject to be
assailed on due process, equal protection and non-
impairment grounds, all that is required to avoid the
corrosion of invalidity is that the rational basis or
reasonableness test is satisfied. The legislature on
the whole is not likely to allow an enactment suffering,
to paraphrase Cardozo, from the infirmity of out
running the bounds of reason and resulting in sheer
oppression. It may be of course that if challenged, an
adverse judgment could be the result, as its running
counter to the Constitution could still be shown. In the
meanwhile though, in the normal course of things, it
has been acted upon by the public and accepted as
valid. To ignore such a fact would indeed be the
fruitful parent of injustice. Moreover, as its
constitutionality is conditioned on its being fair or
reasonable, which in turn is dependent on the actual
situation, never static but subject to change, a
measure valid when enacted may subsequently, due
to altered circumstances, be stricken down.
That is precisely what happened in connection with
Republic Act No. 342, the moratorium legislation,
which continued Executive Order No. 32, issued by
the then President Osmeña, suspending the
enforcement of payment of all debts and other
monetary obligations payable by war sufferers. So it
was explicitly held in Rutter v. Esteban where such
8
enactment was considered in 1953 "unreasonable
and oppressive, and should not be prolonged a
minute longer, and, therefore, the same should be
declared null and void and without effect."  At the time
9
of the issuance of the above Executive Order in 1945
and of the passage of such Act in 1948, there was a
factual justification for the moratorium. The Philippines
was confronted with an emergency of impressive
magnitude at the time of her liberation from the
Japanese military forces in 1945. Business was at a
standstill. Her economy lay prostrate. Measures,
radical measures, were then devised to tide her over
until some semblance of normalcy could be restored
and an improvement in her economy noted. No
wonder then that the suspension of enforcement of
payment of the obligations then existing was declared
first by executive order and then by legislation. The
Supreme Court was right therefore in rejecting the
contention that on its face, the Moratorium Law was
unconstitutional, amounting as it did to the impairment
of the obligation of contracts. Considering the
upon its return to the Philippines, some such remedial
the creditors was not likely to meet with judicial
change.
When the legislation was before this Court in 1953,
the question before it was its satisfying the rational
basis test, not as of the time of its enactment but as of
such date. Clearly, if then it were found unreasonable,
the right to non-impairment of contractual obligations
must prevail over the assertion of community power to
remedy an existing evil. The Supreme Court was
convinced that such indeed was the case. As stated in
the opinion of Justice Bautista Angelo: "But we should
not lose sight of the fact that these obligations had
been pending since 1945 as a result of the issuance from March 10, 1945, the effectivity of Executive
of Executive Orders Nos. 25 and 32 and at present Order No. 32, to May 18, 1953, when the decision
their enforcement is still inhibited because of the of Rutter v. Esteban was promulgated, covering eight
enactment of Republic Act No. 342 and would years, two months and eight days. Obviously then,
continue to be unenforceable during the eight-year when resort was had extra-judicially to the foreclosure
period granted to prewar debtors to afford them an of the mortgage obligation, there was time to spare
opportunity to rehabilitate themselves, which in plain before prescription could be availed of as a defense.
language means that the creditors would have to
observe a vigil of at least twelve (12) years before WHEREFORE, the decision of January 27, 1960 is
they could affect a liquidation of their investment reversed and the suit of plaintiff filed August 10, 1959
dating as far back as 1941. This period seems to us dismissed. No costs.
unreasonable, if not oppressive. While the purpose of
Congress is plausible, and should be commended, Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal,
the relief accorded works injustice to creditors who Zaldivar, Castro, Teehankee, Barredo, Villamor, and
are practically left at the mercy of the debtors. Their Makasiar, JJ., concur.
hope to effect collection becomes extremely remote,
more so if the credits are unsecured. And the injustice
is more patent when, under the law the debtor is not
even required to pay interest during the operation of
the relief, unlike similar statutes in the United
States.   The conclusion to which the foregoing
10

considerations inevitably led was that as of the time of

adjudication, it was apparent that Republic Act No.
342 could not survive the test of validity. Executive
Order No. 32 should likewise be nullified. That before
the decision they were not constitutionally infirm was
admitted expressly. There is all the more reason then
to yield assent to the now prevailing principle that the
existence of a statute or executive order prior to its
being adjudged void is an operative fact to which legal
consequences are attached.

3. Precisely though because of the judicial recognition

that moratorium was a valid governmental response
to the plight of the debtors who were war sufferers,
this Court has made clear its view in a series of cases
impressive in their number and unanimity that during
the eight-year period that Executive Order No. 32 and
Republic Act No. 342 were in force, prescription did
not run. So it has been held from Day v. Court of
First 
Instance,   decided in 1954, to Republic v.
11

Hernaez,   handed down only last year. What is

12

deplorable is that as of the time of the lower court

decision on January 27, 1960, at least eight decisions
had left no doubt as to the prescriptive period being
tolled in the meanwhile prior to such adjudication of
invalidity.   Speaking of the opposite view entertained
13

by the lower court, the present Chief Justice, in Liboro

v. Finance and Mining Investments Corp.  has 14

categorized it as having been "explicitly and

consistently rejected by this Court."  15

The error of the lower court in sustaining plaintiff's suit

is thus manifest. From July 19, 1944, when her loan
matured, to July 13, 1959, when extra-judicial
foreclosure proceedings were started by appellant
Bank, the time consumed is six days short of fifteen
years. The prescriptive period was tolled however,

G.R. No. 104732 June 22, 1993
ROBERTO A. FLORES, DANIEL Y.
FIGUEROA, ROGELIO T. PALO,
DOMINGO A. JADLOC, CARLITO T.
CRUZ and MANUEL P.
REYES, Petitioner, vs. HON. FRANKLIN
M. DRILON, Executive Secretary, and
RICHARD J. GORDON, Respondents.
Isagani M. Jungco, Valeriano S. Peralta,
Miguel Famularcano, Jr. and Virgilio E.
Acierto for petitioners.
BELLOSILLO, J.:
The constitutionality of Sec. 13, par. (d),
of R.A. 7227, 1otherwise known as the
"Bases Conversion and Development Act
of 1992," under which respondent Mayor
Richard J. Gordon of Olongapo City was
appointed Chairman and Chief Executive
Officer of the Subic Bay Metropolitan
Authority (SBMA), is challenged in this
original petition with prayer for
prohibition, preliminary injunction and
temporary restraining order "to prevent
useless and unnecessary expenditures of
public funds by way of salaries and other
operational expenses attached to the
office . . . ." 2Paragraph (d) reads -
(d) Chairman administrator - The
President shall appoint a professional
manager as administrator of the Subic
Authority with a compensation to be
determined by the Board subject to the
approval of the Secretary of Budget, who
shall be the ex oficio chairman of the
Board and who shall serve as the chief
executive officer of the Subic
Authority: Provided, however, That for
the first year of its operations from the
effectivity of this Act, the mayor of the
City of Olongapo shall be appointed as
the chairman and chief executive officer
of the Subic Authority(emphasis
supplied).
Petitioners, who claim to be taxpayers,
employees of the U.S. Facility at the
Subic, Zambales, and officers and
members of the Filipino Civilian
Employees Association in U.S. Facilities
in the Philippines, maintain that
the proviso in par. (d) of Sec. 13 herein-
above quoted in italics infringes on the
following constitutional and statutory
provisions: (a) Sec. 7, first par., Art. IX-
B, of the Constitution, which states that
"[n]o elective official shall be eligible for
appointment or designation in any
capacity to any public officer or position
during his tenure," 3because the City
Mayor of Olongapo City is an elective
official and the subject posts are public
offices; (b) Sec. 16, Art. VII, of the
Constitution, which provides that "[t]he
President shall . . . . appoint all other
officers of the Government whose
appointments are not
otherwise provided for by law, and those
whom he may be authorized by law to
appoint", 4since it was Congress through
the questioned proviso and not the
President who appointed the Mayor to
the subject posts; 5and, (c) Sec. 261,
par. (g), of the Omnibus Election Code,
which says:
Sec. 261. Prohibited Acts. - The following
shall be guilty of an election offense: . . .
(g) Appointment of new employees,
creation of new position, promotion, or
giving salary increases. - During the
period of forty-five days before a regular
election and thirty days before a special
election, (1) any head, official or
appointing officer of a government office,
agency or instrumentality, whether
national or local, including government-
owned or controlled corporations, who
appoints or hires any new employee,
whether provisional, temporary or
casual, or creates and fills any new
position, except upon prior authority of
the Commission. The Commission shall
not grant the authority sought unless it is
satisfied that the position to be filled is
essential to the proper functioning of the
office or agency concerned, and that the
position shall not be filled in a manner
that may influence the election. As an
exception to the foregoing provisions, a
new employee may be appointed in case
of urgent need: Provided, however, That
notice of the appointment shall be given
to the Commission within three days
from the date of the appointment. Any
appointment or hiring in violation of this
provision shall be null and void. (2) Any
government official who promotes, or
gives any increase of salary or
remuneration or privilege to any
government official or employee,
including those in government-owned or
controlled corporations . . . .
for the reason that the appointment of
respondent Gordon to the subject posts
made by respondent Executive Secretary
on 3 April 1992 was within the prohibited
45-day period prior to the 11 May 1992
Elections.chanroblesvirtualawlibrary chanrobles virtual law library
The principal question is whether
the proviso in Sec. 13, par. (d), of R.A.
7227 which states, "Provided,
however, That for the first year of its
operations from the effectivity of this
Act, the mayor of the City of Olongapo
shall be appointed as the chairman and
chief executive officer of the Subic
Authority," violates the constitutional
proscription against appointment or
designation of elective officials to other
government posts. chanroblesvirtualawlibrary chanrobles virtual law library
In full, Sec. 7 of Art. IX-B of the
Constitution provides:
No elective official shall be eligible for
appointment or designation in any
capacity to any public office or position
during his tenure. chanroblesvirtualawlibrary chanrobles virtual law library
Unless otherwise allowed by law or by
the primary functions of his position, no
appointive official shall hold any other
office or employment in the Government
or any subdivision, agency or
instrumentality thereof, including
government-owned or controlled
corporations or their subsidiaries.
The section expresses the policy against
the concentration of several public
positions in one person, so that a public
officer or employee may serve full-time
with dedication and thus be efficient in
the delivery of public services. It is an
affirmation that a public office is a full-
time job. Hence, a public officer or
employee, like the head of an executive
department described in Civil Liberties
Union v. Executive Secretary, G.R. No.
83896, and Anti-Graft League of the
Philippines, Inc. v. Philip Ella C. Juico, as
Secretary of Agrarian Reform, G.R. No.
83815, 6". . . . should be allowed to
attend to his duties and responsibilities
without the distraction of other
governmental duties or employment. He
should be precluded from dissipating his
efforts, attention and energy among too
many positions of responsibility, which
may result in haphazardness and
inefficiency . . . ."
chanrobles virtual law library
Particularly as regards the first (2) paragraphs of Sec. 7, Art. 
paragraph of Sec. 7, "(t)he basic idea IX-B, of the Constitution. While the
really is to prevent a situation where a second paragraph authorizes holding of
local elective official will work for his multiple offices by an appointive official
appointment in an executive position in when allowed by law or by the primary
government, and thus neglect his functions of his position, the first
constituents . . . ." 7 chanrobles virtual law library paragraph appears to be more stringent
by not providing any exception to the
In the case before us, the rule against appointment or designation
subject proviso directs the President to of an elective official to the government
appoint an elective official, i.e., the post, except as are particularly
Mayor of Olongapo City, to other recognized in the Constitution itself, e.g.,
government posts (as Chairman of the the President as head of the economic
Board and Chief Executive Officer of and planning agency; 9the Vice-President,
SBMA). Since this is precisely what the who may be appointed Member of the
constitutional proscription seeks to Cabinet; 10and, a member of Congress
prevent, it needs no stretching of the who may be designated ex
imagination to conclude that officio member of the Judicial and Bar
the proviso contravenes Sec. 7, first Council. 11chanrobles virtual law library

par., Art. IX-B, of the Constitution. Here,

the fact that the expertise of an elective The distinction between the first and
official may be most beneficial to the second paragraphs of Sec. 7, Art. IX-B,
higher interest of the body politic is of no was not accidental when drawn, and not
moment. chanroblesvirtualawlibrary chanrobles virtual law library without reason. It was purposely sought
by the drafters of the Constitution as
It is argued that Sec. 94 of the Local shown in their deliberation, thus -
Government Code (LGC) permits the
appointment of a local elective official to MR. MONSOD. In other words, what then
another post if so allowed by law or by Commissioner is saying, Mr. Presiding
the primary functions of his office. 8But, Officer, is that the prohibition is more
the contention is fallacious. Section 94 of strict with respect to elective officials,
the LGC is not determinative of the because in the case of appointive
constitutionality of Sec. 13, par. (d), of officials, there may be a law that will
R.A. 7227, for no legislative act can allow them to hold other positions. chanroblesvirtualawlibrary chanrobles virtual law library

prevail over the fundamental law of the

land. Moreover, since the MR. FOZ. Yes, I suggest we make that
constitutionality of Sec. 94 of LGC is not difference, because in the case of
the issue here nor is that section sought appointive officials, there will be certain
to be declared unconstitutional, we need situations where the law should allow
not rule on its validity. Neither can we them to hold some other positions. 12 chanrobles virtual law library

invoke a practice otherwise

unconstitutional as authority for its The distinction being clear, the
validity.
chanroblesvirtualawlibrary chanrobles virtual law library
exemption allowed to appointive officials
in the second paragraph cannot be
In any case, the view that an elective extended to elective officials who are
official may be appointed to another post governed by the first paragraph. chanroblesvirtualawlibrary chanrobles virtual law library

if allowed by law or by the primary

functions of his office, ignores the clear- It is further argued that the SBMA posts
cut difference in the wording of the two are merely ex officio to the position of
Mayor of Olongapo City, hence, an
excepted circumstance, citing Civil
Liberties Union v. Executive
Secretary, 13where we stated that the
prohibition against the holding of any
other office or employment by the
President, Vice-President, Members of
the Cabinet, and their deputies or
assistants during their tenure,
as provided in Sec. 13, Art. VII, of the
Constitution, does not comprehend
additional duties and functions required
by the primary functions of the officials
concerned, who are to perform them in
an ex officio capacity as provided by law,
without receiving any additional
compensation therefor. chanroblesvirtualawlibrary chanrobles virtual law library
This argument is apparently based on a
wrong premise. Congress did not
contemplate making the subject SBMA
posts as ex officio or automatically
attached to the Office of the Mayor of
Olongapo City without need of
appointment. The phrase "shall be
appointed" unquestionably shows the
intent to make the SBMA posts
appointive and not merely adjunct to the
post of Mayor of Olongapo City. Had it
been the legislative intent to make the
subject positions ex officio, Congress
would have, at least, avoided the word
"appointed" and, instead, "ex officio"
would have been used. 14
Even in the Senate deliberations, the
Senators were fully aware that
subject proviso may contravene Sec. 7,
first par., Art. IX-B, but they
nevertheless passed the bill and decided
to have the controversy resolved by the
courts. Indeed, the Senators would not
have been concerned with the effects of
Sec. 7, first par., had they considered
the SBMA posts as ex officio.
Cognizant of the complication that may
arise from the way the
subject proviso was stated, Senator
Rene Saguisag remarked that "if the
Conference Committee just said "the
Mayor shall be the Chairman" then that
should foreclose the issue. It is a
legislative choice." 15The Senator took a
view that the constitutional proscription
against appointment of elective officials
may have been sidestepped if Congress
attached the SBMA posts to the Mayor of
Olongapo City instead of directing the
President to appoint him to the post.
Without passing upon this view of
Senator Saguisag, it suffices to state that
Congress intended the posts to be
appointive, thus nibbling in the bud the
argument that they are ex officio. chanroblesvirtualawlibrary chanrobles virtual law library
The analogy with the position of
Chairman of the Metro Manila Authority
made by respondents cannot be applied
to uphold the constitutionality of the
challenged proviso since it is not put in
issue in the present case. In the same
vein, the argument that if no elective
official may be appointed or designated
to another post then Sec. 8, Art. IX-B, of
the Constitution allowing him to receive
double compensation 16would be useless,
is non sequitur since Sec. 8 does not
affect the constitutionality of the
subject proviso. In any case, the Vice-
President for example, an elective official
who may be appointed to a cabinet post
chanrobles virtual law library under Sec. 3, Art. VII, may receive the
compensation attached to the cabinet
position if specifically authorized by
law.chanroblesvirtualawlibrary chanrobles virtual law library
Petitioners also assail the legislative
encroachment on the appointing
authority of the President. Section 13,
par. (d), itself vests in the President the
power to appoint the Chairman of the
Board and the Chief Executive Officer of
chanroblesvirtualawlibrary chanrobles virtual law library SBMA, although he really has no choice
under the law but to appoint the Mayor
of Olongapo City. chanroblesvirtualawlibrary chanrobles virtual law library
As may be defined, an "appointment" is
"[t]he designation of a person, by the officer, it (Congress) cannot at the same
person or persons having authority time limit the choice of the President to
therefor, to discharge the duties of some only one candidate. Once the power of
office or trust," 17or "[t]he selection or appointment is conferred on the
designation of a person, by the person or President, such conferment necessarily
persons having authority therefor, to fill carries the discretion of whom to
an office or public function and discharge appoint. Even on the pretext of
the duties of the same. 18In his prescribing the qualifications of the
treatise, Philippine Political  officer, Congress may not abuse such
Law, 19Senior Associate Justice Isagani A. power as to divest the appointing
Cruz defines appointment as "the authority, directly or indirectly, of his
selection, by the authority vested with discretion to pick his own choice.
the power, of an individual who is to Consequently, when the qualifications
exercise the functions of a given office."
law library
chanrobles virtual prescribed by Congress can only be met
by one individual, such enactment
Considering that appointment calls for a effectively eliminates the discretion of
selection, the appointing power the appointing power to choose and
necessarily exercises a discretion. constitutes an irregular restriction on the
According to Woodbury, power of appointment. 24 chanrobles virtual law library

J., 20"the choice of a person to fill an

office constitutes the essence of his In the case at bar, while Congress willed
appointment," 21and Mr. Justice Malcolm that the subject posts be filled with a
adds that an "[a]ppointment to office is presidential appointee for the first year
intrinsically an executive act involving of its operations from the effectivity of
the exercise of R.A. 7227, the proviso nevertheless
discretion." 22In Pamantasan ng Lungsod limits the appointing authority to only
ng Maynila v. Intermediate Appellate one eligible, i.e., the incumbent Mayor of
Court  23we held: Olongapo City. Since only one can qualify
for the posts in question, the President is
The power to appoint is, in essence, precluded from exercising his discretion
discretionary. The appointing power has to choose whom to appoint. Such
the right of choice which he may exercise supposed power of appointment, sans
freely according to his judgment, the essential element of choice, is no
deciding for himself who is best qualified power at all and goes against the very
among those who have the necessary nature itself of appointment. chanroblesvirtualawlibrary chanrobles virtual law library

qualifications and eligibilities. It is a

prerogative of the appointing power . . . . While it may be viewed that
the proviso merely sets the qualifications
Indeed, the power of choice is the heart of the officer during the first year of
of the power to appoint. Appointment operations of SBMA, i.e., he must be the
involves an exercise of discretion of Mayor of Olongapo City, it is manifestly
whom to appoint; it is not a ministerial an abuse of congressional authority to
act of issuing appointment papers to the prescribe qualifications where only one,
appointee. In other words, the choice of and no other, can qualify. Accordingly,
the appointee is a fundamental while the conferment of the appointing
component of the appointing power. chanroblesvirtualawlibrary chanrobles virtual law library
power on the President is a perfectly
valid legislative act, the proviso limiting
Hence, when Congress clothes the his choice to one is certainly an
President with the power to appoint an encroachment on his prerogative. chanroblesvirtualawlibrary chanrobles virtual law library
Since the ineligibility of an elective disqualification or lack of eligibility. This
official for appointment remains all provision should not be confused with
throughout his tenure or during his Sec. 13, Art. VI, of the Constitution
incumbency, he may however resign first where "(n)o Senator or Member of the
from his elective post to cast off the House of Representatives may hold any
constitutionally-attached disqualification other office or employment in the
before he may be considered fit for Government . . . during his term without
appointment. The deliberation in the forfeiting his seat . . . ." The difference
Constitutional Commission is between the two provisions is significant
enlightening: in the sense that incumbent national
legislators lose their elective posts only
MR. DAVIDE. On Section 4, page 3, line after they have been appointed to
8, I propose the substitution of the word another government office, while other
"term" with TENURE. chanroblesvirtualawlibrary chanrobles virtual law library
incumbent elective officials must first
resign their posts before they can be
MR. FOZ. The effect of the proposed appointed, thus running the risk of losing
amendment is to make possible for one the elective post as well as not being
to resign from his position. chanroblesvirtualawlibrary chanrobles virtual law library
appointed to the other post. It is
therefore clear that ineligibility is not
MR. DAVIDE. Yes, we should allow that directly related with forfeiture of office. ".
prerogative. chanroblesvirtualawlibrary chanrobles virtual law library
. . . The effect is quite different where it
is expressly provided by law that a
MR. FOZ. Resign from his position to person holding one office shall be
accept an executive position. chanroblesvirtualawlibrary chanrobles virtual law library

ineligible to another. Such a provision is

held to incapacitate the incumbent of an
MR. DAVIDE. Besides, it may turn out in office from accepting or holding a second
a given case that because of, say, office (State ex rel. Van Antwerp v
incapacity, he may leave the service, but Hogan, 283 Ala. 445, 218 So 2d 258;
if he is prohibited from being appointed McWilliams v Neal, 130 Ga 733, 61 SE
within the term for which he was elected, 721) and to render his election or
we may be depriving the government of appointment to the latter office void
the needed expertise of an individual. 25
law library
chanrobles virtual

