G.R. No. 160261             November 10, 2003
160263 November 10, 2003
ERNESTO B. FRANCISCO, JR., petitioner,  ARTURO M. DE CASTRO AND SOLEDAD M.
NAGMAMALASAKIT NA MGA MANANANGGOL NG MGA
MANGGAGAWANG PILIPINO, INC., ITS OFFICERS AND
MEMBERS, petitioner-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-intervention,  FRANKLIN M. DRILON, IN HIS CAPACITY AS SENATE
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY
SPEAKER JOSE G. DE VENECIA, THE SENATE, REPRESENTED
BY SENATE PRESIDENT FRANKLIN M. DRILON,
REPRESENTATIVE GILBERTO C. TEODORO, JR. AND
REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, respondents.
JAIME N. SORIANO, respondent-in-Intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160262 November 10, 2003
SEDFREY M. CANDELARIA, CARLOS P. MEDINA, JR. AND
HENEDINA RAZON-ABAD, petitioners,
ATTYS. ROMULO B. MACALINTAL AND PETE QUIRINO
QUADRA, petitioners-in-intervention,
WORLD WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-intervention,  LANOT, KIM BERNARDO-LOKIN, MARCELINO LIBANAN,
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER
OR ACTING SPEAKER OR PRESIDING OFFICER, SPEAKER
JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO G.
TEODORO, JR., REPRESENTA-TIVE FELIX WILLIAM B.
FUENTEBELLA, THE SENATE OF THE PHILIPPINES,
THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN
M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No.
CAGAMPANG, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioners-in-intervention, 
vs.
PRESIDENT, AND JOSE G. DE VENECIA, JR., IN HIS
CAPACITY AS SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160277 November 10, 2003
FRANCISCO I. CHAVEZ, petitioner,
WORLD WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-intervention, 
vs.
JOSE G. DE VENECIA, IN HIS CAPACITY AS SPEAKER OF THE
HOUSE OF REPRESENTATIVES, FRANKLIN M. DRILON, IN
HIS CAPACITY AS PRESIDENT OF THE SENATE OF THE
REPUBLIC OF THE PHILIPPINES, GILBERT TEODORO, JR.,
FELIX WILLIAM FUENTEBELLA, JULIO LEDESMA IV, HENRY
EMMYLOU TALIÑO-SANTOS, DOUGLAS CAGAS, SHERWIN
GATCHALIAN, LUIS BERSAMIN, JR., NERISSA SOON-RUIZ,
ERNESTO NIEVA, EDGAR ERICE, ISMAEL MATHAY, SAMUEL
DANGWA, ALFREDO MARAÑON, JR., CECILIA CARREON-
JALOSJOS, AGAPITO AQUINO, FAUSTO SEACHON, JR.,
GEORGILU YUMUL-HERMIDA, JOSE CARLOS LACSON,
MANUEL ORTEGA, ULIRAN JUAQUIN, SORAYA JAAFAR,
WILHELMINO SY-ALVARADO, CLAUDE BAUTISTA, DEL DE
GUZMAN, ZENAIDA CRUZ-DUCUT, AUGUSTO BACULIO,
FAUSTINO DY III, AUGUSTO SYJUCO, ROZZANO RUFINO
BIAZON, LEOVIGILDO BANAAG, ERIC SINGSON, JACINTO
PARAS, JOSE SOLIS, RENATO MATUBO, HERMINO TEVES,
AMADO ESPINO, JR., EMILIO MACIAS, ARTHUR PINGOY, JR.,
FRANCIS NEPOMUCENO, CONRADO ESTRELLA III, ELIAS
BULUT, JR., JURDIN ROMUALDO, JUAN PABLO BONDOC,
GENEROSO TULAGAN, PERPETUO YLAGAN, MICHAEL
DUAVIT, JOSEPH DURANO, JESLI LAPUS, CARLOS
COJUANGCO, GIORGIDI AGGABAO, FRANCIS ESCUDERRO,
RENE VELARDE, CELSO LOBREGAT, ALIPIO BADELLES,
DIDAGEN DILANGALEN, ABRAHAM MITRA, JOSEPH
SANTIAGO, DARLENE ANTONIO-CUSTODIO, ALETA SUAREZ,
RODOLF PLAZA, JV BAUTISTA, GREGORIO IPONG, GILBERT
REMULLA, ROLEX SUPLICO, CELIA LAYUS, JUAN MIGUEL
ZUBIRI, BENASING MACARAMBON, JR., JOSEFINA JOSON,
MARK COJUANGCO, MAURICIO DOMOGAN, RONALDO
ZAMORA, ANGELO MONTILLA, ROSELLER BARINAGA,
JESNAR FALCON, REYLINA NICOLAS, RODOLFO ALBANO,
JOAQUIN CHIPECO, JR., AND RUY ELIAS LOPEZ, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160292 November 10, 2003
HERMINIO HARRY L. ROQUE, JR., JOEL RUIZ BUTUYAN, MA.
CECILIA PAPA, NAPOLEON C. REYES, ANTONIO H. ABAD,
JR., ALFREDO C. LIGON, JOAN P. SERRANO AND GARY S.
MALLARI, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-intervention,  MONICO PABLES, JR., JAIME BOAQUINA, LITA A. AQUINO,
vs.
HON. SPEAKER JOSE G. DE VENECIA, JR. AND ROBERTO P.
NAZARENO, IN HIS CAPACITY AS SECRETARY GENERAL OF
THE HOUSE OF REPRESENTATIVES, AND THE HOUSE OF
REPRESENTATIVES,respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160295 November 10, 2003
SALACNIB F. BATERINA AND DEPUTY SPEAKER RAUL M.
GONZALES, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-intervention,
vs.
THE HOUSE OF REPRESEN-TATIVES, THROUGH THE
SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER,
SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO
G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, THE SENATE OF THE PHILIPPINES,
THROUGH ITS PRESIDENT, SENATE PRESIDENT FRANKLIN
M. DRILON, respondents,
JAIME N. SORIANO, respondent-in-intervention,
SENATOR AQUILINO Q. PIMENTEL, respondent-in-intervention.
x---------------------------------------------------------x
G.R. No. 160310 November 10, 2003
LEONILO R. ALFONSO, PETER ALVAREZ, SAMUEL DOCTOR,
MELVIN MATIBAG, RAMON MIQUIBAS, RODOLFO MAGSINO,
EDUARDO MALASAGA, EDUARDO SARMIENTO, EDGARDO
NAOE, LEONARDO GARCIA, EDGARD SMITH, EMETERIO
MENDIOLA, MARIO TOREJA, GUILLERMO CASTASUS,
NELSON A. LOYOLA, WILFREDO BELLO, JR., RONNIE
TOQUILLO, KATE ANN VITAL, ANGELITA Q. GUZMAN,
MILA P. GABITO, JANETTE ARROYO, RIZALDY EMPIG, ERNA
LAHUZ, HOMER CALIBAG, DR. BING ARCE, SIMEON ARCE,
JR., EL DELLE ARCE, WILLIE RIVERO, DANTE DIAZ,
ALBERTO BUENAVISTA, FAUSTO BUENAVISTA, EMILY
SENERIS, ANNA CLARISSA LOYOLA, SALVACION LOYOLA,
RAINIER QUIROLGICO, JOSEPH LEANDRO LOYOLA,
ANTONIO LIBREA, FILEMON SIBULO, MANUEL D. COMIA,
JULITO U. SOON, VIRGILIO LUSTRE, AND NOEL ISORENA,
MAU RESTRIVERA, MAX VILLAESTER, AND EDILBERTO
GALLOR, petitioners,
WORLD WAR II VETERANS LEGIONARIES OF THE
PHILIPPINES, INC., petitioner-in-intervention, 
vs.
THE HOUSE OF REPRESENTATIVES, REPRESENTED BY HON.
SPEAKER JOSE C. DE VENECIA, JR., THE SENATE,
REPRESENTED BY HON. SENATE PRESIDENT FRANKLIN
DRILON, HON. FELIX FUENTEBELLA, ET AL., respondents.
x---------------------------------------------------------x
G.R. No. 160318 November 10, 2003
PUBLIC INTEREST CENTER, INC., CRISPIN T.
REYES, petitioners,  vs.
vs.
HON. SPEAKER JOSE G. DE VENECIA, ALL MEMBERS, HOUSE
OF REPRESENTATIVES, HON. SENATE PRESIDENT FRANKLIN
M. DRILON, AND ALL MEMBERS, PHILIPPINE
SENATE, respondents.
x---------------------------------------------------------x
G.R. No. 160342 November 10, 2003
ATTY. FERNANDO P.R. PERITO, IN HIS CAPACITY AS A
MEMBER OF THE INTEGRATED BAR OF THE PHILIPPINES,
MANILA III, AND ENGR. MAXIMO N. MENEZ JR., IN HIS
CAPACITY AS A TAXPAYER AND MEMBER OF THE
ENGINEERING PROFESSION, petitioners,  BEHALF OF OTHER CITIZENS OF THE REPUBLIC OF THE
vs.
THE HOUSE OF REPRESENTA-TIVES REPRESENTED BY THE
83 HONORABLE MEMBERS OF THE HOUSE LED BY HON.
REPRESENTATIVE WILLIAM FUENTEBELLA, respondents.
x---------------------------------------------------------x
G.R. No. 160343 November 10, 2003
INTEGRATED BAR OF THE PHILIPPINES, petitioner,  JR. respondents.
vs.
THE HOUSE OF REPRESENTA-TIVES, THROUGH THE
SPEAKER OR ACTING SPEAKER OR PRESIDING OFFICER,
SPEAKER JOSE G. DE VENECIA, REPRESENTATIVE GILBERTO
G. TEODORO, JR., REPRESENTATIVE FELIX WILLIAM B.
FUENTEBELLA, THE SENATE OF THE PHILIPPINES THROUGH
ITS PRESIDENT, SENATE PRESIDENT FRANKLIN M.
DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160360 November 10, 2003
CLARO B. FLORES, petitioner, 
THE HOUSE OF REPRESENTATIVES THROUGH THE SPEAKER,
AND THE SENATE OF THE PHILIPPINES, THROUGH THE
SENATE PRESIDENT, respondents.
x---------------------------------------------------------x
G.R. No. 160365 November 10, 2003
U.P. LAW ALUMNI CEBU FOUNDATION, INC., GOERING G.C.
PADERANGA, DANILO V. ORTIZ, GLORIA C. ESTENZO-
RAMOS, LIZA D. CORRO, LUIS V. DIORES, SR., BENJAMIN S.
RALLON, ROLANDO P. NONATO, DANTE T. RAMOS, ELSA R.
DIVINAGRACIA, KAREN B. CAPARROS-ARQUILLANO, SYLVA
G. AGUIRRE-PADERANGA, FOR THEMSELVES AND IN
PHILIPPINES, petitioners, 
vs.
THE HOUSE OF REPRESENTA-TIVES, SPEAKER JOSE G. DE
VENECIA, THE SENATE OF THE PHILIPPINES, SENATE
PRESIDENT FRANKLIN DRILON, HOUSE REPRESENTATIVES
FELIX FUENTEBELLA AND GILBERTO TEODORO, BY
THEMSELVES AND AS REPRESENTATIVES OF THE GROUP OF
MORE THAN 80 HOUSE REPRESENTATIVES WHO SIGNED
AND FILED THE IMPEACHMENT COMPLAINT AGAINST
SUPREME COURT CHIEF JUSTICE HILARIO G. DAVIDE,
x---------------------------------------------------------x
G.R. No. 160370 November 10, 2003
FR. RANHILIO CALLANGAN AQUINO, petitioner,  DIOSCORO U. VALLEJOS, JR., petitioner.
vs.
THE HONORABLE PRESIDENT OF THE SENATE, THE
HONORABLE SPEAKER OF THE HOUSE OF
REPRESENTATIVES, respondents.
x---------------------------------------------------------x
G.R. No. 160376 November 10, 2003
NILO A. MALANYAON, petitioner,  REPRESENTATIVE GILBERTO G. TEODORO, JR.,
vs.
HON. FELIX WILLIAM FUENTEBELLA AND GILBERT
TEODORO, IN REPRESENTATION OF THE 86 SIGNATORIES
OF THE ARTICLES OF IMPEACHMENT AGAINST CHIEF
JUSTICE HILARIO G. DAVIDE, JR. AND THE HOUSE OF
REPRESENTATIVES, CONGRESS OF THE PHILIPPINES,
REPRESENTED BY ITS SPEAKER, HON. JOSE G. DE
VENECIA, respondents.
x---------------------------------------------------------x
G.R. No. 160392 November 10, 2003
VENICIO S. FLORES AND HECTOR L. HOFILEÑA, petitioners,  ASSOCAITION OF CEBU, INC. [YLAC], REPRSEENTED BY
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH SPEAKER
JOSE G. DE VENECIA, AND THE SENATE OF THE
PHILIPPINES, THROUGH SENATE PRESIDENT FRANKLIN
DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160397 November 10, 2003
IN THE MATTER OF THE IMPEACHMENT COMPLAINT
AGAINST CHIEF JUSTICE HILARIO G. DAVIDE, JR., ATTY.
x---------------------------------------------------------x
G.R. No. 160403 November 10, 2003
PHILIPPINE BAR ASSOCIATION, petitioner, 
vs.
THE HOUSE OF REPRESENTATIVES, THROUGH THE SPEAKER
OR PRESIDING OFFICER, HON. JOSE G. DE VENECIA,
REPRESENTATIVE FELIX WILLIAM B. FUENTEBELA, THE
SENATE OF THE PHILIPPINES, THROUGH SENATE
PRESIDENT, HON. FRANKLIN DRILON, respondents.
x---------------------------------------------------------x
G.R. No. 160405 November 10, 2003
DEMOCRITO C. BARCENAS, PRESIDENT OF IBP, CEBU CITY
CHAPTER, MANUEL M. MONZON, PRESIDING OF IBP, CEBU
PROVINCE, VICTOR A. MAAMBONG, PROVINCIAL BOARD
MEMBER, ADELINO B. SITOY, DEAN OF THE COLLEG EOF
LAW, UNIVERSITY OF CEBU, YOUNG LAWYERS
ATTY. MANUEL LEGASPI, CONFEDERATION OF ACCREDITED
MEDIATORS OF THE PHILIPPINES, INC. [CAMP, INC],
REPRESENTED BY RODERIC R. POCA, MANDAUE LAWYERS
ASSOCIATION, [MANLAW], REPRESENTED BY FELIPE
VELASQUEZ, FEDERACION INTERNACIONAL DE ABOGADAS
[FIDA], REPRESENTED BY THELMA L. JORDAN, CARLOS G.
CO, PRESIENT OF CEBU CHAMBER OF COMMERCE AND
INDUSTRY AND CEBU LADY LAWYERS ASSOCIATION, INC.
[CELLA, INC.], MARIBELLE NAVARRO AND BERNARDITO
FLORIDO, PAST PRESIDENT CEBU CHAMBER OF COMMERCE
AND INTEGRATED BAR OF THE PHILIPPINES, CEBU
CHAPTER, petitioners, 
vs.
THE HOUSE OF REPRESENTA-TIVES, REPRESENTED BY REP.
JOSE G. DE VENECIA, AS HOUSE SPEAKER AND THE SENATE,
REPRESENTED BY SENATOR FRANKLIN DRILON, AS SENATE
PRESIDENT, respondents.
CARPIO MORALES, J.:
There can be no constitutional crisis arising from a conflict, no
matter how passionate and seemingly irreconcilable it may appear
to be, over the determination by the independent branches of
government of the nature, scope and extent of their respective
constitutional powers where the Constitution itself provides for the
means and bases for its resolution.
Our nation's history is replete with vivid illustrations of the often
frictional, at times turbulent, dynamics of the relationship among
these co-equal branches. This Court is confronted with one such
today involving the legislature and the judiciary which has drawn
legal luminaries to chart antipodal courses and not a few of our
countrymen to vent cacophonous sentiments thereon.
There may indeed be some legitimacy to the characterization that
the present controversy subject of the instant petitions – whether
the filing of the second impeachment complaint against Chief
Justice Hilario G. Davide, Jr. with the House of Representatives
falls within the one year bar provided in the Constitution, and
whether the resolution thereof is a political question – has resulted
in a political crisis. Perhaps even more truth to the view that it was
brought upon by a political crisis of conscience. 
absolute autonomy in the discharge by each of that part of the
governmental power assigned to it by the sovereign people. 
At the same time, the corollary doctrine of checks and balances
which has been carefully calibrated by the Constitution to temper
the official acts of each of these three branches must be given
effect without destroying their indispensable co-equality. 
Taken together, these two fundamental doctrines of republican
government, intended as they are to insure that governmental
power is wielded only for the good of the people, mandate a
relationship of interdependence and coordination among these
branches where the delicate functions of enacting, interpreting and
enforcing laws are harmonized to achieve a unity of governance,
guided only by what is in the greater interest and well-being of the
people. Verily, salus populi est suprema lex.
Article XI of our present 1987 Constitution provides:
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public officers
and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism and justice, and
lead modest lives.

In any event, it is with the absolute certainty that our Constitution

SECTION 2. The President, the Vice-President, the
is sufficient to address all the issues which this controversy spawns
Members of the Supreme Court, the Members of the
that this Court unequivocally pronounces, at the first instance, that
Constitutional Commissions, and the Ombudsman may be
the feared resort to extra-constitutional methods of resolving it is
removed from office, on impeachment for, and conviction
neither necessary nor legally permissible. Both its resolution and
of, culpable violation of the Constitution, treason, bribery,
protection of the public interest lie in adherence to, not departure
graft and corruption, other high crimes, or betrayal of
from, the Constitution.
public trust. All other public officers and employees may be
removed from office as provided by law, but not by
In passing over the complex issues arising from the controversy, impeachment.
this Court is ever mindful of the essential truth that the inviolate
doctrine of separation of powers among the legislative, executive
or judicial branches of government by no means prescribes for
SECTION 3. (1) The House of Representatives shall have
the exclusive power to initiate all cases of impeachment.
(2) A verified complaint for impeachment may be filed by
any Member of the House of Representatives or by any
citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business
within ten session days, and referred to the proper
Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its
Members, shall submit its report to the House within sixty
session days from such referral, together with the
corresponding resolution. The resolution shall be
calendared for consideration by the House within ten
session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the
House shall be necessary either to affirm a favorable
resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The vote of
each Member shall be recorded.
(4) In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the
Members of the House, the same shall constitute the
Articles of Impeachment, and trial by the Senate shall
forthwith proceed.
(5)  No impeachment
proceedings shall be initiated against the same official
more than once within a period of one year.
(6) The Senate shall have the sole power to try and decide
all cases of impeachment. When sitting for that purpose,
the Senators shall be on oath or affirmation. When the
President of the Philippines is on trial, the Chief Justice of
the Supreme Court shall preside, but shall not vote. No
person shall be convicted without the concurrence of two-
thirds of all the Members of the Senate.
(7) Judgment in cases of impeachment shall not extend
further than removal from office and disqualification to
hold any office under the Republic of the Philippines, but
the party convicted shall nevertheless be liable and subject
to prosecution, trial, and punishment according to law.
(8)  The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose of
this section. (Emphasis and underscoring supplied)
Following the above-quoted Section 8 of Article XI of the
Constitution, the 12th Congress of the House of Representatives
adopted and approved the Rules of Procedure in Impeachment
Proceedings (House Impeachment Rules) on November 28, 2001,
superseding the previous House Impeachment Rules1 approved by
the 11th Congress. The relevant distinctions between these two
Congresses' House Impeachment Rules are shown in the following
tabulation:
11TH CONGRESS RULES 12TH CONGRESS NEW RULES
RULE II RULE V
INITIATING IMPEACHMENT BAR AGAINST INITIATION OF
IMPEACHMENT PROCEEDINGS
AGAINST THE SAME OFFICIAL
Section 2. Mode of Initiating
Impeachment. – Impeachment
shall be initiated only by a verified Section 16. – Impeachment
complaint for impeachment filed by Proceedings Deemed
any Member of the House of Initiated. – In cases where a
Representatives or by any citizen Member of the House files a
upon a resolution of endorsement by verified complaint of impeachment
any Member thereof or by a verified or a citizen files a verified
complaint or resolution of complaint that is endorsed by a
impeachment filed by at least one- Member of the House through a
third (1/3) of all the Members of the resolution of endorsement against
House. an impeachable officer,
impeachment proceedings against
such official are deemed initiated

RULE V
BAR AGAINST IMPEACHMENT
Section 14. Scope of Bar. – No
impeachment proceedings shall be
initiated against the same official
more than once within the period of
one (1) year.
On July 22, 2002, the House of Representatives adopted a
Resolution,2 sponsored by Representative Felix William D.
on the day the CommitteeFuentebella,
on which directed the Committee on Justice "to conduct
Justice finds that the verified
an investigation, in aid of legislation, on the manner of
complaint and/or resolution disbursements and expenditures by the Chief Justice of the
against such official, as the case
Supreme Court of the Judiciary Development Fund (JDF)."3
may be, is sufficient in substance,
or on the date the House votes
On Juneto 2, 2003, former President Joseph E. Estrada filed an
overturn or affirm the finding of
impeachment complaint4 (first impeachment complaint) against
the said Committee that the Chief Justice Hilario G. Davide Jr. and seven Associate Justices5 of
verified complaint and/or this Court for "culpable violation of the Constitution, betrayal of
resolution, as the case may thebe, is trust and other high crimes."6 The complaint was
public
not sufficient in substance.endorsed by Representatives Rolex T. Suplico, Ronaldo B. Zamora
and Didagen Piang Dilangalen,7 and was referred to the House
In cases where a verified Committee on Justice on August 5, 20038 in accordance with
complaint or a resolution of
Section 3(2) of Article XI of the Constitution which reads:
impeachment is filed or endorsed,
as the case may be, by at least Section 3(2) A verified complaint for impeachment may be
one-third (1/3) of the Members offiled by any Member of the House of Representatives or by
the House, impeachment any citizen upon a resolution of endorsement by any
proceedings are deemed Member thereof, which shall be included in the Order of
initiated at the time of the Business within ten session days, and referred to the
filing of such verified complaint proper Committee within three session days thereafter.
or resolution of impeachment The Committee, after hearing, and by a majority vote of all
with the Secretary General. its Members, shall submit its report to the House within
sixty session days from such referral, together with the
  corresponding resolution. The resolution shall be
calendared for consideration by the House within ten
Section 17. Bar Against session days from receipt thereof.
Initiation Of Impeachment
Proceedings. – Within a The period of Committee on Justice ruled on October 13, 2003 that
House
one (1) year from the datethe first impeachment complaint was "sufficient in form,"9 but
impeachment proceedingsvoted are to dismiss the same on October 22, 2003 for being
deemed initiated as provided in
insufficient in substance.10 To date, the Committee Report to this
Section 16 hereof, no effect has not yet been sent to the House in plenary in accordance
impeachment proceedings, as the said Section 3(2) of Article XI of the Constitution.
with
such, can be initiated against the
same official. (Italics in the
Four months and three weeks since the filing on June 2, 2003 of
original; emphasis and the first complaint or on October 23, 2003, a day after the House
underscoring supplied) Committee on Justice voted to dismiss it, the second impeachment
complaint11 was filed with the Secretary General of the House12 by
Representatives Gilberto C. Teodoro, Jr. (First District, Tarlac) and
Felix William B. Fuentebella (Third District, Camarines Sur) against
Chief Justice Hilario G. Davide, Jr., founded on the alleged results
of the legislative inquiry initiated by above-mentioned House
Resolution. This second impeachment complaint was accompanied
by a "Resolution of Endorsement/Impeachment" signed by at least
one-third (1/3) of all the Members of the House of
Representatives.13
Thus arose the instant petitions against the House of
Representatives, et. al., most of which petitions contend that the
filing of the second impeachment complaint is unconstitutional as it
violates the provision of Section 5 of Article XI of the Constitution
that "[n]o impeachment proceedings shall be initiated against the
same official more than once within a period of one year."  funds necessary to conduct the impeachment trial on the second
In G.R. No. 160261, petitioner Atty. Ernesto B. Francisco, Jr.,
alleging that he has a duty as a member of the Integrated Bar of
the Philippines to use all available legal remedies to stop an
unconstitutional impeachment, that the issues raised in his petition
for Certiorari, Prohibition and Mandamus are of transcendental
importance, and that he "himself was a victim of the capricious
and arbitrary changes in the Rules of Procedure in Impeachment
Proceedings introduced by the 12th Congress,"14 posits that his
right to bring an impeachment complaint against then Ombudsman
Aniano Desierto had been violated due to the capricious and
arbitrary changes in the House Impeachment Rules adopted and
approved on November 28, 2001 by the House of Representatives
and prays that (1) Rule V, Sections 16 and 17 and Rule III,
Sections 5, 6, 7, 8, and 9 thereof be declared unconstitutional; (2)
this Court issue a writ of mandamus directing respondents House
of Representatives et. al. to comply with Article IX, Section 3 (2),
(3) and (5) of the Constitution, to return the second impeachment
complaint and/or strike it off the records of the House of
Representatives, and to promulgate rules which are consistent with
the Constitution; and (3) this Court permanently enjoin respondent
House of Representatives from proceeding with the second
impeachment complaint.
In G.R. No. 160262, petitioners Sedfrey M. Candelaria, et. al., as
citizens and taxpayers, alleging that the issues of the case are of
transcendental importance, pray, in their petition for
Certiorari/Prohibition, the issuance of a writ "perpetually"
prohibiting respondent House of Representatives from filing any
Articles of Impeachment against the Chief Justice with the Senate;
and for the issuance of a writ "perpetually" prohibiting respondents
Senate and Senate President Franklin Drilon from accepting any
Articles of Impeachment against the Chief Justice or, in the event
that the Senate has accepted the same, from proceeding with the
impeachment trial.
In G.R. No. 160263, petitioners Arturo M. de Castro and Soledad
Cagampang, as citizens, taxpayers, lawyers and members of the
Integrated Bar of the Philippines, alleging that their petition for
Prohibition involves public interest as it involves the use of public
impeachment complaint, pray for the issuance of a writ of
prohibition enjoining Congress from conducting further
proceedings on said second impeachment complaint.
In G.R. No. 160277, petitioner Francisco I. Chavez, alleging that
this Court has recognized that he has locus standi  to bring
petitions of this nature in the cases of Chavez v.
PCGG15 and Chavez v. PEA-Amari Coastal Bay Development
Corporation,16 prays in his petition for Injunction that the second
impeachment complaint be declared unconstitutional. 
In G.R. No. 160292, petitioners Atty. Harry L. Roque, et. al., as
taxpayers and members of the legal profession, pray in their
petition for Prohibition for an order prohibiting respondent House
of Representatives from drafting, adopting, approving and
transmitting to the Senate the second impeachment complaint,
and respondents De Venecia and Nazareno from transmitting the
Articles of Impeachment to the Senate. 
In G.R. No. 160295, petitioners Representatives Salacnib F.
Baterina and Deputy Speaker Raul M. Gonzalez, alleging that, as
members of the House of Representatives, they have a legal
interest in ensuring that only constitutional impeachment
proceedings are initiated, pray in their petition for
Certiorari/Prohibition that the second impeachment complaint and
any act proceeding therefrom be declared null and void.
In G.R. No. 160310, petitioners Leonilo R. Alfonso et al., claiming
that they have a right to be protected against all forms of
senseless spending of taxpayers' money and that they have an
obligation to protect the Supreme Court, the Chief Justice, and the
integrity of the Judiciary, allege in their petition for Certiorari and
Prohibition that it is instituted as "a class suit" and pray that (1)
the House Resolution endorsing the second impeachment
complaint as well as all issuances emanating therefrom be
declared null and void; and (2) this Court enjoin the Senate and
the Senate President from taking cognizance of, hearing, trying
and deciding the second impeachment complaint, and issue a writ
of prohibition commanding the Senate, its prosecutors and agents
to desist from conducting any proceedings or to act on the
impeachment complaint.  interfering with the fiscal matters of the Judiciary.
In G.R. No. 160318, petitioner Public Interest Center, Inc., whose
members are citizens and taxpayers, and its co-petitioner Crispin
T. Reyes, a citizen, taxpayer and a member of the Philippine Bar,
both allege in their petition, which does not state what its nature
is, that the filing of the second impeachment complaint involves
paramount public interest and pray that Sections 16 and 17 of the
House Impeachment Rules and the second impeachment
complaint/Articles of Impeachment be declared null and void.  prohibiting the House of Representatives from transmitting the
In G.R. No. 160342, petitioner Atty. Fernando P. R. Perito, as a
citizen and a member of the Philippine Bar Association and of the
Integrated Bar of the Philippines, and petitioner Engr. Maximo N.
Menez, Jr., as a taxpayer, pray in their petition for the issuance of
a Temporary Restraining Order and Permanent Injunction to enjoin
the House of Representatives from proceeding with the second
impeachment complaint.  complaint, were "absolutely without any legal power to do so, as
In G.R. No. 160343, petitioner Integrated Bar of the Philippines,
alleging that it is mandated by the Code of Professional
Responsibility to uphold the Constitution, prays in its petition for
Certiorari and Prohibition that Sections 16 and 17 of Rule V and
Sections 5, 6, 7, 8, 9 of Rule III of the House Impeachment Rules
be declared unconstitutional and that the House of Representatives
be permanently enjoined from proceeding with the second
impeachment complaint.  are trying to inculcate in the minds of their students," pray that
In G.R. No. 160360, petitioner-taxpayer Atty. Claro Flores prays
in his petition for Certiorari and Prohibition that the House
Impeachment Rules be declared unconstitutional. 
In G.R. No. 160365, petitioners U.P. Law Alumni Cebu Foundation
Inc., et. al., in their petition for Prohibition and Injunction which
they claim is a class suit filed in behalf of all citizens, citing Oposa
v. Factoran17 which was filed in behalf of succeeding generations of
Filipinos, pray for the issuance of a writ prohibiting respondents
House of Representatives and the Senate from conducting further
proceedings on the second impeachment complaint and that this
Court declare as unconstitutional the second impeachment
complaint and the acts of respondent House of Representatives in
 
In G.R. No. 160370, petitioner-taxpayer Father Ranhilio
Callangan Aquino, alleging that the issues in his petition for
Prohibition are of national and transcendental significance and that
as an official of the Philippine Judicial Academy, he has a direct
and substantial interest in the unhampered operation of the
Supreme Court and its officials in discharging their duties in
accordance with the Constitution, prays for the issuance of a writ
Articles of Impeachment to the Senate and the Senate from
receiving the same or giving the impeachment complaint due
course.
In G.R. No. 160376, petitioner Nilo A. Malanyaon, as a taxpayer,
alleges in his petition for Prohibition that respondents Fuentebella
and Teodoro at the time they filed the second impeachment
they acted without jurisdiction as far as the Articles of
Impeachment assail the alleged abuse of powers of the Chief
Justice to disburse the (JDF)."
In G.R. No. 160392, petitioners Attorneys Venicio S. Flores and
Hector L. Hofileña, alleging that as professors of law they have an
abiding interest in the subject matter of their petition for Certiorari
and Prohibition as it pertains to a constitutional issue "which they
the House of Representatives be enjoined from endorsing and the
Senate from trying the Articles of Impeachment and that the
second impeachment complaint be declared null and void.
In G.R. No. 160397, petitioner Atty. Dioscoro Vallejos, Jr.,
without alleging his locus standi, but alleging that the second
impeachment complaint is founded on the issue of whether or not
the Judicial Development Fund (JDF) was spent in accordance with
law and that the House of Representatives does not have exclusive
jurisdiction in the examination and audit thereof, prays in his
petition "To Declare Complaint Null and Void for Lack of Cause of
Action and Jurisdiction" that the second impeachment complaint be
declared null and void.
In G.R. No. 160403, petitioner Philippine Bar Association, alleging
that the issues raised in the filing of the second impeachment
complaint involve matters of transcendental importance, prays in
its petition for Certiorari/Prohibition that (1) the second
impeachment complaint and all proceedings arising therefrom be
declared null and void; (2) respondent House of Representatives
be prohibited from transmitting the Articles of Impeachment to the
Senate; and (3) respondent Senate be prohibited from accepting
the Articles of Impeachment and from conducting any proceedings
thereon.  filed on or before October 28, 2003, Justices Puno and Vitug
In G.R. No. 160405, petitioners Democrit C. Barcenas et. al., as
citizens and taxpayers, pray in their petition for
Certiorari/Prohibition that (1) the second impeachment complaint
as well as the resolution of endorsement and impeachment by the
respondent House of Representatives be declared null and void
and (2) respondents Senate and Senate President Franklin Drilon
be prohibited from accepting any Articles of Impeachment against
the Chief Justice or, in the event that they have accepted the
same, that they be prohibited from proceeding with the
impeachment trial.  a.m.; and (d) appointed distinguished legal experts as amici
Petitions bearing docket numbers G.R. Nos. 160261, 160262 and
160263, the first three of the eighteen which were filed before this
Court,18 prayed for the issuance of a Temporary Restraining Order
and/or preliminary injunction to prevent the House of
Representatives from transmitting the Articles of Impeachment
arising from the second impeachment complaint to the Senate.
Petition bearing docket number G.R. No. 160261 likewise prayed
for the declaration of the November 28, 2001 House Impeachment
Rules as null and void for being unconstitutional. 
Petitions bearing docket numbers G.R. Nos. 160277, 160292 and
160295, which were filed on October 28, 2003, sought similar
relief. In addition, petition bearing docket number G.R. No. 160292
alleged that House Resolution No. 260 (calling for a legislative
inquiry into the administration by the Chief Justice of the JDF)
infringes on the constitutional doctrine of separation of powers and
is a direct violation of the constitutional principle of fiscal
autonomy of the judiciary.
On October 28, 2003, during the plenary session of the House of
Representatives, a motion was put forth that the second
impeachment complaint be formally transmitted to the Senate, but
it was not carried because the House of Representatives adjourned
for lack of quorum,19 and as reflected above, to date, the Articles
of Impeachment have yet to be forwarded to the Senate. 
Before acting on the petitions with prayers for temporary
restraining order and/or writ of preliminary injunction which were
offered to recuse themselves, but the Court rejected their offer.
Justice Panganiban inhibited himself, but the Court directed him to
participate. 
Without necessarily giving the petitions due course, this Court in
its Resolution of October 28, 2003, resolved to (a) consolidate the
petitions; (b) require respondent House of Representatives and the
Senate, as well as the Solicitor General, to comment on the
petitions not later than 4:30 p.m. of November 3, 2003; (c) set
the petitions for oral arguments on November 5, 2003, at 10:00
curiae.20 In addition, this Court called on petitioners and
respondents to maintain the status quo, enjoining all the parties
and others acting for and in their behalf to refrain from committing
acts that would render the petitions moot.
Also on October 28, 2003, when respondent House of
Representatives through Speaker Jose C. De Venecia, Jr. and/or its
co-respondents, by way of special appearance, submitted a
Manifestation asserting that this Court has no jurisdiction to hear,
much less prohibit or enjoin the House of Representatives, which is
an independent and co-equal branch of government under the
Constitution, from the performance of its constitutionally
mandated duty to initiate impeachment cases. On even date,
Senator Aquilino Q. Pimentel, Jr., in his own behalf, filed a Motion
to Intervene (Ex Abudante Cautela)21 and Comment, praying that
"the consolidated petitions be dismissed for lack of jurisdiction of
the Court over the issues affecting the impeachment proceedings
and that the sole power, authority and jurisdiction of the Senate as
the impeachment court to try and decide impeachment cases,
including the one where the Chief Justice is the respondent, be
recognized and upheld pursuant to the provisions of Article XI of
the Constitution."22
On November 3, 2003, Attorneys Romulo B. Macalintal and Pete
Quirino Quadra filed in G.R. No. 160262 a "Motion for Leave of
Court to Intervene and to Admit the Herein Incorporated Petition in
Intervention."
On November 4, 2003, Nagmamalasakit na mga Manananggol ng
mga Manggagawang Pilipino, Inc. filed a Motion for Intervention in
G.R. No. 160261. On November 5, 2003, World War II Veterans
Legionnaires of the Philippines, Inc. also filed a "Petition-in-
Intervention with Leave to Intervene" in G.R. Nos. 160261,
160262, 160263, 160277, 160292, 160295, and 160310. 
The motions for intervention were granted and both Senator
Pimentel's Comment and Attorneys Macalintal and Quadra's
Petition in Intervention were admitted.

Acting on the other petitions which were subsequently filed, this

On November 5-6, 2003, this Court heard the views of the amici
Court resolved to (a) consolidate them with the earlier
curiae and the arguments of petitioners, intervenors Senator
consolidated petitions; (b) require respondents to file their
Pimentel and Attorney Makalintal, and Solicitor General Alfredo
comment not later than 4:30 p.m. of November 3, 2003; and (c)
Benipayo on the principal issues outlined in an Advisory issued by
include them for oral arguments on November 5, 2003.
this Court on November 3, 2003, to wit: 

On October 29, 2003, the Senate of the Philippines, through

Whether the certiorari jurisdiction of the Supreme Court
Senate President Franklin M. Drilon, filed a Manifestation stating
may be invoked; who can invoke it; on what issues and at
that insofar as it is concerned, the petitions are plainly premature
what time; and whether it should be exercised by this
and have no basis in law or in fact, adding that as of the time of
Court at this time. 
the filing of the petitions, no justiciable issue was presented before
it since (1) its constitutional duty to constitute itself as an
impeachment court commences only upon its receipt of the Articles In discussing these issues, the following may be taken up: 
of Impeachment, which it had not, and (2) the principal issues
raised by the petitions pertain exclusively to the proceedings in the a) locus standi of petitioners; 
House of Representatives. 
b) ripeness(prematurity; mootness); 
On October 30, 2003, Atty. Jaime Soriano filed a "Petition for
Leave to Intervene" in G.R. Nos. 160261, 160262, 160263, c) political question/justiciability; 
160277, 160292, and 160295, questioning the status
quo Resolution issued by this Court on October 28, 2003 on the
ground that it would unnecessarily put Congress and this Court in d) House's "exclusive" power to initiate all cases of
a "constitutional deadlock" and praying for the dismissal of all the impeachment; 
petitions as the matter in question is not yet ripe for judicial
determination. 
 e) Senate's "sole" power to try and decide all cases
of impeachment;  government. (Emphasis supplied)
f) constitutionality of the House Rules on
Impeachment vis-a-vis Section 3(5) of Article XI of
the Constitution; and  of Angara v. Electoral Commission23 after the effectivity of the
g) judicial restraint (Italics in the original)
In resolving the intricate conflux of preliminary and substantive
issues arising from the instant petitions as well as the myriad
arguments and opinions presented for and against the grant of the
reliefs prayed for, this Court has sifted and determined them to be
as follows: (1) the threshold and novel issue of whether or not the
power of judicial review extends to those arising from
impeachment proceedings; (2) whether or not the essential pre-
requisites for the exercise of the power of judicial review have
been fulfilled; and (3) the substantive issues yet remaining. These
matters shall now be discussed in seriatim.  integral or constituent units thereof.
Judicial Review
As reflected above, petitioners plead for this Court to exercise the
power of judicial review to determine the validity of the second
impeachment complaint.
This Court's power of judicial review is conferred on the judicial
branch of the government in Section 1, Article VIII of our present
1987 Constitution:
SECTION 1. The judicial power shall be vested in one
Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice
to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality of the
Such power of judicial review was early on exhaustively expounded
upon by Justice Jose P. Laurel in the definitive 1936 case
1935 Constitution whose provisions, unlike the present
Constitution, did not contain the present provision in Article VIII,
Section 1, par. 2 on what judicial power includes. Thus, Justice
Laurel discoursed:
x x x In times of social disquietude or political excitement,
the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated. In cases
of conflict, the judicial department is the only
constitutional organ which can be called upon
to determine the proper allocation of powers
between the several departments and among the
As any human production, our Constitution is of course
lacking perfection and perfectibility, but as much as it was
within the power of our people, acting through their
delegates to so provide, that instrument which is the
expression of their sovereignty however limited, has
established a republican government intended to operate
and function as a harmonious whole, under a system of
checks and balances, and subject to specific limitations
and restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental
powers and agencies. If these restrictions and
limitations are transcended it would be
inconceivable if the Constitution had not provided for
a mechanism by which to direct the course of
government along constitutional channels,for then the
distribution of powers would be mere verbiage, the bill of
rights mere expressions of sentiment, and the principles of
good government mere political apothegms. Certainly, the
limitations and restrictions embodied in our Constitution
are real as they should be in any living constitution. In the
United States where no express constitutional grant is
found in their constitution, the possession of this
moderating power of the courts, not to speak of its
historical origin and development there, has been set at
rest by popular acquiescence for a period of more than one
and a half centuries. In our case, this moderating power is
granted, if not expressly, by clear implication from
section 2 of article VIII of our Constitution.
The Constitution is a definition of the powers of
government. Who is to determine the nature, scope
and extent of such powers? The Constitution itself
has provided for the instrumentality of the judiciary
as the rational way. And when the judiciary mediates
to allocate constitutional boundaries, it does not
assert any superiority over the other departments; it does
not in reality nullify or invalidate an act of the legislature,
but only asserts the solemn and sacred obligation
assigned to it by the Constitution to determine
conflicting claims of authority under the
Constitution and to establish for the parties in an
actual controversy the rights which that instrument
secures and guarantees to them. This is in truth all
that is involved in what is termed "judicial supremacy"
which properly is the power of judicial review under
the Constitution. Even then, this power of judicial review
is limited to actual cases and controversies to be exercised
after full opportunity of argument by the parties, and
limited further to the constitutional question raised or the
very lis mota presented. Any attempt at abstraction could
only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities. Narrowed as its
function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation.
More than that, courts accord the presumption of
constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the
Constitution but also because the judiciary in the
determination of actual cases and controversies must
reflect the wisdom and justice of the people as expressed
through their representatives in the executive and
legislative departments of the government.24 (Italics in the
original; emphasis and underscoring supplied)
As pointed out by Justice Laurel, this "moderating power" to
"determine the proper allocation of powers" of the different
branches of government and "to direct the course of government
along constitutional channels" is inherent in all courts25 as a
necessary consequence of the judicial power itself, which is "the
power of the court to settle actual controversies involving rights
which are legally demandable and enforceable."26
Thus, even in the United States where the power of judicial review
is not explicitly conferred upon the courts by its Constitution, such
power has "been set at rest by popular acquiescence for a period
of more than one and a half centuries." To be sure, it was in the
1803 leading case of Marbury v. Madison27 that the power of
judicial review was first articulated by Chief Justice Marshall, to
wit:
It is also not entirely unworthy of observation, that in
declaring what shall be the supreme law of the land, the
constitution itself is first mentioned; and not the laws of
the United States generally, but those only which shall be
made in pursuance of the constitution, have that rank.
Thus, the particular phraseology of the
constitution of the United States confirms and
strengthens the principle, supposed to be essential to
all written constitutions, that a law repugnant to the
constitution is void; and that courts, as well as other
departments, are bound by that instrument.28(Italics
in the original; emphasis supplied)
In our own jurisdiction, as early as 1902, decades before its
express grant in the 1935 Constitution, the power of judicial
review was exercised by our courts to invalidate constitutionally
infirm acts.29 And as pointed out by noted political law professor
and former Supreme Court Justice Vicente V. Mendoza,30 the
executive and legislative branches of our government in fact
effectively acknowledged this power of judicial review in Article 7
of the Civil Code, to wit:
 Article 7. Laws are repealed only by subsequent ones, and
their violation or non-observance shall not be excused by
disuse, or custom or practice to the contrary.
When the courts declare a law to be inconsistent
with the Constitution, the former shall be void and
the latter shall govern.
Administrative or executive acts, orders and
regulations shall be valid only when they are not
contrary to the laws or the Constitution. (Emphasis
supplied)
As indicated in Angara v. Electoral Commission,31 judicial review is
indeed an integral component of the delicate system of checks and
balances which, together with the corollary principle of separation
of powers, forms the bedrock of our republican form of
government and insures that its vast powers are utilized only for
the benefit of the people for which it serves.
The separation of powers is a fundamental principle
in our system of government. It obtains not through
express provision but by actual division in our Constitution.
Each department of the government has exclusive
cognizance of matters within its jurisdiction, and is
supreme within its own sphere. But it does not follow from
the fact that the three powers are to be kept separate and
distinct that the Constitution intended them to be
absolutely unrestrained and independent of each
other. The Constitution has provided for an elaborate
system of checks and balances to secure
coordination in the workings of the various
departments of the government. x x x And the
judiciary in turn, with the Supreme Court as the final
arbiter, effectively checks the other departments in
the exercise of its power to determine the law, and
hence to declare executive and legislative acts void if
violative of the Constitution.32 (Emphasis and
underscoring supplied)
In the scholarly estimation of former Supreme Court Justice
Florentino Feliciano, "x x x judicial review is essential for the
maintenance and enforcement of the separation of powers and the
balancing of powers among the three great departments of
government through the definition and maintenance of the
boundaries of authority and control between them."33 To him,
"[j]udicial review is the chief, indeed the only, medium of
participation – or instrument of intervention – of the judiciary in
that balancing operation."34
To ensure the potency of the power of judicial review to curb grave
abuse of discretion by "any branch or instrumentalities of
government," the afore-quoted Section 1, Article VIII of the
Constitution engraves, for the first time into its history, into block
letter law the so-called "expanded certiorari jurisdiction" of this
Court, the nature of and rationale for which are mirrored in the
following excerpt from the sponsorship speech of its proponent,
former Chief Justice Constitutional Commissioner Roberto
Concepcion: 
xxx
The first section starts with a sentence copied from former
Constitutions. It says:
The judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law.
I suppose nobody can question it.
The next provision is new in our constitutional law. I will
read it first and explain.
Judicial power includes the duty of courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part or
instrumentality of the government.
Fellow Members of this Commission, this is actually a
product of our experience during martial law. As a
matter of fact, it has some antecedents in the past,
but the role of the judiciary during the deposed
regime was marred considerably by the
circumstance that in a number of cases against the
government, which then had no legal defense at all,
the solicitor general set up the defense of political
questions and got away with it. As a consequence,
certain principles concerning particularly the writ of habeas
corpus, that is, the authority of courts to order the release
of political detainees, and other matters related to the
operation and effect of martial law failed because the
government set up the defense of political question. And
the Supreme Court said: "Well, since it is political, we have
no authority to pass upon it."  The Committee on the
Judiciary feels that this was not a proper solution of
the questions involved. It did not merely request an
encroachment upon the rights of the people, but it,
in effect, encouraged further violations thereof
during the martial law regime.  x x x
xxx
Briefly stated, courts of justice determine the limits
of power of the agencies and offices of the
government as well as those of its officers. In other
words, the judiciary is the final arbiter on the
question whether or not a branch of government or
any of its officials has acted without jurisdiction or in
excess of jurisdiction, or so capriciously as to
constitute an abuse of discretion amounting to
excess of jurisdiction or lack of jurisdiction.  This is
not only a judicial power but a duty to pass
judgment on matters of this nature.
This is the background of paragraph 2 of Section 1, which
means that the courts cannot hereafter evade the
duty to settle matters of this nature, by claiming that
such matters constitute a political question.35 (Italics
in the original; emphasis and underscoring supplied)
To determine the merits of the issues raised in the instant
petitions, this Court must necessarily turn to the Constitution itself
which employs the well-settled principles of constitutional
construction. 
First, verba legis, that is, wherever possible, the words used in the
Constitution must be given their ordinary meaning except where
technical terms are employed. Thus, in J.M. Tuason & Co., Inc. v.
Land Tenure Administration,36 this Court, speaking through Chief
Justice Enrique Fernando, declared:
We look to the language of the document itself in our
search for its meaning. We do not of course stop
there, but that is where we begin. It is to be
assumed that the words in which constitutional
provisions are couched express the objective sought
to be attained. They are to be given their ordinary
meaning except where technical terms are employed
in which case the significance thus attached to them
prevails. As the Constitution is not primarily a lawyer's
document, it being essential for the rule of law to obtain
that it should ever be present in the people's
consciousness, its language as much as possible should be
understood in the sense they have in common use. What
it says according to the text of the provision to be
construed compels acceptance and negates the power
of the courts to alter it, based on the postulate that the
framers and the people mean what they say. Thus these
are the cases where the need for construction is reduced to
a minimum.37 (Emphasis and underscoring supplied)
Second, where there is ambiguity, ratio legis est anima. The words
of the Constitution should be interpreted in accordance with the
intent of its framers. And so did this Court apply this principle
in Civil Liberties Union v. Executive Secretary 38 in this wise:
A foolproof yardstick in constitutional construction is the
intention underlying the provision under consideration.
Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be
accomplished by its adoption, and the evils, if any, sought
 to be prevented or remedied. A doubtful provision will be
examined in the light of the history of the times, and the
condition and circumstances under which the Constitution
was framed. The object is to ascertain the reason
which induced the framers of the Constitution to
enact the particular provision and the purpose
sought to be accomplished thereby, in order to
construe the whole as to make the words consonant
to that reason and calculated to effect that
purpose.39 (Emphasis and underscoring supplied)
As it did in Nitafan v. Commissioner on Internal Revenue 40 where,
speaking through Madame Justice Amuerfina A. Melencio-Herrera,
it declared:
x x x The ascertainment of that intent is but in
keeping with the fundamental principle of
constitutional construction that the intent of the
framers of the organic law and of the people
adopting it should be given effect. The primary task in
constitutional construction is to ascertain and thereafter
assure the realization of the purpose of the framers and of
the people in the adoption of the Constitution. It may also
be safely assumed that the people in ratifying the
Constitution were guided mainly by the explanation
offered by the framers.41 (Emphasis and underscoring
supplied)
Finally, ut magis valeat quam pereat. The Constitution is to be
interpreted as a whole. Thus, in Chiongbian v. De Leon,42 this
Court, through Chief Justice Manuel Moran declared:
x x x [T]he members of the Constitutional
Convention could not have dedicated a provision of
our Constitution merely for the benefit of one person
without considering that it could also affect
others. When they adopted subsection 2, they
permitted, if not willed, that said provision should
function to the full extent of its substance and its
terms, not by itself alone, but in conjunction with all
other provisions of that great document.43 (Emphasis
and underscoring supplied)
Likewise, still in Civil Liberties Union v. Executive Secretary,44 this
Court affirmed that:
It is a well-established rule in constitutional
construction that no one provision of the
Constitution is to be separated from all the others, to
be considered alone, but that all the provisions
bearing upon a particular subject are to be brought
into view and to be so interpreted as to effectuate
the great purposes of the instrument. Sections
bearing on a particular subject should be considered
and interpreted together as to effectuate the whole
purpose of the Constitution and one section is not to
be allowed to defeat another, if by any reasonable
construction, the two can be made to stand together.
In other words, the court must harmonize them, if
practicable, and must lean in favor of a construction which
will render every word operative, rather than one which
may make the words idle and nugatory.45 (Emphasis
supplied)
If, however, the plain meaning of the word is not found to be clear,
resort to other aids is available. In still the same case of Civil
Liberties Union v. Executive Secretary, this Court expounded:
While it is permissible in this jurisdiction to consult
the debates and proceedings of the constitutional
convention in order to arrive at the reason and purpose of
the resulting Constitution, resort thereto may be had
only when other guides fail as said proceedings are
powerless to vary the terms of the
Constitution when the meaning is clear. Debates in
the constitutional convention "are of value as showing the
views of the individual members, and as indicating the
reasons for their votes, but they give us no light as to the
views of the large majority who did not talk, much less of
the mass of our fellow citizens whose votes at the polls
 gave that instrument the force of fundamental law. We
think it safer to construe the constitution from what
appears upon its face."  The proper interpretation
therefore depends more on how it was understood
by the people adopting it than in the framers's
understanding thereof.46 (Emphasis and underscoring
supplied)
It is in the context of the foregoing backdrop of constitutional
refinement and jurisprudential application of the power of judicial
review that respondents Speaker De Venecia, et. al. and
intervenor Senator Pimentel raise the novel argument that the
Constitution has excluded impeachment proceedings from the
coverage of judicial review.  Said American jurisprudence and authorities, much less the
Briefly stated, it is the position of respondents Speaker De
Venecia et. al. that impeachment is a political action which cannot
assume a judicial character. Hence, any question, issue or incident
arising at any stage of the impeachment proceeding is beyond the
reach of judicial review.47
For his part, intervenor Senator Pimentel contends that the
Senate's "sole power to try" impeachment cases48 (1) entirely
excludes the application of judicial review over it; and (2)
necessarily includes the Senate's power to determine constitutional
questions relative to impeachment proceedings.49
In furthering their arguments on the proposition that impeachment
proceedings are outside the scope of judicial review, respondents
Speaker De Venecia, et. al. and intervenor Senator Pimentel rely
heavily on American authorities, principally the majority opinion in
the case of Nixon v. United States.50 Thus, they contend that the
exercise of judicial review over impeachment proceedings is
inappropriate since it runs counter to the framers' decision to
allocate to different fora the powers to try impeachments and to
try crimes; it disturbs the system of checks and balances, under
which impeachment is the only legislative check on the judiciary;
and it would create a lack of finality and difficulty in fashioning
relief.51 Respondents likewise point to deliberations on the US
Constitution to show the intent to isolate judicial power of review
in cases of impeachment.  the U.S. Constitution bestows sole power of impeachment to the
Respondents' and intervenors' reliance upon American
jurisprudence, the American Constitution and American
authorities cannot be credited to support the proposition that the
Senate's "sole power to try and decide impeachment cases," as
provided for under Art. XI, Sec. 3(6) of the Constitution, is a
textually demonstrable constitutional commitment of all issues
pertaining to impeachment to the legislature, to the total exclusion
of the power of judicial review to check and restrain any grave
abuse of the impeachment process. Nor can it reasonably support
the interpretation that it necessarily confers upon the Senate the
inherently judicial power to determine constitutional questions
incident to impeachment proceedings. 
American Constitution, are of dubious application for these are no
longer controlling within our jurisdiction and have only limited
persuasive merit insofar as Philippine constitutional law is
concerned. As held in the case of Garcia vs. COMELEC,52 "[i]n
resolving constitutional disputes, [this Court] should not be
beguiled by foreign jurisprudence some of which are hardly
applicable because they have been dictated by different
constitutional settings and needs."53 Indeed, although the
Philippine Constitution can trace its origins to that of the United
States, their paths of development have long since diverged. In
the colorful words of Father Bernas, "[w]e have cut the umbilical
cord." 
The major difference between the judicial power of the Philippine
Supreme Court and that of the U.S. Supreme Court is that while
the power of judicial review is only impliedly granted to the U.S.
Supreme Court and is discretionary in nature, that granted to the
Philippine Supreme Court and lower courts, as expressly provided
for in the Constitution, is not just a power but also a duty, and it
was given an expanded definition to include the power to
correct any grave abuse of discretion on the part of any
government branch or instrumentality.
There are also glaring distinctions between the U.S. Constitution
and the Philippine Constitution with respect to the power of the
House of Representatives over impeachment proceedings. While
House of Representatives without limitation,54 our Constitution,
though vesting in the House of Representatives the exclusive
power to initiate impeachment cases,55 provides for several
limitations to the exercise of such power as embodied in Section
3(2), (3), (4) and (5), Article XI thereof. These limitations include
the manner of filing, required vote to impeach, and the one year
bar on the impeachment of one and the same official.  nomination, and rescinding the election, of a congressman as a
Respondents are also of the view that judicial review of
impeachments undermines their finality and may also lead to
conflicts between Congress and the judiciary. Thus, they call upon
this Court to exercise judicial statesmanship on the principle that
"whenever possible, the Court should defer to the judgment of the
people expressed legislatively, recognizing full well the perils of
judicial willfulness and pride."56
But did not the people also express their will when they instituted
the above-mentioned safeguards in the Constitution? This shows
that the Constitution did not intend to leave the matter of
impeachment to the sole discretion of Congress. Instead, it
provided for certain well-defined limits, or in the language of Baker
v. Carr,57"judicially discoverable standards" for determining the
validity of the exercise of such discretion, through the power of
judicial review. 
The cases of Romulo v. Yniguez58 and Alejandrino v.
Quezon,59 cited by respondents in support of the argument that the
impeachment power is beyond the scope of judicial review, are not
in point. These cases concern the denial of petitions for writs of
mandamus to compel the legislature to perform non-ministerial
acts, and do not concern the exercise of the power of judicial
review. 
There is indeed a plethora of cases in which this Court exercised
the power of judicial review over congressional action. Thus,
in Santiago v. Guingona, Jr.,60 this Court ruled that it is well within
the power and jurisdiction of the Court to inquire whether the
Senate or its officials committed a violation of the Constitution or
grave abuse of discretion in the exercise of their functions and
prerogatives. In Tanada v. Angara,61 in seeking to nullify an act of
the Philippine Senate on the ground that it contravened the
Constitution, it held that the petition raises a justiciable
controversy and that when an action of the legislative branch is
seriously alleged to have infringed the Constitution, it becomes not
only the right but in fact the duty of the judiciary to settle the
dispute. In Bondoc v. Pineda,62 this Court declared null and void a
resolution of the House of Representatives withdrawing the
member of the House Electoral Tribunal for being violative of
Section 17, Article VI of the Constitution. In Coseteng v. Mitra,63 it
held that the resolution of whether the House representation in the
Commission on Appointments was based on proportional
representation of the political parties as provided in Section 18,
Article VI of the Constitution is subject to judicial review. In Daza
v. Singson,64 it held that the act of the House of Representatives in
removing the petitioner from the Commission on Appointments is
subject to judicial review. In Tanada v. Cuenco,65 it held that
although under the Constitution, the legislative power is vested
exclusively in Congress, this does not detract from the power of
the courts to pass upon the constitutionality of acts of Congress.
In Angara v. Electoral Commission,66 it ruled that confirmation by
the National Assembly of the election of any member, irrespective
of whether his election is contested, is not essential before such
member-elect may discharge the duties and enjoy the privileges of
a member of the National Assembly. 
Finally, there exists no constitutional basis for the contention that
the exercise of judicial review over impeachment proceedings
would upset the system of checks and balances. Verily, the
Constitution is to be interpreted as a whole and "one section is not
to be allowed to defeat another."67 Both are integral components of
the calibrated system of independence and interdependence that
insures that no branch of government act beyond the powers
assigned to it by the Constitution. 
Essential Requisites for Judicial Review
As clearly stated in Angara v. Electoral Commission, the courts'
power of judicial review, like almost all powers conferred by the
Constitution, is subject to several limitations, namely: (1) an
actual case or controversy calling for the exercise of judicial
power; (2) the person challenging the act must have "standing" to
challenge; he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct injury as a
result of its enforcement; (3) the question of constitutionality must
be raised at the earliest possible opportunity; and (4) the issue of
constitutionality must be the very lis mota of the case.  importance,71 and that procedural matters are subordinate to the
x x x Even then, this power of judicial review is limited to
actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further
to the constitutional question raised or the very lis
mota  presented. Any attempt at abstraction could only
lead to dialectics and barren legal questions and to sterile
conclusions unrelated to actualities. Narrowed as its
function is in this manner, the judiciary does not pass upon
questions of wisdom, justice or expediency of legislation.
More than that, courts accord the presumption of
constitutionality to legislative enactments, not only
because the legislature is presumed to abide by the
Constitution but also because the judiciary in the
determination of actual cases and controversies must
reflect the wisdom and justice of the people as expressed
through their representatives in the executive and
legislative departments of the government.68 (Italics in the
original)
Standing
Locus standi or legal standing or has been defined as a personal
and substantial interest in the case such that the party has
sustained or will sustain direct injury as a result of the
governmental act that is being challenged. The gist of the question
of standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness
which sharpens the presentation of issues upon which the court
depends for illumination of difficult constitutional questions.69
Intervenor  Soriano, in praying for the dismissal of the petitions,
contends that petitioners do not have standing since only the Chief
Justice has sustained and will sustain direct personal
injury. Amicus curiae  former Justice Minister and Solicitor General
Estelito Mendoza similarly contends.
Upon the other hand, the Solicitor General asserts that petitioners
have standing since this Court had, in the past, accorded standing
to taxpayers, voters, concerned citizens, legislators in cases
involving paramount public interest70 and transcendental
need to determine whether or not the other branches of the
government have kept themselves within the limits of the
Constitution and the laws and that they have not abused the
discretion given to them.72 Amicus curiae  Dean Raul Pangalangan
of the U.P. College of Law is of the same opinion, citing
transcendental importance and the well-entrenched rule exception
that, when the real party in interest is unable to vindicate his
rights by seeking the same remedies, as in the case of the Chief
Justice who, for ethical reasons, cannot himself invoke the
jurisdiction of this Court, the courts will grant petitioners standing. 
There is, however, a difference between the rule on real-party-in-
interest and the rule on standing, for the former is a concept of
civil procedure73 while the latter has constitutional
underpinnings.74 In view of the arguments set forth regarding
standing, it behooves the Court to reiterate the ruling
in Kilosbayan, Inc. v. Morato75 to clarify what is meant by locus
standi and to distinguish it from real party-in-interest.
The difference between the rule on standing and real party
in interest has been noted by authorities thus: "It is
important to note . . . that standing because of its
constitutional and public policy underpinnings, is very
different from questions relating to whether a particular
plaintiff is the real party in interest or has capacity to sue.
Although all three requirements are directed towards
ensuring that only certain parties can maintain an action,
standing restrictions require a partial consideration of the
merits, as well as broader policy concerns relating to the
proper role of the judiciary in certain areas. 
Standing is a special concern in constitutional law because
in some cases suits are brought not by parties who have
been personally injured by the operation of a law or by
official action taken, but by concerned citizens, taxpayers
or voters who actually sue in the public interest. Hence the
 question in standing is whether such parties have "alleged
such a personal stake in the outcome of the controversy as
to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely
depends for illumination of difficult constitutional
questions."
xxx
On the other hand, the question as to "real party in
interest" is whether he is "the party who would be
benefited or injured by the judgment, or the 'party entitled
to the avails of the suit.'"76 (Citations omitted)
While rights personal to the Chief Justice may have been injured
by the alleged unconstitutional acts of the House of
Representatives, none of the petitioners before us asserts a
violation of the personal rights of the Chief Justice. On the
contrary, they invariably invoke the vindication of their own rights
– as taxpayers; members of Congress; citizens, individually or in a
class suit; and members of the bar and of the legal profession –
which were supposedly violated by the alleged unconstitutional
acts of the House of Representatives.  standing to maintain inviolate the prerogatives, powers and
In a long line of cases, however, concerned citizens, taxpayers and
legislators when specific requirements have been met have been
given standing by this Court.  members,84 especially when it is composed of substantial
When suing as a citizen, the interest of the petitioner assailing the
constitutionality of a statute must be direct and personal. He must
be able to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger of
sustaining some direct injury as a result of its enforcement, and
not merely that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or
that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.77 In fine, when the
proceeding involves the assertion of a public right,78 the mere fact
that he is a citizen satisfies the requirement of personal interest.
In the case of a taxpayer, he is allowed to sue where there is a
claim that public funds are illegally disbursed, or that public money
is being deflected to any improper purpose, or that there is a
wastage of public funds through the enforcement of an invalid or
unconstitutional law.79 Before he can invoke the power of judicial
review, however, he must specifically prove that he has sufficient
interest in preventing the illegal expenditure of money raised by
taxation and that he would sustain a direct injury as a result of the
enforcement of the questioned statute or contract. It is not
sufficient that he has merely a general interest common to all
members of the public.80
At all events, courts are vested with discretion as to whether or
not a taxpayer's suit should be entertained.81 This Court opts to
grant standing to most of the petitioners, given their allegation
that any impending transmittal to the Senate of the Articles of
Impeachment and the ensuing trial of the Chief Justice will
necessarily involve the expenditure of public funds. 
As for a legislator, he is allowed to sue to question the validity of
any official action which he claims infringes his prerogatives as a
legislator.82 Indeed, a member of the House of Representatives has
privileges vested by the Constitution in his office.83
While an association has legal personality to represent its
taxpayers and the outcome will affect their vital interests,85 the
mere invocation by the Integrated Bar of the Philippines or any
member of the legal profession  of the duty to preserve the rule of
law and nothing more, although undoubtedly true, does not suffice
to clothe it with standing. Its interest is too general. It is shared by
other groups and the whole citizenry. However, a reading of the
petitions shows that it has advanced constitutional issues which
deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents.86 It, therefore, behooves this
Court to relax the rules on standing and to resolve the issues
presented by it.
In the same vein, when dealing with class suits filed in behalf of all
citizens, persons intervening must be sufficiently numerous to fully
protect the interests of all concerned87 to enable the court to deal
properly with all interests involved in the suit,88 for a judgment in a
class suit, whether favorable or unfavorable to the class, is, under
the res judicata principle, binding on all members of the class
whether or not they were before the court.89 Where it clearly
appears that not all interests can be sufficiently represented as
shown by the divergent issues raised in the numerous petitions
before this Court, G.R. No. 160365 as a class suit ought to fail.
Since petitioners additionallyallege standing as citizens and
taxpayers, however, their petition will stand.
The Philippine Bar Association, in G.R. No. 160403, invokes the
sole ground of transcendental importance, while Atty. Dioscoro U.
Vallejos, in G.R. No. 160397, is mum on his standing.  Intervene and Petition-in-Intervention.
There being no doctrinal definition of transcendental importance,
the following instructive determinants formulated by former
Supreme Court Justice Florentino P. Feliciano are instructive: (1)
the character of the funds or other assets involved in the case; (2)
the presence of a clear case of disregard of a constitutional or
statutory prohibition by the public respondent agency or
instrumentality of the government; and (3) the lack of any other
party with a more direct and specific interest in raising the
questions being raised.90 Applying these determinants, this Court is
satisfied that the issues raised herein are indeed of transcendental
importance.  the Philippines, Inc. filed a "Petition-in-Intervention with Leave to
In not a few cases, this Court has in fact adopted a liberal attitude
on the locus standi of a petitioner where the petitioner is able to
craft an issue of transcendental significance to the people, as when
the issues raised are of paramount importance to the
public.91 Such liberality does not, however, mean that the
requirement that a party should have an interest in the matter is
totally eliminated. A party must, at the very least, still plead the
existence of such interest, it not being one of which courts can
take judicial notice. In petitioner Vallejos' case, he failed to allege
any interest in the case. He does not thus have standing. 
With respect to the motions for intervention, Rule 19, Section 2 of
the Rules of Court requires an intervenor to possess a legal
interest in the matter in litigation, or in the success of either of the
parties, or an interest against both, or is so situated as to be
adversely affected by a distribution or other disposition of property
in the custody of the court or of an officer thereof. While
intervention is not a matter of right, it may be permitted by the
courts when the applicant shows facts which satisfy the
requirements of the law authorizing intervention.92
In Intervenors Attorneys Romulo Macalintal and Pete Quirino
Quadra's case, they seek to join petitioners Candelaria, et. al. in
G.R. No. 160262. Since, save for one additional issue, they raise
the same issues and the same standing, and no objection on the
part of petitioners Candelaria, et. al. has been interposed, this
Court as earlier stated, granted the Motion for Leave of Court to
Nagmamalasakit na mga Manananggol ng mga Manggagawang
Pilipino, Inc., et. al. sought to join petitioner Francisco in G.R. No.
160261. Invoking their right as citizens to intervene, alleging that
"they will suffer if this insidious scheme of the minority members
of the House of Representatives is successful," this Court found the
requisites for intervention had been complied with. 
Alleging that the issues raised in the petitions in G.R. Nos. 160261,
160262, 160263, 160277, 160292, 160295, and 160310 were of
transcendental importance, World War II Veterans Legionnaires of
Intervene" to raise the additional issue of whether or not the
second impeachment complaint against the Chief Justice is valid
and based on any of the grounds prescribed by the Constitution. 
Finding that Nagmamalasakit na mga Manananggol ng mga
Manggagawang Pilipino, Inc., et al. and World War II Veterans
Legionnaires of the Philippines, Inc. possess a legal interest in the
matter in litigation the respective motions to intervene were
hereby granted.
Senator Aquilino Pimentel, on the other hand, sought to intervene
for the limited purpose of making of record and arguing a point of
view that differs with Senate President Drilon's. He alleges that
submitting to this Court's jurisdiction as the Senate President does
will undermine the independence of the Senate which will sit as an
impeachment court once the Articles of Impeachment are
transmitted to it from the House of Representatives. Clearly,
Senator Pimentel possesses a legal interest in the matter in
litigation, he being a member of Congress against which the herein
petitions are directed. For this reason, and to fully ventilate all
substantial issues relating to the matter at hand, his Motion to
Intervene was granted and he was, as earlier stated, allowed to
argue.
Lastly, as to Jaime N. Soriano's motion to intervene, the same
must be denied for, while he asserts an interest as a taxpayer, he
failed to meet the standing requirement for bringing taxpayer's
suits as set forth in Dumlao v. Comelec,93 to wit:
x x x While, concededly, the elections to be held involve
the expenditure of public moneys, nowhere in their Petition
do said petitioners allege that their tax money is "being
extracted and spent in violation of specific constitutional
protection against abuses of legislative power," or that
there is a misapplication of such funds by respondent
COMELEC, or that public money is being deflected to any
improper purpose. Neither do petitioners seek to restrain
respondent from wasting public funds through the
enforcement of an invalid or unconstitutional
law.94 (Citations omitted)
In praying for the dismissal of the petitions, Soriano failed even to
allege that the act of petitioners will result in illegal disbursement
of public funds or in public money being deflected to any improper
purpose. Additionally, his mere interest as a member of the Bar
does not suffice to clothe him with standing. 
Ripeness and Prematurity
In Tan v. Macapagal,95 this Court, through Chief Justice Fernando,
held that for a case to be considered ripe for adjudication, "it is a
prerequisite that something had by then been accomplished or
performed by either branch before a court may come into the
picture."96 Only then may the courts pass on the validity of what
was done, if and when the latter is challenged in an appropriate
legal proceeding.
The instant petitions raise in the main the issue of the validity of
the filing of the second impeachment complaint against the Chief
Justice in accordance with the House Impeachment Rules adopted
by the 12th Congress, the constitutionality of which is questioned.
The questioned acts having been carried out, i.e., the second
impeachment complaint had been filed with the House of
Representatives and the 2001 Rules have already been already
promulgated and enforced, the prerequisite that the alleged
unconstitutional act should be accomplished and performed before
suit, as Tan v. Macapagal holds, has been complied with. 
Related to the issue of ripeness is the question of whether the
instant petitions are premature. Amicus curiae  former Senate
President Jovito R. Salonga opines that there may be no urgent
need for this Court to render a decision at this time, it being the
final arbiter on questions of constitutionality anyway. He thus
recommends that all remedies in the House and Senate should first
be exhausted.
Taking a similar stand is Dean Raul Pangalangan of the U.P.
College of Law who suggests to this Court to take judicial notice of
on-going attempts to encourage signatories to the second
impeachment complaint to withdraw their signatures and opines
that the House Impeachment Rules provide for an opportunity for
members to raise constitutional questions themselves when the
Articles of Impeachment are presented on a motion to transmit to
the same to the Senate. The dean maintains that even assuming
that the Articles are transmitted to the Senate, the Chief Justice
can raise the issue of their constitutional infirmity by way of a
motion to dismiss.
The dean's position does not persuade. First, the withdrawal by the
Representatives of their signatures would not, by itself, cure the
House Impeachment Rules of their constitutional infirmity. Neither
would such a withdrawal, by itself, obliterate the questioned
second impeachment complaint since it would only place it under
the ambit of Sections 3(2) and (3) of Article XI of the
Constitution97 and, therefore, petitioners would continue to suffer
their injuries.
Second and most importantly, the futility of seeking remedies from
either or both Houses of Congress before coming to this Court is
shown by the fact that, as previously discussed, neither the House
of Representatives nor the Senate is clothed with the power to rule
with definitiveness on the issue of constitutionality, whether
concerning impeachment proceedings or otherwise, as said power
is exclusively vested in the judiciary by the earlier quoted Section
I, Article VIII of the Constitution. Remedy cannot be sought from a
body which is bereft of power to grant it. 
Justiciability
In the leading case of Tanada v. Cuenco,98 Chief Justice Roberto
Concepcion defined the term "political question," viz:  judiciary has nothing with which to enforce its decisions or
[T]he term "political question" connotes, in legal parlance,
what it means in ordinary parlance, namely, a question of
policy. In other words, in the language of Corpus Juris
Secundum, it refers to "those questions which, under the
Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary
authority  has been delegated to the Legislature or
executive branch of the Government." It is concerned with
issues dependent upon the wisdom, not legality, of a
particular measure.99(Italics in the original)  and in such lower courts as may be established by law.
Prior to the 1973 Constitution, without consistency and seemingly
without any rhyme or reason, this Court vacillated on its stance of
taking cognizance of cases which involved political questions. In
some cases, this Court hid behind the cover of the political
question doctrine and refused to exercise its power of judicial
review.100 In other cases, however, despite the seeming political
nature of the therein issues involved, this Court assumed
jurisdiction whenever it found constitutionally imposed limits on
powers or functions conferred upon political bodies.101 Even in the
landmark 1988 case of Javellana v. Executive Secretary 102 which
raised the issue of whether the 1973 Constitution was ratified,
hence, in force, this Court shunted the political question doctrine
and took cognizance thereof. Ratification by the people of a
Constitution is a political question, it being a question decided by
the people in their sovereign capacity.  product of our experience during martial law. As a matter
The frequency with which this Court invoked the political question
doctrine to refuse to take jurisdiction over certain cases during the
Marcos regime motivated Chief Justice Concepcion, when he
became a Constitutional Commissioner, to clarify this Court's
power of judicial review and its application on issues involving
political questions, viz: 
MR. CONCEPCION. Thank you, Mr. Presiding Officer.
I will speak on the judiciary. Practically, everybody has made, I
suppose, the usual comment that the judiciary is the weakest
among the three major branches of the service. Since the
legislature holds the purse and the executive the sword, the
commands except the power of reason and appeal to conscience
which, after all, reflects the will of God, and is the most powerful of
all other powers without exception. x x x And so, with the body's
indulgence, I will proceed to read the provisions drafted by the
Committee on the Judiciary.
The first section starts with a sentence copied from former
Constitutions. It says:
The judicial power shall be vested in one Supreme Court
I suppose nobody can question it.
The next provision is new in our constitutional law. I will
read it first and explain.
Judicial power includes the duty of courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part or
instrumentality of the government.
Fellow Members of this Commission, this is actually a
of fact, it has some antecedents in the past, but the role
of the judiciary during the deposed regime was
marred considerably by the circumstance that in a
number of cases against the government, which then
had no legal defense at all, the solicitor general set
up the defense of political questions and got away
with it. As a consequence, certain principles
concerning particularly the writ of habeas corpus,
that is, the authority of courts to order the release of
political detainees, and other matters related to the
operation and effect of martial law failed because
the government set up the defense of political
question.  And the Supreme Court said: "Well, since it is
political, we have no authority to pass upon it."  The
Committee on the Judiciary feels that this was not a
proper solution of the questions involved. It did not
merely request an encroachment upon the rights of
the people, but it, in effect, encouraged further
violations thereof during the martial law regime.  I
am sure the members of the Bar are familiar with this
situation. But for the benefit of the Members of the
Commission who are not lawyers, allow me to explain. I
will start with a decision of the Supreme Court in 1973 on
the case of Javellana vs. the Secretary of Justice, if I am
not mistaken. Martial law was announced on September
22, although the proclamation was dated September 21.
The obvious reason for the delay in its publication was that
the administration had apprehended and detained
prominent newsmen on September 21. So that when
martial law was announced on September 22, the media
hardly published anything about it. In fact, the media could
not publish any story not only because our main writers
were already incarcerated, but also because those who
succeeded them in their jobs were under mortal threat of
being the object of wrath of the ruling party. The 1971
Constitutional Convention had begun on June 1, 1971 and
by September 21 or 22 had not finished the Constitution; it
had barely agreed in the fundamentals of the Constitution.
I forgot to say that upon the proclamation of martial law,
some delegates to that 1971 Constitutional Convention,
dozens of them, were picked up. One of them was our very
own colleague, Commissioner Calderon. So, the unfinished
draft of the Constitution was taken over by representatives
of Malacañang. In 17 days, they finished what the
delegates to the 1971 Constitutional Convention had been
unable to accomplish for about 14 months. The draft of the
1973 Constitution was presented to the President around
December 1, 1972, whereupon the President issued a
decree calling a plebiscite which suspended the operation
of some provisions in the martial law decree which
prohibited discussions, much less public discussions of
certain matters of public concern. The purpose was
presumably to allow a free discussion on the draft of the
Constitution on which a plebiscite was to be held sometime
in January 1973. If I may use a word famous by our
colleague, Commissioner Ople, during the interregnum,
however, the draft of the Constitution was analyzed and
criticized with such a telling effect that Malacañang felt the
danger of its approval. So, the President suspended
indefinitely the holding of the plebiscite and announced
that he would consult the people in a referendum to be
held from January 10 to January 15. But the questions to
be submitted in the referendum were not announced until
the eve of its scheduled beginning, under the supposed
supervision not of the Commission on Elections, but of
what was then designated as "citizens assemblies or
barangays." Thus the barangays came into existence. The
questions to be propounded were released with proposed
answers thereto, suggesting that it was unnecessary to
hold a plebiscite because the answers given in the
referendum should be regarded as the votes cast in the
plebiscite. Thereupon, a motion was filed with the Supreme
Court praying that the holding of the referendum be
suspended. When the motion was being heard before the
Supreme Court, the Minister of Justice delivered to the
Court a proclamation of the President declaring that the
new Constitution was already in force because the
overwhelming majority of the votes cast in the referendum
favored the Constitution. Immediately after the departure
of the Minister of Justice, I proceeded to the session room
where the case was being heard. I then informed the Court
and the parties the presidential proclamation declaring that
the 1973 Constitution had been ratified by the people and
is now in force.
A number of other cases were filed to declare the
presidential proclamation null and void. The main defense
put up by the government was that the issue was a
political question and that the court had no jurisdiction to
entertain the case.
xxx
The government said that in a referendum held from
January 10 to January 15, the vast majority ratified the
draft of the Constitution. Note that all members of the
Supreme Court were residents of Manila, but none of them
had been notified of any referendum in their respective
places of residence, much less did they participate in the
alleged referendum. None of them saw any referendum
proceeding.
In the Philippines, even local gossips spread like wild fire.
So, a majority of the members of the Court felt that there
had been no referendum.
Second, a referendum cannot substitute for a
plebiscite.  There is a big difference between a
referendum and a plebiscite. But another group of
justices upheld the defense that the issue was a
political question. Whereupon, they dismissed the
case. This is not the only major case in which the
plea of "political question" was set up. There have
been a number of other cases in the past.
x x x The defense of the political question was
rejected because the issue was clearly justiciable.
xxx
x x x When your Committee on the Judiciary began to
perform its functions, it faced the following questions:
What is judicial power? What is a political question?
The Supreme Court, like all other courts, has one main
function: to settle actual controversies involving conflicts of
rights which are demandable and enforceable. There are
rights which are guaranteed by law but cannot be enforced
by a judiciary party. In a decided case, a husband
complained that his wife was unwilling to perform her
duties as a wife. The Court said: "We can tell your wife
what her duties as such are and that she is bound to
comply with them, but we cannot force her physically to
discharge her main marital duty to her husband. There are
some rights guaranteed by law, but they are so personal
that to enforce them by actual compulsion would be highly
derogatory to human dignity."
This is why the first part of the second paragraph of Section I
provides that:
Judicial power includes the duty of courts to settle actual
controversies involving rights which are legally
demandable or enforceable . . . 
The courts, therefore, cannot entertain, much less decide,
hypothetical questions.  In a presidential system of
government, the Supreme Court has, also another
important function. The powers of government are
generally considered divided into three branches:
the Legislative, the Executive and the Judiciary. Each
one is supreme within its own sphere and
independent of the others. Because of that
supremacy power to determine whether a given law
is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits
of power of the agencies and offices of the
government as well as those of its officers. In other
words, the judiciary is the final arbiter on the
question whether or not a branch of government or
any of its officials has acted without jurisdiction or in
excess of jurisdiction, or so capriciously as to
constitute an abuse of discretion amounting to
excess of jurisdiction or lack of jurisdiction. This is
 not only a judicial power but a duty to pass xxx
judgment on matters of this nature.
FR. BERNAS. Ultimately, therefore, it will always have to
This is the background of paragraph 2 of Section 1, be decided by the Supreme Court according to the new
which means that the courts cannot hereafter evade numerical need for votes.
the duty to settle matters of this nature, by claiming
that such matters constitute a political question. On another point, is it the intention of Section 1 to do
away with the political question doctrine?
I have made these extended remarks to the end that the
Commissioners may have an initial food for thought on the MR. CONCEPCION. No.
subject of the judiciary.103 (Italics in the original; emphasis
supplied)
FR. BERNAS. It is not.

During the deliberations of the Constitutional Commission, Chief

MR. CONCEPCION. No, because whenever there is an
Justice Concepcion further clarified the concept of judicial power,
abuse of discretion, amounting to a lack of
thus: 
jurisdiction. . .

MR. NOLLEDO. The Gentleman used the term

FR. BERNAS. So, I am satisfied with the answer that
"judicial power" but judicial power is not vested in
it is not intended to do away with the political
the Supreme Court alone but also in other lower
question doctrine. 
courts as may be created by law.

MR. CONCEPCION. No, certainly not.

MR. CONCEPCION. Yes.

When this provision was originally drafted, it sought

MR. NOLLEDO. And so, is this only an example?
to define what is judicial power. But the Gentleman
will notice it says, "judicial power includes" and the
MR. CONCEPCION. No, I know this is not. The reason being that the definition that we might make
Gentleman seems to identify political questions with may not cover all possible areas.
jurisdictional questions. But there is a difference.
FR. BERNAS. So, this is not an attempt to solve the
MR. NOLLEDO. Because of the expression "judicial problems arising from the political question doctrine.
power"?
MR. CONCEPCION. It definitely does not eliminate
MR. CONCEPCION. No. Judicial power, as I said, the fact that truly political questions are beyond the
refers to ordinary cases but where there is a pale of judicial power.104 (Emphasis supplied)
question as to whether the government had
authority or had abused its authority to the extent of
From the foregoing record of the proceedings of the 1986
lacking jurisdiction or excess of jurisdiction, that is
Constitutional Commission, it is clear that judicial power is not only
not a political question. Therefore, the court has the
a power; it is also a duty, a duty which cannot be abdicated by the
duty to decide.
mere specter of this creature called the political question doctrine. And in Daza v. Singson,109 speaking through Justice Isagani Cruz,
Chief Justice Concepcion hastened to clarify, however, that Section this Court ruled:
1, Article VIII was not intended to do away with "truly political
questions." From this clarification it is gathered that there are two In the case now before us, the jurisdictional objection
species of political questions: (1) "truly political questions" and (2) becomes even less tenable and decisive. The reason is
those which "are not truly political questions."  that, even if we were to assume that the issue presented
before us was political in nature, we would still not be
Truly political questions are thus beyond judicial review, the precluded from resolving it under
reason for respect of the doctrine of separation of powers to be the expanded jurisdiction conferred upon us that now
maintained. On the other hand, by virtue of Section 1, Article VIII covers, in proper cases, even the political question.110 x x x
of the Constitution, courts can review questions which are not truly (Emphasis and underscoring supplied.)
political in nature. 
Section 1, Article VIII, of the Court does not define what are
As pointed out by amicus curiae former dean Pacifico Agabin of the justiciable political questions and non-justiciable political
UP College of Law, this Court has in fact in a number of cases questions, however. Identification of these two species of political
taken jurisdiction over questions which are not truly political questions may be problematic. There has been no clear standard.
following the effectivity of the present Constitution.  The American case of Baker v. Carr111 attempts to provide some: 

In Marcos v. Manglapus,105 this Court, speaking through Madame x x x Prominent on the surface of any case held to involve
Justice Irene Cortes, held: a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
The present Constitution limits resort to the political political department; or a lack of judicially discoverable
question doctrine and broadens the scope of judicial and manageable standards for resolving it; or
inquiry into areas which the Court, under previous the impossibility of deciding without an initial policy
constitutions, would have normally left to the political determination of a kind clearly for non-judicial discretion;
departments to decide.106 x x x  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
In Bengzon v. Senate Blue Ribbon Committee,107 through Justice
for questioning adherence to a political decision already
Teodoro Padilla, this Court declared: 
made; or the potentiality of embarrassment from
multifarious pronouncements by various departments on
The "allocation of constitutional boundaries" is a task that one question.112(Underscoring supplied) 
this Court must perform under the Constitution. Moreover,
as held in a recent case, "(t)he political question
Of these standards, the more reliable have been the first three:
doctrine neither interposes an obstacle to judicial
(1) a textually demonstrable constitutional commitment of the
determination of the rival claims. The jurisdiction
issue to a coordinate political department; (2) the lack of judicially
to delimit constitutional boundaries has been given
discoverable and manageable standards for resolving it; and (3)
to this Court. It cannot abdicate that
the impossibility of deciding without an initial policy determination
obligation mandated by the 1987 Constitution,
of a kind clearly for non-judicial discretion. These standards are
although said provision by no means does away with
not separate and distinct concepts but are interrelated to each in
the applicability of the principle in appropriate
cases."108 (Emphasis and underscoring supplied)
that the presence of one strengthens the conclusion that the
others are also present.  impeachment complaint over which this Court has no
The problem in applying the foregoing standards is that the
American concept of judicial review is radically different from our
current concept, for Section 1, Article VIII of the Constitution
provides our courts with far less discretion in determining whether
they should pass upon a constitutional issue.  clear from the deliberations of the Constitutional
In our jurisdiction, the determination of a truly political question
from a non-justiciable political question lies in the answer to the
question of whether there are constitutionally imposed limits on
powers or functions conferred upon political bodies. If there are,
then our courts are duty-bound to examine whether the branch or
instrumentality of the government properly acted within such
limits. This Court shall thus now apply this standard to the present
controversy.  than by alluding to both positive and negative examples of both,
These petitions raise five substantial issues:
I. Whether the offenses alleged in the Second
impeachment complaint constitute valid impeachable
offenses under the Constitution.
II. Whether the second impeachment complaint was filed
in accordance with Section 3(4), Article XI of the
Constitution.
III. Whether the legislative inquiry by the House
Committee on Justice into the Judicial Development Fund
is an unconstitutional infringement of the constitutionally
mandated fiscal autonomy of the judiciary.
IV. Whether Sections 15 and 16 of Rule V of the Rules on
Impeachment adopted by the 12th Congress are
unconstitutional for violating the provisions of Section 3,
Article XI of the Constitution.
V. Whether the second impeachment complaint is barred
under Section 3(5) of Article XI of the Constitution.
The first issue goes into the merits of the second
jurisdiction. More importantly, any discussion of this issue
would require this Court to make a determination of what
constitutes an impeachable offense. Such a determination
is a purely political question which the Constitution has left
to the sound discretion of the legislation. Such an intent is
Commission.113
Although Section 2 of Article XI of the Constitution enumerates six
grounds for impeachment, two of these, namely, other high crimes
and betrayal of public trust, elude a precise definition. In fact, an
examination of the records of the 1986 Constitutional Commission
shows that the framers could find no better way to approximate
the boundaries of betrayal of public trust and other high crimes
without arriving at their clear cut definition or even a standard
therefor.114 Clearly, the issue calls upon this court to decide a non-
justiciable political question which is beyond the scope of its
judicial power under Section 1, Article VIII. 
Lis Mota
It is a well-settled maxim of adjudication that an issue assailing
the constitutionality of a governmental act should be avoided
whenever possible. Thus, in the case of Sotto v. Commission on
Elections,115 this Court held: 
x x x It is a well-established rule that a court should not
pass upon a constitutional question and decide a law to be
unconstitutional or invalid, unless such question is raised
by the parties and that when it is raised, if the record
also presents some other ground upon which the
court may rest its judgment, that course will be
adopted and the constitutional question will be left
for consideration until a case arises in which a
decision upon such question will be
unavoidable.116 [Emphasis and underscoring supplied]
The same principle was applied in Luz Farms v. Secretary of
Agrarian Reform,117 where this Court invalidated Sections 13 and
32 of Republic Act No. 6657 for being confiscatory and violative of
due process, to wit:
It has been established that this Court will assume
jurisdiction over a constitutional question only if it is
shown that the essential requisites of a judicial
inquiry into such a question are first satisfied. Thus,
there must be an actual case or controversy involving a
conflict of legal rights susceptible of judicial determination,
the constitutional question must have been opportunely
raised by the proper party, and the resolution of the
question is unavoidably necessary to the decision of
the case itself.118 [Emphasis supplied]
Succinctly put, courts will not touch the issue of constitutionality
unless it is truly unavoidable and is the very lis mota  or crux of
the controversy.
As noted earlier, the instant consolidated petitions, while all
seeking the invalidity of the second impeachment complaint,
collectively raise several constitutional issues upon which the
outcome of this controversy could possibly be made to rest. In
determining whether one, some or all of the remaining substantial
issues should be passed upon, this Court is guided by the related
cannon of adjudication that "the court should not form a rule of
constitutional law broader than is required by the precise facts to
which it is applied."119
In G.R. No. 160310, petitioners Leonilo R. Alfonso, et al. argue
that, among other reasons, the second impeachment complaint is
invalid since it directly resulted from a Resolution120 calling for a
legislative inquiry into the JDF, which Resolution and legislative
inquiry petitioners claim to likewise be unconstitutional for being:
(a) a violation of the rules and jurisprudence on investigations in
aid of legislation; (b) an open breach of the doctrine of separation
of powers; (c) a violation of the constitutionally mandated fiscal
autonomy of the judiciary; and (d) an assault on the independence
of the judiciary.121
Without going into the merits of petitioners Alfonso, et. al.'s
claims, it is the studied opinion of this Court that the issue of the
constitutionality of the said Resolution and resulting legislative
inquiry is too far removed from the issue of the validity of the
second impeachment complaint. Moreover, the resolution of said
issue would, in the Court's opinion, require it to form a rule of
constitutional law touching on the separate and distinct matter of
legislative inquiries in general, which would thus be broader than is
required by the facts of these consolidated cases. This opinion is
further strengthened by the fact that said petitioners have raised
other grounds in support of their petition which would not be
adversely affected by the Court's ruling.
En passant, this Court notes that a standard for the conduct of
legislative inquiries has already been enunciated by this Court
in Bengzon, Jr. v. Senate Blue Ribbon Commttee,122 viz:
The 1987 Constitution expressly recognizes the power of
both houses of Congress to conduct inquiries in aid of
legislation. Thus, Section 21, Article VI thereof provides:
The Senate or the House of Representatives or any of its
respective committees may conduct inquiries in aid of
legislation in accordance with its duly published rules of
procedure. The rights of persons appearing in or affected
by such inquiries shall be respected.
The power of both houses of Congress to conduct inquiries
in aid of legislation is not, therefore absolute or unlimited.
Its exercise is circumscribed by the afore-quoted provision
of the Constitution. Thus, as provided therein, the
investigation must be "in aid of legislation in accordance
with its duly published rules of procedure" and that "the
rights of persons appearing in or affected by such inquiries
shall be respected." It follows then that the right rights of
persons under the Bill of Rights must be respected,
including the right to due process and the right not be
compelled to testify against one's self.123
In G.R. No. 160262, intervenors Romulo B. Macalintal and Pete
Quirino Quadra, while joining the original petition of petitioners
Candelaria, et. al., introduce the new argument that since the
second impeachment complaint was verified and filed only by
Representatives Gilberto Teodoro, Jr. and Felix William
Fuentebella, the same does not fall under the provisions of Section
3 (4), Article XI of the Constitution which reads:
Section 3(4) In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the
Members of the House, the same shall constitute the
Articles of Impeachment, and trial by the Senate shall
forthwith proceed.
They assert that while at least 81 members of the House of
Representatives signed a Resolution of
Endorsement/Impeachment, the same did not satisfy the
requisites for the application of the afore-mentioned section in that
the "verified complaint or resolution of impeachment" was not filed
"by at least one-third of all the Members of the House." With the
exception of Representatives Teodoro and Fuentebella, the
signatories to said Resolution are alleged to have verified the same
merely as a "Resolution of Endorsement." Intervenors point to the
"Verification" of the Resolution of Endorsement which states that:
"We are the proponents/sponsors of the Resolution of
Endorsement of the abovementioned Complaint of
Representatives Gilberto Teodoro and Felix William B.
Fuentebella x x x"124
Intervenors Macalintal and Quadra further claim that what the
Constitution requires in order for said second impeachment
complaint to automatically become the Articles of Impeachment
and for trial in the Senate to begin "forthwith," is that
the verified complaint be "filed," not merely endorsed, by at least
one-third of the Members of the House of Representatives. Not
having complied with this requirement, they concede that the
second impeachment complaint should have been calendared and
referred to the House Committee on Justice under Section 3(2),
Article XI of the Constitution, viz:
Section 3(2) A verified complaint for impeachment may be
filed by any Member of the House of Representatives or by
any citizen upon a resolution of endorsement by any
Member thereof, which shall be included in the Order of
Business within ten session days, and referred to the
proper Committee within three session days thereafter.
The Committee, after hearing, and by a majority vote of all
its Members, shall submit its report to the House within
sixty session days from such referral, together with the
corresponding resolution. The resolution shall be
calendared for consideration by the House within ten
session days from receipt thereof.
Intervenors' foregoing position is echoed by Justice Maambong
who opined that for Section 3 (4), Article XI of the Constitution to
apply, there should be 76 or more representatives who signed and
verified the second impeachment complaint as complainants,
signed and verified the signatories to a resolution of impeachment.
Justice Maambong likewise asserted that the Resolution of
Endorsement/Impeachment signed by at least one-third of the
members of the House of Representatives as endorsers is not the
resolution of impeachment contemplated by the Constitution, such
resolution of endorsement being necessary only from at least one
Member whenever a citizen files a verified impeachment complaint.
While the foregoing issue, as argued by intervenors Macalintal and
Quadra, does indeed limit the scope of the constitutional issues to
the provisions on impeachment, more compelling considerations
militate against its adoption as the lis mota or crux of the present
controversy. Chief among this is the fact that only Attorneys
Macalintal and Quadra, intervenors in G.R. No. 160262, have
raised this issue as a ground for invalidating the second
impeachment complaint. Thus, to adopt this additional ground as
the basis for deciding the instant consolidated petitions would not
only render for naught the efforts of the original petitioners in G.R.
No. 160262, but the efforts presented by the other petitioners as
well.
Again, the decision to discard the resolution of this issue as
unnecessary for the determination of the instant cases is made
easier by the fact that said intervenors Macalintal and Quadra have
joined in the petition of Candelaria, et. al., adopting the latter's
arguments and issues as their own. Consequently, they are not
unduly prejudiced by this Court's decision.
In sum, this Court holds that the two remaining issues, inextricably
linked as they are, constitute the very lis mota of the instant
controversy: (1) whether Sections 15 and 16 of Rule V of the
House Impeachment Rules adopted by the 12th Congress are
unconstitutional for violating the provisions of Section 3, Article XI
of the Constitution; and (2) whether, as a result thereof, the
second impeachment complaint is barred under Section 3(5) of
Article XI of the Constitution.  they expect [him] to be fearless in [his] pursuit to render justice,
Judicial Restraint
Senator Pimentel urges this Court to exercise judicial restraint on
the ground that the Senate, sitting as an impeachment court, has
the sole power to try and decide all cases of impeachment. Again,
this Court reiterates that the power of judicial review includes the
power of review over justiciable issues in impeachment
proceedings. 
On the other hand, respondents Speaker De Venecia et. al. argue
that "[t]here is a moral compulsion for the Court to not assume
jurisdiction over the impeachment because all the Members
thereof are subject to impeachment."125But this argument is very
much like saying the Legislature has a moral compulsion not to
pass laws with penalty clauses because Members of the House of
Representatives are subject to them. 
The exercise of judicial restraint over justiciable issues is not an
option before this Court. Adjudication may not be declined,
because this Court is not legally disqualified. Nor can jurisdiction
be renounced as there is no other tribunal to which the
controversy may be referred."126 Otherwise, this Court would be
shirking from its duty vested under Art. VIII, Sec. 1(2) of the
Constitution. More than being clothed with authority thus, this
Court is duty-bound to take cognizance of the instant
petitions.127 In the august words of amicus curiae Father Bernas,
"jurisdiction is not just a power; it is a solemn duty which may not
be renounced. To renounce it, even if it is vexatious, would be a
dereliction of duty."
Even in cases where it is an interested party, the Court under our
system of government cannot inhibit itself and must rule upon the
challenge because no other office has the authority to do so.128 On
the occasion that this Court had been an interested party to the
controversy before it, it has acted upon the matter "not with
officiousness but in the discharge of an unavoidable duty and, as
always, with detachment and fairness."129 After all, "by [his]
appointment to the office, the public has laid on [a member of the
judiciary] their confidence that [he] is mentally and morally fit to
pass upon the merits of their varied contentions. For this reason,
to be unafraid to displease any person, interest or power and to be
equipped with a moral fiber strong enough to resist the
temptations lurking in [his] office."130
The duty to exercise the power of adjudication regardless of
interest had already been settled in the case of Abbas v. Senate
Electoral Tribunal.131 In that case, the petitioners filed with the
respondent Senate Electoral Tribunal a Motion for Disqualification
or Inhibition of the Senators-Members thereof from the hearing
and resolution of SET Case No. 002-87 on the ground that all of
them were interested parties to said case as respondents therein.
This would have reduced the Tribunal's membership to only its
three Justices-Members whose disqualification was not sought,
leaving them to decide the matter. This Court held:
Where, as here, a situation is created which precludes the
substitution of any Senator sitting in the Tribunal by any of
his other colleagues in the Senate without inviting the
same objections to the substitute's competence, the
proposed mass disqualification, if sanctioned and ordered,
would leave the Tribunal no alternative but to abandon a
duty that no other court or body can perform, but which it
cannot lawfully discharge if shorn of the participation of its
entire membership of Senators. 
To our mind, this is the overriding consideration — that the
Tribunal be not prevented from discharging a duty which it
alone has the power to perform, the performance of which
is in the highest public interest as evidenced by its being
expressly imposed by no less than the fundamental law.
 It is aptly noted in the first of the questioned Resolutions
that the framers of the Constitution could not have been
unaware of the possibility of an election contest that would
involve all Senators—elect, six of whom would inevitably
have to sit in judgment thereon. Indeed, such possibility
might surface again in the wake of the 1992 elections
when once more, but for the last time, all 24 seats in the
Senate will be at stake. Yet the Constitution provides no
scheme or mode for settling such unusual situations or for
the substitution of Senators designated to the Tribunal
whose disqualification may be sought. Litigants in such
situations must simply place their trust and hopes of
vindication in the fairness and sense of justice of the
Members of the Tribunal. Justices and Senators, singly and
collectively. 
Let us not be misunderstood as saying that no Senator-
Member of the Senate Electoral Tribunal may inhibit or
disqualify himself from sitting in judgment on any case
before said Tribunal. Every Member of the Tribunal may, as
his conscience dictates, refrain from participating in the
resolution of a case where he sincerely feels that his
personal interests or biases would stand in the way of an
objective and impartial judgment. What we are merely
saying is that in the light of the Constitution, the Senate
Electoral Tribunal cannot legally function as such, absent
its entire membership of Senators and that no amendment
of its Rules can confer on the three Justices-Members
alone the power of valid adjudication of a senatorial
election contest.
More recently in the case of Estrada v. Desierto,132 it was held
that:
Moreover, to disqualify any of the members of the Court,
particularly a majority of them, is nothing short of pro
tanto depriving the Court itself of its jurisdiction as
established by the fundamental law. Disqualification of a
judge is a deprivation of his judicial power. And if that
judge is the one designated by the Constitution to exercise
the jurisdiction of his court, as is the case with the Justices
of this Court, the deprivation of his or their judicial power
is equivalent to the deprivation of the judicial power of the
court itself. It affects the very heart of judicial
independence. The proposed mass disqualification, if
sanctioned and ordered, would leave the Court no
alternative but to abandon a duty which it cannot lawfully
discharge if shorn of the participation of its entire
membership of Justices.133 (Italics in the original) 
Besides, there are specific safeguards already laid down by the
Court when it exercises its power of judicial review.
In Demetria v. Alba,134 this Court, through Justice Marcelo Fernan
cited the "seven pillars" of limitations of the power of judicial
review, enunciated by US Supreme Court Justice Brandeis
in Ashwander v. TVA135 as follows: 
1. The Court will not pass upon the constitutionality of
legislation in a friendly, non-adversary proceeding,
declining because to decide such questions 'is legitimate
only in the last resort, and as a necessity in the
determination of real, earnest and vital controversy
between individuals. It never was the thought that, by
means of a friendly suit, a party beaten in the legislature
could transfer to the courts an inquiry as to the
constitutionality of the legislative act.'
2. The Court will not 'anticipate a question of constitutional
law in advance of the necessity of deciding it.' . . . 'It is not
the habit of the Court to decide questions of a
constitutional nature unless absolutely necessary to a
decision of the case.' 
3. The Court will not 'formulate a rule of constitutional law
broader than is required by the precise facts to which it is
to be applied.' 
4. The Court will not pass upon a constitutional question
although properly presented by the record, if there is also
present some other ground upon which the case may be
disposed of. This rule has found most varied application.
 Thus, if a case can be decided on either of two grounds,
one involving a constitutional question, the other a
question of statutory construction or general law, the Court
will decide only the latter. Appeals from the highest court
of a state challenging its decision of a question under the
Federal Constitution are frequently dismissed because the
judgment can be sustained on an independent state
ground. 
5. The Court will not pass upon the validity of a statute
upon complaint of one who fails to show that he is injured
by its operation. Among the many applications of this rule,
none is more striking than the denial of the right of
challenge to one who lacks a personal or property right.
Thus, the challenge by a public official interested only in
the performance of his official duty will not be entertained .
. . In Fairchild v. Hughes, the Court affirmed the dismissal
of a suit brought by a citizen who sought to have the
Nineteenth Amendment declared unconstitutional.
In Massachusetts v. Mellon, the challenge of the federal
Maternity Act was not entertained although made by the
Commonwealth on behalf of all its citizens.
6. The Court will not pass upon the constitutionality of a
statute at the instance of one who has availed himself of
its benefits. 
7. When the validity of an act of the Congress is drawn in
question, and even if a serious doubt of constitutionality is
raised, it is a cardinal principle that this Court will first
ascertain whether a construction of the statute is fairly
possible by which the question may be avoided (citations
omitted).
The foregoing "pillars" of limitation of judicial review, summarized
in Ashwander v. TVA from different decisions of the United States
Supreme Court, can be encapsulated into the following categories:
1. that there be absolute necessity of deciding a case  humiliating and risk serious political instability at home and abroad
2. that rules of constitutional law shall be formulated only
as required by the facts of the case 
3. that judgment may not be sustained on some other
ground
4. that there be actual injury sustained by the party by
reason of the operation of the statute 
5. that the parties are not in estoppel 
6. that the Court upholds the presumption of
constitutionality. 
As stated previously, parallel guidelines have been adopted by this
Court in the exercise of judicial review:
1. actual case or controversy calling for the exercise of
judicial power 
2. the person challenging the act must have "standing" to
challenge; he must have a personal and substantial
interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement
3. the question of constitutionality must be raised at the
earliest possible opportunity
4. the issue of constitutionality must be the very lis
mota  of the case.136
Respondents Speaker de Venecia, et. al. raise another argument
for judicial restraint the possibility that "judicial review of
impeachments might also lead to embarrassing conflicts between
the Congress and the [J]udiciary." They stress the need to avoid
the appearance of impropriety or conflicts of interest in judicial
hearings, and the scenario that it would be confusing and
if the judiciary countermanded the vote of Congress to remove an
impeachable official.137 Intervenor Soriano echoes this argument
by alleging that failure of this Court to enforce its Resolution
against Congress would result in the diminution of its judicial
authority and erode public confidence and faith in the judiciary.  Obedience to the rule of law forms the bedrock of our
Such an argument, however, is specious, to say the least. As
correctly stated by the Solicitor General, the possibility of the
occurrence of a constitutional crisis is not a reason for this Court to
refrain from upholding the Constitution in all impeachment cases.
Justices cannot abandon their constitutional duties just because
their action may start, if not precipitate, a crisis.
Justice Feliciano warned against the dangers when this Court
refuses to act.
x x x Frequently, the fight over a controversial legislative
or executive act is not regarded as settled until the
Supreme Court has passed upon the constitutionality of
the act involved, the judgment has not only juridical
effects but also political consequences. Those political
consequences may follow even where the Court fails to
grant the petitioner's prayer to nullify an act for lack of the
necessary number of votes. Frequently, failure to act
explicitly, one way or the other, itself constitutes a decision
for the respondent and validation, or at least quasi-
validation, follows." 138
Thus, in Javellana v. Executive Secretary139 where this Court was
split and "in the end there were not enough votes either to grant
the petitions, or to sustain respondent's claims,"140 the pre-existing
constitutional order was disrupted which paved the way for the
establishment of the martial law regime.
Such an argument by respondents and intervenor also presumes
that the coordinate branches of the government would behave in a
lawless manner and not do their duty under the law to uphold the
Constitution and obey the laws of the land. Yet there is no reason
to believe that any of the branches of government will behave in a
precipitate manner and risk social upheaval, violence, chaos and
anarchy by encouraging disrespect for the fundamental law of the
land.
Substituting the word public officers for judges, this Court is well
guided by the doctrine in People v. Veneracion, to wit:141
system of justice. If [public officers], under the guise of
religious or political beliefs were allowed to roam
unrestricted beyond boundaries within which they are
required by law to exercise the duties of their office, then
law becomes meaningless. A government of laws, not of
men excludes the exercise of broad discretionary powers
by those acting under its authority. Under this system,
[public officers] are guided by the Rule of Law, and ought
"to protect and enforce it without fear or favor," resist
encroachments by governments, political parties, or even
the interference of their own personal beliefs.142
Constitutionality of the Rules of Procedure
for Impeachment Proceedings
adopted by the 12th Congress
Respondent House of Representatives, through Speaker De
Venecia, argues that Sections 16 and 17 of Rule V of the House
Impeachment Rules do not violate Section 3 (5) of Article XI of our
present Constitution, contending that the term "initiate" does not
mean "to file;" that Section 3 (1) is clear in that it is the House of
Representatives, as a collective body, which has the exclusive
power to initiate all cases of impeachment; that initiate could not
possibly mean "to file" because filing can, as Section 3 (2), Article
XI of the Constitution provides, only be accomplished in 3 ways, to
wit: (1) by a verified complaint for impeachment by any member
of the House of Representatives; or (2) by any citizen upon a
resolution of endorsement by any member; or (3) by at least 1/3
of all the members of the House. Respondent House of
Representatives concludes that the one year bar prohibiting the
initiation of impeachment proceedings against the same officials
could not have been violated as the impeachment complaint
against Chief Justice Davide and seven Associate Justices had not
been initiated as the House of Representatives, acting as
the collective body, has yet to act on it. 
The resolution of this issue thus hinges on the interpretation of the
term "initiate." Resort to statutory construction is, therefore, in
order.  actual initiation. (Emphasis and underscoring supplied)
That the sponsor of the provision of Section 3(5) of the
Constitution, Commissioner Florenz Regalado, who eventually
became an Associate Justice of this Court, agreed on the meaning
of "initiate" as "to file," as proffered and explained by
Constitutional Commissioner Maambong during the Constitutional
Commission proceedings, which he (Commissioner Regalado)
as amicus curiae affirmed during the oral arguments on the instant
petitions held on November 5, 2003 at which he added that the act
of "initiating" included the act of taking initial action on the
complaint, dissipates any doubt that indeed the word "initiate" as
it twice appears in Article XI (3) and (5) of the Constitution means
to file the complaint and take initial action on it.
"Initiate" of course is understood by ordinary men to mean, as
dictionaries do, to begin, to commence, or set going. As Webster's
Third New International Dictionary of the English Language
concisely puts it, it means "to perform or facilitate the first action,"
which jibes with Justice Regalado's position, and that of Father
Bernas, who elucidated during the oral arguments of the instant
petitions on November 5, 2003 in this wise:
Briefly then, an impeachment proceeding is not a single
act. It is a comlexus of acts consisting of a beginning, a
middle and an end. The end is the transmittal of the
articles of impeachment to the Senate. The middle consists
of those deliberative moments leading to the formulation
of the articles of impeachment. The beginning or the
initiation is the filing of the complaint and its referral to the
Committee on Justice.
Finally, it should be noted that the House Rule relied upon
by Representatives Cojuangco and Fuentebella says that
impeachment is "deemed initiated" when the Justice
Committee votes in favor of impeachment or when the
House reverses a contrary vote of the Committee. Note
that the Rule does not say "impeachment proceedings" are
initiated but rather are "deemed initiated." The language is
recognition that initiation happened earlier, but by legal
fiction there is an attempt to postpone it to a time after
As stated earlier, one of the means of interpreting the Constitution
is looking into the intent of the law. Fortunately, the intent of the
framers of the 1987 Constitution can be pried from its records:
MR. MAAMBONG. With reference to Section 3, regarding
the procedure and the substantive provisions on
impeachment, I understand there have been many
proposals and, I think, these would need some time for
Committee action. 
However, I would just like to indicate that I submitted to
the Committee a resolution on impeachment proceedings,
copies of which have been furnished the Members of this
body. This is borne out of my experience as a member of
the Committee on Justice, Human Rights and Good
Government which took charge of the last impeachment
resolution filed before the First Batasang Pambansa.  For
the information of the Committee, the resolution
covers several steps in the impeachment
proceedings starting with initiation, action of the
Speaker committee action, calendaring of report,
voting on the report, transmittal referral to the
Senate, trial and judgment by the Senate. 
xxx
MR. MAAMBONG. Mr. Presiding Officer, I am not moving
for a reconsideration of the approval of the amendment
submitted by Commissioner Regalado, but I will just make
of record my thinking that we do not really initiate the
filing of the Articles of Impeachment on the floor.  The
procedure, as I have pointed out earlier, was that
the initiation starts with the filing of the
complaint. And what is actually done on the floor is
that the committee resolution containing the Articles
of Impeachment is the one approved by the body.
As the phraseology now runs, which may be corrected by
the Committee on Style, it appears that the initiation starts
on the floor. If we only have time, I could cite examples in
the case of the impeachment proceedings of President
Richard Nixon wherein the Committee on the Judiciary
submitted the recommendation, the resolution, and the
Articles of Impeachment to the body, and it was the body
who approved the resolution.  It is not the body which
initiates it. It only approves or disapproves the
resolution. So, on that score, probably the Committee on
Style could help in rearranging these words because we
have to be very technical about this. I have been bringing
with me The Rules of the House of Representatives  of the
U.S. Congress. The Senate Rules are with me. The
proceedings on the case of Richard Nixon are with me. I
have submitted my proposal, but the Committee has
already decided. Nevertheless, I just want to indicate this
on record.
xxx
MR. MAAMBONG. I would just like to move for a
reconsideration of the approval of Section 3 (3). My
reconsideration will not at all affect the substance, but it is
only in keeping with the exact formulation of the Rules of
the House of Representatives of the United States
regarding impeachment.  of the complaint, and the vote of one-third of the House in a
I am proposing, Madam President, without doing damage
to any of this provision, that on page 2, Section 3 (3),
from lines 17 to 18, we delete the words which read:
"to initiate impeachment proceedings" and the comma
(,) and insert on line 19 after the word "resolution" the
phrase WITH THE ARTICLES, and then capitalize the letter
"i" in "impeachment" and replace the word "by" with OF,
so that the whole section will now read: "A vote of at least
one-third of all the Members of the House shall be
necessary either to affirm a resolution WITH THE
ARTICLES of Impeachment OF the Committee or to
override its contrary resolution. The vote of each Member
shall be recorded."
I already mentioned earlier yesterday that the
initiation, as far as the House of Representatives of the
United States is concerned, really starts from the filing
of the verified complaint and every resolution to
impeach always carries with it the Articles of
Impeachment. As a matter of fact, the words "Articles of
Impeachment" are mentioned on line 25 in the case of the
direct filing of a verified compliant of one-third of all the
Members of the House. I will mention again, Madam
President, that my amendment will not vary the substance
in any way. It is only in keeping with the uniform
procedure of the House of Representatives of the United
States Congress. Thank you, Madam President.143 (Italics
in the original; emphasis and udnerscoring supplied)
This amendment proposed by Commissioner Maambong was
clarified and accepted by the Committee on the Accountability of
Public Officers.144
It is thus clear that the framers intended "initiation" to start with
the filing of the complaint. In his amicus curiae  brief,
Commissioner Maambong explained that "the obvious reason in
deleting the phrase "to initiate impeachment proceedings" as
contained in the text of the provision of Section 3 (3) was to
settle and make it understood once and for all that the
initiation of impeachment proceedings starts with the filing
resolution of impeachment does not initiate the impeachment
proceedings which was already initiated by the filing of a
verified complaint under Section 3, paragraph (2), Article XI
of the Constitution."145
Amicus curiae Constitutional Commissioner Regalado is of the
same view as is Father Bernas, who was also a member of the
1986 Constitutional Commission, that the word "initiate" as used in
Article XI, Section 3(5) means to file, both adding, however, that
the filing must be accompanied by an action to set the complaint
moving.
During the oral arguments before this Court, Father Bernas
clarified that the word "initiate," appearing in the constitutional
provision on impeachment, viz:  third of all the members. If at least one third of all the Members
Section 3 (1) The House of Representatives shall have the
exclusive power to initiate all cases of impeachment.
xxx
(5) No impeachment proceedings shall be initiated against
the same official more than once within a period of one
year, (Emphasis supplied)
refers to two objects, "impeachment case" and "impeachment
proceeding."  the resolution passed on to it by the Committee, because
Father Bernas explains that in these two provisions, the common
verb is "to initiate." The object in the first sentence is
"impeachment case." The object in the second sentence is
"impeachment proceeding." Following the principle of reddendo
singuala sinuilis, the term "cases" must be distinguished from the
term "proceedings." An impeachment case is the legal controversy
that must be decided by the Senate. Above-quoted first provision
provides that the House, by a vote of one-third of all its members,
can bring a case to the Senate. It is in that sense that the House
has "exclusive power" to initiate all cases of impeachment. No
other body can do it. However, before a decision is made to initiate
a case in the Senate, a "proceeding" must be followed to arrive at
a conclusion. A proceeding must be "initiated." To initiate, which
comes from the Latin word initium, means to begin. On the other
hand, proceeding is a progressive noun. It has a beginning, a
middle, and an end. It takes place not in the Senate but in the
House and consists of several steps: (1) there is the filing of a
verified complaint either by a Member of the House of
Representatives or by a private citizen endorsed by a Member of
the House of the Representatives; (2) there is the processing of
this complaint by the proper Committee which may either reject
the complaint or uphold it; (3) whether the resolution of the
Committee rejects or upholds the complaint, the resolution must
be forwarded to the House for further processing; and (4) there is
the processing of the same complaint by the House of
Representatives which either affirms a favorable resolution of the
Committee or overrides a contrary resolution by a vote of one-
upholds the complaint, Articles of Impeachment are prepared and
transmitted to the Senate. It is at this point that the House
"initiates an impeachment case." It is at this point that an
impeachable public official is successfully impeached. That is, he or
she is successfully charged with an impeachment "case" before the
Senate as impeachment court.
Father Bernas further explains: The "impeachment proceeding" is
not initiated when the complaint is transmitted to the Senate for
trial because that is the end of the House proceeding and the
beginning of another proceeding, namely the trial. Neither is the
"impeachment proceeding" initiated when the House deliberates on
something prior to that has already been done. The action of the
House is already a further step in the proceeding, not its initiation
or beginning. Rather, the proceeding is initiated or begins, when a
verified complaint is filed and referred to the Committee on Justice
for action. This is the initiating step which triggers the series of
steps that follow. 
The framers of the Constitution also understood initiation in its
ordinary meaning. Thus when a proposal reached the floor
proposing that "A vote of at least one-third of all the Members of
the House shall be necessary… to initiate impeachment
proceedings," this was met by a proposal to delete the line on the
ground that the vote of the House does not initiate impeachment
proceeding but rather the filing of a complaint does.146 Thus the
line was deleted and is not found in the present Constitution.
Father Bernas concludes that when Section 3 (5) says, "No
impeachment proceeding shall be initiated against the same official
more than once within a period of one year," it means that no
second verified complaint may be accepted and referred to the
Committee on Justice for action. By his explanation, this
interpretation is founded on the common understanding of the
meaning of "to initiate" which means to begin. He reminds that the
Constitution is ratified by the people, both ordinary and
sophisticated, as they understand it; and that ordinary people read
ordinary meaning into ordinary words and not abstruse meaning,
they ratify words as they understand it and not as sophisticated
lawyers confuse it.
To the argument that only the House of Representatives as a body
can initiate impeachment proceedings because Section 3 (1) says
"The House of Representatives shall have the exclusive power to
initiate all cases of impeachment," This is a misreading of said
provision and is contrary to the principle of reddendo singula
singulis by equating "impeachment cases" with "impeachment
proceeding."  their emotional roles that intelligent spectators may know more
From the records of the Constitutional Commission, to the amicus
curiae briefs of two former Constitutional Commissioners, it is
without a doubt that the term "to initiate" refers to the filing of the
impeachment complaint coupled with Congress' taking initial action
of said complaint.  who participated in the 1986 Constitutional Commission – Chief
Having concluded that the initiation takes place by the act of filing
and referral or endorsement of the impeachment complaint to the
House Committee on Justice or, by the filing by at least one-third
of the members of the House of Representatives with the
Secretary General of the House, the meaning of Section 3 (5) of
Article XI becomes clear. Once an impeachment complaint has
been initiated, another impeachment complaint may not be filed
against the same official within a one year period.  the power to make and interpret its rules governing impeachment.
Under Sections 16 and 17 of Rule V of the House Impeachment
Rules, impeachment proceedings are deemed initiated (1) if there
is a finding by the House Committee on Justice that the verified
complaint and/or resolution is sufficient in substance, or (2) once
the House itself affirms or overturns the finding of the Committee
on Justice that the verified complaint and/or resolution is not
sufficient in substance or (3) by the filing or endorsement before
the Secretary-General of the House of Representatives of a verified
complaint or a resolution of impeachment by at least 1/3 of the
members of the House. These rules clearly contravene Section 3
(5) of Article XI since the rules give the term "initiate" a meaning
different meaning from filing and referral.
In his amicus curiae brief, Justice Hugo Gutierrez posits that this
Court could not use contemporaneous construction as an aid in the
interpretation of Sec.3 (5) of Article XI, citing  Vera v.
Avelino147 wherein this Court stated that "their personal opinions
(referring to Justices who were delegates to the Constitution
Convention) on the matter at issue expressed during this Court's
our deliberations stand on a different footing from the properly
recorded utterances of debates and proceedings." Further citing
said case, he states that this Court likened the former members of
the Constitutional Convention to actors who are so absorbed in
about the real meaning because of the latter's balanced
perspectives and disinterestedness.148
Justice Gutierrez's statements have no application in the present
petitions. There are at present only two members of this Court
Justice Davide and Justice Adolf Azcuna. Chief Justice Davide has
not taken part in these proceedings for obvious reasons. Moreover,
this Court has not simply relied on the personal opinions now given
by members of the Constitutional Commission, but has examined
the records of the deliberations and proceedings thereof.
Respondent House of Representatives counters that under Section
3 (8) of Article XI, it is clear and unequivocal that it and only it has
Its argument is premised on the assumption that Congress
has absolute power to promulgate its rules. This assumption,
however, is misplaced. 
Section 3 (8) of Article XI provides that "The Congress shall
promulgate its rules on impeachment to effectively carry out the
purpose of this section." Clearly, its power to promulgate its rules
on impeachment is limited by the phrase "to effectively carry out
the purpose of this section." Hence, these rules cannot contravene
the very purpose of the Constitution which said rules were
intended to effectively carry out. Moreover, Section 3 of Article XI
clearly provides for other specific limitations on its power to make
rules, viz: 
Section 3. (1) x x x
 (2) A verified complaint for impeachment may be filed by
any Member of the House of Representatives or by any
citizen upon a resolution of endorsement by any Member
thereof, which shall be included in the Order of Business
within ten session days, and referred to the proper
Committee within three session days thereafter. The
Committee, after hearing, and by a majority vote of all its
Members, shall submit its report to the House within sixty
session days from such referral, together with the
corresponding resolution. The resolution shall be
calendared for consideration by the House within ten
session days from receipt thereof.
(3) A vote of at least one-third of all the Members of the
House shall be necessary to either affirm a favorable
resolution with the Articles of Impeachment of the
Committee, or override its contrary resolution. The vote of
each Member shall be recorded.
(4) In case the verified complaint or resolution of
impeachment is filed by at least one-third of all the
Members of the House, the same shall constitute the
Articles of Impeachment, and trial by the Senate shall
forthwith proceed.  impediment against the interposition of judicial power on
(5) No impeachment proceedings shall be initiated against
the same official more than once within a period of one
year.  Ballin (144 US 1) as a window to view the issues before
It is basic that all rules must not contravene the Constitution which
is the fundamental law. If as alleged Congress had absolute rule
making power, then it would by necessary implication have the
power to alter or amend the meaning of the Constitution without
need of referendum. 
In Osmeña v. Pendatun,149 this Court held that it is within the
province of either House of Congress to interpret its rules and that
it was the best judge of what constituted "disorderly behavior" of
its members. However, in Paceta v. Secretary of the Commission
on Appointments,150 Justice (later Chief Justice) Enrique Fernando,
speaking for this Court and quoting Justice Brandeis in United
States v. Smith,151 declared that where the construction to be
given to a rule affects persons other than members of the
Legislature, the question becomes judicial in nature. In Arroyo v.
De Venecia,152 quoting United States v. Ballin, Joseph &
Co.,153 Justice Vicente Mendoza, speaking for this Court, held that
while the Constitution empowers each house to determine its rules
of proceedings, it may not by its rules ignore constitutional
restraints or violate fundamental rights, and further that there
should be a reasonable relation between the mode or method of
proceeding established by the rule and the result which is sought
to be attained. It is only within these limitations that all matters of
method are open to the determination of the Legislature. In the
same case of Arroyo v. De Venecia, Justice Reynato S. Puno, in his
Concurring and Dissenting Opinion, was even more emphatic as he
stressed that in the Philippine setting there is even more reason
for courts to inquire into the validity of the Rules of Congress, viz:
With due respect, I do not agree that the issues
posed by the petitioner are non-justiciable. Nor do I
agree that we will trivialize the principle of
separation of power if we assume jurisdiction over
he case at bar. Even in the United States, the principle of
separation of power is no longer an impregnable
cases involving breach of rules of procedure by legislators.
Rightly, the ponencia uses the 1891 case of US v
the Court. It is in Ballin where the US Supreme Court first
defined the boundaries of the power of the judiciary to
review congressional rules. It held:
"x x x
"The Constitution, in the same section, provides, that each
house may determine the rules of its proceedings." It
appears that in pursuance of this authority the House had,
prior to that day, passed this as one of its rules:
Rule XV
3. On the demand of any member, or at the suggestion of
the Speaker, the names of members sufficient to make a
quorum in the hall of the House who do not vote shall be
noted by the clerk and recorded in the journal, and
reported to the Speaker with the names of the members
voting, and be counted and announced in determining the
presence of a quorum to do business. (House Journal, 230,
Feb. 14, 1890)
The action taken was in direct compliance with this
rule.  The question, therefore, is as to the validity of
this rule, and not what methods the Speaker may of his
own motion resort to for determining the presence of a
quorum, nor what matters the Speaker or clerk may of
their own volition place upon the journal. Neither do the
advantages or disadvantages, the wisdom or folly, of such
a rule present any matters for judicial consideration.  With
the courts the question is only one of power.   The
Constitution empowers each house to determine its
rules of proceedings. It may not by its rules ignore
constitutional restraints or violate fundamental
rights, and there should be a reasonable relation
between the mode or method of proceedings
established by the rule and the result which is
sought to be attained. But within these limitations all
matters of method are open to the determination of the
House, and it is no impeachment of the rule to say that
some other way would be better, more accurate, or even
more just. It is no objection to the validity of a rule that a
different one has been prescribed and in force for a length
of time. The power to make rules is not one which once
exercised is exhausted. It is a continuous power, always
subject to be exercised by the House, and within the
limitations suggested, absolute and beyond the challenge
of any other body or tribunal."
Ballin, clearly confirmed the jurisdiction of courts to
pass upon the validity of congressional rules, i.e,
whether they are constitutional.  Rule XV was
examined by the Court and it was found to satisfy the test:
(1) that it did not ignore any constitutional restraint; (2) it
did not violate any fundamental right; and (3) its method
had a reasonable relationship with the result sought to be
attained. By examining Rule XV, the Court did not allow its
jurisdiction to be defeated by the mere invocation of the
principle of separation of powers.154
xxx
In the Philippine setting, there is a more compelling
reason  for courts to categorically reject the political
question defense when its interposition will cover up
abuse of power. For section 1, Article VIII of our
Constitution was intentionally  cobbled to empower
courts "x x x to determine whether or not there has
been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of the government." This power is new
and was not granted to our courts in the 1935 and 1972
Constitutions.  It was not also xeroxed from the US
Constitution or any foreign state constitution. The
CONCOM granted this enormous power to our courts
in view of our experience under martial law where
abusive exercises of state power were shielded from
judicial scrutiny by the misuse of the political
question doctrine.  Led by the eminent former Chief
Justice Roberto Concepcion, the CONCOM expanded and
sharpened the checking powers of the judiciary vis-à-vis
the Executive and the Legislative departments of
government.155
xxx
The Constitution cannot be any clearer.   What it granted
to this Court is not a mere power which it can
decline to exercise. Precisely to deter this
disinclination, the Constitution imposed it as a duty
of this Court to strike down any act of a branch or
instrumentality of government or any of its officials
done with grave abuse of discretion amounting to
lack or excess of jurisdiction. Rightly or wrongly, the
Constitution has elongated the checking powers of this
Court against the other branches of government despite
their more democratic character, the President and the
legislators being elected by the people.156
xxx
The provision defining judicial power as including the 'duty
of the courts of justice. . . to determine whether or not
there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government' constitutes the
capstone of the efforts of the Constitutional Commission to
upgrade the powers of this court vis-à-vis the other
branches of government. This provision was dictated by
our experience under martial law which taught us that a
stronger and more independent judiciary is needed to
abort abuses in government. x x x
timidity. To be sure, it is this exceeding timidity to
unsheathe the judicial sword that has increasingly
emboldened other branches of government to
denigrate, if not defy, orders of our
courts. In Tolentino, I endorsed the view of former
Senator Salonga that this novel provision stretching the
latitude of judicial power is distinctly Filipino and its
interpretation should not be depreciated by undue reliance
on inapplicable foreign jurisprudence. In resolving the case
at bar, the lessons of our own history should provide us
the light and not the experience of foreigners.157 (Italics in
the original emphasis and underscoring supplied) 
Thus, the ruling in Osmena v. Pendatun is not applicable to the
instant petitions. Here, the third parties alleging the violation of
private rights and the Constitution are involved. 

xxx Neither may respondent House of Representatives' rely on Nixon

v. US158 as basis for arguing that this Court may not decide on the
constitutionality of Sections 16 and 17 of the House Impeachment
In sum, I submit that in imposing to this Court the duty to
Rules. As already observed, the U.S. Federal Constitution simply
annul acts of government committed with grave abuse of
provides that "the House of Representatives shall have the sole
discretion, the new Constitution transformed this Court
power of impeachment." It adds nothing more. It gives no clue
from passivity to activism. This transformation, dictated by
whatsoever as to how this "sole power" is to be exercised. No
our distinct experience as nation, is not merely
limitation whatsoever is given. Thus, the US Supreme Court
evolutionary but revolutionary. Under the 1935 and the
concluded that there was a textually demonstrable constitutional
1973 Constitutions, this Court approached constitutional
commitment of a constitutional power to the House of
violations by initially determining what it cannot
Representatives. This reasoning does not hold with regard to
do; under the 1987 Constitution, there is a shift in
impeachment power of the Philippine House of Representatives
stress – this Court is mandated to approach
since our Constitution, as earlier enumerated, furnishes several
constitutional violations not by finding out what it
provisions articulating how that "exclusive power" is to be
should not do but what it  must  do. The Court must
exercised. 
discharge this solemn duty by not resuscitating a past that
petrifies the present. 
The provisions of Sections 16 and 17 of Rule V of the House
Impeachment Rules which state that impeachment proceedings are
I urge my brethren in the Court to give due and serious
deemed initiated (1) if there is a finding by the House Committee
consideration to this new constitutional provision as the
on Justice that the verified complaint and/or resolution is sufficient
case at bar once more calls us to define the parameters of
in substance, or (2) once the House itself affirms or overturns the
our power to review violations of the rules of the
finding of the Committee on Justice that the verified complaint
House.  We will not be true to our trust as the last
and/or resolution is not sufficient in substance or (3) by the filing
bulwark against government abuses if we refuse to
or endorsement before the Secretary-General of the House of
exercise this new power or if we wield it with
Representatives of a verified complaint or a resolution of
impeachment by at least 1/3 of the members of the House thus
clearly contravene Section 3 (5) of Article XI as they give the term
"initiate" a meaning different from "filing."  affected to obviate any perceived resulting instability upon areas of
Validity of the Second Impeachment Complaint
Having concluded that the initiation takes place by the act of filing
of the impeachment complaint and referral to the House
Committee on Justice, the initial action taken thereon, the
meaning of Section 3 (5) of Article XI becomes clear. Once an
impeachment complaint has been initiated in the foregoing
manner, another may not be filed against the same official within a
one year period following Article XI, Section 3(5) of the
Constitution.  arguments of "lack of jurisdiction," "non-justiciability," and
In fine, considering that the first impeachment complaint, was filed
by former President Estrada against Chief Justice Hilario G. Davide,
Jr., along with seven associate justices of this Court, on June 2,
2003 and referred to the House Committee on Justice on August 5,
2003, the second impeachment complaint filed by Representatives
Gilberto C. Teodoro, Jr. and Felix William Fuentebella against the
Chief Justice on October 23, 2003 violates the constitutional
prohibition against the initiation of impeachment proceedings
against the same impeachable officer within a one-year period.  issue whose resolution precisely called for the construction or
Conclusion
If there is anything constant about this country, it is that there is
always a phenomenon that takes the center stage of our individual
and collective consciousness as a people with our characteristic
flair for human drama, conflict or tragedy. Of course this is not to
demean the seriousness of the controversy over the Davide
impeachment. For many of us, the past two weeks have proven to
be an exasperating, mentally and emotionally exhausting
experience. Both sides have fought bitterly a dialectical struggle to
articulate what they respectively believe to be the correct position
or view on the issues involved. Passions had ran high as
demonstrators, whether for or against the impeachment of the
Chief Justice, took to the streets armed with their familiar slogans
and chants to air their voice on the matter. Various sectors of
society - from the business, retired military, to the academe and
denominations of faith – offered suggestions for a return to a state
of normalcy in the official relations of the governmental branches
national life. 
Through all these and as early as the time when the Articles of
Impeachment had been constituted, this Court was specifically
asked, told, urged and argued to take no action of any kind and
form with respect to the prosecution by the House of
Representatives of the impeachment complaint against the subject
respondent public official. When the present petitions were
knocking so to speak at the doorsteps of this Court, the same
clamor for non-interference was made through what are now the
"judicial self-restraint" aimed at halting the Court from any move
that may have a bearing on the impeachment proceedings. 
This Court did not heed the call to adopt a hands-off stance as far
as the question of the constitutionality of initiating the
impeachment complaint against Chief Justice Davide is concerned.
To reiterate what has been already explained, the Court found the
existence in full of all the requisite conditions for its exercise of its
constitutionally vested power and duty of judicial review over an
interpretation of a provision of the fundamental law of the land.
What lies in here is an issue of a genuine constitutional material
which only this Court can properly and competently address and
adjudicate in accordance with the clear-cut allocation of powers
under our system of government. Face-to-face thus with a matter
or problem that squarely falls under the Court's jurisdiction, no
other course of action can be had but for it to pass upon that
problem head on. 
The claim, therefore, that this Court by judicially entangling itself
with the process of impeachment has effectively set up a regime of
judicial supremacy, is patently without basis in fact and in law. 
This Court in the present petitions subjected to judicial scrutiny
and resolved on the merits only the main issue of whether the
impeachment proceedings initiated against the Chief Justice
transgressed the constitutionally imposed one-year time bar rule.
Beyond this, it did not go about assuming jurisdiction where it had
none, nor indiscriminately turn justiciable issues out of decidedly
political questions. Because it is not at all the business of this
Court to assert judicial dominance over the other two great
branches of the government. Rather, the raison d'etre of the
judiciary is to complement the discharge by the executive and
legislative of their own powers to bring about ultimately the
beneficent effects of having founded and ordered our society upon
the rule of law.
It is suggested that by our taking cognizance of the issue of
constitutionality of the impeachment proceedings against the Chief
Justice, the members of this Court have actually closed ranks to
protect a brethren. That the members' interests in ruling on said
issue is as much at stake as is that of the Chief Justice. Nothing
could be farther from the truth.  indeed immensely a blessing for this Court to have found answers
The institution that is the Supreme Court together with all other
courts has long held and been entrusted with the judicial power to
resolve conflicting legal rights regardless of the personalities
involved in the suits or actions. This Court has dispensed justice
over the course of time, unaffected by whomsoever stood to
benefit or suffer therefrom, unfraid by whatever imputations or
speculations could be made to it, so long as it rendered judgment
according to the law and the facts. Why can it not now be trusted
to wield judicial power in these petitions just because it is the
highest ranking magistrate who is involved when it is an
incontrovertible fact that the fundamental issue is not him but the
validity of a government branch's official act as tested by the limits
set by the Constitution? Of course, there are rules on the inhibition
of any member of the judiciary from taking part in a case in
specified instances. But to disqualify this entire institution now
from the suit at bar is to regard the Supreme Court as likely
incapable of impartiality when one of its members is a party to a
case, which is simply a non sequitur.
No one is above the law or the Constitution. This is a basic precept
in any legal system which recognizes equality of all men before the
law as essential to the law's moral authority and that of its agents
to secure respect for and obedience to its commands. Perhaps,
there is no other government branch or instrumentality that is
most zealous in protecting that principle of legal equality other
than the Supreme Court which has discerned its real meaning and
ramifications through its application to numerous cases especially
of the high-profile kind in the annals of jurisprudence. The Chief
Justice is not above the law and neither is any other member of
this Court. But just because he is the Chief Justice does not imply
that he gets to have less in law than anybody else. The law is
solicitous of every individual's rights irrespective of his station in
life.
The Filipino nation and its democratic institutions have no doubt
been put to test once again by this impeachment case against
Chief Justice Hilario Davide. Accordingly, this Court has resorted to
no other than the Constitution in search for a solution to what
many feared would ripen to a crisis in government. But though it is
in our bedrock of legal principles, it is equally important that it
went through this crucible of a democratic process, if only to
discover that it can resolve differences without the use of force and
aggression upon each other.
WHEREFORE, Sections 16 and 17 of Rule V of the Rules of
Procedure in Impeachment Proceedings which were approved by
the House of Representatives on November 28, 2001 are
unconstitutional. Consequently, the second impeachment
complaint against Chief Justice Hilario G. Davide, Jr. which was
filed by Representatives Gilberto C. Teodoro, Jr. and Felix William
B. Fuentebella with the Office of the Secretary General of the
House of Representatives on October 23, 2003 is barred under
paragraph 5, section 3 of Article XI of the Constitution. 
SO ORDERED.
Bellosillo and Tinga, JJ.,  see separate opinion.
Puno, and Ynares-Santiago, J., see concurring and dissenting
opinion.
Vitug, Panganiban, Sandoval-Gutierrez and Callejo, Sr., JJ., see
separate concurring opinion.
Quisumbing, J., concurring separate opinion received.
Carpio, J., concur.
Austria-Martinez, J., concur in the majority opinion and in the
separate opinion of J. Vitug.
Corona, J., will write a separate concurring opinion.
Azcuna, J., concur in the separate opinion.
G.R. No. 141284               August 15, 2000
INTEGRATED BAR OF THE PHILIPPINES, petitioner,
vs.
HON. RONALDO B. ZAMORA, GEN. PANFILO M. LACSON,
GEN. EDGAR B. AGLIPAY, and GEN. ANGELO REYES,
respondents.
DECISION
KAPUNAN, J.:
At bar is a special civil action for certiorari and prohibition with
prayer for issuance of a temporary restraining order seeking to
nullify on constitutional grounds the order of President Joseph
Ejercito Estrada commanding the deployment of the Philippine
Marines (the "Marines") to join the Philippine National Police (the
"PNP") in visibility patrols around the metropolis.
In view of the alarming increase in violent crimes in Metro Manila,
like robberies, kidnappings and carnappings, the President, in a
verbal directive, ordered the PNP and the Marines to conduct joint
visibility patrols for the purpose of crime prevention and
suppression. The Secretary of National Defense, the Chief of Staff
of the Armed Forces of the Philippines (the "AFP"), the Chief of the
PNP and the Secretary of the Interior and Local Government were
tasked to execute and implement the said order. In compliance
with the presidential mandate, the PNP Chief, through Police Chief
Superintendent Edgar B. Aglipay, formulated Letter of Instruction
02/20001 (the "LOI") which detailed the manner by which the joint
visibility patrols, called Task Force Tulungan, would be conducted.2
Task Force Tulungan was placed under the leadership of the Police
Chief of Metro Manila.
Subsequently, the President confirmed his previous directive on
the deployment of the Marines in a Memorandum, dated 24
January 2000, addressed to the Chief of Staff of the AFP and the
PNP Chief.3 In the Memorandum, the President expressed his
desire to improve the peace and order situation in Metro Manila
through a more effective crime prevention program including
increased police patrols.4 The President further stated that to
heighten police visibility in the metropolis, augmentation from the
AFP is necessary.5 Invoking his powers as Commander-in-Chief
under Section 18, Article VII of the Constitution, the President
directed the AFP Chief of Staff and PNP Chief to coordinate with
each other for the proper deployment and utilization of the Marines
to assist the PNP in preventing or suppressing criminal or lawless
violence.6 Finally, the President declared that the services of the
Marines in the anti-crime campaign are merely temporary in
nature and for a reasonable period only, until such time when the
situation shall have improved.7
The LOI explains the concept of the PNP-Philippine Marines joint
visibility patrols as follows:
xxx
2. PURPOSE:
The Joint Implementing Police Visibility Patrols between the PNP
NCRPO and the Philippine Marines partnership in the conduct of
visibility patrols in Metro Manila for the suppression of crime
prevention and other serious threats to national security.
3. SITUATION:
Criminal incidents in Metro Manila have been perpetrated not only
by ordinary criminals but also by organized syndicates whose
members include active and former police/military personnel
whose training, skill, discipline and firepower prove well-above the
present capability of the local police alone to handle. The
deployment of a joint PNP NCRPO-Philippine Marines in the
conduct of police visibility patrol in urban areas will reduce the
incidence of crimes specially those perpetrated by active or former
police/military personnel.
4. MISSION:
The PNP NCRPO will organize a provisional Task Force to conduct
joint NCRPO-PM visibility patrols to keep Metro Manila streets
crime-free, through a sustained street patrolling to minimize or
eradicate all forms of high-profile crimes especially those
perpetrated by organized crime syndicates whose members
include those that are well-trained, disciplined and well-armed
active or former PNP/Military personnel.
5. CONCEPT IN JOINT VISIBILITY PATROL OPERATIONS:
a. The visibility patrols shall be conducted jointly by the NCRPO
[National Capital Regional Police Office] and the Philippine Marines
to curb criminality in Metro Manila and to preserve the internal
security of the state against insurgents and other serious threat to
national security, although the primary responsibility over Internal
Security Operations still rests upon the AFP.
b. The principle of integration of efforts shall be applied to
eradicate all forms of high-profile crimes perpetrated by organized
crime syndicates operating in Metro Manila. This concept requires
the military and police to work cohesively and unify efforts to
ensure a focused, effective and holistic approach in addressing
crime prevention. Along this line, the role of the military and police
aside from neutralizing crime syndicates is to bring a wholesome
atmosphere wherein delivery of basic services to the people and
development is achieved. Hand-in-hand with this joint NCRPO-
Philippine Marines visibility patrols, local Police Units are
responsible for the maintenance of peace and order in their
locality.
c. To ensure the effective implementation of this project, a
provisional Task Force "TULUNGAN" shall be organized to provide
the mechanism, structure, and procedures for the integrated
planning, coordinating, monitoring and assessing the security
situation.
xxx.8
The selected areas of deployment under the LOI are: Monumento
Circle, North Edsa (SM City), Araneta Shopping Center, Greenhills,
SM Megamall, Makati Commercial Center, LRT/MRT Stations and
the NAIA and Domestic Airport.9
On 17 January 2000, the Integrated Bar of the Philippines (the
"IBP") filed the instant petition to annul LOI 02/2000 and to
declare the deployment of the Philippine Marines, null and void and
unconstitutional, arguing that:
I military and the civilian character of the PNP.
THE DEPLOYMENT OF THE PHILIPPINE MARINES IN METRO
MANILA IS VIOLATIVE OF THE CONSTITUTION, IN THAT:
A) NO EMERGENCY SITUATION OBTAINS IN METRO MANILA AS
WOULD JUSTIFY, EVEN ONLY REMOTELY, THE DEPLOYMENT OF
SOLDIERS FOR LAW ENFORCEMENT WORK; HENCE, SAID
DEPLOYMENT IS IN DEROGATION OF ARTICLE II, SECTION 3 OF
THE CONSTITUTION;
B) SAID DEPLOYMENT CONSTITUTES AN INSIDIOUS INCURSION
BY THE MILITARY IN A CIVILIAN FUNCTION OF GOVERNMENT
(LAW ENFORCEMENT) IN DEROGATION OF ARTICLE XVI, SECTION
5 (4), OF THE CONSTITUTION;
C) SAID DEPLOYMENT CREATES A DANGEROUS TENDENCY TO
RELY ON THE MILITARY TO PERFORM THE CIVILIAN FUNCTIONS
OF THE GOVERNMENT.
II
IN MILITARIZING LAW ENFORCEMENT IN METRO MANILA, THE
ADMINISTRATION IS UNWITTINGLY MAKING THE MILITARY MORE
POWERFUL THAN WHAT IT SHOULD REALLY BE UNDER THE
CONSTITUTION.10
Asserting itself as the official organization of Filipino lawyers
tasked with the bounden duty to uphold the rule of law and the
Constitution, the IBP questions the validity of the deployment and
utilization of the Marines to assist the PNP in law enforcement.
Without granting due course to the petition, the Court in a
Resolution,11 dated 25 January 2000, required the Solicitor General
to file his Comment on the petition. On 8 February 2000, the
Solicitor General submitted his Comment.
The Solicitor General vigorously defends the constitutionality of the
act of the President in deploying the Marines, contending, among
others, that petitioner has no legal standing; that the question of
deployment of the Marines is not proper for judicial scrutiny since
the same involves a political question; that the organization and
conduct of police visibility patrols, which feature the team-up of
one police officer and one Philippine Marine soldier, does not
violate the civilian supremacy clause in the Constitution.
The issues raised in the present petition are: (1) Whether or not
petitioner has legal standing; (2) Whether or not the President’s
factual determination of the necessity of calling the armed forces is
subject to judicial review; and, (3) Whether or not the calling of
the armed forces to assist the PNP in joint visibility patrols violates
the constitutional provisions on civilian supremacy over the
The petition has no merit.
First, petitioner failed to sufficiently show that it is in possession of
the requisites of standing to raise the issues in the petition.
Second, the President did not commit grave abuse of discretion
amounting to lack or excess of jurisdiction nor did he commit a
violation of the civilian supremacy clause of the Constitution.
The power of judicial review is set forth in Section 1, Article VIII of
the Constitution, to wit:
Section 1. The judicial power shall be vested in one Supreme Court
and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government.
When questions of constitutional significance are raised, the Court
can exercise its power of judicial review only if the following
requisites are complied with, namely: (1) the existence of an
actual and appropriate case; (2) a personal and substantial
interest of the party raising the constitutional question; (3) the
exercise of judicial review is pleaded at the earliest opportunity;
and (4) the constitutional question is the lis mota of the case.12
The IBP has not sufficiently complied with the requisites of
standing in this case.
"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.13 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.14 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."15
In the case at bar, the IBP primarily anchors its standing on its
alleged responsibility to uphold the rule of law and the
Constitution. Apart from this declaration, however, the IBP asserts
no other basis in support of its locus standi. The mere invocation
by the IBP of its duty to preserve the rule of law and nothing
more, while undoubtedly true, is not sufficient to clothe it with
standing in this case. This is too general an interest which is
shared by other groups and the whole citizenry. Based on the
standards above-stated, the IBP has failed to present a specific
and substantial interest in the resolution of the case. Its
fundamental purpose which, under Section 2, Rule 139-A of the
Rules of Court, is to elevate the standards of the law profession
and to improve the administration of justice is alien to, and cannot
be affected by the deployment of the Marines. It should also be
noted that the interest of the National President of the IBP who
signed the petition, is his alone, absent a formal board resolution
authorizing him to file the present action. To be sure, members of
the BAR, those in the judiciary included, have varying opinions on
the issue. Moreover, the IBP, assuming that it has duly authorized
the National President to file the petition, has not shown any
specific injury which it has suffered or may suffer by virtue of the
questioned governmental act. Indeed, none of its members, whom
the IBP purportedly represents, has sustained any form of injury
as a result of the operation of the joint visibility patrols. Neither is
it alleged that any of its members has been arrested or that their
civil liberties have been violated by the deployment of the Marines.
What the IBP projects as injurious is the supposed "militarization"
of law enforcement which might threaten Philippine democratic
institutions and may cause more harm than good in the long run.
Not only is the presumed "injury" not personal in character, it is
likewise too vague, highly speculative and uncertain to satisfy the
requirement of standing. Since petitioner has not successfully
established a direct and personal injury as a consequence of the
questioned act, it does not possess the personality to assail the
validity of the deployment of the Marines. This Court, however,
does not categorically rule that the IBP has absolutely no standing
to raise constitutional issues now or in the future. The IBP must,
by way of allegations and proof, satisfy this Court that it has
sufficient stake to obtain judicial resolution of the controversy.
Having stated the foregoing, it must be emphasized that this Court
has the discretion to take cognizance of a suit which does not
satisfy the requirement of legal standing when paramount interest
is involved.16 In not a few cases, the Court 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.17
Thus, when the issues raised are of paramount importance to the
public, the Court may brush aside technicalities of procedure.18 In
this case, a reading of the petition shows that the IBP has
advanced constitutional issues which deserve the attention of this
Court in view of their seriousness, novelty and weight as
precedents. Moreover, because peace and order are under
constant threat and lawless violence occurs in increasing tempo,
undoubtedly aggravated by the Mindanao insurgency problem, the
legal controversy raised in the petition almost certainly will not go
away. It will stare us in the face again. It, therefore, behooves the
Court to relax the rules on standing and to resolve the issue now,
rather than later.
The President did not commit grave abuse of discretion in calling
out the Marines.
In the case at bar, the bone of contention concerns the factual
determination of the President of the necessity of calling the armed
forces, particularly the Marines, to aid the PNP in visibility patrols.
In this regard, the IBP admits that the deployment of the military
personnel falls under the Commander-in-Chief powers of the
President as stated in Section 18, Article VII of the Constitution,
specifically, the power to call out the armed forces to prevent or
suppress lawless violence, invasion or rebellion. What the IBP
questions, however, is the basis for the calling of the Marines
under the aforestated provision. According to the IBP, no
emergency exists that would justify the need for the calling of the
military to assist the police force. It contends that no lawless
violence, invasion or rebellion exist to warrant the calling of the
Marines. Thus, the IBP prays that this Court "review the sufficiency
of the factual basis for said troop [Marine] deployment."19
The Solicitor General, on the other hand, contends that the issue
pertaining to the necessity of calling the armed forces is not proper
for judicial scrutiny since it involves a political question and the
resolution of factual issues which are beyond the review powers of
this Court.
As framed by the parties, the underlying issues are the scope of
presidential powers and limits, and the extent of judicial review.
But, while this Court gives considerable weight to the parties’
formulation of the issues, the resolution of the controversy may
warrant a creative approach that goes beyond the narrow confines
of the issues raised. Thus, while the parties are in agreement that
the power exercised by the President is the power to call out the
armed forces, the Court is of the view that the power involved may
be no more than the maintenance of peace and order and
promotion of the general welfare.20 For one, the realities on the
ground do not show that there exist a state of warfare, widespread
civil unrest or anarchy. Secondly, the full brunt of the military is
not brought upon the citizenry, a point discussed in the latter part
of this decision. In the words of the late Justice Irene Cortes in
Marcos v. Manglapus:
More particularly, this case calls for the exercise of the President’s
powers as protector of the peace. [Rossiter, The American
Presidency]. The power of the President to keep the peace is not
limited merely to exercising the commander-in-chief powers in
times of emergency or to leading the State against external and
internal threats to its existence. The President is not only clothed
with extraordinary powers in times of emergency, but is also
tasked with attending to the day-to-day problems of maintaining
peace and order and ensuring domestic tranquility in times when
no foreign foe appears on the horizon. Wide discretion, within the
bounds of law, in fulfilling presidential duties in times of peace is
not in any way diminished by the relative want of an emergency
specified in the commander-in-chief provision. For in making the
President commander-in-chief the enumeration of powers that
follow cannot be said to exclude the President’s exercising as
Commander-in-Chief powers short of the calling of the armed
forces, or suspending the privilege of the writ of habeas corpus or
declaring martial law, in order to keep the peace, and maintain
public order and security.
xxx21
Nonetheless, even if it is conceded that the power involved is the
President’s power to call out the armed forces to prevent or
suppress lawless violence, invasion or rebellion, the resolution of
the controversy will reach a similar result.
We now address the Solicitor General’s argument that the issue
involved is not susceptible to review by the judiciary because it
involves a political question, and thus, not justiciable.
As a general proposition, a controversy is justiciable if it refers to a
matter which is appropriate for court review. 22 It pertains to issues
which are inherently susceptible of being decided on grounds
recognized by law. Nevertheless, the Court does not automatically
assume jurisdiction over actual constitutional cases brought before
it even in instances that are ripe for resolution. One class of cases
wherein the Court hesitates to rule on are "political questions." The
reason is that political questions are concerned with issues
dependent upon the wisdom, not the legality, of a particular act or
measure being assailed. Moreover, the political question being a
function of the separation of powers, the courts will not normally
interfere with the workings of another co-equal branch unless the
case shows a clear need for the courts to step in to uphold the law
and the Constitution.
As Tañada v. Cuenco23 puts it, 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 government." Thus, if an issue is clearly
identified by the text of the Constitution as matters for
discretionary action by a particular branch of government or to the
people themselves then it is held to be a political question. In the
classic formulation of Justice Brennan in Baker v. Carr,24
"[p]rominent 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 nonjudicial 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
embarassment from multifarious pronouncements by various
departments on the one question."
The 1987 Constitution expands the concept of judicial review by
providing that "(T)he Judicial power shall be vested in one
Supreme Court and in such lower courts as may be established by
law. Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality
of the Government."25 Under this definition, the Court cannot agree
with the Solicitor General that the issue involved is a political
question beyond the jurisdiction of this Court to review. When the
grant of power is qualified, conditional or subject to limitations, the
issue of whether the prescribed qualifications or conditions have
been met or the limitations respected, is justiciable - the problem
being one of legality or validity, not its wisdom.26 Moreover, the
jurisdiction to delimit constitutional boundaries has been given to
this Court.27 When political questions are involved, the Constitution
limits the determination as to whether or not there has been a
grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the official whose action is being
questioned.28
By grave abuse of discretion is meant simply capricious or
whimsical exercise of judgment that is patent and gross as to
amount to an evasion of positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of
law, as where the power is exercised in an arbitrary and despotic
manner by reason of passion or hostility. 29 Under this definition, a
court is without power to directly decide matters over which full
discretionary authority has been delegated. But while this Court
has no power to substitute its judgment for that of Congress or of
the President, it may look into the question of whether such
exercise has been made in grave abuse of discretion.30 A showing
that plenary power is granted either department of government,
may not be an obstacle to judicial inquiry, for the improvident
exercise or abuse thereof may give rise to justiciable
controversy.31
When the President calls the armed forces to prevent or suppress
lawless violence, invasion or rebellion, he necessarily exercises a
discretionary power solely vested in his wisdom. This is clear from
the intent of the framers and from the text of the Constitution
itself. The Court, thus, cannot be called upon to overrule the
President’s wisdom or substitute its own. However, this does not
prevent an examination of whether such power was exercised
within permissible constitutional limits or whether it was exercised
in a manner constituting grave abuse of discretion. In view of the
constitutional intent to give the President full discretionary power
to determine the necessity of calling out the armed forces, it is
incumbent upon the petitioner to show that the President’s
decision is totally bereft of factual basis. The present petition fails
to discharge such heavy burden as there is no evidence to support
the assertion that there exist no justification for calling out the
armed forces. There is, likewise, no evidence to support the
proposition that grave abuse was committed because the power to
call was exercised in such a manner as to violate the constitutional
provision on civilian supremacy over the military. In the
performance of this Court’s duty of "purposeful hesitation"32 before
declaring an act of another branch as unconstitutional, only where
such grave abuse of discretion is clearly shown shall the Court
interfere with the President’s judgment. To doubt is to sustain.
There is a clear textual commitment under the Constitution to
bestow on the President full discretionary power to call out the
armed forces and to determine the necessity for the exercise of
such power. Section 18, Article VII of the Constitution, which
embodies the powers of the President as Commander-in-Chief,
provides in part:
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.
xxx
The full discretionary power of the President to determine the
factual basis for the exercise of the calling out power is also
implied and further reinforced in the rest of Section 18, Article VII
which reads, thus:
xxx
Within forty-eight hours from the proclamation of martial law or
the suspension of the privilege of the writ of habeas corpus, the
President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session, may
revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the
President, the Congress may, in the same manner, extend such
proclamation or suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall within twenty-four hours
following such proclamation or suspension, convene in accordance
with its rules without need of a call.
The Supreme Court may review, in an appropriate proceeding filed
by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of
the writ or the extension thereof, and must promulgate its decision
thereon within thirty days from its filing.
A state of martial law does not suspend the operation of the
Constitution, nor supplant the functioning of the civil courts or
legislative assemblies, nor authorize the conferment of jurisdiction
on military courts and agencies over civilians where civil courts are
able to function, nor automatically suspend the privilege of the
writ.
The suspension of the privilege of the writ shall apply only to
persons judicially charged for rebellion or offenses inherent in or
directly connected with invasion.
During the suspension of the privilege of the writ, any person thus
arrested or detained shall be judicially charged within three days,
otherwise he shall be released.
Under the foregoing provisions, Congress may revoke such
proclamation or suspension and the Court may review the
sufficiency of the factual basis thereof. However, there is no such
equivalent provision dealing with the revocation or review of the
President’s action to call out the armed forces. The distinction
places the calling out power in a different category from the power
to declare martial law and the power to suspend the privilege of
the writ of habeas corpus, otherwise, the framers of the
Constitution would have simply lumped together the three powers
and provided for their revocation and review without any
qualification. Expressio unius est exclusio alterius. Where the
terms are expressly limited to certain matters, it may not, by
interpretation or construction, be extended to other matters. 33 That
the intent of the Constitution is exactly what its letter says, i.e.,
that the power to call is fully discretionary to the President, is
extant in the deliberation of the Constitutional Commission, to wit:
FR. BERNAS. It will not make any difference. I may add that there
is a graduated power of the President as Commander-in-Chief.
First, he can call out such Armed Forces as may be necessary to
suppress lawless violence; then he can suspend the privilege of the
writ of habeas corpus, then he can impose martial law. This is a
graduated sequence.
When he judges that it is necessary to impose martial law or
suspend the privilege of the writ of habeas corpus, his judgment is
subject to review. We are making it subject to review by the
Supreme Court and subject to concurrence by the National
Assembly. But when he exercises this lesser power of calling on
the Armed Forces, when he says it is necessary, it is my opinion
that his judgment cannot be reviewed by anybody.
xxx
FR. BERNAS. Let me just add that when we only have imminent
danger, the matter can be handled by the first sentence: "The
President may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion." So we feel that that is
sufficient for handling imminent danger.
MR. DE LOS REYES. So actually, if a President feels that there is
imminent danger, the matter can be handled by the First
Sentence: "The President....may call out such Armed Forces to
prevent or suppress lawless violence, invasion or rebellion." So we
feel that that is sufficient for handling imminent danger, of
invasion or rebellion, instead of imposing martial law or
suspending the writ of habeas corpus, he must necessarily have to
call the Armed Forces of the Philippines as their Commander-in-
Chief. Is that the idea?
MR. REGALADO. That does not require any concurrence by the
legislature nor is it subject to judicial review.34
The reason for the difference in the treatment of the
aforementioned powers highlights the intent to grant the President
the widest leeway and broadest discretion in using the power to
call out because it is considered as the lesser and more benign
power compared to the power to suspend the privilege of the writ
of habeas corpus and the power to impose martial law, both of
which involve the curtailment and suppression of certain basic civil
rights and individual freedoms, and thus necessitating safeguards
by Congress and review by this Court.
Moreover, under Section 18, Article VII of the Constitution, in the
exercise of the power to suspend the privilege of the writ of
habeas corpus or to impose martial law, two conditions must
concur: (1) there must be an actual invasion or rebellion and, (2)
public safety must require it. These conditions are not required in
the case of the power to call out the armed forces. The only
criterion is that "whenever it becomes necessary," the President
may call the armed forces "to prevent or suppress lawless
violence, invasion or rebellion." The implication is that the
President is given full discretion and wide latitude in the exercise of
the power to call as compared to the two other powers.
If the petitioner fails, by way of proof, to support the assertion that
the President acted without factual basis, then this Court cannot
undertake an independent investigation beyond the pleadings. The
factual necessity of calling out the armed forces is not easily
quantifiable and cannot be objectively established since matters
considered for satisfying the same is a combination of several
factors which are not always accessible to the courts. Besides the
absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might
also prove unmanageable for the courts. Certain pertinent
information might be difficult to verify, or wholly unavailable to the
courts. In many instances, the evidence upon which the President
might decide that there is a need to call out the armed forces may
be of a nature not constituting technical proof.
On the other hand, the President as Commander-in-Chief has a
vast intelligence network to gather information, some of which
may be classified as highly confidential or affecting the security of
the state. In the exercise of the power to call, on-the-spot
decisions may be imperatively necessary in emergency situations
to avert great loss of human lives and mass destruction of
property. Indeed, the decision to call out the military to prevent or
suppress lawless violence must be done swiftly and decisively if it
were to have any effect at all. Such a scenario is not farfetched
when we consider the present situation in Mindanao, where the
insurgency problem could spill over the other parts of the country.
The determination of the necessity for the calling out power if
subjected to unfettered judicial scrutiny could be a veritable
prescription for disaster, as such power may be unduly
straitjacketed by an injunction or a temporary restraining order
every time it is exercised.
Thus, it is the unclouded intent of the Constitution to vest upon the
President, as Commander-in-Chief of the Armed Forces, full
discretion to call forth the military when in his judgment it is
necessary to do so in order to prevent or suppress lawless
violence, invasion or rebellion. Unless the petitioner can show that
the exercise of such discretion was gravely abused, the President’s
exercise of judgment deserves to be accorded respect from this
Court.
The President has already determined the necessity and factual
basis for calling the armed forces. In his Memorandum, he
categorically asserted that, "[V]iolent crimes like bank/store
robberies, holdups, kidnappings and carnappings continue to occur
in Metro Manila..."35 We do not doubt the veracity of the President’s
assessment of the situation, especially in the light of present
developments. The Court takes judicial notice of the recent
bombings perpetrated by lawless elements in the shopping malls,
public utilities, and other public places. These are among the areas
of deployment described in the LOI 2000. Considering all these
facts, we hold that the President has sufficient factual basis to call
for military aid in law enforcement and in the exercise of this
constitutional power.
The deployment of the Marines does not violate the civilian
supremacy clause nor does it infringe the civilian character of the
police force.
Prescinding from its argument that no emergency situation exists
to justify the calling of the Marines, the IBP asserts that by the
deployment of the Marines, the civilian task of law enforcement is
"militarized" in violation of Section 3, Article II36 of the
Constitution.
We disagree. The deployment of the Marines does not constitute a
breach of the civilian supremacy clause. The calling of the Marines
in this case constitutes permissible use of military assets for
civilian law enforcement. The participation of the Marines in the
conduct of joint visibility patrols is appropriately circumscribed.
The limited participation of the Marines is evident in the provisions
of the LOI itself, which sufficiently provides the metes and bounds
of the Marines’ authority. It is noteworthy that the local police
forces are the ones in charge of the visibility patrols at all times,
the real authority belonging to the PNP. In fact, the Metro Manila
Police Chief is the overall leader of the PNP-Philippine Marines joint
visibility patrols.37 Under the LOI, the police forces are tasked to
brief or orient the soldiers on police patrol procedures. 38 It is their
responsibility to direct and manage the deployment of the
Marines.39 It is, likewise, their duty to provide the necessary
equipment to the Marines and render logistical support to these
soldiers.40 In view of the foregoing, it cannot be properly argued
that military authority is supreme over civilian authority. Moreover,
the deployment of the Marines to assist the PNP does not unmake
the civilian character of the police force. Neither does it amount to
an "insidious incursion" of the military in the task of law
enforcement in violation of Section 5(4), Article XVI of the
Constitution.41
In this regard, it is not correct to say that General Angelo Reyes,
Chief of Staff of the AFP, by his alleged involvement in civilian law
enforcement, has been virtually appointed to a civilian post in
derogation of the aforecited provision. The real authority in these
operations, as stated in the LOI, is lodged with the head of a
civilian institution, the PNP, and not with the military. Such being
the case, it does not matter whether the AFP Chief actually
participates in the Task Force Tulungan since he does not exercise
any authority or control over the same. Since none of the Marines
was incorporated or enlisted as members of the PNP, there can be
no appointment to civilian position to speak of. Hence, the
deployment of the Marines in the joint visibility patrols does not
destroy the civilian character of the PNP.
Considering the above circumstances, the Marines render nothing
more than assistance required in conducting the patrols. As such,
there can be no "insidious incursion" of the military in civilian
affairs nor can there be a violation of the civilian supremacy clause
in the Constitution.
It is worth mentioning that military assistance to civilian
authorities in various forms persists in Philippine jurisdiction. The
Philippine experience reveals that it is not averse to requesting the
assistance of the military in the implementation and execution of
certain traditionally "civil" functions. As correctly pointed out by
the Solicitor General, some of the multifarious activities wherein
military aid has been rendered, exemplifying the activities that
bring both the civilian and the military together in a relationship of
cooperation, are:
1. Elections;42
2. Administration of the Philippine National Red Cross;43
3. Relief and rescue operations during calamities and disasters;44
4. Amateur sports promotion and development;45
5. Development of the culture and the arts;46
6. Conservation of natural resources;47
7. Implementation of the agrarian reform program;48
8. Enforcement of customs laws;49
9. Composite civilian-military law enforcement activities;50
10. Conduct of licensure examinations;51
11. Conduct of nationwide tests for elementary and high school
students;52
12. Anti-drug enforcement activities;53
13. Sanitary inspections;54
14. Conduct of census work;55
15. Administration of the Civil Aeronautics Board;56
16. Assistance in installation of weather forecasting devices;57
17. Peace and order policy formulation in local government units.58
This unquestionably constitutes a gloss on executive power
resulting from a systematic, unbroken, executive practice, long
pursued to the knowledge of Congress and, yet, never before
questioned.59 What we have here is mutual support and
cooperation between the military and civilian authorities, not
derogation of civilian supremacy.
In the United States, where a long tradition of suspicion and
hostility towards the use of military force for domestic purposes
has persisted,60 and whose Constitution, unlike ours, does not
expressly provide for the power to call, the use of military
personnel by civilian law enforcement officers is allowed under
circumstances similar to those surrounding the present
deployment of the Philippine Marines. Under the Posse Comitatus
Act61 of the US, the use of the military in civilian law enforcement
is generally prohibited, except in certain allowable circumstances.
A provision of the Act states:
§ 1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress, willfully uses
any part of the Army or the Air Force as posse comitatus or
otherwise to execute the laws shall be fined not more than
$10,000 or imprisoned not more than two years, or both.62
To determine whether there is a violation of the Posse Comitatus
Act in the use of military personnel, the US courts63 apply the
following standards, to wit:
Were Army or Air Force personnel used by the civilian law
enforcement officers at Wounded Knee in such a manner that the
military personnel subjected the citizens to the exercise of military
power which was regulatory, proscriptive, or compulsory64 George
Washington Law Review, pp. 404-433 (1986), which discusses the
four divergent standards for assessing acceptable involvement of
military personnel in civil law enforcement. See likewise HONORED
IN THE BREECH: PRESIDENTIAL AUTHORITY TO EXECUTE THE
LAWS WITH MILITARY FORCE, 83 Yale Law Journal, pp. 130-152,
1973. 64 in nature, either presently or prospectively?
xxx
When this concept is transplanted into the present legal context,
we take it to mean that military involvement, even when not
expressly authorized by the Constitution or a statute, does not
violate the Posse Comitatus Act unless it actually regulates, forbids
or compels some conduct on the part of those claiming
relief.1âwphi1 A mere threat of some future injury would be
insufficient. (emphasis supplied)
Even if the Court were to apply the above rigid standards to the
present case to determine whether there is permissible use of the
military in civilian law enforcement, the conclusion is inevitable
that no violation of the civilian supremacy clause in the
Constitution is committed. On this point, the Court agrees with the
observation of the Solicitor General:
3. The designation of tasks in Annex A65 does not constitute the
exercise of regulatory, proscriptive, or compulsory military power.
First, the soldiers do not control or direct the operation. This is
evident from Nos. 6,66 8(k)67 and 9(a)68 of Annex A. These soldiers,
second, also have no power to prohibit or condemn. In No. 9(d)69
of Annex A, all arrested persons are brought to the nearest police
stations for proper disposition. And last, these soldiers apply no
coercive force. The materials or equipment issued to them, as
shown in No. 8(c)70 of Annex A, are all low impact and defensive in
character. The conclusion is that there being no exercise of
regulatory, proscriptive or compulsory military power, the
deployment of a handful of Philippine Marines constitutes no
impermissible use of military power for civilian law enforcement.71
It appears that the present petition is anchored on fear that once
the armed forces are deployed, the military will gain ascendancy,
and thus place in peril our cherished liberties. Such apprehensions,
however, are unfounded. The power to call the armed forces is just
that - calling out the armed forces. Unless, petitioner IBP can
show, which it has not, that in the deployment of the Marines, the
President has violated the fundamental law, exceeded his authority
or jeopardized the civil liberties of the people, this Court is not
inclined to overrule the President’s determination of the factual
basis for the calling of the Marines to prevent or suppress lawless
violence.
One last point. Since the institution of the joint visibility patrol in
January, 2000, not a single citizen has complained that his political
or civil rights have been violated as a result of the deployment of
the Marines. It was precisely to safeguard peace, tranquility and
the civil liberties of the people that the joint visibility patrol was
conceived. Freedom and democracy will be in full bloom only when
people feel secure in their homes and in the streets, not when the
shadows of violence and anarchy constantly lurk in their midst.
WHEREFORE, premises considered, the petition is hereby
DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Purisima, Pardo, Buena, Gonzaga-Reyes,
Ynares-Santiago, and De Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Puno, J., see separate opinion.
Vitug, J., see separate opinion.
Mendoza, J., see concurring and dissenting opinion.
Panganiban, J., in the result.
Quisumbing, J., joins the opinion of J. Mendoza.
Footnotes
1
Rollo, pp. 17-21.
2
As of 19 May 2000, the Marines have been recalled from their
areas of deployment to join the military operations in Mindanao,
and replaced by Air Force personnel who took over their functions
in the joint visibility patrols. The Air Force personnel, just like the
Marines, were ordered to assist the PNP, also by virtue of LOI
2/2000. Since both the Marines and Air Force belong to the Armed
Forces, the controversy has not been rendered moot and academic
by the replacement of the former by the latter. The validity of the
deployment of the armed forces in the joint visibility patrols thus
remain an issue.
3
Rollo, pp. 75-76.
4
Id., at 75.
5
Id.
6
Id.
7
Rollo, p. 75.
8
Id., at 17-18.
9
Id.
10
Rollo, p. 7.
11
Id., at 24.
12
Philippine Constitution Association v. Enriquez, 235 SCRA 506
(1994) citing Luz Farms v. Secretary of the Department of
Agrarian Reform, 192 SCRA 51 (1990); Dumlao v. Commission on
Elections, 95 SCRA 392 (1980); and, People v. Vera, 65 Phil. 56
(1937).
13
Joya v. Presidential Commission on Good Govenment, 225 SCRA
568, 576 (1993).
14
Ibid., citing House International Building Tenants Association,
Inc. v. Intermediate Appellate Court, 151 SCRA 703 (1987).
15
Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7L. Ed. 2d 663, 678
(1962).
16
Joya v. Presidential Commission on Good Government, supra
note 13, at 579 citing Dumlao v. Commission on Elections, 95
SCRA 392 (1980).
17
Tatad v. Secretary of the Department of Energy, 281 SCRA 330,
349 (1997) citing Garcia v. Executive Secretary, 211 SCRA 219
(1992); Osmeña v. COMELEC, 199 SCRA 750 (1991); Basco v.
Pagcor, 197 SCRA 52 (1991); and, Araneta v. Dinglasan, 84 Phil.
368 (1949).
18
Santiago v. COMELEC, 270 SCRA 106 (1997); Joya v.
Presidential Commission on Good Government, 225 SCRA 568
(1993); Daza v. Singson, 180 SCRA 496 (1989). As formulated by
Mr. Justice (now Chief Justice) Hilario G. Davide, Jr. in Kilosbayan,
Inc. vs. Guingona, Jr., [232 SCRA 110 (1994)] "(a) party's
standing before this Court is a procedural technicality which it
may, in the exercise of its discretion, set aside in view of the
importance of the issues raised," favorably citing our ruling in the
Emergency Powers Cases [L-2044 (Araneta v. Dinglasan); L-2756
(Araneta v. Angeles); L-3054 (Rodriquez v. Tesorero de Filipinas);
and L-3056 (Barredo v. COMELEC), 84 Phil. 368 (1940)] where
this Court brushed aside this technicality because "the
transcendental importance to the public of these cases demands
that they be settled promptly and definitely, brushing aside, if we
must, technical rules of procedure." An inflexible rule on locus
standi would result in what Mr. Justice Florentino P. Feliciano aptly
described as a "doctrinal ball and chain xxx clamped on our own
limbs." [Kilosbayan, Inc. v. Morato, 250 SCRA 130 (1995)].
19
Rollo, p. 12
20
Article II, Sections 4 and 5 of the Constitution provide:
Sec. 4. The prime duty of the Government is to serve and protect
the people. The Government may call upon the people to defend
the State and, in the fulfillment thereof, all citizens may be
required, under conditions provided by law, to render personal,
military or civil service.
Sec. 5. The maintenance of peace and order, the protection of life,
liberty, and property, and the promotion of the general welfare are
essential for the enjoyment by all the people of the blessings of
democracy.
21
177 SCRA 668, 694 (1989).
22
WEST’S LEGAL THESAURUS/DICTIONARY (Special Deluxe
Edition) p. 440 (1986).
23
103 Phil. 1051 (1957).
24
369 U.S. 186, 82 S ct. 691, 7 L. Ed. 2d 663, 678 (1962).
25
Article VIII, Sec. 1 of the 1987 CONSTITUTION.
26
Santiago v. Guingona, Jr., 298 SCRA 756 (1998).
27
Bengzon, Jr. v. Senate Blue Ribbon Committee, 203 SCRA 767
(1991).
28
Marcos v. Manglapus,, supra note 21, see also Daza v. Singson,
180 SCRA 496 (1988); Coseteng v. Mitra, 187 SCRA 377 (1990).
29
Sinon v. Civil Service Commission, 215 SCRA 410 (1992); See
also Producers Bank v. NLRC, 165 SCRA 284 (1988); Litton Mills v.
Galleon Trader, Inc., 163 SCRA 494 (1988).
30
Ledesma v. Court of Appeals, 278 SCRA 659 (1997).
31
Bondoc v. Pineda, 201 SCRA 792 (1991).
32
Drilon v. Lim, 235 SCRA 135 (1994).
33
Sarmiento v. Mison, 156 SCRA 549 (1987).
34
II RECORD OF THE CONSTITUTIONAL COMMISSION:
PROCEEDINGS AND DEBATES, pp. 409, 412 (1986).
35
Rollo, p. 75.
36
Section 3, provides:
Civilian authority, is at all times, supreme over the military. The
Armed Forces of the Philippines is the protector of the people and
the State. Its goal is to secure the sovereignty of the State and the
integrity of the national territory.
37
No. 9 of the LOI provides: COORDINATING INSTRUCTIONS:
a. RD, NCRPO is designated as Task Force Commander 42
CONSTITUTION, Article IX-C, Section 2; Comelec Resolution No.
"TULUNGAN". 3071 (1999), which is entitled "In Re Guidelines for the
38
No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT Designation of Registration Centers and the Accountable Officers
NCRPO-PHILIPPINE MARINES: for the Polaroid Instant Cameras for Purposes of the Registration
b. Before their deployment/employment, receiving units shall of Voters on 8-9 May 1999 in the Autonomous Region in Muslim
properly brief/orient the troops on police patrol/visibility Mindanao;" Comelec Resolution No. 3059 (1999), which is entitled,
procedures. "In the Matter of Deputizing the Armed Forces of the Philippines
39
No. 8 of the LOI provides: TASKS: and the Three (3) AFP Components, Namely: Philippine Army,
k. POLICE DISTRICTS/STATIONS Philippine Navy and Philippine Air Force, for the Purpose of
-Provide direction and manage the deployment of all Philippine Ensuring Free, Orderly, Honest and Peaceful Precinct Mapping,
Marines personnel deployed in your AOR for police visibility Registration of Voters and the Holding of the September 13, 1999
operations. Elections in the Autonomous Region in Muslim Mindanao (ARMM);"
-Conduct briefing/orientation to Philippine Marines’ personnel on Republic Act No. 7166 (1991), Section 33, which is entitled "An Act
the do’s and don’ts of police visibility patrols. Providing for Synchronized National and Local Elections and for
-Provide transportation to Philippine Marines from districts Electoral Reforms, Authorizing Appropriations therefor, and for
headquarters to different stations and PCPs. other Purposes;" Administrative Code of 1987, Book V, Title I,
-Perform other tasks as directed. Subtitle C, Chapter 1, Sections 2 (4) and 3; Batas Pambansa Blg.
40
No. 8 of the LOI states: TASKS: 881, Article VI, Sections 52 (b) and 57 (3) (1985), which is also
c. RLD/R4 known as "Omnibus Election Code."
-Coordinate with the Directorate for Logistics for the issuance of 43
Republic Act No. 95 (1947), Section 5, which is entitled "An Act
the following equipments (sic) to be utilize (sic) by the Philippine to Incorporate the Philippine National Red Cross Section;" Republic
Marines personnel: 500 pieces Probaton, 500 whistle (sic), 500 Act No. 855 (1953), Section 1, which is entitled "An Act to Amend
pieces brazzard blazoned. Section V of Republic Act Numbered Ninety-Five, entitled "An Act
-Coordinate with the Directorate for Logistics for the issuance of to Incorporate the Philippine National Red Cross."
the following for use of PNP personnel involved in the visibility 44
Republic Act No. 7077 (1991), Article III, Section 7, which is
patrol operations: entitled "An Act Providing for the Development, Administration,
1,000 sets of PNP GOA Uniform Organization, Training, Maintenance and Utilization of the Citizen
500 each raincoats Armed Forces of the Armed Forces of the Philippines and for other
500 each Probaton Purposes."
500 each Whistle 45
Republic Act No. 6847 (1990), Section 7, which is entitled "An
500 each handcuffs Act Creating and Establishing The Philippine Sports Commission,
500 each Combat Boots Defining its Powers, Functions and Responsibilities, Appropriating
500 each low cut shoes Funds therefor, and for other Purposes."
-Provide transportation to the Philippine Marines personnel in 46
Republic Act No. 8492 (1998), Section 20, which is entitled "An
coordination with LSS, NHQ PNP. Act Establishing a National Museum System, Providing for its
-Provide additional gas allocation to Philippine Marines’ members Permanent Home and for other Purposes."
of the Inspection Teams. 47
Republic Act No. 8550 (1998), Section 124, which is entitled "An
- Perform other tasks as directed.40 Act Providing for the Development, Management and Conservation
41
Sec. 5(4), Article XVI, provides: of the Fisheries and Aquatic Resources, Integrating All Laws
No member of the Armed Forces in the active service shall, at any Pertinent Thereto, and for other Purposes;" Memorandum Circular
time, be appointed in the government including government- No. 150 (1996), which is entitled "Amending Memorandum Circular
owned and controlled corporations or any of their subsidiaries. No. 128, dated July 20, 1995 by Reorganizing the Presidential Task
Force on Tubbataha Reef National Marine Park;" Executive Order
No. 544 (1979), Letter I, which is entitled "Creating a Presidential
Committee for the Conservation of the Tamaraw, Defining its
Powers and for other Purposes."
48
Executive Order No. 129-A (1987) Section 5 (m), which is
entitled "Modifying Executive Order No. 129 Reorganizing and
Strengthening the Department of Agrarian Reform and for other
Purposes."
49
Republic Act No. 1937 (1957), Section 2003, which is entitled
"An Act to Revised and Codify the Tariff and Customs Laws of the
Philippines;" Executive Order No. 45 (1998), which is entitled
"Creating a Presidential Anti-Smuggling Task Force to Investigate
and Prosecute Crimes Involving Large-Scale Smuggling and other
Frauds upon Customs and Providing Measures to Expedite Seizure
Proceedings;"
50
These cases involved joint military and civilian law enforcement
operations: People v. Escalante, G.R No. 106633, December 1,
1994; People v. Bernardo, G.R. No. 97393, March 17, 1993;
People v. De la Cruz, G.R. No. 83260, April 18, 1990; Guanzon v.
de Villa, 181 SCRA 623, 631 (1990). (This case recognizes the
complementary roles of the PNP and the military in conducting
anti-crime campaigns, provided that the people’s rights are not
violated in these words: "If the military and the police must
conduct concerted campaigns to flush out and catch criminal
elements, such drives must be consistent with the constitutional
and statutory rights of all people affected by such actions." The
creation of the Task Force also finds support in Valmonte v. de
Villa, 185 SCRA 665 (1990). Executive Order No. 62 (1999), which
is entitled "Creating the Philippine Center on Transnational Crime
to Formulate and Implement a Concerted Program of Action of All
Law Enforcement, Intelligence and other Agencies for the
Prevention and Control of Transnational Crime;" Executive Order
No. 8 (1998), which is entitled "Creating a Presidential Anti-
Organized Crime Commission and a Presidential Anti-Organized
Crime Task Force, to Investigate and Prosecute Criminal Elements
in the Country;" Executive Order No. 280 (1995), which is entitled
"Creating a Presidential Task Force of Intelligence and Counter-
Intelligence to Identify, Arrest and Cause the Investigation and
Prosecution of Military and other Law Enforcement Personnel on
their Former Members and Their Cohorts Involved in Criminal
Activities."
51
Memorandum Circular No. 141 (1996), which is entitled
"Enjoining Government Agencies Concerned to Extend Optimum
Support and Assistance to the Professional Regulation Commission
in its Conduct of Licensure Examinations."
52
Memorandum Circular No. 32 (1999), which is entitled "Directing
the Government Agencies Concerned to Extend Maximum Support
and Assistance to the National Educational Testing and Research
Center (NETRC) of the Department of Education, Culture and
Sports (DECS) in the Conduct of Tests of National Coverage."
53
Executive Order No. 61 (1999), which is entitled "Creating the
National Drug Law Enforcement and Prevention Coordinating
Center to Orchestrate Efforts of national Government Agencies,
Local Government Units, and Non-Government Organizations for a
More Effective Anti-Drug Campaign."
54
Republic Act No. 4089 (1964), which is entitled "An Act Making
the City Health Officer of Bacolod City the Local Civil Registrar,
Amending for the Purpose Section Forty-Three of the Charter of
said City;" Republic Act No. 537 (1950), which is entitled "An Act
to Revise the Charter of Quezon City;" Commonwealth Act No. 592
(1940), which is entitled "An Act to Create the City of Dansalan;"
Commonwealth Act No. 509 (1939), which is entitled "An Act to
Create Quezon City;" Commonwealth Act No. 326 (1938), which is
entitled "An Act Creating the City of Bacolod;" Commonwealth Act
No. 39 (1936), which is entitled "An Act Creating the City of
Zamboanga;" Commonwealth Act No. 51 (1936), which is entitled
"An Act Creating the City of Davao."
55
Republic Act No. 36 (1946), which is entitled "Census Act of
Nineteen Hundred and Forty-Six."
56
Republic Act No. 776 (1952), Section 5, which is entitled "An Act
to Reorganize the Civil Aeronautics Board and the Civil Aeronautics
Administration, To Provide for the Regulation of Civil Aeronautics in
the Philippines and Authorizing the Appropriation of Funds
Therefor."
57
Republic Act No. 6613 (1972), Section 4, which is entitled "An
Act Declaring a Policy of the State to Adopt Modern Scientific
Methods to Moderate Typhoons and Prevent Destruction by Floods,
Rains and Droughts, Creating a Council on Typhoons and Prevent
Destruction by Flood, Rains and Droughts, Creating a Council on
Typhoon Moderation and Flood Control Research and Development,
Providing for its Powers and Functions and Appropriating Funds
Therefor."
58
Local Government Code of 1991, Book I, Title Seven, Section powers from judicial scrutiny. If the attempt succeeded, it
116. would have diminished the power of judicial review and
59
This theory on gloss of executive power was advanced by Justice weakened the checking authority of this Court over the
Frankfurter in his concurring opinion in Youngstown Sheet and Chief Executive when he exercises his commander-in-chief
Tube v. Sawyer, 343 US 579, 610-611 (1952). powers. The attempt should remind us of the tragedy that
60
Bissonette v. Haig, 766 F.2d 1384, 1389 (1985). befell the country when this Court sought refuge in the
61
18 U.S.C.A § 1385 (1878). political question doctrine and forfeited its most important
62
Ibid. role as protector of the civil and political rights of our
63
Bissonette v. Haig, supra note 60, at 1390. people. The ongoing conflict in Mindanao may worsen and
64
A power regulatory in nature is one which controls or directs. It can force the Chief Executive to resort to the use of his
is proscriptive if it prohibits or condemns and compulsory if it greater commander-in-chief powers, hence, this Court
exerts some coercive force. See US v. Yunis, 681 F.Supp. 891 should be extra cautious in assaying similar attempts. A laid
(D.D.C., 1988). See also FOURTH AMENDMENT AND POSSE back posture may not sit well with our people considering
COMITATUS ACT RESTRICTIONS ON MILITARY INVOLVEMENT IN that the 1987 Constitution strengthened the checking
CIVIL LAW ENFORCEMENT, powers of this Court and expanded its jurisdiction precisely
65
L.O.I. 02/2000, "TULUNGAN," Rollo, pp. 17-22. to stop any act constituting "xxx grave abuse of jurisdiction
66
No. 6 of the LOI states: DEPLOYMENT/EMPLOYMENT OF JOINT xxx on the part of any branch or instrumentality of the
NCRPO-PHILIPPINE MARINES: Government."1
a. The PNP NCPRO thru Police Districts will continue to deploy The importance of the issue at bar includes this humble separate
uniformed PNP personnel dedicated for police visibility patrols in opinion. We can best perceive the different intersecting dimensions
tandem with the Philippine Marines. of the political question doctrine by viewing them from the broader
b. Before their deployment/employment, receiving units shall canvass of history. Political questions are defined as "those
properly brief/orient the troops on police patrol/visibility questions which under the Constitution, are to be decided by the
procedures.66 people in their sovereign capacity, or in regard to which full
67
Supra note 34. discretionary authority has been delegated to the legislative or
68
Supra note 32. executive branch of government."2 They have two aspects: (1)
69
No. 9 of the LOI states: those matters that are to be exercised by the people in their
d. In case of apprehensions, arrested person/s shall be brought to primary political capacity and (2) matters which have been
the nearest police stations/PCPs. specifically delegated to some other department or particular office
70
Supra note 35. of the government, with discretionary power to act.3 The exercise
71
Rollo, p. 70. of the discretionary power of the legislative or executive branch of
government was often the area where the Court had to wrestle
The Lawphil Project - Arellano Law Foundation with the political question doctrine.4
A brief review of some of our case law will thus give us a sharper
perspective of the political question doctrine. This question
confronted the Court as early as 1905 in the case of Barcelon v.
Baker.5 The Governor-General of the Philippine Islands, pursuant
SEPARATE OPINION to a resolution of the Philippine Commission, suspended the
PUNO, J.: privilege of the writ of habeas corpus in Cavite and Batangas
If the case at bar is significant, it is because of the government based on a finding of open insurrection in said provinces. Felix
attempt to foist the political question doctrine to shield an Barcelon, who was detained by constabulary officers in Batangas,
executive act done in the exercise of the commander-in-chief filed a petition for the issuance of a writ of habeas corpus alleging
that there was no open insurrection in Batangas. The issue to
resolve was whether or not the judicial department may
investigate the facts upon which the legislative (the Philippine
Commission) and executive (the Governor-General) branches of
government acted in suspending the privilege of the writ.
The Court ruled that under our form of government, one
department has no authority to inquire into the acts of another,
which acts are performed within the discretion of the other
department.6 Surveying American law and jurisprudence, it held
that whenever a statute gives discretionary power to any person,
to be exercised by him upon his own opinion of certain facts, the
statute constitutes him the sole judge of the existence of those
facts.7 Since the Philippine Bill of 1902 empowered the Philippine
Commission and the Governor-General to suspend the privilege of
the writ of habeas corpus, this power is exclusively within the
discretion of the legislative and executive branches of government.
The exercise of this discretion is conclusive upon the
courts.8
The Court further held that once a determination is made by the
executive and legislative departments that the conditions justifying
the assailed acts exists, it will presume that the conditions
continue until the same authority decide that they no longer exist.9
It adopted the rationale that the executive branch, thru its civil
and military branches, are better situated to obtain information
about peace and order from every corner of the nation, in contrast
with the judicial department, with its very limited machinery.10 The
seed of the political question doctrine was thus planted in
Philippine soil.
The doctrine barring judicial review because of the political
question doctrine was next applied to the internal affairs of
the legislature. The Court refused to interfere in the legislative
exercise of disciplinary power over its own members. In the 1924
case of Alejandrino v. Quezon,11 Alejandrino, who was appointed
Senator by the Governor-General, was declared by Senate
Resolution as guilty of disorderly conduct for assaulting another
Senator in the course of a debate, and was suspended from office
for one year. Senator Alejandrino filed a petition for mandamus
and injunction to compel the Senate to reinstate him. The Court
held that under the Jones Law, the power of the Senate to punish
its members for disorderly behavior does not authorize it to
suspend an appointive member from the exercise of his office.
While the Court found that the suspension was illegal, it refused to
issue the writ of mandamus on the ground that "the Supreme
Court does not possess the power of coercion to make the
Philippine Senate take any particular action. [T]he Philippine
Legislature or any branch thereof cannot be directly controlled in
the exercise of their legislative powers by any judicial process."12
The issue revisited the Court twenty-two (22) years later. In 1946,
in Vera v. Avelino,13 three senators-elect who had been
prevented from taking their oaths of office by a Senate resolution
repaired to this Court to compel their colleagues to allow them to
occupy their seats contending that only the Electoral Tribunal had
jurisdiction over contests relating to their election, returns and
qualifications. Again, the Court refused to intervene citing
Alejandrino and affirmed the inherent right of the legislature to
determine who shall be admitted to its membership.
In the 1947 case of Mabanag v. Lopez-Vito,14 three Senators
and eight representatives who were proclaimed elected by
Comelec were not allowed by Congress to take part in the voting
for the passage of the Parity amendment to the Constitution. If
their votes had been counted, the affirmative votes in favor of the
proposed amendment would have been short of the necessary
three-fourths vote in either House of Congress to pass the
amendment. The amendment was eventually submitted to the
people for ratification. The Court declined to intervene and held
that a proposal to amend the Constitution is a highly political
function performed by Congress in its sovereign legislative
capacity.15
In the 1955 case of Arnault v. Balagtas,16 petitioner, a private
citizen, assailed the legality of his detention ordered by the Senate
for his refusal to answer questions put to him by members of one
of its investigating committees. This Court refused to order his
release holding that the process by which a contumacious witness
is dealt with by the legislature is a necessary concomitant of the
legislative process and the legislature's exercise of its discretionary
authority is not subject to judicial interference.
In the 1960 case of Osmena v. Pendatun,17 the Court followed
the traditional line. Congressman Sergio Osmena, Jr. was
suspended by the House of Representatives for serious disorderly
behavior for making a privilege speech imputing "malicious
charges" against the President of the Philippines. Osmena, Jr.
invoked the power of review of this Court but the Court once more
did not interfere with Congress' power to discipline its members.
The contours of the political question doctrine have always been
tricky. To be sure, the Court did not always stay its hand whenever
the doctrine is invoked. In the 1949 case of Avelino v. Cuenco,18
Senate President Jose Avelino, who was deposed and replaced,
questioned his successor's title claiming that the latter had been
elected without a quorum. The petition was initially dismissed on
the ground that the selection of Senate President was an internal
matter and not subject to judicial review.19 On reconsideration,
however, the Court ruled that it could assume jurisdiction over the
controversy in light of subsequent events justifying intervention
among which was the existence of a quorum.20 Though the petition
was ultimately dismissed, the Court declared respondent Cuenco
as the legally elected Senate President.
In the 1957 case of Tanada v. Cuenco,21 the Court assumed
jurisdiction over a dispute involving the formation and composition
of the Senate Electoral Tribunal. It rejected the Solicitor General's
claim that the dispute involved a political question. Instead, it
declared that the Senate is not clothed with "full discretionary
authority" in the choice of members of the Senate Electoral
Tribunal and the exercise of its power thereon is subject to
constitutional limitations which are mandatory in nature.22 It held
that under the Constitution, the membership of the Senate
Electoral Tribunal was designed to insure the exercise of judicial
impartiality in the disposition of election contests affecting
members of the lawmaking body.23 The Court then nullified the
election to the Senate Electoral Tribunal made by Senators
belonging to the party having the largest number of votes of two
of their party members but purporting to act on behalf of the party
having the second highest number of votes.
In the 1962 case of Cunanan v. Tan, Jr.,24 the Court passed
judgment on whether Congress had formed the Commission on
Appointments in accordance with the Constitution and found that it
did not. It declared that the Commission on Appointments is a
creature of the Constitution and its power does not come from
Congress but from the Constitution.
The 1967 case of Gonzales v. Comelec25 and the 1971 case of
Tolentino v. Comelec26 abandoned Mabanag v. Lopez-Vito. The
question of whether or not Congress, acting as a constituent
assembly in proposing amendments to the Constitution violates
the Constitution was held to be a justiciable and not a political
issue. In Gonzales, the Court ruled:
"It is true that in Mabanag v. Lopez-Vito, this Court characterizing
the issue submitted thereto as a political one, declined to pass
upon the question whether or not a given number of votes cast in
Congress in favor of a proposed amendment to the Constitution-
which was being submitted to the people for ratification-satisfied
the three-fourths vote requirement of the fundamental law. The
force of this precedent has been weakened, however, by Suanes v.
Chief Accountant of the Senate, Avelino v. Cuenco, Tanada v.
Cuenco, and Macias v. Commission on Elections. In the first, we
held that the officers and employees of the Senate Electoral
Tribunal are under its supervision and control, not of that of the
Senate President, as claimed by the latter; in the second, this
Court proceeded to determine the number of Senators necessary
for a quorum in the Senate; in the third, we nullified the election,
by Senators belonging to the party having the largest number of
votes in said chamber, purporting to act on behalf of the party
having the second largest number of votes therein, of two (2)
Senators belonging to the first party, as members, for the second
party, of the Senate Electoral Tribunal; and in the fourth, we
declared unconstitutional an act of Congress purporting to
apportion the representative districts for the House of
Representatives upon the ground that the apportionment had not
been made as may be possible according to the number of
inhabitants of each province. Thus, we rejected the theory,
advanced in these four cases, that the issues therein raised were
political questions the determination of which is beyond judicial
review."27
The Court explained that the power to amend the Constitution or
to propose amendments thereto is not included in the general
grant of legislative powers to Congress. As a constituent assembly,
the members of Congress derive their authority from the
fundamental law and they do not have the final say on whether
their acts are within or beyond constitutional limits.28 This ruling
was reiterated in Tolentino which held that acts of a constitutional
convention called for the purpose of proposing amendments to the
Constitution are at par with acts of Congress acting as a
constituent assembly.29
In sum, this Court brushed aside the political question
doctrine and assumed jurisdiction whenever it found
constitutionally-imposed limits on the exercise of powers
conferred upon the Legislature.30
The Court hewed to the same line as regards the exercise of
Executive power. Thus, the respect accorded executive discretion
was observed in Severino v. Governor-General,31 where it was
held that the Governor-General, as head of the executive
department, could not be compelled by mandamus to call a special
election in the town of Silay for the purpose of electing a municipal
president. Mandamus and injunction could not lie to enforce or
restrain a duty which is discretionary. It was held that when the
Legislature conferred upon the Governor-General powers and
duties, it did so for the reason that he was in a better position to
know the needs of the country than any other member of the
executive department, and with full confidence that he will perform
such duties as his best judgment dictates.32
Similarly, in Abueva v. Wood,33 the Court held that the Governor-
General could not be compelled by mandamus to produce certain
vouchers showing the various expenditures of the Independence
Commission. Under the principle of separation of powers, it ruled
that it was not intended by the Constitution that one branch of
government could encroach upon the field of duty of the other.
Each department has an exclusive field within which it can perform
its part within certain discretionary limits.34 It observed that "the
executive and legislative departments of government are
frequently called upon to deal with what are known as political
questions, with which the judicial department of government has
no intervention. In all such questions, the courts uniformly refused
to intervene for the purpose of directing or controlling the actions
of the other department; such questions being many times
reserved to those departments in the organic law of the state."35
In Forties v. Tiaco,36 the Court also refused to take cognizance of
a case enjoining the Chief Executive from deporting an obnoxious
alien whose continued presence in the Philippines was found by
him to be injurious to the public interest. It noted that sudden and
unexpected conditions may arise, growing out of the presence of
untrustworthy aliens, which demand immediate action. The
President's inherent power to deport undesirable aliens is
universally denominated as political, and this power continues to
exist for the preservation of the peace and domestic tranquility of
the nation.37
In Manalang v. Quitoriano,38 the Court also declined to interfere
in the exercise of the President's appointing power. It held that the
appointing power is the exclusive prerogative of the President,
upon which no limitations may be imposed by Congress, except
those resulting from the need of securing concurrence of the
Commission on Appointments and from the exercise of the limited
legislative power to prescribe qualifications to a given appointive
office.
We now come to the exercise by the President of his powers
as Commander-in-Chief vis-a-vis the political question doctrine.
In the 1940's, this Court has held that as Commander-in-Chief of
the Armed Forces, the President has the power to determine
whether war, in the legal sense, still continues or has terminated.
It ruled that it is within the province of the political department
and not of the judicial department of government to determine
when war is at end.39
In 1952, the Court decided the landmark case of Montenegro v.
Castaneda.40 President Quirino suspended the privilege of the writ
of habeas corpus for persons detained or to be detained for crimes
of sedition, insurrection or rebellion. The Court, citing Barcelon,
declared that the authority to decide whether the exigency has
arisen requiring the suspension of the privilege belongs to the
President and his decision is final and conclusive on the courts.41
Barcelon was the ruling case law until the 1971 case of Lansang
v. Garcia came.42 Lansang reversed the previous cases and held
that the suspension of the privilege of the writ of habeas corpus
was not a political question. According to the Court, the weight of
Barcelon was diluted by two factors: (1) it relied heavily on
Martin v. Mott, which involved the U.S. President's power to call
out the militia which is a much broader power than suspension of
the privilege of the writ; and (2) the privilege was suspended by
the American Governor-General whose act, as representative of
the sovereign affecting the freedom of its subjects, could not be
equated with that of the President of the Philippines dealing with
the freedom of the sovereign Filipino people.
The Court declared that the power to suspend the privilege
of the writ of habeas corpus is neither absolute nor
unqualified because the Constitution sets limits on the
exercise of executive discretion on the matter. These limits
are: (1) that the privilege must not be suspended except only in
cases of invasion, insurrection or rebellion or imminent danger
thereof; and (2) when the public safety requires it, in any of which
events the same may be suspended wherever during such period
the necessity for the suspension shall exist. The extent of the
power which may be inquired into by courts is defined by these
limitations.43
On the vital issue of how the Court may inquire into the
President's exercise of power, it ruled that the function of the
Court is not to supplant but merely to check the Executive; to
ascertain whether the President has gone beyond the constitutional
limits of his jurisdiction, not to exercise the power vested in him or
to determine the wisdom of his act. Judicial inquiry is confined to
the question of whether the President did not act arbitrarily. 44
Using this yardstick, the Court found that the President did not.
The emergency period of the 1970's flooded the Court with cases
which raised the political question defense. The issue divided the
Court down the middle. Javellana v. Executive Secretary 45
showed that while a majority of the Court held that the issue of
whether or not the 1973 Constitution had been ratified in
accordance with the 1935 Constitution was justiciable, a majority
also ruled that the decisive issue of whether the 1973 Constitution
had come into force and effect, with or without constitutional
ratification, was a political question.46
The validity of the declaration of martial law by then President
Marcos was next litigated before the Court. In Aquino, Jr. v.
Enrile,47 it upheld the President's declaration of martial law. On
whether the validity of the imposition of martial law was a political
or justiciable question, the Court was almost evenly divided. One-
half embraced the political question position and the other half
subscribed to the justiciable position in Lansang. Those adhering to
the political question doctrine used different methods of approach
to it.48
In 1983, the Lansang ruling was weakened by the Court in
Garcia-Padilla v. Enrile.49 The petitioners therein were arrested
and detained by the Philippine Constabulary by virtue of a
Presidential Commitment Order (PCO). Petitioners sought the
issuance of a writ of habeas corpus. The Court found that the PCO
had the function of validating a person's detention for any of the
offenses covered in Proclamation No. 2045 which continued in
force the suspension of the privilege of the writ of habeas corpus.
It held that the issuance of the PCO by the President was not
subject to judicial inquiry.50 It went further by declaring that there
was a need to re-examine Lansang with a view to reverting to
Barcelon and Montenegro. It observed that in times of war or
national emergency, the President must be given absolute control
for the very life of the nation and government is in great peril. The
President, it intoned, is answerable only to his conscience, the
people, and God.51
But barely six (6) days after Garcia-Padilla, the Court
promulgated Morales, Jr. v. Enrile52 reiterating Lansang. It held
that by the power of judicial review, the Court must inquire into
every phase and aspect of a person's detention from the moment
he was taken into custody up to the moment the court passes
upon the merits of the petition. Only after such a scrutiny can the
court satisfy itself that the due process clause of the Constitution
has been met.53
It is now history that the improper reliance by the Court on
the political question doctrine eroded the people's faith in
its capacity to check abuses committed by the then
Executive in the exercise of his commander-in-chief powers,
particularly violations against human rights. The refusal of
courts to be pro-active in the exercise of its checking power
drove the people to the streets to resort to extralegal
remedies. They gave birth to EDSA.
Two lessons were not lost to the members of the Constitutional
Commission that drafted the 1987 Constitution. The first was the
need to grant this Court the express power to review the exercise
of the powers as commander-in-chief by the President and deny it
of any discretion to decline its exercise. The second was the
need to compel the Court to be pro-active by expanding its
jurisdiction and, thus, reject its laid back stance against acts
constituting grave abuse of discretion on the part of any branch or
instrumentality of government. Then Chief Justice Roberto
Concepcion, a member of the Constitutional Commission, worked
for the insertion of the second paragraph of Section 1, Article VIII
in the draft Constitution,54 which reads:
"Sec. 1. x x x.
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."
The language of the provision clearly gives the Court the power to
strike down acts amounting to grave abuse of discretion of both
the legislative and executive branches of government.
We should interpret Section 18, Article VII of the 1987 Constitution
in light of our constitutional history. The provision states:
"Sec. 18. The President shall be the Commander-in-Chief of
all armed forces of the Philippines and whenever it becomes
necessary, he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion. In case of
invasion or rebellion, when the public safety requires it, he
may, for a period not exceeding sixty days, suspend the
privilege of the writ of habeas corpus or place the
Philippines or any part thereof under martial law. Within
forty-eight hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, the
President shall submit a report in person or in writing to 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 Congress, if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four hours
following such proclamation or suspension, convene in accordance
with its rules without need of a call.
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the factual
basis of the proclamation of martial law or the suspension
of the privilege of the writ or the extension thereof, and
must promulgate its decision thereon within thirty days
from its filing.
x x x."
It is clear from the foregoing that the President, as
Commander-in-Chief of the armed forces of the Philippines,
may call out the armed forces subject to two conditions: (1)
whenever it becomes necessary; and (2) to prevent or
suppress lawless violence, invasion or rebellion.
Undeniably, these conditions lay down the sine qua
requirement for the exercise of the power and the objective
sought to be attained by the exercise of the power. They
define the constitutional parameters of the calling out
power. Whether or not there is compliance with these
parameters is a justiciable issue and is not a political
question.
I am not unaware that in the deliberations of the Constitutional
Commission, Commissioner Bernas opined that the President's
exercise of the "calling out power," unlike the suspension of the
privilege of the writ of habeas corpus and the declaration of
martial law, is not a justiciable issue but a political question and
therefore not subject to judicial review.
It must be borne in mind, however, that while a member's opinion
expressed on the floor of the Constitutional Convention is valuable,
it is not necessarily expressive of the people's intent. 55 The
proceedings of the Convention are less conclusive on the proper
construction of the fundamental law than are legislative
proceedings of the proper construction of a statute, for in the latter
case it is the intent of the legislature the courts seek, while in the
former, courts seek to arrive at the intent of the people through
the discussions and deliberations of their representatives.56 The
conventional wisdom is that the Constitution does not derive its
force from the convention which framed it, but from the people
who ratified it, the intent to be arrived at is that of the people.57
It is true that the third paragraph of Section 18, Article VII
of the 1987 Constitution expressly gives the Court the
power to review the sufficiency of the factual bases used by
the President in the suspension of the privilege of the writ
of habeas corpus and the declaration of martial law. It does
not follow, however, that just because the same provision
did not grant to this Court the power to review the exercise
of the calling out power by the President, ergo, this Court
cannot pass upon the validity of its exercise.
Given the light of our constitutional history, this express
grant of power merely means that the Court cannot decline
the exercise of its power because of the political question
doctrine as it did in the past. In fine, the express grant
simply stresses the mandatory duty of this Court to check
the exercise of the commander-in-chief powers of the
President. It eliminated the discretion of the Court not to
wield its power of review thru the use of the political
question doctrine.
It may be conceded that the calling out power may be a "lesser
power" compared to the power to suspend the privilege of the writ
of habeas corpus and the power to declare martial law. Even then,
its exercise cannot be left to the absolute discretion of the Chief
Executive as Commander-in-Chief of the armed forces, as its
impact on the rights of our people protected by the Constitution
cannot be downgraded. We cannot hold that acts of the
commander-in-chief cannot be reviewed on the ground that they
have lesser impact on the civil and political rights of our people.
The exercise of the calling out power may be "benign" in the case
at bar but may not be so in future cases.
The counsel of Mr. Chief Justice Enrique M. Fernando, in his
Dissenting and Concurring Opinion in Lansang that it would be
dangerous and misleading to push the political question doctrine
too far, is apropos. It will not be complementary to the Court if it
handcuffs itself to helplessness when a grievously injured citizen
seeks relief from a palpably unwarranted use of presidential or
military power, especially when the question at issue falls in the
penumbra between the "political" and the "justiciable. "58
We should not water down the ruling that deciding whether a
matter has been committed by the Constitution to another branch
of government, or whether the action of that branch exceeds
whatever authority has been committed, is a delicate exercise in
constitutional interpretation, and is a responsibility of the Court
as ultimate interpreter of the fundamental law.59 When
private justiciable rights are involved in a suit, the Court must not
refuse to assume jurisdiction even though questions of extreme
political importance are necessarily involved.60 Every officer under
a constitutional government must act according to law and subject
to the controlling power of the people, acting through the courts,
as well as through the executive and legislative. One department is
just as representative of the other, and the judiciary is the
department which is charged with the special duty of determining
the limitations which the law places upon all official action.61 This
historic role of the Court is the foundation stone of a
government of laws and not of men.62
I join the Decision in its result.
G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all
surnamed OPOSA, minors, and represented by their parents
ANTONIO and RIZALINA OPOSA, ROBERTA NICOLE
SADIUA, minor, represented by her parents CALVIN and
ROBERTA SADIUA, CARLO, AMANDA SALUD and
PATRISHA, all surnamed FLORES, minors and represented
by their parents ENRICO and NIDA FLORES, GIANINA DITA
R. FORTUN, minor, represented by her parents SIGRID and
DOLORES FORTUN, GEORGE II and MA. CONCEPCION, all
surnamed MISA, minors and represented by their parents
GEORGE and MYRA MISA, BENJAMIN ALAN V. PESIGAN,
minor, represented by his parents ANTONIO and ALICE
PESIGAN, JOVIE MARIE ALFARO, minor, represented by her
parents JOSE and MARIA VIOLETA ALFARO, MARIA
CONCEPCION T. CASTRO, minor, represented by her
parents FREDENIL and JANE CASTRO, JOHANNA
DESAMPARADO, 
minor, represented by her parents JOSE and ANGELA
DESAMPRADO, CARLO JOAQUIN T. NARVASA, minor,
represented by his parents GREGORIO II and CRISTINE
CHARITY NARVASA, MA. MARGARITA, JESUS IGNACIO,
MA. ANGELA and MARIE GABRIELLE, all surnamed SAENZ,
minors, represented by their parents ROBERTO and
AURORA SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA
MARTHE and DAVID IAN, all surnamed KING, minors,
represented by their parents MARIO and HAYDEE KING,
DAVID, FRANCISCO and THERESE VICTORIA, all surnamed
ENDRIGA, minors, represented by their parents BALTAZAR
and TERESITA ENDRIGA, JOSE MA. and REGINA MA., all
surnamed ABAYA, minors, represented by their parents
ANTONIO and MARICA ABAYA, MARILIN, MARIO, JR. and
MARIETTE, all surnamed CARDAMA, minors, represented by
their parents MARIO and LINA CARDAMA, CLARISSA, ANN
MARIE, NAGEL, and IMEE LYN, all surnamed OPOSA, minors
and represented by their parents RICARDO and MARISSA
OPOSA, PHILIP JOSEPH, STEPHEN JOHN and ISAIAH
JAMES, all surnamed QUIPIT, minors, represented by their
parents JOSE MAX and VILMI QUIPIT, BUGHAW CIELO,
CRISANTO, ANNA, DANIEL and FRANCISCO, all surnamed
BIBAL, minors, represented by their parents FRANCISCO,
JR. and MILAGROS BIBAL, and THE PHILIPPINE
ECOLOGICAL NETWORK, INC., petitioners,  Environment and Natural Resources (DENR). His substitution in
vs.
THE HONORABLE FULGENCIO S. FACTORAN, JR., in his
capacity as the Secretary of the Department of Environment
and Natural Resources, and THE HONORABLE ERIBERTO U.
ROSARIO, Presiding Judge of the RTC, Makati, Branch
66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
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
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 taxpayers' class
1 2
suit  and alleges that the plaintiffs "are all citizens of the Republic
3
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 for that
4
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
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 matter of judicial notice. This notwithstanding, they
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 said order, not only was
7
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 petitioners
failed to allege in their complaint a specific 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 
the "rhythm and harmony of nature." Nature means the created
world in its entirety.  Such rhythm and harmony indispensably
9
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 a
10
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 Court without
doing violence to the 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 legal right —
the right to a balanced and healthful ecology which, for the first
time in our nation's constitutional history, is solemnly incorporated
in the fundamental law. Section 16, Article II of the 1987
Constitution explicitly provides:
Sec. 16. The State shall protect and advance the
right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony of
nature.
This right unites with the right to health which is
provided for in the preceding section of the same
article:
 Sec. 15. The State shall protect and promote the
right to health of the people and instill health
consciousness among them.
While the right to a balanced and healthful ecology is to be found
under the Declaration of Principles and 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 rights to a
balanced and healthful ecology and to health are mandated as
state policies by the 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:
MR. VILLACORTA:
Does this section mandate the
State to provide sanctions against
all forms of pollution — air, water
and noise pollution?
MR. AZCUNA:
Yes, Madam President. The right
to healthful (sic) environment
necessarily carries with it the
correlative duty of not impairing
the same and, therefore, sanctions
may be provided for impairment of
environmental balance.  12
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 President Corazon C. Aquino promulgated on
13
10 June 1987 E.O. No. 192,   Section 4 of which expressly
14
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
15
thereof which reads:
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 "responsibilities of each
16
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
19
question submitted to 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 laid down
20 21
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 distinguished member of this
22
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 speaking for this
23
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 
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.
set aside. The petitioners may therefore amend their complaint to
implead as defendants the holders or grantees of the questioned
timber license agreements.
No pronouncement as to costs.

The reason for this is emphatically set forth in Nebia vs. New SO ORDERED.
York,   quoted in Philippine American Life Insurance Co. vs.
29

Auditor General,  to wit:

30
Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon,
Bellosillo, Melo and Quiason, JJ., concur.
Under our form of government the use of property
and the making of contracts are normally matters Narvasa, C.J., Puno and Vitug, JJ., took no part.
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 Separate Opinions
interest.
 
In short, the non-impairment clause must yield to the police power
of the state. 
31
FELICIANO, J., concurring

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
I join in the result reached by my distinguished brother in the
Court, Davide, Jr., J., in this case which, to my mind, is one of the
most important cases decided by this Court in the last few years.
The seminal principles laid down in this decision are likely to
influence profoundly the direction and course of the protection
and management of the environment, which of course embraces
the utilization of all the natural resources in the territorial base of
our polity. I have therefore sought to clarify, basically to myself,
what the Court appears to be saying.
The Court explicitly states that petitioners have the locus
standi necessary to sustain the bringing and, maintenance of this
suit (Decision, pp. 11-12). Locus standi is not a function of
petitioners' claim that their suit is properly regarded as a class
suit. I understand locus standi to refer to the legal interest which a
plaintiff must have in the subject matter of the suit. Because of
the very broadness of the concept of "class" here involved —
membership in this "class" appears to embrace everyone living in
the country whether now or in the  certain species of fauna and flora; and so on. The other
future — it appears to me that everyone who may be expected to
benefit from the course of action petitioners seek to require public
respondents to take, is vested with the necessary locus standi.
The Court may be seen therefore to be recognizing
a beneficiaries' right of action in the field of environmental
protection, as against both the public administrative agency
directly concerned and the private persons or entities operating in
the field or sector of activity involved. Whether such beneficiaries'
right of action may be found under any and all circumstances, or
whether some failure to act, in the first instance, on the part of the
governmental agency concerned must be shown ("prior
exhaustion of administrative remedies"), is not discussed in the
decision and presumably is left for future determination in an
appropriate case.
The Court has also declared that the complaint has alleged and
focused upon "one specific fundamental legal right — the right to
a balanced and healthful ecology" (Decision, p. 14). There is no
question that "the right to a balanced and healthful ecology" is
"fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in character, I
suggest, with very great respect, that it cannot be characterized
as "specific," without doing excessive violence to language. It is in
fact very difficult to fashion language more comprehensive in
scope and generalized in character than a right to "a balanced
and healthful ecology." The list of particular claims which can be
subsumed under this rubic appears to be entirely open-ended:
prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical
effluents, garbage and raw sewage into rivers, inland and coastal
waters by vessels, oil rigs, factories, mines and whole
communities; of dumping of organic and inorganic wastes on
open land, streets and thoroughfares; failure to rehabilitate land
after strip-mining or open-pit mining; kaingin or slash-and-burn
farming; destruction of fisheries, coral reefs and other living sea
resources through the use of dynamite or cyanide and other
chemicals; contamination of ground water resources; loss of
statements pointed out by the Court: Section 3, Executive Order
No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the
1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977
— all appear to be formulations of policy, as general and abstract
as the constitutional statements of basic policy in Article II,
Section 16 ("the right — to a balanced and healthful ecology")
and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine
Environment Code," is, upon the other hand, a compendious
collection of more "specific environment management policies"
and "environment quality standards" (fourth "Whereas" clause,
Preamble) relating to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and
conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
 (iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and
ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither
petitioners nor the Court has identified the particular provision or
provisions (if any) of the Philippine Environment Code which give
rise to a specific legal right which petitioners are seeking to
enforce. Secondly, the Philippine Environment Code identifies
with notable care the particular government agency charged with
the formulation and implementation of guidelines and programs
dealing with each of the headings and sub-headings mentioned
above. The Philippine Environment Code does not, in other
words, appear to contemplate action on the part of private
persons who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as
anchored on a legal right comprised in the constitutional
statements above noted, the Court is in effect saying that Section
15 (and Section 16) of Article II of the Constitution are self-
executing and judicially enforceable even in their present form.
The implications of this doctrine will have to be explored in future
cases; those implications are too large and far-reaching in nature
even to be hinted at here.
My suggestion is simply that petitioners must, before the trial
court, show a more specific legal right — a right cast in language
of a significantly lower order of generality than Article II (15) of the
Constitution — that is or may be violated by the actions, or
failures to act, imputed to the public respondent by petitioners so
that the trial court can validly render judgment granting all or part
of the relief prayed for. To my mind, the Court should be
understood as simply saying that such a more specific legal right
or rights may well exist in our corpus of law, considering the
general policy principles found in the Constitution and the
existence of the Philippine Environment Code, and that the trial
court should have given petitioners an effective opportunity so to
demonstrate, instead of aborting the proceedings on a motion to
dismiss.
It seems to me important that the legal right which is an essential
component of a cause of action be a specific, operable legal right,
rather than a constitutional or statutory policy, for at least two (2)
reasons. One is that unless the legal right claimed to have been
violated or disregarded is given specification in operational terms,
defendants may well be unable to defend themselves intelligently
and effectively; in other words, there are due process dimensions
to this matter.
The second is a broader-gauge consideration — where a specific
violation of law or applicable regulation is not alleged or proved,
petitioners can be expected to fall back on the expanded
conception of judicial power in the second paragraph of Section 1
of Article VIII of the Constitution which reads:
Section 1. . . .
Judicial power includes the duty of the courts of
justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not
there has been a grave abuse of
discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the Government. (Emphasis
supplied)
When substantive standards as general as "the right to a
balanced and healthy ecology" and "the right to health"
 are combined with remedial standards as broad ranging
as "a grave abuse of discretion amounting to lack or
excess of jurisdiction," the result will be, it is respectfully
submitted, to propel courts into the uncharted ocean of
social and economic policy making. At least in respect of
the vast area of environmental protection and
management, our courts have no claim to special
technical competence and experience and professional
qualification. Where no specific, operable norms and
standards are shown to exist, then the policy making
departments — the legislative and executive departments
— must be given a real and effective opportunity to
fashion and promulgate those norms and standards, and
to implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber
companies, whose concession agreements or TLA's petitioners
demand public respondents should cancel, must be impleaded in
the proceedings below. It might be asked that, if petitioners'
entitlement to the relief demanded is not dependent upon proof of
breach by the timber companies of one or more of the specific
terms and conditions of their concession agreements (and this,
petitioners implicitly assume), what will those companies litigate
about? The answer I suggest is that they may seek to dispute the
existence of the specific legal right petitioners should allege, as
well as the reality of the claimed factual nexus between
petitioners' specific legal rights and the claimed wrongful acts or
failures to act of public respondent administrative agency. They
may also controvert the appropriateness of the remedy or
remedies demanded by petitioners, under all the circumstances
which exist.
I vote to grant the Petition for Certiorari because the protection of
the environment, including the forest cover of our territory, is of
extreme importance for the country. The doctrines set out in the
Court's decision issued today should, however, be subjected to
closer examination.
 
 
# Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in the
Court, Davide, Jr., J., in this case which, to my mind, is one of the
most important cases decided by this Court in the last few years.
The seminal principles laid down in this decision are likely to
influence profoundly the direction and course of the protection
and management of the environment, which of course embraces
the utilization of all the natural resources in the territorial base of
our polity. I have therefore sought to clarify, basically to myself,
what the Court appears to be saying.
The Court explicitly states that petitioners have the locus
standi necessary to sustain the bringing and, maintenance of this
suit (Decision, pp. 11-12). Locus standi is not a function of
petitioners' claim that their suit is properly regarded as a class
suit. I understand locus standi to refer to the legal interest which a
plaintiff must have in the subject matter of the suit. Because of
the very broadness of the concept of "class" here involved —
membership in this "class" appears to embrace everyone living in
the country whether now or in the 
future — it appears to me that everyone who may be expected to
benefit from the course of action petitioners seek to require public
respondents to take, is vested with the necessary locus standi.
The Court may be seen therefore to be recognizing
a beneficiaries' right of action in the field of environmental
protection, as against both the public administrative agency
directly concerned and the private persons or entities operating in
the field or sector of activity involved. Whether such beneficiaries'
right of action may be found under any and all circumstances, or
whether some failure to act, in the first instance, on the part of the
governmental agency concerned must be shown ("prior
exhaustion of administrative remedies"), is not discussed in the
decision and presumably is left for future determination in an
appropriate case.
The Court has also declared that the complaint has alleged and
focused upon "one specific fundamental legal right — the right to
a balanced and healthful ecology" (Decision, p. 14). There is no
question that "the right to a balanced and healthful ecology" is
"fundamental" and that, accordingly, it has been
"constitutionalized." But although it is fundamental in character, I
suggest, with very great respect, that it cannot be characterized
as "specific," without doing excessive violence to language. It is in
fact very difficult to fashion language more comprehensive in
scope and generalized in character than a right to "a balanced
and healthful ecology." The list of particular claims which can be
subsumed under this rubic appears to be entirely open-ended:
prevention and control of emission of toxic fumes and smoke from
factories and motor vehicles; of discharge of oil, chemical
effluents, garbage and raw sewage into rivers, inland and coastal
waters by vessels, oil rigs, factories, mines and whole
communities; of dumping of organic and inorganic wastes on
open land, streets and thoroughfares; failure to rehabilitate land
after strip-mining or open-pit mining; kaingin or slash-and-burn
farming; destruction of fisheries, coral reefs and other living sea
resources through the use of dynamite or cyanide and other
chemicals; contamination of ground water resources; loss of
certain species of fauna and flora; and so on. The other
statements pointed out by the Court: Section 3, Executive Order
No. 192 dated 10 June 1987; Section 1, Title XIV, Book IV of the
1987 Administrative Code; and P.D. No. 1151, dated 6 June 1977
— all appear to be formulations of policy, as general and abstract
as the constitutional statements of basic policy in Article II,
Section 16 ("the right — to a balanced and healthful ecology")
and 15 ("the right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The Philippine
Environment Code," is, upon the other hand, a compendious
collection of more "specific environment management policies"
and "environment quality standards" (fourth "Whereas" clause,
Preamble) relating to an extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and
conservation embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and
ground water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly, neither
petitioners nor the Court has identified the particular provision or
provisions (if any) of the Philippine Environment Code which give
rise to a specific legal right which petitioners are seeking to
enforce. Secondly, the Philippine Environment Code identifies
with notable care the particular government agency charged with
the formulation and implementation of guidelines and programs
dealing with each of the headings and sub-headings mentioned
above. The Philippine Environment Code does not, in other
words, appear to contemplate action on the part of private
persons who are beneficiaries of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action as
anchored on a legal right comprised in the constitutional
statements above noted, the Court is in effect saying that Section
15 (and Section 16) of Article II of the Constitution are self-
executing and judicially enforceable even in their present form.
The implications of this doctrine will have to be explored in future
cases; those implications are too large and far-reaching in nature
even to be hinted at here.
My suggestion is simply that petitioners must, before the trial
court, show a more specific legal right — a right cast in language
of a significantly lower order of generality than Article II (15) of the
Constitution — that is or may be violated by the actions, or
failures to act, imputed to the public respondent by petitioners so
that the trial court can validly render judgment granting all or part
of the relief prayed for. To my mind, the Court should be
understood as simply saying that such a more specific legal right
or rights may well exist in our corpus of law, considering the
general policy principles found in the Constitution and the
existence of the Philippine Environment Code, and that the trial
court should have given petitioners an effective opportunity so to
demonstrate, instead of aborting the proceedings on a motion to
dismiss.
It seems to me important that the legal right which is an essential
component of a cause of action be a specific, operable legal right,
rather than a constitutional or statutory policy, for at least two (2)
reasons. One is that unless the legal right claimed to have been
violated or disregarded is given specification in operational terms,
defendants may well be unable to defend themselves intelligently
and effectively; in other words, there are due process dimensions
to this matter.
The second is a broader-gauge consideration — where a specific
violation of law or applicable regulation is not alleged or proved,
petitioners can be expected to fall back on the expanded
conception of judicial power in the second paragraph of Section 1
of Article VIII of the Constitution which reads:
Section 1. . . .
Judicial power includes the duty of the courts of
justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not
there has been a grave abuse of
discretion amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the Government. (Emphasis
supplied)
When substantive standards as general as "the right to a
balanced and healthy ecology" and "the right to health"
are combined with remedial standards as broad ranging
as "a grave abuse of discretion amounting to lack or
excess of jurisdiction," the result will be, it is respectfully
submitted, to propel courts into the uncharted ocean of
social and economic policy making. At least in respect of
the vast area of environmental protection and
management, our courts have no claim to special
technical competence and experience and professional
qualification. Where no specific, operable norms and
standards are shown to exist, then the policy making
departments — the legislative and executive departments
— must be given a real and effective opportunity to
fashion and promulgate those norms and standards, and
to implement them before the courts should intervene.
My learned brother Davide, Jr., J., rightly insists that the timber
companies, whose concession agreements or TLA's petitioners
demand public respondents should cancel, must be impleaded in
the proceedings below. It might be asked that, if petitioners'
entitlement to the relief demanded is not dependent upon proof of
breach by the timber companies of one or more of the specific
terms and conditions of their concession agreements (and this,
petitioners implicitly assume), what will those companies litigate
about? The answer I suggest is that they may seek to dispute the
existence of the specific legal right petitioners should allege, as
well as the reality of the claimed factual nexus between
petitioners' specific legal rights and the claimed wrongful acts or
failures to act of public respondent administrative agency. They
may also controvert the appropriateness of the remedy or
remedies demanded by petitioners, under all the circumstances
which exist.
I vote to grant the Petition for Certiorari because the protection of
the environment, including the forest cover of our territory, is of
extreme importance for the country. The doctrines set out in the
Court's decision issued today should, however, be subjected to
closer examination.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
 
G.R. No. 122156 February 3, 1997
MANILA PRINCE HOTEL petitioner, 
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA
HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION
and OFFICE OF THE GOVERNMENT CORPORATE
COUNSEL, respondents.
BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in
the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give preference
to qualified Filipinos,  is in oked by petitioner in its bid to acquire
1
51% of the shares of the Manila Hotel Corporation (MHC) which
owns the historic Manila Hotel. Opposing, respondents maintain
that the provision is not self-executing but requires an
implementing legislation for its enforcement. Corollarily, they ask
whether the 51% shares form part of the national economy and
patrimony covered by the protective mantle of the Constitution.
The controversy arose when respondent Government Service
Insurance System (GSIS), pursuant to the privatization program
of the Philippine Government under Proclamation No. 50 dated 8
December 1986, decided to sell through public bidding 30% to
51% of the issued and outstanding shares of respondent MHC.
The winning bidder, or the eventual "strategic partner," is to
provide management expertise and/or an international
marketing/reservation system, and financial support to strengthen
the profitability and performance of the Manila Hotel.  In a close
2
bidding held on 18 September 1995 only two (2) bidders
participated: petitioner Manila Prince Hotel Corporation, a Filipino
corporation, which offered to buy 51% of the MHC or 15,300,000
shares at P41.58 per share, and Renong Berhad, a Malaysian
firm, with ITT-Sheraton as its hotel operator, which bid for the
same number of shares at P44.00 per share, or P2.42 more than
the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent
GSIS state —
I. EXECUTION OF THE
NECESSARY CONTRACTS
WITH GSIS/MHC —
1. The Highest Bidder must comply with the
conditions set forth below by October 23, 1995
(reset to November 3, 1995) or the Highest Bidder
will lose the right to purchase the Block of Shares
and GSIS will instead offer the Block of Shares to
the other Qualified Bidders:
a. The Highest Bidder must
negotiate and execute with the
GSIS/MHC the Management
Contract, International
Marketing/Reservation System
Contract or other type of contract
specified by the Highest Bidder in
its strategic plan for the Manila
Hotel. . . .
b. The Highest Bidder must
execute the Stock Purchase and
Sale Agreement with GSIS . . . .
K. DECLARATION OF THE
WINNING BIDDER/STRATEGIC
PARTNER —
The Highest Bidder will be declared the Winning
Bidder/Strategic Partner after the following
conditions are met:
a. Execution of the necessary
contracts with GSIS/MHC not later
than October 23, 1995 (reset to
November 3, 1995); and
b. Requisite approvals from the
GSIS/MHC and COP (Committee
on Privatization)/OGCC (Office of
the Government Corporate
Counsel) are obtained.3
Pending the declaration of Renong Berhad as the winning
bidder/strategic partner and the execution of the necessary
contracts, petitioner in a letter to respondent GSIS dated 28
September 1995 matched the bid price of P44.00 per share
tendered by Renong Berhad.  In a subsequent letter dated 10
4
October 1995 petitioner sent a manager's check issued by
Philtrust Bank for Thirty-three Million Pesos (P33.000.000.00)
as Bid Security to match the bid of the Malaysian Group,
Messrs. Renong Berhad . . .  which respondent GSIS refused to
5
accept.
On 17 October 1995, perhaps apprehensive that respondent
GSIS has disregarded the tender of the matching bid and that the
sale of 51% of the MHC may be hastened by respondent GSIS
and consummated with Renong Berhad, petitioner came to this
Court on prohibition and mandamus. On 18 October 1995 the
Court issued a temporary restraining order enjoining respondents
from perfecting and consummating the sale to the Malaysian firm.
On 10 September 1996 the instant case was accepted by the
Court En Banc after it was referred to it by the First Division. The
case was then set for oral arguments with former Chief Justice
Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici
curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of
the 1987 Constitution and submits that the Manila Hotel has been
identified with the Filipino nation and has practically become a
historical monument which reflects the vibrancy of Philippine
heritage and culture. It is a proud legacy of an earlier generation
of Filipinos who believed in the nobility and sacredness of
independence and its power and capacity to release the full
potential of the Filipino people. To all intents and purposes, it has
become a part of the national patrimony.  Petitioner also argues
6 more, the mandate of the Constitution is addressed to the State,
that since 51% of the shares of the MHC carries with it the
ownership of the business of the hotel which is owned by
respondent GSIS, a government-owned and controlled
corporation, the hotel business of respondent GSIS being a part
of the tourism industry is unquestionably a part of the national
economy. Thus, any transaction involving 51% of the shares of
stock of the MHC is clearly covered by the term national
economy, to which Sec. 10, second par., Art. XII, 1987
Constitution, applies.7
It is also the thesis of petitioner that since Manila Hotel is part of
the national patrimony and its business also unquestionably part
of the national economy petitioner should be preferred after it has
matched the bid offer of the Malaysian firm. For the bidding rules
mandate that if for any reason, the Highest Bidder cannot be
awarded the Block of Shares, GSIS may offer this to the other
Qualified Bidders that have validly submitted bids provided that
these Qualified Bidders are willing to match the highest bid in
terms of price per share. 8
Respondents except. They maintain that: First, Sec. 10, second
par., Art. XII, of the 1987 Constitution is merely a statement of
principle and policy since it is not a self-executing provision and
requires implementing legislation(s) . . . Thus, for the said
provision to Operate, there must be existing laws "to lay down
conditions under which business may be done." 9 privilege to submit a matching bid had not yet taken place.
Second, granting that this provision is self-executing, Manila
Hotel does not fall under the term national patrimony which only
refers to lands of the public domain, waters, minerals, coal,
petroleum and other mineral oils, all forces of potential energy,
fisheries, forests or timber, wildlife, flora and fauna and all marine
wealth in its territorial sea, and exclusive marine zone as cited in
the first and second paragraphs of Sec. 2, Art. XII, 1987
Constitution. According to respondents, while petitioner speaks of
the guests who have slept in the hotel and the events that have
transpired therein which make the hotel historic, these alone do
not make the hotel fall under the patrimony of the nation. What is
not to respondent GSIS which possesses a personality of its own
separate and distinct from the Philippines as a State.
Third, granting that the Manila Hotel forms part of the national
patrimony, the constitutional provision invoked is still inapplicable
since what is being sold is only 51% of the outstanding shares of
the corporation, not the hotel building nor the land upon which the
building stands. Certainly, 51% of the equity of the MHC cannot
be considered part of the national patrimony. Moreover, if the
disposition of the shares of the MHC is really contrary to the
Constitution, petitioner should have questioned it right from the
beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the
bidding rules which provides that if for any reason, the Highest
Bidder cannot be awarded the Block of Shares, GSIS may offer
this to the other Qualified Bidders that have validly submitted bids
provided that these Qualified Bidders are willing to match the
highest bid in terms of price per share, is misplaced.
Respondents postulate that the privilege of submitting a matching
bid has not yet arisen since it only takes place if for any reason,
the Highest Bidder cannot be awarded the Block of Shares. Thus
the submission by petitioner of a matching bid is premature since
Renong Berhad could still very well be awarded the block of
shares and the condition giving rise to the exercise of the
Finally, the prayer for prohibition grounded on grave abuse of
discretion should fail since respondent GSIS did not exercise its
discretion in a capricious, whimsical manner, and if ever it did
abuse its discretion it was not so patent and gross as to amount
to an evasion of a positive duty or a virtual refusal to perform a
duty enjoined by law. Similarly, the petition for mandamus should
fail as petitioner has no clear legal right to what it demands and
respondents do not have an imperative duty to perform the act
required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws
for the governance and administration of a nation. It is supreme,
imperious, absolute and unalterable except by the authority from
which it emanates. It has been defined as the fundamental and
paramount law of the nation.   It prescribes the permanent
10
framework of a system of government, assigns to the different
departments their respective powers and duties, and establishes
certain fixed principles on which government is founded. The
fundamental conception in other words is that it is a supreme law
to which all other laws must conform and in accordance with
which all private rights must be determined and all public
authority administered.   Under the doctrine of constitutional
11
supremacy, if a law or contract violates any norm of the
constitution that law or contract whether promulgated by the
legislative or by the executive branch or entered into by private
persons for private purposes is null and void and without any
force and effect. Thus, since the Constitution is the fundamental,
paramount and supreme law of the nation, it is deemed written in
every statute and contract.
Admittedly, some constitutions are merely declarations of policies
and principles. Their provisions command the legislature to enact
laws and carry out the purposes of the framers who merely
establish an outline of government providing for the different
departments of the governmental machinery and securing certain
fundamental and inalienable rights of citizens.   A provision which
12
lays down a general principle, such as those found in Art. II of the
1987 Constitution, is usually not self-executing. But a provision
which is complete in itself and becomes operative without the aid
of supplementary or enabling legislation, or that which supplies
sufficient rule by means of which the right it grants may be
enjoyed or protected, is self-executing. Thus a constitutional
provision is self-executing if the nature and extent of the right
conferred and the liability imposed are fixed by the constitution
itself, so that they can be determined by an examination and
construction of its terms, and there is no language indicating that
the subject is referred to the legislature for action. 
13
As against constitutions of the past, modern constitutions have
been generally drafted upon a different principle and have often
become in effect extensive codes of laws intended to operate
directly upon the people in a manner similar to that of statutory
enactments, and the function of constitutional conventions has
evolved into one more like that of a legislative body. Hence,
unless it is expressly provided that a legislative act is necessary
to enforce a constitutional mandate, the presumption now is that
all provisions of the constitution are self-executing If the
constitutional provisions are treated as requiring legislation
instead of self-executing, the legislature would have the power to
ignore and practically nullify the mandate of the fundamental
law.  This can be cataclysmic. That is why the prevailing view is,
14
as it has always been, that —
. . . in case of doubt, the Constitution should be
considered self-executing rather than non-self-
executing . . . . Unless the contrary is clearly
intended, the provisions of the Constitution should
be considered self-executing, as a contrary rule
would give the legislature discretion to determine
when, or whether, they shall be effective. These
provisions would be subordinated to the will of the
lawmaking body, which could make them entirely
meaningless by simply refusing to pass the
needed implementing statute.  15
Respondents argue that Sec. 10, second par., Art. XII, of the
1987 Constitution is clearly not self-executing, as they quote from
discussions on the floor of the 1986 Constitutional Commission —
MR. RODRIGO. Madam
President, I am asking this
question as the Chairman of the
Committee on Style. If the wording
of "PREFERENCE" is given to
QUALIFIED FILIPINOS," can it be
understood as a preference to
qualified Filipinos vis-a-
vis Filipinos who are not qualified.
So, why do we not make it clear?
To qualified Filipinos as against
aliens?
THE PRESIDENT. What is the
question of Commissioner
Rodrigo? Is it to remove the word
"QUALIFIED?".
MR. RODRIGO. No, no, but say
definitely "TO QUALIFIED
FILIPINOS" as against whom? As
against aliens or over aliens?
MR. NOLLEDO. Madam
President, I think that is
understood. We use the word
"QUALIFIED" because
the existing laws or prospective
laws will always lay down
conditions under which business
may be done. For example,
qualifications on the setting up of
other financial structures, et
cetera (emphasis supplied by
respondents)
MR. RODRIGO. It is just a matter
of style.
MR. NOLLEDO Yes,  16
Quite apparently, Sec. 10, second par., of Art XII is couched in
such a way as not to make it appear that it is non-self-executing
but simply for purposes of style. But, certainly, the legislature is
not precluded from enacting other further laws to enforce the
constitutional provision so long as the contemplated statute
squares with the Constitution. Minor details may be left to the
legislature without impairing the self-executing nature of
constitutional provisions.
In self-executing constitutional provisions, the legislature may still
enact legislation to facilitate the exercise of powers directly
granted by the constitution, further the operation of such a
provision, prescribe a practice to be used for its enforcement,
provide a convenient remedy for the protection of the rights
secured or the determination thereof, or place reasonable
safeguards around the exercise of the right. The mere fact that
legislation may supplement and add to or prescribe a penalty for
the violation of a self-executing constitutional provision does not
render such a provision ineffective in the absence of such
legislation. The omission from a constitution of any express
provision for a remedy for enforcing a right or liability is not
necessarily an indication that it was not intended to be self-
executing. The rule is that a self-executing provision of the
constitution does not necessarily exhaust legislative power on the
subject, but any legislation must be in harmony with the
constitution, further the exercise of constitutional right and make it
more available.   Subsequent legislation however does not
17
necessarily mean that the subject constitutional provision is not,
by itself, fully enforceable.
Respondents also argue that the non-self-executing nature of
Sec. 10, second par., of Art. XII is implied from the tenor of the
first and third paragraphs of the same section which undoubtedly
are not self-executing.   The argument is flawed. If the first and
18
third paragraphs are not self-executing because Congress is still
to enact measures to encourage the formation and operation of
enterprises fully owned by Filipinos, as in the first paragraph, and
the State still needs legislation to regulate and exercise authority
over foreign investments within its national jurisdiction, as in the
third paragraph, then a fortiori, by the same logic, the second
paragraph can only be self-executing as it does not by its
language require any legislation in order to give preference to
qualified Filipinos in the grant of rights, privileges and
concessions covering the national economy and patrimony. A
constitutional provision may be self-executing in one part and
non-self-executing in another.  19
Even the cases cited by respondents holding that certain
constitutional provisions are merely statements of principles and
policies, which are basically not self-executing and only placed in
the Constitution as moral incentives to legislation, not as judicially
On the other hand, Sec. 10, second par., Art. XII of the of the
1987 Constitution is a mandatory, positive command which is
complete in itself and which needs no further guidelines or
implementing laws or rules for its enforcement. From its very
words the provision does not require any legislation to put it in
operation. It is per se judicially enforceable When our
Constitution mandates that [i]n the grant of rights, privileges, and
concessions covering national economy and patrimony, the State
shall give preference to qualified Filipinos, it means just that —
qualified Filipinos shall be preferred. And when our Constitution
declares that a right exists in certain specified circumstances an
action may be maintained to enforce such right notwithstanding
the absence of any legislation on the subject; consequently, if
there is no statute especially enacted to enforce such
constitutional right, such right enforces itself by its own inherent
potency and puissance, and from which all legislations must take
their bearings. Where there is a right there is a remedy. Ubi jus ibi
remedium.
As regards our national patrimony, a member of the 1986
Constitutional Commission   explains —
34

enforceable rights — are simply not in point. Basco v. Philippine

Amusements and Gaming Corporation   speaks of constitutional
20
The patrimony of the Nation that should be
provisions on personal dignity,   the sanctity of family life,   the
21 22
conserved and developed refers not only to out
vital role of the youth in nation-building   the promotion of social
23
rich natural resources but also to the cultural
justice,   and the values of education.   Tolentino v. Secretary of
24 25
heritage of out race. It also refers to our
Finance   refers to the constitutional provisions on social justice
26
intelligence in arts, sciences and letters.
and human rights   and on education.   Lastly, Kilosbayan,
27 28
Therefore, we should develop not only our lands,
Inc. v. Morato   cites provisions on the promotion of general
29
forests, mines and other natural resources but
welfare,   the sanctity of family life,   the vital role of the youth in
30 31
also the mental ability or faculty of our people.
nation-building   and the promotion of total human liberation and
32

development.  A reading of these provisions indeed clearly shows

33
We agree. In its plain and ordinary meaning, the term patrimony
that they are not judicially enforceable constitutional rights but pertains to heritage.   When the Constitution speaks of national
35

merely guidelines for legislation. The very terms of the provisions patrimony, it refers not only to the natural resources of the
manifest that they are only principles upon which the legislations Philippines, as the Constitution could have very well used the
must be based. Res ipsa loquitur. term natural resources, but also to the cultural heritage of the
Filipinos.
Manila Hotel has become a landmark — a living testimonial of
Philippine heritage. While it was restrictively an American hotel
when it first opened in 1912, it immediately evolved to be truly
Filipino, Formerly a concourse for the elite, it has since then
become the venue of various significant events which have
hotel edifice stands. Consequently, we cannot sustain
respondents' claim that the Filipino First Policy provision is not
applicable since what is being sold is only 51% of the outstanding
shares of the corporation, not the Hotel building nor the land
upon which the building stands.  38

shaped Philippine history. It was called the Cultural Center of the

1930's. It was the site of the festivities during the inauguration of
the Philippine Commonwealth. Dubbed as the Official Guest
House of the Philippine Government. it plays host to dignitaries
and official visitors who are accorded the traditional Philippine
hospitality. 
36
The argument is pure sophistry. The term qualified Filipinos as
used in Our Constitution also includes corporations at least 60%
of which is owned by Filipinos. This is very clear from the
proceedings of the 1986 Constitutional Commission

THE PRESIDENT. Commissioner

The history of the hotel has been chronicled in the book The Davide is recognized.
Manila Hotel: The Heart and Memory of a City.  During World
37

War II the hotel was converted by the Japanese Military MR. DAVIDE. I would like to
Administration into a military headquarters. When the American introduce an amendment to the
forces returned to recapture Manila the hotel was selected by the Nolledo amendment. And the
Japanese together with Intramuros as the two (2) places fro their amendment would consist in
final stand. Thereafter, in the 1950's and 1960's, the hotel substituting the words
became the center of political activities, playing host to almost "QUALIFIED FILIPINOS" with the
every political convention. In 1970 the hotel reopened after a following: "CITIZENS OF THE
renovation and reaped numerous international recognitions, an PHILIPPINES OR
acknowledgment of the Filipino talent and ingenuity. In 1986 the CORPORATIONS OR
hotel was the site of a failed coup d' etat where an aspirant for ASSOCIATIONS WHOSE
vice-president was "proclaimed" President of the Philippine CAPITAL OR CONTROLLING
Republic. STOCK IS WHOLLY OWNED BY
SUCH CITIZENS.
For more than eight (8) decades Manila Hotel has bore mute
witness to the triumphs and failures, loves and frustrations of the x x x           x x x          x x x
Filipinos; its existence is impressed with public interest; its own
historicity associated with our struggle for sovereignty,
MR. MONSOD. Madam President,
independence and nationhood. Verily, Manila Hotel has become
apparently the proponent is
part of our national economy and patrimony. For sure, 51% of the
agreeable, but we have to raise a
equity of the MHC comes within the purview of the constitutional
question. Suppose it is a
shelter for it comprises the majority and controlling stock, so that
corporation that is 80-percent
anyone who acquires or owns the 51% will have actual control
Filipino, do we not give it
and management of the hotel. In this instance, 51% of the MHC
preference?
cannot be disassociated from the hotel and the land on which the
 MR. DAVIDE. The Nolledo
amendment would refer to an
individual Filipino. What about a
corporation wholly owned by
Filipino citizens?
MR. MONSOD. At least 60
percent, Madam President.
MR. DAVIDE. Is that the intention?
MR. MONSOD. Yes, because, in
fact, we would be limiting it if we
say that the preference should
only be 100-percent Filipino.
MR: DAVIDE. I want to get that
meaning clear because
"QUALIFIED FILIPINOS" may
refer only to individuals and not to
juridical personalities or entities.
MR. MONSOD. We agree, Madam
President.  39
x x x           x x x          x x x
MR. RODRIGO. Before we vote,
may I request that the amendment
be read again.
MR. NOLLEDO. The amendment
will read: "IN THE GRANT OF
RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE
NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO
QUALIFIED FILIPINOS." And the
word "Filipinos" here, as intended
by the proponents, will include not
only individual Filipinos but also
Filipino-controlled entities or
entities fully-controlled by
Filipinos. 
40
The phrase preference to qualified Filipinos was
explained thus —
MR. FOZ. Madam President, I
would like to request
Commissioner Nolledo to please
restate his amendment so that I
can ask a question.
MR. NOLLEDO. "IN THE GRANT
OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE
NATIONAL ECONOMY AND
PATRIMONY, THE STATE SHALL
GIVE PREFERENCE TO
QUALIFIED FILIPINOS."
MR FOZ. In connection with that
amendment, if a foreign enterprise
is qualified and a Filipino
enterprise is also qualified, will the
Filipino enterprise still be given a
preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more
qualified in some aspects than the
 Filipino enterprise, will the Filipino
still be preferred?
MR. NOLLEDO. The answer is
"yes."
MR. FOZ. Thank you,  41
Expounding further on the Filipino First Policy provision
Commissioner Nolledo continues —
MR. NOLLEDO. Yes, Madam President. Instead
of "MUST," it will be "SHALL — THE STATE
SHALL GlVE PREFERENCE TO QUALIFIED
FILIPINOS. This embodies the so-called "Filipino
First" policy. That means that Filipinos should be
given preference in the grant of concessions,
privileges and rights covering the national
patrimony. 42
The exchange of views in the sessions of the Constitutional
Commission regarding the subject provision was still further
clarified by Commissioner Nolledo   —
43
Paragraph 2 of Section 10 explicitly mandates the
"Pro-Filipino" bias in all economic concerns. It is
better known as the FILIPINO FIRST Policy . . .
This provision was never found in previous
Constitutions . . . .
The term "qualified Filipinos" simply means that
preference shall be given to those citizens who
can make a viable contribution to the common
good, because of credible competence and
efficiency. It certainly does NOT mandate the
pampering and preferential treatment to Filipino
citizens or organizations that are incompetent or
inefficient, since such an indiscriminate
preference would be counter productive and
inimical to the common good.
In the granting of economic rights, privileges, and
concessions, when a choice has to be made
between a "qualified foreigner" end a "qualified
Filipino," the latter shall be chosen over the
former."
Lastly, the word qualified is also determinable. Petitioner was so
considered by respondent GSIS and selected as one of
the qualified bidders. It was pre-qualified by respondent GSIS in
accordance with its own guidelines so that the sole inference here
is that petitioner has been found to be possessed of proven
management expertise in the hotel industry, or it has significant
equity ownership in another hotel company, or it has an overall
management and marketing proficiency to successfully operate
the Manila Hotel. 44
The penchant to try to whittle away the mandate of the
Constitution by arguing that the subject provision is not self-
executory and requires implementing legislation is quite
disturbing. The attempt to violate a clear constitutional provision
— by the government itself — is only too distressing. To adopt
such a line of reasoning is to renounce the duty to ensure
faithfulness to the Constitution. For, even some of the provisions
of the Constitution which evidently need implementing legislation
have juridical life of their own and can be the source of a judicial
remedy. We cannot simply afford the government a defense that
arises out of the failure to enact further enabling, implementing or
guiding legislation. In fine, the discourse of Fr. Joaquin G.
Bernas, S.J., on constitutional government is apt —
The executive department has a constitutional
duty to implement laws, including the Constitution,
even before Congress acts — provided that there
are discoverable legal standards for executive
 action. When the executive acts, it must be guided
by its own understanding of the constitutional
command and of applicable laws. The
responsibility for reading and understanding the
Constitution and the laws is not the sole
prerogative of Congress. If it were, the executive
would have to ask Congress, or perhaps the
Court, for an interpretation every time the
executive is confronted by a constitutional
command. That is not how constitutional
government operates.  45
Respondents further argue that the constitutional provision is
addressed to the State, not to respondent GSIS which by itself
possesses a separate and distinct personality. This argument
again is at best specious. It is undisputed that the sale of 51% of
the MHC could only be carried out with the prior approval of the
State acting through respondent Committee on Privatization. As
correctly pointed out by Fr. Joaquin G. Bernas, S.J., this fact
alone makes the sale of the assets of respondents GSIS and
MHC a "state action." In constitutional jurisprudence, the acts of
persons distinct from the government are considered "state
action" covered by the Constitution (1) when the activity it
engages in is a "public function;" (2) when the government is so
significantly involved with the private actor as to make the
government responsible for his action; and, (3) when the
government has approved or authorized the action. It is evident
that the act of respondent GSIS in selling 51% of its share in
respondent MHC comes under the second and third categories of
"state action." Without doubt therefore the transaction. although
entered into by respondent GSIS, is in fact a transaction of the
State and therefore subject to the constitutional command.  46
When the Constitution addresses the State it refers not only to
the people but also to the government as elements of the State.
After all, government is composed of three (3) divisions of power
— legislative, executive and judicial. Accordingly, a constitutional
mandate directed to the State is correspondingly directed to the
three(3) branches of government. It is undeniable that in this case
the subject constitutional injunction is addressed among others to
the Executive Department and respondent GSIS, a government
instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the
higher bid it is not yet the winning bidder. The bidding rules
expressly provide that the highest bidder shall only be declared
the winning bidder after it has negotiated and executed the
necessary contracts, and secured the requisite approvals. Since
the "Filipino First Policy provision of the Constitution bestows
preference on qualified Filipinos the mere tending of the highest
bid is not an assurance that the highest bidder will be declared
the winning bidder. Resultantly, respondents are not bound to
make the award yet, nor are they under obligation to enter into
one with the highest bidder. For in choosing the awardee
respondents are mandated to abide by the dictates of the 1987
Constitution the provisions of which are presumed to be known to
all the bidders and other interested parties.
Adhering to the doctrine of constitutional supremacy, the subject
constitutional provision is, as it should be, impliedly written in the
bidding rules issued by respondent GSIS, lest the bidding rules
be nullified for being violative of the Constitution. It is a basic
principle in constitutional law that all laws and contracts must
conform with the fundamental law of the land. Those which
violate the Constitution lose their reason for being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any
reason the Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to other Qualified Bidders that have
validly submitted bids provided that these Qualified Bidders are
willing to match the highest bid in terms of price per
share.   Certainly, the constitutional mandate itself is reason
47
enough not to award the block of shares immediately to the
foreign bidder notwithstanding its submission of a higher, or even
the highest, bid. In fact, we cannot conceive of a stronger reason
than the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in
a public bidding concerning the grant of rights, privileges and
concessions covering the national economy and patrimony,
thereby exceeding the bid of a Filipino, there is no question that
the Filipino will have to be allowed to match the bid of the foreign
entity. And if the Filipino matches the bid of a foreign firm the
award should go to the Filipino. It must be so if we are to give life
and meaning to the Filipino First Policy provision of the 1987
Constitution. For, while this may neither be expressly stated nor
contemplated in the bidding rules, the constitutional fiat is,
omnipresent to be simply disregarded. To ignore it would be to
sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy
may discourage foreign investors. But the Constitution and laws
of the Philippines are understood to be always open to public
scrutiny. These are given factors which investors must consider
when venturing into business in a foreign jurisdiction. Any person
therefore desiring to do business in the Philippines or with any of
its agencies or instrumentalities is presumed to know his rights
and obligations under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped
from questioning the sale to Renong Berhad since petitioner was
well aware from the beginning that a foreigner could participate in
the bidding is meritless. Undoubtedly, Filipinos and foreigners
alike were invited to the bidding. But foreigners may be awarded
the sale only if no Filipino qualifies, or if the qualified Filipino fails
to match the highest bid tendered by the foreign entity. In the
case before us, while petitioner was already preferred at the
inception of the bidding because of the constitutional mandate,
petitioner had not yet matched the bid offered by Renong Berhad.
Thus it did not have the right or personality then to compel
respondent GSIS to accept its earlier bid. Rightly, only after it had
matched the bid of the foreign firm and the apparent disregard by
respondent GSIS of petitioner's matching bid did the latter have a
cause of action.
Besides, there is no time frame for invoking the constitutional
safeguard unless perhaps the award has been finally made. To
insist on selling the Manila Hotel to foreigners when there is a
Filipino group willing to match the bid of the foreign group is to
insist that government be treated as any other ordinary market
player, and bound by its mistakes or gross errors of judgment,
regardless of the consequences to the Filipino people. The
miscomprehension of the Constitution is regrettable. Thus we
would rather remedy the indiscretion while there is still an
opportunity to do so than let the government develop the habit of
forgetting that the Constitution lays down the basic conditions and
parameters for its actions.
Since petitioner has already matched the bid price tendered by
Renong Berhad pursuant to the bidding rules, respondent GSIS is
left with no alternative but to award to petitioner the block of
shares of MHC and to execute the necessary agreements and
documents to effect the sale in accordance not only with the
bidding guidelines and procedures but with the Constitution as
well. The refusal of respondent GSIS to execute the
corresponding documents with petitioner as provided in the
bidding rules after the latter has matched the bid of the Malaysian
firm clearly constitutes grave abuse of discretion.
The Filipino First Policy is a product of Philippine nationalism. It is
embodied in the 1987 Constitution not merely to be used as a
guideline for future legislation but primarily to be enforced; so
must it be enforced. This Court as the ultimate guardian of the
Constitution will never shun, under any reasonable circumstance,
the duty of upholding the majesty of the Constitution which it is
tasked to defend. It is worth emphasizing that it is not the
intention of this Court to impede and diminish, much less
undermine, the influx of foreign investments. Far from it, the Court
encourages and welcomes more business opportunities but
avowedly sanctions the preference for Filipinos whenever such
preference is ordained by the Constitution. The position of the
Court on this matter could have not been more appropriately
articulated by Chief Justice Narvasa —
 As scrupulously as it has tried to observe that it is
not its function to substitute its judgment for that of
the legislature or the executive about the wisdom
and feasibility of legislation economic in nature,
the Supreme Court has not been spared criticism
for decisions perceived as obstacles to economic
progress and development . . . in connection with
a temporary injunction issued by the Court's First
Division against the sale of the Manila Hotel to a
Malaysian Firm and its partner, certain statements
were published in a major daily to the effect that
injunction "again demonstrates that the Philippine
legal system can be a major obstacle to doing
business here.
Let it be stated for the record once again that
while it is no business of the Court to intervene in
contracts of the kind referred to or set itself up as
the judge of whether they are viable or attainable,
it is its bounden duty to make sure that they do
not violate the Constitution or the laws, or are not
adopted or implemented with grave abuse of
discretion amounting to lack or excess of
jurisdiction. It will never shirk that duty, no matter
how buffeted by winds of unfair and ill-informed
criticism. 
48
Privatization of a business asset for purposes of enhancing its
business viability and preventing further losses, regardless of the
character of the asset, should not take precedence over non-
material values. A commercial, nay even a budgetary, objective
should not be pursued at the expense of national pride and
dignity. For the Constitution enshrines higher and nobler non-
material values. Indeed, the Court will always defer to the
Constitution in the proper governance of a free society; after all,
there is nothing so sacrosanct in any economic policy as to draw
itself beyond judicial review when the Constitution is involved.  49
Nationalism is inherent, in the very concept of the Philippines
being a democratic and republican state, with sovereignty
residing in the Filipino people and from whom all government
authority emanates. In nationalism, the happiness and welfare of
the people must be the goal. The nation-state can have no higher
purpose. Any interpretation of any constitutional provision must
adhere to such basic concept. Protection of foreign investments,
while laudible, is merely a policy. It cannot override the demands
of nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not just
any commodity to be sold to the highest bidder solely for the sake
of privatization. We are not talking about an ordinary piece of
property in a commercial district. We are talking about a historic
relic that has hosted many of the most important events in the
short history of the Philippines as a nation. We are talking about a
hotel where heads of states would prefer to be housed as a
strong manifestation of their desire to cloak the dignity of the
highest state function to their official visits to the Philippines. Thus
the Manila Hotel has played and continues to play a significant
role as an authentic repository of twentieth century Philippine
history and culture. In this sense, it has become truly a reflection
of the Filipino soul — a place with a history of grandeur; a most
historical setting that has played a part in the shaping of a
country. 51
This Court cannot extract rhyme nor reason from the determined
efforts of respondents to sell the historical landmark — this Grand
Old Dame of hotels in Asia — to a total stranger. For, indeed, the
conveyance of this epic exponent of the Filipino psyche to alien
hands cannot be less than mephistophelian for it is, in whatever
manner viewed, a veritable alienation of a nation's soul for some
pieces of foreign silver. And so we ask: What advantage, which
cannot be equally drawn from a qualified Filipino, can be gained
by the Filipinos Manila Hotel — and all that it stands for — is sold
to a non-Filipino? How much of national pride will vanish if the
nation's cultural heritage is entrusted to a foreign entity? On the
other hand, how much dignity will be preserved and realized if the
national patrimony is safekept in the hands of a qualified, zealous
and well-meaning Filipino? This is the plain and simple meaning
of the Filipino First Policy provision of the Philippine Constitution.
And this Court, heeding the clarion call of the Constitution and
accepting the duty of being the elderly watchman of the nation,
will continue to respect and protect the sanctity of the
Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE
INSURANCE SYSTEM, MANILA HOTEL CORPORATION,
COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL are directed to
CEASE and DESIST from selling 51% of the shares of the Manila
Hotel Corporation to RENONG BERHAD, and to ACCEPT the
matching bid of petitioner MANILA PRINCE HOTEL
CORPORATION to purchase the subject 51% of the shares of
the Manila Hotel Corporation at P44.00 per share and thereafter
to execute the necessary clearances and to do such other acts
and deeds as may be necessary for purpose.
SO ORDERED.
Regalado, Davide, Jr., Romero, Kapunan, Francisco and
Hermosisima, Jr., JJ., concur.  belongs to the Filipino people, the tangible and the material as
Separate Opinions
PADILLA, J., concurring:
I concur with the ponencia of Mr. Justice Bellosillo. At the same
time, I would like to expound a bit more on the concept of national
patrimony as including within its scope and meaning institutions
such as the Manila Hotel.
It is argued by petitioner that the Manila Hotel comes under
"national patrimony" over which qualified Filipinos have the
preference, in ownership and operation. The Constitutional
provision on point states:
xxx xxx xxx
In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the
State shall Give preference to qualified Filipinos. 1
Petitioner's argument, I believe, is well taken. Under the 1987
Constitution, "national patrimony" consists of the natural
resources provided by Almighty God (Preamble) in our territory
(Article I) consisting of land, sea, and air. study of the 1935
2
Constitution, where the concept of "national patrimony"
originated, would show that its framers decided to adopt the even
more comprehensive expression "Patrimony of the Nation" in the
belief that the phrase encircles a concept embracing not only their
natural resources of the country but practically everything that
well as the intangible and the spiritual assets and possessions of
the people. It is to be noted that the framers did not stop with
conservation. They knew that conservation alone does not spell
progress; and that this may be achieved only through
development as a correlative factor to assure to the people not
only the exclusive ownership, but also the exclusive benefits of
their national patrimony).
3
Moreover, the concept of national patrimony has been viewed as
referring not only to our rich natural resources but also to the
cultural heritage of our
race.4
There is no doubt in my mind that the Manila Hotel is very much a
part of our national patrimony and, as such, deserves
constitutional protection as to who shall own it and benefit from its
operation. This institution has played an important role in our
nation's history, having been the venue of many a historical
event, and serving as it did, and as it does, as the Philippine
Guest House for visiting foreign heads of state, dignitaries,
celebrities, and others.5
It is therefore our duty to protect and preserve it for future
generations of Filipinos. As President Manuel L. Quezon once
said, we must exploit the natural resources of our country, but we
should do so with. an eye to the welfare of the future generations.
In other words, the leaders of today are the trustees of the
patrimony of our race. To preserve our national patrimony and
reserve it for Filipinos was the intent of the distinguished
gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources,
one expounded that we should "put more teeth into our laws, and;
not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment"  To
6
quote further: "Let not our children be mere tenants and
trespassers in their own country. Let us preserve and bequeath to
them what is rightfully theirs, free from all foreign liens and
encumbrances". 7
Now, a word on preference. In my view "preference to qualified
Filipinos", to be meaningful, must refer not only to things that are
peripheral, collateral, or tangential. It must touch and affect the
very "heart of the existing order." In the field of public bidding in
the acquisition of things that pertain to the national patrimony,
preference to qualified Filipinos must allow a qualified Filipino to
match or equal the higher bid of a non-Filipino; the preference
shall not operate only when the bids of the qualified Filipino and
the non-Filipino are equal in which case, the award should
undisputedly be made to the qualified Filipino. The Constitutional
preference should give the qualified Filipino an opportunity to
match or equal the higher bid of the non-Filipino bidder if the
preference of the qualified Filipino bidder is to be significant at all.
It is true that in this present age of globalization of attitude
towards foreign investments in our country, stress is on the
elimination of barriers to foreign trade and investment in the
country. While government agencies, including the courts should
re-condition their thinking to such a trend, and make it easy and
even attractive for foreign investors to come to our shores, yet we
should not preclude ourselves from reserving to us Filipinos
certain areas where our national identity, culture and heritage are
involved. In the hotel industry, for instance, foreign investors have
established themselves creditably, such as in the Shangri-La, the
Nikko, the Peninsula, and Mandarin Hotels. This should not stop
us from retaining 51% of the capital stock of the Manila Hotel
Corporation in the hands of Filipinos. This would be in keeping
with the intent of the Filipino people to preserve our national
patrimony, including our historical and cultural heritage in the
hands of Filipinos.
VITUG, J., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut
statements, shared by Mr. Justice Reynato S. Puno in a well
written separate (dissenting) opinion, that:
First, the provision in our fundamental law which provides that
"(I)n the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give preference
to qualified Filipinos"  is self-executory. The provision verily does
1
not need, although it can obviously be amplified or regulated by,
an enabling law or a set of rules.
Second, the term "patrimony" does not merely refer to the
country's natural resources but also to its cultural heritage. A
"historical landmark," to use the words of Mr. Justice Justo P.
Torres, Jr., Manila Hotel has now indeed become part of
Philippine heritage.
Third, the act of the Government Service Insurance System
("GSIS"), a government entity which derives its authority from the
State, in selling 51% of its share in MHC should be considered an
act of the State subject to the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified
Filipinos," I find it somewhat difficult to take the same path
traversed by the forceful reasoning of Justice Puno. In the
particular case before us, the only meaningful preference, it
seems, would really be to allow the qualified Filipino to match the
foreign bid for, as a particular matter, I cannot see any bid that
literally calls for millions of dollars to be at par (to the last cent)
with another. The magnitude of the magnitude of the bids is such
that it becomes hardly possible for the competing bids to stand
exactly "equal" which alone, under the dissenting view, could
trigger the right of preference.
It is most unfortunate that Renong Berhad has not been spared
this great disappointment, a letdown that it did not deserve, by a
simple and timely advise of the proper rules of bidding along with
the peculiar constitutional implications of the proposed
transaction. It is also regrettable that the Court at time is seen, to
instead, be the refuge for bureaucratic inadequate which create
the perception that it even takes on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J., concurring in the judgment:
I take the view that in the context of the present controversy the
only way to enforce the constitutional mandate that "[i]n the grant
of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos"  is
1
to allow petitioner Philippine corporation to equal the bid of the
Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the
only way a qualified Filipino of Philippine corporation can be
given preference in the enjoyment of a right, privilege or
concession given by the State, by favoring it over a foreign
national corporation.
Under the rules on public bidding of the Government Service and
Insurance System, if petitioner and the Malaysian firm had offered
the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC,"  so that petitioner
2
bid for more shares, it would be preferred to the Malaysian
corporation for that reason and not because it is a Philippine
corporation. Consequently, it is only in cases like the present one,
where an alien corporation is the highest bidder, that preferential
treatment of the Philippine corporation is mandated not by
declaring it winner but by allowing it "to match the highest bid in
terms of price per share" before it is awarded the shares of
stocks.  That, to me, is what "preference to qualified Filipinos"
3
means in the context of this case — by favoring Filipinos
whenever they are at a disadvantage vis-a-vis foreigners.
This was the meaning given in Co Chiong v. Cuaderno  to a 1947
4
statute giving "preference to Filipino citizens in the lease of public
market stalls."  This Court upheld the cancellation of existing
5
leases covering market stalls occupied by persons who were not
Filipinos and the award thereafter of the stalls to qualified Filipino
vendors as ordered by the Department of Finance. Similarly,
in Vda. de Salgado v. De la Fuente,  this Court sustained the
6
validity of a municipal ordinance passed pursuant to the statute
(R.A. No. 37), terminating existing leases of public market stalls
and granting preference to Filipino citizens in the issuance of new
licenses for the occupancy of the stalls. In Chua Lao
v. Raymundo,  the preference granted under the statute was held
7
to apply to cases in which Filipino vendors sought the same stalls
occupied by alien vendors in the public markets even if there
were available other stalls as good as those occupied by aliens.
"The law, apparently, is applicable whenever there is a conflict of
interest between Filipino applicants and aliens for lease of stalls
in public markets, in which situation the right to preference
immediately arises." 8
Our legislation on the matter thus antedated by a quarter of a
century efforts began only in the 1970s in America to realize the
promise of equality, through affirmative action and reverse
discrimination programs designed to remedy past discrimination
against colored people in such areas as employment, contracting
and licensing.  Indeed, in vital areas of our national economy,
9 will not be allowed to match the highest bid of the foreign firm
there are situations in which the only way to place Filipinos in
control of the national economy as contemplated in the
Constitution   is to give them preferential treatment where they
10
can at least stand on equal footing with aliens.
There need be no fear that thus preferring Filipinos would either
invite foreign retaliation or deprive the country of the benefit of
foreign capital or know-how. We are dealing here not with
common trades of common means of livelihood which are open to
aliens in our midst,   but with the sale of government property,
11
which is like the grant of government largess of benefits and
concessions covering the national economy" and therefore no
one should begrudge us if we give preferential treatment to our
citizens. That at any rate is the command of the Constitution. For
the Manila Hotel is a business owned by the Government. It is
being privatized. Privatization should result in the relinquishment
of the business in favor of private individuals and groups who are
Filipino citizens, not in favor of aliens.
Nor should there be any doubt that by awarding the shares of
stocks to petitioner we would be trading competence and
capability for nationalism. Both petitioner and the Malaysian firm
are qualified, having hurdled the prequalification process.   It is
12
only the result of the public bidding that is sought to be modified
by enabling petitioner to up its bid to equal the highest bid.
Nor, finally, is there any basis for the suggestion that to allow a
Filipino bidder to match the highest bid of an alien could
encourage speculation, since all that a Filipino entity would then
do would be not to make a bid or make only a token one and,
after it is known that a foreign bidder has submitted the highest
bid, make an offer matching that of the foreign firm. This is not
possible under the rules on public bidding of the GSIS. Under
these rules there is a minimum bid required (P36.87 per share for
a range of 9 to 15 million shares).   Bids below the minimum will
13
not be considered. On the other hand, if the Filipino entity, after
passing the prequalification process, does not submit a bid, he
because this is a privilege allowed only to those who have "validly
submitted bids."   The suggestion is, to say the least, fanciful and
14
has no basis in fact.
For the foregoing reasons, I vote to grant the petition.
TORRES, JR., J., separate opinion:
Constancy in law is not an attribute of a judicious mind. I say this
as we are not confronted in the case at bar with legal and
constitutional issues — and yet I am driven so to speak on the
side of history. The reason perhaps is due to the belief that in the
words of Justice Oliver Wendell Holmes, Jr., a "page of history is
worth a volume of logic."
I will, however, attempt to share my thoughts on whether the
Manila Hotel has a historical and cultural aspect within the
meaning of the constitution and thus, forming part of the
"patrimony of the nation".
Section 10, Article XII of the 1987 Constitution provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.
 The State shall regulate and exercise authority will include not
over foreign investments within its national goals only individual
and priorities. Filipinos but also
Filipino-Controlled
The foregoing provisions should be read in conjunction with entities fully
Article II of the same Constitution pertaining to "Declaration of controlled by
Principles and State Policies" which ordain — Filipinos (Vol. III,
Records of the
The State shall develop a self-reliant and Constitutional
independent national economy effectively by Commission, p.
Filipinos. (Sec. 19). 608).

Interestingly, the matter of giving preference to "qualified MR. MONSOD.

Filipinos" was one of the highlights in the 1987 Constitution We also wanted to
Commission proceedings thus: add, as
Commissioner
Villegas said, this
x x x           x x x          x x x
committee and this
body already
MR. NOLLEDO. approved what is
The Amendment known as the
will read: "IN THE Filipino First policy
GRANT OF which was
RIGHTS, suggested by
PRIVILEGES AND Commissioner de
CONCESSIONS Castro. So that it is
COVERING THE now in our
NATIONAL Constitution (Vol.
ECONOMY AND IV, Records of the
PATRIMONY, THE Constitutional
STATE SHALL Commission, p.
GIVE 225).
PREFERENCE TO
QUALIFIED
Commissioner Jose Nolledo explaining the
FILIPINOS". And
provision adverted to above, said:
the word "Filipinos"
here, as intended
by the proponents, MR. NOLLEDO. In
the grant of rights,
privileges and the Constitutional
concessions Commission).
covering the
national economy The nationalistic provisions of the 1987 Constitution reflect the
and patrimony, the history and spirit of the Malolos Constitution of 1898, the 1935
State shall give Constitution and the 1973 Constitutions. That we have no
preference to reneged on this nationalist policy is articulated in one of the
qualified Filipinos. earliest case, this Court said —

MR. FOZ. In The nationalistic tendency is manifested in various

connection with provisions of the Constitution. . . . It cannot
that amendment, if therefore be said that a law imbued with the same
a foreign purpose and spirit underlying many of the
enterprise is provisions of the Constitution is unreasonable,
qualified and the invalid or unconstitutional (Ichong, et al. vs.
Filipinos enterprise Hernandez, et al., 101 Phil. 1155).
is also qualified,
will the Filipino I subscribe to the view that history, culture, heritage, and
enterprise still be traditions are not legislated and is the product of events, customs,
given a usages and practices. It is actually a product of growth and
preference? acceptance by the collective mores of a race. It is the spirit and
soul of a people.
MR. NOLLEDO.
Obviously. The Manila Hotel is part of our history, culture and heritage. Every
inch of the Manila Hotel is witness to historic events (too
MR. FOZ. If the numerous to mention) which shaped our history for almost 84
foreigner is more years.
qualified in some
aspects than the As I intimated earlier, it is not my position in this opinion, to
Filipino enterprise, examine the single instances of the legal largese which have
will the Filipino still given rise to this controversy. As I believe that has been
be preferred:? exhaustively discussed in the ponencia. Suffice it to say at this
point that the history of the Manila Hotel should not be placed in
MR. NOLLEDO. the auction block of a purely business transaction, where profits
The answer is subverts the cherished historical values of our people.
"yes". (Vol. III, p.
616, Records of
As a historical landmark in this "Pearl of the Orient Seas", it has
its enviable tradition which, in the words of the philosopher
Salvador de Madarriaga tradition is "more of a river than a stone,
it keeps flowing, and one must view the flowing , and one must
view the flow of both directions. If you look towards the hill from
which the river flows, you see tradition in the form of forceful
currents that push the river or people towards the future, and if
you look the other way, you progress."
Indeed, tradition and progress are the same, for progress
depends on the kind of tradition. Let us not jettison the tradition of
the Manila Hotel and thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in
different lights.
I remember, however, a Spanish proverb which says — "He is
always right who suspects that he makes mistakes". On this note,
I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his
own land.
I vote GRANT the petition.
 
PUNO, J., dissenting:
This is a. petition for prohibition and mandamus filed by the
Manila Prince Hotel Corporation, a domestic corporation, to stop
the Government Service Insurance System (GSIS) from selling
the controlling shares of the Manila Hotel Corporation to a foreign
corporation. Allegedly, the sale violates the second paragraph of
section 10, Article XII of the Constitution.
Respondent GSIS is a government-owned and controlled
corporation. It is the sole owner of the Manila Hotel which it
operates through its subsidiary, the Manila Hotel Corporation.
Manila Hotel was included in the privatization program of the
government. In 1995, GSIS proposed to sell to interested buyers
30% to 51% of its shares, ranging from 9,000,000 to 15,300,000
shares, in the Manila Hotel Corporation. After the absence of bids
at the first public bidding, the block of shares offered for sale was
increased from a maximum of 30% to 51%. Also, the winning
bidder, or the eventual "strategic partner" of the GSIS was
required to "provide management expertise and/or an
international marketing/reservation system, and financial support
to strengthen the profitability and performance of the Manila
Hotel"  The proposal was approved by respondent Committee on
1
Privatization.
In July 1995, a conference was held where prequalification
documents and the bidding rules were furnished interested
parties. Petitioner Manila Prince Hotel, a domestic corporation,
and Renong Berhad, Malaysian firm with ITT Sheraton as
operator, prequalified.2
The bidding rules and procedures entitled "Guidelines and
Procedures: Second Prequalification and Public Bidding of the
MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING
BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth
below will be declared the Winning
Bidder/Strategic Partner and will be awarded the
Block of Shares:
First — Pass the prequalification process;
Second — Submit the highest bid on a price per
share basis for the Block of Shares;
Third — Negotiate and execute the necessary
contracts with GSIS/MHC not later than October
23, 1995;
xxx xxx xxx
IV GUIDELINES FOR PREQUALIFICATION
A. PARTIES WHO MAP APPLY
FOR PREQUALIFICATION
The Winning Bidder/Strategic
Partner will be expected to provide
management expertise and/or an
international marketing reservation
system, and financial support to
strengthen the profitability and
performance of The Manila Hotel.
In this context, the GSIS is inviting
to the prequalification process any
local and/or foreign corporation,
consortium/joint venture or juridical
entity with at least one of the
following qualifications:
a. Proven
management
.expertise in the
hotel industry; or
b. Significant
equity ownership
(i.e. board
representation) in
another hotel
company; or
c. Overall
management and
marketing
expertise to
successfully
operate the Manila
Hotel.
Parties interested in bidding for
MHC should be able to provide
access to the requisite
management expertise and/or
international marketing/reservation
system for The Manila Hotel.
xxx xxx xxx
D. PREQUALIFICATION DOCUMENTS 
xxx xxx xxx
E. APPLICATION PROCEDURE
1. DOCUMENTS AVAILABLE AT
THE REGISTRATION OFFICE
The prequalification documents
can be secured at the Registration
Office between 9:00 AM to 4:00
PM during working days within the
period specified in Section III.
Each set of documents consists of
the following:
 a. Guidelines and Applicant will not be penalized if it
Procedures: does not attend.
Second
Prequalification 5. SUBMISSION OF PREQUALIFICATION
and Public Bidding DOCUMENTS
of the MHC
Privatization The applicant should submit 5 sets
of the prequalification documents
b. Confidential (1 original set plus 4 copies) at the
Information Registration Office between 9:00
Memorandum: The AM to 4:00 PM during working
Manila Hotel days within the period specified in
Corporation Section III.

c. Letter of F. PREQUALIFICATION PROCESS

Invitation. to the
Prequalification 1. The Applicant
and Bidding will be evaluated
Conference by the PBAC with
the assistance of
xxx xxx xxx the TEC based on
the Information
4. PREQUALIFICATION AND BIDDING Package and other
CONFERENCE information
available to the
A prequalification and bidding PBAC.
conference will be held at The
Manila Hotel on the date specified 2. If the Applicant
in Section III to allow the Applicant is a
to seek clarifications and further Consortium/Joint
information regarding the Venture, the
guidelines and procedures. Only evaluation will
those who purchased the consider the
prequalification documents will be overall
allowed in this conference. qualifications of the
Attendance to this conference is group, taking into
strongly advised, although the account the
contribution of b.
each member to Fin
the venture. anc
ial
3. The decision of cap
the PBAC with abil
respect to the ity.
results of the
PBAC evaluation c.
will be final. Fea
sibil
4. The Applicant ity
shall be evaluated and
according to the acc
criteria set forth ept
below: abil
ity
a. of
Bus the
ine pro
ss pos
ma ed
nag stra
em tegi
ent c
exp pla
erti n
se, for
trac the
k Ma
rec nila
ord, Hot
and el
exp
erie 5. The PBAC will shortlist such
nce number of Applicants as it may
deem appropriate.
6. The parties that prequalified in
the first MHC public bidding — ITT
Sheraton, Marriot International
Inc., Renaissance Hotels
International Inc., consortium of
RCBC Capital/Ritz Carlton — may
participate in the Public Bidding
without having to undergo the
prequalification process again.
G. SHORTLIST OF QUALIFIED
BIDDERS
1. A notice of prequalification
results containing the shortlist of
Qualified Bidders will be posted at
the Registration Office at the date
specified in Section III.
2. In the case of a
Consortium/Joint Venture, the
withdrawal by member whose
qualification was a material
consideration for being included in
the shortlist is ground for
disqualification of the Applicant.
V. GUIDELINES FOR THE
PUBLIC BIDDING
A. PARTIES WHO MAY
PARTICIPATE IN THE PUBLIC
BIDDING
All parties in the shortlist of
Qualified Bidders will be eligible to
participate in the Public Bidding.
B. BLOCK OF SHARES
A range of Nine Million (9,000,000)
to Fifteen Million Three Hundred
Thousand (15,300,000) shares of
stock representing Thirty Percent
to Fifty-One Percent (30%-51%) of
the issued and outstanding shares
of MHC, will be offered in the
Public Bidding by the GSIS. The
Qualified Bidders will have the
Option of determining the number
of shares within the range to bid
for. The range is intended to
attract bidders with different
preferences and objectives for the
operation and management of The
Manila Hotel.
C. MINIMUM BID REQUIRED ON
A PRICE PER SHARE BASIS
1. Bids will be evaluated on
a price per share basis. The
minimum bid required on a price
per share basis for the Block of
Shares is Thirty-Six Pesos and
Sixty-Seven Centavos (P36.67).
2. Bids should be in the Philippine
currency payable to the GSIS.
3. Bids submitted with an
equivalent price per share below
the minimum required will not
considered.
 D. TRANSFER COSTS
x x x           x x x          x x x
E. OFFICIAL BID FORM
1. Bids must be contained in the
prescribed Official Bid Form, a
copy of which is attached as
Annex IV. The Official Bid Form
must be properly accomplished in
all details; improper
accomplishment may be a
sufficient basis for disqualification.
2. During the Public Bidding, the
Qualified Bidder will submit the
Official Bid Form, which will
indicate the offered purchase
price, in a sealed envelope
marked "OFFICIAL BID."
F. SUPPORTING DOCUMENTS
During the Public Bidding, the
following documents should be
submitted along with the bid in a
separate envelop marked
"SUPPORTING DOCUMENTS":
1. WRITTEN AUTHORITY TO BID
(UNDER OATH).
If the Qualified Bidder is a
corporation, the representative of
the Qualified Bidder should submit
a Board resolution which
adequately authorizes such
representative to bid for and in
behalf of the corporation with full
authority to perform such acts
necessary or requisite to bind the
Qualified Bidder.
If the Qualified Bidder is a
Consortium/Joint Venture, each
member of the Consortium/Joint
venture should submit a Board
resolution authorizing one of its
members and such member's
representative to make the bid on
behalf of the group with full
authority to perform such acts
necessary or requisite to bind the
Qualified Bidder.
2. BID SECURITY
a. The Qualified Bidder should
deposit Thirty-Three Million Pesos
(P33,000,00), in Philippine
currency as Bid Security in the
form of:
i. Manager's check
or unconditional
demand draft
payable to the
"Government
Service Insurance
System" and
issued by a
reputable banking
institution duly
licensed to do
 business in the e. The Bid Security of the Qualified
Philippines and Bidder will be returned
acceptable to immediately after the Public
GSIS; or Bidding if the Qualified Bidder is
not declared the Highest Bidder.
ii. Standby-by letter
of credit issued by f. The Bid Security will be returned
a reputable by October 23, 1995 if the Highest
banking institution Bidder is unable to negotiate and
acceptable to the execute with GSIS/MHC the
GSIS. Management Contract,
International
b. The GSIS will reject a bid if: Marketing/Reservation System
Contract or other types of contract
i. The bid does not specified by the Highest Bidder in
have Bid Security; its strategic plan for The Manila
or Hotel.

ii. The Bid Security g. The Bid Security of the Highest

accompanying the Bidder will be forfeited in favor of
bid is for less than GSIS if the Highest Bidder, after
the required negotiating and executing the
amount. Management Contract,
International
Marketing/Reservation System
c. If the Bid Security is in the form
Contract specified by the Highest
of a manager's check or
Bidder or other types of contract in
unconditional demand draft, the
its strategic plan for The Manila
interest earned on the Bid Security
Hotel, fails or refuses to:
will be for the account of GSIS.
i. Execute the
d. If the Qualified Bidder becomes
Stock Purchase
the winning Bidder/Strategic
and Sale
Partner, the Bid Security will be
Agreement with
applied as the downpayment on
GSIS not later than
the Qualified Bidder's offered
October 23, 1995;
purchase price.
or
 ii. Pay the full
amount of the
offered purchase
price not later than
October 23, 1995;
or
iii. Consummate
the sale of the
Block of Shares for
any other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held
on September 7, 1995 at the
following location:
New GSIS Headquarters Building
Financial Center, Reclamation
Area
Roxas Boulevard, Pasay City,
Metro Manila.
2. The Secretariat of the PBAC will
be stationed at the Public Bidding
to accept any and all bids and
supporting requirements.
Representatives from the
Commission on Audit and COP
will be invited to witness the
proceedings.
3. The Qualified Bidder should
submit its bid using the Official Bid
Form. The accomplished Official
Bid Form should be submitted in a
sealed envelope marked
"OFFICIAL BID."
4. The Qualified Bidder should
submit the following documents
in another sealed envelope
marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority
Bid
b. Bid Security
5. The two sealed envelopes
marked "OFFICIAL BID" and
"SUPPORTING BID
DOCUMENTS" must be submitted
simultaneously to the Secretariat
between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the
date of the Public Bidding. No bid
shall be accepted after the closing
time. Opened or tampered bids
shall not be accepted.
6. The Secretariat will log and
record the actual time of
submission of the two sealed
envelopes. The actual time of
submission will also be indicated
by the Secretariat on the face of
the two envelopes.
7. After Step No. 6, the two sealed
envelopes will be dropped in the
corresponding bid boxes provided
for the purpose. These boxes will basis. In the event of a tie wherein
be in full view of the invited public. two or more bids have the same
equivalent price per share, priority
H. OPENING AND READING OF will be given to the bidder seeking
BIDS the larger ownership interest in
MHC.
1. After the closing time of 2:00
PM on the date of the Public 5. The Public Bidding will be
Bidding, the PBAC will open all declared a failed bidding in case:
sealed envelopes marked
"SUPPORTING BID a. No single bid is
DOCUMENTS" for screening, submitted within
evaluation and acceptance. Those the prescribed
who submitted period; or
incomplete/insufficient documents
or document/s which is/are not b. There is only
substantially in the form required one (1) bid that is
by PBAC will be disqualified. The submitted and
envelope containing their Official acceptable to the
Bid Form will be immediately PBAC.
returned to the disqualified
bidders. I. EXECUTION OF THE
NECESSARY CONTRACTS
2. The sealed envelopes marked WITH GSIS/MHC
"OFFICIAL BID" will be opened at
3:00 PM. The name of the bidder 1. The Highest Bidder must
and the amount of its bid price will comply with the conditions set
be read publicly as the envelopes forth below by October 23, 1995 or
are opened. the Highest Bidder will lose the
right to purchase the Block of
3. Immediately following the Shares and GSIS will instead offer
reading of the bids, the PBAC will the Block of Shares to the other
formally announce the highest bid Qualified Bidders:
and the Highest Bidder.
a. The Highest
4. The highest bid will be, Bidder must
determined on a price per share negotiate and
execute with process is
GSIS/MHC the completed.
Management
Contract, 2. In the event that the Highest
International Bidder chooses a Management
Marketing Contract for The Manila Hotel, the
Reservation maximum levels for the
System Contract or management fee structure that
other type of GSIS/MHC are prepared to accept
contract specified in the Management Contract are
by the Highest as follows:
Bidder in its
strategic plan for a. Basic
The Manila Hotel. management fee:
If the Highest Maximum of 2.5%
Bidder is intending of gross revenues.
to provide only (1)
financial support to
The Manila Hotel,
b. Incentive fee:
a separate
Maximum of 8.0%
institution may
of gross operating
enter into the
profit(1) after
aforementioned
deducting
contract/s with
undistributed
GSIS/MHC.
overhead
expenses and the
b. The Highest basic management
Bidder must fee.
execute the Stock
Purchase and Sale
c. Fixed
Agreement with
component of the
GSIS, a copy of
international
which will be
marketing/reservati
distributed to each
on system fee:
of the Qualified
Maximum of 2.0%
Bidder after the
of gross room
prequalification
revenues.(1) The
Applicant should
 indicate in its
Information
Package if it is
wishes to charge
this fee.
Note (1): As defined in the uniform
system of account for hotels.
The GSIS/MHC have indicated
above the acceptable parameters
for the hotel management fees to
facilitate the negotiations with the
Highest Bidder for the
Management Contract after the
Public Bidding.
A Qualified Bidder envisioning a
Management Contract for The
Manila Hotel should determine
whether or not the management
fee structure above is acceptable
before submitting their
prequalification documents to
GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED
BIDDERS
1. If for any reason, the Highest
Bidder cannot be awarded the
Block of Shares, GSIS may offer
this to the other Qualified Bidders
that have validly submitted bids
provided that these Qualified are
willing to match the highest bid in
terms of price per share.
2. The order of priority among the
interested Qualified Bidders will be
in accordance wit the
equivalent price per share of their
respective bids in their public
Bidding, i.e., first and second
priority will be given to the
Qualified Bidders that submitted
the second and third highest bids
on the price per share basis,
respectively, and so on.
K. DECLARATION OF THE
WINNING BIDDER/STRATEGIC
PARTNER 
The Highest Bidder will be
declared the Winning
Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the
necessary contract
with GSIS/MHC
not later than
October 23, 1995;
and
b. Requisite
approvals from the
GSIS/MHC and
COP/OGCC are
obtained.
I. FULL PAYMENT FOR THE
BLOCK OF SHARES
1. Upon execution of the
necessary contracts with
GSIS/MHC, the Winning
Bidder/Strategic Partner must fully
pay, not later than October 23,
1995, the offered purchase price
for the Block of Shares after
deducting the Bid Security applied
as downpayment.
2. All payments should be made in
the form of a Manager's Check or
unconditional Demand Draft,
payable to the "Government
Service Insurance System," issued
by a reputable banking institution
licensed to do business in the
Philippines and acceptable to
GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally
reserves the right to reject any or
all applications, waive any
formality therein, or accept such
application as maybe considered
most advantageous to the GSIS.
The GSIS similarly reserves the
right to require the submission of
any additional information from the
Applicant as the PBAC may deem
necessary.
2. The GSIS further reserves the
right to call off the Public Bidding
prior to acceptance of the bids and
call for a new public bidding under
amended rules, and without any
liability whatsoever to any or all
the Qualified Bidders, except the
obligation to return the Bid
Security.
3. The GSIS reserves the right to
reset the date of the
prequalification/bidding
conference, the deadline for the
submission of the prequalification
documents, the date of the Public
Bidding or other pertinent activities
at least three (3) calendar days
prior to the respective
deadlines/target dates.
4. The GSIS sells only whatever
rights, interest and participation it
has on the Block of Shares.
5. All documents and materials
submitted by the Qualified
Bidders, except the Bid Security,
may be returned upon request.
6. The decision of the PBAC/GSIS
on the results of the Public Bidding
is final. The Qualified Bidders, by
participating in the Public Bidding,
are deemed to have agreed to
accept and abide by these results.
7. The GSIS will be held free and
harmless form any liability, suit or
allegation arising out of the Public
Bidding by the Qualified Bidders
 who have participated in the Public
Bidding.3
The second public bidding was held on September 18, 1995.
Petitioner bidded P41.00 per share for 15,300,000 shares and
Renong Berhad bidded P44.00 per share also for 15,300,000
shares. The GSIS declared Renong Berhad the highest bidder
and immediately returned petitioner's bid security.
On September 28, 1995, ten days after the bidding, petitioner
wrote to GSIS offering to match the bid price of Renong Berhad.
It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a
manager's check for thirty-three million pesos (P33,000,000.00)
as bid security.
Respondent GSIS, then in the process of negotiating with
Renong Berhad the terms and conditions of the contract and
technical agreements in the operation of the hotel, refused to
entertain petitioner's request.
Hence, petitioner filed the present petition. We issued a
temporary restraining order on October 18, 1995.
Petitioner anchors its plea on the second paragraph of Article XII,
Section 10 of the Constitution  on the "National Economy and
4
Patrimony" which provides:  substantial foundation and general framework of the law and
xxx xxx xxx
In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII
of the Constitution is a self-executing provision
and does not need implementing legislation to
carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII
is self-executing whether the controlling shares of
the Manila Hotel Corporation form part of our
patrimony as a nation;
(3) Whether GSIS is included in the term "State,"
hence, mandated to implement section 10,
paragraph 2 of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it
failed to give preference to petitioner, a qualified
Filipino corporation, over and above Renong
Berhad, a foreign corporation, in the sale of the
controlling shares of the Manila Hotel Corporation;
(5) Whether petitioner is estopped from
questioning the sale of the shares to Renong
Berhad, a foreign corporation.
Anent the first issue, it is now familiar learning that a Constitution
provides the guiding policies and principles upon which is built the
government.  As a rule, its provisions are deemed self-executing
5
and can be enforced without further legislative action.  Some of its
6
provisions, however, can be implemented only through
appropriate laws enacted by the Legislature, hence not self-
executing.
To determine whether a particular provision of a Constitution is
self-executing is a hard row to hoe. The key lies on the intent of
the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the
provision is intended as a present enactment, complete in itself they provide the framework for legislation   to effectuate their
23

as a definitive law, or if it needs future legislation for completion policy content.  24

and enforcement.  The inquiry demands a micro-analysis of the

7

text and the context of the provision in question. 8

Courts as a rule consider the provisions of the Constitution as
self-executing,  rather than as requiring future legislation for their
9
Guided by this map of settled jurisprudence, we now consider
whether Section 10, Article XII of the 1987 Constitution is self-
executing or not. It reads:

enforcement.   The reason is not difficult to discern. For if they

10
Sec. 10. The Congress shall, upon
are not treated as self-executing, the mandate of the fundamental recommendation of the economic and planning
law ratified by the sovereign people can be easily ignored and agency, when the national interest dictates,
nullified by Congress.   Suffused with wisdom of the ages is the
11
reserve to citizens of the Philippines or to
unyielding rule that legislative actions may give breath to corporations or associations at least sixty per
constitutional rights but congressional in action should not centum of whose capital is owned by such
suffocate them.  12
citizens, or such higher percentage as Congress
may prescribe, certain areas of investments. The
Thus, we have treated as self-executing the provisions in the Bill Congress shall enact measures that will
of Rights on arrests, searches and seizures,   the rights of a
13
encourage the formation and operation of
person under custodial investigation,   the rights of an
14
enterprises whose capital is wholly owned by
accused,   and the privilege against self-incrimination,   It is
15 16
Filipinos.
recognize a that legislation is unnecessary to enable courts to
effectuate constitutional provisions guaranteeing the fundamental In the grant of rights, privileges, and concessions
rights of life, liberty and the protection of property.   The same
17
covering the national economy and patrimony, the
treatment is accorded to constitutional provisions forbidding the State shall give preference to qualified Filipinos.
taking or damaging of property for public use without just
compensation. 18
The State shall regulate and exercise authority
over foreign investments within its national
Contrariwise, case law lays down the rule that a constitutional jurisdiction and in accordance with its national
provision is not self-executing where it merely announces a policy goals and priorities.
and its language empowers the Legislature to prescribe the
means by which the policy shall be carried into The first paragraph directs Congress to reserve certain
effect.   Accordingly, we have held that the provisions in Article II
19
areas of investments in the country   to Filipino citizens or
25

of our Constitution entitled "Declaration of Principles and State to corporations sixty per
Policies" should generally be construed as mere statements of cent   of whose capital stock is owned by Filipinos. It
26

principles of the State.   We have also ruled that some provisions
20
further commands Congress to enact laws that will
of Article XIII on "Social Justice and Human Rights,"   and Article
21
encourage the formation and operation of one hundred
XIV on "Education Science and Technology, Arts, Culture end percent Filipino-owned enterprises. In checkered contrast,
Sports"   cannot be the basis of judicially enforceable rights. Their
22
the second paragraph orders the entire State to give
enforcement is addressed to the discretion of Congress though
 preference to qualified Filipinos in the grant of rights and
privileges covering the national economy and patrimony.
The third paragraph also directs the State to regulate
foreign investments in line with our national goals and
well-set priorities.
The first paragraph of Section 10 is not self-executing. By
its express text, there is a categorical command for
Congress to enact laws restricting foreign ownership in
certain areas of investments in the country and to
encourage the formation and operation of wholly-owned
Filipino enterprises. The right granted by the provision is
clearly still in esse. Congress has to breathe life to the
right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the
1973 Constitution.   The provision in the 1973
27
Constitution affirmed our ruling in the landmark case
of Lao Ichong v. Hernandez,  where we upheld the
28
discretionary authority of Congress to Filipinize certain
areas of investments.   By reenacting the 1973 provision,
29
the first paragraph of section 10 affirmed the power of
Congress to nationalize certain areas of investments in
favor of Filipinos.
The second and third paragraphs of Section 10 are different.
They are directed to the State and not to Congress alone which is
but one of the three great branches of our government. Their
coverage is also broader for they cover "the national economy
and patrimony" and "foreign investments within [the] national
jurisdiction" and not merely "certain areas of investments."
Beyond debate, they cannot be read as granting Congress the
exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and
privileges covering our national economy and patrimony. Their
language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its
implementation for any reason whatsoever. Their duty to
implement is unconditional and it is now. The second and the
third paragraphs of Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution
entitled "Declaration of Principles and State Policies." Its Section
19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos."
It engrafts the all-important Filipino First policy in our fundamental
law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half-
pause in time.
The second issue is whether the sale of a majority of the stocks
of the Manila Hotel Corporation involves the disposition of part of
our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same
view as to its meaning. According to Commissioner Nolledo,
"patrimony" refers not only to our rich natural resources but also
to the cultural heritage of our race.   By this yardstick, the sale of
30
Manila Hotel falls within the coverage of the constitutional
provision giving preferential treatment to qualified Filipinos in the
grant of rights involving our national patrimony. The unique value
of the Manila Hotel to our history and culture cannot be viewed
with a myopic eye. The value of the hotel goes beyond pesos and
centavos. As chronicled by Beth Day Romulo,   the hotel first
31
opened on July 4, 1912 as a first-class hotel built by the American
Insular Government for Americans living in, or passing through,
Manila while traveling to the Orient. Indigenous materials and
Filipino craftsmanship were utilized in its construction, For
sometime, it was exclusively used by American and Caucasian
travelers and served as the "official guesthouse" of the American
Insular Government for visiting foreign dignitaries. Filipinos began
coming to the Hotel as guests during the Commonwealth period.
When the Japanese occupied Manila, it served as military
headquarters and lodging for the highest-ranking officers from
Tokyo. It was at the Hotel and the Intramuros that the Japanese
made their last stand during the Liberation of Manila. After the
war, the Hotel again served foreign guests and Filipinos alike.
Presidents and kings, premiers and potentates, as well as
glamorous international film and sports celebrities were housed in
the Hotel. It was also the situs of international conventions and
conferences. In the local scene, it was the venue of historic
meetings, parties and conventions of political parties. The Hotel
has reaped and continues reaping numerous recognitions and
awards from international hotel and travel award-giving bodies, a
fitting acknowledgment of Filipino talent and ingenuity. These are
judicially cognizable facts which cannot be bent by a biased mind.
The Hotel may not, as yet, have been declared a national cultural
treasure pursuant to Republic Act No. 4846 but that does not
exclude it from our national patrimony. Republic Act No. 4846,
"The Cultural Properties Preservation and Protection Act," merely
provides a procedure whereby a particular cultural property may
be classified a "national cultural treasure" or an "important cultural
property.   Approved on June 18, 1966 and amended by P.D. 374
32
in 1974, the law is limited in its reach and cannot be read as the
exclusive law implementing section 10, Article XII of the 1987
Constitution. To be sure, the law does not equate cultural
treasure and cultural property as synonymous to the phrase
"patrimony of the nation."
The third issue is whether the constitutional command to the
State includes the respondent GSIS. A look at its charter will
reveal that GSIS is a government-owned and controlled
corporation that administers funds that come from the monthly
contributions of government employees and the
government.   The funds are held in trust for a distinct purpose
33
which cannot be disposed of indifferently.   They are to be used
34
to finance the retirement, disability and life insurance benefits of
the employees and the administrative and operational expenses
of the GSIS,  Excess funds, however, are allowed to be invested
35
in business and other ventures for the benefit of the
employees.  It is thus contended that the GSIS investment in the
36
Manila Hotel Corporation is a simple business venture, hence, an
act beyond the contemplation of section 10, paragraph 2 of Article
XII of the Constitution.
The submission is unimpressive. The GSIS is not a pure private
corporation. It is essentially a public corporation created by
Congress and granted an original charter to serve a public
purpose. It is subject to the jurisdictions of the Civil Service
Commission   and the Commission on Audit.   As state-owned
37 38
and controlled corporation, it is skin-bound to adhere to the
policies spelled out in the general welfare of the people. One of
these policies is the Filipino First policy which the people elevated
as a constitutional command.
The fourth issue demands that we look at the content of phrase
"qualified Filipinos" and their "preferential right." The Constitution
desisted from defining their contents. This is as it ought to be for
a Constitution only lays down flexible policies and principles
which can bent to meet today's manifest needs and tomorrow's
unmanifested demands. Only a constitution strung with elasticity
can grow as a living constitution.
Thus, during the deliberations in the Constitutional Commission,
Commissioner Nolledo to define the phrase brushed aside a
suggestion to define the phrase "qualified Filipinos." He explained
that present and prospective "laws" will take care of the problem
of its interpretation, viz: 
x x x           x x x          x x x
THE PRESIDENT.
What is the
suggestion of
Commissioner
Rodrigo? Is it to
remove the word
"QUALIFIED?"
MR. RODRIGO.
No, no, but say
definitely "TO
QUALIFIED TO QUALIFIED
FILIPINOS" as FILIPINOS," it can
against whom? As be understood as
against aliens over giving preference
aliens? to qualified
Filipinos as against
MR. NOLLEDO. Filipinos who are
Madam President, not qualified.
I think that is
understood. We MR. NOLLEDO.
use the word Madam President,
"QUALIFIED" that was the
because the intention of the
existing laws or the proponents. The
prospective laws committee has
will always lay accepted the
down conditions amendment.
under which
business map be x x x           x x x          x x x
done, for example,
qualifications on As previously discussed, the constitutional command to
capital, enforce the Filipino First policy is addressed to the State
qualifications on and not to Congress alone. Hence, the word "laws"
the setting up of should not be understood as limited to legislations but all
other financial state actions which include applicable rules and
structures, et regulations adopted by agencies and instrumentalities of
cetera. the State in the exercise of their rule-making power. In the
case at bar, the bidding rules and regulations set forth the
MR. RODRIGO. It standards to measure the qualifications of bidders
is just a matter of Filipinos and foreigners alike. It is not seriously disputed
style. that petitioner qualified to bid as did Renong Berhad.  39

MR. NOLLEDO Thus, we come to the critical issue of the degree of preference
Yes. which GSIS should have accorded petitioner, a qualified Filipino,
over Renong Berhad, a foreigner, in the purchase of the
MR. RODRIGO. If controlling shares of the Manila Hotel. Petitioner claims that after
we say, losing the bid, this right of preference gives it a second chance to
"PREFERENCE match the highest bid of Renong Berhad.
With due respect, I cannot sustain petitioner's submission. I
prescind from the premise that the second paragraph of section
10, Article XII of the Constitution is pro-Pilipino but not anti-alien.
It is pro-Filipino for it gives preference to Filipinos. It is not,
however, anti-alien per se for it does not absolutely bar aliens in
the grant of rights, privileges and concessions covering the
national economy and patrimony. Indeed, in the absence of
qualified Filipinos, the State is not prohibited from granting these
rights, privileges and concessions to foreigners if the act will
promote the weal of the nation.
In implementing the policy articulated in section 10, Article XII of
the Constitution, the stellar task of our State policy-makers is to
maintain a creative tension between two desiderata — first, the
need to develop our economy and patrimony with the help of
foreigners if necessary, and, second, the need to keep our
economy controlled by Filipinos. Rightfully, the framers of the
Constitution did not define the degree of the right of preference to
be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that
can be adjusted by our policy-makers to meet the changing
needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and
circumstances warrant. The lesser the need for alien assistance,
the greater the degree of the right of preference can be given to
Filipinos and vice verse.
Again, it should be stressed that the right and the duty to
determine the degree of this privilege at any given time is
addressed to the entire State. While under our constitutional
scheme, the right primarily belongs to Congress as the
lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share
the power to enforce this state policy. Within the limits of their
authority, they can act or promulgate rules and regulations
defining the degree of this right of preference in cases where they
have to make grants involving the national economy and judicial
duty. On the other hand, our duty is to strike down acts of the
state that violate the policy.
To date, Congress has not enacted a law defining the degree of
the preferential right. Consequently, we must turn to the rules and
regulations of on respondents Committee Privatization and GSIS
to determine the degree of preference that petitioner is entitled to
as a qualified Filipino in the subject sale. A tearless look at the
rules and regulations will show that they are silent on the degree
of preferential right to be accorded qualified Filipino bidder.
Despite their silence, however, they cannot be read to mean that
they do not grant any degree of preference to petitioner for
paragraph 2, section 10, Article XII of the Constitution is deemed
part of said rules and regulations. Pursuant to legal hermeneutics
which demand that we interpret rules to save them from
unconstitutionality, I submit that the right of preference of
petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino
bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that
petitioner has a right to match the bid of Renong Berhad.
Petitioner's submission must be supported by the rules but even if
we examine the rules inside-out .thousand times, they can not
justify the claimed right. Under the rules, the right to match the
highest bid arises only "if for any reason, the highest bidder
cannot be awarded block of shares . . ." No reason has arisen
that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the
highest bid. It was declared as the highest bidder by the GSIS
and the rules say this decision is final. It deserves the award as a
matter of right for the rules clearly did not give to the petitioner as
a qualified Filipino privilege to match the higher bid of a foreigner.
What the rules did not grant, petitioner cannot demand. Our
symphaties may be with petitioner but the court has no power to
extend the latitude and longtitude of the right of preference as
defined by the rules. The parameters of the right of preference
depend on galaxy of facts and factors whose determination
belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that
determination even if we differ with the wisdom of their judgment.
The right they grant may be little but we must uphold the grant for
as long as the right of preference is not denied. It is only when a
State action amounts to a denial of the right that the Court can
come in and strike down the denial as unconstitutional.
Finally, I submit that petitioner is estopped from assailing the
winning bid of Renong Berhad. Petitioner was aware of the rules
and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can
match the winning bid submitting an inferior bid. It knew that the
bid was open to foreigners and that foreigners qualified even
during the first bidding. Petitioner cannot be allowed to repudiate
the rules which it agreed to respect. It cannot be allowed to obey
the rules when it wins and disregard them when it loses. If
sustained, petitioners' stance will wreak havoc on he essence of
bidding. Our laws, rules and regulations require highest bidding to
raise as much funds as possible for the government to maximize
its capacity to deliver essential services to our people. This is a
duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully
written to attain this objective. Among others, bidders are
prequalified to insure their financial capability. The bidding is
secret and the bids are sealed to prevent collusion among the
parties. This objective will be undermined if we grant petitioner
that privilege to know the winning bid and a chance to match it.
For plainly, a second chance to bid will encourage a bidder not to
strive to give the highest bid in the first bidding.
We support the Filipino First policy without any reservation. The
visionary nationalist Don Claro M. Recto has warned us that the
greatest tragedy that can befall a Filipino is to be an alien in his
own land. The Constitution has embodied Recto's counsel as a
state policy. But while the Filipino First policy requires that we
incline to a Filipino, it does not demand that we wrong an alien.
Our policy makers can write laws and rules giving favored
treatment to the Filipino but we are not free to be unfair to a
foreigner after writing the laws and the rules. After the laws are
written, they must be obeyed as written, by Filipinos and
foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without
unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.
 
PANGANIBAN, J., dissenting:
I regret I cannot join the majority. To the incisive Dissenting
Opinion of Mr. Justice Reynato S. Puno, may I just add
1. The majority contends the Constitution should be interpreted to
mean that, after a bidding process is concluded, the losing
Filipino bidder should be given the right to equal the highest
foreign bid, and thus to win. However, the Constitution [Sec. 10
(2), Art. XII] simply states that "in the grant of rights . . . covering
the national economy and patrimony, the State shall give
preference to qualified Filipinos." The majority concedes that
there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino
bidder to increase his bid and equal that of the winning foreigner.
In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes
unadulterated judicial legislation, which makes bidding a
ridiculous sham where no Filipino can lose and where no
foreigner can win. Only in the Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is
short-sighted and, viewed properly, gravely prejudicial to long-
term Filipino interest. It encourages other countries — in the
guise of reverse comity or worse, unabashed retaliation — to
discriminate against us in their own jurisdictions by authorizing
their own nationals to similarly equal and defeat the higher bids of
Filipino enterprises solely, while on the other hand, allowing
similar bids of other foreigners to remain unchallenged by their
nationals. The majority's thesis will thus marginalize Filipinos as
pariahs in the global marketplace with absolute no chance of
winning any bidding outside our country. Even authoritarian
regimes and hermit kingdoms have long ago found out
unfairness, greed and isolation are self-defeating and in the long-
term, self-destructing.
The moral lesson here is simple: Do not do unto other what you
dont want other to do unto you.
3. In the absence of a law specifying the degree or extent of the
"Filipino First" policy of the Constitution, the constitutional
preference for the "qualified Filipinos" may be allowed only where
all the bids are equal. In this manner, we put the Filipino ahead
without self-destructing him and without being unfair to the
foreigner.
In short, the Constitution mandates a victory for the qualified
Filipino only when the scores are tied. But not when the ballgame
is over and the foreigner clearly posted the highest score.
Separate Opinions
PADILLA, J., concurring:
I concur with the ponencia of Mr. Justice Bellosillo. At the same
time, I would like to expound a bit more on the concept of national
patrimony as including within its scope and meaning institutions
such as the Manila Hotel.
It is argued by petitioner that the Manila Hotel comes under
"national patrimony" over which qualified Filipinos have the
preference, in ownership and operation. The Constitutional
provision on point states:
xxx xxx xxx
In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the
State shall Give preference to qualified Filipinos.1
Petitioner's argument, I believe, is well taken. Under the 1987
Constitution, "national patrimony" consists of the natural
resources provided by Almighty God (Preamble) in our territory
(Article I) consisting of land, sea, and air. study of the 1935
2
Constitution, where the concept of "national patrimony"
originated, would show that its framers decided to adopt the even
more comprehensive expression "Patrimony of the Nation" in the
belief that the phrase encircles a concept embracing not only their
natural resources of the country but practically everything that
belongs to the Filipino people, the tangible and the material as
well as the intangible and the spiritual assets and possessions of
the people. It is to be noted that the framers did not stop with
conservation. They knew that conservation alone does not spell
progress; and that this may be achieved only through
development as a correlative factor to assure to the people not
only the exclusive ownership, but also the exclusive benefits of
their national patrimony).3
Moreover, the concept of national patrimony has been viewed as
referring not only to our rich natural resources but also to the
cultural heritage of our
race.4
There is no doubt in my mind that the Manila Hotel is very much a
part of our national patrimony and, as such, deserves
constitutional protection as to who shall own it and benefit from its
operation. This institution has played an important role in our
nation's history, having been the venue of many a historical
event, and serving as it did, and as it does, as the Philippine
Guest House for visiting foreign heads of state, dignitaries,
celebrities, and others. 5
It is therefore our duty to protect and preserve it for future
generations of Filipinos. As President Manuel L. Quezon once
said, we must exploit the natural resources of our country, but we
should do so with. an eye to the welfare of the future generations.
In other words, the leaders of today are the trustees of the
patrimony of our race. To preserve our national patrimony and
reserve it for Filipinos was the intent of the distinguished
gentlemen who first framed our Constitution. Thus, in debating
the need for nationalization of our lands and natural resources,
one expounded that we should "put more teeth into our laws, and;
not make the nationalization of our lands and natural resources a
subject of ordinary legislation but of constitutional enactment"  To
6
quote further: "Let not our children be mere tenants and
trespassers in their own country. Let us preserve and bequeath to
them what is rightfully theirs, free from all foreign liens and
encumbrances". 7
Now, a word on preference. In my view "preference to qualified
Filipinos", to be meaningful, must refer not only to things that are
peripheral, collateral, or tangential. It must touch and affect the
very "heart of the existing order." In the field of public bidding in
the acquisition of things that pertain to the national patrimony,
preference to qualified Filipinos must allow a qualified Filipino to
match or equal the higher bid of a non-Filipino; the preference
shall not operate only when the bids of the qualified Filipino and
the non-Filipino are equal in which case, the award should
undisputedly be made to the qualified Filipino. The Constitutional
preference should give the qualified Filipino an opportunity to
match or equal the higher bid of the non-Filipino bidder if the
preference of the qualified Filipino bidder is to be significant at all.
It is true that in this present age of globalization of attitude
towards foreign investments in our country, stress is on the
elimination of barriers to foreign trade and investment in the
country. While government agencies, including the courts should
re-condition their thinking to such a trend, and make it easy and
even attractive for foreign investors to come to our shores, yet we
should not preclude ourselves from reserving to us Filipinos
certain areas where our national identity, culture and heritage are
involved. In the hotel industry, for instance, foreign investors have
established themselves creditably, such as in the Shangri-La, the
Nikko, the Peninsula, and Mandarin Hotels. This should not stop
us from retaining 51% of the capital stock of the Manila Hotel
Corporation in the hands of Filipinos. This would be in keeping
with the intent of the Filipino people to preserve our national
patrimony, including our historical and cultural heritage in the
hands of Filipinos.
VITUG, J., concurring:
I agree with Mr. Justice Josue N. Bellosillo on his clear-cut
statements, shared by Mr. Justice Reynato S. Puno in a well
written separate (dissenting) opinion, that:
First, the provision in our fundamental law which provides that
"(I)n the grant of rights, privileges, and concessions covering the
national economy and patrimony, the State shall give preference
to qualified Filipinos"  is self-executory. The provision verily does
1
not need, although it can obviously be amplified or regulated by,
an enabling law or a set of rules.
Second, the term "patrimony" does not merely refer to the
country's natural resources but also to its cultural heritage. A
"historical landmark," to use the words of Mr. Justice Justo P.
Torres, Jr., Manila Hotel has now indeed become part of
Philippine heritage.
Third, the act of the Government Service Insurance System
("GSIS"), a government entity which derives its authority from the
State, in selling 51% of its share in MHC should be considered an
act of the State subject to the Constitutional mandate.
On the pivotal issue of the degree of "preference to qualified
Filipinos," I find it somewhat difficult to take the same path
traversed by the forceful reasoning of Justice Puno. In the
particular case before us, the only meaningful preference, it
seems, would really be to allow the qualified Filipino to match the
foreign bid for, as a particular matter, I cannot see any bid that
literally calls for millions of dollars to be at par (to the last cent)
with another. The magnitude of the magnitude of the bids is such
that it becomes hardly possible for the competing bids to stand
exactly "equal" which alone, under the dissenting view, could
trigger the right of preference.
It is most unfortunate that Renong Berhad has not been spared
this great disappointment, a letdown that it did not deserve, by a
simple and timely advise of the proper rules of bidding along with
the peculiar constitutional implications of the proposed
transaction. It is also regrettable that the Court at time is seen, to
instead, be the refuge for bureaucratic inadequate which create
the perception that it even takes on non-justiciable controversies.
All told, I am constrained to vote for granting the petition.
MENDOZA, J., concurring in the judgment:
I take the view that in the context of the present controversy the
only way to enforce the constitutional mandate that "[i]n the grant
of rights, privileges and concessions covering the national
patrimony the State shall give preference to qualified Filipinos"  is
1
to allow petitioner Philippine corporation to equal the bid of the
Malaysian firm Renong Berhad for the purchase of the controlling
shares of stocks in the Manila Hotel Corporation. Indeed, it is the
only way a qualified Filipino of Philippine corporation can be
given preference in the enjoyment of a right, privilege or
concession given by the State, by favoring it over a foreign
national corporation.
Under the rules on public bidding of the Government Service and
Insurance System, if petitioner and the Malaysian firm had offered
the same price per share, "priority [would be given] to the bidder
seeking the larger ownership interest in MHC,"  so that petitioner
2
bid for more shares, it would be preferred to the Malaysian
corporation for that reason and not because it is a Philippine
corporation. Consequently, it is only in cases like the present one,
where an alien corporation is the highest bidder, that preferential
treatment of the Philippine corporation is mandated not by
declaring it winner but by allowing it "to match the highest bid in
terms of price per share" before it is awarded the shares of
stocks.  That, to me, is what "preference to qualified Filipinos"
3
means in the context of this case — by favoring Filipinos
whenever they are at a disadvantage vis-a-vis foreigners.
This was the meaning given in Co Chiong v. Cuaderno  to a 1947
4
statute giving "preference to Filipino citizens in the lease of public
market stalls."  This Court upheld the cancellation of existing
5
leases covering market stalls occupied by persons who were not
Filipinos and the award thereafter of the stalls to qualified Filipino
vendors as ordered by the Department of Finance. Similarly,
in Vda. de Salgado v. De la Fuente,  this Court sustained the
6
validity of a municipal ordinance passed pursuant to the statute
(R.A. No. 37), terminating existing leases of public market stalls
and granting preference to Filipino citizens in the issuance of new
licenses for the occupancy of the stalls. In Chua Lao
v. Raymundo,  the preference granted under the statute was held
7
to apply to cases in which Filipino vendors sought the same stalls
occupied by alien vendors in the public markets even if there
were available other stalls as good as those occupied by aliens.
"The law, apparently, is applicable whenever there is a conflict of
interest between Filipino applicants and aliens for lease of stalls
in public markets, in which situation the right to preference
immediately arises." 8
Our legislation on the matter thus antedated by a quarter of a
century efforts began only in the 1970s in America to realize the
promise of equality, through affirmative action and reverse
discrimination programs designed to remedy past discrimination
against colored people in such areas as employment, contracting
and licensing.  Indeed, in vital areas of our national economy,
9
there are situations in which the only way to place Filipinos in
control of the national economy as contemplated in the
Constitution   is to give them preferential treatment where they
10
can at least stand on equal footing with aliens.
There need be no fear that thus preferring Filipinos would either
invite foreign retaliation or deprive the country of the benefit of
foreign capital or know-how. We are dealing here not with
common trades of common means of livelihood which are open to
aliens in our midst,   but with the sale of government property,
11
which is like the grant of government largess of benefits and
concessions covering the national economy" and therefore no
one should begrudge us if we give preferential treatment to our
citizens. That at any rate is the command of the Constitution. For
the Manila Hotel is a business owned by the Government. It is
being privatized. Privatization should result in the relinquishment
of the business in favor of private individuals and groups who are
Filipino citizens, not in favor of aliens.
Nor should there be any doubt that by awarding the shares of
stocks to petitioner we would be trading competence and
capability for nationalism. Both petitioner and the Malaysian firm
are qualified, having hurdled the prequalification process.   It is
12
only the result of the public bidding that is sought to be modified
by enabling petitioner to up its bid to equal the highest bid.
Nor, finally, is there any basis for the suggestion that to allow a
Filipino bidder to match the highest bid of an alien could
encourage speculation, since all that a Filipino entity would then
do would be not to make a bid or make only a token one and,
after it is known that a foreign bidder has submitted the highest
bid, make an offer matching that of the foreign firm. This is not
possible under the rules on public bidding of the GSIS. Under
these rules there is a minimum bid required (P36.87 per share for
a range of 9 to 15 million shares).   Bids below the minimum will
13
not be considered. On the other hand, if the Filipino entity, after
passing the prequalification process, does not submit a bid, he
will not be allowed to match the highest bid of the foreign firm
because this is a privilege allowed only to those who have "validly
submitted bids."   The suggestion is, to say the least, fanciful and
14
has no basis in fact.
For the foregoing reasons, I vote to grant the petition.
TORRES, JR., J., separate opinion:
Constancy in law is not an attribute of a judicious mind. I say this
as we are not confronted in the case at bar with legal and
constitutional issues — and yet I am driven so to speak on the
side of history. The reason perhaps is due to the belief that in the
words of Justice Oliver Wendell Holmes, Jr., a "page of history is
worth a volume of logic."
I will, however, attempt to share my thoughts on whether the
Manila Hotel has a historical and cultural aspect within the
meaning of the constitution and thus, forming part of the
"patrimony of the nation".
Section 10, Article XII of the 1987 Constitution provides:
xxx xxx xxx
In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.
The State shall regulate and exercise authority
over foreign investments within its national goals
and priorities.
The foregoing provisions should be read in conjunction with controlled by
Article II of the same Constitution pertaining to "Declaration of Filipinos (Vol. III,
Principles and State Policies" which ordain — Records of the
Constitutional
The State shall develop a self-reliant and Commission, p.
independent national economy effectively by 608).
Filipinos. (Sec. 19).
MR. MONSOD.
Interestingly, the matter of giving preference to "qualified We also wanted to
Filipinos" was one of the highlights in the 1987 Constitution add, as
Commission proceedings thus: Commissioner
Villegas said, this
x x x           x x x          x x x committee and this
body already
approved what is
MR. NOLLEDO.
known as the
The Amendment
Filipino First policy
will read: "IN THE
which was
GRANT OF
suggested by
RIGHTS,
Commissioner de
PRIVILEGES AND
Castro. So that it is
CONCESSIONS
now in our
COVERING THE
Constitution (Vol.
NATIONAL
IV, Records of the
ECONOMY AND
Constitutional
PATRIMONY, THE
Commission, p.
STATE SHALL
225).
GIVE
PREFERENCE TO
QUALIFIED Commissioner Jose Nolledo explaining the
FILIPINOS". And provision adverted to above, said:
the word "Filipinos"
here, as intended MR. NOLLEDO. In
by the proponents, the grant of rights,
will include not privileges and
only individual concessions
Filipinos but also covering the
Filipino-Controlled national economy
entities fully and patrimony, the
 State shall give Constitution and the 1973 Constitutions. That we have no
preference to reneged on this nationalist policy is articulated in one of the
qualified Filipinos. earliest case, this Court said —

MR. FOZ. In The nationalistic tendency is manifested in various

connection with provisions of the Constitution. . . . It cannot
that amendment, if therefore be said that a law imbued with the same
a foreign purpose and spirit underlying many of the
enterprise is provisions of the Constitution is unreasonable,
qualified and the invalid or unconstitutional (Ichong, et al. vs.
Filipinos enterprise Hernandez, et al., 101 Phil. 1155).
is also qualified,
will the Filipino I subscribe to the view that history, culture, heritage, and
enterprise still be traditions are not legislated and is the product of events, customs,
given a usages and practices. It is actually a product of growth and
preference? acceptance by the collective mores of a race. It is the spirit and
soul of a people.
MR. NOLLEDO.
Obviously. The Manila Hotel is part of our history, culture and heritage. Every
inch of the Manila Hotel is witness to historic events (too
MR. FOZ. If the numerous to mention) which shaped our history for almost 84
foreigner is more years.
qualified in some
aspects than the As I intimated earlier, it is not my position in this opinion, to
Filipino enterprise, examine the single instances of the legal largese which have
will the Filipino still given rise to this controversy. As I believe that has been
be preferred:? exhaustively discussed in the ponencia. Suffice it to say at this
point that the history of the Manila Hotel should not be placed in
MR. NOLLEDO. the auction block of a purely business transaction, where profits
The answer is subverts the cherished historical values of our people.
"yes". (Vol. III, p.
616, Records of As a historical landmark in this "Pearl of the Orient Seas", it has
the Constitutional its enviable tradition which, in the words of the philosopher
Commission). Salvador de Madarriaga tradition is "more of a river than a stone,
it keeps flowing, and one must view the flowing , and one must
The nationalistic provisions of the 1987 Constitution reflect the view the flow of both directions. If you look towards the hill from
history and spirit of the Malolos Constitution of 1898, the 1935 which the river flows, you see tradition in the form of forceful
currents that push the river or people towards the future, and if
you look the other way, you progress."
Indeed, tradition and progress are the same, for progress
depends on the kind of tradition. Let us not jettison the tradition of
the Manila Hotel and thereby repeat our colonial history.
I grant, of course the men of the law can see the same subject in
different lights.
I remember, however, a Spanish proverb which says — "He is
always right who suspects that he makes mistakes". On this note,
I say that if I have to make a mistake, I would rather err upholding
the belief that the Filipino be first under his Constitution and in his
own land.
I vote GRANT the petition.
 
PUNO, J., dissenting:
This is a. petition for prohibition and mandamus filed by the
Manila Prince Hotel Corporation, a domestic corporation, to stop
the Government Service Insurance System (GSIS) from selling
the controlling shares of the Manila Hotel Corporation to a foreign
corporation. Allegedly, the sale violates the second paragraph of
section 10, Article XII of the Constitution.
Respondent GSIS is a government-owned and controlled
corporation. It is the sole owner of the Manila Hotel which it
operates through its subsidiary, the Manila Hotel Corporation.
Manila Hotel was included in the privatization program of the
government. In 1995, GSIS proposed to sell to interested buyers
30% to 51% of its shares, ranging from 9,000,000 to 15,300,000
shares, in the Manila Hotel Corporation. After the absence of bids
at the first public bidding, the block of shares offered for sale was
increased from a maximum of 30% to 51%. Also, the winning
bidder, or the eventual "strategic partner" of the GSIS was
required to "provide management expertise and/or an
international marketing/reservation system, and financial support
to strengthen the profitability and performance of the Manila
Hotel"  The proposal was approved by respondent Committee on
1
Privatization.
In July 1995, a conference was held where prequalification
documents and the bidding rules were furnished interested
parties. Petitioner Manila Prince Hotel, a domestic corporation,
and Renong Berhad, Malaysian firm with ITT Sheraton as
operator, prequalified.
2
The bidding rules and procedures entitled "Guidelines and
Procedures: Second Prequalification and Public Bidding of the
MHC Privatization" provide:
I INTRODUCTION AND HIGHLIGHTS
DETERMINING THE WINNING
BIDDER/STRATEGIC PARTNER
The party that accomplishes the steps set forth
below will be declared the Winning
Bidder/Strategic Partner and will be awarded the
Block of Shares:
First — Pass the prequalification process;
Second — Submit the highest bid on a price per
share basis for the Block of Shares;
Third — Negotiate and execute the necessary
contracts with GSIS/MHC not later than October
23, 1995;
 xxx xxx xxx successfully
operate the Manila
IV GUIDELINES FOR PREQUALIFICATION Hotel.

A. PARTIES WHO MAP APPLY Parties interested in bidding for

FOR PREQUALIFICATION MHC should be able to provide
access to the requisite
The Winning Bidder/Strategic management expertise and/or
Partner will be expected to provide international marketing/reservation
management expertise and/or an system for The Manila Hotel.
international marketing reservation
system, and financial support to xxx xxx xxx
strengthen the profitability and
performance of The Manila Hotel. D. PREQUALIFICATION DOCUMENTS 
In this context, the GSIS is inviting
to the prequalification process any xxx xxx xxx
local and/or foreign corporation,
consortium/joint venture or juridical E. APPLICATION PROCEDURE
entity with at least one of the
following qualifications:
1. DOCUMENTS AVAILABLE AT
THE REGISTRATION OFFICE
a. Proven
management
The prequalification documents
.expertise in the
can be secured at the Registration
hotel industry; or
Office between 9:00 AM to 4:00
PM during working days within the
b. Significant period specified in Section III.
equity ownership Each set of documents consists of
(i.e. board the following:
representation) in
another hotel
a. Guidelines and
company; or
Procedures:
Second
c. Overall Prequalification
management and and Public Bidding
marketing of the MHC
expertise to Privatization
 b. Confidential (1 original set plus 4 copies) at the
Information Registration Office between 9:00
Memorandum: The AM to 4:00 PM during working
Manila Hotel days within the period specified in
Corporation Section III.

c. Letter of F. PREQUALIFICATION PROCESS

Invitation. to the
Prequalification 1. The Applicant
and Bidding will be evaluated
Conference by the PBAC with
the assistance of
xxx xxx xxx the TEC based on
the Information
4. PREQUALIFICATION AND BIDDING Package and other
CONFERENCE information
available to the
A prequalification and bidding PBAC.
conference will be held at The
Manila Hotel on the date specified 2. If the Applicant
in Section III to allow the Applicant is a
to seek clarifications and further Consortium/Joint
information regarding the Venture, the
guidelines and procedures. Only evaluation will
those who purchased the consider the
prequalification documents will be overall
allowed in this conference. qualifications of the
Attendance to this conference is group, taking into
strongly advised, although the account the
Applicant will not be penalized if it contribution of
does not attend. each member to
the venture.
5. SUBMISSION OF PREQUALIFICATION
DOCUMENTS 3. The decision of
the PBAC with
The applicant should submit 5 sets respect to the
of the prequalification documents results of the
PBAC evaluation c.
will be final. Fea
sibil
4. The Applicant ity
shall be evaluated and
according to the acc
criteria set forth ept
below: abil
ity
a. of
Bus the
ine pro
ss pos
ma ed
nag stra
em tegi
ent c
exp pla
erti n
se, for
trac the
k Ma
rec nila
ord, Hot
and el
exp
erie 5. The PBAC will shortlist such
nce number of Applicants as it may
deem appropriate.
b.
Fin 6. The parties that prequalified in
anc the first MHC public bidding — ITT
ial Sheraton, Marriot International
cap Inc., Renaissance Hotels
abil International Inc., consortium of
ity. RCBC Capital/Ritz Carlton — may
participate in the Public Bidding
 without having to undergo the
prequalification process again.
G. SHORTLIST OF QUALIFIED
BIDDERS
1. A notice of prequalification
results containing the shortlist of
Qualified Bidders will be posted at
the Registration Office at the date
specified in Section III.
2. In the case of a
Consortium/Joint Venture, the
withdrawal by member whose
qualification was a material
consideration for being included in
the shortlist is ground for
disqualification of the Applicant.
V. GUIDELINES FOR THE
PUBLIC BIDDING
A. PARTIES WHO MAY
PARTICIPATE IN THE PUBLIC
BIDDING
All parties in the shortlist of
Qualified Bidders will be eligible to
participate in the Public Bidding.
B. BLOCK OF SHARES
A range of Nine Million (9,000,000)
to Fifteen Million Three Hundred
Thousand (15,300,000) shares of
stock representing Thirty Percent
to Fifty-One Percent (30%-51%) of
the issued and outstanding shares
of MHC, will be offered in the
Public Bidding by the GSIS. The
Qualified Bidders will have the
Option of determining the number
of shares within the range to bid
for. The range is intended to
attract bidders with different
preferences and objectives for the
operation and management of The
Manila Hotel.
C. MINIMUM BID REQUIRED ON
A PRICE PER SHARE BASIS
1. Bids will be evaluated on
a price per share basis. The
minimum bid required on a price
per share basis for the Block of
Shares is Thirty-Six Pesos and
Sixty-Seven Centavos (P36.67).
2. Bids should be in the Philippine
currency payable to the GSIS.
3. Bids submitted with an
equivalent price per share below
the minimum required will not
considered.
D. TRANSFER COSTS
x x x           x x x          x x x
E. OFFICIAL BID FORM
1. Bids must be contained in the If the Qualified Bidder is a
prescribed Official Bid Form, a Consortium/Joint Venture, each
copy of which is attached as member of the Consortium/Joint
Annex IV. The Official Bid Form venture should submit a Board
must be properly accomplished in resolution authorizing one of its
all details; improper members and such member's
accomplishment may be a representative to make the bid on
sufficient basis for disqualification. behalf of the group with full
authority to perform such acts
2. During the Public Bidding, the necessary or requisite to bind the
Qualified Bidder will submit the Qualified Bidder.
Official Bid Form, which will
indicate the offered purchase 2. BID SECURITY
price, in a sealed envelope
marked "OFFICIAL BID." a. The Qualified Bidder should
deposit Thirty-Three Million Pesos
F. SUPPORTING DOCUMENTS (P33,000,00), in Philippine
currency as Bid Security in the
During the Public Bidding, the form of:
following documents should be
submitted along with the bid in a i. Manager's check
separate envelop marked or unconditional
"SUPPORTING DOCUMENTS": demand draft
payable to the
1. WRITTEN AUTHORITY TO BID "Government
(UNDER OATH). Service Insurance
System" and
If the Qualified Bidder is a issued by a
corporation, the representative of reputable banking
the Qualified Bidder should submit institution duly
a Board resolution which licensed to do
adequately authorizes such business in the
representative to bid for and in Philippines and
behalf of the corporation with full acceptable to
authority to perform such acts GSIS; or
necessary or requisite to bind the
Qualified Bidder. ii. Standby-by letter
of credit issued by
 a reputable f. The Bid Security will be returned
banking institution by October 23, 1995 if the Highest
acceptable to the Bidder is unable to negotiate and
GSIS. execute with GSIS/MHC the
Management Contract,
b. The GSIS will reject a bid if: International
Marketing/Reservation System
i. The bid does not Contract or other types of contract
have Bid Security; specified by the Highest Bidder in
or its strategic plan for The Manila
Hotel.
ii. The Bid Security
accompanying the g. The Bid Security of the Highest
bid is for less than Bidder will be forfeited in favor of
the required GSIS if the Highest Bidder, after
amount. negotiating and executing the
Management Contract,
International
c. If the Bid Security is in the form
Marketing/Reservation System
of a manager's check or
Contract specified by the Highest
unconditional demand draft, the
Bidder or other types of contract in
interest earned on the Bid Security
its strategic plan for The Manila
will be for the account of GSIS.
Hotel, fails or refuses to:
d. If the Qualified Bidder becomes
i. Execute the
the winning Bidder/Strategic
Stock Purchase
Partner, the Bid Security will be
and Sale
applied as the downpayment on
Agreement with
the Qualified Bidder's offered
GSIS not later than
purchase price.
October 23, 1995;
or
e. The Bid Security of the Qualified
Bidder will be returned
ii. Pay the full
immediately after the Public
amount of the
Bidding if the Qualified Bidder is
offered purchase
not declared the Highest Bidder.
price not later than
October 23, 1995;
or
 iii. Consummate
the sale of the
Block of Shares for
any other reason.
G. SUBMISSION OF BIDS
1. The Public Bidding will be held
on September 7, 1995 at the
following location:
New GSIS Headquarters Building
Financial Center, Reclamation
Area
Roxas Boulevard, Pasay City,
Metro Manila.
2. The Secretariat of the PBAC will
be stationed at the Public Bidding
to accept any and all bids and
supporting requirements.
Representatives from the
Commission on Audit and COP
will be invited to witness the
proceedings.
3. The Qualified Bidder should
submit its bid using the Official Bid
Form. The accomplished Official
Bid Form should be submitted in a
sealed envelope marked
"OFFICIAL BID."
4. The Qualified Bidder should
submit the following documents
in another sealed envelope
marked "SUPPORTING BID
DOCUMENTS"
a. Written Authority
Bid
b. Bid Security
5. The two sealed envelopes
marked "OFFICIAL BID" and
"SUPPORTING BID
DOCUMENTS" must be submitted
simultaneously to the Secretariat
between 9:00 AM and 2:00 PM,
Philippine Standard Time, on the
date of the Public Bidding. No bid
shall be accepted after the closing
time. Opened or tampered bids
shall not be accepted.
6. The Secretariat will log and
record the actual time of
submission of the two sealed
envelopes. The actual time of
submission will also be indicated
by the Secretariat on the face of
the two envelopes.
7. After Step No. 6, the two sealed
envelopes will be dropped in the
corresponding bid boxes provided
for the purpose. These boxes will
be in full view of the invited public.
H. OPENING AND READING OF
BIDS
1. After the closing time of 2:00 5. The Public Bidding will be
PM on the date of the Public declared a failed bidding in case:
Bidding, the PBAC will open all
sealed envelopes marked a. No single bid is
"SUPPORTING BID submitted within
DOCUMENTS" for screening, the prescribed
evaluation and acceptance. Those period; or
who submitted
incomplete/insufficient documents b. There is only
or document/s which is/are not one (1) bid that is
substantially in the form required submitted and
by PBAC will be disqualified. The acceptable to the
envelope containing their Official PBAC.
Bid Form will be immediately
returned to the disqualified
I. EXECUTION OF THE
bidders.
NECESSARY CONTRACTS
WITH GSIS/MHC
2. The sealed envelopes marked
"OFFICIAL BID" will be opened at
1. The Highest Bidder must
3:00 PM. The name of the bidder
comply with the conditions set
and the amount of its bid price will
forth below by October 23, 1995 or
be read publicly as the envelopes
the Highest Bidder will lose the
are opened.
right to purchase the Block of
Shares and GSIS will instead offer
3. Immediately following the the Block of Shares to the other
reading of the bids, the PBAC will Qualified Bidders:
formally announce the highest bid
and the Highest Bidder.
a. The Highest
Bidder must
4. The highest bid will be, negotiate and
determined on a price per share execute with
basis. In the event of a tie wherein GSIS/MHC the
two or more bids have the same Management
equivalent price per share, priority Contract,
will be given to the bidder seeking International
the larger ownership interest in Marketing
MHC. Reservation
 System Contract or GSIS/MHC are prepared to accept
other type of in the Management Contract are
contract specified as follows:
by the Highest
Bidder in its a. Basic
strategic plan for management fee:
The Manila Hotel. Maximum of 2.5%
If the Highest of gross revenues.
Bidder is intending (1)
to provide only
financial support to b. Incentive fee:
The Manila Hotel, Maximum of 8.0%
a separate of gross operating
institution may profit(1) after
enter into the deducting
aforementioned undistributed
contract/s with overhead
GSIS/MHC. expenses and the
basic management
b. The Highest fee.
Bidder must
execute the Stock c. Fixed
Purchase and Sale component of the
Agreement with international
GSIS, a copy of marketing/reservati
which will be on system fee:
distributed to each Maximum of 2.0%
of the Qualified of gross room
Bidder after the revenues.(1) The
prequalification Applicant should
process is indicate in its
completed. Information
Package if it is
2. In the event that the Highest wishes to charge
Bidder chooses a Management this fee.
Contract for The Manila Hotel, the
maximum levels for the Note (1): As defined in the uniform
management fee structure that system of account for hotels.
 The GSIS/MHC have indicated
above the acceptable parameters
for the hotel management fees to
facilitate the negotiations with the
Highest Bidder for the
Management Contract after the
Public Bidding.
A Qualified Bidder envisioning a
Management Contract for The
Manila Hotel should determine
whether or not the management
fee structure above is acceptable
before submitting their
prequalification documents to
GSIS.
J. BLOCK SALE TO THE OTHER QUALIFIED
BIDDERS
1. If for any reason, the Highest
Bidder cannot be awarded the
Block of Shares, GSIS may offer
this to the other Qualified Bidders
that have validly submitted bids
provided that these Qualified are
willing to match the highest bid in
terms of price per share.
2. The order of priority among the
interested Qualified Bidders will be
in accordance wit the
equivalent price per share of their
respective bids in their public
Bidding, i.e., first and second
priority will be given to the
Qualified Bidders that submitted
the second and third highest bids
on the price per share basis,
respectively, and so on.
K. DECLARATION OF THE
WINNING BIDDER/STRATEGIC
PARTNER 
The Highest Bidder will be
declared the Winning
Bidder/Strategic Partner after the
following conditions are met:
a. Execution of the
necessary contract
with GSIS/MHC
not later than
October 23, 1995;
and
b. Requisite
approvals from the
GSIS/MHC and
COP/OGCC are
obtained.
I. FULL PAYMENT FOR THE
BLOCK OF SHARES
1. Upon execution of the
necessary contracts with
GSIS/MHC, the Winning
Bidder/Strategic Partner must fully
pay, not later than October 23,
1995, the offered purchase price
for the Block of Shares after
deducting the Bid Security applied
as downpayment.
2. All payments should be made in
the form of a Manager's Check or
unconditional Demand Draft,
payable to the "Government
Service Insurance System," issued
by a reputable banking institution
licensed to do business in the
Philippines and acceptable to
GSIS.
M. GENERAL CONDITIONS
1. The GSIS unconditionally
reserves the right to reject any or
all applications, waive any
formality therein, or accept such
application as maybe considered
most advantageous to the GSIS.
The GSIS similarly reserves the
right to require the submission of
any additional information from the
Applicant as the PBAC may deem
necessary.
2. The GSIS further reserves the
right to call off the Public Bidding
prior to acceptance of the bids and
call for a new public bidding under
amended rules, and without any
liability whatsoever to any or all
the Qualified Bidders, except the
obligation to return the Bid
Security.
3. The GSIS reserves the right to
reset the date of the
prequalification/bidding
conference, the deadline for the
submission of the prequalification
documents, the date of the Public
Bidding or other pertinent activities
at least three (3) calendar days
prior to the respective
deadlines/target dates.
4. The GSIS sells only whatever
rights, interest and participation it
has on the Block of Shares.
5. All documents and materials
submitted by the Qualified
Bidders, except the Bid Security,
may be returned upon request.
6. The decision of the PBAC/GSIS
on the results of the Public Bidding
is final. The Qualified Bidders, by
participating in the Public Bidding,
are deemed to have agreed to
accept and abide by these results.
7. The GSIS will be held free and
harmless form any liability, suit or
allegation arising out of the Public
Bidding by the Qualified Bidders
who have participated in the Public
Bidding. 3
The second public bidding was held on September 18, 1995.
Petitioner bidded P41.00 per share for 15,300,000 shares and
Renong Berhad bidded P44.00 per share also for 15,300,000
shares. The GSIS declared Renong Berhad the highest bidder
and immediately returned petitioner's bid security.
On September 28, 1995, ten days after the bidding, petitioner
wrote to GSIS offering to match the bid price of Renong Berhad.
It requested that the award be made to itself citing the second
paragraph of Section 10, Article XII of the Constitution. It sent a
manager's check for thirty-three million pesos (P33,000,000.00)
as bid security.
Respondent GSIS, then in the process of negotiating with
Renong Berhad the terms and conditions of the contract and
technical agreements in the operation of the hotel, refused to
entertain petitioner's request.
Hence, petitioner filed the present petition. We issued a
temporary restraining order on October 18, 1995.
Petitioner anchors its plea on the second paragraph of Article XII,
Section 10 of the Constitution  on the "National Economy and
4
Patrimony" which provides:  Anent the first issue, it is now familiar learning that a Constitution
xxx xxx xxx
In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.
xxx xxx xxx
The vital issues can be summed up as follows:
(1) Whether section 10, paragraph 2 of Article XII
of the Constitution is a self-executing provision
and does not need implementing legislation to
carry it into effect;
(2) Assuming section 10 paragraph 2 of Article XII
is self-executing whether the controlling shares of
the Manila Hotel Corporation form part of our
patrimony as a nation;
(3) Whether GSIS is included in the term "State,"
hence, mandated to implement section 10,
paragraph 2 of Article XII of the Constitution;
(4) Assuming GSIS is part of the State, whether it
failed to give preference to petitioner, a qualified
Filipino corporation, over and above Renong
Berhad, a foreign corporation, in the sale of the
controlling shares of the Manila Hotel Corporation;
(5) Whether petitioner is estopped from
questioning the sale of the shares to Renong
Berhad, a foreign corporation.
provides the guiding policies and principles upon which is built the
substantial foundation and general framework of the law and
government.  As a rule, its provisions are deemed self-executing
5
and can be enforced without further legislative action.  Some of its
6
provisions, however, can be implemented only through
appropriate laws enacted by the Legislature, hence not self-
executing.
To determine whether a particular provision of a Constitution is
self-executing is a hard row to hoe. The key lies on the intent of
the framers of the fundamental law oftentimes submerged in its
language. A searching inquiry should be made to find out if the
provision is intended as a present enactment, complete in itself
as a definitive law, or if it needs future legislation for completion
and enforcement.  The inquiry demands a micro-analysis of the
7
text and the context of the provision in question. 8
Courts as a rule consider the provisions of the Constitution as
self-executing,  rather than as requiring future legislation for their
9
enforcement.   The reason is not difficult to discern. For if they
10
Sec. 10. The Congress shall, upon
are not treated as self-executing, the mandate of the fundamental recommendation of the economic and planning
law ratified by the sovereign people can be easily ignored and agency, when the national interest dictates,
nullified by Congress.   Suffused with wisdom of the ages is the
11
reserve to citizens of the Philippines or to
unyielding rule that legislative actions may give breath to corporations or associations at least sixty per
constitutional rights but congressional in action should not centum of whose capital is owned by such
suffocate them.  12
citizens, or such higher percentage as Congress
may prescribe, certain areas of investments. The
Thus, we have treated as self-executing the provisions in the Bill Congress shall enact measures that will
of Rights on arrests, searches and seizures,   the rights of a
13 encourage the formation and operation of
person under custodial investigation,   the rights of an
14 enterprises whose capital is wholly owned by
accused,   and the privilege against self-incrimination,   It is
15 16 Filipinos.
recognize a that legislation is unnecessary to enable courts to
effectuate constitutional provisions guaranteeing the fundamental In the grant of rights, privileges, and concessions
rights of life, liberty and the protection of property.   The same
17
covering the national economy and patrimony, the
treatment is accorded to constitutional provisions forbidding the State shall give preference to qualified Filipinos.
taking or damaging of property for public use without just
compensation. 18
The State shall regulate and exercise authority
over foreign investments within its national
Contrariwise, case law lays down the rule that a constitutional jurisdiction and in accordance with its national
provision is not self-executing where it merely announces a policy goals and priorities.
and its language empowers the Legislature to prescribe the
means by which the policy shall be carried into The first paragraph directs Congress to reserve certain
effect.   Accordingly, we have held that the provisions in Article II
19
areas of investments in the country   to Filipino citizens or
25

of our Constitution entitled "Declaration of Principles and State to corporations sixty per
Policies" should generally be construed as mere statements of cent   of whose capital stock is owned by Filipinos. It
26

principles of the State.   We have also ruled that some provisions
20
further commands Congress to enact laws that will
of Article XIII on "Social Justice and Human Rights,"   and Article
21
encourage the formation and operation of one hundred
XIV on "Education Science and Technology, Arts, Culture end percent Filipino-owned enterprises. In checkered contrast,
Sports"   cannot be the basis of judicially enforceable rights. Their
22
the second paragraph orders the entire State to give
enforcement is addressed to the discretion of Congress though preference to qualified Filipinos in the grant of rights and
they provide the framework for legislation   to effectuate their
23
privileges covering the national economy and patrimony.
policy content.  24
The third paragraph also directs the State to regulate
foreign investments in line with our national goals and
Guided by this map of settled jurisprudence, we now consider well-set priorities.
whether Section 10, Article XII of the 1987 Constitution is self-
executing or not. It reads: The first paragraph of Section 10 is not self-executing. By
its express text, there is a categorical command for
 Congress to enact laws restricting foreign ownership in
certain areas of investments in the country and to
encourage the formation and operation of wholly-owned
Filipino enterprises. The right granted by the provision is
clearly still in esse. Congress has to breathe life to the
right by means of legislation. Parenthetically, this
paragraph was plucked from section 3, Article XIV of the
1973 Constitution.   The provision in the 1973
27
Constitution affirmed our ruling in the landmark case
of Lao Ichong v. Hernandez,  where we upheld the
28
discretionary authority of Congress to Filipinize certain
areas of investments.   By reenacting the 1973 provision,
29
the first paragraph of section 10 affirmed the power of
Congress to nationalize certain areas of investments in
favor of Filipinos.
The second and third paragraphs of Section 10 are different.
They are directed to the State and not to Congress alone which is
but one of the three great branches of our government. Their
coverage is also broader for they cover "the national economy
and patrimony" and "foreign investments within [the] national
jurisdiction" and not merely "certain areas of investments."
Beyond debate, they cannot be read as granting Congress the
exclusive power to implement by law the policy of giving
preference to qualified Filipinos in the conferral of rights and
privileges covering our national economy and patrimony. Their
language does not suggest that any of the State agency or
instrumentality has the privilege to hedge or to refuse its
implementation for any reason whatsoever. Their duty to
implement is unconditional and it is now. The second and the
third paragraphs of Section 10, Article XII are thus self-executing.
This submission is strengthened by Article II of the Constitution
entitled "Declaration of Principles and State Policies." Its Section
19 provides that "[T]he State shall develop a self-reliant and
independent national economy effectively controlled by Filipinos."
It engrafts the all-important Filipino First policy in our fundamental
law and by the use of the mandatory word "shall," directs its
enforcement by the whole State without any pause or a half-
pause in time.
The second issue is whether the sale of a majority of the stocks
of the Manila Hotel Corporation involves the disposition of part of
our national patrimony. The records of the Constitutional
Commission show that the Commissioners entertained the same
view as to its meaning. According to Commissioner Nolledo,
"patrimony" refers not only to our rich natural resources but also
to the cultural heritage of our race.   By this yardstick, the sale of
30
Manila Hotel falls within the coverage of the constitutional
provision giving preferential treatment to qualified Filipinos in the
grant of rights involving our national patrimony. The unique value
of the Manila Hotel to our history and culture cannot be viewed
with a myopic eye. The value of the hotel goes beyond pesos and
centavos. As chronicled by Beth Day Romulo,   the hotel first
31
opened on July 4, 1912 as a first-class hotel built by the American
Insular Government for Americans living in, or passing through,
Manila while traveling to the Orient. Indigenous materials and
Filipino craftsmanship were utilized in its construction, For
sometime, it was exclusively used by American and Caucasian
travelers and served as the "official guesthouse" of the American
Insular Government for visiting foreign dignitaries. Filipinos began
coming to the Hotel as guests during the Commonwealth period.
When the Japanese occupied Manila, it served as military
headquarters and lodging for the highest-ranking officers from
Tokyo. It was at the Hotel and the Intramuros that the Japanese
made their last stand during the Liberation of Manila. After the
war, the Hotel again served foreign guests and Filipinos alike.
Presidents and kings, premiers and potentates, as well as
glamorous international film and sports celebrities were housed in
the Hotel. It was also the situs of international conventions and
conferences. In the local scene, it was the venue of historic
meetings, parties and conventions of political parties. The Hotel
has reaped and continues reaping numerous recognitions and
awards from international hotel and travel award-giving bodies, a
fitting acknowledgment of Filipino talent and ingenuity. These are
judicially cognizable facts which cannot be bent by a biased mind.
The Hotel may not, as yet, have been declared a national cultural The fourth issue demands that we look at the content of phrase
treasure pursuant to Republic Act No. 4846 but that does not "qualified Filipinos" and their "preferential right." The Constitution
exclude it from our national patrimony. Republic Act No. 4846, desisted from defining their contents. This is as it ought to be for
"The Cultural Properties Preservation and Protection Act," merely a Constitution only lays down flexible policies and principles
provides a procedure whereby a particular cultural property may which can bent to meet today's manifest needs and tomorrow's
be classified a "national cultural treasure" or an "important cultural unmanifested demands. Only a constitution strung with elasticity
property.   Approved on June 18, 1966 and amended by P.D. 374
32
can grow as a living constitution.
in 1974, the law is limited in its reach and cannot be read as the
exclusive law implementing section 10, Article XII of the 1987 Thus, during the deliberations in the Constitutional Commission,
Constitution. To be sure, the law does not equate cultural Commissioner Nolledo to define the phrase brushed aside a
treasure and cultural property as synonymous to the phrase suggestion to define the phrase "qualified Filipinos." He explained
"patrimony of the nation." that present and prospective "laws" will take care of the problem
of its interpretation, viz: 
The third issue is whether the constitutional command to the
State includes the respondent GSIS. A look at its charter will x x x           x x x          x x x
reveal that GSIS is a government-owned and controlled
corporation that administers funds that come from the monthly THE PRESIDENT.
contributions of government employees and the What is the
government.   The funds are held in trust for a distinct purpose
33
suggestion of
which cannot be disposed of indifferently.   They are to be used
34
Commissioner
to finance the retirement, disability and life insurance benefits of Rodrigo? Is it to
the employees and the administrative and operational expenses remove the word
of the GSIS,  Excess funds, however, are allowed to be invested
35
"QUALIFIED?"
in business and other ventures for the benefit of the
employees.  It is thus contended that the GSIS investment in the
36

MR. RODRIGO.
Manila Hotel Corporation is a simple business venture, hence, an
No, no, but say
act beyond the contemplation of section 10, paragraph 2 of Article
definitely "TO
XII of the Constitution.
QUALIFIED
FILIPINOS" as
The submission is unimpressive. The GSIS is not a pure private against whom? As
corporation. It is essentially a public corporation created by against aliens over
Congress and granted an original charter to serve a public aliens?
purpose. It is subject to the jurisdictions of the Civil Service
Commission   and the Commission on Audit.   As state-owned
37 38

MR. NOLLEDO.
and controlled corporation, it is skin-bound to adhere to the
Madam President,
policies spelled out in the general welfare of the people. One of
I think that is
these policies is the Filipino First policy which the people elevated
understood. We
as a constitutional command.
use the word MR. NOLLEDO.
"QUALIFIED" Madam President,
because the that was the
existing laws or the intention of the
prospective laws proponents. The
will always lay committee has
down conditions accepted the
under which amendment.
business map be
done, for example, x x x           x x x          x x x
qualifications on
capital, As previously discussed, the constitutional command to
qualifications on enforce the Filipino First policy is addressed to the State
the setting up of and not to Congress alone. Hence, the word "laws"
other financial should not be understood as limited to legislations but all
structures, et state actions which include applicable rules and
cetera. regulations adopted by agencies and instrumentalities of
the State in the exercise of their rule-making power. In the
MR. RODRIGO. It case at bar, the bidding rules and regulations set forth the
is just a matter of standards to measure the qualifications of bidders
style. Filipinos and foreigners alike. It is not seriously disputed
that petitioner qualified to bid as did Renong Berhad.  39

MR. NOLLEDO
Yes. Thus, we come to the critical issue of the degree of preference
which GSIS should have accorded petitioner, a qualified Filipino,
MR. RODRIGO. If over Renong Berhad, a foreigner, in the purchase of the
we say, controlling shares of the Manila Hotel. Petitioner claims that after
"PREFERENCE losing the bid, this right of preference gives it a second chance to
TO QUALIFIED match the highest bid of Renong Berhad.
FILIPINOS," it can
be understood as With due respect, I cannot sustain petitioner's submission. I
giving preference prescind from the premise that the second paragraph of section
to qualified 10, Article XII of the Constitution is pro-Pilipino but not anti-alien.
Filipinos as against It is pro-Filipino for it gives preference to Filipinos. It is not,
Filipinos who are however, anti-alien per se for it does not absolutely bar aliens in
not qualified. the grant of rights, privileges and concessions covering the
national economy and patrimony. Indeed, in the absence of
qualified Filipinos, the State is not prohibited from granting these
rights, privileges and concessions to foreigners if the act will
promote the weal of the nation.
In implementing the policy articulated in section 10, Article XII of
the Constitution, the stellar task of our State policy-makers is to
maintain a creative tension between two desiderata — first, the
need to develop our economy and patrimony with the help of
foreigners if necessary, and, second, the need to keep our
economy controlled by Filipinos. Rightfully, the framers of the
Constitution did not define the degree of the right of preference to
be given to qualified Filipinos. They knew that for the right to
serve the general welfare, it must have a malleable content that
can be adjusted by our policy-makers to meet the changing
needs of our people. In fine, the right of preference of qualified
Filipinos is to be determined by degree as time dictates and
circumstances warrant. The lesser the need for alien assistance,
the greater the degree of the right of preference can be given to
Filipinos and vice verse.
Again, it should be stressed that the right and the duty to
determine the degree of this privilege at any given time is
addressed to the entire State. While under our constitutional
scheme, the right primarily belongs to Congress as the
lawmaking department of our government, other branches of
government, and all their agencies and instrumentalities, share
the power to enforce this state policy. Within the limits of their
authority, they can act or promulgate rules and regulations
defining the degree of this right of preference in cases where they
have to make grants involving the national economy and judicial
duty. On the other hand, our duty is to strike down acts of the
state that violate the policy.
To date, Congress has not enacted a law defining the degree of
the preferential right. Consequently, we must turn to the rules and
regulations of on respondents Committee Privatization and GSIS
to determine the degree of preference that petitioner is entitled to
as a qualified Filipino in the subject sale. A tearless look at the
rules and regulations will show that they are silent on the degree
of preferential right to be accorded qualified Filipino bidder.
Despite their silence, however, they cannot be read to mean that
they do not grant any degree of preference to petitioner for
paragraph 2, section 10, Article XII of the Constitution is deemed
part of said rules and regulations. Pursuant to legal hermeneutics
which demand that we interpret rules to save them from
unconstitutionality, I submit that the right of preference of
petitioner arises only if it tied the bid of Benong Berhad. In that
instance, all things stand equal, and bidder, as a qualified Pilipino
bidder, should be preferred.
It is with deep regret that I cannot subscribe to the view that
petitioner has a right to match the bid of Renong Berhad.
Petitioner's submission must be supported by the rules but even if
we examine the rules inside-out .thousand times, they can not
justify the claimed right. Under the rules, the right to match the
highest bid arises only "if for any reason, the highest bidder
cannot be awarded block of shares . . ." No reason has arisen
that will prevent the award to Renong Berhad. It qualified as
bidder. It complied with the procedure of bidding. It tendered the
highest bid. It was declared as the highest bidder by the GSIS
and the rules say this decision is final. It deserves the award as a
matter of right for the rules clearly did not give to the petitioner as
a qualified Filipino privilege to match the higher bid of a foreigner.
What the rules did not grant, petitioner cannot demand. Our
symphaties may be with petitioner but the court has no power to
extend the latitude and longtitude of the right of preference as
defined by the rules. The parameters of the right of preference
depend on galaxy of facts and factors whose determination
belongs to the province of the policy-making branches and
agencies of the State. We are duty-bound to respect that
determination even if we differ with the wisdom of their judgment.
The right they grant may be little but we must uphold the grant for
as long as the right of preference is not denied. It is only when a
State action amounts to a denial of the right that the Court can
come in and strike down the denial as unconstitutional.
Finally, I submit that petitioner is estopped from assailing the
winning bid of Renong Berhad. Petitioner was aware of the rules
and regulations of the bidding. It knew that the rules and
regulations do not provide that a qualified Filipino bidder can
match the winning bid submitting an inferior bid. It knew that the
bid was open to foreigners and that foreigners qualified even
during the first bidding. Petitioner cannot be allowed to repudiate
the rules which it agreed to respect. It cannot be allowed to obey
the rules when it wins and disregard them when it loses. If
sustained, petitioners' stance will wreak havoc on he essence of
bidding. Our laws, rules and regulations require highest bidding to
raise as much funds as possible for the government to maximize
its capacity to deliver essential services to our people. This is a
duty that must be discharged by Filipinos and foreigners
participating in a bidding contest and the rules are carefully
written to attain this objective. Among others, bidders are
prequalified to insure their financial capability. The bidding is
secret and the bids are sealed to prevent collusion among the
parties. This objective will be undermined if we grant petitioner
that privilege to know the winning bid and a chance to match it.
For plainly, a second chance to bid will encourage a bidder not to
strive to give the highest bid in the first bidding.
We support the Filipino First policy without any reservation. The
visionary nationalist Don Claro M. Recto has warned us that the
greatest tragedy that can befall a Filipino is to be an alien in his
own land. The Constitution has embodied Recto's counsel as a
state policy. But while the Filipino First policy requires that we
incline to a Filipino, it does not demand that we wrong an alien.
Our policy makers can write laws and rules giving favored
treatment to the Filipino but we are not free to be unfair to a
foreigner after writing the laws and the rules. After the laws are
written, they must be obeyed as written, by Filipinos and
foreigners alike. The equal protection clause of the Constitution
protects all against unfairness. We can be pro-Filipino without
unfairness to foreigner.
I vote to dismiss the petition.
Narvasa, C.J., and Melo, J., concur.
 
 
PANGANIBAN, J., dissenting:
I regret I cannot join the majority. To the incisive Dissenting
Opinion of Mr. Justice Reynato S. Puno, may I just add
1. The majority contends the Constitution should be interpreted to
mean that, after a bidding process is concluded, the losing
Filipino bidder should be given the right to equal the highest
foreign bid, and thus to win. However, the Constitution [Sec. 10
(2), Art. XII] simply states that "in the grant of rights . . . covering
the national economy and patrimony, the State shall give
preference to qualified Filipinos." The majority concedes that
there is no law defining the extent or degree of such
preference. Specifically, no statute empowers a losing Filipino
bidder to increase his bid and equal that of the winning foreigner.
In the absence of such empowering law, the majority's strained
interpretation, I respectfully submit constitutes
unadulterated judicial legislation, which makes bidding a
ridiculous sham where no Filipino can lose and where no
foreigner can win. Only in the Philippines!.
2. Aside from being prohibited by the Constitution, such judicial is
short-sighted and, viewed properly, gravely prejudicial to long-
term Filipino interest. It encourages other countries — in the
guise of reverse comity or worse, unabashed retaliation — to
discriminate against us in their own jurisdictions by authorizing
their own nationals to similarly equal and defeat the higher bids of
Filipino enterprises solely, while on the other hand, allowing
similar bids of other foreigners to remain unchallenged by their
nationals. The majority's thesis will thus marginalize Filipinos as
pariahs in the global marketplace with absolute no chance of
winning any bidding outside our country. Even authoritarian
regimes and hermit kingdoms have long ago found out
unfairness, greed and isolation are self-defeating and in the long-
term, self-destructing.
The moral lesson here is simple: Do not do unto other what you
dont want other to do unto you.
3. In the absence of a law specifying the degree or extent of the
"Filipino First" policy of the Constitution, the constitutional
preference for the "qualified Filipinos" may be allowed only where
all the bids are equal. In this manner, we put the Filipino ahead
without self-destructing him and without being unfair to the
foreigner.
In short, the Constitution mandates a victory for the qualified
Filipino only when the scores are tied. But not when the ballgame
is over and the foreigner clearly posted the highest score.
G.R. No. 118295 May 2, 1997
WIGBERTO E. TAÑADA and ANNA DOMINIQUE COSETENG,
as members of the Philippine Senate and as taxpayers;
GREGORIO ANDOLANA and JOKER ARROYO as members
of the House of Representatives and as taxpayers; NICANOR
P. PERLAS and HORACIO R. MORALES, both as taxpayers;
CIVIL LIBERTIES UNION, NATIONAL ECONOMIC
PROTECTIONISM ASSOCIATION, CENTER FOR
ALTERNATIVE DEVELOPMENT INITIATIVES, LIKAS-KAYANG
KAUNLARAN FOUNDATION, INC., PHILIPPINE RURAL
RECONSTRUCTION MOVEMENT, DEMOKRATIKONG
KILUSAN NG MAGBUBUKID NG PILIPINAS, INC., and
PHILIPPINE PEASANT INSTITUTE, in representation of
various taxpayers and as non-governmental
organizations, petitioners, 
vs.
EDGARDO ANGARA, ALBERTO ROMULO, LETICIA RAMOS-
SHAHANI, HEHERSON ALVAREZ, AGAPITO AQUINO,
RODOLFO BIAZON, NEPTALI GONZALES, ERNESTO
HERRERA, JOSE LINA, GLORIA. MACAPAGAL-ARROYO,
ORLANDO MERCADO, BLAS OPLE, JOHN OSMEÑA,
SANTANINA RASUL, RAMON REVILLA, RAUL ROCO,
FRANCISCO TATAD and FREDDIE WEBB, in their respective
capacities as members of the Philippine Senate who
concurred in the ratification by the President of the
Philippines of the Agreement Establishing the World Trade
Organization; SALVADOR ENRIQUEZ, in his capacity as
Secretary of Budget and Management; CARIDAD
VALDEHUESA, in her capacity as National Treasurer;
RIZALINO NAVARRO, in his capacity as Secretary of Trade
and Industry; ROBERTO SEBASTIAN, in his capacity as
Secretary of Agriculture; ROBERTO DE OCAMPO, in his
capacity as Secretary of Finance; ROBERTO ROMULO, in his
capacity as Secretary of Foreign Affairs; and TEOFISTO T.
GUINGONA, in his capacity as Executive
Secretary, respondents.
PANGANIBAN, J.:
The emergence on January 1, 1995 of the World Trade
Organization, abetted by the membership thereto of the vast
majority of countries has revolutionized international business
and economic relations amongst states. It has irreversibly
propelled the world towards trade liberalization and economic
globalization. Liberalization, globalization, deregulation and
privatization, the third-millennium buzz words, are ushering in a
new borderless world of business by sweeping away as mere
historical relics the heretofore traditional modes of promoting and
protecting national economies like tariffs, export subsidies, import
quotas, quantitative restrictions, tax exemptions and currency
controls. Finding market niches and becoming the best in specific
industries in a market-driven and export-oriented global scenario
are replacing age-old "beggar-thy-neighbor" policies that
unilaterally protect weak and inefficient domestic producers of
goods and services. In the words of Peter Drucker, the well-
known management guru, "Increased participation in the world
economy has become the key to domestic economic growth and
prosperity."
Brief Historical Background
To hasten worldwide recovery from the devastation wrought by
the Second World War, plans for the establishment of three
multilateral institutions — inspired by that grand political body, the
United Nations — were discussed at Dumbarton Oaks and
Bretton Woods. The first was the World Bank (WB) which was to
address the rehabilitation and reconstruction of war-ravaged and
later developing countries; the second, the International Monetary
Fund (IMF) which was to deal with currency problems; and
the third, the International Trade Organization (ITO), which was to
foster order and predictability in world trade and to minimize
unilateral protectionist policies that invite challenge, even
retaliation, from other states. However, for a variety of reasons,
including its non-ratification by the United States, the ITO, unlike
the IMF and WB, never took off. What remained was only GATT
— the General Agreement on Tariffs and Trade. GATT was a
collection of treaties governing access to the economies of treaty
adherents with no institutionalized body administering the
agreements or dependable system of dispute settlement.
After half a century and several dizzying rounds of negotiations,
principally the Kennedy Round, the Tokyo Round and the
Uruguay Round, the world finally gave birth to that administering
body — the World Trade Organization — with the signing of the
"Final Act" in Marrakesh, Morocco and the ratification of the WTO
Agreement by its members. 1
Like many other developing countries, the Philippines joined
WTO as a founding member with the goal, as articulated by
President Fidel V. Ramos in two letters to the Senate (infra), of
improving "Philippine access to foreign markets, especially its
major trading partners, through the reduction of tariffs on its
exports, particularly agricultural and industrial products." The
President also saw in the WTO the opening of "new opportunities
for the services sector . . . , (the reduction of) costs and
uncertainty associated with exporting . . . , and (the attraction of)
more investments into the country." Although the Chief Executive
did not expressly mention it in his letter, the Philippines — and
this is of special interest to the legal profession — will benefit
from the WTO system of dispute settlement by judicial
adjudication through the independent WTO settlement bodies
called (1) Dispute Settlement Panels and (2) Appellate Tribunal.
Heretofore, trade disputes were settled mainly through
negotiations where solutions were arrived at frequently on the
basis of relative bargaining strengths, and where naturally, weak
and underdeveloped countries were at a disadvantage.
The Petition in Brief
Arguing mainly (1) that the WTO requires the Philippines "to place
nationals and products of member-countries on the same footing
as Filipinos and local products" and (2) that the WTO "intrudes,
limits and/or impairs" the constitutional powers of both Congress
and the Supreme Court, the instant petition before this Court
assails the WTO Agreement for violating the mandate of the 1987
Constitution to "develop a self-reliant and independent national
economy effectively controlled by Filipinos . . . (to) give
preference to qualified Filipinos (and to) promote the preferential
use of Filipino labor, domestic materials and locally produced
goods."
Simply stated, does the Philippine Constitution prohibit Philippine
participation in worldwide trade liberalization and economic
globalization? Does it proscribe Philippine integration into a global
economy that is liberalized, deregulated and privatized? These
are the main questions raised in this petition for certiorari,
prohibition and mandamus under Rule 65 of the Rules of Court
praying (1) for the nullification, on constitutional grounds, of the
concurrence of the Philippine Senate in the ratification by the
President of the Philippines of the Agreement Establishing the
World Trade Organization (WTO Agreement, for brevity) and (2)
for the prohibition of its implementation and enforcement through
the release and utilization of public funds, the assignment of
public officials and employees, as well as the use of government
properties and resources by respondent-heads of various
executive offices concerned therewith. This concurrence is
embodied in Senate Resolution No. 97, dated December 14,
1994.
The Facts
On April 15, 1994, Respondent Rizalino Navarro, then Secretary
of The Department of Trade and Industry (Secretary Navarro, for
brevity), representing the Government of the Republic of the
Philippines, signed in Marrakesh, Morocco, the Final Act
Embodying the Results of the Uruguay Round of Multilateral
Negotiations (Final Act, for brevity).
By signing the Final Act,  Secretary Navarro on behalf of the
2
Republic of the Philippines, agreed:
(a) to submit, as appropriate, the WTO Agreement
for the consideration of their respective competent
authorities, with a view to seeking approval of the
Agreement in accordance with their procedures;
and
(b) to adopt the Ministerial Declarations and
Decisions.
On August 12, 1994, the members of the Philippine Senate
received a letter dated August 11, 1994 from the President of the
Philippines,  stating among others that "the Uruguay Round Final
3
Act is hereby submitted to the Senate for its concurrence
pursuant to Section 21, Article VII of the Constitution."
On August 13, 1994, the members of the Philippine Senate
received another letter from the President of the
Philippines  likewise dated August 11, 1994, which stated among
4
others that "the Uruguay Round Final Act, the Agreement
Establishing the World Trade Organization, the Ministerial
Declarations and Decisions, and the Understanding on
Commitments in Financial Services are hereby submitted to the
Senate for its concurrence pursuant to Section 21, Article VII of
the Constitution."
On December 9, 1994, the President of the Philippines certified
the necessity of the immediate adoption of P.S. 1083, a resolution
entitled "Concurring in the Ratification of the Agreement
Establishing the World Trade Organization." 5
On December 14, 1994, the Philippine Senate adopted
Resolution No. 97 which "Resolved, as it is hereby resolved, that
the Senate concur, as it hereby concurs, in the ratification by the
President of the Philippines of the Agreement Establishing the
World Trade Organization."  The text of the WTO Agreement is
6
written on pages 137 et seq. of Volume I of the 36-
volume Uruguay Round of Multilateral Trade Negotiations and
includes various agreements and associated legal instruments
(identified in the said Agreement as Annexes 1, 2 and 3 thereto
and collectively referred to as Multilateral Trade Agreements, for Understanding on Rules and
brevity) as follows: Procedures Governing
the Settlement of Disputes
ANNEX 1
ANNEX 3
Annex 1A: Multilateral Agreement on Trade in
Goods Trade Policy Review Mechanism
General Agreement on Tariffs and Trade 1994
Agreement on Agriculture On December 16, 1994, the President of the Philippines
Agreement on the Application of Sanitary and signed  the Instrument of Ratification, declaring:
7

Phytosanitary Measures
Agreement on Textiles and Clothing  NOW THEREFORE, be it known that I, FIDEL V.
Agreement on Technical Barriers to Trade RAMOS, President of the Republic of the
Agreement on Trade-Related Investment Philippines, after having seen and considered the
Measures aforementioned Agreement Establishing the
Agreement on Implementation of Article VI of he  World Trade Organization and the agreements
General Agreement on Tariffs and Trade and associated legal instruments included in
1994 Annexes one (1), two (2) and three (3) of that
Agreement on Implementation of Article VII of the Agreement which are integral parts thereof,
General on Tariffs and Trade 1994 signed at Marrakesh, Morocco on 15 April 1994,
Agreement on Pre-Shipment Inspection  do hereby ratify and confirm the same and every
Agreement on Rules of Origin Article and Clause thereof.
Agreement on Imports Licensing Procedures
Agreement on Subsidies and Coordinating
To emphasize, the WTO Agreement ratified by the President of
Measures
the Philippines is composed of the Agreement Proper and "the
Agreement on Safeguards 
associated legal instruments included in Annexes one (1), two (2)
and three (3) of that Agreement which are integral parts thereof."
Annex 1B: General Agreement on Trade in
Services and Annexes
On the other hand, the Final Act signed by Secretary Navarro
embodies not only the WTO Agreement (and its integral annexes
Annex 1C: Agreement on Trade-Related Aspects aforementioned) but also (1) the Ministerial Declarations and
of Intellectual Decisions and (2) the Understanding on Commitments in
Property Rights Financial Services. In his Memorandum dated May 13, 1996,  the
8

Solicitor General describes these two latter documents as follows:

ANNEX 2
The Ministerial Decisions and Declarations are
twenty-five declarations and decisions on a wide
 range of matters, such as measures in favor of
least developed countries, notification procedures,
relationship of WTO with the International
Monetary Fund (IMF), and agreements on
technical barriers to trade and on dispute
settlement.
The Understanding on Commitments in Financial
Services dwell on, among other things, standstill
or limitations and qualifications of commitments to
existing non-conforming measures, market
access, national treatment, and definitions of non-
resident supplier of financial services, commercial
presence and new financial service.
On December 29, 1994, the present petition was filed. After
careful deliberation on respondents' comment and petitioners'
reply thereto, the Court resolved on December 12, 1995, to give
due course to the petition, and the parties thereafter filed their
respective memoranda. The court also requested the Honorable
Lilia R. Bautista, the Philippine Ambassador to the United Nations
stationed in Geneva, Switzerland, to submit a paper, hereafter
referred to as "Bautista Paper,"  for brevity, (1) providing a
9
historical background of and (2) summarizing the said
agreements.
During the Oral Argument held on August 27, 1996, the Court
directed:
(a) the petitioners to submit the (1) Senate
Committee Report on the matter in controversy
and (2) the transcript of proceedings/hearings in
the Senate; and
(b) the Solicitor General, as counsel for
respondents, to file (1) a list of Philippine treaties
signed prior to the Philippine adherence to the
WTO Agreement, which derogate from Philippine
sovereignty and (2) copies of the multi-volume
WTO Agreement and other documents mentioned
in the Final Act, as soon as possible.
After receipt of the foregoing documents, the Court said it would
consider the case submitted for resolution. In a Compliance dated
September 16, 1996, the Solicitor General submitted a printed
copy of the 36-volume Uruguay Round of Multilateral Trade
Negotiations, and in another Compliance dated October 24, 1996,
he listed the various "bilateral or multilateral treaties or
international instruments involving derogation of Philippine
sovereignty." Petitioners, on the other hand, submitted their
Compliance dated January 28, 1997, on January 30, 1997.
The Issues
In their Memorandum dated March 11, 1996, petitioners
summarized the issues as follows:
A. Whether the petition presents a political
question or is otherwise not justiciable.
B. Whether the petitioner members of the Senate
who participated in the deliberations and voting
leading to the concurrence are estopped from
impugning the validity of the Agreement
Establishing the World Trade Organization or of
the validity of the concurrence.
C. Whether the provisions of the Agreement
Establishing the World Trade Organization
contravene the provisions of Sec. 19, Article II,
and Secs. 10 and 12, Article XII, all of the 1987
Philippine Constitution.
 D. Whether provisions of the Agreement
Establishing the World Trade Organization unduly
limit, restrict and impair Philippine sovereignty
specifically the legislative power which, under
Sec. 2, Article VI, 1987 Philippine Constitution is
"vested in the Congress of the Philippines";
E. Whether provisions of the Agreement
Establishing the World Trade Organization
interfere with the exercise of judicial power.
F. Whether the respondent members of the
Senate acted in grave abuse of discretion
amounting to lack or excess of jurisdiction when
they voted for concurrence in the ratification of the
constitutionally-infirm Agreement Establishing the
World Trade Organization.
G. Whether the respondent members of the
Senate acted in grave abuse of discretion
amounting to lack or excess of jurisdiction when
they concurred only in the ratification of the
Agreement Establishing the World Trade
Organization, and not with the Presidential
submission which included the Final Act,
Ministerial Declaration and Decisions, and the
Understanding on Commitments in Financial
Services.
On the other hand, the Solicitor General as counsel for
respondents "synthesized the several issues raised by petitioners
into the following": 
10
1. Whether or not the provisions of the
"Agreement Establishing the World Trade
Organization and the Agreements and Associated
Legal Instruments included in Annexes one (1),
two (2) and three (3) of that agreement" cited by
petitioners directly contravene or undermine the
letter, spirit and intent of Section 19, Article II and
Sections 10 and 12, Article XII of the 1987
Constitution.
2. Whether or not certain provisions of the
Agreement unduly limit, restrict or impair the
exercise of legislative power by Congress.
3. Whether or not certain provisions of the
Agreement impair the exercise of judicial power
by this Honorable Court in promulgating the rules
of evidence.
4. Whether or not the concurrence of the Senate
"in the ratification by the President of the
Philippines of the Agreement establishing the
World Trade Organization" implied rejection of the
treaty embodied in the Final Act.
By raising and arguing only four issues against the seven
presented by petitioners, the Solicitor General has effectively
ignored three, namely: (1) whether the petition presents a political
question or is otherwise not justiciable; (2) whether petitioner-
members of the Senate (Wigberto E. Tañada and Anna
Dominique Coseteng) are estopped from joining this suit; and (3)
whether the respondent-members of the Senate acted in grave
abuse of discretion when they voted for concurrence in the
ratification of the WTO Agreement. The foregoing
notwithstanding, this Court resolved to deal with these three
issues thus:
(1) The "political question" issue — being very fundamental and
vital, and being a matter that probes into the very jurisdiction of
this Court to hear and decide this case — was deliberated upon
by the Court and will thus be ruled upon as the first issue;
(2) The matter of estoppel will not be taken up because this
defense is waivable and the respondents have effectively waived
it by not pursuing it in any of their pleadings; in any event, this
issue, even if ruled in respondents' favor, will not cause the
petition's dismissal as there are petitioners other than the two
senators, who are not vulnerable to the defense of estoppel; and
(3) The issue of alleged grave abuse of discretion on the part of
the respondent senators will be taken up as an integral part of the
disposition of the four issues raised by the Solicitor General.
During its deliberations on the case, the Court noted that the
respondents did not question the locus standi of petitioners.
Hence, they are also deemed to have waived the benefit of such
issue. They probably realized that grave constitutional issues,
expenditures of public funds and serious international
commitments of the nation are involved here, and that
transcendental public interest requires that the substantive issues
be met head on and decided on the merits, rather than skirted or
deflected by procedural matters.  11
To recapitulate, the issues that will be ruled upon shortly are:
(1) DOES THE PETITION PRESENT A
JUSTICIABLE CONTROVERSY? OTHERWISE
STATED, DOES THE PETITION INVOLVE A
POLITICAL QUESTION OVER WHICH THIS
COURT HAS NO JURISDICTION?
(2) DO THE PROVISIONS OF THE WTO
AGREEMENT AND ITS THREE ANNEXES
CONTRAVENE SEC. 19, ARTICLE II, AND
SECS. 10 AND 12, ARTICLE XII, OF THE
PHILIPPINE CONSTITUTION?
(3) DO THE PROVISIONS OF SAID
AGREEMENT AND ITS ANNEXES LIMIT,
RESTRICT, OR IMPAIR THE EXERCISE OF
LEGISLATIVE POWER BY CONGRESS?
(4) DO SAID PROVISIONS UNDULY IMPAIR OR
INTERFERE WITH THE EXERCISE OF
JUDICIAL POWER BY THIS COURT IN
PROMULGATING RULES ON EVIDENCE?
(5) WAS THE CONCURRENCE OF THE
SENATE IN THE WTO AGREEMENT AND ITS
ANNEXES SUFFICIENT AND/OR VALID,
CONSIDERING THAT IT DID NOT INCLUDE
THE FINAL ACT, MINISTERIAL DECLARATIONS
AND DECISIONS, AND THE UNDERSTANDING
ON COMMITMENTS IN FINANCIAL SERVICES?
The First Issue: Does the Court
Have Jurisdiction Over the Controversy?
In seeking to nullify an act of the Philippine Senate on the ground
that it contravenes the Constitution, the petition no doubt raises a
justiciable controversy. Where an action of the legislative branch
is seriously alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary to settle the
dispute. "The question thus posed is judicial rather than political.
The duty (to adjudicate) remains to assure that the supremacy of
the Constitution is upheld."   Once a "controversy as to the
12
application or interpretation of a constitutional provision is raised
before this Court (as in the instant case), it becomes a legal issue
which the Court is bound by constitutional mandate to decide."  13
The jurisdiction of this Court to adjudicate the matters   raised in
14
the petition is clearly set out in the 1987 Constitution,   as follows:
15
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.
The foregoing text emphasizes the judicial department's duty and
power to strike down grave abuse of discretion on the part of any
branch or instrumentality of government including Congress. It is
an innovation in our political law.  As explained by former Chief
16
Justice Roberto Concepcion,   "the judiciary is the final arbiter on
17
the question of whether or not a branch of government or any of
its officials has acted without jurisdiction or in excess of
jurisdiction or so capriciously as to constitute an abuse of
discretion amounting to excess of jurisdiction. This is not only a
judicial power but a duty to pass judgment on matters of this
nature."
As this Court has repeatedly and firmly emphasized in many
cases,   it will not shirk, digress from or abandon its sacred duty
18
and authority to uphold the Constitution in matters that involve
grave abuse of discretion brought before it in appropriate cases,
committed by any officer, agency, instrumentality or department
of the government.
As the petition alleges grave abuse of discretion and as there is
no other plain, speedy or adequate remedy in the ordinary course
of law, we have no hesitation at all in holding that this petition
should be given due course and the vital questions raised therein
ruled upon under Rule 65 of the Rules of Court. Indeed, certiorari,
prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when
proper, acts of legislative and executive officials. On this, we have
no equivocation.
We should stress that, in deciding to take jurisdiction over this
petition, this Court will not review the wisdom of the decision of
the President and the Senate in enlisting the country into the
WTO, or pass upon the merits of trade liberalization as a policy
espoused by said international body. Neither will it rule on
the propriety of the government's economic policy of
reducing/removing tariffs, taxes, subsidies, quantitative
restrictions, and other import/trade barriers. Rather, it will only
exercise its constitutional duty "to determine whether or not there
had been a grave abuse of discretion amounting to lack or excess
of jurisdiction" on the part of the Senate in ratifying the WTO
Agreement and its three annexes.
Second Issue: The WTO Agreement
and Economic Nationalism
This is the lis mota, the main issue, raised by the petition.
Petitioners vigorously argue that the "letter, spirit and intent" of
the Constitution mandating "economic nationalism" are violated
by the so-called "parity provisions" and "national treatment"
clauses scattered in various parts not only of the WTO
Agreement and its annexes but also in the Ministerial Decisions
and Declarations and in the Understanding on Commitments in
Financial Services.
Specifically, the "flagship" constitutional provisions referred to are
Sec 19, Article II, and Secs. 10 and 12, Article XII, of the
Constitution, which are worded as follows:
Article II
DECLARATION OF PRINCIPLES
AND STATE POLICIES
x x x           x x x          x x x
Sec. 19. The State shall develop a self-reliant and
independent national economy effectively
controlled by Filipinos.
 x x x           x x x          x x x
Article XII
NATIONAL ECONOMY AND PATRIMONY  provisions of Article II or Article XI
x x x           x x x          x x x
Sec. 10. . . . The Congress shall enact measures
that will encourage the formation and operation of
enterprises whose capital is wholly owned by
Filipinos.
In the grant of rights, privileges, and concessions
covering the national economy and patrimony, the
State shall give preference to qualified Filipinos.
x x x           x x x          x x x
Sec. 12. The State shall promote the preferential
use of Filipino labor, domestic materials and
locally produced goods, and adopt measures that
help make them competitive.
Petitioners aver that these sacred constitutional principles are
desecrated by the following WTO provisions quoted in their
memorandum:  19
a) In the area of investment measures related to
trade in goods (TRIMS, for brevity):
Article 2
National Treatment and Quantitative Restrictions.
1. Without prejudice to other rights
and obligations under GATT 1994,
no Member shall apply any TRIM
that is inconsistent with the
of GATT 1994.
2. An illustrative list of TRIMS that
are inconsistent with the
obligations of general elimination
of quantitative restrictions provided
for in paragraph I of Article XI of
GATT 1994 is contained in the
Annex to this Agreement."
(Agreement on Trade-Related
Investment Measures, Vol. 27,
Uruguay Round, Legal
Instruments, p. 22121, emphasis
supplied).
The Annex referred to reads as follows:
ANNEX
Illustrative List
1. TRIMS that are inconsistent with the obligation
of national treatment provided for in paragraph 4
of Article III of GATT 1994 include those which are
mandatory or enforceable under domestic law or
under administrative rulings, or compliance with
which is necessary to obtain an advantage, and
which require:
(a) the purchase or use by an
enterprise of products of domestic
origin or from any domestic
 source, whether specified in terms
of particular products, in terms of
volume or value of products, or in
terms of proportion of volume or
value of its local production; or  Measures, Vol. 27, Uruguay
(b) that an enterprise's purchases
or use of imported products be
limited to an amount related to the
volume or value of local products
that it exports.
2. TRIMS that are inconsistent with the obligations
of general elimination of quantitative restrictions
provided for in paragraph 1 of Article XI of GATT
1994 include those which are mandatory or
enforceable under domestic laws or under
administrative rulings, or compliance with which is
necessary to obtain an advantage, and which
restrict:
(a) the importation by an
enterprise of products used in or
related to the local production that
it exports;
(b) the importation by an
enterprise of products used in or
related to its local production by
restricting its access to foreign
exchange inflows attributable to
the enterprise; or
(c) the exportation or sale for
export specified in terms of
particular products, in terms of
volume or value of products, or in
terms of a preparation of volume
or value of its local production.
(Annex to the Agreement on
Trade-Related Investment
Round Legal Documents, p.
22125, emphasis supplied).
The paragraph 4 of Article III of GATT 1994
referred to is quoted as follows:
The products of the territory of any
contracting party imported into the
territory of any other contracting
party shall be accorded treatment
no less favorable than that
accorded to like products of
national origin in respect of laws,
regulations and requirements
affecting their internal sale,
offering for sale, purchase,
transportation, distribution or use,
the provisions of this paragraph
shall not prevent the application of
differential internal transportation
charges which are based
exclusively on the economic
operation of the means of
transport and not on the nationality
of the product." (Article III, GATT
1947, as amended by the Protocol
Modifying Part II, and Article XXVI
of GATT, 14 September 1948, 62
UMTS 82-84 in relation to
paragraph 1(a) of the General
Agreement on Tariffs and Trade
1994, Vol. 1, Uruguay Round,
 Legal Instruments p. 177, 2. A Member may meet the
emphasis supplied). requirement of paragraph I by
according to services and service
(b) In the area of trade related aspects of suppliers of any other Member,
intellectual property rights (TRIPS, for brevity): either formally suppliers of any
other Member, either formally
Each Member shall accord to the identical treatment or formally
nationals of other Members different treatment to that it
treatment no less favourable than accords to its own like services
that it accords to its own and service suppliers.
nationals with regard to the
protection of intellectual property. . 3. Formally identical or formally
. (par. 1 Article 3, Agreement on different treatment shall be
Trade-Related Aspect of considered to be less favourable if
Intellectual Property rights, Vol. it modifies the conditions of
31, Uruguay Round, Legal completion in favour of services or
Instruments, p. 25432 (emphasis service suppliers of the Member
supplied) compared to like services or
service suppliers of any other
(c) In the area of the General Agreement on Member. (Article XVII, General
Trade in Services: Agreement on Trade in Services,
Vol. 28, Uruguay Round Legal
Instruments, p. 22610 emphasis
National Treatment
supplied).
1. In the sectors inscribed in its
It is petitioners' position that the foregoing "national treatment"
schedule, and subject to any
and "parity provisions" of the WTO Agreement "place nationals
conditions and qualifications set
and products of member countries on the same footing as
out therein, each Member shall
Filipinos and local products," in contravention of the "Filipino
accord to services and service
First" policy of the Constitution. They allegedly render
suppliers of any other Member, in
meaningless the phrase "effectively controlled by Filipinos." The
respect of all measures affecting
constitutional conflict becomes more manifest when viewed in the
the supply of services, treatment
context of the clear duty imposed on the Philippines as a WTO
no less favourable than it accords
member to ensure the conformity of its laws, regulations and
to its own like services and service
administrative procedures with its obligations as provided in the
suppliers.
annexed agreements.   Petitioners further argue that these
20

provisions contravene constitutional limitations on the role exports

play in national development and negate the preferential
treatment accorded to Filipino labor, domestic materials and
locally produced goods.
On the other hand, respondents through the Solicitor General
counter (1) that such Charter provisions are not self-executing
and merely set out general policies; (2) that these nationalistic
portions of the Constitution invoked by petitioners should not be
read in isolation but should be related to other relevant provisions
of Art. XII, particularly Secs. 1 and 13 thereof; (3) that read
properly, the cited WTO clauses do not conflict with Constitution;
and (4) that the WTO Agreement contains sufficient provisions to
protect developing countries like the Philippines from the
harshness of sudden trade liberalization.
We shall now discuss and rule on these arguments.
Declaration of Principles
Not Self-Executing
By its very title, Article II of the Constitution is a "declaration of
principles and state policies." The counterpart of this article in the
1935 Constitution   is called the "basic political creed of the
21
nation" by Dean Vicente Sinco.   These principles in Article II are
22
not intended to be self-executing principles ready for enforcement
through the courts.  They are used by the judiciary as aids or as
23
guides in the exercise of its power of judicial review, and by the
legislature in its enactment of laws. As held in the leading case
of Kilosbayan, Incorporated vs. Morato,   the principles and state
24
policies enumerated in Article II and some sections of Article XII
are not "self-executing provisions, the disregard of which can give
rise to a cause of action in the courts. They do not embody
judicially enforceable constitutional rights but guidelines for
legislation."
In the same light, we held in Basco vs. Pagcor   that broad
25
constitutional principles need legislative enactments to implement
the, thus:
On petitioners' allegation that P.D. 1869 violates
Sections 11 (Personal Dignity) 12 (Family) and 13
(Role of Youth) of Article II; Section 13 (Social
Justice) of Article XIII and Section 2 (Educational
Values) of Article XIV of the 1987 Constitution,
suffice it to state also that these are merely
statements of principles and policies. As such,
they are basically not self-executing, meaning a
law should be passed by Congress to clearly
define and effectuate such principles.
In general, therefore, the 1935
provisions were not intended to be
self-executing principles ready for
enforcement through the courts.
They were rather directives
addressed to the executive and to
the legislature. If the executive and
the legislature failed to heed the
directives of the article, the
available remedy was not judicial
but political. The electorate could
express their displeasure with the
failure of the executive and the
legislature through the language of
the ballot. (Bernas, Vol. II, p. 2).
The reasons for denying a cause of action to an alleged
infringement of board constitutional principles are sourced from
basic considerations of due process and the lack of judicial
authority to wade "into the uncharted ocean of social and
economic policy making." Mr. Justice Florentino P. Feliciano in
his concurring opinion in Oposa vs. Factoran, Jr.,   explained
26
these reasons as follows:
My suggestion is simply that petitioners must,
before the trial court, show a more specific legal
right — a right cast in language of a significantly
lower order of generality than Article II (15) of the
Constitution — that is or may be violated by the
actions, or failures to act, imputed to the public
respondent by petitioners so that the trial court
can validly render judgment grating all or part of
the relief prayed for. To my mind, the court should
be understood as simply saying that such a more
specific legal right or rights may well exist in our
corpus of law, considering the general policy
principles found in the Constitution and the
existence of the Philippine Environment Code,
and that the trial court should have given
petitioners an effective opportunity so to
demonstrate, instead of aborting the proceedings
on a motion to dismiss.
It seems to me important that the legal right which
is an essential component of a cause of action be
a specific, operable legal right, rather than a
constitutional or statutory policy, for at least two
(2) reasons. One is that unless the legal right
claimed to have been violated or disregarded is
given specification in operational terms,
defendants may well be unable to defend
themselves intelligently and effectively; in other
words, there are due process dimensions to this
matter.
The second is a broader-gauge consideration —
where a specific violation of law or applicable
regulation is not alleged or proved, petitioners can
be expected to fall back on the expanded
conception of judicial power in the second
paragraph of Section 1 of Article VIII of the
Constitution which reads:
Sec. 1. . . .
Judicial power includes the duty of
the courts of justice to settle actual
controversies involving rights
which are legally demandable and
enforceable, and to determine
whether or not there has been a
grave abuse of discretion
amounting to lack or excess of
jurisdiction on the part of any
branch or instrumentality of the
Government. (Emphasis supplied)
When substantive standards as general as "the
right to a balanced and healthy ecology" and "the
right to health" are combined with remedial
standards as broad ranging as "a grave abuse of
discretion amounting to lack or excess of
jurisdiction," the result will be, it is respectfully
submitted, to propel courts into the uncharted
ocean of social and economic policy making. At
least in respect of the vast area of environmental
protection and management, our courts have no
claim to special technical competence and
experience and professional qualification. Where
no specific, operable norms and standards are
shown to exist, then the policy making
departments — the legislative and executive
departments — must be given a real and effective
opportunity to fashion and promulgate those
norms and standards, and to implement them
before the courts should intervene.
Economic Nationalism Should Be Read with
Other Constitutional Mandates to Attain
Balanced Development of Economy
On the other hand, Secs. 10 and 12 of Article XII, apart from
merely laying down general principles relating to the national
economy and patrimony, should be read and understood in
relation to the other sections in said article, especially Secs. 1
and 13 thereof which read:
Sec. 1. The goals of the national economy are a
more equitable distribution of opportunities,
income, and wealth; a sustained increase in the
amount of goods and services produced by the
nation for the benefit of the people; and an
expanding productivity as the key to raising the
quality of life for all especially the underprivileged.
The State shall promote industrialization and full
employment based on sound agricultural
development and agrarian reform, through
industries that make full and efficient use of
human and natural resources, and which are
competitive in both domestic and foreign markets.
However, the State shall protect Filipino
enterprises against unfair foreign competition and
trade practices.
In the pursuit of these goals, all sectors of the
economy and all regions of the country shall be
given optimum opportunity to develop. . . .
xxx xxx xxx
Sec. 13. The State shall pursue a trade policy that
serves the general welfare and utilizes all forms
and arrangements of exchange on the basis of
equality and reciprocity.
As pointed out by the Solicitor General, Sec. 1 lays down
the basic goals of national economic development, as follows:
1. A more equitable distribution of opportunities, income and
wealth;
2. A sustained increase in the amount of goods and services
provided by the nation for the benefit of the people; and
3. An expanding productivity as the key to raising the quality of
life for all especially the underprivileged.
With these goals in context, the Constitution then ordains the
ideals of economic nationalism (1) by expressing preference in
favor of qualified Filipinos "in the grant of rights, privileges and
concessions covering the national economy and patrimony"   and 27
in the use of "Filipino labor, domestic materials and locally-
produced goods"; (2) by mandating the State to "adopt measures
that help make them competitive;   and (3) by requiring the State
28
to "develop a self-reliant and independent national economy
effectively controlled by Filipinos."   In similar language, the
29
Constitution takes into account the realities of the outside world
as it requires the pursuit of "a trade policy that serves the general
welfare and utilizes all forms and arrangements of exchange on
the basis of equality ad reciprocity";   and speaks of industries
30
"which are competitive in both domestic and foreign markets" as
well as of the protection of "Filipino enterprises
against unfair foreign competition and trade practices."
It is true that in the recent case of Manila Prince Hotel
vs. Government Service Insurance System, et al.,   this Court
31
held that "Sec. 10, second par., Art. XII of the 1987 Constitution is
a mandatory, positive command which is complete in itself and
which needs no further guidelines or implementing laws or rule for
its enforcement. From its very words the provision does not
require any legislation to put it in operation. It is per se judicially
enforceable." However, as the constitutional provision itself
states, it is enforceable only in regard to "the grants of rights,
privileges and concessions covering national economy and
patrimony" and not to every aspect of trade and commerce. It
refers to exceptions rather than the rule. The issue here is not
whether this paragraph of Sec. 10 of Art. XII is self-executing or
not. Rather, the issue is whether, as a rule, there are enough
balancing provisions in the Constitution to allow the Senate to
ratify the Philippine concurrence in the WTO Agreement. And we
hold that there are.
All told, while the Constitution indeed mandates a bias in favor of
Filipino goods, services, labor and enterprises, at the same time,
it recognizes the need for business exchange with the rest of the
world on the bases of equality and reciprocity and limits
protection of Filipino enterprises only against foreign competition
and trade practices that are unfair.   In other words, the
32
Constitution did not intend to pursue an isolationist policy. It did
not shut out foreign investments, goods and services in the
development of the Philippine economy. While the Constitution
does not encourage the unlimited entry of foreign goods, services
and investments into the country, it does not prohibit them either.
In fact, it allows an exchange on the basis of equality and
reciprocity, frowning only on foreign competition that is unfair.
WTO Recognizes Need to
Protect Weak Economies
Upon the other hand, respondents maintain that the WTO itself
has some built-in advantages to protect weak and developing
economies, which comprise the vast majority of its members.
Unlike in the UN where major states have permanent seats and
veto powers in the Security Council, in the WTO, decisions are
made on the basis of sovereign equality, with each member's
vote equal in weight to that of any other. There is no WTO
equivalent of the UN Security Council.
WTO decides by consensus whenever possible,
otherwise, decisions of the Ministerial Conference
and the General Council shall be taken by the
majority of the votes cast, except in cases of
interpretation of the Agreement or waiver of the
obligation of a member which would require three
fourths vote. Amendments would require two
thirds vote in general. Amendments to MFN
provisions and the Amendments provision will
require assent of all members. Any member may
withdraw from the Agreement upon the expiration
of six months from the date of notice of
withdrawals.  33
Hence, poor countries can protect their common interests more
effectively through the WTO than through one-on-one
negotiations with developed countries. Within the WTO,
developing countries can form powerful blocs to push their
economic agenda more decisively than outside the Organization.
This is not merely a matter of practical alliances but a negotiating
strategy rooted in law. Thus, the basic principles underlying the
WTO Agreement recognize the need of developing countries like
the Philippines to "share in the growth in international
trade commensurate with the needs of their economic
development." These basic principles are found in the
preamble  of the WTO Agreement as follows:
34
The Parties to this Agreement,
Recognizing that their relations in the field of trade
and economic endeavour should be conducted
with a view to raising standards of living, ensuring
full employment and a large and steadily growing
volume of real income and effective demand, and
expanding the production of and trade in goods
and services, while allowing for the optimal use of
the world's resources in accordance with the
objective of sustainable development, seeking
both to protect and preserve the environment and
to enhance the means for doing so in a manner
consistent with their respective needs and
concerns at different levels of economic
development,
 Recognizing further that there is need for positive
efforts designed to ensure that developing
countries, and especially the least developed
among them, secure a share in the growth in
international trade commensurate with the needs
of their economic development,
Being desirous of contributing to these objectives
by entering into reciprocal and mutually
advantageous arrangements directed to the
substantial reduction of tariffs and other barriers to
trade and to the elimination of discriminatory
treatment in international trade relations,
Resolved, therefore, to develop an integrated,
more viable and durable multilateral trading
system encompassing the General Agreement on
Tariffs and Trade, the results of past trade
liberalization efforts, and all of the results of the
Uruguay Round of Multilateral Trade Negotiations,
Determined to preserve the basic principles and to
further the objectives underlying this multilateral
trading system, . . . (emphasis supplied.)
Specific WTO Provisos
Protect Developing Countries
So too, the Solicitor General points out that pursuant to and
consistent with the foregoing basic principles, the WTO
Agreement grants developing countries a more lenient treatment,
giving their domestic industries some protection from the rush of
foreign competition. Thus, with respect to tariffs in general,
preferential treatment is given to developing countries in terms of
the amount of tariff reduction and the period within which the
reduction is to be spread out. Specifically, GATT requires an
average tariff reduction rate of 36% for developed countries to be
effected within a period of six (6) years while developing
countries — including the Philippines — are required to effect an
average tariff reduction of only 24% within ten (10) years.
In respect to domestic subsidy, GATT requires developed
countries to reduce domestic support to agricultural products
by 20% over six (6) years, as compared to only 13% for
developing countries to be effected within ten (10) years.
In regard to export subsidy for agricultural products, GATT
requires developed countries to reduce their budgetary outlays for
export subsidy by 36% and export volumes receiving export
subsidy by 21% within a period of six (6) years. For developing
countries, however, the reduction rate is only two-thirds of that
prescribed for developed countries and a longer period of ten
(10) years within which to effect such reduction.
Moreover, GATT itself has provided built-in protection from unfair
foreign competition and trade practices including anti-dumping
measures, countervailing measures and safeguards against
import surges. Where local businesses are jeopardized by unfair
foreign competition, the Philippines can avail of these measures.
There is hardly therefore any basis for the statement that under
the WTO, local industries and enterprises will all be wiped out
and that Filipinos will be deprived of control of the economy.
Quite the contrary, the weaker situations of developing nations
like the Philippines have been taken into account; thus, there
would be no basis to say that in joining the WTO, the respondents
have gravely abused their discretion. True, they have made a
bold decision to steer the ship of state into the yet uncharted sea
of economic liberalization. But such decision cannot be set aside
on the ground of grave abuse of discretion, simply because we
disagree with it or simply because we believe only in other
economic policies. As earlier stated, the Court in taking
jurisdiction of this case will not pass upon the advantages and
disadvantages of trade liberalization as an economic policy. It will
only perform its constitutional duty of determining whether the
Senate committed grave abuse of discretion.
 Constitution Does Not
Rule Out Foreign Competition
Furthermore, the constitutional policy of a "self-reliant and
independent national economy"   does not necessarily rule out
35
the entry of foreign investments, goods and services. It
contemplates neither "economic seclusion" nor "mendicancy in
the international community." As explained by Constitutional
Commissioner Bernardo Villegas, sponsor of this constitutional
policy:
Economic self-reliance is a primary objective of a
developing country that is keenly aware of
overdependence on external assistance for even
its most basic needs. It does not mean autarky or
economic seclusion; rather, it means avoiding
mendicancy in the international community.
Independence refers to the freedom from undue
foreign control of the national economy, especially
in such strategic industries as in the development
of natural resources and public utilities. 
36
The WTO reliance on "most favored nation," "national treatment,"
and "trade without discrimination" cannot be struck down as
unconstitutional as in fact they are rules of equality and
reciprocity that apply to all WTO members. Aside from
envisioning a trade policy based on "equality and
reciprocity,"   the fundamental law encourages industries that are
37
"competitive in both domestic and foreign markets," thereby
demonstrating a clear policy against a sheltered domestic trade
environment, but one in favor of the gradual development of
robust industries that can compete with the best in the foreign
markets. Indeed, Filipino managers and Filipino enterprises have
shown capability and tenacity to compete internationally. And
given a free trade environment, Filipino entrepreneurs and
managers in Hongkong have demonstrated the Filipino capacity
to grow and to prosper against the best offered under a policy
of laissez faire.
Constitution Favors Consumers,
Not Industries or Enterprises
The Constitution has not really shown any unbalanced bias in
favor of any business or enterprise, nor does it contain any
specific pronouncement that Filipino companies should be
pampered with a total proscription of foreign competition. On the
other hand, respondents claim that WTO/GATT aims to make
available to the Filipino consumer the best goods and services
obtainable anywhere in the world at the most reasonable prices.
Consequently, the question boils down to whether WTO/GATT
will favor the general welfare of the public at large.
Will adherence to the WTO treaty bring this ideal (of favoring the
general welfare) to reality?
Will WTO/GATT succeed in promoting the Filipinos' general
welfare because it will — as promised by its promoters — expand
the country's exports and generate more employment?
Will it bring more prosperity, employment, purchasing power and
quality products at the most reasonable rates to the Filipino
public?
The responses to these questions involve "judgment calls" by our
policy makers, for which they are answerable to our people during
appropriate electoral exercises. Such questions and the answers
thereto are not subject to judicial pronouncements based on
grave abuse of discretion.
Constitution Designed to Meet
Future Events and Contingencies
No doubt, the WTO Agreement was not yet in existence when the
Constitution was drafted and ratified in 1987. That does not mean
however that the Charter is necessarily flawed in the sense that
its framers might not have anticipated the advent of a borderless
world of business. By the same token, the United Nations was not
yet in existence when the 1935 Constitution became effective.
Did that necessarily mean that the then Constitution might not
have contemplated a diminution of the absoluteness of
sovereignty when the Philippines signed the UN Charter, thereby
effectively surrendering part of its control over its foreign relations
to the decisions of various UN organs like the Security Council?
It is not difficult to answer this question. Constitutions are
designed to meet not only the vagaries of contemporary events.
They should be interpreted to cover even future and unknown
circumstances. It is to the credit of its drafters that a Constitution
can withstand the assaults of bigots and infidels but at the same
time bend with the refreshing winds of change necessitated by
unfolding events. As one eminent political law writer and
respected jurist  explains:
38
The Constitution must be quintessential rather
than superficial, the root and not the blossom, the
base and frame-work only of the edifice that is yet
to rise. It is but the core of the dream that must
take shape, not in a twinkling by mandate of our
delegates, but slowly "in the crucible of Filipino
minds and hearts," where it will in time develop its
sinews and gradually gather its strength and
finally achieve its substance. In fine, the
Constitution cannot, like the goddess Athena, rise
full-grown from the brow of the Constitutional
Convention, nor can it conjure by mere fiat an
instant Utopia. It must grow with the society it
seeks to re-structure and march apace with the
progress of the race, drawing from the
vicissitudes of history the dynamism and vitality
that will keep it, far from becoming a petrified rule,
a pulsing, living law attuned to the heartbeat of
the nation.
Third Issue: The WTO Agreement and Legislative Power
The WTO Agreement provides that "(e)ach Member shall ensure
the conformity of its laws, regulations and administrative
procedures with its obligations as provided in the annexed
Agreements."   Petitioners maintain that this undertaking "unduly
39
limits, restricts and impairs Philippine sovereignty, specifically the
legislative power which under Sec. 2, Article VI of the 1987
Philippine Constitution is vested in the Congress of the
Philippines. It is an assault on the sovereign powers of the
Philippines because this means that Congress could not pass
legislation that will be good for our national interest and general
welfare if such legislation will not conform with the WTO
Agreement, which not only relates to the trade in goods . . . but
also to the flow of investments and money . . . as well as to a
whole slew of agreements on socio-cultural matters . . .  40
More specifically, petitioners claim that said WTO proviso
derogates from the power to tax, which is lodged in the
Congress.   And while the Constitution allows Congress to
41
authorize the President to fix tariff rates, import and export
quotas, tonnage and wharfage dues, and other duties or imposts,
such authority is subject to "specified limits and . . . such
limitations and restrictions" as Congress may provide,   as in fact
42
it did under Sec. 401 of the Tariff and Customs Code.
Sovereignty Limited by
International Law and Treaties
This Court notes and appreciates the ferocity and passion by
which petitioners stressed their arguments on this issue.
However, while sovereignty has traditionally been deemed
absolute and all-encompassing on the domestic level, it is
however subject to restrictions and limitations voluntarily agreed
to by the Philippines, expressly or impliedly, as a member of the
family of nations. Unquestionably, the Constitution did not
envision a hermit-type isolation of the country from the rest of the
world. In its Declaration of Principles and State Policies, the
Constitution "adopts the generally accepted principles of
international law as part of the law of the land, and adheres to the
policy of peace, equality, justice, freedom, cooperation and amity,
with all nations."   By the doctrine of incorporation, the country is
43
bound by generally accepted principles of international law, which
are considered to be automatically part of our own laws.   One of
44
the oldest and most fundamental rules in international law
is pacta sunt servanda — international agreements must be
performed in good faith. "A treaty engagement is not a mere
moral obligation but creates a legally binding obligation on the
parties . . . A state which has contracted valid international
obligations is bound to make in its legislations such modifications
as may be necessary to ensure the fulfillment of the obligations
undertaken."  45
By their inherent nature, treaties really limit or restrict the
absoluteness of sovereignty. By their voluntary act, nations may
surrender some aspects of their state power in exchange for
greater benefits granted by or derived from a convention or pact.
After all, states, like individuals, live with coequals, and in pursuit
of mutually covenanted objectives and benefits, they also
commonly agree to limit the exercise of their otherwise absolute
rights. Thus, treaties have been used to record agreements
between States concerning such widely diverse matters as, for
example, the lease of naval bases, the sale or cession of territory,
the termination of war, the regulation of conduct of hostilities, the
formation of alliances, the regulation of commercial relations, the
settling of claims, the laying down of rules governing conduct in
peace and the establishment of international organizations.   The 46
sovereignty of a state therefore cannot in fact and in reality be
considered absolute. Certain restrictions enter into the picture: (1)
limitations imposed by the very nature of membership in the
family of nations and (2) limitations imposed by treaty stipulations.
As aptly put by John F. Kennedy, "Today, no nation can build its
destiny alone. The age of self-sufficient nationalism is over. The
age of interdependence is here."  47
UN Charter and Other Treaties
Limit Sovereignty
Thus, when the Philippines joined the United Nations as one of its
51 charter members, it consented to restrict its sovereign rights
under the "concept of sovereignty as auto-limitation." -A Under
47
Article 2 of the UN Charter, "(a)ll members shall give the United
Nations every assistance in any action it takes in accordance with
the present Charter, and shall refrain from giving assistance to
any state against which the United Nations is taking preventive or
enforcement action." Such assistance includes payment of its
corresponding share not merely in administrative expenses but
also in expenditures for the peace-keeping operations of the
organization. In its advisory opinion of July 20, 1961, the
International Court of Justice held that money used by the United
Nations Emergency Force in the Middle East and in the Congo
were "expenses of the United Nations" under Article 17,
paragraph 2, of the UN Charter. Hence, all its members must
bear their corresponding share in such expenses. In this sense,
the Philippine Congress is restricted in its power to appropriate. It
is compelled to appropriate funds whether it agrees with such
peace-keeping expenses or not. So too, under Article 105 of the
said Charter, the UN and its representatives enjoy diplomatic
privileges and immunities, thereby limiting again the exercise of
sovereignty of members within their own territory. Another
example: although "sovereign equality" and "domestic jurisdiction"
of all members are set forth as underlying principles in the UN
Charter, such provisos are however subject to enforcement
measures decided by the Security Council for the maintenance of
international peace and security under Chapter VII of the Charter.
A final example: under Article 103, "(i)n the event of a conflict
between the obligations of the Members of the United Nations
under the present Charter and their obligations under any other
international agreement, their obligation under the present charter
shall prevail," thus unquestionably denying the Philippines — as a
member — the sovereign power to make a choice as to which of
conflicting obligations, if any, to honor.
Apart from the UN Treaty, the Philippines has entered into many
other international pacts — both bilateral and multilateral — that
involve limitations on Philippine sovereignty. These are
enumerated by the Solicitor General in his Compliance dated
October 24, 1996, as follows:
(a) Bilateral convention with the United States
regarding taxes on income, where the Philippines
agreed, among others, to exempt from tax,
income received in the Philippines by, among
others, the Federal Reserve Bank of the United
States, the Export/Import Bank of the United
States, the Overseas Private Investment
Corporation of the United States. Likewise, in said
convention, wages, salaries and similar
remunerations paid by the United States to its
citizens for labor and personal services performed
by them as employees or officials of the United
States are exempt from income tax by the
Philippines.
(b) Bilateral agreement with Belgium, providing,
among others, for the avoidance of double
taxation with respect to taxes on income.
(c) Bilateral convention with the Kingdom of
Sweden for the avoidance of double taxation.
(d) Bilateral convention with the French Republic
for the avoidance of double taxation.
(e) Bilateral air transport agreement with Korea
where the Philippines agreed to exempt from all
customs duties, inspection fees and other duties
or taxes aircrafts of South Korea and the regular
equipment, spare parts and supplies arriving with
said aircrafts.
(f) Bilateral air service agreement with Japan,
where the Philippines agreed to exempt from
customs duties, excise taxes, inspection fees and
other similar duties, taxes or charges fuel,
lubricating oils, spare parts, regular equipment,
stores on board Japanese aircrafts while on
Philippine soil.
(g) Bilateral air service agreement with Belgium
where the Philippines granted Belgian air carriers
the same privileges as those granted to Japanese
and Korean air carriers under separate air service
agreements.
(h) Bilateral notes with Israel for the abolition of
transit and visitor visas where the Philippines
exempted Israeli nationals from the requirement of
obtaining transit or visitor visas for a sojourn in the
Philippines not exceeding 59 days.
(i) Bilateral agreement with France exempting
French nationals from the requirement of
obtaining transit and visitor visa for a sojourn not
exceeding 59 days.
(j) Multilateral Convention on Special Missions,
where the Philippines agreed that premises of
Special Missions in the Philippines are inviolable
and its agents can not enter said premises without
consent of the Head of Mission concerned.
Special Missions are also exempted from customs
duties, taxes and related charges.
(k) Multilateral convention on the Law of Treaties.
In this convention, the Philippines agreed to be
governed by the Vienna Convention on the Law of
Treaties.
 (l) Declaration of the President of the Philippines
accepting compulsory jurisdiction of the
International Court of Justice. The International
Court of Justice has jurisdiction in all legal
disputes concerning the interpretation of a treaty,
any question of international law, the existence of
any fact which, if established, would constitute a
breach "of international obligation."
In the foregoing treaties, the Philippines has effectively agreed to
limit the exercise of its sovereign powers of taxation, eminent
domain and police power. The underlying consideration in this
partial surrender of sovereignty is the reciprocal commitment of
the other contracting states in granting the same privilege and
immunities to the Philippines, its officials and its citizens. The
same reciprocity characterizes the Philippine commitments under
WTO-GATT.
International treaties, whether relating to nuclear
disarmament, human rights, the environment, the
law of the sea, or trade, constrain domestic
political sovereignty through the assumption of
external obligations. But unless anarchy in
international relations is preferred as an
alternative, in most cases we accept that the
benefits of the reciprocal obligations involved
outweigh the costs associated with any loss of
political sovereignty. (T)rade treaties that structure
relations by reference to durable, well-defined
substantive norms and objective dispute
resolution procedures reduce the risks of larger
countries exploiting raw economic power to bully
smaller countries, by subjecting power relations to
some form of legal ordering. In addition, smaller
countries typically stand to gain disproportionately
from trade liberalization. This is due to the simple
fact that liberalization will provide access to a
larger set of potential new trading relationship
than in case of the larger country gaining
enhanced success to the smaller country's
market. 48
The point is that, as shown by the foregoing treaties, a portion of
sovereignty may be waived without violating the Constitution,
based on the rationale that the Philippines "adopts the generally
accepted principles of international law as part of the law of the
land and adheres to the policy of . . . cooperation and amity with
all nations."
Fourth Issue: The WTO Agreement and Judicial Power
Petitioners aver that paragraph 1, Article 34 of the General
Provisions and Basic Principles of the Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS)   intrudes
49
on the power of the Supreme Court to promulgate rules
concerning pleading, practice and procedures.  50
To understand the scope and meaning of Article 34, TRIPS,   it 51
will be fruitful to restate its full text as follows:
Article 34
Process Patents: Burden of Proof
1. For the purposes of civil proceedings in respect
of the infringement of the rights of the owner
referred to in paragraph 1 (b) of Article 28, if the
subject matter of a patent is a process for
obtaining a product, the judicial authorities shall
have the authority to order the defendant to prove
that the process to obtain an identical product is
different from the patented process. Therefore,
Members shall provide, in at least one of the
following circumstances, that any identical product
when produced without the consent of the patent
 owner shall, in the absence of proof to the
contrary, be deemed to have been obtained by
the patented process:
(a) if the product obtained by the
patented process is new;
(b) if there is a substantial
likelihood that the identical product
was made by the process and the
owner of the patent has been
unable through reasonable efforts
to determine the process actually
used.
2. Any Member shall be free to provide that the
burden of proof indicated in paragraph 1 shall be
on the alleged infringer only if the condition
referred to in subparagraph (a) is fulfilled or only if
the condition referred to in subparagraph (b) is
fulfilled.
3. In the adduction of proof to the contrary, the
legitimate interests of defendants in protecting
their manufacturing and business secrets shall be
taken into account.
From the above, a WTO Member is required to provide a rule of
disputable (not the words "in the absence of proof to the
contrary") presumption that a product shown to be identical to one
produced with the use of a patented process shall be deemed to
have been obtained by the (illegal) use of the said patented
process, (1) where such product obtained by the patented
product is new, or (2) where there is "substantial likelihood" that
the identical product was made with the use of the said patented
process but the owner of the patent could not determine the exact
process used in obtaining such identical product. Hence, the
"burden of proof" contemplated by Article 34 should actually be
understood as the duty of the alleged patent infringer to
overthrow such presumption. Such burden, properly understood,
actually refers to the "burden of evidence" (burden of going
forward) placed on the producer of the identical (or fake) product
to show that his product was produced without the use of the
patented process.
The foregoing notwithstanding, the patent owner still has the
"burden of proof" since, regardless of the presumption provided
under paragraph 1 of Article 34, such owner still has to introduce
evidence of the existence of the alleged identical product, the fact
that it is "identical" to the genuine one produced by the patented
process and the fact of "newness" of the genuine product or the
fact of "substantial likelihood" that the identical product was made
by the patented process.
The foregoing should really present no problem in changing the
rules of evidence as the present law on the subject, Republic Act
No. 165, as amended, otherwise known as the Patent Law,
provides a similar presumption in cases of infringement of
patented design or utility model, thus:
Sec. 60. Infringement. — Infringement of a design
patent or of a patent for utility model shall consist
in unauthorized copying of the patented design or
utility model for the purpose of trade or industry in
the article or product and in the making, using or
selling of the article or product copying the
patented design or utility model. Identity or
substantial identity with the patented design or
utility model shall constitute evidence of copying.
(emphasis supplied)
Moreover, it should be noted that the requirement of Article 34 to
provide a disputable presumption applies only if (1) the product
obtained by the patented process in NEW or (2) there is a
substantial likelihood that the identical product was made by the
process and the process owner has not been able through
reasonable effort to determine the process used. Where either of
these two provisos does not obtain, members shall be free to
determine the appropriate method of implementing the provisions
of TRIPS within their own internal systems and processes.
By and large, the arguments adduced in connection with our
disposition of the third issue — derogation of legislative power —
will apply to this fourth issue also. Suffice it to say that the
reciprocity clause more than justifies such intrusion, if any
actually exists. Besides, Article 34 does not contain an
unreasonable burden, consistent as it is with due process and the
concept of adversarial dispute settlement inherent in our judicial
system.
So too, since the Philippine is a signatory to most international
conventions on patents, trademarks and copyrights, the
adjustment in legislation and rules of procedure will not be
substantial. 
52
Fifth Issue: Concurrence Only in the WTO Agreement and
Not in Other Documents Contained in the Final Act
Petitioners allege that the Senate concurrence in the WTO
Agreement and its annexes — but not in the other documents
referred to in the Final Act, namely the Ministerial Declaration and
Decisions and the Understanding on Commitments in Financial
Services — is defective and insufficient and thus constitutes
abuse of discretion. They submit that such concurrence in the
WTO Agreement alone is flawed because it is in effect a rejection
of the Final Act, which in turn was the document signed by
Secretary Navarro, in representation of the Republic upon
authority of the President. They contend that the second letter of
the President to the Senate   which enumerated what constitutes
53
the Final Act should have been the subject of concurrence of the
Senate.
"A final act, sometimes called protocol de cloture, is an
instrument which records the winding up of the proceedings of a
diplomatic conference and usually includes a reproduction of the
texts of treaties, conventions, recommendations and other acts
agreed upon and signed by the plenipotentiaries attending the
conference."   It is not the treaty itself. It is rather a summary of
54
the proceedings of a protracted conference which may have
taken place over several years. The text of the "Final Act
Embodying the Results of the Uruguay Round of Multilateral
Trade Negotiations" is contained in just one page   in Vol. I of the
55
36-volume Uruguay Round of Multilateral Trade Negotiations. By
signing said Final Act, Secretary Navarro as representative of the
Republic of the Philippines undertook:
(a) to submit, as appropriate, the WTO Agreement
for the consideration of their respective competent
authorities with a view to seeking approval of the
Agreement in accordance with their procedures;
and
(b) to adopt the Ministerial Declarations and
Decisions.
The assailed Senate Resolution No. 97 expressed concurrence in
exactly what the Final Act required from its signatories, namely,
concurrence of the Senate in the WTO Agreement.
The Ministerial Declarations and Decisions were deemed adopted
without need for ratification. They were approved by the ministers
by virtue of Article XXV: 1 of GATT which provides that
representatives of the members can meet "to give effect to those
provisions of this Agreement which invoke joint action, and
generally with a view to facilitating the operation and furthering
the objectives of this Agreement."  56
The Understanding on Commitments in Financial Services also
approved in Marrakesh does not apply to the Philippines. It
applies only to those 27 Members which "have indicated in their
respective schedules of commitments on standstill, elimination of
monopoly, expansion of operation of existing financial service
suppliers, temporary entry of personnel, free transfer and
processing of information, and national treatment with respect to
access to payment, clearing systems and refinancing available in
the normal course of business."57
On the other hand, the WTO Agreement itself expresses what
multilateral agreements are deemed included as its integral
parts,   as follows:
58
Article II
Scope of the WTO
1. The WTO shall provide the common
institutional frame-work for the conduct of trade
relations among its Members in matters to the
agreements and associated legal instruments
included in the Annexes to this Agreement.
2. The Agreements and associated legal
instruments included in Annexes 1, 2, and 3,
(hereinafter referred to as "Multilateral
Agreements") are integral parts of this Agreement,
binding on all Members.
3. The Agreements and associated legal
instruments included in Annex 4 (hereinafter
referred to as "Plurilateral Trade Agreements") are
also part of this Agreement for those Members
that have accepted them, and are binding on
those Members. The Plurilateral Trade
Agreements do not create either obligation or
rights for Members that have not accepted them.
4. The General Agreement on Tariffs and Trade
1994 as specified in annex 1A (hereinafter
referred to as "GATT 1994") is legally distinct from
the General Agreement on Tariffs and Trade,
dated 30 October 1947, annexed to the Final Act
adopted at the conclusion of the Second Session
of the Preparatory Committee of the United
Nations Conference on Trade and Employment,
as subsequently rectified, amended or modified
(hereinafter referred to as "GATT 1947").
It should be added that the Senate was well-aware of what it was
concurring in as shown by the members' deliberation on August
25, 1994. After reading the letter of President Ramos dated
August 11, 1994,   the senators 
59
of the Republic minutely dissected what the Senate was
concurring in, as follows: 
60
THE CHAIRMAN: Yes. Now, the question of the
validity of the submission came up in the first day
hearing of this Committee yesterday. Was the
observation made by Senator Tañada that what
was submitted to the Senate was not the
agreement on establishing the World Trade
Organization by the final act of the Uruguay
Round which is not the same as the agreement
establishing the World Trade Organization? And
on that basis, Senator Tolentino raised a point of
order which, however, he agreed to withdraw
upon understanding that his suggestion for an
alternative solution at that time was acceptable.
That suggestion was to treat the proceedings of
the Committee as being in the nature of briefings
for Senators until the question of the submission
could be clarified.
And so, Secretary Romulo, in effect, is the
President submitting a new . . . is he making a
new submission which improves on the clarity of
the first submission?
MR. ROMULO: Mr. Chairman, to make sure that it
is clear cut and there should be no
misunderstanding, it was his intention to clarify all
matters by giving this letter.
THE CHAIRMAN: Thank you.
Can this Committee hear from Senator Tañada
and later on Senator Tolentino since they were
the ones that raised this question yesterday?
Senator Tañada, please.
SEN. TAÑADA: Thank you, Mr. Chairman.
Based on what Secretary Romulo has read, it
would now clearly appear that what is being
submitted to the Senate for ratification is not the
Final Act of the Uruguay Round, but rather the
Agreement on the World Trade Organization as
well as the Ministerial Declarations and Decisions,
and the Understanding and Commitments in
Financial Services.
I am now satisfied with the wording of the new
submission of President Ramos.
SEN. TAÑADA. . . . of President Ramos, Mr.
Chairman.
THE CHAIRMAN. Thank you, Senator Tañada.
Can we hear from Senator Tolentino? And after
him Senator Neptali Gonzales and Senator Lina.
SEN. TOLENTINO, Mr. Chairman, I have not
seen the new submission actually transmitted to
us but I saw the draft of his earlier, and I think it
now complies with the provisions of the
Constitution, and with the Final Act itself . The
Constitution does not require us to ratify the Final
Act. It requires us to ratify the Agreement which is
now being submitted. The Final Act itself specifies
what is going to be submitted to with the
governments of the participants.
In paragraph 2 of the Final Act, we read and I
quote:
By signing the present Final Act, the
representatives agree: (a) to submit as
appropriate the WTO Agreement for the
consideration of the respective competent
authorities with a view to seeking approval of the
Agreement in accordance with their procedures.
In other words, it is not the Final Act that was
agreed to be submitted to the governments for
ratification or acceptance as whatever their
constitutional procedures may provide but it is the
World Trade Organization Agreement. And if that
is the one that is being submitted now, I think it
satisfies both the Constitution and the Final Act
itself .
Thank you, Mr. Chairman.
THE CHAIRMAN. Thank you, Senator Tolentino,
May I call on Senator Gonzales.
SEN. GONZALES. Mr. Chairman, my views on
this matter are already a matter of record. And
 they had been adequately reflected in the journal
of yesterday's session and I don't see any need
for repeating the same.
Now, I would consider the new submission as an
act ex abudante cautela.
THE CHAIRMAN. Thank you, Senator Gonzales.
Senator Lina, do you want to make any comment
on this?
SEN. LINA. Mr. President, I agree with the
observation just made by Senator Gonzales out of
the abundance of question. Then the new
submission is, I believe, stating the obvious and
therefore I have no further comment to make.
Epilogue
In praying for the nullification of the Philippine ratification of the
WTO Agreement, petitioners are invoking this Court's
constitutionally imposed duty "to determine whether or not there
has been grave abuse of discretion amounting to lack or excess
of jurisdiction" on the part of the Senate in giving its concurrence
therein via Senate Resolution No. 97. Procedurally, a writ
of certiorari grounded on grave abuse of discretion may be issued
by the Court under Rule 65 of the Rules of Court when it is amply
shown that petitioners have no other plain, speedy and adequate
remedy in the ordinary course of law.
By grave abuse of discretion is meant such capricious and
whimsical exercise of judgment as is equivalent to lack of
jurisdiction.   Mere abuse of discretion is not enough. It must
61
be grave abuse of discretion as when the power is exercised in
an arbitrary or despotic manner by reason of passion or personal
hostility, and must be so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform the
duty enjoined or to act at all in contemplation of law.   Failure on
62
the part of the petitioner to show grave abuse of discretion will
result in the dismissal of the petition. 
63
In rendering this Decision, this Court never forgets that the
Senate, whose act is under review, is one of two sovereign
houses of Congress and is thus entitled to great respect in its
actions. It is itself a constitutional body independent and
coordinate, and thus its actions are presumed regular and done in
good faith. Unless convincing proof and persuasive arguments
are presented to overthrow such presumptions, this Court will
resolve every doubt in its favor. Using the foregoing well-
accepted definition of grave abuse of discretion and the
presumption of regularity in the Senate's processes, this Court
cannot find any cogent reason to impute grave abuse of
discretion to the Senate's exercise of its power of concurrence in
the WTO Agreement granted it by Sec. 21 of Article VII of the
Constitution. 
64
It is true, as alleged by petitioners, that broad constitutional
principles require the State to develop an independent national
economy effectively controlled by Filipinos; and to protect and/or
prefer Filipino labor, products, domestic materials and locally
produced goods. But it is equally true that such principles — while
serving as judicial and legislative guides — are not in themselves
sources of causes of action. Moreover, there are other equally
fundamental constitutional principles relied upon by the Senate
which mandate the pursuit of a "trade policy that serves the
general welfare and utilizes all forms and arrangements of
exchange on the basis of equality and reciprocity" and the
promotion of industries "which are competitive in both domestic
and foreign markets," thereby justifying its acceptance of said
treaty. So too, the alleged impairment of sovereignty in the
exercise of legislative and judicial powers is balanced by the
adoption of the generally accepted principles of international law
as part of the law of the land and the adherence of the
Constitution to the policy of cooperation and amity with all
nations.
That the Senate, after deliberation and voting, voluntarily and strategy for economic prosperity and stability in the new
overwhelmingly gave its consent to the WTO Agreement thereby millennium. Let the people, through their duly authorized elected
making it "a part of the law of the land" is a legitimate exercise of officers, make their free choice.
its sovereign duty and power. We find no "patent and gross"
arbitrariness or despotism "by reason of passion or personal WHEREFORE, the petition is DISMISSED for lack of merit.
hostility" in such exercise. It is not impossible to surmise that this
Court, or at least some of its members, may even agree with SO ORDERED.
petitioners that it is more advantageous to the national interest to
strike down Senate Resolution No. 97. But that is not a legal
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo,
reason to attribute grave abuse of discretion to the Senate and to
Puno, Kapunan, Mendoza, Francisco, Hermosisima, Jr. and
nullify its decision. To do so would constitute grave abuse in the
Torres, Jr., JJ., concur.
exercise of our own judicial power and duty. Ineludably, what the
Senate did was a valid exercise of its authority. As to whether
such exercise was wise, beneficial or viable is outside the realm Padilla and Vitug, JJ., concur in the result.
of judicial inquiry and review. That is a matter between the
elected policy makers and the people. As to whether the nation Footnotes
should join the worldwide march toward trade liberalization and
economic globalization is a matter that our people should 1 In Annex "A" of her Memorandum, dated August
determine in electing their policy makers. After all, the WTO 8, 1996, received by this Court on August 12,
Agreement allows withdrawal of membership, should this be the 1996, Philippine Ambassador to the United
political desire of a member. Nations, World Trade Organization and other
international organizations Lilia R. Bautista
The eminent futurist John Naisbitt, author of the best (hereafter referred to as "Bautista Paper")
seller Megatrends, predicts an Asian Renaissance   where "the
65 submitted a "46-year Chronology" of GATT as
East will become the dominant region of the world economically, follows:
politically and culturally in the next century." He refers to the "free
market" espoused by WTO as the "catalyst" in this coming Asian 1947 The birth of GATT. On 30
ascendancy. There are at present about 31 countries including October 1947, the General
China, Russia and Saudi Arabia negotiating for membership in Agreement on Tariffs and Trade
the WTO. Notwithstanding objections against possible limitations (GATT) was signed by 23 nations
on national sovereignty, the WTO remains as the only viable at the Palais des Nations in
structure for multilateral trading and the veritable forum for the Geneva. The Agreement
development of international trade law. The alternative to WTO is contained tariff concessions
isolation, stagnation, if not economic self-destruction. Duly agreed to in the first multilateral
enriched with original membership, keenly aware of the trade negotiations and a set of
advantages and disadvantages of globalization with its on-line rules designed to prevent these
experience, and endowed with a vision of the future, the concessions from being frustrated
Philippines now straddles the crossroads of an international by restrictive trade measures.
The 23 founding contracting
parties were members of the
Preparatory Committee
established by the United Nations
Economic and Social Council in
1946 to draft the charter of the
International Trade Organization
(ITO). The ITO was envisaged as
the final leg of a triad of post-War
economic agencies (the other two
were the International Monetary
Fund and the International Bank
for Reconstruction — later the
World Bank).
In parallel with this task, the
Committee members decided to
negotiate tariff concessions among
themselves. From April to October
1947, the participants completed
some 123 negotiations and
established 20 schedules
containing the tariff reductions and
bindings which became an integral
part of GATT. These schedules
resulting from the first Round
covered some 45,000 tariff
concessions and about $10 billion
in trade.
GATT was conceived as an
interim measure that put into effect
the commercial-policy provisions
of the ITO. In November,
delegations from 56 countries met
in Havana, Cuba, to consider the
to ITO draft as a whole. After long
and difficult negotiations, some 53
countries signed the Final Act
authenticating the text of the
Havana Charter in March 1948.
There was no commitment,
however, from governments to
ratification and, in the end, the ITO
was stillborn, leaving GATT as the
only international instrument
governing the conduct of world
trade.
1948 Entry into force. On 1
January 1948, GATT entered into
force. The 23 founding members
were: Australia, Belgium, Brazil,
Burma, Canada, Ceylon, Chile,
China, Cuba, Czechoslovakia,
France, India, Lebanon,
Luxembourg, Netherlands, New
Zealand, Norway, Pakistan,
Southern Rhodesia, Syria, South
Africa, United Kingdom and the
United States. The first Session of
the Contracting Parties was held
from February to March in
Havana, Cuba. The secretariat of
the Interim Commission for the
ITO, which served as the ad
hoc secretariat of GATT, moved
from Lake Placid, New York, to
Geneva. The Contracting Parties
held their second session in
Geneva from August to
September.
1949 Second Round at Annecy.
During the second Round of trade
negotiations, held from April to
August at Annecy, France, the
contracting parties exchanged
some 5,000 tariff concessions. At
their third Session, they also dealt
with the accession of ten more
countries.
1950 Third Round at Torquay.
From September 1950 to April
1951, the contracting parties
exchanged some 8,700 tariff
concessions in the English town,
yielding tariff reduction of about 25
per cent in relation to the 1948
level. Four more countries
acceded to GATT. During the fifth
Session of the Contracting Parties,
the United States indicated that
the ITO Charter would not be re-
submitted to the US Congress;
this, in effect, meant that ITO
would not come into operation.
1956 Fourth Round at Geneva.
The fourth Round was completed
in May and produced some $2.5
billion worth of tariff reductions. At
the beginning of the year, the
GATT commercial policy course
for officials of developing countries
was inaugurated.
1958 The Haberler Report. GATT
published Trends in International
Trade in October. Known as the
"Haberler Report" in honour of
Professor Gottfried Haberler, the
chairman of the panel of eminent
economists, it provided initial
guidelines for the work of GATT.
The Contracting Parties at their
13th Sessions, attended by
Ministers, subsequently
established three committees in
GATT: Committee I to convene a
further tariff negotiating
conference; Committee II to review
the agricultural policies of member
governments and Committee III to
tackle the problem facing
developing countries in their trade.
The establishment of the
European Economic Community
during the previous year also
demanded large-scale tariff
negotiations under Article XXIV: 6
of the General Agreement.
1960 The Dillon Round. The fifth
Round opened in September and
was divided into two phases: the
first was concerned with
negotiations with EEC member
states for the creation of a single
schedule of concessions for the
Community based on its Common
External Tariff; and the second
was a further general round of
tariff negotiations. Named in
honour of US Under-Secretary of
State Douglas Dillon who
proposed the negotiations, the
Round was concluded in July
1962 and resulted in about 4,400
tariff concessions covering $4.9
billion of trade.
1961 The Short-Term
Arrangement covering cotton
textiles was agreed as an
exception to the GATT rules. The
arrangement permitted the
negotiation of quota restrictions
affecting the exports of cotton-
producing countries. In 1962 the
"Short Term" Arrangement
became the "Long term"
Arrangement, lasting until 1974
when the Multifibre Arrangement
entered into force.
1964 The Kennedy Round.
Meeting at Ministerial level, a
Trade Negotiations Committee
formally opened the Kennedy
Round in May. In June 1967, the
Round's Final Act was signed by
some 50 participating countries
which together accounted for 75
per cent of world trade. For the
first time, negotiations departed
from the product-by-product
approach used in the previous
Rounds to an across-the-board or
linear method of cutting tariffs for
industrial goods. The working
hypothesis of a 50 per cent target
cut in tariff levels was achieved in
many areas. Concessions covered
an estimated total value of trade of
about $410 billion. Separate
agreements were reached on
grains, chemical products and a
Code on Anti-Dumping.
1965 A New Chapter. The early
1960s marked the accession to
the general Agreement of many
newly-independent developing
countries. In February, the
Contracting Parties, meeting in a
special session, adopted the text
of Part IV on Trade and
Development. The additional
chapter to the GATT required
developed countries to accord
high priority to the reduction of
trade barriers to products of
developing countries. A
Committee on Trade and
Development was established to
oversee the functioning of the new
GATT provisions. In the preceding
year, GATT had established the
International Trade Centre (ITC) to
help developing countries in trade
promotion and identification of
potential markets. Since 1968, the
ITC had been jointly operated by
GATT and the UN Conference on
Trade and Development
(UNCTAD).
1973 The Tokyo Round. The
seventh Round was launched by
Ministers in September at the
Japanese capital. Some 99
countries participated in
negotiating a comprehensive body
of agreements covering both tariff
and non-tariff matters. At the end
of the Round in November 1979,
participants exchanged tariff
reductions and bindings which
covered more than $300 billion of
trade. As a result of these cuts, the
weighted average tariff on
manufactured goods in the world's
nine major industrial markets
declined from 7.0 to 4.7 per cent.
Agreements were reached in the
following areas: subsidies and
countervailing measures, technical
barriers to trade, import licensing
procedures, government
procurement, customs valuation, a
revised anti-dumping code, trade
in bovine meat, trade in dairy
products and trade in civil aircraft.
The first concrete result of the
Round was the reduction of import
duties and other trade barriers by
industrial countries on tropical
products exported by developing
countries.
1974 On 1 January 1974, the
Arrangement Regarding
International Trade in Textiles,
otherwise known as the Multifibre
Arrangement (MFA), entered into
force. It superseded the
arrangements that had been
governing trade in cotton textiles
since 1961. The MFA seeks to
promote the expansion and
progressive liberalization of trade
in textile products while at the
same time avoiding disruptive
effects in individual markets and
lines of production. The MFA was
extended in 1978, 1982, 1986,
1991 and 1992. MFA members
account for most of the world
exports of textiles and clothing
which in 1986 amounted to
US$128 billion.
1982 Ministerial Meeting. Meeting
for the first time in nearly ten
years, the GATT Ministers in
November at Geneva reaffirmed
the validity of GATT rules for the
conduct of international trade and
committed themselves to
combating protectionist pressures.
They also established a wide-
ranging work programme for the
GATT which was to lay down the
groundwork for a new Round
1986. The Uruguay Round. The
GATT Trade Ministers meeting at
Punta del Este, Uruguay, launched
the eighth Round of trade
negotiations on 20 September.
The Punta del Este Declaration,
while representing a single political
undertaking, was divided into two
sections. The first covered
negotiations on trade in goods and
the second initiated negotiation on
trade in services. In the area of
trade in goods, the Ministers
committed themselves to a
"standstill" on new trade measures
inconsistent with their GATT
obligations and to a "rollback"
programme aimed at phasing out
existing inconsistent measures.
 Envisaged to last four years,
negotiations started in early
February 1987 in the following
areas tariffs, non-tariff measures,
tropical products, natural resource-
based products, textiles and
clothing, agriculture, subsidies,
safe-guards, trade-related aspects
of intellectual property rights
including trade in counterfeit
goods, and trade-related
investment measures. The work of
other groups included a review of
GATT articles, the GATT dispute
settlement procedure, the Tokyo
Round agreements, as well as the
functioning of the GATT system as
a whole.
1994 "GATT 1994" is the updated
version of GATT 1947 and takes
into account the substantive and
institutional changes negotiated in
the Uruguay Round GATT 1994 is
an integral part of the World Trade
Organization established on 1
January 1995. It is agreed that
there be a one year transition
period during which certain GATT
1947 bodies and commitments
would co-exist with those of the
World Trade Organization.
2 The Final Act was signed by representatives of
125 entities, namely Algeria, Angola, Antigua and
Barbuda, Argentine Republic, Australia, Republic
of Austria, State of Bahrain, People's Republic of
Bangladesh, Barbados, The Kingdom of Belgium
Belize, Republic of Benin, Bolivia, Botswana,
Brazil, Brunei Darussalam, Burkina Faso, Burundi,
Cameroon, Canada, Central African Republic,
Chad, Chile, People's Republic of China,
Colombia, Congo, Costa Rica, Republic of Cote
d'Ivoire, Cuba, Cyprus, Czech Republic, Kingdom
of Denmark, Commonwealth of Dominica,
Dominican Republic, Arab Republic of Egypt, El
Salvador, European Communities, Republic of
Fiji, Finland, French Republic, Gabonese
Republic, Gambia, Federal Republic of Germany,
Ghana, Hellenic Republic, Grenada, Guatemala,
Republic of Guinea-Bissau, Republic of Guyana,
Haiti, Honduras, Hong Kong, Hungary, Iceland,
India, Indonesia, Ireland, State of Israel, Italian
Republic, Jamaica, Japan, Kenya, Korea, State of
Kuwait, Kingdom of Lesotho, Principality of
Liechtenstein, Grand Duchy of Luxembourg,
Macau, Republic of Madagascar, Republic of
Malawi, Malaysia, Republic of Maldives, Republic
of Mali, Republic of Malta, Islamic Republic of
Mauritania, Republic of Mauritius, United Mexican
States, Kingdom of Morocco, Republic of
Mozambique, Union of Myanmar, Republic of
Namibia, Kingdom of the Netherlands, New
Zealand, Nicaragua, Republic of Niger, Federal
Republic of Nigeria, Kingdom of Norway, Islamic
Republic of Pakistan, Paraguay, Peru, Philippines,
Poland, Potuguese Republic, State of Qatar,
Romania, Rwandese Republic, Saint Kitts and
Nevis, Saint Lucia, Saint Vincent and the
Grenadines, Senegal, Sierra Leone, Singapore,
Slovak Republic, South Africa, Kingdom of Spain,
Democratic Socialist Republic of Sri Lanka,
Republic of Surinam, Kingdom of Swaziland,
Kingdom of Sweden, Swiss Confederation, United
Republic of Tanzania, Kingdom of Thailand,
Togolese Republic, Republic of Trinidad and
Tobago, Tunisia, Turkey, Uganda, United Arab
Emirates, United Kingdom of Great Britain and
Northern Ireland, United States of America,
Eastern Republic of Uruguay, Venezuela,
Republic of Zaire, Republic of Zambia, Republic of
Zimbabwe; see pp. 6-25, Vol. 1, Uruguay Round
of Multilateral Trade Negotiations.
3 11 August 1994
The Honorable Members
Senate
Through Senate President Edgardo Angara
Manila
Ladies and Gentlemen:
I have the honor to forward herewith an
authenticated copy of the Uruguay Round Final
Act signed by Department of Trade and Industry
Secretary Rizalino S. Navarro for the Philippines
on 15 April 1994 in Marrakesh, Morocco.
The Uruguay Round Final Act aims to liberalize
and expand world trade and strengthen the
interrelationship between trade and economic
policies affecting growth and development.  Act is hereby submitted to the Senate for its
The Final Act will improve Philippine access to
foreign markets, especially its major trading
partners through the reduction of tariffs on its
exports particularly agricultural and industrial
products. These concessions may be availed of
by the Philippines, only if it is a member of the
World Trade Organization. By GATT estimates,
the Philippines can acquire additional export from
$2.2 to $2.7 Billion annually under Uruguay
Round. This will be on top of the normal increase
in exports that the Philippines may experience. 
The Final Act will also open up new opportunities
for the services sector in such areas as the
movement of personnel, (e.g. professional
services and construction services), cross-border
supply (e.g. computer-related services),
consumption abroad (e.g. tourism, convention
services, etc.) and commercial presence.
The clarified and improved rules and disciplines
on anti-dumping and countervailing measures will
also benefit Philippine exporters by reducing the
costs ad uncertainty associated with exporting
while at the same time providing means for
domestic industries to safeguard themselves
against unfair imports.
Likewise, the provision of adequate protection for
intellectual property rights is expected to attract
more investments into the country and to make it
less vulnerable to unilateral actions by its trading
partners (e.g. Sec. 301 of the United States'
Omnibus Trade Law).
In view of the foregoing, the Uruguay Round Final
concurrence pursuant to Section 21, Article VII of
the Constitution.
A draft of a proposed Resolution giving its
concurrence to the aforesaid Agreement is
enclosed.

(SGD.) FIDEL V. RAMOS
4 11 August 1994
The Honorable Members
Senate
Through Senate President Edgardo Angara
Manila
Ladies and Gentlemen:
I have the honor to forward herewith an
authenticated copy of the Uruguay Round Final
Act signed by Department of Trade and Industry
Secretary Rizalino S. Navarro for the Philippines
on 13 April 1994 in Marrakech (sic), Morocco.
Members of the trade negotiations committee,
which included the Philippines, agreed that the
Agreement Establishing the World Trade
Organization, the Ministerial Declarations and
Decisions, and the Understanding on
Commitments in Financial Services embody the
results of their negotiations and form an integral
part of the Uruguay Round Final Act.
By signing the Uruguay Round Final Act, the
Philippines, through Secretary Navarro, agreed:
(a) To submit the Agreement Establishing the
World Trade Organization to the Senate for its
concurrence pursuant to Section 21, Article VII of
the Constitution; and
(b) To adopt the Ministerial Declarations and
Decisions.
The Uruguay Round Final Act aims to liberalize
and expand world trade and strengthen the
interrelationship between trade and economic
policies affecting growth and development.
The Final Act will improve Philippine access to
foreign markets, especially its major trading
partners through the reduction of tariffs on its
exports particularly agricultural and industrial
products. These concessions may be availed of
by the Philippines, only if it is a member of the
World Trade Organization. By GATT estimates,
the Philippines can acquire additional export
revenues from $2.2 to $2.7 Billion annually under
Uruguay Round. This will be on top of the normal
increase in the exports that the Philippines may
experience.
The Final Act will also open up new opportunities
for the services sector in such areas as the
movement of personnel, (e.g., professional
services and construction services), cross-border
supply (e.g., computer-related services),
consumption abroad (e.g., tourism, convention
services, etc.) and commercial presence.
The clarified and improved rules ad disciplines on
anti-dumping and countervailing measures will
also benefit Philippine exporters by reducing the
costs and uncertainty associated with exporting
while at the same time providing a means for
domestic industries to safeguard themselves Senate Manila
against unfair imports.
Dear Senate President Angara:
Likewise, the provision of adequate protection for
intellectual property rights is expected to attract Pursuant to the provisions of Sec. 26 (2) Article VI
more investments into the country and to make it of the Constitution, I hereby certify to the
a less vulnerable to unilateral actions by its necessity of the immediate adoption of P.S. 1083
trading partners (e.g., Sec. 301 of the United entitled:
States Omnibus Trade Law).
CONCURRING IN THE
In view of the foregoing, the Uruguay Round Final RATIFICATION OF THE
Act, the Agreement Establishing the World Trade AGREEMENT ESTABLISHING
Organization, the Ministerial Declarations and THE WORLD TRADE
Decisions, and the Understanding on ORGANIZATION
Commitments in Financial Services, as embodied
in the Uruguay Round Final Act and forming and to meet a public emergency consisting of the need
integral part thereof are hereby submitted to the for immediate membership in the WTO in order to
Senate for its concurrence pursuant to Section 21, assure the benefits to the Philippine economy
Article VII of the Constitution. arising from such membership.

A draft of a proposed Resolution giving its Very truly

concurrence to the aforesaid Agreement is
enclosed.
(SGD.) FIDEL V

(SGD.) FIDEL V. RAMOS

5 December 9, 1994

HON. EDGARDO J. ANGARA

Senate President
 In this Petition For Writ of Certiorari, petitioner seeks to reverse
the resolutions which were allegedly rendered in violation of his
right to "equal access to opportunities for public service" under
Section 26, Article II of the 1987 
G.R. No. 161872             April 13, 2004
Constitution,1 by limiting the number of qualified candidates only
REV. ELLY CHAVEZ PAMATONG, ESQUIRE, petitioner,  to those who can afford to wage a nationwide campaign and/or
vs. are nominated by political parties. In so doing, petitioner argues
COMMISSION ON ELECTIONS, respondent.  that the COMELEC indirectly amended the constitutional
provisions on the electoral process and limited the power of the
RESOLUTION sovereign people to choose their leaders. The COMELEC
supposedly erred in disqualifying him since he is the most
TINGA, J.: qualified among all the presidential candidates, i.e., he possesses
all the constitutional and legal qualifications for the office of the
Petitioner Rev. Elly Velez Pamatong filed his Certificate of president, he is capable of waging a national campaign since he
Candidacy for President on December 17, 2003. Respondent has numerous national organizations under his leadership, he
Commission on Elections (COMELEC) refused to give due also has the capacity to wage an international campaign since he
course to petitioner’s Certificate of Candidacy in its Resolution has practiced law in other countries, and he has a platform of
No. 6558 dated January 17, 2004. The decision, however, was government. Petitioner likewise attacks the validity of the form for
not unanimous since Commissioners Luzviminda G. Tancangco the Certificate of Candidacy prepared by the COMELEC.
and Mehol K. Sadain voted to include petitioner as they believed Petitioner claims that the form does not provide clear and
he had parties or movements to back up his candidacy.  reasonable guidelines for determining the qualifications of
candidates since it does not ask for the candidate’s bio-data and
his program of government. 
On January 15, 2004, petitioner moved for reconsideration
of Resolution No. 6558. Petitioner’s Motion for
Reconsideration was docketed as SPP (MP) No. 04-001. The First, the constitutional and legal dimensions involved. 
COMELEC, acting on petitioner’s Motion for Reconsideration and
on similar motions filed by other aspirants for national elective Implicit in the petitioner’s invocation of the constitutional provision
positions, denied the same under the aegis of Omnibus ensuring "equal access to opportunities for public office" is the
Resolution No. 6604 dated February 11, 2004. The COMELEC claim that there is a constitutional right to run for or hold public
declared petitioner and thirty-five (35) others nuisance candidates office and, particularly in his case, to seek the presidency. There
who could not wage a nationwide campaign and/or are not is none. What is recognized is merely a privilege subject to
nominated by a political party or are not supported by a registered limitations imposed by law. Section 26, Article II of the
political party with a national constituency. Commissioner Sadain Constitution neither bestows such a right nor elevates the
maintained his vote for petitioner. By then, Commissioner privilege to the level of an enforceable right. There is nothing in
Tancangco had retired.  the plain language of the provision which suggests such a thrust
or justifies an interpretation of the sort.
The "equal access" provision is a subsumed part of Article II of
the Constitution, entitled "Declaration of Principles and State
Policies." The provisions under the Article are generally
considered not self-executing,2 and there is no plausible reason
for according a different treatment to the "equal access"
provision. Like the rest of the policies enumerated in Article II, the
provision does not contain any judicially enforceable
constitutional right but merely specifies a guideline for legislative
or executive action.3 The disregard of the provision does not give
rise to any cause of action before the courts.4
An inquiry into the intent of the framers5 produces the same
determination that the provision is not self-executory. The original
wording of the present Section 26, Article II had read, "The State
shall broaden opportunities to public office and prohibit public
dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr.
successfully brought forth an amendment that changed the word
"broaden" to the phrase "ensure equal access," and the
substitution of the word "office" to "service." He explained his
proposal in this wise:
I changed the word "broaden" to "ENSURE EQUAL
ACCESS TO" because what is important would be equal
access to the opportunity. If you broaden, it would
necessarily mean that the government would be
mandated to create as many offices as are possible to
accommodate as many people as are also possible.
That is the meaning of broadening opportunities to public
service. So, in order that we should not mandate the
State to make the government the number one
employer and to limit offices only to what may be
necessary and expedient yet offering equal
opportunities to access to it, I change the word
"broaden."7 (emphasis supplied)
Obviously, the provision is not intended to compel the State to
enact positive measures that would accommodate as many
people as possible into public office. The approval of the "Davide
amendment" indicates the design of the framers to cast the
provision as simply enunciatory of a desired policy objective and
not reflective of the imposition of a clear State burden. 
Moreover, the provision as written leaves much to be desired if it
is to be regarded as the source of positive rights. It is difficult to
interpret the clause as operative in the absence of legislation
since its effective means and reach are not properly defined.
Broadly written, the myriad of claims that can be subsumed under
this rubric appear to be entirely open-ended.8 Words and phrases
such as "equal access," "opportunities," and "public service" are
susceptible to countless interpretations owing to their inherent
impreciseness. Certainly, it was not the intention of the framers to
inflict on the people an operative but amorphous foundation from
which innately unenforceable rights may be sourced. 
As earlier noted, the privilege of equal access to opportunities to
public office may be subjected to limitations. Some valid
limitations specifically on the privilege to seek elective office are
found in the provisions9 of the Omnibus Election Code on
"Nuisance Candidates" and COMELEC Resolution No.
645210 dated December 10, 2002 outlining the instances wherein
the COMELEC may motu proprio refuse to give due course to or
cancel a Certificate of Candidacy. 
As long as the limitations apply to everybody equally without
discrimination, however, the equal access clause is not violated.
Equality is not sacrificed as long as the burdens engendered by
the limitations are meant to be borne by any one who is minded
to file a certificate of candidacy. In the case at bar, there is no
showing that any person is exempt from the limitations or the
burdens which they create.
Significantly, petitioner does not challenge the constitutionality or
validity of Section 69 of the Omnibus Election Code and
COMELEC Resolution No. 6452 dated 10 December 2003. Thus,
their presumed validity stands and has to be accorded due
weight.
Clearly, therefore, petitioner’s reliance on the equal access
clause in Section 26, Article II of the Constitution is misplaced.  costs to the government. For the official ballots in
The rationale behind the prohibition against nuisance candidates
and the disqualification of candidates who have not evinced
a bona fide intention to run for office is easy to divine. The State
has a compelling interest to ensure that its electoral exercises are
rational, objective, and orderly. Towards this end, the State takes
into account the practical considerations in conducting elections.
Inevitably, the greater the number of candidates, the greater the
opportunities for logistical confusion, not to mention the increased
allocation of time and resources in preparation for the election.
These practical difficulties should, of course, never exempt the
State from the conduct of a mandated electoral exercise. At the
same time, remedial actions should be available to alleviate these
logistical hardships, whenever necessary and proper. Ultimately,
a disorderly election is not merely a textbook example of
inefficiency, but a rot that erodes faith in our democratic
institutions. As the United States Supreme Court held:
[T]here is surely an important state interest in requiring
some preliminary showing of a significant modicum of
support before printing the name of a political
organization and its candidates on the ballot – the
interest, if no other, in avoiding confusion, deception and
even frustration of the democratic [process].11
The COMELEC itself recognized these practical considerations
when it promulgated Resolution No. 6558 on 17 January 2004,
adopting the study Memorandum of its Law Department dated 11
January 2004. As observed in the COMELEC’s Comment:
There is a need to limit the number of candidates
especially in the case of candidates for national positions
because the election process becomes a mockery even if
those who cannot clearly wage a national campaign are
allowed to run. Their names would have to be printed in
the Certified List of Candidates, Voters Information Sheet
and the Official Ballots. These would entail additional
automated counting and canvassing of votes, an
additional page would amount to more or less FOUR
HUNDRED FIFTY MILLION PESOS (₱450,000,000.00).
xxx[I]t serves no practical purpose to allow those
candidates to continue if they cannot wage a decent
campaign enough to project the prospect of winning, no
matter how slim.12
The preparation of ballots is but one aspect that would be
affected by allowance of "nuisance candidates" to run in the
elections. Our election laws provide various entitlements for
candidates for public office, such as watchers in every polling
place,13 watchers in the board of canvassers,14 or even the receipt
of electoral contributions.15Moreover, there are election rules and
regulations the formulations of which are dependent on the
number of candidates in a given election.
Given these considerations, the ignominious nature of a nuisance
candidacy becomes even more galling. The organization of an
election with bona fide candidates standing is onerous enough.
To add into the mix candidates with no serious intentions or
capabilities to run a viable campaign would actually impair the
electoral process. This is not to mention the candidacies which
are palpably ridiculous so as to constitute a one-note joke. The
poll body would be bogged by irrelevant minutiae covering every
step of the electoral process, most probably posed at the instance
of these nuisance candidates. It would be a senseless sacrifice
on the part of the State. 
Owing to the superior interest in ensuring a credible and orderly
election, the State could exclude nuisance candidates and need
not indulge in, as the song goes, "their trips to the moon on
gossamer wings." 
The Omnibus Election Code and COMELEC Resolution No. 6452
are cognizant of the compelling State interest to ensure orderly
and credible elections by excising impediments thereto, such as
nuisance candidacies that distract and detract from the larger
purpose. The COMELEC is mandated by the Constitution with the
administration of elections16 and endowed with considerable
latitude in adopting means and methods that will ensure the
promotion of free, orderly and honest elections.17 Moreover, the
Constitution guarantees that only bona fide candidates for public
office shall be free from any form of harassment and
discrimination.18 The determination of bona fidecandidates is
governed by the statutes, and the concept, to our mind is,
satisfactorily defined in the Omnibus Election Code.  election laws.
Now, the needed factual premises.  IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP)
However valid the law and the COMELEC issuance involved are,
their proper application in the case of the petitioner cannot be
tested and reviewed by this Court on the basis of what is now
before it. The assailed resolutions of the COMELEC do not direct
the Court to the evidence which it considered in determining that
petitioner was a nuisance candidate. This precludes the Court
from reviewing at this instance whether the COMELEC committed
grave abuse of discretion in disqualifying petitioner, since such a
review would necessarily take into account the matters which the
COMELEC considered in arriving at its decisions.  SO ORDERED.
Petitioner has submitted to this Court mere photocopies of
various documents purportedly evincing his credentials as an
eligible candidate for the presidency. Yet this Court, not being a
trier of facts, can not properly pass upon the reproductions as
evidence at this level. Neither the COMELEC nor the Solicitor
General appended any document to their respective Comments.
The question of whether a candidate is a nuisance candidate or
not is both legal and factual. The basis of the factual
determination is not before this Court. Thus, the remand of this
case for the reception of further evidence is in order.
A word of caution is in order. What is at stake is petitioner’s
aspiration and offer to serve in the government. It deserves not a
cursory treatment but a hearing which conforms to the
requirements of due process.
As to petitioner’s attacks on the validity of the form for the
certificate of candidacy, suffice it to say that the form strictly
complies with Section 74 of the Omnibus Election Code. This
provision specifically enumerates what a certificate of candidacy
should contain, with the required information tending to show that
the candidate possesses the minimum qualifications for the
position aspired for as established by the Constitution and other
 
No. 04-001 is hereby remanded to the COMELEC for the
reception of further evidence, to determine the question on
whether petitioner Elly Velez Lao Pamatong is a nuisance
candidate as contemplated in Section 69 of the Omnibus Election
Code.
The COMELEC is directed to hold and complete the reception of
evidence and report its findings to this Court with deliberate
dispatch.
Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-
Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
Footnotes
* On Official Leave.
1
 Sec. 26. The State shall guarantee equal access to
opportunities for public service, and prohibit political
dynasties as may be defined by law. 
2
 See Basco v. PAGCOR, G.R. No. 91649, May 14, 1991,
197 SCRA 52, 68; Kilosbayan, Inc. v. Morato, G.R. No.
118910, 246 SCRA 540, 564. "A provision which lays
down a general principle, such as those found in Art. II of
the 1987 Constitution, is usually not self-executing."
Manila Prince Hotel v. GSIS, G.R. No. 122156, 3
February 1997, 267 SCRA 408, 431. "Accordingly, [the
Court has] held that the provisions in Article II of our
Constitution entitled "Declaration of Principles and State
Policies" should generally be construed as mere
statements of principles of the State." Justice
Puno, dissenting, Manila Prince Hotel v. GSIS, Id. at 474. 
 See Kilosbayan Inc. v. Morato, G.R. No. 118910, 16
3
November 1995, 250 SCRA 130, 138. Manila Prince
Hotel v. GSIS, supra note 2 at 436.
4
 Kilosbayan, Inc. v. Morato, supra note 2. 
5
 "A searching inquiry should be made to find out if the
provision is intended as a present enactment, complete in
itself as a definitive law, or if it needs future legislation for
completion and enforcement. The inquiry demands a
micro-analysis and the context of the provision in
question." J. Puno, dissenting, Manila Prince Hotel v.
GSIS, supra note 2.
6
 J. Bernas, The Intent of the 1986 Constitution Writers
(1995), p. 148.  candidacy to put the election process in
 IV Records of Proceedings and Debates, 1986
7
Constitutional Commission 945.  c. Candidates whose certificate of
 See J. Feliciano, concurring, Oposa v. Factoran, Jr.,
8
G.R. No. 101083, 30 July 1993, 224 SCRA 792, 815. 
9
 Section 69. Nuisance Candidates. — The Commission
may, motu proprio or upon a verified petition of an
interested party, refuse to give due course or cancel a
certificate of candidacy if it is shown that said certificate
has been filed to put the election process in mockery or
disrepute or to cause confusion among the voters by the
similarity of the names of the registered candidates or by
other circumstances or acts which clearly demonstrate
that the candidate has no bona fide intention to run for the
office for which the certificate of candidacy has been filed
and thus prevent a faithful determination of the true will of
the electorate. 
 SEC. 6. Motu Proprio Cases. — The Commission may,
10
at any time before the election, motu proprio refuse to
give due course to or cancel a certificate of candidacy of
any candidate for the positions of President, Vice-
President, Senator and Party-list:
I. The grounds:
a. Candidates who, on the face of their
certificate of candidacy, do not possess
the constitutional and legal qualifications
of the office to which they aspire to be
elected;
b. Candidate who, on the face of said
certificate, filed their certificate of
mockery or disrepute;
candidacy could cause confusion among
 the voters by the similarity of names and  Sanchez v. COMELEC, 199 Phil. 617
17

surnames with other candidates; and (1987), citing Cauton v. COMELEC, L-25467, 27 April

1967, 19 SCRA 911. 
d. Candidates who have no bona fide
intention to run for the office for which the 18
 See Section 9, Article IX, Constitution.
certificate of candidacy had been filed or
acts that clearly demonstrate the lack of
such bona fide intention, such as:

d.1 Candidates who do not belong

to or are not nominated by any
registered political party of national
constituency;

d.2 Presidential, Vice-Presidential

[candi-dates] who do not present
running mates for vice-president,
respectively, nor senatorial
candidates;

d.3 Candidates who do not have a

platform of government and are
not capable of waging a
nationwide campaign. 

11
 Jenness v. Fortson, 403 U.S. 431 (1971). 

12
 Rollo, pp. 469. 

13
 See Section 178, Omnibus Election Code, as amended.

14
 See Section 239, Omnibus Election Code, as amended.

15
 See Article XI, Omnibus Election Code, as amended. 

16
 See Section 2(1), Article IX, Constitution.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 169815             August 13, 2008
BUREAU OF FISHERIES AND AQUATIC RESOURCES
(BFAR) EMPLOYEES UNION, REGIONAL OFFICE NO.
VII, CEBU CITY, petitioner,  of 1987, and approved by the Civil Service Commission
vs.
COMMISSION ON AUDIT, respondent.
DECISION
PUNO, C.J.:
On appeal are the Decision1 dated April 8, 2005 of
respondent Commission on Audit (COA) in LAO-N-2005-
119 upholding the disallowance by the COA Legal and
Adjudication Office (COA-LAO), Regional Office No. VII,
Cebu City of the P10,000.00 Food Basket Allowance
granted by BFAR to each of its employees in 1999, and
COA Resolution2 dated August 5, 2005, denying
petitioner’s motion for reconsideration of said Decision.
First, the facts:
On October 18, 1999, petitioner Bureau of Fisheries and
Aquatic Resources (BFAR) Employees Union, Regional
Office No. VII, Cebu City issued Resolution No. 01, series
of 1999 requesting the BFAR Central Office for a Food
Basket Allowance. It justified its request on the high cost
of living, i.e., "the increase in prices of petroleum
products which catapulted the cost of food commodities,
has greatly affected the economic conditions and living
standard of the government employees of BFAR Region
VII and could hardly sustain its need to cope up with the
four (4) basic needs, i.e., food, shelter, clothing and
education."3 It also relied on the Employees Suggestions
and Incentive Awards System (ESIAS), pursuant to Book
V of Executive Order No. 292, or the Administrative Code
on December 3, 1996. The ESIAS "includes the granting
of incentives that will help employees overcome present
economic difficulties, boost their morale, and further
commitment and dedication to public service."4 Regional
Director Corazon M. Corrales of BFAR Region VII
indorsed the Resolution, and Malcolm I. Sarmiento, Jr.,
Director of BFAR recommended its approval. Honorable
Cesar M. Drilon, Jr., Undersecretary for Fisheries and
Livestock of the Department of Agriculture, approved the
request for Authority to Grant a Gift Check or the Food
Basket Allowance at the rate of P10,000.00 each to the
130 employees of BFAR Region VII, or in the total
amount of P1,322,682.00.5 On the strength of the
approval, Regional Director Corrales released the
allowance to the BFAR employees.
On post audit, the Commission on Audit – Legal and
Adjudication Office (COA-LAO) Regional Office No. VII,
Cebu City disallowed the grant of Food Basket Allowance
under Notice of Disallowance No. 2003-022-101 (1999)
dated September 19, 2003. It ruled that the allowance
had no legal basis and that it violated: a) Sec. 15(d) of
the General Appropriations Act of 1999, prohibiting the
payment of honoraria, allowances, or other forms of
compensation to any government official or employee,
except those specifically authorized by law; b) par. 4.5 of
Budget Circular No. 16 dated November 28, 1998,
prohibiting the grant of food, rice, gift checks, or any other
form of incentives/allowances, except those authorized
via Administrative Order by the Office of the President;
and c) Sec. 12 of Republic Act (R.A.) No. 6758, or the
Salary Standardization Law of 1989, which includes all
allowances in the standardized salary rates, subject to
certain exceptions.  policies that provide adequate social
On February 26, 2004, BFAR Regional Office No. VII,
through Regional Director Corrales, moved for
reconsideration and prayed for the lifting of the
disallowance. It argued that the grant of Food Basket
Allowance would enhance the welfare and productivity of
the employees. Further, it contended that the approval by
the Honorable Drilon, Undersecretary for Fisheries and
Livestock, of the said benefit was the law itself which
vested the specific authority for its release. The
Commission on Audit – Legal and Adjudication Office
(COA-LAO) Regional Office No. VII, Cebu City denied the
motion.
Petitioner appealed to the Commission on Audit – Legal
and Adjudication Office (COA-LAO) National, Quezon
City. The appeal was denied in a Decision dated April 8,
2005. Petitioner’s motion for reconsideration was likewise
denied in a Resolution dated August 5, 2005.
We deny the petition.
Hence, this appeal.
Petitioner cites the following grounds for its appeal:
1. The disallowance in question is unconstitutional
as it contravenes the fundamental principle of the
State enshrined under Sections 9 and 10, Article II
of the 1987 Constitution, which provide as follows:
SEC. 9. The State shall promote a just and
dynamic social order that will ensure the
prosperity and independence of the nation
and free the people from poverty through
services, promote full employment, a rising
standard of living, and an improved quality
of life for all.
SEC. 10. The State shall promote social
justice in all phases of national
development.6
2. The Undersecretary for Fisheries and Livestock
is an extension of the Secretary of Agriculture who
is an alter-ego of the President. His approval was
tantamount to the authority from the Office of the
President, as contemplated in DBM Budget
Circular No. 16, dated November 28, 1998.7
3. The grant of the Food Basket Allowance is in
conformity with Sec. 12 of the Salary
Standardization Law.8
First, we rule on the issue of constitutionality. Petitioner
invokes the provisions of the 1987 Constitution on social
justice to warrant the grant of the Food Basket
Allowance. Time and again, we have ruled that the social
justice provisions of the Constitution are not self-
executing principles ready for enforcement through the
courts. They are merely statements of principles and
policies. To give them effect, legislative enactment is
required. As we held in Kilosbayan, Incorporated v.
Morato,9the principles and state policies enumerated in
Article II and some sections of Article XII are "not self-
executing provisions, the disregard of which can give rise
to a cause of action in the courts. They do not embody
judicially enforceable constitutional rights but guidelines
for legislation."10
Second, petitioner contends that the approval of the
Department of Agriculture (DA) Undersecretary for
Fisheries and Livestock of the Food Basket Allowance is
the law which authorizes its release. It is crystal clear that
the DA Undersecretary has no authority to grant any
allowance to the employees of BFAR. Section 4.5 of
Budget Circular No. 16 dated November 28, 1998 states:
All agencies are hereby prohibited from granting
any food, rice, gift checks, or any other form of
incentives/allowances except those authorized
via Administrative Order by the Office of the
President.
In the instant case, no Administrative Order has been
issued by the Office of the President to exempt BFAR
from the express prohibition against the grant of any
food, rice, gift checks, or any other form of
incentive/allowance to its employees. 
Petitioner argues that the grant of the Food Basket
Allowance does not violate Sec. 12 of R.A. No. 6758 or
the Salary Standardization Law. This law was passed to
standardize salary rates among government personnel
and do away with multiple allowances and other incentive
packages and the resulting differences in compensation
among them.11 Sec. 12 of the law provides:
Consolidation of Allowances and Compensation.
— All allowances, except for representation and
transportation allowances; clothing and laundry
allowances; subsistence allowance of marine
officers and crew on board government vessels
and hospital personnel; hazard pay; allowances of
foreign service personnel stationed abroad; and
such other additional compensation not otherwise
specified herein as may be determined by the
DBM [Department of Budget and Management],
shall be deemed included in the standardized
salary rates herein prescribed. Such other
additional compensation, whether in cash or in
kind, being received by incumbents only as of July
1, 1989 not integrated into the standardized salary
rates shall continue to be authorized. 
Existing additional compensation of any national
government official or employee paid from local
funds of a local government unit shall be absorbed
into the basic salary of said official or employee
and shall be paid by the National Government. 
Under Sec. 12, as quoted, all kinds of allowances are
integrated in the standardized salary rates. The
exceptions are:
1. representation and transportation allowance
(RATA);
2. clothing and laundry allowance;
3. subsistence allowance of marine officers and
crew on board government vessels;
4. subsistence allowance of hospital personnel;
5. hazard pay;
6. allowances of foreign service personnel
stationed abroad; and
7. such other additional compensation not
otherwise specified herein as may be determined
by the DBM.
Petitioner contends that the Food Basket Allowance falls
under the 7th category above, that of "other additional
compensation not otherwise specified herein as may be
determined by the DBM."  alleviating the economic condition of BFAR employees.
The Court has had the occasion to interpret Sec. 12 of
R.A. No. 6758. In National Tobacco Administration v.
Commission on Audit,12 we held that under the first
sentence of Section 12, the benefits excluded from the
standardized salary rates are the "allowances" or those
which are usually granted to officials and employees of
the government to defray or reimburse the expenses
incurred in the performance of their official functions.
These are the RATA, clothing and laundry allowance,
subsistence allowance of marine officers and crew on
board government vessels and hospital personnel,
hazard pay, and others, as enumerated in the first
sentence of Section 12. We further ruled that the phrase
"and such other additional compensation not otherwise
specified herein as may be determined by the DBM" is a
catch-all proviso for benefits in the nature of allowances
similar to those enumerated. In Philippine Ports
Authority v. Commission on Audit,13 we explained that
if these allowances were consolidated with the
standardized salary rates, then government officials or
employees would be compelled to spend their personal
funds in attending to their duties.
In the instant case, the Food Basket Allowance is
definitely not in the nature of an allowance to reimburse
expenses incurred by officials and employees of the
government in the performance of their official functions.
It is not payment in consideration of the fulfillment of
official duty. It is a form of financial assistance to all
officials and employees of BFAR. Petitioner itself stated
that the Food Basket Allowance has the purpose of
 
Next, petitioner relies on National Compensation Circular
No. 59 dated September 30, 1989, issued by the DBM,
which is the "List of Allowances/Additional Compensation
of Government Officials and Employees which shall be
Deemed Integrated into the Basic Salary." The list
enumerates the following allowances/additional
compensation which shall be incorporated in the basic
salary, hence, may no longer be granted to government
employees:
1. Cost of Living Allowance (COLA);
2. Inflation connected allowance;
3. Living Allowance;
4. Emergency Allowance;
5. Additional Compensation of Public Health
Nurses assigned to public health nursing;
6. Additional Compensation of Rural Health
Physicians;
7. Additional Compensation of Nurses in
Malacañang Clinic;
8. Nurses Allowance in the Air Transportation
Office;
9. Assignment Allowance of School
Superintendents;
10. Post allowance of Postal Service Office
employees;
11. Honoraria/allowances which are regularly
given except the following:
a. those for teaching overload;
b. in lieu of overtime pay;
c. for employees on detail with task
forces/special projects;
d. researchers, experts and specialists who
are acknowledged authorities in their field of
specialization;
e. lecturers and resource persons;
f. Municipal Treasurers deputized by the
Bureau of Internal Revenue to collect and
remit internal revenue collections; and
g. Executive positions in State Universities
and Colleges filled by designation from
among their faculty members.
12. Subsistence Allowance of employees except
those authorized under EO [Executive Order] No.
346 and uniformed personnel of the Armed Forces
of the Philippines and Integrated National Police;
13. Laundry Allowance of employees except those
hospital/sanitaria personnel who attend directly to
patients and who by the nature of their duties are
required to wear uniforms, prison guards and
uniformed personnel of the Armed Forces of the
Philippines and Integrated National Police; and
 14. Incentive allowance/fee/pay except those
authorized under the General Appropriations Act
and Section 33 of P.D. No. 807.
Petitioner invokes the rule of statutory construction that
"what is not included is excluded." Inclusio unius est
exclusio alterius. Petitioner claims that the Food Basket
Allowance is distinct and separate from the specific
allowances/additional compensation listed in the circular.  expenses involved in the honorary recognition of
Again, we reject petitioner’s contention. The Food Basket
Allowance falls under the 14th category, that of incentive
allowance/fee/pay. Petitioner itself justified the Food
Basket Allowance as an incentive to the employees to
encourage them to be more productive and
efficient.14 Under National Compensation Circular No. 59,
exceptions to the incentive allowance/fee/pay category
are those authorized under the General Appropriations
Act (GAA) and Section 33 of Presidential Decree (P.D.)
No. 807. Sec. 15(d) of the GAA for Fiscal Year 1999 or
R.A. No. 8745 clearly prohibits the payment of honoraria,
allowances or other forms of compensation to any
government official or employee, except those specifically
authorized by law. There is no law authorizing the grant
of the subject Food Basket Allowance. Further, Sec. 33 of
P.D. No. 807 or the Civil Service Decree of the
Philippines does not exempt the Food Basket Allowance
from the general rule. Sec. 33 states:
Section 33. Employee Suggestions and Incentive
Award System. There shall be established a
government-wide employee suggestions and
incentive awards system which shall be
administered under such rules, regulations, and
standards as may be promulgated by the
Commission. 
In accordance with rules, regulations, and
standards promulgated by the Commission, the
President or the head of each department or
agency is authorized to incur whatever necessary
subordinate officers and employees of the
government who by their suggestions, inventions,
superior accomplishment, and other personal
efforts contribute to the efficiency, economy, or
other improvement of government operations, or
who perform such other extraordinary acts or
services in the public interest in connection with, or
in relation to, their official employment.
We are not convinced that the Food Basket Allowance
falls under the incentive award system contemplated
above. The decree speaks of suggestions, inventions,
superior accomplishments, and other personal efforts
contributed by an employee to the efficiency, economy,
or other improvement of government operations, or other
extraordinary acts or services performed by an employee
in the public interest in connection with, or in relation to,
his official employment. In the instant case, the Food
Basket Allowance was granted to all BFAR employees,
without distinction. It was not granted due to any
extraordinary contribution or exceptional accomplishment
by an employee. The Food Basket Allowance was
primarily an economic monetary assistance to the
employees. 
Lastly, we note, as the Office of the Solicitor General, on SO ORDERED.
behalf of respondent did, that petitioner failed to exhaust
its administrative remedies. It stopped seeking remedies REYNATO S. PUNO
at the level of respondent’s Legal and Adjudication Office. Chief Justice
It failed to appeal the latter’s adverse decision to the
Commission on Audit proper. The consequence for
failure to exhaust administrative remedies is clear: the
disallowance, as ruled by the Commission on Audit –
Legal and Adjudication Office Regional Office No. VII,
Cebu City and upheld by the Commission on Audit –
Legal and Adjudication Office National, Quezon City,
became final and executory. Sections 48 and 51 of
Presidential Decree No. 1445, or the Government
Auditing Code of the Philippines provide:

Section 48. Appeal from decision of auditors. –

Any person aggrieved by the decision of an auditor
of any government agency in the settlement of an
account or claim may, within six months from
receipt of a copy of the decision, appeal in writing
to the Commission.

Section 51. Finality of decisions of the

Commission or any auditor. – A decision of the
Commission or of any auditor upon any matter
within its or his jurisdiction, if not appealed as
herein provided, shall be final and executory.

IN VIEW WHEREOF, the petition is DENIED. The

Decision and Resolution of the Commission on Audit –
Legal and Adjudication Office dated April 8, 2005 and
August 5, 2005, respectively, in LAO-N-2005-119,
are AFFIRMED.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 176579               June 28, 2011
WILSON P. GAMBOA, Petitioner,  stockholder of Philippine Long Distance Telephone Company
vs.
FINANCE SECRETARY MARGARITO B. TEVES, FINANCE
UNDERSECRETARY JOHN P. SEVILLA, AND
COMMISSIONER RICARDO ABCEDE OF THE PRESIDENTIAL
COMMISSION ON GOOD GOVERNMENT (PCGG) IN THEIR
CAPACITIES AS CHAIR AND MEMBERS, RESPECTIVELY, OF
THE PRIVATIZATION COUNCIL, CHAIRMAN ANTHONI SALIM
OF FIRST PACIFIC CO., LTD. IN HIS CAPACITY AS
DIRECTOR OF METRO PACIFIC ASSET HOLDINGS INC.,
CHAIRMAN MANUEL V. PANGILINAN OF PHILIPPINE LONG
DISTANCE TELEPHONE COMPANY (PLDT) IN HIS CAPACITY
AS MANAGING DIRECTOR OF FIRST PACIFIC CO., LTD.,
PRESIDENT NAPOLEON L. NAZARENO OF PHILIPPINE
LONG DISTANCE TELEPHONE COMPANY, CHAIR FE BARIN
OF THE SECURITIES EXCHANGE COMMISSION, and
PRESIDENT FRANCIS LIM OF THE PHILIPPINE STOCK
EXCHANGE, Respondents.
PABLITO V. SANIDAD and ARNO V. SANIDAD, Petitioners-in-
Intervention.
DECISION
CARPIO, J.:
The Case
This is an original petition for prohibition, injunction, declaratory
relief and declaration of nullity of the sale of shares of stock of
Philippine Telecommunications Investment Corporation (PTIC) by
the government of the Republic of the Philippines to Metro Pacific
Assets Holdings, Inc. (MPAH), an affiliate of First Pacific
Company Limited (First Pacific).
The Antecedents
The facts, according to petitioner Wilson P. Gamboa, a
(PLDT), are as follows:1
On 28 November 1928, the Philippine Legislature enacted Act
No. 3436 which granted PLDT a franchise and the right to engage
in telecommunications business. In 1969, General Telephone and
Electronics Corporation (GTE), an American company and a
major PLDT stockholder, sold 26 percent of the outstanding
common shares of PLDT to PTIC. In 1977, Prime Holdings, Inc.
(PHI) was incorporated by several persons, including Roland
Gapud and Jose Campos, Jr. Subsequently, PHI became the
owner of 111,415 shares of stock of PTIC by virtue of three
Deeds of Assignment executed by PTIC stockholders Ramon
Cojuangco and Luis Tirso Rivilla. In 1986, the 111,415 shares of
stock of PTIC held by PHI were sequestered by the Presidential
Commission on Good Government (PCGG). The 111,415 PTIC
shares, which represent about 46.125 percent of the outstanding
capital stock of PTIC, were later declared by this Court to be
owned by the Republic of the Philippines.2
In 1999, First Pacific, a Bermuda-registered, Hong Kong-based
investment firm, acquired the remaining 54 percent of the
outstanding capital stock of PTIC. On 20 November 2006, the
Inter-Agency Privatization Council (IPC) of the Philippine
Government announced that it would sell the 111,415 PTIC
shares, or 46.125 percent of the outstanding capital stock of
PTIC, through a public bidding to be conducted on 4 December
2006. Subsequently, the public bidding was reset to 8 December
2006, and only two bidders, Parallax Venture Fund XXVII
(Parallax) and Pan-Asia Presidio Capital, submitted their bids.
Parallax won with a bid of ₱25.6 billion or US$510 million.
Thereafter, First Pacific announced that it would exercise its right
of first refusal as a PTIC stockholder and buy the 111,415 PTIC
shares by matching the bid price of Parallax. However, First
Pacific failed to do so by the 1 February 2007 deadline set by IPC
and instead, yielded its right to PTIC itself which was then given
by IPC until 2 March 2007 to buy the PTIC shares. On 14
February 2007, First Pacific, through its subsidiary, MPAH,
entered into a Conditional Sale and Purchase Agreement of the
111,415 PTIC shares, or 46.125 percent of the outstanding
capital stock of PTIC, with the Philippine Government for the price
of ₱25,217,556,000 or US$510,580,189. The sale was completed
on 28 February 2007.
Since PTIC is a stockholder of PLDT, the sale by the Philippine
Government of 46.125 percent of PTIC shares is actually an
indirect sale of 12 million shares or about 6.3 percent of the
outstanding common shares of PLDT. With the sale, First
Pacific’s common shareholdings in PLDT increased from
30.7 percent to 37 percent, thereby increasing the common
shareholdings of foreigners in PLDT to about 81.47
percent. This violates Section 11, Article XII of the 1987
Philippine Constitution which limits foreign ownership of the
capital of a public utility to not more than 40 percent.3
On the other hand, public respondents Finance Secretary
Margarito B. Teves, Undersecretary John P. Sevilla, and PCGG
Commissioner Ricardo Abcede allege the following relevant facts:
On 9 November 1967, PTIC was incorporated and had since
engaged in the business of investment holdings. PTIC held
26,034,263 PLDT common shares, or 13.847 percent of the total
PLDT outstanding common shares. PHI, on the other hand, was
incorporated in 1977, and became the owner of 111,415 PTIC
shares or 46.125 percent of the outstanding capital stock of PTIC
by virtue of three Deeds of Assignment executed by Ramon
Cojuangco and Luis Tirso Rivilla. In 1986, the 111,415 PTIC
shares held by PHI were sequestered by the PCGG, and
subsequently declared by this Court as part of the ill-gotten
wealth of former President Ferdinand Marcos. The sequestered
PTIC shares were reconveyed to the Republic of the Philippines
in accordance with this Court’s decision4 which became final and
executory on 8 August 2006.
The Philippine Government decided to sell the 111,415 PTIC
shares, which represent 6.4 percent of the outstanding common
shares of stock of PLDT, and designated the Inter-Agency
Privatization Council (IPC), composed of the Department of
Finance and the PCGG, as the disposing entity. An invitation to
bid was published in seven different newspapers from 13 to 24
November 2006. On 20 November 2006, a pre-bid conference
was held, and the original deadline for bidding scheduled on 4
December 2006 was reset to 8 December 2006. The extension
was published in nine different newspapers.
During the 8 December 2006 bidding, Parallax Capital
Management LP emerged as the highest bidder with a bid of
₱25,217,556,000. The government notified First Pacific, the
majority owner of PTIC shares, of the bidding results and gave
First Pacific until 1 February 2007 to exercise its right of first
refusal in accordance with PTIC’s Articles of Incorporation. First
Pacific announced its intention to match Parallax’s bid.
On 31 January 2007, the House of Representatives (HR)
Committee on Good Government conducted a public hearing on
the particulars of the then impending sale of the 111,415 PTIC
shares. Respondents Teves and Sevilla were among those who
attended the public hearing. The HR Committee Report No. 2270
concluded that: (a) the auction of the government’s 111,415 PTIC
shares bore due diligence, transparency and conformity with
existing legal procedures; and (b) First Pacific’s intended
acquisition of the government’s 111,415 PTIC shares
resulting in First Pacific’s 100% ownership of PTIC will not
violate the 40 percent constitutional limit on foreign
ownership of a public utility since PTIC holds only 13.847
percent of the total outstanding common shares of
PLDT.5 On 28 February 2007, First Pacific completed the
acquisition of the 111,415 shares of stock of PTIC.
Respondent Manuel V. Pangilinan admits the following facts: (a)
the IPC conducted a public bidding for the sale of 111,415 PTIC
shares or 46 percent of the outstanding capital stock of PTIC (the
remaining 54 percent of PTIC shares was already owned by First
Pacific and its affiliates); (b) Parallax offered the highest bid
amounting to ₱25,217,556,000; (c) pursuant to the right of first
refusal in favor of PTIC and its shareholders granted in PTIC’s
Articles of Incorporation, MPAH, a First Pacific affiliate, exercised
its right of first refusal by matching the highest bid offered for
PTIC shares on 13 February 2007; and (d) on 28 February 2007,
the sale was consummated when MPAH paid IPC
₱25,217,556,000 and the government delivered the certificates
for the 111,415 PTIC shares. Respondent Pangilinan denies the
other allegations of facts of petitioner.
On 28 February 2007, petitioner filed the instant petition for
prohibition, injunction, declaratory relief, and declaration of nullity
of sale of the 111,415 PTIC shares. Petitioner claims, among
others, that the sale of the 111,415 PTIC shares would result in
an increase in First Pacific’s common shareholdings in PLDT
from 30.7 percent to 37 percent, and this, combined with
Japanese NTT DoCoMo’s common shareholdings in PLDT,
would result to a total foreign common shareholdings in PLDT of
51.56 percent which is over the 40 percent constitutional
limit.6 Petitioner asserts:
If and when the sale is completed, First Pacific’s equity in PLDT
will go up from 30.7 percent to 37.0 percent of its common – or
voting- stockholdings, x x x. Hence, the consummation of the sale
will put the two largest foreign investors in PLDT – First Pacific
and Japan’s NTT DoCoMo, which is the world’s largest wireless
telecommunications firm, owning 51.56 percent of PLDT common
equity. x x x With the completion of the sale, data culled from the
official website of the New York Stock Exchange (www.nyse.com)
showed that those foreign entities, which own at least five percent
of common equity, will collectively own 81.47 percent of PLDT’s
common equity. x x x
x x x as the annual disclosure reports, also referred to as Form
20-K reports x x x which PLDT submitted to the New York Stock
Exchange for the period 2003-2005, revealed that First Pacific
and several other foreign entities breached the constitutional limit
of 40 percent ownership as early as 2003. x x x"7
Petitioner raises the following issues: (1) whether the
consummation of the then impending sale of 111,415 PTIC
shares to First Pacific violates the constitutional limit on foreign
ownership of a public utility; (2) whether public respondents
committed grave abuse of discretion in allowing the sale of the
111,415 PTIC shares to First Pacific; and (3) whether the sale of
common shares to foreigners in excess of 40 percent of the entire
subscribed common capital stock violates the constitutional limit
on foreign ownership of a public utility.8
On 13 August 2007, Pablito V. Sanidad and Arno V. Sanidad filed
a Motion for Leave to Intervene and Admit Attached Petition-in-
Intervention. In the Resolution of 28 August 2007, the Court
granted the motion and noted the Petition-in-Intervention.
Petitioners-in-intervention "join petitioner Wilson Gamboa x x x in
seeking, among others, to enjoin and/or nullify the sale by
respondents of the 111,415 PTIC shares to First Pacific or
assignee." Petitioners-in-intervention claim that, as PLDT
subscribers, they have a "stake in the outcome of the controversy
x x x where the Philippine Government is completing the sale of
government owned assets in [PLDT], unquestionably a public
utility, in violation of the nationality restrictions of the Philippine
Constitution."
The Issue
This Court is not a trier of facts. Factual questions such as those
raised by petitioner,9 which indisputably demand a thorough
examination of the evidence of the parties, are generally beyond
this Court’s jurisdiction. Adhering to this well-settled principle, the
Court shall confine the resolution of the instant controversy solely
on the threshold and purely legal issue of whether the term
"capital" in Section 11, Article XII of the Constitution refers to the
total common shares only or to the total outstanding capital stock
(combined total of common and non-voting preferred shares) of
PLDT, a public utility.
The Ruling of the Court
The petition is partly meritorious.
Petition for declaratory relief treated as petition for
mandamus
At the outset, petitioner is faced with a procedural barrier. Among
the remedies petitioner seeks, only the petition for prohibition is
within the original jurisdiction of this court, which however is not
exclusive but is concurrent with the Regional Trial Court and the
Court of Appeals. The actions for declaratory relief,10 injunction,
and annulment of sale are not embraced within the original
jurisdiction of the Supreme Court. On this ground alone, the
petition could have been dismissed outright.
While direct resort to this Court may be justified in a petition for
prohibition,11 the Court shall nevertheless refrain from discussing
the grounds in support of the petition for prohibition since on 28
February 2007, the questioned sale was consummated when
MPAH paid IPC ₱25,217,556,000 and the government delivered
the certificates for the 111,415 PTIC shares.
However, since the threshold and purely legal issue on the
definition of the term "capital" in Section 11, Article XII of the
Constitution has far-reaching implications to the national
economy, the Court treats the petition for declaratory relief as one
for mandamus.12
In Salvacion v. Central Bank of the Philippines,13 the Court treated
the petition for declaratory relief as one for mandamus
considering the grave injustice that would result in the
interpretation of a banking law. In that case, which involved the
crime of rape committed by a foreign tourist against a Filipino
minor and the execution of the final judgment in the civil case for
damages on the tourist’s dollar deposit with a local bank, the
Court declared Section 113 of Central Bank Circular No. 960,
exempting foreign currency deposits from attachment,
garnishment or any other order or process of any court,
inapplicable due to the peculiar circumstances of the case. The
Court held that "injustice would result especially to a citizen
aggrieved by a foreign guest like accused x x x" that would
"negate Article 10 of the Civil Code which provides that ‘in case of
doubt in the interpretation or application of laws, it is presumed
that the lawmaking body intended right and justice to prevail.’"
The Court therefore required respondents Central Bank of the
Philippines, the local bank, and the accused to comply with the
writ of execution issued in the civil case for damages and to
release the dollar deposit of the accused to satisfy the judgment.
In Alliance of Government Workers v. Minister of Labor,14 the
Court similarly brushed aside the procedural infirmity of the
petition for declaratory relief and treated the same as one for
mandamus. In Alliance, the issue was whether the government
unlawfully excluded petitioners, who were government
employees, from the enjoyment of rights to which they were
entitled under the law. Specifically, the question was: "Are the
branches, agencies, subdivisions, and instrumentalities of the
Government, including government owned or controlled
corporations included among the four ‘employers’ under
Presidential Decree No. 851 which are required to pay their
employees x x x a thirteenth (13th) month pay x x x ?" The
Constitutional principle involved therein affected all government
employees, clearly justifying a relaxation of the technical rules of
procedure, and certainly requiring the interpretation of the
assailed presidential decree.
In short, it is well-settled that this Court may treat a petition for
declaratory relief as one for mandamus if the issue involved has
far-reaching implications. As this Court held in Salvacion:
The Court has no original and exclusive jurisdiction over a petition
for declaratory relief. However, exceptions to this rule have
been recognized. Thus, where the petition has far-reaching
implications and raises questions that should be resolved, it
may be treated as one for mandamus.15 (Emphasis supplied)
In the present case, petitioner seeks primarily the interpretation of
the term "capital" in Section 11, Article XII of the Constitution. He
prays that this Court declare that the term "capital" refers to
common shares only, and that such shares constitute "the sole
basis in determining foreign equity in a public utility." Petitioner
further asks this Court to declare any ruling inconsistent with such
interpretation unconstitutional.
The interpretation of the term "capital" in Section 11, Article XII of
the Constitution has far-reaching implications to the national
economy. In fact, a resolution of this issue will determine whether
Filipinos are masters, or second class citizens, in their own
country. What is at stake here is whether Filipinos or foreigners
will have effective control of the national economy. Indeed, if
ever there is a legal issue that has far-reaching implications to the
entire nation, and to future generations of Filipinos, it is the
threshhold legal issue presented in this case.
The Court first encountered the issue on the definition of the term
"capital" in Section 11, Article XII of the Constitution in the case
of Fernandez v. Cojuangco, docketed as G.R. No. 157360.16 That
case involved the same public utility (PLDT) and substantially the
same private respondents. Despite the importance and novelty of
the constitutional issue raised therein and despite the fact that the
petition involved a purely legal question, the Court declined to
resolve the case on the merits, and instead denied the same for
disregarding the hierarchy of courts.17There, petitioner Fernandez
assailed on a pure question of law the Regional Trial Court’s
Decision of 21 February 2003 via a petition for review under Rule
45. The Court’s Resolution, denying the petition, became final on
21 December 2004.
The instant petition therefore presents the Court with another
opportunity to finally settle this purely legal issuewhich is of
transcendental importance to the national economy and a
fundamental requirement to a faithful adherence to our
Constitution. The Court must forthwith seize such opportunity, not
only for the benefit of the litigants, but more significantly for the
benefit of the entire Filipino people, to ensure, in the words of the
Constitution, "a self-reliant and independent national
economy effectively controlled by Filipinos."18 Besides, in the
light of vague and confusing positions taken by government
agencies on this purely legal issue, present and future foreign
investors in this country deserve, as a matter of basic fairness, a
categorical ruling from this Court on the extent of their
participation in the capital of public utilities and other nationalized
businesses.
Despite its far-reaching implications to the national economy, this
purely legal issue has remained unresolved for over 75 years
since the 1935 Constitution. There is no reason for this Court to
evade this ever recurring fundamental issue and delay again
defining the term "capital," which appears not only in Section 11,
Article XII of the Constitution, but also in Section 2, Article XII on
co-production and joint venture agreements for the development
of our natural resources,19 in Section 7, Article XII on ownership of
private lands,20 in Section 10, Article XII on the reservation of
certain investments to Filipino citizens,21 in Section 4(2), Article
XIV on the ownership of educational institutions,22 and in Section
11(2), Article XVI on the ownership of advertising companies.23
Petitioner has locus standi
There is no dispute that petitioner is a stockholder of PLDT. As
such, he has the right to question the subject sale, which he
claims to violate the nationality requirement prescribed in Section
11, Article XII of the Constitution. If the sale indeed violates the
Constitution, then there is a possibility that PLDT’s franchise
could be revoked, a dire consequence directly affecting
petitioner’s interest as a stockholder.
More importantly, there is no question that the instant petition
raises matters of transcendental importance to the public. The
fundamental and threshold legal issue in this case, involving the
national economy and the economic welfare of the Filipino
people, far outweighs any perceived impediment in the legal
personality of the petitioner to bring this action.
In Chavez v. PCGG,24 the Court upheld the right of a citizen to
bring a suit on matters of transcendental importance to the public,
thus:
In Tañada v. Tuvera, the Court asserted that when the issue
concerns a public right and the object of mandamus is to
obtain the enforcement of a public duty, the people are
regarded as the real parties in interest; and because it is
sufficient that petitioner is a citizen and as such is interested
in the execution of the laws, he need not show that he has
any legal or special interest in the result of the action. In the
aforesaid case, the petitioners sought to enforce their right to be
informed on matters of public concern, a right then recognized in
Section 6, Article IV of the 1973 Constitution, in connection with
the rule that laws in order to be valid and enforceable must be
published in the Official Gazette or otherwise effectively
promulgated. In ruling for the petitioners’ legal standing, the Court
declared that the right they sought to be enforced ‘is a public right
recognized by no less than the fundamental law of the land.’
Legaspi v. Civil Service Commission, while reiterating Tañada,
further declared that ‘when a mandamus proceeding involves
the assertion of a public right, the requirement of personal
interest is satisfied by the mere fact that petitioner is a
citizen and, therefore, part of the general ‘public’ which
possesses the right.’
Further, in Albano v. Reyes, we said that while expenditure of
public funds may not have been involved under the questioned
contract for the development, management and operation of the
Manila International Container Terminal, ‘public interest [was]
definitely involved considering the important role [of the
subject contract] . . . in the economic development of the
country and the magnitude of the financial consideration
involved.’ We concluded that, as a consequence, the disclosure
provision in the Constitution would constitute sufficient authority
for upholding the petitioner’s standing. (Emphasis supplied)
Clearly, since the instant petition, brought by a citizen, involves
matters of transcendental public importance, the petitioner has
the requisite locus standi.
Definition of the Term "Capital" in
Section 11, Article XII of the 1987 Constitution
Section 11, Article XII (National Economy and Patrimony) of the
1987 Constitution mandates the Filipinization of public utilities, to
wit:
Section 11. No franchise, certificate, or any other form of
authorization for the operation of a public utility shall be
granted except to citizens of the Philippines or to
corporations or associations organized under the laws of the
Philippines, at least sixty per centum of whose capital is
owned by such citizens; nor shall such franchise, certificate, or
authorization be exclusive in character or for a longer period than
fifty years. Neither shall any such franchise or right be granted
except under the condition that it shall be subject to amendment,
alteration, or repeal by the Congress when the common good so
requires. The State shall encourage equity participation in public
utilities by the general public. The participation of foreign
investors in the governing body of any public utility enterprise
shall be limited to their proportionate share in its capital, and all
the executive and managing officers of such corporation or
association must be citizens of the Philippines. (Emphasis
supplied)
The above provision substantially reiterates Section 5, Article XIV
of the 1973 Constitution, thus:
Section 5. No franchise, certificate, or any other form of
authorization for the operation of a public utility shall be
granted except to citizens of the Philippines or to
corporations or associations organized under the laws of the
Philippines at least sixty per centum of the capital of which
is owned by such citizens, nor shall such franchise, certificate,
or authorization be exclusive in character or for a longer period
than fifty years. Neither shall any such franchise or right be
granted except under the condition that it shall be subject to
amendment, alteration, or repeal by the National Assembly when
the public interest so requires. The State shall encourage equity
participation in public utilities by the general public. The
participation of foreign investors in the governing body of any
public utility enterprise shall be limited to their proportionate share
in the capital thereof. (Emphasis supplied)
The foregoing provision in the 1973 Constitution reproduced
Section 8, Article XIV of the 1935 Constitution, viz:
Section 8. No franchise, certificate, or any other form of
authorization for the operation of a public utility shall be
granted except to citizens of the Philippines or to
corporations or other entities organized under the laws of
the Philippines sixty per centum of the capital of which is
owned by citizens of the Philippines,nor shall such franchise,
certificate, or authorization be exclusive in character or for a
longer period than fifty years. No franchise or right shall be
granted to any individual, firm, or corporation, except under the
condition that it shall be subject to amendment, alteration, or
repeal by the Congress when the public interest so requires.
(Emphasis supplied)
Father Joaquin G. Bernas, S.J., a leading member of the 1986
Constitutional Commission, reminds us that the Filipinization
provision in the 1987 Constitution is one of the products of the
spirit of nationalism which gripped the 1935 Constitutional
Convention.25 The 1987 Constitution "provides for the
Filipinization of public utilities by requiring that any form of
authorization for the operation of public utilities should be granted
only to ‘citizens of the Philippines or to corporations or
associations organized under the laws of the Philippines at least
sixty per centum of whose capital is owned by such citizens.’ The
provision is [an express] recognition of the sensitive and
vital position of public utilities both in the national economy
and for national security."26 The evident purpose of the
citizenship requirement is to prevent aliens from assuming control
of public utilities, which may be inimical to the national
interest.27 This specific provision explicitly reserves to Filipino
citizens control of public utilities, pursuant to an overriding
economic goal of the 1987 Constitution: to "conserve and develop
our patrimony"28 and ensure "a self-reliant and independent
national economy effectively controlled by Filipinos."29
Any citizen or juridical entity desiring to operate a public utility
must therefore meet the minimum nationality requirement
prescribed in Section 11, Article XII of the Constitution. Hence, for
a corporation to be granted authority to operate a public utility, at
least 60 percent of its "capital" must be owned by Filipino citizens.
The crux of the controversy is the definition of the term "capital."
Does the term "capital" in Section 11, Article XII of the
Constitution refer to common shares or to the total outstanding
capital stock (combined total of common and non-voting preferred
shares)?
Petitioner submits that the 40 percent foreign equity limitation in
domestic public utilities refers only to common shares because
such shares are entitled to vote and it is through voting that
control over a corporation is exercised. Petitioner posits that the
term "capital" in Section 11, Article XII of the Constitution refers to
"the ownership of common capital stock subscribed and
outstanding, which class of shares alone, under the corporate
set-up of PLDT, can vote and elect members of the board of
directors." It is undisputed that PLDT’s non-voting preferred
shares are held mostly by Filipino citizens.30 This arose from
Presidential Decree No. 217,31 issued on 16 June 1973 by then
President Ferdinand Marcos, requiring every applicant of a PLDT
telephone line to subscribe to non-voting preferred shares to pay
for the investment cost of installing the telephone line.32
Petitioners-in-intervention basically reiterate petitioner’s
arguments and adopt petitioner’s definition of the term
"capital."33 Petitioners-in-intervention allege that "the approximate
foreign ownership of common capital stock of PLDT x x x already
amounts to at least 63.54% of the total outstanding common
stock," which means that foreigners exercise significant control
over PLDT, patently violating the 40 percent foreign equity
limitation in public utilities prescribed by the Constitution.
Respondents, on the other hand, do not offer any definition of the
term "capital" in Section 11, Article XII of the Constitution. More
importantly, private respondents Nazareno and Pangilinan of
PLDT do not dispute that more than 40 percent of the common
shares of PLDT are held by foreigners.
In particular, respondent Nazareno’s Memorandum, consisting of
73 pages, harps mainly on the procedural infirmities of the
petition and the supposed violation of the due process rights of
the "affected foreign common shareholders." Respondent
Nazareno does not deny petitioner’s allegation of foreigners’
dominating the common shareholdings of PLDT. Nazareno
stressed mainly that the petition "seeks to divest foreign
common shareholders purportedly exceeding 40% of the
total common shareholdings in PLDT of their ownership over
their shares." Thus, "the foreign natural and juridical PLDT
shareholders must be impleaded in this suit so that they can be
heard."34 Essentially, Nazareno invokes denial of due process on
behalf of the foreign common shareholders.
While Nazareno does not introduce any definition of the term
"capital," he states that "among the factual assertions that
need to be established to counter petitioner’s allegations is
the uniform interpretation by government agencies (such as
the SEC), institutions and corporations (such as the
Philippine National Oil Company-Energy Development
Corporation or PNOC-EDC) of including both preferred
shares and common shares in "controlling interest" in view
of testing compliance with the 40% constitutional limitation
on foreign ownership in public utilities."35
Similarly, respondent Manuel V. Pangilinan does not define the
term "capital" in Section 11, Article XII of the Constitution. Neither
does he refute petitioner’s claim of foreigners holding more than
40 percent of PLDT’s common shares. Instead, respondent
Pangilinan focuses on the procedural flaws of the petition and the
alleged violation of the due process rights of foreigners.
Respondent Pangilinan emphasizes in his Memorandum (1) the
absence of this Court’s jurisdiction over the petition; (2)
petitioner’s lack of standing; (3) mootness of the petition; (4) non-
availability of declaratory relief; and (5) the denial of due process
rights. Moreover, respondent Pangilinan alleges that the issue
should be whether "owners of shares in PLDT as well as owners
of shares in companies holding shares in PLDT may be required
to relinquish their shares in PLDT and in those companies without
any law requiring them to surrender their shares and also without
notice and trial."
Respondent Pangilinan further asserts that "Section 11, [Article
XII of the Constitution] imposes no nationality requirement
on the shareholders of the utility company as a condition for
keeping their shares in the utility company." According to him,
"Section 11 does not authorize taking one person’s property (the
shareholder’s stock in the utility company) on the basis of another
party’s alleged failure to satisfy a requirement that is a condition
only for that other party’s retention of another piece of property
(the utility company being at least 60% Filipino-owned to keep its
franchise)."36
The OSG, representing public respondents Secretary Margarito
Teves, Undersecretary John P. Sevilla, Commissioner Ricardo
Abcede, and Chairman Fe Barin, is likewise silent on the
definition of the term "capital." In its Memorandum37 dated 24
September 2007, the OSG also limits its discussion on the
supposed procedural defects of the petition, i.e. lack of standing,
lack of jurisdiction, non-inclusion of interested parties, and lack of
basis for injunction. The OSG does not present any definition or
interpretation of the term "capital" in Section 11, Article XII of the
Constitution. The OSG contends that "the petition actually
partakes of a collateral attack on PLDT’s franchise as a public
utility," which in effect requires a "full-blown trial where all the
parties in interest are given their day in court."38
Respondent Francisco Ed Lim, impleaded as President and Chief
Executive Officer of the Philippine Stock Exchange (PSE), does
not also define the term "capital" and seeks the dismissal of the
petition on the following grounds: (1) failure to state a cause of
action against Lim; (2) the PSE allegedly implemented its rules
and required all listed companies, including PLDT, to make
proper and timely disclosures; and (3) the reliefs prayed for in the
petition would adversely impact the stock market.
stock entitled to vote, i.e., common shares, considering that it is
through voting that control is being exercised. x x x
Obviously, the intent of the framers of the Constitution in
imposing limitations and restrictions on fully nationalized and
partially nationalized activities is for Filipino nationals to be
always in control of the corporation undertaking said activities.
Otherwise, if the Trial Court’s ruling upholding respondents’
arguments were to be given credence, it would be possible for the
ownership structure of a public utility corporation to be divided
into one percent (1%) common stocks and ninety-nine percent
(99%) preferred stocks. Following the Trial Court’s ruling adopting
respondents’ arguments, the common shares can be owned
entirely by foreigners thus creating an absurd situation wherein
foreigners, who are supposed to be minority shareholders, control
the public utility corporation.
xxxx
Thus, the 40% foreign ownership limitation should be interpreted
to apply to both the beneficial ownership and the controlling
interest.
xxxx

In the earlier case of Fernandez v. Cojuangco, petitioner

Fernandez who claimed to be a stockholder of record of PLDT,
contended that the term "capital" in the 1987 Constitution refers
to shares entitled to vote or the common shares. Fernandez
explained thus:

The forty percent (40%) foreign equity limitation in public utilities

prescribed by the Constitution refers to ownership of shares of
Clearly, therefore, the forty percent (40%) foreign equity limitation
in public utilities prescribed by the Constitution refers to
ownership of shares of stock entitled to vote, i.e., common
shares. Furthermore, ownership of record of shares will not
suffice but it must be shown that the legal and beneficial
ownership rests in the hands of Filipino citizens. Consequently, in
the case of petitioner PLDT, since it is already admitted that the
voting interests of foreigners which would gain entry to petitioner
PLDT by the acquisition of SMART shares through the
Questioned Transactions is equivalent to 82.99%, and the
nominee arrangements between the foreign principals and the
Filipino owners is likewise admitted, there is, therefore, a violation
of Section 11, Article XII of the Constitution.
Parenthetically, the Opinions dated February 15, 1988 and April
14, 1987 cited by the Trial Court to support the proposition that
the meaning of the word "capital" as used in Section 11, Article
XII of the Constitution allegedly refers to the sum total of the
shares subscribed and paid-in by the shareholder and it allegedly
is immaterial how the stock is classified, whether as common or
preferred, cannot stand in the face of a clear legislative policy as
stated in the FIA which took effect in 1991 or way after said
opinions were rendered, and as clarified by the above-quoted
Amendments. In this regard, suffice it to state that as between the
law and an opinion rendered by an administrative agency, the law
indubitably prevails. Moreover, said Opinions are merely advisory
and cannot prevail over the clear intent of the framers of the
Constitution.
In the same vein, the SEC’s construction of Section 11, Article XII
of the Constitution is at best merely advisory for it is the courts
that finally determine what a law means.39
On the other hand, respondents therein, Antonio O. Cojuangco,
Manuel V. Pangilinan, Carlos A. Arellano, Helen Y. Dee,
Magdangal B. Elma, Mariles Cacho-Romulo, Fr. Bienvenido F.
Nebres, Ray C. Espinosa, Napoleon L. Nazareno, Albert F. Del
Rosario, and Orlando B. Vea, argued that the term "capital" in
Section 11, Article XII of the Constitution includes preferred
shares since the Constitution does not distinguish among classes
of stock, thus:
16. The Constitution applies its foreign ownership limitation on the
corporation’s "capital," without distinction as to classes of shares.
xxx
In this connection, the Corporation Code – which was already in
force at the time the present (1987) Constitution was drafted –
defined outstanding capital stock as follows:
Section 137. Outstanding capital stock defined. – The term
"outstanding capital stock", as used in this Code, means the total
shares of stock issued under binding subscription agreements to
subscribers or stockholders, whether or not fully or partially paid,
except treasury shares.
Section 137 of the Corporation Code also does not distinguish
between common and preferred shares, nor exclude either class
of shares, in determining the outstanding capital stock (the
"capital") of a corporation. Consequently, petitioner’s suggestion
to reckon PLDT’s foreign equity only on the basis of PLDT’s
outstanding common shares is without legal basis. The language
of the Constitution should be understood in the sense it has in
common use.
xxxx
17. But even assuming that resort to the proceedings of the
Constitutional Commission is necessary, there is nothing in the
Record of the Constitutional Commission (Vol. III) – which
petitioner misleadingly cited in the Petition x x x – which supports
petitioner’s view that only common shares should form the basis
for computing a public utility’s foreign equity.
xxxx
18. In addition, the SEC – the government agency primarily
responsible for implementing the Corporation Code, and which
also has the responsibility of ensuring compliance with the
Constitution’s foreign equity restrictions as regards nationalized
activities x x x – has categorically ruled that both common and
preferred shares are properly considered in determining
outstanding capital stock and the nationality composition
thereof.40
We agree with petitioner and petitioners-in-intervention. The term
"capital" in Section 11, Article XII of the Constitution refers only to
shares of stock entitled to vote in the election of directors, and
thus in the present case only to common shares,41 and not to the
total outstanding capital stock comprising both common and non-
voting preferred shares.
The Corporation Code of the Philippines42 classifies shares as
common or preferred, thus:
Sec. 6. Classification of shares. - The shares of stock of stock
corporations may be divided into classes or series of shares, or
both, any of which classes or series of shares may have such
rights, privileges or restrictions as may be stated in the articles of
incorporation: Provided, That no share may be deprived of
voting rights except those classified and issued as
"preferred" or "redeemable" shares, unless otherwise
provided in this Code: Provided, further, That there shall always
be a class or series of shares which have complete voting rights.
Any or all of the shares or series of shares may have a par value
or have no par value as may be provided for in the articles of
incorporation: Provided, however, That banks, trust companies,
insurance companies, public utilities, and building and loan
associations shall not be permitted to issue no-par value shares
of stock.
Preferred shares of stock issued by any corporation may be given
preference in the distribution of the assets of the corporation in
case of liquidation and in the distribution of dividends, or such
other preferences as may be stated in the articles of incorporation
which are not violative of the provisions of this Code: Provided,
That preferred shares of stock may be issued only with a stated
par value. The Board of Directors, where authorized in the articles
of incorporation, may fix the terms and conditions of preferred
shares of stock or any series thereof: Provided, That such terms
and conditions shall be effective upon the filing of a certificate
thereof with the Securities and Exchange Commission.
Shares of capital stock issued without par value shall be deemed
fully paid and non-assessable and the holder of such shares shall
not be liable to the corporation or to its creditors in respect
thereto: Provided; That shares without par value may not be
issued for a consideration less than the value of five (₱5.00)
pesos per share: Provided, further, That the entire consideration
received by the corporation for its no-par value shares shall be
treated as capital and shall not be available for distribution as
dividends.
A corporation may, furthermore, classify its shares for the
purpose of insuring compliance with constitutional or legal
requirements.
Except as otherwise provided in the articles of incorporation and
stated in the certificate of stock, each share shall be equal in all
respects to every other share.
Where the articles of incorporation provide for non-voting shares
in the cases allowed by this Code, the holders of such shares
shall nevertheless be entitled to vote on the following matters:
1. Amendment of the articles of incorporation;
2. Adoption and amendment of by-laws;
 3. Sale, lease, exchange, mortgage, pledge or other
disposition of all or substantially all of the corporate
property;
4. Incurring, creating or increasing bonded indebtedness;
5. Increase or decrease of capital stock;
6. Merger or consolidation of the corporation with another
corporation or other corporations;
7. Investment of corporate funds in another corporation or
business in accordance with this Code; and
8. Dissolution of the corporation.
Except as provided in the immediately preceding paragraph, the
vote necessary to approve a particular corporate act as provided
in this Code shall be deemed to refer only to stocks with voting
rights.
Indisputably, one of the rights of a stockholder is the right to
participate in the control or management of the corporation.43 This
is exercised through his vote in the election of directors because
it is the board of directors that controls or manages the
corporation.44 In the absence of provisions in the articles of
incorporation denying voting rights to preferred shares, preferred
shares have the same voting rights as common shares. However,
preferred shareholders are often excluded from any control, that
is, deprived of the right to vote in the election of directors and on
other matters, on the theory that the preferred shareholders are
merely investors in the corporation for income in the same
manner as bondholders.45 In fact, under the Corporation Code
only preferred or redeemable shares can be deprived of the right
to vote.46 Common shares cannot be deprived of the right to vote
in any corporate meeting, and any provision in the articles of
incorporation restricting the right of common shareholders to vote
is invalid.47
Considering that common shares have voting rights which
translate to control, as opposed to preferred shares which usually
have no voting rights, the term "capital" in Section 11, Article XII
of the Constitution refers only to common shares. However, if the
preferred shares also have the right to vote in the election of
directors, then the term "capital" shall include such preferred
shares because the right to participate in the control or
management of the corporation is exercised through the right to
vote in the election of directors. In short, the term "capital" in
Section 11, Article XII of the Constitution refers only to
shares of stock that can vote in the election of directors.
This interpretation is consistent with the intent of the framers of
the Constitution to place in the hands of Filipino citizens the
control and management of public utilities. As revealed in the
deliberations of the Constitutional Commission, "capital" refers to
the voting stock or controlling interest of a corporation, to wit:
MR. NOLLEDO. In Sections 3, 9 and 15, the Committee stated
local or Filipino equity and foreign equity; namely, 60-40 in
Section 3, 60-40 in Section 9 and 2/3-1/3 in Section 15.
MR. VILLEGAS. That is right.
MR. NOLLEDO. In teaching law, we are always faced with this
question: "Where do we base the equity requirement, is it on the
authorized capital stock, on the subscribed capital stock, or on
the paid-up capital stock of a corporation"? Will the Committee
please enlighten me on this?
MR. VILLEGAS. We have just had a long discussion with the
members of the team from the UP Law Center who provided us a
draft. The phrase that is contained here which we adopted
from the UP draft is "60 percent of voting stock."
MR. NOLLEDO. That must be based on the subscribed capital
stock, because unless declared delinquent, unpaid capital stock
shall be entitled to vote.
MR. VILLEGAS. That is right.
MR. NOLLEDO. Thank you.
With respect to an investment by one corporation in another
corporation, say, a corporation with 60-40 percent equity invests
in another corporation which is permitted by the Corporation
Code, does the Committee adopt the grandfather rule?
MR. VILLEGAS. Yes, that is the understanding of the Committee.
MR. NOLLEDO. Therefore, we need additional Filipino capital?
MR. VILLEGAS. Yes.48
xxxx
MR. AZCUNA. May I be clarified as to that portion that was
accepted by the Committee.
MR. VILLEGAS. The portion accepted by the Committee is the
deletion of the phrase "voting stock or controlling interest."
MR. AZCUNA. Hence, without the Davide amendment, the
committee report would read: "corporations or associations at
least sixty percent of whose CAPITAL is owned by such citizens."
MR. VILLEGAS. Yes.
MR. AZCUNA. So if the Davide amendment is lost, we are stuck
with 60 percent of the capital to be owned by citizens.
MR. VILLEGAS. That is right.
MR. AZCUNA. But the control can be with the foreigners
even if they are the minority. Let us say 40 percent of the
capital is owned by them, but it is the voting capital,
whereas, the Filipinos own the nonvoting shares. So we can
have a situation where the corporation is controlled by
foreigners despite being the minority because they have the
voting capital. That is the anomaly that would result here.
MR. BENGZON. No, the reason we eliminated the word
"stock" as stated in the 1973 and 1935 Constitutions is that
according to Commissioner Rodrigo, there are associations
that do not have stocks. That is why we say "CAPITAL."
MR. AZCUNA. We should not eliminate the phrase
"controlling interest."
MR. BENGZON. In the case of stock corporations, it is
assumed.49 (Emphasis supplied)
Thus, 60 percent of the "capital" assumes, or should result in,
"controlling interest" in the corporation. Reinforcing this
interpretation of the term "capital," as referring to controlling
interest or shares entitled to vote, is the definition of a "Philippine
national" in the Foreign Investments Act of 1991,50 to wit:
SEC. 3. Definitions. - As used in this Act:
a. The term "Philippine national" shall mean a citizen of the
Philippines; or a domestic partnership or association wholly
owned by citizens of the Philippines; or a corporation organized
under the laws of the Philippines of which at least sixty
percent (60%) of the capital stock outstanding and entitled to
vote is owned and held by citizens of the Philippines; or a
corporation organized abroad and registered as doing business in
the Philippines under the Corporation Code of which one hundred
percent (100%) of the capital stock outstanding and entitled to
vote is wholly owned by Filipinos or a trustee of funds for pension
or other employee retirement or separation benefits, where the
trustee is a Philippine national and at least sixty percent (60%) of
the fund will accrue to the benefit of Philippine
nationals: Provided, That where a corporation and its non-Filipino
stockholders own stocks in a Securities and Exchange
Commission (SEC) registered enterprise, at least sixty percent
(60%) of the capital stock outstanding and entitled to vote of each
of both corporations must be owned and held by citizens of the
Philippines and at least sixty percent (60%) of the members of the
Board of Directors of each of both corporations must be citizens
of the Philippines, in order that the corporation, shall be
considered a "Philippine national." (Emphasis supplied)
In explaining the definition of a "Philippine national," the
Implementing Rules and Regulations of the Foreign Investments
Act of 1991 provide:
b. "Philippine national" shall mean a citizen of the Philippines or a
domestic partnership or association wholly owned by the citizens
of the Philippines; or a corporation organized under the laws
of the Philippines of which at least sixty percent [60%] of the
capital stock outstanding and entitled to vote is owned and
held by citizens of the Philippines; or a trustee of funds for
pension or other employee retirement or separation benefits,
where the trustee is a Philippine national and at least sixty
percent [60%] of the fund will accrue to the benefit of the
Philippine nationals; Provided, that where a corporation its non-
Filipino stockholders own stocks in a Securities and Exchange
Commission [SEC] registered enterprise, at least sixty percent
[60%] of the capital stock outstanding and entitled to vote of both
corporations must be owned and held by citizens of the
Philippines and at least sixty percent [60%] of the members of the
Board of Directors of each of both corporation must be citizens of
the Philippines, in order that the corporation shall be considered a
Philippine national. The control test shall be applied for this
purpose.
Compliance with the required Filipino ownership of a
corporation shall be determined on the basis of outstanding
capital stock whether fully paid or not, but only such stocks
which are generally entitled to vote are considered.
For stocks to be deemed owned and held by Philippine
citizens or Philippine nationals, mere legal title is not enough
to meet the required Filipino equity. Full beneficial
ownership of the stocks, coupled with appropriate voting
rights is essential. Thus, stocks, the voting rights of which
have been assigned or transferred to aliens cannot be
considered held by Philippine citizens or Philippine
nationals.
Individuals or juridical entities not meeting the
aforementioned qualifications are considered as non-
Philippine nationals. (Emphasis supplied)
Mere legal title is insufficient to meet the 60 percent Filipino-
owned "capital" required in the Constitution. Full beneficial
ownership of 60 percent of the outstanding capital stock, coupled
with 60 percent of the voting rights, is required. The legal and
beneficial ownership of 60 percent of the outstanding capital
stock must rest in the hands of Filipino nationals in accordance
with the constitutional mandate. Otherwise, the corporation is
"considered as non-Philippine national[s]."
Under Section 10, Article XII of the Constitution, Congress may
"reserve to citizens of the Philippines or to corporations or
associations at least sixty per centum of whose capital is owned
by such citizens, or such higher percentage as Congress may
prescribe, certain areas of investments." Thus, in numerous laws
Congress has reserved certain areas of investments to Filipino
citizens or to corporations at least sixty percent of the "capital" of
which is owned by Filipino citizens. Some of these laws are: (1)
Regulation of Award of Government Contracts or R.A. No. 5183;
(2) Philippine Inventors Incentives Act or R.A. No. 3850; (3)
Magna Carta for Micro, Small and Medium Enterprises or R.A.
No. 6977; (4) Philippine Overseas Shipping Development Act or
R.A. No. 7471; (5) Domestic Shipping Development Act of 2004
or R.A. No. 9295; (6) Philippine Technology Transfer Act of 2009
or R.A. No. 10055; and (7) Ship Mortgage Decree or P.D. No.
1521. Hence, the term "capital" in Section 11, Article XII of the
Constitution is also used in the same context in numerous
laws reserving certain areas of investments to Filipino citizens.
To construe broadly the term "capital" as the total outstanding
capital stock, including both common and non-votingpreferred
shares, grossly contravenes the intent and letter of the
Constitution that the "State shall develop a self-reliant and
independent national economy effectively controlled by
Filipinos." A broad definition unjustifiably disregards who owns
the all-important voting stock, which necessarily equates to
control of the public utility.
We shall illustrate the glaring anomaly in giving a broad definition
to the term "capital." Let us assume that a corporation has 100
common shares owned by foreigners and 1,000,000 non-voting
preferred shares owned by Filipinos, with both classes of share
having a par value of one peso (₱1.00) per share. Under the
broad definition of the term "capital," such corporation would be
considered compliant with the 40 percent constitutional limit on
foreign equity of public utilities since the overwhelming majority,
or more than 99.999 percent, of the total outstanding capital stock
is Filipino owned. This is obviously absurd.
In the example given, only the foreigners holding the common
shares have voting rights in the election of directors, even if they
hold only 100 shares. The foreigners, with a minuscule equity of
less than 0.001 percent, exercise control over the public utility.
On the other hand, the Filipinos, holding more than 99.999
percent of the equity, cannot vote in the election of directors and
hence, have no control over the public utility. This starkly
circumvents the intent of the framers of the Constitution, as well
as the clear language of the Constitution, to place the control of
public utilities in the hands of Filipinos. It also renders illusory the
State policy of an independent national economy effectively
controlled by Filipinos.
The example given is not theoretical but can be found in the real
world, and in fact exists in the present case.
Holders of PLDT preferred shares are explicitly denied of the right
to vote in the election of directors. PLDT’s Articles of
Incorporation expressly state that "the holders of Serial
Preferred Stock shall not be entitled to vote at any meeting
of the stockholders for the election of directors or for any
other purpose or otherwise participate in any action taken by the
corporation or its stockholders, or to receive notice of any
meeting of stockholders."51
On the other hand, holders of common shares are granted the
exclusive right to vote in the election of directors. PLDT’s Articles
of Incorporation52 state that "each holder of Common Capital
Stock shall have one vote in respect of each share of such stock
held by him on all matters voted upon by the stockholders,
and the holders of Common Capital Stock shall have the
exclusive right to vote for the election of directors and for all
other purposes."53
In short, only holders of common shares can vote in the election
of directors, meaning only common shareholders exercise control
over PLDT. Conversely, holders of preferred shares, who have no
voting rights in the election of directors, do not have any control
over PLDT. In fact, under PLDT’s Articles of Incorporation,
holders of common shares have voting rights for all purposes,
while holders of preferred shares have no voting right for any
purpose whatsoever.
It must be stressed, and respondents do not dispute, that
foreigners hold a majority of the common shares of PLDT. In fact,
based on PLDT’s 2010 General Information Sheet (GIS),54 which
is a document required to be submitted annually to the Securities
and Exchange Commission,55 foreigners hold 120,046,690
common shares of PLDT whereas Filipinos hold only 66,750,622
common shares.56 In other words, foreigners hold 64.27% of the
total number of PLDT’s common shares, while Filipinos hold only
35.73%. Since holding a majority of the common shares equates
to control, it is clear that foreigners exercise control over PLDT.
Such amount of control unmistakably exceeds the allowable 40
percent limit on foreign ownership of public utilities expressly
mandated in Section 11, Article XII of the Constitution.
Moreover, the Dividend Declarations of PLDT for 2009,57 as
submitted to the SEC, shows that per share the SIP58preferred
shares earn a pittance in dividends compared to the common
shares. PLDT declared dividends for the common shares at
₱70.00 per share, while the declared dividends for the preferred
shares amounted to a measly ₱1.00 per share.59 So the preferred
shares not only cannot vote in the election of directors, they also
have very little and obviously negligible dividend earning capacity
compared to common shares.
As shown in PLDT’s 2010 GIS,60 as submitted to the SEC, the par
value of PLDT common shares is ₱5.00 per share, whereas the
par value of preferred shares is ₱10.00 per share. In other words,
preferred shares have twice the par value of common shares but
cannot elect directors and have only 1/70 of the dividends of
common shares. Moreover, 99.44% of the preferred shares are
owned by Filipinos while foreigners own only a minuscule 0.56%
of the preferred shares.61 Worse, preferred shares constitute
77.85% of the authorized capital stock of PLDT while common
shares constitute only 22.15%.62 This undeniably shows that
beneficial interest in PLDT is not with the non-voting preferred
shares but with the common shares, blatantly violating the
constitutional requirement of 60 percent Filipino control and
Filipino beneficial ownership in a public utility.
The legal and beneficial ownership of 60 percent of the
outstanding capital stock must rest in the hands of Filipinos in
accordance with the constitutional mandate. Full beneficial
ownership of 60 percent of the outstanding capital stock, coupled
with 60 percent of the voting rights, is constitutionally required for
the State’s grant of authority to operate a public utility. The
undisputed fact that the PLDT preferred shares, 99.44% owned
by Filipinos, are non-voting and earn only 1/70 of the dividends
that PLDT common shares earn, grossly violates the
constitutional requirement of 60 percent Filipino control and
Filipino beneficial ownership of a public utility.
In short, Filipinos hold less than 60 percent of the voting
stock, and earn less than 60 percent of the dividends, of
PLDT. This directly contravenes the express command in Section
11, Article XII of the Constitution that "[n]o franchise, certificate, or
any other form of authorization for the operation of a public utility
shall be granted except to x x x corporations x x x organized
under the laws of the Philippines, at least sixty per centum of
whose capital is owned by such citizens x x x."
To repeat, (1) foreigners own 64.27% of the common shares of
PLDT, which class of shares exercises the sole right to vote in
the election of directors, and thus exercise control over PLDT; (2)
Filipinos own only 35.73% of PLDT’s common shares,
constituting a minority of the voting stock, and thus do not
exercise control over PLDT; (3) preferred shares, 99.44% owned
by Filipinos, have no voting rights; (4) preferred shares earn only
1/70 of the dividends that common shares earn;63 (5) preferred
shares have twice the par value of common shares; and (6)
preferred shares constitute 77.85% of the authorized capital stock
of PLDT and common shares only 22.15%. This kind of
ownership and control of a public utility is a mockery of the
Constitution.
Incidentally, the fact that PLDT common shares with a par value
of ₱5.00 have a current stock market value of ₱2,328.00 per
share,64 while PLDT preferred shares with a par value of ₱10.00
per share have a current stock market value ranging from only
₱10.92 to ₱11.06 per share,65 is a glaring confirmation by the
market that control and beneficial ownership of PLDT rest with
the common shares, not with the preferred shares.
Indisputably, construing the term "capital" in Section 11, Article
XII of the Constitution to include both voting and non-voting
shares will result in the abject surrender of our
telecommunications industry to foreigners, amounting to a clear
abdication of the State’s constitutional duty to limit control of
public utilities to Filipino citizens. Such an interpretation certainly
runs counter to the constitutional provision reserving certain
areas of investment to Filipino citizens, such as the exploitation of
natural resources as well as the ownership of land, educational
institutions and advertising businesses. The Court should never
open to foreign control what the Constitution has expressly
reserved to Filipinos for that would be a betrayal of the
Constitution and of the national interest. The Court must perform
its solemn duty to defend and uphold the intent and letter of the
Constitution to ensure, in the words of the Constitution, "a self-
reliant and independent national economy effectively
controlled by Filipinos."
Section 11, Article XII of the Constitution, like other provisions of
the Constitution expressly reserving to Filipinos specific areas of
investment, such as the development of natural resources and
ownership of land, educational institutions and advertising
business, is self-executing. There is no need for legislation to
implement these self-executing provisions of the Constitution.
The rationale why these constitutional provisions are self-
executing was explained in Manila Prince Hotel v. GSIS,66 thus:
x x x Hence, unless it is expressly provided that a legislative act is
necessary to enforce a constitutional mandate, the presumption
now is that all provisions of the constitution are self-executing. If
the constitutional provisions are treated as requiring legislation
instead of self-executing, the legislature would have the power to
ignore and practically nullify the mandate of the fundamental law.
This can be cataclysmic. That is why the prevailing view is, as it
has always been, that —
. . . in case of doubt, the Constitution should be considered self-
executing rather than non-self-executing. . . . Unless the
contrary is clearly intended, the provisions of the
Constitution should be considered self-executing, as a
contrary rule would give the legislature discretion to
determine when, or whether, they shall be effective. These
provisions would be subordinated to the will of the lawmaking
body, which could make them entirely meaningless by simply
refusing to pass the needed implementing statute. (Emphasis
supplied)
In Manila Prince Hotel, even the Dissenting Opinion of then
Associate Justice Reynato S. Puno, later Chief Justice, agreed
that constitutional provisions are presumed to be self-executing.
Justice Puno stated:
Courts as a rule consider the provisions of the Constitution as
self-executing, rather than as requiring future legislation for their
enforcement. The reason is not difficult to discern. For if they are
not treated as self-executing, the mandate of the
fundamental law ratified by the sovereign people can be
easily ignored and nullified by Congress. Suffused with
wisdom of the ages is the unyielding rule that legislative
actions may give breath to constitutional rights but
congressional inaction should not suffocate them.
Thus, we have treated as self-executing the provisions in the Bill
of Rights on arrests, searches and seizures, the rights of a
person under custodial investigation, the rights of an accused,
and the privilege against self-incrimination. It is recognized that
legislation is unnecessary to enable courts to effectuate
constitutional provisions guaranteeing the fundamental rights of
life, liberty and the protection of property. The same treatment is
accorded to constitutional provisions forbidding the taking or
damaging of property for public use without just compensation.
(Emphasis supplied)
Thus, in numerous cases,67 this Court, even in the absence of
implementing legislation, applied directly the provisions of the
1935, 1973 and 1987 Constitutions limiting land ownership to
Filipinos. In Soriano v. Ong Hoo,68this Court ruled:
x x x As the Constitution is silent as to the effects or
consequences of a sale by a citizen of his land to an alien, and as
both the citizen and the alien have violated the law, none of them
should have a recourse against the other, and it should only be
the State that should be allowed to intervene and determine what
is to be done with the property subject of the violation. We have
said that what the State should do or could do in such matters is
a matter of public policy, entirely beyond the scope of judicial
authority. (Dinglasan, et al. vs. Lee Bun Ting, et al., 6 G. R. No. L-
5996, June 27, 1956.) While the legislature has not definitely
decided what policy should be followed in cases of
violations against the constitutional prohibition, courts of
justice cannot go beyond by declaring the disposition to be
null and void as violative of the Constitution. x x x (Emphasis
supplied)
To treat Section 11, Article XII of the Constitution as not self-
executing would mean that since the 1935 Constitution, or over
the last 75 years, not one of the constitutional provisions
expressly reserving specific areas of investments to corporations,
at least 60 percent of the "capital" of which is owned by Filipinos,
was enforceable. In short, the framers of the 1935, 1973 and
1987 Constitutions miserably failed to effectively reserve to
Filipinos specific areas of investment, like the operation by
corporations of public utilities, the exploitation by corporations of
mineral resources, the ownership by corporations of real estate,
and the ownership of educational institutions. All the legislatures
that convened since 1935 also miserably failed to enact
legislations to implement these vital constitutional provisions that
determine who will effectively control the national economy,
Filipinos or foreigners. This Court cannot allow such an absurd
interpretation of the Constitution.
This Court has held that the SEC "has both regulatory and
adjudicative functions."69 Under its regulatory functions, the SEC
can be compelled by mandamus to perform its statutory duty
when it unlawfully neglects to perform the same. Under its
adjudicative or quasi-judicial functions, the SEC can be also be
compelled by mandamus to hear and decide a possible violation
of any law it administers or enforces when it is mandated by law
to investigate such violation.
1awphi1
Under Section 17(4)70 of the Corporation Code, the SEC has the
regulatory function to reject or disapprove the Articles of
Incorporation of any corporation where "the required
percentage of ownership of the capital stock to be owned by
citizens of the Philippines has not been complied with as
required by existing laws or the Constitution." Thus, the SEC
is the government agency tasked with the statutory duty to
enforce the nationality requirement prescribed in Section 11,
Article XII of the Constitution on the ownership of public utilities.
This Court, in a petition for declaratory relief that is treated as a
petition for mandamus as in the present case, can direct the SEC
to perform its statutory duty under the law, a duty that the SEC
has apparently unlawfully neglected to do based on the 2010 GIS
that respondent PLDT submitted to the SEC.
Under Section 5(m) of the Securities Regulation Code,71 the SEC
is vested with the "power and function" to "suspend or revoke,
after proper notice and hearing, the franchise or certificate of
registration of corporations, partnerships or associations,
upon any of the grounds provided by law." The SEC is
mandated under Section 5(d) of the same Code with the "power
and function" to "investigate x x x the activities of persons to
ensure compliance" with the laws and regulations that SEC
administers or enforces. The GIS that all corporations are
required to submit to SEC annually should put the SEC on guard
against violations of the nationality requirement prescribed in the Associate Justice
Constitution and existing laws. This Court can compel the SEC, in
a petition for declaratory relief that is treated as a petition for
DIOSDADO M.
mandamus as in the present case, to hear and decide a possible ARTURO D. BRION
PERALTA
violation of Section 11, Article XII of the Constitution in view of the Associate Justice
Associate Justice
ownership structure of PLDT’s voting shares, as admitted by
respondents and as stated in PLDT’s 2010 GIS that PLDT
submitted to SEC. MARIANO C. DEL
LUCAS P. BERSAMIN
CASTILLO
Associate Justice
WHEREFORE, we PARTLY GRANT the petition and rule that the Associate Justice
term "capital" in Section 11, Article XII of the 1987 Constitution
refers only to shares of stock entitled to vote in the election of
directors, and thus in the present case only to common shares, MARTIN S.
ROBERTO A. ABAD
and not to the total outstanding capital stock (common and non- VILLARAMA, JR.
Associate Justice
voting preferred shares). Respondent Chairperson of the Associate Justice
Securities and Exchange Commission is DIRECTED to apply this
definition of the term "capital" in determining the extent of JOSE PORTUGAL
allowable foreign ownership in respondent Philippine Long JOSE C. MENDOZA
PEREZ
Distance Telephone Company, and if there is a violation of Associate Justice
Associate Justice
Section 11, Article XII of the Constitution, to impose the
appropriate sanctions under the law.
MARIA LOURDES P. A. SERENO
SO ORDERED. Associate Justice

ANTONIO T. CARPIO CERTIFICATION

Associate Justice
Pursuant to Section 13, Article VIII of the Constitution, I certify
WE CONCUR: that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the
RENATO C. CORONA opinion of the Court.
Chief Justice
RENATO C. CORONA
Chief Justice
PRESBITERO J. TERESITA J.
VELASCO, JR. LEONARDO-DE
Associate Justice CASTRO

Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. No. 204819               April 8, 2014
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for
themselves and in behalf of their minor children, LUCIA
CARLOS IMBONG and BERNADETTE CARLOS IMBONG and
MAGNIFICAT CHILD DEVELOPMENT CENTER,
INC., Petitioners,  Racho & Laura Racho, Spouses David R. Racho & Armilyn A.
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department
of Health, HON. ARMIN A. LUISTRO, Secretary, Department
of Education, Culture and Sports and HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 204934
ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES,
INC. [ALFI], represented by its President, Maria Concepcion
S. Noche, Spouses Reynaldo S. Luistro & Rosie B . Luistro,
Jose S. Sandejas & Elenita S.A. Sandejas, Arturo M. Gorrez &
Marietta C. Gorrez, Salvador S. Mante, Jr. & Hazeleen L.
Mante, Rolando M. Bautista & Maria Felisa S. Bautista,
Desiderio Racho & Traquilina Racho, F emand Antonio A.
Tansingco & Carol Anne C. Tansingco for themselves and on
behalf of their minor children, Therese Antonette C.
Tansingco, Lorenzo Jose C. Tansingco, Miguel F emando C.
Tangsingco, Carlo Josemaria C. Tansingco & Juan Paolo C.
Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta
for themselves and on behalf of their minor children, Ramon
Carlos Z. Araneta & Maya Angelica Z. Araneta, Spouses
Renato C. Castor & Mildred C. Castor for themselves and on
behalf of their minor children, Renz Jeffrey C. Castor, Joseph
Ramil C. Castor, John Paul C. Castor & Raphael C. Castor,
Spouses Alexander R. Racho & Zara Z. Racho for themselves
and on behalf of their minor children Margarita Racho,
Mikaela Racho, Martin Racho, Mari Racho & Manolo Racho,
Spouses Alfred R. Racho & Francine V. Racho for
themselves and on behalf of their minor children Michael
Racho, Mariana Racho, Rafael Racho, Maxi Racho, Chessie
Racho for themselves and on behalf of their minor child
Gabriel Racho, Mindy M. Juatas and on behalf of her minor
children Elijah Gerald Juatas and Elian Gabriel Juatas,
Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws &
Katrina R. Laws, Petitioners, 
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON.
ARMIN A. LUISTRO, Secretary, Department of Education,
Culture and Sports, HON. CORAZON SOLIMAN, Secretary,
Department of Social Welfare and Development, HON.
MANUELA. ROXAS II, Secretary, Department of Interior and
Local Government, HON. FLORENCIO B. ABAD, Secretary,
Department of Budget and Management, HON. ARSENIO M.
BALISACAN, Socio-Economic Planning Secretary and NEDA
Director-General, THE PHILIPPINE COMMISSION ON
WOMEN, represented by its Chairperson, Remedios lgnacio-
Rikken, THE PHILIPPINE HEALTH INSURANCE
CORPORATION, represented by its President Eduardo
Banzon, THE LEAGUE OF PROVINCES OF THE PHILIPPINES,
represented by its President Alfonso Umali, THE LEAGUE OF
CITIES OF THE PHILIPPINES, represented by its President
Oscar Rodriguez, and THE LEAGUE OF MUNICIPALITIES OF
THE PHILIPPINES, represented by its President Donato
Marcos,Respondents.
x---------------------------------x
G.R. No. 204957
TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and
VALERIANO S. AVILA, Petitioners,  PHILIPPINES, HON. SENATE PRESIDENT, HON. SPEAKER
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and
Management; HON. ENRIQUE T. ONA, Secretary, Department
of Education; and HON. MANUELA. ROXAS II, Secretary,
Department of Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 204988
SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by
Dr. Nestor B. Lumicao, M.D., as President and in his personal
capacity, ROSEVALE FOUNDATION INC., represented by Dr.
Rodrigo M. Alenton, M.D., as member of the school board
and in his personal capacity, ROSEMARIE R. ALENTON,
IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd.,
ANTHONY G. NAGAC, EARL ANTHONY C. GAMBE and
MARLON I. YAP,Petitioners, 
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES,
HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA,
JR., Executive Secretary, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and Management; HON.
ENRIQUE T. ONA, Secretary, Department of Health; HON.
ARMIN A. LUISTRO, Secretary, Department of Education and
HON. MANUELA. ROXAS II, Secretary, Department of Interior
and Local Government, Respondents.
x---------------------------------x
G.R. No. 205003
EXPEDITO A. BUGARIN, JR., Petitioner, 
vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE
OF THE HOUSE OF REPRESENTATIVES and HON.
SOLICITOR GENERAL, Respondents.
x---------------------------------x
G.R. No. 205043
EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE
APOSTOLATE OF THE PHILIPPINES, Petitioners, 
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR
SUZETTE H. LAZO, DBM SECRETARY FLORENCIO B. ABAD,
DILG SECRETARY MANUELA. ROXAS II, DECS SECRETARY
ARMIN A. LUISTRO, Respondents.
x---------------------------------x
G.R. No. 205138
PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX),
herein represented by its National President, Atty. Ricardo
M . Ribo, and in his own behalf, Atty. Lino E.A. Dumas,
Romeo B. Almonte, Osmundo C. Orlanes, Arsenio Z. Menor,
Samuel J. Yap, Jaime F. Mateo, Rolly Siguan, Dante E.
Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel,
Jr., Landrito M. Diokno and Baldomero Falcone, Petitioners, 
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department
of Health, HON. ARMIN A. LUISTRO, Secretary, Department
of Education, HON. MANUELA. ROXAS II, Secretary,
Department of Interior and Local Government, HON.
CORAZON J. SOLIMAN, Secretary, Department of Social
Welfare and Development, HON. ARSENIO BALISACAN,
Director-General, National Economic and Development
Authority, HON. SUZETTE H. LAZO, Director-General, Food
and Drugs Administration, THE BOARD OF DIRECTORS,
Philippine Health Insurance Corporation, and THE BOARD
OF COMMISSIONERS, Philippine Commission on
Women, Respondents.
x---------------------------------x
G.R. No. 205478
REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D.,
CYNTHIA T. DOMINGO, M.D., AND JOSEPHINE MILLADO-
LUMITAO, M.D., collectively known as Doctors For Life, and
ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS
ANTONIO PALAD, WILFREDO JOSE, CLAIRE NAVARRO,
ANNA COSIO, and GABRIEL DY LIACCO collectively known
as Filipinos For Life, Petitioners,  HON. MANUEL A. ROXAS II, Secretary, Department of
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON.
FLORENCIO B. ABAD, Secretary of the Department of
Budget and Management; HON. ENRIQUE T. ONA, Secretary
of the Department of Health; HON. ARMIN A. LUISTRO,
Secretary of the Department of Education; and HON.
MANUELA. ROXAS II, Secretary of the Department of Interior
and Local Government, Respondents.
x---------------------------------x
G.R. No. 205491
SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C.
TATAD & ALA F. PAGUIA, for themselves, their Posterity,
and the rest of Filipino posterity, Petitioners, 
vs.
OFFICE OF THE PRESIDENT of the Republic of the
Philippines, Respondent.
x---------------------------------x
G.R. No. 205720
PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by
Loma Melegrito, as Executive Director, and in her personal
capacity, JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL
A. CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A.
MONTES, RAUL ANTONIO A. NIDOY, WINSTON CONRAD B.
PADOJINOG, RUFINO L. POLICARPIO III, Petitioners, 
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES,
HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA,
JR., Executive Secretary, HON. FLORENCIO B. ABAD,
Secretary, Department of Budget and Management, HON.
ENRIQUE T. ONA, Secretary, Department of Health, HON.
ARMIN A. LUISTRO, Secretary, Department of Education and
Interior and Local Government, Respondents.
x---------------------------------x
G.R. No. 206355
MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON
PEDROSA, ATTY. CITA BORROMEO-GARCIA,
STELLAACEDERA, ATTY. BERTENI CATALUNA
CAUSING, Petitioners,  of Education, Culture and Sports and HON. MANUELA.
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE
SECRETARY, DEPARTMENT OF HEALTH, DEPARTMENT OF
EDUCATION, Respondents.
x---------------------------------x
G.R. No. 207111
JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY
VICTORIO B. LUMICAO, JOSEPH MARTIN Q. VERDEJO,
ANTONIA EMMA R. ROXAS and LOTA LAT-
GUERRERO, Petitioners,  HON. ARMIN A. LUISTRO,Secretary of the Department of
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department
of Health, HON. ARMIN A. LUISTRO, Secretary, Department
of Education, Culture and Sports and HON. MANUEL A.
ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 207172
COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN
CARLOS ARTADI SARMIENTO AND FRANCESCA ISABELLE
BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A.
RODRIGO, JR. and DEBORAH MARIE VERONICA N.
RODRIGO, Petitioners, 
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department
of Health, HON. ARMIN A. LUISTRO, Secretary, Department
ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.
x---------------------------------x
G.R. No. 207563
ALMARIM CENTI TILLAH and ABDULHUSSEIN M.
KASHIM, Petitioners, 
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON.
ENRIQUE T. ONA, Secretary of the Department of Health, and
Budget and Management,Respondents.
DECISION
MENDOZA, J.:
Freedom of religion was accorded preferred status by the framers
of our fundamental law. And this Court has consistently affirmed
this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs , and to
live as he believes he ought to live, consistent with the liberty of
others and with the common good." 1
To this day, poverty is still a major stumbling block to the nation's
emergence as a developed country, leaving our people
beleaguered in a state of hunger, illiteracy and unemployment.
While governmental policies have been geared towards the
revitalization of the economy, the bludgeoning dearth in social
services remains to be a problem that concerns not only the poor,
but every member of society. The government continues to tread
on a trying path to the realization of its very purpose, that is, the
general welfare of the Filipino people and the development of the
country as a whole. The legislative branch, as the main facet of a
representative government, endeavors to enact laws and policies
that aim to remedy looming societal woes, while the executive is
closed set to fully implement these measures and bring concrete
and substantial solutions within the reach of Juan dela Cruz.
Seemingly distant is the judicial branch, oftentimes regarded as
an inert governmental body that merely casts its watchful eyes on
clashing stakeholders until it is called upon to adjudicate.
Passive, yet reflexive when called into action, the Judiciary then
willingly embarks on its solemn duty to interpret legislation vis-a-
vis the most vital and enduring principle that holds Philippine
society together - the supremacy of the Philippine Constitution.
Nothing has polarized the nation more in recent years than the
issues of population growth control, abortion and contraception.
As in every democratic society, diametrically opposed views on
the subjects and their perceived consequences freely circulate in
various media. From television debates  to sticker
2
campaigns,  from rallies by socio-political activists to mass
3
gatherings organized by members of the clergy  - the clash
4
between the seemingly antithetical ideologies of the religious
conservatives and progressive liberals has caused a deep
division in every level of the society. Despite calls to withhold
support thereto, however, Republic Act (R.A.) No. 10354,
otherwise known as the Responsible Parenthood and
Reproductive Health Act of 2012 (RH Law), was enacted by
Congress on December 21, 2012.
Shortly after the President placed his imprimatur on the said law,
challengers from various sectors of society came knocking on the
doors of the Court, beckoning it to wield the sword that strikes
down constitutional disobedience. Aware of the profound and
lasting impact that its decision may produce, the Court now faces
the iuris controversy, as presented in fourteen (14) petitions and
two (2) petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,  filed by spouses
5
Attys. James M. Imbong and Lovely Ann C. Imbong, in
their personal capacities as citizens, lawyers and
taxpayers and on behalf of their minor children; and the
Magnificat Child Leaming Center, Inc., a domestic,
privately-owned educational institution (Jmbong);
(2) Petition for Prohibition,  filed by the Alliance for the
6
Family Foundation Philippines, Inc., through its president,
Atty. Maria Concepcion S. Noche  and several others  in
7 8
their personal capacities as citizens and on behalf of the
generations unborn (ALFI);
(3) Petition for Certiorari,  filed by the Task Force for
9
Family and Life Visayas, Inc., and Valeriano S. Avila, in
their capacities as citizens and taxpayers (Task Force
Family);
(4) Petition for Certiorari and Prohibition,  filed by Serve
10
Life Cagayan De Oro City, Inc.,  Rosevale Foundation,
11
Inc.,  a domestic, privately-owned educational institution,
12
and several others,  in their capacities as citizens (Serve
13
Life);
(5) Petition,  filed by Expedito A. Bugarin, Jr. in his
14
capacity as a citizen (Bugarin);
(6) Petition for Certiorari and Prohibition,  filed by
15
Eduardo Olaguer and the Catholic Xybrspace Apostolate
of the Philippines,  in their capacities as a citizens and
16
taxpayers (Olaguer);
(7) Petition for Certiorari and Prohibition,  filed by the
17
(14) Petition for Prohibition  filed by Almarim Centi Tillah
32