(State ex rel. Childs v Sutton, 63 Minn

147, 65 NW 262. Annotation: 40 ALR
Consequently, as long as he is an 945) or voidable (Baskin v State, 107
incumbent, an elective official remains Okla 272, 232 p 388, 40 ALR
ineligible for appointment to another 941)." 26"Where the constitution, or
public office. chanroblesvirtualawlibrary chanrobles virtual law library

statutes declare that persons holding one

office shall be ineligible for election or
Where, as in the case of respondent appointment to another office, either
Gordon, an incumbent elective official generally or of a certain kind, the
was, notwithstanding his ineligibility, prohibition has been held to incapacitate
appointed to other government posts, he the incumbent of the first office to hold
does not automatically forfeit his elective the second so that any attempt to hold
office nor remove his ineligibility imposed the second is void (Ala. - State ex rel.
by the Constitution. On the contrary, Van Antwerp v. Hogan, 218 So 2d 258,
since an incumbent elective official is not 283 Ala 445)." 27 chanrobles virtual law library

eligible to the appointive position, his

appointment or designation thereto As incumbent elective official, respondent
cannot be valid in view of his Gordon is ineligible for appointment to
the position of Chairman of the Board deliberations of S.B. 1648, precursor of
and Chief Executive of SBMA; hence, his R.A. 7227, when he articulated -
appointment thereto pursuant to a
legislative act that contravenes the . . . . (much) as we would like to have
Constitution cannot be sustained. He the present Mayor of Olongapo City as
however remains Mayor of Olongapo the Chief Executive of this Authority that
City, and his acts as SBMA official are not we are creating; (much) as I, myself,
necessarily null and void; he may be would like to because I know the
considered a de facto officer, "one whose capacity, integrity, industry and
acts, though not those of a lawful officer, dedication of Mayor Gordon; (much) as
the law, upon principles of policy and we would like to give him this terrific,
justice, will hold valid so far as they burdensome and heavy responsibility, we
involve the interest of the public and cannot do it because of the constitutional
third persons, where the duties of the prohibition which is very clear. It says:
office were exercised . . . . under color of "No elective official shall be appointed or
a known election or appointment, void designated to another position in any
because the officer was not eligible, or capacity." 29 chanrobles virtual law library

because there was a want of power in

the electing or appointing body, or by For, indeed, "a Constitution must be firm
reason of some defect or irregularity in and immovable, like a mountain amidst
its exercise, such ineligibility, want of the strife of storms or a rock in the ocean
power or defect being unknown to the amidst the raging of the waves." 30One of
public . . . . [or] under color of an the characteristics of the Constitution is
election, or appointment, by or pursuant permanence, i.e., "its capacity to resist
to a public unconstitutional law, before capricious or whimsical change dictated
the same is adjudged to be such (State not by legitimate needs but only by
vs. Carroll, 38 Conn., 499; Wilcox vs. passing fancies, temporary passions or
Smith, 5 Wendell [N.Y.], 231; 21 Am. occasional infatuations of the people with
Dec., 213; Sheehan's Case, 122 Mass, ideas or personalities . . . . Such a
445, 23 Am. Rep., 323)." 28 chanrobles virtual law library
Constitution is not likely to be easily
tampered with to suit political
Conformably with our ruling in Civil expediency, personal ambitions or ill-
Liberties Union, any and all per diems, advised agitation for change." 31 chanrobles virtual law library

allowances and other emoluments which

may have been received by respondent Ergo, under the Constitution, Mayor
Gordon pursuant to his appointment may Gordon has a choice. We have no
be retained by him. chanroblesvirtualawlibrary chanrobles virtual law library
choice.chanroblesvirtualawlibrary chanrobles virtual law library

The illegality of his appointment to the WHEREFORE, the proviso in par. (d),

SBMA posts being now evident, other Sec. 13, of R.A. 7227, which states:
matters affecting the legality of the ". . . Provided, however, That for the first
questioned proviso as well as the year of its operations from the effectivity
appointment of said respondent made of this Act, the Mayor of the City of
pursuant thereto need no longer be Olongapo shall be appointed as the
discussed.chanroblesvirtualawlibrary chanrobles virtual law library
chairman and chief executive officer of
the Subic Authority," is declared
In thus concluding as we do, we can only unconstitutional; consequently, the
share the lament of Sen. Sotero Laurel appointment pursuant thereto of the
which he expressed in the floor Mayor of Olongapo City, respondent
Richard J. Gordon, is INVALID, hence
NULL and VOID. chanroblesvirtualawlibrary chanrobles virtual law library

However, all per diems, allowances and

other emoluments received by
respondent Gordon, if any, as such
Chairman and Chief Executive Officer
may be retained by him, and all acts
otherwise legitimate done by him in the
exercise of his authority as officer de
facto of SBMA are hereby UPHELD. chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED. G.R. No. 102232 March 9, 1994

Narvasa, C.J., Cruz, Feliciano, Bidin, VIOLETA ALDOVINO, ALI ALIBASA, FELIX
Griño-Aquino, Regalado, Davide, Jr., BALINO, DIONISIO BALLESTEROS, JOSE N.
Romero, Nocon, Melo and Quiason, JJ., BALEIN, JR., FREDDIE CAUTON, JANE CORROS,
ROBERTO CRUZ, TRINIDAD DACUMOS,
concur. chanroblesvirtualawlibrary chanrobles virtual law library

ANGELITA DIMAPILIS, ANDREA ESTONILO,

EFREN FONTANILLA, MARY PAZ FRIGILLANA,
Padilla, J., is on leave. MANUEL HENSON, SAMUEL HIPOL, MERLENE
IBALIO, MAGDALENA JAMILLA, ALEXANDER
JUSTINIANI, ROMULO MIRADOR, JULIO
MIRAVITE, DANTE NAGTALON, CLARITA
NAMUCO, ALICIA ORBITA, ANGELITA PUCAN,
MYRNA P. SALVADOR, LIBRADA TANTAY, and
ARACELI J. DE VEYRA, petitioners, 
vs.
SECRETARY RAFAEL ALUNAN III, DEPARTMENT
OF TOURISM and SECRETARY GUILLERMO M.
CARAGUE, DEPARTMENT OF BUDGET AND
MANAGEMENT, respondents.

JOSEPHINE G. ANDAYA, ROSALINDA T.

ATIENZA, JOSE M. BALDOVINO, JR., ASUNCION
C. BRIONES, RIZALINA P. ESPIRITU, MARIBELLE
A. GARCIA, ABDULIA T. LANDINGIN, FLORITA O.
OCAMPO, ROLANDO SISON, LOURDES V.
TAMAYO, and ROLANDO VALDEZ, intervenors.

ERLINDA PIZA, ELEONOR SAGNIT, FIDEL

SEVIDAL, CONCEPCION TIMARIO, ELOISA
ALONZO, ANGELITO DELA CRUZ, ROLANDO C.
CAGASCA, LYNIE ARCENAS, MARIA EMMA
JASMIN, ALFONSO ANGELES, MACACUNA
PANGANDAMAN, ROSALITA MAUNA, ROMEO
PADILLA, ASCENSION PADILLA, CRISPULO
PADILLA, VIRGILIO DEJERO, MEDARDO ILAO,
ROSITA SOMERA, ARMANDO CRUZ, CATALINO
DABU, FRANCISCO VILLARAIZ, NORMA
JUMILLA, KENNEDY BASA, and ARMANDO
MENDOZA, intervenors.

ANICITA S. BALUYUT, ANTONINO D. EDRALIN,

EVELYN A. ENRIQUEZ, MA. VICTORIA L.
JACOBO, DANIEL M. MANAMTAM, JESSIE C.
MANRIQUE, ENCARNACION T. RADAZA, and
MARIO P. RUIVIVAR, intervenors.
AMOR T. MEDINA and FELIX L.
POLIQUIT, intervenors.
Leven S. Puno for petitioners.
The Solicitor General for respondents.
BELLOSILLO, J.:
ASSERTING that their plight is similar to petitioners'
in Mandani v. Gonzales,  and in the consolidated
1
cases of Abrogar v. Garrucho, Jr.,
and Arnaldo v. Garrucho, Jr.,   herein petitioners and
2
intervenors seek reinstatement and payment of back
wages.
Section 29 of Executive Order No. 120, which took
effect upon its approval on 30 January 1987,
reorganizing the then Ministry of Tourism, provides
that incumbents whose positions are not included in
the new position structure and staffing pattern or who
are not reappointed are deemed separated from the
service. Pursuant thereto, the then Ministry of Tourism
(MOT, now Department of Tourism, DOT) issued
various office orders and memoranda declaring all
positions thereat vacant,  and effecting the separation
3
of many of its employees,  which led to the Mandani,
4
Abrogar and Arnaldo cases, as well as the instant
petition.
In Mandani, we declared null and void all office orders
and memoranda issued pursuant to E.O. 120 and
directed "public respondents or their successors . . .
to immediately restore the petitioners to their positions
without loss of seniority rights and with back salaries
computed under the new staffing pattern from the
dates of their invalid terminations at rates not lower
than their former salaries." 5
In Abrogar and Arnaldo, we ordered the reinstatement
of petitioners "to their former positions without loss of
seniority rights and with back salaries computed
under the new staffing pattern from the dates of their
invalid dismissals at rates not lower than their former
salaries, provided, however, that no supervening
event shall have occured which would otherwise
disqualify them for such reinstatement, and provided,
further, that whatever benefits they may have
received from the Government by reason of their
termination shall be reimbursed through reasonable
salary deduction."6
Herein petitioners and intervenors claiming that they
should not be deprived of the relief granted to their
former co-employees plead for reinstatement "without
loss of seniority rights and with back salaries
computed under the new staffing pattern from dates of
their invalid termination at rates not lower than their
former salaries." 7
Decisive in this recourse is the determination of
whether the separation of herein petitioners and
intervenors from service was pursuant to office orders
and memoranda declared void in Mandani.
Except for petitioners Samuel Hipol, Jane Corros and
Myrna Salvador, intervenors Concepcion Timario,
Efren Fontanilla, Ascension Padilla and Evelyn
Enriquez, public respondents do not dispute that
petitioners and intervenors were unseated from the
then Ministry of Tourism, pursuant to office orders and
memoranda issued under E.O. No. 120. Public
respondents nevertheless pray for the denial of the
petition not only because petitioners and intervenors
failed to exhaust administrative remedies and that
their claims are barred by laches, but also in view of
the disruption of the present organizational set-up if
reinstatement is directed.
The Solicitor General argues that while petitioners
and intervenors (except petitioners Samuel Hipol,
Jane Corros and Efren Fontanilla) were dismissed
contemporaneously with their colleagues
in Mandani (filed 3 June 1987 and decided 4 June
1990), Abrogar (filed 31 October 1990 and decided
6 August 1991) and Arnaldo (filed 7 January 1991 and
decided 6 August 1991), they filed this petition and
the interventions only in October 1991, and February,
March, May and July 1992, or more than four (4)
years later, hence, laches has set in. In reply,
petitioners and intervenors explain —
. . . since the time these DOT
employees were illegally dismissed in
May, 1987, most of them returned to
the far away provinces of their origin
because they became jobless. It was
only by the slow and unreliable
communication of word of mouth that
they came to know much later on that
they are (sic) entitled to be reinstated
to the DOT . . . 8
The doctrine of laches is "principally a question of
inequity of permitting a claim to be enforced, this
inequity being founded on some change in . . . the
relation of parties."  In the case at bar, equity, if ever
9
invoked, must lean in favor of petitioners and
intervenors who were unjustly injured by public
respondents' unlawful acts. The prejudice from the
high-handed violation of the rights of petitioners and
intervenors resulting in their loss of employment is far
more serious than the inconvenience to public
respondents in rectifying their own mistakes.
Moreover, petitioners and intervenors cannot be
deemed to have slept on their rights considering, as
we should, the following unrebutted allegations in the
main petition:
7. Petitioners protested their illegal
termination from the DOT. Many of
them questioned their termination with
the Department of Labor and
Employment where they filed a
Complaint against the DOT and its top
officials for illegal dismissal. . . . Some
of them questioned their illegal
termination before the Civil Service
Commission.
8. Many of petitioners joined a picket
and demonstration held by illegally
terminated employees of the DOT
before its office at the DOT building at
the Luneta Park.
9. Petitioners were forced to receive
their separation or retirement benefits
from the DOT, but all under protest.
The others continued to fight their
cases with the Department of Labor
and Employment even if they got their
separation and/or retirement benefits.
xxx xxx xxx
11. After the finality of this Decision
(Mandani) . . . many other terminated
employees of the DOT wrote to then
DOT Secretary Peter D. Garrucho, Jr.,
as the successor-in-interest of former
Sec. Jose U. Gonzales, and DBM
Secretary Guillermo Carague, asking
that following the Decision in
this Mandani vs. Gonzalez case and
being similarly situated as the twenty-
eight (28) petitioners therein, that they
be reinstated to their former or
equivalent positions in the DOT and/or
to be paid their back wages. Then . . .
DOT Secretary Garrucho and DBM
Sec. Carague never responded to
these letters and did not reinstate
and/or pay any of their back wages.
xxx xxx xxx
16. Following the Decision of this
Honorable Court in the Mandani
vs. Gonzalez case and its Resolution
in the consolidated cases of Abrogar
vs. Garrucho and Arnaldo
vs. Garrucho, petitioners made
representations with the DOT to be
reinstated and/or paid their back
wages . . . . 
10
Neither could petitioners and intervenors be faulted
for not joining in the previous petitions because, as we
held in Cristobal v. Melchor (No. L- 43203, 29 July
1977; 78 SCRA 175, 183, 187) —
More importantly, Cristobal could be
expected — without necessarily
spending time and money by going to
court — to relie upon the outcome of
the case filed by his co-employees to
protect his interests considering the
similarity of his situation to that of the
plaintiffs therein and the identical relief
being sought. On this point, We find a
statement of Justice Louis Brandeis of
the United States Supreme Court in
Southern Pacific vs. Bogert, relevant
and persuasive, and We quote;
The essence of laches is not merely
lapse of time. It is essential that there
be also acquiescence in the alleged
wrong or lack of diligence in seeking a
remedy. Here plaintiffs, or others
representing them, protested . . . and
ever since they have . . . persisted in
the diligent pursuit of a
remedy . . . Where the cause of action
is of such a nature that a suit to
enforce it would be brought on behalf,
not only of the plaintiff, but of all
persons similarly situated, it is not
essential that each such person
should intervened (sic) in the suit
brought in order that he be deemed
thereafter free from the laches which
bars those who sleep on their
rights (citations omitted).
xxx xxx xxx
This Court, applying the principle of
equity, need not be bound by the rigid
application of the law, but rather its
action should conform to the
conditions or exigencies to a given
problem or situation in order to grant a
relief that will serve the ends of justice.
 To paraphrase then Chief Justice
John Edwin Marshall of the United
States Supreme Court, let us to (do)
complete justice and not do justice by
halves ("The court of equity in all
cases delights to do complete justice
and not by halves." Marshall, C. J. —
Knight vs. Knight, 3 P. Wms. 331,
334; Corbet v.Johnson, 1 Brock, 77,
81 — both cited in Hefner, et
al. vs. Northwestern Mutual Life
Insurance Co., 123 U.S., 309, 313).
We emphasize that prescription was never raised
here as an issue; at most, it is deemed waived.
In Fernandez v.Grolier International, Inc.,   we stated:
11
In the case of Director of Lands
v. Dano (96 SCRA 161, 165), this
Court held that "inasmuch as
petitioner had never pleaded the
statute of limitations, he is deemed to
have waived the same".
In the cited case of Directors of Lands v. Dano, the
Director of Lands, who was similarly situated as public
respondents herein who represent the Government,
was deemed to have waived the defense of
prescription "inasmuch as petitioner had never
pleaded the statute of limitations."
The matter of prescription, we reiterate, may not be
considered at this late stage, not only because it was
never raised and therefore now foreclosed, but more
importantly, because it must yield to the higher
interest of justice. Incidentally, it is only in the dissent
that the question of prescription is introduced. Not
even the Government raised it.
In 1977, we in fact relaxed the rule on prescription
in Cristobal v. Melchor  to give way to a determination
12
of the case on the merits where, like in this case, "[i]t
was an act of the government through its responsible
officials . . . which contributed to the alleged delay in
the filing of . . . complaint for reinstatement." But, we
need not go back that far. On 15 August 1991, the
Court En Banc granted the related petition in
intervention of Alberto A. Peralta,
et al.,   in the consolidated cases of Abrogar
13
v. Garrucho, and Arnaldo v. Garrucho, even if filed on
1 August 1991 or two months after the four-year
prescriptive period, which lapsed on the 14th and 28th
of May 1991. As we ruled in Cristobal v. Melchor,   "it 14
is indeed the better rule that courts, under the
principle of equity, will not be guided or bound strictly
by the statute of limitations or the doctrine of laches
when to do so manifest wrong and injustice would
result."
The principle that prescription does not run against
the State, which contemplates a situation where a
private party cannot defeat the claim of the State by
raising the defense of prescription, is inapplicable
because in this case the private parties are the ones
filing a suit against the State. Consequently, we
reiterate our pronouncement in Fernandez v. Grolier
International, Inc.,  that "[i]t is true that there are
15
exceptions to the rule that an action will not be
declared to have prescribed if prescription is not
expressly invoked (Garcia vs. Mathis, 100 SCRA
250). However, where considerations of substantial
justice come in (as in this case when the very
employment, and therefore the lifeblood, of each
petitioner/intervenor is involved), it is better to resolve
the issues on the basic merits of the case instead of
applying the rule on prescription which the private
respondent waived when it was not pleaded."
Anyhow, it was public respondents who created the
problem of petitioners and intervenors by illegally
abolishing their positions and terminating their
services in outrageous disregard of the basic
protection accorded civil servants, hence our repeated
pronouncement that it was unconstitutional.
An unconstitutional act is not a law; it confers no
rights; it imposes no duties; it affords no protection; it
creates no office; it is, in legal contemplation,
inoperative, as if it had not been passed. It is
therefore stricken from the statute books and
considered never to have existed at all. Not only the
parties but all persons are bound by the declaration of
unconstitutionality which means that no one may
thereafter invoke it nor may the courts be permitted to
apply it in subsequent cases. It is, in other words, a
total nullity.   Plainly, it was as if petitioners and
16
intervenors were never served their termination orders
and, consequently, were never separated from the
service, The fact that they were not able to assume
office and exercise their duties is attributable to the
continuing refusal of public respondents to take them
in unless they first obtained court orders, perhaps, for
government budgetary and accounting purposes.
Under the circumstances, the more prudent thing that
public respondents could have done upon receipt of
the decision in Mandani, if they were earnest in
making amends and restoring petitioners and
intervenors to their positions, was to inform the latter
of the nullification of their termination orders and to
return to work and resume their functions. After all,
many of them were supposed to be waiting for
instructions from the DOT because in their termination
orders it promised to directly contact them by
telephone, telegram or written notice as soon as funds
for their separation would be available.  17
Furthermore, the representations to DOT made by
petitioners and intervenors for their reinstatement
partook of the nature of an administrative proceeding,
and public respondents also failed to raise the issue
of prescription therein. As already adverted to, that
issue was never raised before us. In reciting the
alleged instances of delay in bringing up this suit, the
Solicitor General simply referred to laches, not
prescription. Since this case is an original action, and
if we treat the petition and interventions as ordinary
complaints, the failure of public respondents to raise
the issue of prescription in their comments cannot be
interpreted any less than a waiver of that defense.
For, defenses and objections not pleaded either in a
motion to dismiss or in the answer are deemed
waived, except the failure to state a cause of action
which may be alleged in a later pleading, if one is
permitted.  18
Above all, what public respondents brought up was
the doctrine of laches, not prescription; and laches is
different from prescription. The defense of laches
applies independently of prescription. While
prescription is concerned with the fact of delay, laches
is concerned with the effect of delay. Prescription is a
matter of time; laches is a question of inequity of
permitting a claim to be enforced, this inequity being
founded on some change in the condition of the
property or the relation of the parties. Prescription is
statutory; laches is not. Laches applies in equity,
whereas prescription applies at law. Prescription is
based on fixed time, laches is not.   In any case, it
19
can be said that the prescriptive period was tolled with
the filing of the termination cases before the
Department of Labor and Employment and the Civil
Service Commission, the pendency of which is
acknowledged in the Comment and Memorandum of
public respondents.
Incidentally, even the picketing of the premises and
the placards demanding their immediate
reinstatement could not be any less than written
demands sufficient to interrupt the period of
prescription. As we noted earlier, "[a]fter the finality of
this Decision (Mandani) . . . many other terminated
employees of the DOT wrote to then DOT Secretary
Peter D. Garrucho, Jr . . . and DBM Secretary
Guillermo Carague asking that following the Decision
in this Mandani vs. Gonzalez case and being similarly
situated as the twenty-eight (28) petitioners
therein . . . they be reinstated to their former or
equivalent positions in the DOT and/or to be paid their
back wages." But "[t]hen . . . DOT Secretary Garrucho
and DBM Sec. Carague never responded to these
letters,"   so that it may be said that the period that
20
was interrupted never started to run again against
petitioner and intervenors.
The requirement of prior resort to administrative
remedies is not an absolute rule and this did not bar
direct access to this Court in the analogous cases
of Dario v. Mison,   and Mandani v. Gonzalez,   thus
21 22
—
The Court disregards the questions
raised as to procedure, failure to
exhaust administrative remedies, the
standing of certain parties to sue (this
was raised by the Civil Service
Commission in G.R. No. 86241, and
failure to exhaust administrative
remedies was raised in G.R. Nos.
81954 and 81917 by the Solicitor
General), and other technical
objections, for two reasons, "[b]ecause
of the demands of public interest,
including the need for stability in the
public service" (Sarmiento III v. Mison,
G.R. No. 79974, December 17, 1987,
153 SCRA 549, 551-552) and
because of the serious implications of
these cases on the administration of
the Philippine civil service and the
rights of public servants.
On the argument that existing organizational set-up
would be disrupted if reinstatement be directed, we
need only reiterate our 18 October 1990 Resolution
in Mandani that —
An erring head of a Department,
Bureau, or Office cannot avoid
reinstatement, payment of back pay,
and other acts of compliance with the
orders of this Court by interposing
changes effected subsequent to his
unlawful acts and claiming that such
changes make it difficult to obey this
Court's orders.
The basic principle to be applied
whenever the Court declares an
administrative official to have acted in
an unlawful manner is for that official
to undo the harmful effects of his
illegal act and to accord to the
aggrieved parties restoration or
restitution in good faith to make up for
the deprivations which may have been
suffered because of his act. 23
Petitioners and intervenors, who are similarly situated
as their counterparts
in Mandani, Abrogar and Arnaldo, deserve no less
than equal treatment.
The Solicitor General takes exception to petitioner
Samuel Hipol who was separated from the service
under an order of 19 May 1986 issued pursuant to
Sec. 2, Art. III, of Proclamation No. 3, and not under
E.O. No. 120.  In reply, petitioner Hipol admits that he
24
was "in the process of working for his
reinstatement/reappointment at the DOT when . . . all
positions thereat were declared vacant . . ."   Since
his separation from service was not under void orders
issued pursuant to E.O. No. 120 and, worse, he was
not even an incumbent when E.O. No. 120 was
issued, Hipol could not be considered as in the same
situation as the petitioners
in Mandani, Abrogar and Arnaldo.
A parallel case is that of intervenor Concepcion
Timario who, according to the Solicitor General,
resigned effective 28 May 1987 and was not
separated under any of the invalid orders.   Intervenor
26
Timario however contends that she is entitled to relief
because her courtesy resignation was accepted on 9
June 1987 or during the period positions were
declared vacant pursuant to MOT Office Order No. 9-
87.   It is significant to note that Timario's letter of
27
resignation cited "professional reasons" as cause for
her abdication  which, obviously, pertains to the
28
nature of her work. Moreover, conspicuously absent is
the customary order requiring the filing of courtesy
resignations. Timario may not be permitted to
characterize, by way of self-serving assertions, that
her resignation was merely a courtesy resignation
pursuant to any of the voided office orders or
memoranda.
The claim of the Solicitor General that petitioners
Jane Corros and Efren Fontanilla were not employees
of the Ministry of Tourism because their names did
not appear in the regular plantilla of the Ministry of
Tourism,  is specious since the listing of names in the
29
plantilla is not a conclusive evidence of employment.
Nonetheless, in view of the incessant allegation of the
Solicitor General that Corros and Fontanilla were not
employees of the Ministry, and considering the
photocopies of Fontanilla's appointment papers and
termination order submitted by him,   as well as the
30
bare assertion of petitioner Corros that she was for 11
years PRO I in the Licensing Division of the Ministry
and that her name could not be found in the plantilla
because she is now Jane Ombawa in view of her
marriage,  the fact of employment should be threshed
31
out first in a proper forum as this Court is not a trier of
facts.
The Solicitor General contends that since petitioner
Myrna Salvador was a casual employee,  intervenor32
Ascension Padilla was a temporary appointee whose
appointment expired 20 February 1987,  and 33
intervenor Evelyn Enriquez was also a temporary
appointee,   their appointments are terminable at the
34
pleasure of the appointing authority. Considering
however that the office orders and memoranda which
directed the separation of petitioners and intervenors
were annulled, hence in legal contemplation did not
exist, the effect is, as if the termination did not occur.
However, since the determination in this case is
limited only to the extent of the nullity of said orders
25
and memoranda, the reinstatement of Salvador,
Padilla and Enriquez cannot be ordered in the instant
proceeding.
The Solicitor General also seeks dismissal of the
petition and intervention against intervenors Rizalina
T. Espiritu, Abdulia T. Landingin, Medardo Ilao, Rosita
Somera, Armando Cruz, Catalino Dabu, Francisco
Villaraiz, Norma Jumilia, Kennedy Basa, Rolando G.
Cagasca and Alfonso Angeles because they were
already reinstated. However, because of the
unrefuted allegation that these employees were not
yet paid their respective back wages, then to that
extent, their petitions must be granted.
In computing back wages, we cannot blindly accept
the allegation of petitioners and intervenors that since
their separation from the service in 1987, or about
seven (7) years ago, they have been jobless hence
entitled to full back wages. Conformably with existing
jurisprudence, the award of back wages should not
exceed a period of five (5) years.  35
In the final analysis, the dissent admits that petitioners
and intervenors truly deserve the reliefs they pray for
except that their cause of action has allegedly
prescribed. Shall we now frustrate their rightful claims
on a ground that was never raised, nor even hinted at,
by public respondents in the entire proceeding? That
would be antithetic to our concept of social justice; at
the very least, it is subversive of the rudiments of
fairplay.
WHEREFORE, the instant petition is GRANTED.
Petitioners Violeta Aldovino, Ali Alibasa, Felix Balino,
Dionisio Ballesteros, Jose N. Balein, Jr., Freddie
Cauton, Roberto Cruz, Trinidad Dacumos, Angelita
Dimapilis, Andrea Estonilo, Mary Paz Frigillana,
Manuel Henson, Merlene Ibalio, Magdalena Jamilla,
Alexander Justiniani, Romulo Mirador, Julio Miravite,
Dante Nagtalon, Clarita Namuco, Alicia Orbita,
Angelita Pucan, Myrna P. Salvador,
Librada Tantay, and Araceli De Veyra, and
intervenors Josephine G. Andaya, Rosalinda T.
Atienza, Jose M. Baldovino, Jr., Asuncion C. Briones,
Maribelle A. Garcia, Florita O. Ocampo, Rolando
Sison, Lourdes B. Tamayo, Rolando Valdez, Erlinda
Piza, Eleonor Sagnit, Fidel Sevidal, Eloisa Alonzo,
Angelito Dela Cruz, Lynie Arcenas, Maria Emma
Jasmin, Macacuna Pangandaman, Rosalia Mauna,
Romeo Padilla, Ascencion Padilla, Crispulo Padilla,
Virgilio Dejero, Armando Mendoza, Anicita S. Baluyut,
Antonio D. Edralin, Evelyn A. Enriquez, Ma. Victoria L.
Jacobo, Daniel M. Manamtam, Jessie C. Manrique,
Encarnacion T. Radaza, Mario P. Ruivivar, Amor T.
Medina, and Felix L. Poliquit, are ordered
REINSTATED immediately to their former positions
without loss of seniority rights and with back salaries
computed under the new staffing pattern from the
dates of their invalid dismissals at rates not lower that
their former salaries but not to exceed a period of five
(5) years, provided, however, that no supervening
event shall have occured which would otherwise
disqualify then from such reinstatement,
and provided, further, that whatever benefits they
may have received from the Government by reason of
their termination shall be reimbursed through
reasonable salary deductions.
Public respondents are likewise ordered to pay
intervenors Rizalina P. Espiritu, Abdulia T. Landingin,
Medardo Ilao, Rosita Somera, Armando Cruz,
Catalino Dabu, Francisco Villaraiz, Norma Jumilia,
Kennedy Basa, Rolando G. Cagasca and Alfonso
Angeles their back salaries similarly under the above-
quoted conditions.
As regards petitioners Samuel Hipol, Jane Corros and
Efren Fontanilla, their petition is DISMISSED, as well
as the petition in intervention of Concepcion Timario.
SO ORDERED.
Padilla, Bidin, Regalado, Romero, Nocon, Melo,
Quiason, Vitug and Kapunan, JJ., concur.
Puno, J., took no part.
G.R. No. 101083 July 30, 1993
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right
of Filipinos to a balanced and healthful ecology which
the petitioners dramatically associate with the twin
concepts of "inter-generational responsibility" and
"inter-generational justice." Specifically, it touches on
the issue of whether the said petitioners have a cause
of action to "prevent the misappropriation or
impairment" of Philippine rainforests and "arrest the
unabated hemorrhage of the country's vital life
support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-
77 which was filed before Branch 66 (Makati, Metro
Manila) of the Regional Trial Court (RTC), National
Capital Judicial Region. The principal plaintiffs therein,
now the principal petitioners, are all minors duly
represented and joined by their respective parents.
Impleaded as an additional plaintiff is the Philippine
Ecological Network, Inc. (PENI), a domestic, non-
stock and non-profit corporation organized for the
purpose of, inter alia, engaging in concerted action
geared for the protection of our environment and
natural resources. The original defendant was the
Honorable Fulgencio S. Factoran, Jr., then Secretary
of the Department of Environment and Natural
Resources (DENR). His substitution in this petition by
the new Secretary, the Honorable Angel C. Alcala,
was subsequently ordered upon proper motion by the
petitioners.  The complaint  was instituted as a
1 2
taxpayers' class suit  and alleges that the plaintiffs
3
"are all citizens of the Republic of the Philippines,
taxpayers, and entitled to the full benefit, use and
enjoyment of the natural resource treasure that is the
country's virgin tropical forests." The same was filed
for themselves and others who are equally concerned
about the preservation of said resource but are "so
numerous that it is impracticable to bring them all
before the Court." The minors further asseverate that
they "represent their generation as well as
generations yet unborn."  Consequently, it is prayed
4
for that judgment be rendered:
 . . . ordering defendant, his agents,
representatives and other persons
acting in his behalf to —
(1) Cancel all existing timber license
agreements in the country;
(2) Cease and desist from receiving,
accepting, processing, renewing or
approving new timber license
agreements.
and granting the plaintiffs ". . . such other reliefs just
and equitable under the premises." 5 matter of judicial notice. This notwithstanding, they
The complaint starts off with the general averments
that the Philippine archipelago of 7,100 islands has a
land area of thirty million (30,000,000) hectares and is
endowed with rich, lush and verdant rainforests in
which varied, rare and unique species of flora and
fauna may be found; these rainforests contain a
genetic, biological and chemical pool which is
irreplaceable; they are also the habitat of indigenous
Philippine cultures which have existed, endured and
flourished since time immemorial; scientific evidence
reveals that in order to maintain a balanced and
healthful ecology, the country's land area should be
utilized on the basis of a ratio of fifty-four per cent
(54%) for forest cover and forty-six per cent (46%) for
agricultural, residential, industrial, commercial and
other uses; the distortion and disturbance of this
balance as a consequence of deforestation have
resulted in a host of environmental tragedies, such as
(a) water shortages resulting from drying up of the
water table, otherwise known as the "aquifer," as well
as of rivers, brooks and streams, (b) salinization of the
water table as a result of the intrusion therein of salt
water, incontrovertible examples of which may be
found in the island of Cebu and the Municipality of
Bacoor, Cavite, (c) massive erosion and the
consequential loss of soil fertility and agricultural
productivity, with the volume of soil eroded estimated
at one billion (1,000,000,000) cubic meters per annum
— approximately the size of the entire island of
Catanduanes, (d) the endangering and extinction of
the country's unique, rare and varied flora and fauna,
(e) the disturbance and dislocation of cultural
communities, including the disappearance of the
Filipino's indigenous cultures, (f) the siltation of rivers
and seabeds and consequential destruction of corals
and other aquatic life leading to a critical reduction in
marine resource productivity, (g) recurrent spells of
drought as is presently experienced by the entire
country, (h) increasing velocity of typhoon winds
which result from the absence of windbreakers, (i) the
floodings of lowlands and agricultural plains arising
from the absence of the absorbent mechanism of
forests, (j) the siltation and shortening of the lifespan
of multi-billion peso dams constructed and operated
for the purpose of supplying water for domestic uses,
irrigation and the generation of electric power, and (k)
the reduction of the earth's capacity to process carbon
dioxide gases which has led to perplexing and
catastrophic climatic changes such as the
phenomenon of global warming, otherwise known as
the "greenhouse effect."
Plaintiffs further assert that the adverse and
detrimental consequences of continued and
deforestation are so capable of unquestionable
demonstration that the same may be submitted as a
expressed their intention to present expert witnesses
as well as documentary, photographic and film
evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the
foregoing allegations.
8. Twenty-five (25) years ago, the
Philippines had some sixteen (16)
million hectares of rainforests
constituting roughly 53% of the
country's land mass.
9. Satellite images taken in 1987
reveal that there remained no more
than 1.2 million hectares of said
rainforests or four per cent (4.0%) of
the country's land area.
10. More recent surveys reveal that a
mere 850,000 hectares of virgin old-
growth rainforests are left, barely 2.8%
of the entire land mass of the
Philippine archipelago and about 3.0
million hectares of immature and
uneconomical secondary growth
forests.
11. Public records reveal that the
defendant's, predecessors have
granted timber license agreements
('TLA's') to various corporations to cut
the aggregate area of 3.89 million
hectares for commercial logging
purposes.
A copy of the TLA holders and the
corresponding areas covered is hereto
attached as Annex "A".
12. At the present rate of
deforestation, i.e. about 200,000
hectares per annum or 25 hectares
per hour — nighttime, Saturdays,
Sundays and holidays included — the
Philippines will be bereft of forest
resources after the end of this ensuing
decade, if not earlier.
13. The adverse effects, disastrous
consequences, serious injury and
irreparable damage of this continued
trend of deforestation to the plaintiff
minor's generation and to generations
yet unborn are evident and
incontrovertible. As a matter of fact,
the environmental damages
enumerated in paragraph 6 hereof are
already being felt, experienced and
suffered by the generation of plaintiff
adults.
14. The continued allowance by
defendant of TLA holders to cut and
deforest the remaining forest stands
will work great damage and
irreparable injury to plaintiffs —
especially plaintiff minors and their
successors — who may never see,
use, benefit from and enjoy this rare
and unique natural resource treasure.
This act of defendant constitutes a
misappropriation and/or impairment of
the natural resource property he holds
in trust for the benefit of plaintiff
minors and succeeding generations.
15. Plaintiffs have a clear and
constitutional right to a balanced and
healthful ecology and are entitled to
protection by the State in its capacity
as the parens patriae.
16. Plaintiff have exhausted all
administrative remedies with the
defendant's office. On March 2, 1990,
plaintiffs served upon defendant a final
demand to cancel all logging permits
in the country.
A copy of the plaintiffs' letter dated
March 1, 1990 is hereto attached as
Annex "B".
17. Defendant, however, fails and
refuses to cancel the existing TLA's to
the continuing serious damage and
extreme prejudice of plaintiffs.
18. The continued failure and refusal
by defendant to cancel the TLA's is an
act violative of the rights of plaintiffs,
especially plaintiff minors who may be
left with a country that is desertified
(sic), bare, barren and devoid of the
wonderful flora, fauna and indigenous
cultures which the Philippines had
been abundantly blessed with.
19. Defendant's refusal to cancel the
aforementioned TLA's is manifestly
contrary to the public policy
enunciated in the Philippine
Environmental Policy which, in
pertinent part, states that it is the
policy of the State —
(a) to create, develop, maintain and
improve conditions under which man
and nature can thrive in productive
and enjoyable harmony with each
other;
(b) to fulfill the social, economic and
other requirements of present and
future generations of Filipinos and;
(c) to ensure the attainment of an
environmental quality that is
conductive to a life of dignity and well-
being. (P.D. 1151, 6 June 1977)
20. Furthermore, defendant's
continued refusal to cancel the
aforementioned TLA's is contradictory
to the Constitutional policy of the State
to —
a. effect "a more equitable distribution
of opportunities, income and wealth"
and "make full and efficient use of
natural resources (sic)." (Section 1,
Article XII of the Constitution);
b. "protect the nation's marine wealth."
(Section 2, ibid);
c. "conserve and promote the nation's
cultural heritage and resources (sic)"
(Section 14, Article XIV, id.);
d. "protect and advance the right of
the people to a balanced and healthful
ecology in accord with the rhythm and
 harmony of nature." (Section 16,
Article II, id.)
21. Finally, defendant's act is contrary
to the highest law of humankind — the
natural law — and violative of
plaintiffs' right to self-preservation and
perpetuation.
22. There is no other plain, speedy
and adequate remedy in law other
than the instant action to arrest the
unabated hemorrhage of the country's
vital life support systems and
continued rape of Mother Earth.  6
On 22 June 1990, the original defendant, Secretary
Factoran, Jr., filed a Motion to Dismiss the complaint
based on two (2) grounds, namely: (1) the plaintiffs
have no cause of action against him and (2) the issue
raised by the plaintiffs is a political question which
properly pertains to the legislative or executive
branches of Government. In their 12 July 1990
Opposition to the Motion, the petitioners maintain that
(1) the complaint shows a clear and unmistakable
cause of action, (2) the motion is dilatory and (3) the
action presents a justiciable question as it involves the
defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order
granting the aforementioned motion to dismiss.  In the
7 petitioners failed to allege in their complaint a specific
said order, not only was the defendant's claim — that
the complaint states no cause of action against him
and that it raises a political question — sustained, the
respondent Judge further ruled that the granting of the
relief prayed for would result in the impairment of
contracts which is prohibited by the fundamental law
of the land.
Plaintiffs thus filed the instant special civil action
for certiorari under Rule 65 of the Revised Rules of
Court and ask this Court to rescind and set aside the
dismissal order on the ground that the respondent
Judge gravely abused his discretion in dismissing the
action. Again, the parents of the plaintiffs-minors not
only represent their children, but have also joined the
latter in this case.
8
On 14 May 1992, We resolved to give due course to
the petition and required the parties to submit their
respective Memoranda after the Office of the Solicitor
General (OSG) filed a Comment in behalf of the
respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and
unmistakably states a cause of action as it contains
sufficient allegations concerning their right to a sound
environment based on Articles 19, 20 and 21 of the
Civil Code (Human Relations), Section 4 of Executive
Order (E.O.) No. 192 creating the DENR, Section 3 of
Presidential Decree (P.D.) No. 1151 (Philippine
Environmental Policy), Section 16, Article II of the
1987 Constitution recognizing the right of the people
to a balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the
concept of man's inalienable right to self-preservation
and self-perpetuation embodied in natural law.
Petitioners likewise rely on the respondent's
correlative obligation per Section 4 of E.O. No. 192, to
safeguard the people's right to a healthful
environment.
It is further claimed that the issue of the respondent
Secretary's alleged grave abuse of discretion in
granting Timber License Agreements (TLAs) to cover
more areas for logging than what is available involves
a judicial question.
Anent the invocation by the respondent Judge of the
Constitution's non-impairment clause, petitioners
maintain that the same does not apply in this case
because TLAs are not contracts. They likewise submit
that even if TLAs may be considered protected by the
said clause, it is well settled that they may still be
revoked by the State when the public interest so
requires.
On the other hand, the respondents aver that the
legal right violated by the respondent Secretary for
which any relief is provided by law. They see nothing
in the complaint but vague and nebulous allegations
concerning an "environmental right" which supposedly
entitles the petitioners to the "protection by the state
in its capacity as parens patriae." Such allegations,
according to them, do not reveal a valid cause of
action. They then reiterate the theory that the question
of whether logging should be permitted in the country
is a political question which should be properly
addressed to the executive or legislative branches of
Government. They therefore assert that the
petitioners' resources is not to file an action to court,
but to lobby before Congress for the passage of a bill
that would ban logging totally.
As to the matter of the cancellation of the TLAs,
respondents submit that the same cannot be done by
the State without due process of law. Once issued, a
TLA remains effective for a certain period of time —
usually for twenty-five (25) years. During its effectivity,
the same can neither be revised nor cancelled unless
the holder has been found, after due notice and
hearing, to have violated the terms of the agreement
or other forestry laws and regulations. Petitioners'
proposition to have all the TLAs indiscriminately
cancelled without the requisite hearing would be
violative of the requirements of due process.
Before going any further, We must first focus on some
procedural matters. Petitioners instituted Civil Case
No. 90-777 as a class suit. The original defendant and
the present respondents did not take issue with this
matter. Nevertheless, We hereby rule that the said
civil case is indeed a class suit. The subject matter of
the complaint is of common and general interest not
just to several, but to all citizens of the Philippines.
Consequently, since the parties are so numerous, it,
becomes impracticable, if not totally impossible, to
bring all of them before the court. We likewise declare
that the plaintiffs therein are numerous and
representative enough to ensure the full protection of
all concerned interests. Hence, all the requisites for
the filing of a valid class suit under Section 12, Rule 3
of the Revised Rules of Court are present both in the
said civil case and in the instant petition, the latter
being but an incident to the former.
This case, however, has a special and novel element.
Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find
no difficulty in ruling that they can, for themselves, for
others of their generation and for the succeeding
generations, file a class suit. Their personality to sue
in behalf of the succeeding generations can only be
based on the concept of intergenerational
responsibility insofar as the right to a balanced and
healthful ecology is concerned. Such a right, as
hereinafter expounded, considers  Court without doing violence to the
the "rhythm and harmony of nature." Nature means
the created world in its entirety.  Such rhythm and
9
harmony indispensably include, inter alia, the
judicious disposition, utilization, management,
renewal and conservation of the country's forest,
mineral, land, waters, fisheries, wildlife, off-shore
areas and other natural resources to the end that their
exploration, development and utilization be equitably
accessible to the present as well as future
generations.  Needless to say, every generation has
10
a responsibility to the next to preserve that rhythm
and harmony for the full enjoyment of a balanced and
healthful ecology. Put a little differently, the minors'
assertion of their right to a sound environment
constitutes, at the same time, the performance of their
obligation to ensure the protection of that right for the
generations to come.
The locus standi of the petitioners having thus been
addressed, We shall now proceed to the merits of the
petition.
After a careful perusal of the complaint in question
and a meticulous consideration and evaluation of the
issues raised and arguments adduced by the parties,
We do not hesitate to find for the petitioners and rule
against the respondent Judge's challenged order for
having been issued with grave abuse of discretion
amounting to lack of jurisdiction. The pertinent
portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect
evaluation of the Complaint, the Court
cannot help but agree with the
defendant. For although we believe
that plaintiffs have but the noblest of
all intentions, it (sic) fell short of
alleging, with sufficient definiteness, a
specific legal right they are seeking to
enforce and protect, or a specific legal
wrong they are seeking to prevent and
redress (Sec. 1, Rule 2, RRC).
Furthermore, the Court notes that the
Complaint is replete with vague
assumptions and vague conclusions
based on unverified data. In fine,
plaintiffs fail to state a cause of action
in its Complaint against the herein
defendant.
Furthermore, the Court firmly believes
that the matter before it, being
impressed with political color and
involving a matter of public policy, may
not be taken cognizance of by this
sacred principle of "Separation of
Powers" of the three (3) co-equal
branches of the Government.
The Court is likewise of the impression
that it cannot, no matter how we
stretch our jurisdiction, grant the
reliefs prayed for by the plaintiffs, i.e.,
to cancel all existing timber license
agreements in the country and to
cease and desist from receiving,
accepting, processing, renewing or
approving new timber license
agreements. For to do otherwise
would amount to "impairment of
contracts" abhored (sic) by the
fundamental law.  11
We do not agree with the trial court's conclusions that
the plaintiffs failed to allege with sufficient definiteness
a specific legal right involved or a specific legal wrong
committed, and that the complaint is replete with
vague assumptions and conclusions based on
unverified data. A reading of the complaint itself belies
these conclusions.
The complaint focuses on one specific fundamental MR. VILLACORTA:
legal right — the right to a balanced and healthful
ecology which, for the first time in our nation's Does this section
constitutional history, is solemnly incorporated in the mandate the State to
fundamental law. Section 16, Article II of the 1987 provide sanctions
Constitution explicitly provides: against all forms of
pollution — air, water
Sec. 16. The State shall protect and and noise pollution?
advance the right of the people to a
balanced and healthful ecology in MR. AZCUNA:
accord with the rhythm and harmony
of nature. Yes, Madam
President. The right to
This right unites with the right to health healthful (sic)
which is provided for in the preceding environment
section of the same article: necessarily carries
with it the correlative
Sec. 15. The State shall protect and duty of not impairing
promote the right to health of the the same and,
people and instill health therefore, sanctions
consciousness among them. may be provided for
impairment of
While the right to a balanced and healthful ecology is environmental
to be found under the Declaration of Principles and balance. 12