Philippine Alliance of Xseminarians Inc.,  and several

18
and Abdulhussein M. Kashim in their capacities as
others  in their capacities as citizens and taxpayers
19
citizens and taxpayers (Tillah); and
(PAX);
(15) Petition-In-Intervention,  filed by Atty. Samson S.
33

(8) Petition,  filed by Reynaldo J. Echavez, M.D. and

20
Alcantara in his capacity as a citizen and a taxpayer
several others,  in their capacities as citizens and
21
(Alcantara); and
taxpayers (Echavez);
(16) Petition-In-Intervention,  filed by Buhay Hayaang
34

(9) Petition for Certiorari and Prohibition,  filed by

22
Yumabong (B UHAY) , an accredited political party.
spouses Francisco and Maria Fenny C. Tatad and Atty.
Alan F. Paguia, in their capacities as citizens, taxpayers A perusal of the foregoing petitions shows that the petitioners are
and on behalf of those yet unborn. Atty. Alan F. Paguia is assailing the constitutionality of RH Law on the following
also proceeding in his capacity as a member of the Bar GROUNDS:
(Tatad);
• The RH Law violates the right to life of the unborn.
(10) Petition for Certiorari and Prohibition,  filed by Pro-
23
According to the petitioners, notwithstanding its declared
Life Philippines Foundation Inc.  and several others,  in
24 25
policy against abortion, the implementation of the RH Law
their capacities as citizens and taxpayers and on behalf of would authorize the purchase of hormonal contraceptives,
its associates who are members of the Bar (Pro-Life); intra-uterine devices and injectables which are abortives,
in violation of Section 12, Article II of the Constitution
(11) Petition for Prohibition,  filed by Millennium Saint
26
which guarantees protection of both the life of the mother
Foundation, Inc.,  Attys. Ramon Pedrosa, Cita Borromeo-
27
and the life of the unborn from conception. 35

Garcia, Stella Acedera, and Berteni Catalufia Causing, in

their capacities as citizens, taxpayers and members of the • The RH Law violates the right to health and the right to
Bar (MSF); protection against hazardous products. The petitioners
posit that the RH Law provides universal access to
(12) Petition for Certiorari and Prohibition,  filed by John
28
contraceptives which are hazardous to one's health, as it
Walter B. Juat and several others,  in their capacities as
29
causes cancer and other health problems. 36

citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,  filed by
30
Couples for Christ Foundation, Inc. and several others, in
their capacities as citizens (CFC);
• The RH Law violates the right to religious freedom. The
petitioners contend that the RH Law violates the
31
constitutional guarantee respecting religion as it
authorizes the use of public funds for the procurement of
contraceptives. For the petitioners, the use of public funds
for purposes that are believed to be contrary to their
 beliefs is included in the constitutional mandate ensuring
religious freedom. 37
It is also contended that the RH Law threatens conscientious
objectors of criminal prosecution, imprisonment and other forms
of punishment, as it compels medical practitioners 1] to refer
patients who seek advice on reproductive health programs to
other doctors; and 2] to provide full and correct information on
reproductive health programs and service, although it is against
their religious beliefs and convictions. 38
In this connection, Section 5 .23 of the Implementing Rules and
Regulations of the RH Law (RH-IRR),  provides that skilled health
39
professionals who are public officers such as, but not limited to,
Provincial, City, or Municipal Health Officers, medical officers,
medical specialists, rural health physicians, hospital staff nurses,
public health nurses, or rural health midwives, who are
specifically charged with the duty to implement these Rules,
cannot be considered as conscientious objectors. 40
It is also argued that the RH Law providing for the formulation of
mandatory sex education in schools should not be allowed as it is
an affront to their religious beliefs.
41
While the petit10ners recognize that the guarantee of religious
freedom is not absolute, they argue that the RH Law fails to
satisfy the "clear and present danger test" and the "compelling
state interest test" to justify the regulation of the right to free
exercise of religion and the right to free speech. 42
• The RH Law violates the constitutional provision on
involuntary servitude. According to the petitioners, the RH
Law subjects medical practitioners to involuntary
servitude because, to be accredited under the PhilHealth
program, they are compelled to provide forty-eight (48)
hours of pro bona services for indigent women, under
threat of criminal prosecution, imprisonment and other
forms of punishment. 43
The petitioners explain that since a majority of patients are
covered by PhilHealth, a medical practitioner would effectively be
forced to render reproductive health services since the lack of
PhilHealth accreditation would mean that the majority of the
public would no longer be able to avail of the practitioners
services.44
• The RH Law violates the right to equal protection of the
law. It is claimed that the RH Law discriminates against
the poor as it makes them the primary target of the
government program that promotes contraceptive use.
The petitioners argue that, rather than promoting
reproductive health among the poor, the RH Law seeks to
introduce contraceptives that would effectively reduce the
number of the poor. 45
• The RH Law is "void-for-vagueness" in violation of the
due process clause of the Constitution. In imposing the
penalty of imprisonment and/or fine for "any violation," it is
vague because it does not define the type of conduct to
be treated as "violation" of the RH Law. 46
In this connection, it is claimed that "Section 7 of the RH Law
violates the right to due process by removing from them (the
people) the right to manage their own affairs and to decide what
kind of health facility they shall be and what kind of services they
shall offer."  It ignores the management prerogative inherent in
47
corporations for employers to conduct their affairs in accordance
with their own discretion and judgment.
• The RH Law violates the right to free speech. To compel
a person to explain a full range of family planning
methods is plainly to curtail his right to expound only his
own preferred way of family planning. The petitioners note
 that although exemption is granted to institutions owned
and operated by religious groups, they are still forced to
refer their patients to another healthcare facility willing to
perform the service or procedure. 48
• The RH Law intrudes into the zone of privacy of one's
family protected by the Constitution. It is contended that
the RH Law providing for mandatory reproductive health
education intrudes upon their constitutional right to raise
their children in accordance with their beliefs. 49
It is claimed that, by giving absolute authority to the person who
will undergo reproductive health procedure, the RH Law forsakes
any real dialogue between the spouses and impedes the right of
spouses to mutually decide on matters pertaining to the overall
well-being of their family. In the same breath, it is also claimed
that the parents of a child who has suffered a miscarriage are
deprived of parental authority to determine whether their child
should use contraceptives. 50
• The RH Law violates the constitutional principle of non-
delegation of legislative authority. The petitioners
question the delegation by Congress to the FDA of the
power to determine whether a product is non-abortifacient
and to be included in the Emergency Drugs List (EDL).
• The RH Law violates the one subject/one bill rule
provision under Section 26( 1 ), Article VI of the
Constitution.52
• The RH Law violates Natural Law. 53
• The RH Law violates the principle of Autonomy of Local
Government Units (LGUs) and the Autonomous Region of
Muslim Mindanao {ARMM). It is contended that the RH
Law, providing for reproductive health measures at the
local government level and the ARMM, infringes upon the
powers devolved to LGUs and the ARMM under the Local
Government Code and R.A . No. 9054. 54
Various parties also sought and were granted leave to file their
respective comments-in-intervention in defense of the
constitutionality of the RH Law. Aside from the Office of the
Solicitor General (OSG) which commented on the petitions in
behalf of the respondents,  Congressman Edcel C.
55
Lagman,  former officials of the Department of Health Dr.
56
Esperanza I. Cabral, Jamie Galvez-Tan, and Dr. Alberto G.
Romualdez,  the Filipino Catholic Voices for Reproductive Health
57
(C4RH),  Ana Theresa "Risa" Hontiveros,  and Atty. Joan De
58 59
Venecia  also filed their respective Comments-in-Intervention in
60
conjunction with several others. On June 4, 2013, Senator Pia
Juliana S. Cayetano was also granted leave to intervene. 61
The respondents, aside from traversing the substantive
arguments of the petitioners, pray for the dismissal of the
petitions for the principal reasons that 1] there is no actual case
or controversy and, therefore, the issues are not yet ripe for
judicial determination.; 2] some petitioners lack standing to
question the RH Law; and 3] the petitions are essentially petitions
for declaratory relief over which the Court has no original
jurisdiction.
51
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement
of the assailed legislation took effect.
On March 19, 2013, after considering the issues and arguments
raised, the Court issued the Status Quo Ante Order (SQAO),
enjoining the effects and implementation of the assailed
legislation for a period of one hundred and twenty (120) days, or
until July 17, 2013.
62
On May 30, 2013, the Court held a preliminary conference with
the counsels of the parties to determine and/or identify the
pertinent issues raised by the parties and the sequence by which
these issues were to be discussed in the oral arguments. On July
9 and 23, 2013, and on August 6, 13, and 27, 2013, the cases
were heard on oral argument. On July 16, 2013, the SQAO was
ordered extended until further orders of the Court.
63
Thereafter, the Court directed the parties to submit their
respective memoranda within sixty (60) days and, at the same
time posed several questions for their clarification on some
contentions of the parties.
64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has
allowed the sale, dispensation and distribution of contraceptive
drugs and devices. As far back as June 18, 1966, the country
enacted R.A. No. 4729 entitled "An Act to Regu,late the Sale,
Dispensation, and/or Distribution of Contraceptive Drugs and
Devices." Although contraceptive drugs and devices were
allowed, they could not be sold, dispensed or distributed "unless
such sale, dispensation and distribution is by a duly licensed drug
store or pharmaceutical company and with the prescription of a
qualified medical practitioner."65
In addition, R.A. No. 5921,  approved on June 21, 1969,
66
contained provisions relative to "dispensing of abortifacients or
anti-conceptional substances and devices." Under Section 37
thereof, it was provided that "no drug or chemical product or
device capable of provoking abortion or preventing conception as
classified by the Food and Drug Administration shall be delivered
or sold to any person without a proper prescription by a duly
licensed physician."
On December 11, 1967, the Philippines, adhering to the UN
Declaration on Population, which recognized that the population
problem should be considered as the principal element for long-
term economic development, enacted measures that promoted
male vasectomy and tubal ligation to mitigate population
growth.  Among these measures included R.A. No. 6365,
67
approved on August 16, 1971, entitled "An Act Establishing a
National Policy on Population, Creating the Commission on
Population and for Other Purposes. " The law envisioned that
"family planning will be made part of a broad educational
program; safe and effective means will be provided to couples
desiring to space or limit family size; mortality and morbidity rates
will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand
E . Marcos issued Presidential Decree. (P.D.) No. 79,  dated
68
December 8, 1972, which, among others, made "family planning
a part of a broad educational program," provided "family planning
services as a part of over-all health care," and made "available all
acceptable methods of contraception, except abortion, to all
Filipino citizens desirous of spacing, limiting or preventing
pregnancies."
Through the years, however, the use of contraceptives and family
planning methods evolved from being a component of
demographic management, to one centered on the promotion of
public health, particularly, reproductive health.  Under that policy,
69
the country gave priority to one's right to freely choose the
method of family planning to be adopted, in conformity with its
adherence to the commitments made in the International
Conference on Population and Development.  Thus, on August
70
14, 2009, the country enacted R.A. No. 9710 or "The Magna
Carta for Women, " which, among others, mandated the State to
provide for comprehensive health services and programs for
women, including family planning and sex education. 71
The RH Law
Despite the foregoing legislative measures, the population of the
country kept on galloping at an uncontrollable pace. From a paltry
number of just over 27 million Filipinos in 1960, the population of
the country reached over 76 million in the year 2000 and over 92
million in 2010.  The executive and the legislative, thus, felt that
72
the measures were still not adequate. To rein in the problem, the
RH Law was enacted to provide Filipinos, especially the poor and
the marginalized, access and information to the full range of
modem family planning methods, and to ensure that its objective
agencies - the entire bureaucracy, from the cabinet secretaries
down to the barangay officials in the remotest areas of the
country - is made to play in the implementation of the
contraception program to the fullest extent possible using
taxpayers' money. The State then will be the funder and provider
of all forms of family planning methods and the implementer of
the program by ensuring the widespread dissemination of, and
universal access to, a full range of family planning methods,
devices and supplies. 74

to provide for the peoples' right to reproductive health be

achieved. To make it more effective, the RH Law made it ISSUES
mandatory for health providers to provide information on the full
range of modem family planning methods, supplies and services, After a scrutiny of the various arguments and contentions of the
and for schools to provide reproductive health education. To put parties, the Court has synthesized and refined them to the
teeth to it, the RH Law criminalizes certain acts of refusals to following principal issues:
carry out its mandates.
I. PROCEDURAL: Whether the Court may exercise its power of
Stated differently, the RH Law is an enhancement measure to judicial review over the controversy.
fortify and make effective the current laws on contraception,
women's health and population control.
1] Power of Judicial Review
Prayer of the Petitioners - Maintain the Status Quo
2] Actual Case or Controversy
The petitioners are one in praying that the entire RH Law be
3] Facial Challenge
declared unconstitutional. Petitioner ALFI, in particular, argues
that the government sponsored contraception program, the very
essence of the RH Law, violates the right to health of women and 4] Locus Standi
the sanctity of life, which the State is mandated to protect and
promote. Thus, ALFI prays that "the status quo ante - the 5] Declaratory Relief
situation prior to the passage of the RH Law - must be
maintained."  It explains:
73 6] One Subject/One Title Rule

x x x. The instant Petition does not question contraception and II. SUBSTANTIVE: Whether the RH law is unconstitutional:
contraceptives per se. As provided under Republic Act No. 5921
and Republic Act No. 4729, the sale and distribution of 1] Right to Life
contraceptives are prohibited unless dispensed by a prescription
duly licensed by a physician. What the Petitioners find deplorable 2] Right to Health
and repugnant under the RH Law is the role that the State and its
 3] Freedom of Religion and the Right to Free Speech
4] The Family
5] Freedom of Expression and Academic Freedom
6] Due Process
7] Equal Protection
8] Involuntary Servitude
9] Delegation of Authority to the FDA
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its
implementing rules, it behooves the Court to resolve some
procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its
power of judicial review over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the
OSG asserts that it should submit to the legislative and political
wisdom of Congress and respect the compromises made in the
crafting of the RH Law, it being "a product of a majoritarian
democratic process"  and "characterized by an inordinate amount
75
of transparency."  The OSG posits that the authority of the Court
76
to review social legislation like the RH Law by certiorari is "weak,"
since the Constitution vests the discretion to implement the
constitutional policies and positive norms with the political
departments, in particular, with Congress.  It further asserts that
77
in view of the Court's ruling in Southern Hemisphere v. Anti-
Terrorism Council,  the remedies of certiorari and prohibition
78
utilized by the petitioners are improper to assail the validity of the
acts of the legislature.79
Moreover, the OSG submits that as an "as applied challenge," it
cannot prosper considering that the assailed law has yet to be
enforced and applied to the petitioners, and that the government
has yet to distribute reproductive health devices that are abortive.
It claims that the RH Law cannot be challenged "on its face" as it
is not a speech-regulating measure. 80
In many cases involving the determination of the constitutionality
of the actions of the Executive and the Legislature, it is often
sought that the Court temper its exercise of judicial power and
accord due respect to the wisdom of its co-equal branch on the
basis of the principle of separation of powers. To be clear, the
separation of powers is a fundamental principle in our system of
government, which obtains not through express provision but by
actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its
jurisdiction and is supreme within its own sphere. 81
Thus, the 1987 Constitution provides that: (a) the legislative
power shall be vested in the Congress of the Philippines;  (b) the
82
executive power shall be vested in the President of the
Philippines;  and (c) the judicial power shall be vested in one
83
Supreme Court and in such lower courts as may be established
by law.  The Constitution has truly blocked out with deft strokes
84
and in bold lines, the allotment of powers among the three
branches of government. 85
In its relationship with its co-equals, the Judiciary recognizes the
doctrine of separation of powers which imposes upon the courts
proper restraint, born of the nature of their functions and of their
respect for the other branches of government, in striking down the
acts of the Executive or the Legislature as unconstitutional. Verily,
the policy is a harmonious blend of courtesy and caution. 86
It has also long been observed, however, that in times of social
disquietude or political instability, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely
obliterated.  In order to address this, the Constitution impresses
87
upon the Court to respect the acts performed by a co-equal
branch done within its sphere of competence and authority, but at
the same time, allows it to cross the line of separation - but only
at a very limited and specific point - to determine whether the acts
of the executive and the legislative branches are null because
they were undertaken with grave abuse of discretion.  Thus,
88
while the Court may not pass upon questions of wisdom, justice
or expediency of the RH Law, it may do so where an attendant
unconstitutionality or grave abuse of discretion results.  The 89
Court must demonstrate its unflinching commitment to protect
those cherished rights and principles embodied in the
Constitution.
In this connection, it bears adding that while the scope of judicial
power of review may be limited, the Constitution makes no
distinction as to the kind of legislation that may be subject to
judicial scrutiny, be it in the form of social legislation or otherwise.
The reason is simple and goes back to the earlier point. The
Court may pass upon the constitutionality of acts of the legislative
and the executive branches, since its duty is not to review their
collective wisdom but, rather, to make sure that they have acted
in consonance with their respective authorities and rights as
mandated of them by the Constitution. If after said review, the
Court finds no constitutional violations of any sort, then, it has no
more authority of proscribing the actions under review.  This is in
90
line with Article VIII, Section 1 of the Constitution which expressly
provides:
Section 1. The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality
of the Government. [Emphases supplied]
As far back as Tanada v. Angara,  the Court has unequivocally
91
declared that certiorari, prohibition and mandamus are
appropriate remedies to raise constitutional issues and to review
and/or prohibit/nullify, when proper, acts of legislative and
executive officials, as there is no other plain, speedy or adequate
remedy in the ordinary course of law. This ruling was later on
applied in Macalintal v. COMELEC,  Aldaba v.
92
COMELEC,  Magallona v. Ermita,  and countless others. In
93 94
Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground
that it contravenes the Constitution, the petition no doubt raises a
justiciable controversy. Where an action of the legislative branch
is seriously alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary to settle the
dispute. "The question thus posed is judicial rather than political.
The duty (to adjudicate) remains to assure that the supremacy of
the Constitution is upheld. " Once a "controversy as to the
application or interpretation of constitutional provision is raised
before this Court (as in the instant case), it becomes a legal issue
which the Court is bound by constitutional mandate to decide.
[Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice
Florentino Feliciano, "judicial review is essential for the
maintenance and enforcement of the separation of powers and
the balancing of powers among the three great departments of
government through the definition and maintenance of the
boundaries of authority and control between them. To him,
judicial review is the chief, indeed the only, medium of
participation - or instrument of intervention - of the judiciary in that
balancing operation. 95
Lest it be misunderstood, it bears emphasizing that the Court
does not have the unbridled authority to rule on just any and
every claim of constitutional violation. Jurisprudence is replete
with the rule that the power of judicial review is limited by four
exacting requisites, viz : (a) there must be an actual case or
controversy; (b) the petitioners must possess locus standi; (c) the
question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the lis
mota of the case. 96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do
not present any actual case or controversy because the RH Law
has yet to be implemented.  They claim that the questions raised
97
by the petitions are not yet concrete and ripe for adjudication
since no one has been charged with violating any of its provisions
and that there is no showing that any of the petitioners' rights has
been adversely affected by its operation.  In short, it is contended
98
that judicial review of the RH Law is premature.
An actual case or controversy means an existing case or
controversy that is appropriate or ripe for determination, not
conjectural or anticipatory, lest the decision of the court would
amount to an advisory opinion.  The rule is that courts do not sit
99
to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. The controversy must
be justiciable-definite and concrete, touching on the legal
relations of parties having adverse legal interests. In other words,
the pleadings must show an active antagonistic assertion of a
legal right, on the one hand, and a denial thereof, on the other;
that is, it must concern a real, tangible and not merely a
theoretical question or issue. There ought to be an actual and
substantial controversy admitting of specific relief through a
decree conclusive in nature, as distinguished from an opinion
advising what the law would be upon a hypothetical state of
facts.
100
Corollary to the requirement of an actual case or controversy is
the requirement of ripeness.  A question is ripe for adjudication
101
when the act being challenged has had a direct adverse effect on
the individual challenging it. For a case to be considered ripe for
adjudication, it is a prerequisite that something has then been
accomplished or performed by either branch before a court may
come into the picture, and the petitioner must allege the existence
of an immediate or threatened injury to himself as a result of the
challenged action. He must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result
of the act complained of 102
In The Province of North Cotabato v. The Government of the
Republic of the Philippines,  where the constitutionality of an
103
unimplemented Memorandum of Agreement on the Ancestral
Domain (MOA-AD) was put in question, it was argued that the
Court has no authority to pass upon the issues raised as there
was yet no concrete act performed that could possibly violate the
petitioners' and the intervenors' rights. Citing precedents, the
Court ruled that the fact of the law or act in question being not yet
effective does not negate ripeness. Concrete acts under a law are
not necessary to render the controversy ripe. Even a singular
violation of the Constitution and/or the law is enough to awaken
judicial duty.
In this case, the Court is of the view that an actual case or
controversy exists and that the same is ripe for judicial
determination. Considering that the RH Law and its implementing
rules have already taken effect and that budgetary measures to
carry out the law have already been passed, it is evident that the
subject petitions present a justiciable controversy. As stated
earlier, when an action of the legislative branch is seriously
alleged to have infringed the Constitution, it not only becomes a
right, but also a duty of the Judiciary to settle the dispute.
104
Moreover, the petitioners have shown that the case is so because
medical practitioners or medical providers are in danger of being
criminally prosecuted under the RH Law for vague violations
thereof, particularly public health officers who are threatened to
be dismissed from the service with forfeiture of retirement and
other benefits. They must, at least, be heard on the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged
by the subject petitions, contending that the RH Law cannot be
challenged "on its face" as it is not a speech regulating
measure. 105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also
known as a First Amendment Challenge, is one that is launched
to assail the validity of statutes concerning not only protected
speech, but also all other rights in the First Amendment.  These
106
include religious freedom, freedom of the press, and the right of
the people to peaceably assemble, and to petition the
Government for a redress of grievances.  After all, the
107
fundamental right to religious freedom, freedom of the press and
peaceful assembly are but component rights of the right to one's
freedom of expression, as they are modes which one's thoughts
are externalized.
In this jurisdiction, the application of doctrines originating from the
U.S. has been generally maintained, albeit with some
modifications. While this Court has withheld the application of
facial challenges to strictly penal statues,  it has expanded its
108
scope to cover statutes not only regulating free speech, but also
those involving religious freedom, and other fundamental
rights.  The underlying reason for this modification is simple. For
109
unlike its counterpart in the U.S., this Court, under its expanded
jurisdiction, is mandated by the Fundamental Law 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.  Verily, the framers of Our
110
Constitution envisioned a proactive Judiciary, ever vigilant with its
duty to maintain the supremacy of the Constitution.
Consequently, considering that the foregoing petitions have
seriously alleged that the constitutional human rights to life,
speech and religion and other fundamental rights mentioned
above have been violated by the assailed legislation, the Court
has authority to take cognizance of these kindred petitions and to
determine if the RH Law can indeed pass constitutional scrutiny.
To dismiss these petitions on the simple expedient that there
exist no actual case or controversy, would diminish this Court as
a reactive branch of government, acting only when the
Fundamental Law has been transgressed, to the detriment of the
Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to
file their respective petitions. It contends that the "as applied
challenge" lodged by the petitioners cannot prosper as the
assailed law has yet to be enforced and applied against
them,  and the government has yet to distribute reproductive
111
health devices that are abortive.112
The petitioners, for their part, invariably invoke the
"transcendental importance" doctrine and their status as citizens
and taxpayers in establishing the requisite locus standi.
Locus standi or legal standing is 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 challenged
governmental act.  It requires a personal stake in the outcome of
113
the controversy as to assure the concrete adverseness which
sharpens the presentation of issues upon which the court so
largely depends for illumination of difficult constitutional
questions. 114
In relation to locus standi, the "as applied challenge" embodies
the rule that one can challenge the constitutionality of a statute
only if he asserts a violation of his own rights. The rule prohibits
one from challenging the constitutionality of the statute grounded
on a violation of the rights of third persons not before the court.
This rule is also known as the prohibition against third-party
standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on
standing is a matter of procedure, hence, can be relaxed for non-
traditional plaintiffs like ordinary citizens, taxpayers, and
legislators when the public interest so requires, such as when the
matter is of transcendental importance, of overreaching
significance to society, or of paramount public interest." 116
In Coconut Oil Refiners Association, Inc. v. Torres,  the Court
117
held that in cases of paramount importance where serious
constitutional questions are involved, the standing requirement
may be relaxed and a suit may be allowed to prosper even where
there is no direct injury to the party claiming the right of judicial
review. In the first Emergency Powers Cases,  ordinary citizens
118
and taxpayers were allowed to question the constitutionality of
several executive orders although they had only an indirect and
general interest shared in common with the public.
With these said, even if the constitutionality of the RH Law may
not be assailed through an "as-applied challenge, still, the Court
has time and again acted liberally on the locus s tandi
requirement. It has accorded certain individuals standing to sue,
not otherwise directly injured or with material interest affected by
a Government act, provided a constitutional issue of
transcendental importance is invoked. The rule on locus standi is,
after all, a procedural technicality which the Court has, on more
than one occasion, 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 directly injured by the operation of a law or any other
government act. As held in Jaworski v. PAGCOR: 119
Granting arguendo that the present action cannot be properly
treated as a petition for prohibition, the transcendental importance
of the issues involved in this case warrants that we set aside the
technical defects and take primary jurisdiction over the petition at
bar. One cannot deny that the issues raised herein have
potentially pervasive influence on the social and moral well being
of this nation, specially the youth; hence, their proper and just
determination is an imperative need. This is in accordance with
the well-entrenched principle that rules of procedure are not
inflexible tools designed to hinder or delay, but to facilitate and
promote the administration of justice. Their strict and rigid
application, which would result in technicalities that tend to
frustrate, rather than promote substantial justice, must always be
eschewed. (Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not
only to the public, but also to the bench and bar, the issues raised
must be resolved for the guidance of all. After all, the RH Law
drastically affects the constitutional provisions on the right to life
and health, the freedom of religion and expression and other
constitutional rights. Mindful of all these and the fact that the
issues of contraception and reproductive health have already
caused deep division among a broad spectrum of society, the
Court entertains no doubt that the petitions raise issues of
transcendental importance warranting immediate court
adjudication. More importantly, considering that it is the right to
life of the mother and the unborn which is primarily at issue, the
Court need not wait for a life to be taken away before taking
action.
The Court cannot, and should not, exercise judicial restraint at
this time when rights enshrined in the Constitution are being
imperilled to be violated. To do so, when the life of either the
mother or her child is at stake, would lead to irreparable
consequences.
Declaratory Relief
The respondents also assail the petitions because they are
essentially petitions for declaratory relief over which the Court has
no original jurisdiction.  Suffice it to state that most of the
120
petitions are praying for injunctive reliefs and so the Court would
just consider them as petitions for prohibition under Rule 65, over
which it has original jurisdiction. Where the case has far-reaching
implications and prays for injunctive reliefs, the Court may
consider them as petitions for prohibition under Rule 65. 121
One Subject-One Title
The petitioners also question the constitutionality of the RH Law,
claiming that it violates Section 26(1 ), Article VI of the
Constitution,  prescribing the one subject-one title rule.
122
According to them, being one for reproductive health with
responsible parenthood, the assailed legislation violates the
constitutional standards of due process by concealing its true
intent - to act as a population control measure. 123
To belittle the challenge, the respondents insist that the RH Law
is not a birth or population control measure,  and that the
124
concepts of "responsible parenthood" and "reproductive health"
are both interrelated as they are inseparable. 125
Despite efforts to push the RH Law as a reproductive health law,
the Court sees it as principally a population control measure. The
corpus of the RH Law is geared towards the reduction of the
country's population. While it claims to save lives and keep our
women and children healthy, it also promotes pregnancy-
preventing products. As stated earlier, the RH Law emphasizes
the need to provide Filipinos, especially the poor and the
marginalized, with access to information on the full range of
modem family planning products and methods. These family
planning methods, natural or modem, however, are clearly
geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law
is to reduce the number of births in the country.
It cannot be denied that the measure also seeks to provide pre-
natal and post-natal care as well. A large portion of the law,
however, covers the dissemination of information and provisions
on access to medically-safe, non-abortifacient, effective, legal,
affordable, and quality reproductive health care services,
methods, devices, and supplies, which are all intended to prevent
pregnancy.
The Court, thus, agrees with the petitioners' contention that the
whole idea of contraception pervades the entire RH Law. It is, in
fact, the central idea of the RH Law.  Indeed, remove the
126
provisions that refer to contraception or are related to it and the
RH Law loses its very foundation.  As earlier explained, "the
127
other positive provisions such as skilled birth attendance,
maternal care including pre-and post-natal services, prevention
and management of reproductive tract infections including
HIV/AIDS are already provided for in the Magna Carta for
Women." 128
Be that as it may, the RH Law does not violate the one
subject/one bill rule. In Benjamin E. Cawaling, Jr. v. The
Commission on Elections and Rep. Francis Joseph G Escudero,
it was written:
It is well-settled that the "one title-one subject" rule does not
require the Congress to employ in the title of the enactment
language of such precision as to mirror, fully index or catalogue
all the contents and the minute details therein. The rule is
sufficiently complied with if the title is comprehensive enough as
to include the general object which the statute seeks to effect,
and where, as here, the persons interested are informed of the
nature, scope and consequences of the proposed law and its
operation. Moreover, this Court has invariably adopted a liberal
rather than technical construction of the rule "so as not to cripple
or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law
shows that both "reproductive health" and "responsible
parenthood" are interrelated and germane to the overriding
objective to control the population growth. As expressed in the
first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and
guarantees the human rights of all persons including their right to
equality and nondiscrimination of these rights, the right to
sustainable human development, the right to health which
includes reproductive health, the right to education and
information, and the right to choose and make decisions for
themselves in accordance with their religious convictions, ethics,
cultural beliefs, and the demands of responsible parenthood.
The one subject/one title rule expresses the principle that the title
of a law must not be "so uncertain that the average person
reading it would not be informed of the purpose of the enactment
or put on inquiry as to its contents, or which is misleading, either
in referring to or indicating one subject where another or different
one is really embraced in the act, or in omitting any expression or
indication of the real subject or scope of the act."
129
Considering the close intimacy between "reproductive health" and
"responsible parenthood" which bears to the attainment of the
goal of achieving "sustainable human development" as stated
under its terms, the Court finds no reason to believe that
Congress intentionally sought to deceive the public as to the
contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right to
life and health of the unborn child under Section 12, Article II of
the Constitution. The assailed legislation allowing access to
abortifacients/abortives effectively sanctions abortion.130
According to the petitioners, despite its express terms prohibiting
abortion, Section 4(a) of the RH Law considers contraceptives
that prevent the fertilized ovum to reach and be implanted in the
mother's womb as an abortifacient; thus, sanctioning
contraceptives that take effect after fertilization and prior to
implantation, contrary to the intent of the Framers of the
Constitution to afford protection to the fertilized ovum which
already has life.
They argue that even if Section 9 of the RH Law allows only "non-
abortifacient" hormonal contraceptives, intrauterine devices,
injectables and other safe, legal, non-abortifacient and effective
family planning products and supplies, medical research shows
that contraceptives use results in abortion as they operate to kill
the fertilized ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human
good, the petitioners assert that the State sanction of
contraceptive use contravenes natural law and is an affront to the
dignity of man.132
Finally, it is contended that since Section 9 of the RH Law
requires the Food and Drug Administration (FDA) to certify that
the product or supply is not to be used as an abortifacient, the
assailed legislation effectively confirms that abortifacients are not
prohibited. Also considering that the FDA is not the agency that
will actually supervise or administer the use of these products and
supplies to prospective patients, there is no way it can truthfully
make a certification that it shall not be used for abortifacient
purposes. 133
Position of the Respondents
For their part, the defenders of the RH Law point out that the
intent of the Framers of the Constitution was simply the
prohibition of abortion. They contend that the RH Law does not
violate the Constitution since the said law emphasizes that only
"non-abortifacient" reproductive health care services, methods,
devices products and supplies shall be made accessible to the
public.
134
According to the OSG, Congress has made a legislative
determination that contraceptives are not abortifacients by
enacting the RH Law. As the RH Law was enacted with due
consideration to various studies and consultations with the World
Health Organization (WHO) and other experts in the medical field,
it is asserted that the Court afford deference and respect to such
a determination and pass judgment only when a particular drug or
device is later on determined as an abortive. 135
For his part, respondent Lagman argues that the constitutional
protection of one's right to life is not violated considering that
various studies of the WHO show that life begins from the
implantation of the fertilized ovum. Consequently, he argues that
the RH Law is constitutional since the law specifically provides
that only contraceptives that do not prevent the implantation of
the fertilized ovum are allowed. 136
The Court's Position
It is a universally accepted principle that every human being
enjoys the right to life.
137
Even if not formally established, the right to life, being grounded
on natural law, is inherent and, therefore, not a creation of, or
dependent upon a particular law, custom, or belief. It precedes
and transcends any authority or the laws of men.
In this jurisdiction, the right to life is given more than ample
protection. Section 1, Article III of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property
without due process of law, nor shall any person be denied the
equal protection of the laws.
As expounded earlier, the use of contraceptives and family
planning methods in the Philippines is not of recent vintage. From
the enactment of R.A. No. 4729, entitled "An Act To Regulate The
Sale, Dispensation, and/or Distribution of Contraceptive Drugs
and Devices "on June 18, 1966, prescribing rules on
contraceptive drugs and devices which prevent fertilization,  to
138
the promotion of male vasectomy and tubal ligation,  and the
139
ratification of numerous international agreements, the country has
long recognized the need to promote population control through
the use of contraceptives in order to achieve long-term economic
development. Through the years, however, the use of
contraceptives and other family planning methods evolved from
being a component of demographic management, to one
centered on the promotion of public health, particularly,
reproductive health. 140
This has resulted in the enactment of various measures
promoting women's rights and health and the overall promotion of
the family's well-being. Thus, aside from R.A. No. 4729, R.A. No.
6365 or "The Population Act of the Philippines" and R.A. No.
9710, otherwise known as the "The Magna Carta of Women"
were legislated. Notwithstanding this paradigm shift, the
Philippine national population program has always been
grounded two cornerstone principles: "principle of no-abortion"
and the "principle of non-coercion."  As will be discussed later,
141
these principles are not merely grounded on administrative policy,
but rather, originates from the constitutional protection expressly
provided to afford protection to life and guarantee religious
freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the
question of when life begins is a scientific and medical issue that
should not be decided, at this stage, without proper hearing and
evidence. During the deliberation, however, it was agreed upon
that the individual members of the Court could express their own
views on this matter.
In this regard, the ponente, is of the strong view that life begins at
fertilization.
In answering the question of when life begins, focus should be
made on the particular phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and
shall protect and strengthen the family as a basic autonomous
social institution. It shall equally protect the life of the mother and
the life of the unborn from conception. The natural and primary
right and duty of parents in the rearing of the youth for civic
efficiency and the development of moral character shall receive
the support of the Government.
Textually, the Constitution affords protection to the unborn from
conception. This is undisputable because before conception,
there is no unborn to speak of. For said reason, it is no surprise
that the Constitution is mute as to any proscription prior to
conception or when life begins. The problem has arisen because,
amazingly, there are quarters who have conveniently disregarded
the scientific fact that conception is reckoned from fertilization.
They are waving the view that life begins at implantation. Hence,
the issue of when life begins.
In a nutshell, those opposing the RH Law contend that conception
is synonymous with "fertilization" of the female ovum by the male
sperm.  On the other side of the spectrum are those who assert
142
that conception refers to the "implantation" of the fertilized ovum
in the uterus. 143
Plain and Legal Meaning
It is a canon in statutory construction that the words of the
Constitution should be interpreted in their plain and ordinary
meaning. As held in the recent case of Chavez v. Judicial Bar
Council: 144
One of the primary and basic rules in statutory construction is that
where the words of a statute are clear, plain, and free from
ambiguity, it must be given its literal meaning and applied without
attempted interpretation. It is a well-settled principle of
constitutional construction that the language employed in the
Constitution must be given their ordinary meaning except where
technical terms are employed. As much as possible, the words of
the Constitution 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. Verba legis non est recedendum
- from the words of a statute there should be no departure.
The raison d' etre for the rule is essentially two-fold: First,
because it is assumed that the words in which constitutional
provisions are couched express the objective sought to be
attained; and second, because the Constitution is not primarily a
lawyer's document but essentially that of the people, in whose
consciousness it should ever be present as an important
condition for the rule of law to prevail.
In conformity with the above principle, the traditional meaning of
the word "conception" which, as described and defined by all
reliable and reputable sources, means that life begins at
fertilization.
Webster's Third New International Dictionary describes it as the
act of becoming pregnant, formation of a viable zygote; the
fertilization that results in a new entity capable of developing into
a being like its parents.
145
Section 12, Article II of the Constitution. From their deliberations,
it clearly refers to the moment of "fertilization." The records reflect
the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which
reads:

Black's Law Dictionary gives legal meaning to the term
"conception" as the fecundation of the female ovum by the male
spermatozoon resulting in human life capable of survival and
maturation under normal conditions. 146
"The State shall equally protect the life of the mother and the life
of the unborn from the moment of conception."
When is the moment of conception?

xxx
Even in jurisprudence, an unborn child has already a legal
personality. In Continental Steel Manufacturing Corporation v. Mr. Villegas: As I explained in the sponsorship speech, it is when
Hon. Accredited Voluntary Arbitrator Allan S. Montano,  it was
147
the ovum is fertilized by the sperm that there is human life. x x x. 150

written:
xxx
Life is not synonymous with civil personality. One need not
acquire civil personality first before he/she could die. Even a child
As to why conception is reckoned from fertilization and, as such,
inside the womb already has life. No less than the Constitution
the beginning of human life, it was explained:
recognizes the life of the unborn from conception, that the State
must protect equally with the life of the mother. If the unborn
already has life, then the cessation thereof even prior to the child Mr. Villegas: I propose to review this issue in a biological manner.
being delivered, qualifies as death. [Emphases in the original] The first question that needs to be answered is: Is the fertilized
ovum alive? Biologically categorically says yes, the fertilized
ovum is alive. First of all, like all living organisms, it takes in
In Gonzales v. Carhart,  Justice Anthony Kennedy, writing for the
148

nutrients which it processes by itself. It begins doing this upon

US Supreme Court, said that the State "has respect for human
fertilization. Secondly, as it takes in these nutrients, it grows from
life at all stages in the pregnancy" and "a legitimate and
within. Thirdly, it multiplies itself at a geometric rate in the
substantial interest in preserving and promoting fetal life."
continuous process of cell division. All these processes are vital
Invariably, in the decision, the fetus was referred to, or cited, as a
signs of life. Therefore, there is no question that biologically the
baby or a child.149

fertilized ovum has life.

Intent of the Framers
Records of the Constitutional Convention also shed light on the
intention of the Framers regarding the term "conception" used in
The second question: Is it human? Genetics gives an equally
categorical "yes." At the moment of conception, the nuclei of the
ovum and the sperm rupture. As this happens 23 chromosomes
from the ovum combine with 23 chromosomes of the sperm to
form a total of 46 chromosomes. A chromosome count of 46 is
found only - and I repeat, only in human cells. Therefore, the
fertilized ovum is human.
Since these questions have been answered affirmatively, we
must conclude that if the fertilized ovum is both alive and human,
then, as night follows day, it must be human life. Its nature is
human. 151
Why the Constitution used the phrase "from the moment of
conception" and not "from the moment of fertilization" was not
because of doubt when human life begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception"
was described by us here before with the scientific phrase
"fertilized ovum" may be beyond the comprehension of some
people; we want to use the simpler phrase "from the moment of
conception." 152
Thus, in order to ensure that the fertilized ovum is given ample
protection under the Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for
the purpose of writing a Constitution, without specifying "from the
moment of conception."
Mr. Davide: I would not subscribe to that particular view because
according to the Commissioner's own admission, he would leave
it to Congress to define when life begins. So, Congress can
define life to begin from six months after fertilization; and that
would really be very, very, dangerous. It is now determined by
science that life begins from the moment of conception. There
can be no doubt about it. So we should not give any doubt to
Congress, too. 153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question
on that point. Actually, that is one of the questions I was going to
raise during the period of interpellations but it has been
expressed already. The provision, as proposed right now states:
The State shall equally protect the life of the mother and the life of
the unborn from the moment of conception.
When it speaks of "from the moment of conception," does this
mean when the egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right
to determine whether certain contraceptives that we know today
are abortifacient or not because it is a fact that some of the so-
called contraceptives deter the rooting of the ovum in the uterus.
If fertilization has already occurred, the next process is for the
fertilized ovum to travel towards the uterus and to take root. What
happens with some contraceptives is that they stop the
opportunity for the fertilized ovum to reach the uterus. Therefore,
if we take the provision as it is proposed, these so called
contraceptives should be banned.
Mr. Villegas: Yes, if that physical fact is established, then that is
what is called abortifacient and, therefore, would be
unconstitutional and should be banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to
Congress to state whether or not these certain contraceptives are
abortifacient. Scientifically and based on the provision as it is now
proposed, they are already considered abortifacient. 154
From the deliberations above-quoted, it is apparent that the
Framers of the Constitution emphasized that the State shall
provide equal protection to both the mother and the unborn child
from the earliest opportunity of life, that is, upon fertilization or
upon the union of the male sperm and the female ovum. It is also
apparent is that the Framers of the Constitution intended that to
prohibit Congress from enacting measures that would allow it
determine when life begins.
Equally apparent, however, is that the Framers of the Constitution
did not intend to ban all contraceptives for being unconstitutional.
In fact, Commissioner Bernardo Villegas, spearheading the need
to have a constitutional provision on the right to life, recognized
that the determination of whether a contraceptive device is an
abortifacient is a question of fact which should be left to the
courts to decide on based on established evidence. 155
From the discussions above, contraceptives that kill or destroy
the fertilized ovum should be deemed an abortive and thus
prohibited. Conversely, contraceptives that actually prevent the
union of the male sperm and the female ovum, and those that
similarly take action prior to fertilization should be deemed non-
abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
x x x           x x x          x x x
Mr. Gascon: xx xx. As I mentioned in my speech on the US
bases, I am pro-life, to the point that I would like not only to
protect the life of the unborn, but also the lives of the millions of
people in the world by fighting for a nuclear-free world. I would
just like to be assured of the legal and pragmatic implications of
the term "protection of the life of the unborn from the moment of
conception." I raised some of these implications this afternoon
when I interjected in the interpellation of Commissioner Regalado.
I would like to ask that question again for a categorical answer.
I mentioned that if we institutionalize the term "the life of the
unborn from the moment of conception" we are also actually
saying "no," not "maybe," to certain contraceptives which are
already being encouraged at this point in time. Is that the sense
of the committee or does it disagree with me?
Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives
would be preventive. There is no unborn yet. That is yet
unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more
about some contraceptives, such as the intra-uterine device
which actually stops the egg which has already been fertilized
from taking route to the uterus. So if we say "from the moment of
conception," what really occurs is that some of these
contraceptives will have to be unconstitutionalized.
Mr. Azcuna: Yes, to the extent that it is after the fertilization.
Mr. Gascon: Thank you, Mr. Presiding Officer. 156
The fact that not all contraceptives are prohibited by the 1987
Constitution is even admitted by petitioners during the oral
arguments. There it was conceded that tubal ligation, vasectomy,
even condoms are not classified as abortifacients. 157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life
yet.
Justice Bersamin:
There is no life.
Atty. Noche:
So, there is no life to be protected.
Justice Bersamin: That conception begins at fertilization is not bereft of medical
foundation. Mosby s Medical, Nursing, and Allied Health
To be protected. Dictionary defines conception as "the beginning of pregnancy
usually taken to be the instant a spermatozoon enters an ovum
Atty. Noche: and forms a viable zygote." 159

Under Section 12, yes. It describes fertilization as "the union of male and female gametes
to form a zygote from which the embryo develops." 160

Justice Bersamin:
The Textbook of Obstetrics (Physiological & Pathological
Obstetrics),  used by medical schools in the Philippines, also
161

So you have no objection to condoms?

concludes that human life (human person) begins at the moment
of fertilization with the union of the egg and the sperm resulting in
Atty. Noche: the formation of a new individual, with a unique genetic
composition that dictates all developmental stages that ensue.
Not under Section 12, Article II.
Similarly, recent medical research on the matter also reveals that:
Justice Bersamin: "Human development begins after the union of male and female
gametes or germ cells during a process known as fertilization
Even if there is already information that condoms sometimes (conception). Fertilization is a sequence of events that begins
have porosity? with the contact of a sperm (spermatozoon) with a secondary
oocyte (ovum) and ends with the fusion of their pronuclei (the
Atty. Noche: haploid nuclei of the sperm and ovum) and the mingling of their
chromosomes to form a new cell. This fertilized ovum, known as
Well, yes, Your Honor, there are scientific findings to that effect, a zygote, is a large diploid cell that is the beginning, or
Your Honor, but I am discussing here Section 12, Article II, Your primordium, of a human being." 162

Honor, yes.
The authors of Human Embryology & Teratology  mirror the
163

Justice Bersamin: same position. They wrote: "Although life is a continuous process,
fertilization is a critical landmark because, under ordinary
Alright. circumstances, a new, genetically distinct human organism is
thereby formed.... The combination of 23 chromosomes present
in each pronucleus results in 46 chromosomes in the zygote.
Atty. Noche: Thus the diploid number is restored and the embryonic genome is
formed. The embryo now exists as a genetic unity."
And it's not, I have to admit it's not an abortifacient, Your Honor. 158

Medical Meaning
In support of the RH Bill, The Philippine Medical Association
came out with a "Paper on the Reproductive Health Bill
(Responsible Parenthood Bill)" and therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the
same time that PMA maintains its strong position that fertilization
is sacred because it is at this stage that conception, and thus
human life, begins. Human lives are sacred from the moment of
conception, and that destroying those new lives is never licit, no
matter what the purported good outcome would be. In terms of
biology and human embryology, a human being begins
immediately at fertilization and after that, there is no point along
the continuous line of human embryogenesis where only a
"potential" human being can be posited. Any philosophical, legal,
or political conclusion cannot escape this objective scientific fact.
The scientific evidence supports the conclusion that a zygote is a
human organism and that the life of a new human being
commences at a scientifically well defined "moment of
conception." This conclusion is objective, consistent with the
factual evidence, and independent of any specific ethical, moral,
political, or religious view of human life or of human embryos. 164
Conclusion: The Moment of Conception is Reckoned from
Fertilization
In all, whether it be taken from a plain meaning, or understood
under medical parlance, and more importantly, following the
intention of the Framers of the Constitution, the undeniable
conclusion is that a zygote is a human organism and that the life
of a new human being commences at a scientifically well-defined
moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory
advocated by Hon. Lagman that life begins at
implantation.  According to him, "fertilization and conception are
165
two distinct and successive stages in the reproductive process.
They are not identical and synonymous."  Citing a letter of the
166
WHO, he wrote that "medical authorities confirm that the
implantation of the fertilized ovum is the commencement of
conception and it is only after implantation that pregnancy can be
medically detected." 167
This theory of implantation as the beginning of life is devoid of
any legal or scientific mooring. It does not pertain to the beginning
of life but to the viability of the fetus. The fertilized ovum/zygote is
not an inanimate object - it is a living human being complete with
DNA and 46 chromosomes.  Implantation has been
168
conceptualized only for convenience by those who had population
control in mind. To adopt it would constitute textual infidelity not
only to the RH Law but also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize
the utilization of any drug or device that would prevent the
implantation of the fetus at the uterine wall. It would be
provocative and further aggravate religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion
and abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987
Constitution in protecting the life of the unborn from conception
was to prevent the Legislature from enacting a measure legalizing
abortion. It was so clear that even the Court cannot interpret it
otherwise. This intent of the Framers was captured in the record
of the proceedings of the 1986 Constitutional Commission.
Commissioner Bernardo Villegas, the principal proponent of the
protection of the unborn from conception, explained:
The intention .. .is to make sure that there would be no pro-
abortion laws ever passed by Congress or any pro-abortion
decision passed by the Supreme Court. 169
A reading of the RH Law would show that it is in line with this
intent and actually proscribes abortion. While the Court has opted
not to make any determination, at this stage, when life begins, it
finds that the RH Law itself clearly mandates that protection be
afforded from the moment of fertilization. As pointed out by
Justice Carpio, the RH Law is replete with provisions that embody
the policy of the law to protect to the fertilized ovum and that it
should be afforded safe travel to the uterus for implantation. 170
Moreover, the RH Law recognizes that abortion is a crime under
Article 256 of the Revised Penal Code, which penalizes the
destruction or expulsion of the fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the
following terms shall be defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full range of
methods, facilities, services and supplies that contribute to
reproductive health and well-being by addressing reproductive
health-related problems. It also includes sexual health, the
purpose of which is the enhancement of life and personal
relations. The elements of reproductive health care include the
following:
xxx.
(3) Proscription of abortion and management of abortion
complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals
and couples, to decide freely and responsibly whether or not to
have children; the number, spacing and timing of their children; to
make other decisions concerning reproduction, free of
discrimination, coercion and violence; to have the information and
means to do so; and to attain the highest standard of sexual
health and reproductive health: Provided, however, That
reproductive health rights do not include abortion, and access to
abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against
abortion, any law, presidential decree or issuance, executive
order, letter of instruction, administrative order, rule or regulation
contrary to or is inconsistent with the provisions of this Act
including Republic Act No. 7392, otherwise known as the
Midwifery Act, is hereby repealed, modified or amended
accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in
prohibiting abortifacients. To be clear, Section 4(a) of the RH Law
defines an abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion
or the destruction of a fetus inside the mother's womb or the
prevention of the fertilized ovum to reach and be implanted in the
mother's womb upon determination of the FDA.
As stated above, the RH Law mandates that protection must be
afforded from the moment of fertilization. By using the word " or,"
the RH Law prohibits not only drugs or devices that prevent
implantation, but also those that induce abortion and those that
induce the destruction of a fetus inside the mother's womb. Thus,
an abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's
womb; or
(c) Prevents the fertilized ovum to reach and be implanted
in the mother's womb, upon determination of the FDA.
Contrary to the assertions made by the petitioners, the Court
finds that the RH Law, consistent with the Constitution,
recognizes that the fertilized ovum already has life and that the
State has a bounden duty to protect it. The conclusion becomes
clear because the RH Law, first, prohibits any drug or device that
induces abortion (first kind), which, as discussed exhaustively
above, refers to that which induces the killing or the destruction of
the fertilized ovum, and, second, prohibits any drug or device the
fertilized ovum to reach and be implanted in the mother's womb
(third kind).
By expressly declaring that any drug or device that prevents the
fertilized ovum to reach and be implanted in the mother's womb is
an abortifacient (third kind), the RH Law does not intend to mean
at all that life only begins only at implantation, as Hon. Lagman
suggests. It also does not declare either that protection will only
be given upon implantation, as the petitioners likewise suggest.
Rather, it recognizes that: one, there is a need to protect the
fertilized ovum which already has life, and two, the fertilized ovum
must be protected the moment it becomes existent - all the way
until it reaches and implants in the mother's womb. After all, if life
is only recognized and afforded protection from the moment the
fertilized ovum implants - there is nothing to prevent any drug or
device from killing or destroying the fertilized ovum prior to
implantation.
From the foregoing, the Court finds that inasmuch as it affords
protection to the fertilized ovum, the RH Law does not sanction
abortion. To repeat, it is the Court's position that life begins at
fertilization, not at implantation. When a fertilized ovum is
implanted in the uterine wall , its viability is sustained but that
instance of implantation is not the point of beginning of life. It
started earlier. And as defined by the RH Law, any drug or device
that induces abortion, that is, which kills or destroys the fertilized
ovum or prevents the fertilized ovum to reach and be implanted in
the mother's womb, is an abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under
Section 9 of the law that "any product or supply included or to be
included in the EDL must have a certification from the FDA that
said product and supply is made available on the condition that it
is not to be used as an abortifacient" as empty as it is absurd.
The FDA, with all its expertise, cannot fully attest that a drug or
device will not all be used as an abortifacient, since the agency
cannot be present in every instance when the contraceptive
product or supply will be used. 171
Pursuant to its declared policy of providing access only to safe,
legal and non-abortifacient contraceptives, however, the Court
finds that the proviso of Section 9, as worded, should bend to the
legislative intent and mean that "any product or supply included or
to be included in the EDL must have a certification from the FDA
that said product and supply is made available on the condition
that it cannot be used as abortifacient." Such a construction is
consistent with the proviso under the second paragraph of the
same section that provides:
Provided, further, That the foregoing offices shall not purchase or
acquire by any means emergency contraceptive pills, postcoital
pills, abortifacients that will be used for such purpose and their
other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the
RH-IRR gravely abused their office when they redefined the
meaning of abortifacient. The RH Law defines "abortifacient" as
follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the
following terms shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion
or the destruction of a fetus inside the mother's womb or the
prevention of the fertilized ovum to reach and be implanted in the
mother's womb upon determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be
defined as follows:
a) Abortifacient refers to any drug or device that primarily induces
abortion or the destruction of a fetus inside the mother's womb or
the prevention of the fertilized ovum to reach and be implanted in
the mother's womb upon determination of the Food and Drug
Administration (FDA). [Emphasis supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is
redefined, viz:
j) Contraceptive refers to any safe, legal, effective and
scientifically proven modern family planning method, device, or
health product, whether natural or artificial, that prevents
pregnancy but does not primarily destroy a fertilized ovum or
prevent a fertilized ovum from being implanted in the mother's
womb in doses of its approved indication as determined by the
Food and Drug Administration (FDA).
The above-mentioned section of the RH-IRR allows
"contraceptives" and recognizes as "abortifacient" only those that
primarily induce abortion or the destruction of a fetus inside the
mother's womb or the prevention of the fertilized ovum to reach
and be implanted in the mother's womb. 172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del
Castillo are well taken. As they pointed out, with the insertion of
the word "primarily," Section 3.0l(a) and G) of the RH-IRR  must
173
be struck down for being ultra vires.
Evidently, with the addition of the word "primarily," in Section
3.0l(a) and G) of the RH-IRR is indeed ultra vires. It contravenes
Section 4(a) of the RH Law and should, therefore, be declared
invalid. There is danger that the insertion of the qualifier
"primarily" will pave the way for the approval of contraceptives
which may harm or destroy the life of the unborn from
conception/fertilization in violation of Article II, Section 12 of the
Constitution. With such qualification in the RH-IRR, it appears to
insinuate that a contraceptive will only be considered as an
"abortifacient" if its sole known effect is abortion or, as pertinent
here, the prevention of the implantation of the fertilized ovum.
For the same reason, this definition of "contraceptive" would
permit the approval of contraceptives which are actually
abortifacients because of their fail-safe mechanism. 174
Also, as discussed earlier, Section 9 calls for the certification by
the FDA that these contraceptives cannot act as abortive. With
this, together with the definition of an abortifacient under Section
4 (a) of the RH Law and its declared policy against abortion, the
undeniable conclusion is that contraceptives to be included in the
PNDFS and the EDL will not only be those contraceptives that do
not have the primary action of causing abortion or the destruction
of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb,
but also those that do not have the secondary action of acting the
same way.
Indeed, consistent with the constitutional policy prohibiting
abortion, and in line with the principle that laws should be
construed in a manner that its constitutionality is sustained, the
RH Law and its implementing rules must be consistent with each
other in prohibiting abortion. Thus, the word " primarily" in Section
3.0l(a) and G) of the RH-IRR should be declared void. To uphold
the validity of Section 3.0l(a) and G) of the RH-IRR and prohibit
only those contraceptives that have the primary effect of being an
abortive would effectively "open the floodgates to the approval of
contraceptives which may harm or destroy the life of the unborn
from conception/fertilization in violation of Article II, Section 12 of
the Constitution."175
To repeat and emphasize, in all cases, the "principle of no
abortion" embodied in the constitutional protection of life must be
upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health
because it requires the inclusion of hormonal contraceptives,
intrauterine devices, injectables and family products and supplies
in the National Drug Formulary and the inclusion of the same in
the regular purchase of essential medicines and supplies of all
national hospitals. Citing various studies on the matter, the
176
petitioners posit that the risk of developing breast and cervical
cancer is greatly increased in women who use oral contraceptives
as compared to women who never use them. They point out that
the risk is decreased when the use of contraceptives is
discontinued. Further, it is contended that the use of combined
oral contraceptive pills is associated with a threefold increased
risk of venous thromboembolism, a twofold increased risk of
ischematic stroke, and an indeterminate effect on risk of
myocardial infarction.  Given the definition of "reproductive
177
health" and "sexual health" under Sections 4(p)  and (w)  of the
178 179
RH Law, the petitioners assert that the assailed legislation only
seeks to ensure that women have pleasurable and satisfying sex
lives.
180
The OSG, however, points out that Section 15, Article II of the
Constitution is not self-executory, it being a mere statement of the
administration's principle and policy. Even if it were self-
executory, the OSG posits that medical authorities refute the
claim that contraceptive pose a danger to the health of women. 181
The Court's Position
A component to the right to life is the constitutional right to health.
In this regard, the Constitution is replete with provisions
protecting and promoting the right to health. Section 15, Article II
of the Constitution provides:
Section 15. The State shall protect and promote the right to
health of the people and instill health consciousness among
them.
A portion of Article XIII also specifically provides for the States'
duty to provide for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and
comprehensive approach to health development which shall
endeavor to make essential goods, health and other social
services available to all the people at affordable cost. There shall
be priority for the needs of the underprivileged, sick, elderly,
disabled, women, and children. The State shall endeavor to
provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective
food and drug regulatory system and undertake appropriate
health, manpower development, and research, responsive to the
country's health needs and problems.
Section 13. The State shall establish a special agency for
disabled person for their rehabilitation, self-development, and
self-reliance, and their integration into the mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade
malpractices and from substandard or hazardous products.
Contrary to the respondent's notion, however, these provisions
are self-executing. Unless the provisions clearly express the
contrary, the provisions of the Constitution should be considered
self-executory. There is no need for legislation to implement
these self-executing provisions.  In Manila Prince Hotel v.
182
GSIS,  it was stated:
183
x x x Hence, unless it is expressly provided that a legislative act is
necessary to enforce a constitutional mandate, the presumption
now is that all provisions of the constitution are self-executing. If
the constitutional provisions are treated as requiring legislation
instead of self-executing, the legislature would have the power to
ignore and practically nullify the mandate of the fundamental law.
This can be cataclysmic. That is why the prevailing view is, as it
has always been, that –
... in case of doubt, the Constitution should be considered self-
executing rather than non-self-executing. . . . Unless the contrary
is clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be
effective. These provisions would be subordinated to the will of
the lawmaking body, which could make them entirely
meaningless by simply refusing to pass the needed implementing
statute. (Emphases supplied)
This notwithstanding, it bears mentioning that the petitioners,
particularly ALFI, do not question contraception and
contraceptives per se.  In fact, ALFI prays that the status quo -
184
under R.A. No. 5921 and R.A. No. 4729, the sale and distribution
of contraceptives are not prohibited when they are dispensed by
a prescription of a duly licensed by a physician - be maintained. 185
The legislative intent in the enactment of the RH Law in this
regard is to leave intact the provisions of R.A. No. 4729. There is
no intention at all to do away with it. It is still a good law and its
requirements are still in to be complied with. Thus, the Court
agrees with the observation of respondent Lagman that the
effectivity of the RH Law will not lead to the unmitigated
proliferation of contraceptives since the sale, distribution and
dispensation of contraceptive drugs and devices will still require
the prescription of a licensed physician. With R.A. No. 4729 in
place, there exists adequate safeguards to ensure the public that
only contraceptives that are safe are made available to the public.
As aptly explained by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives,
the same cannot be dispensed and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale,
Dispensation, and/ or Distribution of Contraceptive Drugs and
Devices" and Republic Act No. 5921 or "An Act Regulating the
Practice of Pharmacy and Setting Standards of Pharmaceutical
Education in the Philippines and for Other Purposes" are not
repealed by the RH Law and the provisions of said Acts are not
inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of
contraceptive drugs and devices are particularly governed by RA
No. 4729 which provides in full:
"Section 1. It shall be unlawful for any person, partnership, or
corporation, to sell, dispense or otherwise distribute whether for
or without consideration, any contraceptive drug or device, unless
such sale, dispensation or distribution is by a duly licensed drug
store or pharmaceutical company and with the prescription of a
qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical,
or portion which is used exclusively for the purpose of
preventing fertilization of the female ovum: and
"(b) "Contraceptive device" is any instrument, device,
material, or agent introduced into the female reproductive
system for the primary purpose of preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the
provisions of this Act shall be punished with a fine of not more
than five hundred pesos or an imprisonment of not less than six
months or more than one year or both in the discretion of the
Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"
111. Of the same import, but in a general manner, Section 25 of
RA No. 5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and
devices. No medicine, pharmaceutical, or drug of whatever nature
and kind or device shall be compounded, dispensed, sold or
resold, or otherwise be made available to the consuming public
except through a prescription drugstore or hospital pharmacy,
duly established in accordance with the provisions of this Act.
112. With all of the foregoing safeguards, as provided for in the
RH Law and other relevant statutes, the pretension of the
petitioners that the RH Law will lead to the unmitigated
proliferation of contraceptives, whether harmful or not, is
completely unwarranted and baseless.  [Emphases in the
186
Original. Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with
Section 10 of the RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning
Supplies. - The DOH shall procure, distribute to LGUs and
monitor the usage of family planning supplies for the whole
country. The DOH shall coordinate with all appropriate local
government bodies to plan and implement this procurement and
distribution program. The supply and budget allotments shall be
based on, among others, the current levels and projections of the
following:
(a) Number of women of reproductive age and couples
who want to space or limit their children;
 (b) Contraceptive prevalence rate, by type of method
used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement,
distribution and monitoring program consistent with the overall
provisions of this Act and the guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and
devices, it must consider the provisions of R.A. No. 4729, which
is still in effect, and ensure that the contraceptives that it will
procure shall be from a duly licensed drug store or
pharmaceutical company and that the actual dispensation of
these contraceptive drugs and devices will done following a
prescription of a qualified medical practitioner. The distribution of
contraceptive drugs and devices must not be indiscriminately
done. The public health must be protected by all possible means.
As pointed out by Justice De Castro, a heavy responsibility and
burden are assumed by the government in supplying
contraceptive drugs and devices, for it may be held accountable
for any injury, illness or loss of life resulting from or incidental to
their use.187
At any rate, it bears pointing out that not a single contraceptive
has yet been submitted to the FDA pursuant to the RH Law. It
behooves the Court to await its determination which drugs or
devices are declared by the FDA as safe, it being the agency
tasked to ensure that food and medicines available to the public
are safe for public consumption. Consequently, the Court finds
that, at this point, the attack on the RH Law on this ground is
premature. Indeed, the various kinds of contraceptives must first
be measured up to the constitutional yardstick as expounded
herein, to be determined as the case presents itself.
At this point, the Court is of the strong view that Congress cannot
legislate that hormonal contraceptives and intra-uterine devices
are safe and non-abortifacient. The first sentence of Section 9
that ordains their inclusion by the National Drug Formulary in the
EDL by using the mandatory "shall" is to be construed as
operative only after they have been tested, evaluated, and
approved by the FDA. The FDA, not Congress, has the expertise
to determine whether a particular hormonal contraceptive or
intrauterine device is safe and non-abortifacient. The provision of
the third sentence concerning the requirements for the inclusion
or removal of a particular family planning supply from the EDL
supports this construction.
Stated differently, the provision in Section 9 covering the inclusion
of hormonal contraceptives, intra-uterine devices, injectables, and
other safe, legal, non-abortifacient and effective family planning
products and supplies by the National Drug Formulary in the EDL
is not mandatory. There must first be a determination by the FDA
that they are in fact safe, legal, non-abortifacient and effective
family planning products and supplies. There can be no
predetermination by Congress that the gamut of contraceptives
are "safe, legal, non-abortifacient and effective" without the
proper scientific examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal
ligation are not covered by the constitutional proscription, there
are those who, because of their religious education and
background, sincerely believe that contraceptives, whether
abortifacient or not, are evil. Some of these are medical
practitioners who essentially claim that their beliefs prohibit not
only the use of contraceptives but also the willing participation
and cooperation in all things dealing with contraceptive use.
Petitioner PAX explained that "contraception is gravely opposed
to marital chastity, it is contrary to the good of the transmission of
life, and to the reciprocal self-giving of the spouses; it harms true
love and denies the sovereign rule of God in the transmission of
Human life." 188
The petitioners question the State-sponsored procurement of
contraceptives, arguing that the expenditure of their taxes on
contraceptives violates the guarantee of religious freedom since
contraceptives contravene their religious beliefs. 189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts
to address religious sentiments by making provisions for a
conscientious objector, the constitutional guarantee is
nonetheless violated because the law also imposes upon the
conscientious objector the duty to refer the patient seeking
reproductive health services to another medical practitioner who
would be able to provide for the patient's needs. For the
petitioners, this amounts to requiring the conscientious objector to
cooperate with the very thing he refuses to do without violating
his/her religious beliefs.
190
They further argue that even if the conscientious objector's duty
to refer is recognized, the recognition is unduly limited, because
although it allows a conscientious objector in Section 23 (a)(3) the
option to refer a patient seeking reproductive health services and
information - no escape is afforded the conscientious objector in
Section 23 (a)(l) and (2), i.e. against a patient seeking
reproductive health procedures. They claim that the right of other
individuals to conscientiously object, such as: a) those working in
public health facilities referred to in Section 7; b) public officers
involved in the implementation of the law referred to in Section
23(b ); and c) teachers in public schools referred to in Section 14
of the RH Law, are also not recognize. 191
Petitioner Echavez and the other medical practitioners
meanwhile, contend that the requirement to refer the matter to
another health care service provider is still considered a
compulsion on those objecting healthcare service providers. They
add that compelling them to do the act against their will violates
the Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of
the law are too secular that they tend to disregard the religion of
Filipinos. Authorizing the use of contraceptives with abortive
effects, mandatory sex education, mandatory pro-bono
reproductive health services to indigents encroach upon the
religious freedom of those upon whom they are required. 192
Petitioner CFC also argues that the requirement for a
conscientious objector to refer the person seeking reproductive
health care services to another provider infringes on one's
freedom of religion as it forces the objector to become an
unwilling participant in the commission of a serious sin under
Catholic teachings. While the right to act on one's belief may be
regulated by the State, the acts prohibited by the RH Law are
passive acts which produce neither harm nor injury to the public. 193
Petitioner CFC adds that the RH Law does not show compelling
state interest to justify regulation of religious freedom because it
mentions no emergency, risk or threat that endangers state
interests. It does not explain how the rights of the people (to
equality, non-discrimination of rights, sustainable human
development, health, education, information, choice and to make
decisions according to religious convictions, ethics, cultural
beliefs and the demands of responsible parenthood) are being
threatened or are not being met as to justify the impairment of
religious freedom.194
Finally, the petitioners also question Section 15 of the RH Law
requiring would-be couples to attend family planning and
responsible parenthood seminars and to obtain a certificate of
compliance. They claim that the provision forces individuals to
participate in the implementation of the RH Law even if it
contravenes their religious beliefs.  As the assailed law dangles
195
the threat of penalty of fine and/or imprisonment in case of non-
compliance with its provisions, the petitioners claim that the RH
Law forcing them to provide, support and facilitate access and
information to contraception against their beliefs must be struck
down as it runs afoul to the constitutional guarantee of religious
freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law
does not provide that a specific mode or type of contraceptives be
used, be it natural or artificial. It neither imposes nor sanctions
any religion or belief.  They point out that the RH Law only seeks
196
to serve the public interest by providing accessible, effective and
quality reproductive health services to ensure maternal and child
health, in line with the State's duty to bring to reality the social
justice health guarantees of the Constitution,  and that what the
197
law only prohibits are those acts or practices, which deprive
others of their right to reproductive health.  They assert that the
198
assailed law only seeks to guarantee informed choice, which is
an assurance that no one will be compelled to violate his religion
against his free will.
199
The respondents add that by asserting that only natural family
planning should be allowed, the petitioners are effectively going
against the constitutional right to religious freedom, the same
right they invoked to assail the constitutionality of the RH
Law.  In other words, by seeking the declaration that the RH Law
200
is unconstitutional, the petitioners are asking that the Court
recognize only the Catholic Church's sanctioned natural family
planning methods and impose this on the entire citizenry. 201
With respect to the duty to refer, the respondents insist that the
same does not violate the constitutional guarantee of religious
freedom, it being a carefully balanced compromise between the
interests of the religious objector, on one hand, who is allowed to
keep silent but is required to refer -and that of the citizen who
needs access to information and who has the right to expect that
the health care professional in front of her will act professionally.
For the respondents, the concession given by the State under
Section 7 and 23(a)(3) is sufficient accommodation to the right to
freely exercise one's religion without unnecessarily infringing on
the rights of others.
202
Whatever burden is placed on the petitioner's religious freedom is
minimal as the duty to refer is limited in duration, location and
impact.203
Regarding mandatory family planning seminars under Section
15 , the respondents claim that it is a reasonable regulation
providing an opportunity for would-be couples to have access to
information regarding parenthood, family planning, breastfeeding
and infant nutrition. It is argued that those who object to any
information received on account of their attendance in the
required seminars are not compelled to accept information given
to them. They are completely free to reject any information they
do not agree with and retain the freedom to decide on matters of
family life without intervention of the State.
204
For their part, respondents De Venecia et al., dispute the notion
that natural family planning is the only method acceptable to
Catholics and the Catholic hierarchy. Citing various studies and
surveys on the matter, they highlight the changing stand of the
Catholic Church on contraception throughout the years and note
the general acceptance of the benefits of contraceptives by its
followers in planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a
heterogeneous society. It is made up of people of diverse ethnic,
cultural and religious beliefs and backgrounds. History has shown
us that our government, in law and in practice, has allowed these
various religious, cultural, social and racial groups to thrive in a
single society together. It has embraced minority groups and is
tolerant towards all - the religious people of different sects and
the non-believers. The undisputed fact is that our people
generally believe in a deity, whatever they conceived Him to be,
and to whom they call for guidance and enlightenment in crafting
our fundamental law. Thus, the preamble of the present
Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty
God, in order to build a just and humane society, and establish a
Government that shall embody our ideals and aspirations,
promote the common good, conserve and develop our patrimony,
and secure to ourselves and our posterity, the blessings of
independence and democracy under the rule of law and a regime
of truth, justice, freedom, love, equality, and peace, do ordain and
promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God "
manifested their spirituality innate in our nature and
consciousness as a people, shaped by tradition and historical
experience. As this is embodied in the preamble, it means that
the State recognizes with respect the influence of religion in so far
as it instills into the mind the purest principles of
morality.  Moreover, in recognition of the contributions of religion
205
to society, the 1935, 1973 and 1987 constitutions contain
benevolent and accommodating provisions towards religions such
as tax exemption of church property, salary of religious officers in
government institutions, and optional religious instructions in
public schools.
The Framers, however, felt the need to put up a strong barrier so
that the State would not encroach into the affairs of the church,
and vice-versa. The principle of separation of Church and State
was, thus, enshrined in Article II, Section 6 of the 1987
Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on
mutual respect.  Generally, the State cannot meddle in the
1âwphi1
internal affairs of the church, much less question its faith and
dogmas or dictate upon it. It cannot favor one religion and
discriminate against another. On the other hand, the church
cannot impose its beliefs and convictions on the State and the
rest of the citizenry. It cannot demand that the nation follow its
beliefs, even if it sincerely believes that they are good for the
country.
Consistent with the principle that not any one religion should ever
be preferred over another, the Constitution in the above-cited
provision utilizes the term "church" in its generic sense, which
refers to a temple, a mosque, an iglesia, or any other house of
God which metaphorically symbolizes a religious organization.
Thus, the "Church" means the religious congregations
collectively.
Balancing the benefits that religion affords and the need to
provide an ample barrier to protect the State from the pursuit of
its secular objectives, the Constitution lays down the following
mandate in Article III, Section 5 and Article VI, Section 29 (2), of
the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of
religion, or prohibiting the free exercise thereof. The free exercise
and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. No
religious test shall be required for the exercise of civil or political
rights.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid,
or employed, directly or indirectly, for the use, benefit, or support
of any sect, church, denomination, sectarian institution, or system
of religion, or of any priest, preacher, minister, other religious
teacher, or dignitary as such, except when such priest, preacher,
minister, or dignitary is assigned to the armed forces, or to any
penal institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom
provides two guarantees: the Establishment Clause and the Free
Exercise Clause.
The establishment clause "principally prohibits the State from
sponsoring any religion or favoring any religion as against other
religions. It mandates a strict neutrality in affairs among religious
groups."  Essentially, it prohibits the establishment of a state
206
religion and the use of public resources for the support or
prohibition of a religion.
On the other hand, the basis of the free exercise clause is the
respect for the inviolability of the human conscience.  Under this
207
part of religious freedom guarantee, the State is prohibited from
unduly interfering with the outside manifestations of one's belief
and faith.  Explaining the concept of religious freedom, the Court,
208
in Victoriano v. Elizalde Rope Workers Union  wrote:
209
The constitutional provisions not only prohibits legislation for the
support of any religious tenets or the modes of worship of any
sect, thus forestalling compulsion by law of the acceptance of any
creed or the practice of any form of worship (U.S. Ballard, 322
U.S. 78, 88 L. ed. 1148, 1153), but also assures the free exercise
of one's chosen form of religion within limits of utmost amplitude.
It has been said that the religion clauses of the Constitution are
all designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience
directs, to profess his beliefs, and to live as he believes he ought
to live, consistent with the liberty of others and with the common
good. Any legislation whose effect or purpose is to impede the
observance of one or all religions, or to discriminate invidiously
between the religions, is invalid, even though the burden may be
characterized as being only indirect. (Sherbert v. Verner, 374
U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state
regulates conduct by enacting, within its power, a general law
which has for its purpose and effect to advance the state's
secular goals, the statute is valid despite its indirect burden on
religious observance, unless the state can accomplish its purpose
without imposing such burden. (Braunfeld v. Brown, 366 U.S.
599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366
U.S. 420, 444-5 and 449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed
to serve contradictory purposes. They have a single goal-to
promote freedom of individual religious beliefs and practices. In
simplest terms, the free exercise clause prohibits government
from inhibiting religious beliefs with penalties for religious beliefs
and practice, while the establishment clause prohibits
government from inhibiting religious belief with rewards for
religious beliefs and practices. In other words, the two religion
clauses were intended to deny government the power to use
either the carrot or the stick to influence individual religious beliefs
and practices. 210
Corollary to the guarantee of free exercise of one's religion is the
principle that the guarantee of religious freedom is comprised of
two parts: the freedom to believe, and the freedom to act on one's
belief. The first part is absolute. As explained in Gerona v.
Secretary of Education: 211
The realm of belief and creed is infinite and limitless bounded
only by one's imagination and thought. So is the freedom of
belief, including religious belief, limitless and without bounds. One
may believe in most anything, however strange, bizarre and
unreasonable the same may appear to others, even heretical
when weighed in the scales of orthodoxy or doctrinal standards.
But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel.
212
The second part however, is limited and subject to the awesome
power of the State and can be enjoyed only with proper regard to
the rights of others. It is "subject to regulation where the belief is
translated into external acts that affect the public welfare."213
Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the
State, the Court adheres to the doctrine of benevolent neutrality.
This has been clearly decided by the Court in Estrada v. Escritor,
(Escritor)  where it was stated "that benevolent neutrality-
214
accommodation, whether mandatory or permissive, is the spirit,
intent and framework underlying the Philippine Constitution."  In 215
the same case, it was further explained that"
The benevolent neutrality theory believes that with respect to
these governmental actions, accommodation of religion may be
allowed, not to promote the government's favored form of religion,
but to allow individuals and groups to exercise their religion
without hindrance. "The purpose of accommodation is to remove
a burden on, or facilitate the exercise of, a person's or institution's
religion."  "What is sought under the theory of accommodation is
216
not a declaration of unconstitutionality of a facially neutral law, but
an exemption from its application or its 'burdensome effect,'
whether by the legislature or the courts." 217
In ascertaining the limits of the exercise of religious freedom, the
compelling state interest test is proper. Underlying the
218
compelling state interest test is the notion that free exercise is a
fundamental right and that laws burdening it should be subject to
strict scrutiny.  In Escritor, it was written:
219
Philippine jurisprudence articulates several tests to determine
these limits. Beginning with the first case on the Free Exercise
Clause, American Bible Society, the Court mentioned the "clear
and present danger" test but did not employ it. Nevertheless, this
test continued to be cited in subsequent cases on religious liberty.
The Gerona case then pronounced that the test of permissibility
of religious freedom is whether it violates the established
institutions of society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine that a
law of general applicability may burden religious exercise
provided the law is the least restrictive means to accomplish the
goal of the law. The case also used, albeit inappropriately, the
"compelling state interest" test. After Victoriano , German went
back to the Gerona rule. Ebralinag then employed the "grave and
immediate danger" test and overruled the Gerona test. The fairly
recent case of Iglesia ni Cristo went back to the " clear and
present danger" test in the maiden case of A merican Bible
Society. Not surprisingly, all the cases which employed the "clear
and present danger" or "grave and immediate danger" test
involved, in one form or another, religious speech as this test is
often used in cases on freedom of expression. On the other hand,
the Gerona and German cases set the rule that religious freedom
will not prevail over established institutions of society and law.
Gerona, however, which was the authority cited by German has
been overruled by Ebralinag which employed the "grave and
immediate danger" test . Victoriano was the only case that
employed the "compelling state interest" test, but as explained
previously, the use of the test was inappropriate to the facts of the
case.
The case at bar does not involve speech as in A merican Bible
Society, Ebralinag and Iglesia ni Cristo where the "clear and
present danger" and "grave and immediate danger" tests were
appropriate as speech has easily discernible or immediate
effects. The Gerona and German doctrine, aside from having
been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to
Victoriano, the present case involves purely conduct arising from
religious belief. The "compelling state interest" test is proper
where conduct is involved for the whole gamut of human conduct
has different effects on the state's interests: some effects may be
immediate and short-term while others delayed and far-reaching.
A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore
necessary. However, not any interest of the state would suffice to
prevail over the right to religious freedom as this is a fundamental
right that enjoys a preferred position in the hierarchy of rights -
"the most inalienable and sacred of all human rights", in the
words of Jefferson. This right is sacred for an invocation of the
Free Exercise Clause is an appeal to a higher sovereignty. The
entire constitutional order of limited government is premised upon
an acknowledgment of such higher sovereignty, thus the Filipinos
implore the "aid of Almighty God in order to build a just and
humane society and establish a government." As held in
Sherbert, only the gravest abuses, endangering paramount
interests can limit this fundamental right. A mere balancing of
interests which balances a right with just a colorable state interest
is therefore not appropriate. Instead, only a compelling interest of
the state can prevail over the fundamental right to religious
liberty. The test requires the state to carry a heavy burden, a
compelling one, for to do otherwise would allow the state to batter
religion, especially the less powerful ones until they are
destroyed. In determining which shall prevail between the state's
interest and religious liberty, reasonableness shall be the guide.
The "compelling state interest" serves the purpose of revering
religious liberty while at the same time affording protection to the
paramount interests of the state. This was the test used in
Sherbert which involved conduct, i.e. refusal to work on
Saturdays. In the end, the "compelling state interest" test, by
upholding the paramount interests of the state, seeks to protect
the very state, without which, religious liberty will not be
preserved. [Emphases in the original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court to
determine whether the use of contraceptives or one's participation
in the support of modem reproductive health measures is moral
from a religious standpoint or whether the same is right or wrong
according to one's dogma or belief. For the Court has declared
that matters dealing with "faith, practice, doctrine, form of
worship, ecclesiastical law, custom and rule of a church ... are
unquestionably ecclesiastical matters which are outside the
province of the civil courts."  The jurisdiction of the Court extends
220
only to public and secular morality. Whatever pronouncement the
Court makes in the case at bench should be understood only in
this realm where it has authority. Stated otherwise, while the
Court stands without authority to rule on ecclesiastical matters, as
vanguard of the Constitution, it does have authority to determine
whether the RH Law contravenes the guarantee of religious
freedom.
At first blush, it appears that the RH Law recognizes and respects
religion and religious beliefs and convictions. It is replete with
assurances the no one can be compelled to violate the tenets of
his religion or defy his religious convictions against his free will.
Provisions in the RH Law respecting religious freedom are the
following:
1. The State recognizes and guarantees the human rights of all
persons including their right to equality and nondiscrimination of
these rights, the right to sustainable human development, the
right to health which includes reproductive health, the right to
education and information, and the right to choose and make
decisions for themselves in accordance with their religious
convictions, ethics, cultural beliefs, and the demands of
responsible parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social
institution and the foundation of the family which in turn is the
foundation of the nation. Pursuant thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their
religious convictions and the demands of responsible
parenthood." [Section 2, Declaration of Policy]
3. The State shall promote and provide information and access,
without bias, to all methods of family planning, including effective
natural and modern methods which have been proven medically
safe, legal, non-abortifacient, and effective in accordance with
scientific and evidence-based medical research standards such
as those registered and approved by the FDA for the poor and
marginalized as identified through the NHTS-PR and other
government measures of identifying marginalization: Provided,
That the State shall also provide funding support to promote
modern natural methods of family planning, especially the Billings
Ovulation Method, consistent with the needs of acceptors and
their religious convictions. [Section 3(e), Declaration of Policy]
4. The State shall promote programs that: (1) enable individuals
and couples to have the number of children they desire with due
consideration to the health, particularly of women, and the
resources available and affordable to them and in accordance
with existing laws, public morals and their religious convictions.
[Section 3CDJ
5. The State shall respect individuals' preferences and choice of
family planning methods that are in accordance with their
religious convictions and cultural beliefs, taking into consideration
the State's obligations under various human rights instruments.
[Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) ,
women's and people's organizations, civil society, faith-based
organizations, the religious sector and communities is crucial to
ensure that reproductive health and population and development
policies, plans, and programs will address the priority needs of
women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent
to respond to the needs and aspirations of the family and
children. It is likewise a shared responsibility between parents to
determine and achieve the desired number of children, spacing
and timing of their children according to their own family life
aspirations, taking into account psychological preparedness,
health status, sociocultural and economic concerns consistent
with their religious convictions. [Section 4(v)] (Emphases
supplied)
While the Constitution prohibits abortion, laws were enacted
allowing the use of contraceptives. To some medical
practitioners, however, the whole idea of using contraceptives is
an anathema. Consistent with the principle of benevolent
neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what
the government can do with religion, it also limits what religious
sects can or cannot do with the government. They can neither
cause the government to adopt their particular doctrines as policy
for everyone, nor can they not cause the government to restrict
other groups. To do so, in simple terms, would cause the State to
adhere to a particular religion and, thus, establishing a state
religion.
Consequently, the petitioners are misguided in their supposition
that the State cannot enhance its population control program
through the RH Law simply because the promotion of
contraceptive use is contrary to their religious beliefs. Indeed, the
State is not precluded to pursue its legitimate secular objectives
without being dictated upon by the policies of any one religion.
One cannot refuse to pay his taxes simply because it will cloud
his conscience. The demarcation line between Church and State
demands that one render unto Caesar the things that are
Caesar's and unto God the things that are God's. 221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote
reproductive health manifestly respects diverse religious beliefs in
line with the Non-Establishment Clause, the same conclusion
cannot be reached with respect to Sections 7, 23 and 24 thereof.
The said provisions commonly mandate that a hospital or a
medical practitioner to immediately refer a person seeking health
care and services under the law to another accessible healthcare
provider despite their conscientious objections based on religious
or ethical beliefs.
In a situation where the free exercise of religion is allegedly
burdened by government legislation or practice, the compelling
state interest test in line with the Court's espousal of the Doctrine
of Benevolent Neutrality in Escritor, finds application. In this case,
the conscientious objector's claim to religious freedom would
warrant an exemption from obligations under the RH Law, unless
the government succeeds in demonstrating a more compelling
state interest in the accomplishment of an important secular
objective. Necessarily so, the plea of conscientious objectors for
exemption from the RH Law deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious
objector's right to religious freedom has been burdened. As in
Escritor, there is no doubt that an intense tug-of-war plagues a
conscientious objector. One side coaxes him into obedience to
the law and the abandonment of his religious beliefs, while the
other entices him to a clean conscience yet under the pain of
penalty. The scenario is an illustration of the predicament of
medical practitioners whose religious beliefs are incongruent with
what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by
the RH Law violates the religious belief and conviction of a
conscientious objector. Once the medical practitioner, against his
will, refers a patient seeking information on modem reproductive
health products, services, procedures and methods, his
conscience is immediately burdened as he has been compelled
to perform an act against his beliefs. As Commissioner Joaquin
A. Bernas (Commissioner Bernas) has written, "at the basis of the
free exercise clause is the respect for the inviolability of the
human conscience. 222
Though it has been said that the act of referral is an opt-out
clause, it is, however, a false compromise because it makes pro-
life health providers complicit in the performance of an act that
they find morally repugnant or offensive. They cannot, in
conscience, do indirectly what they cannot do directly. One may
not be the principal, but he is equally guilty if he abets the
offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily
intertwined with the right to free speech, it being an
externalization of one's thought and conscience. This in turn
includes the right to be silent. With the constitutional guarantee of
religious freedom follows the protection that should be afforded to
individuals in communicating their beliefs to others as well as the
protection for simply being silent. The Bill of Rights guarantees
the liberty of the individual to utter what is in his mind and the
liberty not to utter what is not in his mind.  While the RH Law
223
seeks to provide freedom of choice through informed consent,
freedom of choice guarantees the liberty of the religious
conscience and prohibits any degree of compulsion or burden,
whether direct or indirect, in the practice of one's religion.
224
In case of conflict between the religious beliefs and moral
convictions of individuals, on one hand, and the interest of the
State, on the other, to provide access and information on
reproductive health products, services, procedures and methods
to enable the people to determine the timing, number and spacing
of the birth of their children, the Court is of the strong view that
the religious freedom of health providers, whether public or
private, should be accorded primacy. Accordingly, a
conscientious objector should be exempt from compliance with
the mandates of the RH Law. If he would be compelled to act
contrary to his religious belief and conviction, it would be violative
of "the principle of non-coercion" enshrined in the constitutional
right to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the
Court of Session, found in the case of Doogan and Wood v. NHS
Greater Glasgow and Clyde Health Board,  that the midwives
225
claiming to be conscientious objectors under the provisions of
Scotland's Abortion Act of 1967, could not be required to
delegate, supervise or support staff on their labor ward who were
involved in abortions.  The Inner House stated "that if
226
'participation' were defined according to whether the person was
taking part 'directly' or ' indirectly' this would actually mean more
complexity and uncertainty." 227
While the said case did not cover the act of referral, the
applicable principle was the same - they could not be forced to
assist abortions if it would be against their conscience or will.
Institutional Health Providers
The same holds true with respect to non-maternity specialty
hospitals and hospitals owned and operated by a religious group
and health care service providers. Considering that Section 24 of
the RH Law penalizes such institutions should they fail or refuse
to comply with their duty to refer under Section 7 and Section
23(a)(3), the Court deems that it must be struck down for being
violative of the freedom of religion. The same applies to Section
23(a)(l) and (a)(2) in relation to Section 24, considering that in the
dissemination of information regarding programs and services
and in the performance of reproductive health procedures, the
religious freedom of health care service providers should be
respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v.
Office of the Executive Secretary  it was stressed:
228
Freedom of religion was accorded preferred status by the framers
of our fundamental law. And this Court has consistently affirmed
this preferred status, well aware that it is "designed to protect the
broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to
live as he believes he ought to live, consistent with the liberty of
others and with the common good." 10
The Court is not oblivious to the view that penalties provided by
law endeavour to ensure compliance. Without set consequences
for either an active violation or mere inaction, a law tends to be
toothless and ineffectual. Nonetheless, when what is bartered for
an effective implementation of a law is a constitutionally-protected
right the Court firmly chooses to stamp its disapproval. The
punishment of a healthcare service provider, who fails and/or
refuses to refer a patient to another, or who declines to perform
reproductive health procedure on a patient because incompatible
religious beliefs, is a clear inhibition of a constitutional guarantee
which the Court cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city
or municipal health officers, chiefs of hospital, head nurses,
supervising midwives, among others, who by virtue of their office
are specifically charged with the duty to implement the provisions
of the RPRH Act and these Rules, cannot be considered as
conscientious objectors.
This is discriminatory and violative of the equal protection clause.
The conscientious objection clause should be equally protective
of the religious belief of public health officers. There is no
perceptible distinction why they should not be considered exempt
from the mandates of the law. The protection accorded to other
conscientious objectors should equally apply to all medical
practitioners without distinction whether they belong to the public
or private sector. After all, the freedom to believe is intrinsic in
every individual and the protective robe that guarantees its free
exercise is not taken off even if one acquires employment in the
government.
It should be stressed that intellectual liberty occupies a place
inferior to none in the hierarchy of human values. The mind must
be free to think what it wills, whether in the secular or religious
sphere, to give expression to its beliefs by oral discourse or
through the media and, thus, seek other candid views in
occasions or gatherings or in more permanent aggrupation.
Embraced in such concept then are freedom of religion, freedom
of speech, of the press, assembly and petition, and freedom of
association.229
The discriminatory provision is void not only because no such
exception is stated in the RH Law itself but also because it is
violative of the equal protection clause in the Constitution.
Quoting respondent Lagman, if there is any conflict between the
RH-IRR and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-
Intervention on page 52, you mentioned RH Law is replete with
provisions in upholding the freedom of religion and respecting
religious convictions. Earlier, you affirmed this with qualifications.
Now, you have read, I presumed you have read the IRR-
Implementing Rules and Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR
and I have not thoroughly dissected the nuances of the
provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot
find in the RH Law. But in the IRR it says: " .... skilled health
professionals such as provincial, city or municipal health officers,
chief of hospitals, head nurses, supervising midwives, among
others, who by virtue of their office are specifically charged with
the duty to implement the provisions of the RPRH Act and these
Rules, cannot be considered as conscientious objectors." Do you
agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private
practitioners who can be conscientious objectors, skilled health
professionals cannot be considered conscientious objectors. Do
you agree with this? Is this not against the constitutional right to
the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law,
the law must prevail.230
Compelling State Interest
The foregoing discussion then begets the question on whether
the respondents, in defense of the subject provisions, were able
to: 1] demonstrate a more compelling state interest to restrain
conscientious objectors in their choice of services to render; and
2] discharge the burden of proof that the obligatory character of
the law is the least intrusive means to achieve the objectives of
the law.
Unfortunately, a deep scrutiny of the respondents' submissions
proved to be in vain. The OSG was curiously silent in the
establishment of a more compelling state interest that would
rationalize the curbing of a conscientious objector's right not to
adhere to an action contrary to his religious convictions. During
the oral arguments, the OSG maintained the same silence and
evasion. The Transcripts of the Stenographic Notes disclose the
following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What
is the compelling State interest in imposing this duty to refer to a
conscientious objector which refuses to do so because of his
religious belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard is a
compelling State interest, this is an ordinary health legislation
involving professionals. This is not a free speech matter or a pure
free exercise matter. This is a regulation by the State of the
relationship between medical doctors and their patients. 231
Resultantly, the Court finds no compelling state interest which
would limit the free exercise clause of the conscientious
objectors, however few in number. Only the prevention of an
immediate and grave danger to the security and welfare of the
community can justify the infringement of religious freedom. If the
government fails to show the seriousness and immediacy of the
threat, State intrusion is constitutionally unacceptable.
232
Freedom of religion means more than just the freedom to believe.
It also means the freedom to act or not to act according to what
one believes. And this freedom is violated when one is compelled
to act against one's belief or is prevented from acting according to
one's belief.
233
Apparently, in these cases, there is no immediate danger to the
life or health of an individual in the perceived scenario of the
subject provisions. After all, a couple who plans the timing,
number and spacing of the birth of their children refers to a future
event that is contingent on whether or not the mother decides to
adopt or use the information, product, method or supply given to
her or whether she even decides to become pregnant at all. On
the other hand, the burden placed upon those who object to
contraceptive use is immediate and occurs the moment a patient
seeks consultation on reproductive health matters.
Moreover, granting that a compelling interest exists to justify the
infringement of the conscientious objector's religious freedom, the
respondents have failed to demonstrate "the gravest abuses,
endangering paramount interests" which could limit or override a
person's fundamental right to religious freedom. Also, the
respondents have not presented any government effort exerted to
show that the means it takes to achieve its legitimate state
objective is the least intrusive means.  Other than the assertion
234
that the act of referring would only be momentary, considering
that the act of referral by a conscientious objector is the very
action being contested as violative of religious freedom, it
behooves the respondents to demonstrate that no other means
can be undertaken by the State to achieve its objective without
violating the rights of the conscientious objector. The health
concerns of women may still be addressed by other practitioners
who may perform reproductive health-related procedures with
open willingness and motivation. Suffice it to say, a person who is
forced to perform an act in utter reluctance deserves the
protection of the Court as the last vanguard of constitutional
freedoms.
At any rate, there are other secular steps already taken by the
Legislature to ensure that the right to health is protected.
Considering other legislations as they stand now, R.A . No. 4 729
or the Contraceptive Act, R.A. No. 6365 or "The Population Act of
the Philippines" and R.A. No. 9710, otherwise known as "The
Magna Carta of Women," amply cater to the needs of women in
relation to health services and programs. The pertinent provision
of Magna Carta on comprehensive health services and programs
for women, in fact, reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health
Services. - The State shall, at all times, provide for a
comprehensive, culture-sensitive, and gender-responsive health
services and programs covering all stages of a woman's life cycle
and which addresses the major causes of women's mortality and
morbidity: Provided, That in the provision for comprehensive
health services, due respect shall be accorded to women's
religious convictions, the rights of the spouses to found a family in
accordance with their religious convictions, and the demands of
responsible parenthood, and the right of women to protection
from hazardous drugs, devices, interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal
services to address pregnancy and infant health
and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective
methods of family planning;
(4) Family and State collaboration in youth
sexuality education and health services without
prejudice to the primary right and duty of parents
to educate their children;
(5) Prevention and management of reproductive
tract infections, including sexually transmitted
diseases, HIV, and AIDS;
(6) Prevention and management of reproductive
tract cancers like breast and cervical cancers, and
other gynecological conditions and disorders;
(7) Prevention of abortion and management of
pregnancy-related complications;
(8) In cases of violence against women and
children, women and children victims and
survivors shall be provided with comprehensive
health services that include psychosocial,
therapeutic, medical, and legal interventions and
assistance towards healing, recovery, and
empowerment;
(9) Prevention and management of infertility and
sexual dysfunction pursuant to ethical norms and
medical standards;
 (10) Care of the elderly women beyond their child-
bearing years; and
(11) Management, treatment, and intervention of
mental health problems of women and girls. In
addition, healthy lifestyle activities are encouraged
and promoted through programs and projects as
strategies in the prevention of diseases.
(b) Comprehensive Health Information and Education. - The State
shall provide women in all sectors with appropriate, timely,
complete, and accurate information and education on all the
above-stated aspects of women's health in government education
and training programs, with due regard to the following:
(1) The natural and primary right and duty of
parents in the rearing of the youth and the
development of moral character and the right of
children to be brought up in an atmosphere of
morality and rectitude for the enrichment and
strengthening of character;
(2) The formation of a person's sexuality that
affirms human dignity; and
(3) Ethical, legal, safe, and effective family
planning methods including fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually
replied that the compelling state interest was "Fifteen maternal
deaths per day, hundreds of thousands of unintended
pregnancies, lives changed, x x x."  He, however, failed to
235
substantiate this point by concrete facts and figures from
reputable sources.
The undisputed fact, however, is that the World Health
Organization reported that the Filipino maternal mortality rate
dropped to 48 percent from 1990 to 2008,   although there was
236
still no RH Law at that time. Despite such revelation, the
proponents still insist that such number of maternal deaths
constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery
of social healthcare programs for Filipino women, they could not
be solved by a measure that puts an unwarrantable stranglehold
on religious beliefs in exchange for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid
exception set forth in the law. While generally healthcare service
providers cannot be forced to render reproductive health care
procedures if doing it would contravene their religious beliefs, an
exception must be made in life-threatening cases that require the
performance of emergency procedures. In these situations, the
right to life of the mother should be given preference, considering
that a referral by a medical practitioner would amount to a denial
of service, resulting to unnecessarily placing the life of a mother
in grave danger. Thus, during the oral arguments, Atty. Liban,
representing CFC, manifested: "the forced referral clause that we
are objecting on grounds of violation of freedom of religion does
not contemplate an emergency." 237
In a conflict situation between the life of the mother and the life of
a child, the doctor is morally obliged always to try to save both
lives. If, however, it is impossible, the resulting death to one
should not be deliberate. Atty. Noche explained:
Principle of Double-Effect. - May we please remind the principal
author of the RH Bill in the House of Representatives of the
principle of double-effect wherein intentional harm on the life of
either the mother of the child is never justified to bring about a
"good" effect. In a conflict situation between the life of the child
and the life of the mother, the doctor is morally obliged always to
try to save both lives. However, he can act in favor of one (not
necessarily the mother) when it is medically impossible to save
both, provided that no direct harm is intended to the other. If the
above principles are observed, the loss of the child's life or the
mother's life is not intentional and, therefore, unavoidable. Hence,
the doctor would not be guilty of abortion or murder. The mother
is never pitted against the child because both their lives are
equally valuable. 238
Accordingly, if it is necessary to save the life of a mother,
procedures endangering the life of the child may be resorted to
even if is against the religious sentiments of the medical
practitioner. As quoted above, whatever burden imposed upon a
medical practitioner in this case would have been more than
justified considering the life he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15  as a condition
239
for the issuance of a marriage license, the Court finds the same
to be a reasonable exercise of police power by the government. A
cursory reading of the assailed provision bares that the religious
freedom of the petitioners is not at all violated. All the law requires
is for would-be spouses to attend a seminar on parenthood,
family planning breastfeeding and infant nutrition. It does not
even mandate the type of family planning methods to be included
in the seminar, whether they be natural or artificial. As correctly
noted by the OSG, those who receive any information during their
attendance in the required seminars are not compelled to accept
the information given to them, are completely free to reject the
information they find unacceptable, and retain the freedom to
decide on matters of family life without the intervention of the
State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i)
thereof violates the provisions of the Constitution by intruding into
marital privacy and autonomy. It argues that it cultivates disunity
and fosters animosity in the family rather than promote its
solidarity and total development. 240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the
family as it is the basic social institution. In fact, one article, Article
XV, is devoted entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the
foundation of the nation. Accordingly, it shall strengthen its
solidarity and actively promote its total development.
Section 2. Marriage, as an inviolable social institution, is the
foundation of the family and shall be protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their
religious convictions and the demands of responsible parenthood;
The right of children to assistance, including proper care and
nutrition, and special protection from all forms of neglect, abuse,
cruelty, exploitation and other conditions prejudicial to their
development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the
planning and implementation of policies and programs that affect
them.
In this case, the RH Law, in its not-so-hidden desire to control
population growth, contains provisions which tend to wreck the
family as a solid social institution. It bars the husband and/or the
father from participating in the decision making process regarding
their common future progeny. It likewise deprives the parents of
their authority over their minor daughter simply because she is
already a parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private,
who shall: ...
(2) refuse to perform legal and medically-safe reproductive health
procedures on any person of legal age on the ground of lack of
consent or authorization of the following persons in the following
instances:
(i) Spousal consent in case of married persons: provided, That in
case of disagreement, the decision of the one undergoing the
procedures shall prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like
tubal litigation and vasectomy which, by their very nature, should
require mutual consent and decision between the husband and
the wife as they affect issues intimately related to the founding of
a family. Section 3, Art. XV of the Constitution espouses that the
State shall defend the "right of the spouses to found a family."
One person cannot found a family. The right, therefore, is shared
by both spouses. In the same Section 3, their right "to participate
in the planning and implementation of policies and programs that
affect them " is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual
decision-making. By giving absolute authority to the spouse who
would undergo a procedure, and barring the other spouse from
participating in the decision would drive a wedge between the
husband and wife, possibly result in bitter animosity, and
endanger the marriage and the family, all for the sake of reducing
the population. This would be a marked departure from the policy
of the State to protect marriage as an inviolable social
institution.
241
Decision-making involving a reproductive health procedure is a
private matter which belongs to the couple, not just one of them.
Any decision they would reach would affect their future as a
family because the size of the family or the number of their
children significantly matters. The decision whether or not to
undergo the procedure belongs exclusively to, and shared by,
both spouses as one cohesive unit as they chart their own
destiny. It is a constitutionally guaranteed private right. Unless it
prejudices the State, which has not shown any compelling
interest, the State should see to it that they chart their destiny
together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of
R.A. No. 9710, otherwise known as the "Magna Carta for
Women," provides that women shall have equal rights in all
matters relating to marriage and family relations, including the
joint decision on the number and spacing of their children.
Indeed, responsible parenthood, as Section 3(v) of the RH Law
states, is a shared responsibility between parents. Section 23(a)
(2)(i) of the RH Law should not be allowed to betray the
constitutional mandate to protect and strengthen the family by
giving to only one spouse the absolute authority to decide
whether to undergo reproductive health procedure. 242
The right to chart their own destiny together falls within the
protected zone of marital privacy and such state intervention
would encroach into the zones of spousal privacy guaranteed by
the Constitution. In our jurisdiction, the right to privacy was first
recognized in Marje v. Mutuc,  where the Court, speaking
243
through Chief Justice Fernando, held that "the right to privacy as
such is accorded recognition independently of its identification
with liberty; in itself, it is fully deserving of constitutional
protection."  Marje adopted the ruling of the US Supreme Court
244
in Griswold v. Connecticut,  where Justice William O. Douglas
245
wrote:
We deal with a right of privacy older than the Bill of Rights -older
than our political parties, older than our school system. Marriage
is a coming together for better or for worse, hopefully enduring,
and intimate to the degree of being sacred. It is an association
that promotes a way of life, not causes; a harmony in living, not
political faiths; a bilateral loyalty, not commercial or social
projects. Yet it is an association for as noble a purpose as any
involved in our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made
the use of contraceptives a criminal offense on the ground of its
amounting to an unconstitutional invasion of the right to privacy of
married persons. Nevertheless, it recognized the zone of privacy
rightfully enjoyed by couples. Justice Douglas in Grisworld wrote
that "specific guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that help give them
life and substance. Various guarantees create zones of privacy."
At any rate, in case of conflict between the couple, the courts will
decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases
where the minor, who will be undergoing a procedure, is already
a parent or has had a miscarriage. Section 7 of the RH law
provides:
SEC. 7. Access to Family Planning. – x x x.
No person shall be denied information and access to family
planning services, whether natural or artificial: Provided, That
minors will not be allowed access to modern methods of family
planning without written consent from their parents or guardian/s
except when the minor is already a parent or has had a
miscarriage.
There can be no other interpretation of this provision except that
when a minor is already a parent or has had a miscarriage, the
parents are excluded from the decision making process of the
minor with regard to family planning. Even if she is not yet
emancipated, the parental authority is already cut off just because
there is a need to tame population growth.
It is precisely in such situations when a minor parent needs the
comfort, care, advice, and guidance of her own parents. The
State cannot replace her natural mother and father when it comes
to providing her needs and comfort. To say that their consent is
no longer relevant is clearly anti-family. It does not promote unity
in the family. It is an affront to the constitutional mandate to
protect and strengthen the family as an inviolable social
institution.
More alarmingly, it disregards and disobeys the constitutional
246
mandate that "the natural and primary right and duty of parents in
the rearing of the youth for civic efficiency and the development of
moral character shall receive the support of the Government."  In247
this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify
the right of parents. It imports the assertion that the right of
parents is superior to that of the State.  [Emphases supplied]
248
To insist on a rule that interferes with the right of parents to
exercise parental control over their minor-child or the right of the
spouses to mutually decide on matters which very well affect the
very purpose of marriage, that is, the establishment of conjugal
and family life, would result in the violation of one's privacy with
respect to his family. It would be dismissive of the unique and
strongly-held Filipino tradition of maintaining close family ties and
violative of the recognition that the State affords couples entering
into the special contract of marriage to as one unit in forming the
foundation of the family and society.
The State cannot, without a compelling state interest, take over
the role of parents in the care and custody of a minor child,
whether or not the latter is already a parent or has had a
miscarriage. Only a compelling state interest can justify a state
substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception
provided in the second paragraph of Section 7 or with respect to
the consenting spouse under Section 23(a)(2)(i), a distinction
must be made. There must be a differentiation between access to
information about family planning services, on one hand, and
access to the reproductive health procedures and modern family
planning methods themselves, on the other. Insofar as access to
information is concerned, the Court finds no constitutional
objection to the acquisition of information by the minor referred to
under the exception in the second paragraph of Section 7 that
would enable her to take proper care of her own body and that of
her unborn child. After all, Section 12, Article II of the Constitution
mandates the State to protect both the life of the mother as that of
the unborn child. Considering that information to enable a person
to make informed decisions is essential in the protection and
maintenance of ones' health, access to such information with
respect to reproductive health must be allowed. In this situation,
the fear that parents might be deprived of their parental control is
unfounded because they are not prohibited to exercise parental
guidance and control over their minor child and assist her in
deciding whether to accept or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must
be made in life-threatening cases that require the performance of
emergency procedures. In such cases, the life of the minor who
has already suffered a miscarriage and that of the spouse should
not be put at grave risk simply for lack of consent. It should be
emphasized that no person should be denied the appropriate
medical care urgently needed to preserve the primordial right,
that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)
(ii)  should be struck down. By effectively limiting the requirement
249
of parental consent to "only in elective surgical procedures," it
denies the parents their right of parental authority in cases where
what is involved are "non-surgical procedures." Save for the two
exceptions discussed above, and in the case of an abused child
as provided in the first sentence of Section 23(a)(2)(ii), the
parents should not be deprived of their constitutional right of
parental authority. To deny them of this right would be an affront
to the constitutional mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section
24 thereof, mandating the teaching of Age-and Development-
Appropriate Reproductive Health Education under threat of fine
and/or imprisonment violates the principle of academic freedom .
According to the petitioners, these provisions effectively force
educational institutions to teach reproductive health education
even if they believe that the same is not suitable to be taught to
their students.  Citing various studies conducted in the United
250
States and statistical data gathered in the country, the petitioners
aver that the prevalence of contraceptives has led to an increase
of out-of-wedlock births; divorce and breakdown of families; the
acceptance of abortion and euthanasia; the "feminization of
poverty"; the aging of society; and promotion of promiscuity
among the youth. 251
At this point, suffice it to state that any attack on the validity of
Section 14 of the RH Law is premature because the Department
of Education, Culture and Sports has yet to formulate a
curriculum on age-appropriate reproductive health education.
One can only speculate on the content, manner and medium of
instruction that will be used to educate the adolescents and
whether they will contradict the religious beliefs of the petitioners
and validate their apprehensions. Thus, considering the
premature nature of this particular issue, the Court declines to
rule on its constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution
provides that the natural and primary right and duty of parents in
the rearing of the youth for civic efficiency and development of
moral character shall receive the support of the Government. Like
the 1973 Constitution and the 1935 Constitution, the 1987
Constitution affirms the State recognition of the invaluable role of
parents in preparing the youth to become productive members of
society. Notably, it places more importance on the role of parents
in the development of their children by recognizing that said role
shall be "primary," that is, that the right of parents in upbringing
the youth is superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to
aid parents in the moral development of the youth. Indeed, the
Constitution makes mention of the importance of developing the
youth and their important role in nation building.  Considering
253
that Section 14 provides not only for the age-appropriate-
reproductive health education, but also for values formation; the
development of knowledge and skills in self-protection against
discrimination; sexual abuse and violence against women and
children and other forms of gender based violence and teen
pregnancy; physical, social and emotional changes in
adolescents; women's rights and children's rights; responsible
teenage behavior; gender and development; and responsible
parenthood, and that Rule 10, Section 11.01 of the RH-IRR and
Section 4(t) of the RH Law itself provides for the teaching of
responsible teenage behavior, gender sensitivity and physical
and emotional changes among adolescents - the Court finds that
the legal mandate provided under the assailed provision
supplements, rather than supplants, the rights and duties of the
parents in the moral development of their children.
Furthermore, as Section 14 also mandates that the mandatory
reproductive health education program shall be developed in
conjunction with parent-teacher-community associations, school
officials and other interest groups, it could very well be said that it
will be in line with the religious beliefs of the petitioners. By
imposing such a condition, it becomes apparent that the
petitioners' contention that Section 14 violates Article XV, Section
3(1) of the Constitution is without merit.254
While the Court notes the possibility that educators might raise
their objection to their participation in the reproductive health
education program provided under Section 14 of the RH Law on
the ground that the same violates their religious beliefs, the Court
reserves its judgment should an actual case be filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness
and, thus violates the due process clause of the Constitution.
According to them, Section 23 (a)(l) mentions a "private health
service provider" among those who may be held punishable but
does not define who is a "private health care service provider."
They argue that confusion further results since Section 7 only
makes reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed
legislation exempts hospitals operated by religious groups from
rendering reproductive health service and modern family planning
methods. It is unclear, however, if these institutions are also
exempt from giving reproductive health information under Section
23(a)(l), or from rendering reproductive health procedures under
Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding,
restricting and providing of incorrect information, but at the same
time fails to define "incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it
lacks comprehensible standards that men of common intelligence
must necessarily guess its meaning and differ as to its
application. It is repugnant to the Constitution in two respects: (1)
it violates due process for failure to accord persons, especially
the parties targeted by it, fair notice of the conduct to avoid; and
(2) it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government
muscle.  Moreover, in determining whether the words used in a
255
statute are vague, words must not only be taken in accordance
with their plain meaning alone, but also in relation to other parts
of the statute. It is a rule that every part of the statute must be
interpreted with reference to the context, that is, every part of it
must be construed together with the other parts and kept
subservient to the general intent of the whole enactment. 256
As correctly noted by the OSG, in determining the definition of
"private health care service provider," reference must be made to
Section 4(n) of the RH Law which defines a "public health service
provider," viz:
(n) Public health care service provider refers to: (1) public health
care institution, which is duly licensed and accredited and
devoted primarily to the maintenance and operation of facilities
for health promotion, disease prevention, diagnosis, treatment
and care of individuals suffering from illness, disease, injury,
disability or deformity, or in need of obstetrical or other medical
and nursing care; (2) public health care professional, who is a
doctor of medicine, a nurse or a midvvife; (3) public health worker
engaged in the delivery of health care services; or (4) barangay
health worker who has undergone training programs under any
accredited government and NGO and who voluntarily renders
primarily health care services in the community after having been
accredited to function as such by the local health board in
accordance with the guidelines promulgated by the Department of
Health (DOH) .
Further, the use of the term "private health care institution" in
Section 7 of the law, instead of "private health care service
provider," should not be a cause of confusion for the obvious
reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be
exempt from being obligated to render reproductive health service
and modem family planning methods, includes exemption from
being obligated to give reproductive health information and to
render reproductive health procedures. Clearly, subject to the
qualifications and exemptions earlier discussed, the right to be
exempt from being obligated to render reproductive health service
and modem family planning methods, necessarily includes
exemption from being obligated to give reproductive health
information and to render reproductive health procedures. The
terms "service" and "methods" are broad enough to include the
providing of information and the rendering of medical procedures.
The same can be said with respect to the contention that the RH
Law punishes health care service providers who intentionally
withhold, restrict and provide incorrect information regarding
reproductive health programs and services. For ready reference,
the assailed provision is hereby quoted as follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private,
who shall:
(1) Knowingly withhold information or restrict the dissemination
thereof, and/ or intentionally provide incorrect information
regarding programs and services on reproductive health including
the right to informed choice and access to a full range of legal,
medically-safe, non-abortifacient and effective family planning
methods;
From its plain meaning, the word "incorrect" here denotes failing
to agree with a copy or model or with established rules;
inaccurate, faulty; failing to agree with the requirements of duty,
morality or propriety; and failing to coincide with the truth.   On
257
the other hand, the word "knowingly" means with awareness or
deliberateness that is intentional.  Used together in relation to
258
Section 23(a)(l), they connote a sense of malice and ill motive to
mislead or misrepresent the public as to the nature and effect of
programs and services on reproductive health. Public health and
safety demand that health care service providers give their
honest and correct medical information in accordance with what
is acceptable in medical practice. While health care service
providers are not barred from expressing their own personal
opinions regarding the programs and services on reproductive
health, their right must be tempered with the need to provide
public health and safety. The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal
protection clause under the Constitution as it discriminates
against the poor because it makes them the primary target of the
government program that promotes contraceptive use . They
argue that, rather than promoting reproductive health among the
poor, the RH Law introduces contraceptives that would effectively
reduce the number of the poor. Their bases are the various
provisions in the RH Law dealing with the poor, especially those
mentioned in the guiding principles  and definition of terms  of
259 260
the law.
They add that the exclusion of private educational institutions
from the mandatory reproductive health education program
imposed by the RH Law renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,  the Court had the
261
occasion to expound on the concept of equal protection. Thus:
One of the basic principles on which this government was
founded is that of the equality of right which is embodied in
Section 1, Article III of the 1987 Constitution. The equal protection
of the laws is embraced in the concept of due process, as every
unfair discrimination offends the requirements of justice and fair
play. It has been embodied in a separate clause, however, to
provide for a more specific guaranty against any form of undue
favoritism or hostility from the government. Arbitrariness in
general may be challenged on the basis of the due process
clause. But if the particular act assailed partakes of an
unwarranted partiality or prejudice, the sharper weapon to cut it
down is the equal protection clause.
"According to a long line of decisions, equal protection simply
requires that all persons or things similarly situated should be
treated alike, both as to rights conferred and responsibilities
imposed." It "requires public bodies and inst itutions to treat
similarly situated individuals in a similar manner." "The purpose of
the equal protection clause is to secure every person within a
state's jurisdiction against intentional and arbitrary discrimination,
whether occasioned by the express terms of a statue or by its
improper execution through the state's duly constituted
authorities." "In other words, the concept of equal justice under
the law requires the state to govern impartially, and it may not
draw distinctions between individuals solely on differences that
are irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official state actions,
not just those of the legislature. Its inhibitions cover all the
departments of the government including the political and
executive departments, and extend to all actions of a state
denying equal protection of the laws, through whatever agency or
whatever guise is taken.
It, however, does not require the universal application of the laws
to all persons or things without distinction. What it simply requires
is equality among equals as determined according to a valid
classification. Indeed, the equal protection clause permits
classification. Such classification, however, to be valid must pass
the test of reasonableness. The test has four requisites: (1) The
classification rests on substantial distinctions; (2) It is germane to
the purpose of the law; (3) It is not limited to existing conditions
only; and (4) It applies equally to all members of the same class.
"Superficial differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it
must include or embrace all persons who naturally belong to the
class. "The classification will be regarded as invalid if all the
members of the class are not similarly treated, both as to rights
conferred and obligations imposed. It is not necessary that the
classification be made with absolute symmetry, in the sense that
the members of the class should possess the same
characteristics in equal degree. Substantial similarity will suffice;
and as long as this is achieved, all those covered by the
classification are to be treated equally. The mere fact that an
individual belonging to a class differs from the other members, as
long as that class is substantially distinguishable from all others,
does not justify the non-application of the law to him."
The classification must not be based on existing circumstances
only, or so constituted as to preclude addition to the number
included in the class. It must be of such a nature as to embrace
all those who may thereafter be in similar circumstances and
conditions. It must not leave out or "underinclude" those that
should otherwise fall into a certain classification. [Emphases
supplied; citations excluded]
To provide that the poor are to be given priority in the
government's reproductive health care program is not a violation
of the equal protection clause. In fact, it is pursuant to Section 11,
Article XIII of the Constitution which recognizes the distinct
necessity to address the needs of the underprivileged by
providing that they be given priority in addressing the health
development of the people. Thus:
Section 11. The State shall adopt an integrated and
comprehensive approach to health development which shall
endeavor to make essential goods, health and other social
services available to all the people at affordable cost. There shall
be priority for the needs of the underprivileged, sick, elderly,
disabled, women, and children. The State shall endeavor to
provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor
and marginalized couples who are suffering from fertility issues
and desire to have children. There is, therefore, no merit to the
contention that the RH Law only seeks to target the poor to
reduce their number. While the RH Law admits the use of
contraceptives, it does not, as elucidated above, sanction
abortion. As Section 3(1) explains, the "promotion and/or
stabilization of the population growth rate is incidental to the
advancement of reproductive health."
Moreover, the RH Law does not prescribe the number of children
a couple may have and does not impose conditions upon couples
who intend to have children. While the petitioners surmise that
the assailed law seeks to charge couples with the duty to have
children only if they would raise them in a truly humane way, a
deeper look into its provisions shows that what the law seeks to
do is to simply provide priority to the poor in the implementation of
government programs to promote basic reproductive health care.
With respect to the exclusion of private educational institutions
from the mandatory reproductive health education program under
Section 14, suffice it to state that the mere fact that the children of
those who are less fortunate attend public educational institutions
does not amount to substantial distinction sufficient to annul the
assailed provision. On the other hand, substantial distinction rests
between public educational institutions and private educational
institutions, particularly because there is a need to recognize the
academic freedom of private educational institutions especially
with respect to religious instruction and to consider their
sensitivity towards the teaching of reproductive health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm
as it violates the constitutional prohibition against involuntary
servitude. They posit that Section 17 of the assailed legislation
requiring private and non-government health care service
providers to render forty-eight (48) hours of pro bono reproductive
health services, actually amounts to involuntary servitude
because it requires medical practitioners to perform acts against
their will.
262
The OSG counters that the rendition of pro bono services
envisioned in Section 17 can hardly be considered as forced
labor analogous to slavery, as reproductive health care service
providers have the discretion as to the manner and time of giving
pro bono services. Moreover, the OSG points out that the
imposition is within the powers of the government, the
accreditation of medical practitioners with PhilHealth being a
privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is
undeniably imbued with public interest that it is both a power and
a duty of the State to control and regulate it in order to protect
and promote the public welfare. Like the legal profession, the
practice of medicine is not a right but a privileged burdened with
conditions as it directly involves the very lives of the people. A
fortiori, this power includes the power of Congress  to prescribe
263
the qualifications for the practice of professions or trades which
affect the public welfare, the public health, the public morals, and
the public safety; and to regulate or control such professions or
trades, even to the point of revoking such right altogether.264
Moreover, as some petitioners put it, the notion of involuntary
servitude connotes the presence of force, threats, intimidation or
other similar means of coercion and compulsion.  A reading of
265
the assailed provision, however, reveals that it only encourages
private and non- government reproductive healthcare service
providers to render pro bono service. Other than non-
accreditation with PhilHealth, no penalty is imposed should they
choose to do otherwise. Private and non-government
reproductive healthcare service providers also enjoy the liberty to
choose which kind of health service they wish to provide, when,
where and how to provide it or whether to provide it all. Clearly,
therefore, no compulsion, force or threat is made upon them to
render pro bono service against their will. While the rendering of
such service was made a prerequisite to accreditation with
PhilHealth, the Court does not consider the same to be an
unreasonable burden, but rather, a necessary incentive imposed
by Congress in the furtherance of a perceived legitimate state
interest.
Consistent with what the Court had earlier discussed, however, it
should be emphasized that conscientious objectors are exempt
from this provision as long as their religious beliefs and
convictions do not allow them to render reproductive health
service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to
the FDA of the power to determine whether or not a supply or
product is to be included in the Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does
not only have the power but also the competency to evaluate,
register and cover health services and methods. It is the only
government entity empowered to render such services and highly
proficient to do so. It should be understood that health services
and methods fall under the gamut of terms that are associated
with what is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by
R.A. No. 9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby
created an office to be called the Food and Drug Administration
(FDA) in the Department of Health (DOH). Said Administration
shall be under the Office of the Secretary and shall have the
following functions, powers and duties:
"(a) To administer the effective implementation of this Act
and of the rules and regulations issued pursuant to the
same;
"(b) To assume primary jurisdiction in the collection of
samples of health products;
"(c) To analyze and inspect health products in connection
with the implementation of this Act;
"(d) To establish analytical data to serve as basis for the
preparation of health products standards, and to
recommend standards of identity, purity, safety, efficacy,
quality and fill of container;
"(e) To issue certificates of compliance with technical
requirements to serve as basis for the issuance of
appropriate authorization and spot-check for compliance
with regulations regarding operation of manufacturers,
importers, exporters, distributors, wholesalers, drug
outlets, and other establishments and facilities of health
products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health
products prior to the issuance of appropriate
authorizations to ensure safety, efficacy, purity, and
quality;
"(i) To require all manufacturers, traders, distributors,
importers, exporters, wholesalers, retailers, consumers,
and non-consumer users of health products to report to
the FDA any incident that reasonably indicates that said
product has caused or contributed to the death, serious
illness or serious injury to a consumer, a patient, or any
person;
"(j) To issue cease and desist orders motu propio or upon
verified complaint for health products, whether or not
registered with the FDA Provided, That for registered
health products, the cease and desist order is valid for
thirty (30) days and may be extended for sixty ( 60) days
only after due process has been observed;
"(k) After due process, to order the ban, recall, and/or
withdrawal of any health product found to have caused
death, serious illness or serious injury to a consumer or
patient, or is found to be imminently injurious, unsafe,
dangerous, or grossly deceptive, and to require all
concerned to implement the risk management plan which
is a requirement for the issuance of the appropriate
authorization;
x x x.
As can be gleaned from the above, the functions, powers and
duties of the FDA are specific to enable the agency to carry out
the mandates of the law. Being the country's premiere and sole
agency that ensures the safety of food and medicines available to
the public, the FDA was equipped with the necessary powers and
functions to make it effective. Pursuant to the principle of
necessary implication, the mandate by Congress to the FDA to
ensure public health and safety by permitting only food and
medicines that are safe includes "service" and "methods." From
the declared policy of the RH Law, it is clear that Congress
intended that the public be given only those medicines that are
proven medically safe, legal, non-abortifacient, and effective in
accordance with scientific and evidence-based medical research
standards. The philosophy behind the permitted delegation was
explained in Echagaray v. Secretary of Justice,  as follows:
267
The reason is the increasing complexity of the task of the
government and the growing inability of the legislature to cope
directly with the many problems demanding its attention. The
growth of society has ramified its activities and created peculiar
and sophisticated problems that the legislature cannot be
expected reasonably to comprehend. Specialization even in
legislation has become necessary. To many of the problems
attendant upon present day undertakings, the legislature may not
have the competence, let alone the interest and the time, to
provide the required direct and efficacious, not to say specific
solutions.
10- Autonomy of Local Governments and the Autonomous
Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim
that the RH Law infringes upon the powers devolved to local
government units (LGUs) under Section 17 of the Local
Government Code. Said Section 17 vested upon the LGUs the
duties and functions pertaining to the delivery of basic services
and facilities, as follows:
SECTION 17. Basic Services and Facilities. –
(a) Local government units shall endeavor to be self-
reliant and shall continue exercising the powers and
discharging the duties and functions currently vested
upon them. They shall also discharge the functions and
responsibilities of national agencies and offices devolved
to them pursuant to this Code. Local government units
shall likewise exercise such other powers and discharge
such other functions and responsibilities as are
necessary, appropriate, or incidental to efficient and
effective provision of the basic services and facilities
enumerated herein.
(b) Such basic services and facilities include, but are not
limited to, x x x.
While the aforementioned provision charges the LGUs to
take on the functions and responsibilities that have
already been devolved upon them from the national
agencies on the aspect of providing for basic services and
facilities in their respective jurisdictions, paragraph (c) of
the same provision provides a categorical exception of
cases involving nationally-funded projects, facilities,
programs and services.  Thus:
268
(c) Notwithstanding the provisions of subsection (b)
hereof, public works and infrastructure projects and other
facilities, programs and services funded by the National
Government under the annual General Appropriations
Act, other special laws, pertinent executive orders, and
those wholly or partially funded from foreign sources, are
not covered under this Section, except in those cases
where the local government unit concerned is duly
designated as the implementing agency for such projects,
facilities, programs and services. [Emphases supplied]
The essence of this express reservation of power by the national
government is that, unless an LGU is particularly designated as
the implementing agency, it has no power over a program for
which funding has been provided by the national government
under the annual general appropriations act, even if the program
involves the delivery of basic services within the jurisdiction of the
LGU.  A complete relinquishment of central government powers
269
on the matter of providing basic facilities and services cannot be
implied as the Local Government Code itself weighs against it.
In this case, a reading of the RH Law clearly shows that whether
it pertains to the establishment of health care facilities,  the hiring
271
of skilled health professionals,  or the training of barangay health
272
workers,  it will be the national government that will provide for
273
the funding of its implementation. Local autonomy is not absolute.
The national government still has the say when it comes to
national priority programs which the local government is called
upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are
merely encouraged to provide these services. There is nothing in
the wording of the law which can be construed as making the
availability of these services mandatory for the LGUs. For said
reason, it cannot be said that the RH Law amounts to an undue
encroachment by the national government upon the autonomy
enjoyed by the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of
local governments can be equally applied to the ARMM. The RH
Law does not infringe upon its autonomy. Moreover, Article III,
Sections 6, 10 and 11 of R.A. No. 9054, or the organic act of the
ARMM, alluded to by petitioner Tillah to justify the exemption of
the operation of the RH Law in the autonomous region, refer to
the policy statements for the guidance of the regional
government. These provisions relied upon by the petitioners
simply delineate the powers that may be exercised by the
regional government, which can, in no manner, be characterized
as an abdication by the State of its power to enact legislation that
would benefit the general welfare. After all, despite the veritable
autonomy granted the ARMM, the Constitution and the supporting
jurisprudence, as they now stand, reject the notion of imperium et
imperio in the relationship between the national and the regional
governments.  Except for the express and implied limitations
274
imposed on it by the Constitution, Congress cannot be restricted
270
to exercise its inherent and plenary power to legislate on all
subjects which extends to all matters of general concern or
common interest. 275
11 - Natural Law
With respect to the argument that the RH Law violates natural
law,  suffice it to say that the Court does not duly recognize it as
276
a legal basis for upholding or invalidating a law. Our only
guidepost is the Constitution. While every law enacted by man
emanated from what is perceived as natural law, the Court is not
obliged to see if a statute, executive issuance or ordinance is in
conformity to it. To begin with, it is not enacted by an acceptable
legitimate body. Moreover, natural laws are mere thoughts and
notions on inherent rights espoused by theorists, philosophers
and theologists. The jurists of the philosophical school are
interested in the law as an abstraction, rather than in the actual
law of the past or present.  Unless, a natural right has been
277
transformed into a written law, it cannot serve as a basis to strike
down a law. In Republic v. Sandiganbayan,  the very case cited
278
by the petitioners, it was explained that the Court is not duty-
bound to examine every law or action and whether it conforms
with both the Constitution and natural law. Rather, natural law is
to be used sparingly only in the most peculiar of circumstances
involving rights inherent to man where no law is applicable. 279
At any rate, as earlier expounded, the RH Law does not sanction
the taking away of life. It does not allow abortion in any shape or
form. It only seeks to enhance the population control program of
the government by providing information and making non-
abortifacient contraceptives more readily available to the public,
especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as
unconstitutional insofar as it seeks to provide access to
medically-safe, non-abortifacient, effective, legal, affordable, and
quality reproductive healthcare services, methods, devices, and
supplies. As earlier pointed out, however, the religious freedom of
some sectors of society cannot be trampled upon in pursuit of
what the law hopes to achieve. After all, the Constitutional
safeguard to religious freedom is a recognition that man stands
accountable to an authority higher than the State.
In conformity with the principle of separation of Church and State,
one religious group cannot be allowed to impose its beliefs on the
rest of the society. Philippine modem society leaves enough room
for diversity and pluralism. As such, everyone should be tolerant
and open-minded so that peace and harmony may continue to
reign as we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does
not escape the Court that what it seeks to address is the problem
of rising poverty and unemployment in the country. Let it be said
that the cause of these perennial issues is not the large
population but the unequal distribution of wealth. Even if
population growth is controlled, poverty will remain as long as the
country's wealth remains in the hands of the very few.
At any rate, population control may not be beneficial for the
country in the long run. The European and Asian countries, which
embarked on such a program generations ago , are now
burdened with ageing populations. The number of their young
workers is dwindling with adverse effects on their economy.
These young workers represent a significant human capital which
could have helped them invigorate, innovate and fuel their
economy. These countries are now trying to reverse their
programs, but they are still struggling. For one, Singapore, even
with incentives, is failing.
And in this country, the economy is being propped up by
remittances from our Overseas Filipino Workers. This is because
we have an ample supply of young able-bodied workers. What
would happen if the country would be weighed down by an
ageing population and the fewer younger generation would not be
able to support them? This would be the situation when our total
fertility rate would go down below the replacement level of two (2)
children per woman. 280
Indeed, at the present, the country has a population problem, but
the State should not use coercive measures (like the penal
provisions of the RH Law against conscientious objectors) to
solve it. Nonetheless, the policy of the Court is non-interference in
the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has
laid down. Its duty is to say what the law is as enacted by the
lawmaking body. That is not the same as saying what the law
should be or what is the correct rule in a given set of
circumstances. It is not the province of the judiciary to look into
the wisdom of the law nor to question the policies adopted by the
legislative branch. Nor is it the business of this Tribunal to remedy
every unjust situation that may arise from the application of a
particular law. It is for the legislature to enact remedial legislation
if that would be necessary in the premises. But as always, with
apt judicial caution and cold neutrality, the Court must carry out
the delicate function of interpreting the law, guided by the
Constitution and existing legislation and mindful of settled
jurisprudence. The Court's function is therefore limited, and
accordingly, must confine itself to the judicial task of saying what
the law is, as enacted by the lawmaking body. 281
Be that as it may, it bears reiterating that the RH Law is a mere
compilation and enhancement of the prior existing contraceptive
and reproductive health laws, but with coercive measures. Even if
the Court decrees the RH Law as entirely unconstitutional, there
will still be the Population Act (R.A. No. 6365), the Contraceptive
Act (R.A. No. 4729) and the reproductive health for women or
The Magna Carta of Women (R.A. No. 9710), sans the coercive
provisions of the assailed legislation. All the same, the principle of
"no-abortion" and "non-coercion" in the adoption of any family
planning method should be maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED.
Accordingly, the Court declares R.A. No. 10354 as NOT
UNCONSTITUTIONAL except with respect to the following
provisions which are declared UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-
IRR insofar as they: a) require private health facilities and
non-maternity specialty hospitals and hospitals owned
and operated by a religious group to refer patients, not in
an emergency or life-threatening case, as defined under
Republic Act No. 8344, to another health facility which is
conveniently accessible; and b) allow minor-parents or
minors who have suffered a miscarriage access to
modem methods of family planning without written
consent from their parents or guardian/s;
2) Section 23(a)(l) and the corresponding provision in the
RH-IRR, particularly Section 5 .24 thereof, insofar as they
punish any healthcare service provider who fails and or
refuses to disseminate information regarding programs
and services on reproductive health regardless of his or
her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in
the RH-IRR insofar as they allow a married individual, not
in an emergency or life-threatening case, as defined
under Republic Act No. 8344, to undergo reproductive
health procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in
the RH-IRR insofar as they limit the requirement of
parental consent only to elective surgical procedures.
5) Section 23(a)(3) and the corresponding provision in the
RH-IRR, particularly Section 5.24 thereof, insofar as they
punish any healthcare service provider who fails and/or
refuses to refer a patient not in an emergency or life-
threatening case, as defined under Republic Act No.
8344, to another health care service provider within the
same facility or one which is conveniently accessible
regardless of his or her religious beliefs;
6) Section 23(b) and the corresponding provision in the
RH-IRR, particularly Section 5 .24 thereof, insofar as they
punish any public officer who refuses to support
reproductive health programs or shall do any act that
hinders the full implementation of a reproductive health
program, regardless of his or her religious beliefs;
7) Section 17 and the corresponding prov1s10n in the
RH-IRR regarding the rendering of pro bona reproductive
health service in so far as they affect the conscientious
objector in securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR,
which added the qualifier "primarily" in defining
abortifacients and contraceptives, as they are ultra vires
and, therefore, null and void for contravening Section 4(a)
of the RH Law and violating Section 12, Article II of the
Constitution.
The Status Quo Ante Order issued by the Court on March 19,
2013 as extended by its Order, dated July 16, 2013 , is hereby
LIFTED, insofar as the provisions of R.A. No. 10354 which have
been herein declared as constitutional.
SO ORDERED.

SATURNINO C. OCAMPO, TRINIDAD H. REPUNO, BIENVENIDO
LUMBERA, BONIFACIO P. ILAGAN, NERI JAVIER COLMENARES,
MARIA CAROLINA P. ARAULLO, M.D., SAMAHAN NG
EX�DETAINEES LABAN SA DETENSYON AT ARESTO (SELDA),
REPRESENTED BY DIONITO CABILLAS, CARMENCITA M.
FLORENTINO, RODOLFO DEL ROSARIO, FELIX C. DALISAY, AND
DANILO M. DELAFUENTE,* Petitioners, v. REAR ADMIRAL
ERNESTO C. ENRIQUEZ (IN HIS CAPACITY AS THE DEPUTY
CHIEF OF STAFF FOR RESERVIST AND RETIREE AFFAIRS,
ARMED FORCES OF THE PHILIPPINES), THE GRAVE SERVICES
UNIT (PHILIPPINE ARMY), AND GENERAL RICARDO R. VISAYA
(IN HIS CAPACITY AS THE CHIEF OF STAFF, ARMED FORCES OF
THE PHILIPPINES), DEFENSE SECRETARY DELFIN LORENZANA,
AND HEIRS OF FERDINAND E. MARCOS, REPRESENTED BY HIS
SURVIVING SPOUSE IMELDA ROMUALDEZ
MARCOS, Respondents.
RENE A.V. SAGUISAG, SR., RENE A.Q. SAGUISAG, JR., RENE A.C.
SAGUISAG III, Intervenors.
G.R. No. 225984
REP. EDCEL C. LAGMAN, IN HIS PERSONAL AND OFFICIAL
CAPACITIES AND AS A MEMBER OF CONGRESS AND AS THE
HONORARY CHAIRPERSON OF THE FAMILIES OF VICTIMS OF
INVOLUNTARY DISAPPEARANCE (FIND); FAMILIES OF VICTIMS
OF INVOLUNTARY DISAPPEARANCE (FIND), REPRESENTED BY
ITS CO�CHAIRPERSON, NILDA L. SEVILLA; REP. TEDDY
BRAWNER BAGUILAT, JR.; REP. TOMASITO S. VILLARIN; REP.
EDGAR R. ERICE; AND REP. EMMANUEL A.
BILLONES, Petitioners, v. EXECUTIVE SECRETARY SALVADOR C.
MEDIALDEA; DEFENSE SECRETARY DELFIN N. LORENZANA; AFP
CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA; AFP DEPUTY
CHIEF OF STAFF REAR ADMIRAL ERNESTO C. ENRIQUEZ; AND
HEIRS OF FERDINAND E. MARCOS, REPRESENTED BY HIS
SURVIVING SPOUSE IMELDA ROMUALDEZ
MARCOS, Respondents.
G.R. No. 226097
LORETTA ANN PARGAS-ROSALES, HILDA B. NARCISO, AIDA F.
SANTOS�MARANAN, JO-ANN Q. MAGLIPON, ZENAIDA S.
MIQUE, FE B. MANGAHAS, MA. CRISTINA P. BAWAGAN, MILA D.
AGUILAR, MINERVA G. GONZALES, MA. CRISTINA V.
RODRIGUEZ, LOUIE G. CRISMO, FRANCISCO E. RODRIGO, JR.,
LIWAYWAY D. ARCE, AND ABDULMARI DE LEON IMAO,
JR., Petitioners, v. EXECUTIVE SECRETARY SALVADOR C.
MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA, AFP
DEPUTY CHIEF OF STAFF REAR ADMIRAL ERNESTO C.
ENRIQUEZ, AFP CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA,
AND PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO)
ADMINISTRATOR LT. GEN. ERNESTO G. CAROLINA
(RET.), Respondents.
G.R. No. 226116
HEHERSON T. ALVAREZ, JOEL C. LAMANGAN, FRANCIS X.
MANGLAPUS, EDILBERTO C. DE JESUS, BELINDA O. CUNANAN,
CECILIA GUIDOTE ALVAREZ, REX DEGRACIA LORES, SR.,
ARNOLD MARIE NOEL, CARLOS MANUEL, EDMUND S. TAYAO,
DANILO P. OLIVARES, NOEL F. TRINIDAD, JESUS DELA FUENTE,
REBECCA M. QUIJANO, FR. BENIGNO BELTRAN, SVD, ROBERTO
S. VERZOLA, AUGUSTO A. LEGASTO, JR., AND JULIA KRISTINA
P. LEGASTO, Petitioners, v. EXECUTIVE SECRETARY SALVADOR C.
MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA, AFP
CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA, AFP DEPUTY
CHIEF OF STAFF REAR ADMIRAL ERNESTO C. ENRIQUEZ, AND
PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO) OF THE
DND, Respondents.
G.R. No. 226117

ZAIRA PATRICIA B. BANIAGA, JOHN ARVIN BUENAAGUA,
JOANNE ROSE SACE LIM, JUAN ANTONIO RAROGAL
MAGALANG, Petitioners, v. SECRETARY OF NATIONAL DEFENSE
DELFIN N. LORENZANA, AFP CHIEF OF STAFF RICARDO R.
VISAYA, ADMINISTRATOR OF THE PHILIPPINE VETERANS
AFFAIRS OFFICE ERNESTO G. CAROLINA, Respondents.
G.R. No. 226120
ALGAMAR A. LATIPH, Petitioner, v. SECRETARY DELFIN N.
LORENZANA, SUED IN HIS CAPACITY AS SECRETARY OF
NATIONAL DEFENSE, LT. GEN. RICARDO R. VISAYA, IN HIS
CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE
PHILIPPINES AND LT. GEN. ERNESTO G. CAROLINA (RET.), IN
HIS CAPACITY AS ADMINISTRATOR, PHILIPPINE VETERANS
AFFAIRS OFFICE (PVAO), Respondents.
G.R. No. 226294
LEILA M. DE LIMA, IN HER CAPACITY AS SENATOR OF THE
REPUBLIC AND AS TAXPAYER, Petitioner, v. HON. SALVADOR C.
MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA, AFP
CHIEF OF STAFF LT. GEN. RICARDO R. VISAYA,
UNDERSECRETARY ERNESTO G. CAROLINA, IN HIS CAPACITY
AS PHILIPPINE VETERANS AFFAIRS OFFICE (PVAO)
ADMINISTRATOR AND B/GEN. RESTITUTO L. AGUILAR, IN HIS
CAPACITY AS SHRINE CURATOR AND CHIEF VETERANS
MEMORIAL AND HISTORICAL DIVISION AND HEIRS OF
FERDINAND EDRALIN MARCOS, Respondent.
DECISION
PERALTA, J.:
In law, as much as in life, there is need to find closure. Issues
that have lingered and festered for so long and which
unnecessarily divide the people and slow the path to the future
have to be interred. To move on is not to forget the past. It is
to focus on the present and the future, leaving behind what is
better left for history to ultimately decide. The Court finds
guidance from the Constitution and the applicable laws, and in
the absence of clear prohibition against the exercise of
discretion entrusted to the political branches of the
Government, the Court must not overextend its readings of
what may only be seen as providing tenuous connection to the
issue before it.
Facts
During the campaign period for the 2016 Presidential Election, then
candidate Rodrigo R. Duterte (Duterte) publicly announced that he
would allow the burial of former President Ferdinand E. Marcos
(Marcos) at the Libingan Ng Mga Bayani (LNMB). He won the May 9,
2016 election, garnering 16,601,997 votes. At noon of June 30, 2016,
he formally assumed his office at the Rizal Hall in the Malaca�an
Palace.
On August 7, 2016, public respondent Secretary of National Defense
Delfin N. Lorenzana issued a Memorandum to the public respondent
Chief of Staff of the Armed Forces of the Philippines (AFP), General
Ricardo R. Visaya, regarding the interment of Marcos at the LNMB, to
wit:
ChanRoblesVirtualawlibrary
Subject: Interment of the late Former President Ferdinand
Marcos at LNMB
Reference: Verbal Order of President Rodrigo Duterte on July 11,
2016.
In compliance to (sic) the verbal order of the President to implement
his election campaign promise to have the remains of the late former
President Ferdinand E. Marcos be interred at the Libingan ng mga
Bayani, kindly undertake all the necessary planning and preparations
to facilitate the coordination of all agencies concerned specially the
provisions for ceremonial and security requirements. Coordinate
closely with the Marcos family regarding the date of interment and the
transport of the late former President's remains from Ilocos Norte to
the LNMB.
The overall OPR for this activity will [be] the PVAO since the LNMB is
under its supervision and administration. PVAO shall designate the
focal person for this activity who shall be the overall overseer of the
event.
Submit your Implementing Plan to my office as soon as possible.1 chanroblesvirtuallawlibrary
On August 9, 2016, respondent AFP Rear Admiral Ernesto C. Enriquez
issued the following directives to the Philippine Army (PA)
Commanding General: ChanRoblesVirtualawlibrary
SUBJECT:���� Funeral Honors and Service
3. Petition for Prohibition8 filed by Representative Edcel C. Lagman, in
TO:������������� Commanding General, Philippine Army  his personal capacity, as member of the House of Representatives and
������������������ Headquarters, Philippine Army  as Honorary Chairperson of Families of Victims of Involuntary
������������������ Fort Bonifacio, Taguig City  Disappearance (FIND), a duly-registered corporation and organization
������������������ Attn: Assistant Chief of Staff for RRA, of victims and families of enforced disappearance, mostly during the
G9 martial law regime of the former President Marcos, and several
others,9 in their official capacities as duly-elected Congressmen of the
1. Pursuant to paragraph 2b, SOP Number 8, GHQ, AFP House of Representatives of the Philippines.
dated 14 July 1992, provide services, honors and
other courtesies for the late Former President 4. Petition for Prohibition10 filed by Loretta Ann Pargas-Rosales, former
Ferdinand E. Marcos as indicated: Chairperson of the Commission on Human Rights, and several
others,11 suing as victims of State-sanctioned human rights violations
�� �[x] Vigil - Provide vigil� 
chanRoblesvirtualLawlibrary
during the martial law regime of Marcos.
�� �[x] Bugler/Drummer 
�� �[x] Firing Party  5. Petition for Mandamus and Prohibition12 filed by Heherson T.
�� �[x] Military Host/Pallbearers  Alvarez, former Senator of the Republic of the Philippines, who fought
�� �[x] Escort and Transportation  to oust the dictatorship of Marcos, and several others,13as concerned
�� �[x] Arrival/Departure Honors Filipino citizens and taxpayers.

6. Petition for Certiorari and Prohibition14 filed by Zaira Patricia B.

2. His remains lie in state at Ilocos Norte 
Baniaga and several others,15 as concerned Filipino citizens and
taxpayers. 
3. Interment will take place at the Libingan ng mga
Bayani, Ft. Bonifacio, Taguig City. Date: TBAL.  7. Petition for Certiorari and Prohibition16 filed by Algamar A. Latiph,
former Chairperson of the Regional Human Rights Commission,
4. Provide all necessary military honors accorded Autonomous Region in Muslim Mindanao, by himself and on behalf of
for a President  the Moro17 who are victims of human rights during the martial law
regime of Marcos.
5. POC: Administrator, PVAO BY COMMAND OF
GENERAL VISAYA2 8. Petition for Certiorari and Prohibition18 filed by Leila M. De Lima as
member of the Senate of the Republic of the Philippines, public official
Dissatisfied with the foregoing issuance, the following were filed by and concerned citizen.
petitioners:
Issues
1. Petition for Certiorari and Prohibition3 filed by Saturnino Ocampo
chanRoblesvirtualLawlibrary

and several others,4 in their capacities as human rights advocates or Procedural

human rights violations victims as defined under Section 3 (c) of
Republic Act (R.A.) No. 10368 (Human Rights Victims Reparation and 1. Whether President Duterte's determination to have the remains of
Recognition Act of 2013). Marcos interred at the LNMB poses a justiciable controversy.

2. Petition for Certiorari-in-Intervention5 filed by Rene A.V. Saguisag, 2. Whether petitioners have locus standi to file the instant petitions.
Sr. and his son,6 as members of the Bar and human rights lawyers,
and his grandchild.7 chanrobleslaw
3. Whether petitioners violated the doctrines of exhaustion of
administrative remedies and hierarchy of courts.
 Substantive
1. Whether the respondents Secretary of National Defense and AFP
Rear Admiral committed grave abuse of discretion, amounting to lack
or excess of jurisdiction, when they issued the assailed memorandum
and directive in compliance with the verbal order of President Duterte
to implement his election campaign promise to have the remains of
Marcos interred at the LNMB.
2. Whether the Issuance and implementation of the assailed
memorandum and directive violate the Constitution, domestic and
international laws, particularly:
(a) Sections 2, 11, 13, 23, 26, 27 and 28 of Article II, Section 1 of
chanRoblesvirtualLawlibrary
Article III, Section 17 of Article VII, Section 1 of Article XI, Section
3(2) of Article XIV, and Section 26 of Article XVIII of the 1987
Constitution;
(b) R.A. No. 289;
(c) R.A. No. 10368;
(d) AFP Regulation G 161-375 dated September 11, 2000;
(e) The International Covenant on Civil and Political Rights;
(f) The "Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human
Rights Law and Serious Violations of International Humanitarian Law"
of the United Nations (U.N.) General Assembly; and  cralawlawlibrary
(g) The "Updated Set of Principles for Protection and Promotion of
Human Rights through Action to Combat Impunity" of the U.N.
Economic and Social Council;
3. Whether historical facts, laws enacted to recover ill-gotten wealth
from the Marcoses and their cronies, and the pronouncements of the
Court on the Marcos regime have nullified his entitlement as a soldier
and former President to interment at the LNMB.
4. Whether the Marcos family is deemed to have waived the burial of
the remains of former President Marcos at the LNMB after they entered
into an agreement with the Government of the Republic of the
Philippines as to the conditions and procedures by which his remains
shall be brought back to and interred in the Philippines.
Opinion
The petitions must be dismissed.
Procedural Grounds
Justiciable controversy
It is well settled that no question involving the constitutionality or
validity of a law or governmental act may be heard and decided by the
Court unless the following requisites for judicial inquiry are present:
(a) there must be an actual case or controversy calling for the exercise
of judicial power; (b) the person challenging the act must have the
standing to question the validity of the subject act or issuance; (c) the
question of constitutionality must be raised at the earliest opportunity;
and (d) the issue of constitutionality must be the very lis mota of the
case.19 In this case, the absence of the first two requisites, which are
the most essential, renders the discussion of the last two
superfluous.20chanrobleslaw
An "actual case or controversy" is one which involves a conflict of legal
rights, an assertion of opposite legal claims, susceptible of judicial
resolution as distinguished from a hypothetical or abstract difference
or dispute.21 There must be a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and
jurisprudence.22 Related to the requisite of an actual case or
controversy is the requisite of "ripeness," which means that something
had then been accomplished or performed by either branch before a
court may come into the picture, and the petitioner must allege the
existence of an immediate or threatened injury to itself as a result of
the challenged action.23 Moreover, the limitation on the power of
judicial review to actual cases and controversies carries the assurance
that the courts will not intrude into areas committed to the other
branches of government.24 Those areas pertain to 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.25  As they are concerned with questions of policy and
cralawred
issues dependent upon the wisdom, not legality of a particular
measure,26 political questions used to be beyond the ambit of judicial
review. However, the scope of the political question doctrine has been
limited by Section 1 of Article VIII of the 1987 Constitution when it
vested in the judiciary the power to determine whether or not there
has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the
Government.
The Court agrees with the OSG that President Duterte's decision to
have the remains of Marcos interred at the LNMB involves a political
question that is not a justiciable controversy. In the exercise of his
powers under the Constitution and the Executive Order (E.O.) No. 292
(otherwise known as the Administrative Code of 1987) to allow the
interment of Marcos at the LNMB, which is a land of the public domain
devoted for national military cemetery and military shrine purposes,
President Duterte decided a question of policy based on his wisdom
that it shall promote national healing and forgiveness. There being no
taint of grave abuse in the exercise of such discretion, as discussed
below, President Duterte's decision on that political question is outside
the ambit of judicial review.
Locus standi
Defined as a right of appearance in a court of justice on a given
question,27locus standi requires that 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.28 Unless a person has sustained or is in imminent danger of
sustaining an injury as a result of an act complained of, such proper
party has no standing.29 Petitioners, who filed their respective petitions
for certiorari, prohibition and mandamus, in their capacities as citizens,
human rights violations victims, legislators, members of the Bar and
taxpayers, have no legal standing to file such petitions because they
failed to show that they have suffered or will suffer direct and personal
injury as a result of the interment of Marcos at the LNMB.
Taxpayers have been allowed to sue where there is a claim that public
funds are illegally disbursed or that public money is being deflected to
any improper purpose, or that public funds are wasted through the
enforcement of an invalid or unconstitutional law.30 In this case, what
is essentially being assailed is the wisdom behind the decision of the
President to proceed with the interment of Marcos at the LNMB. As
taxpayers, petitioners merely claim illegal disbursement of public
funds, without showing that Marcos is disqualified to be interred at the
LNMB by either express or implied provision of the Constitution, the
laws or jurisprudence.
Petitioners Saguisag, et al.,31 as members of the Bar, are required to
allege any direct or potential injury which the Integrated Bar of the
Philippines, as an institution, or its members may suffer as a
consequence of the act complained of.32 Suffice it to state that the
averments in their petition-in-intervention failed to disclose such
injury, and that their interest in this case is too general and shared by
other groups, such that their duty to uphold the rule of law, without
more, is inadequate to clothe them with requisite legal standing.33 chanrobleslaw
As concerned citizens, petitioners are also required to substantiate that
the issues raised are of transcendental importance, of overreaching
significance to society, or of paramount public interest.34 In cases
involving such issues, the imminence and clarity of the threat to
fundamental constitutional rights outweigh the necessity for
prudence.35 In Marcos v. Manglapus,36 the majority opinion observed
that the subject controversy was of grave national importance, and
that the Court's decision would have a profound effect on the political,
economic, and other aspects of national life. The ponencia explained
that the case was in a class by itself, unique and could not create
precedent because it involved a dictator forced out of office and into
exile after causing twenty years of political, economic and social havoc
in the country and who, within the short space of three years (from
1986), sought to return to the Philippines to die.
At this point in time, the interment of Marcos at a cemetery originally
established as a national military cemetery and declared a national
shrine would have no profound effect on the political, economic, and
other aspects of our national life considering that more than twenty-
seven (27) years since his death and thirty (30) years after his ouster
have already passed. Significantly, petitioners failed to demonstrate a
clear and imminent threat to their fundamental constitutional rights.
As human rights violations victims during the Martial Law regime,
some of petitioners decry re-traumatization, historical revisionism, and
disregard of their state recognition as heroes. Petitioners' argument is
founded on the wrong premise that the LNMB is the National Pantheon
intended by law to perpetuate the memory of all Presidents, national
heroes and patriots. The history of the LNMB, as will be discussed
further, reveals its nature and purpose as a national military cemetery
and national shrine, under the administration of the AFP.
Apart from being concerned citizens and taxpayers, petitioners Senator
De Lima, and Congressman Lagman, et al.37 come before the Court as
legislators suing to defend the Constitution and to protect appropriated
public funds from being used unlawfully. In the absence of a clear
showing of any direct injury to their person or the institution to which
they belong, their standing as members of the Congress cannot be
upheld.38 They do not specifically claim that the official actions
complained of, i.e., the memorandum of the Secretary of National
Defense and the directive of the AFP Chief of Staff regarding the
interment of Marcos at the LNMB, encroach on their prerogatives as
legislators.39
chanrobleslaw
Exhaustion of Administrative Remedies
Petitioners violated the doctrines of exhaustion of administrative
remedies and hierarchy of courts. Under the doctrine of exhaustion of
administrative remedies, before a party is allowed to seek the
intervention of the court, one should have availed first of all the means
of administrative processes available.40 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 jurisdiction, then such remedy should be
exhausted first before the court's judicial power can be sought.41 For
reasons of comity and convenience, courts of justice 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.42 While
there are exceptions43 to the doctrine of exhaustion of administrative
remedies, petitioners failed to prove the presence of any of those
exceptions.
Contrary to their claim of lack of plain, speedy, adequate remedy in
the ordinary course of law, petitioners should be faulted for failing to
seek reconsideration of the assailed memorandum and directive before
the Secretary of National Defense. The Secretary of National Defense
should be given opportunity to correct himself, if warranted,
considering that AFP Regulations G 161-375 was issued upon his
order. Questions on the implementation and interpretation thereof
demand the exercise of sound administrative discretion, requiring the
special knowledge, experience and services of his office to determine
technical and intricate matters of fact. If petitioners would still be
dissatisfied with the decision of the Secretary, they could elevate the
matter before the Office of the President which has control and
supervision over the Department of National Defense (DND).44 chanrobleslaw
Hierarchy of Courts
In the same vein, while direct resort to the Court through petitions for
the extraordinary writs of certiorari, prohibition and mandamus are
allowed under exceptional cases,45 which are lacking in this case,
petitioners cannot simply brush aside the doctrine of hierarchy of
courts that requires such petitions to be filed first with the proper
Regional Trial Court (RTC). The RTC is not just a trier of facts, but can
also resolve questions of law in the exercise of its original and
concurrent jurisdiction over petitions for certiorari, prohibition and
mandamus, and has the power to issue restraining order and
injunction when proven necessary.
In fine, the petitions at bar should be dismissed on procedural grounds
alone. Even if We decide the case based on the merits, the petitions
should still be denied.
Substantive Grounds
There is grave abuse of discretion when an act is (1) done contrary to
the Constitution, the law or jurisprudence or (2) executed whimsically,
capriciously or arbitrarily, out of malice, ill will or personal bias.46 None
is present in this case.
I 
The President's decision to bury Marcos at the LNMB is in
accordance with the Constitution, the law or jurisprudence
Petitioners argue that the burial of Marcos at the LNMB should not be
allowed because it has the effect of not just rewriting history as to the
Filipino people's act of revolting against an authoritarian ruler but also
condoning the abuses committed during the Martial Law, thereby
violating the letter and spirit of the 1987 Constitution, which is a
"post-dictatorship charter" and a "human rights constitution." For
them, the ratification of the Constitution serves as a clear
condemnation of Marcos' alleged "heroism." To support their case,
petitioners invoke Sections 2,4711,48 13,49 23,50 26,51 2752 and 2853 of
Article II, Sec. 17 of Art. VII,54 Sec. 3(2) of Art. XIV,55 Sec. 1 of Art.
XI,56 and Sec. 26 of Art. XVIII57 of the Constitution.
There is no merit to the contention.
As the Office of the Solicitor General (OSG) logically reasoned out,
while the Constitution is a product of our collective history as a people,
its entirety should not be interpreted as providing guiding principles to
just about anything remotely related to the Martial Law period such as
the proposed Marcos burial at the LNMB.
Ta�ada v. Angara58 already ruled that the provisions in Article II of the
Constitution are not self-executing. Thus:
ChanRoblesVirtualawlibrary
By its very title, Article II of the Constitution is a "declaration of
principles and state policies." The counterpart of this article in
the 1935 Constitution is called the "basic political creed of the nation"
by Dean Vicente Sinco. These principles in Article II are not intended
to be self� executing principles ready for enforcement through the
courts. They are used by the judiciary as aids or as guides in the
exercise of its power of judicial review, and by the legislature in its
enactment of laws. As held in the leading case of Kilosbayan,
Incorporated vs. Morato, the principles and state policies enumerated
in Article II x x x are not "self-executing provisions, the disregard of
which can give rise to a cause of action in the courts. They do not
embody judicially enforceable constitutional rights but guidelines for
legislation."
In the same light, we held in Basco vs. Pagcor that broad
constitutional principles need legislative enactments to implement
them x x x.
xxx
The reasons for denying a cause of action to an alleged infringement of
broad constitutional principles are sourced from basic considerations of
due process and the lack of judicial authority to wade "into the
uncharted ocean of social and economic policy making."59 chanroblesvirtuallawlibrary
In the same vein, Sec. 1 of Art. XI of the Constitution is not a self�-
executing provision considering that a law should be passed by the
Congress to clearly define and effectuate the principle embodied
therein. As a matter of fact, pursuant thereto, Congress enacted R.A.
No. 6713 ("Code of Conduct and Ethical Standards for Public Officials
and Employees"), R.A. No. 6770 ("The Ombudsman Act of 1989"),
R.A. No. 7080 (An Act Defining and Penalizing the Crime of Plunder),
and Republic Act No. 9485 ("Anti-�Red Tape Act of 2007"). To
complement these statutes, the Executive Branch has issued various
orders, memoranda, and instructions relative to the norms of
behavior/code of conduct/ethical standards of officials and employees;
workflow charts/public transactions; rules and policies on gifts and
benefits; whistle blowing and reporting; and client feedback program.
Petitioners' reliance on Sec. 3(2) of Art. XIV and Sec. 26 of Art. XVIII
of the Constitution is also misplaced. Sec. 3(2) of Art. XIV refers to the
constitutional duty of educational institutions in teaching the values of
patriotism and nationalism and respect for human rights, while Sec. 26
of Art. XVIII is a transitory provision on sequestration or freeze orders
in relation to the recovery of Marcos' ill-gotten wealth. Clearly, with
respect to these provisions, there is no direct or indirect prohibition to
Marcos' interment at the LNMB.
The second sentence of Sec. 17 of Art. VII pertaining to the duty of the
President to "ensure that the laws be faithfully executed," which is
identical to Sec. 1, Title I, Book III of the Administrative Code of
1987,60 is likewise not violated by public respondents. Being the Chief
Executive, the President represents the government as a whole and
sees to it that all laws are enforced by the officials and employees of
his or her department.61 Under the Faithful Execution Clause, the
President has the power to take "necessary and proper steps" to carry
into execution the law.62 The mandate is self-executory by virtue of its
being inherently executive in nature and is intimately related to the
other executive functions.63 It is best construed as an imposed
obligation, not a separate grant of power.64 The provision simply
underscores the rule of law and, corollarily, the cardinal principle that
the President is not above the laws but is obliged to obey and execute
them.65chanrobleslaw
Consistent with President Duterte's mandate under Sec. 17, Art. VII of
the Constitution, the burial of Marcos at the LNMB does not contravene
R.A. No. 289, R.A. No. 10368, and the international human rights laws
cited by petitioners.
A. On R.A. No. 28966 chanrobleslaw
For the perpetuation of their memory and for the inspiration and
emulation of this generation and of generations still unborn, R.A. No.
289 authorized the construction of a National Pantheon as the burial
place of the mortal remains of all the Presidents of the Philippines,
national heroes and patriots.67 It also provided for the creation of a
Board on National Pantheon to implement the law.68 chanrobleslaw
On May 12, 1953, President Elpidio R. Quirino approved the site of the
National Pantheon at East Avenue, Quezon City.69 On December 23,
1953, he issued Proclamation No. 431 to formally "withdraw from sale
or settlement and reserve as a site for the construction of the National
Pantheon a certain parcel of land located in Quezon City." However, on
July 5, 1954, President Magsaysay issued Proclamation No. 42
revoking Proclamation Nos. 422 and 431, both series of 1953, and
reserving the parcels of land embraced therein for national park
purposes to be known as Quezon Memorial Park.
It is asserted that Sec. 1 of R.A. No 289 provides for the legal standard
by which a person's mortal remains may be interred at the LNMB, and
that AFP Regulations G 161-375 merely implements the law and
should not violate its spirit and intent. Petitioners claim that it is
known, both here and abroad, that Marcos' acts and deed - the gross
human rights violations, the massive corruption and plunder of
government coffers, and his military record that is fraught with myths,
factual inconsistencies, and lies - are neither worthy of perpetuation in
our memory nor serve as a source of inspiration and emulation of the
present and future generations. They maintain that public respondents
are not members of the Board on National Pantheon, which is
authorized by the law to cause the burial at the LNMB of the deceased
Presidents of the Philippines, national heroes, and patriots.
Petitioners are mistaken. Both in their pleadings and during the oral
arguments, they miserably failed to provide legal and historical bases
as to their supposition that the LNMB and the National Pantheon are
one and the same. This is not at all unexpected because the LNMB is
distinct and separate from the burial place envisioned in R.A. No 289.
The parcel of land subject matter of President Quirino's Proclamation
No. 431, which was later on revoked by President Magsaysay's
Proclamation No. 42, is different from that covered by Marcos'
Proclamation No. 208. The National Pantheon does not exist at
present. To date, the Congress has deemed it wise not to appropriate
any funds for its construction or the creation of the Board on National
Pantheon. This is indicative of the legislative will not to pursue, at the
moment, the establishment of a singular interment place for the
mortal remains of all Presidents of the Philippines, national heroes, and
patriots. Perhaps, the Manila North Cemetery, the Manila South
Cemetery, and other equally distinguished private cemeteries already
serve the noble purpose but without cost to the limited funds of the
government.
Even if the Court treats R.A. No. 289 as relevant to the issue, still,
petitioners' allegations must fail. To apply the standard that the LNMB
is reserved only for the "decent and the brave" or "hero" would be
violative of public policy as it will put into question the validity of the
burial of each and every mortal remains resting therein, and infringe
upon the principle of separation of powers since the allocation of plots
at the LNMB is based on the grant of authority to the President under
existing laws and regulations. Also, the Court shares the view of the
OSG that the proposed interment is not equivalent to the consecration
of Marcos' mortal remains. The act in itself does not confer upon him
the status of a "hero." Despite its name, which is actually a misnomer,
the purpose of the LNMB, both from legal and historical perspectives,
has neither been to confer to the people buried there the title of "hero"
nor to require that only those interred therein should be treated as a
"hero." Lastly, petitioners' repeated reference to a "hero's burial" and
"state honors," without showing proof as to what kind of burial or
honors that will be accorded to the remains of Marcos, is speculative
until the specifics of the interment have been finalized by public
respondents.
B. On R.A. No. 1036870 chanrobleslaw
For petitioners, R.A. No. 10368 modified AFP Regulations G 161-375
by implicitly disqualifying Marcos' burial at the LNMB because the
legislature, which is a co-equal branch of the government, has
statutorily declared his tyranny as a deposed dictator and has
recognized the heroism and sacrifices of the Human Rights Violations
Victims (HRVVs)71 under his regime. They insist that the intended act
of public respondents damages and makes mockery of the mandatory
teaching of Martial Law atrocities and of the lives and sacrifices of its
victims. They contend that "reparation" under R.A. No. 10368 is non-
judicial in nature but a political action of the State through the
Legislative and Executive branches by providing administrative relief
for the compensation, recognition, and memorialization of human
rights victims.
We beg to disagree.
Certainly, R.A. No. 10368 recognizes the heroism and sacrifices of all
Filipinos who were victims of summary execution, torture, enforced or
involuntary disappearance, and other gross human rights violations
committed from September 21, 1972 to February 25, 1986. To restore
their honor and dignity, the State acknowledges its moral and legal
obligation72 to provide reparation to said victims and/or their families
for the deaths, injuries, sufferings, deprivations and damages they
experienced.
In restoring the rights and upholding the dignity of HRVVs, which is
part of the right to an effective remedy, R.A. No. 10368 entitles them
to monetary and non-monetary reparation. Any HRVV qualified under
the law73 shall receive a monetary reparation, which is tax-free and
without prejudice to the receipt of any other sum from any other
person or entity in any case involving human rights violations.74 Anent
the non-monetary reparation, the Department of Health (DOH), the
Department of Social Welfare and Development (DSWD), the
Department of Education (DepEd), the Commission on Higher
Education (CHED), the Technical Education and Skills Development
Authority (TESDA), and such other government agencies are required
to render the necessary services for the HRVVs and/or their families,
as may be determined by the Human Rights Victims' Claims Board
(Board) pursuant to the provisions of the law.75 chanrobleslaw
Additionally, R.A. No. 10368 requires the recognition of the violations
committed against the HRVVs, regardless of whether they opt to seek
reparation or not. This is manifested by enshrining their names in the
Roll of Human Rights Violations Victims (Roll) prepared by the
Board.76 The Roll may be displayed in government agencies designated
by the HRVV Memorial Commission (Commission).77 Also, a
Memorial/Museum/Library shall be established and a compendium of
their sacrifices shall be prepared and may be readily viewed and
accessed in the internet.78 The Commission is created primarily for the
establishment, restoration, preservation and conservation of the
Memorial/Museum/ Library/Compendium.79 chanrobleslaw
To memorialize80 the HRVVs, the Implementing Rules and Regulations
of R.A. No. 10368 further mandates that: (1) the database prepared
by the Board derived from the processing of claims shall be turned
over to the Commission for archival purposes, and made accessible for
the promotion of human rights to all government agencies and
instrumentalities in order to prevent recurrence of similar abuses,
encourage continuing reforms and contribute to ending impunity;81 (2)
the lessons learned from Martial Law atrocities and the lives and
sacrifices of HRVVs shall be included in the basic and higher education
curricula, as well as in continuing adult learning, prioritizing those
most prone to commit human rights violations;82 and (3) the
Commission shall publish only those stories of HRVVs who have given
prior informed consent.83chanrobleslaw
This Court cannot subscribe to petitioners' logic that the beneficial
provisions of R.A. No. 10368 are not exclusive as it includes the
prohibition on Marcos' burial at the LNMB. It would be undue to extend
the law beyond what it actually contemplates. With its victim-oriented
perspective, our legislators could have easily inserted a provision
specifically proscribing Marcos' interment at the LNMB as a
"reparation" for the HRVVs, but they did not. As it is, the law is silent
and should remain to be so. This Court cannot read into the law what
is simply not there. It is irregular, if not unconstitutional, for Us to
presume the legislative will by supplying material details into the law.
That would be tantamount to judicial legislation.
Considering the foregoing, the enforcement of the HRVVs' rights under
R.A. No 10368 will surely not be impaired by the interment of Marcos
at the LNMB. As opined by the OSG, the assailed act has no causal
connection and legal relation to the law. The subject memorandum and
directive of public respondents do not and cannot interfere with the
statutory powers and functions of the Board and the Commission. More
importantly, the HRVVs' entitlements to the benefits provided for by
R.A. No 10368 and other domestic laws are not curtailed. It must be
emphasized that R.A. No. 10368 does not amend or repeal, whether
express or implied, the provisions of the Administrative Code or AFP
Regulations G 161-375: ChanRoblesVirtualawlibrary
It is a well-settled rule of statutory construction that repeals by
implication are not favored. In order to effect a repeal by implication,
the later statute must be so irreconcilably inconsistent and repugnant
with the existing law that they cannot be made to reconcile and stand
together. The clearest case possible must be made before the
inference of implied repeal may be drawn, for inconsistency is never
presumed. There must be a showing of repugnance clear and
convincing in character. The language used in the later statute must
be such as to render it irreconcilable with what had been formerly
enacted. An inconsistency that falls short of that standard does not
suffice. x x x84 chanroblesvirtuallawlibrary
C. On International Human Rights Laws
Petitioners argue that the burial of Marcos at the LNMB will violate the
rights of the HRVVs to "full" and "effective" reparation, which is
provided under the International Covenant on Civil and Political
Rights (ICCPR),85 the Basic Principles and Guidelines on the Right to a
Remedy and Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International
Humanitarian Law86 adopted by the U.N. General Assembly on
December 16, 2005, and the Updated Set of Principles for the
Protection and Promotion of Human Rights Through Action to Combat
Impunity87 dated February 8, 2005 by the U.N. Economic and Social
Council.
We do not think so. The ICCPR,88 as well as the U.N. principles on
reparation and to combat impunity, call for the enactment of
legislative measures, establishment of national programmes, and
provision for administrative and judicial recourse, in accordance with
the country's constitutional processes, that are necessary to give effect
to human rights embodied in treaties, covenants and other
international laws. The U.N. principles on reparation expressly
states:ChanRoblesVirtualawlibrary
Emphasizing that the Basic Principles and Guidelines contained
herein do not entail new international or domestic legal obligations
but identify mechanisms, modalities, procedures and methods for the
implementation of existing legal obligations under international human
rights law and international humanitarian law which are
complementary though different as to their norms[.][Emphasis 6. A.O. No. 163 dated December 8, 2006 (Strengthening and
supplied] Increasing the Membership of the Presidential Human Rights
The Philippines is more than compliant with its international Committee, and Expanding Further the Functions of Said
obligations. When the Filipinos regained their democratic institutions Committee)93 chanrobleslaw

after the successful People Power Revolution that culminated on

February 25, 1986, the three branches of the government have done 7. A.O. No. 181 dated July 3, 2007 (Directing the Cooperation
their fair share to respect, protect and fulfill the country's human and Coordination Between the National Prosecution Service
rights obligations, to wit: and Other Concerned Agencies of Government for the
Successful Investigation and Prosecution of Political and Media
The 1987 Constitution contains provisions that promote and protect
chanRoblesvirtualLawlibrary
Killings)
human rights and social justice.
8. A.O. No. 197 dated September 25, 2007 (DND and AFP
As to judicial remedies, aside from the writs of habeas corpus, Coordination with PHRC Sub-committee on Killings and
amparo,89 and habeas data,90 the Supreme Court promulgated on Disappearances) 
March 1, 2007 Administrative Order No. 25-2007,91 which provides
rules on cases involving extra-judicial killings of political ideologists
9. A.O. No. 211 dated November 26, 2007 (Creating a Task
and members of the media. The provision of the Basic Principles and
Force Against Political Violence) 
Guidelines on the prevention of the victim's re-traumatization applies
in the course of legal and administrative procedures designed to
provide justice and reparation.92 10. A.O. No. 249 dated December 10, 2008 (Further
Strengthening Government Policies, Plans, and Programs for
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On the part of the Executive Branch, it issued a number of the Effective Promotion and Protection of Human Rights on the
administrative and executive orders. Notable of which are the Occasion of the 60th Anniversary of the Universal Declaration
following: of Human Rights)

11. E.O. No. 847 dated November 23, 2009 (Creating the Church-
1. A.O. No. 370 dated December 10, 1997 (Creating the Inter�-
Police-Military-Liaison Committee to Formulate and Implement
Agency Coordinating Committee on Human Rights)
a Comprehensive Program to Establish Strong Partnership
Between the State and the Church on Matters Concerning
2. E.O. No. 118 dated July 5, 1999 (Providing for the Creation of Peace and Order and Human Rights) 
a National Committee on the Culture of Peace) 
12. A.O. No. 35 dated November 22, 2012 (Creating the Inter-
3. E.O. No. 134 dated July 31, 1999 (Declaring August 12, 1999 �Agency Committee on Extra-Legal Killings, Enforced
and Every 12th Day of August Thereafter as International Disappearances, Torture and Other Grave Violations of the
Humanitarian Law Day)  Right to Life, Liberty and Security of Persons) 

4. E.O. No. 404 dated January 24, 2005 (Creating the 13. A.O. No. 1 dated October 11, 2016 (Creating the Presidential
Government of the Republic of the Philippines Monitoring Task Force on Violations of the Right to Life, Liberty and
Committee [GRP�MC] on Human Rights and International Security of the Members of the Media)
Humanitarian Law) 
Finally, the Congress passed the following laws affecting human rights:
5. A.O. No. 157 dated August 21, 2006 (Creating an
Independent Commission to Address Media and Activist
Killings) 1. Republic Act No. 7438 (An Act Defining Certain Rights of
Person Arrested, Detained or Under Custodia/Investigation as
 well as the Duties of the Arresting, Detaining and 15. Republic Act No. 10368 (Human Rights Victims Reparation
Investigating Officers and Providing Penalties for Violations And Recognition Act of 2013) 
Thereof)
16. Republic Act No. 10530 (The Red Cross and Other Emblems
2. Republic Act No. 8371 (The Indigenous Peoples' Rights Act of Act of 2013)
1997)
Contrary to petitioners' postulation, our nation's history will not be
3. Republic Act No. 9201 (National Human Rights Consciousness instantly revised by a single resolve of President Duterte, acting
Week Act of 2002)  through the public respondents, to bury Marcos at the LNMB. Whether
petitioners admit it or not, the lessons of Martial Law are already
4. Republic Act No. 9208 (Anti-Trafficking in Persons Act of engraved, albeit in varying degrees, in the hearts and minds of the
2003)  present generation of Filipinos. As to the unborn, it must be said that
the preservation and popularization of our history is not the sole
5. Republic Act No. 9262 (Anti-Violence Against Women and responsibility of the Chief Executive; it is a joint and collective
Their Children Act of 2004)  endeavor of every freedom-loving citizen of this country.

6. Republic Act No. 9344 (Juvenile Justice and Welfare Act of Notably, complementing the statutory powers and functions of the
2006)  Human Rights Victims' Claims Board and the HRVV Memorial
Commission in the memorialization of HRVVs, the National Historical
Commission of the Philippines (NHCP), formerly known as the National
7. Republic Act No. 9372 (Human Security Act of 2007) 
Historical Institute (NHI),94 is mandated to act as the primary
government agency responsible for history and is authorized to
8. Republic Act No. 9710 (The Magna Carta of Women)  determine all factual matters relating to official Philippine
history.95 Among others, it is tasked to: (a) conduct and support all
9. Republic Act No. 9745 (Anti-Torture Act of 2009)  kinds of research relating to Philippine national and local history; (b)
develop educational materials in various media, implement historical
10. Republic Act No. 9851 (Philippine Act on Crimes Against educational activities for the popularization of Philippine history, and
International Humanitarian Law, Genocide, and Other Crimes disseminate, information regarding Philippine historical events, dates,
Against Humanity)  places and personages; and (c) actively engage in the settlement or
resolution of controversies or issues relative to historical personages,
11. Republic Act No. 10121 (Philippine Disaster Risk Reduction places, dates and events.96 Under R.A. Nos. 10066 (National Cultural
and Management Act of 2010)  Heritage Act of 2009)97 and 10086 (Strengthening Peoples'
Nationalism Through Philippine History Act),98 the declared State policy
12. Republic Act No. 10168 (The Terrorism Financing Prevention is to conserve, develop, promote, and popularize the nation's historical
and Suppression Act of 2012)  and cultural heritage and resources.99 Towards this end, means shall
be provided to strengthen people's nationalism, love of country,
13. Republic Act No. 10353 (Anti-Enforced or Involuntary respect for its heroes and pride for the people's accomplishments by
Disappearance Act of 2012)  reinforcing the importance of Philippine national and local history in
daily life with the end in view of raising social consciousness.100 Utmost
priority shall be given not only with the research on history but also its
14. Republic Act No. 10364 (Expanded Anti-Trafficking In Persons
popularization.101
Act of 2012) 
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II. 
The President's decision to bury Marcos at the LNMB is not
 done whimsically, capriciously or arbitrarily, out of malice, ill
will or personal bias
Petitioners contend that the interment of Marcos at the LNMB will
desecrate it as a sacred and hallowed place and a revered national
shrine where the mortal remains of our country's great men and
women are interred for the inspiration and emulation of the present
generation and generations to come. They erred.
A. National Shrines
As one of the cultural properties of the Philippines, national historical
shrines (or historical shrines) refer to sites or structures hallowed and
revered for their history or association as declared by the NHCP.102 The
national shrines created by law and presidential issuance include,
among others: Fort Santiago (Dambana ng Kalayaan) in Manila;103 all
battlefield areas in Corregidor and Bataan;104 the site of First Mass in
the Philippines in Magallanes, Limasawa, Leyte;105 Aguinaldo Shrine or
Freedom Shrine in Kawit, Cavite;106 Fort San Antonio Abad National
Shrine in Malate, Manila;107 Tirad Pass National Shrine in Ilocos
Sur;108 Ricarte Shrine109 and Aglipay Shrine110 in Batac, Ilocos Norte;
Liberty Shrine in Lapu-Lapu, Cebu;111 "Red Beach" or the landing point
of General Douglas MacArthur and the liberating forces in Baras, Palo,
Leyte;112 Dapitan City as a National Shrine City in Zamboanga Del
Norte;113 General Leandro Locsin Fullon National Shrine in Hamtic,
Antique;114 and Mabini Shrine in Polytechnic University of the
Philippines - Mabini Campus, Sta. Mesa, Manila.115 As sites of the birth,
exile, imprisonment, detention or death of great and eminent leaders
of the nation, it is the policy of the Government to hold and keep the
national shrines as sacred and hallowed place.116 P.O. No.
105117 strictly prohibits and punishes by imprisonment and/or fine the
desecration of national shrines by disturbing their peace and serenity
through digging, excavating, defacing, causing unnecessary noise, and
committing unbecoming acts within their premises. R.A. No. 10066
also makes it punishable to intentionally modify, alter, or destroy the
original features of, or undertake construction or real estate
development in any national shrine, monument, landmark and other
historic edifices and structures, declared, classified, and marked by the
NHCP as such, without the prior written permission from the National
Commission for Culture and the Arts (NCAA).118 chanrobleslaw
As one of the cultural agencies attached to the NCAA,119 the NHCP
manages, maintains and administers national shrines, monuments,
historical sites, edifices and landmarks of significant historico-cultural
value.120 In particular, the NHCP Board has the power to approve the
declaration of historic structures and sites, such as national shrines,
monuments, landmarks and heritage houses and to determine the
manner of their identification, maintenance, restoration, conservation,
preservation and protection.121 chanrobleslaw
Excluded, however, from the jurisdiction of the NHCP are the military
memorials and battle monuments declared as national shrines, which
have been under the administration, maintenance and development of
the Philippine Veterans Affairs Office (PVAO) of the DND. Among the
military shrines are: Mt. Samat National Shrine in Pilar,
Bataan;122 Kiangan War Memorial Shrine in Linda, Kiangan,
Ifugao;123 Capas National Shrine in Capas, Tarlac;124 Ricarte National
Shrine in Malasin, Batac, Ilocos Norte;125 Balantang Memorial Cemetery
National Shrine in Jaro, Iloilo;126 Balete Pass National Shrine in Sta. Fe,
Nueva Vizcaya;127 USAFIP, NL Military Shrine and Park in Bessang
Pass, Cervantes, Ilocos Sur;128 and the LNMB in Taguig City, Metro
Manila.129
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B. The Libingan Ng Mga Bayani
At the end of World War II, the entire nation was left mourning for the
death of thousands of Filipinos. Several places served as grounds for
the war dead, such as the Republic Memorial Cemetery, the Bataan
Memorial Cemetery, and other places throughout the country. The
Republic Memorial Cemetery, in particular, was established in May
1947 as a fitting tribute and final resting place of Filipino military
personnel who died in World War II.
On October 23, 1954, President Ramon D. Magsaysay, Sr. issued E.O.
No. 77, which ordered "the remains of the war dead interred at the
Bataan Memorial Cemetery, Bataan Province, and at other places in
the Philippines, be transferred to, and reinterred at, the Republic
Memorial Cemetery at Fort Wm Mckinley, Rizal Province" so as to
minimize the expenses for the maintenance and upkeep, and to make
the remains accessible to the widows, parents, children, relatives, and
friends.
On October 27, 1954, President Magsaysay issued Proclamation No.
86, which changed the name of Republic Memorial Cemetery
to Libingan Ng Mga Bayani to symbolize "the cause for which our
soldiers have died" and to "truly express the nations esteem and
reverence for her war dead."130 chanrobleslaw
On July 12, 1957, President Carlos P. Garcia issued Proclamation No.
423, which reserved for military purposes, under the administration of
the AFP Chief of Staff, the land where LNMB is located. The LNMB was
part of a military reservation site then known as Fort Wm McKinley
(now known as Fort Andres Bonifacio).
On May 28, 1967, Marcos issued Proclamation No. 208, which
excluded the LNMB from the Fort Bonifacio military reservation and
reserved the LNMB for national shrine purposes under the
administration of the National Shrines Commission (NSC) under the
DND.
On September 24, 1972, Marcos, in the exercise of his powers as the
AFP Commander-in-Chief, and pursuant to Proclamation No. 1081
dated September 21, 1972, and General Order No. 1 dated September
22, 1972, as amended, issued Presidential Decree (P.D.) No. 1 which
reorganized the Executive Branch of the National Government through
the adoption of the Integrated Reorganization Plan (IRP). Section 7,
Article XV, Chapter I, Part XII thereof abolished the NSC and its
functions together with applicable appropriations, records, equipment,
property and such personnel as may be necessary were transferred to
the NHI under the Department of Education (DEC). The NHI was
responsible for promoting and preserving the Philippine cultural
heritage by undertaking, inter alia, studies on Philippine history and
national heroes and maintaining national shrines and monuments.131
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Pending the organization of the DEC, the functions relative to the
administration, maintenance and development of national shrines
tentatively integrated into the PVAO in July 1973.
On January 26, 1977, President Marcos issued P.D. No. 1076. Section
7, Article XV, Chapter I, Part XII of the IRP was repealed on the
grounds that "the administration, maintenance and development of
national shrines consisting of military memorials or battle monuments
can be more effectively accomplished if they are removed from the
[DEC] and transferred to the [DND] by reason of the latter s greater
capabilities and resources" and that "the functions of the [DND] are
more closely related and relevant to the charter or significance of said
national shrines." Henceforth, the PVAO through the Military Shrines
Service (MSS), which was created to perform the functions of the
abolished NSC - would administer, maintain and develop military
memorials and battle monuments proclaimed as national shrines.
On July 25, 1987, President Corazon C. Aquino issued the
Administrative Code. The Code retains PVAO under the supervision and
control of the Secretary of National Defense.132 Among others, PVAO
shall administer, develop and maintain military shrines.133 With the
approval of PVAO Rationalization Plan on June 29, 2010, pursuant to
E.O. No. 366 dated October 4, 2004, MSS was renamed to Veterans
Memorial and Historical Division, under the supervision and control of
PVAO, which is presently tasked with the management and
development of military shrines and the perpetuation of the heroic
deeds of our nation's veterans.
As a national military shrine, the main features, structures, and
facilities of the LNMB are as follows:
1. Tomb of the Unknown Soldiers - The main structure
constructed at the center of the cemetery where wreath laying
ceremonies are held when Philippine government officials and
foreign dignitaries visit the LNMB. The following inscription is
found on the tomb: "Here lies a Filipino soldier whose name is
known only to God." Behind the tomb are three marble pillars
representing the three main island groups of the Philippines -
Luzon, Visayas and Mindanao. Buried here were the remains
of 39,000 Filipino soldiers who were originally buried in Camp
O'Donnell Concentration Camp and Fort Santiago, Intramuros,
Manila.
2. Heroes Memorial Gate - A structure shaped in the form of a
large concrete tripod with a stairway leading to an upper view
deck and a metal sculpture at the center. This is the first
imposing structure one sees upon entering the grounds of the
cemetery complex.
3. Black Stone Walls - Erected on opposite sides of the main
entrance road leading to the Tomb of the Unknown Soldiers
and just near the Heroes Memorial are two 12-foot high black
stone walls which bear the words, "I do not know the dignity
of his birth, but I do know the glory of his death." that General
Douglas MacArthur made during his sentimental journey to the
Philippines in 1961.
4. Defenders of Bataan and Corregidor Memorial Pylon -
Inaugurated on April 5, 1977 by Secretary Renato S. De Villa
in memory of the defenders of Bataan and Corregidor during
World War II. This monument is dedicated as an eternal
acknowledgment of their valor and sacrifice in defense of the
Philippines.
 5. Korean Memorial Pylon - A towering monument honoring
the 112 Filipino officers and men who, as members of the
Philippine Expeditionary Forces to Korea (PEFTOK), perished
during the Korean War.
6. Vietnam Veterans Memorial Pylon - Dedicated to the
members of the Philippine contingents and Philippine civic
action groups to Vietnam (PHILCON�-V and PHILCAG-V) who
served as medical, dental, engineering construction,
community and psychological workers, and security
complement. They offered tremendous sacrifices as they
alleviated human suffering in war-ravaged Vietnam from
1964-1971. Inscribed on the memorial pylon are the words:
"To build and not to destroy, to bring the Vietnamese people
happiness and not sorrow, to develop goodwill and not
hatred."
7. Philippine World War II Guerillas Pylon - Erected by the
Veterans Federation of the Philippines as a testimony to the
indomitable spirit and bravery of the Filipino guerillas of World
War II who refused to be cowed into submission and carried
on the fight for freedom against an enemy with vastly superior
arms and under almost insurmountable odds. Their hardship
and sufferings, as well as their defeats and victories, are
enshrined in this memorial.134
Contrary to the dissent, P.D. No. 105135 does not apply to the LNMB.
Despite the fact that P.D. No. 208 predated P.D. No. 105,136 the LNMB
was not expressly included in the national shrines enumerated in the
latter.137 The proposition that the LNMB is implicitly covered in the
catchall phrase "and others which may be proclaimed in the future as
National Shrines" is erroneous because:
chanRoblesvirtualLawlibrary (1) As stated, Marcos issued P.D. No. 208 prior to P.D. No. 105.
(2) Following the canon of statutory construction known as ejusdem
generis,138 the LNMB is not a site "of the birth, exile, imprisonment,
detention or death of great and eminent leaders of the nation." What
P.D. No. 105 contemplates are the following national shrines: Fort
Santiago ("Dambana ng Kalayaan"), all battlefield areas in Corregidor
and Bataan, the site of First Mass in the Philippines, Aguinaldo Shrine
or Freedom Shrine, Fort San Antonio Abad National Shrine, Tirad Pass
National Shrine, Ricarte Shrine, Aglipay Shrine, Liberty Shrine, "Red
Beach" or the landing point of General Douglas MacArthur and the
liberating forces, Dapitan City, General Leandro Locsin Fullon National
Shrine, and Mabini Shrine. Excluded are the military memorials and
battle monuments declared as national shrines under the PVAO, such
as: Mt. Samat National Shrine, Kiangan War Memorial Shrine, Capas
National Shrine, Ricarte National Shrine, Balantang Memorial Cemetery
National Shrine, Balete Pass National Shrine; USAFIP, NL Military
Shrine and Park, and the LNMB.
(3) Since its establishment, the LNMB has been a military shrine under
the jurisdiction of the PVAO. While P.D. No. 1 dated September 24,
1972 transferred the administration, maintenance and development of
national shrines to the NHI under the DEC, it never actually
materialized. Pending the organization of the DEC, its functions
relative to national shrines were tentatively integrated into the PVAO in
July 1973. Eventually, on January 26, 1977, Marcos issued P.D. No.
1076. The PVAO, through the MSS, was tasked to administer,
maintain, and develop military memorials and battle monuments
proclaimed as national shrines. The reasons being that "the
administration, maintenance and development of national shrines
consisting of military memorials or battle monuments can be more
effectively accomplished if they are removed from the [DEC] and
transferred to the [DND] by reason of the latter's greater capabilities
and resources" and that "the functions of the [DND] are more closely
related and relevant to the charter or significance of said national
shrines."
The foregoing interpretation is neither narrow and myopic nor
downright error. Instead, it is consistent with the letter and intent of
P.D. No. 105.
Assuming that P.D. No. 105 is applicable, the descriptive words
"sacred and hallowed" refer to the LNMB as a place and not to each
and every mortal remains interred therein. Hence, the burial of Marcos
at the LNMB does not diminish said cemetery as a revered and
respected ground. Neither does it negate the presumed individual or
collective "heroism" of the men and women buried or will be buried
therein. The "nations esteem and reverence for her war dead," as
originally contemplated by President Magsaysay in issuing
Proclamation No. 86, still stands unaffected. That being said, the
interment of Marcos, therefore, does not constitute a violation of the
physical, historical, and cultural integrity of the LNMB as a national
military shrine.
At this juncture, reference should be made to Arlington National
Cemetery (Arlington), which is identical to the LNMB in terms of its
prominence in the U.S. It is not amiss to point that our armed forces
have been patterned after the U.S. and that its military code produced
a salutary effect in the Philippines' military justice system.139 Hence,
relevant military rules, regulations, and practices of the U.S. have
persuasive, if not the same, effect in this jurisdiction.
As one of the U.S. Army national military cemeteries,140 the Arlington
is under the jurisdiction of the Department of the Army.141 The
Secretary of the U.S. Army has the responsibility to develop, operate,
manage, administer, oversee, and fund the Army national military
cemeteries in a manner and to standards that fully honor the service
and sacrifices of the deceased members of the armed forces buried or
inurned therein, and shall prescribe such regulations and policies as
may be necessary to administer the cemeteries.142 In addition, the
Secretary of the U.S. Army is empowered to appoint an advisory
committee, which shall make periodic reports and recommendations as
well as advise the Secretary with respect to the administration of the
cemetery, the erection of memorials at the cemetery, and master
planning for the cemetery.143chanrobleslaw
Similar to the Philippines, the U.S. national cemeteries are established
as national shrines in tribute to the gallant dead who have served in
the U.S. Armed Forces.144 The areas are protected, managed and
administered as suitable and dignified burial grounds and as significant
cultural resources.145 As such, the authorization of activities that take
place therein is limited to those that are consistent with applicable
legislation and that are compatible with maintaining their solemn
commemorative and historic character.146 chanrobleslaw
The LNMB is considered as a national shrine for military memorials.
The PVAO, which is empowered to administer, develop, and maintain
military shrines, is under the supervision and control of the DND. The
DND, in turn, is under the Office of the President.
The presidential power of control over the Executive Branch of
Government is a self-executing provision of the Constitution and does
not require statutory implementation, nor may its exercise be limited,
much less withdrawn, by the legislature.147 This is why President
Duterte is not bound by the alleged 1992 Agreement148 between
former President Ramos and the Marcos family to have the remains of
Marcos interred in Batac, Ilocos Norte. As the incumbent President, he
is free to amend, revoke or rescind political agreements entered into
by his predecessors, and to determine policies which he considers,
based on informed judgment and presumed wisdom, will be most
effective in carrying out his mandate.
Moreover, under the Administrative Code, the President has the power
to reserve for public use and for specific public purposes any of the
lands of the public domain and that the reserved land shall remain
subject to the specific public purpose indicated until otherwise
provided by law or proclamation.149 At present, there is no law or
executive issuance specifically excluding the land in which the LNMB is
located from the use it was originally intended by the past Presidents.
The allotment of a cemetery plot at the LNMB for Marcos as a former
President and Commander-in-Chief,150 a legislator,151 a Secretary of
National Defense,152 a military personnel,153 a veteran,154 and a Medal
of Valor awardee,155 whether recognizing his contributions or simply his
status as such, satisfies the public use requirement. The disbursement
of public funds to cover the expenses incidental to the burial is granted
to compensate him for valuable public services rendered.156 Likewise,
President Duterte's determination to have Marcos' remains interred at
the LNMB was inspired by his desire for national healing and
reconciliation. Presumption of regularity in the performance of official
duty prevails over petitioners' highly disputed factual allegation that, in
the guise of exercising a presidential prerogative, the Chief Executive
is actually motivated by utang na loob (debt of gratitude) and bayad
utang (payback) to the Marcoses. As the purpose is not self-evident,
petitioners have the burden of proof to establish the factual basis of
their claim. They failed. Even so, this Court cannot take cognizance of
factual issues since We are not a trier of facts.
C. AFP Regulations on the LNMB
A review of the regulations issued by the AFP Chief of Staff as to who
may and may not be interred at the LNMB underscores the nature and
purpose of the LNMB as an active military cemetery/grave site.
On May 13, 1947, the Chief of Staff of the Philippine Army, by the
direction of the President and by order of the Secretary of National
Defense, issued General Orders No. 111, which constituted and
activated, as of said date, the Graves Registration Platoon as a unit of
the Philippine Army.
On February 2, 1960, the AFP Chief of Staff, by order of the Secretary
of National Defense, issued AFP Regulations G 161-371 (Administrative
and Special Staff Services, Grave Registration Service), which provided
that the following may be interred in the LNMB: (a) World War II dead
of the AFP and recognized guerillas; (b) Current dead of the AFP; (c)
Retired military personnel of the AFP; (d) Remains of former members
of the AFP who died while in the active service and in the Retired List
of the AFP now interred at different cemeteries and other places
throughout the Philippines or the Secretary of National Defense; and
(e) Others upon approval of the Congress of the Philippines, the
President of the Philippines or the Secretary of National Defense. The
regulation also stated that the AFP Quartermaster General will be
responsible for, among other matters, the efficient operation of the
Graves Registration Service; the interment, disinterment and
reinterment of the dead mentioned above; and preservation of military
cemeteries, national cemeteries, and memorials.
On July 31, 1973, the AFP Chief of Staff, by order of the Secretary of
National Defense, issued AFP Regulations G 161-372 (Administration
and Operation of AFP Graves Registration Installations), which
superseded AFP Regulations G 161-371. It provided that the following
may be interred in the LNMB: (a) Deceased Veterans of the Philippine
Revolution of 1896/World War I; (b) Deceased World War II members
of the AFP and recognized guerillas; (c) Deceased military personnel of
the AFP who died while in the active duty; (d) Deceased retired
military personnel of the AFP; (e) Deceased military personnel of the
AFP interred at different cemeteries and other places outside the
LNMB; and (f) Such remains of persons as the Commander-in-Chief of
the AFP may direct. The remains of the following were not allowed to
be interred in the LNMB: (a) The spouse of an active, or retired,
deceased military personnel, recognized guerillas who himself/herself
is not a military personnel; and (b) AFP personnel who were retireable
but separated/reverted/discharged for cause, or joined and aided the
enemy of the Republic of the Philippines, or were convicted of capital
or other criminal offenses, involving moral turpitude. The regulation
also stated that the Quartermaster General shall be responsible for,
among other matters, the efficient operation of the AFP graves
registration installations; the interment, disinterment and reinterment
of deceased military personnel mentioned above; and the preservation
of military cemeteries, proper marking and official recording of graves
therein.
On April 9, 1986, AFP Chief of Staff Fidel V. Ramos, by order of
National Defense Minister, issued AFP Regulations G 161-373
(Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which
superseded AFP Regulations G 161-372. It enumerated a list of
deceased person who may be interred at the LNMB, namely: (a) Medal
of Valor Awardees; (b) Presidents or Commanders-in-Chief, AFP; (c)
Ministers of National Defense; (d) Chiefs of Staff, AFP; (e)
General/Flag Officers of the AFP; (f) Active and retired military
personnel of the AFP; (g) Veterans of Philippine Revolution of 1896,
WWI, WWII and recognized guerillas; and (h) Government Dignitaries,
Statesmen, National Artist and other deceased persons whose
interment or reinterment has been approved by the Commander-in-
Chief, Batasang Pambansa or the Minister of National Defense. The
regulation also stated that the Quartermaster General shall be
responsible for the allocation of specific section/areas for the said
deceased persons, while the Commanding Officer of the Quartermaster
Graves Registration Company shall be charged with the preparation of
grave sites, supervision of burials at LNMB and the registration of
graves.
On March 27, 1998, the AFP Chief of Staff, by order of the Secretary of
National Defense, issued AFP Regulations G 161-374 (Allocation of
Cemetery Plots at the Libingan Ng Mga Bayani), which superseded AFP
Regulations G 161-373. It provided that the following may be interred
in the LNMB: (a) Medal of Valor Awardees; (b) Presidents or
Commanders-in�Chief, AFP; (c) Secretaries of National Defense; (d)
Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active
and retired military personnel of the AFP; (g) Veterans of Philippine
Revolution of 1890, WWI, WWII and recognized guerillas; (h)
Government Dignitaries, Statesmen, National Artists and other
deceased persons whose interment or reinterment has been approved
by the Commander-in-Chief, Congress or Secretary of National
Defense; and (i) Former Presidents, Secretaries of Defense, CSAFP,
Generals/Flag Officers, Dignitaries, Statesmen, National Artists,
widows of former Presidents, Secretaries of National Defense and Chief
of Staff. The remains of the following were not allowed to be interred
in the LNMB: (a) Personnel who were dishonorably
separated/reverted/discharged from the service; and (b) Authorized
personnel who were convicted by final judgment of an offense
involving moral turpitude. Like AFP Regulations G 161-373, it stated
that the Quartermaster General shall be responsible for the allocation
of specific section/areas for the deceased persons, whereas the
Commanding Officer of the Quartermaster Graves Registration Unit
shall be charged with the preparation of grave sites, supervision of
burials, and the registration of graves.
Finally, on September 11, 2000, the AFP Chief of Staff, by the order of
the Secretary of National Defense, issued AFP Regulations G 161-375
(Allocation of Cemetery Plots at the Libingan Ng Mga Bayani), which
superseded AFP Regulations G 161-374. The regulation stated that the
Chief of Staff shall be responsible for the issuance of interment
directive for all active military personnel for interment, authorized
personnel (such as those former members of the AFP who laterally
entered or joined the Philippine Coast Guard [PCG] and the Philippine
National Police [PNP]), and retirees, veterans and reservists
enumerated therein. The Quartermaster General is tasked to exercise
over-all supervision in the implementation of the regulation and the
Commander ASCOM, PA through the Commanding Officer of Grave
Services Unit is charged with the registration of the deceased/graves,
the allocation of specific section/area at the LNMB for interment of
deceased, the preparation of grave sites, and the supervision of
burials.
Under AFP Regulations G 161-375, the following are eligible for
interment at the LNMB: (a) Medal of Valor Awardees; (b) Presidents or
Commanders-in-Chief, AFP; (c) Secretaries of National Defense; (d)
Chiefs of Staff, AFP; (e) General/Flag Officers of the AFP; (f) Active
and retired military personnel of the AFP to include active draftees and
trainees who died in line of duty, active reservists and CAFGU Active
Auxiliary (CAA) who died in combat operations or combat related
activities; (g) Former members of the AFP who laterally entered or
joined the PCG and the PNP; (h) Veterans of Philippine Revolution of
1890, WWI, WWII and recognized guerillas; (i) Government
Dignitaries, Statesmen, National Artists and other deceased persons
whose interment or reinterment has been approved by the
Commander-in-Chief, Congress or the Secretary of National Defense;
and G) Former Presidents, Secretaries of Defense, Dignitaries,
Statesmen, National Artists, widows of Former Presidents, Secretaries
of National Defense and Chief of Staff. Similar to AFP Regulations G
161-374, the following are not qualified to be interred in the LNMB: (a)
Personnel who were dishonorably separated/reverted/discharged from
the service; and (b) Authorized personnel who were convicted by final
judgment of an offense involving moral turpitude.
In the absence of any executive issuance or law to the contrary, the
AFP Regulations G 161-375 remains to be the sole authority in
determining who are entitled and disqualified to be interred at the
LNMB. Interestingly, even if they were empowered to do so, former
Presidents Corazon C. Aquino and Benigno Simeon C. Aquino III, who
were themselves aggrieved at the Martial Law, did not revise the rules
by expressly prohibiting the burial of Marcos at the LNMB. The validity
of AFP Regulations G 161-375 must, therefor, be sustained for having
been issued by the AFP Chief of Staff acting under the direction of the
Secretary of National Defense, who is the alter ego of the President.
x x x In Joson v. Torres, we explained the concept of the alter ego
principle or the doctrine of qualified political agency and its limit in this
wise:
Under this doctrine, which recognizes the establishment of a single
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executive, all executive and administrative organizations are adjuncts
of the Executive Department, the heads of the various executive
departments are assistants and agents of the Chief Executive,
and, except in cases where the Chief Executive is required by
the Constitution or law to act in person or the exigencies of the
situation demand that he act personally, the multifarious
executive and administrative functions of the Chief Executive are
performed by and through the executive departments, and the acts of
the Secretaries of such departments, performed and promulgated in
the regular course of business, are, unless disapproved or reprobated
by the Chief Executive presumptively the acts of the Chief Executive.
(Emphasis ours, citation omitted.)157 chanroblesvirtuallawlibrary
It has been held that an administrative regulation adopted pursuant to
law has the force and effect of law and, until set aside, is binding upon
executive and administrative agencies, including the President as the
chief executor of laws.158 chanrobleslaw
1. Qualification under the AFP Regulations
AFP Regulations G 161-375 should not be stricken down in the absence
of clear and unmistakable showing that it has been issued with grave
abuse of discretion amounting to lack or excess of jurisdiction. Neither
could it be considered ultra vires for purportedly providing incomplete,
whimsical, and capricious standards for qualification for burial at the
LNMB.
To compare, We again refer to the U.S. Army regulations on Arlington.
In the U.S., the Secretary of the Army, with the approval of the
Secretary of Defense, determines eligibility for interment or inurnment
in the Army national military cemeteries.159 Effective October 26, 2016,
the rule160 is as follows: ChanRoblesVirtualawlibrary
Only those who qualify as a primarily eligible person or a derivatively
eligible person are eligible for interment in Arlington National
Cemetery, unless otherwise prohibited as provided for in ��
553.19161-553.20,162 provided that the last period of active duty of the
service member or veteran ended with an honorable discharge.
(a) Primarily eligible persons. The following are primarily eligible
persons for purposes of interment:
(1) Any service member who dies on active duty in the U.S. Armed
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Forces (except those service members serving on active duty for
training only), if the General Courts Martial Convening Authority grants
a certificate of honorable service. 
(2) Any veteran retired from a Reserve component who served a
period of active duty (other than for training), is carried on the official November 30, 1993. 
retired list, and is entitled to receive military retired pay. 
(b) Derivatively eligible persons. The following individuals are
(3) Any veteran retired from active military service and entitled to derivatively eligible persons for purposes of interment who may be
receive military retired pay.  interred if space is available in the gravesite of the primarily eligible
person:
(4) Any veteran who received an honorable discharge from the Armed
Forces prior to October 1, 1949, who was discharged for a permanent (1) The spouse of a primarily eligible person who is or will be
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physical disability, who served on active duty (other than for training),
and who would have been eligible for retirement under the provisions
of 10 U.S.C. 1201 had the statute been in effect on the date of
separation. 
(5) Any veteran awarded one of the following decorations:
interred in Arlington National Cemetery. A former spouse of a primarily
eligible person is not eligible for interment in Arlington National
Cemetery under this paragraph.
(2) The spouse of an active duty service member or an eligible
veteran, who was:

chanRoblesvirtualLawlibrary (i) Medal of Honor;163 chanrobleslaw (i) Lost or buried at sea, temporarily interred overseas due to
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action by the Government, or officially determined to be missing in

(ii) Distinguished Service Cross, Air Force Cross, or Navy Cross;  action;

(iii) Distinguished Service Medal;  (ii) Buried in a U.S. military cemetery maintained by the American
Battle Monuments Commission; or 
(iv) Silver Star; or 
(iii) Interred in Arlington National Cemetery as part of a group burial
(v) Purple Heart.  (the derivatively eligible spouse may not be buried in the group burial
gravesite).
(6) Any veteran who served on active duty (other than active duty for
training) and who held any of the following positions: (3) The parents of a minor child or a permanently dependent adult
child, whose remains were interred in Arlington National Cemetery
chanRoblesvirtualLawlibrary (i) President or Vice President of the United States;  based on the eligibility of a parent at the time of the child's death,
unless eligibility of the non-service connected parent is lost through
(ii) Elected member of the U.S. Congress;  divorce from the primarily eligible parent.

(iii) Chief Justice of the Supreme Court of the United States or (4) An honorably discharged veteran who does not qualify as a
Associate Justice of the Supreme Court of the United States;  primarily eligible person, if the veteran will be buried in the same
gravesite as an already interred primarily eligible person who is a close
(iv) A position listed, at the time the person held the position, in 5 relative, where the interment meets the following conditions:
U.S.C. 5312164 or 5313165 (Levels I and II of the Executive Schedule);
or (i) The veteran is without minor or unmarried adult dependent
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children; 
(v) Chief of Mission of a Category 4, 5, or post if the Department of
State classified that post as a Category 4, 5, or 5+ post during the (ii) The veteran will not occupy space reserved for the spouse, a minor
person's tenure as Chief of Mission. child, or a permanently dependent adult child; 

(7) Any former prisoner of war who, while a prisoner of war, served (iii) All other close relatives of the primarily eligible person concur with
honorably in the active military service, and who died on or after the interment of the veteran with the primarily eligible person by
signing a notarized statement;  whose interment or reinterment has been approved by the
(iv) The veteran's spouse waives any entitlement to interment in
Arlington National Cemetery, where such entitlement might be based
on the veteran's interment in Arlington National Cemetery. The
Executive Director may set aside the spouse's waiver, provided space
is available in the same gravesite, and all close relatives of the
primarily eligible person concur;  indubitable that Marcos had rendered significant active military service
(v) Any cost of moving, recasketing, or revaulting the remains will be
paid from private funds.
There is a separate list of eligible with respect to the inurnment of
cremated remains in the Columbarium,166 interment of cremated
remains in the Unmarked Area,167 and group burial.168 As a national
military cemetery, eligibility standards for interment, inurnment, or
memorialization in Arlington are based on honorable military
service.169 Exceptions to the eligibility standards for new graves,
which are rarely granted, are for those persons who have
made significant contributions that directly and substantially
benefited the U.S. military.170 chanrobleslaw
Judging from the foregoing, it is glaring that the U.S. Army regulations
on Arlington and the AFP Regulations G 161-375 on the LNMB, as a
general rule, recognize and reward the military services or military
related activities of the deceased. Compared with the latter, however,
the former is actually less generous in granting the privilege of
interment since only the spouse or parent, under certain conditions,
may be allowed "if space is available in the gravesite of the primarily
eligible person."
It is not contrary to the "well-established custom," as the dissent
described it, to argue that the word "bayani" in the LNMB has become
a misnomer since while a symbolism of heroism may attach to the
LNMB as a national shrine for military memorial, the same does not
automatically attach to its feature as a military cemetery and to those
who were already laid or will be laid therein. As stated, the purpose of
the LNMB, both from the legal and historical perspectives, has neither
been to confer to the people buried there the title of "hero" nor to
require that only those interred therein should be treated as a "hero."
In fact, the privilege of internment at the LNMB has been loosen up
through the years. Since 1986, the list of eligible includes not only
those who rendered active military service or military-related activities
but also non-military personnel who were recognized for their
significant contributions to the Philippine society (such as government
dignitaries, statesmen, national artists, and other deceased persons
Commander-in-Chief, Congress or Secretary of National Defense). In
1998, the widows of former Presidents, Secretaries of National
Defense and Chief of Staff were added to the list. Whether or not the
extension of burial privilege to civilians is unwarranted and should be
restricted in order to be consistent with the original purpose of the
LNMB is immaterial and irrelevant to the issue at bar since it is
and military-related activities.
Petitioners did not dispute that Marcos was a former President and
Commander-in-Chief, a legislator, a Secretary of National Defense, a
military personnel, a veteran, and a Medal of Valor awardee. For his
alleged human rights abuses and corrupt practices, we may disregard
Marcos as a President and Commander-in-Chief, but we cannot deny
him the right to be acknowledged based on the other positions he held
or the awards he received. In this sense, We agree with the
proposition that Marcos should be viewed and judged in his totality as
a person. While he was not all good, he was not pure evil either.
Certainly, just a human who erred like us.
Our laws give high regard to Marcos as a Medal of Valor awardee and a
veteran. R.A. No. 9049171 declares the policy of the State "to
consistently honor its military heroes in order to strengthen the
patriotic spirit and nationalist consciousness of the military."172 For the
"supreme self�-sacrifice and distinctive acts of heroism and
gallantry,"173 a Medal of Valor awardee or his/her
dependents/heirs/beneficiaries are entitled to the following social
services and financial rewards:
1. Tax-exempt lifetime monthly gratuity of Twenty Thousand
Pesos (P20,000.00), which is separate and distinct from any
salary or pension that the awardee currently receives or will
receive from the government of the Philippines;174
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2. Precedence in employment in government agencies or
government-owned or controlled corporation, if the job
qualifications or requirements are met; 
3. Priority in the approval of the awardee's housing application
under existing housing programs of the government;
 4. Priority in the acquisition of public lands under the Public Land
Act and preferential right in the lease of pasture lands and
exploitation of natural resources;  may be withheld if the Commission on Human Rights certifies to the
5. Privilege of obtaining loans in an aggregate amount not
exceeding Five Hundred Thousand Pesos (P500,000.00) from
government�owned or controlled financial institutions without
having to put up any collateral or constitute any pledge or
mortgage to secure the payment of the loan;  2. Disqualification under the AFP Regulations
6. Twenty (20%) percent discount from all establishments
relative to utilization of transportation services, hotels and
similar lodging establishments, restaurants, recreation and
sport centers and purchase of medicine anywhere in the
country;  military service.
7. Twenty (20%) percent discount on admission fees charged by
theaters, cinema houses and concert halls, circuses, carnivals
and other similar places of culture, leisure and amusement; 
8. Free medical and dental services and consultation in hospital
and clinics anywhere in the country;  for his gross human rights violations, massive graft and corruption,
9. Exemption from the payment of tuition and matriculation fees
in public or private schools, universities, colleges and other
educational institutions in any pre-school, baccalaureate or
post� graduate courses such as or including course leading to
the degree of Doctor of Medicine (MD), Bachelor of Laws
(LLB), and Bachelor of Science in Nursing (BSN) or allied and
similar courses; and cralawlawlibrary
10. If interested and qualified, a quota is given to join the cadet
corps of the Philippine Military Academy or otherwise priority
for direct commission, call to active duty (CAD) and/or
enlistment in regular force of the AFP.
On the other hand, in recognizing their patriotic services in times of
war and peace for the cause of freedom and democracy; for the
attainment of national unity, independence, and socioeconomic
advancement; and for the maintenance of peace and order,175 R.A. No.
6948, as amended,176 grants our veterans177 and their dependents or
survivors with pension (old age, disability, total administrative
disability, and death) and non-pension (burial, education,
hospitalization, and medical care and treatment) benefits as well as
provisions from the local governments. Under the law, the benefits
AFP General Headquarters that the veteran has been found guilty by
final judgment of a gross human rights violation while in the
service, but this factor shall not be considered taken against his next
of kin.178
chanrobleslaw
Aside from being eligible for burial at the LNMB, Marcos possessed
none of the disqualifications stated in AFP Regulations G 161-375. He
was neither convicted by final judgment of the offense involving moral
turpitude nor dishonorably separated/reverted/discharged from active
Petitioners, however, protest that a narrow interpretation of the AFP
regulations disregards historical context and the rule on statutory
construction. They urge the Court to construe statutes not literally but
according to their spirit and reason.
It is argued that Marcos committed offenses involving moral turpitude
and dubious military records, as found by foreign and local courts as
well as administrative agencies. By going into exile, he deliberately
evaded liability for his actions. And by allowing death to overtake him,
he inevitably escaped the prospect of facing accountability for his
crimes. They also contend that his removal in the 1986 popular
uprising is a clear sign of his discharge from the AFP. The People
Power Revolution was the direct exercise of the Filipinos' power to
overthrow an illegitimate and oppressive regime. As a sovereign act, it
necessarily includes the power to adjudge him as dishonorably
discharged from the AFP.
Furthermore, according to petitioners, to limit the application of the
disqualifying provisions of AFP Regulations G 161-375 only to soldiers
would be unfair (since, unlike Presidents, soldiers have an additional
cause for disqualification) and lead to absurd results (because soldiers
who were dishonorably discharged would be disqualified for acts that
are less atrocious than that committed by Marcos). Also, the AFP
regulations would place Marcos in the same class as the other
Philippine Presidents when in fact he is a class of his own, sui generis.
The other Presidents were never removed by People Power Revolution
and were never subject of laws declaring them to have committed
human rights violations. Thus, the intended burial would be an act of
similarly treating persons who are differently situated.
Despite all these ostensibly persuasive arguments, the fact remains
that Marcos was not convicted by final judgment of any offense
involving moral turpitude. No less than the 1987 Constitution
mandates that a person shall not be held to answer for a criminal
offense without due process of law and that, "[i]n all criminal
prosecutions, the accused shall be presum innocent until the contrary
is proved, and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the accusation
against him, to have a speedy, impartial, and public trial, to meet the
witnesses face to face, and to have compulsory process to secure the
attendance of witnesses and the production of evidence in his
behalf."179 Even the U.N. principles on reparation and to combat
impunity cited by petitioners unequivocally guarantee the rights of the
accused, providing that: ChanRoblesVirtualawlibrary
XIII. Rights of others
27. Nothing in this document is to be construed as derogating from
internationally or nationally protected rights of others, in particular the
right of an accused person to benefit from applicable standards of due
process.
xxx
PRINCIPLE 9. GUARANTEES FOR PERSONS IMPLICATED
Before a commission identifies perpetrators in its report, the
individuals concerned shall be entitled to the following guarantees:
(a) The commission must try to corroborate information implicating
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individuals before they are named publicly;
(b) The individuals implicated shall be afforded an opportunity to
provide a statement setting forth their version of the facts either at a
hearing convened by the commission while conducting its investigation
or through submission of a document equivalent to a right of reply for
inclusion in the commission's file.
To note, in the U.S., a person found to have committed a Federal or
State capital crime (i.e., a crime which a sentence of imprisonment for
life or death penalty may be imposed) but who has not been convicted
by reason of not being available for trial due to death or flight to avoid
prosecution, may be ineligible for interment, inurnment, or
memorialization in an Army national military cemetery. Nevertheless,
such ineligibility must still observe the procedures specified in �
553.21.180 chanrobleslaw
The various cases cited by petitiOners, which were decided with finality
by courts here and abroad, have no bearing in this case since they are
merely civil in nature; hence, cannot and do not establish moral
turpitude.
Also, the equal protection clause is not violated. Generally, there is no
property right to safeguard because even if one is eligible to be buried
at the LNMB, such fact would only give him or her the privilege to be
interred therein. Unless there is a favorable recommendation from the
Commander-�in-Chief, the Congress or the Secretary of National
Defense, no right can be said to have ripen. Until then,
such inchoate right is not legally demandable and enforceable.
Assuming that there is a property right to protect, the requisites of
equal protection clause are not met.181 In this case, there is a real and
substantial distinction between a military personnel and a former
President. The conditions of dishonorable discharge under the Articles
of War182 attach only to the members of the military. There is also no
substantial distinction between Marcos and the three Philippine
Presidents buried at the LNMB (Presidents Quirino, Garcia, and
Macapagal). All of them were not convicted of a crime involving moral
turpitude. In addition, the classification between a military personnel
and a former President is germane to the purposes of Proclamation No.
208 and P.D. No. 1076. While the LNMB is a national shrine
for militarymemorials, it is also an active military cemetery that
recognizes the status or position held by the persons interred
therein.
Likewise, Marcos was honorably discharged from military service.
PVAO expressly recognized him as a retired veteran pursuant to R.A.
No. 6948, as amended. Petitioners have not shown that he was
dishonorably discharged from military service under AFP Circular 17,
Series of 1987 (Administrative Discharge Prior to Expiration of Term of
Enlistment) for violating Articles 94, 95 and 97 of the Articles of
War.183 The NHCP study184 is incomplete with respect to his entire
military career as it failed to cite and include the official records of the
AFP.
With respect to the phrase "[p]ersonnel who were dishonorably
separated/reverted/discharged from the service," the same should be
viewed in light of the definition provided by AFP Regulations G 161-
375 to the term "active service" which is "[s]ervice rendered by a
military person as a Commissioned Officer, enlisted man/woman,
probationary officer, trainee or draftee in the Armed Forces of the
Philippines  and service rendered by him/her as a civilian official or
employee in the Philippine Government prior to the date of his/her
separation or retirement from the Armed Forces of the Philippines, for
which military and/or civilian service he/she shall have received pay
from the Philippine Government, and/or such others as may be
hereafter be prescribed by law as active service (PD 1638, as
amended)."185 To my mind, the word "service" should be construed as
that rendered by a military person in the AFP, including civil service,
from the time of his/her commission, enlistment, probation, training or
drafting, up to the date of his/her separation or retirement from the
AFP. Civil service after honorable separation and retirement from the
AFP is outside the context of "service" under AFP Regulations G 161-
375.
Hence, it cannot be conveniently claimed that Marcos' ouster from the
presidency during the EDSA Revolution is tantamount to his
dishonorable separation, reversion or discharge from the military
service. The fact that the President is the Commander-in-Chief of the
AFP under the 1987 Constitution only enshrines the principle of
supremacy of civilian authority over the military. Not being a military
person who may be prosecuted before the court martial, the President
can hardly be deemed "dishonorably separated/reverted/discharged
from the service" as contemplated by AFP Regulations G 161-375.
Dishonorable discharge through a successful revolution is an extra-
constitutional and direct sovereign act of the people which is beyond
the ambit of judicial review, let alone a mere administrative regulation.
It is undeniable that former President Marcos was forced out of office
by the people through the so-called EDSA Revolution. Said political act
of the people should not be automatically given a particular legal
meaning other than its obvious consequence- that of ousting him as
president. To do otherwise would lead the Court to the treacherous
and perilous path of having to make choices from multifarious
inferences or theories arising from the various acts of the people. It is
not the function of the Court, for instance, to divine the exact
implications or significance of the number of votes obtained in
elections, or the message from the number of participants in public
assemblies. If the Court is not to fall into the pitfalls of getting
embroiled in political and oftentimes emotional, if not acrimonious,
debates, it must remain steadfast in abiding by its recognized guiding
stars - clear constitutional and legal rules - not by the uncertain,
ambiguous and confusing messages from the actions of the people.
Conclusion
In sum, there is no clear constitutional or legal basis to hold that there
was a grave abuse of discretion amounting to lack or excess of
jurisdiction which would justify the Court to interpose its authority to
check and override an act entrusted to the judgment of another
branch. Truly, the President's discretion is not totally unfettered.
"Discretion is not a free�spirited stallion that runs and roams
wherever it pleases but is reined in to keep it from straying. In its
classic formulation, 'discretion is not unconfined and vagrant' but
'canalized within banks that keep it from overflowing.'"186 At bar,
President Duterte, through the public respondents, acted within the
bounds of the law and jurisprudence. Notwithstanding the call of
human rights advocates, the Court must uphold what is legal and just.
And that is not to deny Marcos of his rightful place at the LNMB. For
even the Framers of our Constitution intend that full respect for human
rights is available at any stage of a person's development, from the
time he or she becomes a person to the time he or she leaves this
earth.187
chanrobleslaw
There are certain things that are better left for history - not this Court
- to adjudge. The Court could only do so much in accordance with the
clearly established rules and principles. Beyond that, it is ultimately for
the people themselves, as the sovereign, to decide, a task that may
require the better perspective that the passage of time provides. In
the meantime, the country must mov'e on and let this issue
rest.
WHEREFORE, PREMISES CONSIDERED, the petitions
are DISMISSED. Necessarily, the Status Quo Ante Order is
hereby LIFTED.
Sereno, C.J., See dissenting opinion.
Carpio, J., See dissenting opinion.
Velasco, Jr.,** J., I concur in the ponencia as also in the opinion of
Justice Mendoza.
Leonardo-De Castro, J., I concur in the ponencia and separate opinion
of Justice Mendoza.
Brion, J., with separate concurring opinion.
Bersamin, J., See separate opinion.
Del Castillo, J., I join the separate opinion.
Perez, J., See separate opinion.
Mendoza, J., See separate opinion.
Reyes, J., Inhibited/no part.
Perlas-Bernabe, J., I join the separate opinion of J. Mendoza.
Leonen, J., I dissent. See separate opinion.
Jardeleza, J., I join dissent of J. Caguioa.
Caguioa, J., I dissent. See separate opinion.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
 
G.R. No. 127325 March 19, 1997
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and
MARIA ISABEL ONGPIN, petitioners, 
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO
PEDROSA & CARMEN PEDROSA, in their capacities as
founding members of the People's Initiative for Reforms,
Modernization and Action (PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL
ANG KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS
FOR BROTHERHOOD INTEGRITY AND NATIONALISM, INC.
(MABINI), INTEGRATED BAR OF THE PHILIPPINES (IBP), and
LABAN NG DEMOKRATIKONG PILIPINO (LABAN), petitioners-
intervenors.
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for
prohibition under Rule 65 of the Rules of Court is the right of the
people to directly propose amendments to the Constitution
through the system of initiative under Section 2 of Article XVII of
the 1987 Constitution. Undoubtedly, this demands special
attention, as this system of initiative was unknown to the people
of this country, except perhaps to a few scholars, before the
drafting of the 1987 Constitution. The 1986 Constitutional
Commission itself, through the original proponent  and the main
1
sponsor  of the proposed Article on Amendments or Revision of
2
the Constitution, characterized this system as
"innovative".  Indeed it is, for both under the 1935 and 1973
3
Constitutions, only two methods of proposing amendments to, or
revision of, the Constitution were recognized, viz., (1) by
Congress upon a vote of three-fourths of all its members and (2)
by a constitutional convention.  For this and the other reasons
4
hereafter discussed, we resolved to give due course to this
petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin
filed with public respondent Commission on Elections (hereafter,
COMELEC) a "Petition to Amend the Constitution, to Lift Term
Limits of Elective Officials, by People's Initiative" (hereafter, Delfin
Petition)  wherein Delfin asked the COMELEC for an order
5
1. Fixing the time and dates for signature
gathering all over the country;
 2. Causing the necessary publications of said
Order and the attached "Petition for Initiative on
the 1987 Constitution, in newspapers of general
and local circulation;
3. Instructing Municipal Election Registrars in all
Regions of the Philippines, to assist Petitioners
and volunteers, in establishing signing stations at
the time and on the dates designated for the
purpose.
Delfin alleged in his petition that he is a founding member of the
Movement for People's Initiative,  a group of citizens desirous to
6
avail of the system intended to institutionalize people power; that
he and the members of the Movement and other volunteers
intend to exercise the power to directly propose amendments to
the Constitution granted under Section 2, Article XVII of the
Constitution; that the exercise of that power shall be conducted in
proceedings under the control and supervision of the COMELEC;
that, as required in COMELEC Resolution No. 2300, signature
stations shall be established all over the country, with the
assistance of municipal election registrars, who shall verify the
signatures affixed by individual signatories; that before the
Movement and other volunteers can gather signatures, it is
necessary that the time and dates to be designated for the
purpose be first fixed in an order to be issued by the COMELEC;
and that to adequately inform the people of the electoral process
involved, it is likewise necessary that the said order, as well as
the Petition on which the signatures shall be affixed, be published
in newspapers of general and local circulation, under the control
and supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be
amended are Sections 4 and 7 of Article VI, Section 4 of Article
7
VII,  and Section 8 of Article X  of the Constitution. Attached to the
8 9
petition is a copy of a "Petition for Initiative on the 1987
Constitution"   embodying the proposed amendments which
10
consist in the deletion from the aforecited sections of the
provisions concerning term limits, and with the following
proposition:
DO YOU APPROVE OF LIFTING THE TERM
LIMITS OF ALL ELECTIVE GOVERNMENT
OFFICIALS, AMENDING FOR THE PURPOSE
SECTIONS 4 AND 7 OF ARTICLE VI, SECTION
4 OF ARTICLE VII, AND SECTION 8 OF
ARTICLE X OF THE 1987 PHILIPPINE
CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be
submitted to the people, and after it is signed by at least twelve
per cent of the total number of registered voters in the country it
will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given
the number UND 96-037 (INITIATIVE), the COMELEC, through
its Chairman, issued an Order   (a) directing Delfin "to cause the
11
publication of the petition, together with the attached Petition for
Initiative on the 1987 Constitution (including the proposal,
proposed constitutional amendment, and the signature form), and
the notice of hearing in three (3) daily newspapers of general
circulation at his own expense" not later than 9 December 1996;
and (b) setting the case for hearing on 12 December 1996 at
10:00 a.m.
At the hearing of the Delfin Petition on 12 December 1996, the
following appeared: Delfin and Atty. Pete Q. Quadra;
representatives of the People's Initiative for Reforms,
Modernization and Action (PIRMA); intervenor-oppositor Senator
Raul S. Roco, together with his two other lawyers, and
representatives of, or counsel for, the Integrated Bar of the
Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon
(DIK), Public Interest Law Center, and Laban ng Demokratikong
Pilipino (LABAN).   Senator Roco, on that same day, filed a
12
Motion to Dismiss the Delfin Petition on the ground that it is not
the initiatory petition properly cognizable by the COMELEC.
After hearing their arguments, the COMELEC directed Delfin and
the oppositors to file their "memoranda and/or
oppositions/memoranda" within five days.  13
On 18 December 1996, the petitioners herein — Senator Miriam
Defensor Santiago, Alexander Padilla, and Maria Isabel Ongpin
— filed this special civil action for prohibition raising the following
arguments:
(1) The constitutional provision on
people's initiative to amend the Constitution can
only be implemented by law to be passed by
Congress. No such law has been passed; in fact,
Senate Bill No. 1290 entitled An Act Prescribing
and Regulating Constitution Amendments by
People's Initiative, which petitioner Senator
Santiago filed on 24 November 1995, is still
pending before the Senate Committee on
Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three
systems of initiative, namely, initiative on the
Constitution, on statutes, and on local legislation.
However, it failed to provide any subtitle on
initiative on the Constitution, unlike in the other
modes of initiative, which are specifically provided
for in Subtitle II and Subtitle III. This deliberate
omission indicates that the matter of people's
initiative to amend the Constitution was left to
some future law. Former Senator Arturo Tolentino
stressed this deficiency in the law in his privilege
speech delivered before the Senate in 1994:
"There is not a single word in that law which can
be considered as implementing [the provision on
constitutional initiative]. Such implementing
provisions have been obviously left to a separate
law.
(3) Republic Act No. 6735 provides for the
effectivity of the law after publication in print
media. This indicates that the Act covers only
laws and not constitutional amendments because
the latter take effect only upon ratification and not
after publication.
(4) COMELEC Resolution No. 2300, adopted on
16 January 1991 to govern "the conduct of
initiative on the Constitution and initiative and
referendum on national and local laws, is ultra
vires insofar as initiative on amendments to the
Constitution is concerned, since the COMELEC
has no power to provide rules and regulations for
the exercise of the right of initiative to amend the
Constitution. Only Congress is authorized by the
Constitution to pass the implementing law.
(5) The people's initiative is limited
to amendments to the Constitution, not
to revision thereof. Extending or lifting of term
limits constitutes a revision and is, therefore,
outside the power of the people's initiative.
(6) Finally, Congress has not yet appropriated
funds for people's initiative; neither the COMELEC
nor any other government department, agency, or
office has realigned funds for the purpose.
To justify their recourse to us via the special civil action for
prohibition, the petitioners allege that in the event the COMELEC
grants the Delfin Petition, the people's initiative spearheaded by
PIRMA would entail expenses to the national treasury for general
re-registration of voters amounting to at least P180 million, not to
mention the millions of additional pesos in expenses which would
be incurred in the conduct of the initiative itself. Hence, the
transcendental importance to the public and the nation of the
issues raised demands that this petition for prohibition be settled
promptly and definitely, brushing aside technicalities of procedure
and calling for the admission of a taxpayer's and legislator's
suit.   Besides, there is no other plain, speedy, and adequate
14
remedy in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to
comment on the petition within a non-extendible period of ten
days from notice; and (b) issued a temporary restraining order,
effective immediately and continuing until further orders, enjoining
public respondent COMELEC from proceeding with the Delfin
Petition, and private respondents Alberto and Carmen Pedrosa
from conducting a signature drive for people's initiative to amend
the Constitution.
On 2 January 1997, private respondents, through Atty Quadra,
filed their Comment   on the petition. They argue therein that:
15
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL
EXPENSES TO THE NATIONAL TREASURY
FOR GENERAL REGISTRATION OF VOTERS
AMOUNTING TO AT LEAST PESOS: ONE
HUNDRED EIGHTY MILLION (P180,000,000.00)"
IF THE "COMELEC GRANTS THE PETITION
FILED BY RESPONDENT DELFIN BEFORE THE
COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE
SPENT BY THE NATIONAL GOVERNMENT IF
THE COMELEC GRANTS THE PETITION OF
RESPONDENT DELFIN. ALL EXPENSES IN
THE SIGNATURE GATHERING ARE ALL FOR
THE ACCOUNT OF RESPONDENT DELFIN
AND HIS VOLUNTEERS PER THEIR PROGRAM
OF ACTIVITIES AND EXPENDITURES
SUBMITTED TO THE COMELEC. THE
ESTIMATED COST OF THE DAILY PER DIEM
OF THE SUPERVISING SCHOOL TEACHERS IN
THE SIGNATURE GATHERING TO BE
DEPOSITED and TO BE PAID BY DELFIN AND
HIS VOLUNTEERS IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE
COMELEC IS ONLY ON THE SIGNATURE
GATHERING WHICH BY LAW COMELEC IS
DUTY BOUND "TO SUPERVISE CLOSELY"
PURSUANT TO ITS "INITIATORY
JURISDICTION" UPHELD BY THE HONORABLE
COURT IN ITS RECENT SEPTEMBER 26, 1996
DECISION IN THE CASE OF SUBIC BAY
METROPOLITAN AUTHORITY VS. COMELEC,
ET AL. G.R. NO. 125416;
4. REP. ACT NO. 6735 APPROVED ON
AUGUST 4, 1989 IS THE ENABLING LAW
IMPLEMENTING THE POWER OF PEOPLE
INITIATIVE TO PROPOSE AMENDMENTS TO
THE CONSTITUTION. SENATOR DEFENSOR-
SANTIAGO'S SENATE BILL NO. 1290 IS A
DUPLICATION OF WHAT ARE ALREADY
PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300
PROMULGATED ON JANUARY 16, 1991
PURSUANT TO REP. ACT 6735 WAS UPHELD
BY THE HONORABLE COURT IN THE RECENT
SEPTEMBER 26, 1996 DECISION IN THE CASE
OF SUBIC BAY METROPOLITAN AUTHORITY
VS. COMELEC, ET AL. G.R. NO. 125416
WHERE THE HONORABLE COURT SAID: "THE
COMMISSION ON ELECTIONS CAN DO NO
LESS BY SEASONABLY AND JUDICIOUSLY
PROMULGATING GUIDELINES AND RULES
FOR BOTH NATIONAL AND LOCAL USE, IN
IMPLEMENTING OF THESE LAWS."
 6. EVEN SENATOR DEFENSOR-SANTIAGO'S
SENATE BILL NO. 1290 CONTAINS A
PROVISION DELEGATING TO THE COMELEC
THE POWER TO "PROMULGATE SUCH RULES
AND REGULATIONS AS MAY BE NECESSARY
TO CARRY OUT THE PURPOSES OF THIS
ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED AS
ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE
TERM OF OFFICE OF ELECTIVE OFFICIALS
PROVIDED UNDER THE 1987 CONSTITUTION
IS NOT A "REVISION" OF THE CONSTITUTION.
IT IS ONLY AN AMENDMENT. "AMENDMENT
ENVISAGES AN ALTERATION OF ONE OR A
FEW SPECIFIC PROVISIONS OF THE
CONSTITUTION. REVISION CONTEMPLATES A
RE-EXAMINATION OF THE ENTIRE
DOCUMENT TO DETERMINE HOW AND TO
WHAT EXTENT IT SHOULD BE ALTERED." (PP.
412-413, 2ND. ED. 1992, 1097 PHIL.
CONSTITUTION, BY JOAQUIN G. BERNAS,
S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own
behalf a Comment   which starts off with an assertion that the
16
instant petition is a "knee-jerk reaction to a draft 'Petition for
Initiative on the 1987 Constitution'. . . which is not formally filed
yet." What he filed on 6 December 1996 was an "Initiatory
Pleading" or "Initiatory Petition," which was legally necessary to
start the signature campaign to amend the Constitution or to put
the movement to gather signatures under COMELEC power and
function. On the substantive allegations of the petitioners, Delfin
maintains as follows:
(1) Contrary to the claim of the petitioners, there is
a law, R.A. No. 6735, which governs the conduct
of initiative to amend the Constitution. The
absence therein of a subtitle for such initiative is
not fatal, since subtitles are not requirements for
the validity or sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically
provides that the proposition in an initiative to
amend the Constitution approved by the majority
of the votes cast in the plebiscite shall become
effective as of the day of the plebiscite.
(3) The claim that COMELEC Resolution No.
2300 is ultra vires is contradicted by (a) Section 2,
Article IX-C of the Constitution, which grants the
COMELEC the power to enforce and administer
all laws and regulations relative to the conduct of
an election, plebiscite, initiative, referendum, and
recall; and (b) Section 20 of R.A. 6735, which
empowers the COMELEC to promulgate such
rules and regulations as may be necessary to
carry out the purposes of the Act.
(4) The proposed initiative does not involve
a revision of, but mere amendment to, the
Constitution because it seeks to alter only a few
specific provisions of the Constitution, or more
specifically, only those which lay term limits. It
does not seek to reexamine or overhaul the entire
document.
As to the public expenditures for registration of voters, Delfin
considers petitioners' estimate of P180 million as unreliable, for
only the COMELEC can give the exact figure. Besides, if there
will be a plebiscite it will be simultaneous with the 1997 Barangay
Elections. In any event, fund requirements for initiative will be a
priority government expense because it will be for the exercise of
the sovereign power of the people.
In the Comment   for the public respondent COMELEC, filed also
17
on 2 January 1997, the Office of the Solicitor General contends
that:
(1) R.A. No. 6735 deals with, inter alia,
people's initiative to amend the Constitution. Its
Section 2 on Statement of Policy explicitly affirms,
recognizes, and guarantees that power; and its
Section 3, which enumerates the three systems
of initiative, includes initiative on the Constitution
and defines the same as the power to propose
amendments to the Constitution. Likewise, its
Section 5 repeatedly mentions initiative on the
Constitution.
(2) A separate subtitle on initiative on the
Constitution is not necessary in R.A. No. 6735
because, being national in scope, that system
of initiative is deemed included in the subtitle on
National Initiative and Referendum; and Senator
Tolentino simply overlooked pertinent provisions
of the law when he claimed that nothing therein
was provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent
nor a material proof that R.A. No. 6735 does not
deal with initiative on the Constitution.
(4) Extension of term limits of elected officials
constitutes a mere amendment to the
Constitution, not a revision thereof.
(5) COMELEC Resolution No. 2300 was validly
issued under Section 20 of R.A. No. 6735 and
under the Omnibus Election Code. The rule-
making power of the COMELEC to implement the
provisions of R.A. No. 6735 was in fact upheld by
this Court in Subic Bay Metropolitan Authority
vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the
temporary restraining order; (b) noted the aforementioned
Comments and the Motion to Lift Temporary Restraining Order
filed by private respondents through Atty. Quadra, as well as the
latter's Manifestation stating that he is the counsel for private
respondents Alberto and Carmen Pedrosa only and the Comment
he filed was for the Pedrosas; and (c) granted the Motion for
Intervention filed on 6 January 1997 by Senator Raul Roco and
allowed him to file his Petition in Intervention not later than 20
January 1997; and (d) set the case for hearing on 23 January
1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang
Konstitusyon (DIK) and the Movement of Attorneys for
Brotherhood Integrity and Nationalism, Inc. (MABINI), filed a
Motion for Intervention. Attached to the motion was their Petition
in Intervention, which was later replaced by an Amended Petition
in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a
mere amendment to, but a revision of, the
Constitution because, in the words of Fr. Joaquin
Bernas, S.J.,   it would involve a change from a
18
political philosophy that rejects unlimited tenure to
one that accepts unlimited tenure; and although
the change might appear to be an isolated one, it
can affect other provisions, such as, on
synchronization of elections and on the State
policy of guaranteeing equal access to
opportunities for public service and prohibiting
political dynasties.   A revision cannot be done
19
by initiative which, by express provision of Section
2 of Article XVII of the Constitution, is limited
to amendments.
(2) The prohibition against reelection of the
President and the limits provided for all other
national and local elective officials are based on
the philosophy of governance, "to open up the
political arena to as many as there are Filipinos
qualified to handle the demands of leadership, to
break the concentration of political and economic
powers in the hands of a few, and to promote
effective proper empowerment for participation in
policy and decision-making for the common
good"; hence, to remove the term limits is to
negate and nullify the noble vision of the 1987
Constitution.
(3) The Delfin proposal runs counter to the
purpose of initiative, particularly in a conflict-of-
interest situation. Initiative is intended as a
fallback position that may be availed of by the
people only if they are dissatisfied with the
performance of their elective officials, but not as a
premium for good performance.  20
(4) R.A. No. 6735 is deficient and inadequate in
itself to be called the enabling law that implements
the people's initiative on amendments to the
Constitution. It fails to state (a) the proper parties
who may file the petition, (b) the appropriate
agency before whom the petition is to be filed, (c)
the contents of the petition, (d) the publication of
the same, (e) the ways and means of gathering
the signatures of the voters nationwide and 3%
per legislative district, (f) the proper parties who
may oppose or question the veracity of the
signatures, (g) the role of the COMELEC in the
verification of the signatures and the sufficiency of
the petition, (h) the appeal from any decision of
the COMELEC, (I) the holding of a plebiscite, and
(g) the appropriation of funds for such people's
initiative. Accordingly, there being no enabling
law, the COMELEC has no jurisdiction to hear
Delfin's petition.
(5) The deficiency of R.A. No. 6735 cannot be
rectified or remedied by COMELEC Resolution
No. 2300, since the COMELEC is without
authority to legislate the procedure for a
people's initiative under Section 2 of Article XVII
of the Constitution. That function exclusively
pertains to Congress. Section 20 of R.A. No. 6735
does not constitute a legal basis for the
Resolution, as the former does not set a sufficient
standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention.   He avers that R.A. No. 6735 is the enabling law
21
that implements the people's right to initiate constitutional
amendments. This law is a consolidation of Senate Bill No. 17
and House Bill No. 21505; he co-authored the House Bill and
even delivered a sponsorship speech thereon. He likewise
submits that the COMELEC was empowered under Section 20 of
that law to promulgate COMELEC Resolution No. 2300.
Nevertheless, he contends that the respondent Commission is
without jurisdiction to take cognizance of the Delfin Petition and to
order its publication because the said petition is not the initiatory
pleading contemplated under the Constitution, Republic Act No.
6735, and COMELEC Resolution No. 2300. What vests
jurisdiction upon the COMELEC in an initiative on the Constitution
is the filing of a petition for initiative which is signed by the
required number of registered voters. He also submits that the
proponents of a constitutional amendment cannot avail of the
authority and resources of the COMELEC to assist them is
securing the required number of signatures, as the COMELEC's
role in an initiative on the Constitution is limited to the
determination of the sufficiency of the initiative petition and the
call and supervision of a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to
Intervene.
The following day, the IBP filed a Motion for Intervention to which
it attached a Petition in Intervention raising the following
arguments:
(1) Congress has failed to enact an enabling law
mandated under Section 2, Article XVII of the
1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot
substitute for the required implementing law on
the initiative to amend the Constitution.
(3) The Petition for Initiative suffers from a fatal
defect in that it does not have the required
number of signatures.
(4) The petition seeks, in effect a revision of the
Constitution, which can be proposed only by
Congress or a constitutional convention.  22
On 21 January 1997, we promulgated a Resolution (a) granting
the Motions for Intervention filed by the DIK and MABINI and by
the IBP, as well as the Motion for Leave to Intervene filed by
LABAN; (b) admitting the Amended Petition in Intervention of DIK
and MABINI, and the Petitions in Intervention of Senator Roco
and of the IBP; (c) requiring the respondents to file within a
nonextendible period of five days their Consolidated Comments
on the aforesaid Petitions in Intervention; and (d) requiring
LABAN to file its Petition in Intervention within a nonextendible
period of three days from notice, and the respondents to
comment thereon within a nonextendible period of five days from
receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued
on the following pivotal issues, which the Court formulated in light
of the allegations and arguments raised in the pleadings so far
filed:
1. Whether R.A. No. 6735, entitled An Act
Providing for a System of Initiative and
Referendum and Appropriating Funds Therefor,
was intended to include or cover initiative on
amendments to the Constitution; and if so,
whether the Act, as worded, adequately covers
such initiative.
2. Whether that portion of COMELEC Resolution
No. 2300 (In re: Rules and Regulations Governing
the Conduct of Initiative on the Constitution, and
Initiative and Referendum on National and Local
Laws) regarding the conduct of initiative on
amendments to the Constitution is valid,
considering the absence in the law of specific
provisions on the conduct of such initiative.
3. Whether the lifting of term limits of elective
national and local officials, as proposed in the
draft "Petition for Initiative on the 1987
Constitution," would constitute a revision of, or an
amendment to, the Constitution.
4. Whether the COMELEC can take cognizance
of, or has jurisdiction over, a petition solely
intended to obtain an order (a) fixing the time and
dates for signature gathering; (b) instructing
municipal election officers to assist Delfin's
movement and volunteers in establishing
signature stations; and (c) directing or causing the
publication of, inter alia, the unsigned proposed
Petition for Initiative on the 1987 Constitution.
 5. Whether it is proper for the Supreme Court to
take cognizance of the petition when there is a
pending case before the COMELEC.
After hearing them on the issues, we required the parties to
submit simultaneously their respective memoranda within twenty
days and requested intervenor Senator Roco to submit copies of
the deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention
wherein it adopts the allegations and arguments in the main
Petition. It further submits that the COMELEC should have
dismissed the Delfin Petition for failure to state a sufficient cause
of action and that the Commission's failure or refusal to do so
constituted grave abuse of discretion amounting to lack of
jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions
of both the Journal and the Record of the House of
Representatives relating to the deliberations of House Bill No.
21505, as well as the transcripts of stenographic notes on the
proceedings of the Bicameral Conference Committee, Committee
on Suffrage and Electoral Reforms, of 6 June 1989 on House Bill
No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their
Consolidated Comments on the Petitions in Intervention of
Senator Roco, DIK and MABINI, and IBP.   The parties thereafter
23
filed, in due time, their separate memoranda.  24
As we stated in the beginning, we resolved to give due course to
this special civil action.
For a more logical discussion of the formulated issues, we shall
first take up the fifth issue which appears to pose a prejudicial
procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE
PENDENCY IN THE COMELEC OF THE DELFIN
PETITION.
Except for the petitioners and intervenor Roco, the parties paid no
serious attention to the fifth issue, i.e., whether it is proper for this
Court to take cognizance of this special civil action when there is
a pending case before the COMELEC. The petitioners provide an
affirmative answer. Thus:
28. The Comelec has no jurisdiction to take
cognizance of the petition filed by private
respondent Delfin. This being so, it becomes
imperative to stop the Comelec from proceeding
any further, and under the Rules of Court, Rule
65, Section 2, a petition for prohibition is the
proper remedy.
29. The writ of prohibition is an extraordinary
judicial writ issuing out of a court of superior
jurisdiction and directed to an inferior court, for the
purpose of preventing the inferior tribunal from
usurping a jurisdiction with which it is not legally
vested. (People v. Vera, supra., p. 84). In this
case the writ is an urgent necessity, in view of the
highly divisive and adverse environmental
consequences on the body politic of the
questioned Comelec order. The consequent
climate of legal confusion and political instability
begs for judicial statesmanship.
30. In the final analysis, when the system of
constitutional law is threatened by the political
ambitions of man, only the Supreme Court
 can save a nation in peril and uphold the
paramount majesty of the Constitution.  25
It must be recalled that intervenor Roco filed with the COMELEC
a motion to dismiss the Delfin Petition on the ground that the
COMELEC has no jurisdiction or authority to entertain the
petition.   The COMELEC made no ruling thereon evidently
26
because after having heard the arguments of Delfin and the
oppositors at the hearing on 12 December 1996, it required them
to submit within five days their memoranda or
oppositions/memoranda.   Earlier, or specifically on 6 December
27
1996, it practically gave due course to the Delfin Petition by
ordering Delfin to cause the publication of the petition, together
with the attached Petition for Initiative, the signature form, and the
notice of hearing; and by setting the case for hearing. The
COMELEC's failure to act on Roco's motion to dismiss and its
insistence to hold on to the petition rendered ripe and viable the
instant petition under Section 2 of Rule 65 of the Rules of Court,
which provides:
Sec. 2. Petition for prohibition. — Where the
proceedings of any tribunal, corporation, board, or
person, whether exercising functions judicial or
ministerial, are without or in excess of its or his
jurisdiction, or with grave abuse of discretion, 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 defendant to desist from further
proceedings in the action or matter specified
therein.
It must also be noted that intervenor Roco claims that the
COMELEC has no jurisdiction over the Delfin Petition because
the said petition is not supported by the required minimum
number of signatures of registered voters. LABAN also asserts
that the COMELEC gravely abused its discretion in refusing to
dismiss the Delfin Petition, which does not contain the required
number of signatures. In light of these claims, the instant case
may likewise be treated as a special civil action
for certiorari under Section I of Rule 65 of the Rules of Court.
In any event, as correctly pointed out by intervenor Roco in his
Memorandum, this Court may brush aside technicalities of
procedure in
cases of transcendental importance. As we stated in Kilosbayan,
Inc. v. Guingona, Jr. 
28
A party's standing before this Court is a
procedural technicality which it may, in the
exercise of its discretion, set aside in view of the
importance of issues raised. In the landmark
Emergency Powers Cases, this Court brushed
aside this technicality because the transcendental
importance to the public of these cases demands
that they be settled promptly and definitely,
brushing aside, if we must, technicalities of
procedure.
II
R.A. NO. 6735 INTENDED TO INCLUDE THE SYSTEM
OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, BUT IS, UNFORTUNATELY,
INADEQUATE TO COVER THAT SYSTEM.
Section 2 of Article XVII of the Constitution provides:
Sec. 2. Amendments to this Constitution may
likewise be directly proposed by the people
through initiative upon a petition of at least
twelve per centum of the total number of
registered voters, of which every legislative district
 must be represented by at least three per
centum of the registered voters therein. No
amendment under this section shall be authorized
within five years following the ratification of this
Constitution nor oftener than once every five
years thereafter.
The Congress shall provide for the implementation of the exercise
of this right.
This provision is not self-executory. In his book,   Joaquin
29
Bernas, a member of the 1986 Constitutional Commission,
stated:
Without implementing legislation Section 2 cannot
operate. Thus, although this mode of amending
the Constitution is a mode of amendment which
bypasses congressional action, in the last
analysis it still is dependent on congressional
action.
Bluntly stated, the right of the people to directly propose
amendments to the Constitution through the system of
initiative would remain entombed in the cold niche of the
Constitution until Congress provides for its
implementation. Stated otherwise, while the Constitution
has recognized or granted that right, the people cannot
exercise it if Congress, for whatever reason, does not
provide for its implementation.
This system of initiative was originally included in Section 1 of the
draft Article on Amendment or Revision proposed by the
Committee on Amendments and Transitory Provisions of the
1986 Constitutional Commission in its Committee Report No. 7
(Proposed Resolution No. 332).   That section reads as follows:
30
Sec. 1. Any amendment to, or revision of, this Constitution may
be proposed:
(a) by the National Assembly upon a vote of three-
fourths of all its members; or
(b) by a constitutional convention; or
(c) directly by the people themselves thru initiative
as provided for in Article___ Section ___of the
Constitution. 
31
After several interpellations, but before the period of
amendments, the Committee submitted a new formulation
of the concept of initiative which it denominated as
Section 2; thus:
MR. SUAREZ. Thank you, Madam
President. May we respectfully call
attention of the Members of the
Commission that pursuant to the
mandate given to us last night, we
submitted this afternoon a
complete Committee Report No. 7
which embodies the proposed
provision governing the matter of
initiative. This is now covered by
Section 2 of the complete
committee report. With the
permission of the Members, may I
quote Section 2:
The people may, after five years from the date of
the last plebiscite held, directly propose
amendments to this Constitution thru initiative
upon petition of at least ten percent of the
registered voters.
 This completes the blanks appearing in the
original Committee Report No. 7.  32
The interpellations on Section 2 showed that the details for
carrying out Section 2 are left to the legislature. Thus:
FR. BERNAS. Madam President,
just two simple, clarificatory
questions.
First, on Section 1 on the matter of
initiative upon petition of at least
10 percent, there are no details in
the provision on how to carry this
out. Do we understand, therefore,
that we are leaving this matter to
the legislature?
MR. SUAREZ. That is right,
Madam President.
FR. BERNAS. And do we also
understand, therefore, that for as
long as the legislature does not
pass the necessary implementing
law on this, this will not operate?
MR. SUAREZ. That matter was
also taken up during the
committee hearing, especially with
respect to the budget
appropriations which would have
to be legislated so that the
plebiscite could be called. We
deemed it best that this matter be
left to the legislature. The
Gentleman is right. In any event,
as envisioned, no amendment
through the power of initiative can
be called until after five years from
the date of the ratification of this
Constitution. Therefore, the first
amendment that could be
proposed through the exercise of
this initiative power would be after
five years. It is reasonably
expected that within that five-year
period, the National Assembly can
come up with the appropriate rules
governing the exercise of this
power.
FR. BERNAS. Since the matter
is left to the legislature — the
details on how this is to be carried
out — is it possible that, in effect,
what will be presented to the
people for ratification is the work of
the legislature rather than of the
people? Does this provision
exclude that possibility?
MR. SUAREZ. No, it does not
exclude that possibility because
even the legislature itself as a
body could propose that
amendment, maybe individually or
collectively, if it fails to muster the
three-fourths vote in order to
constitute itself as a constituent
assembly and submit that proposal
to the people for ratification
through the process of an
initiative.
x x x           x x x          x x x in the amendments of the
Constitution?
MS. AQUINO. Do I understand
from the sponsor that the intention MR. SUAREZ. That proposition is
in the proposal is to vest nondebatable.
constituent power in the people to
amend the Constitution? MS. AQUINO. Such that in order
to underscore the primacy of
MR. SUAREZ. That is absolutely constituent power we have a
correct, Madam President. separate article in the constitution
that would specifically cover the
MS. AQUINO. I fully concur with process and the modes of
the underlying precept of the amending the Constitution?
proposal in terms of
institutionalizing popular MR. SUAREZ. That is right,
participation in the drafting of the Madam President.
Constitution or in the amendment
thereof, but I would have a lot of MS. AQUINO. Therefore, is the
difficulties in terms of accepting sponsor inclined, as the provisions
the draft of Section 2, as written. are drafted now, to again concede
Would the sponsor agree with me to the legislature the process or
that in the hierarchy of legal the requirement of determining the
mandate, constituent power has mechanics of amending the
primacy over all other legal Constitution by people's initiative?
mandates?
MR. SUAREZ. The matter of
MR. SUAREZ. The Commissioner implementing this could very well
is right, Madam President. be placed in the hands of the
National Assembly, not unless we
MS. AQUINO. And would the can incorporate into this provision
sponsor agree with me that in the the mechanics that would
hierarchy of legal values, the adequately cover all the
Constitution is source of all legal conceivable situations.  33

mandates and that therefore we

require a great deal of It was made clear during the interpellations that the
circumspection in the drafting and aforementioned Section 2 is limited to proposals to AMEND —
not to REVISE — the Constitution; thus:
 MR. SUAREZ. . . . This proposal
was suggested on the theory that
this matter of initiative, which
came about because of the
extraordinary developments this
year, has to be separated from the
traditional modes of amending the
Constitution as embodied in
Section 1. The committee
members felt that this system of
initiative should not extend to the
revision of the entire Constitution,
so we removed it from the
operation of Section 1 of the
proposed Article on Amendment or
Revision.  34
x x x           x x x          x x x
MS. AQUINO. In which case, I am
seriously bothered by providing
this process of initiative as a
separate section in the Article on
Amendment. Would the sponsor
be amenable to accepting an
amendment in terms of realigning
Section 2 as another
subparagraph (c) of Section 1,
instead of setting it up as another
separate section as if it were a
self-executing provision?
MR. SUAREZ. We would be
amenable except that, as we
clarified a while ago, this process
of initiative is limited to the matter
of amendment and should not
expand into a revision which
contemplates a total overhaul of
the Constitution. That was the
sense that was conveyed by the
Committee.
MS. AQUINO. In other words, the
Committee was attempting to
distinguish the coverage of modes
(a) and (b) in Section 1 to include
the process of revision; whereas
the process of initiation to amend,
which is given to the public, would
only apply to amendments?
MR. SUAREZ. That is right. Those
were the terms envisioned in the
Committee.  35
Amendments to the proposed Section 2 were thereafter
introduced by then Commissioner Hilario G. Davide, Jr., which
the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam
President. I propose to substitute
the entire Section 2 with the
following:
MR. DAVIDE. Madam President, I
have modified the proposed
amendment after taking into
account the modifications
submitted by the sponsor himself
and the honorable Commissioners
Guingona, Monsod, Rama, Ople,
de los Reyes and Romulo. The
modified amendment in
substitution of the proposed
Section 2 will now read as follows:
"SECTION 2. — AMENDMENTS
TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY
PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A
PETITION OF AT LEAST
TWELVE PERCENT OF THE
TOTAL NUMBER Of
REGISTERED VOTERS, OF
WHICH EVERY LEGISLATIVE
DISTRICT MUST BE
REPRESENTED BY AT LEAST
THREE PERCENT OF THE
REGISTERED VOTERS
THEREOF. NO AMENDMENT
UNDER THIS SECTION SHALL
BE AUTHORIZED WITHIN FIVE
YEARS FOLLOWING THE
RATIFICATION OF THIS
CONSTITUTION NOR OFTENER
THAN ONCE EVERY FIVE
YEARS THEREAFTER.
THE NATIONAL ASSEMBLY
SHALL BY LAW PROVIDE FOR
THE IMPLEMENTATION OF THE
EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President,
considering that the proposed
amendment is reflective of the
sense contained in Section 2 of
our completed Committee Report
No. 7, we accept the proposed
amendment.  36
The interpellations which ensued on the proposed modified
amendment to Section 2 clearly showed that it was a legislative
act which must implement the exercise of the right. Thus:
MR. ROMULO. Under
Commissioner Davide's
amendment, is it possible for the
legislature to set forth certain
procedures to carry out the
initiative. . .?
MR. DAVIDE. It can.
x x x           x x x          x x x
MR. ROMULO. But the
Commissioner's amendment does
not prevent the legislature from
asking another body to set the
proposition in proper form.
MR. DAVIDE. The Commissioner
is correct. In other words, the
implementation of this particular
right would be subject to
legislation, provided the legislature
cannot determine anymore the
percentage of the requirement.
MR. ROMULO. But the
procedures, including the
determination of the proper form
for submission to the people, may
be subject to legislation.
MR. DAVIDE. As long as it will not
destroy the substantive right to
 initiate. In other words, none of the
procedures to be proposed by the
legislative body must diminish or
impair the right conceded here.
MR. ROMULO. In that provision of
the Constitution can the
procedures which I have
discussed be legislated?
MR. DAVIDE. Yes.  37
Commissioner Davide also reaffirmed that his modified
amendment strictly confines initiative to AMENDMENTS to —
NOT REVISION of — the Constitution. Thus:
MR. DAVIDE. With pleasure,
Madam President.
MR. MAAMBONG. My first
question: Commissioner Davide's
proposed amendment on line 1
refers to "amendment." Does it not
cover the word "revision" as
defined by Commissioner Padilla
when he made the distinction
between the words "amendments"
and "revision"?
MR. DAVIDE. No, it does not,
because "amendments" and
"revision" should be covered by
Section 1. So insofar as initiative is
concerned, it can only relate to
"amendments" not "revision."  38
Commissioner Davide further emphasized that the process of
proposing amendments through initiative must be more rigorous
and difficult than the initiative on legislation. Thus:
MR. DAVIDE. A distinction has to
be made that under this proposal,
what is involved is an amendment
to the Constitution. To amend a
Constitution would ordinarily
require a proposal by the National
Assembly by a vote of three-
fourths; and to call a constitutional
convention would require a higher
number. Moreover, just to submit
the issue of calling a constitutional
convention, a majority of the
National Assembly is required, the
import being that the process of
amendment must be made more
rigorous and difficult than probably
initiating an ordinary legislation or
putting an end to a law proposed
by the National Assembly by way
of a referendum. I cannot agree to
reducing the requirement
approved by the Committee on the
Legislative because it would
require another voting by the
Committee, and the voting as
precisely based on a requirement
of 10 percent. Perhaps, I might
present such a proposal, by way of
an amendment, when the
Commission shall take up the
Article on the Legislative or on the
National Assembly on plenary
sessions. 39
The Davide modified amendments to Section 2 were subjected to
amendments, and the final version, which the Commission
approved by a vote of 31 in favor and 3 against, reads as follows:
MR. DAVIDE. Thank you Madam
President. Section 2, as amended,
reads as follows: "AMENDMENT
TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY
PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A
PETITION OF AT LEAST
TWELVE PERCENT OF THE
TOTAL NUMBER OF
REGISTERED VOTERS, OF
WHICH EVERY LEGISLATIVE
DISTRICT MUST BE
REPRESENTED BY AT LEAST
THREE PERCENT OF THE
REGISTERED VOTERS
THEREOF. NO AMENDMENT
UNDER THIS SECTION SHALL
BE AUTHORIZED WITHIN FIVE
YEARS FOLLOWING THE
RATIFICATION OF THIS
CONSTITUTION NOR OFTENER
THAN ONCE EVERY FIVE
YEARS THEREAFTER.
THE NATIONAL ASSEMBLY
SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF
THE EXERCISE OF THIS
RIGHT.  40
The entire proposed Article on Amendments or Revisions
was approved on second reading on 9 July
1986.  Thereafter, upon his motion for reconsideration,
41
Commissioner Gascon was allowed to introduce an
amendment to Section 2 which, nevertheless, was
withdrawn. In view thereof, the Article was again
approved on Second and Third Readings on 1 August
1986.  42
However, the Committee on Style recommended that the
approved Section 2 be amended by changing "percent" to "per
centum" and "thereof" to "therein" and deleting the phrase "by
law" in the second paragraph so that said paragraph reads: The
Congress   shall provide for the implementation of the exercise of
43
this right.   This amendment was approved and is the text of the
44
present second paragraph of Section 2.
The conclusion then is inevitable that, indeed, the system of
initiative on the Constitution under Section 2 of Article XVII of the
Constitution is not self-executory.
Has Congress "provided" for the implementation of the exercise
of this right? Those who answer the question in the affirmative,
like the private respondents and intervenor Senator Roco, point to
us R.A. No. 6735.
There is, of course, no other better way for Congress to
implement the exercise of the right than through the passage of a
statute or legislative act. This is the essence or rationale of the
last minute amendment by the Constitutional Commission to
substitute the last paragraph of Section 2 of Article XVII then
reading:
The Congress   shall by law provide for the
45
implementation of the exercise of this right.
with
The Congress shall provide for the
implementation of the exercise of this right.
 This substitute amendment was an investiture on
Congress of a power to provide for the rules implementing
the exercise of the right. The "rules" means "the details on
how [the right] is to be carried out." 
46
We agree that R.A. No. 6735 was, as its history reveals, intended
to cover initiative to propose amendments to the Constitution. The
Act is a consolidation of House Bill No. 21505 and Senate Bill No.
17. The former was prepared by the Committee on Suffrage and
Electoral Reforms of the House of Representatives on the basis
of two House Bills referred to it, viz., (a) House Bill No.
497,   which dealt with the initiative and referendum mentioned
47
in Sections 1 and 32 of Article VI of the Constitution; and (b)
House Bill No. 988,   which dealt with the subject matter of House
48
Bill No. 497, as well as with initiative and referendum under
Section 3 of Article X (Local Government) and initiative provided
for in Section 2 of Article XVII of the Constitution. Senate Bill No.
17   solely dealt with initiative and referendum concerning
49
ordinances or resolutions of local government units. The
Bicameral Conference Committee consolidated Senate Bill No.
17 and House Bill No. 21505 into a draft bill, which was
subsequently approved on 8 June 1989 by the Senate   and by 50
the House of Representatives.   This approved bill is now R.A.
51
No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of
Congress to "provide for the implementation of the exercise of the
right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC,
Section 2 of the Act does not suggest an initiative on
amendments to the Constitution. The said section reads:
Sec. 2. Statement and Policy. — The power of the
people under a system of initiative and
referendum to directly propose, enact, approve or
reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any
legislative body upon compliance with the
requirements of this Act is hereby affirmed,
recognized and guaranteed. (Emphasis supplied).
The inclusion of the word "Constitution" therein was a
delayed afterthought. That word is neither germane nor
relevant to said section, which exclusively relates to
initiative and referendum on national laws and local laws,
ordinances, and resolutions. That section is silent as
to amendments on the Constitution. As pointed out
earlier, initiative on the Constitution is confined only to
proposals to AMEND. The people are not accorded the
power to "directly propose, enact, approve, or reject, in
whole or in part, the Constitution" through the system
of initiative. They can only do so with respect to "laws,
ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this
section was lifted from Section 1 of Senate Bill No. 17, which
solely referred to a statement of policy on local initiative and
referendum and appropriately used the phrases "propose and
enact," "approve or reject" and "in whole or in part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act
defines initiative on amendments to the Constitution and
mentions it as one of the three systems of initiative, and that
Section 5 (Requirements) restates the constitutional requirements
as to the percentage of the registered voters who must submit the
proposal. But unlike in the case of the other systems of initiative,
the Act does not provide for the contents of a petition
for initiative on the Constitution. Section 5, paragraph (c) requires,
among other things, statement of the proposed law sought to be
enacted, approved or rejected, amended or repealed, as the case
may be. It does not include, as among the contents of the
petition, the provisions of the Constitution sought to be amended,
in the case of initiative on the Constitution. Said paragraph (c)
reads in full as follows:
(c) The petition shall state the following:
c.1 contents or text of the proposed law sought to
be enacted, approved or rejected, amended or
repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided
therein;
c.5 signatures of the petitioners or registered
voters; and
c.6 an abstract or summary proposition is not
more than one hundred (100) words which shall
be legibly written or printed at the top of every
page of the petition. (Emphasis supplied).
The use of the clause "proposed laws sought to be
enacted, approved or rejected, amended or repealed"
only strengthens the conclusion that Section 2, quoted
earlier, excludes initiative on amendments to the
Constitution.
Third. While the Act provides subtitles for National Initiative and
Referendum (Subtitle II) and for Local Initiative and Referendum
(Subtitle III), no subtitle is provided for initiative on the
Constitution. This conspicuous silence as to the latter simply
means that the main thrust of the Act is initiative and referendum
on national and local laws. If Congress intended R.A. No. 6735 to
fully provide for the implementation of the initiative on
amendments to the Constitution, it could have provided for a
subtitle therefor, considering that in the order of things, the
primacy of interest, or hierarchy of values, the right of the people
to directly propose amendments to the Constitution is far more
important than the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments
to the Constitution is subsumed under the subtitle on National
Initiative and Referendum because it is national in scope. Our
reading of Subtitle II (National Initiative and Referendum) and
Subtitle III (Local Initiative and Referendum) leaves no room for
doubt that the classification is not based on the scope of the
initiative involved, but on its nature and character. It is "national
initiative," if what is proposed to be adopted or enacted is
a national law, or a law which only Congress can pass. It is "local
initiative" if what is proposed to be adopted or enacted is a law,
ordinance, or resolution which only the legislative bodies of the
governments of the autonomous regions, provinces, cities,
municipalities, and barangays can pass. This classification of
initiative into national and local is actually based on Section 3 of
the Act, which we quote for emphasis and clearer understanding:
Sec. 3. Definition of terms —
x x x           x x x          x x x
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a
petition proposing amendments to the
Constitution;
a.2 Initiative on Statutes which refers to a petition
proposing to enact a national legislation; and
a.3 Initiative on local legislation which refers to a
petition proposing to enact a regional, provincial,
 city, municipal, or barangay law, resolution or
ordinance. (Emphasis supplied).
Hence, to complete the classification under subtitles there should
have been a subtitle on initiative on amendments to the
Constitution. 53
A further examination of the Act even reveals that the subtitling is
not accurate. Provisions not germane to the subtitle on National
Initiative and Referendum are placed therein, like (1) paragraphs
(b) and (c) of Section 9, which reads:
(b) The proposition in an initiative on the
Constitution approved by the majority of the votes
cast in the plebiscite shall become effective as to
the day of the plebiscite.
(c) A national or local initiative proposition
approved by majority of the votes cast in an
election called for the purpose shall become
effective fifteen (15) days after certification and
proclamation of the Commission. (Emphasis
supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to
indirect initiative with the legislative bodies of local governments;
thus:
Sec. 11. Indirect Initiative. — Any duly accredited
people's organization, as defined by law, may file
a petition for indirect initiative with the House of
Representatives, and other legislative bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions
of the COMELEC on the findings of sufficiency or
insufficiency of the petition for initiative or referendum,
which could be petitions for both national and
local initiative and referendum.
Upon the other hand, Section 18 on "Authority of Courts" under
subtitle III on Local Initiative and Referendum is
misplaced,   since the provision therein applies to both national
54
and local initiative and referendum. It reads:
Sec. 18. Authority of Courts. — Nothing in this Act
shall prevent or preclude the proper courts from
declaring null and void any proposition approved
pursuant to this Act for violation of the Constitution
or want of capacity of the local legislative body to
enact the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and
care in providing for the details in the implementation of initiative
and referendum on national and local legislation thereby giving
them special attention, it failed, rather intentionally, to do so on
the system of initiative on amendments to the Constitution. Anent
the initiative on national legislation, the Act provides for the
following:
(a) The required percentage of registered voters to sign the
petition and the contents of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the
required number of votes for its approval;
(d) The certification by the COMELEC of the approval of the
proposition;
(e) The publication of the approved proposition in the Official
Gazette or in a newspaper of general circulation in the
Philippines; and
(f) The effects of the approval or rejection of the proposition.  55
As regards local initiative, the Act provides for the following:
(a) The preliminary requirement as to the number of signatures of
registered voters for the petition;
(b) The submission of the petition to the local legislative body
concerned;
(c) The effect of the legislative body's failure to favorably act
thereon, and the invocation of the power of initiative as a
consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its
official in the local government unit concerned as to whether the
required number of signatures have been obtained;
(h) The setting of a date by the COMELEC for the submission of
the proposition to the registered voters for their approval, which
must be within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies.  56
Upon the other hand, as to initiative on amendments to the
Constitution, R.A. No. 6735, in all of its twenty-three sections,
merely (a) mentions, the word "Constitution" in Section 2; (b)
defines "initiative on the Constitution" and includes it in the
enumeration of the three systems of initiative in Section 3; (c)
speaks of "plebiscite" as the process by which the proposition in
an initiative on the Constitution may be approved or rejected by
the people; (d) reiterates the constitutional requirements as to the
number of voters who should sign the petition; and (e) provides
for the date of effectivity of the approved proposition.
There was, therefore, an obvious downgrading of the more
important or the paramount system of initiative. RA. No. 6735
thus delivered a humiliating blow to the system of initiative on
amendments to the Constitution by merely paying it a reluctant lip
service.  57
The foregoing brings us to the conclusion that R.A. No. 6735 is
incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution
is concerned. Its lacunae on this substantive matter are fatal and
cannot be cured by "empowering" the COMELEC "to promulgate
such rules and regulations as may be necessary to carry out the
purposes of [the] Act. 
58
The rule is that what has been delegated, cannot be delegated or
as expressed in a Latin maxim: potestas delegata non delegari
potest.   The recognized exceptions to the rule are as follows:
59
(1) Delegation of tariff powers to the President under Section
28(2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under
Section 23(2) of Article VI of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.  60
Empowering the COMELEC, an administrative body exercising
quasi-judicial functions, to promulgate rules and regulations is a
form of delegation of legislative authority under no. 5 above.
However, in every case of permissible delegation, there must be
a showing that the delegation itself is valid. It is valid only if the
law (a) is complete in itself, setting forth therein the policy to be
executed, carried out, or implemented by the delegate; and (b)
fixes a standard — the limits of which are sufficiently determinate
and determinable — to which the delegate must conform in the
performance of his functions.   A sufficient standard is one which
61
defines legislative policy, marks its limits, maps out its boundaries
and specifies the public agency to apply it. It indicates the
circumstances under which the legislative command is to be
effected. 
62
Insofar as initiative to propose amendments to the Constitution is
concerned, R.A. No. 6735 miserably failed to satisfy both
requirements in subordinate legislation. The delegation of the
power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT
PRESCRIBES RULES AND REGULATIONS ON THE
CONDUCT OF INITIATIVE ON AMENDMENTS TO THE
CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate
rules and regulations to implement the exercise of the right of the
people to directly propose amendments to the Constitution
through the system of initiative. It does not have that power under
R.A. No. 6735. Reliance on the COMELEC's power under Section
2(1) of Article IX-C of the Constitution is misplaced, for the laws
and regulations referred to therein are those promulgated by the
COMELEC under (a) Section 3 of Article IX-C of the Constitution,
or (b) a law where subordinate legislation is authorized and which
satisfies the "completeness" and the "sufficient standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH
GRAVE ABUSE OF DISCRETION IN ENTERTAINING
THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full
compliance with the power of Congress to implement the right to
initiate constitutional amendments, or that it has validly vested
upon the COMELEC the power of subordinate legislation and that
COMELEC Resolution No. 2300 is valid, the COMELEC acted
without jurisdiction or with grave abuse of discretion in
entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section
5(b) of R.A. No. 6735, a petition for initiative on the Constitution
must be signed by at least 12% of the total number of registered
voters of which every legislative district is represented by at least
3% of the registered voters therein. The Delfin Petition does not
contain signatures of the required number of voters. Delfin
himself admits that he has not yet gathered signatures and that
the purpose of his petition is primarily to obtain assistance in his
drive to gather signatures. Without the required signatures, the
petition cannot be deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative
only after its filing. The petition then is the initiatory pleading.
Nothing before its filing is cognizable by the COMELEC, sitting en
banc. The only participation of the COMELEC or its personnel
before the filing of such petition are (1) to prescribe the form of
the petition;   (2) to issue through its Election Records and
63
Statistics Office a certificate on the total number of registered
voters in each legislative district;   (3) to assist, through its
64
We feel, however, that the system of initiative to propose
election registrars, in the establishment of signature amendments to the Constitution should no longer be kept in the
stations;   and (4) to verify, through its election registrars, the
65
cold; it should be given flesh and blood, energy and strength.
signatures on the basis of the registry list of voters, voters' Congress should not tarry any longer in complying with the
affidavits, and voters' identification cards used in the immediately constitutional mandate to provide for the implementation of the
preceding election. 66
right of the people under that system.