State Policies and not under the Bill of Rights, it does

not follow that it is less important than any of the civil
and political rights enumerated in the latter. Such a
right belongs to a different category of rights
altogether for it concerns nothing less than self-
preservation and self-perpetuation — aptly and
fittingly stressed by the petitioners — the
advancement of which may even be said to predate
all governments and constitutions. As a matter of fact,
these basic rights need not even be written in the
Constitution for they are assumed to exist from the
inception of humankind. If they are now explicitly
mentioned in the fundamental charter, it is because of
the well-founded fear of its framers that unless the
The said right implies, among many other things, the
judicious management and conservation of the
country's forests.
Without such forests, the ecological or
environmental balance would be irreversiby
disrupted.
Conformably with the enunciated right to a balanced
and healthful ecology and the right to health, as well
as the other related provisions of the Constitution
concerning the conservation, development and
utilization of the country's natural resources,   then
13

rights to a balanced and healthful ecology and to President Corazon C. Aquino promulgated on 10 June
health are mandated as state policies by the 1987 E.O. No. 192,   Section 4 of which expressly
14

Constitution itself, thereby highlighting their continuing
importance and imposing upon the state a solemn
obligation to preserve the first and protect and
advance the second, the day would not be too far
when all else would be lost not only for the present
generation, but also for those to come — generations
which stand to inherit nothing but parched earth
incapable of sustaining life.
The right to a balanced and healthful ecology carries
with it the correlative duty to refrain from impairing the
environment. During the debates on this right in one
of the plenary sessions of the 1986 Constitutional
Commission, the following exchange transpired
between Commissioner Wilfrido Villacorta and
Commissioner Adolfo Azcuna who sponsored the
section in question:
mandates that the Department of Environment and
Natural Resources "shall be the primary government
agency responsible for the conservation,
management, development and proper use of the
country's environment and natural resources,
specifically forest and grazing lands, mineral,
resources, including those in reservation and
watershed areas, and lands of the public domain, as
well as the licensing and regulation of all natural
resources as may be provided for by law in order to
ensure equitable sharing of the benefits derived
therefrom for the welfare of the present and future
generations of Filipinos." Section 3 thereof makes the
following statement of policy:
Sec. 3. Declaration of Policy. — It is
hereby declared the policy of the State
to ensure the sustainable use,
 development, management, renewal,
and conservation of the country's
forest, mineral, land, off-shore areas
and other natural resources, including
the protection and enhancement of the
quality of the environment, and
equitable access of the different
segments of the population to the
development and the use of the
country's natural resources, not only
for the present generation but for
future generations as well. It is also
the policy of the state to recognize and
apply a true value system including
social and environmental cost
implications relative to their utilization,
development and conservation of our
natural resources.
This policy declaration is substantially re-stated it Title
XIV, Book IV of the Administrative Code of
1987,  specifically in Section 1 thereof which reads:
15
Sec. 1. Declaration of Policy. — (1)
The State shall ensure, for the benefit
of the Filipino people, the full
exploration and development as well
as the judicious disposition, utilization,
management, renewal and
conservation of the country's forest,
mineral, land, waters, fisheries,
wildlife, off-shore areas and other
natural resources, consistent with the
necessity of maintaining a sound
ecological balance and protecting and
enhancing the quality of the
environment and the objective of
making the exploration, development
and utilization of such natural
resources equitably accessible to the
different segments of the present as
well as future generations.
(2) The State shall likewise recognize
and apply a true value system that
takes into account social and
environmental cost implications
relative to the utilization, development
and conservation of our natural
resources.
The above provision stresses "the necessity of
maintaining a sound ecological balance and
protecting and enhancing the quality of the
environment." Section 2 of the same Title, on the
other hand, specifically speaks of the mandate of the
DENR; however, it makes particular reference to the
fact of the agency's being subject to law and higher
authority. Said section provides:
Sec. 2. Mandate. — (1) The
Department of Environment and
Natural Resources shall be primarily
responsible for the implementation of
the foregoing policy.
(2) It shall, subject to law and higher
authority, be in charge of carrying out
the State's constitutional mandate to
control and supervise the exploration,
development, utilization, and
conservation of the country's natural
resources.
Both E.O. NO. 192 and the Administrative Code of
1987 have set the objectives which will serve as the
bases for policy formulation, and have defined the
powers and functions of the DENR.
It may, however, be recalled that even before the
ratification of the 1987 Constitution, specific statutes
already paid special attention to the "environmental
right" of the present and future generations. On 6
June 1977, P.D. No. 1151 (Philippine Environmental
Policy) and P.D. No. 1152 (Philippine Environment
Code) were issued. The former "declared a continuing
policy of the State (a) to create, develop, maintain and
improve conditions under which man and nature can
thrive in productive and enjoyable harmony with each
other, (b) to fulfill the social, economic and other
requirements of present and future generations of
Filipinos, and (c) to insure the attainment of an
environmental quality that is conducive to a life of
dignity and well-being."   As its goal, it speaks of the
16
"responsibilities of each generation as trustee and
guardian of the environment for succeeding
generations."   The latter statute, on the other hand,
17
gave flesh to the said policy.
Thus, the right of the petitioners (and all those they
represent) to a balanced and healthful ecology is as
clear as the DENR's duty — under its mandate and by
virtue of its powers and functions under E.O. No. 192
and the Administrative Code of 1987 — to protect and
advance the said right.
A denial or violation of that right by the other who has
the corelative duty or obligation to respect or protect
the same gives rise to a cause of action. Petitioners
maintain that the granting of the TLAs, which they
claim was done with grave abuse of discretion,
violated their right to a balanced and healthful
ecology; hence, the full protection thereof requires
that no further TLAs should be renewed or granted.
A cause of action is defined as:
 . . . an act or omission of one party in
violation of the legal right or rights of
the other; and its essential elements
are legal right of the plaintiff,
correlative obligation of the defendant,
and act or omission of the defendant
in violation of said legal right. 
18
It is settled in this jurisdiction that in a motion to
dismiss based on the ground that the complaint fails
to state a cause of action,   the question submitted to
19
the court for resolution involves the sufficiency of the
facts alleged in the complaint itself. No other matter
should be considered; furthermore, the truth of falsity
of the said allegations is beside the point for the truth
thereof is deemed hypothetically admitted. The only
issue to be resolved in such a case is: admitting such
alleged facts to be true, may the court render a valid
judgment in accordance with the prayer in the
complaint?   In Militante vs. Edrosolano,   this Court
20 21
laid down the rule that the judiciary should "exercise
the utmost care and circumspection in passing upon a
motion to dismiss on the ground of the absence
thereof [cause of action] lest, by its failure to manifest
a correct appreciation of the facts alleged and
deemed hypothetically admitted, what the law grants
or recognizes is effectively nullified. If that happens,
there is a blot on the legal order. The law itself stands
in disrepute."
After careful examination of the petitioners' complaint,
We find the statements under the introductory
affirmative allegations, as well as the specific
averments under the sub-heading CAUSE OF
ACTION, to be adequate enough to show, prima
facie, the claimed violation of their rights. On the basis
thereof, they may thus be granted, wholly or partly,
the reliefs prayed for. It bears stressing, however, that
insofar as the cancellation of the TLAs is concerned,
there is the need to implead, as party defendants, the
grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be
said to raise a political question. Policy formulation or
determination by the executive or legislative branches
of Government is not squarely put in issue. What is
principally involved is the enforcement of a right vis-a-
vis policies already formulated and expressed in
legislation. It must, nonetheless, be emphasized that
the political question doctrine is no longer, the
insurmountable obstacle to the exercise of judicial
power or the impenetrable shield that protects
executive and legislative actions from judicial inquiry
or review. The second paragraph of section 1, Article
VIII of the Constitution states that:
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.
Commenting on this provision in his book, Philippine
Political Law,   Mr. Justice Isagani A. Cruz, a
22
distinguished member of this Court, says:
The first part of the authority
represents the traditional concept of
judicial power, involving the settlement
of conflicting rights as conferred as
law. The second part of the authority
represents a broadening of judicial
power to enable the courts of justice to
review what was before forbidden
territory, to wit, the discretion of the
political departments of the
government.
As worded, the new provision vests in
the judiciary, and particularly the
Supreme Court, the power to rule
upon even the wisdom of the
decisions of the executive and the
legislature and to declare their acts
invalid for lack or excess of jurisdiction
because tainted with grave abuse of
discretion. The catch, of course, is the
meaning of "grave abuse of
discretion," which is a very elastic
phrase that can expand or contract
according to the disposition of the
judiciary.
In Daza vs. Singson,   Mr. Justice Cruz, now
23
speaking for this Court, noted:
In the case now before us, the
jurisdictional objection becomes even
less tenable and decisive. The reason
is that, even if we were to assume that
the issue presented before us was
political in nature, we would still not be
precluded from revolving it under the
expanded jurisdiction conferred upon
us that now covers, in proper cases,
even the political question. Article VII,
Section 1, of the Constitution clearly
provides: . . .
The last ground invoked by the trial court in
dismissing the complaint is the non-impairment of
contracts clause found in the Constitution. The court a
quo declared that:
The Court is likewise of the impression
that it cannot, no matter how we
stretch our jurisdiction, grant the
reliefs prayed for by the plaintiffs, i.e.,
to cancel all existing timber license
agreements in the country and to
cease and desist from receiving,
accepting, processing, renewing or
approving new timber license
agreements. For to do otherwise
would amount to "impairment of
contracts" abhored (sic) by the
fundamental law.  24
We are not persuaded at all; on the contrary, We are
amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent
Secretary did not, for obvious reasons, even invoke in
his motion to dismiss the non-impairment clause. If he
had done so, he would have acted with utmost
infidelity to the Government by providing undue and
unwarranted benefits and advantages to the timber
license holders because he would have forever bound
the Government to strictly respect the said licenses
according to their terms and conditions regardless of
changes in policy and the demands of public interest
and welfare. He was aware that as correctly pointed
out by the petitioners, into every timber license must
be read Section 20 of the Forestry Reform Code (P.D.
No. 705) which provides:
. . . Provided, That when the national
interest so requires, the President may
amend, modify, replace or rescind any
contract, concession, permit, licenses
or any other form of privilege granted
herein . . .
Needless to say, all licenses may thus be
revoked or rescinded by executive action. It is
not a contract, property or a property right
protested by the due process clause of the
Constitution. In Tan vs. Director of
Forestry,   this Court held:
25
. . . A timber license is an instrument
by which the State regulates the
utilization and disposition of forest
resources to the end that public
welfare is promoted. A timber license
is not a contract within the purview of
the due process clause; it is only a
license or privilege, which can be
validly withdrawn whenever dictated
by public interest or public welfare as
in this case.
A license is merely a permit or
privilege to do what otherwise would
be unlawful, and is not a contract
between the authority, federal, state,
or municipal, granting it and the
person to whom it is granted; neither
is it property or a property right, nor
does it create a vested right; nor is it
taxation (37 C.J. 168). Thus, this
Court held that the granting of license
does not create irrevocable rights,
neither is it property or property rights
(People vs. Ong Tin, 54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael,
Jr. & Co., Inc. vs. Deputy Executive Secretary:  26
. . . Timber licenses, permits and
license agreements are the principal
instruments by which the State
regulates the utilization and
disposition of forest resources to the
end that public welfare is promoted.
And it can hardly be gainsaid that they
merely evidence a privilege granted by
the State to qualified entities, and do
not vest in the latter a permanent or
irrevocable right to the particular
concession area and the forest
products therein. They may be validly
amended, modified, replaced or
rescinded by the Chief Executive
when national interests so require.
Thus, they are not deemed contracts
within the purview of the due process
of law clause [See Sections 3(ee) and
20 of Pres. Decree No. 705, as
amended. Also, Tan v. Director of
Forestry, G.R. No. L-24548, October
27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-
impairment clause, which reads:
Sec. 10. No law impairing, the
obligation of contracts shall be
passed.  27
cannot be invoked.
In the second place, even if it is to be assumed that
the same are contracts, the instant case does not
involve a law or even an executive issuance declaring
the cancellation or modification of existing timber
licenses. Hence, the non-impairment clause cannot as
yet be invoked. Nevertheless, granting further that a
law has actually been passed mandating
cancellations or modifications, the same cannot still
be stigmatized as a violation of the non-impairment
clause. This is because by its very nature and
purpose, such as law could have only been passed in
the exercise of the police power of the state for the
purpose of advancing the right of the people to a
balanced and healthful ecology, promoting their health
and enhancing the general welfare. In Abe vs. Foster
Wheeler  No pronouncement as to costs.
Corp.   this Court stated:
28
The freedom of contract, under our
system of government, is not meant to
be absolute. The same is understood
to be subject to reasonable legislative
regulation aimed at the promotion of
public health, moral, safety and
welfare. In other words, the
constitutional guaranty of non-
impairment of obligations of contract is
limited by the exercise of the police
power of the State, in the interest of
public health, safety, moral and
general welfare.
The reason for this is emphatically set forth in Nebia
vs. New York,   quoted in Philippine American Life
29
Insurance Co. vs. Auditor General,  to wit:
30
Under our form of government the use
of property and the making of
contracts are normally matters of
private and not of public concern. The
general rule is that both shall be free
of governmental interference. But
neither property rights nor contract
rights are absolute; for government
cannot exist if the citizen may at will
use his property to the detriment of his
fellows, or exercise his freedom of
contract to work them harm. Equally
fundamental with the private right is
that of the public to regulate it in the
common interest.
In short, the non-impairment clause must yield to the
police power of the state.  31
Finally, it is difficult to imagine, as the trial court did,
how the non-impairment clause could apply with
respect to the prayer to enjoin the respondent
Secretary from receiving, accepting, processing,
renewing or approving new timber licenses for, save
in cases of renewal, no contract would have as of yet
existed in the other instances. Moreover, with respect
to renewal, the holder is not entitled to it as a matter
of right.
WHEREFORE, being impressed with merit, the
instant Petition is hereby GRANTED, and the
challenged Order of respondent Judge of 18 July
1991 dismissing Civil Case No. 90-777 is hereby set
aside. The petitioners may therefore amend their
complaint to implead as defendants the holders or
grantees of the questioned timber license
agreements.
G.R. NO. 159357. April 28, 2004]
Brother MARIANO MIKE Z.
VELARDE, Petitioner, v. SOCIAL
JUSTICE SOCIETY,Respondent.
DECISION
PANGANIBAN, J.:
A decision that does not conform to the
form and substance required by the
Constitution and the law is void and
deemed legally inexistent. To be valid,
decisions should comply with the form,
the procedure and the substantive
requirements laid out in the Constitution,
the Rules of Court and relevant
circulars/orders of the Supreme Court.
For the guidance of the bench and the
bar, the Court hereby discusses these
forms, procedures and requirements.
The Case
Before us is a Petition for Review1 under
Rule 45 of the Rules of Court, assailing
the June 12, 2003 Decision2 and July 29,
2003 Order3 of the Regional Trial Court
(RTC) of Manila (Branch 49). 4  ςrνll
The challenged Decision was the offshoot
of a Petition for Declaratory Relief5 filed
before the RTC-Manila by herein
Respondent Social Justice Society (SJS)
against herein Petitioner Mariano Mike Z.
Velarde, together with His Eminence,
Jaime Cardinal Sin, Executive Minister
Erao Manalo, Brother Eddie Villanueva
and Brother Eliseo F. Soriano as co-
respondents. The Petition prayed for the
resolution of the question whether or not
the act of a religious leader like any of
herein respondents, in endorsing the
candidacy of a candidate for elective
office or in urging or requiring the
members of his flock to vote for a
specified candidate, is violative of the
letter or spirit of the constitutional
provisions x x x.6ςrνll
Alleging that the questioned Decision did
not contain a statement of facts and a
dispositive portion, herein petitioner filed
a Clarificatory Motion and Motion for
Reconsideration before the trial court.
Soriano, his co-respondent, similarly filed
a separate Motion for Reconsideration. In
response, the trial court issued the
assailed Order, which held as follows: ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ
x x x [T]his Court cannot reconsider,
because what it was asked to do, was
only to clarify a Constitutional provision
and to declare whether acts are violative
thereof. The Decision did not make a
dispositive portion because a dispositive
portion is required only in coercive
reliefs, where a redress from wrong
suffered and the benefit that the
prevailing party wronged should get. The
step that these movants have to take, is
direct appeal under Rule 45 of the Rules
of Court, for a conclusive interpretation
of the Constitutional provision to the
Supreme Court.7
The Antecedent Proceedings
On January 28, 2003, SJS filed a Petition
for Declaratory Relief (SJS Petition)
before the RTC-Manila against Velarde
and his aforesaid co-respondents. SJS, a
registered political party, sought the
interpretation of several constitutional
provisions,8 specifically on the separation
of church and state; and a declaratory
judgment on the constitutionality of the
acts of religious leaders endorsing a
candidate for an elective office, or urging
or requiring the members of their flock to
vote for a specified candidate. 
The subsequent proceedings were
recounted in the challenged Decision in
these words: ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ
x x x. Bro. Eddie Villanueva submitted,
within the original period [to file an
Answer], a Motion to Dismiss.
Subsequently, Executive Minister Erao
Manalo and Bro. Mike Velarde, filed their
Motions to Dismiss. While His Eminence
Jaime Cardinal L. Sin, filed a Comment
and Bro. Eli Soriano, filed an Answer
within the extended period and similarly
prayed for the dismissal of the Petition.
All sought the dismissal of the Petition on
the common grounds that it does not
state a cause of action and that there is
no justiciable controversy. They were
ordered to submit a pleading by way of
advisement, which was closely followed
by another Order denying all the Motions
to Dismiss. Bro. Mike Velarde, Bro. Eddie
Villanueva and Executive Minister Erao
Manalo moved to reconsider the denial.
His Eminence Jaime Cardinal L. Sin,
asked for extension to file memorandum.
Only Bro. Eli Soriano complied with the
first Order by submitting his
Memorandum. x x x.  chanroblesvirtuallawlibrary
x x x the Court denied the Motions to
Dismiss, and the Motions for
Reconsideration filed by Bro. Mike
Velarde, Bro. Eddie Villanueva and
Executive Minister Erao Manalo, which
raised no new arguments other than
those already considered in the motions
to dismiss x x x.9  ςrνll
After narrating the above incidents, the
trial court said that it had jurisdiction
over the Petition, because in praying for
a determination as to whether the
actions imputed to the respondents are
violative of Article II, Section 6 of the
Fundamental Law, [the Petition] has
raised only a question of law.10 It then
proceeded to a lengthy discussion of the
issue raised in the Petition the separation
of church and state even tracing, to
some extent, the historical background of
the principle. Through its discourse, the
court a quo opined at some point that
the [e]ndorsement of specific candidates
in an election to any public office is a
clear violation of the separation
clause.11 
ςrνll
After its essay on the legal issue,
however, the trial court failed to include
a dispositive portion in its assailed
Decision. Thus, Velarde and Soriano filed
separate Motions for Reconsideration
which, as mentioned earlier, were denied
by the lower court.
Hence, this Petition for Review.12  ςrνll
This Court, in a Resolution13 dated
September 2, 2003, required SJS and the
Office of the Solicitor General (OSG) to
submit their respective comments. In the
same Resolution, the Court gave the
other parties -- impleaded as
respondents in the original case below
--the opportunity to comment, if they so
desired.
On April 13, 2004, the Court en banc
conducted an Oral Argument.14
The Issues
In his Petition, Brother Mike Velarde
submits the following issues for this
Courts resolution: ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ
1.Whether or not the Decision dated 12
June 2003 rendered by the court a
quo was proper and valid;
2.Whether or not there exists justiceable
controversy in herein respondents
Petition for declaratory relief;
3.Whether or not herein respondent has
legal interest in filing the Petition for
declaratory relief; chanroblesvirtuallawlibrary
4.Whether or not the constitutional
question sought to be resolved by herein
respondent is ripe for judicial
determination; chanroblesvirtuallawlibrary
5.Whether or not there is adequate
remedy other than the declaratory relief;
and,
6.Whether or not the court a quo has
jurisdiction over the Petition for
declaratory relief of herein respondent.15  ςrνll
During the Oral Argument, the issues
were narrowed down and classified as
follows: ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ
A.Procedural Issues
Did the Petition for Declaratory Relief
raise a justiciable controversy?Did it
state a cause of action? Did respondent
have any legal standing to file the
Petition for Declaratory Relief? chanroblesvirtualawlibrary
B.Substantive Issues
1.Did the RTC Decision conform to the
form and substance required by the
Constitution, the law and the Rules of
Court?chanroblesvirtualawlibrary
2.May religious leaders like herein
petitioner, Bro. Mike Velarde, be
prohibited from endorsing candidates for
public office? Corollarily, may they be
banned from campaigning against said
candidates?
The Courts Ruling
chanroblesvirtuallawlibrary
The Petition of Brother Mike Velarde is
meritorious.
chanroblesvirtuallawlibrary
Procedural Issues:
 Requisites of Petitions  Velarde alleges that SJS premised its
for Declaratory Relief
Section 1 of Rule 63 of the Rules of
Court, which deals with petitions for
declaratory relief, provides in part:ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ
Section 1. Who may file petition.- Any
person interested under a deed, will,
contract or other written instrument,
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.
Based on the foregoing, an action for
declaratory relief should be filed by a
person interested under a deed, a will, a
contract or other written instrument, and
whose rights are affected by a statute,
an executive order, a regulation or an
ordinance. The purpose of the remedy is
to interpret or to determine the validity
of the written instrument and to seek a
judicial declaration of the parties rights
or duties thereunder.16 The essential
requisites of the action are as follows:
(1) there is a justiciable controversy; (2)
the controversy is between persons
whose interests are adverse; (3) the
party seeking the relief has a legal
interest in the controversy; and (4) the
issue is ripe for judicial determination.17
Justiciable Controversy
Brother Mike Velarde contends that the
SJS Petition failed to allege, much less
establish before the trial court, that there
existed a justiciable controversy or an
adverse legal interest between them;
and that SJS had a legal right that was
being violated or threatened to be
violated by petitioner. On the contrary,
action on mere speculations, contingent
events, and hypothetical issues that had
not yet ripened into an actual
controversy. Thus, its Petition for
Declaratory Relief must fail.
A justiciable controversy refers to an
existing case or controversy that is
appropriate or ripe for judicial
determination, not one that is conjectural
or merely anticipatory.18 The SJS Petition
for Declaratory Relief fell short of this
test. It miserably failed to allege an
existing controversy or dispute between
the petitioner and the named
respondents therein. Further, the Petition
did not sufficiently state what specific
legal right of the petitioner was violated
by the respondents therein; and what
particular act or acts of the latter were in
breach of its rights, the law or the
Constitution.
As pointed out by Brother Eliseo F.
Soriano in his Comment,19 what exactly
has he done that merited the attention of
SJS? He confesses that he does not know
the answer, because the SJS Petition (as
well as the assailed Decision of the RTC)
yields nothing in this respect. His
Eminence, Jaime Cardinal Sin, adds that,
at the time SJS filed its Petition on
January 28, 2003, the election season
had not even started yet; and that, in
any event, he has not been actively
involved in partisan politics.
An initiatory complaint or petition filed
with the trial court should contain a
plain, concise and direct statement of the
ultimate facts on which the party
pleading relies for his claim x x x.20 Yet,
the SJS Petition stated no ultimate facts.
Indeed, SJS merely speculated or
anticipated without factual moorings
that, as religious leaders, the petitioner
and his co-respondents below had
endorsed or threatened to endorse a
candidate or candidates for elective
offices; and that such actual or
threatened endorsement will enable
[them] to elect men to public office who
[would] in turn be forever beholden to
their leaders, enabling them to control
the government[;]21 and pos[ing] a clear
and present danger of serious erosion of
the peoples faith in the electoral
process[;] and reinforc[ing] their belief
that religious leaders determine the
ultimate result of elections,22 which
would then be violative of the separation
clause.
Such premise is highly speculative and
merely theoretical, to say the least.
Clearly, it does not suffice to constitute a
justiciable controversy. The Petition does
not even allege any indication or
manifest intent on the part of any of the
respondents below to champion an
electoral candidate, or to urge their so-
called flock to vote for, or not to vote for,
a particular candidate. It is a time-
honored rule that sheer speculation does
not give rise to an actionable right.
Obviously, there is no factual allegation
that SJS rights are being subjected to
any threatened, imminent and inevitable
violation that should be prevented by the
declaratory relief sought.The judicial
power and duty of the courts to settle
actual controversies involving rights that
are legally demandable and
enforceable23 cannot be exercised when
there is no actual or threatened violation
of a legal right.
All that the 5-page SJS Petition prayed
for was that the question raised in
paragraph 9 hereof be resolved.24 In
other words, it merely sought an opinion
of the trial court on whether the
speculated acts of religious leaders
endorsing elective candidates for political
offices violated the constitutional
principle on the separation of church and
state. SJS did not ask for a declaration of
its rights and duties; neither did it pray
for the stoppage of any threatened
violation of its declared rights.Courts,
however, are proscribed from rendering
an advisory opinion.25
Cause of Action
Respondent SJS asserts that in order to
maintain a petition for declaratory relief,
a cause of action need not be alleged or
proven. Supposedly, for such petition to
prosper, there need not be any violation
of a right, breach of duty or actual wrong
committed by one party against the
other.
Petitioner, on the other hand, argues
that the subject matter of an action for
declaratory relief should be a deed, a
will, a contract (or other written
instrument), a statute, an executive
order, a regulation or an ordinance. But
the subject matter of the SJS Petition is
the constitutionality of an act of a
religious leader to endorse the candidacy
of a candidate for elective office or to
urge or require the members of the flock
to vote for a specified
candidate.26 According to petitioner, this
subject matter is beyond the realm of an
action for declaratory relief.27 Petitioner
avers that in the absence of a valid
subject matter, the Petition fails to state
a cause of action and, hence, should
have been dismissed outright by the
court a quo.
A cause of action is an act or an omission
of one party in violation of the legal right
or rights of another, causing injury to the
latter.28 Its essential elements are the
following: (1) a right in favor of the
plaintiff; (2) an obligation on the part of
the named defendant to respect or not to
violate such right; and (3) such
defendants act or omission that is
violative of the right of the plaintiff or
constituting a breach of the obligation of
the former to the latter.29 ςrνll
The failure of a complaint to state a
cause of action is a ground for its
outright dismissal.30However, in special
civil actions for declaratory relief, the
concept of a cause of action under
ordinary civil actions does not strictly
apply. The reason for this exception is
that an action for declaratory relief
presupposes that there has been no
actual breach of the instruments involved
or of rights arising
thereunder.31 Nevertheless, a breach or
violation should be impending, imminent
or at least threatened.
A perusal of the Petition filed by SJS
before the RTC discloses no explicit
allegation that the former had any legal
right in its favor that it sought to protect.
We can only infer the interest,
supposedly in its favor, from its bare
allegation that it has thousands of
members who are citizens-taxpayers-
registered voters and who are keenly
interested in a judicial clarification of the
constitutionality of the partisan
participation of religious leaders in
Philippine politics and in the process to
insure adherence to the Constitution by
everyone x x x.32  ςrνll
Such general averment does not,
however, suffice to constitute a legal
right or interest. Not only is the
presumed interest not personal in
character; it is likewise too vague, highly
speculative and uncertain.33 The Rules
require that the interest must be
material to the issue and affected by the
questioned act or instrument, as
distinguished from simple curiosity or
incidental interest in the question
raised.34 
ςrνll
To bolster its stance, SJS cites
the Corpus Juris Secundum and submits
that the [p]laintiff in a declaratory
judgment action does not seek to enforce
a claim against [the] defendant, but
seeks a judicial declaration of [the] rights
of the parties for the purpose of guiding
[their] future conduct, and the essential
distinction between a declaratory
judgment action and the usual action is
that no actual wrong need have been
committed or loss have occurred in order
to sustain the declaratory judgment
action, although there must be no
uncertainty that the loss will occur or
that the asserted rights will be
invaded.35 ςrνll
SJS has, however, ignored the crucial
point of its own reference that there
must be no uncertainty that the loss will
occur or that the asserted rights will be
invaded. Precisely, as discussed earlier, it
merely conjectures that herein petitioner
(and his co-respondents
below) might actively participate in
partisan politics, use the awesome voting
strength of its faithful flock [to] enable it
to elect men to public office x x x,
enabling [it] to control the
government.36  ςrνll
During the Oral Argument, though,
Petitioner Velarde and his co-
respondents below all strongly asserted
that they had not in any way engaged or
intended to participate in partisan
politics.They all firmly assured this Court
that they had not done anything to
trigger the issue raised and to entitle SJS
to the relief sought.
Indeed, the Court finds in the Petition for
Declaratory Relief no single allegation of
fact upon which SJS could base a right of
relief from the named respondents. In
any event, even granting that it
sufficiently asserted a legal right it
sought to protect, there was
nevertheless no certainty that such right
would be invaded by the said
respondents. Not even the alleged
proximity of the elections to the time the
Petition was filed below (January 28,
2003) would have provided the certainty
that it had a legal right that would be
jeopardized or violated by any of those
Respondents.  spending power.43 In the present case,
Legal Standing
Legal standing or locus standi has been
defined as a personal and substantial
interest in the case, such that the party
has sustained or will sustain direct injury
as a result of the challenged
act.37 Interest means a material interest
in issue that is affected by the
questioned act or instrument, as
distinguished from a mere incidental