Since the Delfin Petition is not the initiatory petition under R.A. WHEREFORE, judgment is hereby rendered
No. 6735 and COMELEC Resolution No. 2300, it cannot be
entertained or given cognizance of by the COMELEC. The a) GRANTING the instant petition;
respondent Commission must have known that the petition does
not fall under any of the actions or proceedings under the b) DECLARING R.A. No. 6735 inadequate to cover the system of
COMELEC Rules of Procedure or under Resolution No. 2300, for initiative on amendments to the Constitution, and to have failed to
which reason it did not assign to the petition a docket number. provide sufficient standard for subordinate legislation;
Hence, the said petition was merely entered as UND,
meaning, undocketed. That petition was nothing more than a
c) DECLARING void those parts of Resolution No. 2300 of the
mere scrap of paper, which should not have been dignified by the
Commission on Elections prescribing rules and regulations on the
Order of 6 December 1996, the hearing on 12 December 1996,
conduct of initiative or amendments to the Constitution; and
and the order directing Delfin and the oppositors to file their
memoranda or oppositions. In so dignifying it, the COMELEC
acted without jurisdiction or with grave abuse of discretion and d) ORDERING the Commission on Elections to forthwith
merely wasted its time, energy, and resources. DISMISS the DELFIN petition (UND-96-037).

The foregoing considered, further discussion on the issue of
whether the proposal to lift the term limits of elective national and
local officials is an amendment to, and not a revision of, the
Constitution is rendered unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be
permanently enjoined from entertaining or taking cognizance of
any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the
implementation of the system.
The Temporary Restraining Order issued on 18 December 1996
is made permanent as against the Commission on Elections, but
is LIFTED as against private respondents.
Resolution on the matter of contempt is hereby reserved.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo, Kapunan,
Hermosisima, Jr. and Torres, Jr., JJ., concur.
Padilla, J., took no part.

 

Separate Opinions
PUNO, J., concurring and dissenting:
I join the ground-breaking ponencia of our esteemed colleague,
Mr. Justice Davide insofar as it orders the COMELEC to dismiss
the Delfin petition. I regret, however, I cannot share the view that
R.A. No. 5735 and COMELEC Resolution No. 2300 are legally
defective and cannot implement the people's initiative to amend
the Constitution. I likewise submit that the petition with respect to
the Pedrosas has no leg to stand on and should be dismissed.
With due respect:
I principle of separation of powers.
First, I submit that R.A. No. 6735 sufficiently implements the right
of the people to initiate amendments to the Constitution thru
initiative. Our effort to discover the meaning of R.A. No. 6735
should start with the search of the intent of our lawmakers. A
knowledge of this intent is critical for the intent of the legislature is
the law and the controlling factor in its interpretation.  Stated
1
otherwise, intent is the essence of the law, the spirit which gives
life to its enactment.2
Significantly, the majority decision concedes that ". . . R.A. No.
6735 was intended to cover initiative to propose amendments to
the Constitution." It ought to be so for this intent is crystal clear
from the history of the law which was a consolidation of House
Bill No. 21505  and Senate Bill No. 17.  Senate Bill No. 17 was
3 4
entitled "An Act Providing for a System of Initiative and
Referendum and the Exception Therefrom, Whereby People in
Local Government Units Can Directly Propose and Enact
Resolutions and Ordinances or Approve or Reject any Ordinance
or Resolution Passed by the Local Legislative Body." Beyond
doubt, Senate Bill No. 17 did not include people's initiative to
propose amendments to the Constitution. In checkered contrast,
House Bill No. 21505  expressly included people's initiative to
5
amend the Constitution. Congressman (now Senator) Raul Roco
emphasized in his sponsorship remarks: 6
xxx xxx xxx
SPONSORSHIP REMARKS OF MR. ROCO
At the outset, Mr. Roco provided the following
backgrounder on the constitutional basis of the
proposed measure.
1. As cited in Vera vs. Avelino (1946), the
presidential system which was introduced by the
1935 Constitution saw the application of the
2. While under the parliamentary system of the
1973 Constitution the principle remained
applicable, the 1981 amendments to the
Constitution of 1973 ensured presidential
dominance over the Batasang Pambansa.
Constitutional history then saw the shifting and
sharing of legislative powers between the
Legislature and the Executive departments.
Transcending changes in the exercise of
legislative power is the declaration in the
Philippine Constitution that the Philippines is a
republican state where sovereignty resides in the
people and all sovereignty emanates from them.
3. Under the 1987 Constitution, the lawmaking
power is still preserved in Congress; however, to
institutionalize direct action of the people as
exemplified in the 1986 Revolution, the
Constitution recognizes the power of the people,
through the system of initiative and referendum.
As cited in Section 1, Article VI of the 1987
Constitution, Congress does not have plenary
powers since reserve powers are given to the
people expressly. Section 32 of the same Article
mandates Congress to pass at the soonest
possible time, a bill on referendum and initiative,
and to share its legislative powers with the people.
Section 2, Article XVII of the 1987 Constitution, on
the other hand, vests in the people the power to
directly propose amendments to the Constitution
through initiative, upon petition of at least 12
percent of the total number of registered voters.
Stating that House Bill No. 21505 is the
Committee's response to the duty imposed on
Congress to implement the exercise by the people
of the right to initiative and referendum, Mr. Roco
recalled the beginnings of the system of initiative
and referendum under Philippine Law. He cited
Section 99 of the Local Government Code which
vests in the barangay assembly the power to
initiate legislative processes, decide the holding of
plebiscite and hear reports of the Sangguniang
Barangay, all of which are variations of the power
of initiative and referendum. He added that the
holding of barangay plebiscites and referendum
are likewise provided in Sections 100 and 101 of
the same Code.
Thereupon, for the sake of brevity, Mr. Roco
moved that pertinent quotation on the subject
which he will later submit to the Secretary of the
House be incorporated as part of his sponsorship
speech.
He then cited examples of initiative and
referendum similar to those contained in the
instant Bill among which are the constitutions of
states in the United States which recognize the
right of registered voters to initiate the enactment
of any statute or to project any existing law or
parts thereof in a referendum. These states, he
said, are Alaska, Alabama, Montana,
Massachusets, Dakota, Oklahoma, Oregon, and
practically all other states.
Mr. Roco explained that in certain American
states, the kind of laws to which initiative and
referendum apply is also without limitation, except
for emergency measures, which are likewise
incorporated in House Bill No. 21505. He added
that the procedure provided by the Bill from the
filing of the petition, the requirements of a certain
percentage of supporters to present a proposition,
to the submission to electors are substantially
similar to the provisions in American laws.
Although an infant in Philippine political structure,
the system of initiative and referendum, he said, is
a tried and tested system in other jurisdictions,
and the Bill is patterned after American
experience.
He further explained that the bill has only 12
sections, and recalled that the Constitutional
Commissioners saw the system of the initiative
and referendum as an instrument which can be
used should the legislature show itself to be
indifferent to the needs of the people. This is the
reason, he claimed, why now is an opportune time
to pass the Bill even as he noted the felt necessity
of the times to pass laws which are necessary to
safeguard individual rights and liberties.
At this juncture Mr. Roco explained the process of
initiative and referendum as advocated in House
Bill No. 21505. He stated that:
1. Initiative means that the people, on their own
political judgment, submit a Bill for the
consideration of the general electorate.
2. The instant Bill provides three kinds of initiative,
namely; the initiative to amend the Constitution
once every five years; the initiative to amend
statutes approved by Congress; and the initiative
to amend local ordinances.
3. The instant Bill gives a definite procedure and
allows the Commission on Elections (COMELEC)
to define rules and regulations on the power of
initiative.
4. Referendum means that the legislators seek
the consent of the people on measures that they
have approved.
5. Under Section 4 of the Bill the people can
initiate a referendum which is a mode of plebiscite
by presenting a petition therefor, but under certain
limitations, such as the signing of said petition by
at least 10 percent of the total of registered voters
at which every legislative district is represented by
at least three percent of the registered voters
thereof. Within 30 days after receipt of the
petition, the COMELEC shall determine the
sufficiency of the petition, publish the same, and
set the date of the referendum within 45 to 90-day
period.
6. When the matter under referendum or initiative
is approved by the required number of votes, it
shall become effective 15 days following the
completion of its publication in the Official
Gazette.
In concluding his sponsorship remarks, Mr. Roco
stressed that the Members cannot ignore the
people's call for initiative and referendum and
urged the Body to approve House Bill No. 21505.
At this juncture, Mr. Roco also requested that the
prepared text of his speech together with the
footnotes be reproduced as part of the
Congressional Records.
The same sentiment as to the bill's intent to implement
people's initiative to amend the Constitution was stressed
by then Congressman (now Secretary of Agriculture)
Salvador Escudero III in his sponsorship remarks, viz: 7
x x x           x x x          x x x
SPONSORSHIP REMARKS OF MR. ESCUDERO
Mr. Escudero first pointed out that the people
have been clamoring for a truly popular
democracy ever since, especially in the so-called
parliament of the streets. A substantial segment of
the population feels, he said, that the form of
democracy is there, but not the reality or
substance of it because of the increasingly elitist
approach of their representatives to the country's
problem.
 Whereupon, Mr. Escudero pointed out that the
Constitution has provided a means whereby the
people can exercise the reserved power of
initiative to propose amendments to the
Constitution, and requested that Sections 1 and
32, Article VI; Section 3, Article X; and Section 2,
Article XVII of the Constitution be made part of his
sponsorship remarks.
Mr. Escudero also stressed that an implementing
law is needed for the aforecited Constitutional
provisions. While the enactment of the Bill will
give way to strong competition among cause-
oriented and sectoral groups, he continued, it will
hasten the politization of the citizenry, aid the
government in forming an enlightened public
opinion, and produce more responsive legislation.
The passage of the Bill will also give street
parliamentarians the opportunity to articulate their
ideas in a democratic forum, he added.
Mr. Escudero stated that he and Mr. Roco hoped
for the early approval of the Bill so that it can be
initially used for the Agrarian Reform Law. He said
that the passage of House Bill No. 21505 will
show that the Members can set aside their
personal and political consideration for the greater
good of the people.
The disagreeing provisions in Senate Bill No. 17 and
House Bill No. 21505 were threshed out in a Bicameral
Conference Committee.  In the meeting of the Committee
8 scope of authority of the local
on June 6, 1989,  the members agreed that the two (2)
9 legislative body, otherwise, my
bills should be consolidated and that the consolidated
version should include people's initiative to amend the
Constitution as contemplated by House Bill No. 21505.
The transcript of the meeting states:
x x x           x x x          x x x
CHAIRMAN GONZALES. But at
any rate, as I have said, because
this is new in our political system,
the Senate decided on a more
cautious approach and limiting it
only to the local government units
because even with that stage
where . . . at least this has been
quite popular, ano? It has been
attempted on a national basis.
Alright. There has not been a
single attempt. Now, so, kami
limitado doon. And, second, we
consider also that it is only fair that
the local legislative body should
be given a chance to adopt the
legislation bill proposed, right?
Iyong sinasabing indirect system
of initiative. If after all, the local
legislative assembly or body is
willing to adopt it in full or in toto,
there ought to be any reason for
initiative, ano for initiative. And,
number 3, we feel that there
should be some limitation on the
frequency with which it should be
applied. Number 4, na the people,
thru initiative, cannot enact any
ordinance that is beyond the
God, mag-aassume sila ng power
that is broader and greater than
the grant of legislative power to
the Sanggunians. And Number 5,
because of that, then a proposition
which has been the result of a
successful initiative can only carry
the force and effect of an
ordinance and therefore that
should not deprive the court of its
jurisdiction to declare it null and
void for want of authority. Ha, di
ba? I mean it is beyond powers of
local government units to enact.
Iyon ang main essence namin, so
we concentrated on that. And that
is why . . . so ang sa inyo naman
includes iyon sa Constitution,
amendment to the Constitution
eh . . . national laws. Sa amin, if
you insist on that, alright, although
we feel na it will in effect become a
dead statute. Alright, and we can
agree, we can agree. So ang
mangyayari dito, and magiging
basic nito, let us not discuss
anymore kung alin and magiging
basic bill, ano, whether it is the
Senate Bill or whether it is the
House bill. Logically it should be
ours sapagkat una iyong sa amin
eh. It is one of the first bills
approved by the Senate kaya ang
number niyan, makikita mo, 17,
eh. Huwag na nating pagusapan.
Now, if you insist, really iyong
features ng national at saka
constitutional, okay. ____ gagawin
na natin na consolidation of both
bills.
HON. ROCO. Yes, we shall
consolidate.
CHAIRMAN GONZALES.
Consolidation of the Senate and
House Bill No. so and so.  10
When the consolidated bill was presented to the House
for approval, then Congressman Roco upon interpellation
by Congressman Rodolfo Albano, again confirmed that it
covered people's initiative to amend the Constitution. The
record of the House Representative states:  11
x x x           x x x          x x x
THE SPEAKER PRO TEMPORE.
The Gentleman from Camarines
Sur is recognized.
MR. ROCO. On the Conference
Committee Report on the
disagreeing provisions between
Senate Bill No. 21505 which refers
to the system providing for the
initiative and referendum,
fundamentally, Mr. Speaker, we
consolidated the Senate and the
House versions, so both versions
are totally intact in the bill. The
Senators ironically provided for
local initiative and referendum and
the House Representatives
correctly provided for initiative and
referendum on the Constitution
and on national legislation.
I move that we approve the
consolidated bill.
MR. ALBANO. Mr. Speaker.
THE SPEAKER PRO TEMPORE.
What is the pleasure of the
Minority Floor Leader?
MR. ALBANO. Will the
distinguished sponsor answer just
a few questions?
THE SPEAKER PRO TEMPORE.
The Gentlemen will please
proceed.
MR. ALBANO. I heard the sponsor
say that the only difference in the
two bills was that in the Senate
version there was a provision for
local initiative and referendum,
whereas the House version has
none.
MR. ROCO. In fact, the Senate
version provide purely for local
initiative and referendum, whereas
in the House version, we provided
purely for national and
constitutional legislation.
MR. ALBANO. Is it our
understanding therefore, that the
two provisions were incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now
have a complete initiative and
referendum both in the
constitutional amendment and
national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as
well as municipal resolutions?
MR. ROCO. Down to barangay,
Mr. Speaker.
MR. ALBANO. And this initiative
and referendum is in consonance
with the provision of the
Constitution whereby it mandates
this Congress to enact the
enabling law, so that we shall have
a system which can be done every
five years. Is it five years in the
provision of the Constitution?
MR. ROCO. That is correct, Mr.
Speaker. For constitutional
amendments in the 1987
Constitution, it is every five years.
MR. ALBANO. For every five
years, Mr. Speaker?
MR. ROCO. Within five years, we
cannot have multiple initiatives
and referenda.
MR. ALBANO. Therefore,
basically, there was no substantial
difference between the two
versions?
 MR. ROCO. The gaps in our bill
were filled by the Senate which, as
I said earlier, ironically was about
local, provincial and municipal
legislation.
MR. ALBANO. And the two bills
were consolidated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. Thank you, Mr.
Speaker.
APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)
THE SPEAKER PRO TEMPORE. There was a
motion to approve this consolidated bill on Senate
Bill No. 17 and House Bill No. 21505.
Is there any objection? (Silence. The Chair hears
none; the motion is approved.
Since it is crystalline that the intent of R.A. No. 6735 is to
implement the people's initiative to amend the
Constitution, it is our bounden duty to interpret the law as
it was intended by the legislature. We have ruled that
once intent is ascertained, it must be enforced even if it
may not be consistent with the strict letter of the law and
this ruling is as old as the mountain. We have also held
that where a law is susceptible of more than one
interpretation, that interpretation which will most tend to
effectuate the manifest intent of the legislature will be
adopted.  12
The text of R.A. No. 6735 should therefore be reasonably
construed to effectuate its intent to implement the people's
initiative to amend the Constitution. To be sure, we need not
torture the text of said law to reach the conclusion that it
implements people's initiative to amend the Constitution. R.A. No.
6735 is replete with references to this prerogative of the people.
First, the policy statement declares:
Sec. 2. Statement of Policy. — The power of the
people under a system of initiative and
referendum to directly propose, enact, approve or
reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any
legislative body upon compliance with the
requirements of this Act is hereby affirmed,
recognized and guaranteed. (emphasis supplied)
Second, the law defines "initiative" as "the power of the people to
propose amendments to the constitution or to propose and enact
legislations through an election called for the purpose," and
"plebiscite" as "the electoral process by which an initiative on the
Constitution is approved or rejected by the people.
Third, the law provides the requirements for a petition for initiative
to amend the Constitution. Section 5(b) states that "(a) petition for
an initiative on the 1987 Constitution must have at least
twelve per centum (12%) of the total number of registered voters
as signatories, of which every legislative district must be
represented by at least threeper centum (3%) of the registered
voters therein." It also states that "(i)nitiative on the Constitution
may be exercised only after five (5) years from the ratification of
the 1987 Constitution and only once every five (5) years
thereafter.
Finally, R.A. No. 6735 fixes the effectivity date of the amendment.
Section 9(b) states that "(t)he proposition in an initiative on the
Constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.
It is unfortunate that the majority decision resorts to a strained
interpretation of R.A. No. 6735 to defeat its intent which it itself
concedes is to implement people's initiative to propose
amendments to the Constitution. Thus, it laments that the word
"Constitution" is neither germane nor relevant to the policy thrust
of section 2 and that the statute's subtitling is not accurate. These
lapses are to be expected for laws are not always written in
impeccable English. Rightly, the Constitution does not require our
legislators to be word-smiths with the ability to write bills with
poetic commas like Jose Garcia Villa or in lyrical prose like
Winston Churchill. But it has always been our good policy not to
refuse to effectuate the intent of a law on the ground that it is
badly written. As the distinguished Vicente Francisco   reminds
13
us: "Many laws contain words which have not been used
accurately. But the use of inapt or inaccurate language or words,
will not vitiate the statute if the legislative intention can be
ascertained. The same is equally true with reference to awkward,
slovenly, or ungrammatical expressions, that is, such expressions
and words will be construed as carrying the meaning the
legislature intended that they bear, although such a construction
necessitates a departure from the literal meaning of the words
used.
In the same vein, the argument that R.A. No. 7535 does not
include people's initiative to amend the Constitution simply
because it lacks a sub-title on the subject should be given the
weight of helium. Again, the hoary rule in statutory construction is
that headings prefixed to titles, chapters and sections of a statute
may be consulted in aid of interpretation, but inferences drawn
therefrom are entitled to very little weight, and they can never
control the plain terms of the enacting clauses. 14
All said, it is difficult to agree with the majority decision that
refuses to enforce the manifest intent or spirit of R.A. No. 6735 to
implement the people's initiative to amend the Constitution. It
blatantly disregards the rule cast in concrete that the letter of the
law must yield to its spirit for the letter of the law is its body but its
spirit is its soul. 
15
II
COMELEC Resolution No. 2300,   promulgated under the
16
stewardship of Commissioner Haydee Yorac, then its Acting
Chairman, spelled out the procedure on how to exercise the
people's initiative to amend the Constitution. This is in accord with
the delegated power granted by section 20 of R.A. No. 6735 to
the COMELEC which expressly states: "The Commission is
hereby empowered to promulgate such rules and regulations as
may be necessary to carry out the purposes of this Act." By no
means can this delegation of power be assailed as infirmed. In
the benchmark case of Pelaez v. Auditor General,   this Court,
17
thru former Chief Justice Roberto Concepcion laid down the test
to determine whether there is undue delegation of legislative
power, viz:
xxx xxx xxx
Although Congress may delegate to another
branch of the Government the power to fill details
in the execution, enforcement or administration of
a law, it is essential, to forestall a violation of the
principle of separation of powers, that said law: (a)
be complete in itself — it must set forth therein the
policy to be executed, carried out or implemented
by the delegate — and (b) to fix standard — the
limits of which are sufficiently determinate or
determinable — to which the delegate must
conform in the performance of his functions.
Indeed, without a statutory declaration of policy,
which is the essence of every law, and, without
the aforementioned standard, there would be no
means to determine, with reasonable certainty,
whether the delegate has acted within or beyond
 the scope of his authority. Hence, he could
thereby arrogate upon himself the power, not only
to make the law, but, also — and this is worse —
to unmake it, by adopting measures inconsistent
with the end sought to be attained by the Act of
Congress, thus nullifying the principle of
separation of powers and the system of checks
and balances, and, consequently, undermining
the very foundation of our republican system.
Section 68 of the Revised Administrative Code
does not meet these well-settled requirements for
a valid delegation of the power to fix the details in
the enforcement of a law. It does not enunciate
any policy to be carried out or implemented by the
President. Neither does it give a standard
sufficiently precise to avoid the evil effects above
referred to.
R.A. No. 6735 sufficiently states the policy and the standards to
guide the COMELEC in promulgating the law's implementing
rules and regulations of the law. As aforestated, section 2 spells
out the policy of the law; viz: "The power of the people under a
system of initiative and referendum to directly propose, enact,
approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed,
recognized and guaranteed." Spread out all over R.A. No. 6735
are the standards to canalize the delegated power to the
COMELEC to promulgate rules and regulations from overflowing.
Thus, the law states the number of signatures necessary to start
a people's initiative,   directs how initiative proceeding is
18
commenced,   what the COMELEC should do upon filing of the
19
petition for initiative,   how a proposition is approved,   when a
20 21
plebiscite may be held,   when the amendment takes effect   and
22 23
what matters may not be the subject of any initiative.   By any
24
measure, these standards are adequate.
Former Justice Isagani A. Cruz, similarly elucidated that "a
sufficient standard is intended to map out the boundaries of the
delegates' authority by defining the legislative policy and
indicating the circumstances under which it is to be pursued and
effected. The purpose of the sufficient standard is to prevent a
total transference of legislative power from the lawmaking body to
the delegate."   In enacting R.A. No. 6735, it cannot be said that
25
Congress totally transferred its power to enact the law
implementing people's initiative to COMELEC. A close look at
COMELEC Resolution No. 2300 will show that it merely provided
the procedure to effectuate the policy of R.A. No. 6735 giving life
to the people's initiative to amend the Constitution. The
debates   in the Constitutional Commission make it clear that the
26
rules of procedure to enforce the people's initiative can be
delegated, thus:
MR. ROMULO. Under
Commissioner Davide's
amendment, it is possible for the
legislature to set forth certain
procedures to carry out the
initiative. . . ?
MR. DAVIDE. It can.
x x x           x x x          x x x
MR. ROMULO. But the
Commissioner's amendment does
not prevent the legislature from
asking another body to set the
proposition in proper form.
MR. DAVIDE. The Commissioner
is correct. In other words, the
implementation of this particular
right would be subject to
 legislation, provided the legislature
cannot determine anymore the
percentage of the requirement.
MR. DAVIDE. As long as it will not
destroy the substantive right to
initiate. In other words, none of the
procedures to be proposed by the
legislative body must diminish or
impair the right conceded here.
MR. ROMULO. In that provision of
the Constitution can the
procedures which I have
discussed be legislated?
MR. DAVIDE. Yes.
In his book, The Intent of the 1986 Constitution
Writers,   Father Bernas likewise affirmed: "In response to
27
questions of Commissioner Romulo, Davide explained the
extent of the power of the legislature over the process: it
could for instance, prescribe the 'proper form before (the
amendment) is submitted to the people,' it could authorize
another body to check the proper form. It could also
authorize the COMELEC, for instance, to check the
authenticity of the signatures of petitioners. Davide
concluded: 'As long as it will not destroy the substantive
right to initiate. In other words, none of the procedures to
be proposed by the legislative body must diminish or
impair the right conceded here.'" Quite clearly, the
prohibition against the legislature is to impair the
substantive right of the people to initiate amendments to
the Constitution. It is not, however, prohibited from
legislating the procedure to enforce the people's right of
initiative or to delegate it to another body like the
COMELEC with proper standard.
A survey of our case law will show that this Court has prudentially
refrained from invalidating administrative rules on the ground of
lack of adequate legislative standard to guide their promulgation.
As aptly perceived by former Justice Cruz, "even if the law itself
does not expressly pinpoint the standard, the courts will bend
backward to locate the same elsewhere in order to spare the
statute, if it can, from constitutional infirmity."   He cited the ruling
28
in Hirabayashi v. United States,   viz:
29
xxx xxx xxx
It is true that the Act does not in terms establish a
particular standard to which orders of the military
commander are to conform, or require findings to
be made as a prerequisite to any order. But the
Executive Order, the Proclamations and the
statute are not to be read in isolation from each
other. They were parts of a single program and
must be judged as such. The Act of March 21,
1942, was an adoption by Congress of the
Executive Order and of the Proclamations. The
Proclamations themselves followed a standard
authorized by the Executive Order — the
necessity of protecting military resources in the
designated areas against espionage and
sabotage.
In the case at bar, the policy and the standards are bright-
lined in R.A. No. 6735. A 20-20 look at the law cannot
miss them. They were not written by our legislators in
invisible ink. The policy and standards can also be found
in no less than section 2, Article XVII of the Constitution
on Amendments or Revisions. There is thus no reason to
hold that the standards provided for in R.A. No. 6735 are
insufficient for in other cases we have upheld as
adequate more general standards such as "simplicity and
dignity,"   "public interest,"   "public welfare,"   "interest of
30 31 32
law and order,"   "justice and equity,"  "adequate and
33 34
 efficient instruction,"   "public safety,"   "public
35 36
policy",   "greater national interest",   "protect the local
37 38
consumer by stabilizing and subsidizing domestic pump
rates",   and "promote simplicity, economy and efficiency
39
in government."   A due regard and respect to the
40
legislature, a co-equal and coordinate branch of
government, should counsel this Court to refrain from
refusing to effectuate laws unless they are clearly
unconstitutional.
III
It is also respectfully submitted that the petition should he
dismissed with respect to the Pedrosas. The inclusion of the
Pedrosas in the petition is utterly baseless. The records show that
the case at bar started when respondent Delfin alone and by
himself filed with the COMELEC a Petition to Amend the
Constitution to Lift Term Limits of Elective Officials by People's
Initiative. The Pedrosas did not join the petition. It was Senator
Roco who moved to intervene and was allowed to do so by the
COMELEC. The petition was heard and before the COMELEC
could resolve the Delfin petition, the case at bar was filed by the
petitioners with this Court. Petitioners sued the COMELEC. Jesus
Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities
as founding members of the People's Initiative for Reform,
Modernization and Action (PIRMA). The suit is an original action
for prohibition with prayer for temporary restraining order and/or
writ of preliminary injunction.
The petition on its face states no cause of action against the
Pedrosas. The only allegation against the Pedrosas is that they
are founding members of the PIRMA which proposes to
undertake the signature drive for people's initiative to amend the
Constitution. Strangely, the PIRMA itself as an organization was
not impleaded as a respondent. Petitioners then prayed that we
order the Pedrosas ". . . to desist from conducting a signature
drive for a people's initiative to amend the Constitution." On
December 19, 1996, we temporarily enjoined the Pedrosas ". . .
from conducting a signature drive for people's initiative to amend
the Constitution." It is not enough for the majority to lift the
temporary restraining order against the Pedrosas. It should
dismiss the petition and all motions for contempt against them
without equivocation.
One need not draw a picture to impart the proposition that in
soliciting signatures to start a people's initiative to amend the
Constitution the Pedrosas are not engaged in any criminal act.
Their solicitation of signatures is a right guaranteed in black and
white by section 2 of Article XVII of the Constitution which
provides that ". . . amendments to this Constitution may likewise
be directly proposed by the people through initiative. . ." This right
springs from the principle proclaimed in section 1, Article II of the
Constitution that in a democratic and republican state
"sovereignty resides in the people and all government authority
emanates from them." The Pedrosas are part of the people and
their voice is part of the voice of the people. They may constitute
but a particle of our sovereignty but no power can trivialize them
for sovereignty is indivisible.
But this is not all. Section 16 of Article XIII of the Constitution
provides: "The right of the people and their organizations to
effective and reasonable participation at all levels of social,
political and economic decision-making shall not be abridged.
The State shall by law, facilitate the establishment of adequate
consultation mechanisms." This is another novel provision of the
1987 Constitution strengthening the sinews of the sovereignty of
our people. In soliciting signatures to amend the Constitution, the
Pedrosas are participating in the political decision-making
process of our people. The Constitution says their right cannot be
abridged without any ifs and buts. We cannot put a question mark
on their right.
Over and above these new provisions, the Pedrosas' campaign to
amend the Constitution is an exercise of their freedom of speech
and expression and their right to petition the government for
redress of grievances. We have memorialized this universal right
in all our fundamental laws from the Malolos Constitution to the flowering of people empowerment. More important, the Court
1987 Constitution. We have iterated and reiterated in our rulings cannot seal the lips of people who are pro-change but not those
that freedom of speech is a preferred right, the matrix of other who are anti-change without concerting the debate on charter
important rights of our people. Undeniably, freedom of speech change into a sterile talkaton. Democracy is enlivened by a
enervates the essence of the democratic creed of think and let dialogue and not by a monologue for in a democracy nobody can
think. For this reason, the Constitution encourages speech even if claim any infallibility.
it protects the speechless.
Melo and Mendoza, JJ., concur.
It is thus evident that the right of the Pedrosas to solicit signatures
to start a people's initiative to amend the Constitution does not  
depend on any law, much less on R.A. 6735 or COMELEC
Resolution No. 2300. No law, no Constitution can chain the VITUG, J., concurring and dissenting:
people to an undesirable status quo. To be sure, there are no
irrepealable laws just as there are no irrepealable Constitutions.
The COMELEC should have dismissed, outrightly, the Delfin
Change is the predicate of progress and we should not fear
Petition.
change. Mankind has long recognized the truism that the only
constant in life is change and so should the majority.
It does seem to me that there is no real exigency on the part of
the Court to engross, let alone to commit, itself on all the issues
IV
raised and debated upon by the parties. What is essential at this
time would only be to resolve whether or not the petition filed with
In a stream of cases, this Court has rhapsodized people power as the COMELEC, signed by Atty. Jesus S. Delfin in his capacity as
expanded in the 1987 Constitution. On October 5, 1993, we a "founding member of the Movement for People's Initiative" and
observed that people's might is no longer a myth but an article of seeking through a people initiative certain modifications on the
faith in our Constitution.   On September 30, 1994, we postulated
41
1987 Constitution, can properly be regarded and given its due
that people power can be trusted to check excesses of course. The Constitution, relative to any proposed amendment
government and that any effort to trivialize the effectiveness of under this method, is explicit. Section 2, Article XVII, thereof
people's initiatives ought to be rejected.   On September 26,
42
provides:
1996, we pledged that ". . . this Court as a matter of policy and
doctrine will exert every effort to nurture, protect and promote
Sec. 2. Amendments to this Constitution may
their legitimate exercise."   Just a few days ago, or on March 11,
43

likewise be directly proposed by the people

1997, by a unanimous decision,   we allowed a recall election in
44

through initiative upon a petition of at least

Caloocan City involving the mayor and ordered that he submits
twelve per centum of the total number of
his right to continue in office to the judgment of the tribunal of the
registered voters, of which every legislative district
people. Thus far, we have succeeded in transforming people
must be represented by at least three per
power from an opaque abstraction to a robust reality. The
centum of the registered voters therein. No
Constitution calls us to encourage people empowerment to
amendment under this section shall be authorized
blossom in full. The Court cannot halt any and all signature
within five years following the ratification of this
campaigns to amend the Constitution without setting back the
 Constitution nor oftener than once every five
years thereafter.
The Congress shall provide for the
implementation of the exercise of this right.
The Delfin petition is thus utterly deficient. Instead of complying
with the constitutional imperatives, the petition would rather have
much of its burden passed on, in effect, to the COMELEC. The
petition would require COMELEC to schedule "signature
gathering all over the country," to cause the necessary publication
of the petition "in newspapers of general and local circulation,"
and to instruct "Municipal Election Registrars in all Regions of the
Philippines to assist petitioners and volunteers in establishing
signing stations at the time and on the dates designated for the
purpose.
I submit, even then, that the TRO earlier issued by the Court
which, consequentially, is made permanent under
theponencia should be held to cover only the Delfin petition and
must not be so understood as having intended or contemplated to
embrace the signature drive of the Pedrosas. The grant of such a
right is clearly implicit in the constitutional mandate on people
initiative.
The distinct greatness of a democratic society is that those who
reign are the governed themselves. The postulate is no longer
lightly taken as just a perceived myth but a veritable reality. The
past has taught us that the vitality of government lies not so much
in the strength of those who lead as in the consent of those who
are led. The role of free speech is pivotal but it can only have its
true meaning if it comes with the correlative end of being heard.
Pending a petition for a people's initiative that is sufficient in form
and substance, it behooves the Court, I most respectfully submit,
to yet refrain from resolving the question of whether or not
Republic Act No. 6735 has effectively and sufficiently
implemented the Constitutional provision on right of the people to
directly propose constitutional amendments. Any opinion or view
formulated by the Court at this point would at best be only a non-
binding, albeitpossibly persuasive, obiter dictum.
I vote for granting the instant petition before the Court and for
clarifying that the TRO earlier issued by the Court did not
prescribe the exercise by the Pedrosas of their right to campaign
for constitutional amendments.
 
FRANCISCO, J., dissenting and concurring:
There is no question that my esteemed colleague Mr. Justice
Davide has prepared a scholarly and well-written ponencia.
Nonetheless, I cannot fully subscribe to his view that R. A. No.
6735 is inadequate to cover the system of initiative on
amendments to the Constitution.
To begin with, sovereignty under the constitution, resides in the
people and all government authority emanates from them.  Unlike
1
our previous constitutions, the present 1987 Constitution has
given more significance to this declaration of principle for the
people are now vested with power not only to propose, enact or
reject any act or law passed by Congress or by the local
legislative body, but to propose amendments to the constitution
as well.  To implement these constitutional edicts, Congress in
2
1989 enacted Republic Act No. 6735, otherwise known as "The
initiative and Referendum Act". This law, to my mind, amply
covers an initiative on the constitution. The contrary view
maintained by petitioners is based principally on the alleged lack
of sub-title in the law on initiative to amend the constitution and
on their allegation that:
Republic Act No. 6735 provides for the effectivity
of the law after publication in print media. [And]
 [t]his indicates that Republic Act No. 6735 covers
only laws and not constitutional amendments,
because constitutional amendments take effect
upon ratification not after publication.
3
which allegation manifests petitioners' selective
interpretation of the law, for under Section 9 of Republic
Act No. 6735 on the Effectivity of Initiative or Referendum
Proposition paragraph (b) thereof is clear in providing
that:
The proposition in an initiative on the constitution approved by a
majority of the votes cast in the plebiscite shall become effective
as to the day of the plebiscite.
It is a rule that every part of the statute must be interpreted with
reference the context, i.e., that every part of the statute must be
construed together with the other parts and kept subservient to
the general intent of the whole enactment.   Thus, the provisions
4 . . . More significantly, in the course of the
of Republic Act No. 6735 may not be interpreted in isolation. The
legislative intent behind every law is to be extracted from the
statute as a whole.5
In its definition of terms, Republic Act No. 6735 defines initiative
as "the power of the people to propose amendments to the
constitution or to propose and enact legislations through an
election called for the purpose". The same section, in
6 disagreeing provisions between
enumerating the three systems of initiative, included an "initiative
on the constitution which refers to a petition proposing
amendments to the constitution"  Paragraph (e) again of Section
7 which refers to the system
3 defines "plebiscite" as "the electoral process by which an
initiative on the constitution is approved or rejected by the people"
And as to the material requirements for an initiative on the
Constitution, Section 5(b) distinctly enumerates the following:
A petition for an initiative on the 1987 Constitution
must have at least twelve per centum (12%) of
the total number of the registered voters as
signatories, of which every legislative district must
be represented by at least three per centum (3%)
of the registered voters therein. Initiative on the
constitution may be exercised only after five (5)
years from the ratification of the 1987 Constitution
and only once every five years thereafter.
These provisions were inserted, on purpose, by Congress
the intent being to provide for the implementation of the
right to propose an amendment to the Constitution by way
of initiative. "A legal provision", the Court has previously
said, "must not be construed as to be a useless
surplusage, and accordingly, meaningless, in the sense of
adding nothing to the law or having no effect whatsoever
thereon".   That this is the legislative intent is further
8
shown by the deliberations in Congress, thus:
consideration of the Conference Committee
Report on the disagreeing provisions of Senate
Bill No. 17 and House Bill No. 21505, it was
noted:
MR. ROCO. On the Conference
Committee Report on the
Senate Bill No. 17 and the
consolidated House Bill No. 21505
providing for the initiative and
referendum, fundamentally, Mr.
Speaker, we consolidated the
Senate and the House versions,
so both versions are totally intact
in the bill. The Senators ironically
provided for local initiative and
referendum and the House of
Representatives correctly provided
for initiative and referendum an
the Constitution and on national
legislation.
I move that we approve the
consolidated bill.
MR. ALBANO, Mr. Speaker.
THE SPEAKER PRO TEMPORE.
What is the pleasure of the
Minority Floor Leader?
MR. ALBANO. Will the
distinguished sponsor answer just
a few questions?
THE SPEAKER PRO TEMPORE.
What does the sponsor say?
MR. ROCO. Willingly, Mr.
Speaker.
THE SPEAKER PRO TEMPORE.
The Gentleman will please
proceed.
MR. ALBANO. I heard the sponsor
say that the only difference in the
two bills was that in the Senate
version there was a provision for
local initiative and referendum,
whereas the House version has
none.
MR. ROCO. In fact, the Senate
version provided purely for local
initiative and referendum, whereas
in the House version, we provided
purely for national and
constitutional legislation.
MR. ALBANO. Is it our
understanding, therefore, that the
two provisions were incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now
have a complete initiative and
referendum both in the
constitutional amendment and
national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as
well as municipal resolutions?
MR. ROCO. Down to barangay,
Mr. Speaker.
MR. ALBANO. And this initiative
and referendum is in consonance
with the provision of the
Constitution to enact the enabling
law, so that we shall have a
system which can be done every
five years. Is it five years in the
provision of the Constitution?
 MR. ROCO. That is correct, Mr.
Speaker. For constitutional
amendments to the 1987
Constitution, it is every five years."
(Id. [Journal and Record of the
House of Representatives], Vol.
VIII, 8 June 1989, p. 960; quoted
in Garcia v. Comelec, 237 SCRA
279, 292-293 [1994]; emphasis
supplied)
. . . The Senate version of the Bill may not have
comprehended initiatives on the Constitution.
When consolidated, though, with the House
version of the Bill and as approved and enacted
into law, the proposal included initiative on both
the Constitution and ordinary laws. 9
Clearly then, Republic Act No. 6735 covers an initiative on
the constitution. Any other construction as what
petitioners foist upon the Court constitute a betrayal of the
intent and spirit behind the enactment.
At any rate, I agree with the ponencia that the Commission on
Elections, at present, cannot take any action (such as those
contained in the Commission's orders dated December 6, 9, and
12, 1996 [Annexes B, C and B-1]) indicative of its having already
assumed jurisdiction over private respondents' petition. This is so
because from the tenor of Section 5 (b) of R.A. No. 6735 it would
appear that proof of procurement of the required percentage of
registered voters at the time the petition for initiative is filed, is a
jurisdictional requirement.
Thus:
A petition for an initiative on the 1987 Constitution
must have at least twelve per centum (12%) of
the total number of registered voters as
signatories, of which every legislative district must
be represented by at least three per centum (3%)
of the registered voters therein. Initiative on the
Constitution may be exercised only after five (5)
years from the ratification of the 1987 Constitution
and only once every five (5) years thereafter.
Here private respondents' petition is unaccompanied by
the required signatures. This defect notwithstanding, it is
without prejudice to the refiling of their petition once
compliance with the required percentage is satisfactorily
shown by private respondents. In the absence, therefore,
of an appropriate petition before the Commission on
Elections, any determination of whether private
respondents' proposal constitutes an amendment or
revision is premature.
ACCORDINGLY, I take exception to the conclusion reached in
the ponencia that R.A. No. 6735 is an "inadequate" legislation to
cover a people's initiative to propose amendments to the
Constitution. I, however, register my concurrence with the
dismissal, in the meantime, of private respondents' petition for
initiative before public respondent Commission on Elections until
the same be supported by proof of strict compliance with Section
5 (b) of R.A. No. 6735.
Melo and Mendoza, JJ., concur.
 
PANGANIBAN, J., concurring and dissenting:
Our distinguished colleague, Mr. Justice Hilario G. Davide Jr.,
writing for the majority, holds that:
(1) The Comelec acted without jurisdiction or with grave abuse of
discretion in entertaining the "initiatory" Delfin Petition.
(2) While the Constitution allows amendments to "be directly
proposed by the people through initiative," there is no
implementing law for the purpose. RA 6735 is "incomplete,
inadequate, or wanting in essential terms and conditions insofar
as initiative on amendments to the Constitution is concerned."
(3) Comelec Resolution No. 2330, "insofar as it prescribes rules
and regulations on the conduct of initiative on amendments to the
Constitution, is void."
I concur with the first item above. Until and unless an initiatory
petition can show the required number of signatures — in this
case, 12% of all the registered voters in the Philippines with at
least 3% in every legislative district — no public funds may be
spent and no government resources may be used in an initiative
to amend the Constitution. Verily, the Comelec cannot even
entertain any petition absent such signatures. However, I dissent
most respectfully from the majority's two other rulings. Let me
explain.
Under the above restrictive holdings espoused by the Court's
majority, the Constitution cannot be amended at all through a
people's initiative. Not by Delfin, not by Pirma, not by anyone, not
even by all the voters of the country acting together. This
decision will effectively but unnecessarily curtail, nullify, abrogate
and render inutile the people's right to change the basic law. At
the very least, the majority holds the right hostage to
congressional discretion on whether to pass a new law to
implement it, when there is already one existing at present. This
right to amend through initiative, it bears stressing, is guaranteed
by Section 2, Article XVII of the Constitution, as follows:
Sec. 2. Amendments to this Constitution may
likewise be directly proposed by the people
through initiative upon a petition of at least
twelve per centum of the total number of
registered voters, of which every legislative district
must be represented by at least three per
centum of the registered voters therein. No
amendment under this section shall be authorized
within five years following the ratification of this
Constitution nor oftener than once every five
years thereafter.
With all due respect, I find the majority's position all too sweeping
and all too extremist. It is equivalent to burning the whole house
to exterminate the rats, and to killing the patient to relieve him of
pain. What Citizen Delfin wants the Comelec to do we should
reject. But we should not thereby preempt any future effort to
exercise the right of initiative correctly and judiciously. The fact
that the Delfin Petition proposes a misuse of initiative does not
justify a ban against its proper use. Indeed, there is a right way to
do the right thing at the right time and for the right reason.
Taken Together and Interpreted Properly, the
Constitution, RA 6735 and Comelec Resolution 2300 Are
Sufficient to Implement Constitutional Initiatives
While RA 6735 may not be a perfect law, it was — as the majority
openly concedes — intended by the legislature to cover and, I
respectfully submit, it contains enough provisions to effectuate an
initiative on the Constitution.  I completely agree with the inspired
1
and inspiring opinions of Mr. Justice Reynato S. Puno and Mr.
Justice Ricardo J. Francisco that RA 6735, the Roco law on
initiative, sufficiently implements the right of the people to initiate
amendments to the Constitution. Such views, which I shall no
longer repeat nor elaborate on, are thoroughly consistent with this
Court's unanimous en banc rulings in Subic Bay Metropolitan
Authority vs. Commission on Elections,   that "provisions for
2
initiative . . . are (to be) liberally construed to effectuate their
purposes, to facilitate and not hamper the exercise by the voters
of the rights granted thereby"; and in Garcia vs. Comelec,   that
3
any "effort to trivialize the effectiveness of people's initiatives
ought to be rejected."
No law can completely and absolutely cover all administrative
details. In recognition of this, RA 6735 wisely empowered   the 4
Commission on Election "to promulgate such rules and
regulations as may be necessary to carry out the purposes of this
Act." And pursuant thereto, the Comelec issued its Resolution
2300 on 16 January 1991. Such Resolution, by its very words,
was promulgated "to govern the conduct of initiative on the
Constitution and initiative and referendum on national and local
laws," not by the incumbent Commission on Elections but by one
then composed of Acting Chairperson Haydee B. Yorac, Comms.
Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario
C. Rama and Magdara B. Dimaampao. All of these
Commissioners who signed Resolution 2300 have retired from
the Commission, and thus we cannot ascribe any vile motive unto
them, other than an honest, sincere and exemplary effort to give
life to a cherished right of our people.
The majority argues that while Resolution 2300 is valid in regard
to national laws and local legislations, it is void in reference to
constitutional amendments. There is no basis for such
differentiation. The source of and authority for the Resolution is
the same law, RA 6735.
I respectfully submit that taken together and interpreted properly
and liberally, the Constitution (particularly Art. XVII, Sec. 2), R4
6735 and Comelec Resolution 2300 provide more than sufficient
authority to implement, effectuate and realize our people's power
to amend the Constitution.
Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled
I am glad the majority decided to heed our plea to lift the
temporary restraining order issued by this Court on 18 December
1996 insofar as it prohibited Petitioner Delfin and the Spouses
Pedrosa from exercising their right of initiative. In fact, I believe
that such restraining order as against private respondents should
not have been issued, in the first place. While I agree that the
Comelec should be stopped from using public funds and
government resources to help them gather signatures, I firmly
believe that this Court has no power to restrain them from
exercising their right of initiative. The right to propose
amendments to the Constitution is really a species of the right of
free speech and free assembly. And certainly, it would be
tyrannical and despotic to stop anyone from speaking freely and
persuading others to conform to his/her beliefs. As the eminent
Voltaire once said, "I may disagree with what you say, but I will
defend to the death your right to say it." After all, freedom is not
really for the thought we agree with, but as Justice Holmes wrote,
"freedom for the thought that we hate." 5
Epilogue
By way of epilogue, let me stress the guiding tenet of my
Separate Opinion. Initiative, like referendum and recall, is a new
and treasured feature of the Filipino constitutional system. All
three are institutionalized legacies of the world-admired EDSA
people power. Like elections and plebiscites, they are hallowed
expressions of popular sovereignty. They are sacred democratic
rights of our people to be used as their final weapons against
political excesses, opportunism, inaction, oppression and
misgovernance; as well as their reserved instruments to exact
transparency, accountability and faithfulness from their chosen
leaders. While on the one hand, their misuse and abuse must be
resolutely struck down, on the other, their legitimate exercise
should be carefully nurtured and zealously protected.
WHEREFORE, I vote to GRANT the petition of Sen. Miriam D.
Santiago et al. and to DIRECT Respondent Commission on
Elections to DISMISS the Delfin Petition on the ground of
prematurity, but not on the other grounds relied upon by the
majority. I also vote to LIFT the temporary restraining order
issued on 18 December 1996 insofar as it prohibits Jesus Delfin,
Alberto Pedrosa and Carmen Pedrosa from exercising their right
to free speech in proposing amendments to the Constitution.
Melo and Mendoza, JJ., concur.
entitled "An Act Providing for a System of Initiative and
Referendum and the Exception Therefrom, Whereby People in
Local Government Units Can Directly Propose and Enact
Resolutions and Ordinances or Approve or Reject any Ordinance
or Resolution Passed by the Local Legislative Body." Beyond
doubt, Senate Bill No. 17 did not include people's initiative to
propose amendments to the Constitution. In checkered contrast,
House Bill No. 21505  expressly included people's initiative to
5

amend the Constitution. Congressman (now Senator) Raul Roco

Separate Opinions emphasized in his sponsorship remarks: 6

PUNO, J., concurring and dissenting: xxx xxx xxx

I join the ground-breaking ponencia of our esteemed colleague, SPONSORSHIP REMARKS OF MR. ROCO
Mr. Justice Davide insofar as it orders the COMELEC to dismiss
the Delfin petition. I regret, however, I cannot share the view that
At the outset, Mr. Roco provided the following
R.A. No. 5735 and COMELEC Resolution No. 2300 are legally
backgrounder on the constitutional basis of the
defective and cannot implement the people's initiative to amend
proposed measure.
the Constitution. I likewise submit that the petition with respect to
the Pedrosas has no leg to stand on and should be dismissed.
With due respect: 1. As cited in Vera vs. Avelino (1946), the
presidential system which was introduced by the
1935 Constitution saw the application of the
I
principle of separation of powers.
First, I submit that R.A. No. 6735 sufficiently implements the right
2. While under the parliamentary system of the
of the people to initiate amendments to the Constitution thru
1973 Constitution the principle remained
initiative. Our effort to discover the meaning of R.A. No. 6735
applicable, the 1981 amendments to the
should start with the search of the intent of our lawmakers. A
Constitution of 1973 ensured presidential
knowledge of this intent is critical for the intent of the legislature is
dominance over the Batasang Pambansa.
the law and the controlling factor in its interpretation.  Stated
1

otherwise, intent is the essence of the law, the spirit which gives
life to its enactment.2 Constitutional history then saw the shifting and
sharing of legislative powers between the
Legislature and the Executive departments.
Significantly, the majority decision concedes that ". . . R.A. No.
Transcending changes in the exercise of
6735 was intended to cover initiative to propose amendments to
legislative power is the declaration in the
the Constitution." It ought to be so for this intent is crystal clear
Philippine Constitution that the Philippines is a
from the history of the law which was a consolidation of House
Bill No. 21505  and Senate Bill No. 17.  Senate Bill No. 17 was
3 4
republican state where sovereignty resides in the
people and all sovereignty emanates from them.
3. Under the 1987 Constitution, the lawmaking
power is still preserved in Congress; however, to
institutionalize direct action of the people as
exemplified in the 1986 Revolution, the
Constitution recognizes the power of the people,
through the system of initiative and referendum.
As cited in Section 1, Article VI of the 1987
Constitution, Congress does not have plenary
powers since reserve powers are given to the
people expressly. Section 32 of the same Article
mandates Congress to pass at the soonest
possible time, a bill on referendum and initiative,
and to share its legislative powers with the people.
Section 2, Article XVII of the 1987 Constitution, on
the other hand, vests in the people the power to
directly propose amendments to the Constitution
through initiative, upon petition of at least 12
percent of the total number of registered voters.
Stating that House Bill No. 21505 is the
Committee's response to the duty imposed on
Congress to implement the exercise by the people
of the right to initiative and referendum, Mr. Roco
recalled the beginnings of the system of initiative
and referendum under Philippine Law. He cited
Section 99 of the Local Government Code which
vests in the barangay assembly the power to
initiate legislative processes, decide the holding of
plebiscite and hear reports of the Sangguniang
Barangay, all of which are variations of the power
of initiative and referendum. He added that the
holding of barangay plebiscites and referendum
are likewise provided in Sections 100 and 101 of
the same Code.
Thereupon, for the sake of brevity, Mr. Roco
moved that pertinent quotation on the subject
which he will later submit to the Secretary of the
House be incorporated as part of his sponsorship
speech.
He then cited examples of initiative and
referendum similar to those contained in the
instant Bill among which are the constitutions of
states in the United States which recognize the
right of registered voters to initiate the enactment
of any statute or to project any existing law or
parts thereof in a referendum. These states, he
said, are Alaska, Alabama, Montana,
Massachusets, Dakota, Oklahoma, Oregon, and
practically all other states.
Mr. Roco explained that in certain American
states, the kind of laws to which initiative and
referendum apply is also without limitation, except
for emergency measures, which are likewise
incorporated in House Bill No. 21505. He added
that the procedure provided by the Bill from the
filing of the petition, the requirements of a certain
percentage of supporters to present a proposition,
to the submission to electors are substantially
similar to the provisions in American laws.
Although an infant in Philippine political structure,
the system of initiative and referendum, he said, is
a tried and tested system in other jurisdictions,
and the Bill is patterned after American
experience.
He further explained that the bill has only 12
sections, and recalled that the Constitutional
Commissioners saw the system of the initiative
and referendum as an instrument which can be
used should the legislature show itself to be
indifferent to the needs of the people. This is the
reason, he claimed, why now is an opportune time
to pass the Bill even as he noted the felt necessity
of the times to pass laws which are necessary to
safeguard individual rights and liberties.
At this juncture Mr. Roco explained the process of
initiative and referendum as advocated in House
Bill No. 21505. He stated that:
1. Initiative means that the people, on their own
political judgment, submit a Bill for the
consideration of the general electorate.
2. The instant Bill provides three kinds of initiative,
namely; the initiative to amend the Constitution
once every five years; the initiative to amend
statutes approved by Congress; and the initiative
to amend local ordinances.
3. The instant Bill gives a definite procedure and
allows the Commission on Elections (COMELEC)
to define rules and regulations on the power of
initiative.
4. Referendum means that the legislators seek
the consent of the people on measures that they
have approved.
5. Under Section 4 of the Bill the people can
initiate a referendum which is a mode of plebiscite
by presenting a petition therefor, but under certain
limitations, such as the signing of said petition by
at least 10 percent of the total of registered voters
at which every legislative district is represented by
at least three percent of the registered voters
thereof. Within 30 days after receipt of the
petition, the COMELEC shall determine the
sufficiency of the petition, publish the same, and
set the date of the referendum within 45 to 90-day
period.
6. When the matter under referendum or initiative
is approved by the required number of votes, it
shall become effective 15 days following the
completion of its publication in the Official
Gazette.
In concluding his sponsorship remarks, Mr. Roco
stressed that the Members cannot ignore the
people's call for initiative and referendum and
urged the Body to approve House Bill No. 21505.
At this juncture, Mr. Roco also requested that the
prepared text of his speech together with the
footnotes be reproduced as part of the
Congressional Records.
The same sentiment as to the bill's intent to implement
people's initiative to amend the Constitution was stressed
by then Congressman (now Secretary of Agriculture)
Salvador Escudero III in his sponsorship remarks, viz: 7
x x x           x x x          x x x
SPONSORSHIP REMARKS OF MR. ESCUDERO
Mr. Escudero first pointed out that the people
have been clamoring for a truly popular
democracy ever since, especially in the so-called
parliament of the streets. A substantial segment of
 the population feels, he said, that the form of on June 6, 1989,  the members agreed that the two (2)
9

democracy is there, but not the reality or bills should be consolidated and that the consolidated
substance of it because of the increasingly elitist version should include people's initiative to amend the
approach of their representatives to the country's Constitution as contemplated by House Bill No. 21505.
problem. The transcript of the meeting states:

Whereupon, Mr. Escudero pointed out that the x x x           x x x          x x x

Constitution has provided a means whereby the
people can exercise the reserved power of CHAIRMAN GONZALES. But at
initiative to propose amendments to the any rate, as I have said, because
Constitution, and requested that Sections 1 and this is new in our political system,
32, Article VI; Section 3, Article X; and Section 2, the Senate decided on a more
Article XVII of the Constitution be made part of his cautious approach and limiting it
sponsorship remarks. only to the local government units
because even with that stage
Mr. Escudero also stressed that an implementing where . . . at least this has been
law is needed for the aforecited Constitutional quite popular, ano? It has been
provisions. While the enactment of the Bill will attempted on a national basis.
give way to strong competition among cause- Alright. There has not been a
oriented and sectoral groups, he continued, it will single attempt. Now, so, kami
hasten the politization of the citizenry, aid the limitado doon. And, second, we
government in forming an enlightened public consider also that it is only fair that
opinion, and produce more responsive legislation. the local legislative body should
The passage of the Bill will also give street be given a chance to adopt the
parliamentarians the opportunity to articulate their legislation bill proposed, right?
ideas in a democratic forum, he added. Iyong sinasabing indirect system
of initiative. If after all, the local
Mr. Escudero stated that he and Mr. Roco hoped legislative assembly or body is
for the early approval of the Bill so that it can be willing to adopt it in full or in toto,
initially used for the Agrarian Reform Law. He said there ought to be any reason for
that the passage of House Bill No. 21505 will initiative, ano for initiative. And,
show that the Members can set aside their number 3, we feel that there
personal and political consideration for the greater should be some limitation on the
good of the people. frequency with which it should be
applied. Number 4, na the people,
The disagreeing provisions in Senate Bill No. 17 and thru initiative, cannot enact any
House Bill No. 21505 were threshed out in a Bicameral ordinance that is beyond the
Conference Committee.  In the meeting of the Committee
8 scope of authority of the local
legislative body, otherwise, my constitutional, okay. ____ gagawin
God, mag-aassume sila ng power na natin na consolidation of both
that is broader and greater than bills.
the grant of legislative power to
the Sanggunians. And Number 5, HON. ROCO. Yes, we shall
because of that, then a proposition consolidate.
which has been the result of a
successful initiative can only carry CHAIRMAN GONZALES.
the force and effect of an Consolidation of the Senate and
ordinance and therefore that House Bill No. so and so.  10

should not deprive the court of its

jurisdiction to declare it null and
When the consolidated bill was presented to the House
void for want of authority. Ha, di
for approval, then Congressman Roco upon interpellation
ba? I mean it is beyond powers of
by Congressman Rodolfo Albano, again confirmed that it
local government units to enact.
covered people's initiative to amend the Constitution. The
Iyon ang main essence namin, so
record of the House Representative states:  11

we concentrated on that. And that

is why . . . so ang sa inyo naman
includes iyon sa Constitution,
amendment to the Constitution
eh . . . national laws. Sa amin, if
you insist on that, alright, although
we feel na it will in effect become a
dead statute. Alright, and we can
agree, we can agree. So ang
mangyayari dito, and magiging
basic nito, let us not discuss
anymore kung alin and magiging
basic bill, ano, whether it is the
Senate Bill or whether it is the
House bill. Logically it should be
ours sapagkat una iyong sa amin
eh. It is one of the first bills
approved by the Senate kaya ang
number niyan, makikita mo, 17,
eh. Huwag na nating pagusapan.
Now, if you insist, really iyong
features ng national at saka
x x x           x x x          x x x
THE SPEAKER PRO TEMPORE.
The Gentleman from Camarines
Sur is recognized.
MR. ROCO. On the Conference
Committee Report on the
disagreeing provisions between
Senate Bill No. 21505 which refers
to the system providing for the
initiative and referendum,
fundamentally, Mr. Speaker, we
consolidated the Senate and the
House versions, so both versions
are totally intact in the bill. The
Senators ironically provided for
local initiative and referendum and
the House Representatives
correctly provided for initiative and
referendum on the Constitution
and on national legislation.
I move that we approve the
consolidated bill.
MR. ALBANO. Mr. Speaker.
THE SPEAKER PRO TEMPORE.
What is the pleasure of the
Minority Floor Leader?
MR. ALBANO. Will the
distinguished sponsor answer just
a few questions?
THE SPEAKER PRO TEMPORE.
The Gentlemen will please
proceed.
MR. ALBANO. I heard the sponsor
say that the only difference in the
two bills was that in the Senate
version there was a provision for
local initiative and referendum,
whereas the House version has
none.
MR. ROCO. In fact, the Senate
version provide purely for local
initiative and referendum, whereas
in the House version, we provided
purely for national and
constitutional legislation.
MR. ALBANO. Is it our
understanding therefore, that the
two provisions were incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now
have a complete initiative and
referendum both in the
constitutional amendment and
national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as
well as municipal resolutions?
MR. ROCO. Down to barangay,
Mr. Speaker.
MR. ALBANO. And this initiative
and referendum is in consonance
with the provision of the
Constitution whereby it mandates
this Congress to enact the
enabling law, so that we shall have
a system which can be done every
five years. Is it five years in the
provision of the Constitution?
MR. ROCO. That is correct, Mr.
Speaker. For constitutional
amendments in the 1987
Constitution, it is every five years.
MR. ALBANO. For every five
years, Mr. Speaker?
 MR. ROCO. Within five years, we
cannot have multiple initiatives
and referenda.
MR. ALBANO. Therefore,
basically, there was no substantial
difference between the two
versions?
MR. ROCO. The gaps in our bill
were filled by the Senate which, as
I said earlier, ironically was about
local, provincial and municipal
legislation.
MR. ALBANO. And the two bills
were consolidated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. Thank you, Mr.
Speaker.
APPROVAL OF C.C.R.
ON S.B. NO. 17 AND H.B. NO. 21505
(The Initiative and Referendum Act)
THE SPEAKER PRO TEMPORE. There was a
motion to approve this consolidated bill on Senate
Bill No. 17 and House Bill No. 21505.
Is there any objection? (Silence. The Chair hears
none; the motion is approved.
Since it is crystalline that the intent of R.A. No. 6735 is to
implement the people's initiative to amend the
Constitution, it is our bounden duty to interpret the law as
it was intended by the legislature. We have ruled that
once intent is ascertained, it must be enforced even if it
may not be consistent with the strict letter of the law and
this ruling is as old as the mountain. We have also held
that where a law is susceptible of more than one
interpretation, that interpretation which will most tend to
effectuate the manifest intent of the legislature will be
adopted.  12
The text of R.A. No. 6735 should therefore be reasonably
construed to effectuate its intent to implement the people's
initiative to amend the Constitution. To be sure, we need not
torture the text of said law to reach the conclusion that it
implements people's initiative to amend the Constitution. R.A. No.
6735 is replete with references to this prerogative of the people.
First, the policy statement declares:
Sec. 2. Statement of Policy. — The power of the
people under a system of initiative and
referendum to directly propose, enact, approve or
reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any
legislative body upon compliance with the
requirements of this Act is hereby affirmed,
recognized and guaranteed. (emphasis supplied)
Second, the law defines "initiative" as "the power of the people to
propose amendments to the constitution or to propose and enact
legislations through an election called for the purpose," and
"plebiscite" as "the electoral process by which an initiative on the
Constitution is approved or rejected by the people.
Third, the law provides the requirements for a petition for initiative
to amend the Constitution. Section 5(b) states that "(a) petition for
an initiative on the 1987 Constitution must have at least
twelve per centum (12%) of the total number of registered voters
as signatories, of which every legislative district must be
represented by at least threeper centum (3%) of the registered
voters therein." It also states that "(i)nitiative on the Constitution
may be exercised only after five (5) years from the ratification of
the 1987 Constitution and only once every five (5) years
thereafter.
Finally, R.A. No. 6735 fixes the effectivity date of the amendment.
Section 9(b) states that "(t)he proposition in an initiative on the
Constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite.
It is unfortunate that the majority decision resorts to a strained
interpretation of R.A. No. 6735 to defeat its intent which it itself
concedes is to implement people's initiative to propose
amendments to the Constitution. Thus, it laments that the word
"Constitution" is neither germane nor relevant to the policy thrust
of section 2 and that the statute's subtitling is not accurate. These
lapses are to be expected for laws are not always written in
impeccable English. Rightly, the Constitution does not require our
legislators to be word-smiths with the ability to write bills with
poetic commas like Jose Garcia Villa or in lyrical prose like
Winston Churchill. But it has always been our good policy not to
refuse to effectuate the intent of a law on the ground that it is
badly written. As the distinguished Vicente Francisco   reminds
13
us: "Many laws contain words which have not been used
accurately. But the use of inapt or inaccurate language or words,
will not vitiate the statute if the legislative intention can be
ascertained. The same is equally true with reference to awkward,
slovenly, or ungrammatical expressions, that is, such expressions
and words will be construed as carrying the meaning the
legislature intended that they bear, although such a construction
necessitates a departure from the literal meaning of the words
used.
In the same vein, the argument that R.A. No. 7535 does not
include people's initiative to amend the Constitution simply
because it lacks a sub-title on the subject should be given the
weight of helium. Again, the hoary rule in statutory construction is
that headings prefixed to titles, chapters and sections of a statute
may be consulted in aid of interpretation, but inferences drawn
therefrom are entitled to very little weight, and they can never
control the plain terms of the enacting clauses.  14
All said, it is difficult to agree with the majority decision that
refuses to enforce the manifest intent or spirit of R.A. No. 6735 to
implement the people's initiative to amend the Constitution. It
blatantly disregards the rule cast in concrete that the letter of the
law must yield to its spirit for the letter of the law is its body but its
spirit is its soul. 
15
II
COMELEC Resolution No. 2300,   promulgated under the
16
stewardship of Commissioner Haydee Yorac, then its Acting
Chairman, spelled out the procedure on how to exercise the
people's initiative to amend the Constitution. This is in accord with
the delegated power granted by section 20 of R.A. No. 6735 to
the COMELEC which expressly states: "The Commission is
hereby empowered to promulgate such rules and regulations as
may be necessary to carry out the purposes of this Act." By no
means can this delegation of power be assailed as infirmed. In
the benchmark case of Pelaez v. Auditor General,   this Court,17
thru former Chief Justice Roberto Concepcion laid down the test
to determine whether there is undue delegation of legislative
power, viz:
xxx xxx xxx
Although Congress may delegate to another
branch of the Government the power to fill details
in the execution, enforcement or administration of
a law, it is essential, to forestall a violation of the
principle of separation of powers, that said law: (a)
be complete in itself — it must set forth therein the
 policy to be executed, carried out or implemented
by the delegate — and (b) to fix standard — the
limits of which are sufficiently determinate or
determinable — to which the delegate must
conform in the performance of his functions.
Indeed, without a statutory declaration of policy,
which is the essence of every law, and, without
the aforementioned standard, there would be no
means to determine, with reasonable certainty,
whether the delegate has acted within or beyond
the scope of his authority. Hence, he could
thereby arrogate upon himself the power, not only
to make the law, but, also — and this is worse —
to unmake it, by adopting measures inconsistent
with the end sought to be attained by the Act of
Congress, thus nullifying the principle of
separation of powers and the system of checks
and balances, and, consequently, undermining
the very foundation of our republican system.
Section 68 of the Revised Administrative Code
does not meet these well-settled requirements for
a valid delegation of the power to fix the details in
the enforcement of a law. It does not enunciate
any policy to be carried out or implemented by the
President. Neither does it give a standard
sufficiently precise to avoid the evil effects above
referred to.
R.A. No. 6735 sufficiently states the policy and the standards to
guide the COMELEC in promulgating the law's implementing
rules and regulations of the law. As aforestated, section 2 spells
out the policy of the law; viz: "The power of the people under a
system of initiative and referendum to directly propose, enact,
approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed,
recognized and guaranteed." Spread out all over R.A. No. 6735
are the standards to canalize the delegated power to the
COMELEC to promulgate rules and regulations from overflowing.
Thus, the law states the number of signatures necessary to start
a people's initiative,   directs how initiative proceeding is
18
commenced,   what the COMELEC should do upon filing of the
19
petition for initiative,   how a proposition is approved,   when a
20 21
plebiscite may be held,   when the amendment takes effect   and
22 23
what matters may not be the subject of any initiative.   By any 24
measure, these standards are adequate.
Former Justice Isagani A. Cruz, similarly elucidated that "a
sufficient standard is intended to map out the boundaries of the
delegates' authority by defining the legislative policy and
indicating the circumstances under which it is to be pursued and
effected. The purpose of the sufficient standard is to prevent a
total transference of legislative power from the lawmaking body to
the delegate."   In enacting R.A. No. 6735, it cannot be said that
25
Congress totally transferred its power to enact the law
implementing people's initiative to COMELEC. A close look at
COMELEC Resolution No. 2300 will show that it merely provided
the procedure to effectuate the policy of R.A. No. 6735 giving life
to the people's initiative to amend the Constitution. The
debates   in the Constitutional Commission make it clear that the
26
rules of procedure to enforce the people's initiative can be
delegated, thus:
MR. ROMULO. Under
Commissioner Davide's
amendment, it is possible for the
legislature to set forth certain
procedures to carry out the
initiative. . . ?
MR. DAVIDE. It can.
x x x           x x x          x x x
 MR. ROMULO. But the
Commissioner's amendment does
not prevent the legislature from
asking another body to set the
proposition in proper form.
MR. DAVIDE. The Commissioner
is correct. In other words, the
implementation of this particular
right would be subject to
legislation, provided the legislature
cannot determine anymore the
percentage of the requirement.
MR. DAVIDE. As long as it will not
destroy the substantive right to
initiate. In other words, none of the
procedures to be proposed by the
legislative body must diminish or
impair the right conceded here.
MR. ROMULO. In that provision of
the Constitution can the
procedures which I have
discussed be legislated?
MR. DAVIDE. Yes.
In his book, The Intent of the 1986 Constitution
Writers,   Father Bernas likewise affirmed: "In response to
27
questions of Commissioner Romulo, Davide explained the
extent of the power of the legislature over the process: it
could for instance, prescribe the 'proper form before (the
amendment) is submitted to the people,' it could authorize
another body to check the proper form. It could also
authorize the COMELEC, for instance, to check the
authenticity of the signatures of petitioners. Davide
concluded: 'As long as it will not destroy the substantive
right to initiate. In other words, none of the procedures to
be proposed by the legislative body must diminish or
impair the right conceded here.'" Quite clearly, the
prohibition against the legislature is to impair the
substantive right of the people to initiate amendments to
the Constitution. It is not, however, prohibited from
legislating the procedure to enforce the people's right of
initiative or to delegate it to another body like the
COMELEC with proper standard.
A survey of our case law will show that this Court has prudentially
refrained from invalidating administrative rules on the ground of
lack of adequate legislative standard to guide their promulgation.
As aptly perceived by former Justice Cruz, "even if the law itself
does not expressly pinpoint the standard, the courts will bend
backward to locate the same elsewhere in order to spare the
statute, if it can, from constitutional infirmity."   He cited the ruling
28
in Hirabayashi v. United States,   viz:
29
xxx xxx xxx
It is true that the Act does not in terms establish a
particular standard to which orders of the military
commander are to conform, or require findings to
be made as a prerequisite to any order. But the
Executive Order, the Proclamations and the
statute are not to be read in isolation from each
other. They were parts of a single program and
must be judged as such. The Act of March 21,
1942, was an adoption by Congress of the
Executive Order and of the Proclamations. The
Proclamations themselves followed a standard
authorized by the Executive Order — the
necessity of protecting military resources in the
designated areas against espionage and
sabotage.
 In the case at bar, the policy and the standards are bright-
lined in R.A. No. 6735. A 20-20 look at the law cannot
miss them. They were not written by our legislators in
invisible ink. The policy and standards can also be found
in no less than section 2, Article XVII of the Constitution
on Amendments or Revisions. There is thus no reason to
hold that the standards provided for in R.A. No. 6735 are
insufficient for in other cases we have upheld as
adequate more general standards such as "simplicity and
dignity,"   "public interest,"   "public welfare,"   "interest of
30 31 32
law and order,"   "justice and equity,"  "adequate and
33 34
efficient instruction,"   "public safety,"   "public
35 36
policy",   "greater national interest",   "protect the local
37 38
consumer by stabilizing and subsidizing domestic pump
rates",   and "promote simplicity, economy and efficiency
39
in government."   A due regard and respect to the
40
legislature, a co-equal and coordinate branch of
government, should counsel this Court to refrain from
refusing to effectuate laws unless they are clearly
unconstitutional.
III
It is also respectfully submitted that the petition should he
dismissed with respect to the Pedrosas. The inclusion of the
Pedrosas in the petition is utterly baseless. The records show that
the case at bar started when respondent Delfin alone and by
himself filed with the COMELEC a Petition to Amend the
Constitution to Lift Term Limits of Elective Officials by People's
Initiative. The Pedrosas did not join the petition. It was Senator
Roco who moved to intervene and was allowed to do so by the
COMELEC. The petition was heard and before the COMELEC
could resolve the Delfin petition, the case at bar was filed by the
petitioners with this Court. Petitioners sued the COMELEC. Jesus
Delfin, Alberto Pedrosa and Carmen Pedrosa in their capacities
as founding members of the People's Initiative for Reform,
Modernization and Action (PIRMA). The suit is an original action
for prohibition with prayer for temporary restraining order and/or
writ of preliminary injunction.
The petition on its face states no cause of action against the
Pedrosas. The only allegation against the Pedrosas is that they
are founding members of the PIRMA which proposes to
undertake the signature drive for people's initiative to amend the
Constitution. Strangely, the PIRMA itself as an organization was
not impleaded as a respondent. Petitioners then prayed that we
order the Pedrosas ". . . to desist from conducting a signature
drive for a people's initiative to amend the Constitution." On
December 19, 1996, we temporarily enjoined the Pedrosas ". . .
from conducting a signature drive for people's initiative to amend
the Constitution." It is not enough for the majority to lift the
temporary restraining order against the Pedrosas. It should
dismiss the petition and all motions for contempt against them
without equivocation.
One need not draw a picture to impart the proposition that in
soliciting signatures to start a people's initiative to amend the
Constitution the Pedrosas are not engaged in any criminal act.
Their solicitation of signatures is a right guaranteed in black and
white by section 2 of Article XVII of the Constitution which
provides that ". . . amendments to this Constitution may likewise
be directly proposed by the people through initiative. . ." This right
springs from the principle proclaimed in section 1, Article II of the
Constitution that in a democratic and republican state
"sovereignty resides in the people and all government authority
emanates from them." The Pedrosas are part of the people and
their voice is part of the voice of the people. They may constitute
but a particle of our sovereignty but no power can trivialize them
for sovereignty is indivisible.
But this is not all. Section 16 of Article XIII of the Constitution
provides: "The right of the people and their organizations to
effective and reasonable participation at all levels of social,
political and economic decision-making shall not be abridged.
The State shall by law, facilitate the establishment of adequate
consultation mechanisms." This is another novel provision of the
1987 Constitution strengthening the sinews of the sovereignty of
our people. In soliciting signatures to amend the Constitution, the
Pedrosas are participating in the political decision-making
process of our people. The Constitution says their right cannot be
abridged without any ifs and buts. We cannot put a question mark
on their right.
Over and above these new provisions, the Pedrosas' campaign to
amend the Constitution is an exercise of their freedom of speech
and expression and their right to petition the government for
redress of grievances. We have memorialized this universal right
in all our fundamental laws from the Malolos Constitution to the
1987 Constitution. We have iterated and reiterated in our rulings
that freedom of speech is a preferred right, the matrix of other
important rights of our people. Undeniably, freedom of speech
enervates the essence of the democratic creed of think and let
think. For this reason, the Constitution encourages speech even if
it protects the speechless.
It is thus evident that the right of the Pedrosas to solicit signatures
to start a people's initiative to amend the Constitution does not
depend on any law, much less on R.A. 6735 or COMELEC
Resolution No. 2300. No law, no Constitution can chain the
people to an undesirable status quo. To be sure, there are no
irrepealable laws just as there are no irrepealable Constitutions.
Change is the predicate of progress and we should not fear
change. Mankind has long recognized the truism that the only
constant in life is change and so should the majority.
IV
In a stream of cases, this Court has rhapsodized people power as
expanded in the 1987 Constitution. On October 5, 1993, we
observed that people's might is no longer a myth but an article of
faith in our Constitution.   On September 30, 1994, we postulated
41
that people power can be trusted to check excesses of
government and that any effort to trivialize the effectiveness of
people's initiatives ought to be rejected.   On September 26,
42
1996, we pledged that ". . . this Court as a matter of policy and
doctrine will exert every effort to nurture, protect and promote
their legitimate exercise."   Just a few days ago, or on March 11,
43
1997, by a unanimous decision,   we allowed a recall election in
44
Caloocan City involving the mayor and ordered that he submits
his right to continue in office to the judgment of the tribunal of the
people. Thus far, we have succeeded in transforming people
power from an opaque abstraction to a robust reality. The
Constitution calls us to encourage people empowerment to
blossom in full. The Court cannot halt any and all signature
campaigns to amend the Constitution without setting back the
flowering of people empowerment. More important, the Court
cannot seal the lips of people who are pro-change but not those
who are anti-change without concerting the debate on charter
change into a sterile talkaton. Democracy is enlivened by a
dialogue and not by a monologue for in a democracy nobody can
claim any infallibility.
Melo and Mendoza, JJ., concur.
 
VITUG, J., concurring and dissenting:
The COMELEC should have dismissed, outrightly, the Delfin
Petition.
It does seem to me that there is no real exigency on the part of
the Court to engross, let alone to commit, itself on all the issues
raised and debated upon by the parties. What is essential at this
time would only be to resolve whether or not the petition filed with
the COMELEC, signed by Atty. Jesus S. Delfin in his capacity as
a "founding member of the Movement for People's Initiative" and
seeking through a people initiative certain modifications on the
1987 Constitution, can properly be regarded and given its due
course. The Constitution, relative to any proposed amendment
under this method, is explicit. Section 2, Article XVII, thereof
provides:
Sec. 2. Amendments to this Constitution may
likewise be directly proposed by the people
through initiative upon a petition of at least
twelve per centum of the total number of
registered voters, of which every legislative district
must be represented by at least three per
centum of the registered voters therein. No
amendment under this section shall be authorized
within five years following the ratification of this
Constitution nor oftener than once every five
years thereafter.
The Congress shall provide for the
implementation of the exercise of this right.
The Delfin petition is thus utterly deficient. Instead of complying
with the constitutional imperatives, the petition would rather have
much of its burden passed on, in effect, to the COMELEC. The
petition would require COMELEC to schedule "signature
gathering all over the country," to cause the necessary publication
of the petition "in newspapers of general and local circulation,"
and to instruct "Municipal Election Registrars in all Regions of the
Philippines to assist petitioners and volunteers in establishing
signing stations at the time and on the dates designated for the
purpose.
I submit, even then, that the TRO earlier issued by the Court
which, consequentially, is made permanent under
theponencia should be held to cover only the Delfin petition and
must not be so understood as having intended or contemplated to
embrace the signature drive of the Pedrosas. The grant of such a
right is clearly implicit in the constitutional mandate on people
initiative.
The distinct greatness of a democratic society is that those who
reign are the governed themselves. The postulate is no longer
lightly taken as just a perceived myth but a veritable reality. The
past has taught us that the vitality of government lies not so much
in the strength of those who lead as in the consent of those who
are led. The role of free speech is pivotal but it can only have its
true meaning if it comes with the correlative end of being heard.
Pending a petition for a people's initiative that is sufficient in form
and substance, it behooves the Court, I most respectfully submit,
to yet refrain from resolving the question of whether or not
Republic Act No. 6735 has effectively and sufficiently
implemented the Constitutional provision on right of the people to
directly propose constitutional amendments. Any opinion or view
formulated by the Court at this point would at best be only a non-
binding, albeitpossibly persuasive, obiter dictum.
I vote for granting the instant petition before the Court and for
clarifying that the TRO earlier issued by the Court did not
prescribe the exercise by the Pedrosas of their right to campaign
for constitutional amendments.
 
FRANCISCO, J., dissenting and concurring:
There is no question that my esteemed colleague Mr. Justice
Davide has prepared a scholarly and well-written ponencia.
Nonetheless, I cannot fully subscribe to his view that R. A. No.
6735 is inadequate to cover the system of initiative on
amendments to the Constitution.
To begin with, sovereignty under the constitution, resides in the
people and all government authority emanates from them.  Unlike1
our previous constitutions, the present 1987 Constitution has
given more significance to this declaration of principle for the
people are now vested with power not only to propose, enact or
reject any act or law passed by Congress or by the local
legislative body, but to propose amendments to the constitution
as well.  To implement these constitutional edicts, Congress in
2
1989 enacted Republic Act No. 6735, otherwise known as "The
initiative and Referendum Act". This law, to my mind, amply
covers an initiative on the constitution. The contrary view
maintained by petitioners is based principally on the alleged lack
of sub-title in the law on initiative to amend the constitution and
on their allegation that:
Republic Act No. 6735 provides for the effectivity
of the law after publication in print media. [And]
[t]his indicates that Republic Act No. 6735 covers
only laws and not constitutional amendments,
because constitutional amendments take effect
upon ratification not after publication.3
which allegation manifests petitioners' selective
interpretation of the law, for under Section 9 of Republic
Act No. 6735 on the Effectivity of Initiative or Referendum
Proposition paragraph (b) thereof is clear in providing
that:
The proposition in an initiative on the constitution approved by a
majority of the votes cast in the plebiscite shall become effective
as to the day of the plebiscite.
It is a rule that every part of the statute must be interpreted with
reference the context, i.e., that every part of the statute must be
construed together with the other parts and kept subservient to
the general intent of the whole enactment.   Thus, the provisions
4 . . . More significantly, in the course of the
of Republic Act No. 6735 may not be interpreted in isolation. The
legislative intent behind every law is to be extracted from the
statute as a whole. 5
In its definition of terms, Republic Act No. 6735 defines initiative
as "the power of the people to propose amendments to the
constitution or to propose and enact legislations through an
election called for the purpose". The same section, in
6
enumerating the three systems of initiative, included an "initiative
on the constitution which refers to a petition proposing
amendments to the constitution"  Paragraph (e) again of Section
7
3 defines "plebiscite" as "the electoral process by which an
initiative on the constitution is approved or rejected by the people"
And as to the material requirements for an initiative on the
Constitution, Section 5(b) distinctly enumerates the following:
A petition for an initiative on the 1987 Constitution
must have at least twelve per centum (12%) of
the total number of the registered voters as
signatories, of which every legislative district must
be represented by at least three per centum (3%)
of the registered voters therein. Initiative on the
constitution may be exercised only after five (5)
years from the ratification of the 1987 Constitution
and only once every five years thereafter.
These provisions were inserted, on purpose, by Congress
the intent being to provide for the implementation of the
right to propose an amendment to the Constitution by way
of initiative. "A legal provision", the Court has previously
said, "must not be construed as to be a useless
surplusage, and accordingly, meaningless, in the sense of
adding nothing to the law or having no effect whatsoever
thereon".   That this is the legislative intent is further
8
shown by the deliberations in Congress, thus:
consideration of the Conference Committee
Report on the disagreeing provisions of Senate
Bill No. 17 and House Bill No. 21505, it was
noted:
MR. ROCO. On the Conference
Committee Report on the
disagreeing provisions between
Senate Bill No. 17 and the
consolidated House Bill No. 21505
which refers to the system
providing for the initiative and
referendum, fundamentally, Mr.
Speaker, we consolidated the
Senate and the House versions,
so both versions are totally intact
in the bill. The Senators ironically
provided for local initiative and
referendum and the House of
Representatives correctly provided
for initiative and referendum an
the Constitution and on national
legislation.
I move that we approve the
consolidated bill.
MR. ALBANO, Mr. Speaker.
THE SPEAKER PRO TEMPORE.
What is the pleasure of the
Minority Floor Leader?
MR. ALBANO. Will the
distinguished sponsor answer just
a few questions?
THE SPEAKER PRO TEMPORE.
What does the sponsor say?
MR. ROCO. Willingly, Mr.
Speaker.
THE SPEAKER PRO TEMPORE.
The Gentleman will please
proceed.
MR. ALBANO. I heard the sponsor
say that the only difference in the
two bills was that in the Senate
version there was a provision for
local initiative and referendum,
whereas the House version has
none.
MR. ROCO. In fact, the Senate
version provided purely for local
initiative and referendum, whereas
in the House version, we provided
purely for national and
constitutional legislation.
MR. ALBANO. Is it our
understanding, therefore, that the
two provisions were incorporated?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now
have a complete initiative and
referendum both in the
constitutional amendment and
national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as
well as municipal resolutions?
 MR. ROCO. Down to barangay,
Mr. Speaker.
MR. ALBANO. And this initiative
and referendum is in consonance
with the provision of the
Constitution to enact the enabling
law, so that we shall have a
system which can be done every
five years. Is it five years in the
provision of the Constitution?
MR. ROCO. That is correct, Mr.
Speaker. For constitutional
amendments to the 1987
Constitution, it is every five years."
(Id. [Journal and Record of the
House of Representatives], Vol.
VIII, 8 June 1989, p. 960; quoted
in Garcia v. Comelec, 237 SCRA
279, 292-293 [1994]; emphasis
supplied)
. . . The Senate version of the Bill may not have
comprehended initiatives on the Constitution.
When consolidated, though, with the House
version of the Bill and as approved and enacted
into law, the proposal included initiative on both
the Constitution and ordinary laws. 9
Clearly then, Republic Act No. 6735 covers an initiative on
the constitution. Any other construction as what
petitioners foist upon the Court constitute a betrayal of the
intent and spirit behind the enactment.
At any rate, I agree with the ponencia that the Commission on
Elections, at present, cannot take any action (such as those
contained in the Commission's orders dated December 6, 9, and
12, 1996 [Annexes B, C and B-1]) indicative of its having already
assumed jurisdiction over private respondents' petition. This is so
because from the tenor of Section 5 (b) of R.A. No. 6735 it would
appear that proof of procurement of the required percentage of
registered voters at the time the petition for initiative is filed, is a
jurisdictional requirement.
Thus:
A petition for an initiative on the 1987 Constitution
must have at least twelve per centum (12%) of
the total number of registered voters as
signatories, of which every legislative district must
be represented by at least three per centum (3%)
of the registered voters therein. Initiative on the
Constitution may be exercised only after five (5)
years from the ratification of the 1987 Constitution
and only once every five (5) years thereafter.
Here private respondents' petition is unaccompanied by
the required signatures. This defect notwithstanding, it is
without prejudice to the refiling of their petition once
compliance with the required percentage is satisfactorily
shown by private respondents. In the absence, therefore,
of an appropriate petition before the Commission on
Elections, any determination of whether private
respondents' proposal constitutes an amendment or
revision is premature.
ACCORDINGLY, I take exception to the conclusion reached in
the ponencia that R.A. No. 6735 is an "inadequate" legislation to
cover a people's initiative to propose amendments to the
Constitution. I, however, register my concurrence with the
dismissal, in the meantime, of private respondents' petition for
initiative before public respondent Commission on Elections until
the same be supported by proof of strict compliance with Section
5 (b) of R.A. No. 6735.
Melo and Mendoza, JJ., concur.
 
PANGANIBAN, J., concurring and dissenting:
Our distinguished colleague, Mr. Justice Hilario G. Davide Jr.,
writing for the majority, holds that:
(1) The Comelec acted without jurisdiction or with grave abuse of
discretion in entertaining the "initiatory" Delfin Petition.
(2) While the Constitution allows amendments to "be directly
proposed by the people through initiative," there is no
implementing law for the purpose. RA 6735 is "incomplete,
inadequate, or wanting in essential terms and conditions insofar
as initiative on amendments to the Constitution is concerned."
(3) Comelec Resolution No. 2330, "insofar as it prescribes rules
and regulations on the conduct of initiative on amendments to the
Constitution, is void."
I concur with the first item above. Until and unless an initiatory
petition can show the required number of signatures — in this
case, 12% of all the registered voters in the Philippines with at
least 3% in every legislative district — no public funds may be
spent and no government resources may be used in an initiative
to amend the Constitution. Verily, the Comelec cannot even
entertain any petition absent such signatures. However, I dissent
most respectfully from the majority's two other rulings. Let me
explain.
Under the above restrictive holdings espoused by the Court's
majority, the Constitution cannot be amended at all through a
people's initiative. Not by Delfin, not by Pirma, not by anyone, not
even by all the voters of the country acting together. This
decision will effectively but unnecessarily curtail, nullify, abrogate
and render inutile the people's right to change the basic law. At
the very least, the majority holds the right hostage to
congressional discretion on whether to pass a new law to
implement it, when there is already one existing at present. This
right to amend through initiative, it bears stressing, is guaranteed
by Section 2, Article XVII of the Constitution, as follows:
Sec. 2. Amendments to this Constitution may
likewise be directly proposed by the people
through initiative upon a petition of at least
twelve per centum of the total number of
registered voters, of which every legislative district
must be represented by at least three per
centum of the registered voters therein. No
amendment under this section shall be authorized
within five years following the ratification of this
Constitution nor oftener than once every five
years thereafter.
With all due respect, I find the majority's position all too sweeping
and all too extremist. It is equivalent to burning the whole house
to exterminate the rats, and to killing the patient to relieve him of
pain. What Citizen Delfin wants the Comelec to do we should
reject. But we should not thereby preempt any future effort to
exercise the right of initiative correctly and judiciously. The fact
that the Delfin Petition proposes a misuse of initiative does not
justify a ban against its proper use. Indeed, there is a right way to
do the right thing at the right time and for the right reason.
Taken Together and Interpreted Properly, the
Constitution, RA 6735 and Comelec Resolution 2300 Are
Sufficient to Implement Constitutional Initiatives
While RA 6735 may not be a perfect law, it was — as the majority
openly concedes — intended by the legislature to cover and, I
respectfully submit, it contains enough provisions to effectuate an
initiative on the Constitution.  I completely agree with the inspired
1
and inspiring opinions of Mr. Justice Reynato S. Puno and Mr.
Justice Ricardo J. Francisco that RA 6735, the Roco law on
initiative, sufficiently implements the right of the people to initiate
amendments to the Constitution. Such views, which I shall no
longer repeat nor elaborate on, are thoroughly consistent with this
Court's unanimous en banc rulings in Subic Bay Metropolitan
Authority vs. Commission on Elections,   that "provisions for
2
initiative . . . are (to be) liberally construed to effectuate their
purposes, to facilitate and not hamper the exercise by the voters
of the rights granted thereby"; and in Garcia vs. Comelec,   that
3
any "effort to trivialize the effectiveness of people's initiatives
ought to be rejected."
No law can completely and absolutely cover all administrative
details. In recognition of this, RA 6735 wisely empowered   the
4
Commission on Election "to promulgate such rules and
regulations as may be necessary to carry out the purposes of this
Act." And pursuant thereto, the Comelec issued its Resolution
2300 on 16 January 1991. Such Resolution, by its very words,
was promulgated "to govern the conduct of initiative on the
Constitution and initiative and referendum on national and local
laws," not by the incumbent Commission on Elections but by one
then composed of Acting Chairperson Haydee B. Yorac, Comms.
Alfredo E. Abueg Jr., Leopoldo L. Africa, Andres R. Flores, Dario
C. Rama and Magdara B. Dimaampao. All of these
Commissioners who signed Resolution 2300 have retired from
the Commission, and thus we cannot ascribe any vile motive unto
them, other than an honest, sincere and exemplary effort to give
life to a cherished right of our people.
The majority argues that while Resolution 2300 is valid in regard
to national laws and local legislations, it is void in reference to
constitutional amendments. There is no basis for such
differentiation. The source of and authority for the Resolution is
the same law, RA 6735.
I respectfully submit that taken together and interpreted properly
and liberally, the Constitution (particularly Art. XVII, Sec. 2), R4
6735 and Comelec Resolution 2300 provide more than sufficient
authority to implement, effectuate and realize our people's power
to amend the Constitution.
Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled
I am glad the majority decided to heed our plea to lift the
temporary restraining order issued by this Court on 18 December
1996 insofar as it prohibited Petitioner Delfin and the Spouses
Pedrosa from exercising their right of initiative. In fact, I believe
that such restraining order as against private respondents should
not have been issued, in the first place. While I agree that the
Comelec should be stopped from using public funds and
government resources to help them gather signatures, I firmly
believe that this Court has no power to restrain them from
exercising their right of initiative. The right to propose
amendments to the Constitution is really a species of the right of
free speech and free assembly. And certainly, it would be
tyrannical and despotic to stop anyone from speaking freely and
persuading others to conform to his/her beliefs. As the eminent
Voltaire once said, "I may disagree with what you say, but I will
defend to the death your right to say it." After all, freedom is not
really for the thought we agree with, but as Justice Holmes wrote,
"freedom for the thought that we hate." 5
Epilogue
By way of epilogue, let me stress the guiding tenet of my
Separate Opinion. Initiative, like referendum and recall, is a new
and treasured feature of the Filipino constitutional system. All
three are institutionalized legacies of the world-admired EDSA
people power. Like elections and plebiscites, they are hallowed
expressions of popular sovereignty. They are sacred democratic
rights of our people to be used as their final weapons against
political excesses, opportunism, inaction, oppression and
misgovernance; as well as their reserved instruments to exact
transparency, accountability and faithfulness from their chosen
leaders. While on the one hand, their misuse and abuse must be
resolutely struck down, on the other, their legitimate exercise
should be carefully nurtured and zealously protected.
WHEREFORE, I vote to GRANT the petition of Sen. Miriam D.
Santiago et al. and to DIRECT Respondent Commission on
Elections to DISMISS the Delfin Petition on the ground of
prematurity, but not on the other grounds relied upon by the
majority. I also vote to LIFT the temporary restraining order
issued on 18 December 1996 insofar as it prohibits Jesus Delfin,
Alberto Pedrosa and Carmen Pedrosa from exercising their right
to free speech in proposing amendments to the Constitution.
Melo and Mendoza, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-45081             July 15, 1936
JOSE A. ANGARA, petitioner,  (3) That on November 15, 1935, the petitioner took his
vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA, MIGUEL
CASTILLO, and DIONISIO C. MAYOR, respondents.
Godofredo Reyes for petitioner.
Office of the Solicitor General Hilado for respondent Electoral
Commission.
Pedro Ynsua in his own behalf.
No appearance for other respondents.
LAUREL, J.:
This is an original action instituted in this court by the petitioner,
Jose A. Angara, for the issuance of a writ of prohibition to restrain
and prohibit the Electoral Commission, one of the respondents,
from taking further cognizance of the protest filed by Pedro
Ynsua, another respondent, against the election of said petitioner
as member of the National Assembly for the first assembly district
of the Province of Tayabas.
The facts of this case as they appear in the petition and as
admitted by the respondents are as follows:
(1) That in the elections of September 17, 1935, the
petitioner, Jose A. Angara, and the respondents, Pedro
Ynsua, Miguel Castillo and Dionisio Mayor, were
candidates voted for the position of member of the
National Assembly for the first district of the Province of
Tayabas; 
(2) That on October 7, 1935, the provincial board of
canvassers, proclaimed the petitioner as member-elect of
the National Assembly for the said district, for having
received the most number of votes;
oath of office;
(4) That on December 3, 1935, the National Assembly in
session assembled, passed the following resolution:
[No. 8]
 RESOLUCION CONFIRMANDO LAS
ACTAS DE AQUELLOS DIPUTADOS
CONTRA QUIENES NO SE HA
PRESENTADO PROTESTA.
Se resuelve: Que las actas de eleccion de
los Diputados contra quienes no se
hubiere presentado debidamente una
protesta antes de la adopcion de la
presente resolucion sean, como por la
presente, son aprobadas y confirmadas.
Adoptada, 3 de diciembre, 1935.
(5) That on December 8, 1935, the herein respondent
Pedro Ynsua filed before the Electoral Commission a
"Motion of Protest" against the election of the herein
petitioner, Jose A. Angara, being the only protest filed
after the passage of Resolutions No. 8 aforequoted, and
praying, among other-things, that said respondent be
declared elected member of the National Assembly for the
first district of Tayabas, or that the election of said position
be nullified;
(6) That on December 9, 1935, the Electoral Commission
adopted a resolution, paragraph 6 of which provides:
6. La Comision no considerara ninguna protesta
que no se haya presentado en o antes de este
dia.
(7) That on December 20, 1935, the herein petitioner,
Jose A. Angara, one of the respondents in the aforesaid
protest, filed before the Electoral Commission a "Motion
to Dismiss the Protest", alleging (a) that Resolution No. 8
of Dismiss the Protest", alleging (a) that Resolution No. 8
of the National Assembly was adopted in the legitimate
exercise of its constitutional prerogative to prescribe the
period during which protests against the election of its
members should be presented; (b) that the aforesaid
resolution has for its object, and is the accepted formula
for, the limitation of said period; and (c) that the protest in
question was filed out of the prescribed period;
(8) That on December 27, 1935, the herein respondent,
Pedro Ynsua, filed an "Answer to the Motion of Dismissal"
alleging that there is no legal or constitutional provision
barring the presentation of a protest against the election
of a member of the National Assembly after confirmation; 
(9) That on December 31, 1935, the herein petitioner,
Jose A. Angara, filed a "Reply" to the aforesaid "Answer
to the Motion of Dismissal";
(10) That the case being submitted for decision, the
Electoral Commission promulgated a resolution on
January 23, 1936, denying herein petitioner's "Motion to
Dismiss the Protest."
The application of the petitioner sets forth the following grounds
for the issuance of the writ prayed for:
(a) That the Constitution confers exclusive jurisdiction
upon the electoral Commission solely as regards the
merits of contested elections to the National Assembly;
(b) That the Constitution excludes from said jurisdiction
the power to regulate the proceedings of said election
contests, which power has been reserved to the
Legislative Department of the Government or the National
Assembly; 
(c) That like the Supreme Court and other courts created
in pursuance of the Constitution, whose exclusive
 jurisdiction relates solely to deciding the merits of
controversies submitted to them for decision and to
matters involving their internal organization, the Electoral
Commission can regulate its proceedings only if the
National Assembly has not availed of its primary power to
so regulate such proceedings;
(d) That Resolution No. 8 of the National Assembly is,
therefore, valid and should be respected and obeyed;
(e) That under paragraph 13 of section 1 of the ordinance
appended to the Constitution and paragraph 6 of article 7
of the Tydings-McDuffie Law (No. 127 of the 73rd
Congress of the United States) as well as under section 1
and 3 (should be sections 1 and 2) of article VIII of the
Constitution, this Supreme Court has jurisdiction to pass
upon the fundamental question herein raised because it
involves an interpretation of the Constitution of the
Philippines.
On February 25, 1936, the Solicitor-General appeared and filed
an answer in behalf of the respondent Electoral Commission
interposing the following special defenses:
(a) That the Electoral Commission has been created by
the Constitution as an instrumentality of the Legislative
Department invested with the jurisdiction to decide "all
contests relating to the election, returns, and qualifications
of the members of the National Assembly"; that in
adopting its resolution of December 9, 1935, fixing this
date as the last day for the presentation of protests
against the election of any member of the National
Assembly, it acted within its jurisdiction and in the
legitimate exercise of the implied powers granted it by the
Constitution to adopt the rules and regulations essential
to carry out the power and functions conferred upon the
same by the fundamental law; that in adopting its
resolution of January 23, 1936, overruling the motion of
the petitioner to dismiss the election protest in question,
and declaring itself with jurisdiction to take cognizance of
said protest, it acted in the legitimate exercise of its quasi-
judicial functions a an instrumentality of the Legislative
Department of the Commonwealth Government, and
hence said act is beyond the judicial cognizance or
control of the Supreme Court;
(b) That the resolution of the National Assembly of
December 3, 1935, confirming the election of the
members of the National Assembly against whom no
protest had thus far been filed, could not and did not
deprive the electoral Commission of its jurisdiction to take
cognizance of election protests filed within the time that
might be set by its own rules:
(c) That the Electoral Commission is a body invested with
quasi-judicial functions, created by the Constitution as an
instrumentality of the Legislative Department, and is not
an "inferior tribunal, or corporation, or board, or person"
within the purview of section 226 and 516 of the Code of
Civil Procedure, against which prohibition would lie.
The respondent Pedro Ynsua, in his turn, appeared and filed an
answer in his own behalf on March 2, 1936, setting forth the
following as his special defense:
(a) That at the time of the approval of the rules of the
Electoral Commission on December 9, 1935, there was
no existing law fixing the period within which protests
against the election of members of the National Assembly
should be filed; that in fixing December 9, 1935, as the
last day for the filing of protests against the election of
members of the National Assembly, the Electoral
Commission was exercising a power impliedly conferred
upon it by the Constitution, by reason of its quasi-judicial
attributes;
(b) That said respondent presented his motion of protest
before the Electoral Commission on December 9, 1935,
the last day fixed by paragraph 6 of the rules of the said
Electoral Commission;
(c) That therefore the Electoral Commission acquired
jurisdiction over the protest filed by said respondent and
over the parties thereto, and the resolution of the
Electoral Commission of January 23, 1936, denying
petitioner's motion to dismiss said protest was an act
within the jurisdiction of the said commission, and is not
reviewable by means of a writ of prohibition; 
(d) That neither the law nor the Constitution requires
confirmation by the National Assembly of the election of
its members, and that such confirmation does not operate
to limit the period within which protests should be filed as
to deprive the Electoral Commission of jurisdiction over
protest filed subsequent thereto; 
(e) That the Electoral Commission is an independent
entity created by the Constitution, endowed with quasi-
judicial functions, whose decision are final and
unappealable;
( f ) That the electoral Commission, as a constitutional
creation, is not an inferior tribunal, corporation, board or
person, within the terms of sections 226 and 516 of the
Code of Civil Procedure; and that neither under the
provisions of sections 1 and 2 of article II (should be
article VIII) of the Constitution and paragraph 13 of
section 1 of the Ordinance appended thereto could it be
subject in the exercise of its quasi-judicial functions to a
writ of prohibition from the Supreme Court;
(g) That paragraph 6 of article 7 of the Tydings-McDuffie
Law (No. 127 of the 73rd Congress of the united States)
has no application to the case at bar.
The case was argued before us on March 13, 1936. Before it was
submitted for decision, the petitioner prayed for the issuance of a
preliminary writ of injunction against the respondent Electoral
Commission which petition was denied "without passing upon the
merits of the case" by resolution of this court of March 21, 1936.
There was no appearance for the other respondents. 
The issues to be decided in the case at bar may be reduced to
the following two principal propositions:
1. Has the Supreme Court jurisdiction over the Electoral
Commission and the subject matter of the controversy
upon the foregoing related facts, and in the affirmative, 
2. Has the said Electoral Commission acted without or in
excess of its jurisdiction in assuming to the cognizance of
the protest filed the election of the herein petitioner
notwithstanding the previous confirmation of such election
by resolution of the National Assembly?
We could perhaps dispose of this case by passing directly upon
the merits of the controversy. However, the question of
jurisdiction having been presented, we do not feel justified in
evading the issue. Being a case primæ impressionis, it would
hardly be consistent with our sense of duty to overlook the
broader aspect of the question and leave it undecided. Neither
would we be doing justice to the industry and vehemence of
counsel were we not to pass upon the question of jurisdiction
squarely presented to our consideration.
The separation of powers is a fundamental principle in our system
of government. It obtains not through express provision but by
actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its
jurisdiction, and is supreme within its own sphere. But it does not
follow from the fact that the three powers are to be kept separate
and distinct that the Constitution intended them to be absolutely
unrestrained and independent of each other. The Constitution has
provided for an elaborate system of checks and balances to
secure coordination in the workings of the various departments of
the government. For example, the Chief Executive under our
Constitution is so far made a check on the legislative power that
this assent is required in the enactment of laws. This, however, is
subject to the further check that a bill may become a law
notwithstanding the refusal of the President to approve it, by a
vote of two-thirds or three-fourths, as the case may be, of the
National Assembly. The President has also the right to convene
the Assembly in special session whenever he chooses. On the
other hand, the National Assembly operates as a check on the
Executive in the sense that its consent through its Commission on
Appointments is necessary in the appointments of certain officers;
and the concurrence of a majority of all its members is essential
to the conclusion of treaties. Furthermore, in its power to
determine what courts other than the Supreme Court shall be
established, to define their jurisdiction and to appropriate funds
for their support, the National Assembly controls the judicial
department to a certain extent. The Assembly also exercises the
judicial power of trying impeachments. And the judiciary in turn,
with the Supreme Court as the final arbiter, effectively checks the
other departments in the exercise of its power to determine the
law, and hence to declare executive and legislative acts void if
violative of the Constitution.
But in the main, the Constitution has blocked out with deft strokes
and in bold lines, allotment of power to the executive, the
legislative and the judicial departments of the government. The
overlapping and interlacing of functions and duties between the
several departments, however, sometimes makes it hard to say
just where the one leaves off and the other begins. In times of
social disquietude or political excitement, the great landmarks of
the Constitution are apt to be forgotten or marred, if not entirely
obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the
proper allocation of powers between the several departments and
among the integral or constituent units thereof.
As any human production, our Constitution is of course lacking
perfection and perfectibility, but as much as it was within the
power of our people, acting through their delegates to so provide,
that instrument which is the expression of their sovereignty
however limited, has established a republican government
intended to operate and function as a harmonious whole, under a
system of checks and balances, and subject to specific limitations
and restrictions provided in the said instrument. The Constitution
sets forth in no uncertain language the restrictions and limitations
upon governmental powers and agencies. If these restrictions
and limitations are transcended it would be inconceivable if the
Constitution had not provided for a mechanism by which to direct
the course of government along constitutional channels, for then
the distribution of powers would be mere verbiage, the bill of
rights mere expressions of sentiment, and the principles of good
government mere political apothegms. Certainly, the limitation
and restrictions embodied in our Constitution are real as they
should be in any living constitution. In the United States where no
express constitutional grant is found in their constitution, the
possession of this moderating power of the courts, not to speak of
its historical origin and development there, has been set at rest by
popular acquiescence for a period of more than one and a half
centuries. In our case, this moderating power is granted, if not
expressly, by clear implication from section 2 of article VIII of our
constitution.
The Constitution is a definition of the powers of government. Who
is to determine the nature, scope and extent of such powers? The
Constitution itself has provided for the instrumentality of the
judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any
superiority over the other departments; it does not in reality nullify
or invalidate an act of the legislature, but only asserts the solemn
and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution
and to establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them. This is in
truth all that is involved in what is termed "judicial supremacy"
which properly is the power of judicial review under the
Constitution. Even then, this power of judicial review is limited to
actual cases and controversies to be exercised after full
opportunity of argument by the parties, and limited further to the
constitutional question raised or the very lis mota presented. Any
attempt at abstraction could only lead to dialectics and barren
legal questions and to sterile conclusions unrelated to actualities.
Narrowed as its function is in this manner, the judiciary does not
pass upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the presumption of
constitutionality to legislative enactments, not only because the
legislature is presumed to abide by the Constitution but also
because the judiciary in the determination of actual cases and
controversies must reflect the wisdom and justice of the people
as expressed through their representatives in the executive and
legislative departments of the governments of the government.
But much as we might postulate on the internal checks of power
provided in our Constitution, it ought not the less to be
remembered that, in the language of James Madison, the system
itself is not "the chief palladium of constitutional liberty . . . the
people who are authors of this blessing must also be its
guardians . . . their eyes must be ever ready to mark, their voice
to pronounce . . . aggression on the authority of their constitution."
In the Last and ultimate analysis, then, must the success of our
government in the unfolding years to come be tested in the
crucible of Filipino minds and hearts than in consultation rooms
and court chambers.
In the case at bar, the national Assembly has by resolution (No.
8) of December 3, 1935, confirmed the election of the herein
petitioner to the said body. On the other hand, the Electoral
Commission has by resolution adopted on December 9, 1935,
fixed said date as the last day for the filing of protests against the
election, returns and qualifications of members of the National
Assembly, notwithstanding the previous confirmation made by the
National Assembly as aforesaid. If, as contended by the
petitioner, the resolution of the National Assembly has the effect
of cutting off the power of the Electoral Commission to entertain
protests against the election, returns and qualifications of
members of the National Assembly, submitted after December 3,
1935, then the resolution of the Electoral Commission of
December 9, 1935, is mere surplusage and had no effect. But, if,
as contended by the respondents, the Electoral Commission has
the sole power of regulating its proceedings to the exclusion of
the National Assembly, then the resolution of December 9, 1935,
by which the Electoral Commission fixed said date as the last day
for filing protests against the election, returns and qualifications of
members of the National Assembly, should be upheld.
Here is then presented an actual controversy involving as it does
a conflict of a grave constitutional nature between the National
Assembly on the one hand, and the Electoral Commission on the
other. From the very nature of the republican government
established in our country in the light of American experience and
of our own, upon the judicial department is thrown the solemn
and inescapable obligation of interpreting the Constitution and
defining constitutional boundaries. The Electoral Commission, as
we shall have occasion to refer hereafter, is a constitutional
organ, created for a specific purpose, namely to determine all
contests relating to the election, returns and qualifications of the
members of the National Assembly. Although the Electoral
Commission may not be interfered with, when and while acting
within the limits of its authority, it does not follow that it is beyond
the reach of the constitutional mechanism adopted by the people
and that it is not subject to constitutional restrictions. The
Electoral Commission is not a separate department of the
government, and even if it were, conflicting claims of authority
under the fundamental law between department powers and
agencies of the government are necessarily determined by the
judiciary in justifiable and appropriate cases. Discarding the
English type and other European types of constitutional
government, the framers of our constitution adopted the American
type where the written constitution is interpreted and given effect
by the judicial department. In some countries which have declined
to follow the American example, provisions have been inserted in
their constitutions prohibiting the courts from exercising the power
to interpret the fundamental law. This is taken as a recognition of
what otherwise would be the rule that in the absence of direct
prohibition courts are bound to assume what is logically their
function. For instance, the Constitution of Poland of 1921,
expressly provides that courts shall have no power to examine
the validity of statutes (art. 81, chap. IV). The former Austrian
Constitution contained a similar declaration. In countries whose
constitutions are silent in this respect, courts have assumed this
power. This is true in Norway, Greece, Australia and South Africa.
Whereas, in Czechoslovakia (arts. 2 and 3, Preliminary Law to
constitutional Charter of the Czechoslovak Republic, February 29,
1920) and Spain (arts. 121-123, Title IX, Constitutional of the
Republic of 1931) especial constitutional courts are established to
pass upon the validity of ordinary laws. In our case, the nature of
the present controversy shows the necessity of a final
constitutional arbiter to determine the conflict of authority between
two agencies created by the Constitution. Were we to decline to
take cognizance of the controversy, who will determine the
conflict? And if the conflict were left undecided and undetermined,
would not a void be thus created in our constitutional system
which may be in the long run prove destructive of the entire
framework? To ask these questions is to answer them. Natura
vacuum abhorret, so must we avoid exhaustion in our
constitutional system. Upon principle, reason and authority, we
are clearly of the opinion that upon the admitted facts of the
present case, this court has jurisdiction over the Electoral
Commission and the subject mater of the present controversy for
the purpose of determining the character, scope and extent of the
constitutional grant to the Electoral Commission as "the sole
judge of all contests relating to the election, returns and
qualifications of the members of the National Assembly."
Having disposed of the question of jurisdiction, we shall now
proceed to pass upon the second proposition and determine
whether the Electoral Commission has acted without or in excess
of its jurisdiction in adopting its resolution of December 9, 1935,
and in assuming to take cognizance of the protest filed against
the election of the herein petitioner notwithstanding the previous
confirmation thereof by the National Assembly on December 3,
1935. As able counsel for the petitioner has pointed out, the issue
hinges on the interpretation of section 4 of Article VI of the
Constitution which provides:
"SEC. 4. There shall be an Electoral Commission composed of
three Justice of the Supreme Court designated by the Chief
Justice, and of six Members chosen by the National Assembly,
three of whom shall be nominated by the party having the largest
number of votes, and three by the party having the second largest
number of votes therein. The senior Justice in the Commission
shall be its Chairman. The Electoral Commission shall be the sole
judge of all contests relating to the election, returns and
qualifications of the members of the National Assembly." It is
imperative, therefore, that we delve into the origin and history of
this constitutional provision and inquire into the intention of its
framers and the people who adopted it so that we may properly
appreciate its full meaning, import and significance.
The original provision regarding this subject in the Act of
Congress of July 1, 1902 (sec. 7, par. 5) laying down the rule that
"the assembly shall be the judge of the elections, returns, and
qualifications of its members", was taken from clause 1 of section
5, Article I of the Constitution of the United States providing that
"Each House shall be the Judge of the Elections, Returns, and
Qualifications of its own Members, . . . ." The Act of Congress of
August 29, 1916 (sec. 18, par. 1) modified this provision by the
insertion of the word "sole" as follows: "That the Senate and
House of Representatives, respectively, shall be the sole judges
of the elections, returns, and qualifications of their elective
members . . ." apparently in order to emphasize the exclusive the
Legislative over the particular case s therein specified. This court
has had occasion to characterize this grant of power to the
Philippine Senate and House of Representatives, respectively, as
"full, clear and complete" (Veloso vs. Boards of Canvassers of
Leyte and Samar [1919], 39 Phil., 886, 888.)
The first step towards the creation of an independent tribunal for
the purpose of deciding contested elections to the legislature was
taken by the sub-committee of five appointed by the Committee
on Constitutional Guarantees of the Constitutional Convention,
which sub-committee submitted a report on August 30, 1934,
recommending the creation of a Tribunal of Constitutional
Security empowered to hear legislature but also against the
election of executive officers for whose election the vote of the
whole nation is required, as well as to initiate impeachment
proceedings against specified executive and judicial officer. For
the purpose of hearing legislative protests, the tribunal was to be
composed of three justices designated by the Supreme Court and
six members of the house of the legislature to which the contest
corresponds, three members to be designed by the majority party
and three by the minority, to be presided over by the Senior
Justice unless the Chief Justice is also a member in which case
the latter shall preside. The foregoing proposal was submitted by
the Committee on Constitutional Guarantees to the Convention
on September 15, 1934, with slight modifications consisting in the
reduction of the legislative representation to four members, that
is, two senators to be designated one each from the two major
parties in the Senate and two representatives to be designated
one each from the two major parties in the House of
Representatives, and in awarding representation to the executive
department in the persons of two representatives to be
designated by the President.
Meanwhile, the Committee on Legislative Power was also
preparing its report. As submitted to the Convention on
September 24, 1934 subsection 5, section 5, of the proposed
Article on the Legislative Department, reads as follows:
The elections, returns and qualifications of the members
of either house and all cases contesting the election of
any of their members shall be judged by an Electoral
Commission, constituted, as to each House, by three
members elected by the members of the party having the
largest number of votes therein, three elected by the
members of the party having the second largest number
of votes, and as to its Chairman, one Justice of the
Supreme Court designated by the Chief Justice.
The idea of creating a Tribunal of Constitutional Security with
comprehensive jurisdiction as proposed by the Committee on
Constitutional Guarantees which was probably inspired by the
Spanish plan (art. 121, Constitution of the Spanish Republic of
1931), was soon abandoned in favor of the proposition of the
Committee on Legislative Power to create a similar body with
reduced powers and with specific and limited jurisdiction, to be
designated as a Electoral Commission. The Sponsorship
Committee modified the proposal of the Committee on Legislative
Power with respect to the composition of the Electoral
Commission and made further changes in phraseology to suit the
project of adopting a unicameral instead of a bicameral
legislature. The draft as finally submitted to the Convention on
October 26, 1934, reads as follows:
(6) The elections, returns and qualifications of the
Members of the National Assembly and all cases
contesting the election of any of its Members shall be
judged by an Electoral Commission, composed of three
members elected by the party having the largest number
of votes in the National Assembly, three elected by the
members of the party having the second largest number
of votes, and three justices of the Supreme Court
designated by the Chief Justice, the Commission to be
presided over by one of said justices.
During the discussion of the amendment introduced by Delegates
Labrador, Abordo, and others, proposing to strike out the whole
subsection of the foregoing draft and inserting in lieu thereof the
following: "The National Assembly shall be the soled and
exclusive judge of the elections, returns, and qualifications of the
Members", the following illuminating remarks were made on the
floor of the Convention in its session of December 4, 1934, as to
the scope of the said draft:
xxx     xxx     xxx
Mr. VENTURA. Mr. President, we have a doubt here as to
the scope of the meaning of the first four lines, paragraph
6, page 11 of the draft, reading: "The elections, returns
and qualifications of the Members of the National
Assembly and all cases contesting the election of any of
its Members shall be judged by an Electoral
Commission, . . ." I should like to ask from the gentleman
from Capiz whether the election and qualification of the
member whose elections is not contested shall also be
judged by the Electoral Commission.
Mr. ROXAS. If there is no question about the election of
the members, there is nothing to be judged; that is why
the word "judge" is used to indicate a controversy. If there
is no question about the election of a member, there is
nothing to be submitted to the Electoral Commission and
there is nothing to be determined.
Mr. VENTURA. But does that carry the idea also that the
Electoral Commission shall confirm also the election of
those whose election is not contested?
Mr. ROXAS. There is no need of confirmation. As the
gentleman knows, the action of the House of
Representatives confirming the election of its members is
just a matter of the rules of the assembly. It is not
constitutional. It is not necessary. After a man files his
credentials that he has been elected, that is sufficient,
unless his election is contested.
Mr. VENTURA. But I do not believe that that is sufficient,
as we have observed that for purposes of the auditor, in
the matter of election of a member to a legislative body,
because he will not authorize his pay.
Mr. ROXAS. Well, what is the case with regards to the
municipal president who is elected? What happens with
regards to the councilors of a municipality? Does anybody
confirm their election? The municipal council does this: it
makes a canvass and proclaims — in this case the
municipal council proclaims who has been elected, and it
ends there, unless there is a contest. It is the same case;
there is no need on the part of the Electoral Commission
unless there is a contest. The first clause refers to the
case referred to by the gentleman from Cavite where one
person tries to be elected in place of another who was
declared elected. From example, in a case when the
residence of the man who has been elected is in
question, or in case the citizenship of the man who has
been elected is in question.
However, if the assembly desires to annul the power of
the commission, it may do so by certain maneuvers upon
its first meeting when the returns are submitted to the
assembly. The purpose is to give to the Electoral
Commission all the powers exercised by the assembly
referring to the elections, returns and qualifications of the
members. When there is no contest, there is nothing to be
judged. 
Mr. VENTURA. Then it should be eliminated.
Mr. ROXAS. But that is a different matter, I think Mr.
Delegate.
Mr. CINCO. Mr. President, I have a similar question as
that propounded by the gentleman from Ilocos Norte
when I arose a while ago. However I want to ask more
questions from the delegate from Capiz. This paragraph 6
on page 11 of the draft cites cases contesting the election
as separate from the first part of the sections which refers
to elections, returns and qualifications.
Mr. ROXAS. That is merely for the sake of clarity. In fact
the cases of contested elections are already included in
the phrase "the elections, returns and qualifications." This
phrase "and contested elections" was inserted merely for
the sake of clarity.
Mr. CINCO. Under this paragraph, may not the Electoral
Commission, at its own instance, refuse to confirm the
elections of the members."
Mr. ROXAS. I do not think so, unless there is a protest. 
Mr. LABRADOR. Mr. President, will the gentleman yield? 
THE PRESIDENT. The gentleman may yield, if he so
desires.
Mr. ROXAS. Willingly.
Mr. LABRADOR. Does not the gentleman from Capiz
believe that unless this power is granted to the assembly,
the assembly on its own motion does not have the right to
contest the election and qualification of its members?
Mr. ROXAS. I have no doubt but that the gentleman is
right. If this draft is retained as it is, even if two-thirds of
the assembly believe that a member has not the
qualifications provided by law, they cannot remove him for
that reason.
Mr. LABRADOR. So that the right to remove shall only be
retained by the Electoral Commission.
Mr. ROXAS. By the assembly for misconduct.
Mr. LABRADOR. I mean with respect to the qualifications
of the members. 
Mr. ROXAS. Yes, by the Electoral Commission.
Mr. LABRADOR. So that under this draft, no member of
the assembly has the right to question the eligibility of its
members?
Mr. ROXAS. Before a member can question the eligibility,
he must go to the Electoral Commission and make the
question before the Electoral Commission.
Mr. LABRADOR. So that the Electoral Commission shall
decide whether the election is contested or not contested.
Mr. ROXAS. Yes, sir: that is the purpose.
Mr. PELAYO. Mr. President, I would like to be informed if
the Electoral Commission has power and authority to
pass upon the qualifications of the members of the
National Assembly even though that question has not
been raised.
Mr. ROXAS. I have just said that they have no power,
because they can only judge.
In the same session, the first clause of the aforesaid draft reading
"The election, returns and qualifications of the members of the
National Assembly and" was eliminated by the Sponsorship
Committee in response to an amendment introduced by
Delegates Francisco, Ventura, Vinzons, Rafols, Lim, Mumar and
others. In explaining the difference between the original draft and
the draft as amended, Delegate Roxas speaking for the
Sponsorship Committee said:
xxx     xxx     xxx
Sr. ROXAS. La diferencia, señor Presidente, consiste
solamente en obviar la objecion apuntada por varios
Delegados al efecto de que la primera clausula
del draft que dice: "The elections, returns and
qualifications of the members of the National Assembly"
parece que da a la Comision Electoral la facultad de
determinar tambien la eleccion de los miembros que no
ha sido protestados y para obviar esa dificultad, creemos
que la enmienda tien razon en ese sentido, si
enmendamos el draft, de tal modo que se lea como sigue:
"All cases contesting the election", de modo que los
jueces de la Comision Electoral se limitaran solamente a
los casos en que haya habido protesta contra las actas."
Before the amendment of Delegate Labrador was voted
upon the following interpellation also took place:
El Sr. CONEJERO. Antes de votarse la enmienda,
quisiera  Commission to two members each, so as to accord more
El Sr. PRESIDENTE. ¿Que dice el Comite?
El Sr. ROXAS. Con mucho gusto.
El Sr. CONEJERO. Tal como esta el draft, dando tres
miembros a la mayoria, y otros tres a la minoria y tres a la
Corte Suprema, ¿no cree Su Señoria que esto equivale
practicamente a dejar el asunto a los miembros del
Tribunal Supremo?
El Sr. ROXAS. Si y no. Creemos que si el tribunal o la
Commission esta constituido en esa forma, tanto los
miembros de la mayoria como los de la minoria asi como
los miembros de la Corte Suprema consideraran la
cuestion sobre la base de sus meritos, sabiendo que el
partidismo no es suficiente para dar el triunfo.
El Sr. CONEJERO. ¿Cree Su Señoria que en un caso
como ese, podriamos hacer que tanto los de la mayoria
como los de la minoria prescindieran del partidismo?
El Sr. ROXAS. Creo que si, porque el partidismo no les
daria el triunfo.
xxx     xxx     xxx
The amendment introduced by Delegates Labrador, Abordo and
others seeking to restore the power to decide contests relating to
the election, returns and qualifications of members of the National
Assembly to the National Assembly itself, was defeated by a vote
of ninety-eight (98) against fifty-six (56).
In the same session of December 4, 1934, Delegate Cruz (C.)
sought to amend the draft by reducing the representation of the
minority party and the Supreme Court in the Electoral
representation to the majority party. The Convention rejected this
amendment by a vote of seventy-six (76) against forty-six (46),
thus maintaining the non-partisan character of the commission.
As approved on January 31, 1935, the draft was made to read as
follows:
(6) All cases contesting the elections, returns and
qualifications of the Members of the National Assembly
shall be judged by an Electoral Commission, composed of
three members elected by the party having the largest
number of votes in the National Assembly, three elected
by the members of the party having the second largest
 number of votes, and three justices of the Supreme Court
designated by the Chief Justice, the Commission to be
presided over by one of said justices.
The Style Committee to which the draft was submitted revised it
as follows:
SEC. 4. There shall be an Electoral Commission
composed of three Justices of the Supreme Court
designated by the Chief Justice, and of six Members
chosen by the National Assembly, three of whom shall be
nominated by the party having the largest number of
votes, and three by the party having the second largest
number of votes therein. The senior Justice in the
Commission shall be its chairman. The Electoral
Commission shall be the sole judge of the election,
returns, and qualifications of the Members of the National
Assembly.
When the foregoing draft was submitted for approval on February
8, 1935, the Style Committee, through President Recto, to
effectuate the original intention of the Convention, agreed to
insert the phrase "All contests relating to" between the phrase
"judge of" and the words "the elections", which was accordingly
accepted by the Convention.
The transfer of the power of determining the election, returns and
qualifications of the members of the legislature long lodged in the
legislative body, to an independent, impartial and non-partisan
tribunal, is by no means a mere experiment in the science of
government.
Cushing, in his Law and Practice of Legislative Assemblies (ninth
edition, chapter VI, pages 57, 58), gives a vivid account of the
"scandalously notorious" canvassing of votes by political parties
in the disposition of contests by the House of Commons in the
following passages which are partly quoted by the petitioner in his
printed memorandum of March 14, 1936:
153. From the time when the commons established their
right to be the exclusive judges of the elections, returns,
and qualifications of their members, until the year 1770,
two modes of proceeding prevailed, in the determination
of controverted elections, and rights of membership. One
of the standing committees appointed at the
commencement of each session, was denominated the
committee of privileges and elections, whose functions
was to hear and investigate all questions of this
description which might be referred to them, and to report
their proceedings, with their opinion thereupon, to the
house, from time to time. When an election petition was
referred to this committee they heard the parties and their
witnesses and other evidence, and made a report of all
the evidence, together with their opinion thereupon, in the
form of resolutions, which were considered and agreed or
disagreed to by the house. The other mode of proceeding
was by a hearing at the bar of the house itself. When this
court was adopted, the case was heard and decided by
the house, in substantially the same manner as by a
committee. The committee of privileges and elections
although a select committee. The committee of privileges
and elections although a select committee was usually
what is called an open one; that is to say, in order to
constitute the committee, a quorum of the members
named was required to be present, but all the members of
the house were at liberty to attend the committee and vote
if they pleased.
154. With the growth of political parties in parliament
questions relating to the right of membership gradually
assumed a political character; so that for many years
previous to the year 1770, controverted elections had
been tried and determined by the house of commons, as
mere party questions, upon which the strength of
contending factions might be tested. Thus, for Example, in
1741, Sir Robert Walpole, after repeated attacks upon his
government, resigned his office in consequence of an
adverse vote upon the Chippenham election. Mr. Hatsell
remarks, of the trial of election cases, as conducted under
this system, that "Every principle of decency and justice
were notoriously and openly prostituted, from whence the
younger part of the house were insensibly, but too
successfully, induced to adopt the same licentious
conduct in more serious matters, and in questions of
higher importance to the public welfare." Mr. George
Grenville, a distinguished member of the house of
commons, undertook to propose a remedy for the evil,
and, on the 7th of March, 1770, obtained the unanimous
leave of the house to bring in a bill, "to regulate the trial of
controverted elections, or returns of members to serve in
parliament." In his speech to explain his plan, on the
motion for leave, Mr. Grenville alluded to the existing
practice in the following terms: "Instead of trusting to the
merits of their respective causes, the principal
dependence of both parties is their private interest among
us; and it is scandalously notorious that we are as
earnestly canvassed to attend in favor of the opposite
sides, as if we were wholly self-elective, and not bound to
act by the principles of justice, but by the discretionary
impulse of our own inclinations; nay, it is well known, that
in every contested election, many members of this house,
who are ultimately to judge in a kind of judicial capacity
between the competitors, enlist themselves as parties in
the contention, and take upon themselves the partial
management of the very business, upon which they
should determine with the strictest impartiality."
155. It was to put an end to the practices thus described,
that Mr. Grenville brought in a bill which met with the
approbation of both houses, and received the royal
assent on the 12th of April, 1770. This was the celebrated
law since known by the name of the Grenville Act; of
which Mr. Hatsell declares, that it "was one of the nobles
works, for the honor of the house of commons, and the
security of the constitution, that was ever devised by any
minister or statesman." It is probable, that the magnitude
of the evil, or the apparent success of the remedy, may
have led many of the contemporaries of the measure to
the information of a judgement, which was not acquiesced
in by some of the leading statesmen of the day, and has
not been entirely confirmed by subsequent experience.
The bill was objected to by Lord North, Mr. De Grey,
afterwards chief justice of the common pleas, Mr. Ellis,
Mr. Dyson, who had been clerk of the house, and Mr.
Charles James Fox, chiefly on the ground, that the
introduction of the new system was an essential alteration
of the constitution of parliament, and a total abrogation of
one of the most important rights and jurisdictions of the
house of commons.
As early as 1868, the House of Commons in England solved the
problem of insuring the non-partisan settlement of the
controverted elections of its members by abdicating its
prerogative to two judges of the King's Bench of the High Court of
Justice selected from a rota in accordance with rules of court
made for the purpose. Having proved successful, the practice has
become imbedded in English jurisprudence (Parliamentary
Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by
Parliamentary Elections and Corrupt Practices Act. 1879 [42 & 43
Vict. c. 75], s. 2; Corrupt and Illegal Practices Preventions Act,
1883 [46 & 47 Vict. c. 51;, s. 70; Expiring Laws Continuance Act,
1911 [1 & 2 Geo. 5, c. 22]; Laws of England, vol. XII, p. 408, vol.
XXI, p. 787). In the Dominion of Canada, election contests which
were originally heard by the Committee of the House of
Commons, are since 1922 tried in the courts. Likewise, in the
Commonwealth of Australia, election contests which were
originally determined by each house, are since 1922 tried in the
High Court. In Hungary, the organic law provides that all protests
against the election of members of the Upper House of the Diet
are to be resolved by the Supreme Administrative Court (Law 22
of 1916, chap. 2, art. 37, par. 6). The Constitution of Poland of
March 17, 1921 (art. 19) and the Constitution of the Free City of
Danzig of May 13, 1922 (art. 10) vest the authority to decide
contested elections to the Diet or National Assembly in the
Supreme Court. For the purpose of deciding legislative contests,
the Constitution of the German Reich of July 1, 1919 (art. 31), the
Constitution of the Czechoslovak Republic of February 29, 1920
(art. 19) and the Constitution of the Grecian Republic of June 2,
1927 (art. 43), all provide for an Electoral Commission.
The creation of an Electoral Commission whose membership is
recruited both from the legislature and the judiciary is by no
means unknown in the United States. In the presidential elections
of 1876 there was a dispute as to the number of electoral votes
received by each of the two opposing candidates. As the
Constitution made no adequate provision for such a contingency,
Congress passed a law on January 29, 1877 (United States
Statutes at Large, vol. 19, chap. 37, pp. 227-229), creating a
special Electoral Commission composed of five members elected
by the Senate, five members elected by the House of
Representatives, and five justices of the Supreme Court, the fifth
justice to be selected by the four designated in the Act. The
decision of the commission was to be binding unless rejected by
the two houses voting separately. Although there is not much of a
moral lesson to be derived from the experience of America in this
regard, judging from the observations of Justice Field, who was a
member of that body on the part of the Supreme Court
(Countryman, the Supreme Court of the United States and its
Appellate Power under the Constitution [Albany, 1913] —
Relentless Partisanship of Electoral Commission, p. 25 et seq.),
the experiment has at least abiding historical interest.
The members of the Constitutional Convention who framed our
fundamental law were in their majority men mature in years and
experience. To be sure, many of them were familiar with the
history and political development of other countries of the world.
When , therefore, they deemed it wise to create an Electoral
Commission as a constitutional organ and invested it with the
exclusive function of passing upon and determining the election,
returns and qualifications of the members of the National
Assembly, they must have done so not only in the light of their
own experience but also having in view the experience of other
enlightened peoples of the world. The creation of the Electoral
Commission was designed to remedy certain evils of which the
framers of our Constitution were cognizant. Notwithstanding the
vigorous opposition of some members of the Convention to its
creation, the plan, as hereinabove stated, was approved by that
body by a vote of 98 against 58. All that can be said now is that,
upon the approval of the constitutional the creation of the
Electoral Commission is the expression of the wisdom and
"ultimate justice of the people". (Abraham Lincoln, First Inaugural
Address, March 4, 1861.)
From the deliberations of our Constitutional Convention it is
evident that the purpose was to transfer in its totality all the
powers previously exercised by the legislature in matters
pertaining to contested elections of its members, to an
independent and impartial tribunal. It was not so much the
knowledge and appreciation of contemporary constitutional
precedents, however, as the long-felt need of determining
legislative contests devoid of partisan considerations which
prompted the people, acting through their delegates to the
Convention, to provide for this body known as the Electoral
Commission. With this end in view, a composite body in which
both the majority and minority parties are equally represented to
off-set partisan influence in its deliberations was created, and
further endowed with judicial temper by including in its
membership three justices of the Supreme Court. 
The Electoral Commission is a constitutional creation, invested
with the necessary authority in the performance and execution of
the limited and specific function assigned to it by the Constitution.
Although it is not a power in our tripartite scheme of government,
it is, to all intents and purposes, when acting within the limits of its
authority, an independent organ. It is, to be sure, closer to the
legislative department than to any other. The location of the
provision (section 4) creating the Electoral Commission under
Article VI entitled "Legislative Department" of our Constitution is
very indicative. Its compositions is also significant in that it is
constituted by a majority of members of the legislature. But it is a
body separate from and independent of the legislature.
The grant of power to the Electoral Commission to judge all
contests relating to the election, returns and qualifications of
members of the National Assembly, is intended to be as complete
and unimpaired as if it had remained originally in the legislature.
The express lodging of that power in the Electoral Commission is
an implied denial of the exercise of that power by the National
Assembly. And this is as effective a restriction upon the legislative
power as an express prohibition in the Constitution (Ex
parte Lewis, 45 Tex. Crim. Rep., 1; State vs.Whisman, 36 S.D.,
260; L.R.A., 1917B, 1). If we concede the power claimed in behalf
of the National Assembly that said body may regulate the
proceedings of the Electoral Commission and cut off the power of
the commission to lay down the period within which protests
should be filed, the grant of power to the commission would be
ineffective. The Electoral Commission in such case would be
invested with the power to determine contested cases involving
the election, returns and qualifications of the members of the
National Assembly but subject at all times to the regulative power
of the National Assembly. Not only would the purpose of the
framers of our Constitution of totally transferring this authority
from the legislative body be frustrated, but a dual authority would
be created with the resultant inevitable clash of powers from time
to time. A sad spectacle would then be presented of the Electoral
Commission retaining the bare authority of taking cognizance of
cases referred to, but in reality without the necessary means to
render that authority effective whenever and whenever the
National Assembly has chosen to act, a situation worse than that
intended to be remedied by the framers of our Constitution. The
power to regulate on the part of the National Assembly in
procedural matters will inevitably lead to the ultimate control by
the Assembly of the entire proceedings of the Electoral
Commission, and, by indirection, to the entire abrogation of the
constitutional grant. It is obvious that this result should not be
permitted.
We are not insensible to the impassioned argument or the
learned counsel for the petitioner regarding the importance and
necessity of respecting the dignity and independence of the
national Assembly as a coordinate department of the government
and of according validity to its acts, to avoid what he
characterized would be practically an unlimited power of the
commission in the admission of protests against members of the
National Assembly. But as we have pointed out hereinabove, the
creation of the Electoral Commission carried with it ex necesitate
rei the power regulative in character to limit the time with which
protests intrusted to its cognizance should be filed. It is a settled
rule of construction that where a general power is conferred or
duty enjoined, every particular power necessary for the exercise
of the one or the performance of the other is also conferred
(Cooley, Constitutional Limitations, eight ed., vol. I, pp. 138, 139).
In the absence of any further constitutional provision relating to
the procedure to be followed in filing protests before the Electoral
Commission, therefore, the incidental power to promulgate such
rules necessary for the proper exercise of its exclusive power to
judge all contests relating to the election, returns and
qualifications of members of the National Assembly, must be
deemed by necessary implication to have been lodged also in the
Electoral Commission.
It is, indeed, possible that, as suggested by counsel for the
petitioner, the Electoral Commission may abuse its regulative
authority by admitting protests beyond any reasonable time, to
the disturbance of the tranquillity and peace of mind of the
members of the National Assembly. But the possibility of abuse is
not argument against the concession of the power as there is no
power that is not susceptible of abuse. In the second place, if any
mistake has been committed in the creation of an Electoral
Commission and in investing it with exclusive jurisdiction in all
cases relating to the election, returns, and qualifications of
members of the National Assembly, the remedy is political, not
judicial, and must be sought through the ordinary processes of
democracy. All the possible abuses of the government are not
intended to be corrected by the judiciary. We believe, however,
that the people in creating the Electoral Commission reposed as
much confidence in this body in the exclusive determination of the
specified cases assigned to it, as they have given to the Supreme
Court in the proper cases entrusted to it for decision. All the
agencies of the government were designed by the Constitution to
achieve specific purposes, and each constitutional organ working
within its own particular sphere of discretionary action must be
deemed to be animated with the same zeal and honesty in
accomplishing the great ends for which they were created by the
sovereign will. That the actuations of these constitutional
agencies might leave much to be desired in given instances, is
inherent in the perfection of human institutions. In the third place,
from the fact that the Electoral Commission may not be interfered
with in the exercise of its legitimate power, it does not follow that
its acts, however illegal or unconstitutional, may not be challenge
in appropriate cases over which the courts may exercise
jurisdiction.
But independently of the legal and constitutional aspects of the
present case, there are considerations of equitable character that
should not be overlooked in the appreciation of the intrinsic merits
of the controversy. The Commonwealth Government was
inaugurated on November 15, 1935, on which date the
Constitution, except as to the provisions mentioned in section 6 of
Article XV thereof, went into effect. The new National Assembly
convened on November 25th of that year, and the resolution
confirming the election of the petitioner, Jose A. Angara was
approved by that body on December 3, 1935. The protest by the
herein respondent Pedro Ynsua against the election of the
petitioner was filed on December 9 of the same year. The
pleadings do not show when the Electoral Commission was
formally organized but it does appear that on December 9, 1935,
the Electoral Commission met for the first time and approved a
resolution fixing said date as the last day for the filing of election
protest. When, therefore, the National Assembly passed its
resolution of December 3, 1935, confirming the election of the
petitioner to the National Assembly, the Electoral Commission
had not yet met; neither does it appear that said body had
actually been organized. As a mater of fact, according to certified
copies of official records on file in the archives division of the
National Assembly attached to the record of this case upon the
petition of the petitioner, the three justices of the Supreme Court
the six members of the National Assembly constituting the
Electoral Commission were respectively designated only on
December 4 and 6, 1935. If Resolution No. 8 of the National
Assembly confirming non-protested elections of members of the
National Assembly had the effect of limiting or tolling the time for
the presentation of protests, the result would be that the National
Assembly — on the hypothesis that it still retained the incidental
power of regulation in such cases — had already barred the
presentation of protests before the Electoral Commission had had
time to organize itself and deliberate on the mode and method to
be followed in a matter entrusted to its exclusive jurisdiction by
the Constitution. This result was not and could not have been
contemplated, and should be avoided. 
From another angle, Resolution No. 8 of the National Assembly
confirming the election of members against whom no protests
had been filed at the time of its passage on December 3, 1935,
can not be construed as a limitation upon the time for the initiation
of election contests. While there might have been good reason for
the legislative practice of confirmation of the election of members
of the legislature at the time when the power to decide election
contests was still lodged in the legislature, confirmation alone by
the legislature cannot be construed as depriving the Electoral
Commission of the authority incidental to its constitutional power
to be "the sole judge of all contest relating to the election, returns,
and qualifications of the members of the National Assembly", to
fix the time for the filing of said election protests. Confirmation by
the National Assembly of the returns of its members against
whose election no protests have been filed is, to all legal
purposes, unnecessary. As contended by the Electoral
Commission in its resolution of January 23, 1936, overruling the
motion of the herein petitioner to dismiss the protest filed by the
respondent Pedro Ynsua, confirmation of the election of any
member is not required by the Constitution before he can
discharge his duties as such member. As a matter of fact,
certification by the proper provincial board of canvassers is
sufficient to entitle a member-elect to a seat in the national
Assembly and to render him eligible to any office in said body
(No. 1, par. 1, Rules of the National Assembly, adopted
December 6, 1935).
Under the practice prevailing both in the English House of
Commons and in the Congress of the United States, confirmation
is neither necessary in order to entitle a member-elect to take his
seat. The return of the proper election officers is sufficient, and
the member-elect presenting such return begins to enjoy the
privileges of a member from the time that he takes his oath of
office (Laws of England, vol. 12, pp. 331. 332; vol. 21, pp. 694,
695; U. S. C. A., Title 2, secs. 21, 25, 26). Confirmation is in order
only in cases of contested elections where the decision is
adverse to the claims of the protestant. In England, the judges'
decision or report in controverted elections is certified to the
Speaker of the House of Commons, and the House, upon being
informed of such certificate or report by the Speaker, is required
to enter the same upon the Journals, and to give such directions
for confirming or altering the return, or for the issue of a writ for a
new election, or for carrying into execution the determination as
circumstances may require (31 & 32 Vict., c. 125, sec. 13). In the
United States, it is believed, the order or decision of the particular
house itself is generally regarded as sufficient, without any actual
alternation or amendment of the return (Cushing, Law and
Practice of Legislative Assemblies, 9th ed., sec. 166).
Under the practice prevailing when the Jones Law was still in
force, each house of the Philippine Legislature fixed the time
when protests against the election of any of its members should
be filed. This was expressly authorized by section 18 of the Jones
Law making each house the sole judge of the election, return and
qualifications of its members, as well as by a law (sec. 478, Act
No. 3387) empowering each house to respectively prescribe by
resolution the time and manner of filing contest in the election of
member of said bodies. As a matter of formality, after the time
fixed by its rules for the filing of protests had already expired,
each house passed a resolution confirming or approving the
returns of such members against whose election no protests had
been filed within the prescribed time. This was interpreted as
cutting off the filing of further protests against the election of
those members not theretofore contested (Amistad vs. Claravall
[Isabela], Second Philippine Legislature, Record — First Period,
p. 89; Urguello vs. Rama [Third District, Cebu], Sixth Philippine
Legislature; Fetalvero vs. Festin [Romblon], Sixth Philippine
Legislature, Record — First Period, pp. 637-640;
Kintanar vs. Aldanese [Fourth District, Cebu], Sixth Philippine
Legislature, Record — First Period, pp. 1121, 1122;
Aguilar vs. Corpus [Masbate], Eighth Philippine Legislature,
Record — First Period, vol. III, No. 56, pp. 892, 893). The
Constitution has repealed section 18 of the Jones Law. Act No.
3387, section 478, must be deemed to have been impliedly
abrogated also, for the reason that with the power to determine all
contest relating to the election, returns and qualifications of
members of the National Assembly, is inseparably linked the
authority to prescribe regulations for the exercise of that power.
There was thus no law nor constitutional provisions which
authorized the National Assembly to fix, as it is alleged to have
fixed on December 3, 1935, the time for the filing of contests
against the election of its members. And what the National
Assembly could not do directly, it could not do by indirection
through the medium of confirmation.
Summarizing, we conclude:
(a) That the government established by the Constitution
follows fundamentally the theory of separation of power
into the legislative, the executive and the judicial.
(b) That the system of checks and balances and the
overlapping of functions and duties often makes difficult
the delimitation of the powers granted.
(c) That in cases of conflict between the several
departments and among the agencies thereof, the
judiciary, with the Supreme Court as the final arbiter, is
the only constitutional mechanism devised finally to
resolve the conflict and allocate constitutional boundaries.
(d) That judicial supremacy is but the power of judicial
review in actual and appropriate cases and controversies,
and is the power and duty to see that no one branch or
agency of the government transcends the Constitution,
which is the source of all authority.
(e) That the Electoral Commission is an independent
constitutional creation with specific powers and functions
to execute and perform, closer for purposes of
classification to the legislative than to any of the other two
departments of the governments.
(f ) That the Electoral Commission is the sole judge of all
contests relating to the election, returns and qualifications
of members of the National Assembly.
(g) That under the organic law prevailing before the
present Constitution went into effect, each house of the
legislature was respectively the sole judge of the
elections, returns, and qualifications of their elective
members.  privileges of a member of the National Assembly.
(h) That the present Constitution has transferred all the
powers previously exercised by the legislature with
respect to contests relating to the elections, returns and
qualifications of its members, to the Electoral
Commission.
(i) That such transfer of power from the legislature to the
Electoral Commission was full, clear and complete, and
carried with it ex necesitate rei the implied power inter
alia to prescribe the rules and regulations as to the time
and manner of filing protests.
( j) That the avowed purpose in creating the Electoral
Commission was to have an independent constitutional
organ pass upon all contests relating to the election,
returns and qualifications of members of the National
Assembly, devoid of partisan influence or consideration,
which object would be frustrated if the National Assembly
were to retain the power to prescribe rules and
regulations regarding the manner of conducting said
contests.
(k) That section 4 of article VI of the Constitution repealed
not only section 18 of the Jones Law making each house
of the Philippine Legislature respectively the sole judge of
the elections, returns and qualifications of its elective
members, but also section 478 of Act No. 3387
empowering each house to prescribe by resolution the
time and manner of filing contests against the election of
its members, the time and manner of notifying the
adverse party, and bond or bonds, to be required, if any,
and to fix the costs and expenses of contest.
(l) That confirmation by the National Assembly of the
election is contested or not, is not essential before such
member-elect may discharge the duties and enjoy the
(m) That confirmation by the National Assembly of the
election of any member against whom no protest had
been filed prior to said confirmation, does not and cannot
deprive the Electoral Commission of its incidental power
to prescribe the time within which protests against the
 election of any member of the National Assembly should
be filed.
We hold, therefore, that the Electoral Commission was acting
within the legitimate exercise of its constitutional prerogative in
assuming to take cognizance of the protest filed by the
respondent Pedro Ynsua against the election of the herein
petitioner Jose A. Angara, and that the resolution of the National
Assembly of December 3, 1935 can not in any manner toll the
time for filing protests against the elections, returns and
qualifications of members of the National Assembly, nor prevent
the filing of a protest within such time as the rules of the Electoral
Commission might prescribe.  572.)
In view of the conclusion reached by us relative to the character
of the Electoral Commission as a constitutional creation and as to
the scope and extent of its authority under the facts of the present
controversy, we deem it unnecessary to determine whether the
Electoral Commission is an inferior tribunal, corporation, board or
person within the purview of sections 226 and 516 of the Code of
Civil Procedure.
The petition for a writ of prohibition against the Electoral
Commission is hereby denied, with costs against the petitioner.
So ordered.
Avanceña, C. J., Diaz, Concepcion, and Horrilleno, JJ., concur.
Separate Opinions
ABAD SANTOS, J., concurring:
I concur in the result and in most of the views so ably expressed
in the preceding opinion. I am, however, constrained to withhold
my assent to certain conclusions therein advanced.
The power vested in the Electoral Commission by the
Constitution of judging of all contests relating to the election,
returns, and qualifications of the members of the National
Assembly, is judicial in nature. (Thomas vs. Loney, 134 U.S., 372;
33 Law. ed., 949, 951.) On the other hand, the power to regulate
the time in which notice of a contested election may be given, is
legislative in character. (M'Elmoyle vs. Cohen, 13 Pet., 312; 10
Law. ed., 177; Missouri vs. Illinois, 200 U. S. 496; 50 Law. ed.,
It has been correctly stated that the government established by
the Constitution follows fundamentally the theory of the
separation of powers into legislative, executive, and judicial.
Legislative power is vested in the National Assembly. (Article VI,
sec. 1.) In the absence of any clear constitutional provision to the
contrary, the power to regulate the time in which notice of a
contested election may be given, must be deemed to be included
in the grant of legislative power to the National Assembly.
The Constitution of the United States contains a provision similar
to the that found in Article VI, section 4, of the Constitution of the
Philippines. Article I, section 5, of the Constitution of the United
States provides that each house of the Congress shall be the
judge of the elections, returns, and qualifications of its own
members. Notwithstanding this provision, the Congress has
assumed the power to regulate the time in which notice of a
contested election may be given. Thus section 201, Title 2, of the
United States Code Annotated prescribes:
Whenever any person intends to contest an election of
any Member of the House of Representatives of the
United States, he shall, within thirty days after the result of
such election shall have been determined by the officer or
board of canvassers authorized by law to determine the
 same, give notice, in writing, to the Member whose seat
he designs to contest, of his intention to contest the same,
and, in such notice, shall specify particularly the grounds
upon which he relies in the contest. (R. S., par. 105.)
The Philippine Autonomy Act, otherwise known as the Jones
Law, also contained a provision to the effect that the Senate and
House of Representatives, respectively, shall be the sole judges
of the elections, returns, and qualifications of their elective
members. Notwithstanding this provision, the Philippine
Legislature passed the Election Law, section 478 of which reads
as follows:
The Senate and the House of Representatives shall by
resolution respectively prescribe the time and manner of
filing contest in the election of members of said bodies,
the time and manner of notifying the adverse party, and
bond or bonds, to be required, if any, and shall fix the
costs and expenses of contest which may be paid from
their respective funds.
The purpose sought to be attained by the creation of the Electoral
Commission was not to erect a body that would be above the law,
but to raise legislative elections contests from the category of
political to that of justiciable questions. The purpose was not to
place the commission beyond the reach of the law, but to insure
the determination of such contests with the due process of law.
Section 478 of the Election Law was in force at the time of the
adoption of the Constitution, Article XV, section 2, of which
provides that —
All laws of the Philippine Islands shall continue in force
until the inauguration of the Commonwealth of the
Philippines; thereafter, such laws shall remain operative,
unless inconsistent with this Constitution, until amended,
altered, modified, or repealed by the National Assembly,
and all references in such laws to the Government or
officials of the Philippine Islands shall be construed, in so
far as applicable, to refer to the Government and
corresponding officials under this Constitution.
The manifest purpose of this constitutional provision was to
insure the orderly processes of government, and to prevent any
hiatus in its operations after the inauguration of the
Commonwealth of the Philippines. It was thus provided that all
laws of the Philippine Islands shall remain operative even after
the inauguration of the Commonwealth of the Philippines, unless
inconsistent with the Constitution, and that all references in such
laws to the government or officials of the Philippine Islands shall
be construed, in so far as applicable, to refer to the government
and corresponding officials under the Constitution. It would seem
to be consistent not only with the spirit but the letter of the
Constitution to hold that section 478 of the Election Law remains
operative and should now be construed to refer to the Electoral
Commission, which, in so far as the power to judge election
contests is concerned, corresponds to either the Senate or the
House of Representative under the former regime. It is important
to observe in this connection that said section 478 of the Election
Law vested the power to regulate the time and manner in which
notice of a contested election may be given, not in the Philippine
Legislature but in the Senate and House of Representatives
singly. In other words, the authority to prescribe the time and
manner of filing contests in the elections of members of the
Philippine Legislature was by statute lodged separately in the
bodies clothed with power to decide such contests. Construing
section 478 of the Election Law to refer to the National Assembly,
as required by Article XV, section 2, of the Constitution, it seems
reasonable to conclude that the authority to prescribe the time
and manner of filing contests in the election of members of the
National Assembly is vested in the Electoral Commission, which
is now the body clothed with power to decide such contests.
In the light of what has been said, the resolution of the National
Assembly of December 3, 1935, could not have the effect of
barring the right of the respondent Pedro Ynsua to contest the
election of the petitioner. By the same token, the Electoral
Commission was authorized by law to adopt its resolution of
December 9, 1935, which fixed the time with in which written
contests must be filed with the commission.
Having been filed within the time fixed by its resolutions, the
Electoral Commission has jurisdiction to hear and determine the
contest filed by the respondent Pedro Ynsua against the
petitioner Jose A. Angara. 
G.R. No. 174153             October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER
WITH 6,327,952 REGISTERED VOTERS,Petitioners,  of Health Action for Human Rights, Intervenors.
vs.
THE COMMISSION ON ELECTIONS, Respondent.
x--------------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC., Intervenor.
x ------------------------------------------------------ x
ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN,
MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN
V. OPLE, and CARLOS P. MEDINA, JR., Intervenors.
x------------------------------------------------------ x 
ATTY. PETE QUIRINO QUADRA, Intervenor. 
x--------------------------------------------------------x
BAYAN represented by its Chairperson Dr. Carolina
Pagaduan-Araullo, BAYAN MUNA represented by its
Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO
represented by its Secretary General Joel Maglunsod, HEAD
represented by its Secretary General Dr. Gene Alzona
Nisperos, ECUMENICAL BISHOPS FORUM represented by
Fr. Dionito Cabillas, MIGRANTE represented by its
Chairperson Concepcion Bragas-Regalado, GABRIELA
represented by its Secretary General Emerenciana de Jesus,
GABRIELA WOMEN'S PARTY represented by Sec. Gen.
Cristina Palabay, ANAKBAYAN represented by Chairperson
Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS
represented by Chair Vencer Crisostomo Palabay, JOJO
PINEDA of the League of Concerned Professionals and
Businessmen, DR. DARBY SANTIAGO of the Solidarity of
Health Against Charter Change, DR. REGINALD PAMUGAS
x--------------------------------------------------------x 
LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA
THERESA HONTIVEROS-BARAQUEL,Intervenors.
x--------------------------------------------------------x
ARTURO M. DE CASTRO, Intervenor. 
x ------------------------------------------------------- x  x ------------------------------------------------------- x

TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.  JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA
KARINA A. LAT, ANTONIO L. SALVADOR, and RANDALL
x---------------------------------------------------------x TABAYOYONG, Intervenors.

LUWALHATI RICASA ANTONINO, Intervenor. x -------------------------------------------------------- x 

x ------------------------------------------------------- x  INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND

CEBU PROVINCE CHAPTERS, Intervenors. 
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. x --------------------------------------------------------x 
TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS, and AMADO GAT SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR.
INCIONG, Intervenors.  and SENATORS SERGIO R. OSMENA III, JAMBY MADRIGAL,
JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO
x ------------------------------------------------------- x LACSON, Intervenors. 

RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and x -----------------------------------------------------x 

RUELO BAYA, Intervenors. 
JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG
x -------------------------------------------------------- x PILIPINO, Intervenors. 

PHILIPPINE TRANSPORT AND GENERAL WORKERS x -----------------------------------------------------x

ORGANIZATION (PTGWO) and MR. VICTORINO F.
BALAIS, Intervenors. G.R. No. 174299             October 25, 2006

x -------------------------------------------------------- x  MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and

RENE A.V. SAGUISAG, Petitioners, 
SENATE OF THE PHILIPPINES, represented by its President, vs.
MANUEL VILLAR, JR., Intervenor.  COMMISSION ON ELECTIONS, represented by Chairman
BENJAMIN S. ABALOS, SR., and Commissioners
x ------------------------------------------------------- x RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
ROMEO A. BRAWNER, RENE V. SARMIENTO, NICODEMO T.
FERRER, and John Doe and Peter Doe,, Respondent.
SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.

DECISION
CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31
August 2006 of the Commission on Elections ("COMELEC")
denying due course to an initiative petition to amend the 1987
Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely
Raul L. Lambino and Erico B. Aumentado ("Lambino Group"),
with other groups1 and individuals, commenced gathering
signatures for an initiative petition to change the 1987
Constitution. On 25 August 2006, the Lambino Group filed a
petition with the COMELEC to hold a plebiscite that will ratify their
initiative petition under Section 5(b) and (c)2 and Section 73 of
Republic Act No. 6735 or the Initiative and Referendum Act ("RA
6735").  COMELEC invoked this Court's ruling in Santiago v. Commission
The Lambino Group alleged that their petition had the support of
6,327,952 individuals constituting at least twelve per
centum (12%) of all registered voters, with each legislative district
represented by at least three per centum (3%) of its registered
voters. The Lambino Group also claimed that COMELEC election
registrars had verified the signatures of the 6.3 million
individuals.  contends that the COMELEC committed grave abuse of
The Lambino Group's initiative petition changes the 1987
Constitution by modifying Sections 1-7 of Article VI (Legislative
Department)4 and Sections 1-4 of Article VII (Executive
Department)5 and by adding Article XVIII entitled "Transitory
Provisions."6 These proposed changes will shift the present
Bicameral-Presidential system to a Unicameral-Parliamentary
form of government. The Lambino Group prayed that after due
publication of their petition, the COMELEC should submit the
following proposition in a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES
VI AND VII OF THE 1987 CONSTITUTION, CHANGING
THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-
PARLIAMENTARY SYSTEM, AND PROVIDING
ARTICLE XVIII AS TRANSITORY PROVISIONS FOR
THE ORDERLY SHIFT FROM ONE SYSTEM TO THE
OTHER? 
On 30 August 2006, the Lambino Group filed an Amended
Petition with the COMELEC indicating modifications in the
proposed Article XVIII (Transitory Provisions) of their initiative.7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying
due course to the Lambino Group's petition for lack of an enabling
law governing initiative petitions to amend the Constitution. The
on Elections8 declaring RA 6735 inadequate to implement the
initiative clause on proposals to amend the Constitution.9
In G.R. No. 174153, the Lambino Group prays for the issuance of
the writs of certiorari and mandamus to set aside the COMELEC
Resolution of 31 August 2006 and to compel the COMELEC to
give due course to their initiative petition. The Lambino Group
discretion in denying due course to their petition
since Santiago is not a binding precedent. Alternatively, the
Lambino Group claims that Santiago binds only the parties to
that case, and their petition deserves cognizance as an
expression of the "will of the sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the
Court require respondent COMELEC Commissioners to show
cause why they should not be cited in contempt for the
COMELEC's verification of signatures and for "entertaining" the
Lambino Group's petition despite the permanent injunction
in Santiago. The Court treated the Binay Group's petition as an
opposition-in-intervention.
In his Comment to the Lambino Group's petition, the Solicitor
General joined causes with the petitioners, urging the Court to
grant the petition despite the Santiago ruling. The Solicitor
General proposed that the Court treat RA 6735 and its
implementing rules "as temporary devises to implement the
system of initiative." 
Various groups and individuals sought intervention, filing
pleadings supporting or opposing the Lambino Group's petition.
The supporting intervenors10 uniformly hold the view that the
COMELEC committed grave abuse of discretion in relying
on Santiago. On the other hand, the opposing intervenors11 hold
the contrary view and maintain that Santiago is a binding
precedent. The opposing intervenors also challenged (1) the
Lambino Group's standing to file the petition; (2) the validity of the
signature gathering and verification process; (3) the Lambino
Group's compliance with the minimum requirement for the
percentage of voters supporting an initiative petition under
Section 2, Article XVII of the 1987 Constitution;12 (4) the nature of
the proposed changes as revisions and not mere amendments as
provided under Section 2, Article XVII of the 1987 Constitution;
and (5) the Lambino Group's compliance with the requirement in
Section 10(a) of RA 6735 limiting initiative petitions to only one
subject. 
The Court heard the parties and intervenors in oral arguments on
26 September 2006. After receiving the parties' memoranda, the
Court considered the case submitted for resolution.
The Issues
The petitions raise the following issues:
1. Whether the Lambino Group's initiative petition complies with
Section 2, Article XVII of the Constitution on amendments to the
Constitution through a people's initiative;
2. Whether this Court should revisit its ruling
in Santiago declaring RA 6735 "incomplete, inadequate or
wanting in essential terms and conditions" to implement the
initiative clause on proposals to amend the Constitution; and 
3. Whether the COMELEC committed grave abuse of discretion
in denying due course to the Lambino Group's petition. 
The Ruling of the Court
There is no merit to the petition. 
The Lambino Group miserably failed to comply with the basic
requirements of the Constitution for conducting a people's
initiative. Thus, there is even no need to revisit Santiago, as the
present petition warrants dismissal based alone on the Lambino
Group's glaring failure to comply with the basic requirements of
the Constitution. For following the Court's ruling in Santiago, no
grave abuse of discretion is attributable to the Commision on
Elections. 
1. The Initiative Petition Does Not Comply with Section 2,
Article XVII of the Constitution on Direct Proposal by the
People
Section 2, Article XVII of the Constitution is the governing
constitutional provision that allows a people's initiative to propose
amendments to the Constitution. This section states:
Sec. 2. Amendments to this Constitution may likewise
be directly proposed by the people through initiative
upon a petition of at least twelve per centum of the total
number of registered voters of which every legislative
district must be represented by at least three per
centum of the registered voters therein. x x x x (Emphasis
supplied)
The deliberations of the Constitutional Commission vividly explain
the meaning of an amendment "directly proposed by the
people through initiative upon a petition," thus:
MR. RODRIGO: Let us look at the mechanics. Let us say
some voters want to propose a constitutional
amendment. Is the draft of the proposed constitutional
amendment ready to be shown to the people when
they are asked to sign? 
MR. SUAREZ: That can be reasonably assumed,
Madam President.
MR. RODRIGO: What does the sponsor mean? The draft
is ready and shown to them before they sign. Now,
who prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is
already a draft shown to them and they are asked
whether or not they want to propose this constitutional
amendment. 
MR. SUAREZ: As it is envisioned, any Filipino
can prepare that proposal and pass it around for
signature.13 (Emphasis supplied)
Clearly, the framers of the Constitution intended that the "draft of
the proposed constitutional amendment" should be "ready
and shown" to the people "before" they sign such proposal. The
framers plainly stated that "before they sign there is already a
draft shown to them." The framers also "envisioned" that the
people should sign on the proposal itself because the
proponents must "prepare that proposal and pass it around for
signature." 
The essence of amendments "directly proposed by the people
through initiative upon a petition" is that the entire proposal
on its face is a petition by the people. This means two
essential elements must be present. First, the people must author
and thus sign the entire proposal. No agent or representative can
sign on their behalf. Second, as an initiative upon a petition, the
proposal must be embodied in a petition. 
These essential elements are present only if the full text of the
proposed amendments is first shown to the people who express
their assent by signing such complete proposal in a
petition. Thus, an amendment is "directly proposed by the
people through initiative upon a petition" only if the people
sign on a petition that contains the full text of the proposed
amendments. 
The full text of the proposed amendments may be either written
on the face of the petition, or attached to it. If so attached, the
petition must state the fact of such attachment. This is an
assurance that every one of the several millions of signatories to
the petition had seen the full text of the proposed amendments
before signing. Otherwise, it is physically impossible, given the
time constraint, to prove that every one of the millions of
signatories had seen the full text of the proposed amendments
before signing. 
The framers of the Constitution directly borrowed14 the concept of
people's initiative from the United States where various State
constitutions incorporate an initiative clause. In almost all
States15 which allow initiative petitions, the unbending
requirement is that the people must first see the full text of
the proposed amendments before they sign to signify their
assent, and that the people must sign on an initiative petition
that contains the full text of the proposed amendments.16
The rationale for this requirement has been repeatedly explained
in several decisions of various courts. Thus, in Capezzuto v.
State Ballot Commission, the Supreme Court of
Massachusetts, affirmed by the First Circuit Court of Appeals,
declared:  initiative void.19
[A] signature requirement would be meaningless if
the person supplying the signature has not first
seen what it is that he or she is signing. Further, and
more importantly, loose interpretation of the subscription
requirement can pose a significant potential for fraud. A
person permitted to describe orally the contents of an
initiative petition to a potential signer, without the signer
having actually examined the petition, could easily
mislead the signer by, for example, omitting, downplaying,
or even flatly misrepresenting, portions of the petition that
might not be to the signer's liking. This danger seems
particularly acute when, in this case, the person
giving the description is the drafter of the petition,
who obviously has a vested interest in seeing that it
gets the requisite signatures to qualify for the
ballot.17 (Boldfacing and underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon
explained:
The purposes of "full text" provisions that apply to
amendments by initiative commonly are described in
similar terms. x x x (The purpose of the full text
requirement is to provide sufficient information so
that registered voters can intelligently evaluate
whether to sign the initiative petition."); x x x
(publication of full text of amended constitutional provision
required because it is "essential for the elector to have x x
x the section which is proposed to be added to or
subtracted from. If he is to vote intelligently, he must have
this knowledge. Otherwise in many instances he would be
required to vote in the dark.") (Emphasis supplied)
Moreover, "an initiative signer must be informed at the time of
signing of the nature and effect of that which is proposed" and
failure to do so is "deceptive and misleading" which renders the
Section 2, Article XVII of the Constitution does not expressly state
that the petition must set forth the full text of the proposed
amendments. However, the deliberations of the framers of our
Constitution clearly show that the framers intended to adopt the
relevant American jurisprudence on people's initiative. In
particular, the deliberations of the Constitutional
Commission explicitly reveal that the framers intended that the
people must first see the full text of the proposed
amendments before they sign, and that the people must sign
on a petition containing such full text. Indeed, Section 5(b) of
Republic Act No. 6735, the Initiative and Referendum Act that the
Lambino Group invokes as valid, requires that the people must
sign the "petition x x x as signatories." 
The proponents of the initiative secure the signatures from the
people. The proponents secure the signatures in their private
capacity and not as public officials. The proponents are not
disinterested parties who can impartially explain the advantages
and disadvantages of the proposed amendments to the people.
The proponents present favorably their proposal to the people
and do not present the arguments against their proposal. The
proponents, or their supporters, often pay those who gather the
signatures. 
Thus, there is no presumption that the proponents observed the I hereby APPROVE the proposed amendment to the 1987
constitutional requirements in gathering the signatures. The Constitution. My signature herein which shall form part of the
proponents bear the burden of proving that they complied with the petition for initiative to amend the Constitution signifies my
constitutional requirements in gathering the signatures - that the support for the filing thereof.
petition contained, or incorporated by attachment, the full
text of the proposed amendments. Precinct Name Address Birthdate Signa
Number
The Lambino Group did not attach to their present petition with Last Name, First MM/DD/YY
this Court a copy of the paper that the people signed as their Name, M.I.
initiative petition. The Lambino Group submitted to this Court a 1          
copy of a signature sheet20 after the oral arguments of 26
2          
September 2006 when they filed their Memorandum on 11
October 2006. The signature sheet with this Court during the oral 3          
arguments was the signature sheet attached21 to the opposition in 4          
intervention filed on 7 September 2006 by intervenor Atty. Pete 5          
Quirino-Quadra.  6          
7          
The signature sheet attached to Atty. Quadra's opposition and the 8          
signature sheet attached to the Lambino Group's Memorandum 9          
are the same. We reproduce below the signature sheet in full:  10          

Province: City/Municipality: No. of _________________ _________________ ______

Legislative District: Barangay: Barangay Official Witness
Verified (Print Name and Sign) (Print Name and Sign) (Print N

Signatures: There is not a single word, phrase, or sentence of text of the

PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT
OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION,
CHANGING THE FORM OF GOVERNMENT FROM THE
PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-
PARLIAMENTARY SYSTEM OF GOVERNMENT, IN ORDER TO
ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND
ECONOMY IN GOVERNMENT; AND PROVIDING AN ARTICLE
XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY
SHIFT FROM ONE SYSTEM TO ANOTHER?"  sheet does not show to the people the draft of the proposed
Lambino Group's proposed changes in the signature sheet.
Neither does the signature sheet state that the text of the
proposed changes is attached to it. Petitioner Atty. Raul
Lambino admitted this during the oral arguments before this Court
on 26 September 2006. 
The signature sheet merely asks a question whether the people
approve a shift from the Bicameral-Presidential to the
Unicameral-Parliamentary system of government. The signature
changes before they are asked to sign the signature sheet.
Clearly, the signature sheet is not the "petition" that the framers of
the Constitution envisioned when they formulated the initiative
clause in Section 2, Article XVII of the Constitution.  CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE
Petitioner Atty. Lambino, however, explained that during the
signature-gathering from February to August 2006, the Lambino
Group circulated, together with the signature sheets, printed
copies of the Lambino Group's draft petition which they later filed
on 25 August 2006 with the COMELEC. When asked if his group
also circulated the draft of their amended petition filed on 30
August 2006 with the COMELEC, Atty. Lambino initially replied
that they circulated both. However, Atty. Lambino changed his
answer and stated that what his group circulated was the draft of
the 30 August 2006 amended petition, not the draft of the 25
August 2006 petition.  ULAP Joint Declaration for Constitutional Reforms signed
The Lambino Group would have this Court believe that they
prepared the draft of the 30 August 2006 amended
petition almost seven months earlier in February 2006 when
they started gathering signatures. Petitioner Erico B.
Aumentado's "Verification/Certification" of the 25 August 2006
petition, as well as of the 30 August 2006 amended petition, filed
with the COMELEC, states as follows:
I have caused the preparation of the foregoing [Amended]
Petition in my personal capacity as a registered voter, for
and on behalf of the Union of Local Authorities of the
Philippines, as shown by ULAP Resolution No. 2006-
02 hereto attached, and as representative of the mass of
signatories hereto. (Emphasis supplied)
The Lambino Group failed to attach a copy of ULAP Resolution
No. 2006-02 to the present petition. However, the "Official
Website of the Union of Local Authorities of the Philippines"22 has
posted the full text of Resolution No. 2006-02, which provides:
RESOLUTION NO. 2006-02
RESOLUTION SUPPORTING THE PROPOSALS OF
THE PEOPLE'S CONSULTATIVE COMMISSION ON
AND REFERENDUM AS A MODE OF AMENDING THE
1987 CONSTITUTION
WHEREAS, there is a need for the Union of Local
Authorities of the Philippines (ULAP) to adopt a common
stand on the approach to support the proposals of the
People's Consultative Commission on Charter Change;
WHEREAS, ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-
Arroyo for constitutional reforms as embodied in the
by the members of the ULAP and the majority coalition of
the House of Representatives in Manila Hotel sometime in
October 2005;
WHEREAS, the People's Consultative Commission on
Charter Change created by Her Excellency to recommend
amendments to the 1987 Constitution has submitted its
final report sometime in December 2005;
WHEREAS, the ULAP is mindful of the current political
developments in Congress which militates against the use
of the expeditious form of amending the 1987
Constitution;
WHEREAS, subject to the ratification of its institutional
members and the failure of Congress to amend the
Constitution as a constituent assembly, ULAP has
unanimously agreed to pursue the constitutional reform
agenda through People's Initiative and Referendum
without prejudice to other pragmatic means to pursue the
same;
 WHEREFORE, BE IT RESOLVED AS IT IS HEREBY
RESOLVED, THAT ALL THE MEMBER-LEAGUES OF
THE UNION OF LOCAL AUTHORITIES OF THE
PHILIPPINES (ULAP) SUPPORT THE PORPOSALS
(SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH
PEOPLE'S INITIATIVE AND REFERENDUM AS A
MODE OF AMENDING THE 1987 CONSTITUTION;
DONE, during the ULAP National Executive Board special
meeting held on 14 January 2006 at the Century Park
Hotel, Manila.23 (Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner
Aumentado to prepare the 25 August 2006 petition, or the 30
August 2006 amended petition, filed with the COMELEC. ULAP
Resolution No. 2006-02 "support(s) the porposals (sic) of the
Consulatative (sic) Commission on Charter Change through
people's initiative and referendum as a mode of amending the
1987 Constitution." The proposals of the Consultative
Commission24 are vastly different from the proposed changes of
the Lambino Group in the 25 August 2006 petition or 30 August
2006 amended petition filed with the COMELEC.  gathering. Instead, the Lambino Group alleged that the petition of
For example, the proposed revisions of the Consultative
Commission affect all provisions of the existing
Constitution, from the Preamble to the Transitory Provisions.
The proposed revisions have profound impact on the Judiciary
and the National Patrimony provisions of the existing Constitution,
provisions that the Lambino Group's proposed changes do not
touch. The Lambino Group's proposed changes purport to affect
only Articles VI and VII of the existing Constitution, including the
introduction of new Transitory Provisions.  sheets. The signature sheets do not also contain any indication
The ULAP adopted Resolution No. 2006-02 on 14 January 2006
or more than six months before the filing of the 25 August 2006
petition or the 30 August 2006 amended petition with the
COMELEC. However, ULAP Resolution No. 2006-02 does not
establish that ULAP or the Lambino Group caused the circulation
of the draft petition, together with the signature sheets, six
months before the filing with the COMELEC. On the
contrary, ULAP Resolution No. 2006-02 casts grave doubt on
the Lambino Group's claim that they circulated the draft
petition together with the signature sheets. ULAP Resolution
No. 2006-02 does not refer at all to the draft petition or to the
Lambino Group's proposed changes. 
In their Manifestation explaining their amended petition before the
COMELEC, the Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized
that the proposed amendments alleged in the Petition,
more specifically, paragraph 3 of Section 4 and paragraph
2 of Section 5 of the Transitory Provisions were
inaccurately stated and failed to correctly reflect their
proposed amendments.
The Lambino Group did not allege that they were amending the
petition because the amended petition was what they had shown
to the people during the February to August 2006 signature-
25 August 2006 "inaccurately stated and failed to correctly reflect
their proposed amendments." 
The Lambino Group never alleged in the 25 August 2006 petition
or the 30 August 2006 amended petition with the COMELEC that
they circulated printed copies of the draft petition together with
the signature sheets. Likewise, the Lambino Group did not allege
in their present petition before this Court that they circulated
printed copies of the draft petition together with the signature
that the draft petition is attached to, or circulated with, the
signature sheets.
It is only in their Consolidated Reply to the Opposition-in-
Interventions that the Lambino Group first claimed that they
circulated the "petition for initiative filed with the COMELEC,"
thus:
[T]here is persuasive authority to the effect that "(w)here
there is not (sic) fraud, a signer who did not read the
measure attached to a referendum petition cannot
question his signature on the ground that he did not
understand the nature of the act." [82 C.J.S. S128h.
Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.]
Thus, the registered voters who signed the signature
sheets circulated together with the petition for
initiative filed with the COMELEC below, are presumed
to have understood the proposition contained in the
petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the people
"the petition for initiative filed with the COMELEC" appears an
afterthought, made after the intervenors Integrated Bar of the
Philippines (Cebu City Chapter and Cebu Province Chapters) and
Atty. Quadra had pointed out that the signature sheets did not
contain the text of the proposed changes. In their Consolidated
Reply, the Lambino Group alleged that they circulated "the
petition for initiative" but failed to mention the amended
petition. This contradicts what Atty. Lambino finally stated during
the oral arguments that what they circulated was the draft of
the amended petition of 30 August 2006.  could not state with certainty how many additional copies the
The Lambino Group cites as authority Corpus Juris Secundum,
stating that "a signer who did not read the measure attached to
a referendum petition cannot question his signature on the
ground that he did not understand the nature of the act." The
Lambino Group quotes an authority that cites a proposed
change attached to the petition signed by the people. Even
the authority the Lambino Group quotes requires that the
proposed change must be attached to the petition. The same
authority the Lambino Group quotes requires the people to sign
on the petition itself. 
Indeed, it is basic in American jurisprudence that the proposed
amendment must be incorporated with, or attached to, the
initiative petition signed by the people. In the present initiative, the
Lambino Group's proposed changes were not incorporated with,
or attached to, the signature sheets. The Lambino Group's
citation of Corpus Juris Secundumpulls the rug from under their
feet. 
It is extremely doubtful that the Lambino Group prepared, printed,
circulated, from February to August 2006 during the signature-
gathering period, the draft of the petition or amended petition they
filed later with the COMELEC. The Lambino Group are less than
candid with this Court in their belated claim that they printed and
circulated, together with the signature sheets, the petition or
amended petition. Nevertheless, even assuming the Lambino
Group circulated the amended petition during the signature-
gathering period, the Lambino Group admitted circulating
only very limited copies of the petition. 
During the oral arguments, Atty. Lambino expressly
admitted that they printed only 100,000 copies of the draft
petition they filed more than six months later with the
COMELEC. Atty. Lambino added that he also asked other
supporters to print additional copies of the draft petition but he
other supporters printed. Atty. Lambino could only assure this
Court of the printing of 100,000 copies because he himself
caused the printing of these 100,000 copies. 
Likewise, in the Lambino Group's Memorandum filed on 11
October 2006, the Lambino Group expressly admits that
"petitioner Lambino initiated the printing and reproduction of
100,000 copies of the petition for initiative x x x."25 This
admission binds the Lambino Group and establishes beyond
any doubt that the Lambino Group failed to show the full text
of the proposed changes to the great majority of the people
who signed the signature sheets.  the signature sheets did not see the full text of the proposed
Thus, of the 6.3 million signatories, only 100,000 signatories
could have received with certainty one copy each of the petition,
assuming a 100 percent distribution with no wastage. If Atty.
Lambino and company attached one copy of the petition to each
signature sheet, only 100,000 signature sheets could have
circulated with the petition. Each signature sheet contains space
for ten signatures. Assuming ten people signed each of these
100,000 signature sheets with the attached petition, the maximum
number of people who saw the petition before they signed the
signature sheets would not exceed 1,000,000.  parliamentary elections. Thus, the members of the
With only 100,000 printed copies of the petition, it would be
physically impossible for all or a great majority of the 6.3 million
signatories to have seen the petition before they signed the
signature sheets. The inescapable conclusion is that the
Lambino Group failed to show to the 6.3 million signatories
the full text of the proposed changes. If ever, not more than
one million signatories saw the petition before they signed the
signature sheets.
In any event, the Lambino Group's signature sheets do not
contain the full text of the proposed changes, either on the face of
the signature sheets, or as attachment with an indication in the
signature sheet of such attachment. Petitioner Atty. Lambino
admitted this during the oral arguments, and this admission
binds the Lambino Group. This fact is also obvious from a
mere reading of the signature sheet. This omission is fatal.
The failure to so include the text of the proposed changes in the
signature sheets renders the initiative void for non-compliance
with the constitutional requirement that the amendment must be
"directly proposed by the people through initiative upon a
petition." The signature sheet is not the "petition" envisioned in
the initiative clause of the Constitution. 
For sure, the great majority of the 6.3 million people who signed
changes before signing. They could not have known the nature
and effect of the proposed changes, among which are: 
1. The term limits on members of the legislature will
be lifted and thus members of Parliament can be re-
elected indefinitely;26
2. The interim Parliament can continue to function
indefinitely until its members, who are almost all the
present members of Congress, decide to call for new
interim Parliament will determine the expiration of
their own term of office; 27
3. Within 45 days from the ratification of the proposed
changes, the interim Parliament shall convene to
propose further amendments or revisions to the
Constitution.28
These three specific amendments are not stated or even
indicated in the Lambino Group's signature sheets. The people
who signed the signature sheets had no idea that they were
proposing these amendments. These three proposed changes
are highly controversial. The people could not have inferred or
divined these proposed changes merely from a reading or
rereading of the contents of the signature sheets. 
During the oral arguments, petitioner Atty. Lambino stated that he
and his group assured the people during the signature-
gathering that the elections for the regular Parliament would
be held during the 2007 local elections if the proposed
changes were ratified before the 2007 local elections. However,
the text of the proposed changes belies this. 
The proposed Section 5(2), Article XVIII on Transitory Provisions,
as found in the amended petition, states:
Section 5(2). The interim Parliament shall provide for the
election of the members of Parliament, which shall be
synchronized and held simultaneously with the
election of all local government officials. x x x x
(Emphasis supplied)
Section 5(2) does not state that the elections for the regular
Parliament will be held simultaneously with the 2007 local
elections. This section merely requires that the elections for the
regular Parliament shall be held simultaneously with the local
elections without specifying the year.  mandate the interim Parliament to make further amendments or
Petitioner Atty. Lambino, who claims to be the principal drafter of
the proposed changes, could have easily written the word "next"
before the phrase "election of all local government officials." This
would have insured that the elections for the regular Parliament
would be held in the next local elections following the ratification
of the proposed changes. However, the absence of the word
"next" allows the interim Parliament to schedule the elections for
the regular Parliament simultaneously with any future local
elections. 
Thus, the members of the interim Parliament will decide the
expiration of their own term of office. This allows incumbent
members of the House of Representatives to hold office beyond
their current three-year term of office, and possibly even beyond
the five-year term of office of regular members of the
Parliament. Certainly, this is contrary to the representations
of Atty. Lambino and his group to the 6.3 million people who
signed the signature sheets. Atty. Lambino and his group
deceived the 6.3 million signatories, and even the entire
nation.  people in a dilemma since they can answer only either yes or no
This lucidly shows the absolute need for the people to sign an
initiative petition that contains the full text of the proposed
amendments to avoid fraud or misrepresentation. In the present
initiative, the 6.3 million signatories had to rely on the verbal
representations of Atty. Lambino and his group because the
signature sheets did not contain the full text of the proposed
changes. The result is a grand deception on the 6.3 million
signatories who were led to believe that the proposed changes
would require the holding in 2007 of elections for the regular
Parliament simultaneously with the local elections. 
The Lambino Group's initiative springs another surprise on the
people who signed the signature sheets. The proposed changes
revisions to the Constitution. The proposed Section 4(4), Article
XVIII on Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of
these amendments, the interim Parliament shall convene
to propose amendments to, or revisions of, this
Constitution consistent with the principles of local
autonomy, decentralization and a strong bureaucracy.
(Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this
provision is a "surplusage" and the Court and the people should
simply ignore it. Far from being a surplusage, this provision
invalidates the Lambino Group's initiative. 
Section 4(4) is a subject matter totally unrelated to the shift from
the Bicameral-Presidential to the Unicameral-Parliamentary
system. American jurisprudence on initiatives outlaws this
as logrolling - when the initiative petition incorporates an
unrelated subject matter in the same petition. This puts the
to the entire proposition, forcing them to sign a petition that
effectively contains two propositions, one of which they may find
unacceptable. 
Under American jurisprudence, the effect of logrolling is to nullify
the entire proposition and not only the unrelated subject matter.
Thus, in Fine v. Firestone,29 the Supreme Court of Florida
declared:
Combining multiple propositions into one proposal
constitutes "logrolling," which, if our judicial
responsibility is to mean anything, we cannot permit.
The very broadness of the proposed amendment
amounts to logrolling because the electorate cannot know
what it is voting on - the amendment's proponents'
simplistic explanation reveals only the tip of the iceberg. x
x x x The ballot must give the electorate fair notice of the
proposed amendment being voted on. x x x x The ballot
language in the instant case fails to do that. The very
broadness of the proposal makes it impossible to state
what it will affect and effect and violates the requirement
that proposed amendments embrace only one subject.
(Emphasis supplied)  discretion whether to amend or revise again the Constitution.
Logrolling confuses and even deceives the people. In Yute Air
Alaska v. McAlpine,30 the Supreme Court of Alaska warned
against "inadvertence, stealth and fraud" in logrolling: 
Whenever a bill becomes law through the initiative process, all of
the problems that the single-subject rule was enacted to prevent
are exacerbated. There is a greater danger of logrolling, or the
deliberate intermingling of issues to increase the likelihood of an
initiative's passage, and there is a greater opportunity for
"inadvertence, stealth and fraud" in the enactment-by-
initiative process. The drafters of an initiative operate
independently of any structured or supervised process. They
often emphasize particular provisions of their proposition, while
remaining silent on other (more complex or less appealing)
provisions, when communicating to the public. x x x Indeed,
initiative promoters typically use simplistic advertising to
present their initiative to potential petition-signers and
eventual voters. Many voters will never read the full text of the
initiative before the election. More importantly, there is no process
for amending or splitting the several provisions in an initiative
proposal. These difficulties clearly distinguish the initiative from
the legislative process. (Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for
further amendments or revisions to be undertaken by the interim
Parliament as a constituent assembly. The people who signed the
signature sheets could not have known that their signatures
would be used to propose an amendment mandating the interim
Parliament to propose further amendments or revisions to the
Constitution. 
Apparently, the Lambino Group inserted the proposed Section
4(4) to compel the interim Parliament to amend or revise again
the Constitution within 45 days from ratification of the proposed
changes, or before the May 2007 elections. In the absence of
the proposed Section 4(4), the interim Parliament has the
With the proposed Section 4(4), the initiative proponents want the
interim Parliament mandated to immediately amend or revise
again the Constitution. 
However, the signature sheets do not explain the reason for this
rush in amending or revising again so soon the Constitution. The
signature sheets do not also explain what specific amendments
or revisions the initiative proponents want the interim Parliament
to make, and why there is a need for such further amendments or
revisions. The people are again left in the dark to fathom the
nature and effect of the proposed changes. Certainly, such an
initiative is not "directly proposed by the people" because the
people do not even know the nature and effect of the proposed
changes. 
There is another intriguing provision inserted in the Lambino
Group's amended petition of 30 August 2006. The proposed
Section 4(3) of the Transitory Provisions states: 
 Section 4(3). Senators whose term of office ends in 2010
shall be members of Parliament until noon of the thirtieth
day of June 2010.
After 30 June 2010, not one of the present Senators will remain
as member of Parliament if the interim Parliament does not
schedule elections for the regular Parliament by 30 June 2010.
However, there is no counterpart provision for the present
members of the House of Representatives even if their term of
office will all end on 30 June 2007, three years earlier than that of
half of the present Senators. Thus, all the present members of the
House will remain members of the interim Parliament after 30
June 2010. 
The term of the incumbent President ends on 30 June 2010.
Thereafter, the Prime Minister exercises all the powers of the
President. If the interim Parliament does not schedule elections
for the regular Parliament by 30 June 2010, the Prime Minister
will come only from the present members of the House of
Representatives to the exclusion of the present Senators.  2. The Initiative Violates Section 2, Article XVII of the
The signature sheets do not explain this discrimination against
the Senators. The 6.3 million people who signed the signature
sheets could not have known that their signatures would be
used to discriminate against the Senators. They could not
have known that their signatures would be used to limit, after
30 June 2010, the interim Parliament's choice of Prime
Minister only to members of the existing House of
Representatives.
An initiative that gathers signatures from the people without first
showing to the people the full text of the proposed amendments
is most likely a deception, and can operate as a gigantic fraud
on the people. That is why the Constitution requires that an
initiative must be "directly proposed by the people x x x in a
petition" - meaning that the people must sign on a petition that
contains the full text of the proposed amendments. On so vital an
issue as amending the nation's fundamental law, the writing of the
text of the proposed amendments cannot be hidden from the
people under a general or special power of attorney to unnamed,
faceless, and unelected individuals. 
The Constitution entrusts to the people the power to directly
propose amendments to the Constitution. This Court trusts the
wisdom of the people even if the members of this Court do not
personally know the people who sign the petition. However, this
trust emanates from a fundamental assumption: the full text
of the proposed amendment is first shown to the people
before they sign the petition, not after they have signed the
petition. 
In short, the Lambino Group's initiative is void and
unconstitutional because it dismally fails to comply with the
requirement of Section 2, Article XVII of the Constitution that the
initiative must be "directly proposed by the people through
initiative upon a petition."
Constitution Disallowing Revision through Initiatives
A people's initiative to change the Constitution applies only to an
amendment of the Constitution and not to its revision. In contrast,
Congress or a constitutional convention can propose both
amendments and revisions to the Constitution. Article XVII of the
Constitution provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of, this
Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its
Members, or
 (2) A constitutional convention.  the theory that this matter of initiative, which came about
because of the extraordinary developments this year, has
Sec. 2. Amendments to this Constitution may likewise to be separated from the traditional modes of amending
be directly proposed by the people through initiative x x x. the Constitution as embodied in Section 1. The
(Emphasis supplied) committee members felt that this system of initiative
should be limited to amendments to the Constitution
Article XVII of the Constitution speaks of three modes of and should not extend to the revision of the entire
amending the Constitution. The first mode is through Congress Constitution, so we removed it from the operation of
upon three-fourths vote of all its Members. The second mode is Section 1 of the proposed Article on Amendment or
through a constitutional convention. The third mode is through a Revision. x x x x
people's initiative. 
x x x x 
Section 1 of Article XVII, referring to the first and second modes,
applies to "[A]ny amendment to, or revision of, this Constitution." MS. AQUINO: [I] am seriously bothered by providing this
In contrast, Section 2 of Article XVII, referring to the third mode, process of initiative as a separate section in the Article on
applies only to "[A]mendments to this Constitution." This Amendment. Would the sponsor be amenable to
distinction was intentional as shown by the following accepting an amendment in terms of realigning Section 2
deliberations of the Constitutional Commission:  as another subparagraph (c) of Section 1, instead of
setting it up as another separate section as if it were a
MR. SUAREZ: Thank you, Madam President.  self-executing provision?

May we respectfully call the attention of the Members of MR. SUAREZ: We would be amenable except that, as we
the Commission that pursuant to the mandate given to us clarified a while ago, this process of initiative is limited
last night, we submitted this afternoon a complete to the matter of amendment and should not expand
Committee Report No. 7 which embodies the proposed into a revision which contemplates a total overhaul of
provision governing the matter of initiative. This is now the Constitution. That was the sense that was conveyed
covered by Section 2 of the complete committee report. by the Committee.
With the permission of the Members, may I quote Section
2:  MS. AQUINO: In other words, the Committee was
attempting to distinguish the coverage of modes (a)
The people may, after five years from the date of the last and (b) in Section 1 to include the process of
plebiscite held, directly propose amendments to this revision; whereas, the process of initiation to amend,
Constitution thru initiative upon petition of at least ten which is given to the public, would only apply to
percent of the registered voters.  amendments?

This completes the blanks appearing in the original MR. SUAREZ: That is right. Those were the terms
Committee Report No. 7. This proposal was suggested on envisioned in the Committee.
 MS. AQUINO: I thank the sponsor; and thank you,
Madam President.
xxxx
MR. MAAMBONG: My first question: Commissioner
Davide's proposed amendment on line 1 refers to
"amendments." Does it not cover the word "revision"
as defined by Commissioner Padilla when he made
the distinction between the words "amendments" and
"revision"?
MR. DAVIDE: No, it does not, because "amendments"
and "revision" should be covered by Section 1. So
insofar as initiative is concerned, it can only relate to
"amendments" not "revision."
Likewise, the Supreme Court of Oregon ruled in Holmes v.
Appling:33
MR. MAAMBONG: Thank you.  (Emphasis supplied)
31
the proposing and the adopting or rejecting of 'laws
and amendments to the Constitution' and does not
purport to extend to a constitutional revision. x x x x It
is thus clear that a revision of the Constitution may be
accomplished only through ratification by the people of a
revised constitution proposed by a convention called for
that purpose as outlined hereinabove. Consequently if the
scope of the proposed initiative measure (hereinafter
termed 'the measure') now before us is so broad that if
such measure became law a substantial revision of our
present state Constitution would be effected, then the
measure may not properly be submitted to the electorate
until and unless it is first agreed upon by a constitutional
convention, and the writ sought by petitioner should issue.
x x x x (Emphasis supplied)

It is well established that when a constitution specifies the

There can be no mistake about it. The framers of the
manner in which it may be amended or revised, it can be
Constitution intended, and wrote, a clear distinction between
altered by those who favor amendments, revision, or
"amendment" and "revision" of the Constitution. The
other change only through the use of one of the specified
framers intended, and wrote, that only Congress or a
means. The constitution itself recognizes that there is a
constitutional convention may propose revisions to the
difference between an amendment and a revision; and it
Constitution. The framers intended, and wrote, that a people's
is obvious from an examination of the measure here in
initiative may propose only amendments to the Constitution.
question that it is not an amendment as that term is
Where the intent and language of the Constitution clearly withhold
generally understood and as it is used in Article IV,
from the people the power to propose revisions to the
Section 1. The document appears to be based in large
Constitution, the people cannot propose revisions even as they
part on the revision of the constitution drafted by the
are empowered to propose amendments. 
'Commission for Constitutional Revision' authorized by the
1961 Legislative Assembly, x x x and submitted to the
This has been the consistent ruling of state supreme courts in the 1963 Legislative Assembly. It failed to receive in the
United States. Thus, in McFadden v. Jordan,32the Supreme Assembly the two-third's majority vote of both houses
Court of California ruled:  required by Article XVII, Section 2, and hence failed of
adoption, x x x. 
The initiative power reserved by the people by
amendment to the Constitution x x x applies only to
 While differing from that document in material respects,
the measure sponsored by the plaintiffs is, nevertheless,
a thorough overhauling of the present constitution x x x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not
such a measure as can be submitted to the people
through the initiative. If a revision, it is subject to the
requirements of Article XVII, Section 2(1); if a new
constitution, it can only be proposed at a convention
called in the manner provided in Article XVII, Section 1. x
xxx
Similarly, in this jurisdiction there can be no dispute that a
people's initiative can only propose amendments to the
Constitution since the Constitution itself limits initiatives to
amendments. There can be no deviation from the constitutionally
prescribed modes of revising the Constitution. A popular clamor,
even one backed by 6.3 million signatures, cannot justify a
deviation from the specific modes prescribed in the Constitution
itself.  difference in this manner:
As the Supreme Court of Oklahoma ruled in In re Initiative
Petition No. 364:34
It is a fundamental principle that a constitution can
only be revised or amended in the manner prescribed
by the instrument itself, and that any attempt to revise
a constitution in a manner other than the one
provided in the instrument is almost invariably
treated as extra-constitutional and revolutionary. x x x
x "While it is universally conceded that the people are
sovereign and that they have power to adopt a
constitution and to change their own work at will, they
must, in doing so, act in an orderly manner and according
to the settled principles of constitutional law. And where
the people, in adopting a constitution, have prescribed the
method by which the people may alter or amend it, an
attempt to change the fundamental law in violation of the
self-imposed restrictions, is unconstitutional." x x x x
(Emphasis supplied)
This Court, whose members are sworn to defend and protect the
Constitution, cannot shirk from its solemn oath and duty to insure
compliance with the clear command of the Constitution ― that a
people's initiative may only amend, never revise, the
Constitution. 
The question is, does the Lambino Group's initiative constitute an
amendment or revision of the Constitution? If the Lambino
Group's initiative constitutes a revision, then the present petition
should be dismissed for being outside the scope of Section 2,
Article XVII of the Constitution. 
Courts have long recognized the distinction between an
amendment and a revision of a constitution. One of the earliest
cases that recognized the distinction described the fundamental
 
[T]he very term "constitution" implies an instrument of a
permanent and abiding nature, and the provisions
contained therein for its revision indicate the will of
the people that the underlying principles upon which
it rests, as well as the substantial entirety of the
instrument, shall be of a like permanent and abiding
nature. On the other hand, the significance of the term
"amendment" implies such an addition or change within
the lines of the original instrument as will effect an
improvement, or better carry out the purpose for which it
was framed.35 (Emphasis supplied)
Revision broadly implies a change that alters a basic principle
in the constitution, like altering the principle of separation of
powers or the system of checks-and-balances. There is also
revision if the change alters the substantial entirety of the
constitution, as when the change affects substantial
provisions of the constitution. On the other hand, amendment
broadly refers to a change that adds, reduces, or deletes
without altering the basic principle involved. Revision
generally affects several provisions of the constitution, while
amendment generally affects only the specific provision being
amended.
In California where the initiative clause allows amendments but
not revisions to the constitution just like in our Constitution, courts
have developed a two-part test: the quantitative test and the
qualitative test. The quantitative test asks whether the proposed
change is "so extensive in its provisions as to change directly the
'substantial entirety' of the constitution by the deletion or
alteration of numerous existing provisions."36 The court examines
only the number of provisions affected and does not consider the
degree of the change. 
The qualitative test inquires into the qualitative effects of the
proposed change in the constitution. The main inquiry is whether
the change will "accomplish such far reaching changes in the
nature of our basic governmental plan as to amount to a
revision."37 Whether there is an alteration in the structure of
government is a proper subject of inquiry. Thus, "a change in the
nature of [the] basic governmental plan" includes "change in its
fundamental framework or the fundamental powers of its
Branches."38 A change in the nature of the basic governmental
plan also includes changes that "jeopardize the traditional form of
government and the system of check and balances."39
Under both the quantitative and qualitative tests, the Lambino
Group's initiative is a revision and not merely an amendment.
Quantitatively, the Lambino Group's proposed changes overhaul
two articles - Article VI on the Legislature and Article VII on the
Executive - affecting a total of 105 provisions in the entire
Constitution.40Qualitatively, the proposed changes alter
substantially the basic plan of government, from presidential to
parliamentary, and from a bicameral to a unicameral legislature. 
A change in the structure of government is a revision of the
Constitution, as when the three great co-equal branches of
government in the present Constitution are reduced into two. This
alters the separation of powers in the Constitution. A shift
from the present Bicameral-Presidential system to a Unicameral-
Parliamentary system is a revision of the Constitution. Merging
the legislative and executive branches is a radical change in the
structure of government. 
The abolition alone of the Office of the President as the locus of
Executive Power alters the separation of powers and thus
constitutes a revision of the Constitution. Likewise, the abolition
alone of one chamber of Congress alters the system of checks-
and-balances within the legislature and constitutes a revision of
the Constitution. 
By any legal test and under any jurisdiction, a shift from a
Bicameral-Presidential to a Unicameral-Parliamentary system,
involving the abolition of the Office of the President and the
abolition of one chamber of Congress, is beyond doubt a revision,
not a mere amendment. On the face alone of the Lambino
Group's proposed changes, it is readily apparent that the changes
will radically alter the framework of government as set forth
in the Constitution. Father Joaquin Bernas, S.J., a leading
member of the Constitutional Commission, writes: 
An amendment envisages an alteration of one or a few specific
and separable provisions. The guiding original intention of an
amendment is to improve specific parts or to add new provisions
deemed necessary to meet new conditions or to suppress
specific portions that may have become obsolete or that are
judged to be dangerous. In revision, however, the guiding original
intention and plan contemplates a re-examination of the entire
document, or of provisions of the document which have over-all
implications for the entire document, to determine how and to
what extent they should be altered. Thus, for instance a switch
from the presidential system to a parliamentary system
would be a revision because of its over-all impact on the
entire constitutional structure. So would a switch from a
bicameral system to a unicameral system be because of its
effect on other important provisions of the
Constitution.41 (Emphasis supplied)
In Adams v. Gunter,42 an initiative petition proposed the
amendment of the Florida State constitution to shift from a
bicameral to a unicameral legislature. The issue turned on
whether the initiative "was defective and unauthorized where [the]
proposed amendment would x x x affect several other provisions
of [the] Constitution." The Supreme Court of Florida, striking down
the initiative as outside the scope of the initiative clause, ruled as
follows:
The proposal here to amend Section 1 of Article III of the
1968 Constitution to provide for a Unicameral
Legislature affects not only many other provisions of
the Constitution but provides for a change in the form
of the legislative branch of government, which has
been in existence in the United States Congress and in all
of the states of the nation, except one, since the earliest
days. It would be difficult to visualize a more
revolutionary change. The concept of a House and a
Senate is basic in the American form of government. It
would not only radically change the whole pattern of
government in this state and tear apart the whole
fabric of the Constitution, but would even affect the
physical facilities necessary to carry on government.
xxxx
We conclude with the observation that if such proposed
amendment were adopted by the people at the General
Election and if the Legislature at its next session should
fail to submit further amendments to revise and clarify the
numerous inconsistencies and conflicts which would
result, or if after submission of appropriate amendments
the people should refuse to adopt them, simple chaos
would prevail in the government of this State. The same
result would obtain from an amendment, for instance, of
Section 1 of Article V, to provide for only a Supreme Court
and Circuit Courts-and there could be other examples too
numerous to detail. These examples point unerringly to
the answer.
The purpose of the long and arduous work of the
hundreds of men and women and many sessions of the
Legislature in bringing about the Constitution of 1968 was
to eliminate inconsistencies and conflicts and to give the
State a workable, accordant, homogenous and up-to-date
document. All of this could disappear very quickly if we
were to hold that it could be amended in the manner
proposed in the initiative petition here.43(Emphasis
supplied)
The rationale of the Adams decision applies with greater force to
the present petition. The Lambino Group's initiative not only
seeks a shift from a bicameral to a unicameral legislature, it also
seeks to merge the executive and legislative departments. The
initiative in Adams did not even touch the executive department. 
In Adams, the Supreme Court of Florida enumerated 18 sections
of the Florida Constitution that would be affected by the shift from
a bicameral to a unicameral legislature. In the Lambino Group's
present initiative, no less than 105 provisions of the
Constitution would be affected based on the count of Associate
Justice Romeo J. Callejo, Sr.44 There is no doubt that the
Lambino Group's present initiative seeks far more radical
changes in the structure of government than the initiative
in Adams. 
The Lambino Group theorizes that the difference between
"amendment" and "revision" is only one of procedure, not of
substance. The Lambino Group posits that when a deliberative
body drafts and proposes changes to the Constitution,
substantive changes are called "revisions" because members of
the deliberative body work full-time on the changes.
However, the same substantive changes, when proposed through
an initiative, are called "amendments" because the changes are
made by ordinary people who do not make an "occupation,
profession, or vocation" out of such endeavor.
Thus, the Lambino Group makes the following exposition of their
theory in their Memorandum:
99. With this distinction in mind, we note that the
constitutional provisions expressly provide for both
"amendment" and "revision" when it speaks of legislators
and constitutional delegates, while the same provisions
expressly provide only for "amendment" when it speaks of
the people. It would seem that the apparent distinction is
based on the actual experience of the people, that on one
hand the common people in general are not expected to
work full-time on the matter of correcting the constitution
because that is not their occupation, profession or
vocation; while on the other hand, the legislators and
constitutional convention delegates are expected to work
full-time on the same matter because that is their
occupation, profession or vocation. Thus, the difference
between the words "revision" and "amendment"
pertain only to the process or procedure of coming
up with the corrections, for purposes of interpreting the
constitutional provisions.
100. Stated otherwise, the difference between
"amendment" and "revision" cannot reasonably be in
the substance or extent of the correction. x x x x
(Underlining in the original; boldfacing supplied)  revision of the constitution, but it does not affect
The Lambino Group in effect argues that if Congress or a
constitutional convention had drafted the same proposed
changes that the Lambino Group wrote in the present initiative,
the changes would constitute a revision of the Constitution. Thus,
the Lambino Group concedes that the proposed changes in
the present initiative constitute a revision if Congress or a
constitutional convention had drafted the changes. However,
since the Lambino Group as private individuals drafted the
proposed changes, the changes are merely amendments to the
Constitution. The Lambino Group trivializes the serious matter of
changing the fundamental law of the land. 
The express intent of the framers and the plain language of
the Constitution contradict the Lambino Group's theory. Where
the intent of the framers and the language of the Constitution are
clear and plainly stated, courts do not deviate from such
categorical intent and language.45 Any theory espousing a
construction contrary to such intent and language deserves scant
consideration. More so, if such theory wreaks havoc by creating
inconsistencies in the form of government established in the
Constitution. Such a theory, devoid of any jurisprudential mooring
and inviting inconsistencies in the Constitution, only exposes the
flimsiness of the Lambino Group's position. Any theory
advocating that a proposed change involving a radical structural
change in government does not constitute a revision justly
deserves rejection. 
The Lambino Group simply recycles a theory that initiative
proponents in American jurisdictions have attempted to advance
without any success. In Lowe v. Keisling,46 the Supreme Court of
Oregon rejected this theory, thus:
Mabon argues that Article XVII, section 2, does not apply
to changes to the constitution proposed by initiative. His
theory is that Article XVII, section 2 merely provides a
procedure by which the legislature can propose a
proposed revisions initiated by the people.
Plaintiffs argue that the proposed ballot measure
constitutes a wholesale change to the constitution that
cannot be enacted through the initiative process. They
assert that the distinction between amendment and
revision is determined by reviewing the scope and subject
matter of the proposed enactment, and that revisions are
not limited to "a formal overhauling of the constitution."
They argue that this ballot measure proposes far reaching
changes outside the lines of the original instrument,
including profound impacts on existing fundamental rights
and radical restructuring of the government's relationship
with a defined group of citizens. Plaintiffs assert that,
because the proposed ballot measure "will refashion the
most basic principles of Oregon constitutional law," the
trial court correctly held that it violated Article XVII, section
2, and cannot appear on the ballot without the prior
approval of the legislature.
We first address Mabon's argument that Article XVII,
section 2(1), does not prohibit revisions instituted by
initiative. In Holmes v. Appling, x x x, the Supreme Court
concluded that a revision of the constitution may not be
accomplished by initiative, because of the provisions of
Article XVII, section 2. After reviewing Article XVII,
section1, relating to proposed amendments, the court
said:
"From the foregoing it appears that Article IV, Section 1,
authorizes the use of the initiative as a means of
amending the Oregon Constitution, but it contains no
similar sanction for its use as a means of revising the
constitution." x x x x
It then reviewed Article XVII, section 2, relating
to revisions, and said: "It is the only section of the
constitution which provides the means for constitutional
revision and it excludes the idea that an individual,
through the initiative, may place such a measure before
the electorate." x x x x
Accordingly, we reject Mabon's argument that Article
XVII, section 2, does not apply to constitutional
revisions proposed by initiative. (Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory
which negates the express intent of the framers and the plain
language of the Constitution.
We can visualize amendments and revisions as a spectrum, at
one end green for amendments and at the other end red for
revisions. Towards the middle of the spectrum, colors fuse and
difficulties arise in determining whether there is an amendment or
revision. The present initiative is indisputably located at the far
end of the red spectrum where revision begins. The present
initiative seeks a radical overhaul of the existing separation of
powers among the three co-equal departments of government,
requiring far-reaching amendments in several sections and
articles of the Constitution. 
Where the proposed change applies only to a specific provision of
the Constitution without affecting any other section or article, the
change may generally be considered an amendment and not a
revision. For example, a change reducing the voting age from 18
years to 15 years47 is an amendment and not a revision. Similarly,
a change reducing Filipino ownership of mass media companies
from 100 percent to 60 percent is an amendment and not a
revision.48 Also, a change requiring a college degree as an
additional qualification for election to the Presidency is an
amendment and not a revision.49
The changes in these examples do not entail any modification of
sections or articles of the Constitution other than the specific
provision being amended. These changes do not also affect the
structure of government or the system of checks-and-balances
among or within the three branches. These three examples are
located at the far green end of the spectrum, opposite the far red
end where the revision sought by the present petition is located.  Parliamentary system of government, in which case,
However, there can be no fixed rule on whether a change is an
amendment or a revision. A change in a single word of one
sentence of the Constitution may be a revision and not an
amendment. For example, the substitution of the word
"republican" with "monarchic" or "theocratic" in Section 1, Article
II50 of the Constitution radically overhauls the entire structure of
government and the fundamental ideological basis of the
Constitution. Thus, each specific change will have to be
examined case-by-case, depending on how it affects other
provisions, as well as how it affects the structure of government,
the carefully crafted system of checks-and-balances, and the
underlying ideological basis of the existing Constitution.  irreconcilable provisions until the earlier one "shall be amended,"
Since a revision of a constitution affects basic principles, or
several provisions of a constitution, a deliberative body with
recorded proceedings is best suited to undertake a revision. A
revision requires harmonizing not only several provisions, but
also the altered principles with those that remain unaltered. Thus,
constitutions normally authorize deliberative bodies like
constituent assemblies or constitutional conventions to undertake
revisions. On the other hand, constitutions allow people's
initiatives, which do not have fixed and identifiable deliberative
bodies or recorded proceedings, to undertake only amendments
and not revisions.
In the present initiative, the Lambino Group's proposed Section 2
of the Transitory Provisions states:
Section 2. Upon the expiration of the term of the
incumbent President and Vice President, with the
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of
the 1987 Constitution which shall hereby be amended
and Sections 18 and 24 which shall be deleted, all other
Sections of Article VI are hereby retained and
renumbered sequentially as Section 2, ad seriatim up to
26, unless they are inconsistent with the
they shall be amended to conform with a unicameral
parliamentary form of government; x x x x (Emphasis
supplied) 
The basic rule in statutory construction is that if a later law is
irreconcilably inconsistent with a prior law, the later law prevails.
This rule also applies to construction of constitutions. However,
the Lambino Group's draft of Section 2 of the Transitory
Provisions turns on its head this rule of construction by stating
that in case of such irreconcilable inconsistency, the earlier
provision "shall be amended to conform with a unicameral
parliamentary form of government." The effect is to freeze the two
which requires a future separate constitutional amendment. 
Realizing the absurdity of the need for such an amendment,
petitioner Atty. Lambino readily conceded during the oral
arguments that the requirement of a future amendment is a
"surplusage." In short, Atty. Lambino wants to reinstate the rule of
statutory construction so that the later provision automatically
prevails in case of irreconcilable inconsistency. However, it is not
as simple as that. 
The irreconcilable inconsistency envisioned in the proposed
Section 2 of the Transitory Provisions is not between a provision
in Article VI of the 1987 Constitution and a provision in the
proposed changes. The inconsistency is between a provision in
Article VI of the 1987 Constitution and the "Parliamentary
system of government," and the inconsistency shall be resolved
in favor of a "unicameral parliamentary form of government." 
Now, what "unicameral parliamentary form of government" do
the Lambino Group's proposed changes refer to ― the
Bangladeshi, Singaporean, Israeli, or New Zealand models,
which are among the few countries with unicameral
parliaments? The proposed changes could not possibly refer to
the traditional and well-known parliamentary forms of government
― the British, French, Spanish, German, Italian, Canadian,
Australian, or Malaysian models, which have
all bicameral parliaments. Did the people who signed the
signature sheets realize that they were adopting the Bangladeshi,
Singaporean, Israeli, or New Zealand parliamentary form of
government?  Nevertheless, even assuming that RA 6735 is valid to implement
This drives home the point that the people's initiative is not meant
for revisions of the Constitution but only for amendments. A shift
from the present Bicameral-Presidential to a Unicameral-
Parliamentary system requires harmonizing several provisions in
many articles of the Constitution. Revision of the Constitution
through a people's initiative will only result in gross absurdities in
the Constitution.  Even then, the present initiative violates Section 5(b) of RA 6735
In sum, there is no doubt whatsoever that the Lambino Group's
initiative is a revision and not an amendment. Thus, the present
initiative is void and unconstitutional because it violates Section 2,
Article XVII of the Constitution limiting the scope of a people's
initiative to "[A]mendments to this Constitution."
3. A Revisit of Santiago v. COMELEC is Not Necessary
The present petition warrants dismissal for failure to comply with
the basic requirements of Section 2, Article XVII of the
Constitution on the conduct and scope of a people's initiative to
amend the Constitution. There is no need to revisit this Court's
ruling in Santiago declaring RA 6735 "incomplete, inadequate or
wanting in essential terms and conditions" to cover the system of
initiative to amend the Constitution. An affirmation or reversal
of Santiago will not change the outcome of the present petition.
Thus, this Court must decline to revisit Santiago which effectively
ruled that RA 6735 does not comply with the requirements of the
Constitution to implement the initiative clause on amendments to
the Constitution.  one (1) subject shall be submitted to the electorate; x x x."
This Court must avoid revisiting a ruling involving the
constitutionality of a statute if the case before the Court can be
resolved on some other grounds. Such avoidance is a logical
consequence of the well-settled doctrine that courts will not pass
upon the constitutionality of a statute if the case can be resolved
on some other grounds.51
the constitutional provision on initiatives to amend the
Constitution, this will not change the result here because the
present petition violates Section 2, Article XVII of the Constitution.
To be a valid initiative, the present initiative must first
comply with Section 2, Article XVII of the Constitution even
before complying with RA 6735.
which requires that the "petition for an initiative on the 1987
Constitution must have at least twelve per centum (12%) of the
total number of registered voters as signatories." Section 5(b) of
RA 6735 requires that the people must sign the "petition x x x as
signatories."
The 6.3 million signatories did not sign the petition of 25 August
2006 or the amended petition of 30 August 2006 filed with the
COMELEC. Only Atty. Lambino, Atty. Demosthenes B.
Donato, and Atty. Alberto C. Agra signed the petition and
amended petition as counsels for "Raul L. Lambino and
Erico B. Aumentado, Petitioners." In the COMELEC, the
Lambino Group, claiming to act "together with" the 6.3 million
signatories, merely attached the signature sheets to the petition
and amended petition. Thus, the petition and amended petition
filed with the COMELEC did not even comply with the basic
requirement of RA 6735 that the Lambino Group claims as valid. 
The Lambino Group's logrolling initiative also violates Section
10(a) of RA 6735 stating, "No petition embracing more than
The proposed Section 4(4) of the Transitory Provisions,
mandating the interim Parliament to propose further amendments
or revisions to the Constitution, is a subject matter totally
unrelated to the shift in the form of government. Since the present
initiative embraces more than one subject matter, RA 6735
prohibits submission of the initiative petition to the electorate.
Thus, even if RA 6735 is valid, the Lambino Group's initiative will
still fail.  the same cavalier and unconstitutional fashion. A revolving-door
4. The COMELEC Did Not Commit Grave Abuse of Discretion
in Dismissing the Lambino Group's Initiative
In dismissing the Lambino Group's initiative petition, the
COMELEC en banc merely followed this Court's ruling
in Santiago and People's Initiative for Reform, Modernization
and Action (PIRMA) v. COMELEC.52 For following this Court's
ruling, no grave abuse of discretion is attributable to the
COMELEC. On this ground alone, the present petition warrants
outright dismissal. Thus, this Court should reiterate
its unanimous ruling in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave
abuse of discretion could be attributed to the public
respondent COMELEC in dismissing the petition filed by
PIRMA therein, it appearing that it only complied with the
dispositions in the Decisions of this Court in G.R. No.
127325, promulgated on March 19, 1997, and its
Resolution of June 10, 1997.
5. Conclusion  Incantations of "people's voice," "people's sovereign will," or "let
The Constitution, as the fundamental law of the land, deserves
the utmost respect and obedience of all the citizens of this nation.
No one can trivialize the Constitution by cavalierly amending or
revising it in blatant violation of the clearly specified modes of
amendment and revision laid down in the Constitution itself.  signatures through false promises. Then, the Constitution ceases
To allow such change in the fundamental law is to set adrift the
Constitution in unchartered waters, to be tossed and turned by
every dominant political group of the day. If this Court allows
today a cavalier change in the Constitution outside the
constitutionally prescribed modes, tomorrow the new dominant
political group that comes will demand its own set of changes in
constitution does not augur well for the rule of law in this country. 
An overwhelming majority − 16,622,111 voters comprising 76.3
percent of the total votes cast53 − approved our Constitution in
a national plebiscite held on 11 February 1987. That approval is
the unmistakable voice of the people, the full expression of
the people's sovereign will. That approval included the
prescribed modes for amending or revising the Constitution.
No amount of signatures, not even the 6,327,952 million
signatures gathered by the Lambino Group, can change our
Constitution contrary to the specific modes that the people, in
their sovereign capacity, prescribed when they ratified the
Constitution. The alternative is an extra-constitutional change,
which means subverting the people's sovereign will and
discarding the Constitution. This is one act the Court cannot
and should never do. As the ultimate guardian of the Constitution,
this Court is sworn to perform its solemn duty to defend and
protect the Constitution, which embodies the real sovereign will of
the people.
the people decide" cannot override the specific modes of
changing the Constitution as prescribed in the Constitution itself.
Otherwise, the Constitution ― the people's fundamental covenant
that provides enduring stability to our society ― becomes easily
susceptible to manipulative changes by political groups gathering
to be the bedrock of the nation's stability. 
The Lambino Group claims that their initiative is the "people's RAUL L. LAMBINO AND ERICO B. AUMENTADO, TOGETHER
voice." However, the Lambino Group unabashedly states in ULAP WITH 6,327,952 REGISTERED VOTERS V. COMMISSION ON
Resolution No. 2006-02, in the verification of their petition with the ELECTIONS ET AL.
COMELEC, that "ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for SEPARATE CONCURRING OPINION
constitutional reforms." The Lambino Group thus admits that their
"people's" initiative is an "unqualified support to the agenda" of PANGANIBAN, CJ.:
the incumbent President to change the Constitution. This
forewarns the Court to be wary of incantations of "people's voice"
or "sovereign will" in the present initiative.  Without the rule of law, there can be no lasting prosperity and certainly no
liberty.
This Court cannot betray its primordial duty to defend and protect
the Constitution. The Constitution, which embodies the people's Beverley McLachlin 1
sovereign will, is the bible of this Court. This Court exists to Chief Justice of Canada
defend and protect the Constitution. To allow this
constitutionally infirm initiative, propelled by deceptively gathered
signatures, to alter basic principles in the Constitution is to allow a After a deep reflection on the issues raised and a careful
desecration of the Constitution. To allow such alteration and evaluation of the parties' respective arguments -- both oral and
desecration is to lose this Court's raison d'etre.  written -- as well as the enlightened and enlightening Opinions
submitted by my esteemed colleagues, I am fully convinced that
WHEREFORE, we DISMISS the petition in G.R. No. 174153.  the present Petition must be dismissed.

SO ORDERED. I write, however, to show that my present disposition is

completely consistent with my previous Opinions and votes on
the two extant Supreme Court cases involving an initiative to
Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago,
change the Constitution.
Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio Morales,
Callejo, Sr., Azcuna, Tinga, Chico-Nazario, Garcia, and Velasco,
Jr., JJ., concur. In my Separate Opinion in Santiago v. Comelec,2 I opined "that
taken together and interpreted properly and liberally, the
Constitution (particularly Art. XVII, Sec. 2), Republic Act 6735 and
____________________
Comelec Resolution 2300 provide more than sufficient 
EN BANC
__________________
G.R. No. 174153 October 25, 2006
'SEC. 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number
of registered voters, of which every legislative district
must be represented by at least three per centum of the
registered voters therein. No amendment under this
section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every
five years thereafter.'
"With all due respect, I find the majority's position all too
sweeping and all too extremist. It is equivalent to burning
the whole house to exterminate the rats, and to killing the
patient to relieve him of pain. What Citizen Delfin wants
the Comelec to do we should reject. But we should not
thereby preempt any future effort to exercise the right of
initiative correctly and judiciously. The fact that the Delfin
Petition proposes a misuse of initiative does not justify a
ban against its proper use. Indeed, there is a right way to
do the right thing at the right time and for the right reason.
Taken Together and Interpreted Properly,  to amend the Constitution."
the Constitution, R.A. 6735 and Comelec Resolution 
2300 Are Sufficient to Implement Constitutional
Initiatives
"While R.A. 6735 may not be a perfect law, it was — as
the majority openly concedes — intended by the
legislature to cover and, I respectfully submit, it contains
enough provisions to effectuate an initiative on the
Constitution. I completely agree with the inspired and
inspiring opinions of Mr. Justice Reynato S. Puno and Mr.
Justice Ricardo J. Francisco that RA 6735, the Roco law
on initiative, sufficiently implements the right of the people
to initiate amendments to the Constitution. Such views,
which I shall no longer repeat nor elaborate on, are
thoroughly consistent with this Court's unanimous en
banc rulings in Subic Bay Metropolitan Authority vs.
Commission on Elections, that "provisions for initiative . . .
are (to be) liberally construed to effectuate their purposes,
to facilitate and not hamper the exercise by the voters of
the rights granted thereby"; and in Garcia vs. Comelec,
that any "effort to trivialize the effectiveness of people's
initiatives ought to be rejected."
"No law can completely and absolutely cover all
administrative details. In recognition of this, R.A. 6735
wisely empowered the Commission on Election "to
promulgate such rules and regulations as may be
necessary to carry out the purposes of this Act." And
pursuant thereto, the Comelec issued its Resolution 2300
on 16 January 1991. Such Resolution, by its very words,
was promulgated "to govern the conduct of initiative on
the Constitution and initiative and referendum on national
and local laws," not by the incumbent Commission on
Elections but by one then composed of Acting
Chairperson Haydee B. Yorac, Comms. Alfredo 
authority to implement, effectuate and realize our people's power
__________________
E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario
C. Rama and Magdara B. Dimaampao. All of these
Commissioners who signed Resolution 2300 have retired
from the Commission, and thus we cannot ascribe any
vile motive unto them, other than an honest, sincere and
exemplary effort to give life to a cherished right of our
people.
"The majority argues that while Resolution 2300 is valid in
regard to national laws and local legislations, it is void in
reference to constitutional amendments. There is no basis
for such differentiation. The source of and authority for the
Resolution is the same law, R.A. 6735.
"I respectfully submit that taken together and interpreted
properly and liberally, the Constitution (particularly Art.
XVII, Sec. 2), R.A. 6735 and Comelec Resolution 2300
provide more than sufficient authority to implement,
effectuate and realize our people's power to amend the
Constitution.
Petitioner Delfin and the Pedrosa
Spouses Should Not Be Muzzled
"I am glad the majority decided to heed our plea to lift the
temporary restraining order issued by this Court on 18
December 1996 insofar as it prohibited Petitioner Delfin
and the Spouses Pedrosa from exercising their right of
initiative. In fact, I believe that such restraining order as
against private respondents should not have been issued,
in the first place. While I agree that the Comelec should
be stopped from using public funds and government
resources to help them gather signatures, I firmly believe
that this Court has no power to restrain them from
exercising their right of initiative. The right to propose
amendments to the Constitution is really a species of the
right of free speech and free assembly. And certainly, it
would be tyrannical and despotic to stop anyone from
speaking freely and persuading others to conform to
his/her beliefs. As the eminent Voltaire once said, 'I may
disagree with what you say, but I will defend to the death
your right to say it.' After all, freedom is not really for the
thought we agree with, but as Justice Holmes wrote,
'freedom for the thought that we hate.'  would have been struck down as grave abuse of
Epilogue
"By way of epilogue, let me stress the guiding tenet of my
Separate Opinion. Initiative, like referendum and recall, is
a new and treasured feature of the Filipino constitutional
system. All three are institutionalized legacies of the
world-admired EDSA people power. Like elections and
plebiscites, they are hallowed expressions of popular
sovereignty. They are sacred democratic rights of our
people to be used as 
Six months after, in my Separate Opinion in People's Initiative for
Reform, Modernization and Action (PIRMA) v. Comelec,3 I joined
the rest of the members of the Court in ruling "by a unanimous
vote, that no grave abuse of discretion could be attributed to the
Comelec in dismissing the petition filed by 
__________________
Constitution x x x." While concededly, petitioners in this
case were not direct parties in Santiago, nonetheless the
Court's injunction against the Comelec covered ANY
petition, not just the Delfin petition which was the
immediate subject of said case. As a dissenter in
Santiago, I believed, and still do, that the majority
gravely erred in rendering such a sweeping
injunction, but I cannot fault the Comelec for
complying with the ruling even if it, too, disagreed
with said decision's ratio decidendi. Respondent
Comelec was directly enjoined by the highest Court
of the land. It had no choice but to obey. Its
obedience cannot constitute grave abuse of
discretion. Refusal to act on the PIRMA petition was the
only recourse open to the Comelec. Any other mode of
action would have constituted defiance of the Court and
discretion and contumacious disregard of this Court's
supremacy as the final arbiter of justiciable controversies. 
Second Issue:
Sufficiency of RA 6735
"I repeat my firm legal position that RA 6735 is
adequate to cover initiatives on the Constitution, and
that whatever administrative details may have been
 omitted in said law are satisfactorily provided by __________________
Comelec Resolution 2300. The promulgation of
Resolution 2300 is sanctioned by Section 2, Article IX-C sovereignty. And this Court as a matter of policy and
of the Constitution, which vests upon the Comelec the doctrine will exert every effort to nurture, protect and
power to "enforce and administer all laws and regulations promote their legitimate exercise."
relative to the conduct of an election, plebiscite, initiative,
referendum and recall." The Omnibus Election Code The Right Way
likewise empowers the electoral body to "promulgate
rules and regulations implementing the provisions of this
"From the outset, I have already maintained the view that
Code or other laws which the Commission is required to
"taken together and interpreted properly and liberally, the
enforce and administer x x x." Finally and most relevantly,
Constitution (particularly Art. XVII, Sec. 2), RA 6735 and
Section 20 of Ra 6735 specifically authorizes Comelec "to
Comelec Resolution 2300 provide more than sufficient
promulgate rules and regulations as may be necessary to
authority to implement, effectuate and realize our people's
carry out the purposes of this Act."
power to amend the Constitution." Let me now
demonstrate the adequacy of RA 6735 by outlining, in
"In my dissent in Santiago, I wrote that "there is a right concrete terms, the steps to be taken – the right way – to
way to do the right thing at the right time and for amend the Constitution through a people's initiative.
the right reason." Let me explain further.
"Pursuant to Section 3(f) of the law, the Comelec shall
The Right Thing prescribe the form of the petition which shall contain the
proposition and the required number of signatories. Under
"A people's initiative is direct democracy in action. It is the Sec. 5(c) thereof, the petition shall state the following:
right thing that citizens may avail themselves of to
articulate their will. It is a new and treasured feature of the 'c.1 contents or text of the [provision or provisions]
Filipino constitutional system. Even the majority implicitly sought to be x x x amended, x x x;
conceded its value and worth in our legal firmament when
it implored Congress "not to tarry any longer in complying
c.2 the proposition [in full text];
with the constitutional mandate to provide for
implementation of the right (of initiative) of the people x x
x." Hence, in the en banc case of Subic Bay Metropolitan c.3 the reason or reasons therefor [fully and
Authority vs. Comelec, [G.R. No. 125416, September 26, clearly explained];
1996], this Court unanimously held that "(l)ike elections,
initiative and referendum are powerful and valuable c.4 that it is not one of exceptions provided herein;
modes of expressing popular 
c.5 signatures of the petitioners or registered
PIRMA therein," since the Commission had "only complied" with voters; and
the Santiago Decision.
 c.6 an abstract or summary proposition in not
more than one hundred (100) words which shall
be legibly written or printed at the top of every
page of the petition.'
"Section 8(f) of Comelec Resolution 2300 additionally
requires that the petition include a formal designation of
the duly authorized representatives of the signatories.
"Being a constitutional requirement, the number of
signatures becomes a condition precedent to the filing of
the petition, and is jurisdictional. Without such requisite
signatures, the Commission shall motu proprio reject the
petition.
"Where the initiators have substantially complied with the
above requirements, they may thence file the petition with
the Comelec which is tasked to determine the sufficiency
thereof and to verify the signatures on the basis of the
registry list of voters, voters' affidavits and voters'
identification cards. In deciding whether the petition is
sufficient, the Comelec shall also determine if the
proposition is proper for an initiative, i.e., if it consists of
an amendment, not a revision, of the Constitution. Any
decision of the electoral body may be appealed to the
Supreme Court within thirty (30) days from notice.
I added "that my position upholding the adequacy of RA 6735 and
the validity of Comelec Resolution 2300 will not ipso  extension who are in fact orchestrating such move to
__________________
"Within thirty (30) days from receipt of the petition, and
after the determination of its sufficiency, the Comelec
shall publish the same in Filipino and English at least
twice in newspapers of general and local circulation, and
set the date of the plebiscite. The conduct of the plebiscite
should not be earlier than sixty (60) days, but not later
than ninety (90) days after certification by the Comelec of
the sufficiency of the petition. The proposition, if approved
by a majority of the votes cast in the plebiscite, becomes
effective as of the day of the plebiscite.
"From the foregoing, it should be clear that my position
upholding the adequacy of RA 6735 and the validity of
Comelec Resolution 2300 will not ipso facto validate the
PIRMA petition and automatically lead to a plebiscite to
amend the Constitution. Far from it. Among others,
PIRMA must still satisfactorily hurdle the following
searching issues:
1. Does the proposed change – the lifting of the term
limits of elective officials -- constitute a mere amendment
and not a revision of the Constitution?
2. Which registry of voters will be used to verify the
signatures in the petition? This question is relevant
considering that under RA 8189, the old registry of voters
used in the 1995 national elections was voided after the
barangay elections on May 12, 1997, while the new list
may be used starting only in the elections of May 1998.
3. Does the clamor for the proposed change in the
Constitution really emanate from the people who signed
the petition for initiative? Or it is the beneficiaries of term
advance their own political self-interest?
4. Are the six million signatures genuine and verifiable?
Do they really belong to qualified warm bodies comprising
at least 12% of the registered voters nationwide, of which
every legislative district is represented by at least 3% of
the registered voters therein?
 "I shall expound on the third question in the next section,
The Right Reason. Question Nos. 1 and 2 above, while
important, are basically legal in character and can be
determined by argumentation and memoranda. However,
Question No. 4 involves not only legal issues but
gargantuan hurdles of factual determination. This to my
mind is the crucible, the litmus test, of a people's petition
for initiative. If herein petitioners, led by PIRMA, succeed
in proving -- not just alleging -- that six million voters of
this country indeed want to amend the Constitution, what
power on earth can stop them? Not this Court, not the
Comelec, not even the President or Congress.
facto validate the PIRMA petition and automatically lead to a
plebiscite to amend the Constitution. Far from it." I stressed that
PIRMA must show the following, among others:  misfeasance.' In Subic Bay, we specified that 'initiative is
__________________
"It took only one million people to stage a peaceful
revolution at EDSA, and the very rafters and foundations
of the martial law society trembled, quaked and crumbled.
On the other hand, PIRMA and its co-petitioners are
claiming that they have gathered six million signatures. If,
as claimed by many, these six million signatures are
fraudulent, then let them be exposed and damned for all
history in a signature-verification process conducted
under our open system of legal advocacy.
"More than anything else, it is the truth that I, as a
member of this Court and as a citizen of this country,
would like to seek: Are these six million signatures real?
By insisting on an entirely new doctrine of statutory
inadequacy, the majority effectively suppressed the quest
for that truth.
The Right Reason
"As mentioned, the third question that must be answered,
even if the adequacy of RA 6735 and the validity of
Comelec Resolution 2300 were upheld by the majority is:
Does the clamor for the proposed change to the
Constitution really emanate from the people who signed
the petition for initiative? Or is it the beneficiaries of term
extension who are in fact orchestrating such move to
advance their own political self-interests? In other words,
is PIRMA's exercise of the right to initiative being done in
accordance with our Constitution and our laws? Is such
attempted exercise legitimate?
"In Garcia vs. Commission on Elections, we described
initiative, along with referendum, as the 'ultimate weapon
of the people to negate government malfeasance and
entirely the work of the electorate x x x a process of
lawmaking by the people themselves without the
participation and against the wishes of their elected
representatives.' As ponente of Subic Bay, I stand
foursquare on this principle: The right to amend
through initiative belongs only to the people – not to
the government and its minions. This principle finds
clear support from utterances of many constitutional
commissioners like those quoted below:
"[Initiative is] a reserve power of the sovereign people,
when they are dissatisfied with the National Assembly x x
x [and] precisely a fallback position of the people in the
event that they are dissatisfied." -- Commissioner Ople
"[Initiative is] a check on a legislative that is not
responsive [and resorted to] only if the legislature is not
as responsive to the vital and urgent needs of people." --
Commissioner Gascon
(1) The proposed change -- the lifting of term limits of elective
officials -- "constitute[s] a mere amendment and not a revision of
the Constitution."
_________________
"[Initiative is an] extraordinary power given to the people
[and] reserved for the people [which] should not be
frivolously resorted to." -- Commissioner Romulo  changes thereto may be proposed. Section 2 of Article
"Indeed, if the powers-that-be desire to amend the
Constitution, or even to revise it, our Charter itself
provides them other ways of doing so, namely, by calling
a constitutional convention or constituting Congress into a
constituent assembly. These are officialdom's weapons.
But initiative belongs to the people.
"In the present case, are PIRMA and its co-petitioners
legitimate people's organizations or are they merely fronts
for incumbents who want to extend their terms? This is a
factual question which, unfortunately, cannot
be judicially answered anymore, because the Supreme
Court majority ruled that the law that implements it, RA
6735, is inadequate or insufficient insofar as initiatives to
the Constitutions are concerned. With such ruling, the
majority effectively abrogated a constitutional right of our
people. That is why in my Separate Opinion in Santiago, I
exclaimed that such precipitate action "is equivalent to
burning the whole house to exterminate the rats, and to
killing the patient to relieve him of pain." I firmly maintain
that to defeat PIRMA's effort, there is no need to "burn"
the constitutional right to initiative. If PIRMA's exercise is
not "legitimate," it can be exposed as such in the ways I
have discussed – short of abrogating the right itself. On
the other hand, if PIRMA's position is proven to be
legitimate – if it hurdles the four issues I outlined earlier –
by all means, we should allow and encourage it. But the
majority's theory of statutory inadequacy has pre-empted
– unnecessarily and invalidly, in my view – any judicial
determination of such legitimacy or illegitimacy. It has
silenced the quest for truth into the interstices of the
PIRMA petition.
The Right Time
"The Constitution itself sets a time limitation on when
XVII precludes amendments "within five years following
[its] ratification x x x nor oftener than once every five
years thereafter." Since its ratification, the 1987
Constitution has never been amended. Hence, the five-
year prohibition is now inoperative and amendments may
theoretically be proposed at any time.
"Be that as it may, I believe – given the present
circumstances – that there is no more time to lift term
limits to enable incumbents to seek reelection in the May
11, 1998 polls. Between today and the next national 
(2) The "six million signatures are genuine and verifiable"; and
they "really belong to qualified warm bodies comprising at 
__________________
elections, less than eight (8) months
remain. Santiago, where the single issue of the sufficiency
of RA 6735 was resolved, took this Court three (3)
months, and another two (2) months to decide the motion
for reconsideration. The instant case, where the same
issue is also raised by the petitioners, took two months,
not counting a possible motion for reconsideration. These
time spans could not be abbreviated any further, because
due process requires that all parties be given sufficient
time to file their pleadings.
"Thus, even if the Court were to rule now in favor of the
adequacy of RA 6735 – as I believe it should – and allow
the Comelec to act on the PIRMA petition, such eight-
month period will not be enough to tackle the four weighty
issues I mentioned earlier, considering that two of them
involve tedious factual questions. The Comelec's decision
on any of these issues can still be elevated to this Court
for review, and reconsiderations on our decisions on each
of those issues may again be sought.
"Comelec's herculean task alone of verifying each of the
six million signatures is enormously time-consuming,
considering that any person may question the authenticity
of each and every signature, initially before the election
registrar, then before the Comelec on appeal and finally,
before this Court in a separate proceeding. Moreover, the
plebiscite itself – assuming such stage can be reached –
may be scheduled only after sixty (60) but not more than
ninety (90) days, from the time the Comelec and this
Court, on appeal, finally declare the petition to be
sufficient.
"Meanwhile, under Comelec Resolution 2946, political
parties, groups organizations or coalitions may start
selecting their official candidates for President, Vice
President and Senators on November 27, 1997; the
period for filing certificates of candidacy is from January
11 to February 9, 1998; the election period and campaign
for national officials start on February 10, 1998, while the
campaign period for other elective officials, on March 17,
1998. This means, by the time PIRMA's proposition is
ready – if ever – for submission directly to the voters at
large, it will have been overcome by the elections. Time
will simply run out on PIRMA, if the intention is to lift term
limits in time for the 1998 elections.
"That term limits may no longer be lifted prior to the 1998
elections via a people's initiative does not detract one whit
from (1) my firm conviction that RA 6735 is sufficient and
adequate to implement this constitutional right and, more
important, (2) my faith in the power of the people to
initiate changes in local and national laws and the
Constitution. In fact, I think the Court can deliberate on
these two items even more serenely and wisely now that
the debates will be free from the din and distraction of the
1998 elections. After all, jurisprudence is not merely for
the here and now but, more so, for the hereafter and the
morrow. Let me therefore stress, by way of epilogue, my
unbending credo in favor of our people's right to initiative.
least 12% of the registered voters nationwide, of which every
legislative district is represented by at least 3% of the registered
voters therein."
__________________
Epilogue
"I believe in democracy – in our people's natural right to
determine our own destiny.
"I believe in the process of initiative as a democratic
method of enabling our people to express their will and
chart their history. Initiative is an alternative to bloody
revolution, internal chaos and civil strife. It is an inherent
right of the people – as basic as the right to elect, the right
to self-determination and the right to individual liberties. I
believe that Filipinos have the ability and the capacity to
rise above themselves, to use this right of initiative wisely
and maturely, and to choose what is best for themselves
and their posterity.
"Such beliefs, however, should not be equated with a
desire to perpetuate a particular official or group of
officials in power. Far from it. Such perpetuation is
anathema to democracy. My firm conviction that there is
an adequate law implementing the constitutional right of
initiative does not ipso facto result in the victory of the
PIRMA petition or of any proposed constitutional change.
There are, after all, sufficient safeguards to guarantee
the proper use of such constitutional right and to forestall
its misuse and abuse. First, initiative cannot be used to
revise the Constitution, only to amend it. Second, the
petitioners' signatures must be validated against an
existing list of voters and/or voters' identification
cards. Third, initiative is a reverse power of and by the
people, not of incumbent officials and their
machinators. Fourth and most important of all, the
signatures must be verified as real and genuine; not
concocted, fictitious or fabricated. The only legal way to
do this is to enable the Commission on Elections to
conduct a nationwide verification process as mandated by
the Constitution and the law. Such verification, it bears
stressing, is subject to review by this Court.
"There were, by the most generous estimate, only a
million people who gathered at EDSA in 1986, and yet
they changed the history of our country. PIRMA claims six
times that number, not just from the National Capital
Region but from all over the country. Is this claim through
the invention of its novel theory of statutory insufficiency,
the Court's majority has stifled the only legal method of
determining whether PIRMA is real or not, whether there
is indeed a popular clamor to lift term limits of elected
officials, and whether six million voters want to initiate
amendments to their most basic law. In suppressing a
judicial answer to such questions, the Court may have
unwittingly yielded to PIRMA the benefit of the legal
presumption of legality and regularity. In its misplaced
zeal to exterminate the rats, it burned down the whole
house. It unceremoniously divested the people of a basic
constitutional right.
In both Opinions, I concluded that we must implement "the right
thing [initiative] in the right way at the right time and for the right
reason."
In the present case, I steadfastly stand by my foregoing Opinions
in Santiago and PIRMA. Tested against them, the present
Petition of Raul Lambino and Erico Aumentado must be
DISMISSED. Unfortunately, the right thing is being rushed in
the wrong way and for the wrong reasons. Let me explain.
No Grave Abuse
of Discretion by Comelec
As in PIRMA, I find no grave abuse of discretion in Comelec's
dismissal of the Lambino Petition. After all, the Commission
merely followed the holding in Santiago permanently 
____________________
"In the ultimate, the mission of the judiciary is to discover
truth and to make it prevail. This mission is undertaken
not only to resolve the vagaries of present events but also
to build the pathways of tomorrow. The sum total of the
entire process of adversarial litigation is the verity of facts
and the application of law thereto. By the majority cop-out
in this mission of discovery, our country and our people
have been deprived not only of a basic constitutional
right, as earlier noted, but also of the judicial opportunity
to verify the truth."
enjoining the poll body "from entertaining or taking cognizance of
any petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted to provide for the
implementation of the system." 
Indeed, the Comelec did not violate the Constitution, the
laws or any jurisprudence.4 Neither can whim, caprice,
arbitrariness or personal bias be attributed to the
Commission.5 Quite the contrary, it prudently followed this
Court's jurisprudence in Santiago and PIRMA. Even assuming
arguendo that Comelec erred in ruling on a very difficult and
unsettled question of law, this Court still cannot attribute grave
abuse of discretion to the poll body with respect to that action.6
The present Lambino Petition is in exactly the same situation as
that of PIRMA in 1997. The differences pointed out by Justice
Reynato S. Puno are, with due respect, superficial. It is argued
that, unlike the present Lambino Petition, PIRMA did not contain
verified signatures. These are distinctions that do not make a
difference. Precisely, Justice Puno is urging a remand, because
the verification issue is "contentious" and remains unproven by
petitioners. Clearly, both the PIRMA and the Lambino
Petitions contain unverified signatures. Therefore, they both
deserve the same treatment: DISMISSAL.
Besides, the only reason given in the unanimous Resolution
on PIRMA v. Comelec was that the Commission had "only
complied" with this Court's Decision in Santiago, the same reason
given by Comelec in this case. The Separate Opinions in PIRMA
gave no other reason. No one argued, even remotely, that the
PIRMA Petition should have been dismissed because the
signatures were unverified.
To stress, I adhere to my Opinion in PIRMA that, "[b]eing a
constitutional requirement, the number of signatures becomes a
condition precedent to the filing of the petition, and is
jurisdictional.7 Without those signatures, the Comelec shall motu
proprio reject the petition."  branches under a unicameral-parliamentary system, "[b]y any
So, until and unless Santiago is revisited and changed by this
Court or the legal moorings of the exercise of the right are
substantially changed, the Comelec cannot be faulted for
acting in accord with this Court's pronouncements.
Respondent Commission has no discretion, under any guise,
to refuse enforcement of any final decision of this
Court.8 The refusal of the poll body to act on the Lambino Petition
was its only recourse. Any other mode of action would appear not
only presumptuous, but also contemptuous. It would have
constituted defiance of the Court and would have surely been
struck down as grave abuse of discretion and contumacious
disregard of the supremacy of this Court as the final arbiter of
justiciable controversies.
Even assuming further that this Court rules, as I believe it should
(for the reasons given in my Opinions in Santiago and PIRMA),
that Republic Act 6735 is indeed sufficient to implement an
initiative to amend the Constitution, still, no grave abuse of
discretion can be attributed to the Comelec for merely following
prevailing jurisprudence extant at the time it rendered its ruling in
question.
Only Amendments, 
Not Revisions
I reiterate that only amendments, not revisions, may be the
proper subject of an initiative to change the Constitution. This
principle is crystal clear from even a layperson's reading of the
basic law.9
I submit that changing the system of government from
presidential to parliamentary and the form of the legislature from
bicameral to unicameral contemplates an overhaul of the
structure of government. The ponencia has amply
demonstrated that the merger of the legislative and the executive
legal test and under any jurisdiction," will "radically alter the
framework of government as set forth in the Constitution." Indeed,
the proposed changes have an overall implication on the entire
Constitution; they effectively rewrite its most important and basic
provisions. The prolixity and complexity of the changes cannot be
categorized, even by semantic generosity, as "amendments."  assembly?
In addition, may I say that of the three modes of changing the
Constitution, revisions (or amendments) may be proposed only
through the first two: by Congress or by a constitutional
convention. Under the third mode -- people's initiative -- only
amendments are allowed. Many of the justices' Opinions have
cited the historical, philosophical and jurisprudential bases of their
respective positions. I will not add to the woes of the reader by
reiterating them here.  be sufficient and valid -- the Lambino Petition deserves dismissal.
Suffice it to say that, to me, the practical test to differentiate an
amendment from a revision is found in the Constitution itself: a
revision may be done only when the proposed change can
be drafted, defined, articulated, discussed and agreed upon
after a mature and democratic debate in a deliberative body
like Congress or a Convention. The changes proposed must
necessarily be scrutinized, as their adoption or non-adoption must
result from an informed judgment.  must be represented. As pointed out by Intervenors One Voice,
Indeed, the constitutional bodies that drafted the 1935, the 1972
and the 1987 Constitutions had to spend many months of
purposeful discussions, democratic debates and rounds of voting
before they could agree on the wordings covering the philosophy,
the underlying principles, and the structure of government of our
Republic.
Verily, even bills creating or changing the administrative structure
of local governments take several weeks or even months of
drafting, reading, and debating before Congress can approve
them. How much more when it comes to constitutional changes?
A change in the form of government of our country from
presidential-bicameral to parliamentary-unicameral is
monumental. Even the initiative proponents admit this fact. So,
why should a revision be rammed down our people's throats
without the benefit of intelligent discussion in a deliberative
Added to the constitutional mandate barring revisions is the
provision of RA 6735 expressly prohibiting petitions for initiative
from "embracing more than one subject matter."10 The present
initiative covers at least two subjects: (1) the shift from a
presidential to a parliamentary form of government; and (2) the
change from a bicameral to a unicameral legislature.11 Thus, even
under Republic Act 6735 -- the law that Justice Puno and I hold to
12 Percent and 3 Percent Thresholds
Not Proven by Petitioners
The litmus test of a people's petition for initiative is its ability to
muster the constitutional requirement that it be supported by at
least 12 percent of the registered voters nationwide, of which at
least 3 percent of the registered voters in every legislative district
Inc., et al., however, records show that there was a failure to
meet the minimum percentages required.12
Even Justice Puno concedes that the 12 percent and 3 percent
constitutional requirements involve "contentious facts," which
have not been proven by the Lambino Petition. Thus, he is urging
a remand to the Comelec.
But a remand is both imprudent and futile. It is imprudent
because the Constitution itself mandates the said requisites of an
initiative petition. In other words, a petition that does not show
the required percentages is fatally defective and must be
dismissed, as the Delfin Petition was, in Santiago. 
Furthermore, as the ponencia had discussed extensively, the
present Petition is void and unconstitutional. It points out that the
Petition dismally fails to comply with the constitutional
requirement that an initiative must be directly proposed by the
people. Specifically, the ponencia has amply established that
petitioners were unable to show that the Lambino Petition
contained, or incorporated by attachment, the full text of the
proposed changes.
So, too, a remand is futile. Even if the required percentages
are proven before the Commission, the Petition must still be
dismissed for proposing a revision, not an amendment, in
gross violation of the Constitution. At the very least, it
proposes more than one subject, in violation of Republic Act
6735. 
Summation
Petitioners plead with this Court to hear the voice of the people
because, in the words of Justice Puno who supports them, the
"people's voice is sovereign in a democracy."
I, too, believe in heeding the people's voice. I reiterate my
Separate Opinion in PIRMA that "initiative is a democratic method
of enabling our people to express their will and chart their history.
x x x. I believe that Filipinos have the ability and the capacity to
rise above themselves, to use this right of initiative wisely and
maturely, and to choose what is best for themselves and their
posterity."
This belief will not, however, automatically and blindly result in an
initiative to change the Constitution, because the present Petition
violates the following:
· The Constitution (specifically Article XVII, which allows only
amendments, not revisions, and requires definite percentages of
verified signatures)
· The law (specifically, Republic Act 6735, which prohibits
petitions containing more than one subject) 
· Jurisprudence (specifically, PIRMA v. Comelec, which
dismissed the Petition then under consideration on the ground
that, by following the Santiago ruling, the Comelec had not
gravely abused its discretion).
I submit further that a remand of the Lambino Petition is both
imprudent and futile. More tellingly, it is a cop-out, a hand-
washing already discredited 2000 years ago. Instead of finger-
pointing, I believe we must confront the issues head on, because
the people expect no less from this august and venerable
institution of supreme justice.
Epilogue
At bottom, the issue in this case is simply the Rule of
Law.13 Initiative, like referendum and recall, is a treasured feature
of the Filipino constitutional system. It was born out of our world-
admired and often-imitated People Power, but its misuse and
abuse must be resolutely rejected. Democracy must be
cherished, but mob rule vanquished.
The Constitution is a sacred social compact, forged between
the government and the people, between each individual and the
rest of the citizenry. Through it, the people have solemnly
expressed their will that all of them shall be governed by laws,
and their rights limited by agreed-upon covenants to promote the
common good. If we are to uphold the Rule of Law and reject the
rule of the mob, we must faithfully abide by the processes the
Constitution has ordained in order to bring about a peaceful,
just and humane society. Assuming arguendo that six million
people allegedly gave their assent to the proposed changes in the
Constitution, they are nevertheless still bound by the social
covenant -- the present Constitution -- which was ratified by a far
greater majority almost twenty years ago.14 I do not denigrate the
majesty of the sovereign will; rather, I elevate our society to the
loftiest perch, because our government must remain as one of
laws and not of men.
Upon assuming office, each of the justices of the Supreme Court
took a solemn oath to uphold the Constitution. Being the
protectors of the fundamental law as the highest expression of
the sovereign will, they must subject to the strictest scrutiny any
attempt to change it, lest it be trivialized and degraded by the
assaults of the mob and of ill-conceived designs. The Court
must single-mindedly defend the Constitution from bogus
efforts falsely attributed to the sovereign people.
The judiciary may be the weakest branch of government.
Nonetheless, when ranged against incessant voices from the
more powerful branches of government, it should never cower in
submission. On the other hand, I daresay that the same
weakness of the Court becomes its strength when it speaks
independently through decisions that rightfully uphold the
supremacy of the Constitution and the Rule of Law. The
strength of the judiciary lies not in its lack of brute power, but in its
moral courage to perform its constitutional duty at all times
against all odds. Its might is in its being right.15
During the past weeks, media outfits have been ablaze with
reports and innuendoes about alleged carrots offered and sticks
drawn by those interested in the outcome of this case.16 There
being no judicial proof of these allegations, I shall not comment
on them for the nonce, except to quote the Good Book, which
says, "There is nothing hidden that will not be revealed, and
nothing secret that will not be known and come to light."17
Verily, the Supreme Court is now on the crossroads of history. By
its decision, the Court and each of its members shall be judged
by posterity. Ten years, fifty years, a hundred years -- or even a
thousand years -- from now, what the Court did here, and how
each justice opined and voted, will still be talked about, either in
shame or in pride. Indeed, the hand-washing of Pontius Pilate,
the abomination of Dred Scott, and the loathing of Javellana still
linger and haunt to this day.
Let not this case fall into the same damnation. Rather, let this
Court be known throughout the nation and the world for
its independence, integrity, industry and intelligence.
WHEREFORE, I vote to DISMISS the Petition.
ARTEMIO V. PANGANIBAN
Chief Justice
____________________
EN BANC
G.R. No. 174153             October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO, together
with 6,327,952 REGISTERED VOTERS, Petitioners, 
vs.
THE COMMISSION ON ELECTIONS, ET AL., Respondents.
G.R. No. 174299             October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and
RENE A. Q. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman
BENJAMIN S. ABALOS, JR. and Commissioners
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe
and Peter Doe, Respondents.
x
---------------------------------------------------------------------------------------
-x
 SEPARATE OPINION
YNARES-SANTIAGO, J.:
I agree with the opinion of our esteemed colleague, Justice
Reynato Puno, that the Court's ruling in Santiago v.
COMELEC1 is not a binding precedent. However, it is my position
that even if Santiago were reversed and Republic Act No. 6735
(R.A. 6735) be held as sufficient law for the purpose of people's
initiative to amend the Constitution, the petition for initiative in this
case must nonetheless be dismissed. 
There is absolutely no showing here that petitioners complied
with R.A. 6735, even as they blindly invoke the said law to justify
their alleged people's initiative. Section 5(b) of R.A. 6735 requires
that "[a] petition for an initiative on the 1987 Constitution must
have at least twelve per centum (12%) of the total number of
registered voters as signatories, of which every legislative
district must be represented by at least three per centum (3%) of
the registered voters therein." On the other hand, Section 5(c)2 of
the same law requires that the petition should state, among
others, the proposition3 or the "contents or text of the proposed
law sought to be enacted, approved or rejected, amended or
repealed." If we were to apply Section 5(c) to an initiative to
amend the Constitution, as petitioners submit, the petition for
initiative signed by the required number of voters should
incorporate therein a text of the proposed changes to the
Constitution. However, such requirement was not followed in the
case at bar.  might be noted that they themselves reasonably assumed that
During the oral arguments, petitioner Lambino admitted that they
printed a mere 100,000 copies of the text of the proposed
changes to the Constitution. According to him, these were
subsequently distributed to their agents all over the country, for
attachment to the sheets of paper on which the signatures were
to be affixed. Upon being asked, however, if he in fact knew
whether the text was actually attached to the signature sheets
which were distributed for signing, he said that he merely
assumed that they were. In other words, he could not tell the
Court for certain whether their representatives complied with this
requirement.
The petition filed with the COMELEC, as well as that which was
shown to this Court, indubitably establish that the full text of the
proposed changes was not attached to the signature sheets. All
that the signature sheets contained was the general proposition
and abstract, which falls short of the full text requirement of R.A.
6735. 
The necessity of setting forth the text of the proposed
constitutional changes in the petition for initiative to be signed by
the people cannot be seriously disputed. To begin with, Article
XVII, Section 2 of the Constitution unequivocally states that
"[a]mendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of at
least twelve per centum of the total number of registered voters,
of which every legislative district must be represented by at least
three per centum of the registered voters therein." Evidently, for
the people to propose amendments to the Constitution, they
must, in the first instance, know exactly what they are proposing.
It is not enough that they merely possess a general idea of the
proposed changes, as the Constitution speaks of a "direct"
proposal by the people. 
Although the framers of the Constitution left the matter of
implementing the constitutional right of initiative to Congress, it
the draft of the proposed constitutional amendments would be
shown to the people during the process of signature gathering.
Thus –
MR. RODRIGO. Section 2 of the complete committee
report provides: "upon petition of at least 10 percent of the
registered voters." How will we determine that 10 percent
has been achieved? How will the voters manifest their
desire, is it by signature?
 MR. SUAREZ. Yes, by signatures.
MR. RODRIGO. Let us look at the mechanics. Let us say
some voters want to propose a constitutional
amendment. Is the draft of the proposed constitutional
amendment ready to be shown to the people when they
are asked to sign?
MR. SUAREZ. That can be reasonably assumed, Madam
President.
MR. RODRIGO: What does the sponsor mean? The draft
is ready and shown to them before they sign. Now, who
prepares the draft?
MR. SUAREZ: The people themselves, Madam
President.4
It may thus be logically assumed that even without Section 5(c) of
R.A. 6735, the full text of the proposed changes must necessarily
be stated in or attached to the initiative petition. The signatories to
the petition must be given an opportunity to fully comprehend the
meaning and effect of the proposed changes to enable them to
make a free, intelligent and well-informed choice on the matter.  As applied to the initiative process, the one subject rule is
Needless to say, the requirement of setting forth the complete
text of the proposed changes in the petition for initiative is a
safeguard against fraud and deception. If the whole text of the
proposed changes is contained in or attached to the petition,
intercalations and riders may be duly avoided. Only then can we
be assured that the proposed changes are truly of the people and
that the signatories have been fully apprised of its implications.  Petitioners insist that the proposed changes embodied in their
If a statutory provision is essential to guard against fraud,
corruption or deception in the initiative and referendum process,
such provision must be viewed as an indispensable requirement
and failure to substantially comply therewith is fatal.5 The failure
of petitioners in this case to comply with the full text requirement
resultantly rendered their petition for initiative fatally defective. 
The petition for initiative is likewise irretrievably infirm because it
violates the one subject rule under Section 10(a) of R.A. 6735:
SEC. 10. Prohibited Measures.— The following cannot be
the subject of an initiative or referendum petition:
(a) No petition embracing more than one subject shall be
submitted to the electorate; x x x
The one subject rule, as relating to an initiative to amend the
Constitution, has the same object and purpose as the one
subject-one bill rule embodied in Article VI, Section 26(1)6 of the
Constitution.7 To elaborate, the one subject-one bill rule was
designed to do away with the practice of inserting two or more
unrelated provisions in one bill, so that those favoring one
provision would be compelled to adopt the others. By this process
of log-rolling, the adoption of both provisions could be
accomplished and ensured, when neither, if standing alone, could
succeed on its own merits. 
essentially designed to prevent surprise and fraud on the
electorate. It is meant to safeguard the integrity of the initiative
process by ensuring that no unrelated riders are concealed within
the terms of the proposed amendment. This in turn guarantees
that the signatories are fully aware of the nature, scope and
purpose of the proposed amendment.
petition for initiative relate only to one subject matter, that is – the
shift from presidential to a parliamentary system of government.
According to petitioners, all of the other proposed changes are
merely incidental to this main proposal and are reasonably
germane and necessary thereto.8An examination of the text of the The omnibus statement that all provisions under Articles VI and
proposed changes reveals, however, that this is not the case.  VII which are inconsistent with a unicameral-parliamentary
system of government shall be deemed amended is equally
The proposed changes to the Constitution cover other subjects bothersome. The statement does not specify what these
that are beyond the main proposal espoused by the petitioners. inconsistencies and amendments may be, such that everyone is
Apart from a shift from the presidential to a parliamentary form of left to guess the provisions that could eventually be affected by
government, the proposed changes include the abolition of one the proposed changes. The subject and scope of these automatic
House of Congress,9 and the convening of a constituent assembly amendments cannot even be spelled out with certainty. There is
to propose additional amendments to the Constitution.10 Also thus no reasonable measure of its impact on the other
included within its terms is an omnibus declaration that those constitutional provisions. 
constitutional provisions under Articles VI and VII, which are
inconsistent with the unicameral-parliamentary form of The foregoing proposed changes cannot be the subject of a
government, shall be deemed amended to conform thereto.  people's initiative under Section 2, Article XVII of the Constitution.
Taken together, the proposed changes indicate that the
It is not difficult to see that while the proposed changes appear to intendment is not simply to effect substantial amendments to the
relate only to a shift in the form of government, it actually seeks to Constitution, but a revision thereof. The distinction between an
affect other subjects that are not reasonably germane to the amendment and revision was explained by Dean Vicente G.
constitutional alteration that is purportedly sought. For one, a shift Sinco, as follows: 
to a parliamentary system of government does not necessarily
result in the adoption of a unicameral legislature. A parliamentary "Strictly speaking, the act of revising a constitution
system can exist in many different "hybrid" forms of government, involves alterations of different portions of the entire
which may or may not embrace unicameralism.11 In other words, document. It may result in the rewriting either of the whole
the shift from presidential to parliamentary structure and from a constitution, or the greater portion of it, or perhaps only
bicameral to a unicameral legislature is neither the cause nor some of its important provisions. But whatever results the
effect of the other.  revision may produce, the factor that characterizes it as
an act of revision is the original intention and plan
I also fail to see the relation of convening a constituent assembly authorized to be carried out. That intention and plan must
with the proposed change in our system of government. As a contemplate a consideration of all the provisions of the
subject matter, the convening of a constituent assembly to amend constitution to determine which one should be altered or
the Constitution presents a range of issues that is far removed suppressed or whether the whole document should be
from the subject of a shift in government. Besides, the constituent replaced with an entirely new one.
assembly is supposed to convene and propose amendments to
the Constitution after the proposed change in the system of The act of amending a constitution, on the other hand,
government has already taken place. This only goes to show that envisages a change of only a few specific provisions. The
the convening of the constituent assembly is not necessary to intention of an act to amend is not to consider the
effectuate a change to a parliamentary system of government.  advisability of changing the entire constitution or of
considering that possibility. The intention rather is to
improve specific parts of the existing constitution or to add
 to it provisions deemed essential on account of changed
conditions or to suppress portions of it that seem
obsolete, or dangerous, or misleading in their effect."12
The foregoing traditional exposition of the difference between
amendment and revision has indeed guided us throughout our
constitutional history. However, the distinction between the two
terms is not, to my mind, as significant in the context of our past
constitutions, as it should be now under the 1987 Constitution.
The reason for this is apparent. Under our past constitutions, it
was Congress alone, acting either as a constituent assembly or
by calling out a constitutional convention, that exercised authority
to either amend or revise the Constitution through the procedures
therein described. Although the distinction between the two terms
was theoretically recognized under both the 1935 and 1973
Constitutions, the need to highlight the difference was not as
material because it was only Congress that could effect
constitutional changes by choosing between the two modalities.
However, it is different now under the 1987 Constitution. Apart
from providing for the two modes of either Congress constituting
itself as a constituent assembly or calling out for a constitutional
convention, a third mode was introduced for proposing changes
to the Constitution. This mode refers to the people's right to
propose amendments to the fundamental law through the filing of
a petition for initiative.
Otherwise stated, our experience of what constitutes amendment
or revision under the past constitutions is not determinative of
what the two terms mean now, as related to the exercise of the
right to propose either amendments or revision. The changes
introduced to both the Constitutions of 1935 and 1973 could have
indeed been deemed an amendment or revision, but the
authority for effecting either would never have been
questioned since the same belonged solely to Congress. In
contrast, the 1987 Constitution clearly limits the right of the
people to directly propose constitutional changes to amendments
only. We must consequently not be swayed by examples of
constitutional changes effected prior to the present fundamental
law, in determining whether such changes are revisory or
amendatory in nature.
In this regard, it should be noted that the distinction laid down by
Justice Felix Q. Antonio in Javellana v. Executive
Secretary13 related to the procedure to be followed in ratifying a
completely new charter proposed by a constitutional convention.
The authority or right of the constitutional convention itself to
effect such a revision was not put in issue in that case. As far as
determining what constitutes "amendments" for the purpose of a
people's initiative, therefore, we have neither relevant precedent
nor prior experience. We must thus confine ourselves to Dean
Sinco's basic articulation of the two terms. 
It is clear from Dean Sinco's explanation that a revision may
either be of the whole or only part of the Constitution. The part
need not be a substantial part as a change may qualify as a
revision even if it only involves some of the important provisions.
For as long as the intention and plan to be carried out
contemplate a consideration of all the provisions of the
Constitution "to determine which should be altered or suppressed,
or whether the whole document should be replaced with an
entirely new one," the proposed change may be deemed a
revision and not merely an amendment.
Thus, it is not by the sheer number alone of the proposed
changes that the same may be considered as either an
amendment or revision. In so determining, another overriding
factor is the "original intention and plan authorized to be carried
out" by the proposed changes. If the same relates to a re-
examination of the entire document to see which provisions
remain relevant or if it has far-reaching effects on the entire
document, then the same constitutes a revision and not a mere
amendment of the Constitution. 
From the foregoing, it is readily apparent that a combination of
the quantitative and qualitative test is necessary in assessing
what may be considered as an amendment or revision. It is not
enough that we focus simply on the physical scope of the
proposed changes, but also consider what it means in relation to
the entire document. No clear demarcation line can be drawn to
distinguish the two terms and each circumstance must be judged
on the basis of its own peculiar conditions. The determination lies
in assessing the impact that the proposed changes may have on
the entire instrument, and not simply on an arithmetical appraisal
of the specific provisions which it seeks to affect.  accomplish such far reaching changes in the nature of our
In McFadden v. Jordan,14 the California Supreme Court laid
down the groundwork for the combination of quantitative and
qualitative assessment of proposed constitutional changes, in
order to determine whether the same is revisory or merely
amendatory. In that case, the McFadden court found the
proposed changes extensive since at least 15 of the 25 articles
contained in the California Constitution would either be repealed
in their entirety or substantially altered, and four new topics would
be introduced. However, it went on to consider the qualitative
effects that the proposed initiative measure would have on
California's basic plan of government. It observed that the
proposal would alter the checks and balances inherent in
such plan, by delegating far-reaching and mixed powers to an
independent commission created under the proposed measure.
Consequently, the proposal in McFadden was not only deemed
as broad and numerous in physical scope, but was also held as
having a substantive effect on the fundamental governmental
plan of the State of California.  terms, but also with the mindset of our constitutional framers
The dual aspect of the amendment/revision analysis was
reiterated by the California Supreme Court in Raven v.
Deukmeijan.15 Proposition 115, as the initiative in that case was
called, would vest in the United States Supreme Court all judicial
interpretative powers of the California courts over fundamental
criminal defense rights in that state. It was observed that although
quantitatively, the proposition did "not seem so extensive as to
change directly the substantial entirety of the Constitution by the
deletion or alteration of numerous existing provisions," the same,
nonetheless, "would substantially alter the substance and integrity
of the state Constitution as a document of independent force and
effect." Quoting Amador Valley Joint Union High School
District v. State Board of Equalization,16 the Raven court said: 
". . . apart from a measure effecting widespread deletions,
additions and amendments involving many constitutional
articles, 'even a relatively simple enactment may
basic governmental plan as to amount to a revision also…
[A]n enactment which purported to vest all judicial power
in the Legislature would amount to a revision without
regard either to the length or complexity of the measure or
the number of existing articles or sections affected by
such change.'" (Underscoring supplied and citations
omitted) 
Thus, in resolving the amendment/revision issue, the California
Court examines both the quantitative and qualitative effects of a
proposed measure on its constitutional scheme. Substantial
changes in either respect could amount to a revision.17
I am persuaded that we can approach the present issue in the
same manner. The experience of the courts in California is not far
removed from the standards expounded on by Dean Sinco when
he set out to differentiate between amendment and revision. It is
actually consistent, not only with our traditional concept of the two
when they referred to the disquisition of Justice Antonio
in Javellana.18 We must thus consider whether the proposed
changes in this case affect our Constitution in both its substantial
physical entirety and in its basic plan of government. 
The question posed is: do the proposed changes, regardless
of whether these are simple or substantial, amount to a
revision as to be excluded from the people's right to directly
propose amendments to the fundamental law?
As indicated earlier, we may apply the quantitative/qualitative test
in determining the nature of the proposed changes. These tests
are consistent with Dean Sinco's traditional concept of
amendment and revision when he explains that, quantitatively,
revision "may result in the rewriting either of the whole
constitution, or the greater part of it, or perhaps only some of its
provisions." In any case, he continues, "the factor that
characterizes it as an act of revision is the original intention and
plan authorized to be carried out." Unmistakably, the latter
statement refers to the qualitative effect of the proposed
changes.  such that parliament will be the paramount governing institution.
It may thus be conceded that, quantitatively, the changes
espoused by the proponents in this case will affect only two (2)
out of the eighteen (18) articles of the 1987 Constitution, namely,
Article VI (Legislative Department) and Article VII (Executive
Department), as well as provisions that will ensure the smooth
transition from a presidential-bicameral system to a
parliamentary-unicameral structure of government. The
quantitative effect of the proposed changes is neither broad nor
extensive and will not affect the substantial entirety of the 1987
Constitution.
However, it is my opinion that the proposed changes will have
serious qualitative consequences on the Constitution. The
initiative petition, if successful, will undoubtedly alter, not only our
basic governmental plan, but also redefine our rights as citizens
in relation to government. The proposed changes will set into
motion a ripple effect that will strike at the very foundation of our
basic constitutional plan. It is therefore an impermissible
constitutional revision that may not be effected through a people's
initiative.  In the proposed parliamentary system, there is an obvious lack of
Petitioners' main proposal pertains to the shifting of our form of
government from the presidential to the parliamentary system. An
examination of their proposal reveals that there will be a fusion of
the executive and legislative departments into one parliament that
will be elected on the basis of proportional representation. No
term limits are set for the members of parliament except for those
elected under the party-list system whose terms and number shall
be provided by law. There will be a President who shall be the
head of state, but the head of government is the Prime Minister.
The latter and his cabinet shall be elected from among the
members of parliament and shall be responsible to parliament for
the program of government. 
The preceding proposal indicates that, under the proposed
system, the executive and legislature shall be one and the same,
What this implies is that there will be no separation between the
law-making and enforcement powers of the state, that are
traditionally delineated between the executive and legislature in a
presidential form of government. Necessarily, the checks and
balances inherent in the fundamental plan of our U.S.-style
presidential system will be eliminated. The workings of
government shall instead be controlled by the internal political
dynamics prevailing in the parliament. 
Our present governmental system is built on the separation of
powers among the three branches of government. The legislature
is generally limited to the enactment of laws, the executive to the
enforcement of laws and the judiciary to the application of laws.
This separation is intended to prevent a concentration of authority
in one person or group that might lead to an irreversible error or
abuse in its exercise to the detriment of our republican
institutions. In the words of Justice Laurel, the doctrine of
separation of powers is intended to secure action, to forestall
overaction, to prevent despotism and obtain efficiency.19
formal institutional checks on the legislative and executive powers
of the state, since both the Prime Minister and the members of his
cabinet are drawn from parliament. There are no effective limits to
what the Prime Minister and parliament can do, except the will of
the parliamentary majority. This goes against the central principle
of our present constitutional scheme that distributes the powers of
government and provides for counteraction among the three
branches. Although both the presidential and parliamentary
systems are theoretically consistent with constitutional
democracy, the underlying tenets and resulting governmental
framework are nonetheless radically different.
Consequently, the shift from presidential to parliamentary form of
government cannot be regarded as anything but a drastic
change. It will require a total overhaul of our governmental
structure and involve a re-orientation in the cardinal doctrines that
govern our constitutional set-up. As explained by Fr. Joaquin
Bernas, S.J., a switch from the presidential system to a
parliamentary system would be a revision because of its over-all
impact on the entire constitutional structure.20 It cannot, by any
standard, be deemed as a mere constitutional amendment.
An amendment envisages an alteration of one or a few
specific and separable provisions. The guiding original
intention of an amendment is to improve specific parts or
to add new provisions deemed necessary to meet new
conditions or to suppress specific portions that may have
become obsolete or that are judged to be dangerous. In
revision, however, the guiding original intention and plan
contemplates a re-examination of the entire document, or
of provisions of the document which have over-all
implications for the entire document, to determine how
and to what extent they should be altered.21 (Underscoring
supplied)  There is no question here that only amendments to the
The inclusion of a proposal to convene a constituent assembly
likewise shows the intention of the proponents to effect even
more far-reaching changes in our fundamental law. If the original
intent were to simply shift the form of government to the
parliamentary system, then there would have been no need for
the calling out of a constituent assembly to propose further
amendments to the Constitution. It should be noted that, once
convened, a constituent assembly can do away and replace any
constitutional provision which may not even have a bearing on
the shift to a parliamentary system of government. The inclusion
of such a proposal reveals the proponents' plan to consider all
provisions of the constitution, either to determine which of its
provisions should be altered or suppressed or whether the whole
document should be replaced with an entirely new one.
Consequently, it is not true that only Articles VI and VII are
covered by the alleged people's initiative. The proposal to
convene a constituent assembly, which by its terms is
mandatory, will practically jeopardize the future of the entire
Constitution and place it on shaky grounds. The plan of the
proponents, as reflected in their proposed changes, goes beyond
the shifting of government from the presidential to the
parliamentary system. Indeed, it could even extend to the
"fundamental nature of our state as a democratic and republican
state."
To say that the proposed changes will affect only the constitution
of government is therefore a fallacy. To repeat, the combined
effect of the proposed changes to Articles VI and VII and those
pertaining to the Transitory Provisions under Article XVIII
indubitably establish the intent and plan of the proponents to
possibly affect even the constitutions of liberty and sovereignty.
Indeed, no valid reason exists for authorizing further amendments
or revisions to the Constitution if the intention of the proposed
changes is truly what it purports to be. 
Constitution may be undertaken through a people's initiative and
not a revision, as textually reflected in the Constitution itself. This
conclusion is inevitable especially from a comparative
examination of Section 2 in relation to Sections 1 and 4 of Article
XVII, which state:
SECTION 1. Any amendment to, or revision of, this
Constitution may be proposed by:
 (1) The Congress, upon a vote of three-fourths of
all its Members; or
(2) A constitutional convention.
SECTION 2. Amendments to this Constitution may
likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of
the total number of registered voters, of which every
legislative district must be represented by at least
three per centum of the registered voters therein. No
amendment under this section shall be authorized within
five years following the ratification of this Constitution nor
oftener than once every five years thereafter.
The Congress shall provide for the implementation of the
exercise of this right.
xxxx
SECTION 4. Any amendment to, or revision of, this
Constitution under Section 1 hereof shall be valid when
ratified by a majority of the votes cast in a plebiscite which
shall be held not earlier than sixty days nor later than
ninety days after the approval of such amendment or
revision.
Any amendment under Section 2 hereof shall be valid
when ratified by a majority of the votes cast in a plebiscite
which shall be held not earlier than sixty days nor later
than ninety days after the certification by the Commission
of Elections of the sufficiency of the petition.
(Underscoring supplied)  they understood that there was a real difference between
It is clear that the right of the people to directly propose changes
to the Constitution is limited to amendments and does not include
a revision thereof. Otherwise, it would have been unnecessary to
provide for Section 2 to distinguish its scope from the rights
vested in Congress under Section 1. The latter lucidly states that
Congress may propose both amendments and a revision of the
Constitution by either convening a constituent assembly or calling
for a constitutional convention. Section 2, on the other hand,
textually commits to the people the right to propose only
amendments by direct action.
To hold, therefore, that Section 2 allows substantial
amendments amounting to revision obliterates the clear
distinction in scope between Sections 1 and 2. The intention,
as may be seen from a cursory perusal of the above provisions, is
to provide differing fields of application for the three modes of
effecting changes to the Constitution. We need not even delve
into the intent of the constitutional framers to see that the
distinction in scope is definitely marked. We should thus apply
these provisions with a discerning regard for this distinction.
Again, McFadden22 is instructive: 
". . . The differentiation required is not merely between
two words; more accurately it is between two procedures
and between their respective fields of application. Each
procedure, if we follow elementary principles of statutory
construction, must be understood to have a substantial
field of application, not to be x x x a mere alternative
procedure in the same field. Each of the two words, then,
must be understood to denote, respectively, not only a
procedure but also a field of application appropriate to its
procedure. The people of this state have spoken; they
made it clear when they adopted article XVIII and made
amendment relatively simple but provided the formidable
bulwark of a constitutional convention as a protection
against improvident or hasty (or any other) revision, that
amendment and revision. We find nothing whatsoever in
the language of the initiative amendment of 1911 (art. IV,
§ 1) to effect a breaking down of that difference. On the
contrary, the distinction appears to be x x x scrupulously
 preserved by the express declaration in the amendment x
x x that the power to propose and vote on "amendments
to the Constitution" is reserved directly to the people in
initiative proceedings, while leaving unmentioned the
power and the procedure relative to constitutional
revision, which revisional power and procedure, it will be
remembered, had already been specifically treated in
section 2 of article XVIII. Intervenors' contention--that any
change less than a total one is but amendatory--would
reduce to the rubble of absurdity the bulwark so carefully
erected and preserved. Each situation involving the
question of amendment, as contrasted with revision, of
the Constitution must, we think, be resolved upon its own
facts."  directed, changed or abolished by them. But this control
Thus, our people too have spoken when they overwhelmingly
ratified the 1987 Constitution, with the provisions on amendments
and revisions under Article XVII. The voice and will of our people
cannot be any clearer when they limited people's initiative to mere
amendments of the fundamental law and excluded revisions in its
scope. In this regard, the task of the Court is to give effect to the
people's voice, as expressed unequivocally through the
Constitution.  large, an attempt should be made to interfere with the
Article XVII on amendments and revisions is called a "constitution
of sovereignty" because it defines the constitutional meaning of
"sovereignty of the people." It is through these provisions that the
sovereign people have allowed the expression of their sovereign
will and have canalized their powers which would otherwise be
plenary. By approving these provisions, the sovereign people
have decided to limit themselves and future generations in the
exercise of their sovereign power.23 They are thus bound by the
constitution and are powerless, whatever their numbers, to
change or thwart its mandates, except through the means
prescribed by the Constitution itself.24
It is thus misplaced to argue that the people may propose
revisions to the Constitution through people's initiative because
their representatives, whose power is merely delegated, may do
so. While Section 1 of Article XVII may be considered as a
provision delegating the sovereign powers of amendment
and revision to Congress, Section 2, in contrast, is a self-
limitation on that sovereign power. In the words of Cooley:
x x x Although by their constitutions the people have
delegated the exercise of sovereign powers to the several
departments, they have not thereby divested themselves
of the sovereignty. They retain in their own hands, so far
as they have thought it needful to do so, a power to
control the governments they create, and the three
departments are responsible to and subject to be ordered,
and direction must be exercised in the legitimate mode
previously agreed upon. The voice of the people, acting in
their sovereign capacity, can be of legal force only when
expressed at the times and under the conditions which
they themselves have prescribed and pointed out by the
Constitution, or which, consistently with the Constitution,
have been prescribed and pointed out for them by
statute; and if by any portion of the people, however
regular working of the agencies of government at any
other time or in any other mode than as allowed by
existing law, either constitutional or statutory, it would be
revolutionary in character, and must be resisted and
repressed by the officers who, for the time being,
represent legitimate government.25 (Underscoring
supplied)
Consequently, there is here no case of "the spring rising above its
source." Nor is it one where the people's sovereign power has
been relegated to a lesser plane than that of Congress. In
choosing to exercise self-limitation, there is no absence or lack of
even a fraction of the sovereign power of the people since self-
limitation itself is an expression of that sovereign power. The
people have chosen to delegate and limit their sovereign power
by virtue of the Constitution and are bound by the parameters that
they themselves have ordained. Otherwise, if the people choose
to defy their self-imposed constitutional restraints, we will be
faced with a revolutionary situation.26
It has repeatedly been emphasized that ours is a democratic and
republican state.27 Even as we affirm, however, that aspect of
direct democracy, we should not forget that, first and foremost,
we are a constitutional democracy. To uphold direct democracy
at the expense of the fundamental law is to sanction, not a
constitutional, but an extra-constitutional recourse. This is clearly
beyond the powers of the Court who, by sovereign mandate, is
the guardian and keeper of the Constitution.
IN VIEW OF THE FOREGOING, I vote to DISMISS the petition in
G.R. No. 174153.
CONSUELO YNARES-SANTIAGO
Associate Justice
____________________
EN BANC
G.R. NO. 174153
RAUL L. LAMBINO AND ENRICO B. AUMENTADO
TOGETHER WITH 6,327,952 REGISTERED
VOTERS, petitioners,  PILIPINO, oppositors-intervenors,
vs.
THE COMMISSION ON ELECTIONS, respondent.
TRADE UNION CONGRESS OF THE PHILIPPINES
(TUCP), petitioners-intervenors,  KARINA A. LAT, ANTONIO L. SALVADOR AND RANDALL C.
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO
BAYA, petitioners-intervenors,
SULONGBAYAN MOVEMENT FOUNDATION, INC., petitioner-
intervenor,
PHILIPPINE TRANSPORT AND GENERAL WORKERS
ORGANIZATION (PTGWO) AND VICTORINO F.
BALAIS,petitioners-intervenors,
ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN,
MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN
V. OPLE AND CARLOS P. MEDINA, JR., oppositors-
intervenors,
ALTERNATIVE LAW GROUPS, INC., oppositor-intervenor,
ATTY. PETE QUIRINO-QUADRA, oppositor-intervenor,
BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD,
ECUMENICAL BISHOPS FROUM, MIGRANTE, GABRIELA,
GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF
FILIPINO STUDENTS,LEONARDO SAN JOSE, JOJO PINEDA,
DR. DARBY SANTIAGO, AND DR. REGINALD
PAMUGAS, oppositors-intervenors,
LORETA ANN P. ROSALES, MARIO JOYO AGUJA, ANA
THERESA HONTIVEROS-BARAQUEL, oppositors-intervenors,
LUWALHATI ANTONINO, oppositor-intervenor,
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
CONRADO F.ESTRELLA, TOMAS C. TOLEDO, MARIANO M.
TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR.,
FORTUNATO P. AGUAS AND AMADO GAT
INCION, oppositors-intervenors,
SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR.
AND SENATORS SERGIO R. OSMENA III, JAMBY A.S.
MADRIGAL, LUISA P. EJERCIRO-ESTRADA, JINGGOY
ESTRADA, ALFREDO S. LIM, AND PANFILO M.
LACSON, oppositors-intervenors,
JOSEPH EJERCITO ESTRADA AND PWERSA NG MASANG
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY AND
CEBU CHAPTER, oppositors-intervenors,
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA TANYA
TABAYOYONG, oppostors-intervenors,
SENATE OF THE PHILIPPINES, REPRESENTED BY ITS
PRESIDENT, MANUEL VILLAR, JR., oppositor-intervenor;
G.R. NO. 174299
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. AND
RENE A. Q. SAGUISAG, petitioners,  God's imprimatur. Today, petitioners and their allies hum the
vs.
COMMISSION ON ELECTIONS, REPRESENTED BY
CHAIRMAN BENJAMIN S. ABALOS, SR. AND
COMMISSIONERS RESSURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR. ROMEO A. BRAWNER, RENE
V. SARMIENTO AND JOHN DOE AND PETER
DOE, respondents.
x
---------------------------------------------------------------------------------------
-x
CONCURRING OPINION
SANDOVAL–GUTIERREZ, J.:
Vox populi vox Dei -- the voice of the people is the voice of God.
Caution should be exercised in choosing one's battlecry, lest it
does more harm than good to one's cause. In its original context,
the complete version of this Latin phrase means exactly the
opposite of what it is frequently taken to mean. It originated from
a holy man, the monk Alcuin, who advised Charlemagne, "nec
audiendi qui solent dicere vox populi vox Dei quum
tumultuositas vulgi semper insaniae proxima sit," meaning, "And
those people should not be listened to who keep on saying,
'The voice of the people is the voice of God,' since the
riotousness of the crowd is always very close to
madness."1 Perhaps, it is by providence that the true meaning of
the Latin phrase is revealed upon petitioners and their allies –
that they may reflect upon the sincerity and authenticity of their
"people's initiative."  Jesus Delfin, Alberto Pedrosa and Carmen Pedrosa, in their
History has been a witness to countless iniquities committed in
the name of God. Wars were waged, despotism tolerated and
oppressions justified – all these transpired as man boasted of
same rallying call, convincing this Court that the people's initiative
is the "voice of the people" and, therefore, the "voice of God."
After a thorough consideration of the petitions, I have come to
realize that man, with his ingenuity and arrogance, has perfected
the craft of imitating the voice of God. It is against this kind of
genius that the Court must guard itself. 
The facts of the case are undisputed.
In 1996, the Movement for People's Initiative sought to exercise
the power of initiative under Section 2, Article XVII of the
Constitution which reads:
Section 2. Amendments to this Constitution may likewise
be directly proposed by the people through initiative upon
a petition of at least twelve per centum of the total number
of registered voters, of which every legislative district
must be represented by at least three per centum of the
registered voters therein. No amendment under this
section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every
five years thereafter,
The Congress shall provide for the implementation of
the exercise of this right.
The exercise was thwarted by a petition for prohibition filed with
this Court by Senator Miriam Defensor Santiago, et al., entitled
"Miriam Defensor Santiago, Alexander Padilla and Maria Isabel
Ongpin, petitioners, v. Commission on Elections (COMELEC),
capacities as founding members of the People's Initiative for
Reforms, Modernization and Action (PIRMA), respondents."2 The
case was docketed as G.R. No. 127325. On March 19, 1997, this
Court rendered its Decision in favor of petitioners, holding that
Republic Act No. 6735 (R.A. No. 6735), An Act Providing for a
System of Initiative and Referendum and Appropriating Funds
Therefor, is "incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to
the Constitution is concerned." A majority of eight (8) Justices
fully concurred with this ruling, while five (5) subscribed to the
opposite view. One (1) opined that there is no need to rule on the
adequacy of R.A. No. 6735.  law, to be apportioned among the provinces,
On motion for reconsideration, two (2) of the eight (8) Justices
reconsidered their positions. One (1) filed an inhibition and the
other one (1) joined the minority opinion. As a consequence, of
the thirteen (13) Justices who participated in the deliberation, six
(6) voted in favor of the majority opinion, while the other six (6)
voted in favor of the minority opinion.3
A few months thereafter, or on September 23, 1997, the Court
dismissed a similar case, entitled People's Initiative for Reform,
Modernization and Action (PIRMA) v. Commission on
Elections4 on the ground that the COMELEC did not commit
grave abuse of discretion when it dismissed PIRMA's Petition for
Initiative to Propose Amendments to the Constitution "it
appearing that that it only complied with the dispositions in
the Decision of the Court in G.R. no. 127325 (Santiago v.
COMELEC) promulgated on March 19, 1997, and its
Resolution of June 10, 1997." Seven (7) Justices voted that
there was no need to re-examine its ruling, as regards the issue
of the sufficiency of R.A. No. 6735. Another Justice concurred,
but on the different premise that the case at bar is not the proper
vehicle for such re-examination. Five (5) Justice opined
otherwise. 
This time, another group known as Sigaw ng Bayan, in
coordination with the Union of Local Authorities of the Philippines
(ULAP), have gathered signatures in support of the proposed
amendments to the Constitution, which entail a change in the
form of government from bicameral-presidential to unicameral-
parliamentary, thus:
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be
amended to read as follows:
Section 1. (1) The legislative and executive powers shall
be vested in a unicameral Parliament which shall be
composed of as many members as may be provided by
representative districts, and cities in accordance with the
number of their respective inhabitants, with at least three
hundred thousand inhabitants per district, and on the
basis of a uniform and progressive ratio. Each district
shall comprise, as far as practicable, contiguous, compact
and adjacent territory, and each province must have at
least one member.
(2) Each Member of Parliament shall be a natural-born
citizen of the Philippines, at least twenty-five years old on
the day of the election, a resident of his district for at least
one year prior thereto, and shall be elected by the
qualified voters of his district for a term of five years
without limitation as to the number thereof, except those
under the party-list system which shall be provided for by
law and whose number shall be equal to twenty per
centum of the total membership coming from the
parliamentary districts.
B. Sections 1, 2, 3 and 4 of Article VII of the 1987
Constitution are hereby amended to read, as follows:
Section 1. There shall be a President who shall be the
Head of State. The executive power shall be exercised by
a Prime Minister, with the assistance of the Cabinet. The
Prime Minister shall be elected by a majority of all the
Members of Parliament from among themselves. He shall
be responsible to the Parliament for the program of
government.
C. For the purpose of insuring an orderly transition
from the bicameral-Presidential to a unicameral-
Parliamentary form of government, there shall be a
new Article XVIII, entitled "Transitory Provisions,"
which shall read, as follows:
Section 1. (1) The incumbent President and Vice
President shall serve until the expiration of their term at
noon on the thirtieth day of June 2010 and shall continue
to exercise their powers under the 1987 Constitution
unless impeached by a vote of two thirds of all the
members of the interim parliament.
(2) In case of death, permanent disability, resignation or
removal from office of the incumbent President, the
incumbent Vice President shall succeed as President. In
case of death, permanent disability, resignation or
removal from office of both the incumbent President and
Vice President, the interim Prime Minister shall assume all
the powers and responsibilities of Prime Minister under
Article VII as amended.
Section 2. Upon the expiration of the term of the
incumbent President and Vice President, with the
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of
the 1987 Constitution which shall hereby be amended
and Sections 18 and 24 which shall be deleted, all other
Sections of Article VI are hereby retained and
renumbered sequentially as Section 2, ad seriatium up to
26, unless they are inconsistent with the Parliamentary
system of government, in which case, they shall be
amended to conform with a unicameral parliamentary
form of government; provided, however, that any and all
references therein to "Congress," "Senate," "House of
Representatives" and "Houses of Congress" shall be
changed to read "Parliament;" that any and all references
therein to "Member(s) of Congress," "Senator(s)" or
"Member(s) of Parliament" and any and all references to
the "President" and/or "Acting President" shall be
changed to read "Prime Minister."
Section 3. Upon the expiration of the term of the
incumbent President and Vice President, with the
exception of Sections 1, 2, 3 and 4 of Article VII of the
1987 Constitution which are hereby be amended and
Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted,
all other Sections of Article VII shall be retained and
renumbered sequentially as Section 2, ad seriatim up to
14, unless they shall be inconsistent with Section 1
hereof, in which case they shall be deemed amended so
as to conform to a unicameral Parliamentary System of
government; provided, however, that any and all
references therein to "Congress," "Senate," "House of
Representatives" and "Houses of Congress" shall be
changed to read "Parliament;" that any and all references
therein to "Member(s) of Congress," "Senator(s)" or
"Member(s) of the House of Representatives" shall be
changed to read as "Member(s) of Parliament" and any
and all references to the "President" and/or "Acting
President" shall be changed to read "Prime Minister."
Section 4. (1) There shall exist, upon the ratification of
these amendments, an interim Parliament which shall
continue until the Members of the regular Parliament shall
have been elected and shall have qualified. It shall be
composed of the incumbent Members of the Senate and
the House of Representatives and the incumbent
Members of the Cabinet who are heads of executive
departments.
(2) The incumbent Vice President shall automatically be a
Member of Parliament until noon of the thirtieth day of
June 2010. He shall also be a member of the cabinet and
shall head a ministry. He shall initially convene the interim
Parliament and shall preside over its sessions for the
election of the interim Prime Minister and until the
Speaker shall have been elected by a majority vote of all
the members of the interim Parliament from among
themselves.  and VII of the 1987 Constitution, changing the form of
(3) Senators whose term of office ends in 2010 shall be
Members of Parliament until noon of the thirtieth day of
June 2010.
(4) Within forty-five days from ratification of these
amendments, the interim Parliament shall convene to
propose amendments to, or revisions of, this Constitution
consistent with the principles of local autonomy,
decentralization and a strong bureaucracy.
Section 5. (1) The incumbent President, who is the Chief
Executive, shall nominate, from among the members of
the interim Parliament, an interim Prime Minister, who
shall be elected by a majority vote of the members
thereof. The interim Prime Minister shall oversee the
various ministries and shall perform such powers and
responsibilities as may be delegated to him by the
incumbent President."
(2) The interim Parliament shall provide for the election of
the members of Parliament which shall be synchronized
and held simultaneously with the election of all local
government officials. The duty elected Prime Minister
shall continue to exercise and perform the powers, duties
and responsibilities of the interim Prime Minister until the
expiration of the term of the incumbent President and Vice
President.
Sigaw ng Bayan prepared signature sheets, and written on its
upper right hand portion is the abstract of the proposed
amendments, quoted as follows:
Abstract: Do you approve of the amendment of Article VI
government from the present bicameral-presidential to a
unicameral-parliamentary system of government, in order
to achieve greater efficiency, simplicity and economy in
government; and providing an Article XVIII as Transitory
Provisions for the orderly shift from one system to
another?
On August 25, 2006, Raul L. Lambino and Enrico B. Aumentado,
herein petitioners, filed with the COMELEC a Petition for Initiative
to Amend the Constitution.5 Five (5) days thereafter, they filed an
Amended Petition alleging that they are filing the petition in their
own behalf and together with some 6.3 million registered
voters who have affixed their signatures on the signature
sheets attached thereto. They claimed that the signatures of
registered voters appearing on the signature sheets, constituting
at least twelve per cent (12%) of all registered voters in the
country, wherein each legislative district is represented by at least
three per cent (3%) of all the registered voters, were verified by
their respective city or municipal election officers.
Several organizations opposed the petition. 6
In a Resolution dated August 31, 2006, the COMELEC denied
due course to the petition, citing as basis this Court's ruling
in Santiago, permanently enjoining it "from entertaining or
taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall
have been validly enacted to provide for the implementation
of the system." 
Hence, the present petition for certiorari and mandamus praying
that this Court set aside the COMELEC Resolution and direct the
latter tocomply with Section 4, Article XVII of the Constitution,
which provides:
Sec. 4 x x x
Any amendment under Section 2 hereof shall be valid
when ratified by a majority of the votes cast in a plebiscite
which shall be held not earlier than sixty days nor later
than ninety days after the certification by the Commission
on Elections of the sufficiency of the petition.  or whimsical," "patent and gross," or "arbitrary and despotic."
I vote to dismiss the petition of Lambino, et al. in G.R. No. 174153
and grant the petition of Mar-len Abigail Binay, et al. in G.R. No.
174299. Here, petitioners pray that the COMELEC Chairman and
Commissioners be required to show why they should not be
punished for contempt7 of court for disregarding the permanent
injunction issued by this Court in Santiago.
I
Respondent COMELEC did not act with grave abuse of
discretion
Without necessarily brushing aside the other important issues, I
believe the resolution of the present petition hinges on this
singular issue -- did the COMELEC commit grave abuse of
discretion when it denied Lambino, et al.'s petition for initiative to
amend the Constitution on the basis of this Court's Decision in
Santiago v. COMELEC? 
In other words, regardless of how the other remaining issues are
resolved, still, the ultimate yardstick is the attendance of "grave
abuse of discretion" on the part of the COMELEC.
Jurisprudence teaches that an act of a court or tribunal may only
be considered as committed in grave abuse of discretion when
the same was performed in a capricious or whimsical exercise
of judgment. The abuse of discretion must be
so patent and gross as to amount to an evasion of a positive
duty or to a virtual refusal to perform a duty enjoined by law,
or to act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason
of passion or personal hostility.8
The Resolution of respondent COMELEC denying due course to
the petition for initiative on the basis of a case (Santiago) decided
by this Court cannot, in any way, be characterized as "capricious
On the contrary, it was the most prudent course to take. It must
be stressed that in Santiago, this Court permanently enjoins
respondent COMELEC "from entertaining or taking
cognizance of any petition for initiative on amendments to
the Constitution until a sufficient law shall have been validly
enacted." It being a fact that Congress has not enacted a
sufficient law, respondent COMELEC has no alternative but to
adhere to Santiago. Otherwise, it is vulnerable to a citation for
contempt. As succinctly stated by Chief Justice Artemio V.
Panganiban (then Associate Justice) in his Separate Opinion in
the subsequent case of PIRMA vs. COMELEC:9
x x x I cannot fault the Comelec for complying with the
ruling even if it, too, disagreed with said decision's ratio
decidendi. Respondent Comelec was directly enjoined by
the highest Court of the land. It had no choice but to obey.
Its obedience cannot constitute grave abuse of discretion.
Refusal to act on the PIRMA petition was the only
recourse open to the Comelec. Any other mode of action
would have constituted defiance of the Court and would
have been struck down as grave abuse of discretion and
contumacious disregard of this Court's supremacy as the
final arbiter of justiciable controversies. 
It need not be emphasized that in our judicial hierarchy, this Court
reigns supreme. All courts, tribunals and administrative bodies
exercising quasi-judicial functions are obliged to conform to its
pronouncements. It has the last word on what the law is; it is
the final arbiter of any justifiable controversy. In other words,
there is only one Supreme Court from whose decisions all
other courts should take their bearings.10 As a warning to
lower court judges who would not adhere to its rulings, this Court,
in People v. Santos,11 held:
Now, if a judge of a lower Court feels, in the fulfillment of
his mission of deciding cases, that the application of a
doctrine promulgated by this Superiority is against his way
of reasoning, or against his conscience, he may state his
opinion on the matter, but rather than disposing of the
case in accordance with his personal views he must first
think that it is his duty to apply the law as interpreted by
the Highest Court of the Land, and that any deviation from
a principle laid down by the latter would unavoidably
cause, as a sequel, unnecessary inconveniences, delays
and expenses to the litigants. And if despite of what is
here said, a Judge still believes that he cannot follow Our
rulings, then he has no other alternative than to place
himself in the position that he could properly avoid the
duty of having to render judgment on the case concerned
(Art. 9, C.C.), and he has only one legal way to do that.  modification of the judgment or final order.
Clearly, respondent COMELEC did not gravely abuse its
discretion in dismissing the petition of Lambino, et al. for it merely
followed this Court's ruling in Santiago.
Significantly, in PIRMA vs. COMELEC,12 a unanimous
Court implicitly recognized that its ruling in Santiago is the
established doctrine and that the COMELEC did not commit
grave abuse of discretion in invoking it, thus:
The Court ruled, first, by a unanimous vote, that no grave
abuse of discretion could be attributed to the public
respondent COMELEC in dismissing the petition filed by
PIRMA therein, it appearing that it only complied with the
dispositions of this Court in G.R. No. 127325 promulgated
on March 19, 1997, and its resolution on June 10, 1997.
Indeed, I cannot characterize as a "grave abuse of discretion" the
COMELEC's obedience and respect to the pronouncement of this
Court in Santiago. 
II
The doctrine of stare decisis 
bars the re-examination of Santiago
It cannot be denied that in Santiago, a majority of the members of
this Court or eight (8) Justices (as against five (5) Justices)
concurred in declaring R.A. No. 6735 an insufficient law. When
the motion for reconsideration was denied via an equally-divided
Court or a 6-6 vote, it does not mean that the Decision was
overturned. It only shows that the opposite view fails to muster
enough votes to modify or reverse the majority ruling. Therefore,
the original Decision was upheld.13 In Ortigas and Company
Limited Partnership vs. Velasco,14 this Court ruled that the denial
of a motion or reconsideration signifies that the ground
relied upon have been found, upon due deliberation, to be
without merit, as not being of sufficient weight to warrant a
 