interest in the question involved.38 
ςrνll
Petitioner alleges that [i]n seeking
declaratory relief as to the
constitutionality of an act of a religious
leader to endorse, or require the
members of the religious flock to vote for
a specific candidate, herein Respondent
SJS has no legal interest in the
controversy;39 it has failed to establish
how the resolution of the proffered
question would benefit or injure it.
Parties bringing suits challenging the
constitutionality of a law, an act or a
statute must show not only that the law
[or act] is invalid, but also that [they
have] sustained or [are] in immediate or
imminent danger of sustaining some
direct injury as a result of its
enforcement, and not merely that [they]
suffer thereby in some indefinite
way.40 They must demonstrate that they
have been, or are about to be, denied
some right or privilege to which they are
lawfully entitled, or that they are about
to be subjected to some burdens or
penalties by reason of the statute or act
complained of.41 ςrνll
First, parties suing as taxpayers must
specifically prove that they have
sufficient interest in preventing the illegal
expenditure of money raised by
taxation.42 A taxpayers action may be
properly brought only when there is an
exercise by Congress of its taxing or
there is no allegation, whether express
or implied, that taxpayers money is
being illegally disbursed.
Second, there was no showing in the
Petition for Declaratory Relief that SJS as
a political party or its members as
registered voters would be adversely
affected by the alleged acts of the
respondents below, if the question at
issue was not resolved. There was no
allegation that SJS had suffered or would
be deprived of votes due to the acts
imputed to the said respondents. Neither
did it allege that any of its members
would be denied the right of suffrage or
the privilege to be voted for a public
office they are seeking.
Finally, the allegedly keen interest of its
thousands of members who are citizens-
taxpayers-registered voters is too
general44 and beyond the contemplation
of the standards set by our
jurisprudence. Not only is the presumed
interest impersonal in character; it is
likewise too vague, highly speculative
and uncertain to satisfy the requirement
of standing.45
Transcendental Importance
In any event, SJS urges the Court to
take cognizance of the Petition, even
sans legal standing, considering that the
issues raised are of paramount public
interest.
In not a few cases, the Court has
liberalized the locus standi requirement
when a petition raises an issue of
transcendental significance or paramount
importance to the people.46Recently,
after holding that the IBP had no locus
standi to bring the suit, the Court in IBP
v. Zamora47 nevertheless entertained the
Petition therein. It noted that the IBP has
advanced constitutional issues which
deserve the attention of this Court in
view of their seriousness, novelty and
weight as precedents.48 ςrνll
Similarly in the instant case, the Court
deemed the constitutional issue raised in
the SJS Petition to be of paramount
interest to the Filipino people. The issue
did not simply concern a delineation of
the separation between church and state,
but ran smack into the governance of our
country. The issue was both
transcendental in importance and novel
in nature, since it had never been
decided before.
The Court, thus, called for Oral Argument
to determine with certainty whether it
could resolve the constitutional issue
despite the barren allegations in the SJS
Petition as well as the abbreviated
proceedings in the court below. Much to
its chagrin, however, counsels for the
parties -- particularly for Respondent SJS
-- made no satisfactory allegations or
clarifications that would supply the
deficiencies hereinabove discussed.
Hence, even if the Court would exempt
this case from the stringent locus
standi requirement, such heroic effort
would be futile because the
transcendental issue cannot be resolved
anyway.
Proper Proceedings Before  on motion of that party, direct judgment
the Trial Court
To prevent a repetition of this waste of
precious judicial time and effort, and for
the guidance of the bench and the bar,
the Court reiterates
the elementary procedure49 that must be
followed by trial courts in the conduct of
civil cases.50 
ςrνll
Prefatorily, the trial court may -- motu
proprio or upon motion of the defendant
-- dismiss a complaint51 (or petition, in a
special civil action) that does not allege
the plaintiffs (or petitioners) cause or
causes of action.52 A complaint or petition
should contain a plain, concise and direct
statement of the ultimate facts on which
the party pleading relies for his claim or
defense.53 It should likewise clearly
specify the relief sought.54 
ςrνll
Upon the filing of the complaint/petition
and the payment of the requisite legal
fees, the clerk of court shall forthwith
issue the corresponding summons to the
defendants or the respondents, with a
directive that the defendant
answer55 within 15 days, unless a
different period is fixed by the
court.56 The summons shall also contain
a notice that if such answer is not filed,
the plaintiffs/petitioners shall take a
judgment by default and may be granted
the relief applied for.57 The court,
however, may -- upon such terms as
may be just -- allow an answer to be
filed after the time fixed by the Rules.58  ςrνll
If the answer sets forth a counterclaim or
cross-claim, it must be answered within
ten (10) days from service.59 A reply may
be filed within ten (10) days from service
of the pleading responded to.60  ςrνll
When an answer fails to tender an issue
or admits the material allegations of the
adverse partys pleading, the court may,
on such pleading (except in actions for
declaration of nullity or annulment of
marriage or for legal
separation). 61 Meanwhile, a party
seeking to recover upon a claim, a
counterclaim or crossclaim -- or to obtain
a declaratory relief -- may, at any time
after the answer thereto has been
served, move for a summary judgment in
its favor.62 Similarly, a party against
whom a claim, a counterclaim or
crossclaim is asserted -- or a declaratory
relief sought -- may, at any time, move
for a summary judgment in its
favor.63 After the motion is heard, the
judgment sought shall be rendered
forthwith if there is a showing that,
except as to the amount of damages,
there is no genuine issue as to any
material fact; and that the moving party
is entitled to a judgment as a matter of
law.64 
ςrνll
Within the time for -- but before -- filing
the answer to the complaint or petition,
the defendant may file a motion to
dismiss based on any of the grounds
stated in Section 1 of Rule 16 of the
Rules of Court. During the hearing of the
motion, the parties shall submit their
arguments on the questions of law, and
their evidence on the questions of
fact.65After the hearing, the court may
dismiss the action or claim, deny the
motion, or order the amendment of the
pleadings. It shall not defer the
resolution of the motion for the reason
that the ground relied upon is not
indubitable. In every case, the resolution
shall state clearly and distinctly the
reasons therefor.66 ςrνll
If the motion is denied, the movant may
file an answer within the balance of the
period originally prescribed to file an
answer, but not less than five (5) days in
any event, computed from the receipt of
the notice of the denial. If the pleading is
ordered to be amended, the defendant
shall file an answer within fifteen (15)
days, counted from the service of the
amended pleading, unless the court
provides a longer period.67 ςrνll
After the last pleading has been served
and filed, the case shall be set for
pretrial,68 which is a mandatory
proceeding.69 A plaintiffs/ petitioners (or
its duly authorized representatives) non-
appearance at the pretrial, if without
valid cause, shall result in the dismissal
of the action with prejudice, unless the
court orders otherwise. A similar failure
on the part of the defendant shall be a
cause for allowing the plaintiff/petitioner
to present evidence ex parte, and the
court to render judgment on the basis
thereof.70 
ςrνll
The parties are required to file their
pretrial briefs; failure to do so shall have
the same effect as failure to appear at
the pretrial.71 Upon the termination
thereof, the court shall issue an order
reciting in detail the matters taken up at
the conference; the action taken on
them, the amendments allowed to the
pleadings; and the agreements or
admissions, if any, made by the parties
regarding any of the matters
considered.72 The parties may further
avail themselves of any of the modes of
discovery,73 if they so wish.
Thereafter, the case shall be set for
trial,74 in which the parties shall adduce
their respective evidence in support of
their claims and/or defenses. By their
written consent or upon the application
of either party, or on its own motion, the
court may also order any or all of the
issues to be referred to a commissioner,
who is to be appointed by it or to be
agreed upon by the parties.75 The trial or
hearing before the commissioner shall
proceed in all respects as it would if held
before the court.76 ςrνll
Upon the completion of such
proceedings, the commissioner shall file
with the court a written report on the
matters referred by the parties.77 The
report shall be set for hearing, after
which the court shall issue an order
adopting, modifying or rejecting it in
whole or in part; or recommitting it with
instructions; or requiring the parties to
present further evidence before the
commissioner or the court.78  ςrνll
Finally, a judgment or final order
determining the merits of the case shall
be rendered. The decision shall be in
writing, personally and directly prepared
by the judge, stating clearly and
distinctly the facts and the law on which
it is based, signed by the issuing
magistrate, and filed with the clerk of
court.79 
ςrνll
Based on these elementary guidelines,
let us examine the proceedings before
the trial court in the instant case.
First, with respect to the initiatory
pleading of the SJS. Even a cursory
perusal of the Petition immediately
reveals its gross inadequacy. It contained
no statement of ultimate facts upon
which the petitioner relied for its claim.
Furthermore, it did not specify the relief
it sought from the court, but merely
asked it to answer a hypothetical
question.
Relief, as contemplated in a legal action,
refers to a specific coercive measure
prayed for as a result of a violation of the
rights of a plaintiff or a petitioner.80 As
already discussed earlier, the Petition
before the trial court had no allegations
of fact81 or of any specific violation of the
petitioners rights, which the respondents
had a duty to respect. Such deficiency
amounted to a failure to state a cause of
action; hence, no coercive relief could be
sought and adjudicated. The Petition
evidently lacked substantive
requirements and, we repeat, should
have been dismissed at the outset.
Second, with respect to the trial court
proceedings. Within the period set to file
their respective answers to the SJS
Petition, Velarde, Villanueva and Manalo
filed Motions to Dismiss; Cardinal Sin, a
Comment; and Soriano, within a priorly
granted extended period, an Answer in
which he likewise prayed for the
dismissal of the Petition.82 SJS filed a
Rejoinder to the Motion of Velarde, who
subsequently filed a Sur-Rejoinder.
Supposedly, there were several
scheduled settings, in which the [c]ourt
was apprised of the respective positions
of the parties.83 The nature of such
settings -- whether pretrial or trial
hearings -- was not disclosed in the
records. Before ruling on the Motions to
Dismiss, the trial court issued an
Order84 dated May 8, 2003, directing the
parties to submit their memoranda.
Issued shortly thereafter was another
Order85 dated May 14, 2003, denying all
the Motions to Dismiss.
In the latter Order, the trial court
perfunctorily ruled: ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ
The Court now resolves to deny the
Motions to Dismiss, and after all the
memoranda are submitted, then, the
case shall be deemed as submitted for
resolution.86 
ςrνll
Apparently, contrary to the requirement
of Section 2 of Rule 16 of the Rules of
Court, the Motions were not
heard.Worse, the Order purportedly
resolving the Motions to Dismiss did not
state any reason at all for their denial, in
contravention of Section 3 of the said
Rule 16. There was not even any
statement of the grounds relied upon by
the Motions; much less, of the legal
findings and conclusions of the trial
court.
Thus, Velarde, Villanueva and Manalo
moved for reconsideration. Pending the
resolution of these Motions for
Reconsideration, Villanueva filed a Motion
to suspend the filing of the parties
memoranda. But instead of separately
resolving the pending Motions fairly and
squarely, the trial court again
transgressed the Rules of Court when it
immediately proceeded to issue its
Decision, even before tackling the issues
raised in those Motions.
Furthermore, the RTC issued its Decision
without allowing the parties to file their
answers. For this reason, there was no
joinder of the issues. If only it had
allowed the filing of those answers, the
trial court would have known, as the Oral
Argument revealed, that the petitioner
and his co-respondents below had not
committed or threatened to commit the
act attributed to them (endorsing
candidates) -- the act that was
supposedly the factual basis of the suit.
Parenthetically, the court a quo further
failed to give a notice of the Petition to
the OSG, which was entitled to be heard
upon questions involving the
constitutionality or validity of statutes
and other measures.87  ςrνll
Moreover, as will be discussed in more
detail, the questioned Decision of the
trial court was utterly wanting in the
requirements prescribed by the
Constitution and the Rules of Court.
All in all, during the loosely abbreviated
proceedings of the case, the trial court
indeed acted with inexplicable haste,
with total ignorance of the law -- or,
worse, in cavalier disregard of the rules
of procedure -- and with grave abuse of
discretion.
Contrary to the contentions of the trial
judge and of SJS, proceedings for
declaratory relief must still follow the
process described above -- the petition
must state a cause of action; the
proceedings must undergo the procedure
outlined in the Rules of Court; and the
decision must adhere to constitutional
and legal requirements.
First Substantive Issue:
Fundamental Requirements 
of a Decision
The Constitution commands that [n]o
decision shall be rendered by any court
without expressing therein clearly and
distinctly the facts and the law on which
it is based. No Petition for Review or
motion for reconsideration of a decision
of the court shall be refused due course
or denied without stating the basis
therefor.88  ςrνll
Consistent with this constitutional
mandate, Section 1 of Rule 36 of the
Rules on Civil Procedure similarly
provides:ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ
Sec. 1. Rendition of judgments and final
orders. A judgment or final order
determining the merits of the case shall
be in writing personally and directly
prepared by the judge, stating clearly
and distinctly the facts and the law on
which it is based, signed by him and filed
with the clerk of court.
In the same vein, Section 2 of Rule 120
of the Rules of Court on Criminal
Procedure reads as follows: ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ
Sec. 2. Form and contents of judgments.
-- The judgment must be written in the
official language, personally and directly
prepared by the judge and signed by him
and shall contain clearly and distinctly a
statement of the facts proved or
admitted by the accused and the law
upon which the judgment is based.
x     x     x.
Pursuant to the Constitution, this Court
also issued on January 28, 1988,
Administrative Circular No. 1, prompting
all judges to make complete findings of
facts in their decisions, and scrutinize
closely the legal aspects of the case in
the light of the evidence presented.They
should avoid the tendency to generalize
and form conclusions without detailing
the facts from which such conclusions
are deduced.
In many cases,89 this Court has time and
time again reminded magistrates to heed
the demand of Section 14, Article VIII of
the Constitution. The Court, through
Chief Justice Hilario G. Davide Jr. in Yao
v. Court of Appeals,90 discussed at length
the implications of this provision and
strongly exhorted thus: ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ
Faithful adherence to the requirements of
Section 14, Article VIII of the
Constitution is indisputably a paramount
component of due process and fair play.
It is likewise demanded by the due
process clause of the Constitution. The
parties to a litigation should be informed
of how it was decided, with an
explanation of the factual and legal
reasons that led to the conclusions of the
court. The court cannot simply say that
judgment is rendered in favor of X and
against Y and just leave it at that without
any justification whatsoever for its
action. The losing party is entitled to
know why he lost, so he may appeal to
the higher court, if permitted, should he
believe that the decision should be
reversed. A decision that does not clearly
and distinctly state the facts and the law
on which it is based leaves the parties in
the dark as to how it was reached and is
precisely prejudicial to the losing party,
who is unable to pinpoint the possible
errors of the court for review by a higher
tribunal. More than that, the requirement
is an assurance to the parties that, in
reaching judgment, the judge did so
through the processes of legal reasoning.
It is, thus, a safeguard against the
impetuosity of the judge, preventing him
from deciding ipse dixit. Vouchsafed
neither the sword nor the purse by the
Constitution but nonetheless vested with
the sovereign prerogative of passing
judgment on the life, liberty or property
of his fellowmen, the judge must
ultimately depend on the power of
reason for sustained public confidence in
the justness of his decision.
In People v. Bugarin,91 the Court also
explained:ςηαñrοblεš νιr†υαl  lαω lιbrαrÿ
The requirement that the decisions of
courts must be in writing and that they
must set forth clearly and distinctly the
facts and the law on which they are
based serves many functions. It is
intended, among other things, to inform
the parties of the reason or reasons for
the decision so that if any of them
appeals, he can point out to the appellate
court the finding of facts or the rulings
on points of law with which he disagrees.
More than that, the requirement is an
assurance to the parties that, in reaching
judgment, the judge did so through the
processes of legal reasoning. x x x.  chanroblesvirtuallawlibrary
Indeed, elementary due process
demands that the parties to a litigation
be given information on how the case
was decided, as well as an explanation of
the factual and legal reasons that led to
the conclusions of the court.92  ςrνll
In Madrid v. Court of Appeals,93 this
Court had instructed magistrates to exert
effort to ensure that their decisions
would present a comprehensive analysis
or account of the factual and legal
findings that would substantially address
the issues raised by the parties.
In the present case, it is starkly obvious
that the assailed Decision contains no
statement of facts -- much less an
assessment or analysis thereof -- or of
the courts findings as to the probable
facts. The assailed Decision begins with a
statement of the nature of the action and
the question or issue presented. Then
follows a brief explanation of the
constitutional provisions involved, and
what the Petition sought to achieve.
Thereafter, the ensuing procedural
incidents before the trial court are
tracked. The Decision proceeds to a full-
length opinion on the nature and the
extent of the separation of church and
state. Without expressly stating the final
conclusion she has reached or specifying
the relief granted or denied, the trial
judge ends her Decision with the clause
SO ORDERED.
What were the antecedents that
necessitated the filing of the Petition?
What exactly were the distinct facts that
gave rise to the question sought to be
resolved by SJS? More important, what
were the factual findings and analysis on
which the trial court based its legal
findings and conclusions? None were
stated or implied. Indeed, the RTCs
Decision cannot be upheld for its failure
to express clearly and distinctly the facts
on which it was based. Thus, the trial
court clearly transgressed the
constitutional directive.
The significance of factual findings lies in
the value of the decision as a precedent.
How can it be so if one cannot apply the
ruling to similar circumstances, simply
because such circumstances are
unknown? Otherwise stated, how will the
ruling be applied in the future, if there is
no point of factual comparison? chanroblesvirtualawlibrary
Moreover, the court a quo did not include
a resolutory or dispositive portion in its
so-called Decision. The importance of
such portion was explained in the early
case Manalang v. Tuason de
Rickards,94 from which we quote:
The resolution of the Court on a given
issue as embodied in the dispositive part
of the decision or order is the investitive
or controlling factor that determines and
settles the rights of the parties and the
questions presented therein,
notwithstanding the existence of
statements or declaration in the body of
said order that may be confusing.
The assailed Decision in the present case
leaves us in the dark as to its final
resolution of the Petition. To recall, the
original Petition was for declaratory
relief. So, what relief did the trial court
grant or deny? What rights of the parties
did it conclusively declare? Its final
statement says, SO ORDERED. But what
exactly did the court order? It had the
temerity to label its issuance a Decision,
when nothing was in fact decided. 
Respondent SJS insists that the
dispositive portion can be found in the
body of the assailed Decision. It claims
that the issue is disposed of and the
Petition finally resolved by the statement
of the trial court found on page 10 of its
14-page Decision, which reads:
Endorsement of specific candidates in an
election to any public office is a clear
violation of the separation clause.95 
ςrνll
We cannot agree.
In Magdalena Estate, Inc. v.
Caluag,96 the obligation of the party
imposed by the Court was allegedly
contained in the text of the original
Decision. The Court, however, held: ςηαñrοblεš  νιr†υαl  lαω lιbrαrÿ
x x x The quoted finding of the lower
court cannot supply deficiencies in the
dispositive portion. It is a mere opinion
of the court and the rule is settled that
where there is a conflict between
the dispositive part and the opinion, the
ςηαñrοblεš  νιr†υαl  lαω lιbrαrÿ
former must prevail over the latter on
the theory that the dispositive portion is
the final order while the opinion is merely
a statement ordering nothing. (Italics in
the original)  controversy and the issues involved. An
Thus, the dispositive portion cannot be
deemed to be the statement quoted by
SJS and embedded in the last paragraph
of page 10 of the assailed 14-page
Decision. If at all, that statement is
merely an answer to a hypothetical legal
question and just a part of the opinion of
the trial court. It does not conclusively
declare the rights (or obligations) of the
parties to the Petition. Neither does it
grant any -- much less, the proper --
relief under the circumstances, as
required of a dispositive portion.
Failure to comply with the constitutional
injunction is a grave abuse of discretion
amounting to lack or excess of
jurisdiction. Decisions or orders issued in
careless disregard of the constitutional
mandate are a patent nullity and must be
struck down as void.97
Parts of a Decision
In general, the essential parts of a good
decision consist of the following: (1)
statement of the case; (2) statement of
facts; (3) issues or assignment of errors;
(4) court ruling, in which each issue is,
as a rule, separately considered and
resolved; and, finally, (5) dispositive
portion. The ponente may also opt to
include an introduction or a prologue as
well as an epilogue, especially in cases in
which controversial or novel issues are
involved.98 
ςrνll
An introduction may consist of a concise
but comprehensive statement of the
principal factual or legal issue/s of the
case. In some cases -- particularly those
concerning public interest; or involving
complicated commercial, scientific,
technical or otherwise rare subject
matters -- a longer introduction or
prologue may serve to acquaint readers
with the specific nature of the
epilogue may be a summation of the
important principles applied to the
resolution of the issues of paramount
public interest or significance. It may
also lay down an enduring philosophy of
law or guiding principle.
Let us now, again for the guidance of the
bench and the bar, discuss the essential
parts of a good decision.
1.Statement of the Case
The Statement of the Case consists of a
legal definition of the nature of the
action.At the first instance, this part
states whether the action is a civil case
for collection, ejectment, quieting of title,
foreclosure of mortgage, and so on; or, if
it is a criminal case, this part describes
the specific charge -- quoted usually
from the accusatory portion of the
information -- and the plea of the
accused. Also mentioned here are
whether the case is being decided on
appeal or on a petition for certiorari , the
court of origin, the case number in the
trial court, and the dispositive portion of
the assailed decision.
In a criminal case, the verbatim
reproduction of the criminal information
serves as a guide in determining the
nature and the gravity of the offense for
which the accused may be found
culpable.As a rule, the accused cannot be
convicted of a crime different from or
graver than that charged.
Also, quoting verbatim the text of the
information is especially important when
there is a question on the sufficiency of
the charge, or on whether qualifying and
modifying circumstances have been
adequately alleged therein.
To ensure that due process is accorded,
it is important to give a short description
of the proceedings regarding the plea of
the accused. Absence of an arraignment,
or a serious irregularity therein, may
render the judgment void, and further
consideration by the appellate court
would be futile. In some instances,
especially in appealed cases, it would
also be useful to mention the fact of the
appellants detention, in order to dispose
of the preliminary query -- whether or
not they have abandoned their appeal by
absconding or jumping bail.
Mentioning the court of origin and the
case number originally assigned helps in
facilitating the consolidation of the
records of the case in both the trial and
the appellate courts, after entry of final
judgment.
Finally, the reproduction of the decretal
portion of the assailed decision informs
the reader of how the appealed case was
decided by the court a quo.
2.Statement of Facts
There are different ways of relating the
facts of the case. First, under the
objective or reportorial method, the
judge summarizes -- without comment --
the testimony of each witness and the
contents of each exhibit. Second, under
the synthesis method, the factual theory
of the plaintiff or prosecution and then
that of the defendant or defense is
summarized according to the judges best
light. Third, in the subjective method,
the version of the facts accepted by the
judge is simply narrated without
explaining what the parties versions
are. Finally, through a combination of
objective and subjective means, the
testimony of each witness is reported
and the judge then formulates his or her
own version of the facts.
In criminal cases, it is better to present
both the version of the prosecution and
that of the defense, in the interest of
fairness and due process. A detailed
evaluation of the contentions of the
parties must follow. The resolution of
most criminal cases, unlike civil and
other cases, depends to a large extent on
the factual issues and the appreciation of
the evidence. The plausibility or the
implausibility of each version can
sometimes be initially drawn from a
reading of the facts. Thereafter, the
bases of the court in arriving at its
findings and conclusions should be
explained.
On appeal, the fact that the assailed
decision of the lower court fully,
intelligently and correctly resolved all
factual and legal issues involved may
partly explain why the reviewing court
finds no reason to reverse the findings
and conclusions of the former.
Conversely, the lower courts patent
misappreciation of the facts or
misapplication of the law would aid in a
better understanding of why its ruling is
reversed or modified.
In appealed civil cases, the opposing sets
of facts no longer need to be presented.
Issues for resolution usually involve
questions of law, grave abuse of
discretion, or want of jurisdiction; hence,
the facts of the case are often
undisputed by the parties. With few
exceptions, factual issues are not
entertained in non-criminal
cases.Consequently, the narration of
facts by the lower court, if exhaustive
and clear, may be reproduced;
otherwise, the material factual
antecedents should be restated in the
words of the reviewing magistrate.
In addition, the reasoning of the lower
court or body whose decision is under
review should be laid out, in order that
the parties may clearly understand why
the lower court ruled in a certain way,
and why the reviewing court either finds
no reason to reverse it or concludes
otherwise.
3.Issues or Assignment of Errors
Both factual and legal issues should be
stated. On appeal, the assignment of
errors, as mentioned in the appellants
brief, may be reproduced in toto and
tackled seriatim,so as to avoid motions
for reconsideration of the final decision
on the ground that the court failed to
consider all assigned errors that could
affect the outcome of the case. But when
the appellant presents repetitive issues
or when the assigned errors do not strike
at the main issue, these may be restated
in clearer and more coherent terms.
Though not specifically questioned by the
parties, additional issues may also be
included, if deemed important for
substantial justice to be rendered. Note
that appealed criminal cases are
given de novo review, in contrast to
noncriminal cases in which the reviewing
court is generally limited to issues
specifically raised in the appeal. The few
exceptions are errors of jurisdiction;
questions not raised but necessary in
arriving at a just decision on the case; or
unassigned errors that are closely related
to those properly assigned, or upon
which depends the determination of the
question properly raised.
4.The Courts Ruling
This part contains a full discussion of the
specific errors or issues raised in the
complaint, petition or appeal, as the case
may be; as well as of other issues the
court deems essential to a just
disposition of the case. Where there are
several issues, each one of them should
be separately addressed, as much as
practicable. The respective contentions of
the parties should also be mentioned
here. When procedural questions are
raised in addition to substantive ones, it
is better to resolve the former
preliminarily.
5.The Disposition or Dispositive
Portion
In a criminal case, the disposition should
include a finding of innocence or guilt,
the specific crime committed, the penalty
imposed, the participation of the
accused, the modifying circumstances if
any, and the civil liability and costs. In
case an acquittal is decreed, the court
must order the immediate release of the
accused, if detained, (unless they are
being held for another cause) and order
the director of the Bureau of Corrections
(or wherever the accused is detained) to
report, within a maximum of ten (10)
days from notice, the exact date when
the accused were set free.
In a civil case as well as in a special civil
action, the disposition should state
whether the complaint or petition is
granted or denied, the specific relief
granted, and the costs.The following test
of completeness may be
applied. First, the parties should know
their rights and obligations. Second, they
should know how to execute the decision
under alternative
contingencies. Third, there should be no
need for further proceedings to dispose
of the issues. Fourth, the case should be
terminated by according the proper
relief. The proper relief usually depends
upon what the parties seek in their
pleadings. It may declare their rights and
duties, command the performance of
positive prestations, or order them to
abstain from specific acts. The
disposition must also adjudicate costs.
The foregoing parts need not always be
discussed in sequence. But they should
all be present and plainly identifiable in
the decision.Depending on the writers
character, genre and style, the language
should be fresh and free-flowing, not
necessarily stereotyped or in a fixed
form; much less highfalutin, hackneyed
and pretentious. At all times, however,
the decision must be clear, concise,
complete and correct.
Second Substantive Issue:
Religious Leaders Endorsement  Consequently, there is nothing for this
of Candidates for Public Office
The basic question posed in the SJS
Petition -- WHETHER ENDORSEMENTS OF
CANDIDACIES BY RELIGIOUS LEADERS
IS UNCONSTITUTIONAL -- undoubtedly
deserves serious consideration. As stated
earlier, the Court deems this
constitutional issue to be of paramount
interest to the Filipino citizenry, for it
concerns the governance of our country
and its people. Thus, despite the obvious
procedural transgressions by both SJS
and the trial court, this Court still called
for Oral Argument, so as not to leave any
doubt that there might be room to
entertain and dispose of the SJS Petition
on the merits.
Counsel for SJS has utterly failed,
however, to convince the Court that
there are enough factual and legal bases
to resolve the paramount issue. On the
other hand, the Office of the Solicitor
General has sided with petitioner insofar
as there are no facts supporting the SJS
Petition and the assailed Decision.  Let a copy of this Decision be furnished
We reiterate that the said Petition failed
to state directly the ultimate facts that it
relied upon for its claim. During the Oral
Argument, counsel for SJS candidly
admitted that there were no factual
allegations in its Petition for Declaratory
Relief.Neither were there factual findings
in the assailed Decision. At best, SJS
merely asked the trial court to answer a
hypothetical question. In effect, it merely
sought an advisory opinion, the rendition
of which was beyond the courts
constitutional mandate and
jurisdiction.99 
ςrνll
Indeed, the assailed Decision was
rendered in clear violation of the
Constitution, because it made no findings
of facts and final disposition. Hence, it is
void and deemed legally inexistent.
Court to review, affirm, reverse or even
just modify.
Regrettably, it is not legally possible for
the Court to take up, on the merits, the
paramount question involving a
constitutional principle. It is a time-
honored rule that the constitutionality of
a statute [or act] will be passed upon
only if, and to the extent that, it is
directly and necessarily involved in a
justiciable controversy and is essential to
the protection of the rights of the parties
concerned.100 ςrνll
WHEREFORE, the Petition for Review of
Brother Mike Velarde
is GRANTED. Theassailed June 12, 2003
Decision and July 29, 2003 Order of the
Regional Trial Court of Manila (Branch
49) are hereby DECLARED NULL AND
VOID and thus SET ASIDE.The SJS
Petition for Declaratory Relief
is DISMISSED for failure to state a cause
of action.
the Office of the Court Administrator to
evaluate and recommend whether the
trial judge may, after observing due
process, be held administratively liable
for rendering a decision violative of the
Constitution, the Rules of Court and
relevant circulars of this Court. No costs.
SO ORDERED.

Davide, Jr., C.J., Puno, Quisumbing,

Sandoval-Gutierrez, Carpio, Austria- G.R. No. 162230               April 28, 2010
Martinez, Carpio-Morales, Callejo,
Sr., Azcuna, and TINGA, JJ., concur.

Vitug, J., in the result.

Ynares-Santiago, J., no part.
The Treaty of Peace with Japan, insofar as it
Corona, J., on leave.
barred future claims such as those asserted by
plaintiffs in these actions, exchanged full
compensation of plaintiffs for a future peace.
History has vindicated the wisdom of that
bargain. And while full compensation for
plaintiffs’ hardships, in the purely economic
sense, has been denied these former prisoners
and countless other survivors of the war, the
immeasurable bounty of life for themselves and
their posterity in a free society and in a more
peaceful world services the debt.1

There is a broad range of vitally important

areas that must be regularly decided by the
Executive Department without either challenge
or interference by the Judiciary. One such area
involves the delicate arena of foreign relations.
It would be strange indeed if the courts and the
executive spoke with different voices in the
realm of foreign policy. Precisely because of
the nature of the questions presented, and the
lapse of more than 60 years since the conduct
complained of, we make no attempt to lay
down general guidelines covering other
situations not involved here, and confine the
opinion only to the very questions necessary to
reach a decision on this matter.