With Santiago being the only impediment to the instant petition for
initiative, petitioners persistently stress that the doctrine of stare
decisis does not bar its re-examination. 
I am not convinced. The maxim stare decisis et non quieta
movere translates "stand by the decisions and disturb not
what is settled."15 As used in our jurisprudence, it means that
"once this Court has laid down a principle of law as
applicable to a certain state of facts, it would adhere to that
principle and apply it to all future cases in which the facts
are substantially the same as in the earlier controversy."16
There is considerable literature about whether this doctrine
of stare decisis is a good or bad one, but the doctrine is usually
justified by arguments which focus on the desirability of stability
and certainty in the law and also by notions of justice and
fairness. Justice Benjamin Cardozo in his treatise, The Nature of
the Judicial Process stated:
It will not do to decide the same question one way
between one set of litigants and the opposite way
between another. 'If a group of cases involves the
same point, the parties expect the same decision. It
would be a gross injustice to decide alternate cases
on opposite principles. If a case was decided against
me yesterday when I was a defendant, I shall look for
the same judgment today if I am plaintiff. To decide
differently would raise a feeling of resentment and
wrong in my breast; it would be an infringement,
material and moral, of my rights." Adherence to
precedent must then be the rule rather than the exception
if litigants are to have faith in the even-handed
administration of justice in the courts.17
That the doctrine of stare decisis is related to justice and fairness
may be appreciated by considering the observation of American
philosopher William K. Frankena as to what constitutes injustice:
The paradigm case of injustice is that in which there
are two similar individuals in similar circumstances
and one of them is treated better or worse than the
other. In this case, the cry of injustice rightly goes up
against the responsible agent or group; and unless that
agent or group can establish that there is some relevant
dissimilarity after all between the individuals concerned
and their circumstances, he or they will be guilty as
charged.18
Although the doctrine of stare decisis does not prevent re-
examining and, if need be, overruling prior decisions, "It is x x x a
fundamental jurisprudential policy that prior applicable precedent
usually must be followed even though the case, if considered
anew, might be decided differently by the current justices. This
policy x x x 'is based on the assumption that certainty,
predictability and stability in the law are the major objectives
of the legal system; i.e., that parties should be able to
regulate their conduct and enter into relationships with
reasonable assurance of the governing rules of
law.19 Accordingly, a party urging overruling a precedent faces a
rightly onerous task, the difficulty of which is roughly proportional
to a number of factors, including the age of the precedent,
the nature and extent of public and private reliance on it, and
its consistency or inconsistency with other related rules of law.
Here, petitioners failed to discharge their task. 
Santiago v. COMELEC was decided by this Court on March 19,
1997 or more than nine (9) years ago. During that span of time,
the Filipino people, specifically the law practitioners, law
professors, law students, the entire judiciary and litigants have
recognized this Court's Decision as a precedent. In fact,
the Santiago doctrine was applied by this Court in the subsequent
case of PIRMA. Even the legislature has relied on said Decision,
thus, several bills have been introduced in both Houses of
Congress to cure the deficiency. I cannot fathom why it should be
overturned or set aside merely on the basis of the petition of
Lambino, et al. Indeed, this Court's conclusion in Santiago that
R.A. No. 6735 is incomplete, inadequate or wanting in essential
terms and conditions insofar as initiative on amendments to the
Constitution is concerned remains a precedent and must be
upheld.
III
The proposed constitutional changes constitute revisions
and not mere amendments
Article XVII of the 1987 Constitution lays down the means for its
amendment and revision. Thus:
 Section 1. Any amendment to, or revision of, this
Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of
all its members; or
(2) A Constitutional Convention.
Section 2. Amendments to this Constitution may likewise
be directly proposed by the people
through initiative upon a petition of at least twelve per
centum of the total number of registered votes, of which
every legislative district must be represented by at least
three per centum of the registered voters therein. x x x.
(Emphasis supplied)
At the outset, it must be underscored that initiative and
referendum, as means by which the people can directly propose
changes to the Constitution, were not provided for in the 1935
and 1973 Constitutions. Thus, under these two (2) Constitutions,
there was no demand to draw the distinction between an
amendment and a revision, both being governed by a uniform
process. This is not so under our present Constitution. The
distinction between an amendment and a revision becomes
crucial because only amendments are allowed under the system
of people's initiative. Revisions are within the exclusive domain
of Congress, upon a vote of three-fourths of all its members, or of
a Constitutional Convention.
The deliberations of the 1986 Constitutional Commission is
explicit that Section 2, Article XVII covers only amendments,
thus:
The sponsor, Commissioner Suarez, is recognized.
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the attention of the Members of
the Commission that pursuant to the mandate given us
last night, we submitted this afternoon a complete
Committee Report No. 7 which embodies the proposed
provision governing initiative. This is now covered by
Section 2 of the complete committee report. With the
permission of the Members, may I quote Section 2:
The people may, after five years from the date of the last
plebiscite held, directly propose amendments to this
Constitution thru initiative upon petition of at least ten
percent of the registered voters.
This completes the blanks appearing in the original
Committee Report No. 7. This proposal was suggested on
the theory that this matter of initiative which came about
because of the extraordinary developments this year, has
to be separated from the traditional modes of amending
the Constitution as embodied in Section 1. The
committee members felt that this system of initiative
should be limited to amendments to the Constitution
and should not extend to the revision of the entire
Constitution, so we removed it from the operation of
Section 1 of the proposed Article on Amendment or
Revision.
xxx xxx xxx
MR. MAAMBONG: Madam President, will the
distinguished proponent of the amendment yield to a few
questions?
MR. DAVIDE: With pleasure, Madam President.
MR. MAAMBONG: My first question, Commissioner
Davide's proposed amendment on line I refers to
"amendments." Does it not cover the word "revision"
 as defined by Commissioner Padilla when he made
the distinction between the words "amendments" and
"revision?"
MR. DAVIDE: No, it does not, because "amendments"
and "revision" should be covered by Section 1. So
insofar as initiative is concerned, it can only relate to
"amendments" not "revision"
MR. MAAMBONG: Thank you.20
Considering that the initiative on the Constitution only permits
amendments, it is imperative to examine whether petitioners'
proposed changes partake of the nature of amendments, not
revisions.
The petition for initiative filed with the COMELEC by Lambino, et
al. sought to amend the following provisions of the 1987
Constitution: Sections 1, 2, 3, 4, 5, 6, and 7 of Article VI (The
Legislative Department); Sections 1, 2, 3 and 4 of Article VII (The
Executive Department). It further includes Article XVIII (Transitory
Provisions) for the purpose of insuring an orderly transition from
the bicameral-presidential to a unicameral-parliamentary form of
government.
Succinctly, the proposals envision a change in the form of
government, from bicameral-presidential to unicameral-
parliamentary; conversion of the present Congress of the
Philippines to an Interim National Assembly; change in the terms
of Members of Parliament; and the election of a Prime Minister
who shall be vested with executive power.  scheme, or structure of the old. As applied to
Petitioners contend that the proposed changes are in the nature
of amendments, hence, within the coverage of a "people's
initiative."
I disagree. 
The noted constitutionalist, Father Joaquin G. Bernas, S.J., who
was also a member of the 1986 Constitutional Commission,
characterized an amendment and a revision to the Constitution as
follows:
An amendment envisages an alteration of one or a few
specific and separable provisions. The guiding original
intention of an amendment is to improve specific parts or
to add new provisions deemed necessary to meet new
conditions or to suppress specific portions that may have
become obsolete or that are judged to be dangerous. In
revision however, the guiding original intention and
plan contemplates a re-examination of the entire
document, or of provisions of the document which
have over-all implications for the document to
determine how and to what extent they should be
altered.21
Obviously, both "revision" and amendment" connote change; any
distinction between the two must be based upon the degree of
change contemplated. In Kelly v. Laing,22 the Supreme Court of
Michigan made the following comparison of the two terms: 
"Revision" and "amendment" have the common
characteristics of working changes in the charter, and are
sometimes used in exactly the same sense but there is an
essential difference between them. 
"Revision" implies a reexamination of the whole law
and a redraft without obligation to maintain the form,
fundamental law, such as a constitution or charter, it
suggests a convention to examine the whole subject and
to prepare and submit a new instrument whether the
desired changes from the old are few or
many. Amendment implies continuance of the general
plan and purpose of the law, with corrections to
better accomplish its purpose. Basically, revision
 suggests fundamental change, while amendment is a
correction of detail.
Although there are some authorities which indicate that a change
in a city's form of government may be accomplished by a process
of "amendment," the cases which so hold seem to involve
statutes which only distinguish between amendment and totally
new charters.23 However, as in Maine law, where the statute
authorizing the changes distinguishes between "charter
amendment" and "charter revision," it has been held that "(a)
change in the form of government of a home rule city may be
made only by revision of the city charter, not by its
amendment."24
In summary, it would seem that any major change in
governmental form and scheme would probably be interpreted as
a "revision" and should be achieved through the more thorough
process of deliberation.
Although, at first glance, petitioners' proposed changes appear to
cover isolated and specific provisions only, however, upon careful
scrutiny, it becomes clear that the proposed changes will alter
the very structure of our government and create multifarious
ramifications. In other words, the proposed changes will have a
"domino effect" or, more appropriately, "ripple effect" on other
provisions of the Constitution. 
At this juncture, it must be emphasized that the power reserved to
the people to effect changes in the Constitution includes the
power to amend anysection in such a manner that the proposed
change, if approved, would "be complete within itself, relate to
one subject and not substantially affect any other section or
article of the Constitution or require further amendments to
the Constitution to accomplish its purpose."25 This is clearly
not the case here.
Firstly, a shift from a presidential to a parliamentary form of
government affects the well-enshrined doctrine of separation of
powers of government, embodied in our Constitution, by providing
for an Executive, Legislative and Judiciary Branches. In a
Parliamentary form of government, the Executive Branch is to a
certain degree, dependent on the direct or indirect support of the
Parliament, as expressed through a "vote of confidence." To my
mind, this doctrine of separation of powers is so interwoven
in the fabric of our Constitution, that any change affecting
such doctrine must necessarily be a revision. 
In McFadden vs. Jordan,26 the California Supreme Court ruled as
follows:
It is thus clear that that a revision of the Constitution may
be accomplished only through ratification by the people of
a revised constitution proposed by a convention called for
that purpose x x x. Consequently, if the scope of the
proposed initiative measure now before us
is so broad that if such measure became law a
substantial revision of our present state Constitution
would be effected, then the measure may not properly
be submitted to the electorate until and unless it is
first agreed upon by a constitutional convention. x x
x. 
Secondly, the shift from a bicameral to a unicameral form of
government is not a mere amendment, but is in actuality a
revision, as set forth in Adams v. Gunter27:
The proposal here to amend Section I of Article III of the
1968 Constitution to provide for a Unicameral
Legislature affects not only many other provisions of
the Constitution but provides for a change in the form
of the legislative branch of government, which has
been in existence in the United States Congress and in all
of the states of the nation, except one, since the earliest
days. It would be difficult to visualize a more
 revolutionary change. The concept of a House and a
Senate is basic in the American form of government. It
would not only radically change the whole pattern of
the government in this state and tear apart the whole
fabric of the Constitution, but would even affect the
physical facilities necessary to carry on government.
Thirdly, the proposed changes, on their face, signify revisions
rather than amendments, especially, with the inclusion of the
following "omnibus provision":
C. For the purpose of insuring an orderly transition from
the bicameral-Presidential to a unicameral-Parliamnetary
form of government, there shall be a new Article XVIII,
entitled "Transitory Provisions" which shall read, as
follows:
xxxxxxxxx
Section 3. Upon the expiration of the term of the
incumbent President and Vice-President, with the
exceptions of Section 1,2,3 and 4 of Article VII of the 1987
Constitution which are hereby amended x x x x x x and all
other Sections of Article VII shall be retained and
numbered sequentially as Section 2, ad seriatim up to
14,unless they shall be inconsistent with Section 1
hereof, in which case they shall be deemed amended
so as to conform to a unicameral Parliamentary
system of government x x x x x x .
xxxxxxxxx
Section 4. (1) x x x
(3) Within forty-five days from ratification of these
amendments, the Interim Parliament shall convene to
propose amendments to, or revisions of, this Constitution,
consistent with the principles of local autonomy,
decentralization and a strong bureaucracy.
The above provisions will necessarily result in a "ripple effect" on
the other provisions of the Constitution to make them conform to
the qualities of unicameral-parliamentary form of government.
With one sweeping stroke, these proposed
provisions automatically revise some provisions of the
Constitution. In McFadden, the same practice was considered by
the Court to be in the nature of substantial revision,
necessitating a constitutional convention. I quote the pertinent
portion of its ruling, thus:
There is in the measure itself, no attempt to enumerate
the various and many articles and sections of our present
Constitution which would be affected, replaced or
repealed. It purports only to add one new article but its
framers found it necessary to include the omnibus
provision (subdivision (7) of section XII) that "If any
section, subsection, sentence, clause or phrase of the
constitution is in conflict with any of the provisions of this
article, such section, subsection, sentence, clause, or
phrase is to the extent of such conflict hereby repealed. x
x x Consequently, if the scope of the proposed intitiative
measure now before us is so broad that if such measure
become law a substantial revision of our present state
Constitution would be be effected, then the measure may
not properly be submitted to the electorate until and
unless it is first agreed upon by a constitutional
convention.28
Undoubtedly, the changes proposed by the petitioners are not
mere amendments which will only affect the Articles or Sections
sought to be changed. Rather, they are in the nature of revisions
which will affect considerable portions of the Constitution resulting
in the alteration of our form of government. The proposed
changes cannot be taken in isolation since these are connected
or "interlocked" with the other provisions of our Constitution.
Accordingly, it has been held that: "If the changes attempted
are so sweeping that it is necessary to include the
provisions interlocking them, then it is plain that the plan
would constitute a recasting of the whole Constitution and
this, we think, it was intended to be accomplished only by a
convention under Section 2 which has not yet been
disturbed."29
I therefore conclude that since the proposed changes partake of
the nature of a revision of the Constitution, then they cannot be
the subject of an initiative. On this matter, Father Bernas
expressed this insight:
But why limit initiative and referendum to simple
amendments? The answer, which one can easily glean
from the rather long deliberation on initiative and
referendum in the 1986 Constitutional Commission, is
practicality. In other words, who is to formulate the
revision or how is it to be formulated? Revision, as
concretely being proposed now, is nothing less than a
rebuilding of the Philippine constitutional
structure. Who were involved in formulating the
structure? What debates ensued? What records are there
for future use in interpreting the provisions which may be
found to be unclear?
In a deliberative body like Congress or a Constitutional
Convention, decisions are reached after much purifying
debate. And while the deliberations proceed, the public
has the opportunity to get involved. It is only after the
work of an authorized body has been completed that it is
presented to the electorate for final judgment. Careful
debate is important because the electorate tends to
accept what is presented to it even sight unseen. 30
IV
R.A. No. 6735 is insufficient to implement the People's
initiative
Section 2, Article XVII of the 1987 Constitution reads:
Section 2. Amendments to this Constitution may likewise
be directly proposed by the people through initiative upon
a petition of at least twelve per centum of the total number
of registered voters, of which every legislative district
must be represented by at least three per centum of the
registered voters therein. No amendment under this
section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every
five years thereafter,
The Congress shall provide for the implementation of
the exercise of this right.
On its face, Section 2 is not a self-executory provision. This
means that an enabling law is imperative for its implementation.
Thus, Congress enacted R.A. No. 6735 in order to breathe life
into this constitutional provision. However, as previously narrated,
this Court struck the law in Santiago for being incomplete,
inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the
Constitution is concerned. 
The passage of time has done nothing to change the applicability
of R.A. No. 6735. Congress neither amended it nor passed a new
law to supply its deficiencies. 
Notwithstanding so, this Court is being persuaded to take a 360-
degree turn, enumerating three (3) justifications why R.A. No.
6735 must be considered a sufficient law, thus:
1) The text of R.A. No. 6735 is replete with references
to the right of people to initiate changes to the
Constitution;
 2) The legislative history of R.A. No. 6735 reveals
the clear intent of the lawmakers to use it as instrument
to implement the people's initiative; and
3) The sponsorship speeches by the authors of R.A.
No. 6735 demonstrate the legislative intent to use it as
instrument to implement people's initiative.
I regret to say that the foregoing justifications are wanting.
A thorough reading of R.A. No. 6735 leads to the conclusion that
it covers only initiatives on national and local legislation. Its
references to initiatives on the Constitution are few,
isolated and misplaced. Unlike in the initiatives on national and
local legislation, where R.A. No. 6735 provides a detailed, logical,
and exhaustive enumeration on their implementation,31 however,
as regards initiative on the Constitution, the law merely:
(a) mentions the word "Constitution" in Section 2;32
(b) defines "initiative on the Constitution" and includes it in
the enumeration of the three systems of initiative in
Section 3;33
(c) speaks of "plebiscite" as the process by which the
proposition in an initiative on the Constitution may be
approved or rejected by the people;34
(d) reiterates the constitutional requirements as to the
number of voters who should sign the petition;35 and
(e) provides the date for the effectivity of the approved
proposition.36
In other words, R.A. No. 6735 does not specify the procedure
how initiative on the Constitution may be accomplished. This is
not the enabling law contemplated by the Constitution. As pointed
out by oppositor-intervenor Alternative Law Groups Inc., since the
promulgation of the Decision in Santiago, various bills have been
introduced in both Houses of Congress providing for
a complete and adequate process for people's initiative, such
as: 
· Names, signatures and addresses of petitioners who
shall be registered voters;
· A statement of the provision of the Constitution or any
part thereof sought to be amended and the proposed
amendment;
· The manner of initiation - in a congressional district
through a petition by any individual, group, political party
or coalition with members in the congressional district;
· The language used: the petition should be printed in
English and translated in the local language;
· Signature stations to be provided for;
· Provisions pertaining to the need and manner of posting,
that is, after the signatures shall have been verified by the
Commission, the verified signatures shall be posted for at
least thirty days in the respective municipal and city halls
where the signatures were obtained;
· Provisions pertaining to protests allowed any protest as
to the authenticity of the signatures to be filed with the
COMELEC and decided within sixty (60) days from the
filing of said protest. 
None of the above necessary details is provided by R.A. No.
6735, thus, demonstrating its incompleteness and inadequacy. 
 V 2. The proposed amendments must be contained in "a
Petitioners are not Proper Parties to
File the Petition for Initiative
VI
The Petition for Initiative Filed with the COMELEC Does not
Comply with Section 2, Article XVII of the Constitution and
R.A. No. 6735
I shall discuss the above issues together since they are
interrelated and inseparable. The determination of whether
petitioners are proper parties to file the petition for initiative in
behalf of the alleged 6.3 million voters will require an
examination of whether they have complied with the
provisions of Section 2, Article XVII of the Constitution.  Forum Shopping" contained in their petition, they alleged under
To reiterate, Section 2, Article XVII of the Constitution provides:
Section 2. Amendments to this Constitution may likewise
be directly proposed by the people through initiative
upon a petition of at least twelve per centum of the
total number of registered voters, of which every
legislative district must be represented by at least three
per centum of the registered voters therein. No
amendment under this section shall be authorized within
five years following the ratification of this Constitution nor
oftener than once every five years thereafter.
The Congress shall provide for the implementation of the
exercise of this right. (Underscoring supplied)
The mandate of the above constitutional provisions is definite and
categorical. For a people's initiative to prosper, the following
requisites must be present:  shall be "directly proposed by the people through initiative
1. It is "the people" themselves who must "directly
propose" "amendments" to the Constitution; 
petition of at least twelve per centum of the total
number of registered voters;" and 
3. The required minimum of 12% of the total number of
registered voters "must be represented by at least
three per centum of the registered voters" of "every
legislative district." 
In this case, however, the above requisites are not present. 
The petition for initiative was filed with the COMELEC by
petitioners Lambino and Aumentado, two registered voters. As
shown in the "Verification/Certification with Affidavit of Non-
oath that they have caused the preparation of the petition in their
personal capacity as registered voters "and as representatives"
of the supposed 6.3 million registered voters. This goes to show
that the questioned petition was not initiated directly by the 6.3
million people who allegedly comprised at least 12% of the total
number of registered voters, as required by Section 2.
Moreover, nowhere in the petition itself could be found the
signatures of the 6.3 million registered voters. Only the
signatures of petitioners Lambino and Aumentado were affixed
therein "as representatives" of those 6.3 million people.
Certainly, that is not the petition for people's
initiative contemplated by the Constitution. 
Petitioners Lambino and Aumentado have no
authority whatsoever to file the petition "as representatives" of
the alleged 6.3 million registered voters. Such act of
representation is constitutionally proscribed. To repeat,
Section 2 strictly requires that amendments to the Constitution
upon a petition of at least twelve per centum of the total
number of registered voters." Obviously, the phrase
"directly proposed by the people" excludes any person acting as
representative or agent of the 12% of the total number of
registered voters. The Constitution has bestowed upon the
people the right to directly propose amendments to the
Constitution. Such right cannot be usurped by anyone under the
guise of being the people's representative. Simply put, Section 2
does not recognize acts of representation. For it is only "the
people" (comprising the minimum of 12% of the total number of
registered voters, of which every legislative district must be
represented by at least three per centum of the registered voters
therein) who are the proper parties to initiate a petition
proposing amendments to the Constitution. Verily, the petition
filed with the COMELEC by herein petitioners Lambino and
Aumentado is not a people's initiative. Necessarily, it must fail.
Cororarilly, the plea that this Court should "hear" and "heed" "the
people's voice" is baseless and misleading. There is no people's
voice to be heard and heeded as this petition for initiative is
not truly theirs, but only of petitioners Lambino and
Aumentado and their allies.
VII
The issues at bar are not political questions.
Lambino and Aumentado, petitioners in G.R. No. 174153,
vehemently argue that: (1) "the validity of the exercise of the right
of the sovereign people to amend the Constitution and their will,
as expressed by the fact that over six million registered voters
indicated their support of the Petition for initiative is a purely
political question;" and (2) "[t]he power to propose amendments
to the Constitution is a right explicitly bestowed upon the
sovereign people. Hence, the determination by the people to
exercise their right to propose amendments under the system of
initiative is a sovereign act and falls squarely within the ambit of a
political question."  address of grievances through democratic processes, the people
The "political question doctrine" was first enunciated by the US
Supreme Court in Luther v. Borden.37 Faced with the difficult
question of whether the Supreme Court was the appropriate
institution to define the substantive content of republicanism, the
US Supreme Court, speaking thru Mr. Justice Roger B. Taney,
concluded that "the sovereignty in every State resides in the
people, as to how and whether they exercised it, was under
the circumstances of the case, a political question to be
settled by the political power." In other words, the responsibility
of settling certain constitutional questions was left to the
legislative and executive branches of the government.
The Luther case arose from the so-called "Dorr Rebellion" in the
State of Rhode Island. Due to increased migration brought about
by the Industrial Revolution, the urban population of Rhode Island
increased. However, under the 1663 Royal Charter which served
as the State Constitution, voting rights were largely limited to
residents of the rural districts. This severe mal-apportionment of
suffrage rights led to the "Dorr Rebellion." Despairing of obtaining
remedies for their disenfranchisement from the state government,
suffrage reformers invoked their rights under the American
Declaration of Independence to "alter or abolish" the government
and to institute a new one. The reformers proceeded to call for
and hold an extralegal constitutional convention, drafted a new
State Constitution, submitted the document for popular
ratification, and held elections under it. The State government,
however, refused to cede power, leading to an anomalous
situation in that for a few months in 1842, there were two
opposing state governments contending for legitimacy and
possession of state of offices. 
The Rhode Island militia, under the authority of martial law,
entered and searched the house of Martin Luther, a Dorr
supporter. He brought suit against Luther Borden, a militiaman.
Before the US Supreme Court, Luther's counsel argued that since
the State's archaic Constitution prevented a fair and peaceful
of Rhode Island had instead chosen to exercise their inherent
right in popular sovereignty of replacing what they saw as an
oppressive government. The US Supreme Court deemed the
controversy as non-justiciable and inappropriate for judicial
resolution. 
In Colgrove v. Green,38 Mr. Justice Felix Frankfurter, coined the
phrase "political thicket" to describe situations where Federal
courts should not intervene in political questions which they have
neither the competence nor the commission to decide.
In Colgrove, the US Supreme Court, with a narrow 4-3 vote
branded the apportionment of legislative districts in Illinois "as a
political question and that the invalidation of the districts
might, in requiring statewide elections, create an evil greater
than that sought to be remedied." 
While this Court has adopted the use of Frankfurter's "political
thicket," nonetheless, it has sought to come up with a definition of
the term "political question." Thus, in Vera v. Avelino,39 this Court
ruled that properly, political questions are "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." In Tañada and
Macapagal v. Cuenco,40 the Court held that the term political
question connotes, in legal parlance, what it means in ordinary
parlance, namely, a question of policy. It is concerned with
issues dependent upon the wisdom, not legality, of a
particular measure.  Moreover, even assuming arguendo that the issues raised before
In Aquino v. Enrile,41 this Court adopted the following guidelines
laid down in Baker v. Carr42 in determining whether a question
before it is political, rather than judicial in nature, to wit:
1) there is a textually demonstrable constitutional
commitment of the issue to a coordinate political
department; or
2) there is a lack of judicially discoverable and
manageable standards for resolving it; or
3) there is the sheer impossibility of deciding the matter
without an initial policy determination of a kind clearly for
non-judicial discretion; or
4) there is the sheer impossibility of the Court's
undertaking an independent resolution without expressing
lack of respect due the coordinate branches of
government; or
5) there is an unusual need for unquestioning adherence
to a political decision already made; or
6) there exists the potentiality of embarrassment arising
from multifarious pronouncements by various
departments on one question. 
None of the foregoing standards is present in the issues raised
before this Court. Accordingly, the issues are justiciable. What
is at stake here is the legality and not the wisdom of the act
complained of.
this Court are political in nature, it is not precluded from resolving
them under its expanded jurisdiction conferred upon it by Section
1, Article VIII of the Constitution, following Daza v. Singson.43 As
pointed out in Marcos v. Manglapus,44 the present Constitution
limits resort to the political question doctrine and broadens the
scope of judicial power which the Court, under previous charters,
would have normally and ordinarily left to the political
departments to decide. 
CONCLUSION
In fine, considering the political scenario in our country today, it is
my view that the so-called people's initiative to amend our
Constitution from bicameral-presidential to unicameral-
parliamentary is actually not an initiative of the people, but an
initiative of some of our politicians. It has not been shown by
petitioners, during the oral arguments in this case, that the 6.3
million registered voters who affixed their signatures understood
what they signed. In fact, petitioners admitted that the
Constitutional provisions sought to be amended and the proposed
amendments were not explained to all those registered voters.
Indeed, there will be no means of knowing, to the point of judicial
certainty, whether they really understood what petitioners and
their group asked them to sign.
Let us not repeat the mistake committed by this Court
in Javellana v. The Executive Secretary.45 The Court then ruled
that "This being the vote of the majority, there is no further judicial
obstacle to the new Constitution being considered in force and
effect," although it had notice that the Constitution proposed by
the 1971 Constitutional Convention was not validly ratified by the
people in accordance with the 1935 Constitution. The Court
concluded, among others, that the viva voce voting in the
Citizens' Assemblies "was and is null and void ab initio." That was
during martial law when perhaps majority of the justices were
scared of the dictator. Luckily at present, we are not under a
martial law regime. There is, therefore, no reason why this Court
should allow itself to be used as a legitimizing authority by the so-
called people's initiative for those who want to perpetuate
themselves in power.
At this point, I can say without fear that there is nothing wrong
with our present government structure. Consequent1y, we must
not change it. America has a presidential type of government.
Yet, it thrives ideally and has become a super power. It is then
safe to conclude that what we should change are some of
the people running the government, NOT the SYSTEM.
According to petitioners, the proposed amendment would effect a
more efficient, more economical and more responsive
government.
Is there hope that a new breed of politicians, more qualified and
capable, may be elected as members and leaders of the
unicameral-parliament? Or will the present members of the Lower
House continue to hold their respective positions with limitless
terms?
Will the new government be more responsive to the needs of the
poor and the marginalized? Will it be able to provide homes for
the homeless, food for the hungry, jobs for the jobless and
protection for the weak?
This is a defining moment in our history. The issue posed before
us is crucial with transcendental significance. And history will
judge us on how we resolve this issue – shall we allow the
revision of our Constitution, of which we are duty bound to guard
and revere, on the basis of a doubtful people's initiative? 
Amending the Constitution involving a change of government
system or structure is a herculean task affecting the entire Filipino
people and the future generations. Let us, therefore, entrust this
duty to more knowledgeable people elected as members of a
Constitutional Convention.
Yes, the voice of the people is the voice of God. But under the
circumstances in this case, the voice of God is not audible.
WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153
and to GRANT the petition in G.R. No. 174299.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
____________________
EN BANC
G.R. No. 174153  MATTER OF PROPOSING AMENDMENTS TO THE 1987
CONSTITUTION THROUGH A PEOPLE'S INITIATIVE: A SHIFT
RAUL L. LAMBINO and ERICO B. AUMENTADO, together FROM A BICAMERAL PRESIDENTIAL TO A UNICAMERAL
with 6,327,952 REGISTERED VOTERS, petitioners,  PARLIAMENTARY GOVERNMENT BY AMENDING ARTICLES
vs. VI AND VII; AND PROVIDING TRANSITORY PROVISIONS FOR
THE COMMISSION ON ELECTIONS, respondent. THE ORDERLY SHIFT FROM THE PRESIDENTIAL TO THE
PARLIAMENTARY SYSTEM." The case was docketed as EM
G.R. No. 174299  (LD)-06-01. On August 30, 2006, petitioners filed an amended
petition. For brevity, it is referred to as the petition for initiative.
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and
RENE A.Q. SAGUISAG, petitioners,  Petitioners alleged therein, inter alia, that they filed their petition
vs. in their own behalf and together with those who have affixed their
THE COMMISSION ON ELECTIONS, represented by signatures to the signature sheets appended thereto who are
Chairman BENJAMIN S. ABALOS, SR., and Commissioners Filipino citizens, residents and registered voters of the
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., Philippines, and they constitute at least twelve percent (12%) of
ROMEO A. BRAWNER, RENE V. SARMIENTO, and JOHN all the registered voters in the country, wherein each legislative
DOE and PETER DOE, respondents. district is represented by at least three percent (3%) of all the
registered voters therein.
x
--------------------------------------------------------------------------------------- Petitioners further alleged therein that the filing of the petition for
-x initiative is based on their constitutional right to propose
amendments to the 1987 Constitution by way of people's
initiative, as recognized in Section 2, Article XVII thereof, which
SEPARATE CONCURRING OPINION
provides:
CALLEJO, SR., J.:
SEC. 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
I am convinced beyond cavil that the respondent Commission on petition of at least twelve per centum of the total number
Elections (COMELEC) did not commit an abuse of its discretion in of registered voters, of which every legislative district
dismissing the amended petition before it. The proposals of must be represented by at least three per centum of the
petitioners incorporated in said amended petition are for the registered voters therein. No amendment under this
revision of the 1987 Constitution. Further, the amended petition section shall be authorized within five years following the
before the respondent COMELEC is insufficient in substance. ratification of this Constitution nor oftener than once every
five years thereafter.
The Antecedents
The Congress shall provide for the implementation of the
On August 25, 2006, petitioners Raul L. Lambino and Erico B. exercise of this right."
Aumentado filed with the COMELEC a petition entitled "IN THE
According to petitioners, while the above provision states that
"(T)he Congress shall provide for the implementation of the
exercise of this right," the provisions of Section 5(b) and (c), along
with Section 7 of Republic Act (RA) 6735,1are sufficient enabling
details for the people's exercise of the power. The said sections
of RA 6735 state:
Sec. 5. Requirements. – (a) To exercise the power x x x
(b) A petition for an initiative on the 1987 Constitution
must have at least twelve per centum (12%) of the total
number of registered voters as signatories, of which every
legislative district must be represented by at least three
per centum (3%) of the registered voters therein. Initiative
on the Constitution may be exercised only after five (5)
years from the ratification of the 1987 Constitution and
only once every five (5) years thereafter.
(c) The petition shall state the following:
c.1. contents or text of the proposed law sought to
be enacted, approved or rejected, amended or
repealed, as the case may be;
c.2. the proposition;
c.3. the reason or reasons therefor;
c.4. that it is not one of the exceptions provided
herein;
c.5. signatures of the petitioners or registered
voters; and
c.6. an abstract or summary in not more than one
hundred (100) words which shall be legibly written
or printed at the top of every page of the petition.
xxxx
Sec. 7. Verification of Signatures. – The Election
Registrar shall verify the signatures on the basis of the
registry list of voters, voters' affidavits and voters
identification cards used in the immediately preceding
election.
They also alleged that the COMELEC has the authority, mandate
and obligation to give due course to the petition for initiative, in
compliance with the constitutional directive for the COMELEC to
"enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum and
recall."2
Petitioners incorporated in their petition for initiative the changes
they proposed to be incorporated in the 1987 Constitution and
prayed that the COMELEC issue an order:
1. Finding the Petition to be sufficient pursuant to Section
4, Article XVII of the 1987 Constitution;
2. Directing the publication of the Petition in Filipino and
English at least twice in newspapers of general and local
circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor
later than ninety days after the Certification by this
Honorable Commission of the sufficiency of this Petition,
to allow the Filipino people to express their sovereign will
on the proposition.
Petitioners pray for such other reliefs deemed just and
equitable in the premises.
The Ruling of the respondent COMELEC
On August 31, 2006, the COMELEC promulgated the assailed
Resolution denying due course and dismissing the petition for
initiative. The COMELEC ruled that:
We agree with the petitioners that this Commission has
the solemn Constitutional duty to enforce and administer
all laws and regulations relative to the conduct of, as in
this case, initiative.
This mandate, however, should be read in relation to the
other provisions of the Constitution particularly on
initiative.
Section 2, Article XVII of the 1987 Constitution provides:
"Sec. 2. Amendments to this Constitution may,
likewise, be directly proposed by the people
through initiative, upon a petition of at least twelve
per centum of the total number of registered
voters, of which every legislative district must be
represented by at least three per centum of the
registered voters therein. x x x.
The Congress shall provide for the
implementation of the exercise of this right."
The aforequoted provision of the Constitution being a
non-self-executory provision needed an enabling law for
its implementation. Thus, in order to breathe life into the
constitutional right of the people under a system of
initiative to directly propose, enact, approve or reject, in
whole or in part, the Constitution, laws, ordinances, or
resolution, Congress enacted RA 6735.
However, the Supreme Court, in the landmark case
of Santiago v. Commission on Elections struck down the
said law for being incomplete, inadequate, or wanting in
essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned
The Supreme Court, likewise, declared that this
Commission should be permanently enjoined from
entertaining or taking cognizance of any petition for
initiative on amendments to the Constitution until a
sufficient law shall have been validly enacted to provide
for the implementation of the system.
Thus, even if the signatures in the instant Petition appear
to meet the required minimum per centum of the total
number of registered voters, of which every legislative
district is represented by at least three per centum of the
registered voters therein, still the Petition cannot be given
due course since the Supreme Court categorically
declared RA 6735 as inadequate to cover the system of
initiative on amendments to the Constitution.
This Commission is not unmindful of the transcendental
importance of the right of the people under a system of
initiative. However, neither can we turn a blind eye to the
pronouncement of the High Court that in the absence of a
valid enabling law, this right of the people remains nothing
but an "empty right," and that this Commission is
permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments to
the Constitution. (Citations omitted.)
Aggrieved, petitioners elevated the case to this Court on a
petition for certiorari and mandamus under Rule 65 of the Rules
of Court.
The Petitioners' Case
In support of their petition, petitioners alleged, inter alia, that:
 I.
THE HONORABLE PUBLIC RESPONDENT COMELEC
COMMITTED GRAVE ABUSE OF DISCRETION IN
REFUSING TO TAKE COGNIZANCE OF, AND TO GIVE
DUE COURSE TO THE PETITION FOR INITIATIVE,
BECAUSE THE CITED SANTIAGO RULING OF 19
MARCH 1997 CANNOT BE CONSIDERED THE
MAJORITY OPINION OF THE SUPREME COURT EN
BANC, CONSIDERING THAT UPON ITS
RECONSIDERATION AND FINAL VOTING ON 10 JUNE
1997, NO MAJORITY VOTE WAS SECURED TO
DECLARE REPUBLIC ACT NO. 6735 AS INADEQUATE,
INCOMPLETE AND INSUFFICIENT IN STANDARD.
II.
THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6735,
REPUBLIC ACT NO. 8189 AND EXISTING
APPROPRIATION OF THE COMELEC PROVIDE FOR
SUFFICIENT DETAILS AND AUTHORITY FOR THE
EXERCISE OF PEOPLE'S INITIATIVE, THUS, EXISTING
LAWS TAKEN TOGETHER ARE ADEQUATE AND
COMPLETE.
III.
THE HONORABLE PUBLIC RESPONDENT COMELEC
COMMITTED GRAVE ABUSE OF DISCRETION IN
REFUSING TO TAKE COGNIZANCE OF, AND IN
REFUSING TO GIVE DUE COURSE TO THE PETITION
FOR INITIATIVE, THEREBY VIOLATING AN EXPRESS
CONSTITUTIONAL MANDATE AND DISREGARDING
AND CONTRAVENING THE WILL OF THE PEOPLE.
A.
THE SANTIAGO RULING OF 19 MARCH 1997 IS
NOT APPLICABLE TO THE INSTANT PETITION
FOR INITIATIVE FILED BY THE PETITIONERS.
1.
THE FRAMERS OF THE
CONSTITUTION INTENDED TO GIVE
THE PEOPLE THE POWER TO
PROPOSE AMENDMENTS AND THE
PEOPLE THEMSELVES ARE NOW
GIVING VIBRANT LIFE TO THIS
CONSTITUTIONAL PROVISION
2.
PRIOR TO THE
QUESTIONED SANTIAGO RULING OF
19 MARCH 1997, THE RIGHT OF THE
PEOPLE TO EXERCISE THE
SOVEREIGN POWER OF INITIATIVE
AND RECALL HAS BEEN INVARIABLY
UPHELD
3.
THE EXERCISE OF THE INITIATIVE TO
PROPOSE AMENDMENTS IS A
POLITICAL QUESTION WHICH SHALL
BE DETERMINED SOLELY BY THE
SOVEREIGN PEOPLE.
4.
BY SIGNING THE SIGNATURE SHEETS
ATTACHED TO THE PETITION FOR
INITIATIVE DULY VERIFIED BY THE
 ELECTION OFFICERS, THE PEOPLE
HAVE CHOSEN TO PERFORM THIS
SACRED EXERCISE OF THEIR
SOVEREIGN POWER.
B.
THE SANTIAGO RULING OF 19 MARCH 1997 IS
NOT APPLICABLE TO THE INSTANT PETITION
FOR INITIATIVE FILED BY THE PETITIONERS
C.
THE PERMANENT INJUNCTION ISSUED
IN SANTIAGO V. COMELEC ONLY APPLIES TO
THE DELFIN PETITION.
1.
IT IS THE DISPOSITIVE PORTION OF
THE DECISION AND NOT OTHER
STATEMENTS IN THE BODY OF THE
DECISION THAT GOVERNS THE
RIGHTS IN CONTROVERSY.
IV.
THE HONORABLE PUBLIC RESPONDENT FAILED OR
NEGLECTED TO ACT OR PERFORM A DUTY
MANDATED BY LAW.
A.
THE MINISTERIAL DUTY OF THE COMELEC IS
TO SET THE INITIATIVE FOR PLEBISCITE.3
Petitioners Failed to Allege and Demonstrate All the
Essential
Facts To Establish the Right to a Writ of Certiorari
Section 1, Rule 65 of the Rules of Court reads:
Sec. 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.
The petition shall be accompanied by a certified true copy
of the judgment, order or resolution subject thereof,
copies of all pleadings and documents relevant and
pertinent thereto, and a sworn certification of non-forum
shopping as provided in the third paragraph of Section 3,
Rule 46.
A writ for certiorari may issue only when the following
requirements are set out in the petition and established:
(1) the writ is directed against a tribunal, a board or any
officer exercising judicial or quasi-judicial functions;
(2) such tribunal, board or officer has 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. x x x4
The Court has invariably defined "grave abuse of discretion,"
thus:
By grave abuse of discretion is meant such capricious
and whimsical exercise of judgment as is equivalent to
lack of jurisdiction, and it must be shown that the
discretion was exercised arbitrarily or despotically. For
certiorari to lie, there must be a capricious, arbitrary and
whimsical exercise of power, the very antithesis of the
judicial prerogative in accordance with centuries of both
civil law and common law traditions.5
There is thus grave abuse of discretion on the part of the
COMELEC when it acts in a capricious, whimsical, arbitrary or
despotic manner in the exercise of its judgment amounting to lack
of jurisdiction. Mere abuse of discretion is not enough.6 The only
question involved is jurisdiction, either the lack or excess thereof,
and abuse of discretion warrants the issuance of the
extraordinary remedy of certiorari only when the same is grave,
as when the power is exercised in an arbitrary or despotic
manner by reason of passion, prejudice or personal hostility. A
writ of certiorari is a remedy designed for the correction of errors
of jurisdiction and not errors of judgment.7 An error of judgment is
one in which the court may commit in the exercise of its
jurisdiction, which error is reversible only by an appeal.8
In the present case, it appears from the assailed Resolution of the
COMELEC that it denied the petition for initiative solely in
obedience to the mandate of this Court in Santiago v.
Commission on Elections.9 In said case, the Court En
Banc permanently enjoined the COMELEC from entertaining or
taking cognizance of any petition for initiative on amendments to
the Constitution until a sufficient law shall have been validly
enacted to provide for the implementation of the system. When
the COMELEC denied the petition for initiative, there was as yet
no valid law enacted by Congress to provide for the
implementation of the system.
It is a travesty for the Court to declare the act of the COMELEC in
denying due course to the petition for initiative as "capricious,
despotic, oppressive or whimsical exercise of judgment as is
equivalent to lack of jurisdiction." In fact, in so doing, the
COMELEC merely followed or applied, as it ought to do, the
Court's ruling in Santiago to the effect that Section 2, Article XVII
of the Constitution on the system of initiative is a non self-
executory provision and requires an enabling law for its
implementation. In relation thereto, RA 6735 was found by the
Court to be "incomplete, inadequate, or wanting in essential terms
and conditions" to implement the constitutional provision on
initiative. Consequently, the COMELEC was "permanently
enjoined from entertaining or taking cognizance of any petition for
initiative on amendments to the Constitution until a sufficient law
shall have been validly enacted to provide for the implementation
of the system." The decision of the Court En Banc interpreting RA
6735 forms part of the legal system of the Philippines.10 And no
doctrine or principle laid down by the Court En Banc may be
modified or reversed except by the Court En Banc,11 certainly not
by the COMELEC. Until the Court En Banc modifies or reverses
its decision, the COMELEC is bound to follow the same.12 As
succinctly held in Fulkerson v. Thompson:13
Whatever was before the Court, and is disposed of, is
considered as finally settled. The inferior court is bound
by the judgment or decree as the law of the case, and
must carry it into execution according to the mandate. The
inferior court cannot vary it, or judicially examine it for any
other purpose than execution. It can give no other or
further relief as to any matter decided by the Supreme
Court even where there is error apparent; or in any
manner intermeddle with it further than to execute the
mandate and settle such matters as have been
remanded, not adjudicated by the Supreme Court….
 The principles above stated are, we think, conclusively
established by the authority of adjudged cases. And any
further departure from them would inevitably mar the
harmony of the whole judiciary system, bring its parts into
conflict, and produce therein disorganization, disorder,
and incalculable mischief and confusion. Besides, any
rule allowing the inferior courts to disregard the
adjudications of the Supreme Court, or to refuse or omit to
carry them into execution would be repugnant to the
principles established by the constitution, and therefore
void.14
At this point, it is well to recall the factual context of Santiago as
well as the pronouncement made by the Court therein. Like
petitioners in the instant case, in Santiago, Atty. Jesus Delfin, the
People's Initiative for Reforms, Modernization and Action
(PIRMA), et al., invoked Section 2, Article XVII of the Constitution
as they filed with the COMELEC a "Petition to Amend the
Constitution, to Lift Term Limits of Elective Officials, By People's
Initiative" (the Delfin petition). They asked the COMELEC to issue
an order fixing the time and date for signature gathering all over
the country; causing the necessary publications of said order and
their petition in newspapers of general and local circulation and
instructing municipal election registrars in all regions all over the
country and to assist petitioners in establishing signing stations.
Acting thereon, the COMELEC issued the order prayed for.
Senator Miriam Santiago, et al. forthwith filed with this Court a
petition for prohibition to enjoin the COMELEC from implementing
its order. The Court, speaking through Justice Hilario G. Davide,
Jr. (later Chief Justice), granted the petition as it declared:
1. RA 6735 "incomplete, inadequate, or wanting in essential
terms and conditions insofar as initiative on amendments to the
Constitution is concerned";
2. COMELEC Resolution No. 230015 invalid insofar as it
prescribed rules and regulations on the conduct of initiative on
amendments to the Constitution because the COMELEC is
without authority to promulgate the rules and regulations to
implement the exercise of the right of the people to directly
propose amendments to the Constitution through the system of
initiative; and
3. The Delfin petition insufficient as it did not contain the required
number of signatures of registered voters.
The Court concluded in Santiago that "the COMELEC should be
permanently enjoined from entertaining or taking cognizance
of any petition for initiative on amendments to the Constitution
until a sufficient law shall have been validly enacted to provide for
the implementation of the system." The dispositive portion of the
decision reads:
WHEREFORE, judgment is hereby rendered:
a) GRANTING the instant petition;
b) DECLARING RA 6735 inadequate to cover the system
of initiative on amendments to the Constitution, and to
have failed to provide sufficient standard for subordinate
legislation;
c) DECLARING void those parts of Resolution No. 2300
of the Commission on Elections prescribing rules and
regulations on the conduct of initiative or amendments to
the Constitution; and
d) ORDERING the Commission on Elections to forthwith
DISMISS the Delfin petition (UND-96-037).
The Temporary Restraining Order issued on December
18, 1996 is made permanent as against the Commission
on Elections, but is LIFTED as against private
respondents.16
The Court reiterated its ruling in Santiago in another petition
which was filed with the Court by PIRMA and the spouses Alberto
and Carmen Pedrosa (who were parties in Santiago) docketed
as PIRMA v. Commission on Elections.17 The said petitioners,
undaunted by Santiago and claiming to have gathered 5,793,213
signatures, filed a petition with the COMELEC praying, inter alia,
that COMELEC officers be ordered to verify all the signatures
collected in behalf of the petition and, after due hearing, that it
(COMELEC) declare the petition sufficient for the purpose of
scheduling a plebiscite to amend the Constitution. Like the Delfin
petition in Santiago, the PIRMA petition proposed to submit to the
people in a plebiscite the amendment to the Constitution on the
lifting of the term limits of elected officials.
The opinion of the minority that there was no doctrine enunciated
by the Court in PIRMA has no basis. The COMELEC, in its
Resolution dated July 8, 1997, dismissed the PIRMA petition
citing the permanent restraining order issued against it by the
Court in Santiago. PIRMA and the spouses Pedrosa forthwith
elevated the matter to the Court alleging grave abuse of
discretion on the part of the COMELEC in refusing to exercise
jurisdiction over, and thereby dismissing, their petition for initiative
to amend the Constitution.
The Court dismissed outright, by a unanimous vote, the petition
filed by PIRMA and the spouses Albert Pedrosa. The Court
declared that the COMELEC merely complied with the
dispositions in the decision of the Court in Santiago and, hence,
cannot be held to have committed a grave abuse of its discretion
in dismissing the petition before it:
The Court ruled, first, by a unanimous vote, that no grave
abuse of discretion could be attributed to the public
respondent COMELEC in dismissing the petition filed by
PIRMA therein, it appearing that it only complied with the
dispositions in the Decision of this Court in G.R. No.
127325, promulgated on March 19, 1997, and its
Resolution of June 10, 1997.
The Court next considered the question of whether there
was need to resolve the second issue posed by the
petitioners, namely, that the Court re-examine its ruling as
regards R.A. 6735. On this issue, the Chief Justice and
six (6) other members of the Court, namely, Regalado,
Davide, Romero, Bellosillo, Kapunan and Torres, JJ.,
voted that there was no need to take it up. Vitug, J.,
agreed that there was no need for re-examination of said
second issue since the case a bar is not the proper
vehicle for that purpose. Five (5) other members of the
Court, namely, Melo, Puno, Francisco, Hermosisima and
Panganiban, JJ., opined that there was need for such a
re-examination. x x x
WHEREFORE, the petition is
DISMISSED.18 (Underscoring supplied.)
In the present case, the Office of the Solicitor General (OSG)
takes the side of petitioners and argues that the COMELEC
should not have applied the ruling in Santiago to the petition for
initiative because the permanent injunction therein referred only
to the Delfin petition. The OSG buttresses this argument by
pointing out that the Temporary Restraining Order dated
December 18, 1996 that was made permanent in the dispositive
portion referred only to the Delfin petition.
The OSG's attempt to isolate the dispositive portion from the body
of the Court's decision in Santiago is futile. It bears stressing that
the dispositive portion must not be read separately but in
connection with the other portions of the decision of which it
forms a part. To get to the true intent and meaning of a decision,
no specific portion thereof should be resorted to but the same
must be considered in its entirety. Hence, a resolution or ruling
may and does appear in other parts of the decision and not
merely in the fallo thereof.19
The pronouncement in the body of the decision
in Santiago permanently enjoining the COMELEC "from
entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have
been validly enacted to provide for the implementation of the
system" is thus as much a part of the Court's decision as its
dispositive portion. The ruling of this Court is of the nature of
an in rem judgment barring any and all Filipinos from filing a
petition for initiative on amendments to the Constitution until
a sufficient law shall have been validly enacted. Clearly, the
COMELEC, in denying due course to the present petition for
initiative on amendments to the Constitution conformably with the
Court's ruling in Santiago did not commit grave abuse of
discretion. On the contrary, its actuation is in keeping with the
salutary principle of hierarchy of courts. For the Court to find the
COMELEC to have abused its discretion when it dismissed the
amended petition based on the ruling of this Court in Santiago
would be sheer judicial apostasy.
As eloquently put by Justice J.B.L. Reyes, "there is only one
Supreme Court from whose decisions all other courts should take
their bearings."20 This truism applies with equal force to the
COMELEC as a quasi-judicial body for, after all, judicial decisions
applying or interpreting laws or the Constitution "assume the
same authority as the statute itself and, until authoritatively
abandoned, necessarily become, to the extent that they are
applicable, the criteria which must control the actuations not only
of those called upon to abide thereby but also of those duty
bound to enforce obedience thereto."21
Petitioners Cannot Ascribe
Grave Abuse of Discretion on
the COMELEC Based on the
Minority Opinion in Santiago
It is elementary that the opinion of the majority of the members of
the Court, not the opinion of the minority, prevails. As a corollary,
the decision of the majority cannot be modified or reversed by the
minority of the members of the Court.
However, to eschew the binding effect of Santiago, petitioners
argue, albeit unconvincingly, that the Court's declaration therein
on the inadequacy, incompleteness and insufficiency of RA 6735
to implement the system of initiative to propose constitutional
amendments did not constitute the majority opinion. This
contention is utterly baseless.
Santiago was concurred in, without any reservation, by eight
Justices,22 or the majority of the members of the Court, who
actually took part in the deliberations thereon. On the other hand,
five Justices,23 while voting for the dismissal of the Delfin petition
on the ground of insufficiency, dissented from the majority opinion
as they maintained the view that RA 6735 was sufficient to
implement the system of initiative.
Given that a clear majority of the members of the Court, eight
Justices, concurred in the decision in Santiago, the
pronouncement therein that RA 6735 is "incomplete, inadequate,
or wanting in essential terms and conditions insofar as initiative
on amendments to the Constitution is concerned" constitutes a
definitive ruling on the matter.
In the Resolution dated June 10, 1997, the motions for
reconsideration of the Santiago decision were denied with finality
as only six Justices, or less than the majority, voted to grant the
same. The Resolution expressly stated that the motion for
reconsideration failed "to persuade the requisite majority of the
Court to modify or reverse the Decision of 19 March 1977."24 In
fine, the pronouncement in Santiago as embodied in the Decision
of March 19, 1997 remains the definitive ruling on the matter.
It bears stressing that in PIRMA, petitioners prayed for the Court
to resolve the issue posed by them and to re-examine its ruling as
regards RA 6735. By a vote of seven members of the Court,
including Justice Justo P. Torres, Jr. and Justice Jose C. Vitug,
the Court voted that there was no need to resolve the issue. Five
members of the Court opined that there was a need for the re-
examination of said ruling. Thus, the pronouncement of the Court
in Santiago remains the law of the case and binding on
petitioners.
If, as now claimed by the minorty, there was no doctrine
enunciated by the Court in Santiago, the Court should have
resolved to set aside its original resolution dismissing the petition
and to grant the motion for reconsideration and the petition. But
the Court did not. The Court positively and unequivocally
declared that the COMELEC merely followed the ruling of the
Court in Santiago in dismissing the petition before it. No less than
Senior Justice Reynato S. Puno concurred with the resolution of
the Court. It behooved Justice Puno to dissent from the ruling of
the Court on the motion for reconsideration of petitioners
precisely on the ground that there was no doctrine enunciated by
the Court in Santiago. He did not. Neither did Chief Justice
Artemio V. Panganiban, who was a member of the Court.
That RA 6735 has failed to validly implement the people's right to
directly propose constitutional amendments through the system of
initiative had already been conclusively settled in Santiago as well
as in PIRMA. Heeding these decisions, several lawmakers,
including no less than Solicitor General Antonio Eduardo Nachura
when he was then a member of the House of
Representatives,25 have filed separate bills to implement the
system of initiative under Section 2, Article XVII of the
Constitution.
In the present Thirteenth (13th) Congress, at least seven (7) bills
are pending. In the Senate, the three (3) pending bills are: Senate
Bill No. 119 entitled An Act Providing for People's Initiative to
Amend the Constitution introduced by Senator Luisa "Loi" P.
Ejercito Estrada; Senate Bill No. 2189 entitled An Act Providing
for People's Initiative to Amend the Constitution introduced by
Senator Miriam Defensor Santiago; and Senate Bill No. 2247
entitled An Act Providing for a System of People's Initiative to
Propose Amendments to the Constitution introduced by Senator
Richard Gordon.
In the House of Representatives, there are at least four (4)
pending bills: House Bill No. 05281 filed by Representative
Carmen Cari, House Bill No. 05017 filed by Representative Imee
Marcos, House Bill No. 05025 filed by Representative Roberto
Cajes, and House Bill No. 05026 filed by Representative Edgardo
Chatto. These House bills are similarly entitled An Act Providing
for People's Initiative to Amend the Constitution.
The respective explanatory notes of the said Senate and House
bills uniformly recognize that there is, to date, no law to govern
the process by which constitutional amendments are introduced
by the people directly through the system of initiative. Ten (10)
years after Santiago and absent the occurrence of any compelling
supervening event, i.e., passage of a law to implement the
system of initiative under Section 2, Article XVII of the
Constitution, that would warrant the re-examination of the ruling
therein, it behooves the Court to apply to the present case the
salutary and well-recognized doctrine of stare decisis. As earlier
shown, Congress and other government agencies have, in fact,
abided by Santiago. The Court can do no less with respect to its
own ruling.
Contrary to the stance taken by petitioners, the validity or
constitutionality of a law cannot be made to depend on the
individual opinions of the members who compose it – the
Supreme Court, as an institution, has already determined RA
6735 to be "incomplete, inadequate, or wanting in essential terms
and conditions insofar as initiative on amendments to the
Constitution is concerned" and therefore the same remains to be
so regardless of any change in the Court's composition.26 Indeed,
it is vital that there be stability in the courts in adhering to
decisions deliberately made after ample consideration. Parties
should not be encouraged to seek re-examination of determined
principles and speculate on fluctuation of the law with every
change in the expounders of it.27
Proposals to Revise the Constitution,
As in the Case of the Petitioners'
Proposal to Change the Form of
Government, Cannot be Effected
Through the System of Initiative,
Which by Express Provision of
Section 2, Article XVII of the
Constitution, is Limited to Amendments  centum of the total membership coming from the
Even granting arguendo the Court, in the present case, abandons
its pronouncement in Santiago and declares RA 6735, taken
together with other extant laws, sufficient to implement the
system of initiative, still, the amended petition for initiative cannot
prosper. Despite the denomination of their petition, the proposals
of petitioners to change the form of government from the present
bicameral-presidential to a unicameral-parliamentary system of
government are actually for the revision of the Constitution.
Petitioners propose to "amend" Articles VI and VII of the
Constitution in this manner:  government.
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be
amended to read as follows:
"Section 1. (1) The legislative and executive powers shall
be vested in a unicameral Parliament which shall be
composed of as many members as may be provided by
law, to be apportioned among the provinces,
representative districts, and cities in accordance with the
number of their respective inhabitants, with at least three
hundred thousand inhabitants per district, and on the
basis of a uniform and progressive ratio. Each district
shall comprise, as far as practicable, contiguous, compact
and adjacent territory, and each province must have at
least one member.  removal from office of the incumbent President, the
"(2) Each Member of Parliament shall be a natural-born
citizen of the Philippines, at least twenty-five years old on
the day of the election, a resident of his district for at least
one year prior thereto, and shall be elected by the
qualified voters of his district for a term of five years
without limitation as to the number thereof, except those
under the party-list system which shall be provided for by
law and whose number shall be equal to twenty per
parliamentary districts."
B. Sections 1, 2, 3 and 4 of Article VII of the 1987
Constitution are hereby amended to read, as follows:
"Section 1. There shall be a President who shall be the
Head of State. The executive power shall be exercised by
a Prime Minister, with the assistance of the Cabinet. The
Prime Minister shall be elected by a majority of all the
Members of Parliament from among themselves. He shall
be responsible to the Parliament for the program of
C. For the purpose of insuring an orderly transition from the
bicameral-Presidential to a unicameral-Parliamentary form of
government, there shall be a new Article XVIII, entitled
"Transitory Provisions," which shall read as follows:
Section 1. (1) The incumbent President and Vice
President shall serve until the expiration of their term at
noon on the thirtieth day of June 2010 and shall continue
to exercise their powers under the 1987 Constitution
unless impeached by a vote of two thirds of all the
members of the interim parliament.,
(2) In case of death, permanent disability, resignation or
incumbent Vice President shall succeed as President. In
case of death, permanent disability, resignation or
removal from office of both the incumbent President and
Vice President, the interim Prime Minister shall assume all
the powers and responsibilities of Prime Minister under
Article VII as amended.
Section 2. "Upon the expiration of the term of the
incumbent President and Vice President, with the
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of
the 1987 Constitution which shall hereby be amended
and Sections 18 and 24 which shall be deleted, all other
Sections of Article VI are hereby retained and
renumbered sequentially as Section 2, ad seriatim up to
26, unless they are inconsistent with the Parliamentary
system of government, in which case, they shall be
amended to conform with a unicameral parliamentary
form of government; provided, however, that any and all
references therein to "Congress," "Senate," "House of
Representatives" and "House of Congress," "Senator[s] or
"Member[s] of the House of Representatives" and "House
of Congress" shall be changed to read "Parliament"; that
any and all references therein to "Member[s] of the House
of Representatives" shall be changed to read as
"Member[s] of Parliament" and any and all references to
the "President" and or "Acting President" shall be
changed to read "Prime Minister."
Section 3. "Upon the expiration of the term of the
incumbent President and Vice President, with the
exception of Sections 1, 2, 3 and 4 of Article VII of the
1987 Constitution which are hereby amended and
Sections 7, 8, 9, 10, 11 and 12 which are hereby deleted,
all other Sections of Article VII shall be retained and
renumbered sequentially as Section 2, ad seriatim up to
14, unless they shall be inconsistent with Section 1
hereof, in which case they shall be deemed amended so
as to conform to a unicameral Parliamentary System of
government; provided, however, that any and all
references therein to "Congress," "Senate," "House of
Representatives" and "Houses of Congress" shall be
changed to read "Parliament"; that any and all references
therein to "Member[s] of Congress," "Senator[s]" or
"Member[s] of the House of Parliament" and any and all
references to the "President" and of "Acting President"
shall be changed to read "Prime Minister."
Section 4. (1) There shall exist, upon the ratification of
these amendments, an interim Parliament which shall
continue until the Members of the regular Parliament shall
have been elected and shall have qualified. It shall be
composed of the incumbent Members of the Senate and
the House of Representatives and the incumbent
Members of the Cabinet who are heads of executive
departments.
(2) The incumbent Vice President shall automatically be a
Member of Parliament until noon of the thirtieth day of
June 2010. He shall also be a member of the cabinet and
shall head a ministry. He shall initially convene the interim
Parliament and shall preside over its session for the
election of the interim Prime Minister and until the
Speaker shall have been elected by a majority vote of all
the members of the interim Parliament from among
themselves.
(3) Senators whose term of office ends in 2010 shall be
Members of Parliament until noon of the thirtieth day of
June 2010.
(4) Within forty-five days from ratification of these
amendments, the interim Parliament shall convene to
propose amendments to, or revisions of, this Constitution
consistent with the principles of local autonomy,
decentralization and a strong bureaucracy. 
"Section 5. (1) The incumbent President, who is the Chief
Executive, shall nominate, from among the members of
the interim Parliament, an interim Prime Minister, who
 shall be elected by a majority vote of the members
thereof. The interim Prime Minister shall oversee the
various ministries and shall perform such powers and
responsibilities as may be delegated to him by the
incumbent President."
(2) The interim Parliament shall provide for the election of
the members of Parliament, which shall be synchronized
and held simultaneously with the election of all local
government officials. [Thereafter, the Vice-President, as
Member of Parliament, shall immediately convene the
Parliament and shall initially preside over its session for
the purpose of electing the Prime Minister, who shall be
elected by a majority vote of all its members, from among
themselves.] The duly-elected Prime Minister shall
continue to exercise and perform the powers, duties and
responsibilities of the interim Prime Minister until the
expiration of the term of the incumbent President and Vice
President.28
Petitioners claim that the required number of signatures of
registered voters have been complied with, i.e., the signatories to
the petition constitute twelve percent (12%) of all the registered
voters in the country, wherein each legislative district is
represented by at least three percent (3%) of all the registered
voters therein. Certifications allegedly executed by the respective
COMELEC Election Registrars of each municipality and city
verifying these signatures were attached to the petition for
initiative. The verification was allegedly done on the basis of the
list of registered voters contained in the official COMELEC list
used in the immediately preceding election.  the total number of registered voters, of which every
The proposition, as formulated by petitioners, to be submitted to
the Filipino people in a plebiscite to be called for the said purpose
reads:
DO YOU APPROVE THE AMENDMENT OF ARTICLES
VI AND VII OF THE 1987 CONSTITUTION, CHANGING
THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-
PARLIAMENTARY SYSTEM, AND PROVIDING
ARTICLE XVIII AS TRANSITORY PROVISIONS FOR
THE ORDERLY SHIFT FROM ONE SYSTEM TO THE
OTHER?29
According to petitioners, the proposed amendment of Articles VI
and VII would effect a more efficient, more economical and more
responsive government. The parliamentary system would
allegedly ensure harmony between the legislative and executive
branches of government, promote greater consensus, and
provide faster and more decisive governmental action.
Sections 1 and 2 of Article XVII pertinently read:
Article XVII
SECTION 1. Any amendment to, or revision of, this
Constitution may be proposed by:
(1) The Congress, upon a vote of three-fourths of all its
Members; or
(2) A constitutional convention.
SECTION 2. Amendments to this Constitution may
likewise be directly proposed by the people through
initiative upon a petition of at least twelve per centum of
legislative district must be represented by at least three
per centum of the registered voters therein. No
amendment under this section shall be authorized within
five years following the ratification of this Constitution nor
oftener than once every five years thereafter.
The Congress shall provide for the implementation of the exercise
of this right.
It can be readily gleaned that the above provisions set forth
different modes and procedures for proposals for the amendment
and revision of the Constitution:
1. Under Section 1, Article XVII, any amendment to, or
revision of, the Constitution may be proposed by –
a. Congress, upon a vote of three-fourths of all its
members; or
b. A constitutional convention. 
2. Under Section 2, Article XVII, amendments to the
Constitution may be likewise directly proposed by the
people through initiative.
The framers of the Constitution deliberately adopted the terms
"amendment" and "revision" and provided for their respective
modes and procedures for effecting changes of the Constitution
fully cognizant of the distinction between the two concepts.
Commissioner Jose E. Suarez, the Chairman of the Committee
on Amendments and Transitory Provisions, explained:
MR. SUAREZ. One more point, and we will be through.
We mentioned the possible use of only one term and that
is, "amendment." However, the Committee finally agreed
to use the terms – "amendment" or "revision" when our
attention was called by the honorable Vice-President to
the substantial difference in the connotation and
significance between the said terms. As a result of our
research, we came up with the observations made in the
famous – or notorious – Javellana doctrine, particularly
the decision rendered by Honorable Justice Makasiar,
wherein he made the following distinction between
"amendment" and "revision" of an existing Constitution:
"Revision" may involve a rewriting of the whole
Constitution. On the other hand, the act of amending a
constitution envisages a change of specific provisions
only. The intention of an act to amend is not the change
of the entire Constitution, but only the improvement of
specific parts or the addition of provisions deemed
essential as a consequence of new conditions or the
elimination of parts already considered obsolete or
unresponsive to the needs of the times.
The 1973 Constitution is not a mere amendment to the
1935 Constitution. It is a completely new fundamental
Charter embodying new political, social and economic
concepts.
So, the Committee finally came up with the proposal that
these two terms should be employed in the formulation of
the Article governing amendments or revisions to the new
Constitution.30
Further, the framers of the Constitution deliberately omitted the
term "revision" in Section 2, Article XVII of the Constitution
because it was their intention to reserve the power to propose a
revision of the Constitution to Congress or the constitutional
convention. Stated in another manner, it was their manifest intent
that revision thereof shall not be undertaken through the system
of initiative. Instead, the revision of the Constitution shall be done
either by Congress or by a constitutional convention.
It is significant to note that, originally, the provision on the system
of initiative was included in Section 1 of the draft Article on
Amendment or Revision proposed by the Committee on
Amendments and Transitory Provisions. The original draft
provided:
 SEC. 1. Any amendment to, or revision of, this This completes the blanks appearing in the original
Constitution may be proposed: Committee Report No. 7. This proposal was suggested on
the theory that this matter of initiative, which came about
(a) by the National Assembly upon a vote of three-fourths because of the extraordinary developments this year, has
of all its members; or to be separated from the traditional modes of amending
the Constitution as embodied in Section 1. The committee
(b) by a constitutional convention; or members felt that this system of initiative should be
limited to amendments to the Constitution and should not
extend to the revision of the entire Constitution, so we
(c) directly by the people themselves thru initiative as
removed it from the operation of Section 1 of the
provided for in Article __ Section __ of the Constitution.31
proposed Article on Amendment or Revision. x x x32
However, after deliberations and interpellations, the members of
The intention to exclude "revision" of the Constitution as a mode
the Commission agreed to remove the provision on the system of
that may be undertaken through the system of initiative was
initiative from Section 1 and, instead, put it under a separate
reiterated and made clear by Commissioner Suarez in response
provision, Section 2. It was explained that the removal of the
to a suggestion of Commissioner Felicitas Aquino:
provision on initiative from the other "traditional modes" of
changing the Constitution was precisely to limit the former
(system of initiative) to amendments to the Constitution. It was MR. SUAREZ. Section 2 must be interpreted together
emphasized that the system of initiative should not extend to with the provisions of Section 4, except that in Section 4,
revision.  as it is presently drafted, there is no take-off date for the
60-day and 90-day periods.
MR. SUAREZ. Thank you, Madam President.
MS. AQUINO. Yes. In other words, Section 2 is another
alternative mode of proposing amendments to the
May we respectfully call the attention of the Members of
Constitution which would further require the process of
the Commission that pursuant to the mandate given to us
submitting it in a plebiscite, in which case it is not self-
last night, we submitted this afternoon a complete
executing.
Committee Report No. 7 which embodies the proposed
provision governing the matter of initiative. This is now
covered by Section 2 of the complete committee report. MR. SUAREZ. No, not unless we settle and determine the
With the permission of the Members, may I quote Section take-off period.
2:
MS. AQUINO. In which case, I am seriously bothered by
The people may, after five years from the date of the last providing this process of initiative as a separate section in
plebiscite held, directly propose amendments to this the Article on Amendment. Would the sponsor be
Constitution thru initiative upon petition of at least ten amenable to accepting an amendment in terms of
percent of the registered voters. realigning Section 2 as another subparagraph (c) of
 Section 1, instead of setting it up as another separate
section as if it were a self-executing provision?
MR SUAREZ. We would be amenable except that, as we
clarified a while ago, this process of initiative is limited to
the matter of amendment and should not expand into a
revision which contemplates a total overhaul of the
Constitution. That was the sense conveyed by the
Committee.
MS. AQUINO. In other words, the Committee was
attempting to distinguish the coverage of modes (a) and
(b) in Section 1 to include the process of revision;
whereas, the process of initiation to amend, which is
given to the public, would only apply to amendments?
MR. SUAREZ. That is right. Those were the terms
envisioned by the Committee.33
Then Commissioner Hilario P. Davide, Jr. (later Chief Justice)
also made the clarification with respect to the observation of
Commissioner Regalado Maambong:
MR. MAAMBONG. My first question: Commissioner
Davide's proposed amendment on line 1 refers to
"amendments." Does it not cover the word "revision" as
defined by Commissioner Padilla when he made the
distinction between the words "amendments" and
"revision"?
MR. DAVIDE. No, it does not, because "amendments"
and "revision" should be covered by Section 1. So insofar
as initiative is concerned, it can only relate to
"amendments" not "revision."34
After several amendments, the Commission voted in favor of the
following wording of Section 2:
AMENDMENTS TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE PEOPLE
THROUGH INITIATIVE UPON A PETITION OF AT
LEAST TWELVE PERCENT OF THE TOTAL NUMBER
OF REGISTERED VOTERS OF WHICH EVERY
LEGISLATIVE DISTRICT MUST BE REPRESENTED BY
AT LEAST THREE PERCENT OF THE REGISTERED
VOTERS THEREOF. NO AMENDMENT UNDER THIS
SECTION SHALL BE AUTHORIZED WITHIN FIVE
YEARS FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE EVERY
FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW PROVIDE
FOR THE IMPLEMENTATION OF THE EXERCISE OF
THIS RIGHT. 
Sections 1 and 2, Article XVII as eventually worded read:
Article XVII
SECTION 1. Any amendment to, or revision of, this
Constitution may be proposed by:
(3) The Congress, upon a vote of three-fourths of all its
Members; or
(4) A constitutional convention.
SEC. 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative, upon a
petition of at least twelve per centum of the total number
of registered voters, of which every legislative district
must be represented by at least three per centum of the
registered voters therein. No amendment under this
section shall be authorized within five years following the
 ratification of this Constitution nor oftener than once every
five years thereafter.
The Congress shall provide for the implementation of the exercise
of this right.
The final text of Article XVII on Amendments or Revisions clearly
makes a substantial differentiation not only between the two
terms but also between two procedures and their respective fields
of application. Ineluctably, the system of initiative under Section
2, Article XVII as a mode of effecting changes in the Constitution
is strictly limited to amendments – not to a revision – thereof.
As opined earlier, the framers of the Constitution, in providing for
"amendment" and "revision" as different modes of changing the
fundamental law, were cognizant of the distinction between the
two terms. They particularly relied on the distinction made by
Justice Felix Antonio in his concurring opinion in Javellana v.
Executive Secretary,35 the controversial decision which gave
imprimatur to the 1973 Constitution of former President Ferdinand
E. Marcos, as follows:
There is clearly a distinction between revision and
amendment of an existing constitution. Revision may
involve a rewriting of the whole constitution. The act of
amending a constitution, on the other hand, envisages a
change of only specific provisions. The intention of an act
to amend is not the change of the entire constitution, but
only the improvement of specific parts of the existing
constitution of the addition of provisions deemed essential
as a consequence of new conditions or the elimination of
parts already considered obsolete or unresponsive to the
needs of the times. The 1973 Constitution is not a mere
amendment to the 1935 Constitution. It is a completely
new fundamental charter embodying new political, social
and economic concepts.36
Other elucidation on the distinction between "amendment" and
"revision" is enlightening. For example, Dean Vicente G. Sinco,
an eminent authority on political law, distinguished the two terms
in this manner: 
Strictly speaking, the act of revising a constitution involves
alterations of different portions of the entire document. It
may result in the rewriting either of the whole constitution,
or the greater portion of it, or perhaps only some of its
important provisions. But whatever results the revisions
may produce, the factor that characterizes it as an act of
revision is the original intention and plan authorized to be
carried out. That intention and plan must contemplate a
consideration of all the provisions of the constitution to
determine which one should be altered or suppressed or
whether the whole document should be replaced with an
entirely new one. 
The act of amending a constitution, on the other hand,
envisages a change of only a few specific provisions. The
intention of an act to amend is not to consider the
advisability of changing the entire constitution or of
considering that possibility. The intention rather is to
improve the specific parts of the existing constitution or to
add to it provisions deemed essential on account of
changed conditions or to suppress portions of it that
seemed obsolete, or dangerous, or misleading in their
effect.37
In the United States, the Supreme Court of Georgia in Wheeler v.
Board of Trustees38 had the occasion to make the distinction
between the two terms with respect to Ga.L. 1945, an instrument
which "amended" the 1877 Constitution of Georgia. It explained
the term "amendment:" 
"Amendment" of a statute implies its survival and not
destruction. It repeals or changes some provision, or adds
something thereto. A law is amended when it is in whole
 or in part permitted to remain, and something is added to
or taken from it, or it is in some way changed or altered to
make it more complete or perfect, or to fit it the better to
accomplish the object or purpose for which it was made,
or some other object or purpose.39
On the other hand, the term "revision" was explained by the said
US appellate court:
x x x When a house is completely demolished and
another is erected on the same location, do you have a
changed, repaired and altered house, or do you have a
new house? Some of the materials contained in the old
house may be used again, some of the rooms may be
constructed the same, but this does not alter the fact that
you have altogether another or a new house. We
conclude that the instrument as contained in Ga.L. 1945,
pp. 8 to 89, inclusive, is not an amendment to the
constitution of 1877; but on the contrary it is a completely
revised or new constitution.40
Fairly recently, Fr. Joaquin Bernas, SJ, a member of the
Constitutional Commission, expounded on the distinction
between the two terms thus:
An amendment envisages an alteration of one or a few
specific and separable provisions. The guiding original
intention of an amendment is to improve specific parts or
to add new provisions deemed necessary to meet new
conditions or to suppress specific portions that may have
become obsolete or that are judged to be dangerous. In
revision, however, the guiding original intention and plan
contemplate a re-examination of the entire document – or
of provisions of the document (which have overall
implications for the entire document or for the
fundamental philosophical underpinnings of the
document) – to determine how and to what extent it
should be altered. Thus, for instance, a switch from the
presidential system to a parliamentary system would be a
revision because of its overall impact on the entire
constitutional structure. So would a switch from a
bicameral system to a unicameral system because of its
effect on other important provisions of the Constitution.
It is thus clear that what distinguishes revision from
amendment is not the quantum of change in the
document. Rather, it is the fundamental qualitative
alteration that effects revision. Hence, I must reject the
puerile argument that the use of the plural form of
"amendments" means that a revision can be achieved by
the introduction of a multiplicity of amendments!41
Given that revision necessarily entails a more complex,
substantial and far-reaching effects on the Constitution, the
framers thereof wisely withheld the said mode from the system of
initiative. It should be recalled that it took the framers of the
present Constitution four months from June 2, 1986 until October
15, 1986 to come up with the draft Constitution which, as
described by the venerable Justice Cecilia Muñoz Palma, the
President of the Constitutional Commission of 1986, "gradually
and painstakingly took shape through the crucible of sustained
sometimes passionate and often exhilarating debates that
intersected all dimensions of the national life."42
Evidently, the framers of the Constitution believed that a revision
thereof should, in like manner, be a product of the same
extensive and intensive study and debates. Consequently, while
providing for a system of initiative where the people would directly
propose amendments to the Constitution, they entrusted the
formidable task of its revision to a deliberative body, the
Congress or Constituent Assembly. 
The Constitution is the fundamental law of the state, containing
the principles upon which the government is founded, and
regulating the division of sovereign powers, directing to what
persons each of those powers is to be confided and the manner
in which it is to be exercised.43 The Philippines has followed the
American constitutional legal system in the sense that the
term constitution is given a more restricted meaning, i.e., as a
written organic instrument, under which governmental powers are
both conferred and circumscribed.44
The Constitution received its force from the express will of the
people. An overwhelming 16,622,111, out of 21,785,216 votes
cast during the plebiscite, or 76.30% ratified the present
Constitution on February 2, 1987.45 In expressing that will, the
Filipino people have incorporated therein the method and manner
by which the same can be amended and revised, and when the
electorate have incorporated into the fundamental law the
particular manner in which the same may be altered or changed,
then any course which disregards that express will is a direct
violation of the fundamental law.46
Further, these provisions having been incorporated in the
Constitution, where the validity of a constitutional amendment or
revision depends upon whether such provisions have been
complied with, such question presents for consideration and
determination a judicial question, and the courts are the only
tribunals vested with power under the Constitution to determine
such question.47
Earlier, it was mentioned that Article XVII, by the use of the terms
"amendment" and "revision," clearly makes a differentiation not
only between the two terms but also between two procedures and
their respective fields of application. On this point, the case
of McFadden v. Jordan48 is instructive. In that case, a "purported
initiative amendment" (referred to as the proposed measure) to
the State Constitution of California, then being proposed to be
submitted to the electors for ratification, was sought to be
enjoined. The proposed measure, denominated as "California Bill
of Rights," comprised a single new article with some 208
subsections which would repeal or substantially alter at least 15
of the 25 articles of the California State Constitution and add at
least four new topics. Among the likely effects of the proposed
measure were to curtail legislative and judicial functions, legalize
gaming, completely revise the taxation system and reduce the
powers of cities, counties and courts. The proposed measure also
included diverse matters as ministers, mines, civic centers, liquor
control and naturopaths.
The Supreme Court of California enjoined the submission of the
proposed measure to the electors for ratification because it was
not an "amendment" but a "revision" which could only be
proposed by a convention. It held that from an examination of the
proposed measure itself, considered in relation to the terms of the
California State Constitution, it was clear that the proposed
initiative enactment amounted substantially to an attempted
revision, rather than amendment, thereof; and that inasmuch as
the California State Constitution specifies (Article XVIII §2
thereof) that it may be revised by means of constitutional
convention but does not provide for revision by initiative measure,
the submission of the proposed measure to the electorate for
ratification must be enjoined.
As piercingly enunciated by the California State Supreme Court
in McFadden, the differentiation required (between amendment
and revision) is not merely between two words; more accurately it
is between two procedures and between their respective fields of
application. Each procedure, if we follow elementary principles of
statutory construction, must be understood to have a substantial
field of application, not to be a mere alternative procedure in the
same field. Each of the two words, then, must be understood to
denote, respectively, not only a procedure but also a field of
application appropriate to its procedure.49
Provisions regulating the time and mode of effecting organic
changes are in the nature of safety-valves – they must not be so
adjusted as to discharge their peculiar function with too great
facility, lest they become the ordinary escape-pipes of party
passion; nor, on the other hand, must they discharge it with such
difficulty that the force needed to induce action is sufficient also to
explode the machine. Hence, the problem of the Constitution
maker is, in this particular, one of the most difficult in our whole
system, to reconcile the requisites for progress with the requisites
for safety.50
Like in McFadden, the present petition for initiative on
amendments to the Constitution is, despite its denomination, one
for its revision. It purports to seek the amendment only of Articles
VI and VII of the Constitution as well as to provide transitory
provisions. However, as will be shown shortly, the amendment of
these two provisions will necessarily affect other numerous
provisions of the Constitution particularly those pertaining to the
specific powers of Congress and the President. These powers
would have to be transferred to the Parliament and the Prime
Minister and/or President, as the case may be. More than one
hundred (100) sections will be affected or altered thereby:
1. Section 19 of Article III (Bill of Rights) on the power of
Congress to impose the death penalty for compelling
reasons involving heinous crimes;
2. Section 2 of Article V (Suffrage) on the power of
Congress to provide for securing the secrecy and sanctity
of the ballot as well as a system for absentee voting;
3. All 32 Sections of Article VI on the Legislative
Department;
4. All 23 Sections of Article VII on the Executive
Department;
5. The following Sections of Article VIII (Judicial
Department):
- Section 2 on power of Congress to define,
prescribe and apportion the jurisdiction of various
courts;
- Section 7 on the power of Congress to prescribe
the qualifications of judges of lower courts;
- Section 8 on the composition of Judicial Bar
Council (JBC) which includes representatives of
Congress as ex officio members and on the power
of the President to appoint the regular members of
the JBC;
- Section 9 on the power of the President to
appoint the members of the Supreme Court and
judges of lower courts; 
- Section 16 on duty of Supreme Court to make
annual report to the President and Congress.
6. The following Sections of Article IX (Constitutional
Commissions);
- (B) Section 3 on duty of Civil Service
Commission to make annual report to the
President and Congress;
- (B) Section 5 on power of Congress to provide
by law for the standardization of compensation of
government officials;
- (B) Section 8 which provides in part that "no
public officer shall accept, without the consent of
Congress, any present, emolument, etc. x x x"
- (C) Section 1 on the power of the President to
appoint the Chairman and Commissioners of the
Commission on Elections with the consent of the
Commission on Appointments;
 - (C) Section 2 (7) on the power of the COMELEC
to recommend to Congress measures to minimize
election spending x x x;
- (C) Section 2 (8) on the duty of the COMELEC to
recommend to the President the removal of any
officer or employee it has deputized, or the
imposition of any other disciplinary action x x x;
- (C) Section 2 (9) on the duty of the COMELEC to
submit to the President and Congress a report on
the conduct of election, plebiscite, etc.;
- (C) Section 5 on the power of the President, with
the favorable recommendation of the COMELEC,
to grant pardon, amnesty, parole, or suspension
of sentence for violation of election laws, rules
and regulations;
- (C) Section 7 which recognizes as valid votes
cast in favor of organization registered under
party-list system;
- (C) Section 8 on political parties, organizations
or coalitions under the party-list system;
- (D) Section 1 (2) on the power of the President
to appoint the Chairman and Commissioners of
the Commission on Audit (COA) with the consent
of the Commission of Appointments;  act for autonomous regions in Muslim Mindanao
- Section 4 on duty of the COA to make annual
report to the President and Congress.
7. The following Sections of Article X (Local Government):
- Section 3 on the power of Congress to enact a
local government code;
- Section 4 on the power of the President to
exercise general supervision over local
government units (LGUs);
- Section 5 on the power of LGUs to create their
own sources of income x x x, subject to such
guidelines as Congress may provide;
- Section 11 on the power of Congress to create
special metropolitan political subdivisions;
- Section 14 on the power of the President to
provide for regional development councils x x x;
- Section 16 on the power of the President to
exercise general supervision over autonomous
regions; 
- Section 18 on the power of Congress to enact
organic act for each autonomous region as well as
the power of the President to appoint the
representatives to the regional consultative
commission;
- Section 19 on the duty of the first Congress
elected under the Constitution to pass the organic
and the Cordilleras.
8. The following Sections of Article XI (Accountability of
Public Officers):
- Section 2 on the impeachable officers
(President, Vice-President, etc.);
 - Section 3 on impeachment proceedings
(exclusive power of the House to initiate complaint
and sole power of the Senate to try and decide
impeachment cases);
- Section 9 on the power of the President to
appoint the Ombudsman and his deputies;
- Section 16 which provides in part that "x x x no
loans or guaranty shall be granted to the
President, Vice-President, etc.
- Section 17 on mandatory disclosure of assets
and liabilities by public officials including the
President, Vice-President, etc.
9. The following Sections of Article XII (National Economy
and Patrimony):
- Section 2 on the power of Congress to allow, by
law, small-scale utilization of natural resources
and power of the President to enter into
agreements with foreign-owned corporations and
duty to notify Congress of every contract;
- Section 3 on the power of Congress to
determine size of lands of public domain;
- Section 4 on the power of Congress to
determine specific limits of forest lands;
- Section 5 on the power of Congress to provide
for applicability of customary laws;
- Section 9 on the power of Congress to establish
an independent economic and planning agency to
be headed by the President;
- Section 10 on the power of Congress to reserve
to Filipino citizens or domestic corporations(at
least 60% Filipino-owned) certain areas of
investment;
- Section 11 on the sole power of Congress to
grant franchise for public utilities;
- Section 15 on the power of Congress to create
an agency to promote viability of cooperatives;
- Section 16 which provides that Congress shall
not, except by general law, form private
corporations;
- Section 17 on the salaries of the President, Vice-
President, etc. and the power of Congress to
adjust the same;
- Section 20 on the power of Congress to
establish central monetary authority.
10. The following Sections of Article XIII (Social Justice
and Human Rights):
- Section 1 on the mandate of Congress to give
highest priority to enactment of measures that
protect and enhance the right of people x x x
- Section 4 on the power of Congress to prescribe
retention limits in agrarian reform;
- Section 18 (6) on the duty of the Commission on
Human Rights to recommend to Congress
effective measures to promote human rights;
 - Section 19 on the power of Congress to provide
for other cases to fall within the jurisdiction of the
Commission on Human Rights.
11. The following Sections of Article XIV (Education,
Science and Technology, etc.):
- Section 4 on the power of Congress to increase
Filipino equity participation in educational
institutions;
- Section 6 which provides that subject to law and
as Congress may provide, the Government shall
sustain the use of Filipino as medium of official
communication;
- Section 9 on the power of Congress to establish
a national language commission;
- Section 11 on the power of Congress to provide
for incentives to promote scientific research.
12. The following Sections of Article XVI (General
Provisions):
- Section 2 on the power of Congress to adopt
new name for the country, new national anthem,
etc.;
- Section 5 (7) on the tour of duty of the Chief of
Staff which may be extended by the President in
times of war or national emergency declared by
Congress;
- Section 11 on the power of Congress to regulate
or prohibit monopolies in mass media;
- Section 12 on the power of Congress to create
consultative body to advise the President on
indigenous cultural communities.
13. The following Sections of Article XVII (Amendments or
Revisions):
- Section 1 on the amendment or revision of
Constitution by Congress;
- Section 2 on the duty of Congress to provide for
the implementation of the system of initiative;
- Section 3 on the power of Congress to call
constitutional convention to amend or revise the
Constitution.
14. All 27 Sections of Article XVIII (Transitory Provisions).
The foregoing enumeration negates the claim that "the big bulk of
the 1987 Constitution will not be affected."51Petitioners'
proposition, while purportedly seeking to amend only Articles VI
and VII of the Constitution and providing transitory provisions,
will, in fact, affect, alter, replace or repeal other numerous articles
and sections thereof. More than the quantitative effects, however,
the revisory character of petitioners' proposition is apparent from
the qualitative effects it will have on the fundamental law.
I am not impervious to the commentary of Dean Vicente G. Sinco
that the revision of a constitution, in its strict sense, refers to a
consideration of the entire constitution and the procedure for
effecting such change; while amendment refers only to particular
provisions to be added to or to be altered in a constitution.52
For clarity and accuracy, however, it is necessary to reiterate
below Dean Sinco's more comprehensive differentiation of the
terms:
 Strictly speaking, the act of revising a constitution involves
alterations of different portions of the entire document. It
may result in the rewriting either of the whole constitution,
or the greater portion of it, or perhaps only some of its
important provisions. But whatever results the revisions
may produce, the factor that characterizes it as an act of
revision is the original intention and plan authorized to be
carried out. That intention and plan must contemplate a
consideration of all the provisions of the constitution to
determine which one should be altered or suppressed or
whether the whole document should be replaced with an
entirely new one.
The act of amending a constitution, on the other hand,
envisages a change of only a few specific provisions. The
intention of an act to amend is not to consider the
advisability of changing the entire constitution or of
considering that possibility. The intention rather is to
improve the specific parts of the existing constitution or to
add to it provisions deemed essential on account of
changed conditions or to suppress portions of it that
seemed obsolete, or dangerous, or misleading in their
effect.53
A change in the form of government from bicameral-presidential
to unicameral-parliamentary, following the above distinction,
entails a revision of the Constitution as it will involve "alteration of
different portions of the entire document" and "may result in the
rewriting of the whole constitution, or the greater portion of it, or
perhaps only some of its important provisions."
More importantly, such shift in the form of government will,
without doubt, fundamentally change the basic plan and
substance of the present Constitution. The tripartite system
ordained by our fundamental law divides governmental powers
into three distinct but co-equal branches: the legislative, executive
and judicial. Legislative power, vested in Congress which is a
bicameral body consisting of the House of Representatives and
the Senate, is the power to make laws and to alter them at
discretion. Executive power, vested in the President who is
directly elected by the people, is the power to see that the laws
are duly executed and enforced. Judicial power, vested in the
Supreme Court and the lower courts, is the power to construe
and apply the law when controversies arise concerning what has
been done or omitted under it. This separation of powers
furnishes a system of checks and balances which guards against
the establishment of an arbitrary or tyrannical government.
Under a unicameral-parliamentary system, however, the tripartite
separation of power is dissolved as there is a fusion between the
executive and legislative powers. Essentially, the President
becomes a mere "symbolic head of State" while the Prime
Minister becomes the head of government who is elected, not by
direct vote of the people, but by the members of the Parliament.
The Parliament is a unicameral body whose members are elected
by legislative districts. The Prime Minister, as head of
government, does not have a fixed term of office and may only be
removed by a vote of confidence of the Parliament. Under this
form of government, the system of checks and balances is
emasculated.
Considering the encompassing scope and depth of the changes
that would be effected, not to mention that the Constitution's basic
plan and substance of a tripartite system of government and the
principle of separation of powers underlying the same would be
altered, if not entirely destroyed, there can be no other conclusion
than that the proposition of petitioners Lambino, et al. would
constitute a revision of the Constitution rather than an
amendment or "such an addition or change within the lines of the
original instrument as will effect an improvement or better carry
out the purpose for which it was framed."54 As has been shown,
the effect of the adoption of the petitioners' proposition, rather
than to "within the lines of the original instrument" constitute "an
improvement or better carry out the purpose for which it was
framed," is to "substantially alter the purpose and to attain
objectives clearly beyond the lines of the Constitution as now Section 5 of RA 6735 requires that a petition for initiative on the
cast."55 Constitution must state the following: 

To paraphrase McFadden, petitioners' contention that any change 1. Contents or text of the proposed law sought to be
less than a total one is amendatory would reduce to the rubble of enacted, approved or rejected, amended or repealed, as
absurdity the bulwark so carefully erected and preserved. A case the case may be;
might, conceivably, be presented where the question would be
occasion to undertake to define with nicety the line of 2. The proposition;
demarcation; but we have no case or occasion here.
3. The reason or reasons therefor;
As succinctly by Fr. Joaquin Bernas, "a switch from the
presidential system to a parliamentary system would be a revision 4. That it is not one of the exceptions provided herein;
because of its overall impact on the entire constitutional structure.
So would a switch from a bicameral system to a unicameral
5. Signatures of the petitioners or registered voters; and
system because of its effect on other important provisions of the
Constitution. It is thus clear that what distinguishes revision from
amendment is not the quantum of change in the document. 6. An abstract or summary proposition in not more than
Rather, it is the fundamental qualitative alteration that effects one hundred (100) words which shall be legibly written or
revision."56 printed at the top of every page of the petition. 

The petition for initiative on amendments to the Constitution filed Section 7 thereof requires that the signatures be verified in this
by petitioners Lambino, et al., being in truth and in fact a proposal wise: 
for the revision thereof, is barred from the system of initiative
upon any legally permissible construction of Section 2, Article SEC. 7. Verification of Signatures. – The Election
XVII of the Constitution. Registrar shall verify the signatures on the basis of the
registry list of voters, voters' affidavits and voters'
The Petition for Initiative on  identification cards used in the immediately preceding
Amendments to the Constitution election.
is, on its Face, Insufficient in
Form and Substance  The law mandates upon the election registrar to personally verify
the signatures. This is a solemn and important duty imposed on
Again, even granting arguendo RA 6735 is declared sufficient to the election registrar which he cannot delegate to any other
implement the system of initiative and that COMELEC Resolution person, even to barangay officials. Hence, a verification of
No. 2300, as it prescribed rules and regulations on the conduct of signatures made by persons other than the election registrars has
initiative on amendments to the Constitution, is valid, still, the no legal effect.
petition for initiative on amendments to the Constitution must be
dismissed for being insufficient in form and substance. In patent violation of the law, several certifications submitted by
petitioners showed that the verification of signatures was
made, not by the election registrars, but by barangay officials. For
example, the certification of the election officer in Lumbatan,
Lanao del Sur reads in full:
LOCAL ELECTION OFFICER'S CERTIFICATION57
THIS IS TO CERTIFY that based on the verifications
made by the Barangay Officials in this City/Municipality,
as attested to by two (2) witnesses from the
same Barangays, which is part of the 2nd Legislative
District of the Province of Lanao del Sur, the names
appearing on the attached signature sheets relative to the
proposed initiative on Amendments to the 1987
Constitution, are those of bonafide resident of the
said Barangays and correspond to the names found in the
official list of registered voters of the Commission on
Elections and/or voters' affidavit and/or voters'
identification cards.
It is further certified that the total number of signatures of
the registered voters for the City/Municipality of
LUMBATAN, LANAO DEL SUR as appearing in the
affixed signatures sheets is ONE THOUSAND ONE
HUNDRED EIGHTY (1,180).
April 2, 2006
IBRAHIM M. MACADATO
Election Officer
(Underscoring supplied)
The ineffective verification in almost all the legislative districts in
the Autonomous Region of Muslim Mindanao (ARMM) alone is
shown by the certifications, similarly worded as above-quoted, of
the election registrars of Buldon, Maguindanao;58 Cotabato City
(Special Province);59 Datu Odin Sinsuat,
Maguindanao;60 Matanog, Maguindanao;61 Parang,
Maguindanao;62 Kabantalan, Maguindanao;63 Upi,
Maguinadano;64 Barira, Maguindanao;65 Sultan,
Mastura;66 Ampatuan, Maguindanao;67 Buluan,
Maguindanao;68 Datu Paglas, Maguindanao;69 Datu Piang,
Maguindanao;70 Shariff Aguak, Maguindanao;71 Pagalungan,
Maguindanao;72Talayan, Maguindanao;73 Gen. S.K. Pendatun,
Maguindanao;74 Mamasapano, Maguindanao;75 Talitay,
Maguindanao;76 Guindulungan, Maguindanao;77 Datu Saudi
Ampatuan, Maguindanao;78 Datu Unsay,
Maguindanao;79 Pagagawan, Maguindanao;80 Rajah Buayan,
Maguindanao;81 Indanan, Sulu;82 Jolo, Sulu;83Maimbung,
Sulu;84 Hadji Panglima, Sulu;85 Pangutaran, Sulu;86 Parang,
Sulu;87 Kalingalan Caluang, Sulu;88 Luuk, Sulu;89 Panamao,
Sulu;90 Pata, Sulu;91 Siasi, Sulu;92 Tapul, Sulu;93 Panglima Estino,
Sulu;94 Lugus, Sulu;95 and Pandami, Sulu. 96
Section 7 of RA 6735 is clear that the verification of signatures
shall be done by the election registrar, and by no one else,
including the barangay officials. The foregoing certifications
submitted by petitioners, instead of aiding their cause, justify the
outright dismissal of their petition for initiative. Because of the
illegal verifications made by barangay officials in the above-
mentioned legislative districts, it necessarily follows that the
petition for initiative has failed to comply with the requisite number
of signatures, i.e., at least twelve percent (12%) of the total
number of registered voters, of which every legislative district
must be represented by at least three percent (3%) of the
registered voters therein.
Petitioners cannot disclaim the veracity of these damaging
certifications because they themselves submitted the same to the
COMELEC and to the Court in the present case to support their
contention that the requirements of RA 6735 had been complied
with and that their petition for initiative is on its face sufficient in
form and substance. They are in the nature of judicial admissions
which are conclusive and binding on petitioners.97 This being the
case, the Court must forthwith order the dismissal of the petition
for initiative for being, on its face, insufficient in form and
substance. The Court should make the adjudication entailed by
the facts here and now, without further proceedings, as it has
done in other cases.98
It is argued by petitioners that, assuming arguendo that the
COMELEC is correct in relying on Santiago that RA 6735 is
inadequate to cover initiative to the Constitution, this cannot be
used to legitimize its refusal to heed the people's will. The fact
that there is no enabling law should not prejudice the right of the
sovereign people to propose amendments to the Constitution,
which right has already been exercised by 6,327,952 voters. The
collective and resounding act of the particles of sovereignty must
not be set aside. Hence, the COMELEC should be ordered to
comply with Section 4, Article XVII of the 1987 Constitution via a
writ of mandamus. The submission of petitioners, however, is
unpersuasive.  the same while the oppositors-intervenors have vigorously refuted
Mandamus is a proper recourse for citizens who act to enforce a
public right and to compel the persons of a public duty most
especially when mandated by the Constitution.99 However, under
Section 3, Rule 65 of the 1997 Rules of Court, for a petition
for mandamus to prosper, it must be shown that the subject of the
petition is a ministerial act or duty and not purely discretionary on
the part of the board, officer or person, and that petitioner has a
well-defined, clear and certain right to warrant the grant thereof. A
purely ministerial act or duty is one which an officer or tribunal
performs in a given state of facts, in a prescribed manner, in
obedience to the mandate of a legal authority, without regard to
or the exercise of his own judgment upon the propriety or
impropriety of the act done. If the law imposes a duty upon a
public official and gives him the right to decide how or when the
duty should be performed, such duty is discretionary and not
ministerial. The duty is ministerial only when the discharge of the
same requires neither the exercise of an official discretion nor
judgment.100
To stress, in a petition for mandamus, petitioner must show a well
defined, clear and certain right to warrant the grant thereof.101 In
this case, petitioners failed to establish their right to a writ
of mandamus as shown by the foregoing disquisitions.
Remand of the Case to the
COMELEC is Not Authorized by
RA 6735 and COMELEC Resolution No. 2300
The dissenting opinion posits that the issue of whether or not the
petition for initiative has complied with the requisite number of
signatures of at least twelve percent (12%) of the total number of
registered voters, of which every legislative district must be
represented by at least three percent (3%) of the registered
voters therein, involves contentious facts. The dissenting
opinion cites the petitioners' claim that they have complied with
this claim by alleging, inter alia, that the signatures were not
properly verified or were not verified at all. Other oppositors-
intervenors have alleged that the signatories did not fully
understand what they have signed as they were misled into
signing the signature sheets.
According to the dissenting opinion, the sufficiency of the petition
for initiative and its compliance with the requirements of RA 6735
on initiative and its implementing rules is a question that should
be resolved by the COMELEC at the first instance. It thus
remands the case to the COMELEC for further proceedings.
To my mind, the remand of the case to the COMELEC is not
warranted. There is nothing in RA 6735, as well as in COMELEC
Resolution No. 2300, granting that it is valid to implement the
former statute, that authorizes the COMELEC to conduct any kind
of hearing, whether full-blown or trial-type hearing, summary
hearing or administrative hearing, on a petition for initiative. 
Section 41 of COMELEC Resolution No. 2300 provides that "[a]n
initiative shall be conducted under the control and supervision of
the Commission in accordance with Article III hereof." Pertinently,
Sections 30, 31 and 32 of Article III of the said implementing rules
provide as follows:
Sec. 30. Verification of signatures. – The Election
Registrar shall verify the signatures on the basis of the
registry list of voters, voters' affidavits and voters'
identification cards used in the immediately preceding
election.  the People, Acting in their Sovereign
Sec. 31. Determination by the Commission. – The
Commission shall act on the findings of the sufficiency or
insufficiency of the petition for initiative or referendum.
If it should appear that the required number of signatures
has not been obtained, the petition shall be deemed
defeated and the Commission shall issue a declaration to
that effect.  matters that are to be exercised by the people in their primary
If it should appear that the required number of signatures
has been obtained, the Commission shall set the initiative
or referendum in accordance with the succeeding
sections.
Sec. 32. Appeal. – The decision of the Commission on the
findings of the sufficiency and insufficiency of the petition
for initiative or referendum may be appealed to the
Supreme Court within thirty (30) days from notice hereof.
Clearly, following the foregoing procedural rules, the COMELEC
is not authorized to conduct any kind of hearing to receive any
evidence for or against the sufficiency of the petition for initiative.
Rather, the foregoing rules require of the COMELEC to determine
the sufficiency or insufficiency of the petition for initiative on its
face. And it has already been shown, by the annexes submitted
by the petitioners themselves, their petition is, on its face,
insufficient in form and substance. The remand of the case to the
COMELEC for reception of evidence of the parties on the
contentious factual issues is, in effect, an amendment of the
abovequoted rules of the COMELEC by this Court which the
Court is not empowered to do.
The Present Petition Presents a
Justiciable Controversy; Hence,
a Non-Political Question. Further,
Capacity, Have Bound Themselves
to Abide by the Constitution
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
government.102 A political question has two aspects: (1) those
political capacity; and (2) matters which have been specifically
designated to some other department or particular office of the
government, with discretionary power to act.103
In his concurring and dissenting opinion in Arroyo v. De
Venecia,104 Senior Associate Justice Reynato S. Puno explained
the doctrine of political question vis-à-vis the express mandate of
the present Constitution for the courts to determine whether or
not there has been a grave abuse of discretion on the part of any
branch or instrumentality of the Government:
In the Philippine setting, there is more compelling reason
for courts to categorically reject the political question
defense when its interposition will cover up abuse of
power. For Section 1, Article VIII of our Constitution
was intentionally cobbled to empower courts "... to
determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on
 the part of any branch or instrumentality of the
government." This power is new and was not granted to
our courts in the 1935 and 1972 Constitutions. It was also
not xeroxed from the US Constitution or any foreign state
constitution. The CONCOM [Constitutional Commission]
granted this enormous power to our courts in view of our
experience under martial law where abusive exercises of
state power were shielded from judicial scrutiny by the
misuse of the political question doctrine. Led by the
eminent former Chief Justice Roberto Concepcion, the
CONCOM expanded and sharpened the checking powers
of the judiciary vis-à-vis the Executive and the Legislative
departments of government. In cases involving the
proclamation of martial law and suspension of the
privilege of habeas corpus, it is now beyond dubiety that
the government can no longer invoke the political
question defense.  exercise of the direct sovereignty of the people."112 In effect, it is
xxxx
To a great degree, it diminished its [political question
doctrine] use as a shield to protect other abuses of
government by allowing courts to penetrate the shield with
new power to review acts of any branch or instrumentality
of the government ". . . to determine whether or not there
has been grave abuse of discretion amounting to lack or
excess of jurisdiction."
Even if the present petition involves the act, not of a
governmental body, but of purportedly more than six million
registered voters who have signified their assent to the proposal
to amend the Constitution, the same still constitutes a justiciable
controversy, hence, a non-political question. There is no doubt
that the Constitution, under Article XVII, has explicitly provided for
the manner or method to effect amendments thereto, or revision
thereof. The question, therefore, of whether there has been
compliance with the terms of the Constitution is for the Court to
pass upon.105
In the United States, in In re McConaughy,106 the State Supreme
Court of Minnesota exercised jurisdiction over the petition
questioning the result of the general election holding that "an
examination of the decisions shows that the courts have almost
uniformly exercised the authority to determine the validity of the
proposal, submission, or ratification of constitutional
amendments." The cases cited were Dayton v. St. Paul,107 Rice v.
Palmer,108 Bott v. Wurtz,109 State v. Powell,110 among other cases.
There is no denying that "the Philippines is a democratic and
republican State. Sovereignty resides in the people and all
government authority emanates from them."111 However, I find to
be tenuous the asseveration that "the argument that the people
through initiative cannot propose substantial amendments to
change the Constitution turns sovereignty in its head. At the very
least, the submission constricts the democratic space for the
theorized that despite the unambiguous text of Section 2, Article
XVII of the Constitution withholding the power to revise it from the
system of initiative, the people, in their sovereign capacity, can
conveniently disregard the said provision. 
I strongly take exception to the view that the people, in their
sovereign capacity, can disregard the Constitution altogether.
Such a view directly contravenes the fundamental constitutional
theory that while indeed "the ultimate sovereignty is in the people,
from whom springs all legitimate authority"; nonetheless, "by the
Constitution which they establish, they not only tie up the hands
of their official agencies, but their own hands as well; and neither
the officers of the state, nor the whole people as an aggregate
body, are at liberty to take action in opposition to this fundamental
law."113 The Constitution, it should be remembered, "is the
protector of the people, placed on guard by them to save the
rights of the people against injury by the people."114 This is the
essence of constitutionalism:
Through constitutionalism we placed limits on both our
political institutions and ourselves, hoping that
 democracies, historically always turbulent, chaotic and
even despotic, might now become restrained, principled,
thoughtful and just. So we bound ourselves over to a law
that we made and promised to keep. And though a
government of laws did not displace governance by men,
it did mean that now men, democratic men, would try to
live by their word.115
Section 2, Article XVII of the Constitution on the system of
initiative is limited only to proposals to amend to the Constitution,
and does not extend to its revision. The Filipino people have
bound themselves to observe the manner and method to effect
the changes of the Constitution. They opted to limit the exercise
of the right to directly propose amendments to the Constitution
through initiative, but did not extend the same to the revision
thereof. The petition for initiative, as it proposes to effect the
revision thereof, contravenes the Constitution. The fundamental
law of the state prescribes the limitations under which the electors
of the state may change the same, and, unless such course is
pursued, the mere fact that a majority of the electors are in favor
of a change and have so expressed themselves, does not work a
change. Such a course would be revolutionary, and the
Constitution of the state would become a mere matter of form.116
The very term Constitution implies an instrument of a permanent
and abiding nature, and the provisions contained therein for its
revision indicated the will of the people that the underlying
principles upon which it rests, as well as the substantial entirety of
the instrument, shall be of a like permanent and abiding nature.117
The Filipino people have incorporated the safety valves of
amendment and revision in Article XVII of the Constitution. The
Court is mandated to ensure that these safety valves embodied in
the Constitution to guard against improvident and hasty changes
thereof are not easily trifled with. To be sure, by having
overwhelmingly ratified the Constitution, the Filipino people
believed that it is "a good Constitution" and in the words of the
learned Judge Cooley:
x x x should be beyond the reach of temporary excitement
and popular caprice or passion. It is needed for stability
and steadiness; it must yield to the thought of the people;
not to the whim of the people, or the thought evolved in
excitement or hot blood, but the sober second thought,
which alone, if the government is to be safe, can be
allowed efficiency. Changes in government are to be
feared unless the benefit is certain. As Montaign says: "All
great mutations shake and disorder a state. Good does
not necessarily succeed evil; another evil may succeed
and worse.118
Indisputably, the issues posed in the present case are of
transcendental importance. Accordingly, I have approached and
grappled with them with full appreciation of the responsibilities
involved in the present case, and have given to its consideration
the earnest attention which its importance demands. I have
sought to maintain the supremacy of the Constitution at whatever
hazard. I share the concern of Chief Justice Day in Koehler v.
Hill:119 "it is for the protection of minorities that constitutions are
framed. Sometimes constitutions must be interposed for the
protection of majorities even against themselves. Constitutions
are adopted in times of public repose, when sober reason holds
her citadel, and are designed to check the surging passions in
times of popular excitement. But if courts could be coerced by
popular majorities into a disregard of their provisions,
constitutions would become mere 'ropes of sand,' and there
would be an end of social security and of constitutional freedom.
The cause of temperance can sustain no injury from the loss of
this amendment which would be at all comparable to the injury to
republican institutions which a violation of the constitution would
inflict. That large and respectable class of moral reformers which
so justly demands the observance and enforcement of law,
cannot afford to take its first reformatory step by a violation of the
constitution. How can it consistently demand of others obedience
to a constitution which it violates itself? The people can in a short
time re-enact the amendment. In the manner of a great moral
reform, the loss of a few years is nothing. The constitution is the
palladium of republican freedom. The young men coming forward Article XVII of the Constitution states:
upon the stage of political action must be educated to venerate it;
those already upon the stage must be taught to obey it. Whatever AMENDMENTS OR REVISIONS
interest may be advanced or may suffer, whoever or whatever
may be 'voted up or voted down,' no sacrilegious hand must be Section 1. Any amendment to, or revision of, this
laid upon the constitution."120 Constitution may be proposed by:

WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 (1) The Congress, upon a vote of three-fourths of all its
and to GRANT the petition in G.R. No. 174299. members; or

ROMEO J. CALLEJO, SR. (2) A constitutional convention.

Associate Justice
Sec. 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
____________________ petition of at least twelve per centum of the total number
of registered voters, of which every legislative district
EN BANC must be represented by at least three per centum of the
registered votes therein. No amendment under this
G.R. No. 174153 (RAUL LAMBINO, ET AL. vs. COMMISSION section shall be authorized within five years following the
ON ELECTIONS, ET AL.) and  ratification of this Constitution nor oftener than once every
five years thereafter.
G.R. No. 174299 (MAR-LEN ABIGAIL BINAY, ET AL. vs.
COMMISSION ON ELECTIONS, ET AL.). The Congress shall provide for the implementation of the
exercise of this right.
x
--------------------------------------------------------------------------------------- Sec. 3. The Congress may, by a vote of two-thirds of all
-x its Members, call a constitutional convention, or by a
majority vote of all its Members, submit to the electorate
SEPARATE OPINION the question of calling such a convention.

AZCUNA, J.: Sec. 4. Any amendment to, or revision of, this Constitution

under Section 1 hereof shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be
"Why, friends, you go to do you know not what."
held not earlier than sixty days nor later than ninety days
after the approval of such amendment or revision.
-- Shakespeare, Julius Caesar, Act III, Sc. 2.
 Any amendment under Section 2 hereof shall be valid
when ratified by a majority of the votes cast in a plebiscite
which shall be held not earlier than sixty days nor later
than ninety days after the certification by the Commission
on Elections of the sufficiency of the petition.
This Article states the procedure for changing the Constitution.
Constitutions have three parts – the Constitution of Liberty, which
states the fundamental rights of the people; the Constitution of
Government, which establishes the structure of government, its
branches and their operation; and the Constitution of Sovereignty,
which provides how the Constitution may be changed.  legislative headings and standards.
Article XVII is the Constitution of Sovereignty.
As a result, the powers therein provided are called constituent
powers. So when Congress acts under this provision, it acts not
as a legislature exercising legislative powers. It acts as a
constituent body exercising constituent powers.  exercise of this sovereign right.
The rules, therefore, governing the exercise of legislative powers
do not apply, or do not apply strictly, to the actions taken under
Article XVII.
Accordingly, since Article XVII states that Congress shall provide
for the implementation of the exercise of the people's right directly
to propose amendments to the Constitution through initiative, the
act of Congress pursuant thereto is not strictly a legislative action
but partakes of a constituent act.
As a result, Republic Act No. 6735, the act that provides for the
exercise of the people of the right to propose a law or
amendments to the Constitution is, with respect to the right to
propose amendments to the Constitution, a constituent measure,
not a mere legislative one.
The consequence of this special character of the enactment,
insofar as it relates to proposing amendments to the Constitution,
is that the requirements for statutory enactments, such as
sufficiency of standards and the like, do not and should not strictly
apply. As long as there is a sufficient and clear intent to provide
for the implementation of the exercise of the right, it should be
sustained, as it is simply a compliance of the mandate placed on
Congress by the Constitution.
Seen in this light, the provisions of Republic Act No. 6735 relating
to the procedure for proposing amendments to the Constitution,
can and should be upheld, despite shortcomings perhaps in
For this reason, I concur in the view that Santiago v.
Comelec1 should be re-examined and, after doing so, that the
pronouncement therein regarding the insufficiency or inadequacy
of the measure to sustain a people's initiative to amend the
Constitution should be reconsidered in favor of allowing the
And applying the doctrine stated in Senarillos v.
Hermosisima,2 penned by Justice J.B.L. Reyes, in relation to
Article 8 of the Civil Code, that a decision of this Court
interpreting a law forms part of the law interpreted as of the time
of its enactment, Republic Act No. 6735 should be deemed
sufficient and adequate from the start.
This next point to address, there being a sufficient law, is whether
the petition for initiative herein involved complies with the
requirements of that law as well as those stated in Article XVII of
the Constitution.
True it is that ours is a democratic state, as explicitated in the
Declaration of Principles, to emphasize precisely that there are
instances recognized and provided for in the Constitution where
our people directly exercise their sovereign powers, new features
set forth in this People Power Charter, namely, the powers of
recall, initiative and referendum.
Nevertheless, this democratic nature of our polity is that of a
democracy under the rule of law. This equally important point is
emphasized in the very Preamble to the Constitution, which
states:
". . . the blessings of . . . democracy under the rule of law .
. . ."
Such is the case with respect to the power to initiate changes in
the Constitution. The power is subject to limitations under the
Constitution itself, thus: The power could not be exercised for the
first five years after the Constitution took effect and thereafter can
only be exercised once every five years; the power only extends
to proposing amendments but not revisions; and the power needs
an act of Congress providing for its implementation, which act is
directed and mandated.
The question, therefore, arises whether the proposed changes in
the Constitution set forth in the petition for initiative herein
involved are mere amendments or rather are revisions.
Revisions are changes that affect the entire Constitution and not
mere parts of it.
The reason why revisions are not allowed through direct
proposals by the people through initiative is a practical one,
namely, there is no one to draft such extensive changes, since
6.3 million people cannot conceivably come up with a single
extensive document through a direct proposal from each of them.
Someone would have to draft it and that is not authorized as it
would not be a direct proposal from the people.
Such indirect proposals can only take the form of proposals from
Congress as a Constituent Assembly under Article XVII, or a
Constitutional Convention created under the same provision.
Furthermore, there is a need for such deliberative bodies for
revisions because their proceedings and debates are duly and
officially recorded, so that future cases of interpretations can be
properly aided by resort to the record of their proceedings.
Even a cursory reading of the proposed changes contained in the
petition for initiative herein involved will show on its face that the
proposed changes constitute a revision of the Constitution. The
proposal is to change the system of government from that which
is bicameral-presidential to one that is unicameral-parliamentary.
While purportedly only Articles VI, VII, and XVIII are involved, the
fact is, as the petition and text of the proposed changes
themselves state, every provision of the Constitution will have to
be examined to see if they conform to the nature of a unicameral-
parliamentary form of government and changed accordingly if
they do not so conform to it. For example, Article VIII on Judicial
Department cannot stand as is, in a parliamentary system, for
under such a system, the Parliament is supreme, and thus the
Court's power to declare its act a grave abuse of discretion and
thus void would be an anomaly.
Now, who is to do such examination and who is to do such
changes and how should the changes be worded? The proposed
initiative does not say who nor how.
Not only, therefore, is the proposed initiative, on this score, a
prohibited revision but it also suffers from being incomplete and
insufficient on its very face.
It, therefore, in that form, cannot pass muster the very limits
contained in providing for the power under the Constitution.
Neither does it comply with Republic Act No. 6735, which states
in Section 10 that not more than one subject shall be proposed as
an amendment or amendments to the Constitution. The petition
herein would propose at the very least two subjects – a
unicameral legislature and a parliamentary form of government.
Again, for this clear and patent violation of the very act that
provides for the exercise of the power, the proposed initiative
cannot lie.
This does not mean, however, that all is lost for petitioners.
For the proposed changes can be separated and are, in my view,
separable in nature – a unicameral legislature is one; a
parliamentary form of government is another. The first is a mere
amendment and contains only one subject matter. The second is
clearly a revision that affects every article and every provision in
the Constitution to an extent not even the proponents could at
present fully articulate. Petitioners Lambino, et al. thus go about
proposing changes the nature and extent of which they do not as
yet know exactly what.
The proposal, therefore, contained in the petition for initiative,
regarding a change in the legislature from a bicameral or two-
chamber body to that of a unicameral or one-chamber body, is
sustainable. The text of the changes needed to carry it out are
perfunctory and ministerial in nature. Once it is limited to this
proposal, the changes are simply one of deletion and insertions,
the wordings of which are practically automatic and non-
discretionary.
As an example, I attach to this opinion an Appendix "A" showing
how the Constitution would read if we were to change Congress
from one consisting of the Senate and the House of
Representatives to one consisting only of the House of
Representatives. It only affects Article VI on the Legislative
Department, some provisions on Article VII on the Executive
Department, as well as Article XI on the Accountability of Public
Officers, and Article XVIII on Transitory Provisions. These are
mere amendments, substantial ones indeed but still only
amendments, and they address only one subject matter.  RENE A. Q. SAGUISAG
Such proposal, moreover, complies with the intention and
rationale behind the present initiative, which is to provide for
simplicity and economy in government and reduce the stalemates
that often prevent needed legislation.
For the nonce, therefore, I vote to DISMISS the petition, without
prejudice to the filing of an appropriate initiative to propose
amendments to the Constitution to change Congress into a
unicameral body. This is not say that I favor such a change.
Rather, such a proposal would come within the purview of an
initiative allowed under Article XVII of the Constitution and its
implementing Republic Act, and should, therefore, be submitted
to our people in a plebiscite for them to decide in their sovereign
capacity. After all is said and done, this is what democracy under
the rule of law is about. 
ADOLFO S. AZCUNA
Associate Justice
____________________
EN BANC
G. R. No. 174153             October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO together with
6,327,952 REGISTERED VOTERS 
vs.
THE COMMISSION ON ELECTIONS
G.R. No. 174299             October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and
 
vs.
COMMISSION ON ELECTIONS, represented by Chairman
BENJAMIN S. ABALOS, SR., and Commissioners
RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
ROMEO A. BRAWNER, RENE V. SARMIENTO, and
NICODEMO T. FERRER, and John Doe and Peter Doe
x filed with the COMELEC on December 6, 1996, a "Petition to
---------------------------------------------------------------------------------------
-x
"It is a Constitution we are expounding…"1
– Chief Justice John Marshall
DISSENTING OPINION
PUNO, J.:
The petition at bar is not a fight over molehills. At the crux of the
controversy is the critical understanding of the first and
foremost of our constitutional principles — "the Philippines is a
democratic and republican State. Sovereignty resides in the
people and all government authority emanates from
them."2 Constitutionalism dictates that this creed must be
respected with deeds; our belief in its validity must be backed by
behavior.
This is a Petition for Certiorari and Mandamus to set aside the
resolution of respondent Commission on Elections (COMELEC)
dated August 31, 2006, denying due course to the Petition for
Initiative filed by petitioners Raul L. Lambino and Erico B.
Aumentado in their own behalf and together with some 6.3
million registered voters who have affixed their signatures
thereon, and praying for the issuance of a writ of mandamus to
compel respondent COMELEC to set the date of the plebiscite for
the ratification of the proposed amendments to the Constitution in
accordance with Section 2, Article XVII of the 1987 Constitution.  members of the People's Initiative for Reforms, Modernization
First, a flashback of the proceedings of yesteryears. In 1996,
the Movement for People's Initiative sought to exercise the
sovereign people's power to directly propose amendments to the
Constitution through initiative under Section 2, Article XVII of the
1987 Constitution. Its founding member, Atty. Jesus S. Delfin,
Amend the Constitution, to Lift Term Limits of Elective Officials,
by People's Initiative" (Delfin Petition). It proposed to amend
Sections 4 and 7 of Article VI, Section 4 of Article VII, and Section
8 of Article X of the 1987 Constitution by deleting the provisions
on the term limits for all elective officials. 
The Delfin Petition stated that the Petition for Initiative would first
be submitted to the people and would be formally filed with the
COMELEC after it is signed by at least twelve per cent (12%) of
the total number of registered voters in the country. It thus
sought the assistance of the COMELEC in gathering the
required signatures by fixing the dates and time therefor and
setting up signature stations on the assigned dates and
time. The petition prayed that the COMELEC issue an Order (1)
fixing the dates and time for signature gathering all over the
country; (2) causing the publication of said Order and the petition
for initiative in newspapers of general and local circulation; and,
(3) instructing the municipal election registrars in all the regions of
the Philippines to assist petitioner and the volunteers in
establishing signing stations on the dates and time designated for
the purpose. 
The COMELEC conducted a hearing on the Delfin Petition. 
On December 18, 1996, Senator Miriam Defensor Santiago,
Alexander Padilla and Maria Isabel Ongpin filed a special civil
action for prohibition before this Court, seeking to restrain the
COMELEC from further considering the Delfin Petition. They
impleaded as respondents the COMELEC, Delfin, and Alberto
and Carmen Pedrosa (Pedrosas) in their capacities as founding
and Action (PIRMA) which was likewise engaged in signature
gathering to support an initiative to amend the Constitution. They
argued that the constitutional provision on people's initiative may
only be implemented by a law passed by Congress; that no such
law has yet been enacted by Congress; that Republic Act No.
6735 relied upon by Delfin does not cover the initiative to amend
the Constitution; and that COMELEC Resolution No. 2300, the
implementing rules adopted by the COMELEC on the conduct of
initiative, was ultra vires insofar as the initiative to amend the
Constitution was concerned. The case was docketed as G.R. No.
127325, entitled Santiago v. Commission on Elections.3
Pending resolution of the case, the Court issued a temporary
restraining order enjoining the COMELEC from proceeding with
the Delfin Petition and the Pedrosas from conducting a signature
drive for people's initiative to amend the Constitution.  in the cold; it should be given flesh and blood, energy and
On March 19, 1997, the Court rendered its decision on the
petition for prohibition. The Court ruled that the constitutional
provision granting the people the power to directly amend the
Constitution through initiative is not self-executory. An enabling
law is necessary to implement the exercise of the people's right.
Examining the provisions of R.A. 6735, a majority of eight (8)
members of the Court held that said law was "incomplete,
inadequate, or wanting in essential terms and conditions
insofar as initiative on amendments to the Constitution is
concerned,"4 and thus voided portions of COMELEC Resolution
No. 2300 prescribing rules and regulations on the conduct of
initiative on amendments to the Constitution. It was also held that
even if R.A. 6735 sufficiently covered the initiative to amend the
Constitution and COMELEC Resolution No. 2300 was valid,
the Delfin Petition should still be dismissed as it was not the
proper initiatory pleading contemplated by law. Under Section
2, Article VII of the 1987 Constitution and Section 5(b) of R.A.
6735, a petition for initiative on the Constitution must be signed
by at least twelve per cent (12%) of the total number of registered
voters, of which every legislative district is represented by at least
three per cent (3%) of the registered voters therein. The Delfin
Petition did not contain signatures of the required number of
voters. The decision stated:
CONCLUSION
This petition must then be granted, and the COMELEC
should be permanently enjoined from entertaining or
taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall
have been validly enacted to provide for the
implementation of the system.
We feel, however, that the system of initiative to propose
amendments to the Constitution should no longer be kept
strength. Congress should not tarry any longer in
complying with the constitutional mandate to provide for
the implementation of the right of the people under that
system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to
cover the system of initiative on amendments to
the Constitution, and to have failed to provide
sufficient standard for subordinate legislation;
c) DECLARING void those parts of Resolution No.
2300 of the Commission on Elections prescribing
rules and regulations on the conduct of initiative or
amendments to the Constitution; and
d) ORDERING the Commission on Elections to
forthwith DISMISS the DELFIN petition (UND-96-
037).
 The Temporary Restraining Order issued on 18
December 1996 is made permanent against the
Commission on Elections, but is LIFTED as against
private respondents.5
Eight (8) members of the Court, namely, then Associate Justice
Hilario G. Davide, Jr. (ponente), Chief Justice Andres R. Narvasa,
and Associate Justices Florenz D. Regalado, Flerida Ruth P.
Romero, Josue N. Bellosillo, Santiago M. Kapunan, Regino C.
Hermosisima, Jr. and Justo P. Torres, fully concurred in the
majority opinion.  Initiative to Propose Amendments to the Constitution (PIRMA
While all the members of the Court who participated in the
deliberation6 agreed that the Delfin Petition should be dismissed
for lack of the required signatures, five (5) members, namely,
Associate Justices Jose A.R. Melo, Reynato S. Puno, Vicente V.
Mendoza, Ricardo J. Francisco and Artemio V. Panganiban, held
that R.A. 6735 was sufficient and adequate to implement the
people's right to amend the Constitution through initiative, and
that COMELEC Resolution No. 2300 validly provided the details
for the actual exercise of such right. Justice Jose C. Vitug, on
the other hand, opined that the Court should confine itself to
resolving the issue of whether the Delfin Petition sufficiently
complied with the requirements of the law on initiative, and there
was no need to rule on the adequacy of R.A. 6735.  another term, similarly with the Vice-President, so that
The COMELEC, Delfin and the Pedrosas filed separate motions
for reconsideration of the Court's decision.
After deliberating on the motions for reconsideration, six
(6)7 of the eight (8) majority members maintained their position
that R.A. 6735 was inadequate to implement the provision on the
initiative on amendments to the Constitution. Justice Torres filed
an inhibition, while Justice Hermosisima submitted a Separate
Opinion adopting the position of the minority that R.A. 6735
sufficiently covers the initiative to amend the Constitution. Hence,
of the thirteen (13) members of the Court who participated in the
deliberation, six (6) members, namely, Chief Justice Narvasa and
Associate Justices Regalado, Davide, Romero, Bellosillo and
Kapunan voted to deny the motions for lack of merit; and six (6)
members, namely, Associate Justices Melo, Puno, Mendoza,
Francisco, Hermosisima and Panganiban voted to grant the
same. Justice Vitug maintained his opinion that the matter was
not ripe for judicial adjudication. The motions for reconsideration
were therefore denied for lack of sufficient votes to modify or
reverse the decision of March 19, 1997.8
On June 23, 1997, PIRMA filed with the COMELEC a Petition for
Petition). The PIRMA Petition was supported by around five (5)
million signatures in compliance with R.A. 6735 and COMELEC
Resolution No. 2300, and prayed that the COMELEC, among
others: (1) cause the publication of the petition in Filipino and
English at least twice in newspapers of general and local
circulation; (2) order all election officers to verify the signatures
collected in support of the petition and submit these to the
Commission; and (3) set the holding of a plebiscite where the
following proposition would be submitted to the people for
ratification: 
Do you approve amendments to the 1987 Constitution
giving the President the chance to be reelected for
both the highest officials of the land can serve for two
consecutive terms of six years each, and also to lift the
term limits for all other elective government officials, thus
giving Filipino voters the freedom of choice, amending for
that purpose, Section 4 of Article VII, Sections 4 and 7 of
Article VI and Section 8 of Article X, respectively?
The COMELEC dismissed the PIRMA Petition in view of the
permanent restraining order issued by the Court in Santiago v.
COMELEC. 
PIRMA filed with this Court a Petition for Mandamus and
Certiorari seeking to set aside the COMELEC Resolution
dismissing its petition for initiative. PIRMA argued that the Court's
decision on the Delfin Petition did not bar the COMELEC from
acting on the PIRMA Petition as said ruling was not definitive
based on the deadlocked voting on the motions for
reconsideration, and because there was no identity of parties and
subject matter between the two petitions. PIRMA also urged the
Court to reexamine its ruling in Santiago v. COMELEC. 
The Court dismissed the petition for mandamus and certiorari
in its resolution dated September 23, 1997. It explained:  on a nationwide drive to gather signatures to support the move to
The Court ruled, first, by a unanimous vote, that no grave
abuse of discretion could be attributed to the public
respondent COMELEC in dismissing the petition filed by
PIRMA therein, it appearing that it only complied with the
dispositions in the Decision of this Court in G.R. No.
127325 promulgated on March 19, 1997, and its
Resolution of June 10, 1997.
The Court next considered the question of whether there
was need to resolve the second issue posed by the
petitioners, namely, that the Court re-examine its ruling as
regards R.A. 6735. On this issue, the Chief Justice and
six (6) other members of the Court, namely, Regalado,
Davide, Romero, Bellosillo, Kapunan and Torres, JJ.,
voted that there was no need to take it up. Vitug, J.,
agreed that there was no need for re-examination of said
second issue since the case at bar is not the proper
vehicle for that purpose. Five (5) other members of the
Court, namely, Melo, Puno, Francisco, Hermosisima, and
Panganiban, JJ., opined that there was a need for such a
re-examination x x x x9
In their Separate Opinions, Justice (later Chief Justice) Davide
and Justice Bellosillo stated that the PIRMA petition was
dismissed on the ground of res judicata.
Now, almost a decade later, another group, Sigaw ng Bayan,
seeks to utilize anew the system of initiative to amend the
Constitution, this time to change the form of government from
bicameral-presidential to unicameral-parliamentary system.
Let us look at the facts of the petition at bar with clear eyes.
On February 15, 2006, Sigaw ng Bayan, in coordination with
Union of Local Authorities of the Philippines (ULAP), embarked
adopt the parliamentary form of government in the country
through charter change. They proposed to amend the
Constitution as follows: 
A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be
amended to read as follows:
Section 1. (1) The legislative and executive
powers shall be vested in a unicameral Parliament
which shall be composed of as many members as
may be provided by law, to be apportioned among
the provinces, representative districts, and cities
in accordance with the number of their respective
inhabitants, with at least three hundred thousand
inhabitants per district, and on the basis of a
uniform and progressive ratio. Each district shall
comprise, as far as practicable, contiguous,
compact and adjacent territory, and each province
must have at least one member.
(2) Each Member of Parliament shall be a natural-
born citizen of the Philippines, at least twenty-five
years old on the day of the election, a resident of
his district for at least one year prior thereto, and
shall be elected by the qualified voters of his
district for a term of five years without limitation as
to the number thereof, except those under the
 party-list system which shall be provided for by
law and whose number shall be equal to twenty
per centum of the total membership coming from
the parliamentary districts.
B. Sections 1, 2, 3 and 4 of Article VII of the 1987
Constitution are hereby amended to read, as follows:
Section 1. There shall be a President who shall be
the Head of State. The executive power shall be
exercised by a Prime Minister, with the assistance
of the Cabinet. The Prime Minister shall be
elected by a majority of all the Members of
Parliament from among themselves. He shall be
responsible to the Parliament for the program of
government.
C. For the purpose of insuring an orderly transition
from the bicameral-Presidential to a unicameral-
Parliamentary form of government, there shall be a
new Article XVIII, entitled "Transitory Provisions,"
which shall read, as follows:
Section 1. (1) The incumbent President and Vice
President shall serve until the expiration of their
term at noon on the thirtieth day of June 2010 and
shall continue to exercise their powers under the
1987 Constitution unless impeached by a vote of
two thirds of all the members of the interim
parliament.
(2) In case of death, permanent disability,
resignation or removal from office of the
incumbent President, the incumbent Vice
President shall succeed as President. In case of
death, permanent disability, resignation or
removal from office of both the incumbent
President and Vice President, the interim Prime
Minister shall assume all the powers and
responsibilities of Prime Minister under Article VII
as amended.
Section 2. Upon the expiration of the term of the
incumbent President and Vice President, with the
exception of Sections 1, 2, 3, 4, 5, 6 and 7 of
Article VI of the 1987 Constitution which shall
hereby be amended and Sections 18 and 24
which shall be deleted, all other Sections of Article
VI are hereby retained and renumbered
sequentially as Section 2, ad seriatim up to 26,
unless they are inconsistent with the
Parliamentary system of government, in which
case, they shall be amended to conform with a
unicameral parliamentary form of government;
provided, however, that any and all references
therein to "Congress," "Senate," "House of
Representatives" and "Houses of Congress" shall
be changed to read "Parliament;" that any and all
references therein to "Member(s) of Congress,"
"Senator(s)" or "Member(s) of the House of
Representatives" shall be changed to read as
"Member(s) of Parliament" and any and all
references to the "President" and/or "Acting
President" shall be changed to read "Prime
Minister."
Section 3. Upon the expiration of the term of the
incumbent President and Vice President, with the
exception of Sections 1, 2, 3 and 4 of Article VII of
the 1987 Constitution which are hereby amended
and Sections 7, 8, 9, 10, 11 and 12 which are
hereby deleted, all other Sections of Article VII
shall be retained and renumbered sequentially as
Section 2, ad seriatim up to 14, unless they shall
be inconsistent with Section 1 hereof, in which
case they shall be deemed amended so as to
conform to a unicameral Parliamentary System of
government; provided, however, that any all
references therein to "Congress," "Senate,"
"House of Representatives" and "Houses of
Congress" shall be changed to read "Parliament;"
that any and all references therein to "Member(s)
of Congress," "Senator(s)" or "Member(s) of the
House of Representatives" shall be changed to
read as "Member(s) of Parliament" and any and
all references to the "President" and or "Acting
President" shall be changed to read "Prime
Minister."
Section 4. (1) There shall exist, upon the
ratification of these amendments, an interim
Parliament which shall continue until the Members
of the regular Parliament shall have been elected
and shall have qualified. It shall be composed of
the incumbent Members of the Senate and the
House of Representatives and the incumbent
Members of the Cabinet who are heads of
executive departments.
(2) The incumbent Vice President shall
automatically be a Member of Parliament until
noon of the thirtieth day of June 2010. He shall
also be a member of the cabinet and shall head a
ministry. He shall initially convene the interim
Parliament and shall preside over its sessions for
the election of the interim Prime Minister and until
the Speaker shall have been elected by a majority
vote of all the members of the interim Parliament
from among themselves.
(3) Senators whose term of office ends in 2010
shall be Members of Parliament until noon of the
thirtieth day of June 2010.
(4) Within forty-five days from ratification of these
amendments, the interim Parliament shall
convene to propose amendments to, or revisions
of, this Constitution consistent with the principles
of local autonomy, decentralization and a strong
bureaucracy.
Section 5. (1) The incumbent President, who is
the Chief Executive, shall nominate, from among
the members of the interim Parliament, an interim
Prime Minister, who shall be elected by a majority
vote of the members thereof. The interim Prime
Minister shall oversee the various ministries and
shall perform such powers and responsibilities as
may be delegated to him by the incumbent
President."
(2) The interim Parliament shall provide for the
election of the members of Parliament, which shall
be synchronized and held simultaneously with the
election of all local government officials. The duly
elected Prime Minister shall continue to exercise
and perform the powers, duties and
responsibilities of the interim Prime Minister until
the expiration of the term of the incumbent
President and Vice President.10
Sigaw ng Bayan prepared signature sheets, on the upper
portions of which were written the abstract of the proposed
amendments, to wit: 
Abstract: Do you approve of the amendment of Articles
VI and VII of the 1987 Constitution, changing the form of
government from the present bicameral-presidential to a
unicameral-parliamentary system of government, in order
to achieve greater efficiency, simplicity and economy in
government; and providing an Article XVIII as Transitory
 Provisions for the orderly shift from one system to
another?
The signature sheets were distributed nationwide to affiliated non-
government organizations and volunteers of Sigaw ng Bayan, as
well as to the local officials. Copies of the draft petition for
initiative containing the proposition were also circulated to the
local officials and multi-sectoral groups.  petitioners averred that Section 5 (b) and (c), together
Sigaw ng Bayan alleged that it also held barangay
assemblies which culminated on March 24, 25 and 26, 2006, to
inform the people and explain to them the proposed amendments
to the Constitution. Thereafter, they circulated the signature
sheets for signing.  4, Article XVII of the 1987 Constitution;
The signature sheets were then submitted to the local election
officers for verification based on the voters' registration record.
Upon completion of the verification process, the respective local
election officers issued certifications to attest that the
signature sheets have been verified. The verified signature
sheets were subsequently transmitted to the office of Sigaw ng
Bayan for the counting of the signatures.  COMELEC of the sufficiency of the petition, to allow the
On August 25, 2006, herein petitioners Raul L. Lambino and
Erico B. Aumentado filed with the COMELEC a Petition for
Initiative to Amend the Constitution entitled "In the Matter of
Proposing Amendments to the 1987 Constitution through a
People's Initiative: A Shift from a Bicameral Presidential to a
Unicameral Parliamentary Government by Amending Articles VI
and VII; and Providing Transitory Provisions for the Orderly Shift
from the Presidential to the Parliamentary System." They filed an
Amended Petition on August 30, 2006 to reflect the text of the
proposed amendment that was actually presented to the people.
They alleged that they were filing the petition in their own behalf
and together with some 6.3 million registered voters who have
affixed their signatures on the signature sheets attached thereto.
Petitioners appended to the petition signature sheets bearing the
signatures of registered voters which they claimed to have been
verified by the respective city or municipal election officers, and
allegedly constituting at least twelve per cent (12%) of all
registered voters in the country, wherein each legislative district is
represented by at least three per cent (3%) of all the registered
voters therein. 
As basis for the filing of their petition for initiative,
with Section 7 of R.A. 6735, provide sufficient enabling
details for the people's exercise of the power. Hence,
petitioners prayed that the COMELEC issue an Order:
1. Finding the petition to be sufficient pursuant to Section
2. Directing the publication of the petition in Filipino and
English at least twice in newspapers of general and local
circulation; and 
3. Calling a plebiscite to be held not earlier than sixty nor
later than ninety days after the Certification by the
Filipino people to express their sovereign will on the
proposition. 
Several groups filed with the COMELEC their respective
oppositions to the petition for initiative, among them
ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel
L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos
P. Medina, Jr.; Alternative Law Groups, Inc., Senate Minority
Leader Aquilino Q. Pimentel, Jr., Senators Sergio Osmeña III,
Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P.
Ejercito-Estrada, and Jinggoy Estrada; Representatives Loretta
Ann P. Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-
Baraquel; Bayan, Kilusang Mayo Uno, Ecumenical Bishops
Forum, Migrante, Gabriela, Gabriela Women's Party, Anakbayan,
League of Filipino Students, Leonardo San Jose, Jojo Pineda,
Drs. Darby Santiago and Reginald Pamugas; Attys. Pete Quirino-
Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya
Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong. 
On August 31, 2006, the COMELEC denied due course to the
Petition for Initiative. It cited this Court's ruling in Santiago v.
COMELEC11 permanently enjoining the Commission from
entertaining or taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall have
been validly enacted to provide for the implementation of the
system.  people.
Forthwith, petitioners filed with this Court the instant Petition for
Certiorari and Mandamus praying that the Court set aside the
August 31, 2006 resolution of the COMELEC, direct respondent
COMELEC to comply with Section 4, Article XVII of the
Constitution, and set the date of the plebiscite. They state the
following grounds in support of the petition:
I.
The Honorable public respondent COMELEC committed
grave abuse of discretion in refusing to take cognizance
of, and to give due course to the petition for initiative,
because the cited Santiago ruling of 19 March 1997
cannot be considered the majority opinion of the Supreme
Court en banc, considering that upon its reconsideration
and final voting on 10 June 1997, no majority vote was
secured to declare Republic Act No. 6735 as inadequate,
incomplete and insufficient in standard.
II.
The 1987 Constitution, Republic Act No. 6735, Republic
Act No. 8189 and existing appropriation of the COMELEC
provide for sufficient details and authority for the exercise
of people's initiative, thus, existing laws taken together
are adequate and complete.
III.
The Honorable public respondent COMELEC committed
grave abuse of discretion in refusing to take cognizance
of, and in refusing to give due course to the petition for
initiative, thereby violating an express constitutional
mandate and disregarding and contravening the will of the
A.
Assuming in arguendo that there is no enabling
law, respondent COMELEC cannot ignore the will
of the sovereign people and must accordingly act
on the petition for initiative.
1.
The framers of the Constitution intended
to give the people the power to propose
amendments and the people themselves
are now giving vibrant life to this
constitutional provision.
2.
Prior to the questioned Santiago ruling of
19 March 1997, the right of the people to
exercise the sovereign power of initiative
and recall has been invariably upheld.
3.
 The exercise of the initiative to propose
amendments is a political question which
shall be determined solely by the
sovereign people.
4.
By signing the signature sheets attached
to the petition for initiative duly verified by
the election officers, the people have
chosen to perform this sacred exercise of
their sovereign power.
B.
The Santiago ruling of 19 March 1997 is not
applicable to the instant petition for initiative filed
by the petitioners.
C.
The permanent injunction issued in Santiago vs.
COMELEC only applies to the Delfin petition.
1.
It is the dispositive portion of the decision
and not other statements in the body of
the decision that governs the rights in
controversy.
IV.
The Honorable public respondent failed or
neglected to act or perform a duty
mandated by law.
A.
The ministerial duty of the
COMELEC is to set the initiative
for plebiscite.12
The oppositors-intervenors, ONEVOICE, Inc., Christian S.
Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T.
Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr.; Alternative
Law Groups, Inc.; Bayan, Kilusang Mayo Uno, Ecumenical
Bishops Forum, Migrante Gabriela, Gabriela Women's Party,
Anakbayan, League of Filipino Students, Leonardo San Jose,
Jojo Pineda, Dr. Darby Santiago, and Dr. Reginald Pamugas;
Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators
Sergio Osmeña III, Jamby A.S. Madrigal, Alfredo S. Lim, Panfilo
M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy Estrada;
Representatives Loretta Ann P. Rosales, Mario Joyo Aguja, and
Ana Theresia Hontiveros-Baraquel; and Attys. Pete Quirino-
Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya
Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong
moved to intervene in this case and filed their respective
Oppositions/Comments-in-Intervention.
The Philippine Constitution Association, Conrado F. Estrella,
Tomas C. Toledo, Mariano M. Tajon, Froilan M. Bacungan,
Joaquin T. Venus, Jr., Fortunato P. Aguas, and Amado Gat
Inciong; the Integrated Bar of the Philippines Cebu City and Cebu
Province Chapters; former President Joseph Ejercito Estrada and
Pwersa ng Masang Pilipino; and the Senate of the Philippines,
represented by Senate President Manuel Villar, Jr., also filed their
respective motions for intervention and Comments-in-
Intervention. 
The Trade Union Congress of the Philippines, Sulongbayan
Movement Foundation, Inc., Ronald L. Adamat, Rolando Manuel
Rivera, Ruelo Baya, Philippine Transport and General Workers
Organization, and Victorino F. Balais likewise moved to intervene
and submitted to the Court a Petition-in-Intervention. All
interventions and oppositions were granted by the Court.
The oppositors-intervenors essentially submit that the
COMELEC did not commit grave abuse of discretion in denying
due course to the petition for initiative as it merely followed this
Court's ruling in Santiago v. COMELEC as affirmed in the case
of PIRMA v. COMELEC, based on the principle of stare decisis;
that there is no sufficient law providing for the authority and the
details for the exercise of people's initiative to amend the
Constitution; that the proposed changes to the Constitution are
actually revisions, not mere amendments; that the petition for
initiative does not meet the required number of signatories under
Section 2, Article XVII of the 1987 Constitution; that it was not
shown that the people have been informed of the proposed
amendments as there was disparity between the proposal
presented to them and the proposed amendments attached to the
petition for initiative, if indeed there was; that the verification
process was done ex parte, thus rendering dubious the
signatures attached to the petition for initiative; and that
petitioners Lambino and Aumentado have no legal capacity to
represent the signatories in the petition for initiative.  more than six million voters who allegedly signed the
The Office of the Solicitor General (OSG), in compliance with
the Court's resolution of September 5, 2006, filed its Comment to
the petition. Affirming the position of the petitioners, the OSG
prayed that the Court grant the petition at bar and render
judgment: (1) declaring R.A. 6735 as adequate to cover or as
reasonably sufficient to implement the system of initiative on
amendments to the Constitution and as having provided sufficient
standards for subordinate legislation; (2) declaring as valid the
provisions of COMELEC Resolution No. 2300 on the conduct of
initiative or amendments to the Constitution; (3) setting aside the
assailed resolution of the COMELEC for having been rendered
with grave abuse of discretion amounting to lack or excess of
jurisdiction; and, (4) directing the COMELEC to grant the petition
for initiative and set the corresponding plebiscite pursuant to R.A.
6735, COMELEC Resolution No. 2300, and other pertinent
election laws and regulations. 
The COMELEC filed its own Comment stating that its resolution
denying the petition for initiative is not tainted with grave abuse of
discretion as it merely adhered to the ruling of this Court in
Santiago v. COMELEC which declared that R.A. 6735 does not
adequately implement the constitutional provision on initiative to
amend the Constitution. It invoked the permanent injunction
issued by the Court against the COMELEC from taking
cognizance of petitions for initiative on amendments to the
Constitution until a valid enabling law shall have been passed by
Congress. It asserted that the permanent injunction covers not
only the Delfin Petition, but also all other petitions involving
constitutional initiatives. 
On September 26, 2006, the Court heard the case. The parties
were required to argue on the following issues:13
1. Whether petitioners Lambino and Aumentado are
proper parties to file the present Petition in behalf of the
proposal to amend the Constitution.
2. Whether the Petitions for Initiative filed before the
Commission on Elections complied with Section 2, Article
XVII of the Constitution.
3. Whether the Court's decision in Santiago v. COMELEC
(G.R. No. 127325, March 19, 1997) bars the present
petition.
4. Whether the Court should re-examine the ruling in
Santiago v. COMELEC that there is no sufficient law
implementing or authorizing the exercise of people's
initiative to amend the Constitution.
 5. Assuming R.A. 6735 is sufficient, whether the Petitions
for Initiative filed with the COMELEC have complied with
its provisions.
5.1 Whether the said petitions are sufficient in
form and substance.
5.2 Whether the proposed changes embrace
more than one subject matter.
6. Whether the proposed changes constitute an
amendment or revision of the Constitution.
6.1 Whether the proposed changes are the proper
subject of an initiative.
7. Whether the exercise of an initiative to propose
amendments to the Constitution is a political question to
be determined solely by the sovereign people.
8. Whether the Commission on Elections committed grave
abuse of discretion in dismissing the Petitions for Initiative
filed before it.  Neither is it necessary for said signatories to authorize Lambino
With humility, I offer the following views to these issues as
profiled:
I
Petitioners Lambino and Aumentado are proper
parties to file the present Petition in behalf of the
more than six million voters who allegedly signed the
proposal to amend the Constitution.
Oppositors-intervenors contend that petitioners Lambino and
Aumentado are not the proper parties to file the instant petition as
they were not authorized by the signatories in the petition for
initiative. 
The argument deserves scant attention. The Constitution requires
that the petition for initiative should be filed by at least twelve per
cent (12%) of all registered voters, of which every legislative
district must be represented by at least three per cent (3%) of all
the registered voters therein. The petition for initiative filed by
Lambino and Aumentado before the COMELEC was
accompanied by voluminous signature sheets which prima
facie show the intent of the signatories to support the filing of said
petition. Stated above their signatures in the signature sheets is
the following:
x x x My signature herein which shall form part of the
petition for initiative to amend the Constitution signifies my
support for the filing thereof.14
There is thus no need for the more than six (6) million signatories
to execute separate documents to authorize petitioners to file the
petition for initiative in their behalf.
and Aumentado to file the petition for certiorari and mandamus
before this Court. Rule 65 of the 1997 Rules of Civil Procedure
provides who may file a petition for certiorari and mandamus.
Sections 1 and 3 of Rule 65 read:
SECTION 1. Petition for certiorari.—When any tribunal,
board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of his jurisdiction,
or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, nor 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 x x x x.
 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
x x x 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 x x x x.
Thus, any person aggrieved by the act or inaction of the
respondent tribunal, board or officer may file a petition for
certiorari or mandamus before the appropriate court. Certainly,
Lambino and Aumentado, as among the proponents of the
petition for initiative dismissed by the COMELEC, have the
standing to file the petition at bar.  decisis deals with the duty of lower courts to apply the
II
The doctrine of stare decisis does not bar the
reexamination of Santiago.
The latin phrase stare decisis et non quieta movere means
"stand by the thing and do not disturb the calm." The doctrine
started with the English Courts.15 Blackstone observed that at the
beginning of the 18th century, "it is an established rule to abide by
former precedents where the same points come again in
litigation."16 As the rule evolved, early limits to its application
were recognized: (1) it would not be followed if it were "plainly
unreasonable;" (2) where courts of equal authority developed
conflicting decisions; and, (3) the binding force of the decision
was the "actual principle or principles necessary for the decision;
not the words or reasoning used to reach the decision."17
The doctrine migrated to the United States. It was recognized by
the framers of the U.S. Constitution.18 According to Hamilton,
"strict rules and precedents" are necessary to prevent "arbitrary
discretion in the courts."19 Madison agreed but stressed that "x x
x once the precedent ventures into the realm of altering or
repealing the law, it should be rejected."20 Prof. Consovoy well
noted that Hamilton and Madison "disagree about the
countervailing policy considerations that would allow a judge to
abandon a precedent."21 He added that their ideas "reveal a deep
internal conflict between the concreteness required by the rule of
law and the flexibility demanded in error correction. It is this
internal conflict that the Supreme Court has attempted to
deal with for over two centuries."22
Indeed, two centuries of American case law will confirm Prof.
Consovoy's observation although stare decisisdeveloped its own
life in the United States. Two strains of stare decisis have been
isolated by legal scholars.23 The first, known as vertical stare
decisions of the higher courts to cases involving the same facts.
The second, known as horizontal stare decisis requires
that high courts must follow its own precedents. Prof.
Consovoy correctly observes that vertical stare decisis has been
viewed as an obligation, while horizontal stare decisis, has
been viewed as a policy, imposing choice but not a
command.24 Indeed, stare decisis is not one of the precepts set in
stone in our Constitution.
It is also instructive to distinguish the two kinds of
horizontal stare decisis — constitutional stare
decisis and statutory stare decisis.25 Constitutional stare
decisis involves judicial interpretations of the Constitution
while statutory stare decisis involves interpretations of statutes.
The distinction is important for courts enjoy more flexibility in
refusing to apply stare decisis in constitutional litigations. Justice
Brandeis' view on the binding effect of the doctrine in
constitutional litigations still holds sway today. In soothing prose,
Brandeis stated: "Stare decisis is not . . . a universal and
inexorable command. The rule of stare decisis is not
inflexible. Whether it shall be followed or departed from, is a
question entirely within the discretion of the court, which is
again called upon to consider a question once decided."26 In the
same vein, the venerable Justice Frankfurter opined: "the
ultimate touchstone of constitutionality is the Constitution
itself and not what we have said about it."27 In contrast, the
application of stare decisis on judicial interpretation of statutes is
more inflexible. As Justice Stevens explains: "after a statute has
been construed, either by this Court or by a consistent course of
decision by other federal judges and agencies, it acquires a
meaning that should be as clear as if the judicial gloss had been
drafted by the Congress itself."28 This stance reflects both respect
for Congress' role and the need to preserve the courts' limited
resources.
In general, courts follow the stare decisis rule for an ensemble
of reasons,29 viz: (1) it legitimizes judicial institutions; (2) it
promotes judicial economy; and, (3) it allows for predictability.
Contrariwise, courts refuse to be bound by the stare
decisis rule where30 (1) its application perpetuates illegitimate
and unconstitutional holdings; (2) it cannot accommodate
changing social and political understandings; (3) it leaves the
power to overturn bad constitutional law solely in the hands of
Congress; and, (4) activist judges can dictate the policy for future
courts while judges that respect stare decisis are stuck agreeing
with them.
In its 200-year history, the U.S. Supreme Court has refused to
follow the stare decisis rule and reversed its decisions in 192
cases.31 The most famous of these reversals is Brown v. Board
of Education32 which junked Plessy v. Ferguson's33 "separate
but equal doctrine." Plessy upheld as constitutional a state law
requirement that races be segregated on public transportation.
In Brown, the U.S. Supreme Court, unanimously held that
"separate . . . is inherently unequal." Thus, by freeing itself from
the shackles of stare decisis, the U.S. Supreme Court freed the
colored Americans from the chains of inequality. In the Philippine
setting, this Court has likewise refused to be straitjacketed by
the stare decisis rule in order to promote public welfare. In La
Bugal-B'laan Tribal Association, Inc. v. Ramos,34 we reversed our
original ruling that certain provisions of the Mining Law are
unconstitutional. Similarly, in Secretary of Justice v.
Lantion,35 we overturned our first ruling and held, on motion for
reconsideration, that a private respondent is bereft of the right to
notice and hearing during the evaluation stage of the extradition
process.
An examination of decisions on stare decisis in major
countries will show that courts are agreed on the factors that
should be considered before overturning prior rulings. These
are workability, reliance, intervening developments in the law
and changes in fact. In addition, courts put in the balance the
following determinants: closeness of the voting, age of the
prior decision and its merits.36
The leading case in deciding whether a court should follow
the stare decisis rule in constitutional litigations is Planned
Parenthood v. Casey.37 It established a 4-pronged test. The
court should (1) determine whether the rule has proved to
be intolerable simply in defying practical workability; (2) consider
whether the rule is subject to a kind of reliance that would lend a
special hardship to the consequences of overruling and add
inequity to the cost of repudiation; (3) determine whether related
principles of law have so far developed as to have the old rule
no more than a remnant of an abandoned doctrine; and, (4) find
out whether facts have so changed or come to be seen
differently, as to have robbed the old rule of significant application
or justification.
Following these guidelines, I submit that the stare
decisis rule should not bar the reexamination of
Santiago. On the factor of intolerability, the six (6) justices
in Santiago held R.A. 6735 to be insufficient as it provided no
standard to guide COMELEC in issuing its implementing rules.
The Santiago ruling that R.A. 6735 is insufficient but without
striking it down as unconstitutional is an intolerable aberration,
the only one of its kind in our planet. It improperly assails the
ability of legislators to write laws. It usurps the exclusive right of
legislators to determine how far laws implementing constitutional
mandates should be crafted. It is elementary that courts cannot
dictate on Congress the style of writing good laws, anymore than
Congress can tell courts how to write literate decisions. The
doctrine of separation of powers forbids this Court to invade the
exclusive lawmaking domain of Congress for courts can
construe laws but cannot construct them. The end result of
the ruling of the six (6) justices that R.A. 6735 is insufficient is
intolerable for it rendered lifeless the sovereign right of the people
to amend the Constitution via an initiative.
On the factor of reliance, the ruling of the six (6) justices
in Santiago did not induce any expectation from the people. On
the contrary, the ruling smothered the hope of the people that
they could amend the Constitution by direct action. Moreover,
reliance is a non-factor in the case at bar for it is more
appropriate to consider in decisions involving contracts where
private rights are adjudicated. The case at bar involves no private
rights but the sovereignty of the people.
On the factor of changes in law and in facts, certain realities
on ground cannot be blinked away. The urgent need to adjust
certain provisions of the 1987 Constitution to enable the country
to compete in the new millennium is given. The only point of
contention is the mode to effect the change - - - whether through
constituent assembly, constitutional convention or people's
initiative. Petitioners claim that they have gathered over six (6)
million registered voters who want to amend the Constitution
through people's initiative and that their signatures have been
verified by registrars of the COMELEC. The six (6) justices who
ruled that R.A. 6735 is insufficient to implement the direct
right of the people to amend the Constitution through an
initiative cannot waylay the will of 6.3 million people who are
the bearers of our sovereignty and from whom all
government authority emanates. New developments in our
internal and external social, economic, and political settings
demand the reexamination of the Santiago case. The stare
decisis rule is no reason for this Court to allow the people to
step into the future with a blindfold.
III
A reexamination of R.A. 6735 will show that it is
sufficient to implement the people's initiative.
Let us reexamine the validity of the view of the six (6) justices that
R.A. 6735 is insufficient to implement Section 2, Article XVII of
the 1987 Constitution allowing amendments to the Constitution to
be directly proposed by the people through initiative.
When laws are challenged as unconstitutional, courts are
counseled to give life to the intent of legislators. In enacting R.A.
6735, it is daylight luminous that Congress intended the said law
to implement the right of the people, thru initiative, to propose
amendments to the Constitution by direct action. This all-
important intent is palpable from the following:
First. The text of R.A. 6735 is replete with references to the right
of the people to initiate changes to the Constitution:
The policy statement declares:
Sec. 2. Statement of Policy. -- The power of the people
under a system of initiative and referendum to directly
propose, enact, approve or reject, in whole or in part,
the Constitution, laws, ordinances, or resolutions passed
by any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized
and guaranteed. (emphasis supplied)
It defines "initiative" as "the power of the people to propose
amendments to the Constitution or to propose and enact
legislations through an election called for the purpose," and
"plebiscite" as "the electoral process by which an initiative on
the Constitution is approved or rejected by the people."
It provides the requirements for a petition for initiative to amend
the Constitution, viz:  House of Representatives) emphasized the intent to make
(1) That "(a) petition for an initiative on the 1987
Constitution must have at least twelve per centum (12%)
of the total number of registered voters as signatories, of
which every legislative district must be represented by at
least three per centum (3%) of the registered voters
therein;"38 and  committee, we wish to speak in support of House Bill No.
(2) That "(i)nitiative on the Constitution may be exercised
only after five (5) years from the ratification of the 1987
Constitution and only once every five (5) years
thereafter."39
It fixes the effectivity date of the amendment under Section 9(b)
which provides that "(t)he proposition in an initiative on the
Constitution approved by a majority of the votes cast in the
plebiscite shall become effective as to the day of the plebiscite."
Second. The legislative history of R.A. 6735 also reveals the clear
intent of the lawmakers to use it as the instrument to implement
people's initiative. No less than former Chief Justice Hilario G.
Davide, Jr., the ponente in Santiago, concedes:40
We agree that R.A. No. 6735 was, as its history reveals,
intended to cover initiative to propose amendments to the
Constitution. The Act is a consolidation of House Bill No.
21505 and Senate Bill No. 17 x x x x The Bicameral
Conference Committee consolidated Senate Bill No. 17
and House Bill No. 21505 into a draft bill, which was
subsequently approved on 8 June 1989 by the Senate
and by the House of Representatives. This approved bill
is now R.A. No. 6735.
Third. The sponsorship speeches by the authors of R.A. 6735
similarly demonstrate beyond doubt this intent. In his sponsorship
remarks, the late Senator Raul Roco (then a Member of the
initiative as a mode whereby the people can propose
amendments to the Constitution. We quote his relevant remarks:41
SPONSORSHIP REMAKRS OF REP. ROCO
MR. ROCO. Mr. Speaker, with the permission of the
497, entitled: INITIATIVE AND REFERENDUM ACT OF
1987, which later on may be called Initiative and
Referendum Act of 1989.
As a background, we want to point out the constitutional
basis of this particular bill. The grant of plenary legislative
power upon the Philippine Congress by the 1935, 1973
and 1987 Constitutions, Mr. Speaker, was based on the
principle that any power deemed to be legislative by
usage and tradition is necessarily possessed by the
Philippine Congress unless the Organic Act has lodged it
elsewhere. This was a citation from Vera vs.
Avelino (1946).
The presidential system introduced by the 1935
Constitution saw the application of the principle of
separation of powers. While under the parliamentary
system of the 1973 Constitution the principle remained
applicable, Amendment 6 or the 1981 amendments to the
1973 Constitution ensured presidential dominance over
the Batasang Pambansa.
Our constitutional history saw the shifting and sharing of
legislative power between the legislature and the
executive.
Transcending such changes in the exercise of legislative
power is the declaration in the Philippine Constitution that
he Philippines is a Republican State where sovereignty
resides in the people and all government authority
emanates from them.
In a Republic, Mr. Speaker, the power to govern is vested
in its citizens participating through the right of suffrage
and indicating thereby their choice of lawmakers.
Under the 1987 Constitution, lawmaking power is still
preserved in Congress. However, to institutionalize direct
action of the people as exemplified in the 1986
Revolution, there is a practical recognition of what we
refer to as people's sovereign power. This is the
recognition of a system of initiative and referendum.
Section 1, Article VI of the 1987 Constitution provides,
and I quote:
The legislative power shall be vested in the
Congress of the Philippines which shall consist of
a Senate and House of Representatives, except
to the extent reserved to the people by the
provision on initiative and referendum.
In other words, Mr. Speaker, under the 1987 Constitution,
Congress does not have plenary powers. There is a
reserved legislative power given to the people expressly.
Section 32, the implementing provision of the same article
of the Constitution provides, and I quote:
The Congress shall, as early as possible, provide
for a system of initiative and referendum, and the
exceptions therefrom, whereby the people can
directly propose and enact laws or approve or
reject any act or law or part thereof passed by the
Congress or local legislative body after the
registration of a petition therefor signed by at least
ten per centum of the total number of registered
voters, or which every legislative district must be
represented by at least three per centum of the
registered voters thereof.
In other words, Mr. Speaker, in Section 1 of Article VI
which describes legislative power, there are reserved
powers given to the people. In Section 32, we are
specifically told to pass at the soonest possible time a bill
on referendum and initiative. We are specifically
mandated to share the legislative powers of Congress
with the people.
Of course, another applicable provision in the Constitution
is Section 2, Article XVII, Mr. Speaker. Under the
provision on amending the Constitution, the section
reads, and I quote:
Amendments to this Constitution may likewise be
directly proposed by the people through initiative
upon a petition of at least twelve per centum of
the total number of registered voters, of which
every legislative district must be represented by at
least three per centum of the registered voters
therein. No amendment under this section shall be
authorized within five years following the
ratification of this Constitution nor oftener than
once every five years thereafter.
We in Congress therefore, Mr. Speaker, are charged with
the duty to implement the exercise by the people of the
right of initiative and referendum.
House Bill No. 21505, as reported out by the Committee
on Suffrage and Electoral Reforms last December 14,
1988, Mr. Speaker, is the response to such a
constitutional duty.
Mr. Speaker, if only to allay apprehensions, allow me to
show where initiative and referendum under Philippine
law has occurred.
Mr. Speaker, the system of initiative and referendum is
not new. In a very limited extent, the system is provided
for in our Local Government Code today. On initiative, for
instance, Section 99 of the said code vests in the
barangay assembly the power to initiate legislative
processes, to hold plebiscites and to hear reports of the
sangguniang barangay. There are variations of initiative
and referendum. The barangay assembly is composed of
all persons who have been actual residents of the
barangay for at least six months, who are at least 15
years of age and citizens of the Philippines. The holding
of barangay plebiscites and referendum is also provided
in Sections 100 and 101 of the same Code.
Mr. Speaker, for brevity I will not read the pertinent
quotations but will just submit the same to the Secretary
to be incorporated as part of my speech.
To continue, Mr. Speaker these same principles are
extensively applied by the Local Government Code as it is
now mandated by the 1987 Constitution.
In other jurisdictions, Mr. Speaker, we have ample
examples of initiative and referendum similar to what is
now contained in House Bill No. 21505. As in the 1987
Constitutions and House Bill No. 21505, the various
constitutions of the states in the United States recognize
the right of registered voters to initiate the enactment of
any statute or to reject any existing law or parts thereof in
a referendum. These states are Alaska, Alabama,
Montana, Massachusetts, Dakota, Oklahoma, Oregon,
and practically all other states.
In certain American states, the kind of laws to which
initiative and referendum applies is also without ay
limitation, except for emergency measures, which is
likewise incorporated in Section 7(b) of House Bill No.
21505.
The procedure provided by the House bill – from the filing
of the petition, the requirement of a certain percentage of
supporters to present a proposition to submission to
electors – is substantially similar to those of many
American laws. Mr. Speaker, those among us who may
have been in the United States, particularly in California,
during election time or last November during the election
would have noticed different propositions posted in the
city walls. They were propositions submitted by the
people for incorporation during the voting. These were in
the nature of initiative, Mr. Speaker.
Although an infant then in Philippine political structure,
initiative and referendum is a tried and tested system in
other jurisdictions, and House Bill No. 21505 through the
various consolidated bills is patterned after American
experience in a great respect.
What does the bill essentially say, Mr. Speaker? Allow me
to try to bring our colleagues slowly through the bill. The
bill has basically only 12 sections. The constitutional
Commissioners, Mr. Speaker, saw this system of initiative
and referendum as an instrument which can be used
should the legislature show itself indifferent to the needs
of the people. That is why, Mr. Speaker, it may be timely,
since we seem to be amply criticized, as regards our
responsiveness, to pass this bill on referendum and
initiative now. While indifference would not be an
appropriate term to use at this time, and surely it is not the
case although we are so criticized, one must note that it is
a felt necessity of our times that laws need to be
proposed and adopted at the soonest possible time to
spur economic development, safeguard individual rights
and liberties, and share governmental power with the
people.
With the legislative powers of the President gone, we
alone, together with the Senators when they are minded
to agree with us, are left with the burden of enacting the
needed legislation.
Let me now bring our colleagues, Mr. Speaker, to the
process advocated by the bill.
First, initiative and referendum, Mr. Speaker, is defined.
Initiative essentially is what the term connotes. It means
that the people, on their own political judgment, submit
fore the consideration and voting of the general electorate
a bill or a piece of legislation.
Under House Bill No. 21505, there are three kinds of
initiative. One is an initiative to amend the Constitution.
This can occur once every five years. Another is an
initiative to amend statutes that we may have approved.
Had this bill been an existing law, Mr. Speaker, it is most
likely that an overwhelming majority of the barangays in
the Philippines would have approved by initiative the
matter of direct voting.
The third mode of initiative, Mr. Speaker, refers to a
petition proposing to enact regional, provincial, city,
municipal or barangay laws or ordinances. It comes from
the people and it must be submitted directly to the
electorate. The bill gives a definite procedure and allows
the COMELEC to define rules and regulations to give
teeth to the power of initiative.
On the other hand, referendum, Mr. Speaker, is the power
of the people to approve or reject something that
Congress has already approved.
For instance, Mr. Speaker, when we divide the
municipalities or the barangays into two or three, we must
first get the consent of the people affected through
plebiscite or referendum.
Referendum is a mode of plebiscite, Mr. Speaker.
However, referendum can also be petitioned by the
people if, for instance, they do not life the bill on direct
elections and it is approved subsequently by the Senate.
If this bill had already become a law, then the people
could petition that a referendum be conducted so that the
acts of Congress can be appropriately approved or
rebuffed.
The initial stage, Mr. Speaker, is what we call the petition.
As envisioned in the bill, the initiative comes from the
people, from registered voters of the country, by
presenting a proposition so that the people can then
submit a petition, which is a piece of paper that contains
the proposition. The proposition in the example I have
been citing is whether there should be direct elections
during the barangay elections. So the petition must be
filed in the appropriate agency and the proposition must
be clear stated. It can be tedious but that is how an effort
to have direct democracy operates.
Section 4 of the bill gives requirements, Mr. Speaker. It
will not be all that easy to have referendum or initiative
petitioned by the people. Under Section 4 of the
committee report, we are given certain limitations. For
instance, to exercise the power of initiative or referendum,
at least 10 percent of the total number of registered
voters, of which every legislative district is represented by
at least 3 percent of the registered voters thereof, shall
sign a petition. These numbers, Mr. Speaker, are not
taken from the air. They are mandated by the
Constitution. There must be a requirement of 10 percent
for ordinary laws and 3 percent representing all districts.
The same requirement is mutatis mutandis or
appropriately modified and applied to the different
sections. So if it is, for instance, a petition on initiative or
referendum for a barangay, there is a 10 percent or a
certain number required of the voters of the barangay. If it
is for a district, there is also a certain number required of
all towns of the district that must seek the petition. If it is
for a province then again a certain percentage of the
provincial electors is required. All these are based with
reference to the constitutional mandate.
The conduct of the initiative and referendum shall be
supervised and shall be upon the call of the Commission
on Elections. However, within a period of 30 days from
receipt of the petition, the COMELEC shall determine the
sufficiency of the petition, publish the same and set the
date of the referendum which shall not be earlier than 45
days but not later than 90 days from the determination by
the commission of the sufficiency of the petition. Why is
this so, Mr. Speaker? The petition must first be
determined by the commission as to its sufficiency
because our Constitution requires that no bill can be
approved unless it contains one subject matter. It is
conceivable that in the fervor of an initiative or
referendum, Mr. Speaker, there may be more than two
topics sought to be approved and that cannot be allowed.
In fact, that is one of the prohibitions under this
referendum and initiative bill. When a matter under
initiative or referendum is approved by the required
number of votes, Mr. Speaker, it shall become effective
15 days following the completion of its publication in
the Official Gazette. Effectively then, Mr. Speaker, all the
bill seeks to do is to enlarge and recognize the legislative
powers of the Filipino people.
Mr. Speaker, I think this Congress, particularly this House,
cannot ignore or cannot be insensitive to the call for
initiative and referendum. We should have done it in 1987
but that is past. Maybe we should have done it in 1988
but that too had already passed, but it is only February
1989, Mr. Speaker, and we have enough time this year at
least to respond to the need of our people to participate
directly in the work of legislation.
For these reasons, Mr. Speaker, we urge and implore our
colleagues to approve House Bill No. 21505 as
incorporated in Committee Report No. 423 of the
Committee on Suffrage and Electoral Reforms.
In closing, Mr. Speaker, I also request that the prepared
text of my speech, together with the footnotes since they
contain many references to statutory history and foreign
jurisdiction, be reproduced as part of the Record for future
purposes.
Equally unequivocal on the intent of R.A. 6735 is the
sponsorship speech of former Representative Salvador
Escudero III, viz:42
SPONSORSHIP REMARKS OF REP. ESCUDERO
MR. ESCUDERO. Thank you, Mr. Speaker.
Mr. Speaker and my dear colleagues: Events in recent
years highlighted the need to heed the clamor of the
people for a truly popular democracy. One recalls the
impatience of those who actively participated in the
parliament of the streets, some of whom are now
distinguished Members of this Chamber. A substantial
segment of the population feel increasingly that under the
system, the people have the form but not the reality or
substance of democracy because of the increasingly
elitist approach of their chosen Representatives to many
questions vitally affecting their lives. There have been
complaints, not altogether unfounded, that many
candidates easily forge their campaign promises to the
people once elected to office. The 1986 Constitutional
Commission deemed it wise and proper to provide for a
means whereby the people can exercise the reserve
power to legislate or propose amendments to the
Constitution directly in case their chose Representatives
fail to live up to their expectations. That reserve power
known as initiative is explicitly recognized in three articles
and four sections of the 1987 Constitution, namely: Article
VI Section 1; the same article, Section 312; Article X,
Section 3; and Article XVII, Section 2. May I request that
he explicit provisions of these three articles and four
sections be made part of my sponsorship speech, Mr.
Speaker.
These constitutional provisions are, however, not self-
executory. There is a need for an implementing law that
will give meaning and substance to the process of
initiative and referendum which are considered valuable
adjuncts to representative democracy. It is needless to
state that this bill when enacted into law will probably
open the door to strong competition of the people, like
pressure groups, vested interests, farmers' group, labor
groups, urban dwellers, the urban poor and the like, with
Congress in the field of legislation.
Such probability, however, pales in significance when we
consider that through this bill we can hasten the
politization of the Filipino which in turn will aid government
in forming an enlightened public opinion, and hopefully
produce better and more responsive and acceptable
legislations.
Furthermore, Mr. Speaker, this would give the
parliamentarians of the streets and cause-oriented groups
an opportunity to articulate their ideas in a truly
democratic forum, thus, the competition which they will
offer to Congress will hopefully be a healthy one. Anyway,
in an atmosphere of competition there are common
interests dear to all Filipinos, and the pursuit of each
side's competitive goals can still take place in an
atmosphere of reason and moderation.
Mr. Speaker and my dear colleagues, when the
distinguished Gentleman from Camarines Sur and this
Representation filed our respective versions of the bill in
1987, we were hoping that the bill would be approved
early enough so that our people could immediately use
the agrarian reform bill as an initial subject matter or as a
take-off point.
However, in view of the very heavy agenda of the
Committee on Local Government, it took sometime before
the committee could act on these. But as they say in
Tagalog, huli man daw at magaling ay naihahabol din.
The passage of this bill therefore, my dear colleagues,
could be one of our finest hours when we can set aside
our personal and political consideration for the greater
good of our people. I therefore respectfully urge and
plead that this bill be immediately approved.
Thank you, Mr. Speaker.
We cannot dodge the duty to give effect to this intent for the
"[c]ourts have the duty to interpret the law as legislated and when
possible, to honor the clear meaning of statutes as revealed by its
language, purpose and history."43
The tragedy is that while conceding this intent, the six (6)
justices, nevertheless, ruled that "x x x R.A. No. 6735 is
incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution
is concerned" for the following reasons: (1) Section 2 of the
Act does not suggest an initiative on amendments to the
Constitution; (2) the Act does not provide for the contents of the
petition for initiative on the Constitution; and (3) while the Act
provides subtitles for National Initiative and Referendum (Subtitle
II) and for Local Initiative and Referendum (Subtitle III), no
subtitle is provided for initiative on the Constitution.
To say the least, these alleged omissions are too weak a reason
to throttle the right of the sovereign people to amend the
Constitution through initiative. R.A. 6735 clearly expressed
the legislative policy for the people to propose amendments to
the Constitution by direct action. The fact that the legislature may
have omitted certain details in implementing the people's
initiative in R.A. 6735, does not justify the conclusion that, ergo,
the law is insufficient. What were omitted were mere
details and not fundamental policies which Congress alone
can and has determined. Implementing details of a law can be
delegated to the COMELEC and can be the subject of its rule-
making power. Under Section 2(1), Article IX-C of the
Constitution, the COMELEC has the power to enforce and
administer all laws and regulations relative to the conduct of
initiatives. Its rule-making power has long been recognized by this
Court. In ruling R.A. 6735 insufficient but without striking it down
as unconstitutional, the six (6) justices failed to give due
recognition to the indefeasible right of the sovereign people to
amend the Constitution.
IV
The proposed constitutional changes, albeit
substantial, are mere amendments and can be
undertaken through people's initiative.
Oppositors-intervenors contend that Sections 1 and 2, Article XVII
of the 1987 Constitution, only allow the use of people's initiative to
amend and not to revise the Constitution. They theorize that the
changes proposed by petitioners are substantial and thus
constitute a revision which cannot be done through people's
initiative.
In support of the thesis that the Constitution bars the people from
proposing substantial amendments amounting to revision, the
oppositors-intervenors cite the following deliberations during the
Constitutional Commission, viz:44
MR. SUAREZ: x x x x This proposal was suggested on
the theory that this matter of initiative, which came about
because of the extraordinary developments this year, has
to be separated from the traditional modes of amending
the Constitution as embodied in Section 1. The
Committee members felt that this system of initiative
should not extend to the revision of the entire
Constitution, so we removed it from the operation of
Section 1 of the proposed Article on Amendment or
Revision.
xxxxxxxxxxxx
MS. AQUINO. In which case, I am seriously bothered by
providing this process of initiative as a separate section in
the Article on Amendment. Would the sponsor be
amenable to accepting an amendment in terms of
realigning Section 2 as another subparagraph (c) of
Section 1, instead of setting it up as another separate
section as if it were a self-executing provision?
MR. SUAREZ. We would be amenable except that, as we
clarified a while ago, this process of initiative is limited to
the matter of amendment and should not expand into a
revision which contemplates a total overhaul of the
Constitution. That was the sense that was conveyed by
the Committee.
 MS. AQUINO. In other words, the Committee was
attempting to distinguish the coverage of modes (a) and
(b) in Section 1 to include the process of revision;
whereas the process of initiation to amend, which is given
to the public, would only apply to amendments? 
MR. SUAREZ. That is right. Those were the terms
envisioned in the Committee.
Commissioner (later Chief Justice) Hilario G. Davide, Jr.,
espoused the same view:45
MR. DAVIDE. x x x x We are limiting the right of the
people, by initiative, to submit a proposal for amendment
only, not for revision, only once every five years x x x x
MR. MAAMBONG. My first question: Commissioner
Davide's proposed amendment on line 1 refers to
"amendment." Does it cover the word "revision" as
defined by Commissioner Padilla when he made the
distinction between the words "amendments" and
"revision?"
MR. DAVIDE. No, it does not, because "amendments"
and "revision" should be covered by Section 1. So insofar
as initiative is concerned, it can only relate to
"amendments" not "revision."
Commissioner (now a distinguished Associate Justice of this
Court) Adolfo S. Azcuna also clarified this point46 -  are substantial amendments which cannot be done through
MR. OPLE. To more closely reflect the intent of Section 2,
may I suggest that we add to "Amendments" "OR
REVISIONS OF" to read: "Amendments OR REVISION
OF this Constitution."
MR. AZCUNA. I think it was not allowed to revise the
Constitution by initiative.
MR. OPLE. How is that again?
MR. AZCUNA. It was not our intention to allow a revision
of the Constitution by initiative but merely by
amendments.
MR. BENGZON. Only by amendments.
MR. AZCUNA. I remember that was taken on the floor.
MR. RODRIGO. Yes, just amendments.
The oppositors-intervenors then point out that by their proposals,
petitioners will "change the very system of government from
presidential to parliamentary, and the form of the legislature from
bicameral to unicameral," among others. They allegedly seek
other major revisions like the inclusion of a minimum number of
inhabitants per district, a change in the period for a term of a
Member of Parliament, the removal of the limits on the number of
terms, the election of a Prime Minister who shall exercise the
executive power, and so on and so forth.47 In sum, oppositors-
intervenors submit that "the proposed changes to the Constitution
effect major changes in the political structure and system, the
fundamental powers and duties of the branches of the
government, the political rights of the people, and the modes by
which political rights may be exercised."48 They conclude that they
people's initiative. In other words, they posit the thesis that only
simple but not substantial amendments can be done through
people's initiative.
With due respect, I disagree. To start with, the words "simple"
and "substantial" are not subject to any accurate quantitative or
qualitative test. Obviously, relying on the quantitative test,
oppositors-intervenors assert that the amendments will result in
some one hundred (100) changes in the Constitution. Using the
same test, however, it is also arguable that petitioners seek to
change basically only two (2) out of the eighteen (18) articles of
the 1987 Constitution, i.e. Article VI (Legislative Department) and
Article VII (Executive Department), together with the
complementary provisions for a smooth transition from a
presidential bicameral system to a parliamentary unicameral
structure. The big bulk of the 1987 Constitution will not be
affected including Articles I (National Territory), II (Declaration of
Principles and State Policies), III (Bill of Rights), IV (Citizenship),
V (Suffrage), VIII (Judicial Department), IX (Constitutional
Commissions), X (Local Government), XI (Accountability of Public
Officers), XII (National Economy and Patrimony), XIII (Social
Justice and Human Rights), XIV (Education, Science and
Technology, Arts, Culture, and Sports), XV (The Family), XVI
(General Provisions), and even XVII (Amendments or Revisions).
In fine, we stand on unsafe ground if we use simple
arithmetic to determine whether the proposed changes are
"simple" or "substantial."
Nor can this Court be surefooted if it applies the qualitative
test to determine whether the said changes
are "simple" or "substantial" as to amount to a revision of the
Constitution. The well-regarded political scientist, Garner, says
that a good constitution should contain at least three (3) sets of
provisions: the constitution of liberty which sets forth the
fundamental rights of the people and imposes certain limitations
on the powers of the government as a means of securing the
enjoyment of these rights; the constitution of
government which deals with the framework of government and
its powers, laying down certain rules for its administration and
defining the electorate; and, the constitution of
sovereignty which prescribes the mode or procedure for
amending or revising the constitution.49 It is plain that the
proposed changes will basically affect only the constitution
of government. The constitutions of liberty and sovereignty
remain unaffected. Indeed, the proposed changes will not
change the fundamental nature of our state as "x x x a
democratic and republican state."50 It is self-evident that a
unicameral-parliamentary form of government will not make our
State any less democratic or any less republican in character.
Hence, neither will the use of the qualitative test resolve the
issue of whether the proposed changes are "simple" or
"substantial."
For this reason and more, our Constitutions did not adopt any
quantitative or qualitative test to determine whether an
"amendment" is "simple" or "substantial." Nor did they
provide that "substantial" amendments are beyond the
power of the people to propose to change the Constitution.
Instead, our Constitutions carried the traditional
distinction between "amendment" and "revision," i.e.,
"amendment" means change, including complex changes while
"revision" means complete change, including the adoption of an
entirely new covenant. The legal dictionaries express this
traditional difference between "amendment" and
"revision." Black's Law Dictionary defines "amendment" as "[a]
formal revision or addition proposed or made to a statute,
constitution, pleading, order, or other instrument; specifically, a
change made by addition, deletion, or correction."51 Black's also
refers to "amendment" as "the process of making such a
revision."52 Revision, on the other hand, is defined as "[a]
reexamination or careful review for correction or
improvement."53 In parliamentary law, it is described as "[a]
general and thorough rewriting of a governing document, in which
the entire document is open to
amendment."54 Similarly, Ballentine's Law Dictionary
defines "amendment" – as "[a] correction or revision of a writing
to correct errors or better to state its intended purpose"55 and
"amendment of constitution" as "[a] process of proposing,
passing, and ratifying amendments to the x x x constitution."56 In
contrast, "revision," when applied to a statute (or constitution),
"contemplates the re-examination of the same subject matter
contained in the statute (or constitution), and the substitution of a
new, and what is believed to be, a still more perfect rule."57
One of the most authoritative constitutionalists of his time to
whom we owe a lot of intellectual debt, Dean Vicente G. Sinco,
of the University of the Philippines College of Law, (later
President of the U.P. and delegate to the Constitutional
Convention of 1971) similarly spelled out the difference between
"amendment" and "revision." He opined: "the revision of a
constitution, in its strict sense, refers to a consideration of
the entire constitution and the procedure for effecting such
change; while amendment refers only to particular provisions to
be added to or to be altered in a constitution."58
Our people were guided by this traditional distinction when
they effected changes in our 1935 and 1973 Constitutions. In
1940, the changes to the 1935 Constitution which included the
conversion from a unicameral system to a bicameral
structure, the shortening of the tenure of the President and Vice-
President from a six-year term without reelection to a four-year
term with one reelection, and the establishment of the
COMELEC, together with the complementary constitutional
provisions to effect the changes, were considered amendments
only, not a revision.
The replacement of the 1935 Constitution by the 1973
Constitution was, however, considered a revision since the
1973 Constitution was "a completely new fundamental charter
embodying new political, social and economic concepts."59 Among
those adopted under the 1973 Constitution were: the
parliamentary system in place of the presidential system, with the
leadership in legislation and administration vested with the Prime
Minister and his Cabinet; the reversion to a single-chambered
lawmaking body instead of the two-chambered, which would be
more suitable to a parliamentary system of government; the
enfranchisement of the youth beginning eighteen (18) years of
age instead of twenty-one (21), and the abolition of literacy,
property, and other substantial requirements to widen the basis
for the electorate and expand democracy; the strengthening of
the judiciary, the civil service system, and the Commission on
Elections; the complete nationalization of the ownership and
management of mass media; the giving of control to Philippine
citizens of all telecommunications; the prohibition against alien
individuals to own educational institutions, and the strengthening
of the government as a whole to improve the conditions of the
masses.60
The 1973 Constitution in turn underwent a series of significant
changes in 1976, 1980, 1981, and 1984. The two significant
innovations introduced in 1976 were (1) the creation of
an interim Batasang Pambansa, in place of the interim National
Assembly, and (2) Amendment No. 6 which conferred on the
President the power to issue decrees, orders, or letters of
instruction, whenever the Batasang Pambansa fails to act
adequately on any matter for any reason that in his judgment
requires immediate action, or there is grave emergency or threat
or imminence thereof, with such decrees, or letters of instruction
to form part of the law of the land. In 1980, the retirement age of
seventy (70) for justices and judges was restored. In 1981, the
presidential system with parliamentary features was installed. The
transfer of private land for use as residence to natural-born
citizens who had lost their citizenship was also allowed. Then,
in 1984, the membership of the Batasang Pambansa was
reapportioned by provinces, cities, or districts in Metro Manila
instead of by regions; the Office of the Vice-President was
created while the executive committee was abolished; and, urban
land reform and social housing programs were
strengthened.61 These substantial changes were simply
considered as mere amendments.
In 1986, Mrs. Corazon C. Aquino assumed the presidency, and
repudiated the 1973 Constitution. She governed under
Proclamation No. 3, known as the Freedom Constitution.
In February 1987, the new constitution was ratified by the
people in a plebiscite and superseded the Provisional or Freedom
Constitution. Retired Justice Isagani Cruz underscored the
outstanding features of the 1987 Constitution which consists of
eighteen articles and is excessively long compared to the
Constitutions of 1935 and 1973, on which it was largely based.
Many of the original provisions of the 1935 Constitution,
particularly those pertaining to the legislative and executive
departments, have been restored because of the revival of the
bicameral Congress of the Philippines and the strictly presidential
system. The independence of the judiciary has been
strengthened, with new provisions for appointment thereto and an
increase in its authority, which now covers even political
questions formerly beyond its jurisdiction. While many provisions
of the 1973 Constitution were retained, like those on the
Constitutional Commissions and local governments, still the new
1987 Constitution was deemed as a revision of the 1973
Constitution.
It is now contended that this traditional distinction between
amendment and revision was abrogated by the 1987 Constitution.
It is urged that Section 1 of Article XVII gives the power to amend
or revise to Congress acting as a constituent assembly, and to a
Constitutional Convention duly called by Congress for the
purpose. Section 2 of the same Article, it is said, limited the
people's right to change the Constitution via initiative
through simple amendments. In other words, the people
cannot propose substantial amendments amounting to
revision.
With due respect, I do not agree. As aforestated, the oppositors-
intervenors who peddle the above proposition rely on the opinions
of some Commissioners expressed in the course of the debate on
how to frame the amendment/revision provisions of the 1987
Constitution. It is familiar learning, however, that opinions in a
constitutional convention, especially if inconclusive of an
issue, are of very limited value as explaining doubtful phrases,
and are an unsafe guide (to the intent of the people) since the
constitution derives its force as a fundamental law, not from the
action of the convention but from the powers (of the people) who
have ratified and adopted it.62 "Debates in the constitutional
convention 'are of value as showing the views of the individual
members, and as indicating the reasons for their votes, but they
give us no light as to the views of the large majority who did
not talk, much less of the mass of our fellow citizens whose
votes at the polls gave that instrument the force of fundamental
law.'"63 Indeed, a careful perusal of the debates of the
Constitutional Commissioners can likewise lead to the
conclusion that there was no abandonment of the traditional
distinction between "amendment" and "revision." For during
the debates, some of the commissioners referred to the
concurring opinion of former Justice Felix Q. Antonio in Javellana
v. The Executive Secretary,64 that stressed the traditional
distinction between amendment and revision, thus:65
MR. SUAREZ: We mentioned the possible use of only
one term and that is, "amendment." However, the
Committee finally agreed to use the terms – "amendment"
or "revision" when our attention was called by the
honorable Vice-President to the substantial difference in
the connotation and significance between the said terms.
As a result of our research, we came up with the
observations made in the famous – or notorious –
Javellana doctrine, particularly the decision rendered by
Honorable Justice Makasiar,66 wherein he made the
following distinction between "amendment" and "revision"
of an existing Constitution: "Revision" may involve a
rewriting of the whole Constitution. On the other hand, the
act of amending a constitution envisages a change of
specific provisions only. The intention of an act to amend
is not the change of the entire Constitution, but only the
improvement of specific parts or the addition of provisions
deemed essential as a consequence of new conditions or
the elimination of parts already considered obsolete or
unresponsive to the needs of the times.
The 1973 Constitution is not a mere amendment to the
1935 Constitution. It is a completely new fundamental
Charter embodying new political, social and economic
concepts.
 So, the Committee finally came up with the proposal that
these two terms should be employed in the formulation of
the Article governing amendments or revisions to the new
Constitution.
To further explain "revision," former Justice Antonio, in his
concurring opinion, used an analogy – "When a house is
completely demolished and another is erected on the same
location, do you have a changed, repaired and altered house, or
do you have a new house? Some of the material contained in the
old house may be used again, some of the rooms may be
constructed the same, but this does not alter the fact that you
have altogether another or a new house."67
Hence, it is arguable that when the framers of the 1987
Constitution used the word "revision," they had in mind the
"rewriting of the whole Constitution," or the "total overhaul of
the Constitution." Anything less is an "amendment" or just "a
change of specific provisions only," the intention being "not the
change of the entire Constitution, but only the improvement of
specific parts or the addition of provisions deemed essential as a
consequence of new conditions or the elimination of parts already
considered obsolete or unresponsive to the needs of the times."
Under this view, "substantial" amendments are still "amendments"
and thus can be proposed by the people via an initiative.
As we cannot be guided with certainty by the inconclusive
opinions of the Commissioners on the difference between
"simple" and "substantial" amendments or whether "substantial"
amendments amounting to revision are covered by people's
initiative, it behooves us to follow the cardinal rule in
interpreting Constitutions, i.e., construe them to give effect to
the intention of the people who adopted it. The illustrious
Cooley explains its rationale well, viz:68
x x x the constitution does not derive its force from the
convention which framed, but from the people who ratified
it, the intent to be arrived at is that of the people, and it is
not to be supposed that they have looked for any dark or
abstruse meaning in the words employed, but rather that
they have accepted them in the sense most obvious to
the common understanding, and ratified the instrument in
the belief that that was the sense designed to be
conveyed. These proceedings therefore are less
conclusive of the proper construction of the instrument
than are legislative proceedings of the proper construction
of a statute; since in the latter case it is the intent of the
legislature we seek, while in the former we are
endeavoring to arrive at the intent of the people through
the discussion and deliberations of their representatives.
The history of the calling of the convention, the causes
which led to it, and the discussions and issues before the
people at the time of the election of the delegates, will
sometimes be quite as instructive and satisfactory as
anything to be gathered form the proceedings of the
convention.
Corollarily, a constitution is not to be interpreted on narrow or
technical principles, but liberally and on broad general lines, to
accomplish the object of its establishment and carry out the
great principles of government – not to defeat them.69 One of
these great principles is the sovereignty of the people.
Let us now determine the intent of the people when they
adopted initiative as a mode to amend the 1987 Constitution. We
start with the Declaration of Principles and State Policies which
Sinco describes as "the basic political creed of the nation"70 as it
"lays down the policies that government is bound to
observe."71 Section 1, Article II of the 1935 Constitution and
Section 1, Article II of the 1973 Constitution, similarly
provide that "the Philippines is a republican state. Sovereignty
resides in the people and all government authority emanates from
them." In a republican state, the power of the sovereign
people is exercised and delegated to their
representatives. Thus in Metropolitan Transportation Service v.
Paredes, this Court held that "a republican state, like the
Philippines x x x (is) derived from the will of the people
themselves in freely creating a government 'of the people, by the
people, and for the people' – a representative government
through which they have agreed to exercise the powers and
discharge the duties of their sovereignty for the common good
and general welfare."72
In both the 1935 and 1973 Constitutions, the sovereign people
delegated to Congress or to a convention, the power to amend
or revise our fundamental law. History informs us how this
delegated power to amend or revise the Constitution was
abused particularly during the Marcos regime. The
Constitution was changed several times to satisfy the power
requirements of the regime. Indeed, Amendment No. 6 was
passed giving unprecedented legislative powers to then President
Ferdinand E. Marcos. A conspiracy of circumstances from above
and below, however, brought down the Marcos regime through
an extra constitutional revolution, albeit a peaceful one by the
people. A main reason for the people's revolution was the
failure of the representatives of the people to effectuate
timely changes in the Constitution either by acting as a
constituent assembly or by calling a constitutional
convention. When the representatives of the people defaulted in
using this last peaceful process of constitutional change,
the sovereign people themselves took matters in their own
hands. They revolted and replaced the 1973 Constitution with the
1987 Constitution.
It is significant to note that the people modified the ideology
of the 1987 Constitution as it stressed the power of the
people to act directly in their capacity as sovereign people.
Correspondingly, the power of the legislators to act as
representatives of the people in the matter of amending or
revising the Constitution was diminished for the spring
cannot rise above its source. To reflect this significant shift,
Section 1, Article II of the 1987 Constitution was reworded.
It now reads: "the Philippines is a democratic and republican
state. Sovereignty resides in the people and all government
authority emanates from them." The commissioners of the 1986
Constitutional Commission explained the addition of the word
"democratic," in our first Declaration of Principles, viz:
MR. NOLLEDO. I am putting the word "democratic" because of
the provisions that we are now adopting which are covering
consultations with the people. For example, we have provisions
on recall, initiative, the right of the people even to participate in
lawmaking and other instances that recognize the validity of
interference by the people through people's organizations x x x x73
MR. OPLE. x x x x The Committee added the word
"democratic" to "republican," and, therefore, the first
sentence states: "The Philippines is a republican and
democratic state x x x x
May I know from the committee the reason for adding the
word "democratic" to "republican"? The constitutional
framers of the 1935 and 1973 Constitutions were content
with "republican." Was this done merely for the sake of
emphasis?
MR. NOLLEDO. x x x x "democratic" was added
because of the need to emphasize people power and
the many provisions in the Constitution that we have
approved related to recall, people's organizations,
initiative and the like, which recognize the
participation of the people in policy-making in certain
circumstances x x x x 
MR. OPLE. I thank the Commissioner. That is a very clear
answer and I think it does meet a need x x x x
MR. NOLLEDO. According to Commissioner Rosario
Braid, "democracy" here is understood as participatory
democracy. 74 (emphasis supplied)
The following exchange between Commissioners Rene V.
Sarmiento and Adolfo S. Azcuna is of the same import:75
MR. SARMIENTO. When we speak of republican
democratic state, are we referring to representative
democracy?
MR. AZCUNA. That is right.
MR. SARMIENTO. So, why do we not retain the old
formulation under the 1973 and 1935 Constitutions which
used the words "republican state" because "republican
state" would refer to a democratic state where people
choose their representatives?
MR. AZCUNA. We wanted to emphasize the participation
of the people in government.
MR. SARMIENTO. But even in the concept "republican
state," we are stressing the participation of the people x x
x x So the word "republican" will suffice to cover popular
representation.
MR. AZCUNA. Yes, the Commissioner is right. However,
the committee felt that in view of the introduction of the
aspects of direct democracy such as initiative,
referendum or recall, it was necessary to emphasize the
democratic portion of republicanism, of representative
democracy as well. So, we want to add the word
"democratic" to emphasize that in this new
Constitution there are instances where the people
would act directly, and not through their
representatives. (emphasis supplied)
Consistent with the stress on direct democracy, the systems of
initiative, referendum, and recall were enthroned as polestars in
the 1987 Constitution. Thus, Commissioner Blas F. Ople who
introduced the provision on people's initiative said:76
MR. OPLE. x x x x I think this is just the correct time in
history when we should introduce an innovative mode of
proposing amendments to the Constitution, vesting in
the people and their organizations the right to formulate
and propose their own amendments and revisions of
the Constitution in a manner that will be binding upon
the government. It is not that I believe this kind of direct
action by the people for amending a constitution will be
needed frequently in the future, but it is good to know
that the ultimate reserves of sovereign power still rest
upon the people and that in the exercise of that
power, they can propose amendments or revision to
the Constitution. (emphasis supplied)
Commissioner Jose E. Suarez also explained the people's
initiative as a safety valve, as a peaceful way for the people to
change their Constitution, by citing our experiences under the
Marcos government, viz:77
MR. SUAREZ. We agree to the difficulty in implementing
this particular provision, but we are providing a channel
for the expression of the sovereign will of the people
through this initiative system.
MR. BENGZON. Is Section 1, paragraphs (a) and (b), not
sufficient channel for expression of the will of the people,
particularly in the amendment or revision of the
Constitution?
MR. SUAREZ. Under normal circumstances, yes. But we
know what happened during the 20 years under the
Marcos administration. So, if the National Assembly,
in a manner of speaking, is operating under the thumb
of the Prime Minister or the President as the case may be,
 and the required number of votes could not be obtained,
we would have to provide for a safety valve in order that
the people could ventilate in a very peaceful way their
desire for amendment to the Constitution.
It is very possible that although the people may be
pressuring the National Assembly to constitute itself
as a constituent assembly or to call a constitutional
convention, the members thereof would not heed the
people's desire and clamor. So this is a third
avenue that we are providing for the implementation of
what is now popularly known as people's power.
(emphasis supplied)
Commissioner Regalado E. Maambong opined that
the people's initiative could avert a revolution, viz:78
MR. MAAMBONG. x x x x the amending process of the
Constitution could actually avert a revolution by
providing a safety valve in bringing about changes in the
Constitution through pacific means. This, in effect,
operationalizes what political law authors call the
"prescription of sovereignty." (emphasis supplied)
The end result is Section 2, Article XVII of the 1987 Constitution
which expressed the right of the sovereign people to propose
amendments to the Constitution by direct action or through
initiative. To that extent, the delegated power of Congress to
amend or revise the Constitution has to be adjusted
downward. Thus, Section 1, Article VI of the 1987 Constitution
has to be reminted and now provides: "The legislative power
shall be vested in the Congress of the Philippines which shall
consist of a Senate and a House of Representatives, except to
the extent reserved to the people by the provision on
initiative and referendum."
Prescinding from these baseline premises, the argument that
the people through initiative cannot propose substantial
amendments to change the Constitution turns sovereignty
on its head. At the very least, the submission constricts the
democratic space for the exercise of the direct sovereignty of
the people. It also denigrates the sovereign people who they
claim can only be trusted with the power to propose "simple" but
not "substantial" amendments to the Constitution. According to
Sinco, the concept of sovereignty should be strictly understood in
its legal meaning as it was originally developed in law.79 Legal
sovereignty, he explained, is "the possession of unlimited power
to make laws. Its possessor is the legal sovereign. It implies the
absence of any other party endowed with legally superior powers
and privileges. It is not subject to law 'for it is the author and
source of law.' Legal sovereignty is thus the equivalent of legal
omnipotence."80
To be sure, sovereignty or popular sovereignty, emphasizes the
supremacy of the people's will over the state which they
themselves have created. The state is created by and subject to
the will of the people, who are the source of all political power.
Rightly, we have ruled that "the sovereignty of our people is not a
kabalistic principle whose dimensions are buried in mysticism. Its
metes and bounds are familiar to the framers of our Constitutions.
They knew that in its broadest sense, sovereignty is meant to be
supreme, the jus summi imperu, the absolute right to govern."81
James Wilson, regarded by many as the most brilliant, scholarly,
and visionary lawyer in the United States in the 1780s, laid down
the first principles of popular sovereignty during the Pennsylvania
ratifying convention of the 1787 Constitution of the United
States:82
There necessarily exists, in every government, a power
from which there is no appeal, and which, for that reason,
may be termed supreme, absolute, and uncontrollable.
 x x x x Perhaps some politician, who has not considered
with sufficient accuracy our political systems, would
answer that, in our governments, the supreme power was
vested in the constitutions x x x x This opinion
approaches a step nearer to the truth, but does not reach
it. The truth is, that in our governments, the supreme,
absolute, and uncontrollable power remains in the
people. As our constitutions are superior to our
legislatures, so the people are superior to our
constitutions. Indeed the superiority, in this last instance,
is much greater; for the people possess over our
constitution, control in act, as well as right. (emphasis
supplied)
I wish to reiterate that in a democratic and republican state,
only the people is sovereign - - - not the elected President, not
the elected Congress, not this unelected Court. Indeed, the
sovereignty of the people which is indivisible cannot be reposed
in any organ of government. Only its exercise may be
delegated to any of them. In our case, the people delegated
to Congress the exercise of the sovereign power to amend or
revise the Constitution. If Congress, as delegate, can exercise
this power to amend or revise the Constitution, can it be argued
that the sovereign people who delegated the power has no power
to substantially amend the Constitution by direct action? If the
sovereign people do not have this power to make substantial
amendments to the Constitution, what did it delegate to
Congress? How can the people lack this fraction of a power to
substantially amend the Constitution when by their
sovereignty, all power emanates from them? It will take
some mumbo jumbo to argue that the whole is lesser than its
part. Let Sinco clinch the point:83
But although possession may not be delegated, the
exercise of sovereignty often is. It is delegated to the
organs and agents of the state which constitute its
government, for it is only through this instrumentality that
the state ordinarily functions. However ample and
complete this delegation may be, it is nevertheless
subject to withdrawal at any time by the state. On this
point Willoughby says:
Thus, States may concede to colonies almost
complete autonomy of government and reserve to
themselves a right to control of so slight and so
negative a character as to make its exercise a
rare and improbable occurrence; yet so long as
such right of control is recognized to exist, and the
autonomy of the colonies is conceded to be
founded upon a grant and continuing consent of
the mother countries the sovereignty of those
mother countries over them is complete and they
are to be considered as possessing only
administrative autonomy and not political
independence.
At the very least, the power to propose substantial
amendments to the Constitution is shared with the people.
We should accord the most benign treatment to the
sovereign power of the people to propose substantial
amendments to the Constitution especially when the
proposed amendments will adversely affect the interest of
some members of Congress. A contrary approach will
suborn the public weal to private interest and worse, will
enable Congress (the delegate) to frustrate the power of the
people to determine their destiny (the principal).
All told, the teaching of the ages is that constitutional clauses
acknowledging the right of the people to exercise initiative and
referendum are liberally and generously construed in favor of
the people.84 Initiative and referendum powers must be broadly
construed to maintain maximum power in the people.85 We
followed this orientation in Subic Bay Metropolitan Authority v.
Commission on Elections.86 There is not an iota of reason to
depart from it.
 V declare whether the procedure followed or the authority
The issues at bar are not political questions.
Petitioners submit that "[t]he validity of the exercise of the right of
the sovereign people to amend the Constitution and their will, as
expressed by the fact that over six million registered voters
indicated their support of the Petition for Initiative, is a purely
political question which is beyond even the very long arm of this
Honorable Court's power of judicial review. Whether or not the
1987 Constitution should be amended is a matter which the
people and the people alone must resolve in their sovereign
capacity."87 They argue that "[t]he power to propose amendments
to the Constitution is a right explicitly bestowed upon the
sovereign people. Hence, the determination by the people to
exercise their right to propose amendments under the system of
initiative is a sovereign act and falls squarely within the ambit of a
'political question.'"88
The petitioners cannot be sustained. This issue has long been
interred by Sanidad v. Commission on Elections, viz:89
Political questions are neatly associated with the wisdom,
not the legality of a particular act. Where the vortex of the
controversy refers to the legality or validity of the
contested act, that matter is definitely justiciable or non-
political. What is in the heels of the Court is not the
wisdom of the act of the incumbent President in proposing
amendments to the Constitution, but his constitutional
authority to perform such act or to assume the power of a
constituent assembly. Whether the amending process
confers on the President that power to propose
amendments is therefore a downright justiciable question.
Should the contrary be found, the actuation of the
President would merely be a brutum fulmen. If the
Constitution provides how it may be amended, the
judiciary as the interpreter of that Constitution, can
assumed was valid or not.
We cannot accept the view of the Solicitor General, in
pursuing his theory of non-justiciability, that the question
of the President's authority to propose amendments and
the regularity of the procedure adopted for submission of
the proposals to the people ultimately lie in the judgment
of the latter. A clear Descartes fallacy of vicious cycle. Is it
not that the people themselves, by their sovereign act,
provided for the authority and procedure for the amending
process when they ratified the present Constitution in
1973? Whether, therefore, that constitutional provision
has been followed or not is indisputably a proper subject
of inquiry, not by the people themselves – of course –
who exercise no power of judicial review, but by the
Supreme Court in whom the people themselves vested
that power, a power which includes the competence to
determine whether the constitutional norms for
amendments have been observed or not. And, this inquiry
must be done a priori not a posteriori, i.e., before the
submission to and ratification by the people.
In the instant case, the Constitution sets in black and white the
requirements for the exercise of the people's initiative to amend
the Constitution. The amendments must be proposed by the
people "upon a petition of at least twelve per centum of the total
number of registered voters, of which every legislative district
must be represented by at least three per centum of the
registered voters therein. No amendment under this section shall
be authorized within five years following the ratification of this
Constitution nor oftener than once every five years
thereafter."90Compliance with these requirements is clearly a
justiciable and not a political question. Be that as it may, how the
issue will be resolved by the people is addressed to them and to
them alone.
VI
Whether the Petition for Initiative filed before the COMELEC
complied with Section 2, Article XVII of the Constitution and
R.A. 6735 involves contentious issues of fact which should
first be resolved by the COMELEC.
Oppositors-intervenors impugn the Petition for Initiative as it
allegedly lacks the required number of signatures under Section
2, Article XVII of the Constitution. Said provision requires that the
petition for initiative be supported by at least twelve per cent
(12%) of the total number of registered voters, of which every
legislative district must be represented by at least three per cent
(3%) of the registered voters therein. Oppositors-intervenors
contend that no proper verification of signatures was done in
several legislative districts. They assert that mere verification of
the names listed on the signature sheets without verifying the
signatures reduces the signatures submitted for their respective
legislative districts to mere scribbles on a piece of paper.  Antonino, however, submitted to this Court a copy of the
Oppositor-intervenor ONEVOICE, Inc., submitted to this Court a
certification dated August 23, 2006 issued by Atty. Marlon S.
Casquejo, Election Officer IV, Third District and OIC, First and
Second District, Davao City, stating that his office has not verified
the signatures submitted by the proponents of the people's
initiative. The certification reads:
This is to CERTIFY that this office (First, Second and
Third District, Davao City) HAS NOT VERIFIED the
signatures of registered voters as per documents
submitted in this office by the proponents of the People's
Initiative. Consequently, NO ELECTION DOCUMENTS
AND/OR ORDER ISSUED BY HIGHER
SUPERIORSused as basis for such verification of
signatures.91
Senate Minority Leader Aquilino Pimentel, Jr., among others,
further clarified that although Atty. Casquejo and Reynne Joy B.
Bullecer, Acting Election Officer IV, First District, Davao City, later
issued certifications stating that the Office of the City Election
Officer has examined the list of individuals appearing in the
signature sheets,92 the certifications reveal that the office had
verified only the names of the signatories, but not their
signatures. Oppositors-intervenors submit that not only the
names of the signatories should be verified, but also their
signatures to ensure the identities of the persons affixing their
signatures on the signature sheets.
Oppositor-intervenor Luwalhati Antonino also alleged that
petitioners failed to obtain the signatures of at least three per cent
(3%) of the total number of registered voters in the First
Legislative District of South Cotabato. For the First District of
South Cotabato, petitioners submitted 3,182 signatures for
General Santos City, 2,186 signatures for Tupi, 3,308 signatures
for Tampakan and 10,301 signatures for Polomolok, or 18,977
signatures out of 359,488 registered voters of said district.
certification by Glory D. Rubio, Election Officer III, Polomolok,
dated May 8, 2006, showing that the signatures from Polomolok
were not verified because the Book of Voters for the whole
municipality was in the custody of the Clerk of Court of the
Regional Trial Court, Branch 38, Polomolok, South
Cotabato.93 Excluding the signatures from Polomolok from the
total number of signatures from the First District of South
Cotabato would yield only a total of 8,676 signatures which falls
short of the three per cent (3%) requirement for the district. 
Former President Joseph Ejercito Estrada and Pwersa ng
Masang Pilipino likewise submitted to this Court a certification
issued by Atty. Stalin A. Baguio, City Election Officer IV, Cagayan
de Oro City, stating that the list of names appearing on the
signature sheets corresponds to the names of registered voters in
the city, thereby implying that they have not actually verified the
signatures.94
The argument against the sufficiency of the signatures is further
bolstered by Alternative Law Groups, Inc., which submitted
copies of similarly worded certifications from the election officers
from Zamboanga del Sur95 and from Compostela
Valley.96 Alternative Law Groups, Inc., further assails the
regularity of the verification process as it alleged that verification
in some areas were conducted by Barangay officials and not by
COMELEC election officers. It filed with this Court copies of
certifications from Sulu and Sultan Kudarat showing that the
verification was conducted by local officials instead of COMELEC
personnel.97
Petitioners, on the other hand, maintain that the verification
conducted by the election officers sufficiently complied with the
requirements of the Constitution and the law on initiative.  specifically relating to the voters who supported the
Contravening the allegations of oppositors-intervenors on the lack
of verification in Davao City and in Polomolok, South Cotabato,
petitioner Aumentado claimed that the same election officers
cited by the oppositors-intervenors also issued certifications
showing that they have verified the signatures submitted by the
proponents of the people's initiative. He presented copies of the
certifications issued by Atty. Marlon S. Casquejo for the Second
and Third Legislative Districts of Davao City stating that he
verified the signatures of the proponents of the people's initiative.
His certification for the Second District states:
This is to CERTIFY that this Office has examined the list
of individuals as appearing in the Signature Sheets of the
Registered Voters of District II, Davao City, submitted on
April 7, 2006 by MR. NONATO BOLOS, Punong
Barangay, Centro, Davao City for verification which
consists of THIRTY THOUSAND SIX HUNDRED SIXTY-
TWO (30,662) signatures.
Anent thereto, it appears that of the THIRTY THOUSAND
SIX HUNDRED SIXTY-TWO (30,662) individuals, only
TWENTY-TWO THOUSAND SIX HUNDRED SIXTY-
EIGHT (22,668) individuals were found to be
REGISTERED VOTERS, in the Computerized List of
Voters of SECOND CONGRESSIONAL DISTRICT,
DAVAO CITY.98
It was also shown that Atty. Casquejo had issued a clarificatory
certification regarding the verification process conducted in
Davao City. It reads:
Regarding the verification of the signatures of registered
voters, this Office has previously issued two (2) separate
certifications for the 2nd and 3rd Districts of Davao City on
April 20, 2006 and April 26, 2006, respectively,
people's initiative. It was stated therein that the names
submitted, comprising 22,668 individual voters in the
2nd District and 18,469 individual voters in the 3rd District,
were found [to] be registered voters of the respective
districts mentioned as verified by this Office based on the
Computerized List of Voters.
It must be clarified that the August 23, 2006 Certification
was issued in error and by mistake for the reason that the
signature verification has not been fully completed as of
that date.
I hereby CERTIFY that this Office has examined the
signatures of the voters as appearing in the signature
sheets and has compared these with the signatures
appearing in the book of voters and computerized list of
voters x x x 99
Petitioner Aumentado also submitted a copy of the certification
dated May 8, 2006 issued by Polomolok Election Officer Glory D.
Rubio to support their claim that said officer had conducted a
verification of signatures in said area. The certification states:
This is to certify further, that the total 68,359 registered
voters of this municipality, as of the May 10, 2004
 elections, 10,804 names with signatures were submitted
for verification and out of which 10,301 were found to be
legitimate voters as per official list of registered voters,
which is equivalent to 15.07% of the total number of
registered voters of this Municipality.100
In addition to the lack of proper verification of the signatures in
numerous legislative districts, allegations of fraud and
irregularities in the collection of signatures in Makati City were
cited by Senator Pimentel, among others, to wit:  observations. As mentioned earlier, the COMELEC
(1) No notice was given to the public, for the benefit of
those who may be concerned, by the Makati COMELEC
Office that signature sheets have already been submitted
to it for "verification." The camp of Mayor Binay was able
to witness the "verification process" only because of their
pro-active stance;
(2) In District 1, the proponents of charter change
submitted 43,405 signatures for verification. 36,219
alleged voters' signatures (83% of the number of
signatures submitted) were rejected outright. 7,186
signatures allegedly "passed" COMELEC's initial scrutiny.
However, upon examination of the signature sheets by
Atty. Mar-len Abigail Binay, the said 7,186 signatures
could not be accounted for. Atty. Binay manually counted
2,793 signatures marked with the word "OK" and 3,443
signatures marked with a check, giving only 6,236
"apparently verified signatures." Before the COMELEC
officer issued the Certification, Atty. Binay already
submitted to the said office not less than 55 letters of
"signature withdrawal," but no action was ever taken
thereon;
(3) In District 2, 29,411 signatures were submitted for
verification. 23,521 alleged voters' signatures (80% of
those submitted) were rejected outright. Of the 5,890
signatures which allegedly passed the COMELEC's initial
scrutiny, some more will surely fail upon closer
examination;
(4) In the absence of clear, transparent, and uniform rules
the COMELEC personnel did not know how to treat the
objections and other observations coming from the camp
of Mayor Binay. The oppositors too did not know where to
go for their remedy when the COMELEC personnel
merely "listened" to their objections and other
personnel did not even know what to do with the many
"letters of signature withdrawal" submitted to it;
(5) Signatures of people long dead, in prison, abroad, and
other forgeries appear on the Sigaw ng Bayan Signature
Sheets. There is even a 15-year old alleged signatory;
(6) There are Signature Sheets obviously signed by one
person;
(7) A Calara M. Roberto and a Roberto M. Calara both
allegedly signed the Signature Sheets.101
Also, there are allegations that many of the signatories did not
understand what they have signed as they were merely misled
into signing the signature sheets. Opposed to these allegations
are rulings that a person who affixes his signature on a document
raises the presumption that the person so signing has knowledge
of what the document contains. Courts have recognized that
there is great value in the stability of records, so to speak, that no
one should commit herself or himself to something in writing
unless she or he is fully aware and cognizant of the effect it may
have upon her on him.102 In the same vein, we have held that a
person is presumed to have knowledge of the contents of a
document he has signed.103 But as this Court is not a trier of facts,
it cannot resolve the issue.
In sum, the issue of whether the petitioners have complied with
the constitutional requirement that the petition for initiative be
signed by at least twelve per cent (12%) of the total number of
registered voters, of which every legislative district must be
represented by at least three per cent (3%) of the registered
voters therein, involves contentious facts. Its resolution will
require presentation of evidence and their calibration by the
COMELEC according to its rules. During the oral argument on
this case, the COMELEC, through Director Alioden Dalaig of its
Law Department, admitted that it has not examined the
documents submitted by the petitioners in support of the petition
for initiative, as well as the documents filed by the oppositors to
buttress their claim that the required number of signatures has
not been met. The exchanges during the oral argument likewise
clearly show the need for further clarification and presentation of
evidence to prove certain material facts.104
The only basis used by the COMELEC to dismiss the petition
for initiative was this Court's ruling in Santiago v. COMELEC that
R.A. 6735 was insufficient. It has yet to rule on the sufficiency
of the form and substance of the petition. I respectfully submit
that this issue should be properly litigated before the
COMELEC where both parties will be given full opportunity to
prove their allegations.  justices, only six (6) reiterated their ruling that R.A. 6735 was
For the same reasons, the sufficiency of the Petition for
Initiative and its compliance with the requirements of R.A.
6735 on initiative and its implementing rules is a question that
should be resolved by the COMELEC at the first instance, as it is
the body that is mandated by the Constitution to administer all
laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall.105
VII
COMELEC gravely abused its discretion when it
denied due course to the Lambino and Aumentado
petition.
In denying due course to the Lambino and Aumentado petition,
COMELEC relied on this Court's ruling in Santiagopermanently
enjoining it from entertaining or taking cognizance of any petition
for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted to provide for the
implementation of the system.
Again, I respectfully submit that COMELEC's reliance
on Santiago constitutes grave abuse of discretion amounting to
lack of jurisdiction. The Santiago case did not establish the
firm doctrine that R.A. 6735 is not a sufficient law to implement
the constitutional provision allowing people's initiative to amend
the Constitution. To recapitulate, the records show that in
the original decision, eight (8) justices106 voted that R.A. 6735
was not a sufficient law; five (5) justices107 voted that said law was
sufficient; and one (1) justice108 abstained from voting on the issue
holding that unless and until a proper initiatory pleading is filed,
the said issue is not ripe for adjudication.109
Within the reglementary period, the respondents filed their motion
for reconsideration. On June 10, 1997, the Court denied the
motion. Only thirteen (13) justices resolved the motion for Justice
Torres inhibited himself.110 Of the original majority of eight (8)
an insufficient law. Justice Hermosisima, originally part of the
majority of eight (8) justices, changed his vote and joined the
minority of five (5) justices. He opined without any equivocation
that R.A. 6735 was a sufficient law, thus:
It is one thing to utter a happy phrase from a protected
cluster; another to think under fire – to think for action
upon which great interests depend." So said Justice
Oliver Wendell Holmes, and so I am guided as I
reconsider my concurrence to the holding of the majority
that "R.A. No. 6735 is inadequate to cover the system of
initiative on amendments to the Constitution and to have
failed to provide sufficient standard for subordinate
legislation" and now to interpose my dissent thereto.
 x x x  motion; while Justice Vitug "maintained his opinion that
WHEREFORE, I vote to dismiss the Delfin petition.
I vote, however, to declare R.A. No. 6735 as
adequately providing the legal basis for the exercise
by the people of their right to amend the Constitution
through initiative proceedings and to uphold the validity
of COMELEC Resolution No. 2300 insofar as it does not
sanction the filing of the initiatory petition for initiative
proceedings to amend the Constitution without the
required names and/or signatures of at least 12% of all
the registered voters, of which every legislative district
must be represented by at least 3% of the registered
voters therein. (emphasis supplied)
Justice Vitug remained steadfast in refusing to rule on the
sufficiency of R.A. 6735. In fine, the final vote on whether R.A.
6735 is a sufficient law was 6-6 with one (1) justice inhibiting
himself and another justice refusing to rule on the ground that the
issue was not ripe for adjudication.
It ought to be beyond debate that the six (6) justices who voted
that R.A. 6735 is an insufficient law failed to establish a doctrine
that could serve as a precedent. Under any alchemy of law, a
deadlocked vote of six (6) is not a majority and a non-majority
cannot write a rule with precedential value. The opinion of the late
Justice Ricardo J. Francisco is instructive, viz:
As it stands, of the thirteen justices who took part in the
deliberations on the issue of whether the motion for
reconsideration of the March 19, 1997 decision should be
granted or not, only the following justices sided with Mr.
Justice Davide, namely: Chief Justice Narvasa, and
Justices Regalado, Romero, Bellosillo and Kapunan.
Justices Melo, Puno, Mendoza, Hermosisima,
Panganiban and the undersigned voted to grant the
the matter was not ripe for judicial adjudication." In other
words, only five, out of the other twelve justices, joined
Mr. Justice Davide's June 10, 1997 ponencia finding R.A.
No. 6735 unconstitutional for its failure to pass the so
called "completeness and sufficiency standards" tests.
The "concurrence of a majority of the members who
actually took part in the deliberations" which Article VII,
Section 4(2) of the Constitution requires to declare a law
unconstitutional was, beyond dispute, not complied with.
And even assuming, for the sake of argument, that the
constitutional requirement on the concurrence of the
"majority" was initially reached in the March 19, 1997
ponencia, the same is inconclusive as it was still open for
review by way of a motion for reconsideration. It was only
on June 10, 1997 that the constitutionality of R.A. No.
6735 was settled with finality, sans the constitutionally
required "majority." The Court's declaration, therefore, is
manifestly grafted with infirmity and wanting in force
necessitating, in my view, the reexamination of the
Court's decision in G.R. No. 127325. It behooves the
Court "not to tarry any longer" nor waste this opportunity
accorded by this new petition (G.R. No. 129754) to relieve
the Court's pronouncement from constitutional infirmity.
The jurisprudence that an equally divided Court can never set a
precedent is well-settled. Thus, in the United States, an
affirmance in the Federal Supreme Court upon equal division of
opinion is not an authority for the determination of other cases,
either in that Court or in the inferior federal courts. In Neil v.
Biggers,111 which was a habeas corpusstate proceeding by a
state prisoner, the U.S. Supreme Court held that its equally
divided affirmance of petitioner's state court conviction was not
an "actual adjudication" barring subsequent consideration by the
district court on habeas corpus. In discussing the non-binding
effect of an equal division ruling, the Court reviewed the
history of cases explicating the disposition "affirmed by an equally
divided Court:"
 In this light, we review our cases explicating the
disposition "affirmed by an equally divided Court." On
what was apparently the first occasion of an equal
division, The Antelope, 10 Wheat, 66, 6 L. Ed. 268
(1825), the Court simply affirmed on the point of division
without much discussion. Id., at 126-127. Faced with a
similar division during the next Term, the Court again
affirmed, Chief Justice Marshall explaining that "the
principles of law which have been argued, cannot be
settled; but the judgment is affirmed, the court being
divided in opinion upon it." Etting v. Bank of United
States, 11 Wheat. 59, 78, 6 L. Ed. 419 (1826). As was
later elaborated in such cases, it is the appellant or
petitioner who asks the Court to overturn a lower court's
decree. "If the judges are divided, the reversal cannot be
had, for no order can be made. The judgment of the court
below, therefore, stands in full force. It is indeed, the
settled practice in such case to enter a judgment of
affirmance; but this is only the most convenient mode of
expressing the fact that the cause is finally disposed of in
conformity with the action of the court below, and that that
court can proceed to enforce its judgment. The legal
effect would be the same if the appeal, or writ of error,
were dismissed." Durant v. Essex Co., 7 Wall. 107, 112,
19 L. Ed. 154 (1869). Nor is an affirmance by an equally
divided Court entitled to precedential weight. Ohio ex rel.
Eaton v. Price, 364 U.S. 263, 264, 80 S. Ct. 1463, 1464,
4 L. Ed. 2d 1708 (1960).xxx"  chapter 15938, Acts of 1933 must be allowed to stand, dismissing
This doctrine established in Neil has not been overturned and
has been cited with approval in a number of subsequent
cases,112 and has been applied in various state jurisdictions.
In the case of In the Matter of the Adoption of Erin G., a Minor
Child,113 wherein a putative father sought to set aside a decree
granting petition for adoption of an Indian child on grounds of
noncompliance with the requirements of Indian Child Welfare Act
(ICWA), the Supreme Court of Alaska held that its decision in In
re Adoption of T.N.F. (T.N.F.),114 which lacked majority
opinion supporting holding that an action such as the putative
father's would be governed by the state's one-year statute of
limitations, was not entitled to stare decisis effect. In T.N.F., a
majority of the justices sitting did not agree on a common
rationale, as two of four participating justices agreed that the
state's one-year statute of limitations applied, one justice
concurred in the result only, and one justice dissented. There was
no "narrower" reasoning agreed upon by all three affirming
justices. The concurring justice expressed no opinion on the
statute of limitations issue, and in agreeing with the result, he
reasoned that ICWA did not give the plaintiff standing to
sue.115 The two-justice plurality, though agreeing that the state's
one-year statute of limitations applied, specifically disagreed with
the concurring justice on the standing issue.116 Because a majority
of the participating justices in T.N.F. did not agree on any one
ground for affirmance, it was not accorded stare decisis effect by
the state Supreme Court.
The Supreme Court of Michigan likewise ruled that the doctrine of
stare decisis does not apply to plurality decisions in which no
majority of the justices participating agree to the reasoning and as
such are not authoritative interpretations binding on the Supreme
Court.117
In State ex rel. Landis v. Williams,118 the Supreme Court of
Florida, in an equally divided opinion on the matter,119 held that
a quo warranto suit without prejudice. The Court held:
In a cause of original jurisdiction in this court a statute
cannot be declared unconstitutional nor its enforcement
nor operation judicially interfered with, except by the
concurrence of a majority of the members of the Supreme
Court sitting in the cause wherein the constitutionality of
the statute is brought in question or judicial relief sought
against its enforcement. Section 4 of Article 5, state
Constitution.
 Therefore in this case the concurrence of a majority of the
members of this court in holding unconstitutional said
chapter 15938, supra, not having been had, it follows that
the statute in controversy must be allowed to stand and
accordingly be permitted to be enforced as a
presumptively valid act of the Legislature, and that this
proceeding in quo warranto must be dismissed without
prejudice. Spencer v. Hunt (Fla.) 147 So. 282. This
decision is not to be regarded as a judicial precedent on
the question of constitutional law involved concerning the
constitutionality vel non of chapter 15938. State ex rel.
Hampton v. McClung, 47 Fla. 224, 37 So. 51.
Quo warranto proceeding dismissed without prejudice by
equal division of the court on question of constitutionality
of statute involved.
In U.S. v. Pink,120 the Court held that the affirmance by the U.S.
Supreme Court by an equally divided vote of a decision of the
New York Court of Appeals that property of a New York branch of
a Russian insurance company was outside the scope of the
Russian Soviet government's decrees terminating existence of
insurance companies in Russia and seizing their assets, while
conclusive and binding upon the parties as respects the
controversy in that action, did not constitute an authoritative
"precedent."
In Berlin v. E.C. Publications, Inc.,121 the U.S. Court of Appeals
Second Circuit, in holding that printed lyrics which had the same
meter as plaintiffs' lyrics, but which were in form a parody of the
latter, did not constitute infringement of plaintiffs' copyrights, ruled
that the prior case of Benny v. Loew's, Inc.,122 which
was affirmed by an equally divided court, was not
binding upon it, viz:
Under the precedents of this court, and, as seems
justified by reason as well as by authority, an affirmance
by an equally divided court is as between the parties, a
conclusive determination and adjudication of the matter
adjudged; but the principles of law involved not having
been agreed upon by a majority of the court sitting
prevents the case from becoming an authority for the
determination of other cases, either in this or in inferior
courts.123
In Perlman v. First National Bank of Chicago,124 the Supreme
Court of Illinois dismissed the appeal as it was unable to reach a
decision because two judges recused themselves and the
remaining members of the Court were so divided, it was
impossible to secure the concurrence of four judges as is
constitutionally required. The Court followed the procedure
employed by the U.S. Supreme Court when the Justices of that
Court are equally divided, i.e. affirm the judgment of the court that
was before it for review. The affirmance is a conclusive
determination and adjudication as between the parties to the
immediate case, it is not authority for the determination of other
cases, either in the Supreme Court or in any other court. It is not
"entitled to precedential weight." The legal effect of such an
affirmance is the same as if the appeal was dismissed.125
The same rule is settled in the English Courts. Under English
precedents,126 an affirmance by an equally divided Court is, as
between the parties, a conclusive determination and adjudication
of the matter adjudged; but the principles of law involved not
having been agreed upon by a majority of the court sitting
prevents the case from becoming an authority for the
determination of other cases, either in that or in inferior courts. 
After a tour of these cases, we can safely conclude that the
prevailing doctrine is that, the affirmance by an equally divided
court merely disposes of the present controversy as between the
parties and settles no issue of law; the affirmance leaves
unsettled the principle of law presented by the case and is not
entitled to precedential weight or value. In other words, the
decision only has res judicata and not stare decisis effect. It is not
conclusive and binding upon other parties as respects the
controversies in other actions.  pleadings filed here and in Santiago v. COMELEC (G.R.
Let us now examine the patent differences between the petition
at bar and the Delfin Petition in the Santiago case which will
prevent the Santiago ruling from binding the present petitioners.
To start with, the parties are different. More importantly,
the Delfin Petition did not contain the signatures of the required
number of registered voters under the Constitution: the
requirement that twelve per cent (12%) of all the registered voters
in the country wherein each legislative district is represented by at
least three per cent (3%) of all the registered voters therein was
not complied with. For this reason, we ruled unanimously that it
was not the initiatory petition which the COMELEC could properly
take cognizance of. In contrast, the present petition appears to
be accompanied by the signatures of the required number of
registered voters. Thus, while the Delfin Petition prayed that an
Order be issued fixing the time and dates for signature gathering
all over the country, the Lambino and Aumentado petition, prayed
for the calling of a plebiscite to allow the Filipino people to
express their sovereign will on the proposition. COMELEC cannot
close its eyes to these material differences.
Plainly, the COMELEC committed grave abuse of discretion
amounting to lack of jurisdiction in denying due course to the
Lambino and Aumentado petition on the basis of its mistaken
notion that Santiago established the doctrine that R.A. 6735 was
an insufficient law. As aforestressed, that ruling of six (6) justices
who do not represent the majority lacks precedential status and is
non-binding on the present petitioners.
The Court's dismissal of the PIRMA petition is of no moment.
Suffice it to say that we dismissed the PIRMA petition on the
principle of res judicata. This was stressed by former Chief
Justice Hilario G. Davide Jr., viz:
The following are my reasons as to why this petition must be
summarily dismissed:
First, it is barred by res judicata. No one aware of the
No. 127325, 19 March 1997) may plead ignorance of the
fact that the former is substantially identical to the latter,
except for the reversal of the roles played by the principal
parties and inclusion of additional, yet not indispensable,
parties in the present petition. But plainly, the same
issues and reliefs are raised and prayed for in both cases.
The principal petitioner here is the PEOPLE'S INITIATIVE
FOR REFORM, MODERNIZATION, AND ACTION
(PIRMA) and spouses ALBERTO PEDROSA and
CARMEN PEDROSA. PIRMA is self-described as "a non-
stock, non-profit organization duly organized and existing
under Philippine laws with office address at Suite 403,
Fedman Suites, 199 Salcedo Street, Legaspi Village,
Makati City," with "ALBERTO PEDROSA and CARMEN
PEDROSA" as among its "officers." In Santiago, the
PEDROSAS were made respondents as founding
members of PIRMA which, as alleged in the body of the
petition therein, "proposes to undertake the signature
drive for a people's initiative to amend the Constitution." In
Santiago then, the PEDROSAS were sued in their
capacity as founding members of PIRMA.
The decision in Santiago specifically declared that PIRMA
was duly represented at the hearing of the Delfin petition
in the COMELEC. In short, PIRMA was intervenor-
petitioner therein. Delfin alleged in his petition that he was
a founding member of the Movement for People's
Initiative, and under footnote no. 6 of the decision, it was
noted that said movement was "[l]ater identified as the
People's Initiative for Reforms, Modernization and Action,
or PIRMA for brevity." In their Comment to the petition in
Santiago, the PEDROSAS did not deny that they were
founding members of PIRMA, and by their arguments,
demonstrated beyond a shadow of a doubt that they had
joined Delfin or his cause.
 No amount of semantics may then shield herein
petitioners PIRMA and the PEDROSAS, as well as the
others joining them, from the operation of the principle of
res judicata, which needs no further elaboration.
(emphasis supplied)
Justice Josue N. Bellosillo adds:
The essential requisites of res judicata are: (1) the former
judgment must be final; (2) it must have been rendered by
a court having jurisdiction over the subject matter and the
parties; (3) it must be a judgment on the merits; and (4)
there must be between the first and second actions
identity of parties, identity of subject matter, and identity of
causes of action.127
Applying these principles in the instant case, we hold that
all the elements of res judicata are present. For sure, our
Decision in Santiago v. COMELEC, which was
promulgated on 19 March 1997, and the motions for
reconsideration thereof denied with finality on 10 June
1997, is undoubtedly final. The said Decision was
rendered by this Court which had jurisdiction over the
petition for prohibition under Rule 65. Our judgment
therein was on the merits, i.e., rendered only after
considering the evidence presented by the parties as well
as their arguments in support of their respective claims
and defenses. And, as between Santiago v. COMELEC
case and COMELEC Special Matter No. 97-001 subject of
the present petition, there is identity of parties, subject
matter and causes of action.
Petitioners contend that the parties in Santiago v.
COMELEC are not identical to the parties in the instant
case as some of the petitioners in the latter case were not
parties to the former case. However, a perusal of the
records reveals that the parties in Santiago v. COMELEC
included the COMELEC, Atty. Jesus S. Delfin, spouses
Alberto and Carmen Pedrosa, in their capacities as
founding members of PIRMA, as well as Atty. Pete
Quirino-Quadra, another founding member of PIRMA,
representing PIRMA, as respondents. In the instant case,
Atty. Delfin was never removed, and the spouses Alberto
and Carmen Pedrosa were joined by several others who
were made parties to the petition. In other words, what
petitioners did was to make it appear that the PIRMA
Petition was filed by an entirely separate and distinct
group by removing some of the parties involved in
Santiago v. COMELEC and adding new parties. But as
we said in Geralde v. Sabido128-
A party may not evade the application of the rule
of res judicata by simply including additional
parties in the subsequent case or by not including
as parties in the later case persons who were
parties in the previous suit. The joining of new
parties does not remove the case from the
operation of the rule on res judicata if the party
against whom the judgment is offered in evidence
was a party in the first action; otherwise, the
parties might renew the litigation by simply joining
new parties.
The fact that some persons or entities joined as parties in
the PIRMA petition but were not parties in Santiago v.
COMELEC does not affect the operation of the prior
judgment against those parties to the PIRMA Petition who
were likewise parties in Santiago v. COMELEC, as they
are bound by such prior judgment.
Needless to state, the dismissal of the PIRMA petition which was
based on res judicata binds only PIRMA but not the petitioners.
VIII
 Finally, let the people speak.
"It is a Constitution we are expounding" solemnly intoned the
great Chief Justice John Marshall of the United States in the
1819 case of M'cCulloch v. Maryland.129 Our Constitution is not
a mere collection of slogans. Every syllable of our Constitution is
suffused with significance and requires our full fealty. Indeed, the
rule of law will wither if we allow the commands of our
Constitution to underrule us.
The first principle enthroned by blood in our Constitution is
the sovereignty of the people. We ought to be concerned with
this first principle, i.e., the inherent right of the sovereign people
to decide whether to amend the Constitution. Stripped of its
abstractions, democracy is all about who has the sovereign right
to make decisions for the people and our Constitution clearly and
categorically says it is no other than the people themselves from
whom all government authority emanates. This right of the
people to make decisions is the essence of sovereignty, and
it cannot receive any minimalist interpretation from this
Court. If there is any principle in the Constitution that cannot be
diluted and is non-negotiable, it is this sovereign right of the
people to decide.
This Court should always be in lockstep with the people in
the exercise of their sovereignty. Let them who will diminish or
destroy the sovereign right of the people to decide be warned. Let
not their sovereignty be diminished by those who belittle their
brains to comprehend changes in the Constitution as if the people
themselves are not the source and author of our Constitution. Let
not their sovereignty be destroyed by the masters of manipulation
who misrepresent themselves as the spokesmen of the people.
Be it remembered that a petition for people's initiative that
complies with the requirement that it "must be signed by at least
12% of the total number of registered voters of which every
legislative district is represented by at least 3% of the registered
voters therein" is but the first step in a long journey towards
the amendment of the Constitution. Lest it be missed, the case at
bar involves but a proposal to amend the Constitution. The
proposal will still be debated by the people and at this time,
there is yet no fail-safe method of telling what will be the result of
the debate. There will still be a last step to the process of
amendment which is the ratification of the proposal by a majority
of the people in a plebiscite called for the purpose. Only when
the proposal is approved by a majority of the people in the
plebiscite will it become an amendment to the Constitution.
All the way, we cannot tie the tongues of the people. It is the
people who decide for the people are not an obscure
footnote in our Constitution. 
The people's voice is sovereign in a democracy. Let us hear
them. Let us heed them. Let us not only sing paens to the
people's sovereignty. Yes, it is neither too soon nor too late
to let the people speak.
IN VIEW WHEREOF, I vote to REVERSE and SET ASIDE the
resolution of the Commission on Elections dated August 31,
2006, denying due course to the Petition for Initiative filed by Raul
L. Lambino and Erico B. Aumentado in their own behalf and
together with some 6.3 million registered voters who affixed their
signatures thereon and to REMAND the petition at bar to the
Commission on Elections for further proceedings.
REYNATO S. PUNO
Associate Justice
____________________
EN BANC
G. R. No. 174153             October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO together with
6,327,952 REGISTERED VOTERS, Petitioners  RENE A. Q. SAGUISAG, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent; TRADE
UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD
L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA,
SULONGBAYAN MOVEMENT FOUNDATION, INC.,
PHILIPPINE TRANSPORT AND GENERAL WORKERS
ORGANIZATION (PTGWO) and VICTORINO F.
BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN
S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,
BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P.
MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY.
PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG
MAYO UNO, HEAD, ECUMENICAL BISHOPS FORUM,
MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY,
ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO
SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR.
REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO
JOYO AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL,
LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA,
TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M.
BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P.
AGUAS, and AMADO GAT INCIONG, SENATE MINORITY
LEADER AQUILINO P. PIMENTEL, JR., and SENATORS
SERGIO R. OSMEÑA III, JAMBY A.S. MADRIGAL, LUISA P.
EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM
and PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA
and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF
THE PHILIPPINES CEBU CITY CHAPTER and CEBU
CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR,
MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR and
RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES,
Represented by its President, MANUEL VILLAR,
JR., Oppositors-Intervenors;  statutory and constitutional limitations on the conduct of the
G.R. No. 174299  October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and
 
vs. 
COMMISSION ON ELECTIONS, Represented by Chairman
BENJAMIN S. ABALOS, SR., and Commissioners
RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe
and Peter Doe, Respondents.
x
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-x
SEPARATE OPINION
QUISUMBING, J.:
1. With due respect to the main opinion written by J. Antonio T.
Carpio, and the dissent of J. Reynato S. Puno, I view the matter
before us in this petition as one mainly involving a complex
political question.1 While admittedly the present Constitution lays
down certain numerical requirements for the conduct of a
People's Initiative, such as the percentages of signatures – being
12% of the total number of registered voters, provided each
legislative district is represented by at least 3% – they are not the
main points of controversy. Stated in simple terms, what this
Court must decide is whether the Commission on Elections
gravely abused its discretion when it denied the petition to submit
the proposed changes to the Constitution directly to the vote of
the sovereign people in a plebiscite. Technical
questions, e.g. whether petitioners should have filed a Motion for
Reconsideration before coming to us, are of no moment in the
face of the transcendental issue at hand. What deserve our full
attention are the issues concerning the applicable rules as well as
People's Initiative.
2. It must be stressed that no less than the present Constitution
itself empowers the people to "directly" propose amendments
through their own "initiative." The subject of the instant petition is
by way of exercising that initiative in order to change our form of
government from presidential to parliamentary. Much has been
written about the fulsome powers of the people in a democracy.
But the most basic concerns the idea that sovereignty resides in
the people and that all government authority emanates from
them. Clearly, by the power of popular initiative, the people have
the sovereign right to change the present Constitution. Whether
the initial moves are done by a Constitutional Convention, a
Constitutional Assembly, or a People's Initiative, in the end every
amendment -- however insubstantial or radical -- must be
submitted to a plebiscite. Thus, it is the ultimate will of the people
expressed in the ballot, that matters.2
3. I cannot fault the COMELEC, frankly, for turning down the
petition of Messrs. Lambino, et al. For the COMELEC was just
relying on precedents, with the common understanding that,
pursuant to the cases of Santiago v. COMELEC3 and PIRMA v.
COMELEC,4 the COMELEC had been permanently enjoined from
entertaining any petition for a people's initiative to amend the
Constitution by no less than this Court. In denying due course
below to Messrs. Lambino and Aumentado's petition, I could not
hold the COMELEC liable for grave abuse of discretion when they
merely relied on this Court's unequivocal rulings. Of course,
the Santiago and the PIRMA decisions could be reviewed and
reversed by this Court, as J. Reynato S. Puno submits now. But
until the Court does so, the COMELEC was duty bound to respect
and obey this Court's mandate, for the rule of law to prevail.
4. Lastly, I see no objection to the remand to the COMELEC of
the petition of Messrs. Lambino and Aumentado and 6.327 million
voters, for further examination of the factual requisites before a
plebiscite is conducted. On page 4 of the assailed Resolution of
the respondent dated August 31, 2006, the COMELEC tentatively
expressed its view that "even if the signatures in the instant
Petition appear to meet the required minimum per centum of the
total number of registered voters", the COMELEC could not give
the Petition due course because of our view that R.A. No. 6735
was inadequate. That, however, is now refuted by Mr. Justice
Puno's scholarly ponencia. Now that we have revisited
the Santiago v. COMELEC decision, there is only one clear task
for COMELEC. In my view, the only doable option left for the
COMELEC, once factual issues are heard and resolved, is to give
due course to the petition for the initiative to amend our
Constitution so that the sovereign people can vote on whether a
parliamentary system of government should replace the present
presidential system. 
5. I am therefore in favor of letting the sovereign people speak on
their choice of the form of government as a political question
soonest. (This I say without fear of media opinion that our judicial
independence has been tainted or imperiled, for it is not.) Thus I
vote for the remand of the petition. Thereafter, as prayed for,
COMELEC should forthwith certify the Petition as sufficient in
form and substance and call for the holding of a plebiscite within
the period mandated by the basic law, not earlier than sixty nor
later than ninety days from said certification. Only a credible
plebiscite itself, conducted peacefully and honestly, can bring
closure to the instant political controversy.
LEONARDO A. QUISUMBING
Associate Justice
____________________
EN BANC
G. R. No. 174153             October 25, 2006
RAUL L. LAMBINO and ERICO B. AUMENTADO together with
6,327,952 REGISTERED VOTERS, petitioners,
vs.  initiative. However, I wish to share my own thoughts on certain
THE COMMISSION ON ELECTIONS, respondent.  matters I deem material and significant. 

G. R. No. 174299             October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and
RENE A.Q. SAGUISAG, petitioners,
vs.  purportedly on the basis of this Court's ruling in Santiago v.
HE COMMISSION ON ELECTIONS, Represented by Chairman
BENJAMIN S. ABALOS, SR., and Commissioners
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe
and Peter Doe, respondents.
x provision.
---------------------------------------------------------------------------------------
-x
DISSENTING OPINION
CORONA, J.:
The life of the law is not logic but experience.  Our collective
1 changes to the Constitution via initiative claim
experience as a nation breathes life to our system of laws,
especially to the Constitution. These cases promise to
significantly contribute to our collective experience as a nation.
Fealty to the primary constitutional principle that the Philippines is
not merely a republican State but a democratic one as well
behooves this Court to affirm the right of the people to participate
directly in the process of introducing changes to their fundamental
law. These petitions present such an opportunity. Thus, this is an
opportune time for this Court to uphold the sovereign rights of the
people.
I agree with the opinion of Mr. Justice Reynato Puno who has
sufficiently explained the rationale for upholding the people's
Santiago Does Not Apply to This Case But Only to the 1997
Delfin Petition 
The COMELEC denied the petition for initiative filed by petitioners
COMELEC2 that: (1) RA 6753 was inadequate to cover the
system of initiative regarding amendments to the Constitution and
(2) the COMELEC was permanently enjoined from entertaining or
taking cognizance of any petition for initiative regarding
amendments to the Constitution until a sufficient law was validly
enacted to provide for the implementation of the initiative
However, Santiago should not apply to this case but only to the
petition of Delfin in 1997. It would be unreasonable to make it
apply to all petitions which were yet unforeseen in 1997. The fact
is that Santiago was focused on the Delfin petition alone.
Those who oppose the exercise of the people's right to initiate
that Santiago barred any and all future petitions for initiative by
virtue of the doctrines of stare decisis and res judicata. The
argument is flawed.
The ponencia of Mr. Justice Puno has amply discussed the
arguments relating to stare decisis. Hence, I will address the
argument from the viewpoint of res judicata. 
Res judicata is the rule that a final judgment rendered by a court
of competent jurisdiction on the merits is conclusive as to the
rights of the parties and their privies and, as to them, constitutes
an absolute bar to a subsequent action involving the same claim,
demand or cause of action.3 It has the following requisites: (1) the
former judgment or order must be final; (2) it must have been
rendered by a court having jurisdiction of the subject matter and
of the parties; (3) it must be a judgment or order on the merits
and (4) there must be identity of parties, of subject matter, and of
cause of action between the first and second actions.4
There is no identity of parties in Santiago and the instant case.
While the COMELEC was also the respondent in Santiago, the
petitioners in that case and those in this case are different. More
significantly, there is no identity of causes of action in the two
cases. Santiago involved amendments to Sections 4 and 7 of
Article VI, Section 4 of Article VII and Section 8 of Article X of the
Constitution while the present petition seeks to amend Sections
1to 7 of Article VI and Sections 1 to 4 of the 1987 Constitution.
Clearly, therefore, the COMELEC committed grave abuse of
discretion when it ruled that the present petition for initiative was
barred by Santiago and, on that ground, dismissed the petition.
The present petition and that in Santiago are materially different
from each other. They are not based on the same facts. There is
thus no cogent reason to frustrate and defeat the present direct
action of the people to exercise their sovereignty by proposing
changes to their fundamental law.  If Congress and a constitutional convention, both of which are
People's Initiative Should Not  Constitution, there is no reason why the supreme body politic
Be Subjected to Conditions
People's initiative is an option reserved by the people for
themselves exclusively. Neither Congress nor the COMELEC has
the power to curtail or defeat this exclusive power of the people to
change the Constitution. Neither should the exercise of this power
be made subject to any conditions, as some would have us
accept.
Oppositors to the people's initiative point out that this Court ruled
in Santiago that RA 6735 was inadequate to cover the system of
initiative on amendments to the Constitution and, thus, no law
existed to enable the people to directly propose changes to the
Constitution. This reasoning is seriously objectionable. 
The pronouncement on the insufficiency of RA 6735 was, to my
mind, out of place. It was unprecedented and dangerously
transgressed the domain reserved to the legislature.
While the legislature is authorized to establish procedures for
determining the validity and sufficiency of a petition to amend the
constitution,5 that procedure cannot unnecessarily restrict the
initiative privilege.6 In the same vein, this Court cannot
unnecessarily and unreasonably restrain the people's right to
directly propose changes to the Constitution by declaring a law
inadequate simply for lack of a sub-heading and other
grammatical but insignificant omissions. Otherwise, the
constitutional intent to empower the people will be severely
emasculated, if not rendered illusory. 
People's Right and Power to Propose Changes to the
Constitution Directly Should not be Unreasonably Curtailed 
mere representative bodies, can propose changes to the
itself – the people – may not do so directly. 
Resort to initiative to amend the constitution or enact a statute is
an exercise of "direct democracy" as opposed to "representative
democracy." The system of initiative allows citizens to directly
propose constitutional amendments for the general electorate to
adopt or reject at the polls, particularly in a plebiscite. While
representative government was envisioned to "refine and enlarge
the public views, by passing them through the medium of a
chosen body of citizens, whose wisdom may best discern the true
interest of their country, and whose patriotism and love of justice
will be least likely to sacrifice it to temporary or partial
considerations,"7 the exercise of "direct democracy" through
initiative reserves direct lawmaking power to the people by
providing them a method to make new laws via the constitution,
or alternatively by enacting statutes.8 Efforts of the represented to
control their representatives through initiative have been
described as curing the problems of democracy with more
democracy.9
The Constitution celebrates the sovereign right of the people and
declares that "sovereignty resides in the people and all
government authority emanates from them."10 Unless the present
petition is granted, this constitutional principle will be nothing but
empty rhetoric, devoid of substance for those whom it seeks to
empower.  ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO
The right of the people to pass legislation and to introduce
changes to the Constitution is a fundamental right and must be
jealously guarded.11 The people should be allowed to directly
seek redress of the problems of society and representative
democracy with the constitutional tools they have reserved for
their use alone.
Accordingly, I vote to GRANT the petition in G.R. No. 174513.
RENATO C. CORONA
Associate Justice
____________________
EN BANC
G. R. No. 174153
RAUL LAMBINO and ERICO B. AUMENTADO together with
6,327,952 REGISTERED VOTERS, Petitioners  MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and
vs.
THE COMMISSION ON ELECTIONS, Respondent;  vs.
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP),
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO
BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC.,
PHILIPPINE TRANSPORT AND GENERAL WORKERS
ORGANIZATION (PTGWO) and VICTORINO F. BALAIS,
Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S.
MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,
BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P.
MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY.
PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG
MAYO UNO, HEAD, ECUMENICAL BISHOPS FORUM,
MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY,
SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR.
REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO
JOYO AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL,
LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA,
TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M.
BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P.
AGUAS, and AMADO GAT INCIONG, SENATE MINORITY
LEADER AQUILINO P. PIMENTEL, JR., and SENATORS
SERGIO R. OSMEÑA III, JAMBY A.S. MADRIGAL, LUISA P.
EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM
and PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA
and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF
THE PHILIPPINES CEBU CITY CHAPTER and CEBU
CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR,
MA. TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and
RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES,
Represented by its President, MANUEL VILLAR,
JR.,Oppositors-Intervenors; 
G.R. No. 174299 entitled 
RENE A. Q. SAGUISAG, Petitioners 
COMMISSION ON ELECTIONS, Represented by Chairman
BENJAMIN S. ABALOS, SR., and Commissioners
RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe
and Peter Doe, Respondents.
x
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-x
SEPARATE OPINION
TINGA, J:
I join in full the opinion of Senior Associate Justice Puno. Its
enviable sang-froid, inimitable lucidity, and luminous scholarship
are all so characteristic of the author that it is hardly a waste of
pen and ink to write separately if only to express my deep
admiration for his disquisition. It is compelling because it derives
from the fundamental democratic ordinance that sovereignty
resides in the people, and it seeks to effectuate that principle
through the actual empowerment of the sovereign people. Justice
Puno's opinion will in the short term engender reactions on its
impact on present attempts to amend the Constitution, but once
the political passion of the times have been shorn, it will endure
as an unequivocal message to the taongbayan that they are to be
trusted to chart the course of their future.  spaces" in Santiago further highlights that decision's status as an
Nothing that I inscribe will improve on Justice Puno's opinion. I
only write separately to highlight a few other points which also
inform my vote to grant the petitions.  having recently decried a majority ruling that was clearly minded
I.
I agree with Justice Puno that Santiago v.
COMELEC1 and PIRMA v. COMELEC2 had not acquired value as
precedent and should be reversed in any case. I add that the
Court has long been mindful of the rule that it necessitates a
majority, and not merely a plurality, in order that a decision can
stand as precedent. That principle has informed the members of
this Court as they deliberated and voted upon contentious
petitions, even if this consideration is not ultimately reflected on
the final draft released for promulgation.
The curious twist to Santiago and PIRMA is that for all the
denigration heaped upon Rep. Act No. 6735 in those cases, the
Court did not invalidate any provision of the statute. All the Court
said then was that the law was "inadequate". Since this
"inadequate" law was not annulled by the Court, or repealed by
Congress, it remained part of the statute books.3
I maintain that even if Rep. Act No. 6735 is truly "inadequate", the
Court in Santiago should not have simply let the insufficiency
stand given that it was not minded to invalidate the law itself.
Article 9 of the Civil Code provides that "[n]o judge or court shall
decline to render judgment by reason of the silence, obscurity or
insufficiency of the laws."4As explained by the Court recently
in Reyes v. Lim,5 "[Article 9] calls for the application of equity,
which[, in the revered Justice Cardozo's words,] 'fills the open
spaces in the law.'"6 Certainly, any court that refuses to rule on an
action premised on Rep. Act No. 6735 on the ground that the law
is "inadequate" would have been found in grave abuse of
discretion. The previous failure by the Court to "fill the open
unfortunate aberration. 
I am mindful of the need to respect stare decisis, to the point of
to reverse several precedents but refused to explicitly say so.7 Yet
the principle is not immutable.8The passionate words of Chief
Justice Panganiban in Osmeña v. COMELEC9 bear quoting: 
Before I close, a word about stare decisis. In the present
case, the Court is maintaining the ad ban to be consistent
with its previous holding in NPC vs. Comelec. Thus,
 respondent urges reverence for the stability of judicial
doctrines. I submit, however, that more important than
consistency and stability are the verity, integrity and
correctness of jurisprudence. As Dean Roscoe Pound
explains, "Law must be stable but it cannot stand still."
Verily, it must correct itself and move in cadence with the
march of the electronic age. Error and illogic should not
be perpetuated. After all, the Supreme Court, in many
cases, has deviated from stare decisis and reversed
previous doctrines and decisions.10 It should do no less in
the present case.11
Santiago established a tenet that the Supreme Court may affirm a
law as constitutional, yet declare its provisions as inadequate to
accomplish the legislative purpose, then barred the enforcement
of the law. That ruling is erroneous, illogical, and should not be
perpetuated.  that embraces more than one subject.18 On this point, reliance is
II.
Following Justice Puno's clear demonstration
why Santiago should not be respected as precedent, I agree that
the COMELEC's failure to take cognizance of the petitions as
mandated by Rep. Act No. 6735 constitutes grave abuse of
discretion correctible through the petitions before this Court.  under the Constitution is satisfied if all the parts of the statute are
The Court has consistently held in cases such as Abes v.
COMELEC12, Sanchez v. COMELEC13, and Sambarani v.
COMELEC14 that "the functions of the COMELEC under the
Constitution are essentially executive and administrative in
nature".15 More pertinently, in Buac v. COMELEC16, the Court held
that the jurisdiction of the COMELEC relative to the enforcement
and administration of a law relative to a plebiscite fell under the
jurisdiction of the poll body under its constitutional mandate "to
enforce and administer all laws and regulations relative to the
conduct of a xxx plebiscite".17
Rep. Act No. 6735 is a law relative to the conduct of a plebiscite.
The primary task of the COMELEC under Rep. Act No. 6735 is to
enforce and administer the said law, functions that are essentially
executive and administrative in nature. Even the subsequent duty
of the COMELEC of determining the sufficiency of the petitions
after they have been filed is administrative in character. By any
measure, the COMELEC's failure to perform its executive and
administrative functions under Rep. Act No. 6735 constitutes
grave abuse of discretion. 
III.
It has been argued that the subject petitions for initiative are
barred under Republic Act No. 6735 as they allegedly embrace
more than one subject. Section 10 of Rep. Act No. 6735 classifies
as a "prohibited measure," a petition submitted to the electorate
apparently placed on the array of provisions which are to be
affected by the amendments proposed in the initiative petition.
Section 10 of Rep. Act No. 6735 is a reflection of the long-
enshrined constitutional principle that the laws passed by
Congress "shall embrace only one subject which shall be
expressed in the title thereof".19 The one-subject requirement
related, and are germane to the subject matter expressed in the
title, or as long as they are not inconsistent with or foreign to the
general subject and title.20 An act having a single general subject,
indicated in the title, may contain any number of provisions, no
matter how diverse they may be, so long as they are not
inconsistent with or foreign to the general subject, and may be
considered in furtherance of such subject by providing for the
method and means of carrying out the general object.21
The precedents governing the one-subject, one-title rule under
the Constitution should apply as well in the interpretation of
Section 10 of Rep. Act No. 6735. For as long as it can be
established that an initiative petition embraces a single general
subject, the petition may be allowed no matter the number of
constitutional provisions proposed for amendment if the
amendments are germane to the subject of the petition.  petitions ─ both subject to separate authentications,
Both the Sigaw ng Bayan and the Lambino initiative petitions
expressly propose the changing of the form of government from
bicameral-presidential to unicameral-parliamentary. Such a
proposal may strike as comprehensive, necessitating as it will the
reorganization of the executive and legislative branches of
government, nevertheless it ineluctably encompasses only a
single general subject still.  I am not even entirely comfortable with the theoretical
The 1987 Constitution (or any constitution for that matter) is
susceptible to division into several general spheres. To cite the
broadest of these spheres by way of example, Article III
enumerates the guaranteed rights of the people under the Bill of
Rights; Articles VI, VII and VIII provide for the organizational
structure of government; while Articles II, XII, XIII & XIV, XV and
XVI enunciate policy principles of the State. What would clearly
be prohibited under Section 10 of Rep. Act No. 6735 is an
initiative petition that seeks to amend provisions which do not
belong to the same sphere. For example, had a single initiative
petition sought not only to change the form of government from
presidential to parliamentary but also to amend the Bill of Rights,
said petition would arguably have been barred under Section 10,
as that petition ostensibly embraces more than one subject, with
each subject bearing no functional relation to the other. But that is
not the case with the present initiative petitions.  voters focus when deliberating whether or not to vote for the
Neither can it be argued that the initiative petitions embrace more
than one subject since the proposed amendments seek to affect
two separate branches of government. The very purpose of the
initiative petitions is to fuse the powers of the executive and
legislative branches of government; hence, the amendments
intended to effect such general intent necessarily affects the two
branches. If it required that to propose a shift in government from
presidential to parliamentary, the amendments to Article VII
(Executive Branch) have to be segregated to a different petition
from that which would propose amendments to Article VI
(Legislative Branch), then the result would be two initiative
consideration and even plebiscites, all to effect one general
proposition. This scenario, which entertains the possibility that
one petition would ultimately fail while the other succeeds, could
thus allow for the risk that the executive branch could be
abolished without transferring executive power to the legislative
branch. An absurd result, indeed. 
underpinnings of Section 10. The Constitution indubitably grants
the people the right to seek amendment of the charter through
initiative, and mandates Congress to "provide for the
implementation of the exercise of this right." In doing so,
Congress may not restrict the right to initiative on grounds that
are not provided for in the Constitution. If for example the
implementing law also provides that certain provisions of the
Constitution may not be amended through initiative, that
prohibition should not be sustained. Congress is tasked with the
implementation, and not the restriction of the right to initiative. 
The one-subject requirement under Section 10 is not provided for
as a bar to amendment under the Constitution. Arguments can be
supplied for the merit of such a requirement, since it would afford
a measure of orderliness when the vital question of amending the
Constitution arises. The one-subject requirement does allow the
amendments. These factors of desirability nonetheless fail to
detract from the fact that the one-subject requirement imposes an
additional restriction on the right to initiative not contemplated by
the Constitution. Short of invalidating the requirement, a better
course of action would be to insist upon its liberal interpretation.
After all, the Court has consistently adhered to a liberal
interpretation of the one-subject, one-title rule.22 There is no
cause to adopt a stricter interpretative rule with regard to the one-
subject rule under Section 10 of Rep. Act No. 6735.
 IV.
During the hearing on the petitions, the argument was raised that
provisions of the Constitution amended through initiative would
not have the benefit of a reference source from the record of a
deliberative body such as Congress or a constitutional
convention. It was submitted that this consideration influenced the
Constitutional Commission as it drafted Section 2, Article XVII,
which expressly provided that only amendments, and not
revisions, may be the subject of initiative petitions.  legislative proceedings of the proper construction of a statute,
This argument clearly proceeds from a premise that accords
supreme value to the record of deliberations of a constitutional
convention or commission in the interpretation of the charter. Yet
if the absence of a record of deliberations stands as so serious a
flaw as to invalidate or constrict processes which change a
constitution or its provisions, then the entire initiative process
authorized by the Constitution should be scarlet-marked as well.  If there is fear in the absence of a constitutional record as guide
Even if this position can be given any weight in the consideration
of these petitions, I would like to point out that resort to the
records of deliberations is only one of many aids to constitutional
construction. For one, it should be abhorred if the provision under
study is itself clear, plain, and free from ambiguity. As the Court
held in Civil Liberties Union v. Executive Secretary:23
While it is permissible in this jurisdiction to consult the
debates and proceedings of the constitutional convention
in order to arrive at the reason and purpose of the
resulting Constitution, resort thereto may be had only
when other guides fail as said proceedings are powerless
to vary the terms of the Constitution when the meaning is
clear. Debates in the constitutional convention "are of
value as showing the views of the individual members,
and as indicating the reasons for their votes, but they give
us no light as to the views of the large majority who did
not talk . . . We think it safer to construe the constitution
from what appears upon its face."24
Even if there is need to refer to extrinsic sources in aid of
constitutional interpretation, the constitutional record does not
provide the exclusive or definitive answer on how to interpret the
provision. The intent of a constitutional convention is not
controlling by itself, and while the historical discussion on the floor
of the constitutional convention is valuable, it is not necessarily
decisive. The Court has even held in Vera v. Avelino25 that "the
proceedings of the [constitutional] convention are less conclusive
of the proper construction of the fundamental law than are
since in the latter case it is the intent of the legislature that courts
seek, while in the former courts are endeavoring to arrive at the
intent of the people through the discussions and deliberations of
their representatives."26 The proper interpretation of a constitution
depends more on how it was understood by the people adopting
it than the framers' understanding thereof.27
for interpretation of any amendments adopted via initiative, such
absence would not preclude the courts from interpreting such
amendments in a manner consistent with how courts generally
construe the Constitution. For example, reliance will be placed on
the other provisions of the Constitution to arrive at a harmonized
and holistic constitutional framework. The constitutional record is
hardly the Rosetta Stone that unlocks the meaning of the
Constitution. 
V.
I fully agree with Justice Puno that all issues relating to the
sufficiency of the initiative petitions should be remanded to the
COMELEC. Rep. Act No. 6735 clearly reposes on the COMELEC
the task of determining the sufficiency of the petitions, including
the ascertainment of whether twelve percent (12%) of all
registered voters, including three percent (3%) of registered
voters in every legislative district have indeed signed the initiative
petitions.28 It should be remembered that the COMELEC had
dismissed the initiative petitions outright, and had yet to
undertake the determination of sufficiency as required by law.  it was rendered in a civil case, a special proceeding, or a
It has been suggested to the end of leading the Court to stifle the
initiative petitions that the Court may at this juncture pronounce
the initiative petitions as insufficient. The derivation of the factual
predicates leading to the suggestion is uncertain, considering that
the trier of facts, the COMELEC in this instance, has yet to
undertake the necessary determination. Still, the premise has
been floated that petitioners have made sufficient admissions
before this Court that purportedly established the petitions are
insufficient.  VI.
That premise is highly dubitable. Yet the more fundamental
question that we should ask, I submit, is whether it serves well on
the Court to usurp trier of facts even before the latter exercises its
functions? If the Court, at this stage, were to declare the petitions
as insufficient, it would be akin to the Court pronouncing an
accused as guilty even before the lower court trial had began. 
Matugas v. COMELEC29 inveighs against the propriety of the
Court uncharacteristically assuming the role of trier of facts, and
resolving factual questions not previously adjudicated by the
lower courts or tribunals:
[P]etitioner in this case cannot "enervate" the
COMELEC's findings by introducing new evidence
before this Court, which in any case is not a trier of
facts, and then ask it to substitute its own judgment
and discretion for that of the COMELEC.
The rule in appellate procedure is that a factual question
may not be raised for the first time on appeal, and
documents forming no part of the proofs before the
appellate court will not be considered in disposing of the
issues of an action. This is true whether the decision
elevated for review originated from a regular court or an
administrative agency or quasi-judicial body, and whether
criminal case. Piecemeal presentation of evidence is
simply not in accord with orderly justice.30
Any present determination by the Court on the sufficiency of the
petitions constitutes in effect a trial de novo, the Justices of the
Supreme Court virtually descending to the level of trial court
judges. This is an unbecoming recourse, and it simply is not
done.
The worst position this Court could find itself in is to acquiesce to
a plea that it make the choice whether to amend the Constitution
or not. This is a matter which should not be left to fifteen
magistrates who have not been elected by the people to make
the choice for them. 
A vote to grant the petitions is not a vote to amend the 1987
Constitution. It is merely a vote to allow the people to directly
exercise that option. In fact, the position of Justice Puno which I
share would not even guarantee that the Lambino and Sigaw ng
Bayan initiative petitions would be submitted to the people in a
referendum. The COMELEC will still have to determine the
sufficiency of the petition. Among the questions which still have to
be determined by the poll body in considering the sufficiency of
the petitions is whether twelve percent (12%) of all registered
voters nationwide, including three percent (3%) of registered
voters in every legislative district, have indeed signed the initiative
petitions.31
And even should the COMELEC find the initiative petitions
sufficient, the matter of whether the Constitution should be
amended would still depend on the choice of the electorate. The
oppositors are clearly queasy about some of the amendments
proposed, or the imputed motives behind the amendments. A
referendum, should the COMELEC find the petitions as sufficient,
would allow them to convey their uneasiness to the public at
large, as well as for the proponents of the amendment to defend
their proposal. The campaign period alone would allow the public
to be involved in the significant deliberation on the course our
nation should take, with the ensuing net benefit of a more
informed, more politically aware populace. And of course, the
choice on whether the Constitution should be amended would lie
directly with the people. The initiative process involves
participatory democracy at its most elemental; wherein
the consequential debate would not be confined to the august
halls of Congress or the hallowed chambers of this Court, as it
would spill over to the public squares and town halls, the
academic yards and the Internet blogosphere, the dining areas in
the homes of the affluent and the impoverished alike.  rights to self-determination and self-governance only to a few
The prospect of informed and widespread discussion on
constitutional change engaged in by a people who are actually
empowered in having a say whether these changes should be
enacted, gives fruition to the original vision of pure democracy, as
formulated in Athens two and a half millennia ago. The great hero
of Athenian democracy, Pericles, was recorded as saying in his
famed Funeral Oration, "We differ from other states in regarding
the man who keeps aloof from public life not as 'private' but as
useless; we decide or debate, carefully and in person all
matters of policy, and we hold, not that words and deeds go
ill together, but that acts are foredoomed to failure when
undertaken undiscussed."32
Unfortunately, given the highly politicized charge of the times, it
has been peddled that an act or vote that assists the initiative
process is one for the willful extinction of democracy or
democratic institutions. Such a consideration should of course
properly play its course in the public debates and deliberations
attendant to the initiative process. Yet as a result of the harum-
scarum, the temptation lies heavy for a member of this Court
perturbed with the prospect of constitutional change to relieve
those anxieties by simply voting to enjoin any legal procedure that
initiates the amendment or revision of the fundamental law, even
at the expense of the people's will or what the Constitution allows.
A vote so oriented takes the conservative path of least resistance,
even as it may gain the admiration of those who do not want to
see the Constitution amended. 
Still, the biases we should enforce as magistrates are those of the
Constitution and the elements of democracy on which our rule of
law is founded. Direct democracy, as embodied in the initiative
process, is but a culmination of the evolution over the centuries of
democratic rights of choice and self-governance. The
reemergence of the Athenian democratic ideal after centuries of
tyrannical rules arrived very slowly, the benefits parceled out at
first only to favored classes. The Magna Carta granted limited
English nobles; the American Constitution was originally intended
to give a meaningful voice only to free men, mostly Caucasian,
who met the property-holding requirements set by the states for
voting. Yet even the very idea of popular voting, limited as it may
have already been within the first few years of the American
Union, met resistance from no less a revered figure as Alexander
Hamilton, to whom the progressive historian Howard Zinn
attributes these disconcerting words: 
The voice of the people has been said to be the voice of
God; and however generally this maxim has been quoted
and believed, it is not true in fact. The people are
turbulent and changing; they seldom judge or determine
right. Give therefore to the first class a distinct permanent
share in the government… Can a democratic assembly
who annually revolve in the mass of the people be
supposed steadily to pursue the public good? Nothing but
a permanent body can check the imprudence of
democracy…33
This utterly paternalistic and bigoted view has not survived into
the present age of modern democracy where a person's poverty,
color, or gender no longer impedes the exercise of full democratic
rights. Yet a democracy that merely guarantees its citizens the ORGANIZATION (PTGWO) and VICTORINO F. BALAIS,
right to live their lives freely is incomplete if there is no Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S.
corresponding allowance for a means by which the people have a MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III,
direct choice in determining their country's direction. Initiative as a BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P.
mode of amending a constitution may seem incompatible with MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY.
representative democracy, yet it embodies an even purer form of PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG
democracy. Initiative, which our 1987 Constitution saw fit to grant MAYO UNO, HEAD, ECUMENICAL BISHOPS FORUM,
to the people, is a progressive measure that is but a continuation MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY,
of the line of evolution of the democratic ideal.  ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO
SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR.
By allowing the sovereign people to directly propose and enact REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO
constitutional amendments, the initiative process should be JOYO AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL,
acknowledged as the purest implement of democratic rule under LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION
law. This right granted to over sixty million Filipinos cannot be ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA,
denied by the votes of less than eight magistrates for reasons TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M.
that bear no cogitation on the Constitution.  BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P.
AGUAS, and AMADO GAT INCIONG, SENATE MINORITY
I VOTE to GRANT the petitions.  LEADER AQUILINO P. PIMENTEL, JR., and SENATORS
SERGIO R. OSMEÑA III, JAMBY A.S. MADRIGAL, LUISA P.
EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM
DANTE O. TINGA and PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA
Associate Justice and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF
THE PHILIPPINES CEBU CITY CHAPTER and CEBU
CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR,
____________________ MA. TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and
RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES,
EN BANC Represented by its President, MANUEL VILLAR,
JR.,Oppositors-Intervenors; 
G. R. No. 174153
G.R. No. 174299
RAUL LAMBINO and ERICO B. AUMENTADO together with
6,327,952 REGISTERED VOTERS, Petitioners  MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and
vs. RENE A. Q. SAGUISAG, Petitioners 
THE COMMISSION ON ELECTIONS, Respondent;  vs.
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), COMMISSION ON ELECTIONS, Represented by Chairman
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BENJAMIN S. ABALOS, SR., and Commissioners
BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC., RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR.,
PHILIPPINE TRANSPORT AND GENERAL WORKERS
ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe
and Peter Doe, Respondents.
x If the Constitution is the expression of the will of the sovereign
---------------------------------------------------------------------------------------
-x
DISSENTING OPINION
CHICO-NAZARIO, J.:
"The people made the constitution, and the people can unmake
it. It is the creature of their will, and lives only by their will. But this
supreme and irresistible power to make or unmake, resides only
in the whole body of the people; not in any subdivision of them."
-- Marshall, C.J., Cohens v. Virginia (1821, US) 6 Wheat 264,
389, 5 L ed. 257, 287.
I express my concurrence in the discussions and conclusions
presented in the persuasive and erudite dissent of Justice
Reynato S. Puno. However, I make some additional observations
in connection with my concurrence. 
While it is but proper to accord great respect and reverence to the
Philippine Constitution of 1987 for being the supreme law of the
land, we should not lose sight of the truth that there is an ultimate
authority to which the Constitution is also subordinate – the will
of the people. No less than its very first paragraph, the
Preamble,1expressly recognizes that the Constitution came to be
because it was ordained and promulgated by the sovereign
Filipino people. It is a principle reiterated yet again in Article II,
Section 1, of the Constitution, which explicitly declares that "[t]he
Philippines is a democratic and republican State. Sovereignty
resides in the people and all government authority emanates from
them." Thus, the resolution of the issues and controversies raised
by the instant Petition should be guided accordingly by the
foregoing principle. 
people, then, in the event that the people change their will, so
must the Constitution be revised or amended to reflect such
change. Resultantly, the right to revise or amend the Constitution
inherently resides in the sovereign people whose will it is
supposed to express and embody. The Constitution itself, under
Article XVII, provides for the means by which the revision or
amendment of the Constitution may be proposed and ratified. 
Under Section 1 of the said Article, proposals to amend or revise
the Constitution may be made (a) by Congress, upon a vote of
three-fourths of all its Members, or (b) by constitutional
convention. The Congress and the constitutional convention
possess the power to propose amendments to, or revisions of,
the Constitution not simply because the Constitution so provides,
but because the sovereign people had chosen to delegate their
inherent right to make such proposals to their representatives
either through Congress or through a constitutional convention. 
On the other hand, the sovereign people, well-inspired and
greatly empowered by the People Power Revolution of 1986,
reserved to themselves the right to directly propose amendments
to the Constitution through initiative, to wit –
SEC. 2. Amendments to this Constitution may likewise be
directly proposed by the people through initiative upon a
petition of at least twelve per centum of the total number
of registered voters, of which every legislative district
must be represented by at least three per centum of the
registered voters therein. No amendment under this
section shall be authorized within five years following the
ratification of this Constitution nor oftener than once every
five years thereafter.
 The Congress shall provide for the implementation of the
exercise of this right.2
The afore-quoted section does not confer on the Filipino people
the right to amend the Constitution because, as previously
discussed, such right is inherent in them. The section only
reduces into writing this right to initiate amendments to the
Constitution where they collectively and willfully agreed in the
manner by which they shall exercise this right: (a) through the
filing of a petition; (b) supported by at least twelve percent (12%)
of the total number of registered voters nationwide; (c) with each
legislative district represented by at least three percent (3%) of
the registered voters therein; (d) subject to the limitation that no
such petition may be filed within five years after the ratification of
the Constitution, and not oftener than once every five years
thereafter; and (e) a delegation to Congress of the authority to
provide the formal requirements and other details for the
implementation of the right.
It is my earnest opinion that the right of the sovereign people to
directly propose amendments to the Constitution through initiative
is more superior than the power they delegated to Congress or to
a constitutional convention to amend or revise the Constitution.
The initiative process gives the sovereign people the voice to
express their collective will, and when the people speak, we must
be ready to listen. Article XVII, Section 2 of the Constitution
recognizes and guarantees the sovereign people's right to
initiative, rather than limits it. The enabling law which Congress
has been tasked to enact must give life to the said provision and
make the exercise of the right to initiative possible, not regulate,
limit, or restrict it in any way that would render the people's option
of resorting to initiative to amend the Constitution more stringent,
difficult, and less feasible, as compared to the other constitutional
means to amend or revise the Constitution. In fact, it is worth
recalling that under Article VI, Section 1 of the Constitution,
the legislative power of Congress is limited to the extent
reserved to the people by the provisions on initiative and
referendum. 
It is with this frame of mind that I review the issues raised in the
instant Petitions, and which has led me to the conclusions, in
support of the dissent of Justice Puno, that (a) The Commission
on Election (COMELEC) had indeed committed grave abuse of
discretion in summarily dismissing the petition for initiative to
amend the Constitution filed by herein petitioners Raul L.
Lambino and Erico B. Aumentado; (b) The Court should revisit
the pronouncements it made in Santiago v. Commission on
Elections;3 (c) It is the sovereign people's inherent right to
propose changes to the Constitution, regardless of whether they
constitute merely amendments or a total revision thereof; and (d)
The COMELEC should take cognizance of Lambino and
Aumentado's petition for initiative and, in the exercise of its
jurisdiction, determine the factual issues raised by the oppositors
before this Court.
I
The COMELEC had indeed committed grave abuse of discretion
when it summarily dismissed Lambino and Aumentado's petition
for initiative entirely on the basis of the Santiago case which,
allegedly, permanently enjoined it from entertaining or taking
cognizance of any petition for initiative to amend the Constitution
in the absence of a sufficient law. 
After a careful reading, however, of the Santiago case, I believe
in earnest that the permanent injunction actually issued by this
Court against the COMELEC pertains only to the petition for
initiative filed by Jesus S. Delfin, and not to all subsequent
petitions for initiative to amend the Constitution.
The Conclusion4 in the majority opinion in the Santiago case
reads –
CONCLUSION
This petition must then be granted, and the COMELEC
should be permanently enjoined from entertaining or
taking cognizance of any petition for initiative on
amendments to the Constitution until a sufficient law shall
have been validly enacted to provide for the
implementation of the system.
We feel, however, that the system of initiative to propose
amendments to the Constitution should no longer be kept
in the cold; it should be given flesh and blood, energy and
strength. Congress should not tarry any longer in
complying with the constitutional mandate to provide for
the implementation of the right of the people under that
system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the
system of initiative on amendments to the Constitution,
and to have failed to provide sufficient standard for
subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300
of the Commission on Elections prescribing rules and
regulations on the conduct of initiative or amendments to
the Constitution; and
d) ORDERING the Commission on Elections to forthwith
DISMISS the DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18
December 1996 is made permanent as against the
Commission on Elections, but is LIFTED as against
private respondents.
Resolution on the matter of contempt is hereby reserved.
It is clear from the fallo, as it is reproduced above, that the Court
made permanent the Temporary Restraining Order (TRO) it
issued on 18 December 1996 against the COMELEC. The said
TRO enjoined the COMELEC from proceeding with the Delfin
Petition, and Alberto and Carmen Pedrosa from conducting a
signature drive for people's initiative.5 It was this restraining order,
more particularly the portion thereof referring to the Delfin
Petition, which was expressly made permanent by the Court. It
would seem to me that the COMELEC and all other oppositors to
Lambino and Aumentado's petition for initiative gave unwarranted
significance and weight to the first paragraph of the Conclusion in
the Santiago case. The first and second paragraphs of the
Conclusion, preceding the dispositive portion, merely
express the opinion of the ponente; while the definite orders
of the Court for implementation are found in the dispositive
portion. 
We have previously held that –
The dispositive portion or the fallo is what actually
constitutes the resolution of the court and which is the
subject of execution, although the other parts of the
decision may be resorted to in order to determine the ratio
decidendi for such a resolution. Where there is conflict
between the dispositive part and the opinion of the court
contained in the text of the decision, the 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. Hence execution must
conform more particularly to that ordained or decreed in
the dispositive portion of the decision.6
Is there a conflict between the first paragraph of the Conclusion
and the dispositive portion of the Santiago case? Apparently,
there is. The first paragraph of the Conclusion states that the
COMELEC should be permanently enjoined from entertaining or
taking cognizance of any petition for initiative on amendments to The principal petitioner here is the PEOPLE'S INITIATIVE
the Constitution until the enactment of a valid law. On the other FOR REFORM, MODERNIZATION, AND ACTION
hand, the fallo only makes permanent the TRO7 against (PIRMA) and Spouses ALBERTO PEDROSA and
COMELEC enjoining it from proceeding with the Delfin Petition. CARMEN PEDROSA. PIRMA is self-described as "a non-
While the permanent injunction contemplated in the Conclusion stock, non-profit organization duly organized and existing
encompasses all petitions for initiative on amendments to the under Philippine laws with office address at Suite 403,
Constitution, the fallo is expressly limited to the Delfin Petition. To Fedman Suites, 199 Salcedo Street, Legaspi Village,
resolve the conflict, the final order of the Court as it is stated in Makati City," with "ALBERTO PEDROSA and CARMEN
the dispositive portion or the fallo should be controlling.  PEDROSA" as among its "officers." In Santiago, the
PEDROSAS were made respondents as founding
Neither can the COMELEC dismiss Lambino and Aumentado's members of PIRMA which, as alleged in the body of the
petition for initiative on the basis of this Court's Resolution, dated petition therein, "proposes to undertake the signature
23 September 1997, in the case of People's Initiative for Reform, drive for a people's initiative to amend the Constitution." In
Modernization and Action (PIRMA) v. The Commission on Santiago then, the PEDROSAS were sued in their
Elections, et al.8 The Court therein found that the COMELEC did capacity as founding members of PIRMA. 
not commit grave abuse of discretion in dismissing the PIRMA
Petition for initiative to amend the Constitution for it only complied The decision in Santiago specifically declared
with the Decision in the Santiago case.  that PIRMA was duly represented at the hearing of the
Delfin petition in the COMELEC. In short, PIRMA was
It is only proper that the Santiago case should also bar the intervenor-petitioner therein. Delfin alleged in his petition
PIRMA Petition on the basis of res judicata because PIRMA that he was a founding member of the Movement for
participated in the proceedings of the said case, and had People's Initiative, and under footnote no. 6 of the
knowledge of and, thus, must be bound by the judgment of the decision, it was noted that said movement was "[l]ater
Court therein. As explained by former Chief Justice Hilario G. identified as the People's Initiative for Reforms,
Davide, Jr. in his separate opinion to the Resolution in the PIRMA Modernization and Action, or PIRMA for brevity." In their
case – Comment to the petition in Santiago, the PEDROSA'S did
not deny that they were founding members of PIRMA, and
First, it is barred by res judicata. No one aware of the by their arguments, demonstrated beyond a shadow of a
pleadings filed here and in Santiago v. COMELEC (G.R. doubt that they had joined Delfin or his cause.
No. 127325, 19 March 1997) may plead ignorance of the
fact that the former is substantially identical to the latter, No amount of semantics may then shield herein
except for the reversal of the roles played by the principal petitioners PIRMA and the PEDROSAS, as well as the
parties and inclusion of additional, yet not indispensable, others joining them, from the operation of the principle
parties in the present petition. But plainly, the same of res judicata, which needs no further elaboration.9
issues and reliefs are raised and prayed for in both
cases.  While the Santiago case bars the PIRMA case because of res
judicata, the same cannot be said to the Petition at bar. Res
judicata is an absolute bar to a subsequent action for the same
cause; and its requisites are: (a) the former judgment or order
must be final; (b) the judgment or order must be one on the
merits; (c) it must have been rendered by a court having
jurisdiction over the subject matter and parties; and (d) there must
be between the first and second actions, identity of parties, of
subject matter and of causes of action.10
Even though it is conceded that the first three requisites are
present herein, the last has not been complied with. Undoubtedly,
the Santiago case and the present Petition involve different
parties, subject matter, and causes of action, and the former
should not bar the latter.  haste by which the instant Petition was struck down is
In the Santiago case, the petition for initiative to amend the
Constitution was filed by Delfin alone. His petition does not qualify
as the initiatory pleading over which the COMELEC can acquire
jurisdiction, being unsupported by the required number of
registered voters, and actually imposing upon the COMELEC the
task of gathering the voters' signatures. In the case before us, the
petition for initiative to amend the Constitution was filed by
Lambino and Aumentado, on behalf of the 6.3 million registered
voters who affixed their signatures on the signature sheets
attached thereto. Their petition prays that the COMELEC issue an
Order –
1. Finding the petition to be sufficient pursuant to Section
4, Article XVII of the 1987 Constitution;
2. Directing the publication of the petition in Filipino and
English at least twice in newspapers of general and local
circulation; and
3. Calling a plebiscite to be held not earlier than sixty nor
later than ninety days after the Certification by the
COMELEC of the sufficiency of the petition, to allow the
Filipino people to express their sovereign will on the
proposition.
Although both cases involve the right of the people to initiate
amendments to the Constitution, the personalities concerned and
the other factual circumstances attendant in the two cases differ.
Also dissimilar are the particular prayer and reliefs sought by the
parties from the COMELEC, as well as from this Court. For these
reasons, I find that the COMELEC acted with grave abuse of
discretion when it summarily dismissed the petition for initiative
filed by Lambino and Aumentado. It behooves the COMELEC to
accord due course to a petition which on its face complies with
the rudiments of the law. COMELEC was openly negligent in
summarily dismissing the Lambino and Aumentado petition. The
characteristic of bad faith, which, to my mind, is a patent and
gross evasion of COMELEC's positive duty. It has so obviously
copped out of its duty and responsibility to determine the
sufficiency thereof and sought protection and justification for its
craven decision in the supposed permanent injunction issued
against it by the Court in the Santiago case. The COMELEC had
seemingly expanded the scope and application of the said
permanent injunction, reading into it more than what it actually
states, which is surprising, considering that the Chairman and
majority of the members of COMELEC are lawyers who should
be able to understand and appreciate, more than a lay person,
the legal consequences and intricacies of the pronouncements
made by the Court in the Santiago case and the permanent
injunction issued therein. 
No less than the Constitution itself, under the second paragraph
of Article XVII, Section 4, imposes upon the COMELEC the
mandate to set a date for plebiscite after a positive determination
of the sufficiency of a petition for initiative on amendments to the
Constitution, viz –
SEC. 4. x x x
Any amendment under Section 2 hereof shall be valid
when ratified by a majority of the votes cast in a plebiscite
which shall be held not earlier than sixty days nor later
 than ninety days after the certification by the Commission
on Elections of the sufficiency of the petition.
As a rule, the word "shall" commonly denotes an imperative
obligation and is inconsistent with the idea of discretion, and that
the presumption is that the word "shall" when used, is
mandatory.11 Under the above-quoted constitutional provision, it is
the mandatory or imperative obligation of the COMELEC to (a)
determine the sufficiency of the petition for initiative on
amendments to the Constitution and issue a certification on its
findings; and (b) in case such petition is found to be sufficient, to
set the date for the plebiscite on the proposed amendments not
earlier than 60 days nor later than 90 days after its certification.
The COMELEC should not be allowed to shun its constitutional
mandate under the second paragraph of Article XVII, Section 4,
through the summary dismissal of the petition for initiative filed by
Lambino and Aumentado, when such petition is supported by 6.3
million signatures of registered voters. Should all of these
signatures be authentic and representative of the required
percentages of registered voters for every legislative district and
the whole nation, then the initiative is a true and legitimate
expression of the will of the people to amend the Constitution,
and COMELEC had caused them grave injustice by silencing
their voice based on a patently inapplicable permanent
injunction.  concurred in by the other members of the Court.
II
We should likewise take the opportunity to revisit the
pronouncements made by the Court in its Decision in
the Santiago case, especially as regards the supposed
insufficiency or inadequacy of Republic Act No. 6735 as the
enabling law for the implementation of the people's right to
initiative on amendments to the Constitution.  constitutionality; one who attacks a statute, alleging
The declaration of the Court that Republic Act No. 6735 is
insufficient or inadequate actually gave rise to more questions
rather than answers, due to the fact that there has never been a
judicial precedent wherein the Court invalidated a law for
insufficiency or inadequacy. The confusion over such a
declaration thereby impelled former Chief Justice Davide, Jr.,
the ponente in the Santiago case, to provide the following
clarification in his separate opinion to the Resolution in
the PIRMA case, thus –
Simply put, Santiago did, in reality, declare as
unconstitutional that portion of R.A. No. 6735 relating to
Constitutional initiatives for failure to comply with the
"completeness and sufficient standard tests" with respect
to permissible delegation of legislative power or
subordinate legislation. However petitioners attempt to
twist the language in Santiago, the conclusion is
inevitable; the portion of R.A. No. 6735 was held to be
unconstitutional.
It is important to note, however, that while the Decision in
the Santiago case pronounced repeatedly that Republic Act No.
6735 was insufficient and inadequate, there is no categorical
declaration therein that the said statute was unconstitutional. The
express finding that Republic Act No. 6735 is unconstitutional can
only be found in the separate opinion of former Chief Justice
Davide to the Resolution in the PIRMA case, which was not
 
Even assuming arguendo that the declaration in the Santiago
case, that Republic Act No. 6735 is insufficient and inadequate, is
already tantamount to a declaration that the statute is
unconstitutional, it was rendered in violation of established rules
in statutory construction, which state that –
[A]ll presumptions are indulged in favor of
unconstitutionality must prove its invalidity beyond a
reasonable doubt (Victoriano v. Elizalde Rope Workers'
Union, 59 SCRA 54 [19741). In fact, this Court does not
decide questions of a constitutional nature unless that
 question is properly raised and presented in appropriate
cases and is necessary to a determination of the case,
i.e., the issue of constitutionality must be lis mota
presented (Tropical Homes v. National Housing Authority,
152 SCRA 540 [1987]).
First, the Court, in the Santiago case, could have very well
avoided the issue of constitutionality of Republic Act No. 6735 by
ordering the COMELEC to dismiss the Delfin petition for the
simple reason that it does not constitute an initiatory pleading
over which the COMELEC could acquire jurisdiction. And second,
the unconstitutionality of Republic Act No. 6735 has not been
adequately shown. It was by and large merely inferred or
deduced from the way Republic Act No. 6735 was worded and
the provisions thereof arranged and organized by Congress. The
dissenting opinions rendered by several Justices in the Santiago
case reveal the other side to the argument, adopting the more
liberal interpretation that would allow the Court to sustain the
constitutionality of Republic Act No. 6735. It would seem that the
majority in the Santiago case failed to heed the rule that all
presumptions should be resolved in favor of the constitutionality
of the statute. 
The Court, acting en banc on the Petition at bar, can revisit its
Decision in the Santiago case and again open to judicial review
the constitutionality of Republic Act No. 6735; in which case, I
shall cast my vote in favor of its constitutionality, having satisfied
the completeness and sufficiency of standards tests for the valid
delegation of legislative power. I fully agree in the conclusion
made by Justice Puno on this matter in his dissenting opinion12 in
the Santiago case, that reads –
R.A. No. 6735 sufficiently states the policy and the
standards to guide the COMELEC in promulgating the
law's implementing rules and regulations of the law. As
aforestated, Section 2 spells out the policy of the law; viz:
"The power of the people under a system of initiative and
referendum to directly propose, enact, approve or reject,
in whole or in part, the Constitution, laws, ordinances, or
resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby
affirmed, recognized and guaranteed." Spread out all over
R.A. No. 6735 are the standards to canalize the
delegated power to the COMELEC to promulgate rules
and regulations from overflowing. Thus, the law states the
number of signatures necessary to start a people's
initiative, directs how initiative proceeding is commenced,
what the COMELEC should do upon filing of the petition
for initiative, how a proposition is approved, when a
plebiscite may be held, when the amendment takes effect,
and what matters may not be the subject of any initiative.
By any measure, these standards are adequate.
III
The dissent of Justice Puno has already a well-presented
discourse on the difference between an "amendment" and a
"revision" of the Constitution. Allow me also to articulate my
additional thoughts on the matter.
Oppositors to Lambino and Aumentado's petition for initiative
argue that the proposed changes therein to the provisions of the
Constitution already amount to a revision thereof, which is not
allowed to be done through people's initiative; Article XVII,
Section 2 of the Constitution on people's initiative refers only to
proposals for amendments to the Constitution. They assert the
traditional distinction between an amendment and a revision, with
amendment referring to isolated or piecemeal change only, while
revision as a revamp or rewriting of the whole instrument.13
However, as pointed out by Justice Puno in his dissent, there is
no quantitative or qualitative test that can establish with
definiteness the distinction between an amendment and a
revision, or between a substantial and simple change of the
Constitution. 
The changes proposed to the Constitution by Lambino and
Aumentado's petition for initiative basically affect only Article VI
on the Legislative Department and Article VII on the Executive
Department. While the proposed changes will drastically alter the
constitution of our government by vesting both legislative and
executive powers in a unicameral Parliament, with the President
as the Head of State and the Prime Minister exercising the
executive power; they would not essentially affect the other 16
Articles of the Constitution. The 100 or so changes counted by
the oppositors to the other provisions of the Constitution are
constituted mostly of the nominal substitution of one word for the
other, such as Parliament for Congress, or Prime Minister for
President. As eloquently pointed out in the dissent of Justice
Puno, the changes proposed to transform our form of government
from bicameral-presidential to unicameral-parliamentary, would
not affect the fundamental nature of our state as a democratic
and republican state. It will still be a representative government
where officials continue to be accountable to the people and the
people maintain control over the government through the election
of members of the Parliament. 
Furthermore, should the people themselves wish to change a
substantial portion or even the whole of the Constitution, what or
who is to stop them? Article XVII, Section 2 of the Constitution
which, by the way it is worded, refers only to their right to initiative
on amendments of the Constitution? The delegates to the
Constitutional Convention who, according to their deliberations,
purposely limited Article XVII, Section 2 of the Constitution to
amendments? This Court which has the jurisdiction to interpret
the provision? Bearing in mind my earlier declaration that the will
of the sovereign people is supreme, there is nothing or no one
that can preclude them from initiating changes to the Constitution
if they choose to do so. To reiterate, the Constitution is supposed
to be the expression and embodiment of the people's will, and
should the people's will clamor for a revision of the Constitution, it
is their will which should prevail. Even the fact that the people
ratified the 1987 Constitution, including Article XVII, Section 2
thereof, as it is worded, should not prevent the exercise by the
sovereign people of their inherent right to change the
Constitution, even if such change would be tantamount to a
substantial amendment or revision thereof, for their actual
exercise of the said right should be a clear renunciation of the
limitation which the said provision imposes upon it. It is the
inherent right of the people as sovereign to change the
Constitution, regardless of the extent thereof.
IV
Lastly, I fail to see the injustice in allowing the COMELEC to give
due course to and take cognizance of Lambino and Aumentado's
petition for initiative to amend the Constitution. I reiterate that it
would be a greater evil if one such petition which is ostensibly
supported by the required number of registered voters all over the
country, be summarily dismissed. 
Giving due course and taking cognizance of the petition would not
necessarily mean that the same would be found sufficient and set
for plebiscite. The COMELEC still faces the task of reviewing the
petition to determine whether it complies with the requirements
for a valid exercise of the right to initiative. Questions raised by
the oppositors to the petition, such as those on the authenticity of
the registered voters' signatures or compliance with the requisite
number of registered voters for every legislative district, are
already factual in nature and require the reception and evaluation
of evidence of the parties. Such questions are best presented and
resolved before the COMELEC since this Court is not a trier of
facts.
In view of the foregoing, I am of the position that the Resolution of
the COMELEC dated 31 August 2006 denying due course to the
Petition for Initiative filed by Lambino and Aumentado be
reversed and set aside for having been issued in grave abuse of
discretion, amounting to lack of jurisdiction, and that the Petition
be remanded to the COMELEC for further proceedings.
In short, I vote to GRANT the petition for Initiative of Lambino and The fate of every democracy, of every
Aumentado. government based on the Sovereignty of
the people, depends on the choices it
makes between these opposite principles:
MINITA V. CHICO-NAZARIO absolute power on the one hand, and on
Associate Justice the other the restraints of legality and the
authority of tradition.
—John Acton
____________________
In this thorny matter of the people's initiative, I concur with the
EN BANC
erudite and highly persuasive opinion of Justice Reynato S. Puno
upholding the people's initiative and raise some points of my
G.R. No. 174153             October 25, 2006 own. 

RAUL L. LAMBINO and ERICO B. AUMENTADO, together
with 6,327,952 REGISTERED VOTERS, petitioners, vs. The
COMMISSION ON ELECTIONS, respondent.
G.R. No. 174299             October 25, 2006
The issue of the people's power to propose amendments to the
Constitution was once discussed in the landmark case
of Santiago v. COMELEC.1 Almost a decade later, the issue is
once again before the Court, and I firmly believe it is time to
reevaluate the pronouncements made in that case.

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and The issue of Charter Change is one that has sharply divided the
RENE A. Q. SAGUISAG, petitioners vs. COMMISSION ON nation, and its proponents and opponents will understandably
ELECTIONS, Represented by Chairman BENJAMIN S. take all measures to advance their position and defeat that of
ABALOS, JR., and Commissioners RESURRECCION Z. their opponents. The wisdom or folly of Charter Change does not
BORRA, FLORENTINO A. TUASON, JR., ROMEO A. concern the Court. The only thing that the Court must review is
BRAWNER, RENE V. SARMIENTO, and John Doe and Peter the validity of the present step taken by the proponents of Charter
Doe, respondents. Change, which is the People's Initiative, as set down in Article
XVII, Sec. 2 of the 1987 Constitution:
x
--------------------------------------------------------------------------------------- Amendments to this Constitution may likewise be directly
-x proposed by the people through initiative upon a petition
of at least twelve per centum of the total number of
SEPARATE OPINION registered voters, of which every legislative district must
be represented by at least three per centum of the
VELASCO, JR., J.: registered voters therein. No amendment under this
section shall be authorized within five years following the
Introduction ratification of this Constitution nor oftener than once every
five years thereafter.
 The Congress shall provide for the implementation of the
exercise of this right.
In the Santiago case, the Court discussed whether the second
paragraph of that section had been fulfilled. It determined that
Congress had not provided for the implementation of the exercise
of the people's initiative, when it held that Republic Act No. 6735,
or "The Initiative and Referendum Act," was "inadequate to cover
the system of initiative on amendments to the Constitution, and to
have failed to provide sufficient standard for subordinate
legislation."2
With all due respect to those Justices who made that declaration,
I must disagree.
Republic Act No. 6735 is the proper law for proposing
constitutional amendments and it should not have been
considered inadequate. 
The decision in Santiago focused on what it perceived to be fatal
flaws in the drafting of the law, in the failings of the way the law
was structured, to come to the conclusion that the law was
inadequate. The Court itself recognized the legislators' intent, but
disregarded this intent. The law was found wanting. The Court
then saw the inclusion of the Constitution in RA 6735 as an
afterthought. However, it was included, and it should not be
excluded by the Court via a strained analysis of the law. The
difficult construction of the law should not serve to frustrate the
intent of the framers of the 1987 Constitution: to give the people
the power to propose amendments as they saw fit. It is a basic
precept in statutory construction that the intent of the legislature is
the controlling factor in the interpretation of a statute.3 The intent
of the legislature was clear, and yet RA 6735 was declared
inadequate. It was not specifically struck down or declared
unconstitutional, merely incomplete. The Court focused on what
RA 6735 was not, and lost sight of what RA 6735 was.
It is my view that the reading of RA 6735 in Santiago should have
been more flexible. It is also a basic precept of statutory
construction that statutes should be construed not so much
according to the letter that killeth but in line with the purpose for
which they have been enacted.4 The reading of the law should not
have been with the view of its defeat, but with the goal of
upholding it, especially with its avowed noble purpose.
Congress has done its part in empowering the people themselves
to propose amendments to the Constitution, in accordance with
the Constitution itself. It should not be the Supreme Court that
stifles the people, and lets their cries for change go unheard,
especially when the Constitution itself grants them that power.
The court's ruling in the Santiago case does not bar the
present petition because the fallo in the Santiago case is
limited to the Delfin petition. 
The Santiago case involved a petition for prohibition filed by
Miriam Defensor-Santiago, et al., against the COMELEC, et al.,
which sought to prevent the COMELEC from entertaining the
"Petition to Amend the Constitution, to Lift Term Limits of Elective
Officials, by People's Initiative" filed by Atty. Jesus Delfin. In the
body of the judgment, the Court made the following conclusion,
viz: 
This petition must then be granted and the COMELEC
should be permanently enjoined from entertaining or
taking cognizance of any petition or initiative on
amendments on the Constitution until a sufficient law shall
have been validly enacted to provide for the
implementation of the system (emphasis supplied).
We feel, however, that the system of initiative to propose
amendments to the Constitution should no longer be kept
in the cold; it should be given flesh and blood, energy and
strength. Congress should not tarry any longer in
 complying with the constitutional mandate to provide for
the implementation of the right of the people under that
system.  execution. The other parts of the decision may be resorted to in
In the said case, the Court's fallo states as follows:  there is conflict between the dispositive part and the opinion
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R. A. 6735 inadequate to cover the
system of initiative on amendments to the Constitution,
and to have failed to provide sufficient standard for
subordinate legislation;
c) DECLARING void those parts of Resolutions No. 2300
of the Commission on Elections prescribing rules and
regulations on the conduct of initiative or amendments to
the Constitution; and
d) ORDERING the Commission on Elections to forthwith
DISMISS the DELFIN petition (UND-96-037).
The Temporary Restraining Order issued on 18
December 1996 is made permanent as against the
Commission on Elections, but is LIFTED against private
respondents. 
Resolution on the matter of contempt is hereby reserved.  immediately becomes apparent that the disposition in the latter
SO ORDERED.  Temporary Restraining Order issued against the COMELEC in
The question now is if the ruling in Santiago is decisive in this
case. It is elementary that when there is conflict between the
dispositive portion or fallo of the decision and the opinion of the
court contained in the text or body of the judgment, the former
prevails over the latter. An order of execution is based on the
disposition, not on the body, of the decision.5 The dispositive
portion is its decisive resolution; thus, it is the subject of
order to determine the ratio decidendi for the disposition. Where
of the court contained in the text or body of the decision, the
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. Hence, the execution
must conform with that which is ordained or decreed in the
dispositive portion of the decision.6
A judgment must be distinguished from an opinion. The latter is
an informal expression of the views of the court and cannot
prevail against its final order or decision. While the two may be
combined in one instrument, the opinion forms no part of the
judgment. So there is a distinction between the findings and
conclusions of a court and its Judgment. While they may
constitute its decision and amount to the rendition of a judgment,
they are not the judgment itself. It is not infrequent that the
grounds of a decision fail to reflect the exact views of the court,
especially those of concurring justices in a collegiate court. We
often encounter in judicial decisions lapses, findings, loose
statements and generalities which do not bear on the issues or
are apparently opposed to the otherwise sound and considered
result reached by the court as expressed in the dispositive part,
so called, of the decision.7
Applying the foregoing argument to the Santiago case, it
case categorically made permanent the December 18, 1996
the Delfin petition but did NOT formally incorporate therein any
directive PERMANENTLY enjoining the COMELEC "from
entertaining or taking cognizance of any petition for initiative on
amendments." Undeniably, the perpetual proscription against the
COMELEC from assuming jurisdiction over any other petition on
Charter Change through a People's Initiative is just a conclusion
and cannot bind the poll body, for such unending ban would
trench on its constitutional power to enforce and administer all
laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum and recall under Section
2, Article IX of the Constitution. RA 6735 gave the COMELEC the
jurisdiction to determine the sufficiency of the petition on the
initiative under Section 8, Rule 11 and the form of the petition
under Section 3, Rule I; hence, it cannot be barred from
entertaining any such petition.  the resolution in the PIRMA case cannot be considered res
In sum, the COMELEC still retains its jurisdiction to take
cognizance of any petition on initiative under RA 6735 and it can
rule on the petition and its action can only be passed upon by the
Court when the same is elevated through a petition for certiorari.
COMELEC cannot be barred from acting on said petitions since
jurisdiction is conferred by law (RA 6735) and said law has not
been declared unconstitutional and hence still valid though
considered inadequate in the Santiago case.
Respondents, however, claim that the Court in the subsequent
case of PIRMA v. Commission on Elections8confirmed the
statement of the Court in the Santiago case that the COMELEC
was "permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments." Much
reliance is placed on the ruling contained in a Minute Resolution
which reads:
The Court ruled, first, by a unanimous vote, that no grave
abuse of Discretion could be attributed to the public
respondent COMELEC in Dismissing the petition filed by
PIRMA therein, it appearing that it only Complied with the
DISPOSITIONS in the Decision of this Court in G.R. No.
127325, promulgated on March 19, 1997, and its
Resolution of June 10, 1997.
Take note that the Court specifically referred to "dispositions" in
the March 19, 1997 Decision. To reiterate, the dispositions in the
Santiago case decision refer specifically to the December 18,
1996 TRO being made permanent against the COMELEC but do
not pertain to a permanent injunction against any other petition for
initiative on amendment. Thus, what was confirmed or even
affirmed in the Minute Resolution in the PIRMA case pertains
solely to the December 18, 1996 TRO which became permanent,
the declaration of the inadequacy of RA 6735, and the annulment
of certain parts of Resolution No. 2300 but certainly not the
alleged perpetual injunction against the initiative petition. Thus,
judicata to the Lambino petition. 
Amendment or Revision
One last matter to be considered is whether the petition may be
allowed under RA 6735, since only amendments to the
Constitution may be the subject of a people's initiative. 
The Lambino petition cannot be considered an act of revising the
Constitution; it is merely an attempt to amend it. The term
amendment has to be liberally construed so as to effectuate the
people's efforts to amend the Constitution.
As an eminent constitutionalist, Dean Vicente G.
Sinco,9 explained: 
Strictly speaking, the act of revising a constitution involves
alterations of different portions of the entire document. It
may result in the rewriting either of the whole constitution,
or the greater portion of it, or perhaps only some of its
important provisions. But whatever results the revision
may produce, the factor that characterizes it as an act of
revision is the original intention and plan authorized to be
carried out. That intention and plan must contemplate a
consideration of all the provisions of the constitution to
determine which one should be altered or suppressed or
whether the whole document should be replaced with an
entirely new one.
 The act of amending a constitution, on the other hand,
envisages a change of only a few specific provisions. The
intention of an act to amend is not to consider the
advisability of changing the entire constitution or of
considering that possibility. The intention rather is to
improve specific parts of the existing constitution or to add
to it provisions deemed essential on account of changed
conditions or to suppress portions of it that seem
obsolete, or dangerous, or misleading in their effect.
It is time to let the people's voice be heard once again as it was
twenty years ago. And should this voice demand a change in the
Constitution, the Supreme Court should not be one to stand in its
way.
PRESBITERO J. VELASCO, JR.
Associate Justice

In this case, the Lambino petition is not concerned with rewriting

the entire Constitution. It was never its intention to revise the
whole Constitution. It merely concerns itself with amending a few
provisions in our fundamental charter. 

When there are gray areas in legislation, especially in matters

that pertain to the sovereign people's political rights, courts must
lean more towards a more liberal interpretation favoring the
people's right to exercise their sovereign power.

Conclusion

Sovereignty residing in the people is the highest form of

sovereignty and thus deserves the highest respect even from the
courts. It is not something that can be overruled, set aside,
ignored or stomped over by whatever amount of technicalities,
blurred or vague provisions of the law. 

As I find RA 6735 to be adequate as the implementing law for the

People's Initiative, I vote to grant the petition in G.R. No. 174153
and dismiss the petition in G.R. No. 174299. The Amended
Petition for Initiative filed by petitioners Raul L. Lambino and Erico
B. Aumentado should be remanded to the COMELEC for
determination whether or not the petition is sufficient under RA
6735, and if the petition is sufficient, to schedule and hold the
necessary plebiscite as required by RA 6735.
 of 93.3 million – adhering to the teachings of Jesus Christ.1 Yet,
the admonition for husbands to love their wives as their own
bodies just as Christ loved the church and gave himself up for
her2 failed to prevent, or even to curb, the pervasiveness of
violence against Filipino women. The National Commission on
the Role of Filipino Women (NCRFW) reported that, for the years
2000-2003, "female violence comprised more than 90o/o of all
forms of abuse and violence and more than 90% of these
reported cases were committed by the women's intimate partners
such as their husbands and live-in partners."3

Thus, on March 8, 2004, after nine (9) years of spirited advocacy

by women's groups, Congress enacted Republic Act (R.A.) No.
9262, entitled "An Act Defining Violence Against Women and
Their Children, Providing for Protective Measures for Victims,
Prescribing Penalties Therefor, and for Other Purposes." It took
Republic of the Philippines
effect on March 27, 2004.4
SUPREME COURT
Manila
R.A. 9262 is a landmark legislation that defines and criminalizes
acts of violence against women and their children (VAWC)
EN BANC
perpetrated by women's intimate partners, i.e, husband; former
husband; or any person who has or had a sexual or dating
G.R. No. 179267               June 25, 2013 relationship, or with whom the woman has a common child.5 The
law provides for protection orders from the barangay and the
JESUS C. GARCIA, Petitioner,  courts to prevent the commission of further acts of VAWC; and
vs. outlines the duties and responsibilities of barangay officials, law
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, enforcers, prosecutors and court personnel, social workers,
Regional Trial Court-Branch 41, Bacolod City, and ROSALIE health care providers, and other local government officials in
JAYPE-GARCIA, for herself and in behalf of minor children, responding to complaints of VAWC or requests for assistance.
namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all
surnamed GARCIA, Respondents. A husband is now before the Court assailing the constitutionality
of R.A. 9262 as being violative of the equal protection and due
DECISION process clauses, and an undue delegation of judicial power to
barangay officials.
PERLAS-BERNABE, J.:
The Factual Antecedents
Hailed as the bastion of Christianity in Asia, the Philippines
boasts of 86.8 million Filipinos- or 93 percent of a total population
On March 23, 2006, Rosalie Jaype-Garcia (private respondent)
filed, for herself and in behalf of her minor children, a verified
petition6 (Civil Case No. 06-797) before the Regional Trial Court
(RTC) of Bacolod City for the issuance of a Temporary Protection
Order (TPO) against her husband, Jesus C. Garcia (petitioner),
pursuant to R.A. 9262. She claimed to be a victim of physical
abuse; emotional, psychological, and economic violence as a
result of marital infidelity on the part of petitioner, with threats of
deprivation of custody of her children and of financial support.7
Private respondent's claims
Private respondent married petitioner in 2002 when she was 34
years old and the former was eleven years her senior. They have
three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is
the natural child of petitioner but whom private respondent
adopted; Jessie Anthone J. Garcia, 6 years old; and Joseph
Eduard J. Garcia, 3 years old.8
Private respondent described herself as a dutiful and faithful wife,
whose life revolved around her husband. On the other hand,
petitioner, who is of Filipino-Chinese descent, is dominant,
controlling, and demands absolute obedience from his wife and
children. He forbade private respondent to pray, and deliberately
isolated her from her friends. When she took up law, and even
when she was already working part time at a law office, petitioner
trivialized her ambitions and prevailed upon her to just stay at
home. He was often jealous of the fact that his attractive wife still
catches the eye of some men, at one point threatening that he
would have any man eyeing her killed.9
Things turned for the worse when petitioner took up an affair with
a bank manager of Robinson's Bank, Bacolod City, who is the
godmother of one of their sons. Petitioner admitted to the affair
when private respondent confronted him about it in 2004. He
even boasted to the household help about his sexual relations
with said bank manager. Petitioner told private respondent,
though, that he was just using the woman because of their
accounts with the bank.10
Petitioner's infidelity spawned a series of fights that left private
respondent physically and emotionally wounded. In one of their
quarrels, petitioner grabbed private respondent on both arms and
shook her with such force that caused bruises and hematoma. At
another time, petitioner hit private respondent forcefully on the
lips that caused some bleeding. Petitioner sometimes turned his
ire on their daughter, Jo-Ann, who had seen the text messages
he sent to his paramour and whom he blamed for squealing on
him. He beat Jo-Ann on the chest and slapped her many times.
When private respondent decided to leave petitioner, Jo-Ann
begged her mother to stay for fear that if the latter leaves,
petitioner would beat her up. Even the small boys are aware of
private respondent's sufferings. Their 6-year-old son said that
when he grows up, he would beat up his father because of his
cruelty to private respondent.11
All the emotional and psychological turmoil drove private
respondent to the brink of despair. On December 17, 2005, while
at home, she attempted suicide by cutting her wrist. She was
found by her son bleeding on the floor. Petitioner simply fled the
house instead of taking her to the hospital. Private respondent
was hospitalized for about seven (7) days in which time petitioner
never bothered to visit, nor apologized or showed pity on her.
Since then, private respondent has been undergoing therapy
almost every week and is taking anti-depressant medications.12
When private respondent informed the management of
Robinson's Bank that she intends to file charges against the bank
manager, petitioner got angry with her for jeopardizing the
manager's job. He then packed his things and told private
respondent that he was leaving her for good. He even told private
respondent's mother, who lives with them in the family home, that
private respondent should just accept his extramarital affair since
he is not cohabiting with his paramour and has not sired a child
with her.13
Private respondent is determined to separate from petitioner but
she is afraid that he would take her children from her and deprive
her of financial support. Petitioner had previously warned her that
if she goes on a legal battle with him, she would not get a single
centavo.14
Petitioner controls the family businesses involving mostly the
construction of deep wells. He is the President of three
corporations – 326 Realty Holdings, Inc., Negros Rotadrill
Corporation, and J-Bros Trading Corporation – of which he and
private respondent are both stockholders. In contrast to the
absolute control of petitioner over said corporations, private
respondent merely draws a monthly salary of ₱20,000.00 from
one corporation only, the Negros Rotadrill Corporation.
Household expenses amounting to not less than ₱200,000.00 a
month are paid for by private respondent through the use of credit
cards, which, in turn, are paid by the same corporation together
with the bills for utilities.15
On the other hand, petitioner receives a monthly salary of
₱60,000.00 from Negros Rotadrill Corporation, and enjoys
unlimited cash advances and other benefits in hundreds of
thousands of pesos from the corporations.16 After private
respondent confronted him about the affair, petitioner forbade her
to hold office at JBTC Building, Mandalagan, where all the
businesses of the corporations are conducted, thereby depriving
her of access to full information about said businesses. Until the
filing of the petition a quo, petitioner has not given private
respondent an accounting of the businesses the value of which
she had helped raise to millions of pesos.17
Action of the RTC of Bacolod City
Finding reasonable ground to believe that an imminent danger of
violence against the private respondent and her children exists or
is about to recur, the RTC issued a TPO18 on March 24, 2006
effective for thirty (30) days, which is quoted hereunder:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
a) Ordered to remove all his personal belongings from the
conjugal dwelling or family home within 24 hours from
receipt of the Temporary Restraining Order and if he
refuses, ordering that he be removed by police officers
from the conjugal dwelling; this order is enforceable
notwithstanding that the house is under the name of 236
Realty Holdings Inc. (Republic Act No. 9262 states
"regardless of ownership"), this is to allow the Petitioner
(private respondent herein) to enter the conjugal dwelling
without any danger from the Respondent.
After the Respondent leaves or is removed from the
conjugal dwelling, or anytime the Petitioner decides to
return to the conjugal dwelling to remove things, the
Petitioner shall be assisted by police officers when re-
entering the family home.
The Chief of Police shall also give the Petitioner police
assistance on Sunday, 26 March 2006 because of the
danger that the Respondent will attempt to take her
children from her when he arrives from Manila and finds
out about this suit.
b) To stay away from the petitioner and her children,
mother and all her household help and driver from a
distance of 1,000 meters, and shall not enter the gate of
the subdivision where the Petitioner may be temporarily
residing.
c) Not to harass, annoy, telephone, contact or otherwise
communicate with the Petitioner, directly or indirectly, or
through other persons, or contact directly or indirectly her
children, mother and household help, nor send gifts,
cards, flowers, letters and the like. Visitation rights to the
children may be subject of a modified TPO in the future.
d) To surrender all his firearms including a .9MM caliber
firearm and a Walther PPK and ordering the Philippine
National Police Firearms and Explosives Unit and the
Provincial Director of the PNP to cancel all the
Respondent's firearm licenses. He should also be ordered
to surrender any unlicensed firearms in his possession or
control.
e) To pay full financial support for the Petitioner and the
children, including rental of a house for them, and
educational and medical expenses.
f) Not to dissipate the conjugal business.
g) To render an accounting of all advances, benefits,
bonuses and other cash he received from all the
corporations from 1 January 2006 up to 31 March 2006,
which himself and as President of the corporations and
his Comptroller, must submit to the Court not later than 2
April 2006. Thereafter, an accounting of all these funds
shall be reported to the court by the Comptroller, copy
furnished to the Petitioner, every 15 days of the month,
under pain of Indirect Contempt of Court.
h) To ensure compliance especially with the order
granting support pendente lite, and considering the
financial resources of the Respondent and his threat that
if the Petitioner sues she will not get a single centavo, the
Respondent is ordered to put up a BOND TO KEEP THE
PEACE in the amount of FIVE MILLION PESOS, in two
sufficient sureties.
On April 24, 2006, upon motion19 of private respondent,
the trial court issued an amended TPO,20 effective for
thirty (30) days, which included the following additional
provisions:
i) The petitioners (private respondents herein) are given
the continued use of the Nissan Patrol and the Starex Van
which they are using in Negros Occidental.
j) The petitioners are given the continued use and
occupation of the house in Parañaque, the continued use
of the Starex van in Metro Manila, whenever they go to
Manila.
k) Respondent is ordered to immediately post a bond to
keep the peace, in two sufficient sureties.
l) To give monthly support to the petitioner provisionally
fixed in the sum of One Hundred Fifty Thousand Pesos
(Php 150,000.00) per month plus rental expenses of Fifty
Thousand Pesos (Php 50,000.00) per month until the
matter of support could be finally resolved.
Two days later, or on April 26, 2006, petitioner filed an Opposition
to the Urgent Ex-Parte Motion for Renewal of the TPO21 seeking
the denial of the renewal of the TPO on the grounds that it did not
(1) comply with the three-day notice rule, and (2) contain a notice
of hearing. He further asked that the TPO be modified by (1)
removing one vehicle used by private respondent and returning
the same to its rightful owner, the J-Bros Trading Corporation,
and (2) cancelling or reducing the amount of the bond from
₱5,000,000.00 to a more manageable level at ₱100,000.00.
Subsequently, on May 23, 2006, petitioner moved22 for the
modification of the TPO to allow him visitation rights to his
children.
On May 24, 2006, the TPO was renewed and extended yet again,
but subject only to the following modifications prayed for by
private respondent:
a) That respondent (petitioner herein) return the clothes
and other personal belongings of Rosalie and her children
to Judge Jesus Ramos, co-counsel for Petitioner, within
24 hours from receipt of the Temporary Protection Order
by his counsel, otherwise be declared in Indirect
Contempt of Court;
b) Respondent shall make an accounting or list of
furniture and equipment in the conjugal house in Pitimini
St., Capitolville Subdivision, Bacolod City within 24 hours
from receipt of the Temporary Protection Order by his
counsel;
c) Ordering the Chief of the Women's Desk of the Bacolod
City Police Headquarters to remove Respondent from the
conjugal dwelling within eight (8) hours from receipt of the
Temporary Protection Order by his counsel, and that he
cannot return until 48 hours after the petitioners have left,
so that the petitioner Rosalie and her representatives can
remove things from the conjugal home and make an
inventory of the household furniture, equipment and other
things in the conjugal home, which shall be submitted to
the Court.
d) Deliver full financial support of Php200,000.00 and
Php50,000.00 for rental and Php25,000.00 for clothes of
the three petitioners (sic) children within 24 hours from
receipt of the Temporary Protection Order by his counsel,
otherwise be declared in indirect contempt of Court;
e) That respondent surrender his two firearms and all
unlicensed firearms to the Clerk of Court within 24 hours
from receipt of the Temporary Protection Order by his
counsel;
f) That respondent shall pay petitioner educational
expenses of the children upon presentation of proof of
payment of such expenses.23
Claiming that petitioner continued to deprive them of financial
support; failed to faithfully comply with the TPO; and committed
new acts of harassment against her and their children, private
respondent filed another application24 for the issuance of a TPO
ex parte. She alleged inter
alia that petitioner contrived a replevin suit against himself by J-
Bros Trading, Inc., of which the latter was purportedly no longer
president, with the end in view of recovering the Nissan Patrol
and Starex Van used by private respondent and the children. A
writ of replevin was served upon private respondent by a group of
six or seven policemen with long firearms that scared the two
small boys, Jessie Anthone and Joseph Eduard.25
While Joseph Eduard, then three years old, was driven to school,
two men allegedly attempted to kidnap him, which incident
traumatized the boy resulting in his refusal to go back to school.
On another occasion, petitioner allegedly grabbed their daughter,
Jo-Ann, by the arm and threatened her.26 The incident was
reported to the police, and Jo-Ann subsequently filed a criminal
complaint against her father for violation of R.A. 7610, also known
as the "Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act."
Aside from the replevin suit, petitioner's lawyers initiated the filing
by the housemaids working at the conjugal home of a complaint
for kidnapping and illegal detention against private respondent.
This came about after private respondent, armed with a TPO,
went to said home to get her and her children's belongings.
Finding some of her things inside a housemaid's (Sheryl Jamola)
bag in the maids' room, private respondent filed a case for
qualified theft against Jamola.27
On August 23, 2006, the RTC issued a TPO,28 effective for thirty
(30) days, which reads as follows:
Respondent (petitioner herein), Jesus Chua Garcia, is hereby:
1) Prohibited from threatening to commit or committing,
personally or through another, acts of violence against the
offended party;
2) Prohibited from harassing, annoying, telephoning,
contacting or otherwise communicating in any form with
the offended party, either directly or indirectly;
3) Required to stay away, personally or through his
friends, relatives, employees or agents, from all the
Petitioners Rosalie J. Garcia and her children, Rosalie J.
Garcia's three brothers, her mother Primitiva Jaype, cook
Novelita Caranzo, driver Romeo Hontiveros,
laundrywoman Mercedita Bornales, security guard Darwin
Gayona and the petitioner's other household helpers from
a distance of 1,000 meters, and shall not enter the gate of
the subdivision where the Petitioners are temporarily
residing, as well as from the schools of the three children;
Furthermore, that respondent shall not contact the
schools of the children directly or indirectly in any manner
including, ostensibly to pay for their tuition or other fees
directly, otherwise he will have access to the children
through the schools and the TPO will be rendered
nugatory;
4) Directed to surrender all his firearms including .9MM
caliber firearm and a Walther PPK to the Court;
5) Directed to deliver in full financial support of
Php200,000.00 a month and Php50,000.00 for rental for
the period from August 6 to September 6, 2006; and
support in arrears from March 2006 to August 2006 the
total amount of Php1,312,000.00;
6) Directed to deliver educational expenses for 2006-2007
the amount of Php75,000.00 and Php25,000.00;
7) Directed to allow the continued use of a Nissan Patrol
with Plate No. FEW 508 and a Starex van with Plate No.
FFD 991 and should the respondent fail to deliver said
vehicles, respondent is ordered to provide the petitioner
another vehicle which is the one taken by J Bros Tading;
8) Ordered not to dissipate, encumber, alienate, sell,
lease or otherwise dispose of the conjugal assets, or
those real properties in the name of Jesus Chua Garcia
only and those in which the conjugal partnership of gains
of the Petitioner Rosalie J. Garcia and respondent have
an interest in, especially the conjugal home located in No.
14, Pitimini St., Capitolville Subdivision, Bacolod City, and
other properties which are conjugal assets or those in
which the conjugal partnership of gains of Petitioner
Rosalie J. Garcia and the respondent have an interest in
and listed in Annexes "I," "I-1," and "I-2," including
properties covered by TCT Nos. T-186325 and T-168814;
9) Ordered that the Register of Deeds of Bacolod City and
E.B. Magalona shall be served a copy of this
TEMPORARY PROTECTION ORDER and are ordered
not to allow the transfer, sale, encumbrance or disposition
of these above-cited properties to any person, entity or
corporation without the personal presence of petitioner
Rosalie J. Garcia, who shall affix her signature in the
presence of the Register of Deeds, due to the fear of
petitioner Rosalie that her signature will be forged in order
to effect the encumbrance or sale of these properties to
defraud her or the conjugal partnership of gains.
In its Order29 dated September 26, 2006, the trial court extended
the aforequoted TPO for another ten (10) days, and gave
petitioner a period of five (5) days within which to show cause
why the TPO should not be renewed, extended, or modified.
Upon petitioner's manifestation,30 however, that he has not
received a copy of private respondent's motion to modify/renew
the TPO, the trial court directed in its Order31 dated October 6,
2006 that petitioner be furnished a copy of said motion.
Nonetheless, an Order32 dated a day earlier, October 5, had
already been issued renewing the TPO dated August 23, 2006.
The pertinent portion is quoted hereunder:
xxxx
x x x it appearing further that the hearing could not yet be finally
terminated, the Temporary Protection Order issued on August 23,
2006 is hereby renewed and extended for thirty (30) days and
continuously extended and renewed for thirty (30) days, after
each expiration, until further orders, and subject to such
modifications as may be ordered by the court.
After having received a copy of the foregoing Order, petitioner no
longer submitted the required comment to private respondent's
motion for renewal of the TPO arguing that it would only be an
"exercise in futility."33
Proceedings before the CA
During the pendency of Civil Case No. 06-797, petitioner filed
before the Court of Appeals (CA) a petition34 for prohibition (CA-
G.R. CEB-SP. No. 01698), with prayer for injunction and
temporary restraining order, challenging (1) the constitutionality of
R.A. 9262 for being violative of the due process and the equal
protection clauses, and (2) the validity of the modified TPO issued
in the civil case for being "an unwanted product of an invalid law."
On May 26, 2006, the appellate court issued a 60-day Temporary
Restraining Order36 (TRO) against the enforcement of the TPO,
the amended TPOs and other orders pursuant thereto.
Subsequently, however, on January 24, 2007, the appellate court
dismissed36 the petition for failure of petitioner to raise the
constitutional issue in his pleadings before the trial court in the
civil case, which is clothed with jurisdiction to resolve the same.
Secondly, the challenge to the validity
of R.A. 9262 through a petition for prohibition seeking to annul the
protection orders issued by the trial court constituted a collateral
attack on said law.
His motion for reconsideration of the foregoing Decision having
been denied in the Resolution37 dated August 14, 2007, petitioner
is now before us alleging that –
The Issues
I.
THE COURT OF APPEALS ERRED IN DISMISSING THE
PETITION ON THE THEORY THAT THE ISSUE OF
CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST
OPPORTUNITY AND THAT, THE PETITION CONSTITUTES A
COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.
II.
THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN
FAILING TO CONCLUDE THAT R.A. 9262 IS
DISCRIMINATORY, UNJUST, AND VIOLATIVE OF THE EQUAL
PROTECTION CLAUSE.
III.
THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN
NOT FINDING THAT R.A. 9262 RUNS COUNTER TO THE DUE
PROCESS CLAUSE OF THE CONSTITUTION.
IV.
THE COURT OF APPEALS ERRED IN NOT FINDING THAT
THE LAW DOES VIOLENCE TO THE POLICY OF THE STATE
TO PROTECT THE FAMILY AS A BASIC SOCIAL
INSTITUTION.
V.
THE COURT OF APPEALS SERIOUSLY ERRED IN NOT
DECLARING R.A. No. 9262 AS INVALID AND
UNCONSTITUTIONAL BECAUSE IT ALLOWS AN UNDUE
DELEGATION OF JUDICIAL POWER TO THE BARANGAY
OFFICIALS.38
The Ruling of the Court
Before delving into the arguments propounded by petitioner
against the constitutionality of R.A. 9262, we shall first tackle the
propriety of the dismissal by the appellate court of the petition for
prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner.
As a general rule, the question of constitutionality must be raised
at the earliest opportunity so that if not raised in the pleadings,
ordinarily it may not be raised in the trial, and if not raised in the
trial court, it will not be considered on appeal.39 Courts will not
anticipate a question of constitutional law in advance of the
necessity of deciding it.40
In defending his failure to attack the constitutionality of R.A. 9262
before the RTC of Bacolod City, petitioner argues that the Family
Court has limited authority and jurisdiction that is "inadequate to
tackle the complex issue of constitutionality."41
We disagree.
Family Courts have authority and jurisdiction to consider the
constitutionality of a statute.
At the outset, it must be stressed that Family Courts are special
courts, of the same level as Regional Trial Courts. Under R.A.
8369, otherwise known as the "Family Courts Act of 1997," family
courts have exclusive original jurisdiction to hear and decide
cases of domestic violence against women and children.42 In
accordance with said law, the Supreme Court designated from
among the branches of the Regional Trial Courts at least one
Family Court in each of several key cities identified.43 To achieve
harmony with the first mentioned law, Section 7 of R.A. 9262 now
provides that Regional Trial Courts designated as Family Courts
shall have original and exclusive jurisdiction over cases of VAWC
defined under the latter law, viz:
SEC. 7. Venue. – The Regional Trial Court designated as a
Family Court shall have original and exclusive jurisdiction over
cases of violence against women and their children under this
law. In the absence of such court in the place where the offense
was committed, the case shall be filed in the Regional Trial Court
where the crime or any of its elements was committed at the
option of the complainant. (Emphasis supplied)
Inspite of its designation as a family court, the RTC of Bacolod
City remains possessed of authority as a court of general original
jurisdiction to pass upon all kinds of cases whether civil, criminal,
special proceedings, land registration, guardianship,
naturalization, admiralty or insolvency.44 It is settled that RTCs
have jurisdiction to resolve the constitutionality of a statute,45 "this
authority being embraced in the general definition of the judicial
power to determine what are the valid and binding laws by the
criterion of their conformity to the fundamental law."46The
Constitution vests the power of judicial review or the power to
declare the constitutionality or validity of a law, treaty,
international or executive agreement, presidential decree, order,
instruction, ordinance, or regulation not only in this Court, but in
all RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that,
"plainly the Constitution contemplates that the inferior courts
should have jurisdiction in cases involving constitutionality of any
treaty or law, for it speaks of appellate review of final judgments
of inferior courts in cases where such constitutionality happens to
be in issue." Section 5, Article VIII of the 1987 Constitution reads
in part as follows:
SEC. 5. The Supreme Court shall have the following powers:
xxx
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.
xxxx
Thus, contrary to the posturing of petitioner, the issue of
constitutionality of R.A. 9262 could have been raised at the
earliest opportunity in his Opposition to the petition for protection
order before the RTC of Bacolod City, which had jurisdiction to
determine the same, subject to the review of this Court.
Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence
Against Women and Their Children, lays down a new kind of
procedure requiring the respondent to file an opposition to the
petition and not an answer.49 Thus:
SEC. 20. Opposition to petition. – (a) The respondent may file an
opposition to the petition which he himself shall verify. It must be
accompanied by the affidavits of witnesses and shall show cause
why a temporary or permanent protection order should not be
issued.
(b) Respondent shall not include in the opposition any
counterclaim, cross-claim or third-party complaint, but any cause
of action which could be the subject thereof may be litigated in a
separate civil action. (Emphasis supplied)
We cannot subscribe to the theory espoused by petitioner that,
since a counterclaim, cross-claim and third-party complaint are to
be excluded from the opposition, the issue of constitutionality
cannot likewise be raised therein. A counterclaim is defined as
any claim for money or other relief which a defending party may
have against an opposing party.50 A cross-claim, on the other
hand, is any claim by one party against a co-party arising out of
the transaction or occurrence that is the subject matter either of
the original action or of a counterclaim therein.51Finally, a third-
party complaint is a claim that a defending party may, with leave
of court, file against a person not a party to the action for
contribution, indemnity, subrogation or any other relief, in respect
of his opponent's claim.52As pointed out by Justice Teresita J.
Leonardo-De Castro, the unconstitutionality of a statute is not a
cause of action that could be the subject of a counterclaim, cross-
claim or a third-party complaint. Therefore, it is not prohibited
from being raised in the opposition in view of the familiar maxim
expressio unius est exclusio alterius.
Moreover, it cannot be denied that this issue affects the resolution
of the case a quo because the right of private respondent to a
protection order is founded solely on the very statute the validity
of which is being attacked53 by petitioner who has sustained, or
will sustain, direct injury as a result of its enforcement. The
alleged unconstitutionality of R.A. 9262 is, for all intents and
purposes, a valid cause for the non-issuance of a protection
order.
That the proceedings in Civil Case No. 06-797 are summary in
nature should not have deterred petitioner from raising the same
in his Opposition. The question relative to the constitutionality of a
statute is one of law which does not need to be supported by
evidence.54 Be that as it may, Section 25 of A.M. No. 04-10-11-SC
nonetheless allows the conduct of a hearing to determine legal
issues, among others, viz:
SEC. 25. Order for further hearing. - In case the court determines
the need for further hearing, it may issue an order containing the
following:
(a) Facts undisputed and admitted;
(b) Factual and legal issues to be resolved;
(c) Evidence, including objects and documents that have
been marked and will be presented;
(d) Names of witnesses who will be ordered to present
their direct testimonies in the form of affidavits; and
(e) Schedule of the presentation of evidence by both
parties which shall be done in one day, to the extent
possible, within the 30-day period of the effectivity of the
temporary protection order issued. (Emphasis supplied)
To obviate potential dangers that may arise concomitant to the
conduct of a hearing when necessary, Section 26 (b) of A.M. No.
04-10-11-SC provides that if a temporary protection order issued
is due to expire, the trial court may extend or renew the said order
for a period of thirty (30) days each time until final judgment is
rendered. It may likewise modify the extended or renewed
temporary protection order as may be necessary to meet the
needs of the parties. With the private respondent given ample
protection, petitioner could proceed to litigate the constitutional
issues, without necessarily running afoul of the very purpose for
the adoption of the rules on summary procedure.
In view of all the foregoing, the appellate court correctly
dismissed the petition for prohibition with prayer for injunction and
temporary restraining order (CA-G.R. CEB - SP. No. 01698).
Petitioner may have proceeded upon an honest belief that if he
finds succor in a superior court, he could be granted an injunctive
relief. However, Section 22(j) of A.M. No. 04-10-11-SC expressly
disallows the filing of a petition for certiorari, mandamus or
prohibition against any interlocutory order issued by the trial
court. Hence, the 60-day TRO issued by the appellate court in
this case against the enforcement of the TPO, the amended
TPOs and other orders pursuant thereto was improper, and it
effectively hindered the case from taking its normal course in an
expeditious and summary manner.
As the rules stand, a review of the case by appeal or certiorari
before judgment is prohibited. Moreover, if the appeal of a
judgment granting permanent protection shall not stay its
enforcement,55 with more reason that a TPO, which is valid only
for thirty (30) days at a time,56 should not be enjoined.
The mere fact that a statute is alleged to be unconstitutional or
invalid, does not of itself entitle a litigant to have the same
enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the
United States declared, thus:
Federal injunctions against state criminal statutes, either in their
entirety or with respect to their separate and distinct prohibitions,
are not to be granted as a matter of course, even if such statutes
are unconstitutional. No citizen or member of the community is
immune from prosecution, in good faith, for his alleged criminal
acts. The imminence of such a prosecution even though alleged
to be unauthorized and, hence, unlawful is not alone ground for
relief in equity which exerts its extraordinary powers only to
prevent irreparable injury to the plaintiff who seeks its aid.
(Citations omitted)
The sole objective of injunctions is to preserve the status quo until
the trial court hears fully the merits of the case. It bears stressing,
however, that protection orders are granted ex parte so as to
protect women and their children from acts of violence. To issue
an injunction against such orders will defeat the very purpose of
the law against VAWC.
Notwithstanding all these procedural flaws, we shall not shirk
from our obligation to determine novel issues, or issues of first
impression, with far-reaching implications. We have, time and
again, discharged our solemn duty as final arbiter of constitutional
issues, and with more reason now, in view of private respondent's
plea in her Comment59 to the instant Petition that we should put
the challenge to the constitutionality of R.A. 9262 to rest. And so
we shall.
Intent of Congress in enacting R.A. 9262.
Petitioner claims that since R.A. 9262 is intended to prevent and
criminalize spousal and child abuse, which could very well be
committed by either the husband or the wife, gender alone is not
enough basis to deprive the husband/father of the remedies
under the law.60
A perusal of the deliberations of Congress on Senate Bill No.
2723,61 which became R.A. 9262, reveals that while the sponsor,
Senator Luisa Pimentel-Ejercito (better known as Senator Loi
Estrada), had originally proposed what she called a "synthesized
measure"62 – an amalgamation of two measures, namely, the
"Anti-Domestic Violence Act" and the "Anti-Abuse of Women in
Intimate Relationships Act"63 – providing protection to "all family
members, leaving no one in isolation" but at the same time giving
special attention to women as the "usual victims" of violence and
abuse,64 nonetheless, it was eventually agreed that men be
denied protection under the same measure. We quote pertinent
portions of the deliberations:
Wednesday, December 10, 2003
Senator Pangilinan. I just wanted to place this on record, Mr.
President. Some women's groups have expressed concerns and
relayed these concerns to me that if we are to include domestic
violence apart from against women as well as other members of
the household, including children or the husband, they fear that
this would weaken the efforts to address domestic violence of
which the main victims or the bulk of the victims really are the
wives, the spouses or the female partners in a relationship. We
would like to place that on record. How does the good Senator
respond to this kind of observation?
Senator Estrada. Yes, Mr. President, there is this group of women
who call themselves "WIIR" Women in Intimate Relationship.
They do not want to include men in this domestic violence. But
plenty of men are also being abused by women. I am playing safe
so I placed here members of the family, prescribing penalties
therefor and providing protective measures for victims. This
includes the men, children, live-in, common-law wives, and those
related with the family.65
xxx
Wednesday, January 14, 2004
xxxx
The President Pro Tempore. x x x
Also, may the Chair remind the group that there was the
discussion whether to limit this to women and not to families
which was the issue of the AWIR group. The understanding that I
have is that we would be having a broader scope rather than just
women, if I remember correctly, Madam sponsor.
Senator Estrada. Yes, Mr. President.
As a matter of fact, that was brought up by Senator Pangilinan
during the interpellation period.
I think Senator Sotto has something to say to that.
Senator Legarda. Mr. President, the reason I am in support of the
measure. Do not get me wrong. However, I believe that there is a
need to protect women's rights especially in the domestic
environment.
As I said earlier, there are nameless, countless, voiceless women
who have not had the opportunity to file a case against their
spouses, their live-in partners after years, if not decade, of battery
and abuse. If we broaden the scope to include even the men,
assuming they can at all be abused by the women or their
spouses, then it would not equalize the already difficult situation
for women, Mr. President.
I think that the sponsor, based on our earlier conversations,
concurs with this position. I am sure that the men in this Chamber
who love their women in their lives so dearly will agree with this
representation. Whether we like it or not, it is an unequal world.
Whether we like it or not, no matter how empowered the women
are, we are not given equal opportunities especially in the
domestic environment where the macho Filipino man would
always feel that he is stronger, more superior to the Filipino
woman.
xxxx
The President Pro Tempore. What does the sponsor say?
Senator Estrada. Mr. President, before accepting this, the
committee came up with this bill because the family members
have been included in this proposed measure since the other
members of the family other than women are also possible
victims of violence. While women are most likely the intended
victims, one reason incidentally why the measure focuses on
women, the fact remains that in some relatively few cases, men
also stand to be victimized and that children are almost always
the helpless victims of violence. I am worried that there may not
be enough protection extended to other family members
particularly children who are excluded. Although Republic Act No.
7610, for instance, more or less, addresses the special needs of
abused children. The same law is inadequate. Protection orders
for one are not available in said law.
I am aware that some groups are apprehensive about granting
the same protection to men, fearing that they may use this law to
justify their abusive behavior against women. However, we
should also recognize that there are established procedures and
standards in our courts which give credence to evidentiary
support and cannot just arbitrarily and whimsically entertain
baseless complaints.
Mr. President, this measure is intended to harmonize family
relations and to protect the family as the basic social institution.
Though I recognize the unequal power relations between men
and women in our society, I believe we have an obligation to
uphold inherent rights and dignity of both husband and wife and
their immediate family members, particularly children.
While I prefer to focus mainly on women, I was compelled to
include other family members as a critical input arrived at after a
series of consultations/meetings with various NGOs, experts,
sports groups and other affected sectors, Mr. President.
Senator Sotto. Mr. President.
The President Pro Tempore. Yes, with the permission of the other
senators.
Senator Sotto. Yes, with the permission of the two ladies on the
Floor.
The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is
recognized.
Senator Sotto. I presume that the effect of the proposed
amendment of Senator Legarda would be removing the "men and
children" in this particular bill and focus specifically on women
alone. That will be the net effect of that proposed amendment.
Hearing the rationale mentioned by the distinguished sponsor,
Sen. Luisa "Loi" Ejercito Estrada, I am not sure now whether she
is inclined to accept the proposed amendment of Senator
Legarda.
I am willing to wait whether she is accepting this or not because if
she is going to accept this, I will propose an amendment to the
amendment rather than object to the amendment, Mr. President.
xxxx
Senator Estrada. The amendment is accepted, Mr. President.
The President Pro Tempore. Is there any objection?
xxxx
Senator Sotto. x x x May I propose an amendment to the
amendment.
The President Pro Tempore. Before we act on the amendment?
Senator Sotto. Yes, Mr. President.
The President Pro Tempore. Yes, please proceed.
Senator Sotto. Mr. President, I am inclined to believe the rationale
used by the distinguished proponent of the amendment. As a
matter of fact, I tend to agree. Kung may maaabuso, mas
malamang iyong babae kaysa sa lalake. At saka iyong mga
lalake, puwede na talagang magulpi iyan. Okey lang iyan. But I
cannot agree that we remove the children from this particular
measure.
So, if I may propose an amendment –
The President Pro Tempore. To the amendment.
Senator Sotto. – more than the women, the children are very
much abused. As a matter of fact, it is not limited to minors. The
abuse is not limited to seven, six, 5-year-old children. I have seen
14, 15-year-old children being abused by their fathers, even by
their mothers. And it breaks my heart to find out about these
things.
Because of the inadequate existing law on abuse of children, this
particular measure will update that. It will enhance and hopefully
prevent the abuse of children and not only women.
SOTTO-LEGARDA AMENDMENTS
Therefore, may I propose an amendment that, yes, we remove
the aspect of the men in the bill but not the children.
Senator Legarda. I agree, Mr. President, with the Minority Leader.
The President Pro Tempore. Effectively then, it will be women
AND CHILDREN.
Senator Sotto. Yes, Mr. President.
Senator Estrada. It is accepted, Mr. President.
The President Pro Tempore. Is there any objection? [Silence]
There being none, the amendment, as amended, is approved.66
It is settled that courts are not concerned with the wisdom, justice,
policy, or expediency of a statute.67 Hence, we dare not venture
into the real motivations and wisdom of the members of Congress
in limiting the protection against violence and abuse under R.A.
9262 to women and children only. No proper challenge on said
grounds may be entertained in this proceeding. Congress has
made its choice and it is not our prerogative to supplant this
judgment. The choice may be perceived as erroneous but even
then, the remedy against it is to seek its amendment or repeal by
the legislative. By the principle of separation of powers, it is the
legislative that determines the necessity, adequacy, wisdom and
expediency of any law.68 We only step in when there is a violation
of the Constitution. However, none was sufficiently shown in this
case.
R.A. 9262 does not violate the guaranty of equal protection of the
laws.
Equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed. The oft-repeated
disquisition in the early case of Victoriano v. Elizalde Rope
Workers' Union69 is instructive:
The guaranty of equal protection of the laws is not a guaranty of
equality in the application of the laws upon all citizens of the
state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man,
woman and child should be affected alike by a statute. Equality of
operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the
circumstances surrounding them. It guarantees equality, not
identity of rights. The Constitution does not require that things
which are different in fact be treated in law as though they were
the same. The equal protection clause does not forbid
discrimination as to things that are different. It does not prohibit
legislation which is limited either in the object to which it is
directed or by the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or
practice because they agree with one another in certain
particulars. A law is not invalid because of simple inequality. The
very idea of classification is that of inequality, so that it goes
without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. All that is required of a
valid classification is that it be reasonable, which means that the
classification should be based on substantial distinctions which
make for real differences; that it must be germane to the purpose
of the law; that it must not be limited to existing conditions only;
and that it must apply equally to each member of the class. This
Court has held that the standard is satisfied if the classification or
distinction is based on a reasonable foundation or rational basis
and is not palpably arbitrary. (Emphasis supplied)
Measured against the foregoing jurisprudential yardstick, we find
that R.A. 9262 is based on a valid classification as shall
hereinafter be discussed and, as such, did not violate the equal
protection clause by favoring women over men as victims of
violence and abuse to whom the State extends its protection.
I. R.A. 9262 rests on substantial distinctions.
The unequal power relationship between women and men; the
fact that women are more likely than men to be victims of
violence; and the widespread gender bias and prejudice against
women all make for real differences justifying the classification
under the law. As Justice McIntyre succinctly states, "the
accommodation of differences ... is the essence of true equality."70
A. Unequal power relationship between men and women
According to the Philippine Commission on Women (the National
Machinery for Gender Equality and Women's Empowerment),
violence against women (VAW) is deemed to be closely linked
with the unequal power relationship between women and men
otherwise known as "gender-based violence". Societal norms and
traditions dictate people to think men are the leaders, pursuers,
providers, and take on dominant roles in society while women are
nurturers, men's companions and supporters, and take on
subordinate roles in society. This perception leads to men gaining
more power over women. With power comes the need to control
to retain that power. And VAW is a form of men's expression of
controlling women to retain power.71
The United Nations, which has long recognized VAW as a human
rights issue, passed its Resolution 48/104 on the Declaration on
Elimination of Violence Against Women on December 20, 1993
stating that "violence against women is a manifestation of
historically unequal power relations between men and women,
which have led to domination over and discrimination against
women by men and to the prevention of the full advancement of
women, and that violence against women is one of the crucial
social mechanisms by which women are forced into subordinate
positions, compared with men."72
Then Chief Justice Reynato S. Puno traced the historical and
social context of gender-based violence and developments in
advocacies to eradicate VAW, in his remarks delivered during the
Joint Launching of R.A. 9262 and its Implementing Rules last
October 27, 2004, the pertinent portions of which are quoted
hereunder:
History reveals that most societies sanctioned the use of violence
against women. The patriarch of a family was accorded the right
to use force on members of the family under his control. I quote
the early studies:
Traditions subordinating women have a long history rooted in
patriarchy – the institutional rule of men. Women were seen in
virtually all societies to be naturally inferior both physically and
intellectually. In ancient Western societies, women whether slave,
concubine or wife, were under the authority of men. In law, they
were treated as property.
The Roman concept of patria potestas allowed the husband to
beat, or even kill, his wife if she endangered his property right
over her. Judaism, Christianity and other religions oriented
towards the patriarchal family strengthened the male dominated
structure of society.
English feudal law reinforced the tradition of male control over
women. Even the eminent Blackstone has been quoted in his
commentaries as saying husband and wife were one and that one
was the husband. However, in the late 1500s and through the
entire 1600s, English common law began to limit the right of
husbands to chastise their wives. Thus, common law developed
the rule of thumb, which allowed husbands to beat their wives
with a rod or stick no thicker than their thumb.
In the later part of the 19th century, legal recognition of these
rights to chastise wives or inflict corporeal punishment ceased.
Even then, the preservation of the family was given more
importance than preventing violence to women.
The metamorphosis of the law on violence in the United States
followed that of the English common law. In 1871, the Supreme
Court of Alabama became the first appellate court to strike down
the common law right of a husband to beat his wife:
The privilege, ancient though it may be, to beat one's wife with a
stick, to pull her hair, choke her, spit in her face or kick her about
the floor, or to inflict upon her like indignities, is not now
acknowledged by our law... In person, the wife is entitled to the
same protection of the law that the husband can invoke for
himself.
As time marched on, the women's advocacy movement became
more organized. The temperance leagues initiated it. These
leagues had a simple focus. They considered the evils of
alcoholism as the root cause of wife abuse. Hence, they
demonstrated and picketed saloons, bars and their husbands'
other watering holes. Soon, however, their crusade was joined by
suffragette movements, expanding the liberation movement's
agenda. They fought for women's right to vote, to own property,
and more. Since then, the feminist movement was on the roll.
The feminist movement exposed the private invisibility of the
domestic violence to the public gaze. They succeeded in
transforming the issue into an important public concern. No less
than the United States Supreme Court, in 1992 case Planned
Parenthood v. Casey, noted:
In an average 12-month period in this country, approximately two
million women are the victims of severe assaults by their male
partners. In a 1985 survey, women reported that nearly one of
every eight husbands had assaulted their wives during the past
year. The [American Medical Association] views these figures as
"marked underestimates," because the nature of these incidents
discourages women from reporting them, and because surveys
typically exclude the very poor, those who do not speak English
well, and women who are homeless or in institutions or hospitals
when the survey is conducted. According to the AMA,
"researchers on family violence agree that the true incidence of
partner violence is probably double the above estimates; or four
million severely assaulted women per year."
Studies on prevalence suggest that from one-fifth to one-third of
all women will be physically assaulted by a partner or ex-partner
during their lifetime... Thus on an average day in the United
States, nearly 11,000 women are severely assaulted by their
male partners. Many of these incidents involve sexual assault... In
families where wife beating takes place, moreover, child abuse is
often present as well.
Other studies fill in the rest of this troubling picture. Physical
violence is only the most visible form of abuse. Psychological
abuse, particularly forced social and economic isolation of
women, is also common.
Many victims of domestic violence remain with their abusers,
perhaps because they perceive no superior alternative...Many
abused women who find temporary refuge in shelters return to
their husbands, in large part because they have no other source
of income... Returning to one's abuser can be dangerous. Recent
Federal Bureau of Investigation statistics disclose that 8.8 percent
of all homicide victims in the United States are killed by their
spouses...Thirty percent of female homicide victims are killed by
their male partners.
Finally in 1994, the United States Congress enacted the Violence
Against Women Act.
In the International front, the women's struggle for equality was no
less successful. The United States Charter and the Universal
Declaration of Human Rights affirmed the equality of all human
beings. In 1979, the UN General Assembly adopted the landmark
Convention on the Elimination of all Forms of Discrimination
Against Women (CEDAW). In 1993, the UN General Assembly
also adopted the Declaration on the Elimination of Violence
Against Women. World conferences on the role and rights of
women have been regularly held in Mexico City, Copenhagen,
Nairobi and Beijing. The UN itself established a Commission on
the Status of Women.
The Philippines has been in cadence with the half – and full –
steps of all these women's movements. No less than Section 14,
Article II of our 1987 Constitution mandates the State to
recognize the role of women in nation building and to ensure the
fundamental equality before the law of women and men. Our
Senate has ratified the CEDAW as well as the Convention on the
Rights of the Child and its two protocols. To cap it all, Congress,
on March 8, 2004, enacted Rep. Act No. 9262, entitled "An Act
Defining Violence Against Women and Their Children, Providing
 for Protective Measures for Victims, Prescribing Penalties
therefor and for other Purposes." (Citations omitted) 99 92 65 83 81 77 1,0
832
7 7 9 7 1 0 42
B. Women are the "usual" and "most likely"

victims of violence. Incestuou

38 46 26 22 28 27 19 23
s Rape
At the time of the presentation of Senate Bill No. 2723, official
statistics on violence against women and children show that –
Attempted
x x x physical injuries had the highest number of cases at 5,058 in 19 14 18 14 20 16
268 201
2002 representing 55.63% of total cases reported (9,903). And for 4 8 5 7 4 7
the first semester of 2003, there were 2,381 reported cases out of
4,354 cases which represent 54.31%. xxx (T)he total number of
women in especially difficult circumstances served by the
58 53 38 35 44 48
Department of Social Welfare and Development (DSWD) for the Lascivious 745 625
0 6 2 8 5 5
year 2002, there are 1,417 physically abused/maltreated cases
out of the total of 5,608 cases. xxx (T)here are 1,091 DSWD
cases out of a total number of 3,471 cases for the first semester
of 2003. Female violence comprised more than 90% of all forms
Physical 3,5 2,3 1,8 1,5 1,3 1,4 2,0 1,5
of abuse and violence and more than 90% of these reported
Injuries 53 35 92 05 07 98 18 88
cases were committed by the women's intimate partners such as
their husbands and live-in partners.73

Recently, the Philippine Commission on Women presented

comparative statistics on violence against women across an Harassme 53 37 38 46 18 54 83 63
eight-year period from 2004 to August of 2011 with violations
under R.A. 9262 ranking first among the different VAW categories
since its implementation in 2004,74 thus:
21 92 1,2 2,3 3,5 5,2 9,9 9,0
RA 9262
Table 1. Annual Comparative Statistics on Violence Against 8 4 69 87 99 85 74 21
Women, 2004 - 2011*

31 22 19 18 22 20
Reported 20 20 20 20 20 20 Threats
201 374 213
9 3 9 2 0 8
Cases 04 05 06 07 08 09 0
 domestic violence did so four or five (or more) times, compared
Seduction 62 19 29 30 19 19 25 with 11% of the smaller number of men who had ever
experienced domestic violence; and women constituted 89% of
all those who had experienced 4 or more incidents of domestic
violence.75Statistics in Canada show that spousal violence by a
Concubina 12 10 10 10 woman against a man is less likely to cause injury than the other
93 99 158
ge 1 2 9 9 way around (18 percent versus 44 percent). Men, who experience
violence from their spouses are much less likely to live in fear of
violence at the hands of their spouses, and much less likely to
15 experience sexual assault. In fact, many cases of physical
RA 9208 17 11 16 24 34 190 violence by a woman against a spouse are in self-defense or the
2
result of many years of physical or emotional abuse.76

While there are, indeed, relatively few cases of violence and

Abduction
abuse perpetrated against men in the Philippines, the same
/Kidnappin 16 34 23 28 18 25 22
cannot render R.A. 9262 invalid.
g 29
In a 1960 case involving the violation of a city ordinance requiring
drivers of animal-drawn vehicles to pick up, gather and deposit in
Unjust 70 receptacles the manure emitted or discharged by their vehicle-
90 50 59 59 83 183
Vexation 3 drawing animals in any public highways, streets, plazas, parks or
alleys, said ordinance was challenged as violative of the guaranty
of equal protection of laws as its application is limited to owners
6,2 5,3 4,8 5,7 6,9 9,4 15, and drivers of vehicle-drawing animals and not to those animals,
Total although not utilized, but similarly pass through the same streets.
71 74 81 29 05 85 104

The ordinance was upheld as a valid classification for the reason

*2011 report covers only from January to August
Source: Philippine National Police – Women and Children
Protection Center (WCPC)
On the other hand, no reliable estimates may be obtained on
domestic abuse and violence against men in the Philippines
because incidents thereof are relatively low and, perhaps,
because many men will not even attempt to report the situation.
In the United Kingdom, 32% of women who had ever experienced
that, while there may be non-vehicle-drawing animals that also
traverse the city roads, "but their number must be negligible and
their appearance therein merely occasional, compared to the rig-
drawing ones, as not to constitute a menace to the health of the
community."77 The mere fact that the legislative classification may
result in actual inequality is not violative of the right to equal
protection, for every classification of persons or things for
regulation by law produces inequality in some degree, but the law
is not thereby rendered invalid.78
C. Gender bias and prejudices
From the initial report to the police through prosecution, trial, and
sentencing, crimes against women are often treated differently
and less seriously than other crimes. This was argued by then
United States Senator Joseph R. Biden, Jr., now Vice President,
chief sponsor of the Violence Against Women Act (VAWA), in
defending the civil rights remedy as a valid exercise of the U.S.
Congress' authority under the Commerce and Equal Protection
Clauses. He stressed that the widespread gender bias in the U.S.
has institutionalized historic prejudices against victims of rape or
domestic violence, subjecting them to "double victimization" – first
at the hands of the offender and then of the legal system.79
Our own Senator Loi Estrada lamented in her Sponsorship
Speech for Senate Bill No. 2723 that "(w)henever violence occurs
in the family, the police treat it as a private matter and advise the
parties to settle the conflict themselves. Once the complainant
brings the case to the prosecutor, the latter is hesitant to file the
complaint for fear that it might later be withdrawn. This lack of
response or reluctance to be involved by the police and
prosecution reinforces the escalating, recurring and often serious
nature of domestic violence."80
Sadly, our own courts, as well, have exhibited prejudices and
biases against our women.
In a recent case resolved on March 9, 2011, we fined RTC Judge
Venancio J. Amila for Conduct Unbecoming of a Judge. He used
derogatory and irreverent language in reference to the
complainant in a petition for TPO and PPO under R.A. 9262,
calling her as "only a live-in partner" and presenting her as an
"opportunist" and a "mistress" in an "illegitimate relationship."
Judge Amila even called her a "prostitute," and accused her of
being motivated by "insatiable greed" and of absconding with the
contested property.81 Such remarks betrayed Judge Amila's
prejudices and lack of gender sensitivity.
The enactment of R.A. 9262 aims to address the discrimination
brought about by biases and prejudices against women. As
emphasized by the CEDAW Committee on the Elimination of
Discrimination against Women, addressing or correcting
discrimination through specific measures focused on women
does not discriminate against men.82Petitioner's
contention,83 therefore, that R.A. 9262 is discriminatory and that it
is an "anti-male," "husband-bashing," and "hate-men" law
deserves scant consideration. As a State Party to the CEDAW,
the Philippines bound itself to take all appropriate measures "to
modify the social and cultural patterns of conduct of men and
women, with a view to achieving the elimination of prejudices and
customary and all other practices which are based on the idea of
the inferiority or the superiority of either of the sexes or on
stereotyped roles for men and women."84 Justice Puno correctly
pointed out that "(t)he paradigm shift changing the character of
domestic violence from a private affair to a public offense will
require the development of a distinct mindset on the part of the
police, the prosecution and the judges."85
II. The classification is germane to the purpose of the law.
The distinction between men and women is germane to the
purpose of R.A. 9262, which is to address violence committed
against women and children, spelled out in its Declaration of
Policy, as follows:
SEC. 2. Declaration of Policy. – It is hereby declared that the
State values the dignity of women and children and guarantees
full respect for human rights. The State also recognizes the need
to protect the family and its members particularly women and
children, from violence and threats to their personal safety and
security.
Towards this end, the State shall exert efforts to address violence
committed against women and children in keeping with the
fundamental freedoms guaranteed under the Constitution and the
provisions of the Universal Declaration of Human Rights, the
Convention on the Elimination of All Forms of Discrimination
Against Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is
a party.
In 1979, the U.N. General Assembly adopted the CEDAW, which
the Philippines ratified on August 5, 1981. Subsequently, the
Optional Protocol to the CEDAW was also ratified by the
Philippines on October 6, 2003.86 This Convention mandates that
State parties shall accord to women equality with men before the
law87 and shall take all appropriate measures to eliminate
discrimination against women in all matters relating to marriage
and family relations on the basis of equality of men and
women.88 The Philippines likewise ratified the Convention on the
Rights of the Child and its two protocols.89 It is, thus, bound by
said Conventions and their respective protocols.
III. The classification is not limited to existing
conditions only, and apply equally to all members
Moreover, the application of R.A. 9262 is not limited to the
existing conditions when it was promulgated, but to future
conditions as well, for as long as the safety and security of
women and their children are threatened by violence and abuse.
R.A. 9262 applies equally to all women and children who suffer
violence and abuse. Section 3 thereof defines VAWC as:
x x x any act or a series of acts committed by any person against
a woman who is his wife, former wife, or against a woman with
whom the person has or had a sexual or dating relationship, or
with whom he has a common child, or against her child whether
legitimate or illegitimate, within or without the family abode, which
result in or is likely to result in physical, sexual, psychological
harm or suffering, or economic abuse including threats of such
acts, battery, assault, coercion, harassment or arbitrary
deprivation of liberty. It includes, but is not limited to, the following
acts:
A. "Physical Violence" refers to acts that include bodily or
physical harm;
B. "Sexual violence" refers to an act which is sexual in nature,
committed against a woman or her child. It includes, but is not
limited to:
a) rape, sexual harassment, acts of
lasciviousness, treating a woman or her child as a
sex object, making demeaning and sexually
suggestive remarks, physically attacking the
sexual parts of the victim's body, forcing her/him
to watch obscene publications and indecent
shows or forcing the woman or her child to do
indecent acts and/or make films thereof, forcing
the wife and mistress/lover to live in the conjugal
home or sleep together in the same room with the
abuser;
b) acts causing or attempting to cause the victim
to engage in any sexual activity by force, threat of
force, physical or other harm or threat of physical
or other harm or coercion;
c) Prostituting the woman or child.
C. "Psychological violence" refers to acts or omissions causing or
likely to cause mental or emotional suffering of the victim such as
but not limited to intimidation, harassment, stalking, damage to
property, public ridicule or humiliation, repeated verbal abuse and
marital infidelity. It includes causing or allowing the victim to
witness the physical, sexual or psychological abuse of a member
of the family to which the victim belongs, or to witness
pornography in any form or to witness abusive injury to pets or to
unlawful or unwanted deprivation of the right to custody and/or
visitation of common children.
D. "Economic abuse" refers to acts that make or attempt to make
a woman financially dependent which includes, but is not limited
to the following:
1. withdrawal of financial support or preventing the
victim from engaging in any legitimate profession,
occupation, business or activity, except in cases
wherein the other spouse/partner objects on valid,
serious and moral grounds as defined in Article 73
of the Family Code;
2. deprivation or threat of deprivation of financial
resources and the right to the use and enjoyment
of the conjugal, community or property owned in
common;
3. destroying household property;
4. controlling the victims' own money or properties
or solely controlling the conjugal money or
properties.
It should be stressed that the acts enumerated in the aforequoted
provision are attributable to research that has exposed the
dimensions and dynamics of battery. The acts described here are
also found in the U.N. Declaration on the Elimination of Violence
Against Women.90 Hence, the argument advanced by petitioner
that the definition of what constitutes abuse removes the
difference between violent action and simple marital tiffs is
tenuous.
There is nothing in the definition of VAWC that is vague and
ambiguous that will confuse petitioner in his defense. The acts
enumerated above are easily understood and provide adequate
contrast between the innocent and the prohibited acts. They are
worded with sufficient definiteness that persons of ordinary
intelligence can understand what conduct is prohibited, and need
not guess at its meaning nor differ in its application.91 Yet,
petitioner insists92that phrases like "depriving or threatening to
deprive the woman or her child of a legal right," "solely controlling
the conjugal or common money or properties," "marital infidelity,"
and "causing mental or emotional anguish" are so vague that they
make every quarrel a case of spousal abuse. However, we have
stressed that the "vagueness" doctrine merely requires a
reasonable degree of certainty for the statute to be upheld – not
absolute precision or mathematical exactitude, as petitioner
seems to suggest. Flexibility, rather than meticulous specificity, is
permissible as long as the metes and bounds of the statute are
clearly delineated. An act will not be held invalid merely because
it might have been more explicit in its wordings or detailed in its
provisions.93
There is likewise no merit to the contention that R.A. 9262 singles
out the husband or father as the culprit. As defined above, VAWC
may likewise be committed "against a woman with whom the
person has or had a sexual or dating relationship." Clearly, the
use of the gender-neutral word "person" who has or had a sexual
or dating relationship with the woman encompasses even lesbian
relationships. Moreover, while the law provides that the offender
be related or connected to the victim by marriage, former
marriage, or a sexual or dating relationship, it does not preclude
the application of the principle of conspiracy under the Revised
Penal Code (RPC). Thus, in the case of Go-Tan v. Spouses
Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the victim,
were held to be proper respondents in the case filed by the latter
upon the allegation that they and their son (Go-Tan's husband)
had community of design and purpose in tormenting her by giving
her insufficient financial support; harassing and pressuring her to
be ejected from the family home; and in repeatedly abusing her
verbally, emotionally, mentally and physically.
R.A. 9262 is not violative of the
due process clause of the Constitution.
Petitioner bewails the disregard of R.A. 9262, specifically in the
issuance of POs, of all protections afforded by the due process
clause of the Constitution. Says he: "On the basis of
unsubstantiated allegations, and practically no opportunity to
respond, the husband is stripped of family, property, guns,
money, children, job, future employment and reputation, all in a
matter of seconds, without an inkling of what happened."95
A protection order is an order issued to prevent further acts of
violence against women and their children, their family or
household members, and to grant other necessary reliefs. Its
purpose is to safeguard the offended parties from further harm,
minimize any disruption in their daily life and facilitate the
opportunity and ability to regain control of their life.96
"The scope of reliefs in protection orders is broadened to ensure
that the victim or offended party is afforded all the remedies
necessary to curtail access by a perpetrator to the victim. This
serves to safeguard the victim from greater risk of violence; to
accord the victim and any designated family or household
member safety in the family residence, and to prevent the
perpetrator from committing acts that jeopardize the employment
and support of the victim. It also enables the court to award
temporary custody of minor children to protect the children from
violence, to prevent their abduction by the perpetrator and to
ensure their financial support."97
The rules require that petitions for protection order be in writing,
signed and verified by the petitioner98 thereby undertaking full
responsibility, criminal or civil, for every allegation therein. Since
"time is of the essence in cases of VAWC if further violence is to
be prevented,"99 the court is authorized to issue ex parte a TPO
after raffle but before notice and hearing when the life, limb or
property of the victim is in jeopardy and there is reasonable
ground to believe that the order is necessary to protect the victim
from the immediate and imminent danger of VAWC or to prevent
such violence, which is about to recur.100
There need not be any fear that the judge may have no rational
basis to issue an ex parte order. The victim is required not only to
verify the allegations in the petition, but also to attach her
witnesses' affidavits to the petition.101
The grant of a TPO ex parte cannot, therefore, be challenged as
violative of the right to due process. Just like a writ of preliminary
attachment which is issued without notice and hearing because
the time in which the hearing will take could be enough to enable
the defendant to abscond or dispose of his property,102 in the
same way, the victim of VAWC may already have suffered
harrowing experiences in the hands of her tormentor, and
possibly even death, if notice and hearing were required before
such acts could be prevented. It is a constitutional commonplace
that the ordinary requirements of procedural due process must
yield to the necessities of protecting vital public interests,103among
which is protection of women and children from violence and
threats to their personal safety and security.
It should be pointed out that when the TPO is issued ex parte, the
court shall likewise order that notice be immediately given to the
respondent directing him to file an opposition within five (5) days
from service. Moreover, the court shall order that notice, copies of
the petition and TPO be served immediately on the respondent by
the court sheriffs. The TPOs are initially effective for thirty (30)
days from service on the respondent.104
Where no TPO is issued ex parte, the court will nonetheless order
the immediate issuance and service of the notice upon the
respondent requiring him to file an opposition to the petition within
five (5) days from service. The date of the preliminary conference
and hearing on the merits shall likewise be indicated on the
notice.105
The opposition to the petition which the respondent himself shall
verify, must be accompanied by the affidavits of witnesses and
shall show cause why a temporary or permanent protection order
should not be issued.106
It is clear from the foregoing rules that the respondent of a
petition for protection order should be apprised of the charges
imputed to him and afforded an opportunity to present his side.
Thus, the fear of petitioner of being "stripped of family, property,
guns, money, children, job, future employment and reputation, all
in a matter of seconds, without an inkling of what happened" is a
mere product of an overactive imagination. The essence of due
process is to be found in the reasonable opportunity to be heard
and submit any evidence one may have in support of one's
defense. "To be heard" does not only mean verbal arguments in
court; one may be heard also through pleadings. Where
opportunity to be heard, either through oral arguments or
pleadings, is accorded, there is no denial of procedural due
process.107
It should be recalled that petitioner filed on April 26, 2006 an
Opposition to the Urgent Ex-Parte Motion for Renewal of the TPO
that was granted only two days earlier on April 24, 2006.
Likewise, on May 23, 2006, petitioner filed a motion for the
modification of the TPO to allow him visitation rights to his
children. Still, the trial court in its Order dated September 26,
2006, gave him five days (5) within which to show cause why the
TPO should not be renewed or extended. Yet, he chose not to file
the required comment arguing that it would just be an "exercise in
futility," conveniently forgetting that the renewal of the questioned
TPO was only for a limited period (30 days) each time, and that
he could prevent the continued renewal of said order if he can
show sufficient cause therefor. Having failed to do so, petitioner
may not now be heard to complain that he was denied due
process of law.
Petitioner next laments that the removal and exclusion of the
respondent in the VAWC case from the residence of the victim,
regardless of ownership of the residence, is virtually a "blank
check" issued to the wife to claim any property as her conjugal
home.108
The wording of the pertinent rule, however, does not by any
stretch of the imagination suggest that this is so. It states:
SEC. 11. Reliefs available to the offended party. -- The protection
order shall include any, some or all of the following reliefs:
xxxx
(c) Removing and excluding the respondent from the residence of
the offended party, regardless of ownership of the residence,
either temporarily for the purpose of protecting the offended party,
or permanently where no property rights are violated. If the
respondent must remove personal effects from the residence, the
court shall direct a law enforcement agent to accompany the
respondent to the residence, remain there until the respondent
has gathered his things and escort him from the residence;
xxxx
Indubitably, petitioner may be removed and excluded from private
respondent's residence, regardless of ownership, only temporarily
for the purpose of protecting the latter. Such removal and
exclusion may be permanent only where no property rights are
violated. How then can the private respondent just claim any
property and appropriate it for herself, as petitioner seems to
suggest?
The non-referral of a VAWC case
to a mediator is justified.
Petitioner argues that "by criminalizing run-of-the-mill arguments,
instead of encouraging mediation and counseling, the law has
done violence to the avowed policy of the State to "protect and
strengthen the family as a basic autonomous social institution."109
Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not
refer the case or any issue thereof to a mediator. The reason
behind this provision is well-explained by the Commentary on
Section 311 of the Model Code on Domestic and Family Violence
as follows:110
This section prohibits a court from ordering or referring parties to
mediation in a proceeding for an order for protection. Mediation is
a process by which parties in equivalent bargaining positions
voluntarily reach consensual agreement about the issue at hand.
Violence, however, is not a subject for compromise. A process
which involves parties mediating the issue of violence implies that
the victim is somehow at fault. In addition, mediation of issues in
a proceeding for an order of protection is problematic because
the petitioner is frequently unable to participate equally with the
person against whom the protection order has been sought.
(Emphasis supplied)
There is no undue delegation of
judicial power to barangay officials.
Petitioner contends that protection orders involve the exercise of
judicial power which, under the Constitution, is placed upon the
"Supreme Court and such other lower courts as may be
established by law" and, thus, protests the delegation of power to
barangay officials to issue protection orders.111 The pertinent
provision reads, as follows:
SEC. 14. Barangay Protection Orders (BPOs); Who May Issue
and How. – Barangay Protection Orders (BPOs) refer to the
protection order issued by the Punong Barangay ordering the
perpetrator to desist from committing acts under Section 5 (a) and
(b) of this Act.  A Punong Barangay who receives applications for
1âwphi1
a BPO shall issue the protection order to the applicant on the
date of filing after ex parte determination of the basis of the
application. If the Punong Barangay is unavailable to act on the
application for a BPO, the application shall be acted upon by any
available Barangay Kagawad. If the BPO is issued by a Barangay
Kagawad, the order must be accompanied by an attestation by
the Barangay Kagawad that the Punong Barangay was
unavailable at the time of the issuance of the BPO. BPOs shall be
effective for fifteen (15) days. Immediately after the issuance of
an ex parte BPO, the Punong Barangay or Barangay Kagawad
shall personally serve a copy of the same on the respondent, or
direct any barangay official to effect its personal service.
The parties may be accompanied by a non-lawyer advocate in
any proceeding before the Punong Barangay.
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.112 On the other hand, executive power "is
generally defined as the power to enforce and administer the
laws. It is the power of carrying the laws into practical operation
and enforcing their due observance."113
As clearly delimited by the aforequoted provision, the BPO issued
by the Punong Barangay or, in his unavailability, by any available
Barangay Kagawad, merely orders the perpetrator to desist from
(a) causing physical harm to the woman or her child; and (2)
threatening to cause the woman or her child physical harm. Such
function of the Punong Barangay is, thus, purely executive in
nature, in pursuance of his duty under the Local Government
Code to "enforce all laws and ordinances," and to "maintain public
order in the barangay."114
We have held that "(t)he mere fact that an officer is required by
law to inquire into the existence of certain facts and to apply the
law thereto in order to determine what his official conduct shall be
and the fact that these acts may affect private rights do not
constitute an exercise of judicial powers."115
In the same manner as the public prosecutor ascertains through a
preliminary inquiry or proceeding "whether there is reasonable
ground to believe that an offense has been committed and the
accused is probably guilty thereof," the Punong Barangay must
determine reasonable ground to believe that an imminent danger
of violence against the woman and her children exists or is about
to recur that would necessitate the issuance of a BPO. The
preliminary investigation conducted by the prosecutor is,
concededly, an executive, not a judicial, function. The same holds
true with the issuance of a BPO.
one of its most difficult struggles was the fight against the
violence of law itself. If we keep that in mind, law will not again be
a hindrance to the struggle of women for equality but will be its
fulfillment."118 Accordingly, the constitutionality of R.A. 9262 is, as
it should be, sustained.
WHEREFORE, the instant petition for review on certiorari is
hereby DENIED for lack of merit.

We need not even belabor the issue raised by petitioner that SO ORDERED.
since barangay officials and other law enforcement agencies are
required to extend assistance to victims of violence and abuse, it ESTELA M. PERLAS-BERNABE
would be very unlikely that they would remain objective and Associate Justice
impartial, and that the chances of acquittal are nil. As already
stated, assistance by barangay officials and other law
WE CONCUR:
enforcement agencies is consistent with their duty to enforce the
law and to maintain peace and order.
MARIA LOURDES P. A. SERENO
Chief Justice
Conclusion

Before a statute or its provisions duly challenged are voided, an PRESBITERO J.

unequivocal breach of, or a clear conflict with the Constitution, not ANTONIO T. CARPIO
VELASCO, JR.
merely a doubtful or argumentative one, must be demonstrated in Associate Justice
Associate Justice
such a manner as to leave no doubt in the mind of the Court. In
other words, the grounds for nullity must be beyond reasonable
doubt.116 In the instant case, however, no concrete evidence and See separate concurring
convincing arguments were presented by petitioner to warrant a opinion:
See: Concurring Opinion
declaration of the unconstitutionality of R.A. 9262, which is an act TERESITA J.
ARTURO D. BRION
of Congress and signed into law by the highest officer of the co- LEONARDO-DE
Associate Justice
equal executive department. As we said in Estrada v. CASTRO
Sandiganbayan, 117 courts must assume that the legislature is Associate Justice
ever conscious of the borders and edges of its plenary powers,
and passed laws with full knowledge of the facts and for the
purpose of promoting what is right and advancing the welfare of On official leave
the majority. DIOSDADO M. LUCAS P. BERSAMIN
PERALTA* Associate Justice
Associate Justice
We reiterate here Justice Puno's observation that "the history of
the women's movement against domestic violence shows that
 See Separate
MARIANO C. DEL
Concurring Opinion
CASTILLO
ROBERTO A. ABAD
Associate Justice
Associate Justice

MARTIN S. JOSE PORTUGAL

VILLARAMA, JR. PEREZ
Associate Justice Associate Justice

JOSE CATRAL
BIENVENIDO L. REYES
MENDOZA
Associate Justice
Associate Justice

See separate concurring opinion

MARVIC MARIO VICTOR F. LEONEN
Associate Justice

CERTIFICATION

I certify that the conclusions in the above Decision 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
 favor of PNB. The Chattel Mortgage empowered PNB as the
petitioners' attorney-in-fact to negotiate and to sell the latter's
sugar in both domestic and export markets and to apply the
proceeds to the payment of their obligations to it. 

Exercising his law-making powers under Martial Law, then

G.R. No. 128448      February 1, 2001 President Ferdinand Marcos issued Presidential Decree (P.D.)
No. 5792 in November, 1974. The decree authorized private
respondent Philippine Exchange Co., Inc. (PHILEX) to purchase
SPOUSES ALEJANDRO MlRASOL and LILIA E. sugar allocated for export to the United States and to other
MIRASOL, petitioners,  foreign markets. The price and quantity was determined by the
vs. Sugar Quota Administration, PNB, the Department of Trade and
THE COURT OF APPEALS, PHILIPPINE NATIONAL and Industry, and finally, by the Office of the President. The decree
PHILIPPINE EXCHANGE CO., INC., respondent.  further authorized PNB to finance PHILEX's purchases. Finally,
the decree directed that whatever profit PHILEX might realize
QUISUMBING, J.: from sales of sugar abroad was to be remitted to a special fund of
the national government, after commissions, overhead expenses
This is a petition for review on certiorari of the decision of the and liabilities had been deducted. The government offices and
Court of Appeals dated July 22, 1996, in CA-G.R. CY No. 38607, entities tasked by existing laws and administrative regulations to
as well as of its resolution of January 23, 1997, denying oversee the sugar export pegged the purchase price of export
petitioners' motion for reconsideration. The challenged decision sugar in crop years 1973-1974 and 1974-1975 at P180.00 per
reversed the judgment of the Regional Trial Court of Bacolod picul. 
City, Branch 42 in Civil Case No. 14725. 
PNB continued to finance the sugar production of the Mirasols for
The factual background of this case, as gleaned from the records, crop years 1975-1976 and 1976-1977. These crop loans and
is as follows:  similar obligations were secured by real estate mortgages over
several properties of the Mirasols and chattel mortgages over
The Mirasols are sugarland owners and planters. In 1973-1974, standing crops. Believing that the proceeds of their sugar sales to
they produced 70,501.08 piculs1 of sugar, 25,662.36 of which PNB, if properly accounted for, were more than enough to pay
were assigned for export. The following crop year, their acreage their obligations, petitioners asked PNB for an accounting of the
planted to the same crop was lower, yielding 65,100 piculs of proceeds of the sale of their export sugar. PNB ignored the
sugar, with 23,696.40 piculs marked for export.  request. Meanwhile, petitioners continued to avail of other loans
from PNB and to make unfunded withdrawals from their current
Private respondent Philippine National Bank (PNB) financed the accounts with said bank. PNB then asked petitioners to settle
Mirasols' sugar production venture for crop years, 1973-1974 and their due and demandable accounts. As a result of these
1974-1975 under a crop loan financing scheme. Under said demands for payment, petitioners on August 4, 1977, conveyed
scheme, the Mirasols signed Credit Agreements, a Chattel to PNB real properties valued at P1,410,466.00 by way of dacion
Mortgage on Standing Crops, and a Real Estate Mortgage in
en pago, leaving an unpaid overdrawn account of allege(d) unliquidated cost price of export sugar during
P1,513,347.78.  crop years 1973-1974 and 1974-1975."3

On August 10, 1982, the balance of outstanding sugar crop and
other loans owed by petitioners to PNB stood at P15,964,252.93.
Despite demands, the Mirasols failed to settle said due anti
demandable accounts. PNB then proceeded to extrajudicially for
close the mortgaged properties. After applying the proceeds of
the auction sale of the mortgaged realties, PNB still had a
deficiency claim of P12,551,252.93.
Petitioners continued to ask PNB to account for the proceeds of
the sale of their export sugar for crop years 1973-1974 and 1974-
1975, insisting that said proceeds, if properly liquidated, could
offset their outstanding obligations with the batik. PNB remained
adamant in its stance that under P.D. No. 579, there was nothing
to account since under said law, all earnings from the export
sales of sugar pertained to the National Government and were
subject to the disposition of the President of the Philippines for
public purposes. 1âwphi1.nêt
After trial on the merits, the trial court decided as follows:
"WHEREFORE, the foregoing premises considered,
judgment is hereby rendered in favor of the plaintiffs and
against the defendants Philippine National Bank (PNB)
and Philippine Exchange Co., Inc. (PHILEX): 
(1) Declaring Presidential Decree 579 enacted on
November 12, 1974 and all circulars, as well as policies,
orders and other issuances issued in furtherance thereof,
unconstitutional and therefore, NULL and VOID being in
gross violation of the Bill of Rights; 
(2) Ordering defendants PNB and PHILEX to pay, jointly
and severally, plaintiffs the whole amount corresponding
to the residue of the unliquidated actual cost price of

25,662 piculs in export sugar for crop year 1973-1974 at

an average price of P300.00 per picul, deducting
On August 9, 1979, the Mirasols filed a suit for accounting, therefrom however, the amount of P180.00 already paid
specific performance, and damages against PNB with the in advance plus the allowable deductions in service fees
Regional Trial Court of Bacolod City, docketed as Civil Case No. and other charges; 
14725. 
(3) And also, for the same defendants to pay, jointly and
On June 16, 1987, the complaint was amended to implead severally, same plaintiffs the whole amount corresponding
PHILEX as party-defendant.  to the unpaid actual price of 14,596 piculs of export sugar
for crop year 1974-1975 at an average rate of P214.14
The parties agreed at pre-trial to limit the issues to the following:  per picul minus however, the sum of P180.00 per picul
already paid by the defendants in advance and the
"1. The constitutionality and/or legality of Presidential allowable deducting (sic) in service fees and other
Decrees numbered 338, 579, and 1192;  charges. 

"2. The determination of the total amount allegedly due "The unliquidated amount of money due the plaintiffs but
the plaintiffs from the defendants corresponding to the withheld by the defendants, shall earn the legal rate of
 interest at 12% per annum computed from the date this "1. Declaring the dacion en pago and the foreclosure of
action was instituted until fully paid; and, finally -  the mortgaged properties valid; 

(4) Directing the defendants PNB and PHILEX to pay,
jointly and severally, plaintiffs the sum of P50,000.00 in
moral damages and the amount of P50,000.00 as
attorney's fees, plus the costs of this litigation.
"SO ORDERED."4
"2. Ordering the PNB to render an accounting of the sugar
account of the Mirasol[s] specifically stating the
indebtedness of the latter to the former and the proceeds
of Mirasols' 1973-1974 and 1974-1975 sugar production
sold pursuant to and in accordance with P.D. 579 and the
issuances therefrom; 

The same was, however, modified by a Resolution of the trial "3. Ordering the PNB to recompute in accordance with RA
court dated May 14, 1992, which added the following paragraph:  7202 Mirasols' indebtedness to it crediting to the latter
payments already made as well as the auction price of
"This however whatever benefits that may have accrued their foreclosed real estate and stipulated value of their
in favor of the plaintiffs with the massage and approval of properties ceded to PNB in the dacon (sic) en pago;
Republic Act. 7202 otherwise known as the 'Sugar
Restitution Law,' authorizing the restitution of losses "4. Whatever the result of the recomputation of Mirasols'
suffered by the plaintiffs from Crop year 1974-1975 to account, the outstanding balance or the excess payment
Crop year 1984-1985 occasioned by the actuations of shall be governed by the pertinent provisions of RA 7202. 
government-owned and controlled agencies.
(Underscoring in the original).  "SO ORDERED."6

"SO ORDERED."5
The Mirasols then filed an appeal with the respondent court,
docketed as CA-G.R. CY No. 38607, faulting the trial court for not
nullifying the dacion en pago and the mortgage contracts, as well
as the foreclosure of their mortgaged properties. Also faulted was
the trial court's failure to award them the full money claims and
damages sought from both PNB and PHILEX.  statute unconstitutional without notice to the Solicitor
On July 22, 1996, the Court of Appeals reversed the trial court as
follows: 
"WHEREFORE, this Court renders judgment REVERSING the
appealed Decision and entering the following verdict: 
On August 28, 1996, petitioners moved for reconsideration, which
the appellate court denied on January 23, 1997. 
Hence, the instant petition, with petitioners submitting the
following issues for our resolution: 
"1. Whether the Trial Court has jurisdiction to declare a
General where the parties have agreed to submit such
issue for the resolution of the Trial Court. 
"2. Whether PD 579 and subsequent issuances7 thereof
are unconstitutional. 
 "3. Whether the Honorable Court of Appeals committed
manifest error in not applying the doctrine of piercing the
corporate veil between respondents PNB and PHILEX. 
"4. Whether the Honorable Court of Appeals committed
manifest error in upholding the validity of the foreclosure
on petitioners property and in upholding the validity of
the dacion en pago in this case.  was improper for the trial court to have declared P.D. No. 57912
"5. Whether the Honorable Court of Appeals committed
manifest error in not awarding damages to
petitioners grounds relied upon the allowance of the
petition. (Underscored in the original)"8
On the first issue. It is settled that Regional Trial Courts have the
authority and jurisdiction to consider the constitutionality of a
statute, presidential decree, or executive order.9 The Constitution
vests the power of judicial review or the power to declare a law,
treaty, international or executive agreement, presidential decree,
order, instruction, ordinance, or regulation not. only in this Court,
but in all Regional Trial Courts.10 In J.M. Tuason and Co. v. Court
of Appeals, 3 SCRA 696 (1961) we held:  and shall be entitled to be heard upon such question."
"Plainly, the Constitution contemplates that the inferior
courts should have jurisdiction in cases involving
constitutionality of any treaty or law, for it speaks of
appellate review of final judgments of inferior courts in
cases where such constitutionality happens to be in
issue."11
Furthermore, B.P. BIg. 129 grants Regional Trial Courts the
authority to rule on the conformity of laws or treaties with the
Constitution, thus: 
"SECTION 19. Jurisdiction in civil cases. - Regional Trial
Courts shall exercise exclusive original jurisdiction:  necessary or when requested by the court."
(1) In all civil actions in which the subject of the litigations
is incapable of pecuniary estimation;"
The pivotal issue, which we must address, is whether it was
proper for the trial court to have exercised judicial review. 
Petitioners argue that the Court of Appeals erred in finding that it
unconstitutional, since petitioners had not complied with Rule 64,
Section 3, of the Rules of Court. Petitioners contend that said
Rule specifically refers only to actions for declaratory relief and
not to an ordinary action for accounting, specific performance,
and damages. 
Petitioners' contentions are bereft of merit. Rule 64, Section 3 of
the Rules of Court provides: 
"SEC. 3. Notice to Solicitor General. - In any action which
involves the validity of a statute, or executive order or
regulation, the Solicitor General shall be notified by the
party attacking the statute, executive order, or regulation,
 
This should be read in relation to Section 1 [c] of P.D. No.
478,13 which states in part: 
"SECTION 1. Functions and Organizations - (1) The
Office of the Solicitor General shall...have the following
specific powers and functions: 
xxx
"[c] 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
 
It is basic legal construction that where words of command such
as "shall," "must," or "ought" are employed, they are generally
and ordinarily regarded as mandatory.14 Thus, where, as in Rule
64, Section 3 of the Rules of Court, the word "shall" is used, a
mandatory duty is imposed, which the courts ought to enforce. 
The purpose of the mandatory Notice in Rule 64, Section 3 is to
enable the Solicitor General to decide whether or not his
intervention in the action assailing the validity of a law or treaty is
necessary. To deny the Solicitor General such notice would be
tantamount to depriving him of his day in court. We must stress
that, contrary to petitioners' stand, the mandatory notice
requirement is not limited to actions involving declaratory relief
and similar remedies. The rule itself provides that such notice is
required in "any action" and not just actions involving declaratory
relief. Where there is no ambiguity in the words used in the true,
there is no room for constnlction.15 In all actions assailing the
validity of a statute, treaty, presidential decree, order, or
proclamation, notice to the Solicitor General is mandatory.  PNB's obligation to render an accounting is an issue, which can
In this case, the Solicitor General was never notified about Civil
Case No. 14725. Nor did the trial court ever require him to appear
in person or by a representative or to file any pleading or
memorandum on the constitutionality of the assailed decree.
Hence, the Court of Appeals did not err in holding that lack of the
required notice made it improper for the trial court to pass upon
the constitutional validity of the questioned presidential decrees.  the constitutionality of P.D. No. 579.
As regards the second issue, petitioners contend that P.D. No.
579 and its implementing issuances are void for violating the due
process clause and the prohibition against the taking of private
property without just compensation. Petitioners now ask this
Court to exercise its power of judicial review.  of their property without just compensation were violated.
Jurisprudence has laid down the following requisites for the
exercise of this power: First, there must be before the Court an
actual case calling for the exercise of judicial review. Second, the
question before the Court must be ripe for adjudication. Third, the
person challenging the validity of the act must have standing to
challenge. Fourth, the question of constitutionality must have
been raised at the earliest opportunity, and lastly, the issue of
constitutionality must be the very lis mota of the case.16
As a rule, the courts will not resolve the constitutionality of a law,
if the controversy can be settled on other grounds.17 The policy of
the courts is to avoid ruling on constitutional questions and to
presume that the acts of the political departments are valid,
absent a clear and unmistakable showing to the contrary. To
doubt is to sustain. This presumption is based on the doctrine of
separation of powers. This means that the measure had first been
carefully studied by the legislative and executive departments and
found to be in accord with the Constitution before it was finally
enacted and approved.18
The present case was instituted primarily for accounting and
specific performance. The Court of Appeals correctly ruled that
be determined, without having to rule on the constitutionality of
P.D. No. 579. In fact there is nothing in P.D. No. 579, which is
applicable to PNB's intransigence in refusing to give an
accounting. The governing law should be the law on agency, it
being undisputed that PNB acted as petitioners' agent. In other
words, the requisite that the constitutionality of the law in question
be the very lis mota of the case is absent. Thus we cannot rule on
 
Petitioners further contend that the passage of R.A. No. 720219
rendered P.D. No. 579 unconstitutional, since R.A. No. 7202
affirms that under P.D. 579, the due process clause of the
Constitution and the right of the sugar planters not to be deprived
 
A perusal of the text of R.A. No. 7202 shows that the repealing
clause of said law merely reads: 
 "SEC. 10. All laws, acts, executive orders and circulars in "1. The accounts relative to the loan financing scheme
conflict herewith are hereby repealed or modified entered into by the Mirasols with PNB (PNB's Brief, p. 16)
accordingly."  On the question of haw much the PNB lent the Mirasols
for crop years 1973-1974 and 1974-1975, the evidence
The settled rule of statutory construction is that repeals by recited by the lower court in its decision was deficient. We
implication are not favored.20 R.A. No. 7202 cannot be deemed to are offered (sic) PNB the amount of FIFTEEN MILLION
have repealed P.D. No. 579. In addition, the power to declare a NINE HUNDRED SIXTY FOUR THOUSAND TWO
law unconstitutional does not lie with the legislature, but with the HUNDRED FIFTY TWO PESOS and NINETY THREE
courts.21 Assuming arguendo that R.A. No. 7202 did indeed Centavos (Ps15,964,252.93) but this is the alleged
repeal P.D. No. 579, said repeal is not a legislative declaration balance the Mirasols owe PNB covering the years 1975 to
finding the earlier law unconstitutional.  1982. 

To resolve the third issue, petitioners ask us to apply the doctrine
of piercing the veil of corporate fiction with respect to PNB and
PHILEX. Petitioners submit that PHILEX was a wholly-owned
subsidiary of PNB prior to the latter's privatization.  (P3,400,000.00). PNB claims against the Mirasols. (PNB's
We note, however, that the appellate court made the following
finding of fact:
"1. PNB and PHILEX are separate juridical persons and
there is no reason to pierce the veil of corporate
personality. Both existed by virtue of separate organic
acts. They had separate operations and different
purposes and powers."22
Findings of fact by the Court of Appeals are conclusive and
binding upon this Court unless said findings are not supported by
the evidence.23 Our jurisdiction in a petition for review under Rule
45 of the Rules of Court is limited only to reviewing questions of
law and factual issues are not within its province.24 In view of the
aforequoted finding of fact, no manifest error is chargeable to the
respondent court for refusing to pierce the veil of corporate
fiction. 
On the fourth issue, the appellate court found that there were two
sets of accounts between petitioners and PNB, namely:  Petitioners insist that the loans granted them by PNB from 1975
"2. The account relative to the Mirasol's current account
Numbers 5186 and 5177 involving the amount of THREE
MILLION FOUR HUNDRED THOUSAND Pesos
Brief, p. 17) 
"In regard to the first set of accounts, besides the
proceeds from PNB's sale of sugar (involving the
defendant PHILEX in relation to the export portion of tile
stock), the PNB foreclosed the Mirasols' mortgaged
properties realizing therefrom in 1981 THREE MILLION
FOUR HUNDRED THIRTEEN THOUSAND pesos
(P3,413,000.00), the PNB itself having acquired the
properties as the highest bidder. 
"As to the second set of accounts, PNB proposed, and
the Mirasols accepted, a dacion en pago scheme by
which the Mirasols conveyed to PNB pieces of property
valued at ONE MILLION FOUR HUNDRED TEN
THOUSAND FOUR HUNDRED SIXTY-SIX Pesos
(Ps1,410,466.00) (PNB's Brief, pp. 16-17)."25
Petitioners now claim that the dacion en pago and the foreclosure
of their mortgaged properties were void for want of consideration.
to 1982 had been fully paid by virtue of legal compensation.
Hence, the foreclosure was invalid and of no effect, since the In the present case, set-off or compensation cannot take place
mortgages were already fully discharged. It is also averred that between the parties because: First, neither of the parties are
they agreed to the dacion only by virtue of a martial law Arrest, mutually creditors and debtors of each other. Under P.D. No. 579,
Search, and Seizure Order (ASSO).  neither PNB nor PHILEX could retain any difference claimed by
the Mirasols in the price of sugar sold by the two firms. P.D. No.
We find petitioners' arguments unpersuasive. Both the lower court 579 prescribed where the profits from the sales are to be paid, to
and the appellate court found that the Mirasols admitted that they wit: 
were indebted to PNB in the sum stated in the latter's
counterclaim.26 Petitioners nonetheless insist that the same can "SECTION 7. x x x After deducting its commission of two
be offset by the unliquidated amounts owed them by PNB for crop and one-half (2-1/2%) percent of gross sales, the balance
years 1973-74 and 1974-75. Petitioners' argument has no basis of the proceeds of sugar trading operations for every crop
in law. For legal compensation to take place, the requirements set year shall be set aside by the Philippine Exchange
forth in Articles 1278 and 1279 of the Civil Code must be present. Company, Inc,. as profits which shall be paid to a special
Said articles read as follows:  fund of the National Government subject to the disposition
of the President for public purposes." 
"Art. 1278. Compensation shall take place when two
persons, in their own right, are creditors and debtors of Thus, as correctly found by the Court of Appeals, "there was
each other.  nothing with which PNB was supposed to have off-set Mirasols'
admitted indebtedness."27
Art. 1279. In order that compensation may be proper, it is
necessary:  Second, compensation cannot take place where one claim, as in
the instant case, is still the subject of litigation, as the same
(1) That each one of the obligors be bound principally, cannot be deemed liquidated.28
and that he be at the same time a principal creditor of the
other;  With respect to the duress allegedly employed by PNB, which
impugned petitioners' consent to the dacion en pago, both the
(2) That both debts consist in a sum of money, or if the trial court and the Court of Appeals found that there was no
things due are consumable, they be of the same kind, and evidence to support said claim. Factual findings of the trial court,
also of the same quality if the latter has been stated;  affirmed by the appellate court, are conclusive upon this Court.29

(3) That the two debts are due;  On the fifth issue, the trial court awarded petitioners P50,000.00
in moral damages and P50,000.00 in attorney's fees. Petitioners
(4) That they be liquidated and demandable;  now theorize that it was error for the Court of Appeals to have
deleted these awards, considering that the appellate court found
PNB breached its duty as an agent to render an accounting to
(5) That over neither of them there be any retention or
petitioners. 
controversy, commenced by third persons and
communicated in due time to the debtor." 
An agent's failure to render an accounting to his principal is WHEREFORE, the instant petition is DENIED and the assailed
contrary to Article 1891 of the Civil Code.30 The erring agent is decision of the respondent court in CA-G.R. CY
liable for damages under Article 1170 of the Civil Code, which 38607 AFFIRMED. Costs against petitioners.
states: 
SO ORDERED.
"Those who in the performance of their obligations are
guilty of fraud, negligence, or delay, and those who in any Bellosillo, Mendoza, Buena, De Leon, Jr., JJ., concur.
manner contravene the tenor thereof, are liable for
damages." 

Article 1170 of the Civil Code, however, must be construed in

relation to Article 2217 of said Code which reads: 

"Moral damages include physical suffering, mental

anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and
similar injury .Though incapable of pecuniary
computation, moral damages may be recovered if they
are the proximate result of the defendant's wrongful act or
omission." 

Moral damages are explicitly authorized in breaches of contract

where the defendant acted fraudulently or in bad faith.31 Good
faith, however, is always presumed and any person who seeks to
be awarded damages due to the acts of another has the burden
of proving that the latter acted in bad faith, with malice, or with ill
motive. In the instant case, petitioners have failed to show malice
or bad faith32 on the part of PNB in failing to render an accounting.
Absent such showing, moral damages cannot be awarded. 

Nor can we restore the award of attorney's fees and costs of suit
in favor of petitioners. Under Article 2208 (5) of the Civil Code,
attorney's fees are allowed in the absence of stipulation only if
"the defendant acted in gross and evident bad faith in refusing to
satisfy the plaintiff s plainly valid, just, and demandable claim." As
earlier stated, petitioners have not proven bad faith on the part of
PNB and PHILEX.  1âwphi1.nêt
 The Case

On July 31, 1998, Senators Miriam Defensor Santiago and

Francisco S. Tatad instituted an original petition for quo
Republic of the Philippines warranto under Rule 66, Section 5, Rules of Court, seeking the
SUPREME COURT ouster of Senator Teofisto T. Guingona, Jr. as minority leader of
Manila the Senate and the declaration of Senator Tatad as the rightful
minority leader.
EN BANC
On August 4, 1998, the Court, upon receipt of the Petition,
  required the respondents and the solicitor general "to file
COMMENT thereon within a non-extendible period of fifteen (15)
days from notice." On August 25, 1998, both respondents and the
G.R. No. 134577 November 18, 1998 solicitor general submitted their respective Comments. In
compliance with a Resolution of the Court dated September 1,
SEN. MIRIAM DEFENSOR SANTIAGO and SEN. FRANCISCO 1998, petitioners filed their Consolidated Reply on September 23,
S. TATAD, petitioners,  1998. Noting said pleading, this Court gave due course to the
vs. petition and deemed the controversy submitted for decision,
SEN. TEOFISTO T. GUINGONA, JR. and SEN. MARCELO B. without need of memoranda, on September 29, 1998.
FERNAN, respondents.
In the regular course, the regional trial courts and this Court have
concurrent jurisdiction  to hear and decide petitions for quo
1

warranto (as well as certiorari, prohibition and mandamus),

PANGANIBAN, J.: and a basic deference to the hierarchy of courts impels a
filing of such petitions in the lower tribunals.   However, for
2

The principle of separation of powers ordains that each of the special and important reasons or for exceptional and
three great branches of government has exclusive cognizance of compelling circumstances, as in the present case, this Court
and is supreme in matters falling within its own constitutionally has allowed exceptions to this doctrine.  In fact, original
3

allocated sphere. Constitutional respect and a becoming regard petitions for certiorari, prohibition, mandamus and quo
for she sovereign acts, of a coequal branch prevents this Court warranto assailing acts of legislative officers like the Senate
from prying into the internal workings of the Senate. Where no President  and the Speaker of the House   have been
4 5

provision of the Constitution or the laws or even the Rules of the recognized as exceptions to this rule.
Senate is clearly shown to have been violated, disregarded or
overlooked, grave abuse of discretion cannot be imputed to The Facts
Senate officials for acts done within their competence and
authority. This Court will be neither a tyrant nor a wimp; rather, it The Senate of the Philippines, with Sen. John Henry R.
will remain steadfast and judicious in upholding the rule and Osmeña as presiding officer, convened on July 27, 1998 for
majesty of the law.
the first regular session of the eleventh Congress. At the
time, in terms of party affiliation, the composition of the
Senate was as follows:  6
10 members — Laban ng Masang Pilipino
(LAMP)
7 members — Lakas-National Union of
Christian Democrats-United
Muslim Democrats of the Philippines (Lakas-
NUCD-
UMDP)
1 member — Liberal Party (LP)
1 member — Aksyon Demokrasya
1 member — People's Reform Party (PRP)
1 member — Gabay Bayan
2 members — Independent
——
23 — total number of senators   (The last six
7 Senate President formally recognized Senator Guingona as
members are all classified by petitioners as
"independent".)
On the agenda for the day was the election of officers.
Nominated by Sen. Blas F. Ople to the position of Senate
President was Sen. Marcelo B. Fernan. Sen. Francisco S.
Tatad was also nominated to the same position by Sen.
Miriam Defenser Santiago. By a vote of 20 to 2,   Senator
8 belonged to Senator Tatad.
Fernan was declared the duly elected President of the
Senate.
The following were likewise elected: Senator Ople as
president pro tempore, and Sen. Franklin M. Drilon as
majority leader.
Senator Tatad thereafter manifested that, with the agreement
of Senator Santiago, allegedly the only other member of the
minority, he was assuming the position of minority leader.
He explained that those who had voted for Senator Fernan
comprised the "majority," while only those who had voted
for him, the losing nominee, belonged to the "minority."
During the discussion on who should constitute the Senate
"minority," Sen. Juan M. Flavier manifested that the senators
belonging to the Lakas-NUCD-UMDP Party — numbering
seven (7) and, thus, also a minority — had chosen Senator
Guingona as the minority leader. No consensus on the
matter was arrived at. The following session day, the debate
on the question continued, with Senators Santiago and Tatad
delivering privilege speeches. On the third session day, the
Senate met in caucus, but still failed to resolve the issue.
On July 30, 1998, the majority leader informed the body chat
he was in receipt of a letter signed by the seven Lakas-
NUCD-UMDP senators,  stating that they had elected Senator
9
Guingona as the minority leader. By virtue thereof, the
the minority leader of the Senate.
The following day, Senators Santiago and Tatad filed before
this Court the subject petition for quo warranto, alleging in
the main that Senator Guingona had been usurping,
unlawfully holding and exercising the position of Senate
minority leader, a position that, according to them, rightfully
 Issues
From the parties' pleadings, the Court formulated the
following issues for resolution:
1. Does the Court have jurisdiction over the
petition?
2. Was there an actual violation of the
Constitution?
3. Was Respondent Guingona usurping,
unlawfully holding and exercising the position
of Senate minority leader?
4. Did Respondent Fernan act with grave
abuse of discretion in recognizing Respondent
Guingona as the minority leader?
The Court's Ruling
After a close perusal of the pleadings   and a careful
10
deliberation on the arguments, pro and con, the Court finds
that no constitutional or legal infirmity or grave abuse of
discretion attended the recognition of and the assumption
into office by Respondent Guingona as the Senate minority
leader.
First Issue:
The Court's Jurisdiction
Petitioners principally invoke Avelino v. Cuenco 11 in
arguing that this Court has jurisdiction to settle the issue of
who is the lawful Senate minority leader. They submit that
the definitions of "majority" and "minority" involve an
interpretation of the Constitution, specifically Section 16 (1),
Article VI thereof, stating that "[t]he Senate shall elect its
President and the House of Representatives its Speaker, by a
majority vote of all its respective Members."
Respondents and the solicitor general, in their separate
Comments, contend in common that the issue of who is the
lawful Senate minority leader is an internal matter pertaining
exclusively to the domain of the legislature, over which the
Court cannot exercise jurisdiction without transgressing the
principle of separation of powers. Allegedly, no
constitutional issue is involved, as the fundamental law does
not provide for the office of a minority leader in the Senate.
The legislature alone has the full discretion to provide for
such office and, in that event, to determine the procedure of
selecting its occupant.
Respondents also maintain that Avelino cannot apply,
because there exists no question involving an interpretation
or application of the Constitution, the laws or even the Rules
of the Senate; neither are there "peculiar circumstances"
impelling the Court to assume jurisdiction over the petition.
The solicitor general adds that there is not even any
legislative practice to support the petitioners' theory that a
senator who votes for the winning Senate President is
precluded from becoming the minority leader.
To resolve the issue of jurisdiction, this Court carefully
reviewed and deliberated on the various important cases
involving this very important and basic question, which it
has ruled upon in the past.
The early case Avelino v. Cuenco cautiously tackled the
scope of the Court's power of judicial review; that is,
questions involving an interpretation or application of a
provision of the Constitution or the law, including the rules
of either house of Congress. Within this scope falls the
jurisdiction of the Court over questions on the validity of
legislative or executive acts that are political in nature,
whenever the tribunal "finds constitutionally imposed limits
on powers or functions conferred upon political bodies."  12
In the aforementioned case, the Court initially declined to
resolve the question of who was the rightful Senate
President, since it was deemed a political controversy falling
exclusively within the domain of the Senate. Upon a motion
for reconsideration, however, the Court ultimately assumed
jurisdiction (1) "in the light of subsequent events which
justify its intervention;" and (2) because the resolution of the
issue hinged on the interpretation of the constitutional
provision on the presence of a quorum to hold a
session   and therein elect a Senate President.
13
Justice Feria elucidated in his Concurring Opinion: "[I]
concur with the majority that this Court has jurisdiction over
cases like the present . . . so as to establish in this country
the judicial supremacy, with the Supreme Court as the final
arbiter, to see that no one branch or agency of the
government transcends the Constitution, not only in
justiceable but political questions as well." 
14
Justice Perfecto, also concurring, said in part:
Indeed there is no denying that the situation,
as obtaining in the upper chamber of
Congress, is highly explosive. It had echoed in
the House of Representatives. It has already
involved the President of the Philippines. The
situation has created a veritable national
crisis, and it is apparent that solution cannot
be expected from any quarter other than this
Supreme Court, upon which the hopes of the
people for an effective settlement are pinned.  15
. . . This case raises vital constitutional
questions which no one can settle or decide if
this Court should refuse to decide them.  16
. . . The constitutional question of quorum
should not be left unanswered.  17
In Tañada v. Cueno,   this Court endeavored to
18
define political question. And we said that "it refers to 'those
questions which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in regard to
which full discretionary authority has been delegated to the
legislative or executive branch of the government.' It is
concerned with issues dependent upon the wisdom, not
[the] legality, of a particular measure." 
19
The Court ruled that the validity of the selection of members
of the Senate Electoral Tribunal by the senators was not a
political question. The choice of these members did not
depend on the Senate's "full discretionary authority," but
was subject to mandatory constitutional limitations.   Thus,
20
the Court held that not only was it clearly within its
jurisdiction to pass upon the validity of the selection
proceedings, but it was also its duty to consider and
determine the issue.
In another landmark case, Lansang v. Garcia,   Chief Justice
21
Roberto Concepcion wrote that the Court "had authority to
and should inquire into the existence of the factual bases
required by the Constitution for the suspension of the
privilege of the writ [of habeas corpus]." This ruling was
made in spite of the previous pronouncements in Barcelon
v. Baker   and Montenegro v. Castañeda   that "the authority
22 23
to decide whether the exigency has arisen requiring
suspension (of the privilege . . .) belongs to the President
and his 'decision is final and conclusive' upon the courts and
upon all other persons." But the Chief Justice cautioned:
"the function of the Court is merely to check — not
to supplant — the Executive, or to ascertain merely whether
he has gone beyond the constitutional limits of his
jurisdiction, not to exercise the power vested in him or to
determine the wisdom of his act."
The eminent Chief Justice aptly explained later in Javellana
v. Executive Secretary: 
24
The reason why the issue under consideration
and other issues of similar character are
justiciable, not political, is plain and simple.
One of the principal bases of the non-
justiciability of so-called political questions is
the principle of separation of powers —
characteristic of the presidential system of
government — the functions of which are
classified or divided, by reason of their nature,
into three (3) categories, namely, 1) those
involving the making of laws, which are
allocated to the legislative department; 2)
those concerning mainly with the enforcement
of such laws and of judicial decisions applying
and/or interpreting the same, which belong to
the executive department; and 3) those
dealing with the settlement of disputes,
controversies or conflicts involving rights,
duties or prerogatives that are legally
demandable and enforceable, which are
apportioned to courts of justice. Within its
own sphere — but only within such sphere —
each department is supreme and independent
of the others, and each is devoid of authority
not only to encroach upon the powers or field
of action assigned to any of the other
departments, but also to inquire into or pass
upon the advisability or wisdom of the acts
performed, measures taken or decisions made
by the other departments — provided that
such acts, measures or decisions
are within the area allocated thereto by the
Constitution.
Accordingly, when the grant of power is
qualified, conditional or subject to limitations,
the issue of 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 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 the 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 [92 Ky. 589, 18 SW 522,
523], 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."
Unlike our previous constitutions, the 1987 Constitution is
explicit in defining the scope of judicial power. The present
Constitution now fortifies the authority of the courts to
determine in an appropriate action the validity of the acts of
the political departments. It speaks of judicial prerogative in
terms of duty, viz.:
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.  25
This express definition has resulted in clearer and more
resolute pronouncements of the Court. Daza v.
Singson,   Coseteng v. Mitra, Jr.   and Guingona Jr. v.
26 27
Gonzales   similarly resolved issues assailing the acts of the
28
leaders of both houses of Congress in apportioning among
political parties the seats to which each chamber was
entitled in the Commission on Appointments. The Court held
that the issue was justiciable, "even if the question were
political in nature," since it involved "the legality, not the
wisdom, of the manner of filling the Commission on
Appointments as prescribed by [Section 18, Article VI of] the
Constitution."
The same question of jurisdiction was raised in Tañada v.
Angara,   wherein the petitioners sought to nullify the
29
Senate's concurrence in the ratification of the World Trade
Organization (WTO) Agreement. The Court ruled: "Where an
action of the legislative branch is seriously alleged to have
infringed the Constitution, it becomes not only the right but
in fact the duty of the judiciary to settle the dispute." The
Court en banc unanimously stressed that in taking
jurisdiction over petitions questioning, an act of the political
departments of government, it will not review the wisdom,
merits or propriety of such action, and will strike it down
only on either of two grounds: (1) unconstitutionality or
illegality and (2) grave abuse of discretion.
Earlier in Co v. Electoral Tribunal of the House of
Representatives   (HRET), the Court refused to reverse a
30
decision of the HRET, in the absence of a showing that said
tribunal had committed grave abuse of discretion amounting
to lack of jurisdiction. The Court ruled that full authority had
been conferred upon the electoral tribunals of the House of
Representatives and of the Senate as sole judges of all
contests relating to the election, the returns, and the
qualifications of their respective members. Such jurisdiction
is original and exclusive.   The Court may inquire into a
31
decision or resolution of said tribunals only if such "decision
or resolution was rendered without or in excess of
jurisdiction, or with grave abuse of discretion"  32
Recently, the Court, in Arroyo v. De Venecia,   was asked to
33
reexamine the enrolled bill doctrine and to look beyond the
certification of the Speaker of the House of Representatives
that the bill, which was later enacted as Republic Act 8240,
was properly approved by the legislative body. Petitioners
claimed that certain procedural rules of the House had been
breached in the passage of the bill. They averred further that
a violation of the constitutionally mandated House rules was
a violation of the Constitution itself.
The Court, however, dismissed the petition, because the
matter complained of concerned the internal procedures of
the House, with which the Court had no concern. It
enucleated: 34
It would-be an unwarranted invasion of the
prerogative of a coequal department for this
Court either to set aside a legislative action as
void because the Court thinks the House has
disregarded its own rules of procedure, or to
allow those defeated in the political arena to
 seek a rematch in the judicial forum when
petitioners can find their remedy in that
department itself. The Court has not been
invested with a roving commission to inquire
into complaints, real or imagined, of legislative
skullduggery. It would be acting in excess of
its power and would itself be guilty of grave
abuse of discretion were it to do so. . . . In the
absence of anything to the contrary, the Court
must assume that Congress or any House
thereof acted in the good faith belief that its
conduct was permitted by its rules, and
deference rather than disrespect is due the
judgment of that body.
In the instant controversy, the petitioners — one of whom is
Senator Santiago, a well-known constitutionalist — try to
hew closely to these jurisprudential parameters. They claim
that Section 16 (1), Article VI of the constitution, has not
been observed in the selection of the Senate minority leader.
They also invoke the Court's "expanded" judicial power "to
determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction" on the
part of respondents.
Dissenting in part, Mr. Justice Vicente V. Mendoza submits
that the Court has no jurisdiction over the petition. Well-
settled is the doctrine, however, that jurisdiction over the
subject matter of a case is determined by the allegations of
the complaint or petition, regardless of whether the plaintiff
or petitioner is entitled to the relief asserted.   In light of the
35
aforesaid allegations of petitioners, it is clear that this Court
has jurisdiction over the petition. It is well within the power
and jurisdiction of the Court to inquire whether indeed the
Senate or its officials committed a violation of the
Constitution or gravely abused their discretion in the
exercise of their functions and prerogatives.
Second Issue:
Violation of the Constitution
Having assumed jurisdiction over the petition, we now go to
the next crucial question: In recognizing Respondent
Guingona as the Senate minority leader, did the Senate or its
officials, particularly Senate President Fernan, violate the
Constitution or the laws?
Petitioners answer the above question in the affirmative.
They contend that the constitutional provision requiring the
election of the Senate President "by majority vote of all
members" carries with it a judicial duty to determine the
concepts of "majority" and "minority," as well as who may
elect a minority leader. They argue that "majority" in the
aforequoted constitutional provision refers to that group of
senators who (1) voted for the winning Senate President and
(2) accepted committee chairmanships. Accordingly, those
who voted for the losing nominee and accepted no such
chairmanships comprise the minority, to whom the right to
determine the minority leader belongs. As a result,
petitioners assert, Respondent Guingona cannot be the
legitimate minority leader, since he voted for Respondent
Fernan as Senate President. Furthermore, the members of
the Lakas-NUCD-UMDP cannot choose the minority leader,
because they did not belong to the minority, having voted for
Fernan and accepted committee chairmanships.
We believe, however, that the interpretation proposed by
petitioners finds no clear support from the Constitution, the
laws, the Rules of the Senate or even from practices of the
Upper House.
The term "majority" has been judicially defined a number of
times. When referring to a certain number out of a total or
aggregate, it simply "means the number greater than half or
more than half of any total."  The plain and unambiguous
36
words of the subject constitutional clause simply mean that
the Senate President must obtain the votes of more than one
half of all the senators. Not by any construal does it thereby
delineate who comprise the "majority," much less the
"minority," in the said body. And there is no showing that the
framers of our Constitution had in mind other than the usual
meanings of these terms.
In effect, while the Constitution mandates that the President
of the Senate must be elected by a number constituting more
than one half of all the members thereof, it does not provide
that the members who will not vote for him shall ipso
facto constitute the "minority," who could thereby elect the
minority leader. Verily, no law or regulation states that the
defeated candidate shall automatically become the minority
leader.
The Comment   of Respondent Guingona furnishes some
37
relevant precedents, which were not contested in petitioners'
Reply. During the eighth Congress, which was the first to
convene after the ratification of the 1987 Constitution, the
nomination of Sen. Jovito R Salonga as Senate President
was seconded by a member of the minority, then Sen.
Joseph E. Estrada.   During the ninth regular session, when
38
Sen. Edgardo J. Angara assumed the Senate presidency in
1993, a consensus was reached to assign committee
chairmanships to all senators, including those belonging to
the minority.   This practice continued during the tenth
39
Congress, where even the minority leader was allowed to
chair a committee.   History would also show that the
40
"majority" in either house of Congress has referred to the
political party to which the most number of lawmakers
belonged, while the "minority" normally referred to a party
with a lesser number of members.
Let us go back to the definitions of the terms "majority" and
"minority." Majority may also refer to "the group, party, or
faction with the larger number of votes,"   not necessarily
41
more than one half. This is sometimes referred to as
plurality. In contrast, minority is "a group, party, or faction
with a smaller number of votes or adherents than the
majority."   Between two unequal parts or numbers
42
comprising a whole or totality, the greater number would
obviously be the majority while the lesser would be the
minority. But where there are more than two unequal
groupings, it is not as easy to say which is the minority
entitled to select the leader representing all the minorities. In
a government with a multi-party system such as in the
Philippines (as pointed out by petitioners themselves), there
could be several minority parties, one of which has to be
indentified by the Comelec as the "dominant minority party"
for purposes of the general elections. In the prevailing
composition of the present Senate, members either belong
to different political parties or are independent. No
constitutional or statutory provision prescribe which of the
many minority groups or the independents or a combination
thereof has the right to select the minority leader.
While the Constitution is explicit on the manner of electing a
Senate President and a House Speaker, it is, however, dead
silent on the manner of selecting the other officers in both
chambers of Congress. All that the Charter says is that
"[e]ach House shall choose such other officers as it may
deem necessary."   To our mind, the method of choosing
43
who will be such other officers is merely a derivative of the
exercise of the prerogative conferred by the aforequoted
constitutional provision. Therefore, such method must be
prescribed by the Senate itself, not by this Court.
In this regard, the Constitution vests in each house of
Congress the power "to determine the rules of its
proceedings."   Pursuant thereto, the Senate formulated and
44
adopted a set of rules to govern its internal
affairs.   Pertinent to the instant case are Rules I and II
45
thereof, which provide:
 Rule I
ELECTIVE OFFICERS
Sec 1. The Senate shall elect, in the manner
hereinafter provided, a President, a President
Pro Tempore, a Secretary, and a Sergeant-at-
Arms.
These officers shall take their oath of office
before entering into the discharge of their
duties.
Rule II
ELECTION OF OFFICER
Sec. 2. The officers of the Senate shall be
elected by the majority vote of all its Members.
Should there be more than one candidate for
the same office, a nominal vote shall be taken;
otherwise, the elections shall be by viva
voce or by resolution.
Notably, the Rules of the Senate do not provide for the
positions of majority and minority leaders. Neither is there
an open clause providing specifically for such offices and
prescribing the manner of creating them or of choosing the
holders thereof, At any rate, such offices, by tradition and
long practice, are actually extant. But, in the absence of
constitutional or statutory guidelines or specific rules, this
Court is devoid of any basis upon which to determine the
legality of the acts of the Senate relative thereto. On grounds
of respect for the basic concept of separation of powers,
courts may not intervene in the internal affairs of the
legislature; it is not within the province of courts to direct
Congress how to do its work.   Paraphrasing the words of
46
Justice Florentino P. Feliciano, this Court is of the opinion
that where no specific, operable norms and standards are
shown to exist, then the legislature must be given a real and
effective opportunity to fashion and promulgate as well as to
implement them, before the courts may intervene.  47
Needless to state, legislative rules, unlike statutory laws, do
not have the imprints of permanence and obligatoriness
during their effectivity. In fact, they "are subject to
revocation, modification or waiver at the pleasure of the
body adopting them."   Being merely matters of procedure,
48
their observance are of no concern to the courts, for said
rules may be waived or disregarded by the legislative
body   at will, upon the concurrence of a majority.
49
In view of the foregoing, Congress verily has the power and
prerogative to provide for such officers as it may deem. And
it is certainly within its own jurisdiction and discretion to
prescribe the parameters for the exercise of this prerogative.
This Court has no authority to interfere and unilaterally
intrude into that exclusive realm, without running afoul of
constitutional principles that it is bound to protect and
uphold — the very duty that justifies the Court's being.
Constitutional respect and a becoming regard for the
sovereign acts of a coequal branch prevents this Court from
prying into the internal workings of the Senate. To repeat,
this Court will be neither a tyrant nor a wimp; rather, it will
remain steadfast and judicious in upholding the rule and
majesty of the law.
To accede, then, to the interpretation of petitioners would
practically amount to judicial legislation, a clear breach of
the constitutional doctrine of separation of powers. If for this
argument alone, the petition would easily fail.
While no provision of the Constitution or the laws or the
rules and even the practice of the Senate was violated, and
while the judiciary is without power to decide matters over
which full discretionary authority has been lodged in the
legislative department, this Court may still inquire whether
an act of Congress or its officials has been made with grave
abuse of discretion.   This is the plain implication of Section
50
1, Article VIII of the Constitution, which expressly confers
upon the judiciary the power and the duty not only "to settle
actual controversies involving rights which are legally
demandable and enforceable," but likewise "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."
Explaining the above-quoted clause, former Chief Justice
Concepcion, who was a member of the 1986 Constitutional
Commission, said in part:  51
. . . the powers of government are generally
considered divided into three branches: the
Legislative, the Executive and the Judiciary.
Each one is supreme within its own sphere
and independent of the others. Because of
that supremacy[, the] power to determine
whether a given law is valid or not is vested in
courts of justice.
Briefly stated, courts of justice determine the
limits of power of the agencies and offices of
the government as well as those of its officers.
In other words, the judiciary is the final arbiter
on the question whether or not a branch of
government or any of its officials has acted
without jurisdiction or in excess of
jurisdiction, or so capriciously as to constitute
an abuse of discretion amounting to excess of
jurisdiction or lack of jurisdiction. This is not
only a judicial power but a duty to pass
judgment on matters of this nature.
This is the background of paragraph 2 of
Section 1, which means that the courts cannot
hereafter evade the duty to settle matters of
this nature, by claiming that such matters
constitute a political question.
With this paradigm, we now examine the two other issues
challenging the actions, first, of Respondent Guingona and,
second, of Respondent Fernan.
Third Issue:
Usurpation of Office
Usurpation generally refers to unauthorized arbitrary
assumption and exercise of power   by one without color of
52
title or who is not entitled by law thereto.   A quo
53
warranto proceeding is the proper legal remedy to determine
the right or title to the contested public office and to oust the
holder from its enjoyment.   The action may be brought by
54
the solicitor general or a public prosecutor   or any person
55
claiming to be entitled to the public office or position
usurped or unlawfully held or exercised by another.   The 56
action shall be brought against the person who allegedly
usurped, intruded into or is unlawfully holding of exercising
such office. 57
In order for a quo warranto proceeding to be successful, the
person suing must show that he or she has aclear right to
the contested office or to use or exercise the functions of the
office allegedly usurped or unlawfully held by the
respondent.   In this case, petitioners present no sufficient
58
proof of a clear and indubitable franchise to the office of the
Senate minority leader.
As discussed earlier, the specific norms or standards that
may be used in determining who may lawfully occupy the
disputed position has not been laid down by the
Constitution, the statutes, or the Senate itself in which the
power has been vested. Absent any clear-cut guideline, in no
way can it be said that illegality or irregularity tainted
Respondent Guingona's assumption and exercise of the
powers of the office of Senate minority leader. Furthermore,
no grave abuse of discretion has been shown to characterize
any of his specific acts as minority leader.
Fourth Issue:
Fernan's Recognition of Guingona
The all-embracing and plenary power and duty of the Court
"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"
is restricted only by the definition and confines of the term
"grave abuse of discretion."
By grave abuse of discretion is meant such
capricious or whimsical exercise of judgment
as is equivalent to lack of jurisdiction. The
abuse of discretion must be patent and gross
as to amount to an evasion of positive duty or
a virtual refusal to perform a duty enjoined by
law, or to act at all in contemplation of law as
where the power is exercised in an arbitrary
and despotic manner by reason of passion
and hostility. 
59
By the above standard, we hold that Respondent Fernan did
not gravely abuse his discretion as Senate President in
recognizing Respondent Guingona as the minority leader.
Let us recall that the latter belongs to one of the minority
parties in the Senate, the Lakas-NUCD-UMDP. By unanimous
resolution of the members of this party that he be the
minority leader, he was recognized as such by the Senate
President. Such formal recognition by Respondent Fernan
came only after at least two Senate sessions and a caucus,
wherein both sides were liberally allowed to articulate their
standpoints.
Under these circumstances, we believe that the Senate
President cannot be accused of "capricious or whimsical
exercise of judgment" or of "an arbitrary and despotic
manner by reason of passion or hostility." Where no
provision of the Constitution, the laws or even the rules of
the Senate has been clearly shown to have been violated,
disregarded or overlooked, grave abuse of discretion cannot
be imputed to Senate officials for acts done within their
competence and authority.
WHEREFORE, for the above reasons, the petition is hereby
DISMISSED.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo, Puno, Martinez, Quisumbing
and Pardo, JJ., concur.
Romero, J., Please see separate opinion.
Bellosillo, J., No part. Did not take part in deliberation.
Vitug, J., Pls. see separate opinion.
Kapunan, J., I concur with Justice Mendoza's concurring and
dissenting opinion.
Mendoza, J., Please see concurring and dissenting opinion.
Purisima, J., Join concurring and dissenting opinion of
Justice Mendoza.

Separate Opinions
MENDOZA, J., concurring in the judgment and dissenting in
part;
I concur in the judgment of the Court, but I disagree that "[it]
has jurisdiction over the petition [in this case] to determine
whether the Senate or its officials committed a violation of
the Constitution or gravely abused their discretion in the
exercise of their functions and prerogatives." 1
The Court has no jurisdiction over this case. The question
who constitute the minority in the Senate entitled to elect the
minority leader of that chamber is political. It respects the
internal affairs of a coequal department of the government
and is thus addressed solely to that august body.
Courts have no power to inquire into the internal
organization and business of a house of Congress except as
the question affects the rights of third parties or a specific
constitutional limitation is involved.
For this reason this Court has declined to take cognizance of
cases involving the discipline of members  of the legislature
2
and the application and interpretation of the rules of
procedure of a house.  For indeed, these matters pertain to
3
the internal government of Congress and are within its
exclusive jurisdiction.
Dean Sinco has pointed out that the Speaker of the House of
Representatives and the President of the Senate are not
state officers. They do not attain these positions by popular
vote but only by the vote of their respective chambers. They
receive their mandate as such not from the voters but from
their peers in the house. While their offices are a
constitutional creation, nevertheless they are only legislative
officers. It is their position as members of Congress which
gives them the status of state officers. As presiding officers
of their respective chambers, their election as well as
removal is determined by the vote of the majority of the
members of the house to which they belong.  Thus, Art VI,
4
§16(1) of the Constitution provides:
The Senate shall elect its President and the of
Representatives its Speaker, by a majority
vote of all its respective Members.
Each House shall choose such other officers
as it may deem necessary.
This is likewise true of the "other officers" of each
house whose election and removal rest solely within
the prerogative of the members and is no concern of
the courts.
Indeed, in those cases in which this Court took cognizance
of matters pertaining to the internal government of each
house, infringements of specific constitutional limitations
were alleged.
In Avelino v. Cuenco,  the question was whether with only 12
5
senators present there was a quorum for the election of the
Senate President, considering that, of the 24 members, one
was in the hospital while another one was abroad. The case
called for an interpretation of Art. VI, §10(2) of the 1935
Constitution which provided that "A majority of each House
shall constitute a quorum to do business. . . ." While initially
declining to assume jurisdiction, this Court finally took
cognizance of the matter. As Justice Perfecto, whose
separate opinion in support of the assumption of jurisdiction
was one of the reasons which persuaded the Court to
intervene in the Senate imbroglio, stated, "Whether there
was a quorum or not in the meeting of twelve Senators . . . is
a question that calls for the interpretation, application and
enforcement of an express and specific provision of the
Constitution."  In his view, "The word quorum is a
6
mathematical word. It has, as such, a precise and exact
mathematical meaning. A majority means more than one-half
(1/2)." 
7
In Tañada v. Cuenco,  the question was whether the majority
8
could fill the seats intended for the minority party in the
Senate Electoral Tribunal when there are not enough
minority members in the Senate. Again, the question was
governed by a specific provision (Art. VI, §11) of the 1935
charter which provided that the Electoral Tribunals of each
house should be composed of "nine Members, three of
whom shall be Justices of the Supreme Court . . . I and the
remaining six shall be Members of the Senate or of the
House of Representatives, as the case may be, who shall be
chosen by each House, three upon the nomination of the
party having the largest number of votes and three of the
party having the second largest number of votes therein."
There was, therefore, a specific constitutional provision to
be applied.
The cases  concerning the composition of the Commission
9
on Appointments likewise involved the mere application of a
constitutional provision, specifically Art. VI, §18 of the
present Constitution which provides that the Commission
shall be composed of "twelve Senators and twelve Members
of the House of Representatives, elected by each House on
the basis of proportional representation from the political
parties and parties or organizations registered under the
party-list system represented therein." Undoubtedly, the
Court had jurisdiction over the cases.
On the other hand, as long as the proportional
representation of political parties and organizations is
observed the Court has held itself to be without jurisdiction
over the choice of nominees. In Cabili v. Francisco,   it
10
declined to take cognizance of a quo warranto suit seeking
to annul the recomposition of the Senate representation in
the Commission and to reinstate a particular senator after
satisfying itself that such recomposition of the Senate
representation was not a "departure from the constitution
mandate requiring proportional representation of the
political organizations in the Commission on Appointments."
It is true that in Cunanan v. Tan   this Court took cognizance
11
of the case which involved the reorganization of the
Commission as a result of the realignment of political forces
in the House of Representatives and the formation of a
temporary alliance. But the Court's decision was justified
because the case actually involved the right of a third party
whose nomination by the President had been rejected by the
reorganized Commission. As held in Pacete v. The Secretary
of the Commission on Appointments.   where the
12
construction to be given to a rule affects persons other than
members of the legislative body, the question presented is
judicial in character.
In contrast to the specific constitutional limitations involved
in the foregoing cases, beyond providing that the Senate and
the House of Representatives shall elect a President and
Speaker, respectively, and such other officers as each house
shall determine "by a majority vote of all [their] respective
Members," the Constitution leaves everything else to each
house of Congress. Such matters are political and are left
solely to the judgment of the legislative department of the
government.
This case involves neither an infringement of specific
constitutional limitations nor a violation of the rights of a
party not a member of Congress. This Court has jurisdiction
over this case only in the sense that determining whether the
question involved is reserved to Congress is itself an
exercise of jurisdiction in the same way that a court which
dismisses a case for lack of jurisdiction must in a narrow
sense have jurisdiction since it cannot dismiss the case if it
were otherwise. The determination of whether the question
involved is justiciable or not is in itself a process of
constitutional interpretation. This is the great lesson
ofMarbury v. Madison   in which the U.S. Supreme Court,
13
while affirming its power of review, in the end held itself to
be without jurisdiction because the Judiciary Act of 1789
granting it jurisdiction over that case was unconstitutional.
In other words, a court doing a Marbury v. Madison has no
jurisdiction except to declare itself without jurisdiction over
the case.
I vote to dismiss the petition in this case for lack of
jurisdiction.
 
ROMERO, J., separate opinion;
"Loyalty to petrified opinion never yet broke a chain or freed
a human soul."
These words vividly inscribed just beneath Mark Twain's
bust at the Hall of Fame veritably speaks about the creativity
and dynamism which ought to characterize our perspective
of things. It instructs us to broaden our horizon that we may
not be held captive by ignorance. Free and robust thinking is
the imperative.
But there are times when one has to render fealty to certain
fundamental precepts and I believe that this occasion
presents an opportunity to do so. Thus, as I join the majority
and cast my vote today for the denial of the instant petition,
may I just be allowed to reiterate jurisprudential postulates
which I have long embraced, not for the sake of "loyalty to
petrified opinion" but to stress consistency in doctrine in the
hope that all future disputes of this nature may be similarly
resolved in this manner.
This is not actually the first time that the Court has been
invited to resolve a matter originating from the internal
processes undertaken by a co-equal branch of government,
more particularly the Senate in this case. Earlier, in the
landmark case of Tolentino v. Secretary of Finance, et
al.,  we were confronted, among other things, by the issue of
1
whether a significant tax measure namely, Republic Act. No.
7716 (Expanded Value-Added Tax Law), went through the
legislative mill in keeping with the constitutionally-mandated
procedure for the passage of bills. Speaking through Justice
Vicente V. Mendoza, the majority upheld the tax measure's
validity, relying on the enrolled bill theory and the view that
the Court is not the appropriate forum to enforce internal
legislative rules supposedly violated when the bill was being
passed by Congress. I took a different view, however, from
the majority because of what I felt was a sweeping reliance
on said doctrines without giving due regard to the peculiar
facts of the case. I underscored that these principles may not
be applied where the internal legislative rules would breach
the Constitution which this Court has a solemn duty to
uphold. It was my position then that the introduction of
several provisions in the Bicameral Committee Report
violated the constitutional proscription against any
amendment to a bill upon the last reading thereof and which
this Court, in the exercise of its judicial power, can properly
inquire into without running afoul of the principle of
separation of powers.
Last year,  Arroyo, et al. v. de Venecia, et al.  presented an
2 3
opportunity for me to clarify my position further. In that case,
Congressman Joker Arroyo filed a petition before the Court
complaining that during a session by the House of
Representatives, he was effectively prevented from raising
the question of quorum which to him tainted the validity of
Republic Act No. 8240, or the so-called "sin taxes" law. The
Court, speaking again through Justice Mendoza, dismissed
Mr. Arroyo's petition, arguing in the main that courts are
denied the power to inquire into allegations that, in enacting
a law, a House of Congress failed to comply with its own
rules, in the absence of showing that there was a violation of
a constitutional provision or the rights of private individuals.
Concurring with the majority opinion, I discerned a need to
explain my position then because of possible
misinterpretation. I was very emphatic that I did not abandon
my position in Tolentino, the facts as presented
in Arroyo being radically different from the former. In
keeping with my view that judicial review is permissible only
to uphold the Constitution, I pointed out that the legislative
rules allegedly violated were purely internal and had no
direct or reasonable nexus to the requirements and
proscriptions of the Constitution in the passage of a bill
which would otherwise warrant the Court's intervention.
In the instant case, at the risk of being repetitious, I again
take a similar stand as the ones I made in the two cited
cases.
Although this case involves the question of who is the
rightful occupant of a Senate "office" and does not deal with
the passage of a bill or the observance of internal rules for
the Senate's conduct of its business, the same ground as I
previously invoked may justify the Court's refusal to pry into
the procedures of the Senate. There is to me no
constitutional breach which has been made and, ergo, there
is nothing for this Court to uphold. The interpretation placed
by petitioners on Section 16 (1), Article VI of the 1987
Constitution clearly does not find support in the text
thereof. Expressium facit cessare tacitum. What is
expressed puts an end to that which is implied. The majority
vote required for the election of a Senate President and a
Speaker of the House of Representatives speaks only of
such number or quantity of votes for an aspirant to be
lawfully elected as such. There is here no declaration that by
so electing, each of the two Houses of Congress is thereby
divided into camps called the "majority" and the "minority."
In fact, the "offices" of Majority Floor Leader and Minority
Floor Leader are not explicitly provided for as constitutional
offices. As pointed out by my esteemed colleague, Justice
Artemio V. Panganiban, who penned the herein majority
opinion, even on the theory that under paragraph 2, Section
16 (1) of Article VI of the Constitution, each House shall
choose such other officers as it may deem necessary, still
"the method of choosing who will be such officers is merely
a derivative of the exercise of the prerogative conferred by
the aforequoted constitutional provision." With the
prerogative being, therefore, bestowed upon the Senate,
whatever differences the parties may have against each
other must be settled in their own turf and the Court,
conscious as it is of its constitutionally-delineated powers,
will not take a perilous move to overstep the same.
 
VITUG, J., separate opinion;
The 1987 Constitution, like the counterpart 1935 and 1973
Constitutions, has continued to be implicit in its recognition
of the time-honored precept of separation of powers which
enjoins upon each of the three co-equal and independent,
albeit coordinate, branches of the government — the
Legislative, the Executive and the Judiciary — proper
acknowledgment and respect for each other. The Supreme
Court, said to be holding neither the "purse" (held by
Congress) nor the "sword" (held by the Executive) but
serving as the balance wheel in the State governance,
functions both as the tribunal of last resort and as the
Constitutional Court of the nation.  Peculiar, however, to the
1
present Constitution, specifically under Article VII, Section 1,
thereof, is the extended jurisdiction of judicial power that
now explicitly allows the determination of "whether or not
there has been grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of the government."  This expanded concept
2
of judicial power seems to have been dictated by the martial
law experience and to be an immediate reaction to the abuse
in the frequent recourse to the political question doctrine
that in no small measure has emasculated the Court. The
term "political question," in this context, refers to matters
which, under the Constitution, are to be decided by the
people in their sovereign capacity or in regard to which
discretionary authority has been delegated to the legislative
or executive branch of the government.
The Supreme Court, nevertheless, should not be thought of
as having been tasked with the awesome responsibility of
overseeing the entire bureaucracy. I find it here opportune to
reiterate what I have stated inTolentino vs. Secretary of
Finance,  viz:
3
I cannot yet concede to the novel theory, so
challengingly provocative as it might be, that
under the 1987 Constitution the Court may
now at good liberty intrude, in the guise of the
people's imprimatur, into every affair of
government. What significance can still then
remain, I ask, of the time honored and widely
acclaimed principle of separation of powers if,
at every turn, the Court allows itself to pass
upon at will the disposition of a co-equal,
independent and coordinate branch in our
system of government. I dread to think of the
so varied uncertainties that such an undue
interference can lead to. The respect for long
standing doctrines in our jurisprudence,
nourished through time, is one of maturity, not
timidity, of stability rather than quiescence.
Pervasive and limitless, such as it, may seem to be,
judicial power still succumbs to the paramount
doctrine of separation of powers. Congress is the
branch of government, composed of the
representatives of the people, that lays down the
policies of government and provides the direction
that the nation must take. The Executive carries out
that mandate. Certainly, the Court will not negate that
which is done by these, co-equal and co-ordinate
branches merely because of a perceived case of
grave abuse of discretion on their part, clearly too
relative a phrase to be its own sentinel against
misuse, even as it will not hesitate to wield the power
if that abuse becomes all too clear. The exercise of
judicial statesmanship, not judicial tyranny, is what
has been envisioned by and institutionalized in the
1987 Constitution.
There is no harnbook rule by which grave abuse of
discretion may be determined. The provision was evidently
couched in general terms to make it malleable to judicial
interpretation in the light of any contemporary or emerging
millieu. In its normal concept, the term has been said to
imply capricious and whimsical exercise of judgment,
amounting, to lack or excess of jurisdiction, or at the power
is exercised in an arbitrary or despotic manner such as by
reason of passion or personal hostility. When the question,
however, pertains to an affair internal to either of Congress
or the Executive, I would subscribe to thedictum, somewhat
made implicit in my understanding of Arroyo vs. De
Venecia,  that unless an infringement of any specific
4
Constitutional proscription thereby inheres the Court will not
deign substitute its own judgment over that of any of the
other two branches of government. Verily, in this situation, it
is an impairment or a clear disregard of a specific
constitutional precept or provision that can unbolt the steel
door for judicial intervention.
In the instant settings, I find insufficient indication to have
the case hew to the above rule.
Accordingly, I vote for the dismissal of the petition.
Separate Opinions
MENDOZA, J., concurring in the judgment and dissenting in
part;
I concur in the judgment of the Court, but I disagree that "[it]
has jurisdiction over the petition [in this case] to determine
whether the Senate or its officials committed a violation of
the Constitution or gravely abused their discretion in the
exercise of their functions and prerogatives." 1
The Court has no jurisdiction over this case. The question
who constitute the minority in the Senate entitled to elect the
minority leader of that chamber is political. It respects the
internal affairs of a coequal department of the government
and is thus addressed solely to that august body.
Courts have no power to inquire into the internal
organization and business of a house of Congress except as
the question affects the rights of third parties or a specific
constitutional limitation is involved.
For this reason this Court has declined to take cognizance of
cases involving the discipline of members  of the legislature
2 In Avelino v. Cuenco,  the question was whether with only 12
and the application and interpretation of the rules of
procedure of a house.  For indeed, these matters pertain to
3 Senate President, considering that, of the 24 members, one
the internal government of Congress and are within its
exclusive jurisdiction.
Dean Sinco has pointed out that the Speaker of the House of
Representatives and the President of the Senate are not
state officers. They do not attain these positions by popular
vote but only by the vote of their respective chambers. They
receive their mandate as such not from the voters but from
their peers in the house. While their offices are a
constitutional creation, nevertheless they are only legislative
officers. It is their position as members of Congress which
gives them the status of state officers. As presiding officers
of their respective chambers, their election as well as
removal is determined by the vote of the majority of the
members of the house to which they belong.  Thus, Art VI,
4
§16(1) of the Constitution provides:
The Senate shall elect its President and the of
Representatives its Speaker, by a majority
vote of all its respective Members.
Each House shall choose such other officers
as it may deem necessary.
This is likewise true of the "other officers" of each
house whose election and removal rest solely within
the prerogative of the members and is no concern of
the courts.
Indeed, in those cases in which this Court took cognizance
of matters pertaining to the internal government of each
house, infringements of specific constitutional limitations
were alleged.
5
senators present there was a quorum for the election of the
was in the hospital while another one was abroad. The case
called for an interpretation of Art. VI, §10(2) of the 1935
Constitution which provided that "A majority of each House
shall constitute a quorum to do business. . . ." While initially
declining to assume jurisdiction, this Court finally took
cognizance of the matter. As Justice Perfecto, whose
separate opinion in support of the assumption of jurisdiction
was one of the reasons which persuaded the Court to
intervene in the Senate imbroglio, stated, "Whether there
was a quorum or not in the meeting of twelve Senators . . . is
a question that calls for the interpretation, application and
enforcement of an express and specific provision of the
Constitution."  In his view, "The word quorum is a
6
mathematical word. It has, as such, a precise and exact
mathematical meaning. A majority means more than one-half
(1/2)." 
7
In Tañada v. Cuenco,  the question was whether the majority
8
could fill the seats intended for the minority party in the
Senate Electoral Tribunal when there are not enough
minority members in the Senate. Again, the question was
governed by a specific provision (Art. VI, §11) of the 1935
charter which provided that the Electoral Tribunals of each
house should be composed of "nine Members, three of
whom shall be Justices of the Supreme Court . . . I and the
remaining six shall be Members of the Senate or of the
House of Representatives, as the case may be, who shall be
chosen by each House, three upon the nomination of the
party having the largest number of votes and three of the
party having the second largest number of votes therein."
There was, therefore, a specific constitutional provision to
be applied.
The cases  concerning the composition of the Commission
9
on Appointments likewise involved the mere application of a
constitutional provision, specifically Art. VI, §18 of the
present Constitution which provides that the Commission
shall be composed of "twelve Senators and twelve Members
of the House of Representatives, elected by each House on
the basis of proportional representation from the political
parties and parties or organizations registered under the
party-list system represented therein." Undoubtedly, the
Court had jurisdiction over the cases.
On the other hand, as long as the proportional
representation of political parties and organizations is
observed the Court has held itself to be without jurisdiction
over the choice of nominees. In Cabili v. Francisco,   it
10
declined to take cognizance of a quo warranto suit seeking
to annul the recomposition of the Senate representation in
the Commission and to reinstate a particular senator after
satisfying itself that such recomposition of the Senate
representation was not a "departure from the constitution
mandate requiring proportional representation of the
political organizations in the Commission on Appointments."
It is true that in Cunanan v. Tan   this Court took cognizance
11
of the case which involved the reorganization of the
Commission as a result of the realignment of political forces
in the House of Representatives and the formation of a
temporary alliance. But the Court's decision was justified
because the case actually involved the right of a third party
whose nomination by the President had been rejected by the
reorganized Commission. As held in Pacete v. The Secretary
of the Commission on Appointments.   where the
12
construction to be given to a rule affects persons other than
members of the legislative body, the question presented is
judicial in character.
In contrast to the specific constitutional limitations involved
in the foregoing cases, beyond providing that the Senate and
the House of Representatives shall elect a President and
Speaker, respectively, and such other officers as each house
shall determine "by a majority vote of all [their] respective
Members," the Constitution leaves everything else to each
house of Congress. Such matters are political and are left
solely to the judgment of the legislative department of the
government.
This case involves neither an infringement of specific
constitutional limitations nor a violation of the rights of a
party not a member of Congress. This Court has jurisdiction
over this case only in the sense that determining whether the
question involved is reserved to Congress is itself an
exercise of jurisdiction in the same way that a court which
dismisses a case for lack of jurisdiction must in a narrow
sense have jurisdiction since it cannot dismiss the case if it
were otherwise. The determination of whether the question
involved is justiciable or not is in itself a process of
constitutional interpretation. This is the great lesson
ofMarbury v. Madison   in which the U.S. Supreme Court,
13
while affirming its power of review, in the end held itself to
be without jurisdiction because the Judiciary Act of 1789
granting it jurisdiction over that case was unconstitutional.
In other words, a court doing a Marbury v. Madison has no
jurisdiction except to declare itself without jurisdiction over
the case.
I vote to dismiss the petition in this case for lack of
jurisdiction.
 
ROMERO, J., separate opinion;
"Loyalty to petrified opinion never yet broke a chain or freed
a human soul."
These words vividly inscribed just beneath Mark Twain's
bust at the Hall of Fame veritably speaks about the creativity
and dynamism which ought to characterize our perspective
of things. It instructs us to broaden our horizon that we may
not be held captive by ignorance. Free and robust thinking is
the imperative.
But there are times when one has to render fealty to certain
fundamental precepts and I believe that this occasion
presents an opportunity to do so. Thus, as I join the majority
and cast my vote today for the denial of the instant petition,
may I just be allowed to reiterate jurisprudential postulates
which I have long embraced, not for the sake of "loyalty to
petrified opinion" but to stress consistency in doctrine in the
hope that all future disputes of this nature may be similarly
resolved in this manner.
This is not actually the first time that the Court has been
invited to resolve a matter originating from the internal
processes undertaken by a co-equal branch of government,
more particularly the Senate in this case. Earlier, in the
landmark case of Tolentino v. Secretary of Finance, et
al.,  we were confronted, among other things, by the issue of
1
whether a significant tax measure namely, Republic Act. No.
7716 (Expanded Value-Added Tax Law), went through the
legislative mill in keeping with the constitutionally-mandated
procedure for the passage of bills. Speaking through Justice
Vicente V. Mendoza, the majority upheld the tax measure's
validity, relying on the enrolled bill theory and the view that
the Court is not the appropriate forum to enforce internal
legislative rules supposedly violated when the bill was being
passed by Congress. I took a different view, however, from
the majority because of what I felt was a sweeping reliance
on said doctrines without giving due regard to the peculiar
facts of the case. I underscored that these principles may not
be applied where the internal legislative rules would breach
the Constitution which this Court has a solemn duty to
uphold. It was my position then that the introduction of
several provisions in the Bicameral Committee Report
violated the constitutional proscription against any
amendment to a bill upon the last reading thereof and which
this Court, in the exercise of its judicial power, can properly
inquire into without running afoul of the principle of
separation of powers.
Last year,  Arroyo, et al. v. de Venecia, et al.  presented an
2 3
opportunity for me to clarify my position further. In that case,
Congressman Joker Arroyo filed a petition before the Court
complaining that during a session by the House of
Representatives, he was effectively prevented from raising
the question of quorum which to him tainted the validity of
Republic Act No. 8240, or the so-called "sin taxes" law. The
Court, speaking again through Justice Mendoza, dismissed
Mr. Arroyo's petition, arguing in the main that courts are
denied the power to inquire into allegations that, in enacting
a law, a House of Congress failed to comply with its own
rules, in the absence of showing that there was a violation of
a constitutional provision or the rights of private individuals.
Concurring with the majority opinion, I discerned a need to
explain my position then because of possible
misinterpretation. I was very emphatic that I did not abandon
my position in Tolentino, the facts as presented
in Arroyo being radically different from the former. In
keeping with my view that judicial review is permissible only
to uphold the Constitution, I pointed out that the legislative
rules allegedly violated were purely internal and had no
direct or reasonable nexus to the requirements and
proscriptions of the Constitution in the passage of a bill
which would otherwise warrant the Court's intervention.
In the instant case, at the risk of being repetitious, I again
take a similar stand as the ones I made in the two cited
cases.
Although this case involves the question of who is the
rightful occupant of a Senate "office" and does not deal with
the passage of a bill or the observance of internal rules for
the Senate's conduct of its business, the same ground as I
previously invoked may justify the Court's refusal to pry into
the procedures of the Senate. There is to me no
constitutional breach which has been made and, ergo, there
is nothing for this Court to uphold. The interpretation placed
by petitioners on Section 16 (1), Article VI of the 1987
Constitution clearly does not find support in the text
thereof. Expressium facit cessare tacitum. What is
expressed puts an end to that which is implied. The majority
vote required for the election of a Senate President and a
Speaker of the House of Representatives speaks only of
such number or quantity of votes for an aspirant to be
lawfully elected as such. There is here no declaration that by
so electing, each of the two Houses of Congress is thereby
divided into camps called the "majority" and the "minority."
In fact, the "offices" of Majority Floor Leader and Minority
Floor Leader are not explicitly provided for as constitutional
offices. As pointed out by my esteemed colleague, Justice
Artemio V. Panganiban, who penned the herein majority
opinion, even on the theory that under paragraph 2, Section
16 (1) of Article VI of the Constitution, each House shall
choose such other officers as it may deem necessary, still
"the method of choosing who will be such officers is merely
a derivative of the exercise of the prerogative conferred by
the aforequoted constitutional provision." With the
prerogative being, therefore, bestowed upon the Senate,
whatever differences the parties may have against each
other must be settled in their own turf and the Court,
conscious as it is of its constitutionally-delineated powers,
will not take a perilous move to overstep the same.
 
VITUG, J., separate opinion;
The 1987 Constitution, like the counterpart 1935 and 1973
Constitutions, has continued to be implicit in its recognition
of the time-honored precept of separation of powers which
enjoins upon each of the three co-equal and independent,
albeit coordinate, branches of the government — the
Legislative, the Executive and the Judiciary — proper
acknowledgment and respect for each other. The Supreme
Court, said to be holding neither the "purse" (held by
Congress) nor the "sword" (held by the Executive) but
serving as the balance wheel in the State governance,
functions both as the tribunal of last resort and as the
Constitutional Court of the nation.  Peculiar, however, to the
1
present Constitution, specifically under Article VII, Section 1,
thereof, is the extended jurisdiction of judicial power that
now explicitly allows the determination of "whether or not
there has been grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or
instrumentality of the government."  This expanded concept
2
of judicial power seems to have been dictated by the martial
law experience and to be an immediate reaction to the abuse
in the frequent recourse to the political question doctrine
that in no small measure has emasculated the Court. The
term "political question," in this context, refers to matters
which, under the Constitution, are to be decided by the
people in their sovereign capacity or in regard to which
discretionary authority has been delegated to the legislative
or executive branch of the government.
The Supreme Court, nevertheless, should not be thought of
as having been tasked with the awesome responsibility of
overseeing the entire bureaucracy. I find it here opportune to
reiterate what I have stated inTolentino vs. Secretary of
Finance,  viz:
3
I cannot yet concede to the novel theory, so
challengingly provocative as it might be, that
under the 1987 Constitution the Court may
now at good liberty intrude, in the guise of the
people's imprimatur, into every affair of
government. What significance can still then
remain, I ask, of the time honored and widely
acclaimed principle of separation of powers if,
at every turn, the Court allows itself to pass
upon at will the disposition of a co-equal,
independent and coordinate branch in our
system of government. I dread to think of the
so varied uncertainties that such an undue
interference can lead to. The respect for long
standing doctrines in our jurisprudence,
nourished through time, is one of maturity, not
timidity, of stability rather than quiescence.
Pervasive and limitless, such as it, may seem to be,
judicial power still succumbs to the paramount
doctrine of separation of powers. Congress is the
branch of government, composed of the
representatives of the people, that lays down the
policies of government and provides the direction
that the nation must take. The Executive carries out
that mandate. Certainly, the Court will not negate that
which is done by these, co-equal and co-ordinate
branches merely because of a perceived case of
grave abuse of discretion on their part, clearly too
relative a phrase to be its own sentinel against
misuse, even as it will not hesitate to wield the power
if that abuse becomes all too clear. The exercise of
judicial statesmanship, not judicial tyranny, is what
has been envisioned by and institutionalized in the
1987 Constitution.
There is no harnbook rule by which grave abuse of
discretion may be determined. The provision was evidently
couched in general terms to make it malleable to judicial
interpretation in the light of any contemporary or emerging
millieu. In its normal concept, the term has been said to
imply capricious and whimsical exercise of judgment,
amounting, to lack or excess of jurisdiction, or at the power
is exercised in an arbitrary or despotic manner such as by
reason of passion or personal hostility. When the question,
however, pertains to an affair internal to either of Congress
or the Executive, I would subscribe to thedictum, somewhat
made implicit in my understanding of Arroyo vs. De
Venecia,  that unless an infringement of any specific
4
Constitutional proscription thereby inheres the Court will not
deign substitute its own judgment over that of any of the
other two branches of government. Verily, in this situation, it
is an impairment or a clear disregard of a specific
constitutional precept or provision that can unbolt the steel
door for judicial intervention.
In the instant settings, I find insufficient indication to have
the case hew to the above rule.

Accordingly, I vote for the dismissal of the petition.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 162230               April 28, 2010
ISABELITA C. VINUYA, VICTORIA C. DELA PEÑA,
HERMINIHILDA MANIMBO, LEONOR H. SUMAWANG,
CANDELARIA L. SOLIMAN, MARIA L. QUILANTANG, MARIA
L. MAGISA, NATALIA M. ALONZO, LOURDES M. NAVARO,
FRANCISCA M. ATENCIO, ERLINDA MANALASTAS,
TARCILA M. SAMPANG, ESTER M. PALACIO, MAXIMA R.
DELA CRUZ, BELEN A. SAGUM, FELICIDAD TURLA,
FLORENCIA M. DELA PEÑA, EUGENIA M. LALU, JULIANA G.
MAGAT, CECILIA SANGUYO, ANA ALONZO, RUFINA P.
MALLARI, ROSARIO M. ALARCON, RUFINA C. GULAPA,
ZOILA B. MANALUS, CORAZON C. CALMA, MARTA A.
GULAPA, TEODORA M. HERNANDEZ, FERMIN B. DELA
PEÑA, MARIA DELA PAZ B. CULALA, ESPERANZA
MANAPOL, JUANITA M. BRIONES, VERGINIA M.
GUEVARRA, MAXIMA ANGULO, EMILIA SANGIL, TEOFILA R.
PUNZALAN, JANUARIA G. GARCIA, PERLA B. BALINGIT,
BELEN A. CULALA, PILAR Q. GALANG, ROSARIO C. BUCO,
GAUDENCIA C. DELA PEÑA, RUFINA Q. CATACUTAN,
FRANCIA A. BUCO, PASTORA C. GUEVARRA, VICTORIA M.
DELA CRUZ, PETRONILA O. DELA CRUZ, ZENAIDA P. DELA
CRUZ, CORAZON M. SUBA, EMERINCIANA A. VINUYA,
LYDIA A. SANCHEZ, ROSALINA M. BUCO, PATRICIA A.
BERNARDO, LUCILA H. PAYAWAL, MAGDALENA LIWAG,
ESTER C. BALINGIT, JOVITA A. DAVID, EMILIA C. MANGILIT,
VERGINIA M. BANGIT, GUILLERMA S. BALINGIT, TERECITA
PANGILINAN, MAMERTA C. PUNO, CRISENCIANA C.
GULAPA, SEFERINA S. TURLA, MAXIMA B. TURLA,
LEONICIA G. GUEVARRA, ROSALINA M. CULALA,
CATALINA Y. MANIO, MAMERTA T. SAGUM, CARIDAD L.
TURLA, et al. In their capacity and as members of the
"Malaya Lolas Organization", Petitioners, 
vs.
THE HONORABLE EXECUTIVE SECRETARY ALBERTO G.
ROMULO, THE HONORABLE SECRETARY OF FOREIGN
AFFAIRS DELIA DOMINGO-ALBERT, THE HONORABLE
SECRETARY OF JUSTICE MERCEDITAS N. GUTIERREZ, and
THE HONORABLE SOLICITOR GENERAL ALFREDO L.
BENIPAYO, Respondents.
DECISION
DEL CASTILLO, J.:
The Treaty of Peace with Japan, insofar as it 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).  espouse their claims for official apology and other forms of
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. ten.lihpwal
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
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 torture.5 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. 1avvphi1
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 Document1zzF24331552898
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.14The 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. Document1zzF48331552898
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 followed,21but 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.  massive scale during the Second World War has added to the
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
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 
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 to make such an apology as a public statement 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 121.35 Entitled, "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 Japan shall continue to pay full attention to this matter, including
recruitment of the comfort women was conducted mainly by private researched related thereto.
private recruiters who acted in response to the request of the
military. The Government study has revealed that in many cases b) Prime Minister Tomiichi Murayama’s Statement in 1994
they were recruited against their own will, through coaxing
coercion, etc., and that, at times, administrative/military personnel On the issue of wartime "comfort women", which seriously stained
directly took part in the recruitments. They lived in misery at the honor and dignity of many women, I would like to take this
comfort stations under a coercive atmosphere. opportunity once again to express my profound and sincere
remorse and apologies"
As to the origin of those comfort women who were transferred to
the war areas, excluding those from Japan, those from the c) Letters from the Prime Minister of Japan to Individual Comfort
Korean Peninsula accounted for a large part. The Korean Women 
Peninsula was under Japanese rule in those days, and their
recruitment, transfer, control, etc., were conducted generally
The issue of comfort women, with the involvement of the
against their will, through coaxing, coercion, etc.
Japanese military authorities at that time, was a grave affront to
the honor and dignity of a large number of women.
Undeniably, this was an act, with the involvement of the military
authorities of the day, that severely injured the honor and dignity
As Prime Minister of Japan, I thus extend anew my most sincere
of many women. The Government of Japan would like to take this
apologies and remorse to all the women who endured
opportunity once again to extend its sincere apologies and
immeasurable and painful experiences and suffered incurable
remorse to all those, irrespective of place of origin, who suffered
physical and psychological wounds as comfort women.
immeasurable pain and 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
It is incumbent upon us, the Government of Japan, to continue to
up squarely to its past history and accurately convey it to future
consider seriously, while listening to the views of learned circles,
generations.
how best we can express this sentiment.
d) The Diet (Japanese Parliament) passed resolutions in 1995
We shall face squarely the historical facts as described above
and 2005 
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 Solemnly reflecting upon the many instances of colonial rule and
memories through the study and teaching of history. 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
As actions have been brought to court in Japan and interests
Asia, the Members of this House hereby express deep remorse.
have been shown in this issue outside Japan, the Government of
(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 discretionary authority has been delegated to the legislative or
years, these were implemented by the Department of Social executive branch of the government. It is concerned with issues
Welfare and Development.  dependent upon the wisdom, not legality of a particular measure."

Our Ruling Certain types of cases often have been found to present political
questions.41 One such category involves questions of foreign
Stripped down to its essentials, the issue in this case is whether relations. It is well-established that "[t]he conduct of the foreign
the Executive Department committed grave abuse of discretion in relations of our government is committed by the Constitution to
not espousing petitioners’ claims for official apology and other the executive and legislative--'the political'--departments of the
forms of reparations against Japan. government, and the propriety of what may be done in the
exercise of this political power is not subject to judicial inquiry or
The petition lacks merit.  decision."42 The US Supreme Court has further cautioned that
decisions relating to foreign policy 
From a Domestic Law Perspective, the Executive Department
has the exclusive prerogative to determine whether to espouse are delicate, complex, and involve large elements of prophecy.
petitioners’ claims against Japan.  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
Baker v. Carr39 remains the starting point for analysis under the
aptitude, facilities nor responsibility.43
political question doctrine. There the US Supreme Court
explained that: 
To be sure, not all cases implicating foreign relations present
political questions, and courts certainly possess the authority to
x x x Prominent on the surface of any case held to involve a
construe or invalidate treaties and executive
political question is found a textually demonstrable constitutional
agreements.44 However, the question whether the Philippine
commitment of the issue to a coordinate political department or a
government should espouse claims of its nationals against a
lack of judicially discoverable and manageable standards for
foreign government is a foreign relations matter, the authority for
resolving it, or the impossibility of deciding without an initial policy
which is demonstrably committed by our Constitution not to the
determination of a kind clearly for non-judicial discretion; or the
courts but to the political branches. In this case, the Executive
impossibility of a court's undertaking independent resolution
Department has already decided that it is to the best interest of
without expressing lack of the respect due coordinate branches of
the country to waive all claims of its nationals for reparations
government; or an unusual need for unquestioning adherence to
against Japan in the Treaty of Peace of 1951. The wisdom of
a political decision already made; or the potentiality of
such decision is not for the courts to question. Neither could
embarrassment from multifarious pronouncements by various
petitioners herein assail the said determination by the Executive
departments on question.
Department via the instant petition for certiorari.
In Tañada v. Cuenco,40 we held that political questions refer "to
In the seminal case of US v. Curtiss-Wright Export Corp.,45 the US
those questions which, under the Constitution, are to be decided
Supreme Court held that "[t]he President is the sole organ of the
by the people in their sovereign capacity, or in regard to which full
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  Treaty of Peace with Japan. And it is equally true that, since time
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
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:  to exercise diplomatic protection of their own nationals
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
1awwphi1
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  granting amnesties, immunity, selective prosecution, or de
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.62 However, at present, there is no sufficient
evidence to establish a general international obligation for States
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.641avvphi1
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
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:  1700s,71 but peremptory norms began to attract greater scholarly
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.http://www.search.com/reference/Erga_omnes - _note-
0#_note-0
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
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 LUCAS P. BERSAMIN ROBERTO A. ABAD
Department to take up petitioners’ cause. Associate Justice Associate Justice

WHEREFORE, the Petition is hereby DISMISSED. MARTIN S. JOSE PORTUGAL

VILLARAMA, JR. PEREZ
SO ORDERED. Associate Justice Associate Justice

MARIANO C. DEL CASTILLO 

JOSE CATRAL MENDOZA
Associate Justice Associate Justice

WE CONCUR: CERTIFICATION

REYNATO S. PUNO Pursuant to Section 13, Article VIII of the Constitution, it is hereby
Chief Justice certified that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the
writer of the opinion of the Court.
ANTONIO T. CARPIO RENATO C. CORONA
Associate Justice Associate Justice REYNATO S. PUNO
Chief Justice
CONCHITA CARPIO PRESBITERO J.
MORALES VELASCO, JR.
Associate Justice Associate Justice

TERESITA J.
ANTONIO EDUARDO
LEONARDO-DE
B. NACHURA
CASTRO
Associate Justice
Associate Justice