Factual Antecedents

This is an original Petition for Certiorari under

Rule 65 of the Rules of Court with an
application for the issuance of a writ of
preliminary mandatory injunction against the
Office of the Executive Secretary, the
Secretary of the Department of Foreign Affairs
(DFA), the Secretary of the Department of
Justice (DOJ), and the Office of the Solicitor
General (OSG).
Petitioners are all members of the MALAYA
LOLAS, a non-stock, non-profit organization
registered with the Securities and Exchange
Commission, established for the purpose of
providing aid to the victims of rape by
Japanese military forces in the Philippines
during the Second World War.
Petitioners narrate that during the Second
World War, the Japanese army attacked
villages and systematically raped the women
as part of the destruction of the village. Their
communities were bombed, houses were
looted and burned, and civilians were publicly
tortured, mutilated, and slaughtered. Japanese
soldiers forcibly seized the women and held
them in houses or cells, where they were
repeatedly raped, beaten, and abused by
Japanese soldiers. As a result of the actions of
their Japanese tormentors, the petitioners have
spent their lives in misery, having endured
physical injuries, pain and disability, and
mental and emotional suffering.2
Petitioners claim that since 1998, they have
approached the Executive Department through
the DOJ, DFA, and OSG, requesting
assistance in filing a claim against the
Japanese officials and military officers who
ordered the establishment of the “comfort
women” stations in the Philippines. However,
officials of the Executive Department declined
to assist the petitioners, and took the position
that the individual claims of the comfort women
for compensation had already been fully
satisfied by Japan’s compliance with the Peace
Treaty between the Philippines and Japan.
Issues
Hence, this petition where petitioners pray for
this court to (a) declare that respondents
committed grave abuse of discretion amounting
to lack or excess of discretion in refusing to
espouse their claims for the crimes against
humanity and war crimes committed against
them; and (b) compel the respondents to
espouse their claims for official apology and
other forms of reparations against Japan
before the International Court of Justice (ICJ)
and other international tribunals.
Petitioners’ arguments
Petitioners argue that the general waiver of
claims made by the Philippine government in
the Treaty of Peace with Japan is void. They
claim that the comfort women system
established by Japan, and the brutal rape and
enslavement of petitioners constituted a crime
against humanity,3 sexual slavery,4 and
5
torture.  They allege that the prohibition against
these international crimes is jus cogens norms
from which no derogation is possible; as such,
in waiving the claims of Filipina comfort women
and failing to espouse their complaints against
Japan, the Philippine government is in breach
of its legal obligation not to afford impunity for
crimes against humanity. Finally, petitioners
assert that the Philippine government’s
acceptance of the “apologies” made by Japan
as well as funds from the Asian Women’s Fund
(AWF) were contrary to international law.
Respondents’ Arguments
Respondents maintain that all claims of the
Philippines and its nationals relative to the war
were dealt with in the San Francisco Peace
Treaty of 1951 and the bilateral Reparations
Agreement of 1956.6
Article 14 of the Treaty of Peace7 provides:
Article 14. Claims and Property
a) It is recognized that Japan should pay
reparations to the Allied Powers for the
damage and suffering caused by it during the
war. Nevertheless it is also recognized that the
resources of Japan are not presently sufficient,
if it is to maintain a viable economy, to make
complete reparation for all such damage and
suffering and at the present time meet its other
obligations.
b) Except as otherwise provided in the present
Treaty, the Allied Powers waive all reparations
claims of the Allied Powers, other claims of the
Allied Powers and their nationals arising out of
any actions taken by Japan and its nationals in
the course of the prosecution of the war, and
claims of the Allied Powers for direct military
costs of occupation.
In addition, respondents argue that the
apologies made by Japan8 have been
satisfactory, and that Japan had addressed the
individual claims of the women through the
atonement money paid by the Asian Women’s
Fund.
Historical Background
The comfort women system was the tragic
legacy of the Rape of Nanking. In December
1937, Japanese military forces captured the
city of Nanking in China and began a “barbaric
campaign of terror” known as the Rape of
Nanking, which included the rapes and
murders of an estimated 20,000 to 80,000
Chinese women, including young girls,
pregnant mothers, and elderly women.9
In reaction to international outcry over the
incident, the Japanese government sought
ways to end international condemnation10 by
establishing the “comfort women” system.
Under this system, the military could
simultaneously appease soldiers’ sexual
appetites and contain soldiers’ activities within
a regulated environment.11 Comfort stations
would also prevent the spread of venereal
disease among soldiers and discourage
soldiers from raping inhabitants of occupied
territories.12
Daily life as a comfort woman was “unmitigated
misery.”13 The military forced victims into
barracks-style stations divided into tiny cubicles
where they were forced to live, sleep, and have
sex with as many 30 soldiers per day.14 The 30
minutes allotted for sexual relations with each
soldier were 30-minute increments of
unimaginable horror for the women.15 Disease
was rampant.16 Military doctors regularly
examined the women, but these checks were
carried out to prevent the spread of venereal
diseases; little notice was taken of the frequent
cigarette burns, bruises, bayonet stabs and
even broken bones inflicted on the women by
soldiers.
Fewer than 30% of the women survived the
war.17 Their agony continued in having to suffer
with the residual physical, psychological, and
emotional scars from their former lives. Some
returned home and were ostracized by their
families. Some committed suicide. Others, out
of shame, never returned home.18
Efforts to Secure Reparation
The most prominent attempts to compel the
Japanese government to accept legal
responsibility and pay compensatory damages
for the comfort women system were through a
series of lawsuits, discussion at the United
Nations (UN), resolutions by various nations,
and the Women’s International Criminal
Tribunal. The Japanese government, in turn,
responded through a series of public apologies
and the creation of the AWF.19
Lawsuits
In December 1991, Kim Hak-Sun and two other
survivors filed the first lawsuit in Japan by
former comfort women against the Japanese
government. The Tokyo District Court however
dismissed their case.20 Other suits
21
followed,  but the Japanese government has,
thus far, successfully caused the dismissal of
every case.22
Undoubtedly frustrated by the failure of
litigation before Japanese courts, victims of the
comfort women system brought their claims
before the United States (US). On September
18, 2000, 15 comfort women filed a class
action lawsuit in the US District Court for the
District of Columbia23“seeking money damages
for [allegedly] having been subjected to sexual
slavery and torture before and during World
War II,” in violation of “both positive and
customary international law.” The case was
filed pursuant to the Alien Tort Claims Act
(“ATCA”),24 which allowed the plaintiffs to sue
the Japanese government in a US federal
district court.25 On October 4, 2001, the district
court dismissed the lawsuit due to lack of
jurisdiction over Japan, stating that “[t]here is
no question that this court is not the
appropriate forum in which plaintiffs may seek
to reopen x x x discussions nearly half a
century later x x x [E]ven if Japan did not enjoy
sovereign immunity, plaintiffs’ claims are non-
justiciable and must be dismissed.”
The District of Columbia Court of Appeals
affirmed the lower court’s dismissal of the
case.26 On appeal, the US Supreme Court
granted the women’s petition for writ of
certiorari, vacated the judgment of the District
of Columbia Court of Appeals, and remanded
the case.27 On remand, the Court of Appeals
affirmed its prior decision, noting that “much as
we may feel for the plight of the appellants, the
courts of the US simply are not authorized to
hear their case.”28 The women again brought
their case to the US Supreme Court which
denied their petition for writ of certiorari on
February 21, 2006.
Efforts at the United Nations
In 1992, the Korean Council for the Women
Drafted for Military Sexual Slavery by Japan
(KCWS), submitted a petition to the UN Human
Rights Commission (UNHRC), asking for
assistance in investigating crimes committed
by Japan against Korean women and seeking
reparations for former comfort women.29 The
UNHRC placed the issue on its agenda and
appointed Radhika Coomaraswamy as the
issue’s special investigator. In 1996,
Coomaraswamy issued a Report reaffirming
Japan’s responsibility in forcing Korean women
to act as sex slaves for the imperial army, and
made the following recommendations:
A. At the national level
137. The Government of Japan should:
(a) Acknowledge that the system of comfort
stations set up by the Japanese Imperial Army
during the Second World War was a violation
of its obligations under international law and
accept legal responsibility for that violation;
(b) Pay compensation to individual victims of
Japanese military sexual slavery according to
principles outlined by the Special Rapporteur of
the Sub-Commission on Prevention of
Discrimination and Protection of Minorities on
the right to restitution, compensation and
rehabilitation for victims of grave violations of
human rights and fundamental freedoms. A
special administrative tribunal for this purpose
should be set up with a limited time-frame
since many of the victims are of a very
advanced age;
(c) Make a full disclosure of documents and
materials in its possession with regard to
comfort stations and other related activities of
the Japanese Imperial Army during the Second
World War;
(d) Make a public apology in writing to
individual women who have come forward and
can be substantiated as women victims of
Japanese military sexual slavery;
(e) Raise awareness of these issues by
amending educational curricula to reflect
historical realities;
(f) Identify and punish, as far as possible,
perpetrators involved in the recruitment and
institutionalization of comfort stations during
the Second World War.
Gay J. McDougal, the Special Rapporteur for
the UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities,
also presented a report to the Sub-Committee
on June 22, 1998 entitled Contemporary Forms
of Slavery: Systematic Rape, Sexual Slavery
and Slavery-like Practices During Armed
Conflict. The report included an appendix
entitled An Analysis of the Legal Liability of the
Government of Japan for ‘Comfort Women
Stations’ established during the Second World
War,30 which contained the following findings:
68. The present report concludes that the
Japanese Government remains liable for grave
violations of human rights and humanitarian
law, violations that amount in their totality to
crimes against humanity. The Japanese
Government’s arguments to the contrary,
including arguments that seek to attack the
underlying humanitarian law prohibition of
enslavement and rape, remain as
unpersuasive today as they were when they
were first raised before the Nuremberg war
crimes tribunal more than 50 years ago. In
addition, the Japanese Government’s
argument that Japan has already settled all
claims from the Second World War through
peace treaties and reparations agreements
following the war remains equally
unpersuasive. This is due, in large part, to the
failure until very recently of the Japanese
Government to admit the extent of the
Japanese military’s direct involvement in the
establishment and maintenance of these rape
centres. The Japanese Government’s silence
on this point during the period in which peace
and reparations agreements between Japan
and other Asian Governments were being
negotiated following the end of the war must,
as a matter of law and justice, preclude Japan
from relying today on these peace treaties to
extinguish liability in these cases.
69. The failure to settle these claims more than
half a century after the cessation of hostilities is
a testament to the degree to which the lives of
women continue to be undervalued. Sadly, this
failure to address crimes of a sexual nature
committed on a massive scale during the
Second World War has added to the level of
impunity with which similar crimes are
committed today. The Government of Japan
has taken some steps to apologize and atone
for the rape and enslavement of over 200,000
women and girls who were brutalized in
“comfort stations” during the Second World
War. However, anything less than full and
unqualified acceptance by the Government of
Japan of legal liability and the consequences
that flow from such liability is wholly
inadequate. It must now fall to the Government
of Japan to take the necessary final steps to
provide adequate redress.
The UN, since then, has not taken any official
action directing Japan to provide the
reparations sought.
Women’s International War Crimes  to make such an apology as a public statement
Tribunal
The Women’s International War Crimes
Tribunal (WIWCT) was a “people’s tribunal”
established by a number of Asian women and
human rights organizations, supported by an
international coalition of non-governmental
organizations.31 First proposed in 1998, the
WIWCT convened in Tokyo in 2000 in order to
“adjudicate Japan’s military sexual violence, in
particular the enslavement of comfort women,
to bring those responsible for it to justice, and
to end the ongoing cycle of impunity for
wartime sexual violence against women.”
After examining the evidence for more than a
year, the “tribunal” issued its verdict on
December 4, 2001, finding the former Emperor
Hirohito and the State of Japan guilty of crimes
against humanity for the rape and sexual
slavery of women.32 It bears stressing,
however, that although the tribunal included
prosecutors, witnesses, and judges, its
judgment was not legally binding since the
tribunal itself was organized by private citizens.
Action by Individual Governments
On January 31, 2007, US Representative
Michael Honda of California, along with six co-
sponsor representatives, introduced House
Resolution 121 which called for Japanese
action in light of the ongoing struggle for
closure by former comfort women. The
Resolution was formally passed on July 30,
2007,33 and made four distinct demands:
[I]t is the sense of the House of
Representatives that the Government of Japan
(1) should formally acknowledge, apologize,
and accept historical responsibility in a clear
and unequivocal manner for its Imperial Armed
Forces’ coercion of young women into sexual
slavery, known to the world as “comfort
women”, during its colonial and wartime
occupation of Asia and the Pacific Islands from
the 1930s through the duration of World War II;
(2) would help to resolve recurring questions
about the sincerity and status of prior
statements if the Prime Minister of Japan were
in his official capacity; (3) should clearly and
publicly refute any claims that the sexual
enslavement and trafficking of the “comfort
women” for the Japanese Imperial Army never
occurred; and (4) should educate current and
future generations about this horrible crime
while following the recommendations of the
international community with respect to the
“comfort women.”34
In December 2007, the European Parliament,
the governing body of the European Union,
drafted a resolution similar to House Resolution
121.35Entitled, “Justice for Comfort Women,”
the resolution demanded: (1) a formal
acknowledgment of responsibility by the
Japanese government; (2) a removal of the
legal obstacles preventing compensation; and
(3) unabridged education of the past. The
resolution also stressed the urgency with which
Japan should act on these issues, stating: “the
right of individuals to claim reparations against
the government should be expressly
recognized in national law, and cases for
reparations for the survivors of sexual slavery,
as a crime under international law, should be
prioritized, taking into account the age of the
survivors.”
The Canadian and Dutch parliaments have
each followed suit in drafting resolutions
against Japan. Canada’s resolution demands
the Japanese government to issue a formal
apology, to admit that its Imperial Military
coerced or forced hundreds of thousands of
women into sexual slavery, and to restore
references in Japanese textbooks to its war
crimes.36 The Dutch parliament’s resolution
calls for the Japanese government to uphold
the 1993 declaration of remorse made by Chief
Cabinet Secretary Yohei Kono.
The Foreign Affairs Committee of the United
Kingdom’s Parliament also produced a report
in November, 2008 entitled, “Global Security:
Japan and Korea” which concluded that Japan
should acknowledge the pain caused by the
issue of comfort women in order to ensure
cooperation between Japan and Korea.
Statements of Remorse made by
representatives of the Japanese government
Various officials of the Government of Japan
have issued the following public statements
concerning the comfort system:
a) Statement by the Chief Cabinet Secretary
Yohei Kono in 1993:
The Government of Japan has been
conducting a study on the issue of wartime
“comfort women” since December 1991. I wish
to announce the findings as a result of that
study.
As a result of the study which indicates that
comfort stations were operated in extensive
areas for long periods, it is apparent that there
existed a great number of comfort women.
Comfort stations were operated in response to
the request of the military authorities of the
day. The then Japanese military was, directly
or indirectly, involved in the establishment and
management of the comfort stations and the
transfer of comfort women. The recruitment of
the comfort women was conducted mainly by
private recruiters who acted in response to the
request of the military. The Government study
has revealed that in many cases they were
recruited against their own will, through
coaxing coercion, etc., and that, at times,
administrative/military personnel directly took
part in the recruitments. They lived in misery at
comfort stations under a coercive atmosphere.
As to the origin of those comfort women who
were transferred to the war areas, excluding
those from Japan, those from the Korean
Peninsula accounted for a large part. The
Korean Peninsula was under Japanese rule in
those days, and their recruitment, transfer,
control, etc., were conducted generally against
their will, through coaxing, coercion, etc.
Undeniably, this was an act, with the
involvement of the military authorities of the
day, that severely injured the honor and dignity
of many women. The Government of Japan
would like to take this opportunity once again to
extend its sincere apologies and remorse to all
those, irrespective of place of origin, who
suffered immeasurable pain and incurable
physical and psychological wounds as comfort
women.
It is incumbent upon us, the Government of
Japan, to continue to consider seriously, while
listening to the views of learned circles, how
best we can express this sentiment.
We shall face squarely the historical facts as
described above instead of evading them, and
take them to heart as lessons of history. We
hereby reiterated our firm determination never
to repeat the same mistake by forever
engraving such issues in our memories through
the study and teaching of history.
As actions have been brought to court in Japan
and interests have been shown in this issue
outside Japan, the Government of Japan shall
continue to pay full attention to this matter,
including private researched related thereto.
b) Prime Minister Tomiichi Murayama’s
Statement in 1994
On the issue of wartime “comfort women”,
which seriously stained the honor and dignity of
many women, I would like to take this
opportunity once again to express my profound
and sincere remorse and apologies”
c) Letters from the Prime Minister of Japan to
Individual Comfort Women
The issue of comfort women, with the
involvement of the Japanese military
authorities at that time, was a grave affront to
the honor and dignity of a large number of
women.
As Prime Minister of Japan, I thus extend anew
my most sincere apologies and remorse to all
the women who endured immeasurable and
painful experiences and suffered incurable
physical and psychological wounds as comfort
women.
I believe that our country, painfully aware of its
moral responsibilities, with feelings of apology
and remorse, should face up squarely to its
past history and accurately convey it to future
generations.
d) The Diet (Japanese Parliament) passed
resolutions in 1995 and 2005
Solemnly reflecting upon the many instances of
colonial rule and acts of aggression that
occurred in modern world history, and
recognizing that Japan carried out such acts in
the past and inflicted suffering on the people of
other countries, especially in Asia, the
Members of this House hereby express deep
remorse. (Resolution of the House of
Representatives adopted on June 9, 1995)
e) Various Public Statements by Japanese
Prime Minister Shinzo Abe
I have talked about this matter in the Diet
sessions last year, and recently as well, and to
the press. I have been consistent. I will stand
by the Kono Statement. This is our consistent
position. Further, we have been apologizing
sincerely to those who suffered immeasurable
pain and incurable psychological wounds as
comfort women. Former Prime Ministers,
including Prime Ministers Koizumi and
Hashimoto, have issued letters to the comfort
women. I would like to be clear that I carry the
same feeling. This has not changed even
slightly. (Excerpt from Remarks by Prime
Minister Abe at an Interview by NHK, March
11, 2007).
I am apologizing here and now. I am
apologizing as the Prime Minister and it is as
stated in the statement by the Chief Cabinet
Secretary Kono. (Excerpt from Remarks by
Prime Minister Abe at the Budget Committee,
the House of Councilors, the Diet of Japan,
March 26, 2007).
I am deeply sympathetic to the former comfort
women who suffered hardships, and I have
expressed my apologies for the extremely
agonizing circumstances into which they were
placed. (Excerpt from Telephone Conference
by Prime Minister Abe to President George W.
Bush, April 3, 2007).
I have to express sympathy from the bottom of
my heart to those people who were taken as
wartime comfort women. As a human being, I
would like to express my sympathies, and also
as prime minister of Japan I need to apologize
to them. My administration has been saying all
along that we continue to stand by the Kono
Statement. We feel responsible for having
forced these women to go through that
hardship and pain as comfort women under the
circumstances at the time. (Excerpt from an
interview article “A Conversation with Shinzo
Abe” by the Washington Post, April 22, 2007).
x x x both personally and as Prime Minister of
Japan, my heart goes out in sympathy to all
those who suffered extreme hardships as
comfort women; and I expressed my apologies
for the fact that they were forced to endure
such extreme and harsh conditions. Human
rights are violated in many parts of the world
during the 20th Century; therefore we must
work to make the 21st Century a wonderful
century in which no human rights are violated.
And the Government of Japan and I wish to
make significant contributions to that end.
(Excerpt from Prime Minister Abe’s remarks at
the Joint Press Availability after the summit
meeting at Camp David between Prime
Minister Abe and President Bush, April 27,
2007).
The Asian Women’s Fund
Established by the Japanese government in
1995, the AWF represented the government’s
concrete attempt to address its moral
responsibility by offering monetary
compensation to victims of the comfort women
system.37 The purpose of the AWF was to
show atonement of the Japanese people
through expressions of apology and remorse to
the former wartime comfort women, to restore
their honor, and to demonstrate Japan’s strong
respect for women.38
The AWF announced three programs for
former comfort women who applied for
assistance: (1) an atonement fund paying ¥2
million (approximately $20,000) to each