DIOSDADO M.
ARTURO D. BRION
PERALTA Republic of the Philippines
Associate Justice
Associate Justice SUPREME COURT
Manila
 EN BANC
G.R. No. 208566               November 19, 2013
GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS
JR. JOSE L. GONZALEZ REUBEN M. ABANTE and QUINTIN
PAREDES SAN DIEGO, Petitioners,  PERLAS-BERNABE, J.:
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA
JR. SECRETARY OF BUDGET AND MANAGEMENT
FLORENCIO B. ABAD, NATIONAL TREASURER ROSALIA V.
DE LEON SENATE OF THE PHILIPPINES represented by
FRANKLIN M. DRILON m his capacity as SENATE
PRESIDENT and HOUSE OF REPRESENTATIVES
represented by FELICIANO S. BELMONTE, JR. in his
capacity as SPEAKER OF THE HOUSE, Respondents.
x-----------------------x
G.R. No. 208493
SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S.
ALCANTARA, Petitioner, 
vs.
HONORABLE FRANKLIN M. DRILON in his capacity as
SENATE PRESIDENT and HONORABLE FELICIANO S.
BELMONTE, JR., in his capacity as SPEAKER OF THE
HOUSE OF REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 209251
PEDRITO M. NEPOMUCENO, Former Mayor-Boac,
Marinduque Former Provincial Board Member -Province of
Marinduque, Petitioner,  sense, "Pork Barrel" refers to an appropriation of
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and
SECRETARY FLORENCIO BUTCH ABAD, DEPARTMENT OF
BUDGET AND MANAGEMENT, Respondents.
DECISION
"Experience is the oracle of truth." 1
-James Madison
Before the Court are consolidated petitions  taken under Rule 65
2
of the Rules of Court, all of which assail the constitutionality of the
Pork Barrel System. Due to the complexity of the subject matter,
the Court shall heretofore discuss the system‘s conceptual
underpinnings before detailing the particulars of the constitutional
challenge.
The Facts
I. Pork Barrel: General Concept.
"Pork Barrel" is political parlance of American -English
origin.  Historically, its usage may be traced to the
3
degrading ritual of rolling out a barrel stuffed with pork to
a multitude of black slaves who would cast their famished
bodies into the porcine feast to assuage their hunger with
morsels coming from the generosity of their well-fed
master.  This practice was later compared to the actions
4
of American legislators in trying to direct federal budgets
in favor of their districts.  While the advent of refrigeration
5
has made the actual pork barrel obsolete, it persists in
reference to political bills that "bring home the bacon" to a
legislator‘s district and constituents.  In a more technical
6
government spending meant for localized projects and
 secured solely or primarily to bring money to a
representative's district. Some scholars on the subject
7
further use it to refer to legislative control of local
appropriations. 8
In the Philippines, "Pork Barrel" has been commonly
referred to as lump-sum, discretionary funds of Members
of the Legislature,  although, as will be later discussed, its
9 and Communications to legislators. "For the first
usage would evolve in reference to certain funds of the
Executive.
II. History of Congressional Pork Barrel in the Philippines.
A. Pre-Martial Law Era (1922-1972).
Act 3044,  or the Public Works Act of 1922, is
10
considered  as the earliest form of "Congressional
11
Pork Barrel" in the Philippines since the utilization
of the funds appropriated therein were subjected
to post-enactment legislator approval. Particularly,
in the area of fund release, Section 3  provides
12
that the sums appropriated for certain public
works projects  "shall be distributed x x x subject
13
to the approval of a joint committee elected by the
Senate and the House of Representatives. "The
committee from each House may also authorize
one of its members to approve the distribution
made by the Secretary of Commerce and
Communications."  Also, in the area of fund
14
realignment, the same section provides that the
B. Martial Law Era (1972-1986).
said secretary, "with the approval of said joint
committee, or of the authorized members thereof,
may, for the purposes of said distribution, transfer
unexpended portions of any item of appropriation
under this Act to any other item hereunder."
In 1950, it has been documented  that post-
15
enactment legislator participation broadened from
the areas of fund release and realignment to the
area of project identification. During that year, the
mechanics of the public works act was modified to
the extent that the discretion of choosing projects
was transferred from the Secretary of Commerce
time, the law carried a list of projects selected by
Members of Congress, they ‘being the
representatives of the people, either on their own
account or by consultation with local officials or
civil leaders.‘"  During this period, the pork barrel
16
process commenced with local government
councils, civil groups, and individuals appealing to
Congressmen or Senators for projects. Petitions
that were accommodated formed part of a
legislator‘s allocation, and the amount each
legislator would eventually get is determined in a
caucus convened by the majority. The amount
was then integrated into the administration bill
prepared by the Department of Public Works and
Communications. Thereafter, the Senate and the
House of Representatives added their own
provisions to the bill until it was signed into law by
the President – the Public Works Act.  In the
17
1960‘s, however, pork barrel legislation reportedly
ceased in view of the stalemate between the
House of Representatives and the Senate. 18
While the previous" Congressional Pork Barrel"
was apparently discontinued in 1972 after Martial
Law was declared, an era when "one man
controlled the legislature,"  the reprieve was only
19
temporary. By 1982, the Batasang Pambansa had
already introduced a new item in the General
 Appropriations Act (GAA) called the" Support for
Local Development Projects" (SLDP) under the
article on "National Aid to Local Government
Units". Based on reports,  it was under the SLDP
20
that the practice of giving lump-sum allocations to
individual legislators began, with each
assemblyman receiving ₱500,000.00. Thereafter,
assemblymen would communicate their project
preferences to the Ministry of Budget and
Management for approval. Then, the said ministry
would release the allocation papers to the Ministry
of Local Governments, which would, in turn, issue
the checks to the city or municipal treasurers in
the assemblyman‘s locality. It has been further
reported that "Congressional Pork Barrel" projects
under the SLDP also began to cover not only
public works projects, or so- called "hard
projects", but also "soft projects",  or non-public
21
works projects such as those which would fall
under the categories of, among others, education,
health and livelihood.
22
C. Post-Martial Law Era:
Corazon Cojuangco Aquino Administration (1986-
1992).
After the EDSA People Power Revolution in 1986
and the restoration of Philippine democracy,
"Congressional Pork Barrel" was revived in the
form of the "Mindanao Development Fund" and
the "Visayas Development Fund" which were
created with lump-sum appropriations of ₱480
Million and ₱240 Million, respectively, for the
funding of development projects in the Mindanao
and Visayas areas in 1989. It has been
documented  that the clamor raised by the
23
Senators and the Luzon legislators for a similar
funding, prompted the creation of the
"Countrywide Development Fund" (CDF) which
was integrated into the 1990 GAA  with an initial
24
funding of ₱2.3 Billion to cover "small local
infrastructure and other priority community
projects."
Under the GAAs for the years 1991 and
1992,  CDF funds were, with the approval of the
25
President, to be released directly to the
implementing agencies but "subject to the
submission of the required list of projects and
activities."Although the GAAs from 1990 to 1992
were silent as to the amounts of allocations of the
individual legislators, as well as their participation
in the identification of projects, it has been
reported  that by 1992, Representatives were
26
receiving ₱12.5 Million each in CDF funds, while
Senators were receiving ₱18 Million each, without
any limitation or qualification, and that they could
identify any kind of project, from hard or
infrastructure projects such as roads, bridges, and
buildings to "soft projects" such as textbooks,
medicines, and scholarships. 27
D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).
The following year, or in 1993,  the GAA explicitly
28
stated that the release of CDF funds was to be
made upon the submission of the list of projects
and activities identified by, among others,
individual legislators. For the first time, the 1993
CDF Article included an allocation for the Vice-
President.  As such, Representatives were
29
allocated ₱12.5 Million each in CDF funds,
Senators, ₱18 Million each, and the Vice-
President, ₱20 Million.
In 1994,  1995,  and 1996,  the GAAs contained
30 31 32
the same provisions on project identification and
fund release as found in the 1993 CDF Article. In
addition, however, the Department of Budget and
Management (DBM) was directed to submit
reports to the Senate Committee on Finance and
the House Committee on Appropriations on the
releases made from the funds. 33
Under the 1997  CDF Article, Members of
34
Congress and the Vice-President, in consultation
with the implementing agency concerned, were
directed to submit to the DBM the list of 50% of
projects to be funded from their respective CDF
allocations which shall be duly endorsed by (a)
the Senate President and the Chairman of the
Committee on Finance, in the case of the Senate,
and (b) the Speaker of the House of
Representatives and the Chairman of the
Committee on Appropriations, in the case of the
House of Representatives; while the list for the
remaining 50% was to be submitted within six (6)
months thereafter. The same article also stated
that the project list, which would be published by
the DBM,  "shall be the basis for the release of
35
funds" and that "no funds appropriated herein
shall be disbursed for projects not included in the
list herein required."
The following year, or in 1998,  the foregoing
36
provisions regarding the required lists and
endorsements were reproduced, except that the
publication of the project list was no longer
required as the list itself sufficed for the release of
CDF Funds.
The CDF was not, however, the lone form of
"Congressional Pork Barrel" at that time. Other
forms of "Congressional Pork Barrel" were
reportedly fashioned and inserted into the GAA
(called "Congressional Insertions" or "CIs") in
order to perpetuate the ad ministration‘s political
agenda.  It has been articulated that since CIs
37
"formed part and parcel of the budgets of
executive departments, they were not easily
identifiable and were thus harder to monitor."
Nonetheless, the lawmakers themselves as well
as the finance and budget officials of the
implementing agencies, as well as the DBM,
purportedly knew about the insertions.  Examples
38
of these CIs are the Department of Education
(DepEd) School Building Fund, the Congressional
Initiative Allocations, the Public Works Fund, the
El Niño Fund, and the Poverty Alleviation
Fund.  The allocations for the School Building
39
Fund, particularly, ―shall be made upon prior
consultation with the representative of the
legislative district concerned.”  Similarly, the
40
legislators had the power to direct how, where and
when these appropriations were to be spent. 41
E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).
In 1999,  the CDF was removed in the GAA and
42
replaced by three (3) separate forms of CIs,
namely, the "Food Security Program Fund,"  the
43
"Lingap Para Sa Mahihirap Program Fund," and
44
the "Rural/Urban Development Infrastructure
Program Fund,"  all of which contained a special
45
provision requiring "prior consultation" with the
Member s of Congress for the release of the
funds.
It was in the year 2000  that the "Priority
46
Development Assistance Fund" (PDAF) appeared
in the GAA. The requirement of "prior consultation
 with the respective Representative of the District"
before PDAF funds were directly released to the
implementing agency concerned was explicitly
stated in the 2000 PDAF Article. Moreover,
realignment of funds to any expense category was
expressly allowed, with the sole condition that no
amount shall be used to fund personal services
and other personnel benefits.  The succeeding
47
PDAF provisions remained the same in view of
the re-enactment  of the 2000 GAA for the year
48
2001.
F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).
The 2002  PDAF Article was brief and
49
straightforward as it merely contained a single
special provision ordering the release of the funds
directly to the implementing agency or local
government unit concerned, without further
qualifications. The following year, 2003,  the
50
same single provision was present, with simply an
expansion of purpose and express authority to
realign. Nevertheless, the provisions in the 2003
budgets of the Department of Public Works and
Highways  (DPWH) and the DepEd  required
51 52
prior consultation with Members of Congress on
the aspects of implementation delegation and
project list submission, respectively. In 2004, the
2003 GAA was re-enacted. 53
In 2005,  the PDAF Article provided that the
54
PDAF shall be used "to fund priority programs and
projects under the ten point agenda of the national
government and shall be released directly to the
implementing agencies." It also introduced the
program menu concept,  which is essentially a list
55
of general programs and implementing agencies
from which a particular PDAF project may be
subsequently chosen by the identifying authority.
The 2005 GAA was re-enacted  in 2006 and
56
hence, operated on the same bases. In similar
regard, the program menu concept was
consistently integrated into the
2007,  2008,  2009,  and 2010  GAAs.
57 58 59 60
Textually, the PDAF Articles from 2002 to 2010
were silent with respect to the specific amounts
allocated for the individual legislators, as well as
their participation in the proposal and identification
of PDAF projects to be funded. In contrast to the
PDAF Articles, however, the provisions under the
DepEd School Building Program and the DPWH
budget, similar to its predecessors, explicitly
required prior consultation with the concerned
Member of Congress anent certain aspects of
61
project implementation.
Significantly, it was during this era that provisions
which allowed formal participation of non-
governmental organizations (NGO) in the
implementation of government projects were
introduced. In the Supplemental Budget for 2006,
with respect to the appropriation for school
buildings, NGOs were, by law, encouraged to
participate. For such purpose, the law stated that
"the amount of at least ₱250 Million of the ₱500
Million allotted for the construction and completion
of school buildings shall be made available to
NGOs including the Federation of Filipino-Chinese
Chambers of Commerce and Industry, Inc. for its
"Operation Barrio School" program, with capability
and proven track records in the construction of
public school buildings x x x."  The same
62
allocation was made available to NGOs in the
2007 and 2009 GAAs under the DepEd
Budget.  Also, it was in 2007 that the Government
63
 Procurement Policy Board  (GPPB) issued
64
Resolution No. 12-2007 dated June 29, 2007
(GPPB Resolution 12-2007), amending the
implementing rules and regulations  of RA 65
9184,  the Government Procurement Reform Act,
66
to include, as a form of negotiated
procurement,  the procedure whereby the
67
Procuring Entity (the implementing agency) may
68
enter into a memorandum of agreement with an
NGO, provided that "an appropriation law or
ordinance earmarks an amount to be specifically
contracted out to NGOs." 69
G. Present Administration (2010-Present).
Differing from previous PDAF Articles but similar
to the CDF Articles, the 2011  PDAF Article
70
included an express statement on lump-sum
amounts allocated for individual legislators and
the Vice-President: Representatives were given
₱70 Million each, broken down into ₱40 Million for
"hard projects" and ₱30 Million for "soft projects";
while ₱200 Million was given to each Senator as
well as the Vice-President, with a ₱100 Million
allocation each for "hard" and "soft projects."
Likewise, a provision on realignment of funds was
included, but with the qualification that it may be
allowed only once. The same provision also
allowed the Secretaries of Education, Health,
Social Welfare and Development, Interior and
Local Government, Environment and Natural
Resources, Energy, and Public Works and
Highways to realign PDAF Funds, with the further
conditions that: (a) realignment is within the same
implementing unit and same project category as
the original project, for infrastructure projects; (b)
allotment released has not yet been obligated for
the original scope of work, and (c) the request for
realignment is with the concurrence of the
legislator concerned. 71
In the 2012  and 2013  PDAF Articles, it is stated
72 73
that the "identification of projects and/or
designation of beneficiaries shall conform to the
priority list, standard or design prepared by each
implementing agency (priority list requirement) x x
x." However, as practiced, it would still be the
individual legislator who would choose and
identify the project from the said priority list.
74
Provisions on legislator allocations  as well as
75
fund realignment  were included in the 2012 and
76
2013 PDAF Articles; but the allocation for the
Vice-President, which was pegged at ₱200 Million
in the 2011 GAA, had been deleted. In addition,
the 2013 PDAF Article now allowed LGUs to be
identified as implementing agencies if they have
the technical capability to implement the
projects.  Legislators were also allowed to identify
77
programs/projects, except for assistance to
indigent patients and scholarships, outside of his
legislative district provided that he secures the
written concurrence of the legislator of the
intended outside-district, endorsed by the Speaker
of the House.  Finally, any realignment of PDAF
78
funds, modification and revision of project
identification, as well as requests for release of
funds, were all required to be favorably endorsed
by the House Committee on Appropriations and
the Senate Committee on Finance, as the case
may be. 79
III. History of Presidential Pork Barrel in the Philippines.
While the term "Pork Barrel" has been typically associated
with lump-sum, discretionary funds of Members of
 Congress, the present cases and the recent controversies
on the matter have, however, shown that the term‘s usage
has expanded to include certain funds of the President
such as the Malampaya Funds and the Presidential Social
Fund.
On the one hand, the Malampaya Funds was created as
a special fund under Section 8  of Presidential Decree
80
No. (PD) 910,  issued by then President Ferdinand E.
81
Marcos (Marcos) on March 22, 1976. In enacting the said
law, Marcos recognized the need to set up a special fund
to help intensify, strengthen, and consolidate government
efforts relating to the exploration, exploitation, and
development of indigenous energy resources vital to
economic growth.  Due to the energy-related activities of
82
the government in the Malampaya natural gas field in
Palawan, or the "Malampaya Deep Water Gas-to-Power
Project",  the special fund created under PD 910 has
83
been currently labeled as Malampaya Funds.
On the other hand the Presidential Social Fund was
created under Section 12, Title IV  of PD 1869,  or the
84 85
Charter of the Philippine Amusement and Gaming
Corporation (PAGCOR). PD 1869 was similarly issued by
Marcos on July 11, 1983. More than two (2) years after,
he amended PD 1869 and accordingly issued PD 1993
on October 31, 1985,  amending Section 12  of the
86 87
former law. As it stands, the Presidential Social Fund has
been described as a special funding facility managed and
administered by the Presidential Management Staff
through which the President provides direct assistance to
priority programs and projects not funded under the
regular budget. It is sourced from the share of the
government in the aggregate gross earnings of
PAGCOR. 88
IV. Controversies in the Philippines.
Over the decades, "pork" funds in the Philippines have
increased tremendously,  owing in no small part to
89
previous Presidents who reportedly used the "Pork Barrel"
in order to gain congressional support.  It was in 1996
90
when the first controversy surrounding the "Pork Barrel"
erupted. Former Marikina City Representative Romeo
Candazo (Candazo), then an anonymous source, "blew
the lid on the huge sums of government money that
regularly went into the pockets of legislators in the form of
kickbacks."  He said that "the kickbacks were ‘SOP‘
91
(standard operating procedure) among legislators and
ranged from a low 19 percent to a high 52 percent of the
cost of each project, which could be anything from
dredging, rip rapping, sphalting, concreting, and
construction of school buildings."  "Other sources of
92
kickbacks that Candazo identified were public funds
intended for medicines and textbooks. A few days later,
the tale of the money trail became the banner story of the
Philippine Daily Inquirer issue of August 13, 1996,
accompanied by an illustration of a roasted pig."  "The
93
publication of the stories, including those about
congressional initiative allocations of certain lawmakers,
including ₱3.6 Billion for a Congressman, sparked public
outrage."94
Thereafter, or in 2004, several concerned citizens sought
the nullification of the PDAF as enacted in the 2004 GAA
for being unconstitutional. Unfortunately, for lack of "any
pertinent evidentiary support that illegal misuse of PDAF
in the form of kickbacks has become a common exercise
of unscrupulous Members of Congress," the petition was
dismissed. 95
Recently, or in July of the present year, the National
Bureau of Investigation (NBI) began its probe into
allegations that "the government has been defrauded of
some ₱10 Billion over the past 10 years by a syndicate
using funds from the pork barrel of lawmakers and various
government agencies for scores of ghost projects."  The
96
investigation was spawned by sworn affidavits of six (6)
whistle-blowers who declared that JLN Corporation –
"JLN" standing for Janet Lim Napoles (Napoles) – had
swindled billions of pesos from the public coffers for
"ghost projects" using no fewer than 20 dummy NGOs for
an entire decade. While the NGOs were supposedly the
ultimate recipients of PDAF funds, the whistle-blowers
declared that the money was diverted into Napoles‘
private accounts.  Thus, after its investigation on the
97
Napoles controversy, criminal complaints were filed
before the Office of the Ombudsman, charging five (5)
lawmakers for Plunder, and three (3) other lawmakers for
Malversation, Direct Bribery, and Violation of the Anti-
Graft and Corrupt Practices Act. Also recommended to be
charged in the complaints are some of the lawmakers‘
chiefs -of-staff or representatives, the heads and other
officials of three (3) implementing agencies, and the
several presidents of the NGOs set up by Napoles. 98
On August 16, 2013, the Commission on Audit (CoA)
released the results of a three-year audit
investigation covering the use of legislators' PDAF from
99
2007 to 2009, or during the last three (3) years of the
Arroyo administration. The purpose of the audit was to
determine the propriety of releases of funds under PDAF
and the Various Infrastructures including Local Projects
(VILP)  by the DBM, the application of these funds and
100
the implementation of projects by the appropriate
implementing agencies and several government-owned-
and-controlled corporations (GOCCs).  The total releases
101
covered by the audit amounted to ₱8.374 Billion in PDAF
and ₱32.664 Billion in VILP, representing 58% and 32%,
respectively, of the total PDAF and VILP releases that
were found to have been made nationwide during the
audit period.  Accordingly, the Co A‘s findings contained
102
in its Report No. 2012-03 (CoA Report), entitled "Priority
Development Assistance Fund (PDAF) and Various
Infrastructures including Local Projects (VILP)," were
made public, the highlights of which are as follows:
103
● Amounts released for projects identified by a
considerable number of legislators significantly
exceeded their respective allocations.
● Amounts were released for projects outside of
legislative districts of sponsoring members of the
Lower House.
● Total VILP releases for the period exceeded the
total amount appropriated under the 2007 to 2009
GAAs.
● Infrastructure projects were constructed on
private lots without these having been turned over
to the government.
● Significant amounts were released to
implementing agencies without the latter‘s
endorsement and without considering their
mandated functions, administrative and technical
capabilities to implement projects.
● Implementation of most livelihood projects was
not undertaken by the implementing agencies
themselves but by NGOs endorsed by the
proponent legislators to which the Funds were
transferred.
● The funds were transferred to the NGOs in spite
of the absence of any appropriation law or
ordinance.
● Selection of the NGOs were not compliant with
law and regulations.
 ● Eighty-Two (82) NGOs entrusted with
implementation of seven hundred seventy two
(772) projects amount to ₱6.156 Billion were
either found questionable, or submitted
questionable/spurious documents, or failed to
liquidate in whole or in part their utilization of the
Funds.
● Procurement by the NGOs, as well as some
implementing agencies, of goods and services
reportedly used in the projects were not compliant
with law.
As for the "Presidential Pork Barrel", whistle-blowers
alleged that" at least ₱900 Million from royalties in the
operation of the Malampaya gas project off Palawan
province intended for agrarian reform beneficiaries has
gone into a dummy NGO."  According to incumbent CoA
104
Chairperson Maria Gracia Pulido Tan (CoA Chairperson),
the CoA is, as of this writing, in the process of preparing
"one consolidated report" on the Malampaya Funds. 105
V. The Procedural Antecedents.
Spurred in large part by the findings contained in the CoA
Report and the Napoles controversy, several petitions
were lodged before the Court similarly seeking that the
"Pork Barrel System" be declared unconstitutional. To
recount, the relevant procedural antecedents in these
cases are as follows:
On August 28, 2013, petitioner Samson S. Alcantara (Alcantara),
President of the Social Justice Society, filed a Petition for
Prohibition of even date under Rule 65 of the Rules of Court
(Alcantara Petition), seeking that the "Pork Barrel System" be
declared unconstitutional, and a writ of prohibition be issued
permanently restraining respondents Franklin M. Drilon and
Feliciano S. Belmonte, Jr., in their respective capacities as the
incumbent Senate President and Speaker of the House of
Representatives, from further taking any steps to enact legislation
appropriating funds for the "Pork Barrel System," in whatever
form and by whatever name it may be called, and from approving
further releases pursuant thereto.  The Alcantara Petition was
106
docketed as G.R. No. 208493.
On September 3, 2013, petitioners Greco Antonious Beda B.
Belgica, Jose L. Gonzalez, Reuben M. Abante, Quintin Paredes
San Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas)
filed an Urgent Petition For Certiorari and Prohibition With Prayer
For The Immediate Issuance of Temporary Restraining Order
(TRO) and/or Writ of Preliminary Injunction dated August 27,
2013 under Rule 65 of the Rules of Court (Belgica Petition),
seeking that the annual "Pork Barrel System," presently
embodied in the provisions of the GAA of 2013 which provided for
the 2013 PDAF, and the Executive‘s lump-sum, discretionary
funds, such as the Malampaya Funds and the Presidential Social
Fund,  be declared unconstitutional and null and void for being
107
acts constituting grave abuse of discretion. Also, they pray that
the Court issue a TRO against respondents Paquito N. Ochoa,
Jr., Florencio B. Abad (Secretary Abad) and Rosalia V. De Leon,
in their respective capacities as the incumbent Executive
Secretary, Secretary of the Department of Budget and
Management (DBM), and National Treasurer, or their agents, for
them to immediately cease any expenditure under the aforesaid
funds. Further, they pray that the Court order the foregoing
respondents to release to the CoA and to the public: (a) "the
complete schedule/list of legislators who have availed of their
PDAF and VILP from the years 2003 to 2013, specifying the use
of the funds, the project or activity and the recipient entities or
individuals, and all pertinent data thereto"; and (b) "the use of the
Executive‘s lump-sum, discretionary funds, including the
proceeds from the x x x Malampaya Funds and remittances from
the PAGCOR x x x from 2003 to 2013, specifying the x x x project
or activity and the recipient entities or individuals, and all pertinent
data thereto."  Also, they pray for the "inclusion in budgetary
108
deliberations with the Congress of all presently off-budget, lump-
sum, discretionary funds including, but not limited to, proceeds
from the Malampaya Funds and remittances from the
PAGCOR."  The Belgica Petition was docketed as G.R. No.
109
208566. 110
Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno
(Nepomuceno), filed a Petition dated August 23, 2012
(Nepomuceno Petition), seeking that the PDAF be declared
unconstitutional, and a cease and desist order be issued
restraining President Benigno Simeon S. Aquino III (President
Aquino) and Secretary Abad from releasing such funds to
Members of Congress and, instead, allow their release to fund
priority projects identified and approved by the Local
Development Councils in consultation with the executive
departments, such as the DPWH, the Department of Tourism, the
Department of Health, the Department of Transportation, and
Communication and the National Economic Development
Authority.  The Nepomuceno Petition was docketed as UDK-
111
14951. 112
On September 10, 2013, the Court issued a Resolution of even
date (a) consolidating all cases; (b) requiring public respondents
to comment on the consolidated petitions; (c) issuing a TRO
(September 10, 2013 TRO) enjoining the DBM, National
Treasurer, the Executive Secretary, or any of the persons acting
under their authority from releasing (1) the remaining PDAF
allocated to Members of Congress under the GAA of 2013, and
(2) Malampaya Funds under the phrase "for such other purposes
as may be hereafter directed by the President" pursuant to
Section 8 of PD 910 but not for the purpose of "financing energy
resource development and exploitation programs and projects of
the government‖ under the same provision; and (d) setting the
consolidated cases for Oral Arguments on October 8, 2013.
On September 23, 2013, the Office of the Solicitor General (OSG)
filed a Consolidated Comment (Comment) of even date before
the Court, seeking the lifting, or in the alternative, the partial lifting
with respect to educational and medical assistance purposes, of
the Court‘s September 10, 2013 TRO, and that the consolidated
petitions be dismissed for lack of merit.
113
On September 24, 2013, the Court issued a Resolution of even
date directing petitioners to reply to the Comment.
Petitioners, with the exception of Nepomuceno, filed their
respective replies to the Comment: (a) on September 30, 2013,
Villegas filed a separate Reply dated September 27, 2013
(Villegas Reply); (b) on October 1, 2013, Belgica, et al. filed a
Reply dated September 30, 2013 (Belgica Reply); and (c) on
October 2, 2013, Alcantara filed a Reply dated October 1, 2013.
On October 1, 2013, the Court issued an Advisory providing for
the guidelines to be observed by the parties for the Oral
Arguments scheduled on October 8, 2013. In view of the
technicality of the issues material to the present cases, incumbent
Solicitor General Francis H. Jardeleza (Solicitor General) was
directed to bring with him during the Oral Arguments
representative/s from the DBM and Congress who would be able
to competently and completely answer questions related to,
among others, the budgeting process and its implementation.
Further, the CoA Chairperson was appointed as amicus curiae
and thereby requested to appear before the Court during the Oral
Arguments.
On October 8 and 10, 2013, the Oral Arguments were conducted.
Thereafter, the Court directed the parties to submit their
respective memoranda within a period of seven (7) days, or until
October 17, 2013, which the parties subsequently did.
The Issues Before the Court
Based on the pleadings, and as refined during the Oral
Arguments, the following are the main issues for the Court‘s
resolution:
I. Procedural Issues.
Whether or not (a) the issues raised in the consolidated petitions
involve an actual and justiciable controversy; (b) the issues raised
in the consolidated petitions are matters of policy not subject to
judicial review; (c) petitioners have legal standing to sue; and (d)
the Court‘s Decision dated August 19, 1994 in G.R. Nos. 113105,
113174, 113766, and 113888, entitled "Philippine Constitution
Association v. Enriquez"  (Philconsa) and Decision dated April
114
24, 2012 in G.R. No. 164987, entitled "Lawyers Against Monopoly
and Poverty v. Secretary of Budget and Management"  (LAMP)
115
bar the re-litigatio n of the issue of constitutionality of the "Pork
Barrel System" under the principles of res judicata and stare
decisis.
II. Substantive Issues on the "Congressional Pork Barrel."
Whether or not the 2013 PDAF Article and all other
Congressional Pork Barrel Laws similar thereto are
unconstitutional considering that they violate the principles
of/constitutional provisions on (a) separation of powers; (b) non-
delegability of legislative power; (c) checks and balances; (d)
accountability; (e) political dynasties; and (f) local autonomy.
III. Substantive Issues on the "Presidential Pork Barrel."
Whether or not the phrases (a) "and for such other purposes as
may be hereafter directed by the President" under Section 8 of
PD 910,  relating to the Malampaya Funds, and (b) "to finance
116
the priority infrastructure development projects and to finance the
restoration of damaged or destroyed facilities due to calamities,
as may be directed and authorized by the Office of the President
of the Philippines" under Section 12 of PD 1869, as amended by
PD 1993, relating to the Presidential Social Fund, are
unconstitutional insofar as they constitute undue delegations of
legislative power.
These main issues shall be resolved in the order that they have
been stated. In addition, the Court shall also tackle certain
ancillary issues as prompted by the present cases.
The Court’s Ruling
The petitions are partly granted.
I. Procedural Issues.
The prevailing rule in constitutional litigation is 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:
117
(a) there must be an actual case or controversy calling for the
exercise of judicial power; (b) the person challenging the act must
have the standing to question the validity of the subject act or
issuance; (c) the question of constitutionality must be raised at
the earliest opportunity ; and (d) the issue of constitutionality must
be the very lis mota of the case.  Of these requisites, case law
118
states that the first two are the most important and, therefore,
119
shall be discussed forthwith.
A. Existence of an Actual Case or Controversy.
By constitutional fiat, judicial power operates only when there is
an actual case or controversy.  This is embodied in Section 1,
120
Article VIII of the 1987 Constitution which pertinently states that
"judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally
demandable and enforceable x x x." Jurisprudence provides that
an actual case or controversy is one which "involves a conflict of
legal rights, an assertion of opposite legal claims, susceptible of
judicial resolution as distinguished from a hypothetical or abstract
difference or dispute.  In other words, "there must be a
121
contrariety of legal rights that can be interpreted and enforced on
the basis of existing law and jurisprudence."  Related to the
122
requirement of an actual case or controversy is the requirement
of "ripeness," meaning that the questions raised for constitutional
scrutiny are already ripe for adjudication. "A question is ripe for
adjudication when the act being challenged has had a direct
adverse effect on the individual challenging it. It is a prerequisite
that something had then been accomplished or performed by
either branch before a court may come into the picture, and the
petitioner must allege the existence of an immediate or
threatened injury to itself as a result of the challenged
action."  "Withal, courts will decline to pass upon constitutional
123
issues through advisory opinions, bereft as they are of authority
to resolve hypothetical or moot questions." 124
Based on these principles, the Court finds that there exists an
actual and justiciable controversy in these cases.
The requirement of contrariety of legal rights is clearly satisfied by
the antagonistic positions of the parties on the constitutionality of
the "Pork Barrel System." Also, the questions in these
consolidated cases are ripe for adjudication since the challenged
funds and the provisions allowing for their utilization – such as the
2013 GAA for the PDAF, PD 910 for the Malampaya Funds and
PD 1869, as amended by PD 1993, for the Presidential Social
Fund – are currently existing and operational; hence, there exists
an immediate or threatened injury to petitioners as a result of the
unconstitutional use of these public funds.
As for the PDAF, the Court must dispel the notion that the issues
related thereto had been rendered moot and academic by the
reforms undertaken by respondents. A case becomes moot when
there is no more actual controversy between the parties or no
useful purpose can be served in passing upon the
merits.  Differing from this description, the Court observes that
125
respondents‘ proposed line-item budgeting scheme would not
terminate the controversy nor diminish the useful purpose for its
resolution since said reform is geared towards the 2014 budget,
and not the 2013 PDAF Article which, being a distinct subject
matter, remains legally effective and existing. Neither will the
President‘s declaration that he had already "abolished the PDAF"
render the issues on PDAF moot precisely because the Executive
branch of government has no constitutional authority to nullify or
annul its legal existence. By constitutional design, the annulment
or nullification of a law may be done either by Congress, through
the passage of a repealing law, or by the Court, through a
declaration of unconstitutionality. Instructive on this point is the
following exchange between Associate Justice Antonio T. Carpio
(Justice Carpio) and the Solicitor General during the Oral
Arguments: 126
Justice Carpio: The President has taken an oath to faithfully
execute the law,  correct? Solicitor General Jardeleza: Yes, Your
127
Honor.
Justice Carpio: And so the President cannot refuse to implement
the General Appropriations Act, correct?
Solicitor General Jardeleza: Well, that is our answer, Your Honor.
In the case, for example of the PDAF, the President has a duty to
execute the laws but in the face of the outrage over PDAF, the
President was saying, "I am not sure that I will continue the
release of the soft projects," and that started, Your Honor. Now,
whether or not that … (interrupted)
Justice Carpio: Yeah. I will grant the President if there are
anomalies in the project, he has the power to stop the releases in
the meantime, to investigate, and that is Section 38 of Chapter 5
of Book 6 of the Revised Administrative Code  x x x. So at most
128
the President can suspend, now if the President believes that the
PDAF is unconstitutional, can he just refuse to implement it?
Solicitor General Jardeleza: No, Your Honor, as we were trying to
say in the specific case of the PDAF because of the CoA Report,
because of the reported irregularities and this Court can take
judicial notice, even outside, outside of the COA Report, you have
the report of the whistle-blowers, the President was just
exercising precisely the duty ….
xxxx
Justice Carpio: Yes, and that is correct. You‘ve seen the CoA
Report, there are anomalies, you stop and investigate, and
prosecute, he has done that. But, does that mean that PDAF has
been repealed?
Solicitor General Jardeleza: No, Your Honor x x x.
xxxx
Justice Carpio: So that PDAF can be legally abolished only in two
(2) cases. Congress passes a law to repeal it, or this Court
declares it unconstitutional, correct?
Solictor General Jardeleza: Yes, Your Honor.
Justice Carpio: The President has no power to legally abolish
PDAF. (Emphases supplied)
Even on the assumption of mootness, jurisprudence,
nevertheless, dictates that "the moot and academic‘ principle is
not a magical formula that can automatically dissuade the Court
in resolving a case." The Court will decide cases, otherwise moot,
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 the 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. 129
The applicability of the first exception is clear from the
fundamental posture of petitioners – they essentially allege grave
violations of the Constitution with respect to, inter alia, the
principles of separation of powers, non-delegability of legislative
power, checks and balances, accountability and local autonomy.
The applicability of the second exception is also apparent from
the nature of the interests involved
– the constitutionality of the very system within which significant
amounts of public funds have been and continue to be utilized
and expended undoubtedly presents a situation of exceptional
character as well as a matter of paramount public interest. The
present petitions, in fact, have been lodged at a time when the
system‘s flaws have never before been magnified. To the Court‘s
mind, the coalescence of the CoA Report, the accounts of
numerous whistle-blowers, and the government‘s own recognition
that reforms are needed "to address the reported abuses of the
PDAF"  demonstrates a prima facie pattern of abuse which only
130
underscores the importance of the matter. It is also by this finding
that the Court finds petitioners‘ claims as not merely theorized,
speculative or hypothetical. Of note is the weight accorded by the
Court to the findings made by the CoA which is the
constitutionally-mandated audit arm of the government. In Delos
Santos v. CoA,  a recent case wherein the Court upheld the
131
CoA‘s disallowance of irregularly disbursed PDAF funds, it was
emphasized that:
The COA is endowed with enough latitude to determine, prevent,
and disallow irregular, unnecessary, excessive, extravagant or
unconscionable expenditures of government funds. It is tasked to
be vigilant and conscientious in safeguarding the proper use of
the government's, and ultimately the people's, property. The
exercise of its general audit power is among the constitutional
mechanisms that gives life to the check and balance system
inherent in our form of government.
It is the general policy of the Court to sustain the decisions of
administrative authorities, especially one which is constitutionally-
created, such as the CoA, not only on the basis of the doctrine of
separation of powers but also for their presumed expertise in the
laws they are entrusted to enforce. Findings of administrative
agencies are accorded not only respect but also finality when the
decision and order are not tainted with unfairness or arbitrariness
that would amount to grave abuse of discretion. It is only when
the CoA has acted without or in excess of jurisdiction, or with
grave abuse of discretion amounting to lack or excess of
jurisdiction, that this Court entertains a petition questioning its
rulings. x x x. (Emphases supplied)
Thus, if only for the purpose of validating the existence of an
actual and justiciable controversy in these cases, the Court
deems the findings under the CoA Report to be sufficient.
The Court also finds the third exception to be applicable largely
due to the practical need for a definitive ruling on the system‘s
constitutionality. As disclosed during the Oral Arguments, the
CoA Chairperson estimates that thousands of notices of
disallowances will be issued by her office in connection with the
findings made in the CoA Report. In this relation, Associate
Justice Marvic Mario Victor F. Leonen (Justice Leonen) pointed
out that all of these would eventually find their way to the
courts.  Accordingly, there is a compelling need to formulate
132
controlling principles relative to the issues raised herein in order
to guide the bench, the bar, and the public, not just for the
expeditious resolution of the anticipated disallowance cases, but
more importantly, so that the government may be guided on how
public funds should be utilized in accordance with constitutional
principles.
Finally, the application of the fourth exception is called for by the
recognition that the preparation and passage of the national
budget is, by constitutional imprimatur, an affair of annual
occurrence.  The relevance of the issues before the Court does
133
not cease with the passage of a "PDAF -free budget for
2014."  The evolution of the "Pork Barrel System," by its
134
multifarious iterations throughout the course of history, lends a
semblance of truth to petitioners‘ claim that "the same dog will
just resurface wearing a different collar."  In Sanlakas v.
135
Executive Secretary,  the government had already backtracked
136
on a previous course of action yet the Court used the "capable of
repetition but evading review" exception in order "to prevent
similar questions from re- emerging."  The situation similarly
137
holds true to these cases. Indeed, the myriad of issues underlying
the manner in which certain public funds are spent, if not resolved
at this most opportune time, are capable of repetition and hence,
must not evade judicial review.
B. Matters of Policy: the Political Question Doctrine.
The "limitation on the power of judicial review to actual cases and
controversies‖ carries the assurance that "the courts will not
intrude into areas committed to the other branches of
government."  Essentially, the foregoing limitation is a
138
restatement of the political question doctrine which, under the
classic formulation of Baker v. Carr, applies when there is found,
139
among others, "a textually demonstrable constitutional
commitment of the issue to a coordinate political department," "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."
Cast against this light, respondents submit that the "the political
branches are in the best position not only to perform budget-
related reforms but also to do them in response to the specific
demands of their constituents" and, as such, "urge the Court not
to impose a solution at this stage."140
The Court must deny respondents‘ submission.
Suffice it to state that the issues raised before the Court do not
present political but legal questions which are within its province
to resolve. A political question refers to "those questions which,
under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary
authority has been delegated to the Legislature or executive
branch of the Government. It is concerned with issues dependent
upon the wisdom, not legality, of a particular measure."  The
141
intrinsic constitutionality of the "Pork Barrel System" is not an
issue dependent upon the wisdom of the political branches of
government but rather a legal one which the Constitution itself
has commanded the Court to act upon. Scrutinizing the contours
of the system along constitutional lines is a task that the political
branches of government are incapable of rendering precisely
because it is an exercise of judicial power. More importantly, the
present Constitution has not only vested the Judiciary the right to
exercise judicial power but essentially makes it a duty to proceed
therewith. Section 1, Article VIII of the 1987 Constitution cannot
be any clearer: "The judicial power shall be vested in one
Supreme Court and in such lower courts as may be established
by law. It 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." In Estrada v. Desierto,  the expanded concept of
142
judicial power under the 1987 Constitution and its effect on the
political question doctrine was explained as follows: 143
To a great degree, the 1987 Constitution has narrowed the reach
of the political question doctrine when it expanded the power of
judicial review of this court 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 government.
Heretofore, the judiciary has focused on the "thou shalt not's" of
the Constitution directed against the exercise of its jurisdiction.
With the new provision, however, courts are given a greater
prerogative to determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of government. Clearly, the new
provision did not just grant the Court power of doing nothing. x x x
(Emphases supplied)
It must also be borne in mind that ― when the judiciary mediates
to allocate constitutional boundaries, it does not assert any
superiority over the other departments; does not in reality nullify
or invalidate an act of the legislature or the executive, but only
asserts the solemn and sacred obligation assigned to it by the
Constitution."  To a great extent, the Court is laudably cognizant
144
of the reforms undertaken by its co-equal branches of
government. But it is by constitutional force that the Court must
faithfully perform its duty. Ultimately, it is the Court‘s avowed
intention that a resolution of these cases would not arrest or in
any manner impede the endeavors of the two other branches but,
in fact, help ensure that the pillars of change are erected on firm
constitutional grounds. After all, it is in the best interest of the
people that each great branch of government, within its own
sphere, contributes its share towards achieving a holistic and
genuine solution to the problems of society. For all these reasons,
the Court cannot heed respondents‘ plea for judicial restraint.
C. Locus Standi.
"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. Unless a person is
injuriously affected in any of his constitutional rights by the
operation of statute or ordinance, he has no standing." 145
Petitioners have come before the Court in their respective
capacities as citizen-taxpayers and accordingly, assert that they
"dutifully contribute to the coffers of the National
Treasury."  Clearly, as taxpayers, they possess the requisite
146
standing to question the validity of the existing "Pork Barrel
System" under which the taxes they pay have been and continue
to be utilized. It is undeniable that petitioners, as taxpayers, are
bound to suffer from the unconstitutional usage of public funds, if
the Court so rules. Invariably, taxpayers have been allowed to
sue where there is a claim that public funds are illegally disbursed
or that public money is being deflected to any improper purpose,
or that public funds are wasted through the enforcement of an
invalid or unconstitutional law,  as in these cases.
147
Moreover, as citizens, petitioners have equally fulfilled the
standing requirement given that the issues they have raised may
be classified as matters "of transcendental importance, of
overreaching significance to society, or of paramount public
interest."  The CoA Chairperson‘s statement during the Oral
148
Arguments that the present controversy involves "not merely a
systems failure" but a "complete breakdown of
controls"  amplifies, in addition to the matters above-discussed,
149
the seriousness of the issues involved herein. Indeed, of greater
import than the damage caused by the illegal expenditure of
public funds is the mortal wound inflicted upon the fundamental
law by the enforcement of an invalid statute.  All told, petitioners
150
have sufficient locus standi to file the instant cases.
D. Res Judicata and Stare Decisis.
Res judicata (which means a "matter adjudged") and stare decisis
non quieta et movere (or simply, stare decisis which means
"follow past precedents and do not disturb what has been
settled") are general procedural law principles which both deal
with the effects of previous but factually similar dispositions to
subsequent cases. For the cases at bar, the Court examines the
applicability of these principles in relation to its prior rulings in
Philconsa and LAMP.
The focal point of res judicata is the judgment. The principle
states that a judgment on the merits in a previous case rendered
by a court of competent jurisdiction would bind a subsequent
case if, between the first and second actions, there exists an
identity of parties, of subject matter, and of causes of
action.  This required identity is not, however, attendant hereto
151
since Philconsa and LAMP, respectively involved constitutional
challenges against the 1994 CDF Article and 2004 PDAF Article,
whereas the cases at bar call for a broader constitutional scrutiny
of the entire "Pork Barrel System." Also, the ruling in LAMP is
essentially a dismissal based on a procedural technicality – and,
thus, hardly a judgment on the merits – in that petitioners therein
failed to present any "convincing proof x x x showing that, indeed,
there were direct releases of funds to the Members of Congress,
who actually spend them according to their sole discretion" or
"pertinent evidentiary support to demonstrate the illegal misuse of
PDAF in the form of kickbacks and has become a common
exercise of unscrupulous Members of Congress." As such, the
Court up held, in view of the presumption of constitutionality
accorded to every law, the 2004 PDAF Article, and saw "no need
to review or reverse the standing pronouncements in the said
case." Hence, for the foregoing reasons, the res judicata
principle, insofar as the Philconsa and LAMP cases are
concerned, cannot apply.
On the other hand, the focal point of stare decisis is the doctrine
created. The principle, entrenched under Article 8  of the Civil
152
Code, evokes the general rule that, for the sake of certainty, a
conclusion reached in one case should be doctrinally applied to
those that follow if the facts are substantially the same, even
though the parties may be different. It proceeds from the first
principle of justice that, absent any powerful countervailing
considerations, like cases ought to be decided alike. Thus, where
the same questions relating to the same event have been put
forward by the parties similarly situated as in a previous case
litigated and decided by a competent court, the rule of stare
decisis is a bar to any attempt to re-litigate the same issue.
153
Philconsa was the first case where a constitutional challenge
against a Pork Barrel provision, i.e., the 1994 CDF Article, was
resolved by the Court. To properly understand its context,
petitioners‘ posturing was that "the power given to the Members
of Congress to propose and identify projects and activities to be
funded by the CDF is an encroachment by the legislature on
executive power, since said power in an appropriation act is in
implementation of the law" and that "the proposal and
identification of the projects do not involve the making of laws or
the repeal and amendment thereof, the only function given to the
Congress by the Constitution."  In deference to the foregoing
154
submissions, the Court reached the following main conclusions:
one, under the Constitution, the power of appropriation, or the
"power of the purse," belongs to Congress; two, the power of
appropriation carries with it the power to specify the project or
activity to be funded under the appropriation law and it can be
detailed and as broad as Congress wants it to be; and, three, the
proposals and identifications made by Members of Congress are
merely recommendatory. At once, it is apparent that the
Philconsa resolution was a limited response to a separation of
powers problem, specifically on the propriety of conferring post-
enactment identification authority to Members of Congress. On
the contrary, the present cases call for a more holistic
examination of (a) the inter-relation between the CDF and PDAF
Articles with each other, formative as they are of the entire "Pork
Barrel System" as well as (b) the intra-relation of post-enactment
measures contained within a particular CDF or PDAF Article,
including not only those related to the area of project identification
but also to the areas of fund release and realignment. The
complexity of the issues and the broader legal analyses herein
warranted may be, therefore, considered as a powerful
countervailing reason against a wholesale application of the stare
decisis principle.
In addition, the Court observes that the Philconsa ruling was
actually riddled with inherent constitutional inconsistencies which
similarly countervail against a full resort to stare decisis. As may
be deduced from the main conclusions of the case, Philconsa‘s
fundamental premise in allowing Members of Congress to
propose and identify of projects would be that the said
identification authority is but an aspect of the power of
appropriation which has been constitutionally lodged in Congress.
From this premise, the contradictions may be easily seen. If the
authority to identify projects is an aspect of appropriation and the
power of appropriation is a form of legislative power thereby
lodged in Congress, then it follows that: (a) it is Congress which
should exercise such authority, and not its individual Members;
(b) such authority must be exercised within the prescribed
procedure of law passage and, hence, should not be exercised
after the GAA has already been passed; and (c) such authority,
as embodied in the GAA, has the force of law and, hence, cannot
be merely recommendatory. Justice Vitug‘s Concurring Opinion in
the same case sums up the Philconsa quandary in this wise:
"Neither would it be objectionable for Congress, by law, to
appropriate funds for such specific projects as it may be minded;
to give that authority, however, to the individual members of
Congress in whatever guise, I am afraid, would be constitutionally
impermissible." As the Court now largely benefits from hindsight
and current findings on the matter, among others, the CoA
Report, the Court must partially abandon its previous ruling in
Philconsa insofar as it validated the post-enactment identification
authority of Members of Congress on the guise that the same
was merely recommendatory. This postulate raises serious
constitutional inconsistencies which cannot be simply excused on
the ground that such mechanism is "imaginative as it is
innovative." Moreover, it must be pointed out that the recent case
of Abakada Guro Party List v. Purisima (Abakada) has effectively
155
overturned Philconsa‘s allowance of post-enactment legislator
participation in view of the separation of powers principle. These
constitutional inconsistencies and the Abakada rule will be
discussed in greater detail in the ensuing section of this Decision.
As for LAMP, suffice it to restate that the said case was
dismissed on a procedural technicality and, hence, has not set
any controlling doctrine susceptible of current application to the
substantive issues in these cases. In fine, stare decisis would not
apply.
II. Substantive Issues.
A. Definition of Terms.
Before the Court proceeds to resolve the substantive issues of
these cases, it must first define the terms "Pork Barrel System,"
"Congressional Pork Barrel," and "Presidential Pork Barrel" as
they are essential to the ensuing discourse.
Petitioners define the term "Pork Barrel System" as the "collusion
between the Legislative and Executive branches of government
to accumulate lump-sum public funds in their offices with
unchecked discretionary powers to determine its distribution as
political largesse."  They assert that the following elements make
156
up the Pork Barrel System: (a) lump-sum funds are allocated
through the appropriations process to an individual officer; (b) the
officer is given sole and broad discretion in determining how the
funds will be used or expended; (c) the guidelines on how to
spend or use the funds in the appropriation are either vague,
overbroad or inexistent; and (d) projects funded are intended to
benefit a definite constituency in a particular part of the country
and to help the political careers of the disbursing official by
yielding rich patronage benefits.  They further state that the Pork
157
Barrel System is comprised of two (2) kinds of discretionary
public funds: first, the Congressional (or Legislative) Pork Barrel,
currently known as the PDAF;  and, second, the Presidential (or
158
Executive) Pork Barrel, specifically, the Malampaya Funds under
PD 910 and the Presidential Social Fund under PD 1869, as
amended by PD 1993. 159
Considering petitioners‘ submission and in reference to its local
concept and legal history, the Court defines the Pork Barrel
System as the collective body of rules and practices that govern
the manner by which lump-sum, discretionary funds, primarily
intended for local projects, are utilized through the respective
participations of the Legislative and Executive branches of
government, including its members. The Pork Barrel System
involves two (2) kinds of lump-sum discretionary funds:
First, there is the Congressional Pork Barrel which is herein
defined as a kind of lump-sum, discretionary fund wherein
legislators, either individually or collectively organized into
committees, are able to effectively control certain aspects of the
fund’s utilization through various post-enactment measures
and/or practices. In particular, petitioners consider the PDAF, as it
appears under the 2013 GAA, as Congressional Pork Barrel
since it is, inter alia, a post-enactment measure that allows
individual legislators to wield a collective power;  and
160
Second, there is the Presidential Pork Barrel which is herein
defined as a kind of lump-sum, discretionary fund which allows
the President to determine the manner of its utilization. For
reasons earlier stated,  the Court shall delimit the use of such
161
term to refer only to the Malampaya Funds and the Presidential
Social Fund.
With these definitions in mind, the Court shall now proceed to
discuss the substantive issues of these cases.
B. Substantive Issues on the Congressional Pork Barrel.
1. Separation of Powers.
a. Statement of Principle.
The principle of separation of powers refers to the constitutional
demarcation of the three fundamental powers of government. In
the celebrated words of Justice Laurel in Angara v. Electoral
Commission,  it means that the "Constitution has blocked out
162
with deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of the
government."  To the legislative branch of government, through
163
Congress, belongs the power to make laws; to the executive
164
branch of government, through the President,  belongs the
165
power to enforce laws; and to the judicial branch of government,
through the Court,  belongs the power to interpret laws. Because
166
the three great powers have been, by constitutional design,
ordained in this respect, "each department of the government has
exclusive cognizance of matters within its jurisdiction, and is
supreme within its own sphere."  Thus, "the legislature has no
167
authority to execute or construe the law, the executive has no
authority to make or construe the law, and the judiciary has no
power to make or execute the law."  The principle of separation
168
of powers and its concepts of autonomy and independence stem
from the notion that the powers of government must be divided to
avoid concentration of these powers in any one branch; the
division, it is hoped, would avoid any single branch from lording
its power over the other branches or the citizenry.  To achieve
169
this purpose, the divided power must be wielded by co-equal
branches of government that are equally capable of independent
action in exercising their respective mandates. Lack of
independence would result in the inability of one branch of
government to check the arbitrary or self-interest assertions of
another or others. 170
Broadly speaking, there is a violation of the separation of powers
principle when one branch of government unduly encroaches on
the domain of another. US Supreme Court decisions instruct that
the principle of separation of powers may be violated in two (2)
ways: firstly, "one branch may interfere impermissibly with the
other’s performance of its constitutionally assigned
function";  and "alternatively, the doctrine may be violated when
171
one branch assumes a function that more properly is entrusted to
another."  In other words, there is a violation of the principle
172
when there is impermissible (a) interference with and/or (b)
assumption of another department‘s functions.
The enforcement of the national budget, as primarily contained in
the GAA, is indisputably a function both constitutionally assigned
and properly entrusted to the Executive branch of government. In
Guingona, Jr. v. Hon. Carague  (Guingona, Jr.), the Court
173
explained that the phase of budget execution "covers the various
operational aspects of budgeting" and accordingly includes "the
evaluation of work and financial plans for individual activities," the
"regulation and release of funds" as well as all "other related
activities" that comprise the budget execution cycle.  This is
174
rooted in the principle that the allocation of power in the three
principal branches of government is a grant of all powers inherent
in them.  Thus, unless the Constitution provides otherwise, the
175
Executive department should exclusively exercise all roles and
prerogatives which go into the implementation of the national
budget as provided under the GAA as well as any other
appropriation law.
In view of the foregoing, the Legislative branch of government,
much more any of its members, should not cross over the field of
implementing the national budget since, as earlier stated, the
same is properly the domain of the Executive. Again, in
Guingona, Jr., the Court stated that "Congress enters the picture
when it deliberates or acts on the budget proposals of the
President. Thereafter, Congress, "in the exercise of its own
judgment and wisdom, formulates an appropriation act precisely
following the process established by the Constitution, which
specifies that no money may be paid from the Treasury except in
accordance with an appropriation made by law." Upon approval
and passage of the GAA, Congress‘ law -making role necessarily
comes to an end and from there the Executive‘s role of
implementing the national budget begins. So as not to blur the
constitutional boundaries between them, Congress must "not
concern it self with details for implementation by the Executive." 176
The foregoing cardinal postulates were definitively enunciated in
Abakada where the Court held that "from the moment the law
becomes effective, any provision of law that empowers Congress
or any of its members to play any role in the implementation or
enforcement of the law violates the principle of separation of
powers and is thus unconstitutional."  It must be clarified,
177
however, that since the restriction only pertains to "any role in the
implementation or enforcement of the law," Congress may still
exercise its oversight function which is a mechanism of checks
and balances that the Constitution itself allows. But it must be
made clear that Congress‘ role must be confined to mere
oversight. Any post-enactment-measure allowing legislator
participation beyond oversight is bereft of any constitutional basis
and hence, tantamount to impermissible interference and/or
assumption of executive functions. As the Court ruled in
Abakada: 178
Any post-enactment congressional measure x x x should be
limited to scrutiny and investigation.  In particular, congressional
1âwphi1
oversight must be confined to the following:
(1) scrutiny based primarily on Congress‘ power of
appropriation and the budget hearings conducted in
connection with it, its power to ask heads of departments
to appear before and be heard by either of its Houses on
any matter pertaining to their departments and its power
of confirmation; and
(2) investigation and monitoring of the implementation of
laws pursuant to the power of Congress to conduct
inquiries in aid of legislation.
Any action or step beyond that will undermine the separation of
powers guaranteed by the Constitution. (Emphases supplied)
b. Application.
In these cases, petitioners submit that the Congressional Pork
Barrel – among others, the 2013 PDAF Article – "wrecks the
assignment of responsibilities between the political branches" as
it is designed to allow individual legislators to interfere "way past
the time it should have ceased" or, particularly, "after the GAA is
passed."  They state that the findings and recommendations in
179
the CoA Report provide "an illustration of how absolute and
definitive the power of legislators wield over project
implementation in complete violation of the constitutional principle
of separation of powers."  Further, they point out that the Court in
180
the Philconsa case only allowed the CDF to exist on the condition
that individual legislators limited their role to recommending
projects and not if they actually dictate their implementation.181
For their part, respondents counter that the separations of powers
principle has not been violated since the President maintains
"ultimate authority to control the execution of the GAA‖ and that
he "retains the final discretion to reject" the legislators‘
proposals.  They maintain that the Court, in Philconsa, "upheld
182
the constitutionality of the power of members of Congress to
propose and identify projects so long as such proposal and
identification are recommendatory."  As such, they claim that
183
"everything in the Special Provisions [of the 2013 PDAF Article
follows the Philconsa framework, and hence, remains
constitutional." 184
The Court rules in favor of petitioners.
As may be observed from its legal history, the defining feature of
all forms of Congressional Pork Barrel would be the authority of
legislators to participate in the post-enactment phases of project
implementation.
At its core, legislators – may it be through project lists,  prior
185
consultations  or program menus  – have been consistently
186 187
accorded post-enactment authority to identify the projects they
desire to be funded through various Congressional Pork Barrel
allocations. Under the 2013 PDAF Article, the statutory authority
of legislators to identify projects post-GAA may be construed from
the import of Special Provisions 1 to 3 as well as the second
paragraph of Special Provision 4. To elucidate, Special Provision
1 embodies the program menu feature which, as evinced from
past PDAF Articles, allows individual legislators to identify PDAF
projects for as long as the identified project falls under a general
program listed in the said menu. Relatedly, Special Provision 2
provides that the implementing agencies shall, within 90 days
from the GAA is passed, submit to Congress a more detailed
priority list, standard or design prepared and submitted by
implementing agencies from which the legislator may make his
choice. The same provision further authorizes legislators to
identify PDAF projects outside his district for as long as the
representative of the district concerned concurs in writing.
Meanwhile, Special Provision 3 clarifies that PDAF projects refer
to "projects to be identified by legislators"  and thereunder
188
provides the allocation limit for the total amount of projects
identified by each legislator. Finally, paragraph 2 of Special
Provision 4 requires that any modification and revision of the
project identification "shall be submitted to the House Committee
on Appropriations and the Senate Committee on Finance for
favorable endorsement to the DBM or the implementing agency,
as the case may be." From the foregoing special provisions, it
cannot be seriously doubted that legislators have been accorded
post-enactment authority to identify PDAF projects.
Aside from the area of project identification, legislators have also
been accorded post-enactment authority in the areas of fund
release and realignment. Under the 2013 PDAF Article, the
statutory authority of legislators to participate in the area of fund
release through congressional committees is contained in Special
Provision 5 which explicitly states that "all request for release of
funds shall be supported by the documents prescribed under
Special Provision No. 1 and favorably endorsed by House
Committee on Appropriations and the Senate Committee on
Finance, as the case may be"; while their statutory authority to
participate in the area of fund realignment is contained in: first ,
paragraph 2, Special Provision 4  which explicitly state s, among
189
others, that "any realignment of funds shall be submitted to the
House Committee on Appropriations and the Senate Committee
on Finance for favorable endorsement to the DBM or the
implementing agency, as the case may be‖ ; and, second ,
paragraph 1, also of Special Provision 4 which authorizes the
"Secretaries of Agriculture, Education, Energy, Interior and Local
Government, Labor and Employment, Public Works and
Highways, Social Welfare and Development and Trade and
Industry  x x x to approve realignment from one project/scope to
190
another within the allotment received from this Fund, subject to
among others (iii) the request is with the concurrence of the
legislator concerned."
Clearly, these post-enactment measures which govern the areas
of project identification, fund release and fund realignment are not
related to functions of congressional oversight and, hence, allow
legislators to intervene and/or assume duties that properly belong
to the sphere of budget execution. Indeed, by virtue of the
foregoing, legislators have been, in one form or another,
authorized to participate in – as Guingona, Jr. puts it – "the
various operational aspects of budgeting," including "the
evaluation of work and financial plans for individual activities" and
the "regulation and release of funds" in violation of the separation
of powers principle. The fundamental rule, as categorically
articulated in Abakada, cannot be overstated – from the moment
the law becomes effective, any provision of law that empowers
Congress or any of its members to play any role in the
implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional.  That the said
191
authority is treated as merely recommendatory in nature does not
alter its unconstitutional tenor since the prohibition, to repeat,
covers any role in the implementation or enforcement of the law.
Towards this end, the Court must therefore abandon its ruling in
Philconsa which sanctioned the conduct of legislator identification
on the guise that the same is merely recommendatory and, as
such, respondents‘ reliance on the same falters altogether.
Besides, it must be pointed out that respondents have
nonetheless failed to substantiate their position that the
identification authority of legislators is only of recommendatory
import. Quite the contrary, respondents – through the statements
of the Solicitor General during the Oral Arguments – have
admitted that the identification of the legislator constitutes a
mandatory requirement before his PDAF can be tapped as a
funding source, thereby highlighting the indispensability of the
said act to the entire budget execution process: 192
Justice Bernabe: Now, without the individual legislator’s
identification of the project, can the PDAF of the legislator be
utilized?
Solicitor General Jardeleza: No, Your Honor.
Justice Bernabe: It cannot?
Solicitor General Jardeleza: It cannot… (interrupted)
Justice Bernabe: So meaning you should have the identification
of the project by the individual legislator?
Solicitor General Jardeleza: Yes, Your Honor.
xxxx
Justice Bernabe: In short, the act of identification is mandatory?
Solictor General Jardeleza: Yes, Your Honor. In the sense that if
it is not done and then there is no identification.
xxxx
Justice Bernabe: Now, would you know of specific instances
when a project was implemented without the identification by the
individual legislator?
Solicitor General Jardeleza: I do not know, Your Honor; I do not
think so but I have no specific examples. I would doubt very
much, Your Honor, because to implement, there is a need for a
SARO and the NCA. And the SARO and the NCA are triggered
by an identification from the legislator.
xxxx
Solictor General Jardeleza: What we mean by mandatory, Your
Honor, is we were replying to a question, "How can a legislator
make sure that he is able to get PDAF Funds?" It is mandatory in
the sense that he must identify, in that sense, Your Honor.
Otherwise, if he does not identify, he cannot avail of the PDAF
Funds and his district would not be able to have PDAF Funds,
only in that sense, Your Honor. (Emphases supplied)
Thus, for all the foregoing reasons, the Court hereby declares the
2013 PDAF Article as well as all other provisions of law which
similarly allow legislators to wield any form of post-enactment
authority in the implementation or enforcement of the budget,
unrelated to congressional oversight, as violative of the
separation of powers principle and thus unconstitutional.
Corollary thereto, informal practices, through which legislators
have effectively intruded into the proper phases of budget
execution, must be deemed as acts of grave abuse of discretion
amounting to lack or excess of jurisdiction and, hence, accorded
the same unconstitutional treatment. That such informal practices
do exist and have, in fact, been constantly observed throughout
the years has not been substantially disputed here. As pointed
out by Chief Justice Maria Lourdes P.A. Sereno (Chief Justice
Sereno) during the Oral Arguments of these cases: 193
Chief Justice Sereno:
Now, from the responses of the representative of both, the DBM
and two (2) Houses of Congress, if we enforces the initial thought
that I have, after I had seen the extent of this research made by
my staff, that neither the Executive nor Congress frontally faced
the question of constitutional compatibility of how they were
engineering the budget process. In fact, the words you have been
using, as the three lawyers of the DBM, and both Houses of
Congress has also been using is surprise; surprised that all of
these things are now surfacing. In fact, I thought that what the
2013 PDAF provisions did was to codify in one section all the
past practice that had been done since 1991. In a certain sense,
we should be thankful that they are all now in the PDAF Special
Provisions. x x x (Emphasis and underscoring supplied)
Ultimately, legislators cannot exercise powers which they do not
have, whether through formal measures written into the law or
informal practices institutionalized in government agencies, else
the Executive department be deprived of what the Constitution
has vested as its own.
2. Non-delegability of Legislative Power.
a. Statement of Principle.
As an adjunct to the separation of powers principle,  legislative
194
power shall be exclusively exercised by the body to which the
Constitution has conferred the same. In particular, Section 1,
Article VI of the 1987 Constitution states that such power shall be
vested in the Congress of the Philippines which shall consist of a
Senate and a House of Representatives, except to the extent
reserved to the people by the provision on initiative and
referendum.  Based on this provision, it is clear that only
195
Congress, acting as a bicameral body, and the people, through
the process of initiative and referendum, may constitutionally
wield legislative power and no other. This premise embodies the
principle of non-delegability of legislative power, and the only
recognized exceptions thereto would be: (a) delegated legislative
power to local governments which, by immemorial practice, are
allowed to legislate on purely local matters;  and (b)
196
constitutionally-grafted exceptions such as the authority of the
President to, by law, exercise powers necessary and proper to
carry out a declared national policy in times of war or other
national emergency, or fix within specified limits, and subject to
197
such limitations and restrictions as Congress may impose, tariff
rates, import and export quotas, tonnage and wharfage dues, and
other duties or imposts within the framework of the national
development program of the Government. 198
Notably, the principle of non-delegability should not be confused
as a restriction to delegate rule-making authority to implementing
agencies for the limited purpose of either filling up the details of
the law for its enforcement (supplementary rule-making) or
ascertaining facts to bring the law into actual operation
(contingent rule-making). The conceptual treatment and
199
limitations of delegated rule-making were explained in the case of
People v. Maceren  as follows:
200
The grant of the rule-making power to administrative agencies is
a relaxation of the principle of separation of powers and is an
exception to the nondelegation of legislative powers.
Administrative regulations or "subordinate legislation" calculated
to promote the public interest are necessary because of "the
growing complexity of modern life, the multiplication of the
subjects of governmental regulations, and the increased difficulty
of administering the law."
xxxx
Nevertheless, it must be emphasized that the rule-making power
must be confined to details for regulating the mode or proceeding
to carry into effect the law as it has been enacted. The power
cannot be extended to amending or expanding the statutory
requirements or to embrace matters not covered by the statute.
Rules that subvert the statute cannot be sanctioned. (Emphases
supplied)
b. Application.
In the cases at bar, the Court observes that the 2013 PDAF
Article, insofar as it confers post-enactment identification authority
to individual legislators, violates the principle of non-delegability
since said legislators are effectively allowed to individually
exercise the power of appropriation, which – as settled in
Philconsa – is lodged in Congress.  That the power to
201
appropriate must be exercised only through legislation is clear
from Section 29(1), Article VI of the 1987 Constitution which
states that: "No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law." To understand what
constitutes an act of appropriation, the Court, in Bengzon v.
Secretary of Justice and Insular Auditor  (Bengzon), held that the
202
power of appropriation involves (a) the setting apart by law of a
certain sum from the public revenue for (b) a specified purpose.
Essentially, under the 2013 PDAF Article, individual legislators
are given a personal lump-sum fund from which they are able to
dictate (a) how much from such fund would go to (b) a specific
project or beneficiary that they themselves also determine. As
these two (2) acts comprise the exercise of the power of
appropriation as described in Bengzon, and given that the 2013
PDAF Article authorizes individual legislators to perform the
same, undoubtedly, said legislators have been conferred the
power to legislate which the Constitution does not, however,
allow. Thus, keeping with the principle of non-delegability of
legislative power, the Court hereby declares the 2013 PDAF
Article, as well as all other forms of Congressional Pork Barrel
which contain the similar legislative identification feature as
herein discussed, as unconstitutional.
3. Checks and Balances.
a. Statement of Principle; Item-Veto Power.
The fact that the three great powers of government are intended
to be kept separate and distinct does not mean that they are
absolutely unrestrained and independent of each other. The
Constitution has also provided for an elaborate system of checks
and balances to secure coordination in the workings of the
various departments of the government. 203
A prime example of a constitutional check and balance would be
the President’s power to veto an item written into an
appropriation, revenue or tariff bill submitted to him by Congress
for approval through a process known as "bill presentment." The
President‘s item-veto power is found in Section 27(2), Article VI of
the 1987 Constitution which reads as follows:
Sec. 27. x x x.
xxxx
(2) The President shall have the power to veto any particular item
or items in an appropriation, revenue, or tariff bill, but the veto
shall not affect the item or items to which he does not object.
The presentment of appropriation, revenue or tariff bills to the
President, wherein he may exercise his power of item-veto, forms
part of the "single, finely wrought and exhaustively considered,
procedures" for law-passage as specified under the
Constitution.  As stated in Abakada, the final step in the law-
204
making process is the "submission of the bill to the President for
approval. Once approved, it takes effect as law after the required
publication." 205
Elaborating on the President‘s item-veto power and its relevance
as a check on the legislature, the Court, in Bengzon, explained
that:
206
The former Organic Act and the present Constitution of the
Philippines make the Chief Executive an integral part of the law-
making power. His disapproval of a bill, commonly known as a
veto, is essentially a legislative act. The questions presented to
the mind of the Chief Executive are precisely the same as those
the legislature must determine in passing a bill, except that his
will be a broader point of view.
The Constitution is a limitation upon the power of the legislative
department of the government, but in this respect it is a grant of
power to the executive department. The Legislature has the
affirmative power to enact laws; the Chief Executive has the
negative power by the constitutional exercise of which he may
defeat the will of the Legislature. It follows that the Chief
Executive must find his authority in the Constitution. But in
exercising that authority he may not be confined to rules of strict
construction or hampered by the unwise interference of the
judiciary. The courts will indulge every intendment in favor of the
constitutionality of a veto in the same manner as they will
presume the constitutionality of an act as originally passed by the
Legislature. (Emphases supplied)
The justification for the President‘s item-veto power rests on a
variety of policy goals such as to prevent log-rolling
legislation,  impose fiscal restrictions on the legislature, as well
207
as to fortify the executive branch‘s role in the budgetary
process.  In Immigration and Naturalization Service v. Chadha,
208
the US Supreme Court characterized the President‘s item-power
as "a salutary check upon the legislative body, calculated to
guard the community against the effects of factions, precipitancy,
or of any impulse unfriendly to the public good, which may
happen to influence a majority of that body"; phrased differently, it
is meant to "increase the chances in favor of the community
against the passing of bad laws, through haste, inadvertence, or
design." 209
For the President to exercise his item-veto power, it necessarily
follows that there exists a proper "item" which may be the object
of the veto. An item, as defined in the field of appropriations,
pertains to "the particulars, the details, the distinct and severable
parts of the appropriation or of the bill." In the case of Bengzon v.
Secretary of Justice of the Philippine Islands,  the US Supreme
210
Court characterized an item of appropriation as follows:
An item of an appropriation bill obviously means an item which, in
itself, is a specific appropriation of money, not some general
provision of law which happens to be put into an appropriation
bill. (Emphases supplied)
On this premise, it may be concluded that an appropriation bill, to
ensure that the President may be able to exercise his power of
item veto, must contain "specific appropriations of money" and
not only "general provisions" which provide for parameters of
appropriation.
Further, it is significant to point out that an item of appropriation
must be an item characterized by singular correspondence –
meaning an allocation of a specified singular amount for a
specified singular purpose, otherwise known as a "line-
item."  This treatment not only allows the item to be consistent
211
with its definition as a "specific appropriation of money" but also
ensures that the President may discernibly veto the same. Based
on the foregoing formulation, the existing Calamity Fund,
Contingent Fund and the Intelligence Fund, being appropriations
which state a specified amount for a specific purpose, would then
be considered as "line- item" appropriations which are rightfully
subject to item veto. Likewise, it must be observed that an
appropriation may be validly apportioned into component
percentages or values; however, it is crucial that each percentage
or value must be allocated for its own corresponding purpose for
such component to be considered as a proper line-item.
Moreover, as Justice Carpio correctly pointed out, a valid
appropriation may even have several related purposes that are by
accounting and budgeting practice considered as one purpose,
e.g., MOOE (maintenance and other operating expenses), in
which case the related purposes shall be deemed sufficiently
specific for the exercise of the President‘s item veto power.
Finally, special purpose funds and discretionary funds would
equally square with the constitutional mechanism of item-veto for
as long as they follow the rule on singular correspondence as
herein discussed. Anent special purpose funds, it must be added
that Section 25(4), Article VI of the 1987 Constitution requires that
the "special appropriations bill shall specify the purpose for which
it is intended, and shall be supported by funds actually available
as certified by the National Treasurer, or t o be raised by a
corresponding revenue proposal therein." Meanwhile, with
respect to discretionary funds, Section 2 5(6), Article VI of the
1987 Constitution requires that said funds "shall be disbursed
only for public purposes to be supported by appropriate vouchers
and subject to such guidelines as may be prescribed by law."
In contrast, what beckons constitutional infirmity are
appropriations which merely provide for a singular lump-sum
amount to be tapped as a source of funding for multiple purposes.
Since such appropriation type necessitates the further
determination of both the actual amount to be expended and the
actual purpose of the appropriation which must still be chosen
from the multiple purposes stated in the law, it cannot be said that
the appropriation law already indicates a "specific appropriation of
money‖ and hence, without a proper line-item which the President
may veto. As a practical result, the President would then be faced
with the predicament of either vetoing the entire appropriation if
he finds some of its purposes wasteful or undesirable, or
approving the entire appropriation so as not to hinder some of its
legitimate purposes. Finally, it may not be amiss to state that
such arrangement also raises non-delegability issues considering
that the implementing authority would still have to determine,
again, both the actual amount to be expended and the actual
purpose of the appropriation. Since the foregoing determinations
constitute the integral aspects of the power to appropriate, the
implementing authority would, in effect, be exercising legislative
prerogatives in violation of the principle of non-delegability.
b. Application.
In these cases, petitioners claim that "in the current x x x system
where the PDAF is a lump-sum appropriation, the legislator‘s
identification of the projects after the passage of the GAA denies
the President the chance to veto that item later on."  Accordingly,
212
they submit that the "item veto power of the President mandates
that appropriations bills adopt line-item budgeting" and that
"Congress cannot choose a mode of budgeting which effectively
renders the constitutionally-given power of the President
useless."213
On the other hand, respondents maintain that the text of the
Constitution envisions a process which is intended to meet the
demands of a modernizing economy and, as such, lump-sum
appropriations are essential to financially address situations
which are barely foreseen when a GAA is enacted. They argue
that the decision of the Congress to create some lump-sum
appropriations is constitutionally allowed and textually-
grounded. 214
The Court agrees with petitioners.
Under the 2013 PDAF Article, the amount of ₱24.79 Billion only
appears as a collective allocation limit since the said amount
would be further divided among individual legislators who would
then receive personal lump-sum allocations and could, after the
GAA is passed, effectively appropriate PDAF funds based on
their own discretion. As these intermediate appropriations are
made by legislators only after the GAA is passed and hence,
outside of the law, it necessarily means that the actual items of
PDAF appropriation would not have been written into the General
Appropriations Bill and thus effectuated without veto
consideration. This kind of lump-sum/post-enactment legislative
identification budgeting system fosters the creation of a budget
within a budget" which subverts the prescribed procedure of
presentment and consequently impairs the President‘s power of
item veto. As petitioners aptly point out, the above-described
system forces the President to decide between (a) accepting the
entire ₱24.79 Billion PDAF allocation without knowing the specific
projects of the legislators, which may or may not be consistent
with his national agenda and (b) rejecting the whole PDAF to the
detriment of all other legislators with legitimate projects.
215
Moreover, even without its post-enactment legislative
identification feature, the 2013 PDAF Article would remain
constitutionally flawed since it would then operate as a prohibited
form of lump-sum appropriation above-characterized. In
particular, the lump-sum amount of ₱24.79 Billion would be
treated as a mere funding source allotted for multiple purposes of
spending, i.e., scholarships, medical missions, assistance to
indigents, preservation of historical materials, construction of
roads, flood control, etc. This setup connotes that the
appropriation law leaves the actual amounts and purposes of the
appropriation for further determination and, therefore, does not
readily indicate a discernible item which may be subject to the
President‘s power of item veto.
In fact, on the accountability side, the same lump-sum budgeting
scheme has, as the CoA Chairperson relays, "limited state
auditors from obtaining relevant data and information that would
aid in more stringently auditing the utilization of said
Funds."  Accordingly, she recommends the adoption of a "line by
216
line budget or amount per proposed program, activity or project,
and per implementing agency." 217
Hence, in view of the reasons above-stated, the Court finds the
2013 PDAF Article, as well as all Congressional Pork Barrel Laws
of similar operation, to be unconstitutional. That such budgeting
system provides for a greater degree of flexibility to account for
future contingencies cannot be an excuse to defeat what the
Constitution requires. Clearly, the first and essential truth of the
matter is that unconstitutional means do not justify even
commendable ends. 218
c. Accountability.
Petitioners further relate that the system under which various
forms of Congressional Pork Barrel operate defies public
accountability as it renders Congress incapable of checking itself
or its Members. In particular, they point out that the
Congressional Pork Barrel "gives each legislator a direct, financial
interest in the smooth, speedy passing of the yearly budget"
which turns them "from fiscalizers" into "financially-interested
partners."  They also claim that the system has an effect on re-
219
election as "the PDAF excels in self-perpetuation of elective
officials." Finally, they add that the "PDAF impairs the power of
impeachment" as such "funds are indeed quite useful, ‘to well,
accelerate the decisions of senators.‘" 220
The Court agrees in part.
The aphorism forged under Section 1, Article XI of the 1987
Constitution, which states that "public office is a public trust," is
an overarching reminder that every instrumentality of government
should exercise their official functions only in accordance with the
principles of the Constitution which embodies the parameters of
the people‘s trust. The notion of a public trust connotes
accountability,  hence, the various mechanisms in the
221
Constitution which are designed to exact accountability from
public officers.
Among others, an accountability mechanism with which the
proper expenditure of public funds may be checked is the power
of congressional oversight. As mentioned in
Abakada,  congressional oversight may be performed either
222
through: (a) scrutiny based primarily on Congress‘ power of
appropriation and the budget hearings conducted in connection
with it, its power to ask heads of departments to appear before
and be heard by either of its Houses on any matter pertaining to
their departments and its power of confirmation;  or (b)
223
investigation and monitoring of the implementation of laws
pursuant to the power of Congress to conduct inquiries in aid of
legislation.224
The Court agrees with petitioners that certain features embedded
in some forms of Congressional Pork Barrel, among others the
2013 PDAF Article, has an effect on congressional oversight. The
fact that individual legislators are given post-enactment roles in
the implementation of the budget makes it difficult for them to
become disinterested "observers" when scrutinizing, investigating
or monitoring the implementation of the appropriation law. To a
certain extent, the conduct of oversight would be tainted as said
legislators, who are vested with post-enactment authority, would,
in effect, be checking on activities in which they themselves
participate. Also, it must be pointed out that this very same
concept of post-enactment authorization runs afoul of Section 14,
Article VI of the 1987 Constitution which provides that:
Sec. 14. No Senator or Member of the House of Representatives
may personally appear as counsel before any court of justice or
before the Electoral Tribunals, or quasi-judicial and other
administrative bodies. Neither shall he, directly or indirectly, be
interested financially in any contract with, or in any franchise or
special privilege granted by the Government, or any subdivision,
agency, or instrumentality thereof, including any government-
owned or controlled corporation, or its subsidiary, during his term
of office. He shall not intervene in any matter before any office of
the Government for his pecuniary benefit or where he may be
called upon to act on account of his office. (Emphasis supplied)
Clearly, allowing legislators to intervene in the various phases of
project implementation – a matter before another office of
government – renders them susceptible to taking undue
advantage of their own office.
The Court, however, cannot completely agree that the same post-
enactment authority and/or the individual legislator‘s control of his
PDAF per se would allow him to perpetuate himself in office.
Indeed, while the Congressional Pork Barrel and a legislator‘s
use thereof may be linked to this area of interest, the use of his
PDAF for re-election purposes is a matter which must be
analyzed based on particular facts and on a case-to-case basis.
Finally, while the Court accounts for the possibility that the close
operational proximity between legislators and the Executive
department, through the former‘s post-enactment participation,
may affect the process of impeachment, this matter largely
borders on the domain of politics and does not strictly concern the
Pork Barrel System‘s intrinsic constitutionality. As such, it is an
improper subject of judicial assessment.
In sum, insofar as its post-enactment features dilute
congressional oversight and violate Section 14, Article VI of the
1987 Constitution, thus impairing public accountability, the 2013
PDAF Article and other forms of Congressional Pork Barrel of
similar nature are deemed as unconstitutional.
4. Political Dynasties.
One of the petitioners submits that the Pork Barrel System
enables politicians who are members of political dynasties to
accumulate funds to perpetuate themselves in power, in
contravention of Section 26, Article II of the 1987
Constitution  which states that:
225
Sec. 26. The State shall guarantee equal access to opportunities
for public service, and prohibit political dynasties as may be
defined by law. (Emphasis and underscoring supplied)
At the outset, suffice it to state that the foregoing provision is
considered as not self-executing due to the qualifying phrase "as
may be defined by law." In this respect, said provision does not,
by and of itself, provide a judicially enforceable constitutional right
but merely specifies guideline for legislative or executive
action.  Therefore, since there appears to be no standing law
226
which crystallizes the policy on political dynasties for
enforcement, the Court must defer from ruling on this issue.
In any event, the Court finds the above-stated argument on this
score to be largely speculative since it has not been properly
demonstrated how the Pork Barrel System would be able to
propagate political dynasties.
5. Local Autonomy.
The State‘s policy on local autonomy is principally stated in
Section 25, Article II and Sections 2 and 3, Article X of the 1987
Constitution which read as follows:
ARTICLE II
Sec. 25. The State shall ensure the autonomy of local
governments.
ARTICLE X
Sec. 2. The territorial and political subdivisions shall enjoy local
autonomy.
Sec. 3. The Congress shall enact a local government code which
shall provide for a more responsive and accountable local
government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and
referendum, allocate among the different local government units
their powers, responsibilities, and resources, and provide for the
qualifications, election, appointment and removal, term, salaries,
powers and functions and duties of local officials, and all other
matters relating to the organization and operation of the local
units.
Pursuant thereto, Congress enacted RA 7160,  otherwise known
227
as the "Local Government Code of 1991" (LGC), wherein the
policy on local autonomy had been more specifically explicated
as follows:
Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy
of the State that the territorial and political subdivisions of the
State shall enjoy genuine and meaningful local autonomy to
enable them to attain their fullest development as self-reliant
communities and make them more effective partners in the
attainment of national goals. Toward this end, the State shall
provide for a more responsive and accountable local government
structure instituted through a system of decentralization whereby
local government units shall be given more powers, authority,
responsibilities, and resources. The process of decentralization
shall proceed from the National Government to the local
government units.
xxxx
(c) It is likewise the policy of the State to require all national
agencies and offices to conduct periodic consultations with
appropriate local government units, nongovernmental and
people‘s organizations, and other concerned sectors of the
community before any project or program is implemented in their
respective jurisdictions. (Emphases and underscoring supplied)
The above-quoted provisions of the Constitution and the LGC
reveal the policy of the State to empower local government units
(LGUs) to develop and ultimately, become self-sustaining and
effective contributors to the national economy. As explained by
the Court in Philippine Gamefowl Commission v. Intermediate
Appellate Court: 228
This is as good an occasion as any to stress the commitment of
the Constitution to the policy of local autonomy which is intended
to provide the needed impetus and encouragement to the
development of our local political subdivisions as "self - reliant
communities." In the words of Jefferson, "Municipal corporations
are the small republics from which the great one derives its
strength." The vitalization of local governments will enable their
inhabitants to fully exploit their resources and more important,
imbue them with a deepened sense of involvement in public
affairs as members of the body politic. This objective could be
blunted by undue interference by the national government in
purely local affairs which are best resolved by the officials and
inhabitants of such political units. The decision we reach today
conforms not only to the letter of the pertinent laws but also to the
spirit of the Constitution.  (Emphases and underscoring supplied)
229
In the cases at bar, petitioners contend that the Congressional
Pork Barrel goes against the constitutional principles on local
autonomy since it allows district representatives, who are national
officers, to substitute their judgments in utilizing public funds for
local development.  The Court agrees with petitioners.
230
Philconsa described the 1994 CDF as an attempt "to make equal
the unequal" and that "it is also a recognition that individual
members of Congress, far more than the President and their
congressional colleagues, are likely to be knowledgeable about
the needs of their respective constituents and the priority to be
given each project."  Drawing strength from this pronouncement,
231
previous legislators justified its existence by stating that "the
relatively small projects implemented under the Congressional
Pork Barrel complement and link the national development goals
to the countryside and grassroots as well as to depressed areas
which are overlooked by central agencies which are preoccupied
with mega-projects.  Similarly, in his August 23, 2013 speech on
232
the "abolition" of PDAF and budgetary reforms, President Aquino
mentioned that the Congressional Pork Barrel was originally
established for a worthy goal, which is to enable the
representatives to identify projects for communities that the LGU
concerned cannot afford. 233
Notwithstanding these declarations, the Court, however, finds an
inherent defect in the system which actually belies the avowed
intention of "making equal the unequal." In particular, the Court
observes that the gauge of PDAF and CDF allocation/division is
based solely on the fact of office, without taking into account the
specific interests and peculiarities of the district the legislator
represents. In this regard, the allocation/division limits are clearly
not based on genuine parameters of equality, wherein economic
or geographic indicators have been taken into consideration. As a
result, a district representative of a highly-urbanized metropolis
gets the same amount of funding as a district representative of a
far-flung rural province which would be relatively
"underdeveloped" compared to the former. To add, what rouses
graver scrutiny is that even Senators and Party-List
Representatives – and in some years, even the Vice-President –
who do not represent any locality, receive funding from the
Congressional Pork Barrel as well. These certainly are anathema
to the Congressional Pork Barrel‘s original intent which is "to
make equal the unequal." Ultimately, the PDAF and CDF had
become personal funds under the effective control of each
legislator and given unto them on the sole account of their office.
The Court also observes that this concept of legislator control
underlying the CDF and PDAF conflicts with the functions of the
various Local Development Councils (LDCs) which are already
legally mandated to "assist the corresponding sanggunian in
setting the direction of economic and social development, and
coordinating development efforts within its territorial
jurisdiction."  Considering that LDCs are instrumentalities whose
234
functions are essentially geared towards managing local
affairs,  their programs, policies and resolutions should not be
235
overridden nor duplicated by individual legislators, who are
national officers that have no law-making authority except only
when acting as a body. The undermining effect on local autonomy
caused by the post-enactment authority conferred to the latter
was succinctly put by petitioners in the following wise: 236
With PDAF, a Congressman can simply bypass the local
development council and initiate projects on his own, and even
take sole credit for its execution. Indeed, this type of personality-
driven project identification has not only contributed little to the
overall development of the district, but has even contributed to
"further weakening infrastructure planning and coordination
efforts of the government."
Thus, insofar as individual legislators are authorized to intervene
in purely local matters and thereby subvert genuine local
autonomy, the 2013 PDAF Article as well as all other similar
forms of Congressional Pork Barrel is deemed unconstitutional.
With this final issue on the Congressional Pork Barrel resolved,
the Court now turns to the substantive issues involving the
Presidential Pork Barrel.
C. Substantive Issues on the Presidential Pork Barrel.
1. Validity of Appropriation.
Petitioners preliminarily assail Section 8 of PD 910 and Section
12 of PD1869 (now, amended by PD 1993), which respectively
provide for the Malampaya Funds and the Presidential Social
Fund, as invalid appropriations laws since they do not have the
"primary and specific" purpose of authorizing the release of public
funds from the National Treasury. Petitioners submit that Section
8 of PD 910 is not an appropriation law since the "primary and
specific‖ purpose of PD 910 is the creation of an Energy
Development Board and Section 8 thereof only created a Special
Fund incidental thereto.  In similar regard, petitioners argue that
237
Section 12 of PD 1869 is neither a valid appropriations law since
the allocation of the Presidential Social Fund is merely incidental
to the "primary and specific" purpose of PD 1869 which is the
amendment of the Franchise and Powers of PAGCOR.  In view 238
of the foregoing, petitioners suppose that such funds are being
used without any valid law allowing for their proper appropriation
in violation of Section 29(1), Article VI of the 1987 Constitution
which states that: "No money shall be paid out of the Treasury
except in pursuance of an appropriation made by law." 239
The Court disagrees.
"An appropriation made by law‖ under the contemplation of
Section 29(1), Article VI of the 1987 Constitution exists when a
provision of law (a) sets apart a determinate or
determinable  amount of money and (b) allocates the same for a
240
particular public purpose. These two minimum designations of
amount and purpose stem from the very definition of the word
"appropriation," which means "to allot, assign, set apart or apply
to a particular use or purpose," and hence, if written into the law,
demonstrate that the legislative intent to appropriate exists. As
the Constitution "does not provide or prescribe any particular form
of words or religious recitals in which an authorization or
appropriation by Congress shall be made, except that it be ‘made
by law,‘" an appropriation law may – according to Philconsa – be
"detailed and as broad as Congress wants it to be" for as long as
the intent to appropriate may be gleaned from the same. As held
in the case of Guingona, Jr.: 241
There is no provision in our Constitution that provides or
prescribes any particular form of words or religious recitals in
which an authorization or appropriation by Congress shall be
made, except that it be "made by law," such as precisely the
authorization or appropriation under the questioned presidential
decrees. In other words, in terms of time horizons, an
appropriation may be made impliedly (as by past but subsisting
legislations) as well as expressly for the current fiscal year (as by
enactment of laws by the present Congress), just as said
appropriation may be made in general as well as in specific
terms. The Congressional authorization may be embodied in
annual laws, such as a general appropriations act or in special
provisions of laws of general or special application which
appropriate public funds for specific public purposes, such as the
questioned decrees. An appropriation measure is sufficient if the
legislative intention clearly and certainly appears from the
language employed (In re Continuing Appropriations, 32 P. 272),
whether in the past or in the present. (Emphases and
underscoring supplied)
Likewise, as ruled by the US Supreme Court in State of Nevada
v. La Grave: 242
To constitute an appropriation there must be money placed in a
fund applicable to the designated purpose. The word appropriate
means to allot, assign, set apart or apply to a particular use or
purpose. An appropriation in the sense of the constitution means
the setting apart a portion of the public funds for a public purpose.
No particular form of words is necessary for the purpose, if the
intention to appropriate is plainly manifested. (Emphases
supplied)
Thus, based on the foregoing, the Court cannot sustain the
argument that the appropriation must be the "primary and
specific" purpose of the law in order for a valid appropriation law
to exist. To reiterate, if a legal provision designates a determinate
or determinable amount of money and allocates the same for a
particular public purpose, then the legislative intent to appropriate
becomes apparent and, hence, already sufficient to satisfy the
requirement of an "appropriation made by law" under
contemplation of the Constitution.
Section 8 of PD 910 pertinently provides:
Section 8. Appropriations. x x x
All fees, revenues and receipts of the Board from any and all
sources including receipts from service contracts and agreements
such as application and processing fees, signature bonus,
discovery bonus, production bonus; all money collected from
concessionaires, representing unspent work obligations, fines
and penalties under the Petroleum Act of 1949; as well as the
government share representing royalties, rentals, production
share on service contracts and similar payments on the
exploration, development and exploitation of energy resources,
shall form part of a Special Fund to be used to finance energy
resource development and exploitation programs and projects of
the government and for such other purposes as may be hereafter
directed by the President. (Emphases supplied)
Whereas Section 12 of PD 1869, as amended by PD 1993,
reads:
Sec. 12. Special Condition of Franchise. — After deducting five
(5%) percent as Franchise Tax, the Fifty (50%) percent share of
the Government in the aggregate gross earnings of the
Corporation from this Franchise, or 60% if the aggregate gross
earnings be less than ₱150,000,000.00 shall be set aside and
shall accrue to the General Fund to finance the priority
infrastructure development projects and to finance the restoration
of damaged or destroyed facilities due to calamities, as may be
directed and authorized by the Office of the President of the
Philippines. (Emphases supplied)
Analyzing the legal text vis-à-vis the above-mentioned principles,
it may then be concluded that (a) Section 8 of PD 910, which
creates a Special Fund comprised of "all fees, revenues, and
receipts of the Energy Development Board from any and all
sources" (a determinable amount) "to be used to finance energy
resource development and exploitation programs and projects of
the government and for such other purposes as may be hereafter
directed by the President" (a specified public purpose), and (b)
Section 12 of PD 1869, as amended by PD 1993, which similarly
sets aside, "after deducting five (5%) percent as Franchise Tax,
the Fifty (50%) percent share of the Government in the aggregate
gross earnings of PAGCOR, or 60%, if the aggregate gross
earnings be less than ₱150,000,000.00" (also a determinable
amount) "to finance the priority infrastructure development
projects and x x x the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by
the Office of the President of the Philippines" (also a specified
public purpose), are legal appropriations under Section 29(1),
Article VI of the 1987 Constitution.
In this relation, it is apropos to note that the 2013 PDAF Article
cannot be properly deemed as a legal appropriation under the
said constitutional provision precisely because, as earlier stated,
it contains post-enactment measures which effectively create a
system of intermediate appropriations. These intermediate
appropriations are the actual appropriations meant for
enforcement and since they are made by individual legislators
after the GAA is passed, they occur outside the law. As such, the
Court observes that the real appropriation made under the 2013
PDAF Article is not the ₱24.79 Billion allocated for the entire
PDAF, but rather the post-enactment determinations made by the
individual legislators which are, to repeat, occurrences outside of
the law. Irrefragably, the 2013 PDAF Article does not constitute
an "appropriation made by law" since it, in its truest sense, only
authorizes individual legislators to appropriate in violation of the
non-delegability principle as afore-discussed.
2. Undue Delegation.
On a related matter, petitioners contend that Section 8 of PD 910
constitutes an undue delegation of legislative power since the
phrase "and for such other purposes as may be hereafter directed
by the President" gives the President "unbridled discretion to
determine for what purpose the funds will be
used."  Respondents, on the other hand, urged the Court to
243
apply the principle of ejusdem generis to the same section and
thus, construe the phrase "and for such other purposes as may
be hereafter directed by the President" to refer only to other
purposes related "to energy resource development and
exploitation programs and projects of the government." 244
The Court agrees with petitioners‘ submissions.
While the designation of a determinate or determinable amount
for a particular public purpose is sufficient for a legal
appropriation to exist, the appropriation law must contain
adequate legislative guidelines if the same law delegates rule-
making authority to the Executive  either for the purpose of (a)
245
filling up the details of the law for its enforcement, known as
supplementary rule-making, or (b) ascertaining facts to bring the
law into actual operation, referred to as contingent rule-
making.  There are two (2) fundamental tests to ensure that the
246
legislative guidelines for delegated rule-making are indeed
adequate. The first test is called the "completeness test." Case
law states that a law is complete when it sets forth therein the
policy to be executed, carried out, or implemented by the
delegate. On the other hand, the second test is called the
"sufficient standard test." Jurisprudence holds that a law lays
down a sufficient standard when it provides adequate guidelines
or limitations in the law to map out the boundaries of the
delegate‘s authority and prevent the delegation from running
riot.  To be sufficient, the standard must specify the limits of the
247
delegate‘s authority, announce the legislative policy, and identify
the conditions under which it is to be implemented. 248
In view of the foregoing, the Court agrees with petitioners that the
phrase "and for such other purposes as may be hereafter directed
by the President" under Section 8 of PD 910 constitutes an undue
delegation of legislative power insofar as it does not lay down a
sufficient standard to adequately determine the limits of the
President‘s authority with respect to the purpose for which the
Malampaya Funds may be used. As it reads, the said phrase
gives the President wide latitude to use the Malampaya Funds for
any other purpose he may direct and, in effect, allows him to
unilaterally appropriate public funds beyond the purview of the
law. That the subject phrase may be confined only to "energy
resource development and exploitation programs and projects of
the government" under the principle of ejusdem generis, meaning
that the general word or phrase is to be construed to include – or
be restricted to – things akin to, resembling, or of the same kind
or class as those specifically mentioned,  is belied by three (3)
249
reasons: first, the phrase "energy resource development and
exploitation programs and projects of the government" states a
singular and general class and hence, cannot be treated as a
statutory reference of specific things from which the general
phrase "for such other purposes" may be limited; second, the said
phrase also exhausts the class it represents, namely energy
development programs of the government;  and, third, the
250
Executive department has, in fact, used the Malampaya Funds for
non-energy related purposes under the subject phrase, thereby
contradicting respondents‘ own position that it is limited only to
"energy resource development and exploitation programs and
projects of the government."  Thus, while Section 8 of PD 910
251
may have passed the completeness test since the policy of
energy development is clearly deducible from its text, the phrase
"and for such other purposes as may be hereafter directed by the
President" under the same provision of law should nonetheless
be stricken down as unconstitutional as it lies independently
unfettered by any sufficient standard of the delegating law. This
notwithstanding, it must be underscored that the rest of Section 8,
insofar as it allows for the use of the Malampaya Funds "to
finance energy resource development and exploitation programs
and projects of the government," remains legally effective and
subsisting. Truth be told, the declared unconstitutionality of the
aforementioned phrase is but an assurance that the Malampaya
Funds would be used – as it should be used – only in accordance
with the avowed purpose and intention of PD 910.
As for the Presidential Social Fund, the Court takes judicial notice
of the fact that Section 12 of PD 1869 has already been amended
by PD 1993 which thus moots the parties‘ submissions on the
same.  Nevertheless, since the amendatory provision may be
252
readily examined under the current parameters of discussion, the
Court proceeds to resolve its constitutionality.
Primarily, Section 12 of PD 1869, as amended by PD 1993,
indicates that the Presidential Social Fund may be used "to first,
finance the priority infrastructure development projects and
second, to finance the restoration of damaged or destroyed
facilities due to calamities, as may be directed and authorized by
the Office of the President of the Philippines." The Court finds that
while the second indicated purpose adequately curtails the
authority of the President to spend the Presidential Social Fund
only for restoration purposes which arise from calamities, the first
indicated purpose, however, gives him carte blanche authority to
use the same fund for any infrastructure project he may so
determine as a "priority". Verily, the law does not supply a
definition of "priority in frastructure development projects" and
hence, leaves the President without any guideline to construe the
same. To note, the delimitation of a project as one of
"infrastructure" is too broad of a classification since the said term
could pertain to any kind of facility. This may be deduced from its
lexicographic definition as follows: "the underlying framework of a
system, especially public services and facilities (such as
highways, schools, bridges, sewers, and water-systems) needed
to support commerce as well as economic and residential
development."  In fine, the phrase "to finance the priority
253
infrastructure development projects" must be stricken down as
unconstitutional since – similar to the above-assailed provision
under Section 8 of PD 910 – it lies independently unfettered by
any sufficient standard of the delegating law. As they are
severable, all other provisions of Section 12 of PD 1869, as
amended by PD 1993, remains legally effective and subsisting.
D. Ancillary Prayers. 1.
Petitioners’ Prayer to be Furnished Lists and Detailed Reports.
Aside from seeking the Court to declare the Pork Barrel System
unconstitutional – as the Court did so in the context of its
pronouncements made in this Decision – petitioners equally pray
that the Executive Secretary and/or the DBM be ordered to
release to the CoA and to the public: (a) "the complete
schedule/list of legislators who have availed of their PDAF and
VILP from the years 2003 to 2013, specifying the use of the
funds, the project or activity and the recipient entities or
individuals, and all pertinent data thereto" (PDAF Use
Schedule/List);  and (b) "the use of the Executive‘s lump-sum,
254
discretionary funds, including the proceeds from the x x x
Malampaya Funds and remittances from the PAGCOR x x x from
2003 to 2013, specifying the x x x project or activity and the
recipient entities or individuals, and all pertinent data
thereto"  (Presidential Pork Use Report). Petitioners‘ prayer is
255
grounded on Section 28, Article II and Section 7, Article III of the
1987 Constitution which read as follows:
ARTICLE II
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.
ARTICLE III 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.
The Court denies petitioners‘ submission.
Case law instructs that the proper remedy to invoke the right to
information is to file a petition for mandamus. As explained in the
case of Legaspi v. Civil Service Commission: 256
While the manner of examining public records may be subject to
reasonable regulation by the government agency in custody
thereof, the duty to disclose the information of public concern,
and to afford access to public records cannot be discretionary on
the part of said agencies. Certainly, its performance cannot be
made contingent upon the discretion of such agencies.
Otherwise, the enjoyment of the constitutional right may be
rendered nugatory by any whimsical exercise of agency
discretion. The constitutional duty, not being discretionary, its
performance may be compelled by a writ of mandamus in a
proper case.
But what is a proper case for Mandamus to issue? In the case
before Us, the public right to be enforced and the concomitant
duty of the State are unequivocably set forth in the Constitution.
The decisive question on the propriety of the issuance of the writ
of mandamus in this case is, whether the information sought by
the petitioner is within the ambit of the constitutional guarantee.
(Emphases supplied)
Corollarily, in the case of Valmonte v. Belmonte Jr.  (Valmonte),
257
it has been clarified that the right to information does not include
the right to compel the preparation of "lists, abstracts, summaries
and the like." In the same case, it was stressed that it is essential
that the "applicant has a well -defined, clear and certain legal right
to the thing demanded and that it is the imperative duty of
defendant to perform the act required." Hence, without the
foregoing substantiations, the Court cannot grant a particular
request for information. The pertinent portions of Valmonte are
hereunder quoted: 258
Although citizens are afforded the right to information and,
pursuant thereto, are entitled to "access to official records," the
Constitution does not accord them a right to compel custodians of
official records to prepare lists, abstracts, summaries and the like
in their desire to acquire information on matters of public concern.
It must be stressed that it is essential for a writ of mandamus to
issue that the applicant has a well-defined, clear and certain legal
right to the thing demanded and that it is the imperative duty of
defendant to perform the act required. The corresponding duty of
the respondent to perform the required act must be clear and
specific Lemi v. Valencia, G.R. No. L-20768, November
29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344,
August 27, 1976, 72 SCRA 443.
The request of the petitioners fails to meet this standard, there
being no duty on the part of respondent to prepare the list
requested. (Emphases supplied)
In these cases, aside from the fact that none of the petitions are
in the nature of mandamus actions, the Court finds that
petitioners have failed to establish a "a well-defined, clear and
certain legal right" to be furnished by the Executive Secretary
and/or the DBM of their requested PDAF Use Schedule/List and
Presidential Pork Use Report. Neither did petitioners assert any
law or administrative issuance which would form the bases of the
latter‘s duty to furnish them with the documents requested. While
petitioners pray that said information be equally released to the
CoA, it must be pointed out that the CoA has not been impleaded
as a party to these cases nor has it filed any petition before the
Court to be allowed access to or to compel the release of any
official document relevant to the conduct of its audit
investigations. While the Court recognizes that the information
requested is a matter of significant public concern, however, if
only to ensure that the parameters of disclosure are properly
foisted and so as not to unduly hamper the equally important
interests of the government, it is constrained to deny petitioners‘
prayer on this score, without prejudice to a proper mandamus
case which they, or even the CoA, may choose to pursue through
a separate petition.
It bears clarification that the Court‘s denial herein should only
cover petitioners‘ plea to be furnished with such schedule/list and
report and not in any way deny them, or the general public,
access to official documents which are already existing and of
public record. Subject to reasonable regulation and absent any
valid statutory prohibition, access to these documents should not
be proscribed. Thus, in Valmonte, while the Court denied the
application for mandamus towards the preparation of the list
requested by petitioners therein, it nonetheless allowed access to
the documents sought for by the latter, subject, however, to the
custodian‘s reasonable regulations,viz.:259
In fine, petitioners are entitled to access to the documents
evidencing loans granted by the GSIS, subject to reasonable
regulations that the latter may promulgate relating to the manner
and hours of examination, to the end that damage to or loss of
the records may be avoided, that undue interference with the
duties of the custodian of the records may be prevented and that
the right of other persons entitled to inspect the records may be
insured Legaspi v. Civil Service Commission, supra at p. 538,
quoting Subido v. Ozaeta, 80 Phil. 383, 387. The petition, as to
the second and third alternative acts sought to be done by
petitioners, is meritorious.
However, the same cannot be said with regard to the first act
sought by petitioners, i.e.,
"to furnish petitioners the list of the names of the Batasang
Pambansa members belonging to the UNIDO and PDP-Laban
who were able to secure clean loans immediately before the
February 7 election thru the intercession/marginal note of the
then First Lady Imelda Marcos."
The Court, therefore, applies the same treatment here.
2. Petitioners’ Prayer to Include Matters in Congressional
Deliberations.
Petitioners further seek that the Court "order the inclusion in
budgetary deliberations with the Congress of all presently, off-
budget, lump sum, discretionary funds including but not limited to,
proceeds from the x x x Malampaya Fund, remittances from the
PAGCOR and the PCSO or the Executive‘s Social Funds." 260
Suffice it to state that the above-stated relief sought by petitioners
covers a matter which is generally left to the prerogative of the
political branches of government. Hence, lest the Court itself
overreach, it must equally deny their prayer on this score.
3. Respondents’ Prayer to Lift TRO; Consequential Effects of
Decision.
The final issue to be resolved stems from the interpretation
accorded by the DBM to the concept of released funds. In
response to the Court‘s September 10, 2013 TRO that enjoined
the release of the remaining PDAF allocated for the year 2013,
the DBM issued Circular Letter No. 2013-8 dated September 27,
2013 (DBM Circular 2013-8) which pertinently reads as follows:
3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA,
where a Special Allotment Release Order (SARO) has been
issued by the DBM and such SARO has been obligated by the
implementing agencies prior to the issuance of the TRO, may
continually be implemented and disbursements thereto effected
by the agencies concerned.
Based on the text of the foregoing, the DBM authorized the
continued implementation and disbursement of PDAF funds as
long as they are: first, covered by a SARO; and, second, that said
SARO had been obligated by the implementing agency
concerned prior to the issuance of the Court‘s September 10,
2013 TRO.
Petitioners take issue with the foregoing circular, arguing that "the
issuance of the SARO does not yet involve the release of funds
under the PDAF, as release is only triggered by the issuance of a
Notice of Cash Allocation [(NCA)]."  As such, PDAF
261
disbursements, even if covered by an obligated SARO, should
remain enjoined.
For their part, respondents espouse that the subject TRO only
covers "unreleased and unobligated allotments." They explain
that once a SARO has been issued and obligated by the
implementing agency concerned, the PDAF funds covered by the
same are already "beyond the reach of the TRO because they
cannot be considered as ‘remaining PDAF.‘" They conclude that
this is a reasonable interpretation of the TRO by the DBM. 262
The Court agrees with petitioners in part.
At the outset, it must be observed that the issue of whether or not
the Court‘s September 10, 2013 TRO should be lifted is a matter
rendered moot by the present Decision. The unconstitutionality of
the 2013 PDAF Article as declared herein has the consequential
effect of converting the temporary injunction into a permanent
one. Hence, from the promulgation of this Decision, the release of
the remaining PDAF funds for 2013, among others, is now
permanently enjoined.
The propriety of the DBM‘s interpretation of the concept of
"release" must, nevertheless, be resolved as it has a practical
impact on the execution of the current Decision. In particular, the
Court must resolve the issue of whether or not PDAF funds
covered by obligated SAROs, at the time this Decision is
promulgated, may still be disbursed following the DBM‘s
interpretation in DBM Circular 2013-8.
On this score, the Court agrees with petitioners‘ posturing for the
fundamental reason that funds covered by an obligated SARO
are yet to be "released" under legal contemplation. A SARO, as
defined by the DBM itself in its website, is "aspecific authority
issued to identified agencies to incur obligations not exceeding a
given amount during a specified period for the purpose indicated.
It shall cover expenditures the release of which is subject to
compliance with specific laws or regulations, or is subject to
separate approval or clearance by competent authority." 263
Based on this definition, it may be gleaned that a SARO only
evinces the existence of an obligation and not the directive to
pay. Practically speaking, the SARO does not have the direct and
immediate effect of placing public funds beyond the control of the
disbursing authority. In fact, a SARO may even be withdrawn
under certain circumstances which will prevent the actual release
of funds. On the other hand, the actual release of funds is brought
about by the issuance of the NCA,  which is subsequent to the
264
issuance of a SARO. As may be determined from the statements
of the DBM representative during the Oral Arguments: 265
Justice Bernabe: Is the notice of allocation issued simultaneously
with the SARO?
xxxx
Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go
signal for the agencies to obligate or to enter into commitments.
The NCA, Your Honor, is already the go signal to the treasury for
us to be able to pay or to liquidate the amounts obligated in the
SARO; so it comes after. x x x The NCA, Your Honor, is the go
signal for the MDS for the authorized government-disbursing
banks to, therefore, pay the payees depending on the projects or
projects covered by the SARO and the NCA.
Justice Bernabe: Are there instances that SAROs are cancelled
or revoked?
Atty. Ruiz: Your Honor, I would like to instead submit that there
are instances that the SAROs issued are withdrawn by the DBM.
Justice Bernabe: They are withdrawn?
Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring
supplied)
Thus, unless an NCA has been issued, public funds should not
be treated as funds which have been "released." In this respect,
therefore, the disbursement of 2013 PDAF funds which are only
covered by obligated SAROs, and without any corresponding
NCAs issued, must, at the time of this Decision’s promulgation,
be enjoined and consequently reverted to the unappropriated
surplus of the general fund. Verily, in view of the declared
unconstitutionality of the 2013 PDAF Article, the funds
appropriated pursuant thereto cannot be disbursed even though
already obligated, else the Court sanctions the dealing of funds
coming from an unconstitutional source.
This same pronouncement must be equally applied to (a) the
Malampaya Funds which have been obligated but not released –
meaning, those merely covered by a SARO – under the phrase
"and for such other purposes as may be hereafter directed by the
President" pursuant to Section 8 of PD 910; and (b) funds
sourced from the Presidential Social Fund under the phrase "to
finance the priority infrastructure development projects" pursuant
to Section 12 of PD 1869, as amended by PD 1993, which were
altogether declared by the Court as unconstitutional. However,
these funds should not be reverted to the general fund as afore-
stated but instead, respectively remain under the Malampaya
Funds and the Presidential Social Fund to be utilized for their
corresponding special purposes not otherwise declared as
unconstitutional.
E. Consequential Effects of Decision.
As a final point, it must be stressed that the Court‘s
pronouncement anent the unconstitutionality of (a) the 2013
PDAF Article and its Special Provisions, (b) all other
Congressional Pork Barrel provisions similar thereto, and (c) the
phrases (1) "and for such other purposes as may be hereafter
directed by the President" under Section 8 of PD 910, and (2) "to
finance the priority infrastructure development projects" under
Section 12 of PD 1869, as amended by PD 1993, must only be
treated as prospective in effect in view of the operative fact
doctrine.
To explain, the operative fact doctrine exhorts the recognition that
until the judiciary, in an appropriate case, declares the invalidity of
a certain legislative or executive act, such act is presumed
constitutional and thus, entitled to obedience and respect and
should be properly enforced and complied with. As explained in
the recent case of Commissioner of Internal Revenue v. San
Roque Power Corporation,  the doctrine merely "reflects
266
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
267
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.‘" 268
For these reasons, this Decision should be heretofore applied
prospectively.
Conclusion
The Court renders this Decision to rectify an error which has
persisted in the chronicles of our history. In the final analysis, the
Court must strike down the Pork Barrel System as
unconstitutional in view of the inherent defects in the rules within
which it operates. To recount, insofar as it has allowed legislators
to wield, in varying gradations, non-oversight, post-enactment
authority in vital areas of budget execution, the system has
violated the principle of separation of powers; insofar as it has
conferred unto legislators the power of appropriation by giving
them personal, discretionary funds from which they are able to
fund specific projects which they themselves determine, it has
similarly violated the principle of non-delegability of legislative
power ; insofar as it has created a system of budgeting wherein
items are not textualized into the appropriations bill, it has flouted
the prescribed procedure of presentment and, in the process,
denied the President the power to veto items ; insofar as it has
diluted the effectiveness of congressional oversight by giving
legislators a stake in the affairs of budget execution, an aspect of
governance which they may be called to monitor and scrutinize,
the system has equally impaired public accountability ; insofar as
it has authorized legislators, who are national officers, to
intervene in affairs of purely local nature, despite the existence of
capable local institutions, it has likewise subverted genuine local
autonomy ; and again, insofar as it has conferred to the President
the power to appropriate funds intended by law for energy-related
purposes only to other purposes he may deem fit as well as other
public funds under the broad classification of "priority
infrastructure development projects," it has once more
transgressed the principle of non-delegability.
For as long as this nation adheres to the rule of law, any of the
multifarious unconstitutional methods and mechanisms the Court
has herein pointed out should never again be adopted in any
system of governance, by any name or form, by any semblance
or similarity, by any influence or effect. Disconcerting as it is to
think that a system so constitutionally unsound has monumentally
endured, the Court urges the people and its co-stewards in
government to look forward with the optimism of change and the
awareness of the past. At a time of great civic unrest and
vociferous public debate, the Court fervently hopes that its
Decision today, while it may not purge all the wrongs of society
nor bring back what has been lost, guides this nation to the path
forged by the Constitution so that no one may heretofore detract
from its cause nor stray from its course. After all, this is the
Court‘s bounden duty and no other‘s.
WHEREFORE, the petitions are PARTLY GRANTED. In view of
the constitutional violations discussed in this Decision, the Court
hereby declares as UNCONSTITUTIONAL: (a) the entire 2013
PDAF Article; (b) all legal provisions of past and present
Congressional Pork Barrel Laws, such as the previous PDAF and
CDF Articles and the various Congressional Insertions, which
authorize/d legislators – whether individually or collectively
organized into committees – to intervene, assume or participate
in any of the various post-enactment stages of the budget
execution, such as but not limited to the areas of project
identification, modification and revision of project identification,
fund release and/or fund realignment, unrelated to the power of
congressional oversight; (c) all legal provisions of past and
present Congressional Pork Barrel Laws, such as the previous
PDAF and CDF Articles and the various Congressional
Insertions, which confer/red personal, lump-sum allocations to
legislators from which they are able to fund specific projects
which they themselves determine; (d) all informal practices of
similar import and effect, which the Court similarly deems to be
acts of grave abuse of discretion amounting to lack or excess of
jurisdiction; and (e) the phrases (1) "and for such other purposes
as may be hereafter directed by the President" under Section 8 of
Presidential Decree No. 910 and (2) "to finance the priority
infrastructure development projects" under Section 12 of
Presidential Decree No. 1869, as amended by Presidential
Decree No. 1993, for both failing the sufficient standard test in
violation of the principle of non-delegability of legislative power.
Accordingly, the Court‘s temporary injunction dated September
10, 2013 is hereby declared to be PERMANENT. Thus, the
disbursement/release of the remaining PDAF funds allocated for
the year 2013, as well as for all previous years, and the funds
sourced from (1) the Malampaya Funds under the phrase "and for
such other purposes as may be hereafter directed by the
President" pursuant to Section 8 of Presidential Decree No. 910,
and (2) the Presidential Social Fund under the phrase "to finance
the priority infrastructure development projects" pursuant to
Section 12 of Presidential Decree No. 1869, as amended by
Presidential Decree No. 1993, which are, at the time this Decision SO ORDERED.
is promulgated, not covered by Notice of Cash Allocations
(NCAs) but only by Special Allotment Release Orders (SAROs), ESTELA M. PERLAS-BERNABE
whether obligated or not, are hereby ENJOINED. The remaining Associate Justice
PDAF funds covered by this permanent injunction shall not be
disbursed/released but instead reverted to the unappropriated
surplus of the general fund, while the funds under the Malampaya
Funds and the Presidential Social Fund shall remain therein to be
utilized for their respective special purposes not otherwise
declared as unconstitutional.

On the other hand, due to improper recourse and lack of proper

substantiation, the Court hereby DENIES petitioners‘ prayer
seeking that the Executive Secretary and/or the Department of
Budget and Management be ordered to provide the public and
the Commission on Audit complete lists/schedules or detailed
reports related to the availments and utilization of the funds
subject of these cases. Petitioners‘ access to official documents
already available and of public record which are related to these
funds must, however, not be prohibited but merely subjected to
the custodian‘s reasonable regulations or any valid statutory
prohibition on the same. This denial is without prejudice to a
proper mandamus case which they or the Commission on Audit
may choose to pursue through a separate petition.

The Court also DENIES petitioners prayer to order the inclusion

of the funds subject of these cases in the budgetary deliberations
of Congress as the same is a matter left to the prerogative of the
political branches of government.

Finally, the Court hereby DIRECTS all prosecutorial organs of the

government to, within the bounds of reasonable dispatch,
investigate and accordingly prosecute all government officials
and/or private individuals for possible criminal offenses related to
the irregular, improper and/or unlawful disbursement/utilization of
all funds under the Pork Barrel System.

This Decision is immediately executory but prospective in effect.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 200242               July 17, 2012
CHIEF JUSTICE RENATO C. CORONA, Petitioner,  complaint charging him with culpable violation of the Constitution,
vs.
SENATE OF THE PHILIPPINES sitting as an IMPEACHMENT
COURT, BANK OF THE PHILIPPINE ISLANDS, PHILIPPINE
SAVINGS BANK, ARLENE "KAKA" BAG-AO, GIORGIDI
AGGABAO, MARILYN PRIMICIAS-AGABAS, NIEL TUPAS,
RODOLFO FARINAS, SHERWIN TUGNA, RAUL DAZA,
ELPIDIO BARZAGA, REYNALDO UMALI, NERI
COLMENARES (ALSO KNOWN AS THE PROSECUTORS
FROM THE HOUSE OF REPRESENTATIVES), Respondents.
RESOLUTION
VILLARAMA, JR., J.:
Before this Court is a petition for certiorari and prohibition with
prayer for immediate issuance of temporary restraining order
(TRO) and writ of preliminary injunction filed by the former Chief
Justice of this Court, Renato C. Corona, assailing the
impeachment case initiated by the respondent Members of the
House of Representatives (HOR) and trial being conducted by
respondent Senate of the Philippines.
On December 12, 2011, a caucus was held by the majority bloc
of the HOR during which a verified complaint for impeachment
against petitioner was submitted by the leadership of the
Committee on Justice. After a brief presentation, on the same
day, the complaint was voted in session and 188 Members
signed and endorsed it, way above the one-third vote required by
the Constitution.
On December 13, 2011, the complaint was transmitted to the
Senate which convened as an impeachment court the following
day, December 14, 2011.
On December 15, 2011, petitioner received a copy of the
betrayal of public trust and graft and corruption, allegedly
committed as follows:
ARTICLE I
RESPONDENT BETRAYED THE PUBLIC TRUST THROUGH
HIS TRACK RECORD MARKED BY PARTIALITY AND
SUBSERVIENCE IN CASES INVOLVING THE ARROYO
ADMINISTRATION FROM THE TIME OF HIS APPOINTMENT
AS SUPREME COURT JUSTICE AND UNTIL HIS DUBIOUS
APPOINTMENT AS A MIDNIGHT CHIEF JUSTICE TO THE
PRESENT.
ARTICLE II
RESPONDENT COMMITTED CULPABLE VIOLATION OF THE
CONSTITUTION AND/OR BETRAYED THE PUBLIC TRUST
WHEN HE FAILED TO DISCLOSE TO THE PUBLIC HIS
STATEMENT OFASSETS, LIABILITIES AND NET WORTH AS
REQUIRED UNDER SEC. 17, ART. XI OF THE 1987
CONSTITUTION.
2.1. It is provided for in Art. XI, Section 17 of the
1987 Constitution that "a public officer or
employee shall, upon assumption of office and as
often thereafter as may be required by law, submit
a declaration under oath of his assets, liabilities,
and net worth. In the case of the President, the
 Vice-President, the Members of the Cabinet, and
other constitutional offices, and officers of the
armed forces with general or flag rank, the
declaration shall be disclosed to the public in the
manner provided by law."
2.2. Respondent failed to disclose to the public his
statement of assets, liabilities, and net worth as
required by the Constitution.
2.3. It is also reported that some of the properties
of Respondent are not included in his declaration
of his assets, liabilities, and net worth, in violation
of the anti-graft and corrupt practices act.
2.4. Respondent is likewise suspected and
accused of having accumulated ill-gotten wealth,
acquiring assets of high values and keeping bank
accounts with huge deposits. It has been reported
that Respondent has, among others, a 300-sq.
meter apartment in a posh
Mega World Property development at the Fort in Taguig. Has he
reported this, as he is constitutionally-required under Art. XI, Sec.
17 of the Constitution in his Statement of Assets and Liabilities
and Net Worth (SALN)? Is this acquisition sustained and duly
supported by his income as a public official? Since his
assumption as Associate and subsequently, Chief Justice, has he
complied with this duty of public disclosure?
ARTICLE III
RESPONDENT COMMITTED CULPABLE VIOLATIONS OF THE
CONSTITUTION AND/OR BETRAYED THE PUBLIC TRUST BY
FAILING TO MEET AND OBSERVE THE STRINGENT
STANDARDS UNDER ART. VIII, SECTION 7 (3) OF THE
CONSTITUTION THAT PROVIDES THAT "[A] MEMBER OF
THE JUDICIARY MUST BE A PERSON OF PROVEN
COMPETENCE, INTEGRITY, PROBITY, AND INDEPENDENCE"
IN ALLOWING THE SUPREME COURT TO ACT ON MERE
LETTERS FILED BY A COUNSEL WHICH CAUSED THE
ISSUANCE OF FLIP-FLOPPING DECISIONS IN FINAL AND
EXECUTORY CASES; IN CREATING AN EXCESSIVE
ENTANGLEMENT WITH MRS. ARROYO THROUGH HER
APPOINTMENT OF HIS WIFE TO OFFICE; AND IN
DISCUSSING WITH LITIGANTS REGARDING CASES
PENDING BEFORE THE SUPREME COURT.
ARTICLE IV
RESPONDENT BETRAYED THE PUBLIC TRUST AND/OR
COMMITTED CULPABLE VIOLATION OF THE CONSTITUTION
WHEN HE BLATANTLY DISREGARDED THE PRINCIPLE OF
SEPARATION OF POWERS BY ISSUING A "STATUS QUO
ANTE" ORDER AGAINST THE HOUSE OF
REPRESENTATIVES IN THE CASE CONCERNING THE
IMPEACHMENT OF THEN OMBUDSMAN MERCEDITAS
NAVARRO-GUTIERREZ.
ARTICLE V
RESPONDENT BETRAYED THE PUBLIC TRUST THROUGH
WANTON ARBITRARINESS AND PARTIALITY IN
CONSISTENTLY DISREGARDING THE PRINCIPLE OF RES
JUDICATA IN THE CASES INVOLVING THE 16 NEWLY-
CREATED CITIES, AND THE PROMOTION OF DINAGAT
ISLAND INTO A PROVINCE.
ARTICLE VI
RESPONDENT BETRAYED THE PUBLIC TRUST BY
ARROGATING UNTO HIMSELF, AND TO A COMMITTEE HE
CREATED, THE AUTHORITY AND JURISDICTION TO
IMPROPERLY INVESTIGATE A JUSTICE OF THE SUPREME
COURT FOR THE PURPOSE OF EXCULPATING HIM. SUCH
AUTHORITY AND JURISDICTION IS PROPERLY REPOSED BY
THE CONSTITUTION IN THE HOUSE OF REPRESENTATIVES
VIA IMPEACHMENT.
ARTICLE VII
RESPONDENT BETRAYED THE PUBLIC TRUST THROUGH
HIS PARTIALITY IN GRANTING A TEMPORARY RESTRAINING
ORDER (TRO) IN FAVOR OF FORMER PRESIDENT GLORIA
MACAPAGAL-ARROYO AND HER HUSBAND JOSE MIGUEL
ARROYO IN ORDER TO GIVE THEM AN OPPORTUNITY TO
ESCAPE PROSECUTION AND TO FRUSTRATE THE ENDS OF
JUSTICE, AND IN DISTORTING THE SUPREME COURT
DECISION ON THE EFFECTIVITY OF THE TRO IN VIEW OF A
CLEAR FAILURE TO COMPLY WITH THE CONDITIONS OF
THE SUPREME COURT’S OWN TRO. ARTICLE VIII
RESPONDENT BETRAYED THE PUBLIC TRUST AND/OR
COMMITTED GRAFT AND CORRUPTION WHEN HE FAILED
AND REFUSEDTO ACCOUNT FOR THE JUDICIARY
DEVELOPMENT FUND (JDF) AND SPECIAL ALLOWANCE
FOR THE JUDICIARY (SAJ) COLLECTIONS. 1  Senate Rules of Procedure on Impeachment Trials they are not
On December 26, 2011, petitioner filed his Answer assailing the
2  merits of a pending impeachment case. By this time, five petitions
"blitzkrieg" fashion by which the impeachment complaint was
signed by the Members of the HOR and immediately transmitted
to the Senate. Citing previous instances when President Aquino
openly expressed his rejection of petitioner’s appointment as
Chief Justice and publicly attacked this Court under the
leadership of petitioner for "derailing his administration’s
mandate," petitioner concluded that the move to impeach him
was the handiwork of President Aquino’s party mates and
supporters, including"hidden forces" who will be benefited by his
ouster. As to the charges against him, petitioner denied the same
but admitted having once served the Offices of the President and
Vice-President during the term of former President Gloria
Macapagal-Arroyo and granted the request for courtesy call only
to Mr. Dante Jimenez of the Volunteers Against Crime and
Corruption (VACC) while Mr. Lauro Vizconde appeared with Mr.
Jimenez without prior permission or invitation. Petitioner argued
at length that the acts, misdeeds or offenses imputed to him were
either false or baseless, and otherwise not illegal nor improper.
He prayed for the outright dismissal of the complaint for failing to
meet the requirements of the Constitution or that the
Impeachment Court enter a judgment of acquittal for all the
articles of impeachment.
Meanwhile, the prosecution panel composed of respondent
Representatives held a press conference revealing evidence
which supposedly support their accusations against petitioner.
The following day, newspapers carried front page reports of high-
priced condominium units and other real properties in Fort
Bonifacio, Taguig and Quezon City allegedly owned by petitioner,
as disclosed by prosecutors led by respondent Rep. Niel C.
Tupas, Jr. The prosecution told the media that it is possible that
these properties were not included by petitioner in his Statement
of Assets, Liabilities and Net Worth (SALN) which had not been
made available to the public. Reacting to this media campaign,
Senators scolded the prosecutors reminding them that under the
3 
allowed to make any public disclosure or comment regarding the
4 
have already been filed with this Court by different individuals
seeking to enjoin the impeachment trial on grounds of improperly
verified complaint and lack of due process.
On January 16, 2012, respondent Senate of the Philippines
acting as an Impeachment Court, commenced trial proceedings
against the petitioner.Petitioner’s motion for a preliminary hearing
was denied. On January 18, 2012, Atty. Enriqueta E. Vidal, Clerk
of Court of this Court, in compliance with a subpoena issued by
the Impeachment Court, took the witness stand and submitted the
SALNs of petitioner for the years 2002 to 2010. Other prosecution
witnesses also testified regarding petitioner’s SALNs for the
previous years (Marianito Dimaandal, Records Custodian of
Malacañang Palace, Atty. Randy A. Rutaquio, Register of Deeds
of Taguig and Atty. Carlo V. Alcantara, Acting Register of Deeds
of Quezon City).
In compliance with the directive of the Impeachment Court, the
prosecution and defense submitted their respective memoranda
on the question of whether the prosecution may present evidence
to prove the allegations in paragraphs 2.3 (failure to report some
properties in SALN) and 2.4 (acquisition of ill-gotten wealth and
failure to disclose in SALN such bank accounts with huge
deposits and 300-sq.m. Megaworld property at the Fort in Taguig)
under Article II (par. 2.2. refers to petitioner’s alleged failure to
disclose to the public his SALN as required by the Constitution).
On January 27, 2012, the Impeachment Court issued a
Resolution which states:
5  the name of Renato C. Corona and the bank statements
IN SUM, THEREFORE, this Court resolves and accordingly rules:
1. To allow the Prosecution to introduce evidence in support of
Paragraphs 2.2 and 2.3 of Article II of the Articles of
Impeachment;
2. To disallow the introduction of evidence in support of Par. 2.4
of the Articles of Impeachment, with respect to which, this Court
shall be guided by and shall rely upon the legal presumptions on
the nature of any property or asset which may be proven to
belong to the Respondent Chief Justice as provided under
Section 8 of Republic Act No. 3019 and Section 2 of Republic Act
No. 1379.
SO ORDERED. 6 
In a subsequent Resolution dated February 6, 2012, the
7 
Impeachment Court granted the prosecution’s request for
subpoena directed to the officersof two private banks where
petitioner allegedly deposited millions in peso and dollar
currencies, as follows:
WHEREFORE, IN VIEW OF THE FOREGOING, the majority
votes to grant the Prosecution’s Requests for Subpoenae to the
responsible officers of Philippine Savings Bank (PSBank) and
Bank of the Philippine Island (BPI), for them to testify and bring
and/or produce before the Court documents on the alleged bank
accounts of Chief Justice Corona, only for the purpose of the
instant impeachment proceedings, as follows:
a) The Branch Manager of the Bank of Philippine Islands,
Ayala Avenue Branch, 6th Floor, SGV Building, 6758
Ayala Avenue, Makati City, is commanded to bring before
the Senate at 2:00 p.m. on February 8, 2012, the original
and certified true copies of the account opening
forms/documents for Bank Account no. 1445-8030-61 in
showing the balances of the said account as of December
31, 2005, December 31, 2006, December 31, 2007,
December 31, 2008, December 31, 2009 and December
31, 2010.
b) The Branch Manager (and/or authorized
representative) of Philippine Savings Bank, Katipunan
Branch, Katipunan Avenue, Loyola Heights, Quezon City,
is commanded to bring before the Senate at 2:00 p.m. on
February 8, 2012, the original and certified true copies of
the account opening forms/documents for the following
bank accounts allegedly in the name of Renato C.
Corona, and the documents showing the balances of the
said accounts as of December 31, 2007, December 31,
2008, December 31, 2009 and December 31, 2010:
089-19100037-3
089-13100282-6
089-121017358
 089-121019593
089-121020122
089-121021681
089-141-00712-9
089-141-00746-9
089-14100814-5
089-121-01195-7
SO ORDERED. 8  violates the absolute confidentiality of such accounts under Sec.
On February 8, 2012, PSBank filed a petition for certiorari and
prohibition (G.R. No. 200238) seeking to enjoin the Impeachment
Court and the HOR prosecutors from implementing the aforesaid
subpoena requiring PSBank thru its authorized representative to
testify and to bring the original and certified true copies of the
opening documents for petitioner’salleged foreign currency
accounts, and thereafter to render judgment nullifying the
subpoenas including the bank statements showing the year-end
balances for the said accounts.  of BPI and PSBank from testifying and submitting
On the same day, the present petition was filed arguing that the
Impeachment Court committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it: (1) proceeded
to trial on the basis of the complaint filed by respondent
Representatives which complaint is constitutionally infirm and
defective for lack of probable cause; (2) did not strike out the
charges discussed in Art. II of the complaint which, aside from
being a "hodge-podge" of multiple charges, do not constitute
allegations in law, much less ultimate facts, being all premised on
suspicion and/or hearsay; assuming arguendo that the retention
of Par. 2.3 is correct, the ruling of the Impeachment Court to
retain Par. 2.3 effectively allows the introduction of evidence
under Par. 2.3, as vehicle to prove Par. 2.4 and therefore its
earlier resolution was nothing more than a hollow relief, bringing
no real protection to petitioner; (3) allowed the presentation of
evidence on charges of alleged corruption and unexplained
wealth which violates petitioner’s right to due process because
first, Art. II does not mention "graft and corruption" or unlawfully
acquired wealth as grounds for impeachment, and second, it is
clear under Sec. 2, Art. XI of the Constitution that "graft and
corruption" is a separate and distinct ground from "culpable
violation of the Constitution" and "betrayal of public trust"; and (4)
issued the subpoena for the production of petitioner’s alleged
bank accounts as requested by the prosecution despite the same
being the result of an illegal act ("fruit of the poisonous tree")
considering that those documents submitted by the prosecution
8 of R.A. No. 6426 (Foreign Currency Deposits Act) which is also
penalized under Sec. 10 thereof. Petitioner thus prayed for the
following reliefs: 
(a) Immediately upon filing of this Petition, issue a
temporary restraining order or a writ of preliminary
injunction enjoining: (i) the proceedings before the
Impeachment Court; (ii) implementation ofResolution
dated 6 February 2012; (iii) the officers or representatives
documents on petitioner’s or his family’s bank accounts;
and (iv) the presentation, reception and admission of
evidence on paragraphs 2.3 and 2.4 of the Impeachment
Complaint;
(b) After giving due course to the Petition, render
judgment:
(i) Declaring the Impeachment Complaint null and
void ab initio;
 (ii) Prohibiting the presentation, reception and
admission of evidence on paragraphs 2.3 and 2.4
of the Impeachment Complaint;
(iii) Annulling the Impeachment Court’s Resolution
dated 27 January 2012 and 6 February 2011 [sic],
as well as any Subpoenae issued pursuant
thereto; and
(iv) Making the TRO and/or writ of preliminary
injunction permanent.
Other reliefs, just or equitable, are likewise prayed for. 9 
Petitioner also sought the inhibition of Justices Antonio T. Carpio
and Maria Lourdes P. A. Sereno on the ground of partiality, citing
their publicly known "animosity" towards petitioner aside from the
fact that they have been openly touted as the likely replacements
in the event that petitioner is removed from office. 10 
On February 9, 2012, this Court issued a TRO in G.R. No.
200238 enjoining the Senate from implementing the Resolution
and subpoena ad testificandum et duces tecum issued by the
Senate sitting as an Impeachment Court, both dated February 6,
2012. The Court further resolved to deny petitioner’s motion for
the inhibition of Justices Carpio and Sereno "in the absence of
any applicable compulsory ground and of any voluntary inhibition
from the Justices concerned."  public official being impeached to raise before this Court any and
On February 13, 2012, petitioner filed a Supplemental
Petition claiming that his right to due process is being violated in
11 
the ongoing impeachment proceedings because certain Senator-
Judges have lost the coldneutrality of impartial judges by acting
as prosecutors. Petitioner particularly mentioned Senator-Judge
Franklin S. Drilon, whose inhibition he had sought from the
Impeachment Court, to no avail. He further called attention to the
fact that despite the Impeachment Court’s January 27, 2012
Resolution which disallowed the introduction of evidence in
support of paragraph 2.4 of Article II, from which no motion for
reconsideration would be entertained, "the allies of President
Aquino in the Senate abused their authority and continued their
presentation of evidence for the prosecution, without fear of
objection". In view of the persistent efforts of President Aquino’s
Senator-allies to overturn the ruling of Presiding Officer Juan
Ponce Enrile that the prosecution could not present evidence on
paragraph 2.4 of Article II -- for which President Aquino even
thanked "his senator allies in delivering what the prosecution
could not"-- petitioner reiterates the reliefs prayed for in his
petition before this Court.
In the Comment Ad Cautelam Ex Superabundanti filed on behalf
12 
of the respondents, the Solicitor General argues that the instant
petition raises matters purely political in character which may be
decided or resolved only by the Senate and HOR, with the
manifestation that the comment is being filed by the respondents
"without submitting themselves to the jurisdiction of the Honorable
Supreme Court and without conceding the constitutional and
exclusive power of the House to initiate all cases of impeachment
and of
the Senate to try and decide all cases of impeachment." Citing
the case of
Nixon v. United States, respondents contend that to allow a
13 
all issues relative to the substance of the impeachment complaint
would result in an unnecessarily long and tedious process that
may even go beyond the terms of the Senator-Judges hearing the
impeachment case. Such scenario is clearly not what the
Constitution intended.
Traversing the allegations of the petition, respondents assert that
the Impeachment Court did not commit any grave abuse of
discretion; it has, in fact, been conducting the proceedings
judiciously. Respondents maintain that subjecting the ongoing
impeachment trial to judicial review defeats the very essence of
impeachment. They contend that the constitutional command of
public accountability to petitioner and his obligation to fully
disclose his assets, liabilities and net worth prevail over his claim
of confidentiality of deposits; hence, the subpoena subject of this
case were correctly and judiciously issued. Considering that the
ongoing impeachment proceedings, which was initiated and is
being conducted in accordance with the Constitution, simply aims
to enforce the principle of public accountability and ensure that
the transgressions of impeachable public officials are corrected,
the injury being claimed by petitioner allegedly resulting from the
impeachment trial has no factual and legal basis. It is thus prayed
that the present petition, as well as petitioner’s prayer for
issuance of a TRO/preliminary injunction, be dismissed.
The core issue presented is whether the certiorari jurisdiction of
this Court may be invoked to assail matters or incidents arising
from impeachment proceedings, and to obtain injunctive relief for
alleged violations of right to due process of the person being tried
by the Senate sitting as Impeachment Court.
Impeachment and Judicial Review
Impeachment, described as "the most formidable weapon in the
arsenal of democracy," was foreseen as creating divisions,
14  limitations, this Court may not exercise its power of expanded
partialities and enmities, or highlighting pre-existing factions with
the greatest danger that "the decision will be regulated more by
the comparative strength of parties, than by the real
demonstrations of innocence or guilt." Given their concededly
15  entitled to propound questions on the witnesses, prosecutors and
political character, the precise role of the judiciary in
impeachment cases is a matter of utmost importance to ensure
the effective functioning of the separate branches while
preserving the structure of checks and balance in our
government. Moreover, in this jurisdiction, the acts of any branch
or instrumentality of the government, including those traditionally
entrusted to the political departments, are proper subjects of
judicial review if tainted with grave abuse or arbitrariness.
Impeachment refers to the power of Congress to remove a public
official for serious crimes or misconduct as provided in the
Constitution. A mechanism designed to check abuse of power,
impeachment has its roots in Athens and was adopted in the
United States (US) through the influence of English common law
on the Framers of the US Constitution. 
Our own Constitution’s provisions on impeachment were adopted
from the US Constitution. Petitioner was impeached through the
mode provided under Art. XI, par. 4, Sec. 3, in a manner that he
claims was accomplished with undue haste and under a
complaint which is defective for lack of probable cause. Petitioner
likewise assails the Senate in proceeding with the trial under the
said complaint, and in the alleged partiality exhibited by some
Senator-Judges who were apparently aiding the prosecution
during the hearings.
On the other hand, respondents contend that the issues raised in
the Supplemental Petition regarding the behavior of certain
Senator-Judges in the course of the impeachment trial are issues
that do not concern, or allege any violation of, the three express
and exclusive constitutional limitations on the Senate’s sole
power to try and decide impeachment cases. They argue that
unless there is a clear transgression of these constitutional
judicial review over the actions of Senator-Judges during the
proceedings. By the nature of the functions they discharge when
sitting as an Impeachment Court, Senator-Judges are clearly
counsel during the trial. Petitioner thus failed to prove any
semblance of partiality on the part of any Senator-Judges. But
whether the Senate Impeachment Rules were followed or not, is
a political question that is not within this Court’s power of
expanded judicial review.
In the first impeachment case decided by this Court, Francisco,
Jr. v.
Nagmamalasakit na mga Manananggol ng mga Manggagawang WHEREFORE, the present petition for certiorari and prohibition
Pilipino, Inc. we ruled that the power of judicial review in this
16 
with prayer for injunctive relief/s is DISMISSED on the ground of
jurisdiction includes the power of review over justiciable issues in MOOTNESS.
impeachment proceedings. Subsequently, in Gutierrez v. House
of Representatives Committee on Justice, the Court resolved the
17 
No pronouncement as to costs.
question of the validity of the simultaneous referral of two
impeachment complaints against petitioner Ombudsman which SO ORDERED.
was allegedly a violation of the due process clause and of the
one-year bar provision. 

On the basis of these precedents, petitioner asks this Court to

determine whether respondents committed a violation of the
Constitution or gravely abused its discretion in the exercise of
their functions and prerogatives that could translate as lack or
excess of jurisdiction, which would require corrective measures
from the Court.

Mootness

In the meantime, the impeachment trial had been concluded with

the conviction of petitioner by more than the required majority
vote of the Senator-Judges. Petitioner immediately accepted the
verdict and without any protest vacated his office. In fact, the
Judicial and Bar Council is already in the process of screening
applicants and nominees, and the President of the Philippines is
expected to appoint a new Chief Justice within the prescribed 90-
day period from among those candidates shortlisted by the JBC.
Unarguably, the constitutional issue raised by petitioner had been
mooted by supervening events and his own acts. 1âwphi1

An issue or a case becomes moot and academic when it ceases

to present a justiciable controversy so that a determination
thereof would be without practical use and value. In such cases,
18 

there is no actual substantial relief to which the petitioner would

be entitled to and which would be negated by the dismissal of the
petition.
19 
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-5279           October 31, 1955
PHILIPPINE ASSOCIATION OF COLLEGES AND
UNIVERSITIES, ETC., petitioner,  obligatory for the Secretary of Public Instruction." Under its
vs.
SECRETARY OF EDUCATION and the BOARD OF
TEXTBOOKS, respondents.
Manuel C. Briones, Vicente G. Sinco, Manuel V. Gallego and
Enrique M. Fernando for petitioner.
Office of the Solicitor General Pompeyo Diaz and Assistant
Solicitor General Francisco Carreon for respondents.
BENGZON, J.:
The petitioning colleges and universities request that Act No.
2706 as amended by Act No. 3075 and Commonwealth Act No.
180 be declared unconstitutional, because: A. They deprive
owners of schools and colleges as well as teachers and parents
of liberty and property without due process of law; B. They
deprive parents of their natural rights and duty to rear their
children for civic efficiency; and C. Their provisions conferring on
the Secretary of Education unlimited power and discretion to
prescribe rules and standards constitute an unlawful delegation of
legislative power.
A printed memorandum explaining their position in extenso is
attached to the record.
The Government's legal representative submitted a
mimeographed memorandum contending that, (1) the matter
constitutes no justiciable controversy exhibiting unavoidable
necessity of deciding the constitutional questions; (2) petitioners
are in estoppel to challenge the validity of the said acts; and (3)
the Acts are constitutionally valid.
Petitioners submitted a lengthy reply to the above arguments.
Act No. 2706 approved in 1917 is entitled, "An Act making the
inspection and recognition of private schools and colleges
provisions, the Department of Education has, for the past 37
years, supervised and regulated all private schools in this country
apparently without audible protest, nay, with the general
acquiescence of the general public and the parties concerned.
It should be understandable, then, that this Court should be
doubly reluctant to consider petitioner's demand for avoidance of
the law aforesaid, specially where, as respondents assert,
petitioners suffered no wrong—nor allege any—from the
enforcement of the criticized statute.
It must be evident to any one that the power to declare a
legislative enactment void is one which the judge,
conscious of the fallability of the human judgment, will
shrink from exercising in any case where he can
conscientiously and with due regard to duty and official
oath decline the responsibility. (Cooley Constitutional
Limitations, 8th Ed., Vol. I, p. 332.)
When a law has been long treated as constitutional and
important rights have become dependent thereon, the
Court may refuse to consider an attack on its validity. (C.
J. S. 16, p. 204.)
As a general rule, the constitutionality of a statute will be
passed on 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. (16 C. J. S., p. 207.)
In support of their first proposition petitioners contend that the
right of a citizen to own and operate a school is guaranteed by
the Constitution, and any law requiring previous governmental
approval or permit before such person could exercise said right,
amounts to censorship of previous restraint, a practice abhorent
to our system of law and government. Petitioners obviously refer
to section 3 of Act No. 2706 as amended which provides that
before a private school may be opened to the public it must first
obtain a permit from the Secretary of Education. The Solicitor
General on the other hand points out that none of the petitioners
has cause to present this issue, because all of them have permits
to operate and are actually operating by virtue of their
permits.1 And they do not assert that the respondent Secretary of
Education has threatened to revoke their permits. They have
suffered no wrong under the terms of law—and, naturally need no
relief in the form they now seek to obtain.
It is an established principle that to entitle a private
individual immediately in danger of sustaining a direct
injury as the result of that action and it is not sufficient that
he has merely a general to invoke the judicial power to
determine the validity of executive or legislative action he
must show that he has sustained or is interest common to
all members of the public. (Ex parte Levitt, 302 U. S. 633
82 L. Ed. 493.)
Courts will not pass upon the constitutionality of a law
upon the complaint of one who fails to show that he is
injured by its operation. (Tyler vs. Judges, 179 U. S. 405;
Hendrick vs. Maryland, 235 U. S. 610;
Coffman vs. Breeze Corp., 323 U. S. 316-325.)
The power of courts to declare a law unconstitutional
arises only when the interests of litigant require the use of
that judicial authority for their protection against actual
interference, a hypothetical threat being insufficient.
(United Public Works vs. Mitchell, 330 U .S. 75; 91 L. Ed.
754.)
Bona fide suit.—Judicial power is limited to the decision of
actual cases and controversies. The authority to pass on
the validity of statutes is incidental to the decision of such
cases where conflicting claims under the Constitution and
under a legislative act assailed as contrary to the
Constitution are raised. It is legitimate only in the last
resort, and as necessity in the determination of real,
earnest, and vital controversy between litigants. (Tañada
and Fernando, Constitution of the Philippines, p. 1138.)
Mere apprehension that the Secretary of Education might under
the law withdraw the permit of one of petitioners does not
constitute a justiciable controversy. (Cf. Com. ex
rel Watkins vs. Winchester Waterworks (Ky.) 197 S. W. 2d. 771.)
And action, like this, is brought for a positive purpose, nay, to
obtain actual and positive relief. (Salonga vs. Warner Barnes, L-
2245, January, 1951.) Courts do not sit to adjudicate mere
academic questions to satisfy scholarly interest therein, however
intellectually solid the problem may be. This is specially true
where the issues "reach constitutional dimensions, for then there
comes into play regard for the court's duty to avoid decision of
constitutional issues unless avoidance becomes evasion."
(Rice vs. Sioux City, U. S. Sup. Ct. Adv. Rep., May 23, 1995,
Law Ed., Vol. 99, p. 511.)
The above notwithstanding, in view of the several decisions of the
United States Supreme Court quoted by petitioners, apparently
outlawing censorship of the kind objected to by them, we have
decided to look into the matter, lest they may allege we refuse to
act even in the face of clear violation of fundamental personal
rights of liberty and property.
Petitioners complain that before opening a school the owner
must secure a permit from the Secretary of Education. Such
requirement was not originally included in Act No. 2706. It was
introduced by Commonwealth Act No. 180 approved in 1936.
Why?
In March 1924 the Philippine Legislature approved Act No. 3162
creating a Board of Educational Survey to make a study and
survey of education in the Philippines and of all educational
institutions, facilities and agencies thereof. A Board chairmaned
by Dr. Paul Munroe, Columbia University, assisted by a staff of
carefully selected technical members performed the task, made a
five-month thorough and impartial examination of the local
educational system, and submitted a report with
recommendations, printed as a book of 671 pages. The following
paragraphs are taken from such report:
PRIVATE-ADVENTURE SCHOOLS
There is no law or regulation in the Philippine Islands
today to prevent a person, however disqualified by
ignorance, greed, or even immoral character, from
opening a school to teach the young. It it true that in order
to post over the door "Recognized by the Government," a
private adventure school must first be inspected by the
proper Government official, but a refusal to grant such
recognition does not by any means result in such a school
ceasing to exist. As a matter of fact, there are more such
unrecognized private schools than of the recognized
variety. How many, no one knows, as the Division of
Private Schools keeps records only of the recognized
type.
Conclusion.—An unprejudiced consideration of the fact
presented under the caption Private Adventure Schools
leads but to one conclusion, viz.: the great majority of
them from primary grade to university are money-making
devices for the profit of those who organize and
administer them. The people whose children and youth
attend them are not getting what they pay for. It is obvious
that the system constitutes a great evil. That it should be
permitted to exist with almost no supervision is
indefensible. The suggestion has been made with the
reference to the private institutions of university grade that
some board of control be organized under legislative
control to supervise their administration. The Commission
believes that the recommendations it offers at the end of
this chapter are more likely to bring about the needed
reforms.
Recommendations.—The Commission recommends that
legislation be enacted to prohibit the opening of any
school by an individual or organization without the
permission of the Secretary of Public Instruction. That
before granting such permission the Secretary assure
himself that such school measures up to proper standards
in the following respects, and that the continued existence
of the school be dependent upon its continuing to conform
to these conditions:
(1) The location and construction of the buildings, the
lighting and ventilation of the rooms, the nature of the
lavatories, closets, water supply, school furniture and
apparatus, and methods of cleaning shall be such as to
insure hygienic conditions for both pupils and teachers.
(2) The library and laboratory facilities shall be adequate
to the needs of instruction in the subjects taught.
(3) The classes shall not show an excessive number of
pupils per teacher. The Commission recommends 40 as a
maximum.
(4) The teachers shall meet qualifications equal to those
of teachers in the public schools of the same grade.
 xxx           xxx           xxx
In view of these findings and recommendations, can there be any
doubt that the Government in the exercise of its police power to
correct "a great evil" could validly establish the "previous permit"
system objected to by petitioners? This is what differentiates our
law from the other statutes declared invalid in other jurisdictions.
And if any doubt still exists, recourse may now be had to the
provision of our Constitution that "All educational institutions shall
be under the supervision and subject to regulation by the State."
(Art. XIV, sec. 5.) The power to regulate establishments or
business occupations implies the power to require a permit or
license. (53 C. J. S. 4.)
What goes for the "previous permit" naturally goes for the power
to revoke such permit on account of violation of rules or
regulations of the Department.
II. This brings us to the petitioners' third proposition that the
questioned statutes "conferring on the Secretary of Education
unlimited power and discretion to prescribe rules and standards
constitute an unlawful delegation of legislative power."
This attack is specifically aimed at section 1 of Act No. 2706
which, as amended, provides:
It shall be the duty of the Secretary of Public Instruction to
maintain a general standard of efficiency in all private
schools and colleges of the Philippines so that the same
shall furnish adequate instruction to the public, in
accordance with the class and grade of instruction given
in them, and for this purpose said Secretary or his duly
authorized representative shall have authority to advise,
inspect, and regulate said schools and colleges in order
to determine the efficiency of instruction given in the
same,
"Nowhere in this Act" petitioners argue "can one find any
description, either general or specific, of what constitutes a
'general standard of efficiency.' Nowhere in this Act is there any
indication of any basis or condition to ascertain what is 'adequate
instruction to the public.' Nowhere in this Act is there any
statement of conditions, acts, or factors, which the Secretary of
Education must take into account to determine the 'efficiency of
instruction.'"
The attack on this score is also extended to section 6 which
provides:
The Department of Education shall from time to time
prepare and publish in pamphlet form the minimum
standards required of primary, intermediate, and high
schools, and colleges granting the degrees of Bachelor of
Arts, Bachelor of Science, or any other academic degree.
It shall also from time to time prepare and publish in
pamphlet form the minimum standards required of law,
medical, dental, pharmaceutical, engineering, agricultural
and other medical or vocational schools or colleges giving
instruction of a technical, vocational or professional
character.
Petitioners reason out, "this section leaves everything to the
uncontrolled discretion of the Secretary of Education or his
department. The Secretary of Education is given the power to fix
the standard. In plain language, the statute turns over to the
Secretary of Education the exclusive authority of the legislature to
formulate standard. . . .."
It is quite clear the two sections empower and require the
Secretary of Education to prescribe rules fixing minimum
standards of adequate and efficient instruction to be observed by
all such private schools and colleges as may be permitted to
operate. The petitioners contend that as the legislature has not
fixed the standards, "the provision is extremely vague, indefinite
and uncertain"—and for that reason constitutionality
objectionable. The best answer is that despite such alleged
vagueness the Secretary of Education has fixed standards to
ensure adequate and efficient instruction, as shown by the
memoranda fixing or revising curricula, the school calendars,
entrance and final examinations, admission and accreditation of
students etc.; and the system of private education has, in general,
been satisfactorily in operation for 37 years. Which only shows
that the Legislature did and could, validly rely upon the
educational experience and training of those in charge of the
Department of Education to ascertain and formulate minimum
requirements of adequate instruction as the basis of government
recognition of any private school.
At any rate, petitioners do not show how these standards have
injured any of them or interfered with their operation. Wherefore,
no reason exists for them to assail the validity of the power nor
the exercise of the power by the Secretary of Education.
True, the petitioners assert that, the Secretary has issued rules
and regulations "whimsical and capricious" and that such
discretionary power has produced arrogant inspectors who "bully
heads and teachers of private schools." Nevertheless, their
remedy is to challenge those regulations specifically, and/or to
ring those inspectors to book, in proper administrative or judicial
proceedings—not to invalidate the law. For it needs no argument,
to show that abuse by the officials entrusted with the execution of
a statute does not per se demonstrate the unconstitutionality of
such statute.
Anyway, we find the defendants' position to be sufficiently
sustained by the decision in Alegra vs. Collector of Customs, 53
Phil., 394 upon holding the statute that authorized the Director of
Agriculture to "designate standards for the commercial grades of
abaca, maguey and sisal" against vigorous attacks on the ground
of invalid delegation of legislative power.
Indeed "adequate and efficient instruction" should be considered
sufficient, in the same way as "public welfare" "necessary in the
interest of law and order" "public interest" and "justice and equity
and substantial merits of the case" have been held sufficient as
legislative standards justifying delegation of authority to regulate.
(See Tañada and Fernando, Constitution of the Philippines, p.
793, citing Philippine cases.)
On this phase of the litigation we conclude that there has been no
undue delegation of legislative power.
In this connection, and to support their position that the law and
the Secretary of Education have transcended the governmental
power of supervision and regulation, the petitioners appended a
list of circulars and memoranda issued by the said Department.
However they failed to indicate which of such official documents
was constitutionally objectionable for being "capricious," or pain
"nuisance"; and it is one of our decisional practices that unless a
constitutional point is specifically raised, insisted upon and
adequately argued, the court will not consider it.
(Santiago vs. Far Eastern, 73 Phil., 408.)
We are told that such list will give an idea of how the statute has
placed in the hands of the Secretary of Education complete
control of the various activities of private schools, and why the
statute should be struck down as unconstitutional. It is clear in our
opinion that the statute does not in express terms give the
Secretary complete control. It gives him powers to inspect private
schools, to regulate their activities, to give them official permits to
operate under certain conditions, and to revoke such permits for
cause. This does not amount to complete control. If any of such
Department circulars or memoranda issued by the Secretary go
beyond the bounds of regulation and seeks to
establish complete control, it would surely be invalid. Conceivably
some of them are of this nature, but besides not having before us
the text of such circulars, the petitioners have omitted to specify.
In any event with the recent approval of Republic Act No. 1124
creating the National Board of Education, opportunity for
administrative correction of the supposed anomalies or
encroachments is amply afforded herein petitioners. A more
expeditious and perhaps more technically competent forum
exists, wherein to discuss the necessity, convenience or
relevancy of the measures criticized by them. (See also Republic
Act No. 176.)
If however the statutes in question actually give the Secretary
control over private schools, the question arises whether the
power of supervision and regulation granted to the State by
section 5 Article XIV was meant to include control of private
educational institutions. It is enough to point out that local
educators and writers think the Constitution provides for control of
Education by the State. (See Tolentino, Government of the
Philippine Constitution, Vol. II, p. 615; Benitez, Philippine Social
Life and Progress, p. 335.)
The Constitution (it) "provides for state control of all educational
institutions" even as it enumerates certain fundamental objectives
of all education to wit, the development of moral character,
personal discipline, civic conscience and vocational efficiency,
and instruction in the duties of citizenship. (Malcolm & Laurel,
Philippine Constitutional Law, 1936.)
The Solicitor General cities many authorities to show that the
power to regulate means power to control, and quotes from the
proceedings of the Constitutional Convention to prove that State
control of private education was intended by the organic law. It is
significant to note that the Constitution grants power to supervise
and to regulate. Which may mean greater power than mere
regulation.
III. Another grievance of petitioners—probably the most
significant—is the assessment of 1 per cent levied on gross
receipts of all private schools for additional Government
expenses in connection with their supervision and regulation. The
statute is section 11-A of Act No. 2706 as amended by Republic
Act No. 74 which reads as follows:
SEC. 11-A. The total annual expense of the Office of
Private Education shall be met by the regular amount
appropriated in the annual Appropriation Act: Provided,
however, That for additional expenses in the supervision
and regulation of private schools, colleges and
universities and in the purchase of textbook to be sold to
student of said schools, colleges and universities and
President of the Philippines may authorize the Secretary
of Instruction to levy an equitable assessment from each
private educational institution equivalent to one percent of
the total amount accruing from tuition and other fees: . . .
and non-payment of the assessment herein provided by
any private school, college or university shall be sufficient
cause for the cancellation by the Secretary of Instruction
of the permit for recognition granted to it.
Petitioners maintain that this is a tax on the exercise of a
constitutional right—the right to open a school, the liberty to teach
etc. They claim this is unconstitutional, in the same way that
taxes on the privilege of selling religious literature or of publishing
a newspaper—both constitutional privileges—have been held, in
the United States, to be invalid as taxes on the exercise of a
constitutional right.
The Solicitor General on the other hand argues that insofar as
petitioners' action attempts to restrain the further collection of the
assessment, courts have no jurisdiction to restrain the collection
of taxes by injunction, and in so far as they seek to recover fees
already paid the suit, it is one against the State without its
consent. Anyway he concludes, the action involving "the legality
of any tax impost or assessment" falls within the original
jurisdiction of Courts of First Instance.
There are good grounds in support of Government's position. If
this levy of 1 per cent is truly a mere fee—and not a tax—to
finance the cost of the Department's duty and power to regulate
and supervise private schools, the exaction may be upheld; but
such point involves investigation and examination of relevant
data, which should best be carried out in the lower courts. If on
the other hand it is a tax, petitioners' issue would still be within the
original jurisdiction of the Courts of First Instance.
The last grievance of petitioners relates to the validity of Republic
Act No. 139 which in its section 1 provides:
The textbooks to be used in the private schools
recognized or authorized by the government shall be
submitted to the Board (Board of Textbooks) which shall
have the power to prohibit the use of any of said
textbooks which it may find to be against the law or to
offend the dignity and honor of the government and
people of the Philippines, or which it may find to be
against the general policies of the government, or which it
may deem pedagogically unsuitable.
This power of the Board, petitioners aver, is censorship in "its
baldest form". They cite two U. S. cases (Miss. and Minnesota)
outlawing statutes that impose previous restraints upon
publication of newspapers, or curtail the right of individuals to
disseminate teachings critical of government institutions or
policies.
Herein lies another important issue submitted in the cause. The
question is really whether the law may be enacted in the exercise
of the State's constitutional power (Art. XIV, sec. 5) to supervise
and regulate private schools. If that power amounts to control of
private schools, as some think it is, maybe the law is valid. In this
connection we do not share the belief that section 5 has
added new power to what the State inherently possesses by
virtue of the police power. An express power is necessarily more
extensive than a mere implied power. For instance, if there is
conflict between an express individual right and the express
power to control private education it cannot off-hand be said that
the latter must yield to the former—conflict of two express
powers. But if the power to control education ismerely
implied from the police power, it is feasible to uphold the express
individual right, as was probably the situation in the two decisions
brought to our attention, of Mississippi and Minnesota, states
where constitutional control of private schools is not expressly
produced.
However, as herein previously noted, no justiciable controversy
has been presented to us. We are not informed that the Board on
Textbooks has prohibited this or that text, or that the petitioners
refused or intend to refuse to submit some textbooks, and are in
danger of losing substantial privileges or rights for so refusing.
The average lawyer who reads the above quoted section of
Republic Act 139 will fail to perceive anything objectionable. Why
should not the State prohibit the use of textbooks that are illegal,
or offensive to the Filipinos or adverse to governmental policies or
educationally improper? What's the power of regulation and
supervision for? But those trained to the investigation of
constitutional issues are likely to apprehend the danger to civil
liberties, of possible educational dictatorship or thought control,
as petitioners' counsel foresee with obvious alarm. Much
depends, however, upon the execution and implementation of the
statute. Not that constitutionality depends necessarily upon the
law's effects. But if the Board on Textbooks in its actuations
strictly adheres to the letter of the section and wisely steers a
middle course between the Scylla of "dictatorship" and the
Charybdis of "thought control", no cause for complaint will arise
and no occasion for judicial review will develop. Anyway, and
again, petitioners now have a more expeditious remedy thru an
administrative appeal to the National Board of Education created
by Republic Act 1124.
Of course it is necessary to assure herein petitioners, that when
and if, the dangers they apprehend materialize and judicial
intervention is suitably invoked, after all administrative remedies
are exhausted, the courts will not shrink from their duty to delimit
constitutional boundaries and protect individual liberties.
IV. For all the foregoing considerations, reserving to the
petitioners the right to institute in the proper court, and at the
proper time, such actions as may call for decision of the issue
herein presented by them, this petition for prohibition will be
denied. So ordered.

Paras, C. J., Padilla, Montemayor, Reyes, A., and Jugo,

JJ., concur.
 EN BANC C. MACIAS II in his capacity as
Chairman of the Committee on Local
Government of the House of
[G.R. No. 152295. July 9, 2002] Representatives, THE PRESIDENT OF
THE PAMBANSANG KATIPUNAN NG
MGA SANGGUNIANG KABATAAN, AND
ANTONIETTE V.C. MONTESCLAROS, ALL THEIR AGENTS AND
MARICEL CARANZO, JOSEPHINE REPRESENTATIVES, respondents.
ATANGAN, RONALD ATANGAN and
DECISION
CLARIZA DECENA, and OTHER YOUTH
OF THE LAND SIMILARLY CARPIO, J.:
SITUATED, petitioners,
vs. COMMISSION ON ELECTIONS, The Case
DEPARTMENT OF INTERIOR AND
LOCAL GOVERNMENT, DEPARTMENT
Before us is a petition for certiorari, prohibition and
OF BUDGET AND MANAGEMENT,
mandamus with prayer for a temporary restraining order
EXECUTIVE SECRETARY of the OFFICE or preliminary injunction. The petition seeks to prevent
OF THE PRESIDENT, SENATOR the postponement of the Sangguniang Kabataan (SK for
FRANKLIN DRILON in his capacity as brevity) elections originally scheduled last May 6,
Senate President and SENATOR 2002. The petition also seeks to prevent the reduction of
AQUILINO PIMENTEL in his capacity as the age requirement for membership in the SK.
Minority Leader of the Senate of the Petitioners, who are all 20 years old, filed this petition
Philippines, CONGRESSMAN JOSE DE as a taxpayers and class suit, on their own behalf and on
VENECIA in his capacity as Speaker, behalf of other youths similarly situated. Petitioners claim
that they are in danger of being disqualified to vote and
CONGRESSMAN AGUSTO L. SYJOCO
be voted for in the SK elections should the SK elections
in his capacity as Chairman of the on May 6, 2002 be postponed to a later date. Under the
Committee on Suffrage and Electoral Local Government Code of 1991 (R.A. No. 7160),
Reforms, and CONGRESSMAN EMILIO
membership in the SK is limited to youths at least 15 but
not more than 21 years old.
Petitioners allege that public respondents connived,
confederated and conspired to postpone the May 6, 2002
SK elections and to lower the membership age in the SK
to at least 15 but less than 18 years of age. Petitioners
assail the alleged conspiracy because youths at least 18
but not more than 21 years old will be summarily and
unduly dismembered, unfairly discriminated,
unnecessarily disenfranchised, unjustly disassociated
and obnoxiously disqualified from the SK organization. [1]
Thus, petitioners pray for the issuance of a temporary
restraining order or preliminary injunction -  organized to provide its members with the opportunity to
a) To prevent, annul or declare unconstitutional any law,
decree, Comelec resolution/directive and other
respondents issuances, orders and actions and the like in
postponing the May 6, 2002 SK elections.
b) To command the respondents to continue the May 6,
2002 SK elections set by the present law and in
accordance with Comelec Resolutions No. 4713 and
4714 and to expedite the funding of the SK elections.  in every barangay is composed of a chairperson and
c) In the alternative, if the SK elections will be postponed
for whatever reason, there must be a definite date for
said elections, for example, July 15, 2002, and the
present SK membership, except those incumbent SK
officers who were elected on May 6, 1996, shall be
allowed to run for any SK elective position even if they
are more than 21 years old.
d) To direct the incumbent SK officers who are presently
representing the SK in every sanggunian and the NYC to
vacate their post after the barangay elections.
[2]
The Facts
The SK is a youth organization originally established
by Presidential Decree No. 684 as the Kabataang
Barangay (KB for brevity). The KB was composed of all
barangay residents who were less than 18 years old,
without specifying the minimum age. The KB was
express their views and opinions on issues of
transcendental importance. [3]
The Local Government Code of 1991 renamed the
KB to SK and limited SK membership to those youths at
least 15 but not more than 21 years of age.  The SK [4]
remains as a youth organization in every barangay
tasked to initiate programs to enhance the
social, political, economic, cultural, intellectual, moral,
spiritual, and physical development of the youth.  The SK
[5]
seven members, all elected by the Katipunan ng
Kabataan. The Katipunan ng Kabataan in every
barangay is composed of all citizens actually residing in
the barangay for at least six months and who meet the
membership age requirement.
The first SK elections took place on December 4,
1992. RA No. 7808 reset the SK elections to the first
Monday of May of 1996 and every three years
thereafter. RA No. 7808 mandated the Comelec to
supervise the conduct of the SK elections under rules the
Comelec shall promulgate. Accordingly, the Comelec on
December 4, 2001 issued Resolution Nos. 4713  and
4714  to govern the SK elections on May 6, 2002.
[7]
On February 18, 2002, petitioner Antoniette V.C.
Montesclaros (Montesclaros for brevity) sent a letter  to
the Comelec, demanding that the SK elections be held as
scheduled on May 6, 2002. Montesclaros also urged the
Comelec to respond to her letter within 10 days upon
receipt of the letter, otherwise, she will seek judicial relief.
On February 20, 2002, Alfredo L. Benipayo
(Chairman Benipayo for brevity), then Comelec
Chairman, wrote identical letters to the Speaker of the
House  and the Senate President  about the status of
[9] [10]
pending bills on the SK and Barangay elections. In his
letters, the Comelec Chairman intimated that it was
operationally very difficult to hold both elections
simultaneously in May 2002. Instead, the Comelec
Chairman expressed support for the bill of Senator
Franklin Drilon that proposed to hold the Barangay
elections in May 2002 and postpone the SK elections to
November 2002.
Ten days lapsed without the Comelec responding to
the letter of Montesclaros.Subsequently, petitioners
received a copy of Comelec En Banc Resolution No.
4763 dated February 5, 2002 recommending to
[11]
Congress the postponement of the SK elections to
November 2002 but holding the Barangay elections in
May 2002 as scheduled. [12]
On March 6, 2002, the Senate and the House of
Representatives passed their respective bills postponing
the SK elections. On March 11, 2002, the Bicameral
Conference Committee (Bicameral Committee for brevity)
[6]
of the Senate and the House came out with a
Report  recommending approval of the reconciled bill
[13]
consolidating Senate Bill No. 2050  and House Bill No.
[14]
4456.  The Bicameral Committees consolidated bill reset
[15]
[8]
the SK and Barangay elections to July 15, 2002 and
lowered the membership age in the SK to at least 15 but
not more than 18 years of age.
On March 11, 2002, petitioners filed the instant
petition.
On March 11, 2002, the Senate approved the
Bicameral Committees consolidated bill and on March 13,
2002, the House of Representatives approved the same.
The President signed the approved bill into law on March
19, 2002.
The Issues
Petitioners  raise the following grounds in support of
[16]
their petition:
I.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY
AND UNCONSTITUTIONALLY THUS CONSTITUTED
(SIC) WITH GRAVE ABUSE OF DISCRETION,
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY INTENDED TO
POSTPONE THE SK ELECTIONS.
II.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY
AND UNCONSTITUTIONALLY THUS CONSTITUTED
(SIC) WITH GRAVE ABUSE OF DISCRETION,
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY INTENDED TO
DISCRIMINATE, DISENFRANCHISE, SINGLE OUT
AND DISMEMBER THE SK MEMBERS WHO ARE 18
BUT NOT LESS  (SIC) THAN 21 YEARS OLD
[17]
COMPOSED OF ABOUT 7 MILLION YOUTH.
III.
RESPONDENTS ACTED WHIMSICALLY, ILLEGALLY
AND UNCONSTITUTIONALLY THUS CONSTITUTED
(SIC) WITH GRAVE ABUSE OF DISCRETION,
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN THEY WILLFULLY FAILED TO
FUND THE SK ELECTION PURPORTEDLY TO
POSTPONE THE SAME IN ORDER TO IMPLEMENT
THEIR ILLEGAL SCHEME AND MACHINATION IN
SPITE OF THE FACT THAT THERE ARE AVAILABLE
FUNDS FOR THE PURPOSE.
IV.
THE INCUMBENT SK OFFICERS WANTED TO
PERPETUALLY SIT ON THEIR RESPECTIVE OFFICES
CONTRARY TO THE ENVISION (SIC) OF THE
CREATION OF THE SK ORGANIZATION, HENCE, IN
VIOLATION OF LAW AND CONSTITUTION. [18]
The Courts Ruling
The petition is bereft of merit.
At the outset, the Court takes judicial notice of the
following events that have transpired since petitioners
filed this petition:
1. The May 6, 2002 SK elections and May 13, 2002
Barangay elections were not held as scheduled.
2. Congress enacted RA No. 9164[19] which provides
that voters and candidates for the SK elections
must be at least 15 but less than 18 years of age
on the day of the election. [20] RA No. 9164 also
provides that there shall be a synchronized SK and
Barangay elections on July 15, 2002.
3. The Comelec promulgated Resolution No. 4846,
the rules and regulations for the conduct of the
July 15, 2002 synchronized SK and Barangay
elections.
Petitioners, who all claim to be 20 years old, argue
that the postponement of the May 6, 2002 SK elections
disenfranchises them, preventing them from voting and
being voted for in the SK elections. Petitioners theory is
that if the SK elections were postponed to a date later
than May 6, 2002, the postponement would disqualify
from SK membership youths who will turn 21 years old
between May 6, 2002 and the date of the new SK
elections. Petitioners claim that a reduction in the SK
membership age to 15 but less than 18 years of age from
the then membership age of 15 but not more than 21
years of age would disqualify about seven million
youths. The public respondents failure to hold the
elections on May 6, 2002 would prejudice petitioners and
other youths similarly situated.
 Thus, petitioners instituted this petition to: (1) compel
public respondents to hold the SK elections on May 6,
2002 and should it be postponed, the SK elections should
be held not later than July 15, 2002; (2) prevent public
respondents from passing laws and issuing resolutions
and orders that would lower the membership age in the
SK; and (3) compel public respondents to allow
petitioners and those who have turned more than 21
years old on May 6, 2002 to participate in any re-
scheduled SK elections.
The Courts power of judicial review may be exercised
in constitutional cases only if all the following requisites
are complied with, namely: (1) the existence of an actual
and appropriate case or controversy; (2) a personal and
substantial interest of the party raising the constitutional
question; (3) the exercise of judicial review is pleaded at
the earliest opportunity; and (4) the constitutional
question is the lis mota of the case.[21]
In the instant case, there is no actual controversy
requiring the exercise of the power of judicial
review. While seeking to prevent a postponement of the
May 6, 2002 SK elections, petitioners are nevertheless
amenable to a resetting of the SK elections to any date
not later than July 15, 2002. RA No. 9164 has reset the
SK elections to July 15, 2002, a date acceptable to
petitioners. With respect to the date of the SK elections,
there is therefore no actual controversy requiring judicial
intervention.
Petitioners prayer to prevent Congress from enacting
into law a proposed bill lowering the membership age in
the SK does not present an actual justiciable
controversy. A proposed bill is not subject to judicial
review because it is not a law. A proposed bill creates no
right and imposes no duty legally enforceable by the
Court. A proposed bill, having no legal effect, violates no
constitutional right or duty. The Court has no power to
declare a proposed bill constitutional or unconstitutional
because that would be in the nature of rendering an
advisory opinion on a proposed act of Congress.The
power of judicial review cannot be exercised in vacuo.
 The second paragraph of Section 1, Article VIII of the
[22]
Constitution states 
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government. (Emphasis supplied)
Thus, there can be no justiciable controversy involving
the constitutionality of a proposed bill. The Court can
exercise its power of judicial review only after a law is
enacted, not before.
Under the separation of powers, the Court cannot
restrain Congress from passing any law, or from setting
into motion the legislative mill according to its internal
rules.Thus, the following acts of Congress in the exercise
of its legislative powers are not subject to judicial
restraint: the filing of bills by members of Congress, the
approval of bills by each chamber of Congress, the
reconciliation by the Bicameral Committee of approved
bills, and the eventual approval into law of the reconciled
bills by each chamber of Congress. Absent a clear
violation of specific constitutional limitations or of
constitutional rights of private parties, the Court cannot
exercise its power of judicial review over the internal
processes or procedures of Congress. [23]
The Court has also no power to dictate to Congress
the object or subject of bills that Congress should enact
into law. The judicial power to review the constitutionality
of laws does not include the power to prescribe to
Congress what laws to enact. The Court has no power to
compel Congress by mandamus to enact a law allowing
petitioners, regardless of their age, to vote and be voted
for in the July 15, 2002 SK elections. To do so would
destroy the delicate system of checks and balances finely
crafted by the Constitution for the three co-equal,
coordinate and independent branches of government.
Under RA No. 9164, Congress merely restored the
age requirement in PD No. 684, the original charter of the
SK, which fixed the maximum age for membership in the
SK to youths less than 18 years old. Petitioners do not
have a vested right to the permanence of the age
requirement under Section 424 of the Local Government
Code of 1991. Every law passed by Congress is always
subject to amendment or repeal by Congress. The Court
cannot restrain Congress from amending or repealing
laws, for the power to make laws includes the power to
change the laws. [24]
The Court cannot also direct the Comelec to allow
over-aged voters to vote or be voted for in an election
that is limited under RA No. 9164 to youths at least 15
but less than 18 years old. A law is needed to allow all
those who have turned more than 21 years old on or after
May 6, 2002 to participate in the July 15, 2002 SK
elections. Youths from 18 to 21 years old as of May 6,
2002 are also no longer SK members, and cannot
participate in the July 15, 2002 SK elections. Congress
will have to decide whether to enact an amendatory
law. Petitioners remedy is legislation, not judicial
intervention.
Petitioners have no personal and substantial interest
in maintaining this suit. A party must show that he has
been, or is about to be denied some personal right or
privilege to which he is lawfully entitled.  A party must
[25]
also show that he has a real interest in the suit. By real
interest is meant a present substantial interest, as
distinguished from a mere expectancy or future,
contingent, subordinate, or inconsequential interest. [26]
In the instant case, petitioners seek to enforce a right
originally conferred by law on those who were at least 15
but not more than 21 years old. Now, with the passage of
RA No. 9164, this right is limited to those who on the date
of the SK elections are at least 15 but less than 18 years
old. The new law restricts membership in the SK to this
specific age group. Not falling within this classification,
petitioners have ceased to be members of the SK and
are no longer qualified to participate in the July 15, 2002
SK elections.Plainly, petitioners no longer have a
personal and substantial interest in the SK elections.
This petition does not raise any constitutional
issue. At the time petitioners filed this petition, RA No.
9164, which reset the SK elections and reduced the age
requirement for SK membership, was not yet enacted into
law. After the passage of RA No. 9164, petitioners failed
to assail any provision in RA No. 9164 that could be
unconstitutional. To grant petitioners prayer to be allowed
to vote and be voted for in the July 15, 2002 SK elections
necessitates assailing the constitutionality of RA No.
9164. This, petitioners have not done. The Court will not
strike down a law unless its constitutionality is properly
raised in an appropriate action and adequately argued.
The only semblance of a constitutional issue, albeit
erroneous, that petitioners raise is their claim that SK
membership is a property right within the meaning of the
Constitution.  Since certain public offices are reserved
[28]
for SK officers, petitioners also claim a constitutionally
protected opportunity to occupy these public offices. In
petitioners own words, they and others similarly situated
stand to lose their opportunity to work in the government
positions reserved for SK members or officers.  Under [29]
the Local Government Code of 1991, the president of the
federation of SK organizations in a municipality, city or
province is an ex-officio member of the municipal council,
city council or provincial board, respectively.  The
chairperson of the SK in the barangay is an ex-
officio member of the Sangguniang Barangay.  The
president of the national federation of SK organizations is
an ex-officio member of the National Youth Commission,
with rank of a Department Assistant Secretary. [32]
Congress exercises the power to prescribe the
qualifications for SK membership.One who is no longer
qualified because of an amendment in the law cannot
complain of being deprived of a proprietary right to SK
membership. Only those who qualify as SK members can
contest, based on a statutory right, any act disqualifying
them from SK membership or from voting in the SK
elections. SK membership is not a property right
protected by the Constitution because it is a mere
statutory right conferred by law.Congress may amend at
any time the law to change or even withdraw the statutory
right.
A public office is not a property right. As the
[27]
Constitution expressly states, a [P]ublic office is a public
trust.  No one has a vested right to any public office,
[33]
much less a vested right to an expectancy of holding a
public office. In Cornejo v. Gabriel, decided in 1920, the
[34]
Court already ruled:
Again, for this petition to come under the due process of
law prohibition, it would be necessary to consider an
office a property. It is, however, well settled x x x that a
public office is not property within the sense of the
constitutional guaranties of due process of law, but is
a public trust or agency. x x x The basic idea of the
government x x x is that of a popular representative
[30]
government, the officers being mere agents and not
rulers of the people, one where no one man or set of men
[31]
has a proprietary or contractual right to an office, but
where every officer accepts office pursuant to the
provisions of the law and holds the office as a trust for the
people he represents. (Emphasis supplied)
Petitioners, who apparently desire to hold public
office, should realize from the very start that no one has a
proprietary right to public office. While the law makes an
SK officer an ex-officio member of a local government
legislative council, the law does not confer on petitioners
a proprietary right or even a proprietary expectancy to sit
in local legislative councils. The constitutional principle of
a public office as a public trust precludes any proprietary
claim to public office. Even the State policy directing
equal access to opportunities for public service  cannot
[35]
bestow on petitioners a proprietary right to SK
membership or a proprietary expectancy to ex-
officio public offices.
Moreover, while the State policy is to encourage the
youths involvement in public affairs,  this policy refers to
[36]
those who belong to the class of people defined as the
youth. Congress has the power to define who are the
youth qualified to join the SK, which itself is a creation of
Congress. Those who do not qualify because they are
past the age group defined as the youth cannot insist on
being part of the youth. In government service, once an
employee reaches mandatory retirement age, he cannot
invoke any property right to cling to his office. In the same
manner, since petitioners are now past the maximum age
for membership in the SK, they cannot invoke any
property right to cling to their SK membership.
The petition must also fail because no grave abuse of
discretion attended the postponement of the SK
elections. RA No. 9164 is now the law that prescribes the
qualifications of candidates and voters for the SK
elections. This law also fixes the date of the SK
elections. Petitioners are not even assailing the
constitutionality of RA No. 9164. RA No. 9164 enjoys the
presumption of constitutionality and will apply to the July
15, 2002 SK elections.
Petitioners have not shown that the Comelec acted
illegally or with grave abuse of discretion in
recommending to Congress the postponement of the SK
elections. The very evidence relied upon by petitioners
contradict their allegation of illegality. The evidence
consist of the following: (1) Comelec en banc Resolution
No. 4763 dated February 5, 2002 that recommended the
postponement of the SK elections to 2003; (2) the letter
of then Comelec Chairman Benipayo addressed to the
Speaker of the House of Representatives and the
President of the Senate; and (3) the Conference
Committee Report consolidating Senate Bill No. 2050
and House Bill No. 4456.
The Comelec exercised its power and duty to enforce
and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum
and recall  and to recommend to Congress effective
[37]
measures to minimize election spending.  The Comelecs
[38]
acts enjoy the presumption of regularity in the
performance of official duties.  These acts cannot
[39]
constitute proof, as claimed by petitioners, that there
exists a connivance and conspiracy (among) respondents
in contravention of the present law. As the Court held
in Pangkat Laguna v. Comelec,  the Comelec, as the
[40]
government agency tasked with the enforcement and
administration of elections laws, is entitled to the
presumption of regularity of official acts with respect to
the elections.
The 1987 Constitution imposes upon the Comelec
the duty of enforcing and administering all laws and
regulations relative to the conduct of
elections. Petitioners failed to prove that the Comelec
committed grave abuse of discretion in recommending to
Congress the postponement of the May 6, 2002 SK
elections. The evidence cited by petitioners even
establish that the Comelec has demonstrated an earnest
effort to address the practical problems in holding the SK
elections on May 6, 2002. The presumption remains that
the decision of the Comelec to recommend to Congress Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan,
the postponement of the elections was made in good Mendoza, Panganiban, Quisumbing, Ynares-Santiago,
faith in the regular course of its official duties. Sandoval-Gutierrez, Austria-Martinez, and Corona,
JJ., concur.
Grave abuse of discretion is such capricious and
whimsical exercise of judgment that is patent and gross
as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law.  Public[41]

respondents having acted strictly pursuant to their

constitutional powers and duties, we find no grave abuse
of discretion in their assailed acts.
Petitioners contend that the postponement of the SK
elections would allow the incumbent SK officers to
perpetuate themselves in power, depriving other youths
of the opportunity to serve in elective SK positions. This
argument deserves scant consideration. While RA No.
9164 contains a hold-over provision, incumbent SK
officials can remain in office only until their successors
have been elected or qualified. On July 15, 2002, when
the SK elections are held, the hold-over period expires
and all incumbent SK officials automatically cease to hold
their SK offices and their ex-officio public offices.
In sum, petitioners have no personal and substantial
interest in maintaining this suit.This petition presents no
actual justiciable controversy. Petitioners do not cite any
provision of law that is alleged to be
unconstitutional. Lastly, we find no grave abuse of
discretion on the part of public respondents.
WHEREFORE, the petition is DISMISSED for utter
lack of merit.
SO ORDERED.

EN BANC
G.R. No. 152774             May 27, 2004
THE PROVINCE OF BATANGAS, represented by its
Governor, HERMILANDO I. MANDANAS, petitioner, 
vs.
HON. ALBERTO G. ROMULO, Executive Secretary and
Chairman of the Oversight Committee on Devolution; HON.
EMILIA BONCODIN, Secretary, Department of Budget and
Management; HON. JOSE D. LINA, JR., Secretary,
Department of Interior and Local Government, respondents. 
DECISION
CALLEJO, SR., J.:
The Province of Batangas, represented by its Governor,
Hermilando I. Mandanas, filed the present petition for certiorari,
prohibition and mandamus under Rule 65 of the Rules of Court,
as amended, to declare as unconstitutional and void certain
provisos contained in the General Appropriations Acts (GAA) of
1999, 2000 and 2001, insofar as they uniformly earmarked for
each corresponding year the amount of five billion pesos
(₱5,000,000,000.00) of the Internal Revenue Allotment (IRA) for
the Local Government Service Equalization Fund (LGSEF) and
imposed conditions for the release thereof.
Named as respondents are Executive Secretary Alberto G.
Romulo, in his capacity as Chairman of the Oversight Committee
on Devolution, Secretary Emilia Boncodin of the Department of
Budget and Management (DBM) and Secretary Jose Lina of the
Department of Interior and Local Government (DILG).
Background
On December 7, 1998, then President Joseph Ejercito Estrada
issued Executive Order (E.O.) No. 48 entitled "ESTABLISHING A
PROGRAM FOR DEVOLUTION ADJUSTMENT AND
EQUALIZATION." The program was established to "facilitate the
process of enhancing the capacities of local government units
(LGUs) in the discharge of the functions and services devolved to
them by the National Government Agencies concerned pursuant
to the Local Government Code."1 The Oversight Committee
(referred to as the Devolution Committee in E.O. No. 48)
constituted under Section 533(b) of Republic Act No. 7160 (The
Local Government Code of 1991) has been tasked to formulate
and issue the appropriate rules and regulations necessary for its
effective implementation.2 Further, to address the funding
shortfalls of functions and services devolved to the LGUs and
other funding requirements of the program, the "Devolution
Adjustment and Equalization Fund" was created.3 For 1998, the
DBM was directed to set aside an amount to be determined by
the Oversight Committee based on the devolution status
appraisal surveys undertaken by the DILG.4 The initial fund was
to be sourced from the available savings of the national
government for CY 1998.5 For 1999 and the succeeding years,
the corresponding amount required to sustain the program was to
be incorporated in the annual GAA.6 The Oversight Committee
has been authorized to issue the implementing rules and
regulations governing the equitable allocation and distribution of
said fund to the LGUs.7
The LGSEF in the GAA of 1999 
In Republic Act No. 8745, otherwise known as the GAA of 1999,
the program was renamed as the LOCAL GOVERNMENT
SERVICE EQUALIZATION FUND (LGSEF). Under said
appropriations law, the amount of ₱96,780,000,000 was allotted
as the share of the LGUs in the internal revenue taxes. Item No.
1, Special Provisions, Title XXXVI – A. Internal Revenue
Allotment of Rep. Act No. 8745 contained the following proviso:
... PROVIDED, That the amount of FIVE BILLION PESOS
(₱5,000,000,000) shall be earmarked for the Local
Government Service Equalization Fund for the funding
requirements of projects and activities arising from the full
and efficient implementation of devolved functions and
services of local government units pursuant to R.A. No.
7160, otherwise known as the Local Government Code of
1991: PROVIDED, FURTHER, That such amount shall be
released to the local government units subject to the
implementing rules and regulations, including such
mechanisms and guidelines for the equitable allocations
and distribution of said fund among local government
units subject to the guidelines that may be prescribed by
the Oversight Committee on Devolution as constituted
pursuant to Book IV, Title III, Section 533(b) of R.A. No.
7160. The Internal Revenue Allotment shall be released
directly by the Department of Budget and Management to
the Local Government Units concerned.
On July 28, 1999, the Oversight Committee (with then
Executive Secretary Ronaldo B. Zamora as Chairman)
passed Resolution Nos. OCD-99-003, OCD-99-005 and
OCD-99-006 entitled as follows:
OCD-99-005
RESOLUTION ADOPTING THE ALLOCATION SCHEME
FOR THE PhP5 BILLION CY 1999 LOCAL
GOVERNMENT SERVICE EQUALIZATION FUND
(LGSEF) AND REQUESTING HIS EXCELLENCY
PRESIDENT JOSEPH EJERCITO ESTRADA TO
APPROVE SAID ALLOCATION SCHEME.
OCD-99-006
RESOLUTION ADOPTING THE ALLOCATION SCHEME
FOR THE PhP4.0 BILLION OF THE 1999 LOCAL
GOVERNMENT SERVICE EQUALIZATION FUND AND
ITS CONCOMITANT GENERAL FRAMEWORK,
IMPLEMENTING GUIDELINES AND MECHANICS FOR
ITS IMPLEMENTATION AND RELEASE, AS
PROMULGATED BY THE OVERSIGHT COMMITTEE
ON DEVOLUTION.
OCD-99-003
RESOLUTION REQUESTING HIS EXCELLENCY
PRESIDENT JOSEPH EJERCITO ESTRADA TO
APPROVE THE REQUEST OF THE OVERSIGHT
COMMITTEE ON DEVOLUTION TO SET ASIDE
TWENTY PERCENT (20%) OF THE LOCAL
GOVERNMENT SERVICE EQUALIZATION FUND
(LGSEF) FOR LOCAL AFFIRMATIVE ACTION
PROJECTS AND OTHER PRIORITY INITIATIVES FOR
LGUs INSTITUTIONAL AND CAPABILITY BUILDING IN
ACCORDANCE WITH THE IMPLEMENTING
GUIDELINES AND MECHANICS AS PROMULGATED
BY THE COMMITTEE.
These OCD resolutions were approved by then President
Estrada on October 6, 1999.
Under the allocation scheme adopted pursuant to
Resolution No. OCD-99-005, the five billion pesos LGSEF
was to be allocated as follows:
1. The PhP4 Billion of the LGSEF shall be
allocated in accordance with the allocation
scheme and implementing guidelines and
 mechanics promulgated and adopted by the OCD.
To wit:
a. The first PhP2 Billion of the LGSEF
shall be allocated in accordance with the
codal formula sharing scheme as
prescribed under the 1991 Local
Government Code;
b. The second PhP2 Billion of the LGSEF
shall be allocated in accordance with a
modified 1992 cost of devolution fund
(CODEF) sharing scheme, as
recommended by the respective leagues
of provinces, cities and municipalities to
the OCD. The modified CODEF sharing
formula is as follows:
Province : 40%
Cities : 20%
Municipalities : 40%
This is applied to the P2 Billion after the approved
amounts granted to individual provinces, cities
and municipalities as assistance to cover
decrease in 1999 IRA share due to reduction in
land area have been taken out.
2. The remaining PhP1 Billion of the LGSEF shall be
earmarked to support local affirmative action projects and
other priority initiatives submitted by LGUs to the
Oversight Committee on Devolution for approval in
accordance with its prescribed guidelines as promulgated
and adopted by the OCD.
In Resolution No. OCD-99-003, the Oversight Committee set
aside the one billion pesos or 20% of the LGSEF to support Local
Affirmative Action Projects (LAAPs) of LGUs. This remaining
amount was intended to "respond to the urgent need for
additional funds assistance, otherwise not available within the
parameters of other existing fund sources." For LGUs to be
eligible for funding under the one-billion-peso portion of the
LGSEF, the OCD promulgated the following:
III. CRITERIA FOR ELIGIBILITY:
1. LGUs (province, city, municipality, or barangay),
individually or by group or multi-LGUs or leagues of
LGUs, especially those belonging to the 5th and 6th class,
may access the fund to support any projects or activities
that satisfy any of the aforecited purposes. A barangay
may also access this fund directly or through their
respective municipality or city.
2. The proposed project/activity should be need-based, a
local priority, with high development impact and are
congruent with the socio-cultural, economic and
development agenda of the Estrada Administration, such
as food security, poverty alleviation, electrification, and
peace and order, among others.
3. Eligible for funding under this fund are projects arising
from, but not limited to, the following areas of concern:
a. delivery of local health and sanitation services,
hospital services and other tertiary services;
b. delivery of social welfare services;
c. provision of socio-cultural services and facilities
for youth and community development;
 d. provision of agricultural and on-site related
research;
e. improvement of community-based forestry
projects and other local projects on environment
and natural resources protection and
conservation;
f. improvement of tourism facilities and promotion
of tourism;
g. peace and order and public safety;
h. construction, repair and maintenance of public
works and infrastructure, including public buildings
and facilities for public use, especially those
destroyed or damaged by man-made or natural
calamities and disaster as well as facilities for
water supply, flood control and river dikes;
i. provision of local electrification facilities;
j. livelihood and food production services, facilities
and equipment;
k. other projects that may be authorized by the
OCD consistent with the aforementioned
objectives and guidelines;
4. Except on extremely meritorious cases, as may be
determined by the Oversight Committee on Devolution,
this portion of the LGSEF shall not be used in
expenditures for personal costs or benefits under existing
laws applicable to governments. Generally, this fund shall
cover the following objects of expenditures for programs,
projects and activities arising from the implementation of
devolved and regular functions and services:
a. acquisition/procurement of supplies and
materials critical to the full and effective
implementation of devolved programs, projects
and activities;
b. repair and/or improvement of facilities;
c. repair and/or upgrading of equipment;
d. acquisition of basic equipment;
e. construction of additional or new facilities;
f. counterpart contribution to joint arrangements or
collective projects among groups of municipalities,
cities and/or provinces related to devolution and
delivery of basic services.
5. To be eligible for funding, an LGU or group of LGU
shall submit to the Oversight Committee on Devolution
through the Department of Interior and Local
Governments, within the prescribed schedule and
timeframe, a Letter Request for Funding Support from the
Affirmative Action Program under the LGSEF, duly signed
by the concerned LGU(s) and endorsed by cooperators
and/or beneficiaries, as well as the duly signed Resolution
of Endorsement by the respective Sanggunian(s) of the
LGUs concerned. The LGU-proponent shall also be
required to submit the Project Request (PR), using OCD
Project Request Form No. 99-02, that details the
following:
(a) general description or brief of the project;
(b) objectives and justifications for undertaking the
project, which should highlight the benefits to the
locality and the expected impact to the local
 program/project arising from the full and efficient
implementation of social services and facilities, at
the local levels;
(c) target outputs or key result areas;
(d) schedule of activities and details of
requirements;
(e) total cost requirement of the project;
(f) proponent's counterpart funding share, if any,
and identified source(s) of counterpart funds for
the full implementation of the project;
(g) requested amount of project cost to be
covered by the LGSEF.  For Cities 23% or 805,000,000
Further, under the guidelines formulated by the Oversight
Committee as contained in Attachment - Resolution No. OCD-99-
003, the LGUs were required to identify the projects eligible for
funding under the one-billion-peso portion of the LGSEF and
submit the project proposals thereof and other documentary
requirements to the DILG for appraisal. The project proposals that
passed the DILG's appraisal would then be submitted to the
Oversight Committee for review, evaluation and approval. Upon
its approval, the Oversight Committee would then serve notice to
the DBM for the preparation of the Special Allotment Release
Order (SARO) and Notice of Cash Allocation (NCA) to effect the
release of funds to the said LGUs.  the LGU concerned;
The LGSEF in the GAA of 2000  Provided further that the individual LGSEF shares to
Under Rep. Act No. 8760, otherwise known as the GAA of 2000,
the amount of ₱111,778,000,000 was allotted as the share of the
LGUs in the internal revenue taxes. As in the GAA of 1999, the
GAA of 2000 contained a proviso earmarking five billion pesos of
the IRA for the LGSEF. This proviso, found in Item No. 1, Special
Provisions, Title XXXVII – A. Internal Revenue Allotment, was
similarly worded as that contained in the GAA of 1999. 
The Oversight Committee, in its Resolution No. OCD-2000-023
dated June 22, 2000, adopted the following allocation scheme
governing the five billion pesos LGSEF for 2000:
1. The PhP3.5 Billion of the CY 2000 LGSEF shall be
allocated to and shared by the four levels of LGUs, i.e.,
provinces, cities, municipalities, and barangays, using the
following percentage-sharing formula agreed upon and
jointly endorsed by the various Leagues of LGUs:
For Provinces 26% or ₱ 910,000,000
For Municipalities 35% or 1,225,000,000
For Barangays 16% or 560,000,000
Provided that the respective Leagues representing the
provinces, cities, municipalities and barangays shall draw
up and adopt the horizontal distribution/sharing schemes
among the member LGUs whereby the Leagues
concerned may opt to adopt direct financial assistance or
project-based arrangement, such that the LGSEF
allocation for individual LGU shall be released directly to
LGUs are used in accordance with the general purposes
and guidelines promulgated by the OCD for the
implementation of the LGSEF at the local levels pursuant
to Res. No. OCD-99-006 dated October 7, 1999 and
pursuant to the Leagues' guidelines and mechanism as
approved by the OCD;
Provided further that each of the Leagues shall submit to
the OCD for its approval their respective allocation
scheme, the list of LGUs with the corresponding LGSEF
shares and the corresponding project categories if
project-based;
Provided further that upon approval by the OCD, the lists
of LGUs shall be endorsed to the DBM as the basis for
the preparation of the corresponding NCAs, SAROs, and
related budget/release documents.
2. The remaining ₱1,500,000,000 of the CY 2000 LGSEF
shall be earmarked to support the following initiatives and
local affirmative action projects, to be endorsed to and
approved by the Oversight Committee on Devolution in
accordance with the OCD agreements, guidelines,
procedures and documentary requirements:
On July 5, 2000, then President Estrada issued a
Memorandum authorizing then Executive Secretary
Zamora and the DBM to implement and release the 2.5
billion pesos LGSEF for 2000 in accordance with
Resolution No. OCD-2000-023.
Thereafter, the Oversight Committee, now under the
administration of President Gloria Macapagal-Arroyo,
promulgated Resolution No. OCD-2001-29 entitled
"ADOPTING RESOLUTION NO. OCD-2000-023 IN THE
ALLOCATION, IMPLEMENTATION AND RELEASE OF
THE REMAINING ₱2.5 BILLION LGSEF FOR CY 2000."
Under this resolution, the amount of one billion pesos of
the LGSEF was to be released in accordance with
paragraph 1 of Resolution No. OCD-2000-23, to complete
the 3.5 billion pesos allocated to the LGUs, while the
amount of 1.5 billion pesos was allocated for the LAAP.
However, out of the latter amount, ₱400,000,000 was to
be allocated and released as follows: ₱50,000,000 as
financial assistance to the LAAPs of LGUs; ₱275,360,227
as financial assistance to cover the decrease in the IRA of
LGUs concerned due to reduction in land area; and
₱74,639,773 for the LGSEF Capability-Building Fund.
The LGSEF in the GAA of 2001
In view of the failure of Congress to enact the general
appropriations law for 2001, the GAA of 2000 was
deemed re-enacted, together with the IRA of the LGUs
therein and the proviso earmarking five billion pesos
thereof for the LGSEF.
On January 9, 2002, the Oversight Committee adopted
Resolution No. OCD-2002-001 allocating the five billion
pesos LGSEF for 2001 as follows:
Modified Codal Formula  ₱ 3.000 billion
Priority Projects  1.900 billion
Capability Building Fund  .100 billion 
₱ 5.000 billion
RESOLVED FURTHER, that the ₱3.0 B of the CY 2001 LGSEF
which is to be allocated according to the modified codal formula
shall be released to the four levels of LGUs, i.e., provinces, cities,
municipalities and barangays, as follows:
Percentag
LGUs Amount
e
 Provinces  25 ₱ 0.750 billion
Cities  25 0.750
Municipalities  35 1.050
Barangays  15 0.450
100  ₱ 3.000 billion
RESOLVED FURTHER, that the ₱1.9 B earmarked for priority
projects shall be distributed according to the following criteria:
1.0 For projects of the 4th, 5th and 6th class LGUs; or
2.0 Projects in consonance with the President's State of
the Nation Address (SONA)/summit commitments.
RESOLVED FURTHER, that the remaining ₱100 million LGSEF
capability building fund shall be distributed in accordance with the
recommendation of the Leagues of Provinces, Cities,
Municipalities and Barangays, and approved by the OCD. 
Upon receipt of a copy of the above resolution, Gov. Mandanas
wrote to the individual members of the Oversight Committee
seeking the reconsideration of Resolution No. OCD-2002-001. He
also wrote to Pres. Macapagal-Arroyo urging her to disapprove
said resolution as it violates the Constitution and the Local
Government Code of 1991.
On January 25, 2002, Pres. Macapagal-Arroyo approved
Resolution No. OCD-2002-001.
The Petitioner's Case
The petitioner now comes to this Court assailing as
unconstitutional and void the provisos in the GAAs of 1999, 2000
and 2001, relating to the LGSEF. Similarly assailed are the
Oversight Committee's Resolutions Nos. OCD-99-003, OCD-99-
005, OCD-99-006, OCD-2000-023, OCD-2001-029 and OCD-
2002-001 issued pursuant thereto. The petitioner submits that the
assailed provisos in the GAAs and the OCD resolutions, insofar
as they earmarked the amount of five billion pesos of the IRA of
the LGUs for 1999, 2000 and 2001 for the LGSEF and imposed
conditions for the release thereof, violate the Constitution and the
Local Government Code of 1991.
Section 6, Article X of the Constitution is invoked as it mandates
that the "just share" of the LGUs shall be automatically released
to them. Sections 18 and 286 of the Local Government Code of
1991, which enjoin that the "just share" of the LGUs shall be
"automatically and directly" released to them "without need of
further action" are, likewise, cited.
The petitioner posits that to subject the distribution and release of
the five-billion-peso portion of the IRA, classified as the LGSEF,
to compliance by the LGUs with the implementing rules and
regulations, including the mechanisms and guidelines prescribed
by the Oversight Committee, contravenes the explicit directive of
the Constitution that the LGUs' share in the national taxes "shall
be automatically released to them." The petitioner maintains that
the use of the word "shall" must be given a compulsory meaning.
To further buttress this argument, the petitioner contends that to
vest the Oversight Committee with the authority to determine the
distribution and release of the LGSEF, which is a part of the IRA
of the LGUs, is an anathema to the principle of local autonomy as
embodied in the Constitution and the Local Government Code of
1991. The petitioner cites as an example the experience in 2001
when the release of the LGSEF was long delayed because the
Oversight Committee was not able to convene that year and no
guidelines were issued therefor. Further, the possible disapproval
by the Oversight Committee of the project proposals of the LGUs
would result in the diminution of the latter's share in the IRA.
Another infringement alleged to be occasioned by the assailed
OCD resolutions is the improper amendment to Section 285 of
the Local Government Code of 1991 on the percentage sharing of
the IRA among the LGUs. Said provision allocates the IRA as
follows: Provinces – 23%; Cities – 23%; Municipalities – 34%;
and Barangays – 20%.8 This formula has been improperly
amended or modified, with respect to the five-billion-peso portion
of the IRA allotted for the LGSEF, by the assailed OCD
resolutions as they invariably provided for a different sharing
scheme.
The modifications allegedly constitute an illegal amendment by
the executive branch of a substantive law. Moreover, the
petitioner mentions that in the Letter dated December 5, 2001 of
respondent Executive Secretary Romulo addressed to
respondent Secretary Boncodin, the former endorsed to the latter
the release of funds to certain LGUs from the LGSEF in
accordance with the handwritten instructions of President Arroyo.
Thus, the LGUs are at a loss as to how a portion of the LGSEF is
actually allocated. Further, there are still portions of the LGSEF
that, to date, have not been received by the petitioner; hence,
resulting in damage and injury to the petitioner.
The petitioner prays that the Court declare as unconstitutional
and void the assailed provisos relating to the LGSEF in the GAAs
of 1999, 2000 and 2001 and the assailed OCD resolutions
(Resolutions Nos. OCD-99-003, OCD-99-005, OCD-99-006,
OCD-2000-023, OCD-2001-029 and OCD-2002-001) issued by
the Oversight Committee pursuant thereto. The petitioner,
likewise, prays that the Court direct the respondents to rectify the
unlawful and illegal distribution and releases of the LGSEF for the
aforementioned years and release the same in accordance with
the sharing formula under Section 285 of the Local Government
Code of 1991. Finally, the petitioner urges the Court to declare
that the entire IRA should be released automatically without
further action by the LGUs as required by the Constitution and the
Local Government Code of 1991.
The Respondents' Arguments
The respondents, through the Office of the Solicitor General, urge
the Court to dismiss the petition on procedural and substantive
grounds. On the latter, the respondents contend that the assailed
provisos in the GAAs of 1999, 2000 and 2001 and the assailed
resolutions issued by the Oversight Committee are not
constitutionally infirm. The respondents advance the view that
Section 6, Article X of the Constitution does not specify that the
"just share" of the LGUs shall be determined solely by the Local
Government Code of 1991. Moreover, the phrase "as determined
by law" in the same constitutional provision means that there
exists no limitation on the power of Congress to determine what is
the "just share" of the LGUs in the national taxes. In other words,
Congress is the arbiter of what should be the "just share" of the
LGUs in the national taxes.
The respondents further theorize that Section 285 of the Local
Government Code of 1991, which provides for the percentage
sharing of the IRA among the LGUs, was not intended to be a
fixed determination of their "just share" in the national taxes.
Congress may enact other laws, including appropriations laws
such as the GAAs of 1999, 2000 and 2001, providing for a
different sharing formula. Section 285 of the Local Government
Code of 1991 was merely intended to be the "default share" of
the LGUs to do away with the need to determine annually by law
their "just share." However, the LGUs have no vested right in a
permanent or fixed percentage as Congress may increase or
decrease the "just share" of the LGUs in accordance with what it
believes is appropriate for their operation. There is nothing in the
Constitution which prohibits Congress from making such
determination through the appropriations laws. If the provisions of
a particular statute, the GAA in this case, are within the
constitutional power of the legislature to enact, they should be
sustained whether the courts agree or not in the wisdom of their
enactment.
On procedural grounds, the respondents urge the Court to
dismiss the petition outright as the same is defective. The petition
allegedly raises factual issues which should be properly threshed
out in the lower courts, not this Court, not being a trier of facts.
Specifically, the petitioner's allegation that there are portions of
the LGSEF that it has not, to date, received, thereby causing it
(the petitioner) injury and damage, is subject to proof and must be
substantiated in the proper venue, i.e., the lower courts.
Further, according to the respondents, the petition has already
been rendered moot and academic as it no longer presents a
justiciable controversy. The IRAs for the years 1999, 2000 and
2001, have already been released and the government is now
operating under the 2003 budget. In support of this, the
respondents submitted certifications issued by officers of the
DBM attesting to the release of the allocation or shares of the
petitioner in the LGSEF for 1999, 2000 and 2001. There is,
therefore, nothing more to prohibit.  been or is about to be denied some right or privilege to which he
Finally, the petitioner allegedly has no legal standing to bring the
suit because it has not suffered any injury. In fact, the petitioner's
"just share" has even increased. Pursuant to Section 285 of the
Local Government Code of 1991, the share of the provinces is
23%. OCD Nos. 99-005, 99-006 and 99-003 gave the provinces
40% of ₱2 billion of the LGSEF. OCD Nos. 2000-023 and 2001-
029 apportioned 26% of ₱3.5 billion to the provinces. On the
other hand, OCD No. 2001-001 allocated 25% of ₱3 billion to the
provinces. Thus, the petitioner has not suffered any injury in the
implementation of the assailed provisos in the GAAs of 1999,
2000 and 2001 and the OCD resolutions.
The Ruling of the Court Procedural Issues
Before resolving the petition on its merits, the Court shall first rule
on the following procedural issues raised by the respondents: (1)
whether the petitioner has legal standing or locus standi to file the
present suit; (2) whether the petition involves factual questions
that are properly cognizable by the lower courts; and (3) whether
the issue had been rendered moot and academic.
The petitioner has locus standi to maintain the present suit
The gist of the question of standing is whether a party has
"alleged such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends
for illumination of difficult constitutional questions."9 Accordingly, it
has been held that the interest of a party assailing the
constitutionality of a statute must be direct and personal. Such
party must be able to show, not only that the law or any
government act is invalid, but also that he has sustained or is in
imminent danger of sustaining some direct injury as a result of its
enforcement, and not merely that he suffers thereby in some
indefinite way. It must appear that the person complaining has
is lawfully entitled or that he is about to be subjected to some
burdens or penalties by reason of the statute or act complained
of.10
The Court holds that the petitioner possesses the requisite
standing to maintain the present suit. The petitioner, a local
government unit, seeks relief in order to protect or vindicate an
interest of its own, and of the other LGUs. This interest pertains to
the LGUs' share in the national taxes or the IRA. The petitioner's
constitutional claim is, in substance, that the assailed provisos in
the GAAs of 1999, 2000 and 2001, and the OCD resolutions
contravene Section 6, Article X of the Constitution, mandating the
"automatic release" to the LGUs of their share in the national
taxes. Further, the injury that the petitioner claims to suffer is the
diminution of its share in the IRA, as provided under Section 285
of the Local Government Code of 1991, occasioned by the
implementation of the assailed measures. These allegations are
sufficient to grant the petitioner standing to question the validity of
the assailed provisos in the GAAs of 1999, 2000 and 2001, and
the OCD resolutions as the petitioner clearly has "a plain, direct
and adequate interest" in the manner and distribution of the IRA
among the LGUs.
The petition involves a significant legal issue
The crux of the instant controversy is whether the assailed
provisos contained in the GAAs of 1999, 2000 and 2001, and the
OCD resolutions infringe the Constitution and the Local
Government Code of 1991. This is undoubtedly a legal question.
On the other hand, the following facts are not disputed:
1. The earmarking of five billion pesos of the IRA for the
LGSEF in the assailed provisos in the GAAs of 1999,
2000 and re-enacted budget for 2001;
2. The promulgation of the assailed OCD resolutions
providing for the allocation schemes covering the said five
billion pesos and the implementing rules and regulations
therefor; and
3. The release of the LGSEF to the LGUs only upon their
compliance with the implementing rules and regulations,
including the guidelines and mechanisms, prescribed by
the Oversight Committee.
Considering that these facts, which are necessary to resolve the
legal question now before this Court, are no longer in issue, the
same need not be determined by a trial court.11 In any case, the
rule on hierarchy of courts will not prevent this Court from
assuming jurisdiction over the petition. The said rule may be
relaxed when the redress desired cannot be obtained in the
appropriate courts or where exceptional and compelling
circumstances justify availment of a remedy within and calling for
the exercise of this Court's primary jurisdiction.12
The crucial legal issue submitted for resolution of this Court
entails the proper legal interpretation of constitutional and
statutory provisions. Moreover, the "transcendental importance"
of the case, as it necessarily involves the application of the
constitutional principle on local autonomy, cannot be gainsaid.
The nature of the present controversy, therefore, warrants the
relaxation by this Court of procedural rules in order to resolve the
case forthwith.
The substantive issue needs to be resolved notwithstanding the
supervening events
Granting arguendo that, as contended by the respondents, the
resolution of the case had already been overtaken by
supervening events as the IRA, including the LGSEF, for 1999,
2000 and 2001, had already been released and the government
is now operating under a new appropriations law, still, there is
compelling reason for this Court to resolve the substantive issue
raised by the instant petition. Supervening events, whether
intended or accidental, cannot prevent the Court from rendering a
decision if there is a grave violation of the Constitution.13 Even in
cases where supervening events had made the cases moot, the
Court did not hesitate to resolve the legal or constitutional issues
raised to formulate controlling principles to guide the bench, bar
and public.14
Another reason justifying the resolution by this Court of the
substantive issue now before it is the rule that courts will decide a
question otherwise moot and academic if it is "capable of
repetition, yet evading review."15 For the GAAs in the coming
years may contain provisos similar to those now being sought to
be invalidated, and yet, the question may not be decided before
another GAA is enacted. It, thus, behooves this Court to make a
categorical ruling on the substantive issue now.
Substantive Issue
As earlier intimated, the resolution of the substantive legal issue
in this case calls for the application of a most important
constitutional policy and principle, that of local autonomy.16 In
Article II of the Constitution, the State has expressly adopted as a
policy that:
Section 25. The State shall ensure the autonomy of local
governments.  attainment of national goals. Toward this end, the State shall
An entire article (Article X) of the Constitution has been devoted
to guaranteeing and promoting the autonomy of LGUs. Section 2
thereof reiterates the State policy in this wise:
Section 2. The territorial and political subdivisions shall enjoy
local autonomy.
Consistent with the principle of local autonomy, the Constitution
confines the President's power over the LGUs to one of general
supervision.17 This provision has been interpreted to exclude the
power of control. The distinction between the two powers was
enunciated in Drilon v. Lim:18
An officer in control lays down the rules in the doing of an act. If
they are not followed, he may, in his discretion, order the act
undone or re-done by his subordinate or he may even decide to
do it himself. Supervision does not cover such authority. The
supervisor or superintendent merely sees to it that the rules are
followed, but he himself does not lay down such rules, nor does
he have the discretion to modify or replace them. If the rules are
not observed, he may order the work done or re-done but only to
conform to the prescribed rules. He may not prescribe his own
manner for doing the act. He has no judgment on this matter
except to see to it that the rules are followed.19
The Local Government Code of 199120 was enacted to flesh out
the mandate of the Constitution.21 The State policy on local
autonomy is amplified in Section 2 thereof:
Sec. 2. Declaration of Policy. – (a) It is hereby declared the policy
of the State that the territorial and political subdivisions of the
State shall enjoy genuine and meaningful local autonomy to
enable them to attain their fullest development as self-reliant
communities and make them more effective partners in the
provide for a more responsive and accountable local government
structure instituted through a system of decentralization whereby
local government units shall be given more powers, authority,
responsibilities, and resources. The process of decentralization
shall proceed from the National Government to the local
government units.
Guided by these precepts, the Court shall now determine whether
the assailed provisos in the GAAs of 1999, 2000 and 2001,
earmarking for each corresponding year the amount of five billion
pesos of the IRA for the LGSEF and the OCD resolutions
promulgated pursuant thereto, transgress the Constitution and
the Local Government Code of 1991.
The assailed provisos in the GAAs of 1999, 2000 and 2001 and
the OCD resolutions violate the constitutional precept on local
autonomy
Section 6, Article X of the Constitution reads:
Sec. 6. Local government units shall have a just share, as
determined by law, in the national taxes which shall be
automatically released to them.
When parsed, it would be readily seen that this provision
mandates that (1) the LGUs shall have a "just share" in the
national taxes; (2) the "just share" shall be determined by law;
and (3) the "just share" shall be automatically released to the
LGUs.
The Local Government Code of 1991, among its salient
provisions, underscores the automatic release of the LGUs' "just
share" in this wise:
Sec. 18. Power to Generate and Apply Resources. Local
government units shall have the power and authority to establish
an organization that shall be responsible for the efficient and
effective implementation of their development plans, program
objectives and priorities; to create their own sources of revenue
and to levy taxes, fees, and charges which shall accrue
exclusively for their use and disposition and which shall be
retained by them; to have a just share in national taxes which
shall be automatically and directly released to them without need
of further action;
...
Sec. 286. Automatic Release of Shares. (a) The share of each
local government unit shall be released, without need of any
further action, directly to the provincial, city, municipal or
barangay treasurer, as the case may be, on a quarterly basis
within five (5) days after the end of each quarter, and which shall
not be subject to any lien or holdback that may be imposed by the
national government for whatever purpose.
(b) Nothing in this Chapter shall be understood to diminish the
share of local government units under existing laws.
Webster's Third New International Dictionary defines "automatic"
as "involuntary either wholly or to a major extent so that any
activity of the will is largely negligible; of a reflex nature; without
volition; mechanical; like or suggestive of an automaton." Further,
the word "automatically" is defined as "in an automatic manner:
without thought or conscious intention." Being "automatic," thus,
connotes something mechanical, spontaneous and perfunctory.
As such, the LGUs are not required to perform any act to receive
the "just share" accruing to them from the national coffers. As
emphasized by the Local Government Code of 1991, the "just
share" of the LGUs shall be released to them "without need of
further action." Construing Section 286 of the LGC, we held in
Pimentel, Jr. v. Aguirre,22 viz:
Section 4 of AO 372 cannot, however, be upheld. A basic feature
of local fiscal autonomy is the automatic release of the shares of
LGUs in the National internal revenue. This is mandated by no
less than the Constitution. The Local Government Code specifies
further that the release shall be made directly to the LGU
concerned within five (5) days after every quarter of the year and
"shall not be subject to any lien or holdback that may be imposed
by the national government for whatever purpose." As a rule, the
term "SHALL" is a word of command that must be given a
compulsory meaning. The provision is, therefore, IMPERATIVE.
Section 4 of AO 372, however, orders the withholding, effective
January 1, 1998, of 10 percent of the LGUs' IRA "pending the
assessment and evaluation by the Development Budget
Coordinating Committee of the emerging fiscal situation" in the
country. Such withholding clearly contravenes the Constitution
and the law. Although temporary, it is equivalent to a holdback,
which means "something held back or withheld, often
temporarily." Hence, the "temporary" nature of the retention by
the national government does not matter. Any retention is
prohibited.
In sum, while Section 1 of AO 372 may be upheld as an advisory
effected in times of national crisis, Section 4 thereof has no color
of validity at all. The latter provision effectively encroaches on the
fiscal autonomy of local governments. Concededly, the President
was well-intentioned in issuing his Order to withhold the LGUs'
IRA, but the rule of law requires that even the best intentions
must be carried out within the parameters of the Constitution and
the law. Verily, laudable purposes must be carried out by legal
methods.23
The "just share" of the LGUs is incorporated as the IRA in the
appropriations law or GAA enacted by Congress annually. Under
the assailed provisos in the GAAs of 1999, 2000 and 2001, a
portion of the IRA in the amount of five billion pesos was
earmarked for the LGSEF, and these provisos imposed the
condition that "such amount shall be released to the local
government units subject to the implementing rules and
regulations, including such mechanisms and guidelines for the
equitable allocations and distribution of said fund among local
government units subject to the guidelines that may be prescribed
by the Oversight Committee on Devolution." Pursuant thereto, the
Oversight Committee, through the assailed OCD resolutions,
apportioned the five billion pesos LGSEF such that:
For 1999
₱2 billion - allocated according to Sec. 285 LGC
₱2 billion - Modified Sharing Formula (Provinces – 40%;
Cities – 20%; Municipalities – 40%)
₱1 billion – projects (LAAP) approved by OCD.24
For 2000
₱3.5 billion – Modified Sharing Formula (Provinces – 26%;
Cities – 23%; Municipalities – 35%; Barangays – 16%);
₱1.5 billion – projects (LAAP) approved by the OCD.25
For 2001
₱3 billion – Modified Sharing Formula (Provinces – 25%;
Cities – 25%; Municipalities – 35%; Barangays – 15%)
₱1.9 billion – priority projects
₱100 million – capability building fund.26
Significantly, the LGSEF could not be released to the LGUs
without the Oversight Committee's prior approval. Further, with
respect to the portion of the LGSEF allocated for various projects
of the LGUs (₱1 billion for 1999; ₱1.5 billion for 2000 and ₱2
billion for 2001), the Oversight Committee, through the assailed
OCD resolutions, laid down guidelines and mechanisms that the
LGUs had to comply with before they could avail of funds from
this portion of the LGSEF. The guidelines required (a) the LGUs
to identify the projects eligible for funding based on the criteria
laid down by the Oversight Committee; (b) the LGUs to submit
their project proposals to the DILG for appraisal; (c) the project
proposals that passed the appraisal of the DILG to be submitted
to the Oversight Committee for review, evaluation and approval. It
was only upon approval thereof that the Oversight Committee
would direct the DBM to release the funds for the projects.
To the Court's mind, the entire process involving the distribution
and release of the LGSEF is constitutionally impermissible. The
LGSEF is part of the IRA or "just share" of the LGUs in the
national taxes. To subject its distribution and release to the
vagaries of the implementing rules and regulations, including the
guidelines and mechanisms unilaterally prescribed by the
Oversight Committee from time to time, as sanctioned by the
assailed provisos in the GAAs of 1999, 2000 and 2001 and the
OCD resolutions, makes the release not automatic, a flagrant
violation of the constitutional and statutory mandate that the "just
share" of the LGUs "shall be automatically released to them." The
LGUs are, thus, placed at the mercy of the Oversight Committee.
Where the law, the Constitution in this case, is clear and
unambiguous, it must be taken to mean exactly what it says, and
courts have no choice but to see to it that the mandate is The State shall guarantee and promote the autonomy of local
obeyed.27 Moreover, as correctly posited by the petitioner, the use government units, especially the barrio, to insure their fullest
of the word "shall" connotes a mandatory order. Its use in a development as self-reliant communities.
statute denotes an imperative obligation and is inconsistent with
the idea of discretion.28 This provision no longer appears in the present configuration;
does this mean that the concept of giving local autonomy to local
Indeed, the Oversight Committee exercising discretion, even governments is no longer adopted as far as this Article is
control, over the distribution and release of a portion of the IRA, concerned?
the LGSEF, is an anathema to and subversive of the principle of
local autonomy as embodied in the Constitution. Moreover, it MR. NOLLEDO. No. In the report of the Committee on Preamble,
finds no statutory basis at all as the Oversight Committee was National Territory, and Declaration of Principles, that concept is
created merely to formulate the rules and regulations for the included and widened upon the initiative of Commissioner
efficient and effective implementation of the Local Government Bennagen.
Code of 1991 to ensure "compliance with the principles of local
autonomy as defined under the Constitution."29 In fact, its creation MR. MAAMBONG. Thank you for that.
was placed under the title of "Transitory Provisions," signifying its
ad hoc character. According to Senator Aquilino Q. Pimentel, the
With regard to Section 6, sources of revenue, the creation of
principal author and sponsor of the bill that eventually became
sources as provided by previous law was "subject to limitations as
Rep. Act No. 7160, the Committee's work was supposed to be
may be provided by law," but now, we are using the term "subject
done a year from the approval of the Code, or on October 10,
to such guidelines as may be fixed by law." In Section 7, mention
1992.30 The Oversight Committee's authority is undoubtedly
is made about the "unique, distinct and exclusive charges and
limited to the implementation of the Local Government Code of
contributions," and in Section 8, we talk about "exclusivity of local
1991, not to supplant or subvert the same. Neither can it exercise
taxes and the share in the national wealth." Incidentally, I was
control over the IRA, or even a portion thereof, of the LGUs.
one of the authors of this provision, and I am very thankful. Does
this indicate local autonomy, or was the wording of the law
That the automatic release of the IRA was precisely intended to changed to give more autonomy to the local government units?31
guarantee and promote local autonomy can be gleaned from the
discussion below between Messrs. Jose N. Nolledo and
MR. NOLLEDO. Yes. In effect, those words indicate also
Regalado M. Maambong, then members of the 1986
"decentralization" because local political units can collect taxes,
Constitutional Commission, to wit:
fees and charges subject merely to guidelines, as recommended
by the league of governors and city mayors, with whom I had a
MR. MAAMBONG. Unfortunately, under Section 198 of the Local dialogue for almost two hours. They told me that limitations may
Government Code, the existence of subprovinces is still be questionable in the sense that Congress may limit and in
acknowledged by the law, but the statement of the Gentleman on effect deny the right later on.
this point will have to be taken up probably by the Committee on
Legislation. A second point, Mr. Presiding Officer, is that under
Article 2, Section 10 of the 1973 Constitution, we have a provision
which states:
MR. MAAMBONG. Also, this provision on "automatic release of
national tax share" points to more local autonomy. Is this the
intention?
MR. NOLLEDO. Yes, the Commissioner is perfectly right.32
The concept of local autonomy was explained in Ganzon v. Court
of Appeals33 in this wise:
As the Constitution itself declares, local autonomy 'means a more
responsive and accountable local government structure instituted
through a system of decentralization.' The Constitution, as we
observed, does nothing more than to break up the monopoly of
the national government over the affairs of local governments and
as put by political adherents, to "liberate the local governments
from the imperialism of Manila." Autonomy, however, is not meant
to end the relation of partnership and interdependence between
the central administration and local government units, or
otherwise, to usher in a regime of federalism. The Charter has not
taken such a radical step. Local governments, under the
Constitution, are subject to regulation, however limited, and for no
other purpose than precisely, albeit paradoxically, to enhance
self-government.
As we observed in one case, decentralization means devolution
of national administration – but not power – to the local levels.
Thus:
Now, autonomy is either decentralization of administration or
decentralization of power. There is decentralization of
administration when the central government delegates
administrative powers to political subdivisions in order to broaden
the base of government power and in the process to make local
governments 'more responsive and accountable' and 'ensure their
fullest development as self-reliant communities and make them
more effective partners in the pursuit of national development and
social progress.' At the same time, it relieves the central
government of the burden of managing local affairs and enables it
to concentrate on national concerns. The President exercises
'general supervision' over them, but only to 'ensure that local
affairs are administered according to law.' He has no control over
their acts in the sense that he can substitute their judgments with
his own.
Decentralization of power, on the other hand, involves an
abdication of political power in the [sic] favor of local governments
[sic] units declared to be autonomous. In that case, the
autonomous government is free to chart its own destiny and
shape its future with minimum intervention from central
authorities. According to a constitutional author, decentralization
of power amounts to 'self-immolation,' since in that event, the
autonomous government becomes accountable not to the central
authorities but to its constituency.34
Local autonomy includes both administrative and fiscal autonomy.
The fairly recent case of Pimentel v. Aguirre35 is particularly
instructive. The Court declared therein that local fiscal autonomy
includes the power of the LGUs to, inter alia, allocate their
resources in accordance with their own priorities:
Under existing law, local government units, in addition to having
administrative autonomy in the exercise of their functions, enjoy
fiscal autonomy as well. Fiscal autonomy means that local
governments have the power to create their own sources of
revenue in addition to their equitable share in the national taxes
released by the national government, as well as the power to
allocate their resources in accordance with their own priorities. It
extends to the preparation of their budgets, and local officials in
turn have to work within the constraints thereof. They are not
formulated at the national level and imposed on local
governments, whether they are relevant to local needs and
resources or not ...36
Further, a basic feature of local fiscal autonomy is the
constitutionally mandated automatic release of the shares of
LGUs in the national internal revenue.37
Following this ratiocination, the Court in Pimentel struck down as
unconstitutional Section 4 of Administrative Order (A.O.) No. 372
which ordered the withholding, effective January 1, 1998, of ten
percent of the LGUs' IRA "pending the assessment and
evaluation by the Development Budget Coordinating Committee
of the emerging fiscal situation."
In like manner, the assailed provisos in the GAAs of 1999, 2000
and 2001, and the OCD resolutions constitute a "withholding" of a
portion of the IRA. They put on hold the distribution and release
of the five billion pesos LGSEF and subject the same to the
implementing rules and regulations, including the guidelines and
mechanisms prescribed by the Oversight Committee from time to
time. Like Section 4 of A.O. 372, the assailed provisos in the
GAAs of 1999, 2000 and 2001 and the OCD resolutions
effectively encroach on the fiscal autonomy enjoyed by the LGUs
and must be struck down. They cannot, therefore, be upheld.
The assailed provisos in the GAAs of 1999, 2000  which case what should be automatically released shall be a
and 2001 and the OCD resolutions cannot amend
Section 285 of the Local Government Code of 1991
Section 28438 of the Local Government Code provides that,
beginning the third year of its effectivity, the LGUs' share in the
national internal revenue taxes shall be 40%. This percentage is
fixed and may not be reduced except "in the event the national
government incurs an unmanageable public sector deficit" and
only upon compliance with stringent requirements set forth in the
same section:
Sec. 284. ... 
Provided, That in the event that the national government incurs
an unmanageable public sector deficit, the President of the
Philippines is hereby authorized, upon recommendation of
Secretary of Finance, Secretary of Interior and Local Government
and Secretary of Budget and Management, and subject to
consultation with the presiding officers of both Houses of
Congress and the presidents of the liga, to make the necessary
adjustments in the internal revenue allotment of local government
units but in no case shall the allotment be less than thirty percent
(30%) of the collection of the national internal revenue taxes of
the third fiscal year preceding the current fiscal year; Provided,
further That in the first year of the effectivity of this Code, the local
government units shall, in addition to the thirty percent (30%)
internal revenue allotment which shall include the cost of
devolved functions for essential public services, be entitled to
receive the amount equivalent to the cost of devolved personnel
services. 
Thus, from the above provision, the only possible exception to the
mandatory automatic release of the LGUs' IRA is if the national
internal revenue collections for the current fiscal year is less than
40 percent of the collections of the preceding third fiscal year, in
proportionate amount of the collections for the current fiscal year.
The adjustment may even be made on a quarterly basis
depending on the actual collections of national internal revenue
taxes for the quarter of the current fiscal year. In the instant case,
however, there is no allegation that the national internal revenue
tax collections for the fiscal years 1999, 2000 and 2001 have
fallen compared to the preceding three fiscal years.
Section 285 then specifies how the IRA shall be allocated among
the LGUs:
Sec. 285. Allocation to Local Government Units. – The share of
local government units in the internal revenue allotment shall be
allocated in the following manner:
 (a) Provinces – Twenty-three (23%)
(b) Cities – Twenty-three percent (23%);
(c) Municipalities – Thirty-four (34%); and
(d) Barangays – Twenty percent (20%).
However, this percentage sharing is not followed with respect to
the five billion pesos LGSEF as the assailed OCD resolutions,
implementing the assailed provisos in the GAAs of 1999, 2000
and 2001, provided for a different sharing scheme. For example,
for 1999, ₱2 billion of the LGSEF was allocated as follows:
Provinces – 40%; Cities – 20%; Municipalities – 40%.39 For 2000,
₱3.5 billion of the LGSEF was allocated in this manner: Provinces
– 26%; Cities – 23%; Municipalities – 35%; Barangays –
26%.40 For 2001, ₱3 billion of the LGSEF was allocated, thus:
Provinces – 25%; Cities – 25%; Municipalities – 35%; Barangays
– 15%.41
The respondents argue that this modification is allowed since the
Constitution does not specify that the "just share" of the LGUs
shall only be determined by the Local Government Code of 1991.
That it is within the power of Congress to enact other laws,
including the GAAs, to increase or decrease the "just share" of
the LGUs. This contention is untenable. The Local Government
Code of 1991 is a substantive law. And while it is conceded that
Congress may amend any of the provisions therein, it may not do
so through appropriations laws or GAAs. Any amendment to the
Local Government Code of 1991 should be done in a separate
law, not in the appropriations law, because Congress cannot
include in a general appropriation bill matters that should be more
properly enacted in a separate legislation.42
A general appropriations bill is a special type of legislation, whose
content is limited to specified sums of money dedicated to a
specific purpose or a separate fiscal unit.43 Any provision therein
which is intended to amend another law is considered an
"inappropriate provision." The category of "inappropriate
provisions" includes unconstitutional provisions and provisions
which are intended to amend other laws, because clearly these
kinds of laws have no place in an appropriations bill.44
Increasing or decreasing the IRA of the LGUs or modifying their
percentage sharing therein, which are fixed in the Local
Government Code of 1991, are matters of general and
substantive law. To permit Congress to undertake these
amendments through the GAAs, as the respondents contend,
would be to give Congress the unbridled authority to unduly
infringe the fiscal autonomy of the LGUs, and thus put the same
in jeopardy every year. This, the Court cannot sanction.
It is relevant to point out at this juncture that, unlike those of 1999,
2000 and 2001, the GAAs of 2002 and 2003 do not contain
provisos similar to the herein assailed provisos. In other words,
the GAAs of 2002 and 2003 have not earmarked any amount of
the IRA for the LGSEF. Congress had perhaps seen fit to
discontinue the practice as it recognizes its infirmity. Nonetheless,
as earlier mentioned, this Court has deemed it necessary to make
a definitive ruling on the matter in order to prevent its recurrence
in future appropriations laws and that the principles enunciated
herein would serve to guide the bench, bar and public. 
Conclusion
In closing, it is well to note that the principle of local autonomy,
while concededly expounded in greater detail in the present
Constitution, dates back to the turn of the century when President
William McKinley, in his Instructions to the Second Philippine
Commission dated April 7, 1900, ordered the new Government
"to devote their attention in the first instance to the establishment
of municipal governments in which the natives of the Islands, both
in the cities and in the rural communities, shall be afforded the
opportunity to manage their own affairs to the fullest extent of
which they are capable, and subject to the least degree of
supervision and control in which a careful study of their capacities SO ORDERED.
and observation of the workings of native control show to be
consistent with the maintenance of law, order and loyalty."45 While ROMEO J. CALLEJO, SR.
the 1935 Constitution had no specific article on local autonomy, Associate Justice
nonetheless, it limited the executive power over local
governments to "general supervision ... as may be provided by
law."46 Subsequently, the 1973 Constitution explicitly stated that
"[t]he State shall guarantee and promote the autonomy of local
government units, especially the barangay to ensure their fullest
development as self-reliant communities."47 An entire article on
Local Government was incorporated therein. The present
Constitution, as earlier opined, has broadened the principle of
local autonomy. The 14 sections in Article X thereof markedly
increased the powers of the local governments in order to
accomplish the goal of a more meaningful local autonomy.

Indeed, the value of local governments as institutions of

democracy is measured by the degree of autonomy that they
enjoy.48 As eloquently put by 

M. De Tocqueville, a distinguished French political writer, "[l]ocal

assemblies of citizens constitute the strength of free nations.
Township meetings are to liberty what primary schools are to
science; they bring it within the people's reach; they teach men
how to use and enjoy it. A nation may establish a system of free
governments but without the spirit of municipal institutions, it
cannot have the spirit of liberty."49

Our national officials should not only comply with the

constitutional provisions on local autonomy but should also
appreciate the spirit and liberty upon which these provisions are
based.50

WHEREFORE, the petition is GRANTED. The assailed provisos

in the General Appropriations Acts of 1999, 2000 and 2001, and
the assailed OCD Resolutions, are declared
UNCONSTITUTIONAL.
 EDUARDO ERMITA, HON.   AZCUNA, 
AVELINO CRUZ II,   TINGA, 
SECRETARY OF   CHICO-
EN BANC NATIONAL DEFENSE, NAZARIO, 
  GENERAL GENEROSO   GARCIA, and 
  SENGA, CHIEF OF STAFF,   VELASCO, JJ.
PROF. RANDOLF S.   G.R. No. ARMED FORCES OF THE  
DAVID, LORENZO 171396 PHILIPPINES, DIRECTOR   Promulgated:
TA�ADA III, RONALD   GENERAL ARTURO  
LLAMAS, H. HARRY L.   Present: LOMIBAO, CHIEF,   May 3, 2006 
ROQUE, JR., JOEL RUIZ   PHILIPPINE NATIONAL  
BUTUYAN, ROGER R.   PANGANIBA POLICE,  
RAYEL, GARY S. N, C.J.,                                                   G.R. No.
MALLARI,              ROMEL  *PUNO, Respondents. 171409
REGALADO BAGARES,   QUISUMBIN x-----------------------------------  
CHRISTOPHER F.C. G, --------------x  
BOLASTIG,   YNARES- NI�EZ CACHO-  
                                                SANTIAGO, OLIVARES AND TRIBUNE  
Petitioners,   SANDOVAL- PUBLISHING CO., INC.,  
  GUTIERREZ,                                             Pet  
- versus -   CARPIO, itioners,  
    AUSTRIA-    
 
  MARTINEZ,   
- versus -
GLORIA MACAPAGAL-   CORONA,     
ARROYO,                  AS   CARPIO    
PRESIDENT AND MORALES,  HONORABLE SECRETARY  
COMMANDER-IN-CHIEF,   CALLEJO, EDUARDO ERMITA AND G.R. No. 171485
EXECUTIVE SECRETARY SR.,  HONORABLE DIRECTOR   
GENERAL ARTURO C.  
LOMIBAO,    BARAQUEL, IMELDA C.  
                                           Res   NICOLAS, MARVIC M.V.F.  
pondents.   LEONEN, NERI JAVIER  
 
x-----------------------------------   COLMENARES, G.R. No. 171483
--------------x   MOVEMENT OF  
FRANCIS JOSEPH G.   CONCERNED CITIZENS  
ESCUDERO, JOSEPH A.   FOR CIVIL LIBERTIES  
SANTIAGO, TEODORO A.   REPRESENTED BY  
CASINO, AGAPITO A.   AMADO GAT INCIONG,  
AQUINO, MARIO J.                                                    
AGUJA, SATUR C.   Petitioners,  
OCAMPO, MUJIV S.      
HATAMAN, JUAN    - versus -  
EDGARDO ANGARA,      
 
TEOFISTO DL. GUINGONA   EDUARDO R. ERMITA,  
III, EMMANUEL JOSEL J.   EXECUTIVE SECRETARY,   
VILLANUEVA, LIZA L.   AVELINO J. CRUZ, JR.,  
MAZA, IMEE R. MARCOS,   SECRETARY, DND  
RENATO B. MAGTUBO,   RONALDO V. PUNO,  
JUSTIN MARC SB.   SECRETARY, DILG,  
CHIPECO, ROILO GOLEZ,   GENEROSO SENGA, AFP  
DARLENE ANTONINO-   CHIEF OF STAFF, ARTURO  
CUSTODIO, LORETTA   LOMIBAO, CHIEF PNP,   
ANN P. ROSALES, JOSEL                                              Res  
G. VIRADOR, RAFAEL V.   pondents.  
MARIANO, GILBERT C.   x-----------------------------------  
REMULLA, FLORENCIO G.   --------------x  
NOEL, ANA THERESIA   KILUSANG MAYO UNO,  
HONTIVEROS-  
REPRESENTED BY ITS   EDUARDO ERMITA, THE  
CHAIRPERSON ELMER C.   CHIEF OF STAFF, ARMED  
LABOG AND SECRETARY   FORCES OF THE  
GENERAL JOEL   PHILIPPINES, GENEROSO  
 
MAGLUNSOD, NATIONAL  

SENGA, AND THE PNP  

G.R. No. 171400
FEDERATION OF LABOR DIRECTOR GENERAL,  
 
UNIONS � KILUSANG ARTURO LOMIBAO,  
 
MAYO UNO (NAFLU-                                            Res  
 
KMU), REPRESENTED BY pondents.  
 
ITS NATIONAL x-----------------------------------  
 
PRESIDENT, JOSELITO V. --------------x  
 
USTAREZ, ANTONIO C. ALTERNATIVE LAW G.R. No. 171424
 
PASCUAL, SALVADOR T. GROUPS, INC. (ALG),   
 
CARRANZA, EMILIA P.  
 
                                                                             
DAPULANG, MARTIN   Petitioner,  
CUSTODIO, JR., AND  
 
 
- versus -   
ROQUE M. TAN,  

G.R. No. 171489  

                                        
          Petitioners,   EXECUTIVE SECRETARY
 
 
 
  EDUARDO R. ERMITA, LT.
GEN. GENEROSO SENGA,
 

- versus -   
 
 
  AND DIRECTOR
 

  GENERAL ARTURO
 
  LOMIBAO,         
HER EXCELLENCY,
                                             Res
PRESIDENT GLORIA
  pondents.
MACAPAGAL-ARROYO,
  x-----------------------------------
THE HONORABLE
  --------------x
EXECUTIVE SECRETARY,
JOSE ANSELMO I. CADIZ,
FELICIANO M. BAUTISTA, x-----------------------------------
ROMULO R. RIVERA, JOSE --------------x
AMOR M. AMORADO, LOREN B. LEGARDA,
ALICIA A. RISOS-VIDAL,                                        Petiti
FELIMON C. ABELITA III, oner,
MANUEL P. LEGASPI, J.B.  
JOVY C. BERNABE,  
BERNARD L. DAGCUTA, - versus -
ROGELIO V. GARCIA AND  
INTEGRATED BAR OF  
THE PHILIPPINES (IBP),  GLORIA MACAPAGAL-
                                                ARROYO, IN HER
Petitioners,  CAPACITY AS PRESIDENT
  AND COMMANDER-IN-
- versus - CHIEF; ARTURO
  LOMIBAO, IN HIS
  CAPACITY AS DIRECTOR-
HON. EXECUTIVE GENERAL OF THE
SECRETARY EDUARDO PHILIPPINE NATIONAL
ERMITA, GENERAL POLICE (PNP); GENEROSO
GENEROSO SENGA, IN SENGA, IN HIS CAPACITY
HIS CAPACITY AS AFP AS CHIEF OF STAFF OF
CHIEF OF STAFF, AND THE ARMED FORCES OF
DIRECTOR GENERAL THE PHILIPPINES (AFP);
ARTURO LOMIBAO, IN AND EDUARDO ERMITA,
HIS CAPACITY AS PNP IN HIS CAPACITY AS
CHIEF, EXECUTIVE SECRETARY,
                                           Res                                            Res
pondents. pondents.
  
x----------------------------------------------------------------------- for certiorari and prohibition allege that in issuing
----------------------x
 
 
DECISION
 
 
SANDOVAL-GUTIERREZ, J.:
 
All powers need some restraint; practical
adjustments rather than rigid formula are necessary.
[1]
   Superior strength � the use of force � cannot
make wrongs into rights.  In this regard, the courts
should be vigilant in safeguarding the constitutional
rights of the citizens, specifically their liberty.
 
Chief Justice Artemio V. Panganiban�s
philosophy of liberty is thus most relevant.   He said:
�In cases involving liberty, the scales of justice
should weigh heavily against government and in
favor of the poor, the oppressed, the marginalized,
the dispossessed and the weak.�  Laws and actions
that restrict fundamental rights come to the courts
�with a heavy presumption against their
[2]
constitutional validity.�
         These seven (7) consolidated petitions
Presidential Proclamation No. 1017 (PP
1017)  and  General Order No. 5 (G.O. No. 5),
President Gloria Macapagal-Arroyo committed grave
abuse of discretion.  Petitioners contend that
respondent officials of the Government, in their
professed efforts to defend and preserve democratic
institutions, are actually trampling upon the very
freedom guaranteed and protected by the
Constitution.  Hence, such issuances are void for
being unconstitutional.
         Once again, the Court is faced with an age-old
but persistently modern problem.  How does the
Constitution of a free people combine the degree
of liberty, without which, law becomes tyranny, with
the degree of law, without which, liberty becomes
license?[3]
         On February 24, 2006, as the nation celebrated
the 20th Anniversary of theEdsa People Power I,
President Arroyo issued PP 1017 declaring a state of
national emergency, thus:
 
 NOW, THEREFORE, I, Gloria
Macapagal-Arroyo, President of the
Republic of the Philippines and
Commander-in-Chief of the Armed Forces
of the Philippines, by virtue of the powers
vested upon me by Section 18, Article 7 of
the Philippine Constitution which states
that: �The President. . . whenever it
becomes necessary, . . . may call out (the)
armed forces to prevent or suppress. .
.rebellion. . .,� and in my capacity as their
Commander-in-Chief, do hereby
command the Armed Forces of the
Philippines, to maintain law and order
throughout the Philippines, prevent or
suppress all forms of lawless violence as
well as any act of insurrection or
rebellion and to enforce obedience to all
the laws and to all decrees, orders and
regulations promulgated by me
personally or upon my direction; and as
provided in Section 17, Article 12 of the
Constitution do hereby declare a State
of National Emergency.
 
She cited the following facts as bases:
 
WHEREAS, over these past
months, elements in the political
opposition have conspired with
authoritarians of the extreme Left
represented by the NDF-CPP-NPA and
the extreme Right, represented by
military adventurists � the historical
enemies of the democratic Philippine
State � who are now in a tactical alliance
and engaged in a concerted and systematic
conspiracy, over a broad front, to bring
down the duly constituted Government
elected in May 2004;
 
WHEREAS, these conspirators
have repeatedly tried to bring down the
President;
 
WHEREAS, the claims of these
elements have been recklessly magnified
by certain segments of the national
media;
 
WHEREAS, this series of actions is
hurting the Philippine State � by
obstructing governance
including hindering the growth of the
economy and sabotaging the people�s
confidence in government and their
faith in the future of this country;
 
 WHEREAS, these actions are
adversely affecting the economy;
 
WHEREAS, these activities give
totalitarian forces of both the extreme
Left and extreme Right the opening to
intensify their avowed aims to bring
down the democratic Philippine State;
 
WHEREAS, Article 2, Section 4 of
the our Constitution makes the defense and
preservation of the democratic institutions
and the State the primary duty of
Government;
 
WHEREAS, the activities above-
described, their consequences,
ramifications and collateral effects
constitute a clear and present danger to
the safety and the integrity of the
Philippine State and of the Filipino people;
On the same day, the President issued G. O. No.
5 implementing PP 1017, thus:
 
         WHEREAS, over these past months,
elements in the political opposition have
conspired with authoritarians of the
extreme Left, represented by the NDF-
CPP-NPA and the extreme Right,
represented by military adventurists - the
historical enemies of the democratic
Philippine State � and who are now in a
tactical alliance and engaged in a
concerted and systematic conspiracy, over
a broad front, to bring down the duly-
constituted Government elected in May
2004;
            WHEREAS, these conspirators
have repeatedly tried to bring down our
republican government;
 
WHEREAS, the claims of these
elements have been recklessly magnified
by certain segments of the national media;
 
WHEREAS, these series of actions
is hurting the Philippine State by
obstructing governance, including
hindering the growth of the economy and
sabotaging the people�s confidence in the
government and their faith in the future of
this country;
 
WHEREAS, these actions are
adversely affecting the economy;
 
WHEREAS, these activities give
totalitarian forces; of both the extreme Left
and extreme Right the opening to intensify
their avowed aims to bring down the
democratic Philippine State;
 
WHEREAS, Article 2, Section 4 of
our Constitution makes the defense and
preservation of the democratic institutions
and the State the primary duty of
Government;
 
WHEREAS, the activities above-
described, their consequences,
ramifications and collateral effects
constitute a clear and present danger to the
safety and the integrity of the Philippine
State and of the Filipino people;
WHEREAS, Proclamation 1017
date February 24, 2006 has been issued
declaring a State of National Emergency;
NOW, THEREFORE, I GLORIA
MACAPAGAL-ARROYO, by virtue of
the powers vested in me under the
Constitution as President of the Republic
of the Philippines, and Commander-in-
Chief of the Republic of the Philippines,
and pursuant to Proclamation No. 1017
dated February 24, 2006, do hereby call
upon the Armed Forces of the Philippines
(AFP) and the Philippine National Police
(PNP), to prevent and suppress acts of
terrorism and lawless violence in the
country;
 
            I hereby direct the Chief of Staff of
the AFP and the Chief of the PNP, as well
as the officers and men of the AFP and
PNP, to immediately carry out the
necessary and appropriate actions and
measures to suppress and prevent acts
of terrorism and lawless violence.
 
         
On March 3, 2006, exactly one week after the
declaration of a state of national emergency and after
all these petitions had been filed, the President lifted
PP 1017.   She issued Proclamation No. 1021 which
reads:
WHEREAS, pursuant to Section
18, Article VII and Section 17, Article
XII of the Constitution, Proclamation No.
1017 dated February 24, 2006, was
issued declaring a state of national
emergency;
 
            WHEREAS, by virtue of
General Order No.5 and No.6 dated
 February 24, 2006, which were issued on
the basis of Proclamation No. 1017, the
Armed Forces of the Philippines (AFP)
and the Philippine National Police
(PNP), were directed to maintain law and
order throughout the Philippines, prevent
and suppress all form of lawless violence
as well as any act of rebellion and to
undertake such action as may be
necessary;
            WHEREAS, the AFP and PNP
have effectively prevented, suppressed
and quelled the acts lawless violence and
rebellion;
 
            NOW, THEREFORE, I,
GLORIA MACAPAGAL-
ARROYO,President of the Republic of
the Philippines, by virtue of the powers
vested in me by law, hereby declare that
the state of national emergency has
ceased to exist.
 
 
In their presentation of the factual bases of PP
1017 and G.O. No. 5, respondents stated that the
proximate cause behind the executive issuances was
the conspiracy among some military officers, leftist
insurgents of the New People�s Army (NPA), and
some members of the political opposition in a plot to
unseat or assassinate President Arroyo.[4]  They
considered the aim to oust or assassinate the President
and take-over the reigns of government as a clear and
present danger.
During the oral arguments held on March 7,
2006, the Solicitor General specified the facts leading
to the issuance of PP 1017 and            G.O. No.
5.   Significantly, there was no refutation from
petitioners� counsels.
The Solicitor General argued that the intent of
the Constitution is to give full discretionary
powers to the President in determining the necessity
of calling out the armed forces.   He emphasized that
none of the petitioners has shown that PP 1017 was
without factual bases.  While he explained that it is
not respondents� task to state the facts behind the
questioned Proclamation, however, they are
presenting the same, narrated hereunder, for the
elucidation of the issues.
On January 17, 2006, Captain Nathaniel
Rabonza and                    First Lieutenants Sonny
Sarmiento, Lawrence San Juan and Patricio
Bumidang, members of the Magdalo Group indicted
in the Oakwood mutiny, escaped their detention cell
in Fort Bonifacio, Taguig City.   In a public statement,
they vowed to remain defiant and to elude arrest at all
costs.  They called upon the people to �show and
proclaim our displeasure at the sham regime. Let us
demonstrate our disgust, not only by going to the
streets in protest, but also by wearing red bands on
our left arms.� [5]
On February 17, 2006, the authorities got hold
of a document entitled �Oplan Hackle I  � which
detailed plans for bombings and attacks during the
Philippine Military Academy Alumni Homecoming in
Baguio City.   The plot was to assassinate selected
targets including some cabinet members and President
Arroyo herself.[6]   Upon the advice of her security,
President Arroyo decided not to attend the Alumni
Homecoming.  The next day, at the height of the
celebration, a bomb was found and detonated at the
PMA parade ground.  Congressman Peping Cojuangco, President Cory
On February 21, 2006, Lt. San Juan was
recaptured in a communist safehouse in Batangas
province.   Found in his possession were two (2) flash
disks containing minutes of the meetings between
members of the Magdalo Group and the National
People�s Army (NPA), a tape recorder, audio
cassette cartridges, diskettes, and copies of subversive
documents.[7]   Prior to his arrest, Lt. San Juan
announced through DZRH that the �Magdalo�s D-
Day would be on February 24, 2006, the
20th Anniversary of Edsa I.�
On February 23, 2006, PNP Chief Arturo
Lomibao intercepted information that members of the
PNP- Special Action Force were planning to
defect.   Thus, he immediately ordered SAF
Commanding General Marcelino Franco, Jr.
to �disavow� any defection. The latter promptly
obeyed and issued a public statement:  �All SAF
units are under the effective control of responsible
and trustworthy officers with proven integrity and
unquestionable loyalty.� 
On the same day, at the house of former
Aquino�s brother, businessmen and mid-level
government officials plotted moves to bring down the
Arroyo administration.  Nelly Sindayen of TIME
Magazine reported that Pastor Saycon, longtime
Arroyo critic, called a U.S. government official about
his group�s plans if President Arroyo is
ousted.  Saycon also phoned a man code-named Delta.
Saycon identified him as B/Gen. Danilo Lim,
Commander of the Army�s elite Scout Ranger.  Lim
said �it was all systems go for the planned movement
against Arroyo.�[8]
B/Gen. Danilo Lim and Brigade Commander
Col. Ariel Querubin confided to Gen. Generoso
Senga, Chief of Staff of the Armed Forces of the
Philippines (AFP), that a huge number of soldiers
would join the rallies to provide a critical mass and
armed component to the Anti-Arroyo protests to be
held on February 24, 2005.   According to these two
(2) officers, there was no way they could possibly
stop the soldiers because they too, were breaking the
chain of command to join the forces foist to unseat the
President.   However, Gen. Senga has remained
faithful to his Commander-in-Chief and to the chain
of command.  He immediately took custody of B/Gen.
Lim and directed Col. Querubin to return to the
Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification
of political and revolutionary work within the military
and the police establishments in order to forge
alliances with its members and key officials.   NPA
spokesman Gregorio �Ka Roger� Rosal declared:
�The Communist Party and revolutionary movement
and the entire people look forward to the possibility
in the coming year of accomplishing its immediate
task of bringing down the Arroyo regime; of
rendering it to weaken and unable to rule that it will
not take much longer to end it.�[9]
On the other hand, Cesar Renerio, spokesman
for the National Democratic Front (NDF) at North
Central Mindanao, publicly announced: �Anti-
Arroyo groups within the military and police are
growing rapidly, hastened by the economic difficulties
suffered by the families of AFP officers and enlisted
personnel who undertake counter-insurgency
operations in the field.�  He claimed that with the
forces of the national democratic movement, the anti-
Arroyo conservative political parties, coalitions, plus
the groups that have been reinforcing since June 2005,
it is probable that the President�s ouster is nearing
its concluding stage in the first half of 2006.
Respondents further claimed that the bombing
of telecommunication towers and cell sites in Bulacan
and Bataan was also considered as additional factual
basis for the issuance of PP 1017 and G.O. No. 5.   So
is the raid of an army outpost in Benguet resulting in
the death of three (3) soldiers.   And also the directive
of the Communist Party of the Philippines ordering its
front organizations to join 5,000 Metro Manila
radicals and 25,000 more from the provinces in mass
protests.[10]
By midnight of February 23, 2006, the
President convened her security advisers and several
cabinet members to assess the gravity of the
fermenting peace and order situation.   She directed
both the AFP and the PNP to account for all their men
and ensure that the chain of command remains solid
and undivided.   To protect the young students from
any possible trouble that might break loose on the
streets, the President suspended classes in all levels in
the entire National Capital Region.    who were already near the EDSA site were violently
For their part, petitioners cited the events
that followed after the issuance of PP 1017 and
G.O. No. 5.
Immediately, the Office of the President
announced the cancellation of all programs and
activities related to the 20th anniversary celebration
of Edsa People Power I; and revoked the permits to
hold rallies issued earlier by the local governments.
Justice Secretary Raul Gonzales stated that political
rallies, which to the President�s mind were
organized for purposes of destabilization, are
cancelled. Presidential Chief of Staff Michael
Defensor announced that �warrantless arrests and
take-over of facilities, including media, can already
be implemented.�[11]  
Undeterred by the announcements that rallies
and public assemblies would not be allowed, groups
of protesters (members of Kilusang Mayo
Uno [KMU] and National Federation of Labor
Unions-Kilusang Mayo Uno [NAFLU-KMU]),
marched from various parts of Metro Manila with the
intention of converging at the EDSA shrine.   Those
dispersed by huge clusters of anti-riot police.   The
well-trained policemen used truncheons, big fiber
glass shields, water cannons, and tear gas to stop and
break up the marching groups, and scatter the massed
participants. The same police action was used against
the protesters marching forward to Cubao, Quezon
City and to the corner of Santolan Street and
EDSA.   That same evening, hundreds of riot
policemen broke up an EDSA celebration rally held
along Ayala Avenue and Paseo de Roxas Street in
Makati City.[12]   A few minutes after the search and seizure at
According to petitioner Kilusang Mayo Uno,
the police cited PP 1017 as the ground for the
dispersal of their assemblies.
During the dispersal of the rallyists along
EDSA, police arrested (without warrant) petitioner
Randolf S. David, a professor at the University of the
Philippines and newspaper columnist. Also arrested
was his companion, Ronald Llamas, president of
party-list Akbayan.  would not follow �standards set by the government
At around 12:20 in the early morning of
February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the
PNP, on the basis of PP 1017 and G.O. No. 5, raided
the Daily Tribune offices in Manila.   The raiding
team confiscated news stories by reporters,
documents, pictures, and mock-ups of the Saturday
issue.   Policemen from Camp Crame in Quezon City
were stationed inside the editorial and business offices
of the newspaper; while policemen from the Manila
Police District were stationed outside the building.
[13]
        
the Daily Tribune offices, the police surrounded the
premises of another pro-opposition paper, Malaya,
and its sister publication, the tabloid Abante.
The raid, according to Presidential Chief of
Staff Michael Defensor,  is�meant to show a
�strong presence,� to tell media outlets not to
connive or do anything that would help the rebels in
bringing down this government.�   The PNP warned
that it would take over any media organization that
during the state of national emergency.�   Director
General Lomibao stated that �if they do not follow
the standards � and the standards are - if they would
contribute to instability in the government, or if they
do not subscribe to what is in General Order No. 5
and Proc. No. 1017 � we will recommend a
�takeover.��  National Telecommunications�
Commissioner Ronald Solis urged television and
radio networks to �cooperate�with the government
for the duration of the state of national
emergency.    He asked for �balanced
reporting� from broadcasters when covering the public forum at the Sulo Hotel in Quezon City.   But
events surrounding the coup attempt foiled by the his two drivers, identified as Roel and Art, were taken
government.   He warned that his agency will not into custody.
hesitate to recommend the closure of any broadcast
outfit that violates rules set out for media coverage Retired Major General Ramon Monta�o,
when the national security is threatened.[14] former head of the Philippine Constabulary, was
arrested while with his wife and golfmates at the
Also, on February 25, 2006, the police arrested Orchard Golf and Country Club in Dasmari�as,
Congressman Crispin Beltran, representing Cavite.
the Anakpawis Party and Chairman of Kilusang Mayo
Uno (KMU), while leaving his farmhouse in Attempts were made to
Bulacan.    The police showed a warrant for his arrest arrest Anakpawis Representative Satur Ocampo,
dated 1985. Beltran�s lawyer explained that the Representative Rafael Mariano, Bayan
warrant, which stemmed from a case of inciting to Muna Representative Teodoro Casi�o and Gabriela
rebellion filed during the Marcos regime, had long Representative Liza Maza.   Bayan
been quashed.   Beltran, however, is not a party in any Muna Representative Josel Virador was arrested at
of these petitions. the PAL Ticket Office in Davao City.  Later, he was
turned over to the custody of the House of
When members of petitioner KMU went to Representatives where the �Batasan 5� decided to
Camp Crame to visit Beltran, they were told they stay indefinitely.     
could not be admitted because of PP 1017 and G.O.
No. 5.   Two members were arrested and detained, Let it be stressed at this point that the alleged
while the rest were dispersed by the police. violations of the rights of Representatives Beltran,
Satur Ocampo, et al., are not being raised in these
Bayan Muna Representative Satur Ocampo petitions.
eluded arrest when the police went after him during a
  On March 3, 2006, President Arroyo issued PP
1021 declaring that the state of national emergency
has ceased to exist.
In the interim, these seven (7) petitions
challenging the constitutionality of PP 1017 and G.O.
No. 5 were filed with this Court against the above-
named respondents.  Three (3) of these petitions
impleaded President Arroyo as respondent.
         In G.R. No. 171396, petitioners Randolf S.
David, et al. assailed PP 1017 on the grounds
that (1) it encroaches on the emergency powers of
Congress; (2) it is a subterfuge to avoid the
constitutional requirements for the imposition of
martial law; and (3) it violates the constitutional
guarantees of freedom of the press, of speech and of
assembly.
         In G.R. No. 171409, petitioners Ninez Cacho-
Olivares and TribunePublishing Co., Inc. challenged
the CIDG�s act of raiding the Daily Tribuneoffices
as a clear case of �censorship� or �prior
restraint.�   They also claimed that the term
�emergency� refers only to tsunami, typhoon,
hurricane and similar occurrences, hence, there is
�absolutely no emergency� that warrants the
issuance of PP 1017.  
   In G.R. No. 171485, petitioners herein are
Representative Francis Joseph G. Escudero, and
twenty one (21) other members of the House of
Representatives, including Representatives Satur
Ocampo, Rafael Mariano, Teodoro Casi�o, Liza
Maza, and Josel Virador.   They asserted that PP
1017 and G.O. No. 5 constitute �usurpation of
legislative powers�; �violation of freedom of
expression� and �a declaration of martial
law.�   They alleged that President Arroyo
�gravely abused her discretion in calling out the
armed forces without clear and verifiable factual
basis of the possibility of lawless violence and a
showing that there is necessity to do so.�
      In G.R. No. 171483, petitioners KMU,
NAFLU-KMU, and their members averred that PP
1017 and G.O. No. 5 are unconstitutional
because (1) they arrogate unto President Arroyo the
power to enact laws and decrees; (2) their issuance
was without factual basis; and (3) they violate
freedom of expression and the right of the people to
peaceably assemble to redress their grievances.
 In G.R. No. 171400, petitioner Alternative Law
Groups, Inc. (ALGI) alleged that PP 1017 and G.O.
No. 5 are unconstitutional because they
violate  (a)  Section 4[15] of Article II, (b) Sections 1,
[16]
 2,[17] and 4[18]  of Article III, (c)Section 23[19] of
Article VI,  and  (d)  Section 17[20] of Article XII of
the Constitution.           In respondents� Consolidated Comment, the
In G.R. No. 171489, petitioners Jose Anselmo
I. Cadiz et al., alleged that PP 1017 is an �arbitrary
and unlawful exercise by the President of her Martial
Law powers.�   And assuming that PP 1017 is not
really a declaration of Martial Law, petitioners argued
that �it amounts to an exercise by the President of
emergency powers without congressional
approval.�  In addition, petitioners asserted that PP
1017 �goes beyond the nature and function of a
proclamation as defined under the Revised
Administrative Code.�
And lastly, in G.R. No.
171424, petitioner Loren B. Legarda maintained that
PP 1017 and G.O. No. 5 are �unconstitutional for
being violative of the freedom of expression, including
its cognate rights such as freedom of the press and the
right to access to information on matters of public
concern, all guaranteed under Article III, Section 4 of
the 1987 Constitution.�  In this regard, she stated
that these issuances prevented her from fully
prosecuting her election protest pending before the
Presidential Electoral Tribunal. 
Solicitor General countered that: first, the petitions
should be dismissed for
being             moot; second,petitioners in G.R. Nos.
171400 (ALGI),  171424 (Legarda), 171483 (KMU et
al.), 171485 (Escudero et al.) and 171489 (Cadiz et
al.) have no legal standing;  third, it is not necessary
for petitioners to implead President Arroyo as
respondent;  fourth,  PP 1017 has constitutional and
legal basis; and fifth, PP 1017 does not violate the
people�s right to free expression and redress of
grievances.
         On March 7, 2006, the Court conducted oral
arguments and heard the parties on the above
interlocking issues which may be summarized as
follows:
                    A.    PROCEDURAL:
 1)    Whether the issuance of PP
1021 renders the petitions moot and
academic.
2)    Whether petitioners
in 171485 (Escudero et al.), G.R. Nos.
171400 (ALGI), 171483 (KMU et
al.), 171489 (Cadiz et
and 171424 (Legarda) have
standing.
                  B.      SUBSTANTIVE:
1)    Whether the Supreme Court
can review the factual bases of PP 1017.
2)    Whether PP 1017 and G.O.
No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge
 
A.            PROCEDURAL
 
         First, we must resolve the procedural
roadblocks.
I- Moot and Academic Principle
         One of the greatest contributions of the
American system to this country is the concept of
judicial review enunciated in Marbury v. Madison.
[21]
 This concept rests on the extraordinary simple
foundation --
al.),          The Constitution is the supreme law.
legal It was ordained by the people, the ultimate
source of all political authority. It confers
limited powers on the national
government. x x x If the government
consciously or unconsciously oversteps
these limitations there must be some
authority competent to hold it in
control, to thwart its unconstitutional
attempt, and thus to vindicate and
preserve inviolate the will of the people
as expressed in the Constitution. This
power the courts exercise. This is the
beginning and the end of the theory of
judicial review.[22]
 
         But the power of judicial review does not repose
upon the courts a �self-starting
[23]
capacity.�   Courts may exercise such power only
when the following requisites are present: first, there
must be an actual case or
controversy; second,petitioners have to raise a
question of constitutionality; third, the constitutional would be of no practical use or value.[27]  Generally,
question must be raised at the earliest opportunity; courts decline jurisdiction over such case[28] or dismiss
and fourth, the decision of the constitutional question it on ground of mootness.[29]   
must be necessary to the determination of the case
itself.[24]   The Court holds that President Arroyo�s
issuance of PP 1021 did not render the present
Respondents maintain that the first and second petitions moot and academic.   During the eight (8)
requisites are absent, hence, we shall limit our days that PP 1017 was operative, the police officers,
discussion thereon. according to petitioners, committed illegal acts in
implementing it.  Are PP 1017 and G.O. No. 5
An actual case or controversy involves a constitutional or valid?  Do they justify these
conflict of legal right, an opposite legal claims alleged illegal acts?  These are the vital issues that
susceptible of judicial resolution.  It is �definite and must be resolved in the present petitions.  It must be
concrete, touching the legal relations of parties having stressed that �an unconstitutional act is not a law,
adverse legal    interest;� a real and substantial it confers no rights, it imposes no duties, it affords
controversy admitting of specific relief.[25]  The no protection; it is in legal contemplation,
Solicitor General refutes the existence of such actual inoperative.�[30]
case or controversy, contending that the present
petitions were rendered �moot and academic� by The �moot and academic� principle is not a
President Arroyo�s issuance of PP 1021.  magical formula that can automatically dissuade the
courts in resolving a case.  Courts will decide cases,
Such contention lacks merit.  otherwise moot and academic, if:  first, there is a
grave violation of the Constitution;[31] second, the
A moot and academic case is one that ceases to exceptional character of the situation and the
present a justiciable controversy by virtue of paramount public interest is involved;[32] third, when
supervening events,[26] so that a declaration thereon constitutional issue raised requires formulation of
controlling principles to guide the bench, the bar, and
the public;[33] and fourth, the case is capable of
repetition yet evading review.[34]
All the foregoing exceptions are present here
and justify this Court�s assumption of jurisdiction
over the instant petitions.  Petitioners alleged that the
issuance of PP 1017 and G.O. No. 5 violates the
Constitution.  There is no question that the issues
being raised affect the public�s interest, involving as
they do the people�s basic rights to freedom of
expression, of assembly and of the press.   Moreover,
the Court has the duty to formulate guiding and
controlling constitutional precepts, doctrines or
rules.  It has the symbolic function of educating the
bench and the bar, and in the present petitions, the
military and the police, on the extent of the
protection given by constitutional guarantees.[35]  And
lastly, respondents� contested actions are capable of
repetition.  Certainly, the petitions are subject to
judicial    review.
In their attempt to prove the alleged mootness
of this case, respondents cited Chief Justice Artemio
V. Panganiban�s Separate Opinion in Sanlakas v.
Executive Secretary.[36]   However, they failed to take
into account the Chief Justice�s very statement that
an otherwise �moot� case may still be decided
�provided the party raising it in a proper case has
been and/or continues to be prejudiced or damaged
as a direct result of its issuance.�   The present case
falls right within this exception to the mootness rule
pointed out by the Chief Justice. 
II- Legal Standing
In view of the number of petitioners suing in
various personalities, the Court deems it imperative to
have a more than passing discussion on legal standing
or locus standi.
 
         Locus standi is defined as �a right of
appearance in a court of justice on a given
question.�[37]   In private suits, standing is governed
by the �real-parties-in interest� rule as contained in
Section 2, Rule 3 of the 1997 Rules of Civil
Procedure, as amended. It provides that �every
action must be prosecuted or defended in the name
of the real party in interest.�  Accordingly, the
�real-party-in interest� is �the party who stands
to be benefited or injured by the judgment in the
suit or the party entitled to the avails of the
suit.�[38]Succinctly put, the plaintiff�s standing is
based on his own right to the relief sought.
 
 
         The difficulty of determining locus standi arises
in public suits.         Here, the plaintiff who asserts a
�public right� in assailing an allegedly illegal
official action, does so as a representative of the
general public.   He may be a person who is affected
no differently from any other person.  He could be
suing as a �stranger,� or in the category of a
�citizen,� or �taxpayer.�  In either case, he has
to adequately show that he is entitled to seek judicial
protection.   In other words, he has to make out a
sufficient interest in the vindication of the public
order and the securing of relief as a �citizen� or
�taxpayer.
         Case law in most jurisdictions now allows both
�citizen� and �taxpayer� standing in public
actions.   The distinction was first laid down
in Beauchamp v. Silk,[39]  where it was held that the
plaintiff in a taxpayer�s suit is in a different category
from the plaintiff in a citizen�s suit.  In the former,
the plaintiff is affected by the expenditure of public
funds, while in the latter, he is but the mere
instrument of the public concern.   As held by the
New York Supreme Court in People ex rel Case v.
Collins:[40]   �In matter of mere public right,
however�the people are the real parties�It is at
least the right, if not the duty, of every citizen to
interfere and see that a public offence be properly
pursued and punished, and that a public grievance
be remedied.�   With respect to taxpayer�s
suits, Terr v. Jordan[41]  held that �the right of a
citizen and a taxpayer to maintain an action in
courts to restrain the unlawful use of public funds
to his injury cannot be denied.�
         However, to prevent just about any person from
seeking judicial interference in any official policy or
act with which he disagreed with, and thus hinders the
activities of governmental agencies engaged in public
service, the United State Supreme Court laid down the
more stringent �direct injury� test in Ex Parte
Levitt,[42] later reaffirmed in Tileston v. Ullman.
[43]
  The same Court ruled that for a private individual
to invoke the judicial power to determine the validity
of an executive or legislative action, he must show
that he has sustained a direct injury as a result of
that action, and it is not sufficient that he has a
general interest common to all members of the
public.  suit.  Indeed, there is a chain of cases where this
This Court adopted the �direct injury�
test in our jurisdiction.   In People v. Vera,[44]  it held
that the person who impugns the validity of a statute
must have �a personal and substantial interest in
the case such that he has sustained, or will sustain
direct injury as a result.�  The Vera doctrine was
upheld in a litany of cases, such as, Custodio v.
President of the Senate,[45]Manila Race Horse
Trainers� Association v. De la Fuente ,[46]  Pascual v.
Secretary of Public Works[47] and Anti-Chinese
League of the Philippines v. Felix.[48]
However, being a mere procedural technicality,
the requirement of locus standi may be waived by the
Court in the exercise of its discretion. This was done
in the 1949 Emergency Powers Cases, Araneta v.
Dinglasan,[49] where the �transcendental
importance� of the cases prompted the Court to act
liberally.   Such liberality was neither a rarity nor
accidental.   In Aquino v. Comelec,[50]  this  Court
resolved to pass upon the issues raised due to the
�far-reaching implications� of the petition
notwithstanding its categorical statement that
petitioner therein had no personality to file the
liberal policy has been observed, allowing ordinary
citizens, members of Congress, and civic
organizations to prosecute actions involving the
constitutionality or validity of laws, regulations and
rulings.[51]  
         Thus, the Court has adopted a rule that even
where the petitioners have failed to show direct injury,
they have been allowed to sue under the principle of
�transcendental importance.� Pertinent are the
following cases:
(1) Chavez v. Public Estates
Authority,[52] where the Court ruled
that the enforcement of the
constitutional right to information and
the equitable diffusion of natural
resources are matters of
transcendental importance which
clothe the petitioner with locus standi; 
 
(2) Bagong Alyansang Makabayan
v. Zamora,[53]  wherein the Court held
that �given the transcendental
importance of the issues involved, the
 Court may relax the standing (1)                   the cases involve constitutional issues; 
requirements and allow the suit to
prosper despite the lack of direct (2)                   for taxpayers, there must be a claim of
injury to the parties seeking judicial illegal disbursement of public funds or that
review� of the Visiting Forces the tax measure is unconstitutional;
Agreement;
  (3)                   for voters, there must be a showing of
(3) Lim v. Executive Secretary, obvious interest in the validity of the
[54]
  while the Court noted that the election law in question;
petitioners may not file suit in their
capacity as taxpayers absent a showing (4)                   for concerned citizens, there must be
that �Balikatan 02-01� involves the a showing that the issues raised are of
exercise of Congress� taxing or transcendental importance which must be
spending powers, it               reiterated its settled early; and
ruling in Bagong Alyansang Makabayan
v. Zamora,[55]  that in cases of (5)                    for legislators, there must be a claim
transcendental importance, the cases that the official action complained of
must be settled promptly and infringes upon their prerogatives as
definitely and standing requirements legislators. 
may be relaxed.
Significantly, recent decisions show a certain
 
toughening in the Court�s attitude toward legal
By way of summary, the following rules may
standing.   
be culled from the  cases decided by this
Court.   Taxpayers, voters, concerned citizens, and
         In Kilosbayan, Inc. v. Morato,[56] the Court ruled
legislators may be accorded standing to sue, provided
that the status of Kilosbayan as a people�s
that the following requirements are met:
organization does not give it the requisite personality
to question the validity of the on-line lottery contract,
more so where it does not raise any issue of
constitutionality.  Moreover, it cannot sue as a
taxpayer absent any allegation that public funds are
being misused. Nor can it sue as a concerned citizen
as it does not allege any specific injury it has suffered.
         In Telecommunications and Broadcast
Attorneys of the Philippines, Inc. v. Comelec,[57]  the
Court reiterated the �direct injury� test with respect
to concerned citizens� cases involving constitutional
issues.   It held that �there must be a showing that
the citizen personally suffered some actual or
threatened injury arising from the alleged illegal
official act.�
In Lacson v. Perez,[58] the Court ruled that one
of the petitioners, Laban ng Demokratikong
Pilipino (LDP), is not a real party-in-interest as it had
not demonstrated any injury to itself or to its leaders,
members or supporters.             In G.R. No.
In Sanlakas v. Executive Secretary,[59] the Court
ruled that only the petitioners who are members of
Congress have standing to sue, as they claim that the
President�s declaration of a state of rebellion is a
usurpation of the emergency powers of Congress,
thus impairing their legislative powers. As to
petitioners Sanlakas, Partido Manggagawa, and
Social Justice Society, the Court declared them to be
devoid of standing, equating them with the LDP
in Lacson.  
Now,  the application of the above principles to
the present petitions. 
The locus standi of petitioners in G.R. No.
171396, particularly David and Llamas, is beyond
doubt.   The same holds true with petitioners in G.R.
No. 171409, Cacho-Olivares and Tribune Publishing
Co. Inc.  They alleged �direct injury� resulting
from �illegal arrest� and �unlawful search�
committed by police operatives pursuant to PP
1017.  Rightly so, the Solicitor General does not
question their legal standing.
171485, the opposition
Congressmen alleged there was usurpation of
legislative powers.   They also raised the issue of
whether or not the concurrence of Congress is
necessary whenever the alarming powers incident to
Martial Law are used.   Moreover, it is in the interest
of justice that those affected by PP 1017 can be
represented by their Congressmen in bringing to the
attention of the Court the alleged violations of their
basic rights.
         In G.R. No. 171400, (ALGI), this Court applied
the liberality rule in Philconsa v. Enriquez,
[60]
 Kapatiran Ng Mga Naglilingkod sa Pamahalaan
ng Pilipinas, Inc. v. Tan,[61] Association of Small
Landowners in the Philippines, Inc. v. Secretary of
Agrarian Reform,[62] Basco v. Philippine Amusement
and Gaming Corporation,[63] and Ta�ada v. Tuvera,
[64]
  that when the issue concerns a public right, it is
sufficient that the petitioner is a citizen and has an
interest in the execution of the laws.
In G.R. No. 171483,  KMU�s assertion that
PP 1017 and G.O. No. 5 violated its right to peaceful
assembly may be deemed sufficient to give it legal
standing.  Organizations may be granted standing
to assert the rights of their members.[65]    We take
judicial notice of the announcement by the Office of
the President banning all rallies and canceling all
permits for public assemblies following the issuance
of PP 1017 and G.O. No. 5.
In G.R. No. 171489, petitioners, Cadiz et
al., who are national officers of the Integrated Bar of
the Philippines (IBP) have no legal standing, having
failed to allege any direct or potential injury which the
IBP as an institution or its members may suffer as a
consequence of the issuance of PP No. 1017 and G.O.
No. 5.  In Integrated Bar of the Philippines v.
Zamora,[66]  the Court held that the mere invocation
by the IBP of its duty to preserve the rule of law and
nothing more, while undoubtedly true, is not sufficient
to clothe it with standing in this case.   This is too
general an interest which is shared by other groups
and the whole citizenry.  However, in view of the
transcendental importance of the issue, this Court
declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no
personality as a taxpayer to file the instant petition as
there are no allegations of illegal disbursement of
public funds.   The fact that she is a former Senator is
of no consequence.   She can no longer sue as a
legislator on the allegation that her prerogatives as a
lawmaker have been impaired by PP 1017 and G.O.
No. 5.    Her claim that she is a media personality will
not likewise aid her because there was no showing
that the enforcement of these issuances prevented her
from pursuing her occupation.  Her submission that
she has pending electoral protest before the
Presidential Electoral Tribunal is likewise of no
relevance.  She has not sufficiently shown that PP
1017 will affect the proceedings or result of her
case.  But considering once more the transcendental
importance of the issue involved, this Court may relax
the standing rules.
It must always be borne in mind that the
question of locus standi is but corollary to the bigger
question of proper exercise of judicial power. This is
the underlying legal tenet of the �liberality
doctrine� on legal standing.   It cannot be doubted
that the validity of PP No. 1017 and G.O.  No. 5 is a
judicial question which is of paramount importance to
the Filipino people.   To paraphrase Justice Laurel, the
whole of Philippine society now waits with bated
breath the ruling of this Court on this very critical
matter. The petitions thus call for the application of
the �transcendental importance� doctrine, a
relaxation of the standing requirements for the
petitioners in the �PP 1017 cases.�    from office only in the mode provided by law and that
 
This Court holds that all the petitioners herein
have locus standi. 
 
Incidentally, it is not proper to implead
President Arroyo as respondent.  Settled is the
doctrine that the President, during his tenure of office
or actual incumbency,[67] may not be sued in any civil
or criminal case, and there is no need to provide for it
in the Constitution or law.  It will degrade the dignity
of the high office of the President, the Head of State,
if he can be dragged into court litigations while
serving as such.   Furthermore, it is important that he
be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the
performance of his official duties and
functions.  Unlike the legislative and judicial branch,
only one constitutes the executive branch and
anything which impairs his usefulness in the discharge
of the many great and important duties imposed upon
him by the Constitution necessarily impairs the
operation of the Government.  However, this does not
mean that the President is not accountable to
anyone.  Like any other official, he remains
accountable to the people[68] but he may be removed
is by impeachment.[69]
B.  SUBSTANTIVE the members of the Court were unanimous in the
conviction that the Court has the authority to inquire
I. Review of Factual Bases       into the existence of factual bases in order to
determine their constitutional sufficiency.  From the
principle of separation of powers, it shifted the
 

Petitioners maintain that PP 1017 has no factual

basis.   Hence, it was not �necessary� for President focus to the system of checks and balances,
Arroyo to issue such Proclamation.    �under which the President is supreme, x x x
only if and when he acts within the sphere allotted
The issue of whether the Court may review the to him by the Basic Law, and             the authority
factual bases of the President�s exercise of his to determine whether or not he has so acted is
Commander-in-Chief power has reached its distilled vested            in the Judicial Department, which in
point - from the indulgent days of Barcelon v. this respect, is, in                                 turn,
Baker[70]                            andMontenegro v. constitutionally supreme.�[76]  In 1973, the
[71]
Castaneda  to the volatile era of Lansang unanimous Court of Lansang was divided in Aquino
v.              Garcia,[72]Aquino, Jr. v. Enrile,[73] and v. Enrile.[77]  There, the Court
Garcia-Padilla v. Enrile.[74]  The tug-of-war always was                      almost evenly divided on the issue
cuts across the line defining �political questions,� of whether the validity of
particularly those questions �in regard to which full the                         imposition of Martial Law is a
discretionary authority has been delegated to the political or justiciable question.[78]   Then
legislative or executive branch of the came Garcia-Padilla v. Enrile which greatly
[75]
government.�   Barcelon and Montenegro were in diluted Lansang.  It declared that there is a need to re-
unison in declaring that the authority to decide examine the latter case, ratiocinating that �in times
whether an exigency has arisen belongs to the of war or national emergency, the President must
President and his decision is final and conclusive on be given absolute control for the very life of the
the courts.  Lansang took the opposite view. There, nation and the government is in great peril.  The
President, it intoned, is answerable only to his
conscience, the People, and God.�[79]   the courts of justice to review what was before a
The Integrated Bar of the Philippines v.
Zamora[80] -- a recent case most pertinent to these
cases at bar -- echoed a principle similar
to Lansang.  While the Court considered the
President�s �calling-out� power as a discretionary
power solely vested in his wisdom, it stressed that
�this does not prevent an examination of whether
such power was exercised within permissible
constitutional limits or whether it was exercised in
a manner constituting grave abuse of
discretion.�    This ruling is mainly a result of the
Court�s reliance on Section 1, Article VIII of 1987
Constitution which fortifies the authority of the courts
to determine in an appropriate action the validity of
the acts of the political departments.   Under the new
definition of judicial power, the courts are authorized
not only �to settle actual controversies involving
rights which are legally demandable and
enforceable,� but also �to determine whether or
not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the
government.�   The latter part of the authority
represents a broadening of judicial power to enable
forbidden territory,    to wit, the discretion of the
political departments of the government.[81]   It speaks
of judicial prerogative not only in terms of power but
also of duty.[82]  
         
As to how the Court may inquire into the
President�s exercise of power, Lansang adopted the
test that �judicial inquiry can go no further than to
satisfy the Court not that the President�s decision
is correct,� but that �the President did not
act arbitrarily.� Thus, the standard laid down is not
correctness, but arbitrariness.[83]  In Integrated Bar of
the Philippines, this Court further ruled that �it is
incumbent upon the petitioner to show that the
President�s decision is totally bereft of factual
basis� and that if he fails, by way of proof, to
support his assertion, then �this Court cannot
undertake an independent investigation beyond the
pleadings.� 
 
 Petitioners failed to show that President
Arroyo�s exercise of the calling-out power, by
issuing PP 1017, is totally bereft of factual basis.  A
reading of the Solicitor General�s Consolidated
Comment and Memorandum shows a detailed
narration of the events leading to the issuance of PP
1017, with supporting reports forming part of the
records.  Mentioned are the escape of the Magdalo
Group, their audacious threat of the Magdalo D-Day,
the defections in the military, particularly in the
Philippine Marines, and the reproving statements from
the communist leaders. There was also the Minutes of
the Intelligence Report and Security Group of the
Philippine Army showing the growing alliance
between the NPA and the military.   Petitioners
presented nothing to refute such events.  Thus, absent
any contrary allegations, the Court is convinced that
the President was justified in issuing PP 1017 calling
for military aid.
Indeed, judging the seriousness of the incidents,
President Arroyo was not expected to simply fold her
arms and do nothing to prevent or suppress what she
believed was lawless violence, invasion or
rebellion.   However, the exercise of such power or
duty must not stifle liberty.
 
II. Constitutionality of PP 1017 and G.O. No. 5
 
Doctrines of Several Political Theorists 
on the Power of the President 
in Times of Emergency
 
 
This case brings to fore a contentious subject --
the power of the President in times of emergency.   A
glimpse at the various political theories relating to this
subject provides an adequate backdrop for our ensuing
discussion.
 
John Locke, describing the architecture of civil
government, called upon the English doctrine of
prerogative to cope with the problem of
emergency.   In times of danger to the nation, positive
law enacted by the legislature might be inadequate or
even a fatal obstacle to the promptness of action
necessary to avert catastrophe.  In these situations, the
Crown retained a prerogative �power to act

according to discretion for the public good,
without the proscription of the law and sometimes
even against it.�[84]  But Locke recognized that this
moral restraint might not suffice to avoid abuse of
prerogative powers.   Who shall judge the need for
resorting to the prerogative and how may its abuse
be avoided?  Here, Locke readily admitted defeat,
suggesting that �the people have no other remedy
in this, as in all other cases where they have no
judge on earth, but to appeal to Heaven.�[85]   
 
 
Jean-Jacques Rousseau also assumed the need
for temporary suspension of democratic processes of
government in time of emergency.  According to
him:  avoid perpetuation of the dictatorship.[87]
The inflexibility of the laws, which
prevents them from adopting themselves to
circumstances, may, in certain cases, render
them disastrous and make them bring about, at a
time of crisis, the ruin of the State� 
 
It is wrong therefore to wish to make
political institutions as strong as to render it
impossible to suspend their operation. Even
Sparta allowed its law to lapse... 
 
If the peril is of such a kind that the
paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a
supreme lawyer, who shall silence all the laws
and suspend for a moment the sovereign
authority. In such a case, there is no doubt about
the general will, and it clear that the people�s
first intention is that the State shall not perish.[86]
 
 
Rosseau did not fear the abuse of the
emergency dictatorship or �supreme magistracy�
as he termed it.  For him, it would more likely be
cheapened by �indiscreet use.�   He was unwilling
to rely upon an �appeal to heaven.� Instead, he
relied upon a tenure of office of prescribed duration to
 
John Stuart Mill concluded his ardent defense
of representative government: �I am far from
condemning, in cases of extreme necessity, the
assumption of absolute power in the form of a
temporary dictatorship.�[88]  
 
 Nicollo Machiavelli�s view of emergency
powers, as one element in the whole scheme of
limited government, furnished an ironic contrast to the
Lockean theory of prerogative.   He recognized and
attempted to bridge this chasm in democratic political
theory,  thus:
            Now, in a well-ordered society, it
should never be necessary to resort to extra
�constitutional measures; for although
they may for a time be beneficial, yet the
precedent is pernicious, for if the practice
is once established for good objects, they
will in a little while be disregarded under
that pretext but for evil purposes. Thus, no
republic will ever be perfect if she has not
by law provided for everything, having a
remedy for every emergency and fixed
rules for applying it.[89]  
 
 
         Machiavelli � in contrast to Locke, Rosseau
and Mill � sought to incorporate into the constitution
a regularized system of standby emergency powers to
be invoked with suitable checks and controls in time
of national danger.  He attempted forthrightly to meet
the problem of combining a capacious reserve of
power and speed and vigor in its application in time of
emergency, with effective constitutional restraints.[90]
         
Contemporary political theorists, addressing
themselves to the problem of response to emergency
by constitutional democracies, have employed the
doctrine of constitutional dictatorship.[91] Frederick M.
Watkins saw �no reason why absolutism should
not be used as a means for the defense of liberal
institutions,� provided it �serves to protect
established institutions from the danger of
permanent injury in a period of temporary
emergency and is followed by a prompt return to
the previous forms of political life.�[92]   He
recognized the two (2) key elements of the problem of
emergency governance, as well as all constitutional
governance: increasing administrative powers of
the executive, while at the same time �imposing
limitation upon that power.�[93]   Watkins placed
his real faith in a scheme of constitutional
dictatorship.  These are the conditions of success of
such a dictatorship:  �The period of dictatorship
must be relatively short�Dictatorship should
always be strictly legitimate in character�Final
authority to determine the need for dictatorship in
any given case must never rest with the dictator
himself��[94] and the objective of such an
emergency dictatorship should be �strict political
conservatism.�   States, reverted to a description of a scheme of
 
Carl J. Friedrich cast his analysis in terms
similar to those of Watkins.[95]   �It is a problem of
concentrating power � in a government where power
has consciously been divided � to cope with�
situations of unprecedented magnitude and
gravity.  There must be a broad grant of powers,
subject to equally strong limitations as to who shall
exercise such powers, when, for how long, and to
what end.�[96]  Friedrich, too, offered criteria for
judging the adequacy of any of scheme of emergency
powers, to wit: �The emergency executive must be
appointed by constitutional means � i.e., he must
be legitimate; he should not enjoy power to
determine the existence of an emergency;
emergency powers should be exercised under a
strict time limitation; and last, the objective of
emergency action must be the defense of the
constitutional order.�[97]   initiate a constitutional dictatorship
 
Clinton L. Rossiter, after surveying the history
of the employment of emergency powers in Great
Britain, France, Weimar, Germany and the United
�constitutional dictatorship� as solution to the
vexing problems presented by emergency.[98]   Like
Watkins and Friedrich, he stated a priori the
conditions of success of  the  �constitutional
dictatorship,� thus:
1) No general regime or
particular institution of
constitutional dictatorship should be
initiated unless it is necessary or
even indispensable to the
preservation of the State and its
constitutional order�
 
2)   �the decision to institute
a constitutional dictatorship should
never be in the hands of the man or
men who will constitute the
dictator�
 
3)   No government should
without making specific provisions
for its termination�
  
4)   �all uses of emergency
powers and all readjustments in the
organization of the government
should be effected in pursuit  of
constitutional or legal
requirements�
 
5)   � no dictatorial
institution should be adopted, no
right invaded, no regular procedure
altered any more than is absolutely
necessary for the conquest of the
particular crisis . . .
 
6)   The measures adopted in
the prosecution of the a complete return as possible to the
constitutional dictatorship should
never be permanent in character or
effect�
 
7)   The dictatorship should
be carried on by persons
representative of every part of the
citizenry interested in the defense of
the existing constitutional order. . .
 
8)   Ultimate responsibility
should be maintained for every
action taken under a constitutional
dictatorship. . .
 
9)   The decision to terminate
a constitutional dictatorship, like the
decision to institute one should
never be in the hands of the man or
men who constitute the dictator. . .
 
10) No constitutional
dictatorship should extend beyond
the termination of the crisis for
which it was instituted�
 
11) �the termination of the
crisis must be followed by a
political and governmental
conditions existing prior to the
initiation of the constitutional
dictatorship�[99]  
         
 
Rossiter accorded to legislature a far greater role in
the oversight exercise of emergency powers than did
Watkins.   He would secure to Congress final
responsibility for declaring the existence or
termination of an emergency, and he places great faith
in the effectiveness of congressional investigating McIlwain. While it does not by any means
committees.[100] necessarily exclude some indeterminate
limitations upon the substantive powers of
         Scott and Cotter, in analyzing the above
government, full emphasis is placed
contemporary theories in light of recent experience, upon procedural limitations,
were one in saying that, �the suggestion that and political responsibility. McIlwain
democracies surrender the control of government clearly recognized the need to repose
to an authoritarian ruler in time of grave danger to adequate power in government. And in
the nation is not based upon sound constitutional discussing the meaning of
theory.� To appraise emergency power in terms of constitutionalism, he insisted that
the historical and proper test of
constitutional dictatorship serves merely to distort the constitutionalism was the existence of
problem and hinder realistic analysis.  It matters not adequate processes for keeping
whether the term �dictator� is used in its normal government responsible.  He refused to
sense (as applied to authoritarian rulers) or is equate constitutionalism with the
employed to embrace all chief executives enfeebling of government by an
administering emergency powers. However used, exaggerated emphasis upon separation of
powers and substantive limitations on
�constitutional dictatorship� cannot be divorced
governmental power. He found that the
from the implication of suspension of the processes of really effective checks on despotism have
constitutionalism.   Thus, they favored instead the consisted not in the weakening of
�concept of constitutionalism� articulated by government but, but rather in the limiting
Charles H. McIlwain: of it; between which there is a great and
  very significant difference. In associating
A concept of constitutionalism constitutionalism with �limited� as
which is less misleading in the analysis of distinguished from �weak�
problems of emergency powers, and which government, McIlwain  meant
is consistent with the findings of this government limited to the orderly
study, is that formulated by Charles H. procedure of law as opposed to the
processes of force. The two fundamental
 correlative elements of constitutionalism
for which all lovers of liberty must yet
fight are the legal limits to arbitrary
power and a complete political
responsibility of government to the
governed.[101]
 
In the final analysis, the various approaches to
emergency of the above political theorists �- from
Lock�s �theory of prerogative,� to Watkins�
doctrine of �constitutional dictatorship� and,
eventually, to McIlwain�s �principle of
constitutionalism� ---  ultimately aim to solve one
real problem in emergency governance, i.e., that of
allotting increasing areas of discretionary power to
the Chief Executive, while insuring that such
powers will be exercised with a sense of political
responsibility and under effective limitations and
checks.  
 
Our Constitution has fairly coped with this
problem.  Fresh from the fetters of a repressive
regime, the 1986 Constitutional Commission, in
drafting the 1987 Constitution, endeavored to create a
government in the concept of Justice Jackson�s
�balanced power structure.�[102]  Executive,
legislative, and judicial powers are dispersed to the
President, the Congress, and the Supreme Court,
respectively.  Each is supreme within its own
sphere.  But none has the monopoly of power in
times of emergency.  Each branch is given a role to
serve as limitation or check upon the
other.  This  system  does  not  weaken  the
President,  it  just  limits  his  power, using the
language of McIlwain.  In other words, in times of
emergency, our Constitution reasonably demands that
we repose a certain amount of faith in the basic
integrity and wisdom of the Chief Executive but, at
the same time, it obliges him to operate within
carefully prescribed procedural limitations.  
 
a. �Facial Challenge�
 
 
Petitioners contend that PP 1017 is void on its
face because of its �overbreadth.� They claim that
its enforcement encroached on both unprotected and
protected rights under Section 4, Article III of the
Constitution and sent a �chilling effect� to the
citizens.  
 A facial review of PP 1017, using the
overbreadth doctrine, is uncalled for.
 
  First and foremost, the overbreadth doctrine is
an analytical tool developed for testing �on their
faces� statutes in free speech cases, also known
under the American Law as First Amendment cases.
[103]
 
 
A plain reading of PP 1017 shows that it is not
primarily directed to speech or even speech-related
conduct.  It is actually a call upon the AFP to prevent
or suppress all forms of lawless violence.  In United
States v. Salerno,[104] the US Supreme Court held that
�we have not recognized an �overbreadth�
doctrine outside the limited context of the First
Amendment� (freedom of speech).   reflect legitimate state interests in
 
 
Moreover, the overbreadth doctrine is not
intended for testing the validity of a law that
�reflects legitimate state interest in maintaining
comprehensive control over harmful, constitutionally
unprotected conduct.� Undoubtedly, lawless
violence, insurrection and rebellion are considered
�harmful� and �constitutionally unprotected
conduct.� In Broadrick v. Oklahoma,[105] it was held: 
It remains a �matter of no little
difficulty� to determine when a law may
properly be held void on its face and when
�such summary action� is
inappropriate. But the plain  import of
our cases is, at the very least, that facial
overbreadth adjudication is an
exception to our traditional rules of
practice and that its function, a limited
one at the outset, attenuates as the
otherwise unprotected behavior that it
forbids the State to sanction moves from
�pure speech� toward
conduct and that conduct �even if
expressive � falls within the scope of
otherwise valid criminal laws that
maintaining comprehensive controls
over harmful, constitutionally
unprotected conduct. 
 
         Thus, claims of facial overbreadth are
entertained in cases involving statutes which, by their
terms, seek to regulate only �spoken words� and
again, that �overbreadth claims, if entertained at
all, have been curtailed when invoked against
ordinary criminal laws that are sought to be
applied to protected conduct.�[106]   Here, the
incontrovertible fact remains that PP 1017 pertains to
a spectrum of conduct, not free speech, which is
manifestly subject to state regulation.   are not permitted to raise the rights of
 
         Second, facial invalidation of laws is considered
as �manifestly strong medicine,� to be used
�sparingly and only as a last resort,� and  is
�generally disfavored;�[107]  The reason for this is
obvious. Embedded in the traditional rules governing
constitutional adjudication is the principle that a
person to whom a law may be applied will not be
heard to challenge a law on the ground that it may
conceivably be applied unconstitutionally to others,
i.e., in other situations not before the Court.[108]  A
writer and scholar in Constitutional Law explains
further:
 
The most distinctive feature of the
overbreadth technique is that it marks
an exception to some of the usual rules
of constitutional litigation.  Ordinarily,
a particular litigant claims that a statute
is unconstitutional as applied to him or
her; if the litigant prevails, the courts
carve away the unconstitutional aspects
of the law by invalidating its improper
applications on a case to case
basis.  Moreover, challengers to a law
third parties and can only assert their
own interests.  In overbreadth analysis,
those rules give way; challenges are
permitted to raise the rights of third
parties; and the court invalidates the entire
statute �on its face,� not merely �as
applied for� so that the overbroad law
becomes unenforceable until a properly
authorized court construes it more
narrowly.  The factor that motivates courts
to depart from the normal adjudicatory
rules is the concern with the �chilling;�
deterrent effect of the overbroad statute on
third parties not courageous enough to
bring suit.  The Court assumes that an
overbroad law�s �very existence may
cause others not before the court to refrain
from constitutionally protected speech or
expression.�  An overbreadth ruling is
designed to remove that deterrent effect on
the speech of those third parties.
 
In other words, a facial challenge using the
overbreadth doctrine will require the Court to examine
PP 1017 and pinpoint its flaws and defects, not on the
basis of its actual operation to petitioners, but on the
assumption or prediction that its very existence may
cause others not before the Court to refrain from
constitutionally protected speech or
[109]
expression.  In Younger v. Harris,  it was held that:
 
[T]he task of analyzing a proposed
statute, pinpointing its deficiencies, and
requiring correction of these deficiencies
before the statute is put into effect, is
rarely if ever an appropriate task for the
judiciary. The combination of the relative
remoteness of the controversy,
the impact on the legislative process of
the relief sought, and above all the
speculative and amorphous nature of
the required line-by-line analysis of
detailed statutes,...ordinarily results in a
kind of case that is wholly
unsatisfactory for deciding constitutional
questions, whichever way they might be
decided.
 
And third, a facial challenge on the ground of
overbreadth is the most difficult challenge to mount
successfully, since the challenger must establish
that there can be no instance when the assailed law
may be valid.  Here, petitioners did not even attempt
to show whether this situation exists.
 
Petitioners likewise seek a facial review of PP
1017 on the ground of vagueness.    This, too, is
unwarranted.
 
  Related to the �overbreadth� doctrine is the
�void for vagueness doctrine� which holds that �a
law is facially invalid if men of common
intelligence must necessarily guess at its meaning
and differ as to its application.�[110] It is subject to
the same principles governing overbreadth
doctrine.  For one, it is also an analytical tool for
testing �on their faces� statutes in free speech
cases.  And like overbreadth, it is said that a litigant
may challenge a statute on its face only if it is vague
in all its possible applications. Again, petitioners
did not even attempt to show that PP 1017 is vague
in all its application. They also failed to establish
that men of common intelligence cannot understand
the meaning and application of PP 1017.   
  
regulations promulgated by me
 
personally or upon my direction;� 
b. Constitutional Basis of PP 1017  

   
 

Now on the constitutional foundation of PP  

1017.  

Third provision:
 
The operative portion of PP 1017 may be
 

divided into three important provisions, thus:

 

 
 

First provision:
 

�as provided in Section 17,

 
 
Article XII of the Constitution do hereby
 �by virtue of the power vested declare a State of National Emergency.�
upon me by Section 18, Artilce VII � do  
hereby command the Armed Forces of  
 

the Philippines, to maintain law and First Provision:  Calling-out Power 

order throughout the Philippines, prevent
or suppress all forms of lawless violence
as well any act of insurrection or
rebellion�
 
Second provision:
 
         
The first provision pertains to the President�s
calling-out power.  In 
[111]
Sanlakas v. Executive Secretary,   this Court,
through Mr. Justice Dante O. Tinga, held that Section
18, Article VII of the Constitution reproduced as

  �and to enforce obedience to all follows:  

the laws  and  to  all decrees, orders and  
             Sec.
18. The President shall be the              
Commander-in-Chief of all armed forces
of the Philippines and whenever it
becomes necessary, he may call out such
armed forces to prevent or suppress
lawless violence, invasion or rebellion. In
case of invasion or rebellion, when the
public safety requires it, he may, for a
period not exceeding sixty days, suspend
the privilege of the writ of habeas
corpusor place the Philippines or any part
thereof under martial law. Within forty-
eight hours from the proclamation of  
martial law or the suspension of the
privilege of the writ of habeas corpus, the
President shall submit a report in person or
in writing to the Congress. The Congress,
voting jointly, by a vote of at least a
majority of all its Members in regular or
special session, may revoke such
proclamation or suspension, which
revocation shall not be set aside by the
President. Upon the initiative of the
President, the Congress may, in the same              
manner, extend such proclamation or
suspension for a period to be determined
by the Congress, if the invasion or
rebellion shall persist and public safety
requires it.
                    The Congress, if not in session,
shall within twenty-four hours following
such proclamation or suspension, convene
in accordance with its rules without need
of a call.
            The Supreme Court may review, in an
appropriate proceeding filed by any citizen, the
sufficiency of the factual bases of the
proclamation of martial law or the suspension of
the privilege of the writ or the extension thereof,
and must promulgate its decision thereon within
thirty days from its filing.
            A state of martial law does not
suspend the operation of the Constitution,
nor supplant the functioning of the civil
courts or legislative assemblies, nor
authorize the conferment of jurisdiction on
military courts and agencies over civilians
where civil courts are able to function, nor
automatically suspend the privilege of the
writ.
                    The suspension of the privilege
of the writ shall apply only to persons
judicially charged for rebellion or offenses
inherent in or directly connected with
invasion.
                                    During the suspension of the
privilege of the writ, any person thus
arrested or detained shall be judicially
charged within three days, otherwise he
shall be released.
 
 
grants the President, as Commander-in-Chief, a
�sequence� of graduated powers.  From the most to
the least benign, these are: the calling-out power, the
power to suspend the privilege of the writ of habeas
corpus, and the power to declare Martial
Law.   Citing Integrated Bar of the Philippines v.
Zamora,[112]  the Court ruled that the only criterion for
the exercise of the calling-out power is that
�whenever it becomes necessary,� the President
may call the armed forces �to prevent or suppress
lawless violence, invasion or rebellion.�  Are these
conditions present in the instant cases?  As stated
earlier, considering the circumstances then prevailing,
President Arroyo found it necessary to issue PP
1017.   Owing to her Office�s vast intelligence
network, she is in the best position to determine the
actual condition of the country.
 
         Under the calling-out power, the President may
summon the armed forces to aid him in
suppressing lawless violence, invasion and
rebellion.  This involves ordinary police action.  But
every act that goes beyond the President�s calling-
out power is considered illegal or ultra vires.  For this
reason, a President must be careful in the exercise of
his powers.   He cannot invoke a greater power when
he wishes to act under a lesser power.  There lies the
wisdom of our Constitution, the greater the power, the
greater are the limitations.
 
         It is pertinent to state, however, that there is a
distinction between the President�s authority to
declare a �state of rebellion� (in Sanlakas) and the
authority to proclaim a state of national
emergency.  While President Arroyo�s authority to
declare a �state of rebellion� emanates from her
powers as Chief Executive, the statutory authority
cited in Sanlakas was Section 4, Chapter 2, Book II of
the Revised Administrative Code of 1987, which
provides:
 
         SEC. 4. � Proclamations. �
Acts of the President fixing a date or
declaring a status or condition of
public moment or interest, upon the
existence of which the operation of
 a specific law or regulation is made
to depend, shall be promulgated in
proclamations which shall have the
force of an executive order.
 
 
         President Arroyo�s declaration of a �state of
rebellion� was merely an act declaring a status or
condition of public moment or interest, a declaration
allowed under Section 4 cited above.  Such
declaration, in the words of Sanlakas, is harmless,
without legal significance, and deemed not written.  In
these cases, PP 1017 is more than that.  In declaring a
state of national emergency, President Arroyo did not
only rely on Section 18, Article VII of the
Constitution, a provision calling on the AFP to
prevent or suppress lawless violence, invasion or
rebellion.  She also relied on Section 17, Article XII, a
provision on the State�s extraordinary power to take
over privately-owned public utility and business
affected with public interest.   Indeed, PP 1017 calls
for the exercise of an awesome power.  Obviously,
such Proclamation cannot be deemed harmless,
without legal significance, or not written, as in the
case of Sanlakas.
 
         Some of the petitioners vehemently maintain
that PP 1017 is actually a declaration of Martial
Law.  It is no so.  What defines the character of PP
1017 are its wordings.  It is plain therein that what the
President invoked was her calling-out power.
 
         The declaration of Martial Law is a �warn[ing]
to citizens that the military power has been called
upon by the executive to assist in the maintenance of
law and order, and that, while the emergency lasts,
they must, upon pain of arrest and punishment, not
commit any acts which will in any way render more
difficult the restoration of order and the enforcement
of law.�[113]
         
In his  �Statement before the Senate
Committee on Justice� on March 13, 2006, Mr.
Justice Vicente V. Mendoza,[114] an authority in
constitutional law, said that of the three powers of the
President as Commander-in-Chief, the power to
declare Martial Law poses the most severe threat to
civil liberties.  It is a strong medicine which should
not be resorted to lightly.  It cannot be used to stifle or
persecute critics of the government.  It is placed in the
keeping of the President for the purpose of enabling
him to secure the people from harm and to restore
order so that they can enjoy their individual
freedoms.  In fact, Section 18, Art. VII, provides:
 
A state of martial law does not
suspend the operation of the Constitution,
nor supplant the functioning of the civil
courts or legislative assemblies, nor
authorize the conferment of jurisdiction on
military courts and agencies over civilians
where civil courts are able to function, nor
automatically suspend the privilege of the
writ.
         Justice Mendoza also stated that PP 1017 is not
a declaration of Martial Law.   It is no more than a
call by the President to the armed forces to prevent or
suppress lawless violence.   As such, it cannot be used
to justify acts that only under a valid declaration of
Martial Law can be done.   Its use for any other
purpose is a perversion of its nature and scope, and
any act done contrary to its command is ultra vires.    SEC. 17. The President shall have
 
         Justice Mendoza further stated that specifically,
(a) arrests and seizures without judicial warrants; (b)
ban on public assemblies; (c) take-over of news media
and agencies and press censorship; and (d) issuance of
Presidential Decrees, are powers which can be
exercised by the President as Commander-in-
Chief only where there is a valid declaration of
Martial Law or suspension of the writ of habeas
corpus.  
 
Based on the above disquisition, it is clear that
PP 1017 is not a declaration of Martial Law.  It is
merely an exercise of President Arroyo�s calling-
out power for the armed forces to assist her in
preventing or suppressing lawless violence.
Second Provision:   �Take Care� Power
 
The second provision pertains to the power of
the President to ensure that the laws be faithfully
executed.  This is based on Section 17, Article VII
which reads:
 
control of all the executive departments,
bureaus, and offices. He shall ensure that
the laws be faithfully executed.
 
 
  As the Executive in whom the executive power
is vested,[115] the primary function of the President is
to enforce the laws as well as to formulate policies to
be embodied in existing laws.  He sees to it that all
laws are enforced by the officials and employees of
his department.  Before assuming office, he is
required to take an oath or affirmation to the effect
that as President of the Philippines, he will, among
others, �execute its laws.�[116]  In the exercise of
such function, the President, if needed, may employ
the powers attached to his office as the Commander-
in-Chief of all the armed forces of the country,
[117]
 including the Philippine National Police[118] under
the Department of Interior and Local Government.
[119]
  
 
 
Petitioners, especially Representatives Francis
Joseph G. Escudero, Satur Ocampo, Rafael Mariano,
Teodoro Casi�o, Liza Maza, and Josel Virador argue
that PP 1017 is unconstitutional as it arrogated upon
President Arroyo the power to enact laws and decrees
in violation of Section 1, Article VI of the
Constitution, which vests the power to enact laws in
Congress.  They assail the clause �to enforce
obedience to all the laws and to all decrees, orders
and regulations promulgated by me personally or
upon my direction.�
 
\
 
Petitioners� contention is understandable.  A
reading of PP 1017 operative clause shows that it was
lifted[120] from Former President Marcos�
Proclamation No. 1081, which partly reads:  
 
 
NOW, THEREFORE, I,
FERDINAND E. MARCOS, President of
the Philippines by virtue of the powers
vested upon me by Article VII, Section 10,
Paragraph (2) of the Constitution, do
hereby place the entire Philippines as
defined in Article 1, Section 1 of the
Constitution under martial law and, in my
capacity as their Commander-in-Chief, do
hereby command the Armed Forces of
the Philippines, to maintain law and
order throughout the Philippines,
prevent or suppress all forms of lawless
violence as well as any act of
insurrection or rebellion and to enforce
obedience to all the laws and decrees,
 orders and regulations promulgated by (Administrative Code of 1987).  She may issue any of
me personally or upon my direction.   the following:
 
 
 
 
Sec. 2.  Executive Orders. � Acts
We all know that it was PP 1081 which granted
of the President providing for rules of a
President Marcos legislative power.  Its enabling general or permanent character in
clause states:  �to enforce obedience to all the laws implementation or execution of
and decrees, orders and regulations promulgated constitutional or statutory powers shall be
by me personally or upon my direction.�  Upon promulgated in executive orders. 
the other hand, the enabling clause of PP 1017 issued Sec. 3.  Administrative Orders. �
by President Arroyo is: to enforce obedience to all Acts of the President which relate to
the laws and to all decrees, orders and regulations particular aspect of governmental
promulgated by me personally or upon my operations in pursuance of his duties as
administrative head shall be promulgated
direction.�
in administrative orders. 
 
Is it within the domain of President Arroyo to Sec. 4.  Proclamations. � Acts of
the President fixing a date or declaring a
promulgate �decrees�?   status or condition of public moment or
  interest, upon the existence of which the
PP  1017  states in operation of a specific law or regulation is
part:   �to  enforce  obedience  to  all  the  laws  and  made to depend, shall be promulgated in
decrees x x x promulgated by me personally or proclamations which shall have the force
upon my direction.�   of an executive order. 

  Sec. 5.  Memorandum Orders. �

Acts of the President on matters of
The President is granted an Ordinance Power administrative detail or of subordinate or
under Chapter 2, Book III of Executive Order No. 292 temporary interest which only concern a
 particular officer or office of the
Government shall be embodied in
memorandum orders. 
Sec. 6.  Memorandum Circulars. �
Acts of the President on matters relating to
internal administration, which the
President desires to bring to the attention
of all or some of the departments,
agencies, bureaus or offices of the
Government, for information or
compliance, shall be embodied in
memorandum circulars.  which shall consist of a Senate and a House of
Sec. 7.  General or Special Orders.
� Acts and commands of the President in
his capacity as Commander-in-Chief of the
Armed Forces of the Philippines shall be
issued as general or special orders.  power by issuing decrees.
 
 President Arroyo�s ordinance power is
limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former
President Marcos under PP 1081.   Presidential
Decrees are laws which are of the same category and
binding force as statutes because they were issued by
the President in the exercise of his legislative power
during the period of Martial Law under the 1973
Constitution.[121]  
This Court rules that the assailed PP 1017 is
unconstitutional insofar as it grants President
Arroyo the authority to promulgate
�decrees.�  Legislative power is peculiarly within
the province of the Legislature.  Section 1, Article VI
categorically states that �[t]he legislative power
shall be vested in the Congress of the Philippines
Representatives.�  To be sure, neither Martial Law
nor a state of rebellion nor a state of emergency can
justify President Arroyo�s exercise of legislative
   
         Can President Arroyo enforce obedience to all
decrees and laws through the military?
 
         As this Court stated earlier, President Arroyo
has no authority to enact decrees. It follows that these
decrees are void and, therefore, cannot be
enforced.  With respect to �laws,� she cannot call
the military to enforce or implement certain laws,
such as customs laws, laws governing family and
property relations, laws on obligations and contracts
and the like.  She can only order the military, under
PP 1017, to enforce laws pertinent to its duty to
suppress lawless violence.
Third Provision:  Power to Take Over  direct the operation of any privately-owned
 
The pertinent provision of PP 1017 states:
x x x and to enforce
obedience to all the laws and
to all decrees, orders, and
regulations promulgated by
me personally or upon my
direction; and as provided in
Section 17, Article XII of
the Constitution  do hereby
declare a state of national
emergency.
 
 
The import of this provision is that President
Arroyo, during the state of national emergency under
PP 1017, can call the military not only to enforce
obedience �to all the laws and to all decrees x x x�
but also to act pursuant to the provision of Section 17,
Article XII which reads:
 
         Sec. 17. In times of national
emergency, when the public interest so
requires, the State may, during the
emergency and under reasonable terms
prescribed by it, temporarily take over or
public utility or business affected with
public interest.
 
 
What could be the reason of President Arroyo
in invoking the above provision when she issued PP
1017?
 
The answer is simple.  During the existence of
the state of national emergency, PP 1017 purports to
grant the President, without any authority or
delegation from Congress, to take over or direct the
operation of any privately-owned public utility or
business affected with public interest.
 
This provision was first introduced in the 1973
Constitution, as a product of the �martial law�
thinking of the 1971 Constitutional Convention.[122]  In
effect at the time of its approval was President
Marcos� Letter of Instruction No. 2 dated September
22, 1972 instructing the Secretary of National Defense
to take over �the  management, control and
operation of the Manila Electric Company, the
Philippine   Long Distance Telephone Company, the
National Waterworks and  Sewerage Authority, the
Philippine National Railways, the Philippine Air
Lines, Air Manila (and) Filipinas Orient Airways . . .
for the successful prosecution by the Government of
its effort to contain, solve and end the present
national emergency.�  existence of a state of war.
         Petitioners, particularly the members of the
House of Representatives, claim that President
Arroyo�s inclusion of Section 17, Article XII in PP
1017 is an encroachment on the legislature�s
emergency powers.  powers necessary and proper to carry out a
 
         This is an area that needs delineation.
 
         A distinction must be drawn between the
President�s authority to declare�a state of national
emergency� and          to exercise emergency
powers.  To the first, as elucidated by the Court,
Section 18, Article VII grants the President such
power, hence, no legitimate constitutional objection
can be raised.  But to the second, manifold
constitutional issues arise. 
 
          Section 23, Article VI of the Constitution
reads:   
 
SEC. 23.  (1) The Congress, by a
vote of two-thirds of both Houses in joint
session assembled, voting separately, shall
have the sole power to declare the
(2) In times of war or other
national emergency, the Congress may,
by law, authorize the President, for a
limited period and subject to such
restrictions as it may prescribe, to exercise
declared national policy. Unless sooner
withdrawn by resolution of the Congress,
such powers shall cease upon the next
adjournment thereof.
 
         It may be pointed out that the second paragraph
of the above provision refers not only to war but also
to �other national emergency.�  If the intention of
the Framers of our Constitution was to withhold from
the President the authority to declare a �state of
national emergency� pursuant to Section 18, Article
VII (calling-out power) and grant it to Congress (like
the declaration of the existence of a state of war), then
the Framers could have provided so.  Clearly, they did
not intend that Congress should first authorize the
President before he can declare a �state of national
emergency.�  The logical conclusion then is that
President Arroyo could validly declare the existence
of a state of national emergency even in the absence
of a Congressional enactment.   meet and exercise its powers, the Framers of our
         
But the exercise of emergency powers, such as
the taking over of privately owned public utility or
business affected with public interest, is a 
different matter.    This requires a delegation from
Congress. 
Courts have often said that constitutional
provisions in pari materia are to be construed
together.  Otherwise stated, different clauses, sections,
and provisions of a constitution which relate to the
same subject matter will be construed together and
considered in the light of each other.[123]  Considering
that Section 17 of Article XII and Section 23 of
Article VI, previously quoted, relate to national
emergencies, they must be read together to determine
the limitation of the exercise of emergency powers. 
 
Generally, Congress is the repository of
emergency powers.  This is evident in the tenor of
Section 23 (2), Article VI authorizing it to delegate
such powers to the President.  Certainly, a body
cannot delegate a power not reposed upon
it.  However, knowing that during grave emergencies,
it may not be possible or practicable for Congress to
Constitution deemed it wise to allow Congress to
grant emergency powers to the President, subject to
certain conditions, thus:
 
 
(1)   There must be a war or other
emergency.
(2)   The delegation must be for
a limited period only.
 
 (3)  The delegation must be subject
to such restrictions as the
Congress may prescribe.
(4)  The emergency powers must be
exercised to carry out a
national policy declared by
Congress.[124]
 
 
         Section 17, Article XII must be understood as an
aspect of the emergency powers clause.  The taking
over of private business affected with public interest
is just another facet of the emergency powers
generally reposed upon Congress. Thus, when Section
17 states that the �the State may, during the
emergency and under reasonable terms prescribed
by it, temporarily take over or direct the operation
of any privately owned public utility or business
affected with public interest,�  it refers to
Congress, not the President.  Now, whether or not the
President may exercise such power is dependent on
whether Congress may delegate it to him pursuant to a
law prescribing the reasonable terms
thereof.   Youngstown Sheet & Tube Co. et al. v.
Sawyer,[125] held:
 
It is clear that if the President had
authority to issue the order he did, it must
be found in some provision of the
Constitution.  And it is not claimed that
express constitutional language grants this
power to the President.  The contention is
that presidential power should be implied
from the aggregate of his powers under the
Constitution.  Particular reliance is placed
on provisions in Article II which say that
�The executive Power shall be vested in a
President . . . .;� that �he shall take Care
that the Laws be faithfully executed;� and
that he �shall be Commander-in-Chief of
the Army and Navy of the United States.
 
The order cannot properly be
sustained as an exercise of the
President�s military power as
Commander-in-Chief of the Armed
Forces.  The Government attempts to do so
by citing a number of cases upholding
broad powers in military commanders
engaged in day-to-day fighting in a theater
of war.  Such cases need not concern us
here.  Even though �theater of war�
be an expanding concept, we cannot
with faithfulness to our constitutional
system hold that the Commander-in-
Chief of the Armed Forces has the
ultimate power as such to take
possession of private property in order
to keep labor disputes from stopping
production.  This is a job for the
nation�s lawmakers, not for its
military authorities.
 
Nor can the seizure order be
sustained because of the several
constitutional provisions that grant
executive power to the President.  In the
framework of our Constitution, the
President�s power to see that the laws
are faithfully executed refutes the idea
that he is to be a lawmaker.  The
Constitution limits his functions in the
lawmaking process to the
recommending of laws he thinks wise
and the vetoing of laws he thinks
bad.  And the Constitution is neither
silent nor equivocal about who shall
make laws which the President is to
execute.  The first section of the first
article says that �All legislative Powers
herein granted shall be vested in a
Congress of the United States. . .�[126]
 
 
Petitioner Cacho-Olivares, et al. contends that
the term �emergency� under Section 17, Article
XII refers to �tsunami,�
�typhoon,�    �hurricane� and �similar
occurrences.�  This is a limited view of
�emergency.�
 
 
Emergency, as a generic term, connotes the
existence of conditions suddenly intensifying the
degree of existing danger to life or well-being beyond
that which is accepted as normal.   Implicit in this
definitions are the elements of intensity, variety, and
perception.[127]   Emergencies, as perceived by
legislature or executive in the United Sates since
1933, have been occasioned by a wide range of
situations, classifiable under three (3) principal
heads: a) economic,[128]b) natural disaster,
[129]
 and c) national security. [130]
 
 
�Emergency,� as contemplated in our
Constitution, is of the same breadth.  It may include
rebellion, economic crisis, pestilence or epidemic,
typhoon, flood, or other similar catastrophe of
nationwide proportions or effect.[131]  This is evident in x    x    x                                                  
the Records of the Constitutional Commission, thus:                            x    x    x
 
MR. TINGSON.  May I ask the
MR. GASCON. Yes.  What is the
committee if �national emergency�
Committee�s definition of �national
refers to military national emergency or
emergency� which appears in Section 13,
could this be economic emergency?�
page 5?  It reads:
  MR. VILLEGAS.  Yes, it could refer
When the common good so requires, to both military or economic
the State may temporarily take over or dislocations.
direct the operation of any privately owned
public utility or business affected with MR. TINGSON.  Thank you very
public interest. much.[133]

MR. VILLEGAS.  What I mean is  

threat from external aggression, for
example, calamities or natural disasters.
MR. GASCON.   There is a question by
Commissioner de los Reyes.  What about
strikes and riots?
MR. VILLEGAS.  Strikes, no; those
would not be covered by the term
�national emergency.�
MR. BENGZON.  Unless they are of
such proportions such that they would
paralyze government service.[132]
         It may be argued that when there is national
emergency, Congress may not be able to convene and,
therefore, unable to delegate to the President the
power to take over privately-owned public utility or
business affected with public interest.
         In Araneta v. Dinglasan,[134] this Court
emphasized that legislative power, through which
extraordinary measures are exercised, remains in
Congress even in times of crisis.
 