woman; (2) medical and welfare support
programs, paying ¥2.5-3 million ($25,000-
$30,000) for each woman; and (3) a letter of
apology from the Japanese Prime Minister to
each woman. Funding for the program came
from the Japanese government and private
donations from the Japanese people. As of
March 2006, the AWF provided ¥700 million
(approximately $7 million) for these programs
in South Korea, Taiwan, and the Philippines;
¥380 million (approximately $3.8 million) in
Indonesia; and ¥242 million (approximately
$2.4 million) in the Netherlands.
On January 15, 1997, the AWF and the
Philippine government signed a Memorandum
of Understanding for medical and welfare
support programs for former comfort women.
Over the next five years, these were
implemented by the Department of Social
Welfare and Development.
Our Ruling
Stripped down to its essentials, the issue in this
case is whether the Executive Department
committed grave abuse of discretion in not
espousing petitioners’ claims for official
apology and other forms of reparations against
Japan.
The petition lacks merit.
From a Domestic Law Perspective, the
Executive Department has the exclusive
prerogative to determine whether to espouse
petitioners’ claims against Japan.
Baker v. Carr39 remains the starting point for
analysis under the political question doctrine.
There the US Supreme Court explained that:
x x x Prominent on the surface of any case
held to involve a political question is found a
textually demonstrable constitutional
commitment of the issue to a coordinate
political department or a lack of judicially
discoverable and manageable standards for
resolving it, or the impossibility of deciding
without an initial policy determination of a kind
clearly for non-judicial discretion; or the
impossibility of a court’s undertaking
independent resolution without expressing lack
of the respect due coordinate branches of
government; or an unusual need for
unquestioning adherence to a political decision
already made; or the potentiality of
embarrassment from multifarious
pronouncements by various departments on
question.
In Tañada v. Cuenco,40 we held that political
questions refer “to those questions which,
under the Constitution, are to be decided by
the people in their sovereign capacity, or in
regard to which full discretionary authority has
been delegated to the legislative or executive
branch of the government. It is concerned with
issues dependent upon the wisdom, not legality
of a particular measure.”
Certain types of cases often have been found
to present political questions.41 One such
category involves questions of foreign
relations. It is well-established that “[t]he
conduct of the foreign relations of our
government is committed by the Constitution to
the executive and legislative—’the political’—
departments of the government, and the
propriety of what may be done in the exercise
of this political power is not subject to judicial
inquiry or decision.”42 The US Supreme Court
has further cautioned that decisions relating to
foreign policy are delicate, complex, and
involve large elements of prophecy. They are
and should be undertaken only by those
directly responsible to the people whose
welfare they advance or imperil. They are
decisions of a kind for which the Judiciary has
neither aptitude, facilities nor responsibility.43
To be sure, not all cases implicating foreign
relations present political questions, and courts
certainly possess the authority to construe or
invalidate treaties and executive
agreements.44 However, the question whether
the Philippine government should espouse
claims of its nationals against a foreign
government is a foreign relations matter, the
authority for which is demonstrably committed
by our Constitution not to the courts but to the
political branches. In this case, the Executive
Department has already decided that it is to the
best interest of the country to waive all claims
of its nationals for reparations against Japan in
the Treaty of Peace of 1951. The wisdom of
such decision is not for the courts to question.
Neither could petitioners herein assail the said
determination by the Executive
Department via the instant petition
for certiorari.
In the seminal case of US v. Curtiss-Wright
Export Corp.,45 the US Supreme Court held
that “[t]he President is the sole organ of the
nation in its external relations, and its sole
representative with foreign relations.”
It is quite apparent that if, in the maintenance
of our international relations, embarrassment—
perhaps serious embarrassment—is to be
avoided and success for our aims achieved,
congressional legislation which is to be made
effective through negotiation and inquiry within
the international field must often accord to the
President a degree of discretion and freedom
from statutory restriction which would not be
admissible where domestic affairs alone
involved. Moreover, he, not Congress, has the
better opportunity of knowing the conditions
which prevail in foreign countries, and
especially is this true in time of war. He has his
confidential sources of information. He has his
agents in the form of diplomatic, consular and
other officials. x x x
This ruling has been incorporated in our
jurisprudence through Bayan v. Executive
Secretary46 and Pimentel v. Executive
Secretary;47 its overreaching principle was,
perhaps, best articulated in (now Chief) Justice
Puno’s dissent in Secretary of Justice v.
Lantion:48
x x x The conduct of foreign relations is full of
complexities and consequences, sometimes
with life and death significance to the nation
especially in times of war. It can only be
entrusted to that department of government
which can act on the basis of the best available
information and can decide with decisiveness.
x x x It is also the President who possesses the
most comprehensive and the most confidential
information about foreign countries for our
diplomatic and consular officials regularly brief
him on meaningful events all over the world.
He has also unlimited access to ultra-sensitive
military intelligence data. In fine, the
presidential role in foreign affairs is dominant
and the President is traditionally accorded a
wider degree of discretion in the conduct of
foreign affairs. The regularity, nay, validity of
his actions are adjudged under less stringent
standards, lest their judicial repudiation lead to
breach of an international obligation, rupture of
state relations, forfeiture of confidence, national
embarrassment and a plethora of other
problems with equally undesirable
consequences.
The Executive Department has determined that
taking up petitioners’ cause would be inimical
to our country’s foreign policy interests, and
could disrupt our relations with Japan, thereby
creating serious implications for stability in this
region. For us to overturn the Executive
Department’s determination would mean an
assessment of the foreign policy judgments by
a coordinate political branch to which authority
to make that judgment has been
constitutionally committed.
In any event, it cannot reasonably be
maintained that the Philippine government was
without authority to negotiate the Treaty of
Peace with Japan. And it is equally true that,
since time immemorial, when negotiating
peace accords and settling international claims:
x x x [g]overnments have dealt with x x x
private claims as their own, treating them as
national assets, and as counters, `chips’, in
international bargaining. Settlement
agreements have lumped, or linked, claims
deriving from private debts with others that
were intergovernmental in origin, and
concessions in regard to one category of
claims might be set off against concessions in
the other, or against larger political
considerations unrelated to debts.49
Indeed, except as an agreement might
otherwise provide, international settlements
generally wipe out the underlying private
claims, thereby terminating any recourse under
domestic law. In Ware v. Hylton,50 a case
brought by a British subject to recover a debt
confiscated by the Commonwealth of Virginia
during the war, Justice Chase wrote:
I apprehend that the treaty of peace abolishes
the subject of the war, and that after peace is
concluded, neither the matter in dispute, nor
the conduct of either party, during the war, can
ever be revived, or brought into contest again.
All violences, injuries, or damages sustained by
the government, or people of either, during the
war, are buried in oblivion; and all those things
are implied by the very treaty of peace; and
therefore not necessary to be expressed.
Hence it follows, that the restitution of, or
compensation for, British property confiscated,
or extinguished, during the war, by any of the
United States, could only be provided for by the
treaty of peace; and if there had been no
provision, respecting these subjects, in the
treaty, they could not be agitated after the
treaty, by the British government, much less by
her subjects in courts of justice. (Emphasis
supplied).
This practice of settling claims by means of a
peace treaty is certainly nothing new. For
instance, in Dames & Moore v. Regan,51 the
US Supreme Court held:
Not infrequently in affairs between nations,
outstanding claims by nationals of one country
against the government of another country are
“sources of friction” between the two
sovereigns. United States v. Pink, 315 U.S.
203, 225, 62 S.Ct. 552, 563, 86 L.Ed. 796
(1942). To resolve these difficulties, nations
have often entered into agreements settling the
claims of their respective nationals. As one
treatise writer puts it, international agreements
settling claims by nationals of one state against
the government of another “are established
international practice reflecting traditional
international theory.” L. Henkin, Foreign Affairs
and the Constitution 262 (1972). Consistent
with that principle, the United States has
repeatedly exercised its sovereign authority to
settle the claims of its nationals against foreign
countries. x x x Under such agreements, the
President has agreed to renounce or extinguish
claims of United States nationals against
foreign governments in return for lump-sum
payments or the establishment of arbitration
procedures. To be sure, many of these
settlements were encouraged by the United
States claimants themselves, since a
claimant’s only hope of obtaining any payment
at all might lie in having his Government
negotiate a diplomatic settlement on his behalf.
But it is also undisputed that the “United States
has sometimes disposed of the claims of its
citizens without their consent, or even without
consultation with them, usually without
exclusive regard for their interests, as
distinguished from those of the nation as a
whole.” Henkin, supra, at 262-263. Accord,
Restatement (Second) of Foreign Relations
Law of the United States § 213 (1965)
(President “may waive or settle a claim against
a foreign state x x x [even] without the consent
of the [injured] national”). It is clear that the
practice of settling claims continues today.
Respondents explain that the Allied Powers
concluded the Peace Treaty with Japan not
necessarily for the complete atonement of the
suffering caused by Japanese aggression
during the war, not for the payment of
adequate reparations, but for security
purposes. The treaty sought to prevent the
spread of communism in Japan, which
occupied a strategic position in the Far East.
Thus, the Peace Treaty compromised
individual claims in the collective interest of the
free world.
This was also the finding in a similar case
involving American victims of Japanese slave
labor during the war.52 In a consolidated case
in the Northern District of California,53 the court
dismissed the lawsuits filed, relying on the
1951 peace treaty with Japan,54 because of the
following policy considerations:
The official record of treaty negotiations
establishes that a fundamental goal of the
agreement was to settle the reparations issue
once and for all. As the statement of the chief
United States negotiator, John Foster Dulles,
makes clear, it was well understood that
leaving open the possibility of future claims
would be an unacceptable impediment to a
lasting peace:
Reparation is usually the most controversial
aspect of peacemaking. The present peace is
no exception.
On the one hand, there are claims both vast
and just. Japan’s aggression caused
tremendous cost, losses and suffering.
On the other hand, to meet these claims, there
stands a Japan presently reduced to four home
islands which are unable to produce the food
its people need to live, or the raw materials
they need to work. x x x
The policy of the United States that Japanese
liability for reparations should be sharply limited
was informed by the experience of six years of
United States-led occupation of Japan. During
the occupation the Supreme Commander of
the Allied Powers (SCAP) for the region,
General Douglas MacArthur, confiscated
Japanese assets in conjunction with the task of
managing the economic affairs of the
vanquished nation and with a view to
reparations payments. It soon became clear
that Japan’s financial condition would render
any aggressive reparations plan an exercise in
futility. Meanwhile, the importance of a stable,
democratic Japan as a bulwark to communism
in the region increased. At the end of 1948,
MacArthur expressed the view that “[t]he use of
reparations as a weapon to retard the
reconstruction of a viable economy in Japan
should be combated with all possible means”
and “recommended that the reparations issue
be settled finally and without delay.”
That this policy was embodied in the treaty is
clear not only from the negotiations history but
also from the Senate Foreign Relations
Committee report recommending approval of
the treaty by the Senate. The committee noted,
for example:
Obviously insistence upon the payment of
reparations in any proportion commensurate
with the claims of the injured countries and
their nationals would wreck Japan’s economy,
dissipate any credit that it may possess at
present, destroy the initiative of its people, and
create misery and chaos in which the seeds of
discontent and communism would flourish. In
short, [it] would be contrary to the basic
purposes and policy of x x x the United States
x x x.
We thus hold that, from a municipal law
perspective, that certiorari will not lie. As a
general principle—and particularly here, where
such an extraordinary length of time has lapsed
between the treaty’s conclusion and our
consideration—the Executive must be given
ample discretion to assess the foreign policy
considerations of espousing a claim against
Japan, from the standpoint of both the interests
of the petitioners and those of the Republic,
and decide on that basis if apologies are
sufficient, and whether further steps are
appropriate or necessary.
The Philippines is not under any international
obligation to espouse petitioners’ claims.
In the international sphere, traditionally, the
only means available for individuals to bring a
claim within the international legal system has
been when the individual is able to persuade a
government to bring a claim on the individual’s
behalf.55 Even then, it is not the individual’s
rights that are being asserted, but rather, the
state’s own rights. Nowhere is this position
more clearly reflected than in the dictum of the
Permanent Court of International Justice (PCIJ)
in the 1924 Mavrommatis Palestine
Concessions Case:
By taking up the case of one of its subjects and
by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in
reality asserting its own right to ensure, in the
person of its subjects, respect for the rules of
international law. The question, therefore,
whether the present dispute originates in an
injury to a private interest, which in point of fact
is the case in many international disputes, is
irrelevant from this standpoint. Once a State
has taken up a case on behalf of one of its
subjects before an international tribunal, in the
eyes of the latter the State is sole claimant.56
Since the exercise of diplomatic protection is
the right of the State, reliance on the right is
within the absolute discretion of states, and the
decision whether to exercise the discretion may
invariably be influenced by political
considerations other than the legal merits of
the particular claim.57 As clearly stated by the
ICJ in
Barcelona Traction:
The Court would here observe that, within the
limits prescribed by international law, a State
may exercise diplomatic protection by whatever
means and to whatever extent it thinks fit, for it
is its own right that the State is asserting.
Should the natural or legal person on whose
behalf it is acting consider that their rights are
not adequately protected, they have no remedy
in international law. All they can do is resort to
national law, if means are available, with a view
to furthering their cause or obtaining redress.
The municipal legislator may lay upon the State
an obligation to protect its citizens abroad, and
may also confer upon the national a right to
demand the performance of that obligation, and
clothe the right with corresponding sanctions.
However, all these questions remain within the
province of municipal law and do not affect the
position internationally.58 (Emphasis supplied)
The State, therefore, is the sole judge to decide
whether its protection will be granted, to what
extent it is granted, and when will it cease. It
retains, in this respect, a discretionary power
the exercise of which may be determined by
considerations of a political or other nature,
unrelated to the particular case.
The International Law Commission’s (ILC’s)
Draft Articles on Diplomatic Protection fully
support this traditional view. They (i) state that
“the right of diplomatic protection belongs to or
vests in the State,”59 (ii) affirm its discretionary
nature by clarifying that diplomatic protection is
a “sovereign prerogative” of the State;60 and (iii)
stress that the state “has the right to exercise
diplomatic protection on behalf of a national. It
is under no duty or obligation to do so.”61
It has been argued, as petitioners argue now,
that the State has a duty to protect its nationals
and act on his/her behalf when rights are
injured.62However, at present, there is no
sufficient evidence to establish a general
international obligation for States to exercise
diplomatic protection of their own nationals
abroad.63 Though, perhaps desirable, neither
state practice nor opinio juris has evolved in
such a direction. If it is a duty internationally, it
is only a moral and not a legal duty, and there
is no means of enforcing its fulfillment.64
We fully agree that rape, sexual slavery,
torture, and sexual violence are morally
reprehensible as well as legally prohibited
under contemporary international
law.65 However, petitioners take quite a
theoretical leap in claiming that these
proscriptions automatically imply that that the
Philippines is under a non-derogable obligation
to prosecute international crimes, particularly
since petitioners do not demand the imputation
of individual criminal liability, but seek to
recover monetary reparations from the state of
Japan. Absent the consent of states, an
applicable treaty regime, or a directive by the
Security Council, there is no non-derogable
duty to institute proceedings against Japan.
Indeed, precisely because of states’ reluctance
to directly prosecute claims against another
state, recent developments support the modern
trend to empower individuals to directly
participate in suits against perpetrators of
international crimes.66 Nonetheless,
notwithstanding an array of General Assembly
resolutions calling for the prosecution of crimes
against humanity and the strong policy
arguments warranting such a rule, the practice
of states does not yet support the present
existence of an obligation to prosecute
international crimes.67 Of course a customary
duty of prosecution is ideal, but we cannot find
enough evidence to reasonably assert its
existence. To the extent that any state practice
in this area is widespread, it is in the practice of
granting amnesties, immunity, selective
prosecution, or de facto impunity to those who
commit crimes against humanity.”68
Even the invocation of jus cogens norms and
erga omnes obligations will not alter this
analysis. Even if we sidestep the question of
whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the
crimes committed by the Japanese army
violated jus cogens prohibitions at the time the
Treaty of Peace was signed, or that the duty to
prosecute perpetrators of international crimes
is an erga omnes obligation or has attained the
status of jus cogens.
The term erga omnes (Latin: in relation to
everyone) in international law has been used
as a legal term describing obligations owed by
States towards the community of states as a
whole. The concept was recognized by the ICJ
in Barcelona Traction:
x x x an essential distinction should be drawn
between the obligations of a State towards the
international community as a whole, and those
arising vis-à-vis another State in the field of
diplomatic protection. By their very nature, the
former are the concern of all States. In view of
the importance of the rights involved, all States
can be held to have a legal interest in their
protection; they are obligations erga omnes.
Such obligations derive, for example, in
contemporary international law, from the
outlawing of acts of aggression, and of
genocide, as also from the principles and rules
concerning the basic rights of the human
person, including protection from slavery and
racial discrimination. Some of the
corresponding rights of protection have entered
into the body of general international law …
others are conferred by international
instruments of a universal or quasi-universal
character.
The Latin phrase, ‘erga omnes,’ has since
become one of the rallying cries of those
sharing a belief in the emergence of a value-
based international public order. However, as
is so often the case, the reality is neither so
clear nor so bright. Whatever the relevance of
obligations erga omnes as a legal concept, its
full potential remains to be realized in
practice.69
The term is closely connected with the
international law concept of jus cogens. In
international law, the term “jus cogens”
(literally, “compelling law”) refers to norms that
command peremptory authority, superseding
conflicting treaties and custom. Jus cogens
norms are considered peremptory in the sense
that they are mandatory, do not admit
derogation, and can be modified only by
general international norms of equivalent
authority.70
Early strains of the jus cogens doctrine have
existed since the 1700s,71 but peremptory
norms began to attract greater scholarly
attention with the publication of Alfred von
Verdross’s influential 1937 article, Forbidden
Treaties in International Law.72 The recognition
of jus cogens gained even more force in the
1950s and 1960s with the ILC’s preparation of
the Vienna Convention on the Law of Treaties
(VCLT).73 Though there was a consensus that
certain international norms had attained the
status of jus cogens,74 the ILC was unable to
reach a consensus on the proper criteria for
identifying peremptory norms.
After an extended debate over these and other
theories of jus cogens, the ILC concluded
ruefully in 1963 that “there is not as yet any
generally accepted criterion by which to identify
a general rule of international law as having the
character of jus cogens.”75 In a commentary
accompanying the draft convention, the ILC
indicated that “the prudent course seems to be
to x x x leave the full content of this rule to be
worked out in State practice and in the
jurisprudence of international tribunals.”76 Thus,
while the existence of jus cogens in
international law is undisputed, no consensus
exists on its substance,77 beyond a tiny core of
principles and rules.78

Of course, we greatly sympathize with the

cause of petitioners, and we cannot begin to
comprehend the unimaginable horror they
underwent at the hands of the Japanese
soldiers. We are also deeply concerned that, in
apparent contravention of fundamental
principles of law, the petitioners appear to be
without a remedy to challenge those that have
offended them before appropriate fora.
Needless to say, our government should take
the lead in protecting its citizens against
violation of their fundamental human rights.
Regrettably, it is not within our power to order
the Executive Department to take up the
petitioners’ cause. Ours is only the power
to urge and exhort the Executive Department
to take up petitioners’ cause.

WHEREFORE, the Petition is hereby

DISMISSED.

SO ORDERED.