         �x x x
 
            After all the criticisms that
have been made against the
efficiency of the system of the
separation of powers, the fact
remains that the Constitution has set
up this form of government, with all
its defects and shortcomings, in
preference to the commingling of
powers in one man or group of
men.  The Filipino people by
adopting parliamentary government
have given notice that they share the
faith of other democracy-loving
peoples in this system, with all its
faults, as the ideal.  The point is,
under this framework
government, legislation is preserved
for Congress all the time, not
excepting periods of crisis no matter
how serious.  Never in the history of
the United States, the basic features
of whose Constitution have been
copied in ours, have specific
functions of the legislative branch of
enacting laws been surrendered to
another department � unless we
regard as legislating the carrying out
of a legislative policy according to
prescribed standards; no, not even
when that Republic was fighting a
total war, or when it was engaged in
a life-and-death struggle to preserve
the Union.  The truth is that under
our concept of constitutional
government, in times of extreme
perils more than in normal
circumstances �the various
branches, executive, legislative, and
judicial,� given the ability to act,
are called  upon �to perform the
duties and discharge the
responsibilities committed to them
respectively.�
 
of  
Following our interpretation of Section 17,
Article XII, invoked by President Arroyo in issuing
PP 1017, this Court rules that such Proclamation does
not authorize her during the emergency to temporarily
take over or direct the operation of any privately
owned public utility or business affected with public
interest without authority from Congress.  
 
Let it be emphasized that while the President
alone can declare a   state of national emergency,
however, without legislation, he has no     power to
take over privately-owned public utility or business
affected     with public interest. The President cannot
decide whether exceptional      circumstances exist
warranting the take over of privately-
owned           public utility or business affected with
public interest.  Nor can he determine when such
exceptional circumstances have
ceased.  Likewise, without legislation, the President
has no power to point out the types of businesses
affected with public interest that should be taken
over.   In short, the President has no absolute authority
to exercise all the powers of the State under Section
17, Article VII in the absence of an emergency
powers act passed by Congress.   In G.R. No. 171409, petitioners Cacho-Olivares
 
 
c. �AS APPLIED CHALLENGE�
 
One of the misfortunes of an emergency,
particularly, that which pertains to security, is that
military necessity and the guaranteed rights of the
individual are often not compatible.   Our history
reveals that in the crucible of conflict, many rights are
curtailed and trampled upon.  Here, the right against
unreasonable search and seizure; the right against
warrantless arrest; and the freedom of speech, of
expression, of the press, and of assembly under the
Bill of Rights suffered the greatest blow. 
 
Of the seven (7) petitions, three (3) indicate
�direct injury.�  
 
In G.R. No. 171396, petitioners David and
Llamas alleged that, on February 24, 2006, they were
arrested without warrants on their way to EDSA to
celebrate the 20th Anniversary of People Power
I.     The arresting officers cited PP 1017 as basis of
the arrest.   
 
and Tribune Publishing Co., Inc. claimed that on
February 25, 2006, the CIDG operatives �raided and
ransacked without warrant� their office.  Three
policemen were assigned to guard their office as a
possible �source of destabilization.�  Again, the
basis was PP 1017. 
 
And in G.R. No. 171483, petitioners KMU and
NAFLU-KMU et al.alleged that their members were
�turned away and dispersed� when they went to
EDSA and later, to Ayala Avenue, to celebrate the
20th Anniversary of People Power I.
         
          A perusal of the �direct injuries� allegedly
suffered by the said petitioners shows that they
resulted from the implementation, pursuant to G.O.
No. 5, of  PP 1017.  
Can this Court adjudge as unconstitutional PP
1017 and G.O. No 5 on the basis of these illegal
acts? In general, does the illegal implementation of a
law render it unconstitutional?
 
Settled is the rule that courts are not at liberty to
declare statutes invalid although they may be abused
and misabused[135] and may afford an opportunity
for abuse in the manner of application.[136]  The
validity of a statute or ordinance is to be determined
from its general purpose and its efficiency to
accomplish the end desired, not from its effects in a
particular case.[137]  PP 1017 is merely an invocation
of the President�s calling-out power.  Its general
purpose is to command the AFP to suppress all forms
of lawless violence, invasion or rebellion.   It had
accomplished the end desired which prompted
President Arroyo to issue PP 1021.  But there is
nothing in PP 1017 allowing the police, expressly or
impliedly, to conduct illegal arrest, search or violate
the citizens� constitutional rights.
 
 
 
Now, may this Court adjudge a law or
ordinance unconstitutional on the ground that its
implementor committed illegal acts?   The answer is
no. The criterion by which the validity of the statute
or ordinance is to be measured is the essential basis
for the exercise of power, and not a mere incidental
result arising from its exertion.[138] This is
logical.  Just imagine the absurdity of situations when
laws maybe declared unconstitutional just because the
officers implementing them have acted arbitrarily.  If
this were so, judging from the blunders committed by
policemen in the cases passed upon by the Court,
majority of the provisions of the Revised Penal Code
would have been declared unconstitutional a long time
ago.  
 
President Arroyo issued G.O. No. 5 to carry
into effect the provisions of PP 1017.  General orders
are �acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces
of the Philippines.� They are internal rules issued by
the executive officer to his subordinates precisely for
the properand efficient administration of law.  Such
rules and regulations create no relation except
between the official who issues them and the official
who receives them.[139]  They are based on and are the
product of, a relationship in which power is their
source, and obedience, their object.[140]  For these
reasons, one requirement for these rules to be valid is
that they must be reasonable, not arbitrary or
capricious.
 
G.O. No. 5 mandates the AFP and the PNP to
immediately carry out the �necessary and
appropriate actions and measures to suppress and
prevent acts of terrorism and lawless violence.�
 
Unlike the term �lawless violence� which is
unarguably extant in our statutes and the Constitution,
and which is invariably associated with �invasion,
insurrection or rebellion,� the phrase �acts of
terrorism� is still an amorphous and vague
concept.  Congress has yet to enact a law defining and
punishing acts of terrorism.
 
 
In fact, this �definitional predicament� or the
�absence of an agreed definition of terrorism�
confronts not only our country, but the international 
community as well.  The following observations are
quite apropos:
 
In the actual unipolar context of
international relations, the �fight against
terrorism� has become one of the basic
slogans when it comes to the justification
of the use of force against certain states
and against groups operating
internationally.  Lists of states
�sponsoring terrorism� and of terrorist
organizations are set up and constantly
being updated according to criteria that are
not always known to the public, but are
clearly determined by strategic interests.
 
The basic problem underlying all
these military actions � or threats of the
use of force as the most recent by the
United States against Iraq � consists in
the absence of an agreed definition of
terrorism.
 
 Remarkable confusion persists in
regard to the legal categorization of acts of
violence either by states, by armed groups
such as liberation movements, or by
individuals.
 
The dilemma can by summarized in
the saying �One country�s terrorist is
another country�s freedom
fighter.�  The apparent contradiction or
lack of consistency in the use of the term
�terrorism� may further be
demonstrated by the historical fact that
leaders of national liberation movements
such as Nelson Mandela in South Africa,
Habib Bourgouiba in Tunisia, or Ahmed
Ben Bella in Algeria, to mention only a
few, were originally labeled as terrorists by
those who controlled the territory at the
time, but later became internationally
respected statesmen.
 
What, then, is the defining criterion
for terrorist acts � the  differentia
specifica distinguishing those acts from
eventually legitimate acts of national
resistance or self-defense?
 
Since the times of the Cold War the
United Nations Organization has been
trying in vain to reach a consensus on the
basic issue of definition.  The organization
has intensified its efforts recently, but has
been unable to bridge the gap between
those who associate �terrorism� with
any violent act by non-state groups against
civilians, state functionaries or
infrastructure or military installations, and
those who believe in the concept of the
legitimate use of force when resistance
against foreign occupation or against
systematic oppression of ethnic and/or
religious groups within a state is
concerned. 
 
The dilemma facing the
international community can best be
illustrated by reference to the contradicting
categorization of organizations and
movements such as Palestine Liberation
Organization (PLO) � which is a terrorist
group for Israel and a liberation movement
for Arabs and Muslims � the Kashmiri
resistance groups � who are terrorists in
the perception of India, liberation fighters
in that of Pakistan � the earlier Contras in
Nicaragua � freedom fighters for the
United States, terrorists for the Socialist
camp � or, most drastically, the Afghani
Mujahedeen (later to become the Taliban
movement): during the Cold War period
they were a group of freedom fighters for
the West, nurtured by the United States,
and a terrorist gang for the Soviet
Union.  One could go on and on in
enumerating examples of conflicting
categorizations that cannot be reconciled in
any way � because of opposing political
interests that are at the roots of those
perceptions.
 
How, then, can those contradicting
definitions and conflicting perceptions and
evaluations of one and the same group and
its actions be explained?  In our analysis,
the basic reason for these striking
inconsistencies lies in the divergent
interest of states.  Depending on whether a
state is in the position of an occupying
power or in that of a rival, or adversary, of
an occupying power in a given territory,
the definition of terrorism will
�fluctuate� accordingly.  A state may
eventually see itself as protector of the
rights of a certain ethnic group outside its
territory and will therefore speak of a
�liberation struggle,� not of
�terrorism� when acts of violence by
this group are concerned, and vice-versa.
The United Nations Organization
has been unable to reach a decision on the
definition of terrorism exactly because of
these conflicting interests of sovereign
states that determine in each and every
instance how a particular armed movement
(i.e. a non-state actor) is labeled in regard
to the terrorists-freedom fighter
dichotomy.  A �policy of double
standards� on this vital issue of
international affairs has been the
unavoidable consequence.
 
This �definitional predicament�
of an organization consisting of sovereign
states � and not of peoples, in spite of the
emphasis in the Preamble to the United
Nations Charter! � has become even more
serious in the present global power
constellation: one superpower exercises
the decisive role in the Security Council,
former great powers of the Cold War era
as well as medium powers are increasingly
being marginalized; and the problem has
become even more acute since the terrorist
attacks of 11 September 2001 I the United
States.[141]
 
 The absence of a law defining �acts of
terrorism� may result in abuse and oppression on the
part of the police or military.   An illustration is when
a group of persons are merely engaged in a drinking
spree.   Yet the military or the police may consider the
act as an act of terrorism and immediately arrest them
pursuant to G.O. No. 5.   Obviously, this is abuse and
oppression on their part.  It must be remembered that
an act can only be considered a crime if there is a law
defining the same as such and imposing the
corresponding penalty thereon.
 
So far, the word �terrorism� appears only
once in our criminal laws, i.e., in P.D. No. 1835 dated
January 16, 1981 enacted by President Marcos during
the Martial Law regime.  This decree is entitled
�Codifying The Various Laws on Anti-Subversion
and Increasing The Penalties for Membership in
Subversive Organizations.�  The word
�terrorism� is mentioned in the following
provision:  �That one who conspires with any other
person for the purpose of overthrowing the
Government of the Philippines x x x by force,
violence, terrorism, x x x shall be punished
by reclusion temporal x x x.�
 
 
 
P.D. No. 1835 was repealed by E.O. No. 167
(which outlaws the Communist Party of the
Philippines) enacted by President Corazon Aquino on
May 5, 1985.  These two (2) laws, however, do not
define �acts of terrorism.�   Since there is no law
defining �acts of terrorism,� it is President Arroyo
alone, under G.O. No. 5, who has the discretion to
determine what acts constitute terrorism.  Her
judgment on this aspect is absolute, without
restrictions.  Consequently, there can be
indiscriminate arrest without warrants, breaking into
offices and residences, taking over the media
enterprises, prohibition and dispersal of all assemblies
and gatherings unfriendly to the administration.  All
these can be effected in the name of G.O. No.
5.  These acts go far beyond the calling-out power of
the President.  Certainly, they violate the due process
clause of the Constitution.  Thus, this Court declares
that the �acts of terrorism� portion of G.O. No. 5 is
unconstitutional.
 
 
 
  
Significantly, there is nothing in G.O. No. 5
authorizing the military or police to commit acts
beyond what are necessary and appropriate to
suppress and prevent lawless violence, the
limitation of their authority in pursuing the
Order.  Otherwise, such acts are considered illegal.    or warrants of arrest.[143]
         We first examine G.R. No. 171396 (David et
al.)
 
 
 
The Constitution provides that �the right of
the people to be secured in their persons, houses,
papers and effects against unreasonable search and
seizure of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be
determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing
the place to be searched and the persons or things to
be seized.�[142]   The plain import of the language of
the Constitution is that searches, seizures and arrests
are normally unreasonable unless authorized by a
validly issued search warrant or warrant of arrest.
Thus, the fundamental protection given by this
provision is that between person and police must
stand the protective authority of a magistrate clothed
with power to issue or refuse to issue search warrants
         In the Brief Account[144] submitted by petitioner
David, certain facts are established: first, he was
arrested without warrant; second, the PNP operatives
arrested him on the  basis of PP 1017; third, he was
brought at Camp Karingal, Quezon City where he
was  fingerprinted, photographed and booked like a
criminal suspect; fourth, he was treated brusquely by
policemen who �held his head and tried to push
him� inside an unmarked car; fifth, he was charged
with Violation of Batas Pambansa Bilang         No.
880[145] and Inciting to Sedition; sixth,  he
was  detained for seven (7) hours; and seventh, he
was eventually released for insufficiency of
evidence.  
 
 
 Section 5, Rule 113 of the Revised Rules on
Criminal Procedure provides:
 
Sec. 5. Arrest without warrant;
when lawful. - A peace officer or a
private person may, without a warrant,
arrest a person:
 
(a) When, in his presence, the
person to be arrested has committed,
is actually committing, or is
attempting to commit an offense.
(b) When an offense has just
been committed and he has probable
cause to believe based on personal
knowledge of facts or circumstances
that the person to be arrested has
committed it; and
x     x     x.
Neither of the two (2) exceptions mentioned
above justifies petitioner
David�s  warrantless  arrest.  During the inquest for
the charges of inciting to sedition  and violation of
BP
880,  all  that  the  arresting  officers  could  invoke
was  their
observation  that  some  rallyists  were  wearing  t-
shirts with the invective �Oust Gloria
Now� and  their  erroneous  assumption that
petitioner David was the leader of the rally.
[146]
   Consequently, the Inquest Prosecutor ordered his
immediate release on the ground of insufficiency of
evidence.  He noted that petitioner David was not
wearing the subject t-shirt and even if he was wearing
it, such fact is insufficient to charge him with inciting
to sedition. Further, he also stated that there is
insufficient evidence for the charge of violation of BP
880 as it was not even known whether petitioner
David was the leader of the rally.[147]
 
 
But what made it doubly worse for petitioners
David et al. is that not only was their right against
warrantless arrest violated, but also their right to
peaceably assemble.
  
 
Section 4 of Article III guarantees:
No law shall be passed abridging
the freedom of speech, of expression, or of
the press, or the right of the people
peaceably to assemble and petition the
government for redress of grievances.
 
 
�Assembly� means a right on the part of the
citizens to meet peaceably for consultation in respect
to public affairs.  It is a necessary consequence of our
republican institution and complements the right of
speech.  As in the case of freedom of expression, this
right is not to be limited, much less denied, except on
a showing of a clear and present danger of a
substantive evil that Congress has a right to
prevent.  In other words, like other rights embraced in
the freedom of expression, the right to assemble is not
subject to previous restraint or censorship.   It may not
be conditioned upon the prior issuance of a permit or
authorization from the government authorities except,
of course, if the assembly is intended to be held in a
public place, a permit for the use of such place, and
not for the assembly itself, may be validly required. 
 
The ringing truth here is that petitioner
David, et al. were arrested while they were exercising
their right to peaceful assembly.   They were not
committing any crime, neither was there a showing of
a clear and present danger that warranted the
limitation of that right.   As can be gleaned from
circumstances, the charges of inciting to
sedition and violation of BP 880 were mere
afterthought.  Even the Solicitor General, during the
oral argument, failed to justify the arresting officers�
conduct.  In De Jonge v. Oregon,[148] it was held that
peaceable assembly cannot be made a crime, thus:
 
Peaceable assembly for lawful
discussion cannot be made a crime. The
holding of meetings for peaceable political
action cannot be proscribed. Those who
assist in the conduct of such meetings
cannot be branded as criminals on that
score. The question, if the rights of free
speech and peaceful assembly are not to be
preserved, is not as to the auspices under
 which the meeting was held but as to its
purpose; not as to the relations of the
speakers, but whether their utterances
transcend the bounds of the freedom of
speech which the Constitution protects.  If
the persons assembling have committed
crimes elsewhere, if they have formed or
are engaged in a conspiracy against the
public peace and order, they may be
prosecuted for their conspiracy or other
violations of valid laws. But it is a
different matter when the State, instead
of prosecuting them for such offenses,
seizes upon mere participation in a
peaceable assembly and a lawful public
discussion as the basis for a criminal
charge.
 
On the basis of the above principles, the Court
likewise considers the dispersal and arrest of the
members of KMU et al. (G.R. No. 171483)
unwarranted. Apparently, their dispersal was done
merely on the basis of Malaca�ang�s directive
canceling all permits previously issued by local
government units.  This is arbitrary.  The wholesale
cancellation of all permits to rally is a blatant
disregard of the principle that �freedom of
assembly is not to be limited, much less denied,
except on a showing of a clear and present
danger of a substantive evil that the State has a
right to prevent.�[149]  Tolerance is the rule and
limitation is the exception.  Only upon a showing that
an assembly presents a clear and present danger that
the State may deny the citizens� right to exercise
it.  Indeed, respondents failed to show or convince the
Court that the rallyists committed acts amounting to
lawless violence, invasion or rebellion.   With the
blanket revocation of permits, the distinction between
protected and unprotected assemblies was eliminated. 
 
 
 Moreover, under BP 880, the authority to
regulate assemblies and rallies is lodged with the local
government units.  They have the power to issue
permits and to revoke such permits after due notice
and hearing on the determination of the presence of
clear and present danger. Here, petitioners were not
even notified and heard on the revocation of their
permits.[150]  The first time they learned of it was at the
time of the dispersal.  Such absence of notice is a fatal
defect.  When a person�s right is restricted by
government action, it behooves a democratic
government to see to it that the restriction is fair,
reasonable, and according to procedure.
 
 
 
G.R. No. 171409, (Cacho-Olivares, et al.)
presents another facet of freedom of speech i.e., the
freedom of the press.  Petitioners� narration of facts,
which the Solicitor General failed to refute,
established the following: first, the Daily
Tribune�s offices were searched without
warrant; second, the police operatives seized several
materials for publication; third, the search was
conducted at about 1:00 o� clock in the morning of
February 25, 2006; fourth, the search was conducted
in the absence of any official of the Daily
Tribune except the security guard of the building;
and fifth, policemen stationed themselves at the
vicinity of the Daily Tribune offices.  The search is illegal.  Rule 126 of The Revised
         Thereafter, a wave of warning came from
government officials. Presidential Chief of Staff
Michael Defensor was quoted as saying that such raid
was �meant to show a �strong presence,� to
tell media outlets not to connive or do anything
that would help the rebels in bringing down this
government.�   Director General Lomibao further
stated that �if they do not follow the standards
�and the standards are if they would contribute
to instability in the government, or if they do not
subscribe to what is in General Order No. 5 and
Proc. No. 1017 � we will recommend
a �takeover.��  National Telecommunications
Commissioner Ronald Solis urged television and
radio networks to �cooperate� with the government
for the duration of the state of national
emergency.   He warned that his agency will not
hesitate to recommend the closure of any
broadcast outfit that violates rules set out for
media coverage during times when the national
security is threatened.[151]
 
Rules on Criminal Procedure lays down the steps in
the conduct of search and seizure.  Section 4requires
that a search warrant be issued upon probable cause
in connection with one specific offence to be
determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce.  Section 8  mandates that
the search of a house, room, or any other premise be
made in the presence of the lawful occupant thereof
or any member of his family or in the absence of the
latter, in the presence of two (2) witnesses of
sufficient age and discretion  residing in the same
locality.  And  Section 9 states that  the warrant must
direct that it be served in the daytime, unless the
property is on the person or in the place ordered to be
searched, in which case a direction may be inserted
that it be served at any time of the day or night.  All
these rules were violated by the CIDG operatives.  militant press is essential for the
Not only that, the search violated petitioners�
freedom of the press.   The best gauge of a free and
democratic society rests in the degree of freedom
enjoyed by its media.  In the Burgos v. Chief of
Staff[152]  this Court held that --   and �We Forum� newspapers in the above case, yet
 As heretofore stated, the premises
searched were the business and printing
offices of the "Metropolitan Mail" and the
"We Forum� newspapers. As a
consequence of the search and
seizure, these premises were padlocked
and sealed, with the further result that
the printing and publication of said
newspapers were discontinued.
Such closure is in the nature of
previous restraint or censorship
abhorrent to the freedom of the press
guaranteed under the fundamental law,
and constitutes a virtual denial of
petitioners' freedom to express
themselves in print. This state of being is
patently anathematic to a democratic
framework where a free, alert and even
political enlightenment and growth of
the citizenry.
 
 
While admittedly, the Daily Tribune was not
padlocked and sealed like the �Metropolitan Mail�
it cannot be denied that the CIDG operatives exceeded
their enforcement duties.  The search and seizure of
materials for publication, the stationing of policemen
in the vicinity of the The Daily Tribune offices, and
the arrogant warning of government officials to
media, are plain censorship.  It is that officious
functionary of the repressive government who tells the
citizen that he may speak only if allowed to do so, and
no more and no less than what he is permitted to say inspected the Tribune
on pain of punishment should he be so rash as to for the purpose of
gathering evidence and
disobey.[153]   Undoubtedly, the The Daily Tribune was
you admitted that the
subjected to these arbitrary intrusions because of its policemen were able to
anti-government sentiments.   This Court cannot get the clippings.  Is
tolerate the blatant disregard of a constitutional right that not in admission
even if it involves the most defiant of our of the admissibility of
citizens.   Freedom to comment on public affairs is these clippings that
essential to the vitality of a representative were taken from the
Tribune?
democracy.  It is the duty of the courts to be watchful  
for the constitutional rights of the citizen, and against SOLICITOR GENERAL
any stealthy encroachments thereon.  The motto BENIPAYO:
should always be obsta principiis.[154]  
              Under the law they
 
 
 
would seem to be, if
Incidentally, during the oral arguments, the they were illegally
seized, I think and I
Solicitor General admitted that the search of
know, Your Honor,
the Tribune�s offices and the seizure of its materials and these are
for publication and other papers are illegal; and that inadmissible for any
the same are inadmissible �for any purpose,� thus: purpose.[155]
   
JUSTICE CALLEJO: x x x                 x x
  x                 x x x
            You made quite a  
mouthful of admission SR. ASSO. JUSTICE PUNO:
when you said that the  
policemen, when
            These have been law, and it is not based
published in the past on Proclamation 1017.
issues of the Daily  
Tribune; all you have SOLGEN BENIPAYO:
to do is to get those  
past issues.  So why do             It is not based on
you have to go there at Proclamation 1017,
1 o�clock in the Your Honor, because
morning and without there is nothing in
any search 1017 which says that
warrant?  Did they the police could go and
become suddenly part inspect and gather
of the evidence of clippings from Daily
rebellion or inciting to Tribune or any other
sedition or what? newspaper.
   
SOLGEN BENIPAYO: SR. ASSO. JUSTICE PUNO:
   
            Well, it was the police             Is it based on any
that did that, Your law?
Honor.  Not upon my  
instructions. SOLGEN BENIPAYO:
   
SR. ASSO. JUSTICE PUNO:             As far as I know, no,
  Your Honor, from the
            Are you saying that facts, no.
the act of the  
policeman is illegal, it SR. ASSO. JUSTICE PUNO:
is not based on any  
             So, it has no basis, no  
legal basis There seems to be
whatsoever? some confusions if not
  contradiction in your theory.
                          
  SOLICITOR GENERAL
  BENIPAYO:
SOLGEN BENIPAYO:  
              I don�t know
            Maybe so, Your whether this will clarify.  The
Honor.  Maybe so, that acts, the supposed illegal or
is why I said, I don�t unlawful acts committed on
know if it is premature the occasion of 1017, as I
to say this, we do not said, it cannot be
condone this.  If the condoned.  You cannot
people who have been blame the President for, as
injured by this would you said, a misapplication of
want to sue them, the law.  These are acts of the
they can sue and police officers, that is their
there are remedies responsibility.[157]
for this.[156]  
   
   
Likewise, the warrantless arrests and seizures The Dissenting Opinion states that PP 1017 and
executed by the police were, according to the Solicitor G.O. No. 5 are constitutional in every aspect and
General, illegal and cannot be condoned, thus:   �should result in no constitutional or statutory
  breaches if applied according to their letter.�
CHIEF JUSTICE  
PANGANIBAN:
 The Court has passed upon the constitutionality
of these issuances.  Its ratiocination has been
exhaustively presented.  At this point, suffice it to
reiterate that PP 1017 is limited to the calling out by
the President of the military to prevent or suppress
lawless violence, invasion or rebellion.  When in
implementing its provisions, pursuant to G.O. No. 5,
the military and the police committed acts which
violate the citizens� rights under the Constitution,
this Court has to declare such acts unconstitutional
and illegal.
 
In this connection, Chief Justice Artemio V.
Panganiban�s concurring opinion, attached hereto, is
considered an integral part of this ponencia.
 
 
SUMMATION
 
In sum, the lifting of PP 1017 through the
issuance of PP 1021 � a supervening event � would
have normally rendered this case moot and
academic.  However, while PP 1017 was still
operative, illegal acts were committed allegedly in
pursuance thereof.  Besides, there is no guarantee that
PP 1017, or one similar to it, may not again be
issued.    Already, there have been media reports on
April 30, 2006 that allegedly PP 1017 would be
reimposed �if the May 1 rallies� become �unruly
and violent.�  Consequently, the transcendental
issues raised by the parties should not be �evaded;�
they must now be resolved to prevent future
constitutional aberration.
 
The Court finds and so holds that PP 1017 is
constitutional insofar as it constitutes a call by the
President for the AFP to prevent or suppress lawless
violence.  The proclamation is sustained by Section
18, Article VII of the Constitution and the relevant
jurisprudence discussed earlier.  However, PP
1017�s extraneous provisions giving the President
express or implied power (1) to issue decrees; (2) to
direct the AFP to enforce obedience to all laws even
those not related to lawless violence as well as decrees
promulgated by the President; and (3) to impose
standards on media or any form of prior restraint on
the press, are ultra vires and unconstitutional.  The
Court also rules that under Section 17, Article XII of
the Constitution, the President, in the absence of a
legislation, cannot take over privately-owned public
utility and private business affected with public
interest.
  
 
 
In the same vein, the Court finds G.O. No. 5
valid.  It is an Order issued by the President � acting
as Commander-in-Chief � addressed to subalterns in
the AFP to carry out the provisions of PP
1017.  Significantly, it also provides a valid standard
� that the military and the police should take only the
�necessary and appropriate actions and measures
to suppress and prevent acts of lawless
violence.�   But the words �acts of terrorism�
found in G.O. No. 5 have not been legally defined and
made punishable by Congress and should thus be
deemed deleted from the said G.O.  While
�terrorism� has been denounced generally in
media, no law has been enacted to guide the military,
and eventually the courts, to determine the limits of
the AFP�s authority in carrying out this portion of
G.O. No. 5.  criminal or administrative liabilities.
On the basis of the relevant and uncontested
facts narrated earlier, it is also pristine clear that (1)
the warrantless arrest of petitioners Randolf S. David
and Ronald Llamas; (2) the dispersal of the rallies and
warrantless arrest of the KMU and NAFLU-KMU
members; (3) the imposition of standards on media or
any prior restraint on the press; and (4) the warrantless
search of the Tribune  offices and the whimsical
seizures of some articles for publication and other
materials, are not authorized by the Constitution, the
law and jurisprudence.   Not even by the valid
provisions of PP 1017 and G.O. No. 5.
 
 
Other than this declaration of invalidity, this
Court cannot impose any civil, criminal or
administrative sanctions on the individual police
officers concerned.  They have not been individually
identified and given their day in court.  The civil
complaints or causes of action and/or relevant
criminal Informations have not been presented before
this Court.  Elementary due process bars this Court
from making any specific pronouncement of civil,
It is well to remember that military power is
a means to an end and substantive civil rights are
ends in themselves.  How to give the military the
power it needs to protect the Republic without
unnecessarily trampling individual rights is one of
the eternal balancing tasks of a democratic
state.  During emergency, governmental action may
vary in breadth and intensity from normal times, yet
they should not be arbitrary as to unduly restrain our
people�s liberty.   owned public utility or business affected with public
 
Perhaps, the vital lesson that we must learn
from the theorists who studied the various competing
political philosophies is that, it is possible to grant
government the authority to cope with crises without
surrendering the two vital principles of
constitutionalism: the maintenance of legal limits to
arbitrary power, and political responsibility of the
government to the governed.[158]
WHEREFORE, the Petitions are partly
granted.  The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a
call by President Gloria Macapagal-Arroyo on the
AFP to prevent or suppress lawless
violence.  However, the provisions of PP 1017
commanding the AFP to enforce laws not related to
lawless violence, as well as decrees promulgated by
the President, are
declared UNCONSTITUTIONAL.   In addition, the
provision in PP 1017 declaring national emergency
under Section 17,  Article VII of the Constitution
is CONSTITUTIONAL, but such declaration does
not authorize the President to take over privately-
interest without prior legislation.  
 
G.O. No. 5 is CONSTITUTIONAL since it
provides a standard by which the AFP and the PNP
should implement PP 1017, i.e. whatever is
�necessary and appropriate actions and measures
to suppress and prevent acts of lawless
violence.�  Considering that �acts of terrorism�
have not yet been defined and made punishable by the
Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.   
 
The warrantless arrest of Randolf S. David and
Ronald Llamas; the dispersal and warrantless arrest of
the KMU and NAFLU-KMU members during their
rallies, in the absence of proof that these petitioners
were committing acts constituting lawless violence, HON. SECRETARY HERMOGENES E. EBDANE, JR., in his
capacity as Secretary of the DEPARTMENT OF PUBLIC
invasion or rebellion and violating BP 880; the WORKS and HIGHWAYS, HON. SECRETARY EMILIA T.
imposition of standards on media or any form of prior BONCODIN, in her capacity as Secretary of the
DEPARTMENT OF BUDGET and MANAGEMENT, HON.
restraint on the press, as well as the warrantless search SECRETARY CESAR V. PURISIMA, in his capacity as
of the Tribune offices and whimsical seizure of its Secretary of the DEPARTMENT OF FINANCE, HON.
TREASURER NORMA L. LASALA, in her capacity as
articles for publication and other materials, are Treasurer of the Bureau of Treasury, and CHINA ROAD and
declared UNCONSTITUTIONAL. BRIDGE CORPORATION, Respondents. 
  DECISION
No costs.
 SO ORDERED.  CALLEJO, SR., J.:
 
Before the Court is the petition for certiorari and prohibition under
ANGELINA Rule 65 of the Rules of Court seeking to set aside and nullify
SANDOVAL- Resolution No. PJHL-A-04-012 dated May 7, 2004 issued by the
GUTIERREZ Bids and Awards Committee (BAC) of the Department of Public
Works and Highways (DPWH) and approved by then DPWH
Associate Justice Acting Secretary Florante Soriquez. The assailed resolution
  recommended the award to private respondent China Road &
Bridge Corporation of the contract for the implementation of civil
works for Contract Package No. I (CP I), which consists of the
Republic of the Philippines improvement/rehabilitation of the San Andres (Codon)-Virac-Jct.
SUPREME COURT Bago-Viga road, with the length of 79.818 kilometers, in the island
Manila province of Catanduanes. 

THIRD DIVISION
G.R. No. 167919             February 14, 2007
PLARIDEL M. ABAYA, COMMODORE PLARIDEL C. GARCIA
(retired) and PMA ’59 FOUNDATION, INC., rep. by its
President, COMMODORE CARLOS L. AGUSTIN
(retired), Petitioners, 
vs.
The CP I project is one of the four packages comprising the
project for the improvement/rehabilitation of the Catanduanes
Circumferential Road, covering a total length of about 204.515
kilometers, which is the main highway in Catanduanes Province.
The road section (Catanduanes Circumferential Road) is part of
the Arterial Road Links Development Project (Phase IV) funded
under Loan Agreement No. PH-P204 dated December 28, 1999
between the Japan Bank for International Cooperation (JBIC) and
the Government of the Republic of the Philippines.
Background  I") by the Japan Bank for International Cooperation
Based on the Exchange of Notes dated December 27, 1999,1 the
Government of Japan and the Government of the Philippines,
through their respective representatives, namely, Mr. Yoshihisa
Ara, Ambassador Extraordinary and Plenipotentiary of Japan to
the Republic of the Philippines, and then Secretary of Foreign
Affairs Domingo L. Siazon, have reached an understanding
concerning Japanese loans to be extended to the Philippines.
These loans were aimed at promoting our country’s economic
stabilization and development efforts.
The Exchange of Notes consisted of two documents: (1) a Letter
from the Government of Japan, signed by Ambassador Ara,
addressed to then Secretary of Foreign Affairs Siazon, confirming
the understanding reached between the two governments
concerning the loans to be extended by the Government of Japan
to the Philippines; and (2) a document denominated as Records
of Discussion where the salient terms of the loans as set forth by
the Government of Japan, through the Japanese delegation, were
reiterated and the said terms were accepted by the Philippine
delegation. Both Ambassador Ara and then Secretary Siazon
signed the Records of Discussion as representatives of the
Government of Japan and Philippine Government, respectively.
The Exchange of Notes provided that the loans to be extended by
the Government of Japan to the Philippines consisted of two
loans: Loan I and Loan II. The Exchange of Notes stated in part:
I products produced in and/or services supplied from those
1. A loan in Japanese yen up to the amount of seventy-
nine billion eight hundred and sixty-one million yen
(Y79,861,000,000) (hereinafter referred to as "the Loan I")
will be extended, in accordance with the relevant laws and
regulations of Japan, to the Government of the Republic
of the Philippines (hereinafter referred to as "the Borrower
(hereinafter referred to as "the Bank") to implement the
projects enumerated in the List A attached hereto
(hereinafter referred to as "the List A") according to the
allocation for each project as specified in the List A.
2. (1) The Loan I will be made available by loan
agreements to be concluded between the Borrower I and
the Bank. The terms and conditions of the Loan I as well
as the procedure for its utilization will be governed by said
loan agreements which will contain, inter alia, the
following principles:
. . . 
(2) Each of the loan agreements mentioned in
sub-paragraph (1) above will be concluded after
the Bank is satisfied of the feasibility, including
environmental consideration, of the project to
which such loan agreement relates.
3. (1) The Loan I will be made available to cover
payments to be made by the Philippine executing
agencies to suppliers, contractors and/or consultants of
eligible source countries under such contracts as may be
entered into between them for purchases of products
and/or services required for the implementation of the
projects enumerated in the List A, provided that such
purchases are made in such eligible source countries for
countries.
(2) The scope of eligible source countries
mentioned in sub-paragraph (1) above will be
agreed upon between the authorities concerned of
the two Governments.
 (3) A part of the Loan I may be used to cover
eligible local currency requirements for the
implementation of the projects enumerated in the
List A.
4. With regard to the shipping and marine insurance of
the products purchased under the Loan I, the
Government of the Republic of the Philippines will refrain
from imposing any restrictions that may hinder fair and
free competition among the shipping and marine
insurance companies.
x x x x 2 
1awphi1.net
Pertinently, List A, which specified the projects to be financed
under the Loan I, includes the Arterial Road Links Development
Project (Phase IV), to wit:
LIST A
Maximum amount in million yen)
1. Secondary Education Development and Improvement
Project 7,210
2. Rural Water Supply Project (Phase V) 951
3. Bohol Irrigation Project (Phase II) 6,078
4. Agrarian Reform Infrastructure Support Project (Phase
II) 16,990
5. Arterial Road Links Development Project (Phase IV)
15,384
6. Cordillera Road Improvement Project 5,852
7. Philippines-Japan Friendship Highway Mindanao
Section Rehabilitation Project (Phase II) 7,434
8. Rehabilitation and Maintenance of Bridges Along
Arterial Roads Project (Phase IV) 5,068
9. Maritime Safety Improvement Project (Phase C) 4,714
10. Pinatubo Hazard Urgent Mitigation Project (Phase II)
9,013
11. Pasig-Marikina River Channel Improvement Project
(Phase I) 1,167
Total 79,8613
The Exchange of Notes further provided that:
III
xxxx
3. The Government of the Republic of the Philippines will ensure
that the products and/or services mentioned in sub-paragraph (1)
of paragraph 3 of Part I and sub-paragraph (1) of paragraph 4 of
Part II are procured in accordance with the guidelines for
procurement of the Bank, which set forth, inter alia, the
procedures of international tendering to be followed except where
such procedures are inapplicable or inappropriate.
x x x x4
The Records of Discussion, which formed part of the Exchange of
Notes, also stated in part, thus:
xxxx
1. With reference to sub-paragraph (3) of paragraph 3 of Part I of
the Exchange of Notes concerning the financing of eligible local
currency requirements for the implementation of the projects
mentioned in the said sub-paragraph, the representative of the
Japanese delegation stated that:
(1) such requirement of local currency as general
administrative expenses, interest during construction,
taxes and duties, expenses concerning office,
remuneration to employees of the executing agencies and
housing, not directly related to the implementation of the
said projects, as well as purchase of land properties,
compensation and the like, however, will not be
considered as eligible for financing under the Loan I; and
(2) the procurement of products and/or services will be
made in accordance with the procedures of international
competitive tendering except where such procedures are
inapplicable and inappropriate.
x x x x5
Thus, in accordance with the agreement reached by the
Government of Japan and the Philippine Government, as
expressed in the Exchange of Notes between the representatives
of the two governments, the Philippines obtained from and was
granted a loan by the JBIC. Loan Agreement No. PH-P204 dated
December 28, 1999, in particular, stated as follows:
Loan Agreement No. PH-P204, dated December 28, 1999,
between JAPAN BANK FOR INTERNATIONAL COOPERATION
and the GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES.
In the light of the contents of the Exchange of Notes between the
Government of Japan and the Government of the Republic of the
Philippines dated December 27, 1999, concerning Japanese
loans to be extended with a view to promoting the economic
stabilization and development efforts of the Republic of the
Philippines.
JAPAN BANK FOR INTERNATIONAL COOPERATION
(hereinafter referred to as "the BANK") and THE GOVERNMENT
OF THE REPUBLIC OF THE PHILIPPINES (hereinafter referred
to as "the Borrower") herewith conclude the following Loan
Agreement (hereinafter referred to as "the Loan Agreement",
which includes all agreements supplemental hereto).
x x x x6
Under the terms and conditions of Loan Agreement No. PH-P204,
JBIC agreed to lend the Philippine Government an amount not
exceeding FIFTEEN BILLION THREE HUNDRED EIGHTY-
FOUR MILLION Japanese Yen (Y15,384,000,000) as principal for
the implementation of the Arterial Road Links Development
Project (Phase IV) on the terms and conditions set forth in the
Loan Agreement and in accordance with the relevant laws and
regulations of Japan.7 The said amount shall be used for the
purchase of eligible goods and services necessary for the
implementation of the above-mentioned project from suppliers,
contractors or consultants.8
Further, it was provided under the said loan agreement that other
terms and conditions generally applicable thereto shall be set
forth in the General Terms and Conditions, dated November
1987, issued by the Overseas Economic Cooperation Fund
(OECF) and for the purpose, reference to "the OECF" and "Fund"
therein (General Terms and Conditions) shall be substituted by
"the JBIC" and "Bank," respectively.9 Specifically, the guidelines
for procurement of all goods and services to be financed out of
the proceeds of the said loan shall be as stipulated in the
Guidelines for Procurement under OECF Loans dated December
1997 (herein referred to as JBIC Procurement Guidelines).10
As mentioned earlier, the proceeds of Loan Agreement No. PH-
P204 was to be used to finance the Arterial Road Links
Development Project (Phase IV), of which the Catanduanes
Circumferential Road was a part. This road section, in turn, was
divided into four contract packages (CP):
Approved Budget for the Contract (ABC) was in the amount of
₱738,710,563.67.
The result of the bidding revealed the following three lowest
bidders and their respective bids vis-à-vis the ABC:13

CP I: San Andres (Codon)-Virac-Jct. Bato- Viga Road -

79.818 kms  Original Bid As Read As-Corrected Bi
Name of Bidder
(Pesos) (Pesos
CP II: Viga-Bagamanoc Road - 10.40 kms.
1) China Road And Bridge
₱ 993,183,904.98 ₱952,5
Corporation
CP III: Bagamanoc-Pandan Road - 47.50 kms.
2) Cavite Ideal Int’l Const.
CP IV: Pandan-Caramoran-Codon Road - 66.40 kms.11 ₱1,099,926,598.11 ₱1,099,9
Devt. Corp.

Subsequently, the DPWH, as the government agency tasked to
implement the project, caused the publication of the "Invitation to
Prequalify and to Bid" for the implementation of the CP I project in
two leading national newspapers, namely, the Manila Times and
Manila Standard on November 22 and 29, and December 5,
2002.
A total of twenty-three (23) foreign and local contractors
responded to the invitation by submitting their accomplished
prequalification documents on January 23, 2003. In accordance
with the established prequalification criteria, eight contractors
were evaluated or considered eligible to bid as concurred by the
JBIC. One of them, however, withdrew; thus, only seven
contractors submitted their bid proposals.
The bid documents submitted by the prequalified
contractors/bidders were examined to determine their compliance
with the requirements as  In accordance with the Guidelines for the Procurements under
stipulated in Article 6 of the Instruction to Bidders.12 After the
lapse of the deadline for the submission of bid proposals, the
opening of the bids commenced immediately. Prior to the opening
of the respective bid proposals, it was announced that the
3) Italian Thai Dev’t. Public
₱1,125,022,075.34 ₱1,125,3
Company, Ltd.
The bid of private respondent China Road & Bridge Corporation
was corrected from the original ₱993,183,904.98 (with variance of
34.45% from the ABC) to ₱952,564,821.71 (with variance of
28.95% from the ABC) based on their letter clarification dated
April 21, 2004.14
After further evaluation of the bids, particularly those of the lowest
three bidders, Mr. Hedifume Ezawa, Project Manager of the
Catanduanes Circumferential Road Improvement Project
(CCRIP), in his Contractor’s Bid Evaluation Report dated April
2004, recommended the award of the contract to private
respondent China Road & Bridge Corporation:
ODA [Official Development Assistance] Loans, the Consultant
hereby recommends the award of the contract for the
construction of CP I, San Andres (Codon) – Virac – Jct. Bato –
Viga Section under the Arterial Road Links Development
Projects, Phase IV, JBIC Loan No. PH-P204 to the Lowest
Complying Bidder, China Road and Bridge Corporation, at its
total corrected bid amount of Nine Hundred Fifty-Two Million Five
Hundred Sixty-Four Thousand Eight Hundred Twenty-One &
71/100 Pesos.15
The BAC of the DPWH, with the approval of then Acting
Secretary Soriquez, issued the assailed Resolution No. PJHL-A-
04-012 dated May 7, 2004 recommending the award in favor of
private respondent China Road & Bridge Corporation of the
contract for the implementation of civil works for CP I, San Andres
(Codon) – Virac – Jct. Bato – Viga Road (Catanduanes
Circumferential Road Improvement Project) of the Arterial Roads
Links Development Project, Phase IV, located in Catanduanes
Province, under JBIC Loan Agreement No. PH-P204.16 On
September 29, 2004, a Contract of Agreement was entered into
by and between the DPWH and private respondent China Road &
Bridge Corporation for the implementation of the CP I project.
The Parties
Petitioner Plaridel M. Abaya claims that he filed the instant
petition as a taxpayer, former lawmaker, and a Filipino citizen.
Petitioner Plaridel C. Garcia likewise claims that he filed the suit
as a taxpayer, former military officer, and a Filipino citizen.
Petitioner PMA ’59 Foundation, Inc., on the other hand, is a non-
stock, non-profit corporation organized under the existing
Philippine laws. It claims that its members are all taxpayers and
alumni of the Philippine Military Academy. It is represented by its
President, Carlos L. Agustin. 
Named as public respondents are the DPWH, as the government
agency tasked with the implementation of government
infrastructure projects; the Department of Budget and
Management (DBM) as the government agency that authorizes
the release and disbursement of public funds for the
implementation of government infrastructure projects; and the
Department of Finance (DOF) as the government agency that
acts as the custodian and manager of all financial resources of
the government. Also named as individual public respondents are
Hermogenes E. Ebdane, Jr., Emilia T. Boncodin and Cesar V.
Purisima in their capacities as former Secretaries of the DPWH,
DBM and DOF, respectively. On the other hand, public
respondent Norma L. Lasala was impleaded in her capacity as
Treasurer of the Bureau of Treasury.
Private respondent China Road & Bridge Corporation is a duly
organized corporation engaged in the business of construction.
The Petitioners’ Case
The petitioners mainly seek to nullify DPWH Resolution No.
PJHL-A-04-012 dated May 7, 2004, which recommended the
award to private respondent China Road & Bridge Corporation of
the contract for the implementation of the civil works of CP I. They
also seek to annul the contract of agreement subsequently
entered into by and between the DPWH and private respondent
China Road & Bridge Corporation pursuant to the said resolution.
They pose the following issues for the Court’s resolution:
I. Whether or not Petitioners have standing to file the
instant Petition.
II. Whether or not Petitioners are entitled to the issuance
of a Writ of Certiorari reversing and setting aside DPWH
Resolution No. PJHL-A-04-012, recommending the award
of the Contract Agreement for the implementation of civil
works for CPI, San Andres (CODON)-VIRAC-JCT BATO-
VIGA ROAD (CATANDUANES CIRCUMFERENTIAL
ROAD IMPROVEMENT PROJECT) of the Arterial Road
Links Development Project, Phase IV, located in
Catanduanes Province, under JBIC L/A No. PH-P204, to
China Road & Bridge Corporation.
 III. Whether or not the Contract Agreement executed by
and between the Republic of the Philippines, through the
Department of Public Works and Highways, and the
China Road & Bridge Corporation, for the implementation
of civil works for CPI, San Andres (CODON)-VIRAC-JCT
BATO-VIGA ROAD (CATANDUANES
CIRCUMFERENTIAL ROAD IMPROVEMENT PROJECT)
of the Arterial Road Links Development Project, Phase IV,
located in Catanduanes Province, under JBIC L/A No.
PH-P204, is void ab initio.
IV. Whether or not Petitioners are entitled to the issuance
of a Writ of Prohibition permanently prohibiting the
implementation of DPWH Resolution No. PJHL-A-04-012
and the Contract Agreement executed by and between
the Republic of the Philippines (through the Department
of Public Works and Highways) and the China Road &
Bridge Corporation, and the disbursement of public funds
by the [D]epartment of [B]udget and [M]anagement for
such purpose.
V. Whether or not Petitioners are entitled to a Preliminary
Injunction and/or a Temporary Restraining Order
immediately enjoining the implementation of DPWH
Resolution No. PJHL-A-04-012 and the Contract
Agreement executed by and between the Republic of the
Philippines (through the Department of Public Works and
Highways) and the China Road & Bridge Corporation, and
the disbursement of public funds by the Department of
Budget and Management for such purpose, during the
pendency of this case.17
Preliminarily, the petitioners assert that they have standing or
locus standi to file the instant petition. They claim that as
taxpayers and concerned citizens, they have the right and duty to
question the expenditure of public funds on illegal acts. They
point out that the Philippine Government allocates a peso-
counterpart for CP I, which amount is appropriated by Congress
in the General Appropriations Act; hence, funds that are being
utilized in the implementation of the questioned project also
partake of taxpayers’ money. The present action, as a taxpayers’
suit, is thus allegedly proper.
They likewise characterize the instant petition as one of
transcendental importance that warrants the Court’s adoption of a
liberal stance on the issue of standing. It cited several cases
where the Court brushed aside procedural technicalities in order
to resolve issues involving paramount public interest and
transcendental importance.18 Further, petitioner Abaya asserts
that he possesses the requisite standing as a former member of
the House of Representatives and one of the principal authors of
Republic Act No. 9184 (RA 9184)19 known as the Government
Procurement Reform Act, the law allegedly violated by the public
respondents. 
On the substantive issues, the petitioners anchor the instant
petition on the contention that the award of the contract to private
respondent China Road & Bridge Corporation violates RA 9184,
particularly Section 31 thereof which reads:
SEC. 31. Ceiling for Bid Prices. – The ABC shall be the upper
limit or ceiling for the Bid prices. Bid prices that exceed this
ceiling shall be disqualified outright from further participating in
the bidding. There shall be no lower limit to the amount of the
award.
In relation thereto, the petitioners cite the definition of the ABC,
thus:
SEC. 5. Definition of Terms. – 
xxx
(a) Approved Budget for the Contract (ABC). – refers to the
budget for the contract duly approved by the Head of the
Procuring Entity, as provided for in the General Appropriations
Act and/or continuing appropriations, in the case of National
Government Agencies; the Corporate Budget for the contract
approved by the governing Boards, pursuant to E.O. No. 518,
series of 1979, in the case of Government-Owned and/or
Controlled Corporations, Government Financial Institutions and
State Universities and Colleges; and the Budget for the contract
approved by the respective Sanggunian, in the case of Local
Government Units.
xxx
The petitioners theorize that the foregoing provisions show the
mandatory character of ceilings or upper limits of every bid.
Under the above-quoted provisions of RA 9184, all bids or
awards should not exceed the ceilings or upper limits; otherwise,
the contract is deemed void and inexistent.
Resolution No. PJHL-A-04-012 was allegedly issued with grave
abuse of discretion because it recommended the award of the
contract to private respondent China Road & Bridge Corporation
whose bid was more than ₱200 million overpriced based on the
ABC. As such, the award is allegedly illegal and unconscionable.
In this connection, the petitioners opine that the contract
subsequently entered into by and between the DPWH and private
respondent China Road & Bridge Corporation is void ab initio for
being prohibited by RA 9184. They stress that Section 31 thereof
expressly provides that "bid prices that exceed this ceiling shall
be disqualified outright from participating in the bidding." The
upper limit or ceiling is called the ABC and since the bid of private
respondent China Road & Bridge Corporation exceeded the ABC
for the CP I project, it should have been allegedly disqualified
from the bidding process and should not, by law, have been
awarded the said contract. They invoke Article 1409 of the Civil
Code:
ART. 1409. The following contracts are inexistent and void from
the beginning:
(1) Those whose cause, object or purpose is contrary to
law, morals, good customs, public order or public policy;
(2) Those which are absolutely simulated or fictitious;
(3) Those whose cause or object did not exist at the time
of the transaction;
(4) Those whose object is outside the commerce of men;
(5) Those which contemplate an impossible service;
(6) Those where the intention of the parties relative to the
principal object of the contract cannot be ascertained;
(7) Those expressly prohibited or declared void by law.
For violating the above provision, the contract between the
DPWH and private respondent China Road & Bridge Corporation
is allegedly inexistent and void ab initio and can produce no
effects whatsoever. 
It is the contention of the petitioners that RA 9184 is applicable to
both local- and foreign-funded procurement contracts. They cite
the following excerpt of the deliberations of the Bicameral
Conference Committee on the Disagreeing Provisions of Senate
Bill No. 2248 and House Bill No. 4809:20
REP. ABAYA. Mr. Chairman, can we just propose additional
amendments? Can we go back to Section 4, Mr. Chairman?
THE CHAIRMAN (SEN. ANGARA). Section? Section ano, Del, 4?
Definition – definition of terms.
REP. ABAYA. Sa House bill, it is sa scope and application.  The petitioners insist that Loan Agreement No. PH-P204 between
THE CHAIRMAN (SEN. ANGARA). Okay.
REP. ABAYA. It should read as follows: "This Act shall apply to
the procurement of goods, supplies and materials, infrastructure
projects and consulting services regardless of funding source
whether local or foreign by the government."
THE CHAIRMAN (SEN. ANGARA). Okay, accepted. We accept.
The Senate accepts it.21
xxx xxx xxx
THE CHAIRMAN (SEN ANGARA). Just take note of that ano.
Medyo nga problematic ‘yan eh. Now, just for the record Del, can
you repeat again the justification for including foreign funded
contracts within the scope para malinaw because the World Bank
daw might raise some objection to it.
REP. ABAYA. Well, Mr. Chairman, we should include foreign
funded projects kasi these are the big projects. To give an
example, if you allow bids above government estimate, let’s say
take the case of 500 million project, included in that 500 million is
the 20 percent profit. If you allow them to bid above government
estimate, they will add another say 28 percent of (sic) 30 percent,
30 percent of 500 million is another 150 million. Ito, this is a rich
source of graft money, aregluhan na lang, 150 million, five
contractors will gather, "O eto 20 million, 20 million, 20 million."
So, it is rigged. ‘Yun ang practice na nangyayari. If we eliminate
that, if we have a ceiling then, it will not be very tempting kasi
walang extra money na pwedeng ibigay sa ibang contractor. So
this promote (sic) collusion among bidders, of course, with the
cooperation of irresponsible officials of some agencies. So we
should have a ceiling to include foreign funded projects.22
the JBIC and the Philippine Government is neither a treaty, an
international nor an executive agreement that would bar the
application of RA 9184. They point out that to be considered a
treaty, an international or an executive agreement, the parties
must be two sovereigns or States whereas in the case of Loan
Agreement No. PH-P204, the parties are the Philippine
Government and the JBIC, a banking agency of Japan, which has
a separate juridical personality from the Japanese Government. 
They further insist on the applicability of RA 9184 contending that
while it took effect on January 26, 200323 and Loan Agreement
No. PH-P204 was executed prior thereto or on December 28,
1999, the actual procurement or award of the contract to private
respondent China Road & Bridge Corporation was done after the
effectivity of RA 9184. The said law is allegedly specific as to its
application, which is on the actual procurement of infrastructure
and other projects only, and not on the loan agreements attached
to such projects. Thus, the petition only prays for the annulment
of Resolution No. PJHL-A-04-012 as well as the contract between
the DPWH and private respondent China Road & Bridge
Corporation. The petitioners clarify that they do not pray for the
annulment of Loan Agreement No. PH-P204. Since the subject
procurement and award of the contract were done after the
effectivity of RA 9184, necessarily, the procurement rules
established by that law allegedly apply, and not Presidential
Decree No. 1594 (PD 1594)24 and Executive Order No. 40 (EO
40), series of 2001, 25 as contended by the respondents. The
latter laws, including their implementing rules, have allegedly
been repealed by RA 9184. Even RA 4860, as amended, known
as the Foreign Borrowings Act, the petitioners posit, may have
also been repealed or modified by RA 9184 insofar as its
provisions are inconsistent with the latter.
The petitioners also argue that the "Implementing Rules and
Regulations (IRR) of RA 9184, Otherwise Known as the
Government Procurement Reform Act, Part A" (IRR-A) cited by
the respondents is not applicable as these rules only govern
domestically-funded procurement contracts. They aver that the
implementing rules to govern foreign-funded procurement, as in
the present case, have yet to be drafted and in fact, there are
concurrent resolutions drafted by both houses of Congress for the
Reconvening of the Joint Congressional Oversight Committee for
the formulation of the IRR for foreign-funded procurements under
RA 9184.  petitioner in imminent danger of sustaining some direct injury as a
The petitioners maintain that disbursement of public funds to
implement a patently void and illegal contract is itself illegal and
must be enjoined. They bring to the Court’s attention the fact that
the works on the CP I project have already commenced as early
as October 2004. They thus urge the Court to issue a writ of
certiorari to set aside Resolution No. PJHL-A-04-012 as well as to
declare null and void the contract entered into between the
DPWH and private respondent China Road & Bridge Corporation.
They also pray for the issuance of a temporary restraining order
and, eventually, a writ of prohibition to permanently enjoin the
DPWH from implementing Resolution No. PJHL-A-04-012 and its
contract with private respondent China Road & Bridge
Corporation as well as the DBM from disbursing funds for the said
purpose.  petitioners to file the instant suit claiming that they failed to allege
The Respondents’ Counter-Arguments
The public respondents, namely the DPWH, DBM and DOF, and
their respective named officials, through the Office of the Solicitor
General, urge the Court to dismiss the petition on grounds that
the petitioners have no locus standi and, in any case, Resolution
No. PJHL-A-04-012 and the contract between the DPWH and
private respondent China Road & Bridge Corporation are valid.
According to the public respondents, a taxpayer’s locus standi
was recognized in the following cases: (a) where a tax measure is
assailed as unconstitutional;26 (b) where there is a question of
validity of election laws;27 (c) where legislators questioned the
validity of any official action upon the claim that it infringes on
their prerogatives as legislators;28 (d) where there is a claim of
illegal disbursement or wastage of public funds through the
enforcement of an invalid or unconstitutional law;29 (e) where it
involves the right of members of the Senate or House of
Representatives to question the validity of a presidential veto or
condition imposed on an item in an appropriation bill;30 or (f)
where it involves an invalid law, which when enforced will put the
result thereof, or that he has been or is about to be denied some
right or privilege to which he is lawfully entitled or that he is about
to be subjected to some burdens or penalties by reason of the
statute complained of.31 None of the above considerations
allegedly obtains in the present case.
It is also the view of the public respondents that the fact that
petitioner Abaya was a former lawmaker would not suffice to
confer locus standi on himself. Members of Congress may
properly challenge the validity of an official act of any department
of the government only upon showing that the assailed official act
affects or impairs their rights and prerogatives as legislators. 
The public respondents further assail the standing of the
any specific injury suffered nor an interest that is direct and
personal to them. If at all, the interest or injuries claimed by the
petitioners are allegedly merely of a general interest common to
all members of the public. Their interest is allegedly too vague,
highly speculative and uncertain to satisfy the requirements of
locus standi.
The public respondents find it noteworthy that the petitioners do
not raise issues of constitutionality but only of contract law, which
the petitioners not being privies to the agreement cannot raise.
This is following the principle that a stranger to a contract cannot
sue either or both the contracting parties to annul and set aside
the same except when he is prejudiced on his rights and can
show detriment which would positively result to him from the
implementation of the contract in which he has no intervention.
There being no particularized interest or elemental substantial
injury necessary to confer locus standi, the public respondents
implore the Court to dismiss the petition.
On the merits, the public respondents maintain that the imposition
of ceilings or upper limits on bid prices in RA 9184 does not apply
because the CP I project and the entire Catanduanes
Circumferential Road Improvement Project, financed by Loan
Agreement No. PH-P204 executed between the Philippine
Government and the JBIC, is governed by the latter’s
Procurement Guidelines which precludes the imposition of
ceilings on bid prices. Section 5.06 of the JBIC Procurement
Guidelines reads:
Section 5.06. Evaluation and Comparison of Bids.
xxx
(e) Any procedure under which bids above or below a
predetermined bid value assessment are automatically
disqualified is not permitted.
It was explained that other foreign banks such as the Asian
Development Bank (ADB) and the World Bank (WB) similarly
prohibit the bracketing or imposition of a ceiling on bid prices.
The public respondents stress that it was pursuant to Loan
Agreement No. PH-P204 that the assailed Resolution No. PJHL-
A-04-012 and the subsequent contract between the DPWH and
private respondent China Road & Bridge Corporation
materialized. They likewise aver that Loan Agreement No. PH-
P204 is governed by RA 4860, as amended, or the Foreign
Borrowings Act. Section 4 thereof states:
SEC. 4. In the contracting of any loan, credit or indebtedness
under this Act, the President of the Philippines may, when
necessary, agree to waive or modify, the application of any law
granting preferences or imposing restrictions on international
competitive bidding, including among others [Act No. 4239,
Commonwealth Act No. 138], the provisions of [CA 541], insofar
as such provisions do not pertain to constructions primarily for
national defense or security purposes, [RA 5183]; Provided,
however, That as far as practicable, utilization of the services of
qualified domestic firms in the prosecution of projects financed
under this Act shall be encouraged: Provided, further, That in
case where international competitive bidding shall be conducted
preference of at least fifteen per centum shall be granted in favor
of articles, materials or supplies of the growth, production or
manufacture of the Philippines: Provided, finally, That the method
and procedure in comparison of bids shall be the subject of
agreement between the Philippine Government and the lending
institution.
DOJ Opinion No. 46, Series of 1987, is relied upon by the public
respondents as it opined that an agreement for the exclusion of
foreign assisted projects from the coverage of local bidding
regulations does not contravene existing legislations because the
statutory basis for foreign loan agreements is RA 4860, as
amended, and under Section 4 thereof, the President is
empowered to waive the application of any law imposing
restrictions on the procurement of goods and services pursuant to
such loans.
Memorandum Circular Nos. 104 and 108, issued by the
President, to clarify RA 4860, as amended, and PD 1594, relative
to the award of foreign-assisted projects, are also invoked by the
public respondents, to wit:
Memorandum Circular No. 104:
In view of the provisions of Section 4 of Republic Act No. 4860,
as amended, otherwise known as the "Foreign Borrowings Act"
xxx
It is hereby clarified that foreign-assisted infrastructure projects
may be exempted from the application for the pertinent provisions
of the Implementing Rules and Regulations (IRR) of Presidential
Decree (P.D.) No. 1594 relative to the method and procedure in
the comparison of bids, which matter may be the subject of
agreement between the infrastructure agency concerned and the
lending institution. It should be made clear however that public
bidding is still required and can only be waived pursuant to
existing laws.
Memorandum Circular No. 108:
In view of the provisions of Section 4 of Republic Act No. 4860,
as amended, otherwise known as the "Foreign Borrowings Act", it
is hereby clarified that, for projects supported in whole or in part
by foreign assistance awarded through international or local
competitive bidding, the government agency concerned may
award the contract to the lowest evaluated bidder at his bid price
consistent with the provisions of the applicable loan/grant
agreement.  contract, being the law between the parties, must be faithfully
Specifically, when the loan/grant agreement so stipulates, the
government agency concerned may award the contract to the
lowest bidder even if his/its bid exceeds the approved agency
estimate.
It is understood that the concerned government agency shall, as
far as practicable, adhere closely to the implementing rules and
regulations of Presidential Decree No. 1594 during loan/grant
negotiation and the implementation of the projects.32
The public respondents characterize foreign loan agreements,
including Loan Agreement No. PH-P204, as executive
agreements and, as such, should be observed pursuant to the
fundamental principle in international law of pacta sunt
servanda.33 They cite Section 20 of Article VII of the Constitution
as giving the President the authority to contract foreign loans:
SEC. 20. The President may contract or guarantee foreign loans
on behalf of the Republic of the Philippines with the prior
concurrence of the Monetary Board, and subject to such
limitations as may be provided by law. The Monetary Board shall,
within thirty days from the end of every quarter of the calendar
year, submit to the Congress a complete report of its decisions on
applications for loans to be contracted or guaranteed by the
Government or Government-owned and Controlled Corporations
which would have the effect of increasing the foreign debt, and
containing other matters as may be provided by law. 
The Constitution, the public respondents emphasize, recognizes
the enforceability of executive agreements in the same way that it
recognizes generally accepted principles of international law as
forming part of the law of the land.34 This recognition allegedly
buttresses the binding effect of executive agreements to which
the Philippine Government is a signatory. It is pointed out by the
public respondents that executive agreements are essentially
contracts governing the rights and obligations of the parties. A
adhered to by them. Guided by the fundamental rule of pacta sunt
servanda, the Philippine Government bound itself to perform in
good faith its duties and obligations under Loan Agreement No.
PH-P204.
The public respondents further argue against the applicability of
RA 9184 stating that it was signed into law on January 10,
2003.35 On the other hand, Loan Agreement No. PH-P204 was
executed on December 28, 1999, where the laws then in force on
government procurements were PD 1594 and EO 40. The latter
law (EO 40), in particular, excluded from its application "any
existing and future government commitments with respect to the
bidding and award of contracts financed partly or wholly with
funds from international financing institutions as well as from
bilateral and other similar foreign sources."
The applicability of EO 40, not RA 9184, is allegedly bolstered by
the fact that the "Invitation to Prequalify and to Bid" for the
implementation of the CP I project was published in two leading
national newspapers, namely, the Manila Times and Manila
Standard on November 22, 29 and December 5, 2002, or before
the signing into law of RA 9184 on January 10, 2003. In this
connection, the public respondents point to Section 77 of IRR-A,
which reads:
SEC. 77. Transitory Clause. –  automatically disqualified is not permitted."
In all procurement activities, if the advertisement or invitation for
bids was issued prior to the effectivity of the Act, the provisions of
EO 40 and its IRR, PD 1594 and its IRR, RA 7160 and its IRR, or
other applicable laws as the case may be, shall govern.
In cases where the advertisements or invitations for bids were
issued after the effectivity of the Act but before the effectivity of
this IRR-A, procuring entities may continue adopting the
procurement procedures, rules and regulations provided in EO 40
and its IRR, or other applicable laws, as the case may be.
Section 4 of RA 9184 is also invoked by the public respondents
as it provides:
SEC. 4. Scope and Applications. – This Act shall apply to the
Procurement of Infrastructure Projects, Goods and Consulting
Services, regardless of source of funds, whether local or foreign,
by all branches and instrumentalities of government, its
departments, offices and agencies, including government-owned
and/or –controlled corporations and local government units,
subject to the provisions of Commonwealth Act No. 138. Any
treaty or international or executive agreement affecting the
subject matter of this Act to which the Philippine government is a
signatory shall be observed.  requirements and procedures prescribed for the release of the
It is also the position of the public respondents that even granting
arguendo that Loan Agreement No. PH-P204 were an ordinary
loan contract, still, RA 9184 is inapplicable under the non-
impairment clause36 of the Constitution. The said loan agreement
expressly provided that the procurement of goods and services
for the project financed by the same shall be governed by the
Guidelines for Procurement under OECF Loans dated December
1997. Further, Section 5.06 of the JBIC Procurement Guidelines
categorically provides that "[a]ny procedure under which bids
above or below a predetermined bid value assessment are
The public respondents explain that since the contract is the law
between the parties and Loan Agreement No. PH-P204 states
that the JBIC Procurement Guidelines shall govern the parties’
relationship and further dictates that there be no ceiling price for
the bidding, it naturally follows that any subsequent law passed
contrary to the letters of the said contract would have no effect
with respect to the parties’ rights and obligations arising
therefrom.
To insist on the application of RA 9184 on the bidding for the CP I
project would, notwithstanding the terms and conditions of Loan
Agreement No. PH-P204, allegedly violate the constitutional
provision on non-impairment of obligations and contracts, and
destroy vested rights duly acquired under the said loan
agreement. 
Lastly, the public respondents deny that there was illegal
disbursement of public funds by the DBM. They asseverate that
all the releases made by the DBM for the implementation of the
entire Arterial Road Links Project – Phase IV, which includes the
Catanduanes Circumferential Road Improvement Project, were
covered by the necessary appropriations made by law,
specifically the General Appropriations Act (GAA). Further, the
said funds were duly complied with. 
For its part, private respondent China Road & Bridge Corporation
similarly assails the standing of the petitioners, either as
taxpayers or, in the case of petitioner Abaya, as a former
lawmaker, to file the present suit. In addition, it is also alleged
that, by filing the petition directly to this Court, the petitioners
failed to observe the hierarchy of courts.
On the merits, private respondent China Road & Bridge
Corporation asserts that the applicable law to govern the bidding
of the CP I project was EO 40, not RA 9184, because the former
was the law governing the procurement of government projects at
the time that it was bidded out. EO 40 was issued by the Office of
the President on October 8, 2001 and Section 1 thereof states
that:
SEC. 1. Scope and Application. This Executive Order shall apply
to the procurement of: (a) goods, supplies, materials and related
services; (b) civil works; and (c) consulting services, by all
National Government agencies, including State Universities and
Colleges (SUCs), Government-Owned or Controlled Corporations
(GOCCs) and Government Financial Institutions (GFIs), hereby
referred to as the ‘Agencies.’ This Executive Order shall cover the
procurement process from the pre-procurement conference up to
the award of contract.
xxx
The Invitation to Prequalify and to Bid was first published on
November 22, 2002. On the other hand, RA 9184 was signed into
law only on January 10, 2003. Since the law in effect at the time
the procurement process was initiated was EO 40, private
respondent China Road & Bridge Corporation submits that it
should be the said law which should govern the entire
procurement process relative to the CP I project.  said law that the DPWH awarded the project to private
EO 40 expressly recognizes as an exception from the application
of the provisions thereof on approved budget ceilings, those
projects financed by international financing institutions (IFIs) and
foreign bilateral sources. Section 1 thereof, quoted in part earlier,
further states:
SEC. 1. Scope and Application. x x x 
Nothing in this Order shall negate any existing and future
government commitments with respect to the bidding and award
of contracts financed partly or wholly with funds from international
financing institutions as well as from bilateral and other similar
foreign sources.
Section 1.2 of the Implementing Rules and Regulations of EO 40
is likewise invoked as it provides:
For procurement financed wholly or partly from Official
Development Assistance (ODA) funds from International
Financing Institutions (IFIs), as well as from bilateral and other
similar foreign sources, the corresponding loan/grant agreement
governing said funds as negotiated and agreed upon by and
between the Government and the concerned IFI shall be
observed.
Private respondent China Road & Bridge Corporation thus
postulates that following EO 40, the procurement of goods and
services for the CP I project should be governed by the terms and
conditions of Loan Agreement No. PH-P204 entered into between
the JBIC and the Philippine Government. Pertinently, Section
5.06 of the JBIC Procurement Guidelines prohibits the setting of
ceilings on bid prices. 
Private respondent China Road & Bridge Corporation claims that
when it submitted its bid for the CP I project, it relied in good faith
on the provisions of EO 40. It was allegedly on the basis of the
respondent China Road & Bridge Coporation even if its bid was
higher than the ABC. Under the circumstances, RA 9184 could
not be applied retroactively for to do so would allegedly impair the
vested rights of private respondent China Road & Bridge
Corporation arising from its contract with the DPWH.
It is also contended by private respondent China Road & Bridge
Corporation that even assuming arguendo that RA 9184 could be
applied retroactively, it is still the terms of Loan Agreement No.
PH-P204 which should govern the procurement of goods and
services for the CP I project. It supports its theory by
characterizing the said loan agreement, executed pursuant to the
Exchange of Notes between the Government of Japan and the
Philippine Government, as an executive agreement.
Private respondent China Road & Bridge Corporation, like the
public respondents, cites RA 4860 as the basis for the Exchange
of Notes and Loan Agreement No. PH-P204. As an international
or executive agreement, the Exchange of Notes and Loan
Agreement No. PH-P204 allegedly created a legally binding
obligation on the parties. 
The following excerpt of the deliberations of the Bicameral
Conference Committee on the Disagreeing Provision of Senate
Bill No. 2248 and House Bill No. 4809 is cited by private
respondent China Road & Bridge Corporation to support its
contention that it is the intent of the lawmakers to exclude from
the application of RA 9184 those foreign-funded projects:
xxx
REP. MARCOS. Yes, Mr. Chairman, to respond and to put into
the record, a justification for the inclusion of foreign contracts,
may we just state that foreign contracts have, of course, been
brought into the ambit of the law because of the Filipino
counterpart for this foreign projects, they are no longer strictly
foreign in nature but fall under the laws of the Philippine
government.
THE CHAIRMAN (SEN. ANGARA). Okay. I think that’s pretty
clear. I think the possible concern is that some ODA are with
strings attached especially the Japanese. The Japanese are quite
strict about that, that they are (sic) even provide the architect and
the design, etcetera, plus, of course, the goods that will be
supplied.
Now, I think we’ve already provided that this is open to all and we
will recognize our international agreements so that this bill will not
also restrict the flow of foreign funding, because some countries
now make it a condition that they supply both services and goods
especially the Japanese.
So I think we can put a sentence that we continue to honor our
international obligations, di ba Laura?
MR. ENCARNACION. Actually, subject to any treaty.
THE CHAIRMAN (SEN. ANGARA). ‘Yun pala eh. That should
allay their anxiety and concern. Okay, buti na lang for the record
para malaman nila na we are conscious sa ODA.37
Private respondent China Road & Bridge Corporation submits
that based on the provisions of the Exchange of Notes and Loan
Agreement No. PH-P204, it was rightfully and legally awarded the
CP I project. It urges the Court to dismiss the petition for lack of
merit.
The Court’s Rulings
Petitioners, as taxpayers, possess locus standi to file the present
suit
Briefly stated, locus standi is "a right of appearance in a court of
justice on a given question."38 More particularly, it is a party’s
personal and substantial interest in a case such that he has
sustained or will sustain direct injury as a result of the
governmental act being challenged. It calls for more than just a
generalized grievance. 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.39 Standing or locus standi is a peculiar
concept in constitutional law40 and the rationale for requiring a
party who challenges the constitutionality of a statute to allege
such a personal stake in the outcome of the controversy is "to
assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends
for illumination of difficult constitutional questions."41
Locus standi, however, is merely a matter of procedure42 and it
has been recognized that in some cases, suits are not brought by
parties who have been personally injured by the operation of a
law or any other government act but by concerned citizens,
taxpayers or voters who actually sue in the public
interest.43 Consequently, the Court, in a catena of cases,44 has
invariably adopted a liberal stance on locus standi, including
those cases involving taxpayers.  As a corollary, the subsequent contract entered into by and
The prevailing doctrine in taxpayer’s suits is to allow taxpayers to
question contracts entered into by the national government or
government- owned or controlled corporations allegedly in
contravention of law.45 A taxpayer is allowed to sue where there is
a claim that public funds are illegally disbursed, or that public
money is being deflected to any improper purpose, or that there is
a wastage of public funds through the enforcement of an invalid
or unconstitutional law.46 Significantly, a taxpayer need not be a
party to the contract to challenge its validity.47
In the present case, the petitioners are suing as taxpayers. They
have sufficiently demonstrated that, notwithstanding the fact that
the CP I project is primarily financed from loans obtained by the
government from the JBIC, nonetheless, taxpayers’ money would
be or is being spent on the project considering that the Philippine
Government is required to allocate a peso-counterpart therefor.
The public respondents themselves admit that appropriations for
these foreign-assisted projects in the GAA are composed of the
loan proceeds and the peso-counterpart. The counterpart funds,
the Solicitor General explains, refer to the component of the
project cost to be financed from government-appropriated funds,
as part of the government’s commitment in the implementation of
the project.48 Hence, the petitioners correctly asserted their
standing since a part of the funds being utilized in the
implementation of the CP I project partakes of taxpayers’ money.
Further, the serious legal questions raised by the petitioners, e.g.,
whether RA 9184 applies to the CP I project, in particular, and to
foreign-funded government projects, in general, and the fact that
public interest is indubitably involved considering the public
expenditure of millions of pesos, warrant the Court to adopt in the
present case its liberal policy on locus standi. 
In any case, for reasons which will be discussed shortly, the
substantive arguments raised by the petitioners fail to persuade
the Court as it holds that Resolution No. PJHL-A-04-012 is valid.
between the DPWH and private respondent China Road & Bridge
Corporation is likewise valid.
History of Philippine Procurement Laws
It is necessary, at this point, to give a brief history of Philippine
laws pertaining to procurement through public bidding. The
United States Philippine Commission introduced the American
practice of public bidding through Act No. 22, enacted on October
15, 1900, by requiring the Chief Engineer, United States Army for
the Division of the Philippine Islands, acting as purchasing agent
under the control of the then Military Governor, to advertise and
call for a competitive bidding for the purchase of the necessary
materials and lands to be used for the construction of highways
and bridges in the Philippine Islands.49 Act No. 74, enacted on
January 21, 1901 by the Philippine Commission, required the
General Superintendent of Public Instruction to purchase office
supplies through competitive public bidding.50 Act No. 82,
approved on January 31, 1901, and Act No. 83, approved on
February 6, 1901, required the municipal and provincial
governments, respectively, to hold competitive public biddings in
the making of contracts for public works and the purchase of
office supplies.51
On June 21, 1901, the Philippine Commission, through Act No.
146, created the Bureau of Supply and with its creation, public
bidding became a popular policy in the purchase of supplies,
materials and equipment for the use of the national government,
its subdivisions and instrumentalities.52 On February 3, 1936, then
President Manuel L. Quezon issued Executive Order No. 16
declaring as a matter of general policy that government contracts
for public service or for furnishing supplies, materials and
equipment to the government should be subjected to public
bidding.53 The requirement of public bidding was likewise imposed
for public works of construction or repair pursuant to the Revised
Administrative Code of 1917.
Then President Diosdado Macapagal, in Executive Order No. 40
dated June 1, 1963, reiterated the directive that no government
contract for public service or for furnishing supplies, materials and
equipment to the government or any of its branches, agencies or
instrumentalities, should be entered into without public bidding
except for very extraordinary reasons to be determined by a
Committee constituted thereunder. Then President Ferdinand
Marcos issued PD 1594 prescribing guidelines for government
infrastructure projects and Section 454 thereof stated that they
should generally be undertaken by contract after competitive
public bidding.
Then President Corazon Aquino issued Executive Order No. 301
(1987) prescribing guidelines for government negotiated
contracts. Pertinently, Section 62 of the Administrative Code of
1987 reiterated the requirement of competitive public bidding in
government projects. In 1990, Congress passed RA 6957,55 which
authorized the financing, construction, operation and
maintenance of infrastructure by the private sector. RA 7160 was
likewise enacted by Congress in 1991 and it contains provisions
governing the procurement of goods and locally-funded civil
works by the local government units.
Then President Fidel Ramos issued Executive Order No. 302
(1996), providing guidelines for the procurement of goods and
supplies by the national government. Then President Joseph
Ejercito Estrada issued Executive Order No. 201 (2000),
providing additional guidelines in the procurement of goods and
supplies by the national government. Thereafter, he issued
Executive Order No. 262 (2000) amending EO 302 (1996) and
EO 201 (2000). 
On October 8, 2001, President Gloria Macapagal-Arroyo issued
EO 40, the law mainly relied upon by the respondents, entitled
Consolidating Procurement Rules and Procedures for All National
Government Agencies, Government-Owned or Controlled
Corporations and Government Financial Institutions, and
Requiring the Use of the Government Procurement System. It
accordingly repealed, amended or modified all executive
issuances, orders, rules and regulations or parts thereof
inconsistent therewith.56
On January 10, 2003, President Arroyo signed into law RA 9184.
It took effect on January 26, 2004, or fifteen days after its
publication in two newspapers of general circulation.57 It expressly
repealed, among others, EO 40, EO 262 (2000), EO 302(1996)
and PD 1594, as amended:
SEC. 76. Repealing Clause. —This law repeals Executive Order
No. 40, series of 2001, entitled "Consolidating Procurement Rules
and Procedures for All National Government Agencies,
Government Owned or Controlled Corporations and/or
Government Financial Institutions, and Requiring the Use of the
Government Electronic Procurement System"; Executive Order
No. 262, series of 1996, entitled "Amending Executive Order No.
302, series of 1996, entitled Providing Policies, Guidelines, Rules
and Regulations for the Procurement of Goods/Supplies by the
National Government" and Section 3 of Executive Order No. 201,
series of 2000, entitled "Providing Additional Policies and
Guidelines in the Procurement of Goods/Supplies by the National
Government"; Executive Order No. 302, series of 1996, entitled
"Providing Policies, Guidelines, Rules and Regulations for the
Procurement of Goods/Supplies by the National Government"
and Presidential Decree No. 1594 dated June 11, 1978, entitled
"Prescribing Policies, Guidelines, Rules and Regulations for
Government Infrastructure Contracts." This law amends Title Six,
Book Two of Republic Act No. 7160, otherwise known as the
"Local Government Code of 1991"; the relevant provisions of
Executive Order No. 164, series of 1987, entitled "Providing
Additional Guidelines in the Processing and Approval of
Contracts of the National Government"; and the relevant
provisions of Republic Act No. 7898 dated February 23, 1995,
entitled "An Act Providing for the Modernization of the Armed
Forces of the Philippines and for Other Purposes." Any other law,
presidential decree or issuance, executive order, letter of
instruction, administrative order, proclamation, charter, rule or
regulation and/or parts thereof contrary to or inconsistent with the
provisions of this Act is hereby repealed, modified or amended
accordingly.
In addition to these laws, RA 4860, as amended, must be
mentioned as Section 4 thereof provides that "[i]n the contracting
of any loan, credit or indebtedness under this Act, the President
of the Philippines may, when necessary, agree to waive or modify
the application of any law granting preferences or imposing
restrictions on international competitive bidding x x x Provided,
finally, That the method and procedure in the comparison of bids
shall be the subject of agreement between the Philippine
Government and the lending institution."  sources.
EO 40, not RA 9184, is applicable to the procurement
process undertaken for the CP I project. RA 9184
cannot be given retroactive application.  modification and withdrawal of bids; (7) bid opening and
It is not disputed that with respect to the CP I project, the
Invitation to Prequalify and to Bid for its implementation was
published in two leading national newspapers, namely, the Manila
Times and Manila Standard on November 22, 29 and December
5, 2002. At the time, the law in effect was EO 40. On the other
hand, RA 9184 took effect two months later or on January 26,
2003. Further, its full implementation was even delayed as IRR-A
was only approved by President Arroyo on September 18, 2003
and subsequently published on September 23, 2003 in the Manila
Times and Malaya newspapers.58
The provisions of EO 40 apply to the procurement process
pertaining to the CP I project as it is explicitly provided in Section
1 thereof that: 
SEC. 1. Scope and Application. – This Executive Order shall
apply to see procurement of (a) goods, supplies, materials and
related service; (b) civil works; and (c) consulting services, by all
National Government agencies, including State Universities and
Colleges (SUCs), Government-Owned or –Controlled
Corporations (GOCCs) and Government Financial Institutions
(GFIs), hereby referred to as "Agencies." This Executive Order
shall cover the procurement process from the pre-procurement
conference up to the award of the contract.
Nothing in this Order shall negate any existing and future
government commitments with respect to the bidding and award
of contracts financed partly or wholly with funds from international
financing institutions as well as from bilateral and similar foreign
 
The procurement process basically involves the following steps:
(1) pre-procurement conference; (2) advertisement of the
invitation to bid; (3) pre-bid conference; (4) eligibility check of
prospective bidders; (5) submission and receipt of bids; (6)
examination; (8) bid evaluation; (9) post qualification; (10) award
of contract and notice to proceed.59 Clearly then, when the
Invitation to Prequalify and to Bid for the implementation of the
CP I project was published on November 22, 29 and December 5,
2002, the procurement process thereof had already commenced
and the application of EO 40 to the procurement process for the
CP I project had already attached.
RA 9184 cannot be applied retroactively to govern the
procurement process relative to the CP I project because it is well
settled that a law or regulation has no retroactive application
unless it expressly provides for retroactivity.60Indeed, Article 4 of
the Civil Code is clear on the matter: "[l]aws shall have no
retroactive effect, unless the contrary is provided." In the absence
of such categorical provision, RA 9184 will not be applied
retroactively to the CP I project whose procurement process
commenced even before the said law took effect.  implementation and that it is expressly stated that IRR-B for
That the legislators did not intend RA 9184 to have retroactive
effect could be gleaned from the IRR-A formulated by the Joint
Congressional Oversight Committee (composed of the Chairman
of the Senate Committee on Constitutional Amendments and
Revision of Laws, and two members thereof appointed by the
Senate President and the Chairman of the House Committee on
Appropriations, and two members thereof appointed by the
Speaker of the House of Representatives) and the Government
Procurement Policy Board (GPPB). Section 77 of the IRR-A
states, thus:
SEC. 77. Transitory Clause
In all procurement activities, if the advertisement or invitation for
bids was issued prior to the effectivity of the Act, the provisions of
E.O. 40 and its IRR, P.D. 1594 and its IRR, R.A. 7160 and its
IRR, or other applicable laws, as the case may be, shall govern.
In cases where the advertisements or invitations for bids were
issued after the effectivity of the Act but before the effectivity of
this IRR-A, procuring entities may continue adopting the
procurement procedures, rules and regulations provided in E.O.
40 and its IRR, P.D. 1594 and its IRR, R.A. 7160 and its IRR, or
other applicable laws, as the case may be.
In other words, under IRR-A, if the advertisement of the invitation
for bids was issued prior to the effectivity of RA 9184, such as in
the case of the CP I project, the provisions of EO 40 and its IRR,
and PD 1594 and its IRR in the case of national government
agencies, and RA 7160 and its IRR in the case of local
government units, shall govern.
Admittedly, IRR-A covers only fully domestically-funded
procurement activities from procurement planning up to contract
foreign-funded procurement activities shall be subject of a
subsequent issuance.61 Nonetheless, there is no reason why the
policy behind Section 77 of IRR-A cannot be applied to foreign-
funded procurement projects like the CP I project. Stated
differently, the policy on the prospective or non-retroactive
application of RA 9184 with respect to domestically-funded
procurement projects cannot be any different with respect to
foreign-funded procurement projects like the CP I project. It would
be incongruous, even absurd, to provide for the prospective
application of RA 9184 with respect to domestically-funded
procurement projects and, on the other hand, as urged by the
petitioners, apply RA 9184 retroactively with respect to foreign-
funded procurement projects. To be sure, the lawmakers could
not have intended such an absurdity. 
Thus, in the light of Section 1 of EO 40, Section 77 of IRR-A, as
well as the fundamental rule embodied in Article 4 of the Civil
Code on prospectivity of laws, the Court holds that the
procurement process for the implementation of the CP I project is
governed by EO 40 and its IRR, not RA 9184. 
Under EO 40, the award of the contract to private
respondent China Road & Bridge Corporation is valid
Section 25 of EO 40 provides that "[t]he approved budget of the
contract shall be the upper limit or ceiling of the bid price. Bid
prices which exceed this ceiling shall be disqualified outright from
further participating in the bidding. There shall be no lower limit to
the amount of the award. x x x" It should be observed that this
text is almost similar to the wording of Section 31 of RA 9184,
relied upon by the petitioners in contending that since the bid
price of private respondent China Road & Bridge Corporation
exceeded the ABC, then it should not have been awarded the
contract for the CP I project. 
Nonetheless, EO 40 expressly recognizes as an exception to its
scope and application those government commitments with
respect to bidding and award of contracts financed partly or
wholly with funds from international financing institutions as well
as from bilateral and other similar foreign sources. The pertinent
portion of Section 1 of EO 40 is quoted anew:
SEC. 1. Scope and Application. – x x x
Nothing in this Order shall negate any existing and future
government commitments with respect to the bidding and award
of contracts financed partly or wholly with funds from international
financing institutions as well as from bilateral and similar foreign
sources.  Section 5.09. Award of Contract
In relation thereto, Section 4 of RA 4860, as amended, was
correctly cited by the respondents as likewise authorizing the
President, in the contracting of any loan, credit or indebtedness
thereunder, "when necessary, agree to waive or modify the
application of any law granting preferences or imposing
restrictions on international competitive bidding x x x." The said
provision of law further provides that "the method and procedure
in the comparison of bids shall be the subject of agreement
between the Philippine Government and the lending institution." 
Consequently, in accordance with these applicable laws, the
procurement of goods and services for the CP I project is
governed by the corresponding loan agreement entered into by
the government and the JBIC, i.e., Loan Agreement No. PH-
P204. The said loan agreement stipulated that the procurement of
goods and services for the Arterial Road Links Development
Project (Phase IV), of which CP I is a component, is to be
governed by the JBIC Procurement Guidelines. Section 5.06, Part
II (International Competitive Bidding) thereof quoted earlier reads:
Section 5.06. Evaluation and Comparison of Bids
xxx
(e) Any procedure under which bids above or below a
predetermined bid value assessment are automatically
disqualified is not permitted.62
It is clear that the JBIC Procurement Guidelines proscribe the
imposition of ceilings on bid prices. On the other hand, it enjoins
the award of the contract to the bidder whose bid has been
determined to be the lowest evaluated bid. The pertinent
provision, quoted earlier, is reiterated, thus:
The contract is to be awarded to the bidder whose bid has been
determined to be the lowest evaluated bid and who meets the
appropriate standards of capability and financial resources. A
bidder shall not be required as a condition of award to undertake
responsibilities or work not stipulated in the specifications or to
modify the bid.63
Since these terms and conditions are made part of Loan
Agreement No. PH-P204, the government is obliged to observe
and enforce the same in the procurement of goods and services
for the CP I project. As shown earlier, private respondent China
Road & Bridge Corporation’s bid was the lowest evaluated bid,
albeit 28.95% higher than the ABC. In accordance with the JBIC
Procurement Guidelines, therefore, it was correctly awarded the
contract for the CP I project.  conventions, declarations, covenants and acts.
Even if RA 9184 were to be applied retroactively, the terms of the
Exchange of Notes dated December 27, 1999 and Loan
Agreement No. PH-P204 would still govern the procurement for
the CP I project  The petitioners mainly argue that Loan Agreement No. PH-P204
For clarity, Section 4 of RA 9184 is quoted anew, thus:
SEC. 4. Scope and Applications. – This Act shall apply to the
Procurement of Infrastructure Projects, Goods and Consulting
Services, regardless of source of funds, whether local or foreign,
by all branches and instrumentalities of government, its
departments, offices and agencies, including government-owned
and/or –controlled corporations and local government units,
subject to the provisions of Commonwealth Act No. 138. Any
treaty or international or executive agreement affecting the
subject matter of this Act to which the Philippine government is a
signatory shall be observed. 
The petitioners, in order to place the procurement process
undertaken for the CP I project within the ambit of RA 9184,
vigorously assert that Loan Agreement No. PH-P204 is neither a
treaty, an international agreement nor an executive agreement.
They cite Executive Order No. 459 dated November 25, 1997
where the three agreements are defined in this wise:
a) International agreement – shall refer to a contract or
understanding, regardless of nomenclature, entered into
between the Philippines and another government in
written form and governed by international law, whether
embodied in a single instrument or in two or more related
instruments.
b) Treaties – international agreements entered into by the
Philippines which require legislative concurrence after
executive ratification. This term may include compacts like
c) Executive agreements – similar to treaties except that
they do not require legislative concurrence.64
does not fall under any of the three categories because to be any
of the three, an agreement had to be one where the parties are
the Philippines as a State and another State. The JBIC, the
petitioners maintain, is a Japanese banking agency, which
presumably has a separate juridical personality from the
Japanese Government.
The petitioners’ arguments fail to persuade. The Court holds that
Loan Agreement No. PH-P204 taken in conjunction with the
Exchange of Notes dated December 27, 1999 between the
Japanese Government and the Philippine Government is an
executive agreement.
To recall, Loan Agreement No. PH-P204 was executed by and
between the JBIC and the Philippine Government pursuant to the
Exchange of Notes executed by and between Mr. Yoshihisa Ara,
Ambassador Extraordinary and Plenipotentiary of Japan to the
Philippines, and then Foreign Affairs Secretary Siazon, in behalf
of their respective governments. The Exchange of Notes
expressed that the two governments have reached an
understanding concerning Japanese loans to be extended to the
Philippines and that these loans were aimed at promoting our
country’s economic stabilization and development efforts.
Loan Agreement No. PH-P204 was subsequently executed and it
declared that it was so entered by the parties "[i]n the light of the
contents of the Exchange of Notes between the Government of
Japan and the Government of the Republic of the Philippines
dated December 27, 1999, concerning Japanese loans to be
extended with a view to promoting the economic stabilization and
development efforts of the Republic of the Philippines."65 Under
the circumstances, the JBIC may well be considered an adjunct
of the Japanese Government. Further, Loan Agreement No. PH-
P204 is indubitably an integral part of the Exchange of Notes. It
forms part of the Exchange of Notes such that it cannot be
properly taken independent thereof.
In this connection, it is well to understand the definition of an
"exchange of notes" under international law. The term is defined
in the United Nations Treaty Collection in this wise:
An "exchange of notes" is a record of a routine agreement that
has many similarities with the private law contract. The
agreement consists of the exchange of two documents, each of
the parties being in the possession of the one signed by the
representative of the other. Under the usual procedure, the
accepting State repeats the text of the offering State to record its
assent. The signatories of the letters may be government
Ministers, diplomats or departmental heads. The technique of
exchange of notes is frequently resorted to, either because of its
speedy procedure, or, sometimes, to avoid the process of
legislative approval.66
It is stated that "treaties, agreements, conventions, charters,
protocols, declarations, memoranda of understanding, modus
vivendi and exchange of notes" all refer to "international
instruments binding at international law."67 It is further explained
that-
Although these instruments differ from each other by title, they all
have common features and international law has applied basically
the same rules to all these instruments. These rules are the result
of long practice among the States, which have accepted them as
binding norms in their mutual relations. Therefore, they are
regarded as international customary law. Since there was a
general desire to codify these customary rules, two international
conventions were negotiated. The 1969 Vienna Convention on
the Law of Treaties ("1969 Vienna Convention"), which entered
into force on 27 January 1980, contains rules for treaties
concluded between States. The 1986 Vienna Convention on the
Law of Treaties between States and International Organizations
("1986 Vienna Convention"), which has still not entered into force,
added rules for treaties with international organizations as parties.
Both the 1969 Vienna Convention and the 1986 Vienna
Convention do not distinguish between the different designations
of these instruments. Instead, their rules apply to all of those
instruments as long as they meet the common requirements.68
Significantly, an exchange of notes is considered a form of an
executive agreement, which becomes binding through executive
action without the need of a vote by the Senate or Congress. The
following disquisition by Francis B. Sayre, former United States
High Commissioner to the Philippines, entitled "The
Constitutionality of Trade Agreement Acts," quoted in
Commissioner of Customs v. Eastern Sea Trading,69 is apropos:
Agreements concluded by the President which fall short of
treaties are commonly referred to as executive agreements and
are no less common in our scheme of government than are the
more formal instruments – treaties and conventions. They
sometimes take the form of exchange of notes and at other times
that of more formal documents denominated "agreements" or
"protocols". The point where ordinary correspondence between
this and other governments ends and agreements – whether
denominated executive agreements or exchange of notes or
otherwise – begin, may sometimes be difficult of ready
ascertainment. It would be useless to undertake to discuss here
the large variety of executive agreements as such, concluded
from time to time. Hundreds of executive agreements, other than
those entered into under the trade-agreements act, have been
negotiated with foreign governments. x x x70
The Exchange of Notes dated December 27, 1999, stated, inter
alia, that the Government of Japan would extend loans to the
Philippines with a view to promoting its economic stabilization and SO ORDERED.
development efforts; Loan I in the amount of Y79,8651,000,000
would be extended by the JBIC to the Philippine Government to ROMEO J. CALLEJO, SR.
implement the projects in the List A (including the Arterial Road Associate Justice
Links Development Project - Phase IV); and that such loan (Loan
I) would be used to cover payments to be made by the Philippine WE CONCUR:
executing agencies to suppliers, contractors and/or consultants of
eligible source countries under such contracts as may be entered
CONSUELO YNARES-SANTIAGO
into between them for purchases of products and/or services
Associate Justice
required for the implementation of the projects enumerated in the
List A.71 With respect to the procurement of the goods and
services for the projects, it bears reiterating that as stipulated:  MA. ALICIA AUSTRIA- MINITA V. CHICO-
MARTINEZ NAZARIO
Associate Justice Asscociate Justice
3. The Government of the Republic of the Philippines will ensure
that the products and/or services mentioned in sub-paragraph (1)
of paragraph 3 of Part I and sub-paragraph (1) of paragraph 4 of ATTESTATION
Part II are procured in accordance with the guidelines for
procurement of the Bank, which set forth, inter alia, the I attest that the conclusions in the above Decision had been
procedures of international tendering to be followed except where reached in consultation before the case was assigned to the
such procedures are inapplicable or inappropriate.72 writer of the opinion of the Court’s Division.

The JBIC Procurements Guidelines, as quoted earlier, forbids any CONSUELO YNARES-SANTIAGO
procedure under which bids above or below a predetermined bid Associate Justice
value assessment are automatically disqualified. Succinctly put, it Chairperson
absolutely prohibits the imposition of ceilings on bids.
CERTIFICATION
Under the fundamental principle of international law of pacta sunt
servanda,73 which is, in fact, embodied in Section 4 of RA 9184 as Pursuant to Section 13, Article VIII of the Constitution and the
it provides that "[a]ny treaty or international or executive Division Chairperson’s Attestation, it is hereby certified that the
agreement affecting the subject matter of this Act to which the conclusions in the above decision were reached in consultation
Philippine government is a signatory shall be observed," the before the case was assigned to the writer of the opinion of the
DPWH, as the executing agency of the projects financed by Loan Court’s Division.
Agreement No. PH-P204, rightfully awarded the contract for the
implementation of civil works for the CP I project to private REYNATO S. PUNO
respondent China Road & Bridge Corporation.  Chief Justice

WHEREFORE, premises considered, the petition is DISMISSED. 

 AFFAIRS, and HON. HILARIO DAVIDE, JR. in his capacity as
Permanent Representative of the Philippines to the United
Nations, Respondents.

RESOLUTION

CARPIO, J.:

At issue is the power of Congress to limit the President’s

prerogative to nominate ambassadors by legislating age
qualifications despite the constitutional rule limiting Congress’ role
in the appointment of ambassadors to the Commission on
Appointments’ confirmation of nominees.1 However, for lack of a
case or controversy grounded on petitioner’s lack of capacity to
sue and mootness,2 we dismiss the petition without reaching the
merits, deferring for another day the resolution of the question
raised, novel and fundamental it may be. 

Petitioner Alan F. Paguia (petitioner), as citizen and taxpayer,

filed this original action for the writ of certiorari to invalidate
President Gloria Macapagal-Arroyo’s nomination of respondent
former Chief Justice Hilario G. Davide, Jr. (respondent Davide) as
Permanent Representative to the United Nations (UN) for
violation of Section 23 of Republic Act No. 7157 (RA 7157), the
Philippine Foreign Service Act of 1991. Petitioner argues that
respondent Davide’s age at that time of his nomination in March
Republic of the Philippines 2006, 70, disqualifies him from holding his post. Petitioner
SUPREME COURT grounds his argument on Section 23 of RA 7157 pegging the
Manila mandatory retirement age of all officers and employees of the
Department of Foreign Affairs (DFA) at 65.3 Petitioner theorizes
EN BANC that Section 23 imposes an absolute rule for all DFA employees,
career or non-career; thus, respondent Davide’s entry into the
G.R. No. 176278               June 25, 2010 DFA ranks discriminates against the rest of the DFA officials and
employees.
ALAN F. PAGUIA, Petitioner, 
vs. In their separate Comments, respondent Davide, the Office of the
OFFICE OF THE PRESIDENT, SECRETARY OF FOREIGN President, and the Secretary of Foreign Affairs (respondents)
raise threshold issues against the petition. First, they question
petitioner’s standing to bring this suit because of his indefinite
suspension from the practice of law.4 Second, the Office of the
President and the Secretary of Foreign Affairs (public
respondents) argue that neither petitioner’s citizenship nor his
taxpayer status vests him with standing to question respondent
Davide’s appointment because petitioner remains without
personal and substantial interest in the outcome of a suit which
does not involve the taxing power of the state or the illegal
disbursement of public funds. Third, public respondents question
the propriety of this petition, contending that this suit is in truth a
petition for quo warranto which can only be filed by a contender
for the office in question.
On the eligibility of respondent Davide, respondents counter that
Section 23’s mandated retirement age applies only to career
diplomats, excluding from its ambit non-career appointees such
as respondent Davide.
The petition presents no case or controversy for petitioner’s lack
of capacity to sue and mootness.
First. Petitioner’s citizenship and taxpayer status do not clothe
him with standing to bring this suit. We have granted access to
citizen’s suits on the narrowest of ground: when they raise issues
of "transcendental" importance calling for urgent
resolution.5 Three factors are relevant in our determination to
allow third party suits so we can reach and resolve the merits of
the crucial issues raised – the character of funds or assets
involved in the controversy, a clear disregard of constitutional or
statutory prohibition, and the lack of any other party with a more
direct and specific interest to bring the suit.6 None of petitioner’s
allegations comes close to any of these parameters. Indeed,
implicit in a petition seeking a judicial interpretation of a statutory
provision on the retirement of government personnel occasioned
by its seemingly ambiguous crafting is the admission that a "clear
disregard of constitutional or statutory prohibition" is absent.
Further, the DFA is not devoid of personnel with "more direct and
specific interest to bring the suit." Career ambassadors forced to
leave the service at the mandated retirement age unquestionably
hold interest far more substantial and personal than petitioner’s
generalized interest as a citizen in ensuring enforcement of the
law.1avvphi1
The same conclusion holds true for petitioner’s invocation of his
taxpayer status. Taxpayers’ contributions to the state’s coffers
entitle them to question appropriations for expenditures which are
claimed to be unconstitutional or illegal.7 However, the salaries
and benefits respondent Davide received commensurate to his
diplomatic rank are fixed by law and other executive issuances,
the funding for which was included in the appropriations for the
DFA’s total expenditures contained in the annual budgets
Congress passed since respondent Davide’s nomination. Having
assumed office under color of authority (appointment),
respondent Davide is at least a de facto officer entitled to draw
salary,8 negating petitioner’s claim of "illegal expenditure of
scarce public funds."9
Second. An incapacity to bring legal actions peculiar to petitioner
also obtains. Petitioner’s suspension from the practice of law bars
him from performing "any activity, in or out of court, which
requires the application of law, legal procedure, knowledge,
training and experience."10 Certainly, preparing a petition raising
carefully crafted arguments on equal protection grounds and
employing highly legalistic rules of statutory construction to parse
Section 23 of RA 7157 falls within the proscribed conduct. 
Third. A supervening event has rendered this case academic and
the relief prayed for moot. Respondent Davide resigned his post
at the UN on 1 April 2010.
WHEREFORE, we DISMISS the petition. 
SO ORDERED.
ANTONIO T. CARPIO CERTIFICATION
Associate Justice
Pursuant to Section 13, Article VIII of the Constitution, I certify
WE CONCUR: that the conclusions in the above Resolution had been reached in
consultation before the case was assigned to the writer of the
RENATO C. CORONA opinion of the Court.
Chief Justice
RENATO C. CORONA
Chief Justice
CONCHITA CARPIO PRESBITERO J.
MORALES VELASCO, JR.
Associate Justice Associate Justice

TERESITA J. Footnotes
ANTONIO EDUARDO
LEONARDO-DE
B. NACHURA
CASTRO 1
 Section 16 (1), Article VII of the 1987 Constitution
Associate Justice
Associate Justice provides: "The President shall nominate and, with the
consent of the Commission on Appointments, appoint x x
x ambassadors, other public ministers and consuls x x x."
DIOSDADO M. The following comment on the interaction of the
ARTURO D. BRION
PERALTA constitutional spheres of power of the President, Senate
Associate Justice
Associate Justice (the Commission on Appointments in this jurisdiction), and
Congress in the nomination and confirmation process
MARIANO C. DEL under the US Constitution’s Appointments Clause, the
LUCAS P. BERSAMIN normative model of the first sentence of Section 16 (1),
CASTILLO
Associate Justice Article VII of the 1987 Constitution, is instructive:
Associate Justice

The Constitution assigns the power of nomination

MARTIN S. for a confirmation appointment to the President
ROBERTO A. ABAD
VILLARAMA, JR. alone, and it allocates the power of confirmation
Associate Justice
Associate Justice appointments to the President together with the
Senate. Congress can pass laws x x x to help the
JOSE PORTUGAL President and Senate carry out those functions,
JOSE C. MENDOZA such as establishing an agency to help identify
PEREZ
Associate Justice and evaluate potential nominees. But x x x
Associate Justice
Congress cannot require that the President limit
his nominees to a specific group of individuals
 named by someone else, or constrain
appointments to people who meet a particular set
of qualifications, for confirmation appointments.
(Hanah Metchis Volokh, The Two Appointments
Clauses: Statutory Qualifications For Federal
Officers, 10 U. Pa. J. Const. L. 745, 763 [2007])
(internal citations omitted; emphasis supplied).
The President’s exclusive power to nominate
ambassadors is complimented by a subsidiary
doctrine treating ambassadorial selections as
"based on the special trust and confidence" of the
President (Santos v. Macaraig, G.R. No. 94070,
10 April 1992, 208 SCRA 74, 84).
113375, 5 May 1994, 232 SCRA 110, 155-156 (1995)
(Feliciano, J., concurring).
7
 See e.g. Pascual v. Secretary of Public Works, 110 Phil.
331 (1960) (involving the constitutionality of Republic Act
No. 920 appropriating funds for public works); Sanidad v.
COMELEC, No. L-44640, 12 October 1976, 73 SCRA 333
(concerning the constitutionality of presidential decrees
calling for the holding of a national referendum on
constitutional amendments and appropriating funds for
the purpose). 
8
 See Malaluan v. COMELEC, 324 Phil. 676, 696-697
(1996).

 Prescinding from Section 5, Article VIII of the 1987

2 9
 Rollo, p. 7.
Constitution limiting this Court’s jurisdiction to "cases."
 Cayetano v. Monsod, G.R. No. 100113, 3 September
10
3
 Section 23 provides: "Compulsory Retirements. - All 1991, 201 SCRA 210, 214.
officers and employees of the Department who have
reached the age of sixty-five (65) shall be compulsorily
and automatically retired from the Service: Provided,
however, That all incumbent non-career chiefs of mission
who are seventy (70) years old and above shall continue
to hold office until June 30, 1992 unless sooner removed
by the appointing authority. Non-career appointees who
shall serve beyond the age of sixty-five (65) years shall
not be entitled to retirement benefits." 

4
 Imposed in Estrada v. Sandiganbayan, 462 Phil. 135
(2003).

5
 Kilosbayan v. Morato, 320 Phil. 171, 186 (1995).

6
 Francisco v. House of Representatives, 460 Phil. 838,
899 (2003) citing Kilosbayan v. Guingona, G.R. No.
 JOSE O. VERA, Judge . of the Court of First Instance of
Manila, and MARIANO CU UNJIENG, respondents.

Office of the Solicitor General Tuason and City Fiscal Diaz for the
Government.
De Witt, Perkins and Ponce Enrile for the Hongkong and
Shanghai Banking Corporation.
Vicente J. Francisco, Feria and La O, Orense and Belmonte, and
Gibbs and McDonough for respondent Cu Unjieng.
No appearance for respondent Judge.

LAUREL, J.:

This is an original action instituted in this court on August 19,

1937, for the issuance of the writ of certiorari and of prohibition to
the Court of First Instance of Manila so that this court may review
the actuations of the aforesaid Court of First Instance in criminal
case No. 42649 entitled "The People of the Philippine Islands vs.
Mariano Cu Unjieng, et al.", more particularly the application of
the defendant Mariano Cu Unjieng therein for probation under the
provisions of Act No. 4221, and thereafter prohibit the said Court
of First Instance from taking any further action or entertaining
further the aforementioned application for probation, to the end
Republic of the Philippines that the defendant Mariano Cu Unjieng may be forthwith
SUPREME COURT committed to prison in accordance with the final judgment of
Manila conviction rendered by this court in said case (G. R. No.
41200). 1 
EN BANC
Petitioners herein, the People of the Philippine and the Hongkong
G.R. No. L-45685             November 16, 1937 and Shanghai Banking Corporation, are respectively the plaintiff
and the offended party, and the respondent herein Mariano Cu
THE PEOPLE OF THE PHILIPPINE ISLANDS and HONGKONG Unjieng is one of the defendants, in the criminal case entitled
& SHANGHAI BANKING CORPORATION,petitioners,  "The People of the Philippine Islands vs. Mariano Cu Unjieng, et
vs. al.", criminal case No. 42649 of the Court of First Instance of
Manila and G.R. No. 41200 of this court. Respondent herein,
Hon. Jose O. Vera, is the Judge ad interim of the seventh branch
of the Court of First Instance of Manila, who heard the application
of the defendant Mariano Cu Unjieng for probation in the
aforesaid criminal case.
The information in the aforesaid criminal case was filed with the
Court of First Instance of Manila on October 15, 1931, petitioner
herein Hongkong and Shanghai Banking Corporation intervening
in the case as private prosecutor. After a protracted trial
unparalleled in the annals of Philippine jurisprudence both in the
length of time spent by the court as well as in the volume in the
testimony and the bulk of the exhibits presented, the Court of
First Instance of Manila, on January 8, 1934, rendered a
judgment of conviction sentencing the defendant Mariano Cu
Unjieng to indeterminate penalty ranging from four years and two
months of prision correccional to eight years of prision mayor, to
pay the costs and with reservation of civil action to the offended
party, the Hongkong and Shanghai Banking Corporation. Upon
appeal, the court, on March 26, 1935, modified the sentence to
an indeterminate penalty of from five years and six months
of prision correccional to seven years, six months and twenty-
seven days of prision mayor, but affirmed the judgment in all
other respects. Mariano Cu Unjieng filed a motion for
reconsideration and four successive motions for new trial which
were denied on December 17, 1935, and final judgment was
accordingly entered on December 18, 1935. The defendant
thereupon sought to have the case elevated on certiorari to the
Supreme Court of the United States but the latter denied the
petition for certiorari in             November, 1936. This court, on       4221.
November 24, 1936, denied the petition subsequently filed by the
defendant for leave to file a second alternative motion for
reconsideration or new trial and thereafter remanded the case to
the court of origin for execution of the judgment.
The instant proceedings have to do with the application for
probation filed by the herein respondent Mariano Cu Unjieng on   that the herein respondent Mariano Cu Unjieng "es inocente por
November 27, 1936, before the trial court, under the provisions of
Act No. 4221 of the defunct Philippine Legislature. Herein
respondent Mariano Cu Unjieng states in his petition, inter alia,
that he is innocent of the crime of which he was convicted, that he
has no criminal record and that he would observe good conduct
in the future. The Court of First Instance of Manila, Judge Pedro
Tuason presiding, referred the application for probation of the
Insular Probation Office which recommended denial of the same
June 18, 1937. Thereafter, the Court of First Instance of Manila,
seventh branch, Judge Jose O. Vera presiding, set the petition for
hearing on April 5, 1937.
On April 2, 1937, the Fiscal of the City of Manila filed an
opposition to the granting of probation to the herein respondent
Mariano Cu Unjieng. The private prosecution also filed an
opposition on April 5, 1937, alleging, among other things, that Act
No. 4221, assuming that it has not been repealed by section 2 of
Article XV of the Constitution, is nevertheless violative of section
1, subsection (1), Article III of the Constitution guaranteeing equal
protection of the laws for the reason that its applicability is not
uniform throughout the Islands and because section 11 of the
said Act endows the provincial boards with the power to make
said law effective or otherwise in their respective or otherwise in
their respective provinces. The private prosecution also filed a
supplementary opposition on April 19, 1937, elaborating on the
alleged unconstitutionality on Act No. 4221, as an undue
delegation of legislative power to the provincial boards of several
provinces (sec. 1, Art. VI, Constitution). The City Fiscal concurred
in the opposition of the private prosecution except with respect to
the questions raised concerning the constitutionality of Act No.
On June 28, 1937, herein respondent Judge Jose O. Vera
promulgated a resolution with a finding that "las pruebas no han
establecido de unamanera concluyente la culpabilidad del
peticionario y que todos los hechos probados no son
inconsistentes o incongrentes con su inocencia" and concludes
duda racional" of the crime of which he stands convicted by this
court in G.R. No. 41200, but denying the latter's petition for
probation for the reason that:
. . . Si este Juzgado concediera la poblacion solicitada por
las circunstancias y la historia social que se han expuesto
en el cuerpo de esta resolucion, que hacen al peticionario
acreedor de la misma, una parte de la opinion publica,
atizada por los recelos y las suspicacias, podria
levantarse indignada contra un sistema de probacion que
permite atisbar en los procedimientos ordinarios de una
causa criminal perturbando la quietud y la eficacia de las
decisiones ya recaidas al traer a la superficie
conclusiones enteramente differentes, en menoscabo del
interes publico que demanda el respeto de las leyes y del
veredicto judicial.
On July 3, 1937, counsel for the herein respondent Mariano Cu
Unjieng filed an exception to the resolution denying probation and
a notice of intention to file a motion for reconsideration. An
alternative motion for reconsideration or new trial was filed by
counsel on July 13, 1937. This was supplemented by an
additional motion for reconsideration submitted on July 14, 1937.
The aforesaid motions were set for hearing on July 31, 1937, but
said hearing was postponed at the petition of counsel for the
respondent Mariano Cu Unjieng because a motion for leave to
intervene in the case as amici curiae signed by thirty-three (thirty-
four) attorneys had just been filed with the trial court. Attorney
Eulalio Chaves whose signature appears in the aforesaid motion
subsequently filed a petition for leave to withdraw his appearance
as amicus curiae on the ground that the motion for leave to
intervene as amici curiae was circulated at a banquet given by
counsel for Mariano Cu Unjieng on the evening of July 30, 1937,
and that he signed the same "without mature deliberation and
purely as a matter of courtesy to the person who invited me
(him)."
On August 6, 1937, the Fiscal of the City of Manila filed a motion
with the trial court for the issuance of an order of execution of the
judgment of this court in said case and forthwith to commit the
herein respondent Mariano Cu Unjieng to jail in obedience to said
judgment.
On August 7, 1937, the private prosecution filed its opposition to
the motion for leave to intervene as amici curiae aforementioned,
asking that a date be set for a hearing of the same and that, at all
events, said motion should be denied with respect to certain
attorneys signing the same who were members of the legal staff
of the several counsel for Mariano Cu Unjieng. On August 10,
1937, herein respondent Judge Jose O. Vera issued an order
requiring all parties including the movants for intervention
as amici curiae to appear before the court on August 14, 1937.
On the last-mentioned date, the Fiscal of the City of Manila
moved for the hearing of his motion for execution of judgment in
preference to the motion for leave to intervene as amici
curiae but, upon objection of counsel for Mariano Cu Unjieng, he
moved for the postponement of the hearing of both motions. The
respondent judge thereupon set the hearing of the motion for
execution on August 21, 1937, but proceeded to consider the
motion for leave to intervene as amici curiae as in order.
Evidence as to the circumstances under which said motion for
leave to intervene as amici curiae was signed and submitted to
court was to have been heard on August 19, 1937. But at this
juncture, herein petitioners came to this court on extraordinary
legal process to put an end to what they alleged was an
interminable proceeding in the Court of First Instance of Manila
which fostered "the campaign of the defendant Mariano Cu
Unjieng for delay in the execution of the sentence imposed by this
Honorable Court on him, exposing the courts to criticism and
ridicule because of the apparent inability of the judicial machinery
to make effective a final judgment of this court imposed on the
defendant Mariano Cu Unjieng."
The scheduled hearing before the trial court was accordingly
suspended upon the issuance of a temporary restraining order by
this court on August 21, 1937.
To support their petition for the issuance of the extraordinary writs
of certiorari and prohibition, herein petitioners allege that the
respondent judge has acted without jurisdiction or in excess of his
jurisdiction:
I. Because said respondent judge lacks the power to place
respondent Mariano Cu Unjieng under probation for the following
reason:
(1) Under section 11 of Act No. 4221, the said of
the Philippine Legislature is made to apply only to
the provinces of the Philippines; it nowhere states
that it is to be made applicable to chartered cities
like the City of Manila.
(2) While section 37 of the Administrative Code
contains a proviso to the effect that in the absence
of a special provision, the term "province" may be
construed to include the City of Manila for the
purpose of giving effect to laws of general
application, it is also true that Act No. 4221 is not
a law of general application because it is made to
apply only to those provinces in which the
respective provincial boards shall have provided
for the salary of a probation officer.
(3) Even if the City of Manila were considered to
be a province, still, Act No. 4221 would not be
applicable to it because it has provided for the
salary of a probation officer as required by section
11 thereof; it being immaterial that there is an
Insular Probation Officer willing to act for the City
of Manila, said Probation Officer provided for in
section 10 of Act No. 4221 being different and
distinct from the Probation Officer provided for in
section 11 of the same Act.
II. Because even if the respondent judge originally had jurisdiction
to entertain the application for probation of the respondent
Mariano Cu Unjieng, he nevertheless acted without jurisdiction or
in excess thereof in continuing to entertain the motion for
reconsideration and by failing to commit Mariano Cu Unjieng to
prison after he had promulgated his resolution of June 28, 1937,
denying Mariano Cu Unjieng's application for probation, for the
reason that:
(1) His jurisdiction and power in probation
proceedings is limited by Act No. 4221 to the
granting or denying of applications for probation.
(2) After he had issued the order denying Mariano
Cu Unjieng's petition for probation on June 28,
1937, it became final and executory at the
moment of its rendition.
(3) No right on appeal exists in such cases.
(4) The respondent judge lacks the power to grant
a rehearing of said order or to modify or change
the same.
III. Because the respondent judge made a finding that Mariano
Cu Unjieng is innocent of the crime for which he was convicted by
final judgment of this court, which finding is not only
presumptuous but without foundation in fact and in law, and is
furthermore in contempt of this court and a violation of the
respondent's oath of office as ad interim judge of first instance.
IV. Because the respondent judge has violated and continues to
violate his duty, which became imperative when he issued his
order of June 28, 1937, denying the application for probation, to
commit his co-respondent to jail.
Petitioners also avers that they have no other plain, speedy and
adequate remedy in the ordinary course of law.
In a supplementary petition filed on September 9, 1937, the
petitioner Hongkong and Shanghai Banking Corporation further
contends that Act No. 4221 of the Philippine Legislature providing
for a system of probation for persons eighteen years of age or
over who are convicted of crime, is unconstitutional because it is
violative of section 1, subsection (1), Article III, of the Constitution
of the Philippines guaranteeing equal protection of the laws
because it confers upon the provincial board of its province the
absolute discretion to make said law operative or otherwise in
their respective provinces, because it constitutes an unlawful and
improper delegation to the provincial boards of the several
provinces of the legislative power lodged by the Jones Law
(section 8) in the Philippine Legislature and by the Constitution
(section 1, Art. VI) in the National Assembly; and for the further
reason that it gives the provincial boards, in contravention of the
Constitution (section 2, Art. VIII) and the Jones Law (section 28),
the authority to enlarge the powers of the Court of First Instance
of different provinces without uniformity. In another
supplementary petition dated September 14, 1937, the Fiscal of
the City of Manila, in behalf of one of the petitioners, the People
of the Philippine Islands, concurs for the first time with the issues
raised by other petitioner regarding the constitutionality of Act No.
4221, and on the oral argument held on October 6, 1937, further
elaborated on the theory that probation is a form of reprieve and
therefore Act. No. 4221 is an encroachment on the exclusive
power of the Chief Executive to grant pardons and reprieves. On
October 7, 1937, the City Fiscal filed two memorandums in which
he contended that Act No. 4221 not only encroaches upon the
pardoning power to the executive, but also constitute an
unwarranted delegation of legislative power and a denial of the
equal protection of the laws. On October 9, 1937, two
memorandums, signed jointly by the City Fiscal and the Solicitor-
General, acting in behalf of the People of the Philippine Islands,
and by counsel for the petitioner, the Hongkong and Shanghai
Banking Corporation, one sustaining the power of the state to
impugn the validity of its own laws and the other contending that
Act No. 4221 constitutes an unwarranted delegation of legislative
power, were presented. Another joint memorandum was filed by
the same persons on the same day, October 9, 1937, alleging
that Act No. 4221 is unconstitutional because it denies the equal
protection of the laws and constitutes an unlawful delegation of
legislative power and, further, that the whole Act is void: that the
Commonwealth is not estopped from questioning the validity of its
laws; that the private prosecution may intervene in probation
proceedings and may attack the probation law as
unconstitutional; and that this court may pass upon the
constitutional question in prohibition proceedings.
Respondents in their answer dated August 31, 1937, as well as in
their oral argument and memorandums, challenge each and
every one of the foregoing proposition raised by the petitioners.
As special defenses, respondents allege:
(1) That the present petition does not state facts
sufficient in law to warrant the issuance of the writ
of certiorari or of prohibition.
(2) That the aforesaid petition is premature
because the remedy sought by the petitioners is
the very same remedy prayed for by them before
the trial court and was still pending resolution
before the trial court when the present petition
was filed with this court.
(3) That the petitioners having themselves raised
the question as to the execution of judgment
before the trial court, said trial court has acquired
exclusive jurisdiction to resolve the same under
the theory that its resolution denying probation is
unappealable.
(4) That upon the hypothesis that this court has
concurrent jurisdiction with the Court of First
Instance to decide the question as to whether or
not the execution will lie, this court nevertheless
cannot exercise said jurisdiction while the Court of
First Instance has assumed jurisdiction over the
same upon motion of herein petitioners
themselves.
(5) That upon the procedure followed by the
herein petitioners in seeking to deprive the trial
court of its jurisdiction over the case and elevate
the proceedings to this court, should not be
tolerated because it impairs the authority and
dignity of the trial court which court while sitting in
the probation cases is "a court of limited
jurisdiction but of great dignity."
(6) That under the supposition that this court has
jurisdiction to resolve the question submitted to
and pending resolution by the trial court, the
present action would not lie because the
resolution of the trial court denying probation is
appealable; for although the Probation Law does
not specifically provide that an applicant for
probation may appeal from a resolution of the
Court of First Instance denying probation, still it is
a general rule in this jurisdiction that a final order,
resolution or decision of an inferior court is
appealable to the superior court.
(7) That the resolution of the trial court denying
probation of herein respondent Mariano Cu
Unjieng being appealable, the same had not
become final and executory for the reason that the
said respondent had filed an alternative motion for
reconsideration and new trial within the requisite
period of fifteen days, which motion the trial court
was able to resolve in view of the restraining order
improvidently and erroneously issued by this
court.lawphi1.net
(8) That the Fiscal of the City of Manila had by
implication admitted that the resolution of the trial
court denying probation is not final and
unappealable when he presented his answer to
the motion for reconsideration and agreed to the
postponement of the hearing of the said motion.
(9) That under the supposition that the order of
the trial court denying probation is not appealable,
it is incumbent upon the accused to file an action
for the issuance of the writ
of certiorari with mandamus, it appearing that the
trial court, although it believed that the accused
was entitled to probation, nevertheless denied
probation for fear of criticism because the
accused is a rich man; and that, before a petition
for certiorari grounded on an irregular exercise of
jurisdiction by the trial court could lie, it is
incumbent upon the petitioner to file a motion for
reconsideration specifying the error committed so
that the trial court could have an opportunity to
correct or cure the same.
(10) That on hypothesis that the resolution of this
court is not appealable, the trial court retains its
jurisdiction within a reasonable time to correct or
modify it in accordance with law and justice; that
this power to alter or modify an order or resolution
is inherent in the courts and may be exercise
either motu proprio or upon petition of the proper
party, the petition in the latter case taking the form
of a motion for reconsideration.
 (11) That on the hypothesis that the resolution of
the trial court is appealable as respondent allege,
said court cannot order execution of the same
while it is on appeal, for then the appeal would not
be availing because the doors of probation will be
closed from the moment the accused commences
to serve his sentence (Act No. 4221, sec. 1; U.S.
vs. Cook, 19 Fed. [2d], 827).
In their memorandums filed on October 23, 1937, counsel for the
respondents maintain that Act No. 4221 is constitutional because,
contrary to the allegations of the petitioners, it does not constitute
an undue delegation of legislative power, does not infringe the
equal protection clause of the Constitution, and does not
encroach upon the pardoning power of the Executive. In an
additional memorandum filed on the same date, counsel for the
respondents reiterate the view that section 11 of Act No. 4221 is
free from constitutional objections and contend, in addition, that
the private prosecution may not intervene in probation
proceedings, much less question the validity of Act No. 4221; that
both the City Fiscal and the Solicitor-General are estopped from
questioning the validity of the Act; that the validity of Act cannot
be attacked for the first time before this court; that probation in
unavailable; and that, in any event, section 11 of the Act No. 4221
is separable from the rest of the Act. The last memorandum for
the respondent Mariano Cu Unjieng was denied for having been
filed out of time but was admitted by resolution of this court and
filed anew on             November 5, 1937. This memorandum
elaborates on some of the points raised by the respondents and
refutes those brought up by the petitioners.
In the scrutiny of the pleadings and examination of the various
aspects of the present case, we noted that the court below, in
passing upon the merits of the application of the respondent
Mariano Cu Unjieng and in denying said application assumed the
task not only of considering the merits of the application, but of
passing upon the culpability of the applicant, notwithstanding the
final pronouncement of guilt by this court. (G.R. No. 41200.)
Probation implies guilt be final judgment. While a probation case
may look into the circumstances attending the commission of the
offense, this does not authorize it to reverse the findings and
conclusive of this court, either directly or indirectly, especially
wherefrom its own admission reliance was merely had on the
printed briefs, averments, and pleadings of the parties. As already
observed by this court in Shioji vs. Harvey ([1922], 43 Phil., 333,
337), and reiterated in subsequent cases, "if each and every
Court of First Instance could enjoy the privilege of overruling
decisions of the Supreme Court, there would be no end to
litigation, and judicial chaos would result." A becoming modesty of
inferior courts demands conscious realization of the position that
they occupy in the interrelation and operation of the intergrated
judicial system of the nation.
After threshing carefully the multifarious issues raised by both
counsel for the petitioners and the respondents, this court prefers
to cut the Gordian knot and take up at once the two fundamental
questions presented, namely, (1) whether or not the
constitutionality of Act No. 4221 has been properly raised in these
proceedings; and (2) in the affirmative, whether or not said Act is
constitutional. Considerations of these issues will involve a
discussion of certain incidental questions raised by the parties.
To arrive at a correct conclusion on the first question, resort to
certain guiding principles is necessary. It is a well-settled rule that
the constitutionality of an act of the legislature will not be
determined by the courts unless that question is properly raised
and presented inappropriate cases and is necessary to a
determination of the case; i.e., the issue of constitutionality must
be the very lis mota presented. (McGirr vs. Hamilton and Abreu
[1915], 30 Phil., 563, 568; 6 R. C. L., pp. 76, 77; 12 C. J., pp. 780-
782, 783.)
The question of the constitutionality of an act of the legislature is
frequently raised in ordinary actions. Nevertheless, resort may be
made to extraordinary legal remedies, particularly where the
remedies in the ordinary course of law even if available, are not
plain, speedy and adequate. Thus, in Cu Unjieng vs.
Patstone ([1922]), 42 Phil., 818), this court held that the question
of the constitutionality of a statute may be raised by the petitioner
in mandamus proceedings (see, also, 12 C. J., p. 783); and
in Government of the Philippine Islands vs. Springer ([1927], 50
Phil., 259 [affirmed in Springer vs. Government of the Philippine
Islands (1928), 277 U. S., 189; 72 Law. ed., 845]), this court
declared an act of the legislature unconstitutional in an action
of quo warranto brought in the name of the Government of the
Philippines. It has also been held that the constitutionality of a
statute may be questioned in habeas corpus proceedings (12 C.
J., p. 783; Bailey on Habeas Corpus, Vol. I, pp. 97, 117), although
there are authorities to the contrary; on an application for
injunction to restrain action under the challenged statute
(mandatory, see Cruz vs. Youngberg [1931], 56 Phil., 234); and
even on an application for preliminary injunction where the
determination of the constitutional question is necessary to a
decision of the case. (12 C. J., p. 783.) The same may be said as
regards prohibition and certiorari.(Yu Cong Eng vs. Trinidad
[1925], 47 Phil., 385; [1926], 271 U. S., 500; 70 Law. ed., 1059;
Bell vs. First Judicial District Court [1905], 28 Nev., 280; 81 Pac.,
875; 113 A. S. R., 854; 6 Ann. Cas., 982; 1 L. R. A. [N. S], 843,
and cases cited). The case of Yu Cong Eng vs. Trinidad, supra,
decided by this court twelve years ago was, like the present one,
an original action for certiorari and prohibition. The
constitutionality of Act No. 2972, popularly known as the Chinese
Bookkeeping Law, was there challenged by the petitioners, and
the constitutional issue was not met squarely by the respondent
in a demurrer. A point was raised "relating to the propriety of the
constitutional question being decided in original proceedings in
prohibition." This court decided to take up the constitutional
question and, with two justices dissenting, held that Act No. 2972
was constitutional. The case was elevated on writ of certiorari to
the Supreme Court of the United States which reversed the
judgment of this court and held that the Act was invalid. (271 U.
S., 500; 70 Law. ed., 1059.) On the question of jurisdiction,
however, the Federal Supreme Court, though its Chief Justice,
said:
By the Code of Civil Procedure of the Philippine Islands,
section 516, the Philippine supreme court is granted
concurrent jurisdiction in prohibition with courts of first
instance over inferior tribunals or persons, and original
jurisdiction over courts of first instance, when such courts
are exercising functions without or in excess of their
jurisdiction. It has been held by that court that the
question of the validity of the criminal statute must usually
be raised by a defendant in the trial court and be carried
regularly in review to the Supreme Court. (Cadwallader-
Gibson Lumber Co. vs. Del Rosario, 26 Phil., 192). But in
this case where a new act seriously affected numerous
persons and extensive property rights, and was likely to
cause a multiplicity of actions, the Supreme Court
exercised its discretion to bring the issue to the act's
validity promptly before it and decide in the interest of the
orderly administration of justice. The court relied by
analogy upon the cases of Ex parte Young (209 U. S.,
123;52 Law ed., 714; 13 L. R. A. [N. S.] 932; 28 Sup. Ct.
Rep., 441; 14 Ann. Ca., 764; Traux vs. Raich, 239 U. S.,
33; 60 Law. ed., 131; L. R. A. 1916D, 545; 36 Sup. Ct.
Rep., 7; Ann. Cas., 1917B, 283; and Wilson vs. New, 243
U. S., 332; 61 Law. ed., 755; L. R. A. 1917E, 938; 37 Sup.
Ct. Rep., 298; Ann. Cas. 1918A, 1024). Although
objection to the jurisdiction was raise by demurrer to the
petition, this is now disclaimed on behalf of the
respondents, and both parties ask a decision on the
merits. In view of the broad powers in prohibition granted
to that court under the Island Code, we acquiesce in the
desire of the parties.
The writ of prohibition is an extraordinary judicial writ issuing out
of a court of superior jurisdiction and directed to an inferior court,
for the purpose of preventing the inferior tribunal from usurping a
jurisdiction with which it is not legally vested. (High, Extraordinary
Legal Remedies, p. 705.) The general rule, although there is a
conflict in the cases, is that the merit of prohibition will not lie
whether the inferior court has jurisdiction independent of the
statute the constitutionality of which is questioned, because in
such cases the interior court having jurisdiction may itself
determine the constitutionality of the statute, and its decision may
be subject to review, and consequently the complainant in such
cases ordinarily has adequate remedy by appeal without resort to
the writ of prohibition. But where the inferior court or tribunal
derives its jurisdiction exclusively from an unconstitutional statute,
it may be prevented by the writ of prohibition from enforcing that
statute. (50 C. J., 670; Ex parte Round tree [1874, 51 Ala., 42; In
re Macfarland, 30 App. [D. C.], 365; Curtis vs. Cornish [1912],
109 Me., 384; 84 A., 799; Pennington vs. Woolfolk [1880], 79 Ky.,
13; State vs. Godfrey [1903], 54 W. Va., 54; 46 S. E., 185; Arnold
vs. Shields [1837], 5 Dana, 19; 30 Am. Dec., 669.)
Courts of First Instance sitting in probation proceedings derived
their jurisdiction solely from Act No. 4221 which prescribes in
detailed manner the procedure for granting probation to accused
persons after their conviction has become final and before they
have served their sentence. It is true that at common law the
authority of the courts to suspend temporarily the execution of the
sentence is recognized and, according to a number of state
courts, including those of Massachusetts, Michigan, New York,
and Ohio, the power is inherent in the courts (Commonwealth vs.
Dowdican's Bail [1874], 115 Mass., 133; People vs. Stickel
[1909], 156 Mich., 557; 121 N. W., 497; People ex rel. Forsyth vs.
Court of Session [1894], 141 N. Y., 288; Weber vs. State [1898],
58 Ohio St., 616). But, in the leading case of Ex parte United
States ([1916], 242 U. S., 27; 61 Law. ed., 129; L. R. A., 1917E,
1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355), the Supreme
Court of the United States expressed the opinion that under the
common law the power of the court was limited to temporary
suspension, and brushed aside the contention as to inherent
judicial power saying, through Chief Justice White:
Indisputably under our constitutional system the right to
try offenses against the criminal laws and upon conviction
to impose the punishment provided by law is judicial, and
it is equally to be conceded that, in exerting the powers
vested in them on such subject, courts inherently possess
ample right to exercise reasonable, that is, judicial,
discretion to enable them to wisely exert their authority.
But these concessions afford no ground for the contention
as to power here made, since it must rest upon the
proposition that the power to enforce begets inherently a
discretion to permanently refuse to do so. And the effect
of the proposition urged upon the distribution of powers
made by the Constitution will become apparent when it is
observed that indisputable also is it that the authority to
define and fix the punishment for crime is legislative and
includes the right in advance to bring within judicial
discretion, for the purpose of executing the statute,
elements of consideration which would be otherwise
beyond the scope of judicial authority, and that the right to
relieve from the punishment, fixed by law and ascertained
according to the methods by it provided belongs to the
executive department.
Justice Carson, in his illuminating concurring opinion in the case
of Director of Prisons vs. Judge of First Instance of Cavite (29
Phil., 265), decided by this court in 1915, also reached the
conclusion that the power to suspend the execution of sentences
pronounced in criminal cases is not inherent in the judicial
function. "All are agreed", he said, "that in the absence of
statutory authority, it does not lie within the power of the courts to
grant such suspensions." (at p. 278.) Both petitioner and
respondents are correct, therefore, when they argue that a Court
of First Instance sitting in probation proceedings is a court of
limited jurisdiction. Its jurisdiction in such proceedings is
conferred exclusively by Act No. 4221 of the Philippine
Legislature.
It is, of course, true that the constitutionality of a statute will not
be considered on application for prohibition where the question
has not been properly brought to the attention of the court by
objection of some kind (Hill vs. Tarver [1901], 130 Ala., 592; 30
S., 499; State ex rel. Kelly vs. Kirby [1914], 260 Mo., 120; 168 S.
W., 746). In the case at bar, it is unquestionable that the
constitutional issue has been squarely presented not only before
this court by the petitioners but also before the trial court by the
private prosecution. The respondent, Hon. Jose O Vera, however,
acting as judge of the court below, declined to pass upon the
question on the ground that the private prosecutor, not being a
party whose rights are affected by the statute, may not raise said
question. The respondent judge cited Cooley on Constitutional
Limitations (Vol. I, p. 339; 12 C. J., sec. 177, pp. 760 and 762),
and McGlue vs. Essex County ([1916], 225 Mass., 59; 113 N. E.,
742, 743), as authority for the proposition that a court will not
consider any attack made on the constitutionality of a statute by
one who has no interest in defeating it because his rights are not
affected by its operation. The respondent judge further stated that
it may not motu proprio take up the constitutional question and,
agreeing with Cooley that "the power to declare a legislative
enactment void is one which the judge, conscious of the fallibility
of the human judgment, will shrink from exercising in any case
where he can conscientiously and with due regard to duty and
official oath decline the responsibility" (Constitutional Limitations,
8th ed., Vol. I, p. 332), proceeded on the assumption that Act No.
4221 is constitutional. While therefore, the court a quo admits
that the constitutional question was raised before it, it refused to
consider the question solely because it was not raised by a
proper party. Respondents herein reiterates this view. The
argument is advanced that the private prosecution has no
personality to appear in the hearing of the application for
probation of defendant Mariano Cu Unjieng in criminal case No.
42648 of the Court of First Instance of Manila, and hence the
issue of constitutionality was not properly raised in the lower
court. Although, as a general rule, only those who are parties to a
suit may question the constitutionality of a statute involved in a
judicial decision, it has been held that since the decree
pronounced by a court without jurisdiction is void, where the
jurisdiction of the court depends on the validity of the statute in
question, the issue of the constitutionality will be considered on its
being brought to the attention of the court by persons interested
in the effect to be given the statute.(12 C. J., sec. 184, p. 766.)
And, even if we were to concede that the issue was not properly
raised in the court below by the proper party, it does not follow
that the issue may not be here raised in an original action
of certiorari and prohibitions. It is true that, as a general rule, the
question of constitutionality must be raised at the earliest
opportunity, so that if not raised by the pleadings, ordinarily it may
not be raised at the trial, and if not raised in the trial court, it will
not considered on appeal. (12 C. J., p. 786. See,
also, Cadwallader-Gibson Lumber Co. vs. Del Rosario, 26 Phil.,
192, 193-195.) But we must state that the general rule admits of
exceptions. Courts, in the exercise of sounds discretion, may
determine the time when a question affecting the constitutionality
of a statute should be presented. (In re Woolsey [1884], 95 N. Y.,
135, 144.) Thus, in criminal cases, although there is a very sharp
conflict of authorities, it is said that the question may be raised for
the first time at any stage of the proceedings, either in the trial
court or on appeal. (12 C. J., p. 786.) Even in civil cases, it has
been held that it is the duty of a court to pass on the constitutional
question, though raised for the first time on appeal, if it appears
that a determination of the question is necessary to a decision of
the case. (McCabe's Adm'x vs. Maysville & B. S. R. Co., [1910],
136 ky., 674; 124 S. W., 892; Lohmeyer vs. St. Louis Cordage
Co. [1908], 214 Mo., 685; 113 S. W. 1108; Carmody vs. St. Louis
Transit Co., [1905], 188 Mo., 572; 87 S. W., 913.) And it has been
held that a constitutional question will be considered by an
appellate court at any time, where it involves the jurisdiction of the
court below (State vs. Burke [1911], 175 Ala., 561; 57 S., 870.)
As to the power of this court to consider the constitutional
question raised for the first time before this court in these
proceedings, we turn again and point with emphasis to the case
of Yu Cong Eng vs. Trinidad, supra. And on the hypotheses that
the Hongkong & Shanghai Banking Corporation, represented by
the private prosecution, is not the proper party to raise the
constitutional question here — a point we do not now have to
decide — we are of the opinion that the People of the Philippines,
represented by the Solicitor-General and the Fiscal of the City of
Manila, is such a proper party in the present proceedings. The
unchallenged rule is 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 sustained, direct injury as a
result of its enforcement. It goes without saying that if Act No.
4221 really violates the constitution, the People of the Philippines,
in whose name the present action is brought, has a substantial
interest in having it set aside. Of grater import than the damage
caused by the illegal expenditure of public funds is the mortal
wound inflicted upon the fundamental law by the enforcement of
an invalid statute. Hence, the well-settled rule that the state can
challenge the validity of its own laws. In Government of the
Philippine Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in
Springer vs. Government of the Philippine Islands [1928], 277
U.S., 189; 72 Law. ed., 845), this court declared an act of the
legislature unconstitutional in an action instituted in behalf of the
Government of the Philippines. In Attorney General vs. Perkins
([1889], 73 Mich., 303, 311, 312; 41 N. W. 426, 428, 429), the
State of Michigan, through its Attorney General, instituted quo
warranto proceedings to test the right of the respondents to
renew a mining corporation, alleging that the statute under which
the respondents base their right was unconstitutional because it
impaired the obligation of contracts. The capacity of the chief law
officer of the state to question the constitutionality of the statute
was though, as a general rule, only those who are parties to a suit
may question the constitutionality of a statute involved in a judicial
decision, it has been held that since the decree pronounced by a
court without jurisdiction in void, where the jurisdiction of the court
depends on the validity of the statute in question, the issue of
constitutionality will be considered on its being brought to the
attention of the court by persons interested in the effect to begin
the statute. (12 C.J., sec. 184, p. 766.) And, even if we were to
concede that the issue was not properly raised in the court below
by the proper party, it does not follow that the issue may not be
here raised in an original action of certiorari and prohibition. It is
true that, as a general rule, the question of constitutionality must
be raised at the earliest opportunity, so that if not raised by the
pleadings, ordinarily it may not be raised a the trial, and if not
raised in the trial court, it will not be considered on appeal. (12
C.J., p. 786. See, also, Cadwallader-Gibson Lumber Co. vs. Del
Rosario, 26 Phil., 192, 193-195.) But we must state that the
general rule admits of exceptions. Courts, in the exercise of
sound discretion, may determine the time when a question
affecting the constitutionality of a statute should be presented. (In
re Woolsey [19884], 95 N.Y., 135, 144.) Thus, in criminal cases,
although there is a very sharp conflict of authorities, it is said that
the question may be raised for the first time at any state of the
proceedings, either in the trial court or on appeal. (12 C.J., p.
786.) Even in civil cases, it has been held that it is the duty of a
court to pass on the constitutional question, though raised for first
time on appeal, if it appears that a determination of the question
is necessary to a decision of the case. (McCabe's Adm'x vs.
Maysville & B. S. R. Co. [1910], 136 Ky., 674; 124 S. W., 892;
Lohmeyer vs. St. Louis, Cordage Co. [1908], 214 Mo. 685; 113 S.
W., 1108; Carmody vs. St. Louis Transit Co. [1905], 188 Mo.,
572; 87 S. W., 913.) And it has been held that a constitutional
question will be considered by an appellate court at any time,
where it involves the jurisdiction of the court below (State vs.
Burke [1911], 175 Ala., 561; 57 S., 870.) As to the power of this
court to consider the constitutional question raised for the first
time before this court in these proceedings, we turn again and
point with emphasis to the case of Yu Cong Eng. vs. Trinidad,
supra. And on the hypothesis that the Hongkong & Shanghai
Banking Corporation, represented by the private prosecution, is
not the proper party to raise the constitutional question here — a
point we do not now have to decide — we are of the opinion that
the People of the Philippines, represented by the Solicitor-
General and the Fiscal of the City of Manila, is such a proper
party in the present proceedings. The unchallenged rule is that
the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its
enforcement. It goes without saying that if Act No. 4221 really
violates the Constitution, the People of the Philippines, in whose
name the present action is brought, has a substantial interest in
having it set aside. Of greater import than the damage caused by
the illegal expenditure of public funds is the mortal wound inflicted
upon the fundamental law by the enforcement of an invalid
statute. Hence, the well-settled rule that the state can challenge
the validity of its own laws. In Government of the Philippine
Islands vs. Springer ([1927]), 50 Phil., 259 (affirmed in Springer
vs. Government of the Philippine Islands [1928], 277 U.S., 189;
72 Law. ed., 845), this court declared an act of the legislature
unconstitutional in an action instituted in behalf of the
Government of the Philippines. In Attorney General vs.
Perkings([1889], 73 Mich., 303, 311, 312; 41 N.W., 426, 428,
429), the State of Michigan, through its Attorney General,
instituted quo warranto proceedings to test the right of the
respondents to renew a mining corporation, alleging that the
statute under which the respondents base their right was
unconstitutional because it impaired the obligation of contracts.
The capacity of the chief law officer of the state to question the
constitutionality of the statute was itself questioned. Said the
Supreme Court of Michigan, through Champlin, J.:
. . . The idea seems to be that the people are estopped
from questioning the validity of a law enacted by their
representatives; that to an accusation by the people of
Michigan of usurpation their government, a statute
enacted by the people of Michigan is an adequate
answer. The last proposition is true, but, if the statute
relied on in justification is unconstitutional, it is statute
only in form, and lacks the force of law, and is of no more
saving effect to justify action under it than if it had never
been enacted. The constitution is the supreme law, and to
its behests the courts, the legislature, and the people
must bow . . . The legislature and the respondents are not
the only parties in interest upon such constitutional
questions. As was remarked by Mr. Justice Story, in
speaking of an acquiescence by a party affected by an
unconstitutional act of the legislature: "The people have a
deep and vested interest in maintaining all the
constitutional limitations upon the exercise of legislative
powers." (Allen vs. Mckeen, 1 Sum., 314.)
In State vs. Doane ([1916], 98 Kan., 435; 158 Pac., 38, 40), an
original action (mandamus) was brought by the Attorney-General
of Kansas to test the constitutionality of a statute of the state. In
disposing of the question whether or not the state may bring the
action, the Supreme Court of Kansas said:
. . . the state is a proper party — indeed, the proper party
— to bring this action. The state is always interested
where the integrity of its Constitution or statutes is
involved.
"It has an interest in seeing that the will of
the Legislature is not disregarded, and
need not, as an individual plaintiff must,
show grounds of fearing more specific
injury. (State vs. Kansas City 60 Kan., 518
[57 Pac., 118])." (State vs. Lawrence, 80
Kan., 707; 103 Pac., 839.)
Where the constitutionality of a statute is in doubt the
state's law officer, its Attorney-General, or county
attorney, may exercise his bet judgment as to what sort of
action he will bring to have the matter determined, either
by quo warranto to challenge its validity (State vs.
Johnson, 61 Kan., 803; 60 Pac., 1068; 49 L.R.A., 662), by
mandamus to compel obedience to its terms (State vs.
Dolley, 82 Kan., 533; 108 Pac., 846), or by injunction to
restrain proceedings under its questionable provisions
(State ex rel. vs. City of Neodesha, 3 Kan. App., 319; 45
Pac., 122).
Other courts have reached the same conclusion (See State vs.
St. Louis S. W. Ry. Co. [1917], 197 S. W., 1006; State vs. S.H.
Kress & Co. [1934], 155 S., 823; State vs. Walmsley [1935], 181
La., 597; 160 S., 91; State vs. Board of County Comr's [1934], 39
Pac. [2d], 286; First Const. Co. of Brooklyn vs. State [1917], 211
N.Y., 295; 116 N.E., 1020; Bush vs. State {1918], 187 Ind., 339;
119 N.E., 417; State vs. Watkins [1933], 176 La., 837; 147 S., 8,
10, 11). In the case last cited, the Supreme Court of Luisiana
said:
It is contended by counsel for Herbert Watkins that a
district attorney, being charged with the duty of enforcing
the laws, has no right to plead that a law is
unconstitutional. In support of the argument three
decisions are cited, viz.: State ex rel. Hall, District
Attorney, vs. Judge of Tenth Judicial District (33 La. Ann.,
1222); State ex rel. Nicholls, Governor vs. Shakespeare,
Mayor of New Orleans (41 Ann., 156; 6 So., 592); and
State ex rel., Banking Co., etc. vs. Heard, Auditor (47 La.
Ann., 1679; 18 So., 746; 47 L. R. A., 512). These
decisions do not forbid a district attorney to plead that a
statute is unconstitutional if he finds if in conflict with one
which it is his duty to enforce. In State ex rel. Hall, District
Attorney, vs. Judge, etc., the ruling was the judge should
not, merely because he believed a certain statute to be
unconstitutional forbid the district attorney to file a bill of
information charging a person with a violation of the
statute. In other words, a judge should not judicially
declare a statute unconstitutional until the question of
constitutionality is tendered for decision, and unless it
must be decided in order to determine the right of a party
litigant. State ex rel. Nicholls, Governor, etc., is authority
for the proposition merely that an officer on whom a
statute imposes the duty of enforcing its provisions cannot
avoid the duty upon the ground that he considers the
statute unconstitutional, and hence in enforcing the
statute he is immune from responsibility if the statute be
unconstitutional. State ex rel. Banking Co., etc., is
authority for the proposition merely that executive officers,
e.g., the state auditor and state treasurer, should not
decline to perform ministerial duties imposed upon them
by a statute, on the ground that they believe the statute is
unconstitutional.
It is the duty of a district attorney to enforce the criminal
laws of the state, and, above all, to support the
Constitution of the state. If, in the performance of his duty
he finds two statutes in conflict with each other, or one
which repeals another, and if, in his judgment, one of the
two statutes is unconstitutional, it is his duty to enforce the
other; and, in order to do so, he is compelled to submit to
the court, by way of a plea, that one of the statutes is
unconstitutional. If it were not so, the power of the
Legislature would be free from constitutional limitations in
the enactment of criminal laws.
The respondents do not seem to doubt seriously the correctness
of the general proposition that the state may impugn the validity
of its laws. They have not cited any authority running clearly in
the opposite direction. In fact, they appear to have proceeded on
the assumption that the rule as stated is sound but that it has no
application in the present case, nor may it be invoked by the City
Fiscal in behalf of the People of the Philippines, one of the
petitioners herein, the principal reasons being that the validity
before this court, that the City Fiscal is estopped from attacking
the validity of the Act and, not authorized challenge the validity of
the Act in its application outside said city. (Additional
memorandum of respondents, October 23, 1937, pp. 8,. 10, 17
and 23.)
The mere fact that the Probation Act has been repeatedly relied
upon the past and all that time has not been attacked as
unconstitutional by the Fiscal of Manila but, on the contrary, has
been impliedly regarded by him as constitutional, is no reason for
considering the People of the Philippines estopped from nor
assailing its validity. For courts will pass upon a constitutional
questions only when presented before it in bona fide cases for
determination, and the fact that the question has not been raised
before is not a valid reason for refusing to allow it to be raised
later. The fiscal and all others are justified in relying upon the
statute and treating it as valid until it is held void by the courts in
proper cases.
It remains to consider whether the determination of the
constitutionality of Act No. 4221 is necessary to the resolution of
the instant case. For, ". . . while the court will meet the question
with firmness, where its decision is indispensable, it is the part of
wisdom, and just respect for the legislature, renders it proper, to
waive it, if the case in which it arises, can be decided on other
points." (Ex parte Randolph [1833], 20 F. Cas. No. 11, 558; 2
Brock., 447. Vide, also Hoover vs. wood [1857], 9 Ind., 286, 287.)
It has been held that the determination of a constitutional
question is necessary whenever it is essential to the decision of
the case (12 C. J., p. 782, citing Long Sault Dev. Co. vs. Kennedy
[1913], 158 App. Div., 398; 143 N. Y. Supp., 454 [aff. 212 N.Y., 1:
105 N. E., 849; Ann. Cas. 1915D, 56; and app dism 242 U.S.,
272]; Hesse vs. Ledesma, 7 Porto Rico Fed., 520; Cowan vs.
Doddridge, 22 Gratt [63 Va.], 458; Union Line Co., vs. Wisconsin
R. Commn., 146 Wis., 523; 129 N. W., 605), as where the right of
a party is founded solely on a statute the validity of which is
attacked. (12 C.J., p. 782, citing Central Glass Co. vs. Niagrara F.
Ins. Co., 131 La., 513; 59 S., 972; Cheney vs. Beverly, 188
Mass., 81; 74 N.E., 306). There is no doubt that the respondent
Cu Unjieng draws his privilege to probation solely from Act No.
4221 now being assailed.
Apart from the foregoing considerations, that court will also take
cognizance of the fact that the Probation Act is a new addition to
our statute books and its validity has never before been passed
upon by the courts; that may persons accused and convicted of
crime in the City of Manila have applied for probation; that some
of them are already on probation; that more people will likely take
advantage of the Probation Act in the future; and that the
respondent Mariano Cu Unjieng has been at large for a period of
about four years since his first conviction. All wait the decision of
this court on the constitutional question. Considering, therefore,
the importance which the instant case has assumed and to
prevent multiplicity of suits, strong reasons of public policy
demand that the constitutionality of Act No. 4221 be now
resolved. (Yu Cong Eng vs. Trinidad [1925], 47 Phil., 385; [1926],
271 U.S., 500; 70 Law. ed., 1059. See 6 R.C.L., pp. 77, 78;
People vs. Kennedy [1913], 207 N.Y., 533; 101 N.E., 442, 444;
Ann. Cas. 1914C, 616; Borginis vs. Falk Co. [1911], 147 Wis.,
327; 133 N.W., 209, 211; 37 L.R.A. [N.S.] 489; Dimayuga and
Fajardo vs. Fernandez [1922], 43 Phil., 304.) In Yu Cong Eng vs.
Trinidad, supra, an analogous situation confronted us. We said:
"Inasmuch as the property and personal rights of nearly twelve
thousand merchants are affected by these proceedings, and
inasmuch as Act No. 2972 is a new law not yet interpreted by the
courts, in the interest of the public welfare and for the
advancement of public policy, we have determined to overrule the
defense of want of jurisdiction in order that we may decide the
main issue. We have here an extraordinary situation which calls
for a relaxation of the general rule." Our ruling on this point was
sustained by the Supreme Court of the United States. A more
binding authority in support of the view we have taken can not be
found.
We have reached the conclusion that the question of the
constitutionality of Act No. 4221 has been properly raised. Now
for the main inquiry: Is the Act unconstitutional?
Under a doctrine peculiarly American, it is the office and duty of
the judiciary to enforce the Constitution. This court, by clear
implication from the provisions of section 2, subsection 1, and
section 10, of Article VIII of the Constitution, may declare an act
of the national legislature invalid because in conflict with the
fundamental lay. It will not shirk from its sworn duty to enforce the
Constitution. And, in clear cases, it will not hesitate to give effect
to the supreme law by setting aside a statute in conflict therewith.
This is of the essence of judicial duty.
This court is not unmindful of the fundamental criteria in cases of
this nature that all reasonable doubts should be resolved in favor
of the constitutionality of a statute. An act of the legislature
approved by the executive, is presumed to be within constitutional
limitations. The responsibility of upholding the Constitution rests
not on the courts alone but on the legislature as well. "The
question of the validity of every statute is first determined by the
legislative department of the government itself." (U.S. vs. Ten Yu
[1912], 24 Phil., 1, 10; Case vs. Board of Health and Heiser
[1913], 24 Phil., 250, 276; U.S. vs. Joson [1913], 26 Phil., 1.) And
a statute finally comes before the courts sustained by the
sanction of the executive. The members of the Legislature and
the Chief Executive have taken an oath to support the
Constitution and it must be presumed that they have been true to
this oath and that in enacting and sanctioning a particular law
they did not intend to violate the Constitution. The courts cannot
but cautiously exercise its power to overturn the solemn
declarations of two of the three grand departments of the
governments. (6 R.C.L., p. 101.) Then, there is that peculiar
political philosophy which bids the judiciary to reflect the wisdom
of the people as expressed through an elective Legislature and
an elective Chief Executive. It follows, therefore, that the courts
will not set aside a law as violative of the Constitution except in a
clear case. This is a proposition too plain to require a citation of
authorities.
One of the counsel for respondents, in the course of his
impassioned argument, called attention to the fact that the
President of the Philippines had already expressed his opinion
against the constitutionality of the Probation Act, adverting that as
to the Executive the resolution of this question was a foregone
conclusion. Counsel, however, reiterated his confidence in the
integrity and independence of this court. We take notice of the
fact that the President in his message dated September 1, 1937,
recommended to the National Assembly the immediate repeal of
the Probation Act (No. 4221); that this message resulted in the
approval of Bill No. 2417 of the Nationality Assembly repealing
the probation Act, subject to certain conditions therein mentioned;
but that said bill was vetoed by the President on September 13,
1937, much against his wish, "to have stricken out from the
statute books of the Commonwealth a law . . . unfair and very
likely unconstitutional." It is sufficient to observe in this connection
that, in vetoing the bill referred to, the President exercised his
constitutional prerogative. He may express the reasons which he
may deem proper for taking such a step, but his reasons are not
binding upon us in the determination of actual controversies
submitted for our determination. Whether or not the Executive
should express or in any manner insinuate his opinion on a
matter encompassed within his broad constitutional power of veto
but which happens to be at the same time pending determination
in this court is a question of propriety for him exclusively to decide
or determine. Whatever opinion is expressed by him under these
circumstances, however, cannot sway our judgment on way or
another and prevent us from taking what in our opinion is the
proper course of action to take in a given case. It if is ever
necessary for us to make any vehement affirmance during this
formative period of our political history, it is that we are
independent of the Executive no less than of the Legislative
department of our government — independent in the performance
of our functions, undeterred by any consideration, free from
politics, indifferent to popularity, and unafraid of criticism in the
accomplishment of our sworn duty as we see it and as we
understand it.
The constitutionality of Act No. 4221 is challenged on three
principal grounds: (1) That said Act encroaches upon the
pardoning power of the Executive; (2) that its constitutes an
undue delegation of legislative power and (3) that it denies the
equal protection of the laws.
1. Section 21 of the Act of Congress of August 29, 1916,
commonly known as the Jones Law, in force at the time of the
approval of Act No. 4221, otherwise known as the Probation Act,
vests in the Governor-General of the Philippines "the exclusive
power to grant pardons and reprieves and remit fines and
forfeitures". This power is now vested in the President of the
Philippines. (Art. VII, sec. 11, subsec. 6.) The provisions of the
Jones Law and the Constitution differ in some respects. The
adjective "exclusive" found in the Jones Law has been omitted
from the Constitution. Under the Jones Law, as at common law,
pardon could be granted any time after the commission of the
offense, either before or after conviction (Vide Constitution of the
United States, Art. II, sec. 2; In re Lontok [1922], 43 Phil., 293).
The Governor-General of the Philippines was thus empowered,
like the President of the United States, to pardon a person before
the facts of the case were fully brought to light. The framers of our
Constitution thought this undesirable and, following most of the
state constitutions, provided that the pardoning power can only be
exercised "after conviction". So, too, under the new Constitution,
the pardoning power does not extend to "cases of impeachment".
This is also the rule generally followed in the United States
(Vide Constitution of the United States, Art. II, sec. 2). The rule in
England is different. There, a royal pardon can not be pleaded in
bar of an impeachment; "but," says Blackstone, "after the
impeachment has been solemnly heard and determined, it is not
understood that the king's royal grace is further restrained or
abridged." (Vide, Ex parte Wells [1856], 18 How., 307; 15 Law.
ed., 421; Com. vs. Lockwood [1872], 109 Mass., 323; 12 Am.
Rep., 699; Sterling vs. Drake [1876], 29 Ohio St., 457; 23 am.
Rep., 762.) The reason for the distinction is obvious. In England,
Judgment on impeachment is not confined to mere "removal from
office and disqualification to hold and enjoy any office of honor,
trust, or profit under the Government" (Art. IX, sec. 4, Constitution
of the Philippines) but extends to the whole punishment attached
by law to the offense committed. The House of Lords, on a
conviction may, by its sentence, inflict capital punishment,
perpetual banishment, perpetual banishment, fine or
imprisonment, depending upon the gravity of the offense
committed, together with removal from office and incapacity to
hold office. (Com. vs. Lockwood, supra.) Our Constitution also
makes specific mention of "commutation" and of the power of the
executive to impose, in the pardons he may grant, such
conditions, restrictions and limitations as he may deem proper.
Amnesty may be granted by the President under the Constitution
but only with the concurrence of the National Assembly. We need
not dwell at length on the significance of these fundamental
changes. It is sufficient for our purposes to state that the
pardoning power has remained essentially the same. The
question is: Has the pardoning power of the Chief Executive
under the Jones Law been impaired by the Probation Act?
As already stated, the Jones Law vests the pardoning power
exclusively in the Chief Executive. The exercise of the power may
not, therefore, be vested in anyone else. 
". . . The benign prerogative of mercy reposed in the executive
cannot be taken away nor fettered by any legislative restrictions,
nor can like power be given by the legislature to any other officer
or authority. The coordinate departments of government have
nothing to do with the pardoning power, since no person properly
belonging to one of the departments can exercise any powers
appertaining to either of the others except in cases expressly
provided for by the constitution." (20 R.C.L., pp., , and cases
cited.) " . . . where the pardoning power is conferred on the
executive without express or implied limitations, the grant is
exclusive, and the legislature can neither exercise such power
itself nor delegate it elsewhere, nor interfere with or control the
proper exercise thereof, . . ." (12 C.J., pp. 838, 839, and cases
cited.) If Act No. 4221, then, confers any pardoning power upon
the courts it is for that reason unconstitutional and void. But does
it?
In the famous Killitts decision involving an embezzlement case,
the Supreme Court of the United States ruled in 1916 that an
order indefinitely suspending sentenced was void. (Ex
parte United States [1916], 242 U.S., 27; 61 Law. ed., 129; L.R.A.
1917E, 1178; 37 Sup. Ct. Rep., 72; Ann. Cas. 1917B, 355.) Chief
Justice White, after an exhaustive review of the authorities,
expressed the opinion of the court that under the common law the
power of the court was limited to temporary suspension and that
the right to suspend sentenced absolutely and permanently was
vested in the executive branch of the government and not in the
judiciary. But, the right of Congress to establish probation by
statute was conceded. Said the court through its Chief Justice: ". .
. and so far as the future is concerned, that is, the causing of the
imposition of penalties as fixed to be subject, by probation
legislation or such other means as the legislative mind may
devise, to such judicial discretion as may be adequate to enable
courts to meet by the exercise of an enlarged but wise discretion
the infinite variations which may be presented to them for
judgment, recourse must be had Congress whose legislative
power on the subject is in the very nature of things adequately
complete." (Quoted in Riggs vs. United States [1926], 14 F. [2d],
5, 6.) This decision led the National Probation Association and
others to agitate for the enactment by Congress of a federal
probation law. Such action was finally taken on March 4, 1925
(chap. 521, 43 Stat. L. 159, U.S.C. title 18, sec. 724). This was
followed by an appropriation to defray the salaries and expenses
of a certain number of probation officers chosen by civil service.
(Johnson, Probation for Juveniles and Adults, p. 14.)
In United States vs. Murray ([1925], 275 U.S., 347; 48 Sup. Ct.
Rep., 146; 72 Law. ed., 309), the Supreme Court of the United
States, through Chief Justice Taft, held that when a person
sentenced to imprisonment by a district court has begun to serve
his sentence, that court has no power under the Probation Act of
March 4, 1925 to grant him probation even though the term at
which sentence was imposed had not yet expired. In this case of
Murray, the constitutionality of the probation Act was not
considered but was assumed. The court traced the history of the
Act and quoted from the report of the Committee on the Judiciary
of the United States House of Representatives (Report No. 1377,
68th Congress, 2 Session) the following statement:
Prior to the so-called Killitts case, rendered in December,
1916, the district courts exercised a form of probation
either, by suspending sentence or by placing the
defendants under state probation officers or volunteers. In
this case, however (Ex parte United States, 242 U.S., 27;
61 L. Ed., 129; L.R.A., 1917E, 1178; 37 Sup. Ct. Rep., 72
Ann. Cas. 1917B, 355), the Supreme Court denied the
right of the district courts to suspend sentenced. In the
same opinion the court pointed out the necessity for
action by Congress if the courts were to exercise
probation powers in the future . . .
Since this decision was rendered, two attempts have
been made to enact probation legislation. In 1917, a bill
was favorably reported by the Judiciary Committee and
passed the House. In 1920, the judiciary Committee again
favorably reported a probation bill to the House, but it was
never reached for definite action.
If this bill is enacted into law, it will bring the policy of the
Federal government with reference to its treatment of
those convicted of violations of its criminal laws in
harmony with that of the states of the Union. At the
present time every state has a probation law, and in all
but twelve states the law applies both to adult and
juvenile offenders. (see, also, Johnson, Probation for
Juveniles and Adults [1928], Chap. I.)
The constitutionality of the federal probation law has been
sustained by inferior federal courts. In Riggs vs. United
States supra, the Circuit Court of Appeals of the Fourth Circuit
said:
Since the passage of the Probation Act of March 4, 1925,
the questions under consideration have been reviewed by
the Circuit Court of Appeals of the Ninth Circuit (7 F. [2d],
590), and the constitutionality of the act fully sustained,
and the same held in no manner to encroach upon the
pardoning power of the President. This case will be found
to contain an able and comprehensive review of the law
applicable here. It arose under the act we have to
consider, and to it and the authorities cited therein special
reference is made (Nix vs. James, 7 F. [2d], 590, 594), as
is also to a decision of the Circuit Court of Appeals of the
Seventh Circuit (Kriebel vs. U.S., 10 F. [2d], 762), likewise
construing the Probation Act.
We have seen that in 1916 the Supreme Court of the United
States; in plain and unequivocal language, pointed to Congress
as possessing the requisite power to enact probation laws, that a
federal probation law as actually enacted in 1925, and that the
constitutionality of the Act has been assumed by the Supreme
Court of the United States in 1928 and consistently sustained by
the inferior federal courts in a number of earlier cases.
We are fully convinced that the Philippine Legislature, like the
Congress of the United States, may legally enact a probation law
under its broad power to fix the punishment of any and all penal
offenses. This conclusion is supported by other authorities. In Ex
parte Bates ([1915], 20 N. M., 542; L.R.A. 1916A, 1285; 151 Pac.,
698, the court said: "It is clearly within the province of the
Legislature to denominate and define all classes of crime, and to
prescribe for each a minimum and maximum punishment." And in
State vs. Abbott ([1910], 87 S.C., 466; 33 L.R.A. [N. S.], 112; 70
S. E., 6; Ann. Cas. 1912B, 1189), the court said: "The legislative
power to set punishment for crime is very broad, and in the
exercise of this power the general assembly may confer on trial
judges, if it sees fit, the largest discretion as to the sentence to be
imposed, as to the beginning and end of the punishment and
whether it should be certain or indeterminate or conditional."
(Quoted in State vs. Teal [1918], 108 S. C., 455; 95 S. E., 69.)
Indeed, the Philippine Legislature has defined all crimes and fixed
the penalties for their violation. Invariably, the legislature has
demonstrated the desire to vest in the courts — particularly the
trial courts — large discretion in imposing the penalties which the
law prescribes in particular cases. It is believed that justice can
best be served by vesting this power in the courts, they being in a
position to best determine the penalties which an individual
convict, peculiarly circumstanced, should suffer. Thus, while
courts are not allowed to refrain from imposing a sentence merely
because, taking into consideration the degree of malice and the
injury caused by the offense, the penalty provided by law is
clearly excessive, the courts being allowed in such case to submit
to the Chief Executive, through the Department of Justice, such
statement as it may deem proper (see art. 5, Revised Penal
Code), in cases where both mitigating and aggravating
circumstances are attendant in the commission of a crime and the
law provides for a penalty composed of two indivisible penalties,
the courts may allow such circumstances to offset one another in
consideration of their number and importance, and to apply the
penalty according to the result of such compensation. (Art. 63,
rule 4, Revised Penal Code; U.S. vs. Reguera and Asuategui
[1921], 41 Phil., 506.) Again, article 64, paragraph 7, of the
Revised Penal Code empowers the courts to determine, within
the limits of each periods, in case the penalty prescribed by law
contains three periods, the extent of the evil produced by the
crime. In the imposition of fines, the courts are allowed to fix any
amount within the limits established by law, considering not only
the mitigating and aggravating circumstances, but more
particularly the wealth or means of the culprit. (Art. 66, Revised
Penal Code.) Article 68, paragraph 1, of the same Code provides
that "a discretionary penalty shall be imposed" upon a person
under fifteen but over nine years of age, who has not acted
without discernment, but always lower by two degrees at least
than that prescribed by law for the crime which he has committed.
Article 69 of the same Code provides that in case of "incomplete
self-defense", i.e., when the crime committed is not wholly
excusable by reason of the lack of some of the conditions
required to justify the same or to exempt from criminal liability in
the several cases mentioned in article 11 and 12 of the Code,
"the courts shall impose the penalty in the period which may be
deemed proper, in view of the number and nature of the
conditions of exemption present or lacking." And, in case the
commission of what are known as "impossible" crimes, "the court,
having in mind the social danger and the degree of criminality
shown by the offender," shall impose upon him either arresto
mayor or a fine ranging from 200 to 500 pesos. (Art. 59, Revised
Penal Code.)
Under our Revised Penal Code, also, one-half of the period of
preventive imprisonment is deducted form the entire term of
imprisonment, except in certain cases expressly mentioned (art.
29); the death penalty is not imposed when the guilty person is
more than seventy years of age, or where upon appeal or revision
of the case by the Supreme Court, all the members thereof are
not unanimous in their voting as to the propriety of the imposition
of the death penalty (art. 47, see also, sec. 133, Revised
Administrative Code, as amended by Commonwealth Act No. 3);
the death sentence is not to be inflicted upon a woman within the
three years next following the date of the sentence or while she is
pregnant, or upon any person over seventy years of age (art. 83);
and when a convict shall become insane or an imbecile after final
sentence has been pronounced, or while he is serving his
sentenced, the execution of said sentence shall be suspended
with regard to the personal penalty during the period of such
insanity or imbecility (art. 79).
But the desire of the legislature to relax what might result in the
undue harshness of the penal laws is more clearly demonstrated
in various other enactments, including the probation Act. There is
the Indeterminate Sentence Law enacted in 1933 as Act No.
4103 and subsequently amended by Act No. 4225, establishing a
system of parole (secs. 5 to 100 and granting the courts large
discretion in imposing the penalties of the law. Section 1 of the
law as amended provides; "hereafter, in imposing a prison
sentence for an offenses punished by the Revised Penal Code, or
its amendments, the court shall sentence the accused to an
indeterminate sentence the maximum term of which shall be that
which, in view of the attending circumstances, could be properly
imposed under the rules of the said Code, and to a minimum
which shall be within the range of the penalty next lower to that
prescribed by the Code for the offense; and if the offense is
punished by any other law, the court shall sentence the accused
to an indeterminate sentence, the maximum term of which shall
not exceed the maximum fixed by said law and the minimum shall
not be less than the minimum term prescribed by the same."
Certain classes of convicts are, by section 2 of the law, excluded
from the operation thereof. The Legislature has also enacted the
Juvenile Delinquency Law (Act No. 3203) which was
subsequently amended by Act No. 3559. Section 7 of the original
Act and section 1 of the amendatory Act have become article 80
of the Revised Penal Code, amended by Act No. 4117 of the
Philippine Legislature and recently reamended by Commonwealth
Act No. 99 of the National Assembly. In this Act is again
manifested the intention of the legislature to "humanize" the penal
laws. It allows, in effect, the modification in particular cases of the
penalties prescribed by law by permitting the suspension of the
execution of the judgment in the discretion of the trial court, after
due hearing and after investigation of the particular
circumstances of the offenses, the criminal record, if any, of the
convict, and his social history. The Legislature has in reality
decreed that in certain cases no punishment at all shall be
suffered by the convict as long as the conditions of probation are
faithfully observed. It this be so, then, it cannot be said that the
Probation Act comes in conflict with the power of the Chief
Executive to grant pardons and reprieves, because, to use the
language of the Supreme Court of New Mexico, "the element of
punishment or the penalty for the commission of a wrong, while to
be declared by the courts as a judicial function under and within
the limits of law as announced by legislative acts, concerns solely
the procedure and conduct of criminal causes, with which the
executive can have nothing to do." (Ex parteBates, supra.) In
Williams vs. State ([1926], 162 Ga., 327; 133 S.E., 843), the court
upheld the constitutionality of the Georgia probation statute
against the contention that it attempted to delegate to the courts
the pardoning power lodged by the constitution in the governor
alone is vested with the power to pardon after final sentence has
been imposed by the courts, the power of the courts to imposed
any penalty which may be from time to time prescribed by law
and in such manner as may be defined cannot be questioned."
We realize, of course, the conflict which the American cases
disclose. Some cases hold it unlawful for the legislature to vest in
the courts the power to suspend the operation of a sentenced, by
probation or otherwise, as to do so would encroach upon the
pardoning power of the executive. (In re Webb [1895], 89 Wis.,
354; 27 L.R.A., 356; 46 Am. St. Rep., 846; 62 N.W., 177; 9 Am.
Crim., Rep., 702; State ex rel. Summerfield vs. Moran [1919], 43
Nev., 150; 182 Pac., 927; Ex parte Clendenning [1908], 22 Okla.,
108; 1 Okla. Crim. Rep., 227; 19 L.R.A. [N.S.], 1041; 132 Am. St.
Rep., 628; 97 Pac., 650; People vs. Barrett [1903], 202 Ill, 287;
67 N.E., 23; 63 L.R.A., 82; 95 Am. St. Rep., 230; Snodgrass vs.
State [1912], 67 Tex. Crim. Rep., 615; 41 L. R. A. [N. S.], 1144;
150 S. W., 162; Ex parte Shelor [1910], 33 Nev., 361;111 Pac.,
291; Neal vs. State [1898], 104 Ga., 509; 42 L. R. A., 190; 69 Am.
St. Rep., 175; 30 S. E. 858; State ex rel. Payne vs. Anderson
[1921], 43 S. D., 630; 181 N. W., 839; People vs. Brown, 54
Mich., 15; 19 N. W., 571; States vs. Dalton [1903], 109 Tenn.,
544; 72 S. W., 456.)
Other cases, however, hold contra. (Nix vs. James [1925; C. C.
A., 9th], 7 F. [2d], 590; Archer vs. Snook [1926; D. C.], 10 F. [2d],
567; Riggs. vs. United States [1926; C. C. A. 4th], 14]) [2d], 5;
Murphy vs. States [1926], 171 Ark., 620; 286 S. W., 871; 48 A. L.
R., 1189; Re Giannini [1912], 18 Cal. App., 166; 122 Pac., 831;
Re Nachnaber [1928], 89 Cal. App., 530; 265 Pac., 392; Ex
parte De Voe [1931], 114 Cal. App., 730; 300 Pac., 874; People
vs. Patrick [1897], 118 Cal., 332; 50 Pac., 425; Martin vs. People
[1917], 69 Colo., 60; 168 Pac., 1171; Belden vs. Hugo [1914], 88
Conn., 50; 91 A., 369, 370, 371; Williams vs. State [1926], 162
Ga., 327; 133 S. E., 843; People vs. Heise [1913], 257 Ill., 443;
100 N. E., 1000; Parker vs. State [1893], 135 Ind., 534; 35 N. E.,
179; 23 L. R. A., 859; St. Hillarie, Petitioner [1906], 101 Me., 522;
64 Atl., 882; People vs. Stickle [1909], 156 Mich., 557; 121 N. W.,
497; State vs. Fjolander [1914], 125 Minn., 529; State ex rel.
Bottomnly vs. District Court [1925], 73 Mont., 541; 237 Pac., 525;
State vs. Everitt [1913], 164 N. C., 399; 79 S. E., 274; 47 L. R. A.
[N. S.], 848; State ex rel. Buckley vs. Drew [1909], 75 N. H., 402;
74 Atl., 875; State vs. Osborne [1911], 79 N. J. Eq., 430; 82 Atl.
424; Ex parte Bates [1915], 20 N. M., 542; L. R. A., 1916 A. 1285;
151 Pac., 698; People vs. ex rel. Forsyth vs. Court of Session
[1894], 141 N. Y., 288; 23 L. R. A., 856; 36 N. E., 386; 15 Am.
Crim. Rep., 675; People ex rel. Sullivan vs. Flynn [1907], 55
Misc., 639; 106 N. Y. Supp., 928; People vs. Goodrich [1914],
149 N. Y. Supp., 406; Moore vs. Thorn [1935], 245 App. Div.,
180; 281 N. Y. Supp., 49; Re Hart [1914], 29 N. D., 38; L. R. A.,
1915C, 1169; 149 N. W., 568; Ex parte Eaton [1925], 29 Okla.,
Crim. Rep., 275; 233 P., 781; State vs. Teal [1918], 108 S. C.,
455; 95 S. E., 69; State vs. Abbot [1910], 87 S. C., 466; 33
L.R.A., [N. S.], 112; 70 S. E., 6; Ann. Cas., 1912B, 1189; Fults vs.
States [1854],34 Tenn., 232; Woods vs. State [1814], 130 Tenn.,
100; 169 S. W., 558; Baker vs. State [1814], 130 Tenn., 100; 169
S. W., 558; Baker vs. State [1913],70 Tex., Crim. Rep., 618; 158
S. W., 998; Cook vs. State [1914], 73 Tex. Crim. Rep., 548; 165
S. W., 573; King vs. State [1914], 72 Tex. Crim. Rep., 394; 162 S.
W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 394; 162 S.
W., 890; Clare vs. State [1932], 122 Tex. Crim. Rep., 211; 54 S.
W. [2d], 127; Re Hall [1927], 100 Vt., 197; 136 A., 24; Richardson
vs. Com. [1921], 131 Va., 802; 109 S.E., 460; State vs. Mallahan
[1911], 65 Wash., 287; 118 Pac., 42; State ex rel. Tingstand vs.
Starwich [1922], 119 Wash., 561; 206 Pac., 29; 26 A. L. R., 393;
396.) We elect to follow this long catena of authorities holding that
the courts may be legally authorized by the legislature to suspend
sentence by the establishment of a system of probation however
characterized. State ex rel. Tingstand vs. Starwich ([1922], 119
Wash., 561; 206 Pac., 29; 26 A. L. R., 393), deserved particular
mention. In that case, a statute enacted in 1921 which provided
for the suspension of the execution of a sentence until otherwise
ordered by the court, and required that the convicted person be
placed under the charge of a parole or peace officer during the
term of such suspension, on such terms as the court may
determine, was held constitutional and as not giving the court a
power in violation of the constitutional provision vesting the
pardoning power in the chief executive of the state. (Vide,
also, Re Giannini [1912], 18 Cal App., 166; 122 Pac., 831.)
Probation and pardon are not coterminous; nor are they the
same. They are actually district and different from each other,
both in origin and in nature. In People ex rel. Forsyth vs. Court of
Sessions ([1894], 141 N. Y., 288, 294; 36 N. E., 386, 388; 23 L.
R. A., 856; 15 Am. Crim. Rep., 675), the Court of Appeals of New
York said:
. . . The power to suspend sentence and the power to
grant reprieves and pardons, as understood when the
constitution was adopted, are totally distinct and different
in their nature. The former was always a part of the
judicial power; the latter was always a part of the
executive power. The suspension of the sentence simply
postpones the judgment of the court temporarily or
indefinitely, but the conviction and liability following it, and
the civil disabilities, remain and become operative when
judgment is rendered. A pardon reaches both the
punishment prescribed for the offense and the guilt of the
offender. It releases the punishment, and blots out of
existence the guilt, so that in the eye of the law, the
offender is as innocent as if he had never committed the
offense. It removes the penalties and disabilities, and
restores him to all his civil rights. It makes him, as it were,
a new man, and gives him a new credit and capacity. (Ex
parte Garland, 71 U. S., 4 Wall., 333; 18 Law. ed., 366; U.
S. vs. Klein, 80 U. S., 13 Wall., 128; 20 Law. ed., 519;
Knote vs. U. S., 95 U. S., 149; 24 Law. ed., 442.)
The framers of the federal and the state constitutions
were perfectly familiar with the principles governing the
power to grant pardons, and it was conferred by these
instruments upon the executive with full knowledge of the
law upon the subject, and the words of the constitution
were used to express the authority formerly exercised by
the English crown, or by its representatives in the
colonies. (Ex parte Wells, 59 U. S., 18 How., 307; 15 Law.
ed., 421.) As this power was understood, it did not
comprehend any part of the judicial functions to suspend
sentence, and it was never intended that the authority to
grant reprieves and pardons should abrogate, or in any
degree restrict, the exercise of that power in regard to its
own judgments, that criminal courts has so long
maintained. The two powers, so distinct and different in
their nature and character, were still left separate and
distinct, the one to be exercised by the executive, and the
other by the judicial department. We therefore conclude
that a statute which, in terms, authorizes courts of criminal
jurisdiction to suspend sentence in certain cases after
conviction, — a power inherent in such courts at common
law, which was understood when the constitution was
adopted to be an ordinary judicial function, and which,
ever since its adoption, has been exercised of legislative
power under the constitution. It does not encroach, in any
just sense, upon the powers of the executive, as they
have been understood and practiced from the earliest
times. (Quoted with approval in Directors of Prisons vs.
Judge of First Instance of Cavite [1915], 29 Phil., 265,
Carson, J., concurring, at pp. 294, 295.)
In probation, the probationer is in no true sense, as in pardon, a
free man. He is not finally and completely exonerated. He is not
exempt from the entire punishment which the law inflicts. Under
the Probation Act, the probationer's case is not terminated by the
mere fact that he is placed on probation. Section 4 of the Act
provides that the probation may be definitely terminated and the
probationer finally discharged from supervision only after the
period of probation shall have been terminated and the probation
officer shall have submitted a report, and the court shall have
found that the probationer has complied with the conditions of
probation. The probationer, then, during the period of probation,
remains in legal custody — subject to the control of the probation
officer and of the court; and, he may be rearrested upon the non-
fulfillment of the conditions of probation and, when rearrested,
may be committed to prison to serve the sentence originally
imposed upon him. (Secs. 2, 3, 5 and 6, Act No. 4221.)
The probation described in the act is not pardon. It is not
complete liberty, and may be far from it. It is really a new
mode of punishment, to be applied by the judge in a
proper case, in substitution of the imprisonment and find
prescribed by the criminal laws. For this reason its
application is as purely a judicial act as any other
sentence carrying out the law deemed applicable to the
offense. The executive act of pardon, on the contrary, is
against the criminal law, which binds and directs the
judges, or rather is outside of and above it. There is thus
no conflict with the pardoning power, and no possible
unconstitutionality of the Probation Act for this cause.
(Archer vs. Snook [1926], 10 F. [2d], 567, 569.)
Probation should also be distinguished from reprieve and from
commutation of the sentence. Snodgrass vs. State ([1912], 67
Tex. Crim. Rep., 615;41 L. R. A. [N. S.], 1144; 150 S. W., 162), is
relied upon most strongly by the petitioners as authority in
support of their contention that the power to grant pardons and
reprieves, having been vested exclusively upon the Chief
Executive by the Jones Law, may not be conferred by the
legislature upon the courts by means of probation law authorizing
the indefinite judicial suspension of sentence. We have examined
that case and found that although the Court of Criminal Appeals
of Texas held that the probation statute of the state in terms
conferred on the district courts the power to grant pardons to
persons convicted of crime, it also distinguished between
suspensions sentence on the one hand, and reprieve and
commutation of sentence on the other. Said the court, through
Harper, J.:
That the power to suspend the sentence does not conflict
with the power of the Governor to grant reprieves is
settled by the decisions of the various courts; it being held
that the distinction between a "reprieve" and a suspension
of sentence is that a reprieve postpones the execution of
the sentence to a day certain, whereas a suspension is
for an indefinite time. (Carnal vs. People, 1 Parker, Cr. R.,
262; In re Buchanan, 146 N. Y., 264; 40 N. E., 883), and
cases cited in 7 Words & Phrases, pp. 6115, 6116. This
law cannot be hold in conflict with the power confiding in
the Governor to grant commutations of punishment, for a
commutations is not but to change the punishment
assessed to a less punishment.
In State ex rel. Bottomnly vs. District Court ([1925], 73 Mont., 541;
237 Pac., 525), the Supreme Court of Montana had under
consideration the validity of the adult probation law of the state
enacted in 1913, now found in sections 12078-12086, Revised
Codes of 1921. The court held the law valid as not impinging
upon the pardoning power of the executive. In a unanimous
decision penned by Justice Holloway, the court said:
. . . . the term "pardon", "commutation", and "respite" each
had a well understood meaning at the time our
Constitution was adopted, and no one of them was
intended to comprehend the suspension of the execution
of the judgment as that phrase is employed in sections
12078-12086. A "pardon" is an act of grace, proceeding
from the power intrusted with the execution of the laws
which exempts the individual on whom it is bestowed from
the punishment the law inflicts for a crime he has
committed (United States vs. Wilson, 7 Pet., 150; 8 Law.
ed., 640); It is a remission of guilt (State vs. Lewis, 111
La., 693; 35 So., 816), a forgiveness of the offense (Cook
vs. Middlesex County, 26 N. J. Law, 326; Ex parte Powell,
73 Ala., 517; 49 Am. Rep., 71). "Commutation" is a
remission of a part of the punishment; a substitution of a
less penalty for the one originally imposed (Lee vs.
Murphy, 22 Grat. [Va.] 789; 12 Am. Rep., 563; Rich vs.
Chamberlain, 107 Mich., 381; 65 N. W., 235). A "reprieve"
or "respite" is the withholding of the sentence for an
interval of time (4 Blackstone's Commentaries, 394), a
postponement of execution (Carnal vs. People, 1 Parker,
Cr. R. [N. Y.], 272), a temporary suspension of execution
(Butler vs. State, 97 Ind., 373).
Few adjudicated cases are to be found in which the
validity of a statute similar to our section 12078 has been
determined; but the same objections have been urged
against parole statutes which vest the power to parole in
persons other than those to whom the power of pardon is
granted, and these statutes have been upheld quite
uniformly, as a reference to the numerous cases cited in
the notes to Woods vs. State (130 Tenn., 100; 169 S.
W.,558, reported in L. R. A., 1915F, 531), will disclose.
(See, also, 20 R. C. L., 524.)
We conclude that the Probation Act does not conflict with the
pardoning power of the Executive. The pardoning power, in
respect to those serving their probationary sentences, remains as
full and complete as if the Probation Law had never been
enacted. The President may yet pardon the probationer and thus
place it beyond the power of the court to order his rearrest and
imprisonment. (Riggs vs. United States [1926],  to make laws cannot be delegated by that department to any
14 F. [2d], 5, 7.)
2. But while the Probation Law does not encroach upon the
pardoning power of the executive and is not for that reason void,
does section 11 thereof constitute, as contended, an undue
delegation of legislative power?
Under the constitutional system, the powers of government are
distributed among three coordinate and substantially independent
organs: the legislative, the executive and the judicial. Each of
these departments of the government derives its authority from
the Constitution which, in turn, is the highest expression of
popular will. Each has exclusive cognizance of the matters within
its jurisdiction, and is supreme within its own sphere.
The power to make laws — the legislative power — is vested in a
bicameral Legislature by the Jones Law (sec. 12) and in a
unicamiral National Assembly by the Constitution (Act. VI, sec. 1,
Constitution of the Philippines). The Philippine Legislature or the
National Assembly may not escape its duties and responsibilities
by delegating that power to any other body or authority. Any
attempt to abdicate the power is unconstitutional and void, on the
principle that potestas delegata non delegare potest. This
principle is said to have originated with the glossators, was
introduced into English law through a misreading of Bracton,
there developed as a principle of agency, was established by
Lord Coke in the English public law in decisions forbidding the
delegation of judicial power, and found its way into America as an
enlightened principle of free government. It has since become an
accepted corollary of the principle of separation of powers. (5
Encyc. of the Social Sciences, p. 66.) The classic statement of
the rule is that of Locke, namely: "The legislative neither must nor
can transfer the power of making laws to anybody else, or place it
anywhere but where the people have." (Locke on Civil
Government, sec. 142.) Judge Cooley enunciates the doctrine in
the following oft-quoted language: "One of the settled maxims in
constitutional law is, that the power conferred upon the legislature
other body or authority. Where the sovereign power of the state
has located the authority, there it must remain; and by the
constitutional agency alone the laws must be made until the
Constitution itself is charged. The power to whose judgment,
wisdom, and patriotism this high prerogative has been intrusted
cannot relieve itself of the responsibilities by choosing other
agencies upon which the power shall be devolved, nor can it
substitute the judgment, wisdom, and patriotism of any other body
for those to which alone the people have seen fit to confide this
sovereign trust." (Cooley on Constitutional Limitations, 8th ed.,
Vol. I, p. 224. Quoted with approval in U. S. vs. Barrias [1908], 11
Phil., 327.) This court posits the doctrine "on the ethical principle
that such a delegated power constitutes not only a right but a duty
to be performed by the delegate by the instrumentality of his own
judgment acting immediately upon the matter of legislation and
not through the intervening mind of another. (U. S. vs.
Barrias, supra, at p. 330.)
The rule, however, which forbids the delegation of legislative
power is not absolute and inflexible. It admits of exceptions. An
exceptions sanctioned by immemorial practice permits the central
legislative body to delegate legislative powers to local authorities.
(Rubi vs. Provincial Board of Mindoro [1919], 39 Phil., 660; U. S.
vs. Salaveria [1918], 39 Phil., 102; Stoutenburgh vs. Hennick
[1889], 129 U. S., 141; 32 Law. ed., 637; 9 Sup. Ct. Rep., 256;
State vs. Noyes [1855], 30 N. H., 279.) "It is a cardinal principle of
our system of government, that local affairs shall be managed by
local authorities, and general affairs by the central authorities;
and hence while the rule is also fundamental that the power to
make laws cannot be delegated, the creation of the municipalities
exercising local self government has never been held to trench
upon that rule. Such legislation is not regarded as a transfer of
general legislative power, but rather as the grant of the authority
to prescribed local regulations, according to immemorial practice,
subject of course to the interposition of the superior in cases of
necessity." (Stoutenburgh vs. Hennick, supra.) On quite the same
principle, Congress is powered to delegate legislative power to
such agencies in the territories of the United States as it may
select. A territory stands in the same relation to Congress as a
municipality or city to the state government. (United States vs.
Heinszen [1907], 206 U. S., 370; 27 Sup. Ct. Rep., 742; 51 L. ed.,
1098; 11 Ann. Cas., 688; Dorr vs. United States [1904], 195 U.S.,
138; 24 Sup. Ct. Rep., 808; 49 Law. ed., 128; 1 Ann. Cas., 697.)
Courts have also sustained the delegation of legislative power to
the people at large. Some authorities maintain that this may not
be done (12 C. J., pp. 841, 842; 6 R. C. L., p. 164, citing People
vs. Kennedy [1913], 207 N. Y., 533; 101 N. E., 442; Ann. Cas.,
1914C, 616). However, the question of whether or not a state has
ceased to be republican in form because of its adoption of the
initiative and referendum has been held not to be a judicial but a
political question (Pacific States Tel. & Tel. Co. vs. Oregon
[1912], 223 U. S., 118; 56 Law. ed., 377; 32 Sup. Cet. Rep., 224),
and as the constitutionality of such laws has been looked upon
with favor by certain progressive courts, the sting of the decisions
of the more conservative courts has been pretty well drawn.
(Opinions of the Justices [1894], 160 Mass., 586; 36 N. E., 488;
23 L. R. A., 113; Kiernan vs. Portland [1910], 57 Ore., 454; 111
Pac., 379; 1132 Pac., 402; 37 L. R. A. [N. S.], 332; Pacific States
Tel. & Tel. Co. vs. Oregon, supra.) Doubtless, also, legislative
power may be delegated by the Constitution itself. Section 14,
paragraph 2, of article VI of the Constitution of the Philippines
provides that "The National Assembly may by law authorize the
President, subject to such limitations and restrictions as it may
impose, to fix within specified limits, tariff rates, import or export
quotas, and tonnage and wharfage dues." And section 16 of the
same article of the Constitution provides that "In times of war or
other national emergency, the National Assembly may by law
authorize the President, for a limited period and subject to such
restrictions as it may prescribed, to promulgate rules and
regulations to carry out a declared national policy." It is beyond
the scope of this decision to determine whether or not, in the
absence of the foregoing constitutional provisions, the President
could be authorized to exercise the powers thereby vested in him.
Upon the other hand, whatever doubt may have existed has been
removed by the Constitution itself.
The case before us does not fall under any of the exceptions
hereinabove mentioned.
The challenged section of Act No. 4221 in section 11 which reads
as follows:
This Act shall apply only in those provinces in which the
respective provincial boards have provided for the salary
of a probation officer at rates not lower than those now
provided for provincial fiscals. Said probation officer shall
be appointed by the Secretary of Justice and shall be
subject to the direction of the Probation Office. (Emphasis
ours.)
In testing whether a statute constitute an undue delegation of
legislative power or not, it is usual to inquire whether the statute
was complete in all its terms and provisions when it left the hands
of the legislature so that nothing was left to the judgment of any
other appointee or delegate of the legislature. (6 R. C. L., p. 165.)
In the United States vs. Ang Tang Ho ([1922], 43 Phil., 1), this
court adhered to the foregoing rule when it held an act of the
legislature void in so far as it undertook to authorize the
Governor-General, in his discretion, to issue a proclamation fixing
the price of rice and to make the sale of it in violation of the
proclamation a crime. (See and cf. Compañia General de
Tabacos vs. Board of Public Utility Commissioners [1916], 34
Phil., 136.) The general rule, however, is limited by another rule
that to a certain extent matters of detail may be left to be filled in
by rules and regulations to be adopted or promulgated by
executive officers and administrative boards. (6 R. C. L., pp. 177-
179.)
For the purpose of Probation Act, the provincial boards may be
regarded as administrative bodies endowed with power to
determine when the Act should take effect in their respective
provinces. They are the agents or delegates of the legislature in
this respect. The rules governing delegation of legislative power
to administrative and executive officers are applicable or are at
least indicative of the rule which should be here adopted. An
examination of a variety of cases on delegation of power to
administrative bodies will show that the ratio decidendi is at
variance but, it can be broadly asserted that the rationale
revolves around the presence or absence of a standard or rule of
action — or the sufficiency thereof — in the statute, to aid the
delegate in exercising the granted discretion. In some cases, it is
held that the standard is sufficient; in others that is insufficient;
and in still others that it is entirely lacking. As a rule, an act of the
legislature is incomplete and hence invalid if it does not lay down
any rule or definite standard by which the administrative officer or
board may be guided in the exercise of the discretionary powers
delegated to it. (See Schecter vs. United States [1925], 295 U. S.,
495; 79 L. ed., 1570; 55 Sup. Ct. Rep., 837; 97 A.L.R., 947;
People ex rel. Rice vs. Wilson Oil Co. [1936], 364 Ill., 406; 4 N. E.
[2d], 847; 107 A.L.R., 1500 and cases cited. See also R. C. L.,
title "Constitutional Law", sec 174.) In the case at bar, what rules
are to guide the provincial boards in the exercise of their
discretionary power to determine whether or not the Probation Act
shall apply in their respective provinces? What standards are
fixed by the Act? We do not find any and none has been pointed
to us by the respondents. The probation Act does not, by the
force of any of its provisions, fix and impose upon the provincial
boards any standard or guide in the exercise of their discretionary
power. What is granted, if we may use the language of Justice
Cardozo in the recent case of Schecter, supra, is a "roving
commission" which enables the provincial boards to exercise
arbitrary discretion. By section 11 if the Act, the legislature does
not seemingly on its own authority extend the benefits of the
Probation Act to the provinces but in reality leaves the entire
matter for the various provincial boards to determine. In other
words, the provincial boards of the various provinces are to
determine for themselves, whether the Probation Law shall apply
to their provinces or not at all. The applicability and application of
the Probation Act are entirely placed in the hands of the provincial
boards. If the provincial board does not wish to have the Act
applied in its province, all that it has to do is to decline to
appropriate the needed amount for the salary of a probation
officer. The plain language of the Act is not susceptible of any
other interpretation. This, to our minds, is a virtual surrender of
legislative power to the provincial boards.
"The true distinction", says Judge Ranney, "is between the
delegation of power to make the law, which necessarily involves a
discretion as to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and in
pursuance of the law. The first cannot be done; to the latter no
valid objection can be made." (Cincinnati, W. & Z. R. Co. vs.
Clinton County Comrs. [1852]; 1 Ohio St., 77, 88. See also,
Sutherland on Statutory Construction, sec 68.) To the same effect
are the decision of this court in Municipality of Cardona vs.
Municipality of Binangonan ([1917], 36 Phil., 547); Rubi vs.
Provincial Board of Mindoro ([1919],39 Phil., 660) and Cruz vs.
Youngberg ([1931], 56 Phil., 234). In the first of these cases, this
court sustained the validity of the law conferring upon the
Governor-General authority to adjust provincial and municipal
boundaries. In the second case, this court held it lawful for the
legislature to direct non-Christian inhabitants to take up their
habitation on unoccupied lands to be selected by the provincial
governor and approved by the provincial board. In the third case,
it was held proper for the legislature to vest in the Governor-
General authority to suspend or not, at his discretion, the
prohibition of the importation of the foreign cattle, such prohibition
to be raised "if the conditions of the country make this advisable
or if deceased among foreign cattle has ceased to be a menace
to the agriculture and livestock of the lands."
It should be observed that in the case at bar we are not
concerned with the simple transference of details of execution or
the promulgation by executive or administrative officials of rules
and regulations to carry into effect the provisions of a law. If we
were, recurrence to our own decisions would be sufficient. (U. S.
vs. Barrias [1908], 11 Phil., 327; U.S. vs. Molina [1914], 29 Phil.,
119; Alegre vs. Collector of Customs [1929], 53 Phil., 394; Cebu
Autobus Co. vs. De Jesus [1931], 56 Phil., 446; U. S. vs. Gomez
[1915], 31 Phil., 218; Rubi vs. Provincial Board of Mindoro [1919],
39 Phil., 660.)
It is connected, however, that a legislative act may be made to
the effect as law after it leaves the hands of the legislature. It is
true that laws may be made effective on certain contingencies, as
by proclamation of the executive or the adoption by the people of
a particular community (6 R. C. L., 116, 170-172; Cooley,
Constitutional Limitations, 8th ed., Vol. I, p. 227). In Wayman vs.
Southard ([1825], 10 Wheat. 1; 6 Law. ed., 253), the Supreme
Court of the United State ruled that the legislature may delegate a
power not legislative which it may itself rightfully exercise.(Vide,
also, Dowling vs. Lancashire Ins. Co. [1896], 92 Wis., 63; 65 N.
W., 738; 31 L. R. A., 112.) The power to ascertain facts is such a
power which may be delegated. There is nothing essentially
legislative in ascertaining the existence of facts or conditions as
the basis of the taking into effect of a law. That is a mental
process common to all branches of the government. (Dowling vs.
Lancashire Ins. Co., supra; In re Village of North Milwaukee
[1896], 93 Wis., 616; 97 N.W., 1033; 33 L.R.A., 938; Nash vs.
Fries [1906], 129 Wis., 120; 108 N.W., 210; Field vs. Clark [1892],
143 U.S., 649; 12 Sup. Ct., 495; 36 Law. ed., 294.)
Notwithstanding the apparent tendency, however, to relax the rule
prohibiting delegation of legislative authority on account of the
complexity arising from social and economic forces at work in this
modern industrial age (Pfiffner, Public Administration [1936] ch.
XX; Laski, "The Mother of Parliaments", foreign Affairs, July,
1931, Vol. IX, No. 4, pp. 569-579; Beard, "Squirt-Gun Politics", in
Harper's Monthly Magazine, July, 1930, Vol. CLXI, pp. 147, 152),
the orthodox pronouncement of Judge Cooley in his work on
Constitutional Limitations finds restatement in Prof. Willoughby's
treatise on the Constitution of the United States in the following
language — speaking of declaration of legislative power to
administrative agencies: "The principle which permits the
legislature to provide that the administrative agent may determine
when the circumstances are such as require the application of a
law is defended upon the ground that at the time this authority is
granted, the rule of public policy, which is the essence of the
legislative act, is determined by the legislature. In other words,
the legislature, as it its duty to do, determines that, under given
circumstances, certain executive or administrative action is to be
taken, and that, under other circumstances, different of no action
at all is to be taken. What is thus left to the administrative official
is not the legislative determination of what public policy demands,
but simply the ascertainment of what the facts of the case require
to be done according to the terms of the law by which he is
governed." (Willoughby on the Constitution of the United States,
2nd ed., Vol. II, p. 1637.) In Miller vs. Mayer, etc., of New York
[1883], 109 U.S., 3 Sup. Ct. Rep., 228; 27 Law. ed., 971, 974), it
was said: "The efficiency of an Act as a declaration of legislative
will must, of course, come from Congress, but the ascertainment
of the contingency upon which the Act shall take effect may be
left to such agencies as it may designate." (See, also, 12 C.J., p.
864; State vs. Parker [1854], 26 Vt., 357; Blanding vs. Burr
[1859], 13 Cal., 343, 258.) The legislature, then may provide that
a contingencies leaving to some other person or body the power
to determine when the specified contingencies has arisen. But, in
the case at bar, the legislature has not made the operation of the
Prohibition Act contingent upon specified facts or conditions to be
ascertained by the provincial board. It leaves, as we have already
said, the entire operation or non-operation of the law upon the
provincial board. the discretion vested is arbitrary because it is
absolute and unlimited. A provincial board need not investigate
conditions or find any fact, or await the happening of any
specified contingency. It is bound by no rule, — limited by no
principle of expendiency announced by the legislature. It may
take into consideration certain facts or conditions; and, again, it
may not. It may have any purpose or no purpose at all. It need
not give any reason whatsoever for refusing or failing to
appropriate any funds for the salary of a probation officer. This is
a matter which rest entirely at its pleasure. The fact that at some
future time — we cannot say when — the provincial boards may
appropriate funds for the salaries of probation officers and thus
put the law into operation in the various provinces will not save
the statute. The time of its taking into effect, we reiterate, would
yet be based solely upon the will of the provincial boards and not
upon the happening of a certain specified contingency, or upon
the ascertainment of certain facts or conditions by a person or
body other than legislature itself.
The various provincial boards are, in practical effect, endowed
with the power of suspending the operation of the Probation Law
in their respective provinces. In some jurisdiction, constitutions
provided that laws may be suspended only by the legislature or
by its authority. Thus, section 28, article I of the Constitution of
Texas provides that "No power of suspending laws in this state
shall be exercised except by the legislature"; and section 26,
article I of the Constitution of Indiana provides "That the operation
of the laws shall never be suspended, except by authority of the
General Assembly." Yet, even provisions of this sort do not confer
absolute power of suspension upon the legislature. While it may
be undoubted that the legislature may suspend a law, or the
execution or operation of a law, a law may not be suspended as
to certain individuals only, leaving the law to be enjoyed by
others. The suspension must be general, and cannot be made for
individual cases or for particular localities. In Holden vs.
James ([1814], 11 Mass., 396; 6 Am. Dec., 174, 177, 178), it was
said:
By the twentieth article of the declaration of rights in the
constitution of this commonwealth, it is declared that the
power of suspending the laws, or the execution of the
laws, ought never to be exercised but by the legislature,
or by authority derived from it, to be exercised in such
particular cases only as the legislature shall expressly
provide for. Many of the articles in that declaration of
rights were adopted from the Magna Charta of England,
and from the bill of rights passed in the reign of William
and Mary. The bill of rights contains an enumeration of
the oppressive acts of James II, tending to subvert and
extirpate the protestant religion, and the laws and liberties
of the kingdom; and the first of them is the assuming and
exercising a power of dispensing with and suspending the
laws, and the execution of the laws without consent of
parliament. The first article in the claim or declaration of
rights contained in the statute is, that the exercise of such
power, by legal authority without consent of parliament, is
illegal. In the tenth section of the same statute it is further
declared and enacted, that "No dispensation by non
obstante of or to any statute, or part thereof, should be
allowed; but the same should be held void and of no
effect, except a dispensation be allowed of in such
statute." There is an implied reservation of authority in the
parliament to exercise the power here mentioned;
because, according to the theory of the English
Constitution, "that absolute despotic power, which must in
all governments reside somewhere," is intrusted to the
parliament: 1 Bl. Com., 160.
The principles of our government are widely different in
this particular. Here the sovereign and absolute power
resides in the people; and the legislature can only
exercise what is delegated to them according to the
constitution. It is obvious that the exercise of the power in
question would be equally oppressive to the subject, and
subversive of his right to protection, "according to
standing laws," whether exercised by one man or by a
number of men. It cannot be supposed that the people
when adopting this general principle from the English bill
of rights and inserting it in our constitution, intended to
bestow by implication on the general court one of the
most odious and oppressive prerogatives of the ancient
kings of England. It is manifestly contrary to the first
principles of civil liberty and natural justice, and to the
spirit of our constitution and laws, that any one citizen
should enjoy privileges and advantages which are denied
to all others under like circumstances; or that ant one
 should be subject to losses, damages, suits, or actions
from which all others under like circumstances are
exempted.
To illustrate the principle: A section of a statute relative to dogs
made the owner of any dog liable to the owner of domestic
animals wounded by it for the damages without proving a
knowledge of it vicious disposition. By a provision of the act,
power was given to the board of supervisors to determine
whether or not during the current year their county should be
governed by the provisions of the act of which that section
constituted a part. It was held that the legislature could not confer
that power. The court observed that it could no more confer such
a power than to authorize the board of supervisors of a county to
abolish in such county the days of grace on commercial paper, or
to suspend the statute of limitations. (Slinger vs. Henneman
[1875], 38 Wis., 504.) A similar statute in Missouri was held void
for the same reason in State vs. Field ([1853, 17 Mo., 529;59 Am.
Dec., 275.) In that case a general statute formulating a road
system contained a provision that "if the county court of any
county should be of opinion that the provisions of the act should
not be enforced, they might, in their discretion, suspend the
operation of the same for any specified length of time, and
thereupon the act should become inoperative in such county for
the period specified in such order; and thereupon order the roads
to be opened and kept in good repair, under the laws theretofore
in force." Said the court: ". . . this act, by its own provisions,
repeals the inconsistent provisions of a former act, and yet it is
left to the county court to say which act shall be enforce in their
county. The act does not submit the question to the county court
as an original question, to be decided by that tribunal, whether
the act shall commence its operation within the county; but it
became by its own terms a law in every county not excepted by
name in the act. It did not, then, require the county court to do
any act in order to give it effect. But being the law in the county,
and having by its provisions superseded and abrogated the
inconsistent provisions of previous laws, the county court is . . .
empowered, to suspend this act and revive the repealed
provisions of the former act. When the question is before the
county court for that tribunal to determine which law shall be in
force, it is urge before us that the power then to be exercised by
the court is strictly legislative power, which under our constitution,
cannot be delegated to that tribunal or to any other body of men
in the state. In the present case, the question is not presented in
the abstract; for the county court of Saline county, after the act
had been for several months in force in that county, did by order
suspend its operation; and during that suspension the offense
was committed which is the subject of the present
indictment . . . ." (See Mitchell vs. State [1901], 134 Ala., 392; 32
S., 687.)
True, the legislature may enact laws for a particular locality
different from those applicable to other localities and, while
recognizing the force of the principle hereinabove expressed,
courts in may jurisdiction have sustained the constitutionality of
the submission of option laws to the vote of the people. (6 R.C.L.,
p. 171.) But option laws thus sustained treat of subjects purely
local in character which should receive different treatment in
different localities placed under different circumstances. "They
relate to subjects which, like the retailing of intoxicating drinks, or
the running at large of cattle in the highways, may be differently
regarded in different localities, and they are sustained on what
seems to us the impregnable ground, that the subject, though not
embraced within the ordinary powers of municipalities to make
by-laws and ordinances, is nevertheless within the class of public
regulations, in respect to which it is proper that the local judgment
should control." (Cooley on Constitutional Limitations, 5th ed., p.
148.) So that, while we do not deny the right of local self-
government and the propriety of leaving matters of purely local
concern in the hands of local authorities or for the people of small
communities to pass upon, we believe that in matters of general
of general legislation like that which treats of criminals in general,
and as regards the general subject of probation, discretion may
not be vested in a manner so unqualified and absolute as
provided in Act No. 4221. True, the statute does not expressly
state that the provincial boards may suspend the operation of the
Probation Act in particular provinces but, considering that, in
being vested with the authority to appropriate or not the
necessary funds for the salaries of probation officers, they
thereby are given absolute discretion to determine whether or not
the law should take effect or operate in their respective provinces,
the provincial boards are in reality empowered by the legislature
to suspend the operation of the Probation Act in particular
provinces, the Act to be held in abeyance until the provincial
boards should decide otherwise by appropriating the necessary
funds. The validity of a law is not tested by what has been done
but by what may be done under its provisions. (Walter E. Olsen &
Co. vs. Aldanese and Trinidad [1922], 43 Phil., 259; 12 C. J., p.
786.)
It in conceded that a great deal of latitude should be granted to
the legislature not only in the expression of what may be termed
legislative policy but in the elaboration and execution thereof.
"Without this power, legislation would become oppressive and yet
imbecile." (People vs. Reynolds, 5 Gilman, 1.) It has been said
that popular government lives because of the inexhaustible
reservoir of power behind it. It is unquestionable that the mass of
powers of government is vested in the representatives of the
people and that these representatives are no further restrained
under our system than by the express language of the instrument
imposing the restraint, or by particular provisions which by clear
intendment, have that effect. (Angara vs. Electoral Commission
[1936], 35 Off. Ga., 23; Schneckenburger vs. Moran [1936], 35
Off. Gaz., 1317.) But, it should be borne in mind that a
constitution is both a grant and a limitation of power and one of
these time-honored limitations is that, subject to certain
exceptions, legislative power shall not be delegated.
We conclude that section 11 of Act No. 4221 constitutes an
improper and unlawful delegation of legislative authority to the
provincial boards and is, for this reason, unconstitutional and
void.
3. It is also contended that the Probation Act violates the
provisions of our Bill of Rights which prohibits the denial to any
person of the equal protection of the laws (Act. III, sec. 1 subsec.
1. Constitution of the Philippines.)
This basic individual right sheltered by the Constitution is a
restraint on all the tree grand departments of our government and
on the subordinate instrumentalities and subdivision thereof, and
on many constitutional power, like the police power, taxation and
eminent domain. The equal protection of laws, sententiously
observes the Supreme Court of the United States, "is a pledge of
the protection of equal laws." (Yick Wo vs. Hopkins [1886], 118 U.
S., 356; 30 Law. ed., 220; 6 Sup. Ct. Rep., 10464; Perley vs.
North Carolina, 249 U. S., 510; 39 Sup. Ct. Rep., 357; 63 Law.
ed., 735.) Of course, what may be regarded as a denial of the
equal protection of the laws in a question not always easily
determined. No rule that will cover every case can be formulated.
(Connolly vs. Union Sewer Pipe Co. [1902], 184, U. S., 540; 22
Sup. Ct., Rep., 431; 46 Law. ed., 679.) Class legislation
discriminating against some and favoring others in prohibited. But
classification on a reasonable basis, and nor made arbitrarily or
capriciously, is permitted. (Finely vs. California [1911], 222 U. S.,
28; 56 Law. ed., 75; 32 Sup. Ct. Rep., 13; Gulf. C. & S. F. Ry Co.
vs. Ellis [1897], 165 U. S., 150; 41 Law. ed., 666; 17 Sup. Ct.
Rep., 255; Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.)
The classification, however, to be reasonable must be based on
substantial distinctions which make real differences; it must be
germane to the purposes of the law; it must not be limited to
existing conditions only, and must apply equally to each member
of the class. (Borgnis vs. Falk. Co. [1911], 147 Wis., 327, 353;
133 N. W., 209; 3 N. C. C. A., 649; 37 L. R. A. [N. S.], 489; State
vs. Cooley, 56 Minn., 540; 530-552; 58 N. W., 150; Lindsley vs.
Natural Carbonic Gas Co.[1911], 220 U. S., 61, 79, 55 Law. ed.,
369, 377; 31 Sup. Ct. Rep., 337; Ann. Cas., 1912C, 160; Lake
Shore & M. S. R. Co. vs. Clough [1917], 242 U.S., 375; 37 Sup.
Ct. Rep., 144; 61 Law. ed., 374; Southern Ry. Co. vs. Greene
[1910], 216 U. S., 400; 30 Sup. Ct. Rep., 287; 54 Law. ed., 536;
17 Ann. Cas., 1247; Truax vs. Corrigan [1921], 257 U. S., 312; 12
C. J., pp. 1148, 1149.)  that score, but premises and circumstances considered, we are of
In the case at bar, however, the resultant inequality may be said
to flow from the unwarranted delegation of legislative power,
although perhaps this is not necessarily the result in every case.
Adopting the example given by one of the counsel for the
petitioners in the course of his oral argument, one province may
appropriate the necessary fund to defray the salary of a probation
officer, while another province may refuse or fail to do so. In such
a case, the Probation Act would be in operation in the former
province but not in the latter. This means that a person otherwise
coming within the purview of the law would be liable to enjoy the
benefits of probation in one province while another person
similarly situated in another province would be denied those
same benefits. This is obnoxious discrimination. Contrariwise, it is
also possible for all the provincial boards to appropriate the
necessary funds for the salaries of the probation officers in their
respective provinces, in which case no inequality would result for
the obvious reason that probation would be in operation in each
and every province by the affirmative action of appropriation by all
the provincial boards. On that hypothesis, every person coming
within the purview of the Probation Act would be entitled to avail
of the benefits of the Act. Neither will there be any resulting
inequality if no province, through its provincial board, should
appropriate any amount for the salary of the probation officer —
which is the situation now — and, also, if we accept the
contention that, for the purpose of the Probation Act, the City of
Manila should be considered as a province and that the municipal
board of said city has not made any appropriation for the salary of
the probation officer. These different situations suggested show,
indeed, that while inequality may result in the application of the
law and in the conferment of the benefits therein provided,
inequality is not in all cases the necessary result. But whatever
may be the case, it is clear that in section 11 of the Probation Act
creates a situation in which discrimination and inequality are
permitted or allowed. There are, to be sure, abundant authorities
requiring actual denial of the equal protection of the law before
court should assume the task of setting aside a law vulnerable on
the opinion that section 11 of Act No. 4221 permits of the denial
of the equal protection of the law and is on that account bad. We
see no difference between 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 prohibitions. (By analogy, Chy Lung vs. Freeman
[1876], 292 U. S., 275; 23 Law. ed., 550; Henderson vs. Mayor
[1876], 92 U. S., 259; 23 Law. ed., 543; Ex parte Virginia [1880],
100 U. S., 339; 25 Law. ed., 676; Neal vs. Delaware [1881], 103
U. S., 370; 26 Law. ed., 567; Soon Hing vs. Crowley [1885], 113
U. S., 703; 28 Law. ed., 1145, Yick Wo vs. Hopkins [1886],118 U.
S., 356; 30 Law. ed., 220; Williams vs. Mississippi [1897], 170 U.
S., 218; 18 Sup. Ct. Rep., 583; 42 Law. ed., 1012; Bailey vs.
Alabama [1911], 219 U. S., 219; 31 Sup. Ct. Rep. 145; 55 Law.
ed., Sunday Lake Iron Co. vs. Wakefield [1918], 247 U. S., 450;
38 Sup. Ct. Rep., 495; 62 Law. ed., 1154.) In other words,
statutes may be adjudged unconstitutional because of their effect
in operation (General Oil Co. vs. Clain [1907], 209 U. S., 211; 28
Sup. Ct. Rep., 475; 52 Law. ed., 754; State vs. Clement Nat.
Bank [1911], 84 Vt., 167; 78 Atl., 944; Ann. Cas., 1912D, 22). If
the law has the effect of denying the equal protection of the law it
is unconstitutional. (6 R. C. L. p. 372; Civil Rights Cases, 109 U.
S., 3; 3 Sup. Ct. Rep., 18; 27 Law. ed., 835; Yick Wo vs.
Hopkins, supra; State vs. Montgomery, 94 Me., 192; 47 Atl., 165;
80 A. S. R., 386; State vs. Dering, 84 Wis., 585; 54 N. W., 1104;
36 A. S. R., 948; 19 L. R. A., 858.) Under section 11 of the
Probation Act, not only may said Act be in force in one or several
provinces and not be in force in other provinces, but one province
may appropriate for the salary of the probation officer of a given
year — and have probation during that year — and thereafter
decline to make further appropriation, and have no probation is
subsequent years. While this situation goes rather to the abuse of
discretion which delegation implies, it is here indicated to show
that the Probation Act sanctions a situation which is intolerable in
a government of laws, and to prove how easy it is, under the Act,
to make the guaranty of the equality clause but "a rope of sand".
(Brewer, J. Gulf C. & S. F. Ry. Co. vs. Ellis [1897], 165 U. S., 150
154; 41 Law. ed., 666; 17 Sup. Ct. Rep., 255.) lawph!1.net
Great reliance is placed by counsel for the respondents on the
case of Ocampo vs. United States ([1914], 234 U. S., 91; 58 Law.
ed., 1231). In that case, the Supreme Court of the United States
affirmed the decision of this court (18 Phil., 1) by declining to
uphold the contention that there was a denial of the equal
protection of the laws because, as held in Missouri vs. Lewis
(Bowman vs. Lewis) decided in 1880 (101 U. S., 220; 25 Law.
ed., 991), the guaranty of the equality clause does not require
territorial uniformity. It should be observed, however, that this
case concerns the right to preliminary investigations in criminal
cases originally granted by General Orders No. 58. No question
of legislative authority was involved and the alleged denial of the
equal protection of the laws was the result of the subsequent
enactment of Act No. 612, amending the charter of the City of
Manila (Act No. 813) and providing in section 2 thereof that "in
cases triable only in the court of first instance of the City of
Manila, the defendant . . . shall not be entitled as of right to a
preliminary examination in any case where the prosecuting
attorney, after a due investigation of the facts . . . shall have
presented an information against him in proper form . . . ." Upon
the other hand, an analysis of the arguments and the decision
indicates that the investigation by the prosecuting attorney —
although not in the form had in the provinces — was considered a
reasonable substitute for the City of Manila, considering the
peculiar conditions of the city as found and taken into account by
the legislature itself.
Reliance is also placed on the case of Missouri vs. Lewis, supra.
That case has reference to a situation where the constitution of
Missouri permits appeals to the Supreme Court of the state from
final judgments of any circuit court, except those in certain
counties for which counties the constitution establishes a
separate court of appeals called St. Louis Court of Appeals. The
provision complained of, then, is found in the constitution itself
and it is the constitution that makes the apportionment of
territorial jurisdiction.
We are of the opinion that section 11 of the Probation Act is
unconstitutional and void because it is also repugnant to equal-
protection clause of our Constitution.
Section 11 of the Probation Act being unconstitutional and void
for the reasons already stated, the next inquiry is whether or not
the entire Act should be avoided.
In seeking the legislative intent, the presumption is
against any mutilation of a statute, and the courts will
resort to elimination only where an unconstitutional
provision is interjected into a statute otherwise valid, and
is so independent and separable that its removal will
leave the constitutional features and purposes of the act
substantially unaffected by the process. (Riccio vs.
Hoboken, 69 N. J. Law., 649, 662; 63 L. R. A., 485; 55
Atl., 1109, quoted in Williams vs. Standard Oil Co. [1929],
278 U.S., 235, 240; 73 Law. ed., 287, 309; 49 Sup. Ct.
Rep., 115; 60 A. L. R., 596.) In Barrameda vs.
Moir ([1913], 25 Phil., 44, 47), this court stated the well-
established rule concerning partial invalidity of statutes in
the following language:
. . . where part of the a statute is void, as repugnant to the
Organic Law, while another part is valid, the valid portion,
if separable from the valid, may stand and be enforced.
But in order to do this, the valid portion must be in so far
independent of the invalid portion that it is fair to presume
that the Legislative would have enacted it by itself if they
had supposed that they could not constitutionally enact
the other. (Mutual Loan Co. vs. Martell, 200 Mass., 482;
86 N. E., 916; 128 A. S. R., 446; Supervisors of Holmes
Co. vs. Black Creek Drainage District, 99 Miss., 739; 55
Sou., 963.) Enough must remain to make a complete,
intelligible, and valid statute, which carries out the
 legislative intent. (Pearson vs. Bass. 132 Ga., 117; 63 S.
E., 798.) The void provisions must be eliminated without
causing results affecting the main purpose of the Act, in a
manner contrary to the intention of the Legislature. (State
vs. A. C. L. R., Co., 56 Fla., 617, 642; 47 Sou., 969;
Harper vs. Galloway, 58 Fla., 255; 51 Sou., 226; 26 L. R.
A., N. S., 794; Connolly vs. Union Sewer Pipe Co., 184 U.
S., 540, 565; People vs. Strassheim, 240 Ill., 279, 300; 88
N. E., 821; 22 L. R. A., N. S., 1135; State vs. Cognevich,
124 La., 414; 50 Sou., 439.) The language used in the
invalid part of a statute can have no legal force or efficacy
for any purpose whatever, and what remains must
express the legislative will, independently of the void part,
since the court has no power to legislate. (State vs.
Junkin, 85 Neb., 1; 122 N. W., 473; 23 L. R. A., N. S.,
839; Vide, also,. U. S., vs. Rodriguez [1918], 38 Phil.,
759; Pollock vs. Farmers' Loan and Trust Co. [1895], 158
U. S., 601, 635; 39 Law. ed., 1108, 1125; 15 Sup. Ct.
Rep., 912; 6 R.C.L., 121.)
It is contended that even if section 11, which makes the Probation
Act applicable only in those provinces in which the respective
provincial boards provided for the salaries of probation officers
were inoperative on constitutional grounds, the remainder of the
Act would still be valid and may be enforced. We should be
inclined to accept the suggestions but for the fact that said
section is, in our opinion, is inseparably linked with the other
portions of the Act that with the elimination of the section what
would be left is the bare idealism of the system, devoid of any
practical benefit to a large number of people who may be
deserving of the intended beneficial result of that system. The
clear policy of the law, as may be gleaned from a careful
examination of the whole context, is to make the application of
the system dependent entirely upon the affirmative action of the
different provincial boards through appropriation of the salaries
for probation officers at rates not lower than those provided for
provincial fiscals. Without such action on the part of the various
boards, no probation officers would be appointed by the
Secretary of Justice to act in the provinces. The Philippines is
divided or subdivided into provinces and it needs no argument to
show that if not one of the provinces — and this is the actual
situation now — appropriate the necessary fund for the salary of
a probation officer, probation under Act No. 4221 would be
illusory. There can be no probation without a probation officer.
Neither can there be a probation officer without the probation
system.
Section 2 of the Acts provides that the probation officer shall
supervise and visit the probationer. Every probation officer is
given, as to the person placed in probation under his care, the
powers of the police officer. It is the duty of the probation officer
to see that the conditions which are imposed by the court upon
the probationer under his care are complied with. Among those
conditions, the following are enumerated in section 3 of the Act:
That the probationer (a) shall indulge in no injurious or
vicious habits;
(b) Shall avoid places or persons of disreputable or
harmful character;
(c) Shall report to the probation officer as directed by the
court or probation officers;
(d) Shall permit the probation officer to visit him at
reasonable times at his place of abode or elsewhere;
(e) Shall truthfully answer any reasonable inquiries on the
part of the probation officer concerning his conduct or
condition; "(f) Shall endeavor to be employed regularly;
"(g) Shall remain or reside within a specified place or
locality;
 (f) Shall make reparation or restitution to the aggrieved
parties for actual damages or losses caused by his
offense;
(g) Shall comply with such orders as the court may from
time to time make; and
(h) Shall refrain from violating any law, statute, ordinance,
or any by-law or regulation, promulgated in accordance
with law.
The court is required to notify the probation officer in writing of the
period and terms of probation. Under section 4, it is only after the
period of probation, the submission of a report of the probation
officer and appropriate finding of the court that the probationer
has complied with the conditions of probation that probation may
be definitely terminated and the probationer finally discharged
from supervision. Under section 5, if the court finds that there is
non-compliance with said conditions, as reported by the probation
officer, it may issue a warrant for the arrest of the probationer and
said probationer may be committed with or without bail. Upon
arraignment and after an opportunity to be heard, the court may
revoke, continue or modify the probation, and if revoked, the court
shall order the execution of the sentence originally imposed.
Section 6 prescribes the duties of probation officers: "It shall be
the duty of every probation officer to furnish to all persons placed
on probation under his supervision a statement of the period and
conditions of their probation, and to instruct them concerning the
same; to keep informed concerning their conduct and condition;
to aid and encourage them by friendly advice and admonition,
and by such other measures, not inconsistent with the conditions
imposed by court as may seem most suitable, to bring about
improvement in their conduct and condition; to report in writing to
the court having jurisdiction over said probationers at least once
every two months concerning their conduct and condition; to keep
records of their work; make such report as are necessary for the
information of the Secretary of Justice and as the latter may
require; and to perform such other duties as are consistent with
the functions of the probation officer and as the court or judge
may direct. The probation officers provided for in this Act may act
as parole officers for any penal or reformatory institution for adults
when so requested by the authorities thereof, and, when
designated by the Secretary of Justice shall act as parole officer
of persons released on parole under Act Number Forty-one
Hundred and Three, without additional compensation."
It is argued, however, that even without section 11 probation
officers maybe appointed in the provinces under section 10 of Act
which provides as follows:
There is hereby created in the Department of Justice and
subject to its supervision and control, a Probation Office
under the direction of a Chief Probation Officer to be
appointed by the Governor-General with the advise and
consent of the Senate who shall receive a salary of four
eight hundred pesos per annum. To carry out this Act
there is hereby appropriated out of any funds in the
Insular Treasury not otherwise appropriated, the sum of
fifty thousand pesos to be disbursed by the Secretary of
Justice, who is hereby authorized to appoint probation
officers and the administrative personnel of the probation
officer under civil service regulations from among those
who possess the qualifications, training and experience
prescribed by the Bureau of Civil Service, and shall fix the
compensation of such probation officers and
administrative personnel until such positions shall have
been included in the Appropriation Act.
But the probation officers and the administrative personnel
referred to in the foregoing section are clearly not those probation
officers required to be appointed for the provinces under section
11. It may be said, reddendo singula singulis, that the probation
officers referred to in section 10 above-quoted are to act as such,
not in the various provinces, but in the central office known as the
Probation Office established in the Department of Justice, under
the supervision of the Chief Probation Officer. When the law
provides that "the probation officer" shall investigate and make
reports to the court (secs. 1 and 4); that "the probation officer"
shall supervise and visit the probationer (sec. 2; sec. 6, par. d);
that the probationer shall report to the "probationer officer" (sec.
3, par. c.), shall allow "the probationer officer" to visit him (sec. 3,
par. d), shall truthfully answer any reasonable inquiries on the
part of "the probation officer" concerning his conduct or condition
(sec. 3, par. 4); that the court shall notify "the probation officer" in
writing of the period and terms of probation (sec. 3, last par.), it
means the probation officer who is in charge of a particular
probationer in a particular province. It never could have been
intention of the legislature, for instance, to require the probationer
in Batanes, to report to a probationer officer in the City of Manila,
or to require a probation officer in Manila to visit the probationer in
the said province of Batanes, to place him under his care, to
supervise his conduct, to instruct him concerning the conditions of
his probation or to perform such other functions as are assigned
to him by law.
That under section 10 the Secretary of Justice may appoint as
many probation officers as there are provinces or groups of
provinces is, of course possible. But this would be arguing on
what the law may be or should be and not on what the law is.
Between is and ought there is a far cry. The wisdom and propriety
of legislation is not for us to pass upon. We may think a law better
otherwise than it is. But much as has been said regarding
progressive interpretation and judicial legislation we decline to
amend the law. We are not permitted to read into the law matters
and provisions which are not there. Not for any purpose — not
even to save a statute from the doom of invalidity.
Upon the other hand, the clear intention and policy of the law is
not to make the Insular Government defray the salaries of
probation officers in the provinces but to make the provinces
defray them should they desire to have the Probation Act apply
thereto. The sum of P50,000, appropriated "to carry out the
purposes of this Act", is to be applied, among other things, for the
salaries of probation officers in the central office at Manila. These
probation officers are to receive such compensations as the
Secretary of Justice may fix "until such positions shall have been
included in the Appropriation Act". It was the intention of the
legislature to empower the Secretary of Justice to fix the salaries
of the probation officers in the provinces or later on to include
said salaries in an appropriation act. Considering, further, that the
sum of P50,000 appropriated in section 10 is to cover, among
other things, the salaries of the administrative personnel of the
Probation Office, what would be left of the amount can hardly be
said to be sufficient to pay even nominal salaries to probation
officers in the provinces. We take judicial notice of the fact that
there are 48 provinces in the Philippines and we do not think it is
seriously contended that, with the fifty thousand pesos
appropriated for the central office, there can be in each province,
as intended, a probation officer with a salary not lower than that
of a provincial fiscal. If this a correct, the contention that without
section 11 of Act No. 4221 said act is complete is an
impracticable thing under the remainder of the Act, unless it is
conceded that in our case there can be a system of probation in
the provinces without probation officers.
Probation as a development of a modern penology is a
commendable system. Probation laws have been enacted, here
and in other countries, to permit what modern criminologist call
the "individualization of the punishment", the adjustment of the
penalty to the character of the criminal and the circumstances of
his particular case. It provides a period of grace in order to aid in
the rehabilitation of a penitent offender. It is believed that, in any
cases, convicts may be reformed and their development into
hardened criminals aborted. It, therefore, takes advantage of an
opportunity for reformation and avoids imprisonment so long as
the convicts gives promise of reform. (United States vs. Murray
[1925], 275 U. S., 347 357, 358; 72 Law. ed., 309; 312, 313; 48
Sup. Ct. Rep., 146; Kaplan vs. Hecht, 24 F. [2d], 664, 665.) The
Welfare of society is its chief end and aim. The benefit to the
individual convict is merely incidental. But while we believe that
probation is commendable as a system and its implantation into
the Philippines should be welcomed, we are forced by our
inescapable duty to set the law aside because of the repugnancy
to our fundamental law.
In arriving at this conclusion, we have endeavored to consider the
different aspects presented by able counsel for both parties, as
well in their memorandums as in their oral argument. We have
examined the cases brought to our attention, and others we have
been able to reach in the short time at our command for the study
and deliberation of this case. In the examination of the cases and
in then analysis of the legal principles involved we have inclined
to adopt the line of action which in our opinion, is supported better
reasoned authorities and is more conducive to the general
welfare. (Smith, Bell & Co. vs. Natividad [1919], 40 Phil., 136.)
Realizing the conflict of authorities, we have declined to be bound
by certain adjudicated cases brought to our attention, except
where the point or principle is settled directly or by clear
implication by the more authoritative pronouncements of the
Supreme Court of the United States. This line of approach is
justified because:
(d) "General propositions do not decide concrete cases"
(Justice Holmes in Lochner vs. New York [1904], 198 U.
S., 45, 76; 49 Law. ed., 937, 949) and, "to keep pace
with . . . new developments of times and circumstances"
(Chief Justice Waite in Pensacola Tel. Co. vs. Western
Union Tel. Co. [1899], 96 U. S., 1, 9; 24 Law. ed., 708;
Yale Law Journal, Vol. XXIX, No. 2, Dec. 1919, 141, 142),
fundamental principles should be interpreted having in
view existing local conditions and environment.
Act No. 4221 is hereby declared unconstitutional and void and the
writ of prohibition is, accordingly, granted. Without any
pronouncement regarding costs. So ordered.
Avanceña, C.J., Imperial, Diaz and Concepcion, JJ., concur.
Villa-real and Abad Santos, JJ., concur in the result.

(a) The constitutional relations between the Federal and

the State governments of the United States and the dual
character of the American Government is a situation
which does not obtain in the Philippines;

(b) The situation of s state of the American Union of the

District of Columbia with reference to the Federal
Government of the United States is not the situation of the
province with respect to the Insular Government (Art. I,
sec. 8 cl. 17 and 10th Amendment, Constitution of the
United States; Sims vs. Rives, 84 Fed. [2d], 871),

(c) The distinct federal and the state judicial organizations

of the United States do not embrace the integrated
judicial system of the Philippines (Schneckenburger vs.
Moran [1936], 35 Off. Gaz., p. 1317);
 EN BANC

G.R. No. 206510               September 16, 2014

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto

Princesa D.D.; MOST REV. DEOGRACIAS S. INIGUEZ, JR.,
Bishop-Emeritus of Caloocan, FRANCES Q. QUIMPO,
CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA
CAROLINA P. ARAULLO, RENATO M. REYES, JR., Bagong
Alyansang Makabayan, HON. NERI JAVIER COLMENARES,
Bayan Muna Partylist, ROLAND G. SIMBULAN, PH.D., Junk
VF A Movement, TERESITA R. PEREZ, PH.D., HON.
RAYMOND V. PALATINO, Kabataan Party-list, PETER SJ.
GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D.,
Agham, ELMER C. LABOG, Kilusang Mayo Uno, JOAN MAY
E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA,
THERESA A. CONCEPCION, MARY JOAN A. GUAN, NESTOR
T. BAGUINON, PH.D., A. EDSEL F. TUPAZ, Petitioners, 
vs.
SCOTT H. SWIFT in his capacity as Commander of the US.
7th Fleet, MARK A. RICE in his capacity as Commanding
Officer of the USS Guardian, PRESIDENT BENIGNO S.
AQUINO III in his capacity as Commander-in-Chief of the
Armed Forces of the Philippines, HON. ALBERT F. DEL
ROSARIO, Secretary, pepartment of Foreign Affair.s, HON.
PAQUITO OCHOA, JR., Executiv~.:Secretary, Office of the
President, . HON. VOLTAIRE T. GAZMIN, Secretary,
Department of National Defense, HON. RAMON JESUS P. P
AJE, Secretary, Department of Environment and Natural
Resoz!rces, VICE ADMIRAL JOSE LUIS M. ALANO,
Philippine Navy Flag Officer in Command, Armed Forces of
the Philippines, ADMIRAL RODOLFO D. ISO RENA,
Commandant, Philippine Coast Guard, COMMODORE
Republic of the Philippines ENRICO EFREN EVANGELISTA, Philippine Coast Guard
SUPREME COURT Palawan, MAJOR GEN. VIRGILIO 0. DOMINGO, Commandant
Manila of Armed Forces of the Philippines Command and LT. GEN.
TERRY G. ROBLING, US Marine Corps Forces. Pacific and
Balikatan 2013 Exercise Co-Director, Respondents.
 DECISION
VILLARAMA, JR, J.:
Before us is a petition for the issuance of a Writ of Kalikasan with
prayer for the issuance of a Temporary Environmental Protection
Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise
known as the Rules of Procedure for Environmental Cases
(Rules), involving violations of environmental laws and
regulations in relation to the grounding of the US military ship
USS Guardian over the Tubbataha Reefs.
Factual Background
The name "Tubbataha" came from the Samal (seafaring people
of southern Philippines) language which means "long reef
exposed at low tide." Tubbataha is composed of two huge coral
atolls - the north atoll and the south atoll - and the Jessie Beazley
Reef, a smaller coral structure about 20 kilometers north of the
atolls. The reefs of Tubbataha and Jessie Beazley are considered
part of Cagayancillo, a remote island municipality of Palawan. 1
In 1988, Tubbataha was declared a National Marine Park by
virtue of Proclamation No. 306 issued by President Corazon C.
Aquino on August 11, 1988. Located in the middle of Central Sulu
Sea, 150 kilometers southeast of Puerto Princesa City,
Tubbataha lies at the heart of the Coral Triangle, the global
center of marine biodiversity.
In 1993, Tubbataha was inscribed by the United Nations
Educational Scientific and Cultural Organization (UNESCO) as a
World Heritage Site. It was recognized as one of the Philippines'
oldest ecosystems, containing excellent examples of pristine
reefs and a high diversity of marine life. The 97,030-hectare
protected marine park is also an important habitat for
internationally threatened and endangered marine species.
UNESCO cited Tubbataha's outstanding universal value as an
important and significant natural habitat for in situ conservation of
biological diversity; an example representing significant on-going
ecological and biological processes; and an area of exceptional
natural beauty and aesthetic importance. 2
On April 6, 2010, Congress passed Republic Act (R.A.) No.
10067,  otherwise known as the "Tubbataha Reefs Natural Park
3
(TRNP) Act of 2009" "to ensure the protection and conservation
of the globally significant economic, biological, sociocultural,
educational and scientific values of the Tubbataha Reefs into
perpetuity for the enjoyment of present and future generations."
Under the "no-take" policy, entry into the waters of TRNP is
strictly regulated and many human activities are prohibited and
penalized or fined, including fishing, gathering, destroying and
disturbing the resources within the TRNP. The law likewise
created the Tubbataha Protected Area Management Board
(TPAMB) which shall be the sole policy-making and permit-
granting body of the TRNP.
The USS Guardian is an Avenger-class mine countermeasures
ship of the US Navy. In December 2012, the US Embassy in the
Philippines requested diplomatic clearance for the said vessel "to
enter and exit the territorial waters of the Philippines and to arrive
at the port of Subic Bay for the purpose of routine ship
replenishment, maintenance, and crew liberty."  On January 6,
4
2013, the ship left Sasebo, Japan for Subic Bay, arriving on
January 13, 2013 after a brief stop for fuel in Okinawa, Japan.
1âwphi1
On January 15, 2013, the USS Guardian departed Subic Bay for
its next port of call in Makassar, Indonesia. On January 17, 2013
at 2:20 a.m. while transiting the Sulu Sea, the ship ran aground
on the northwest side of South Shoal of the Tubbataha Reefs,
about 80 miles east-southeast of Palawan. No cine was injured in
the incident, and there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral
Scott Swift, expressed regret for the incident in a press
statement.  Likewise, US Ambassador to the Philippines Harry K.
5
Thomas, Jr., in a meeting at the Department of Foreign Affairs
(DFA) on February 4, "reiterated his regrets over the grounding
incident and assured Foreign Affairs Secretazy Albert F. del
Rosario that the United States will provide appropriate
compensation for damage to the reef caused by the ship."  By 6
March 30, 2013, the US Navy-led salvage team had finished
removing the last piece of the grounded ship from the coral reef.
On April 1 7, 2013, the above-named petitioners on their behalf
and in representation of their respective sector/organization and
others, including minors or generations yet unborn, filed the
present petition agairtst Scott H. Swift in his capacity as
Commander of the US 7th Fleet, Mark A. Rice in his capacity as
Commanding Officer of the USS Guardian and Lt. Gen. Terry G.
Robling, US Marine Corps Forces, Pacific and Balikatan 2013
Exercises Co-Director ("US respondents"); President Benigno S.
Aquino III in his capacity as Commander-in-Chief of the Armed
Forces of the Philippines (AFP), DF A Secretary Albert F. Del
Rosario, Executive Secretary Paquito Ochoa, Jr., Secretary
Voltaire T. Gazmin (Department of National Defense), Secretary
Jesus P. Paje (Department of Environment and Natural
Resources), Vice-Admiral Jose Luis M. Alano (Philippine Navy
Flag Officer in Command, AFP), Admiral Rodolfo D. Isorena
(Philippine Coast Guard Commandant), Commodore Enrico Efren
Evangelista (Philippine Coast Guard-Palawan), and Major
General Virgilio 0. Domingo (AFP Commandant), collectively the
"Philippine respondents."
The Petition
Petitioners claim that the grounding, salvaging and post-salvaging
operations of the USS Guardian cause and continue to cause
environmental damage of such magnitude as to affect the
provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros
Occidental, Negros Oriental, Zamboanga del Norte, Basilan,
Sulu, and Tawi-Tawi, which events violate their constitutional
rights to a balanced and healthful ecology. They also seek a
directive from this Court for the institution of civil, administrative
and criminal suits for acts committed in violation of environmental
laws and regulations in connection with the grounding incident.
Specifically, petitioners cite the following violations committed by
US respondents under R.A. No. 10067: unauthorized entry
(Section 19); non-payment of conservation fees (Section 21 );
obstruction of law enforcement officer (Section 30); damages to
the reef (Section 20); and destroying and disturbing resources
(Section 26[g]). Furthermore, petitioners assail certain provisions
of the Visiting Forces Agreement (VFA) which they want this
Court to nullify for being unconstitutional.
The numerous reliefs sought in this case are set forth in the final
prayer of the petition, to wit: WHEREFORE, in view of the
foregoing, Petitioners respectfully pray that the Honorable Court:
1. Immediately issue upon the filing of this petition a Temporary
Environmental Protection Order (TEPO) and/or a Writ of
Kalikasan, which shall, in particular,
a. Order Respondents and any person acting on their
behalf, to cease and desist all operations over the
Guardian grounding incident;
b. Initially demarcating the metes and bounds of the
damaged area as well as an additional buffer zone;
c. Order Respondents to stop all port calls and war games
under 'Balikatan' because of the absence of clear
guidelines, duties, and liability schemes for breaches of
those duties, and require Respondents to assume
responsibility for prior and future environmental damage
in general, and environmental damage under the Visiting
Forces Agreement in particular.
d. Temporarily define and describe allowable activities of
ecotourism, diving, recreation, and limited commercial
activities by fisherfolk and indigenous communities near
or around the TRNP but away from the damaged site and
an additional buffer zone;
2. After summary hearing, issue a Resolution extending
the TEPO until further orders of the Court;
3. After due proceedings, render a Decision which shall
include, without limitation:
a. Order Respondents Secretary of Foreign Affairs,
following the dispositive portion of Nicolas v. Romulo, "to
forthwith negotiate with the United States representatives
for the appropriate agreement on [environmental
guidelines and environmental accountability] under
Philippine authorities as provided in Art. V[] of the VFA ...
" Government Code and R.A. 10067;
b. Direct Respondents and appropriate agencies to
commence administrative, civil, and criminal proceedings
against erring officers and individuals to the full extent of
the law, and to make such proceedings public;
c. Declare that Philippine authorities may exercise primary
and exclusive criminal jurisdiction over erring U.S.
personnel under the circumstances of this case;
d. Require Respondents to pay just and reasonable
compensation in the settlement of all meritorious claims
for damages caused to the Tubbataha Reef on terms and
conditions no less severe than those applicable to other
States, and damages for personal injury or death, if such
had been the case;
e. Direct Respondents to cooperate in providing for the
attendance of witnesses and in the collection and
production of evidence, including seizure and delivery of
objects connected with the offenses related to the
grounding of the Guardian;
f. Require the authorities of the Philippines and the United
States to notify each other of the disposition of all cases,
wherever heard, related to the grounding of the Guardian;
g. Restrain Respondents from proceeding with any
purported restoration, repair, salvage or post salvage plan
or plans, including cleanup plans covering the damaged
area of the Tubbataha Reef absent a just settlement
approved by the Honorable Court;
h. Require Respondents to engage in stakeholder and
LOU consultations in accordance with the Local
i. Require Respondent US officials and their
representatives to place a deposit to the TRNP Trust
Fund defined under Section 17 of RA 10067 as a bona
.fide gesture towards full reparations;
j. Direct Respondents to undertake measures to
rehabilitate the areas affected by the grounding of the
Guardian in light of Respondents' experience in the Port
Royale grounding in 2009, among other similar grounding
incidents;
k. Require Respondents to regularly publish on a
quarterly basis and in the name of transparency and
accountability such environmental damage assessment,
valuation, and valuation methods, in all stages of
negotiation;
l. Convene a multisectoral technical working group to
provide scientific and technical support to the TPAMB;
 m. Order the Department of Foreign Affairs, Department
of National Defense, and the Department of Environment
and Natural Resources to review the Visiting Forces
Agreement and the Mutual Defense Treaty to consider
whether their provisions allow for the exercise of erga
omnes rights to a balanced and healthful ecology and for
damages which follow from any violation of those rights;
n. Narrowly tailor the provisions of the Visiting Forces
Agreement for purposes of protecting the damaged areas
of TRNP;
o. Declare the grant of immunity found in Article V
("Criminal Jurisdiction") and Article VI of the Visiting
Forces Agreement unconstitutional for violating equal
protection and/or for violating the preemptory norm of
nondiscrimination incorporated as part of the law of the
land under Section 2, Article II, of the Philippine
Constitution;
p. Allow for continuing discovery measures;
q. Supervise marine wildlife rehabilitation in the
Tubbataha Reefs in all other respects; and
4. Provide just and equitable environmental rehabilitation
measures and such other reliefs as are just and equitable
under the premises.  (Underscoring supplied.)
7 In the landmark case of Oposa v. Factoran, Jr.,  we recognized
Since only the Philippine respondents filed their comment  to the
8 which, for the first time in our constitutional history, is solemnly
petition, petitioners also filed a motion for early resolution and
motion to proceed ex parte against the US respondents. 9 to a balanced and healthful ecology need not be written in the
Respondents' Consolidated Comment
In their consolidated comment with opposition to the application
for a TEPO and ocular inspection and production orders,
respondents assert that: ( 1) the grounds relied upon for the
issuance of a TEPO or writ of Kalikasan have become fait
accompli as the salvage operations on the USS Guardian were
already completed; (2) the petition is defective in form and
substance; (3) the petition improperly raises issues involving the
VFA between the Republic of the Philippines and the United
States of America; and ( 4) the determination of the extent of
responsibility of the US Government as regards the damage to
the Tubbataha Reefs rests exdusively with the executive branch.
The Court's Ruling
As a preliminary matter, there is no dispute on the legal standing
of petitioners to file the present petition.
Locus standi is "a right of appearance in a court of justice on a
given question."  Specifically, it is "a party's personal and
10
substantial interest in a case where he has sustained or will
sustain direct injury as a result" of the act being challenged, and
"calls for more than just a generalized grievance."  However, the
11
rule on standing is a procedural matter which this Court has
relaxed for non-traditional plaintiffs like ordinary citizens,
taxpayers and legislators when the public interest so requires,
such as when the subject matter of the controversy is of
transcendental importance, of overreaching significance to
society, or of paramount public interest. 12
13
the "public right" of citizens to "a balanced and healthful ecology
incorporated in the fundamental law." We declared that the right
Constitution for it is assumed, like other civil and polittcal rights
guaranteed in the Bill of Rights, to exist from the inception of
mankind and it is an issue of transcendental importance with
intergenerational implications.  Such right carries with it the
1âwphi1
correlative duty to refrain from impairing the environment. 14
On the novel element in the class suit filed by the petitioners
minors in Oposa, this Court ruled that not only do ordinary
citizens have legal standing to sue for the enforcement of
environmental rights, they can do so in representation of their
own and future generations. Thus:
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 the "rhythm and harmony of
nature." Nature means the created world in its entirety. Such
rhythm and 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 a:: well as future generations.
Needless to say, every generation has a responsibility to the next
to preserve that rhythm and harmony for the full 1:njoyment 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.  (Emphasis
15
supplied.)
The liberalization of standing first enunciated in Oposa, insofar as
it refers to minors and generations yet unborn, is now enshrined
in the Rules which allows the filing of a citizen suit in
environmental cases. The provision on citizen suits in the Rules
"collapses the traditional rule on personal and direct interest, on
the principle that humans are stewards of nature." 16
Having settled the issue of locus standi, we shall address the
more fundamental question of whether this Court has jurisdiction
over the US respondents who did not submit any pleading or
manifestation in this case.
The immunity of the State from suit, known also as the doctrine of
sovereign immunity or non-suability of the State, is expressly
17
provided in Article XVI of the 1987 Constitution which states:
Section 3. The State may not be sued without its consent.
In United States of America v. Judge Guinto,  we discussed the
18
principle of state immunity from suit, as follows:
The rule that a state may not be sued without its consent, now ·
expressed in Article XVI, Section 3, of the 1987 Constitution, is
one of the generally accepted principles of international law that
we have adopted as part of the law of our land under Article II,
Section 2. x x x.
Even without such affirmation, we would still be bound by the
generally accepted principles of international law under the
doctrine of incorporation. Under this doctrine, as accepted by the
majority of states, such principles are deemed incorporated in the
law of every civilized state as a condition and consequence of its
membership in the society of nations. Upon its admission to such
society, the state is automatically obligated to comply with these
principles in its relations with other states.
As applied to the local state, the doctrine of state immunity is
based on the justification given by Justice Holmes that ''there can
be no legal right against the authority which makes the law on
which the right depends." [Kawanakoa v. Polybank, 205 U.S. 349]
There are other practical reasons for the enforcement of the
doctrine. In the case of the foreign state sought to be impleaded
in the local jurisdiction, the added inhibition is expressed in the
maxim par in parem, non habet imperium. All states are
sovereign equals and cannot assert jurisdiction over one another.
A contrary disposition would, in the language of a celebrated
case, "unduly vex the peace of nations." [De Haber v. Queen of
Portugal, 17 Q. B. 171]
While the doctrine appears to prohibit only suits against the state
without its consent, it is also applicable to complaints filed against
officials of the state for acts allegedly performed by them in the
discharge of their duties. The rule is that if the judgment against
such officials will require the state itself to perform an affirmative
act to satisfy the same,. such as the appropriation of the amount
needed to pay the damages awarded against them, the suit must
be regarded as against the state itself although it has not been
formally impleaded. [Garcia v. Chief of Staff, 16 SCRA 120] In
such a situation, the state may move to dismiss the comp.taint on
the ground that it has been filed without its consent.  (Emphasis
19
supplied.)
Under the American Constitution, the doctrine is expressed in the
Eleventh Amendment which reads:
The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or
by Citizens or Subjects of any Foreign State.
In the case of Minucher v. Court of Appeals,  we further
20
expounded on the immunity of foreign states from the jurisdiction
of local courts, as follows:
The precept that a State cannot be sued in the courts of a foreign
state is a long-standing rule of customary international law then
closely identified with the personal immunity of a foreign
sovereign from suit and, with the emergence of democratic
states, made to attach not just to the person of the head of state,
or his representative, but also distinctly to the state itself in its
sovereign capacity. If the acts giving rise to a suit arc those of a
foreign government done by its foreign agent, although not
necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of the
foreign sovereign from suit without its consent. Suing a
representative of a state is believed to be, in effect, suing the
state itself. The proscription is not accorded for the benefit of an
individual but for the State, in whose service he is, under the
maxim -par in parem, non habet imperium -that all states are
soverr~ign equals and cannot assert jurisdiction over one
another. The implication, in broad terms, is that if the judgment
against an official would rec 1uire the state itself to perform an
affirmative act to satisfy the award, such as the appropriation of
the amount needed to pay the damages decreed against him, the
suit must be regarded as being against the state itself, although it
has not been formally impleaded.  (Emphasis supplied.)
21
In the same case we also mentioned that in the case of
diplomatic immunity, the privilege is not an immunity from the
observance of the law of the territorial sovereign or from ensuing
legal liability; it is, rather, an immunity from the exercise of
territorial jurisdiction.
22
In United States of America v. Judge Guinto,  one of the
23
consolidated cases therein involved a Filipino employed at Clark
Air Base who was arrested following a buy-bust operation
conducted by two officers of the US Air Force, and was eventually
dismissed from his employment when he was charged in court for
violation of R.A. No. 6425. In a complaint for damages filed by the
said employee against the military officers, the latter moved to
dismiss the case on the ground that the suit was against the US
Government which had not given its consent. The RTC denied
the motion but on a petition for certiorari and prohibition filed
before this Court, we reversed the RTC and dismissed the
complaint. We held that petitioners US military officers were
acting in the exercise of their official functions when they
conducted the buy-bust operation against the complainant and
thereafter testified against him at his trial. It follows that for
discharging their duties as agents of the United States, they
cannot be directly impleaded for acts imputable to their principal,
which has not given its consent to be sued.
This traditional rule of State immunity which exempts a State from
being sued in the courts of another State without the former's
consent or waiver has evolved into a restrictive doctrine which
distinguishes sovereign and governmental acts (Jure imperil")
from private, commercial and proprietary acts (Jure gestionis).
Under the restrictive rule of State immunity, State immunity
extends only to acts Jure imperii. The restrictive application of
State immunity is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its commercial
activities or economic affairs.
24
In Shauf v. Court of Appeals,  we discussed the limitations of the
25
State immunity principle, thus:
It is a different matter where the public official is made to account
in his capacity as such for acts contrary to law and injurious to the
rights of plaintiff. As was clearly set forth by JustiGe Zaldivar in
Director of the Bureau of Telecommunications, et al. vs. Aligaen,
etc., et al. : "Inasmuch as the State authorizes only legal acts by
its officers, unauthorized acts of government officials or officers
are not acts of the State, and an action against the officials or
officers by one whose rights have been invaded or violated by
such acts, for the protection of his rights, is not a suit against the
State within the rule of immunity of the State from suit. In the
same tenor, it has been said that an action at law or suit in equity
against a State officer or the director of a State department on the
ground that, while claiming to act for the State, he violates or
invades the personal and property rights of the plaintiff, under an
unconstitutional act or under an assumption of authority which he
does not have, is not a suit against the State within the
constitutional provision that the State may not be sued without its
consent." The rationale for this ruling is that the doctrine of state
immunity cannot be used as an instrument for perpetrating an
injustice.
xxxx
The aforecited authorities are clear on the matter. They state that
the doctrine of immunity from suit will not apply and may not be
invoked where the public official is being sued in his private and
personal capacity as an ordinary citizen. The cloak of protection
afforded the officers and agents of the government is removed
the moment they are sued in their individual capacity. This
situation usually arises where the public official acts without
authority or in excess of the powers vested in him. It is a well-
settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have
caused by his act done with malice and in bad faith, or beyond
the scope of his authority or jurisdiction.  (Emphasis supplied.) In
26
this case, the US respondents were sued in their official capacity
as commanding officers of the US Navy who had control and
supervision over the USS Guardian and its crew. The alleged act
or omission resulting in the unfortunate grounding of the USS
Guardian on the TRNP was committed while they we:re
performing official military duties. Considering that the satisfaction
of a judgment against said officials will require remedial actions
and appropriation of funds by the US government, the suit is
deemed to be one against the US itself. The principle of State
immunity therefore bars the exercise of jurisdiction by this Court
over the persons of respondents Swift, Rice and Robling.
During the deliberations, Senior Associate Justice Antonio T.
Carpio took the position that the conduct of the US in this case,
when its warship entered a restricted area in violation of R.A. No.
10067 and caused damage to the TRNP reef system, brings the
matter within the ambit of Article 31 of the United Nations
Convention on the Law of the Sea (UNCLOS). He explained that
while historically, warships enjoy sovereign immunity from suit as
extensions of their flag State, Art. 31 of the UNCLOS creates an
exception to this rule in cases where they fail to comply with the
rules and regulations of the coastal State regarding passage
through the latter's internal waters and the territorial sea.
According to Justice Carpio, although the US to date has not
ratified the UNCLOS, as a matter of long-standing policy the US
considers itself bound by customary international rules on the Article 30
"traditional uses of the oceans" as codified in UNCLOS, as can Non-compliance by warships with the laws and regulations of the
be gleaned from previous declarations by former Presidents coastal State
Reagan and Clinton, and the US judiciary in the case of United
States v. Royal Caribbean Cruise Lines, Ltd. 27
If any warship does not comply with the laws and regulations of
the coastal State concerning passage through the territorial sea
The international law of the sea is generally defined as "a body of and disregards any request for compliance therewith which is
treaty rules arid customary norms governing the uses of the sea, made to it, the coastal State may require it to leave the territorial
the exploitation of its resources, and the exercise of jurisdiction sea immediately.
over maritime regimes. It is a branch of public international law,
regulating the relations of states with respect to the uses of the Article 31
oceans."  The UNCLOS is a multilateral treaty which was opened
28
Responsibility of the flag State for damage caused by a warship
for signature on December 10, 1982 at Montego Bay, Jamaica. It
was ratified by the Philippines in 1984 but came into force on or other government ship operated for non-commercial purposes
November 16, 1994 upon the submission of the 60th ratification.
The flag State shall bear international responsibility for any loss
The UNCLOS is a product of international negotiation that seeks or damage to the coastal State resulting from the non-compliance
to balance State sovereignty (mare clausum) and the principle of by a warship or other government ship operated for non-
freedom of the high seas (mare liberum).  The freedom to use the
29
commercial purposes with the laws and regulations of the coastal
world's marine waters is one of the oldest customary principles of State concerning passage through the territorial sea or with the
international law.  The UNCLOS gives to the coastal State
30
provisions of this Convention or other rules of international law.
sovereign rights in varying degrees over the different zones of the
sea which are: 1) internal waters, 2) territorial sea, 3) contiguous
Article 32
zone, 4) exclusive economic zone, and 5) the high seas. It also
Immunities of warships and other government ships operated for
gives coastal States more or less jurisdiction over foreign vessels
non-commercial purposes
depending on where the vessel is located. 31

With such exceptions as are contained in subsection A and in

Insofar as the internal waters and territorial sea is concerned, the
articles 30 and 31, nothing in this Convention affects the
Coastal State exercises sovereignty, subject to the UNCLOS and
immunities of warships and other government ships operated for
other rules of international law. Such sovereignty extends to the
non-commercial purposes. (Emphasis supplied.) A foreign
air space over the territorial sea as well as to its bed and subsoil.
32

warship's unauthorized entry into our internal waters with

resulting damage to marine resources is one situation in which
In the case of warships,  as pointed out by Justice Carpio, they
33
the above provisions may apply. But what if the offending warship
continue to enjoy sovereign immunity subject to the following is a non-party to the UNCLOS, as in this case, the US?
exceptions:
An overwhelming majority - over 80% -- of nation states are now
members of UNCLOS, but despite this the US, the world's leading
maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS'
negotiation and drafting, the U.S. delegation ultimately voted
against and refrained from signing it due to concerns over deep
seabed mining technology transfer provisions contained in Part
XI. In a remarkable, multilateral effort to induce U.S. membership,
the bulk of UNCLOS member states cooperated over the
succeeding decade to revise the objection.able provisions. The
revisions satisfied the Clinton administration, which signed the
revised Part XI implementing agreement in 1994. In the fall of
1994, President Clinton transmitted UNCLOS and the Part XI
implementing agreement to the Senate requesting its advice and
consent. Despite consistent support from President Clinton, each
of his successors, and an ideologically diverse array of
stakeholders, the Senate has since withheld the consent required
for the President to internationally bind the United States to
UNCLOS.
While UNCLOS cleared the Senate Foreign Relations Committee
(SFRC) during the 108th and 110th Congresses, its progress
continues to be hamstrung by significant pockets of political
ambivalence over U.S. participation in international institutions.
Most recently, 111 th Congress SFRC Chairman Senator John
Kerry included "voting out" UNCLOS for full Senate consideration
among his highest priorities. This did not occur, and no Senate
action has been taken on UNCLOS by the 112th Congress. 34
Justice Carpio invited our attention to the policy statement given
by President Reagan on March 10, 1983 that the US will
"recognize the rights of the other , states in the waters off their
coasts, as reflected in the convention [UNCLOS], so long as the
rights and freedom of the United States and others under
international law are recognized by such coastal states", and
President Clinton's reiteration of the US policy "to act in a manner
consistent with its [UNCLOS] provisions relating to traditional
uses of the oceans and to encourage other countries to do
likewise." Since Article 31 relates to the "traditional uses of the
oceans," and "if under its policy, the US 'recognize[s] the rights of
the other states in the waters off their coasts,"' Justice Carpio
postulates that "there is more reason to expect it to recognize the
rights of other states in their internal waters, such as the Sulu Sea
in this case."
As to the non-ratification by the US, Justice Carpio emphasizes
that "the US' refusal to join the UN CLOS was centered on its
disagreement with UN CLOS' regime of deep seabed mining
(Part XI) which considers the oceans and deep seabed commonly
owned by mankind," pointing out that such "has nothing to do with
its [the US'] acceptance of customary international rules on
navigation."
It may be mentioned that even the US Navy Judge Advocate
General's Corps publicly endorses the ratification of the
UNCLOS, as shown by the following statement posted on its
official website:
The Convention is in the national interest of the United States
because it establishes stable maritime zones, including a
maximum outer limit for territorial seas; codifies innocent
passage, transit passage, and archipelagic sea lanes passage
rights; works against "jurisdictiomtl creep" by preventing coastal
nations from expanding their own maritime zones; and reaffirms
sovereign immunity of warships, auxiliaries anJ government
aircraft.
xxxx
Economically, accession to the Convention would support our
national interests by enhancing the ability of the US to assert its
sovereign rights over the resources of one of the largest
continental shelves in the world. Further, it is the Law of the Sea
Convention that first established the concept of a maritime
Exclusive Economic Zone out to 200 nautical miles, and
recognized the rights of coastal states to conserve and manage
the natural resources in this Zone. 35
We fully concur with Justice Carpio's view that non-membership
in the UNCLOS does not mean that the US will disregard the
rights of the Philippines as a Coastal State over its internal waters
and territorial sea. We thus expect the US to bear "international
responsibility" under Art. 31 in connection with the USS Guardian
grounding which adversely affected the Tubbataha reefs. Indeed,
it is difficult to imagine that our long-time ally and trading partner,
which has been actively supporting the country's efforts to
preserve our vital marine resources, would shirk from its
obligation to compensate the damage caused by its warship while
transiting our internal waters. Much less can we comprehend a
Government exercising leadership in international affairs,
unwilling to comply with the UNCLOS directive for all nations to
cooperate in the global task to protect and preserve the marine
environment as provided in Article 197, viz:
Article 197
Cooperation on a global or regional basis
States shall cooperate on a global basis and, as appropriate, on a
regional basis, directly or through competent international
organizations, in formulating and elaborating international rules,
standards and recommended practices and procedures
consistent with this Convention, for the protection and
preservation of the marine environment, taking into account
characteristic regional features.
In fine, the relevance of UNCLOS provisions to the present
controversy is beyond dispute. Although the said treaty upholds
the immunity of warships from the jurisdiction of Coastal States
while navigating the.latter's territorial sea, the flag States shall be
required to leave the territorial '::;ea immediately if they flout the
laws and regulations of the Coastal State, and they will be liable
for damages caused by their warships or any other government
vessel operated for non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit
found in the VFA. Likewise, they invoke federal statutes in the US
under which agencies of the US have statutorily waived their
immunity to any action. Even under the common law tort claims,
petitioners asseverate that the US respondents are liable for
negligence, trespass and nuisance.
We are not persuaded.
The VFA is an agreement which defines the treatment of United
States troops and personnel visiting the Philippines to promote
"common security interests" between the US and the Philippines
in the region. It provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the United
States and the Philippine government in the matter of criminal
jurisdiction, movement of vessel and aircraft, importation and
exportation of equipment, materials and supplies.  The invocation
36
of US federal tort laws and even common law is thus improper
considering that it is the VF A which governs disputes involving
US military ships and crew navigating Philippine waters in
pursuance of the objectives of the agreement.
As it is, the waiver of State immunity under the VF A pertains only
to criminal jurisdiction and not to special civil actions such as the
present petition for issuance of a writ of Kalikasan. In fact, it can
be inferred from Section 17, Rule 7 of the Rules that a criminal
case against a person charged with a violation of an
environmental law is to be filed separately:
SEC. 17. Institution of separate actions.-The filing of a petition for
the issuance of the writ of kalikasan shall not preclude the filing of
separate civil, criminal or administrative actions.
In any case, it is our considered view that a ruling on the
application or non-application of criminal jurisdiction provisions of
the VF A to US personnel who may be found responsible for the
grounding of the USS Guardian, would be premature and beyond
the province of a petition for a writ of Kalikasan. We also find it
unnecessary at this point to determine whether such waiver of
State immunity is indeed absolute. In the same vein, we cannot
grant damages which have resulted from the violation of
environmental laws. The Rules allows the recovery of damages,
including the collection of administrative fines under R.A. No.
10067, in a separate civil suit or that deemed instituted with the
criminal action charging the same violation of an environmental
law.37
Section 15, Rule 7 enumerates the reliefs which may be granted
in a petition for issuance of a writ of Kalikasan, to wit:
SEC. 15. Judgment.-Within sixty (60) days from the time the
petition is submitted for decision, the court shall render judgment
granting or denying the privilege of the writ of kalikasan.
The reliefs that may be granted under the writ are the following:
(a) Directing respondent to permanently cease and desist
from committing acts or neglecting the performance of a
duty in violation of environmental laws resulting in
environmental destruction or damage;
(b) Directing the respondent public official, govemment
agency, private person or entity to protect, preserve,
rehabilitate or restore the environment;
(c) Directing the respondent public official, government
agency, private person or entity to monitor strict
compliance with the decision and orders of the court;
(d) Directing the respondent public official, government
agency, or private person or entity to make periodic
reports on the execution of the final judgment; and
(e) Such other reliefs which relate to the right of the
people to a balanced and healthful ecology or to the
protection, preservation, rehabilitation or restoration of the
environment, except the award of damages to individual
petitioners. (Emphasis supplied.)
We agree with respondents (Philippine officials) in asserting that
this petition has become moot in the sense that the salvage
operation sought to be enjoined or restrained had already been
accomplished when petitioners sought recourse from this Court.
But insofar as the directives to Philippine respondents to protect
and rehabilitate the coral reef stn icture and marine habitat
adversely affected by the grounding incident are concerned,
petitioners are entitled to these reliefs notwithstanding the
completion of the removal of the USS Guardian from the coral
reef. However, we are mindful of the fact that the US and
Philippine governments both expressed readiness to negotiate
and discuss the matter of compensation for the damage caused
by the USS Guardian. The US Embassy has also declared it is
closely coordinating with local scientists and experts in assessing
the extent of the damage and appropriate methods of
rehabilitation.
Exploring avenues for settlement of environmental cases is not
proscribed by the Rules. As can be gleaned from the following
provisions, mediation and settlement are available for the
consideration of the parties, and which dispute resolution
methods are encouraged by the court, to wit:
RULE3
xxxx
SEC. 3. Referral to mediation.-At the start of the pre-trial
conference, the court shall inquire from the parties if they have
settled the dispute; otherwise, the court shall immediately refer
the parties or their counsel, if authorized by their clients, to the
Philippine Mediation Center (PMC) unit for purposes of mediation.
If not available, the court shall refer the case to the clerk of court
or legal researcher for mediation.
Mediation must be conducted within a non-extendible period of
thirty (30) days from receipt of notice of referral to mediation.
The mediation report must be submitted within ten (10) days from
the expiration of the 30-day period.
SEC. 4. Preliminary conference.-If mediation fails, the court will
schedule the continuance of the pre-trial. Before the scheduled
date of continuance, the court may refer the case to the branch
clerk of court for a preliminary conference for the following
purposes:
(a) To assist the parties in reaching a settlement;
xxxx
SEC. 5. Pre-trial conference; consent decree.-The judge shall put
the parties and their counsels under oath, and they shall remain
under oath in all pre-trial conferences.
The judge shall exert best efforts to persuade the parties to arrive
at a settlement of the dispute. The judge may issue a consent
decree approving the agreement between the parties in
accordance with law, morals, public order and public policy to
protect the right of the people to a balanced and healthful
ecology.
xxxx
SEC. 10. Efforts to settle.- The court shall endeavor to make the
parties to agree to compromise or settle in accordance with law at
any stage of the proceedings before rendition of judgment.
(Underscoring supplied.)
The Court takes judicial notice of a similar incident in 2009 when
a guided-missile cruiser, the USS Port Royal, ran aground about
half a mile off the Honolulu Airport Reef Runway and remained
stuck for four days. After spending $6.5 million restoring the coral
reef, the US government was reported to have paid the State of
Hawaii $8.5 million in settlement over coral reef damage caused
by the grounding. 38
To underscore that the US government is prepared to pay
appropriate compensation for the damage caused by the USS
Guardian grounding, the US Embassy in the Philippines has
announced the formation of a US interdisciplinary scientific team
which will "initiate discussions with the Government of the
Philippines to review coral reef rehabilitation options in
Tubbataha, based on assessments by Philippine-based marine
scientists." The US team intends to "help assess damage and
remediation options, in coordination with the Tubbataha
Management Office, appropriate Philippine government entities,
non-governmental organizations, and scientific experts from
Philippine universities."
39
A rehabilitation or restoration program to be implemented at the
cost of the violator is also a major relief that may be obtained
under a judgment rendered in a citizens' suit under the Rules, viz:
RULES
SECTION 1. Reliefs in a citizen suit.-If warranted, the court may
grant to the plaintiff proper reliefs which shall include the
protection, preservation or rehabilitation of the environment and
the payment of attorney's fees, costs of suit and other litigation
expenses. It may also require the violator to submit a program of
rehabilitation or restoration of the environment, the costs of which WE CONCUR:
shall be borne by the violator, or to contribute to a special trust
fund for that purpose subject to the control of the court.
1âwphi1
See Concurring Opinion
MARIA LOURDES P. A. SERENO
In the light of the foregoing, the Court defers to the Executive Chief Justice
Branch on the matter of compensation and rehabilitation
measures through diplomatic channels. Resolution of these
issues impinges on our relations with another State in the context PRESBITERO J.
ANTONIO T. CARPIO
of common security interests under the VFA. It is settled that VELASCO, JR.
Associate Justice
"[t]he conduct of the foreign relations of our government is Associate Justice
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 TERESITA J.
subject to judicial inquiry or decision."
40 LEONARDO-DE ARTURO D. BRION
CASTRO Associate Justice
Associate Justice
On the other hand, we cannot grant the additional reliefs prayed
for in the petition to order a review of the VFA and to nullify
certain immunity provisions thereof. DIOSDADO M.
LUCAS P. BERSAMIN
PERALTA
Associate Justice
As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Associate Justice
Zamora,  the VFA was duly concurred in by the Philippine Senate
41

and has been recognized as a treaty by the United States as

attested and certified by the duly authorized representative of the MARIANO C. DEL JOSE PORTUGAL
United States government. The VF A being a valid and binding CASTILLO PEREZ
agreement, the parties are required as a matter of international Associate Justice Associate Justice
law to abide by its terms and provisions.  The present petition
42

under the Rules is not the proper remedy to assail the (On official leave)
constitutionality of its provisions. WHEREFORE, the petition for JOSE CATRAL BIENVENIDO L. REYES
the issuance of the privilege of the Writ of Kalikasan is hereby MENDOZA* Associate Justice
DENIED. Associate Justice

No pronouncement as to costs.
See Separate
SO ORDERED. ESTELA M. PERLAS- Concurring Opinion
BERNABE MARVIC M.V.F.
Associate Justice LEONEN
MARTIN S. VILLARAMA, JR.
Associate Justice
Associate Justice
(No Part) GIDEON C. DE GUZMAN in his capacity as Officer-In-Charge,
FRANCIS H. JARDELEZA** Finance Services Department of the Commission on
Associate Justice Elections, respondents.

CERTIFICATION CARPIO, J.:

Pursuant to Section 13, Article VIII of the 1987 Constitution, it is
hereby certified that the conclusions in the above Decision 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
The Case
Before us is an original Petition for Prohibition with prayer for the
issuance of a writ of preliminary injunction and a temporary
restraining order under Rule 65 of the 1997 Rules of Civil
Procedure. Petitioner Ma. J. Angelina G. Matibag ("Petitioner" for
brevity) questions the constitutionality of the appointment and the
right to hold office of the following: (1) Alfredo L. Benipayo
("Benipayo" for brevity) as Chairman of the Commission on
Elections ("COMELEC" for brevity); and (2) Resurreccion Z. Borra
("Borra" for brevity) and Florentino A. Tuason, Jr. ("Tuason" for
brevity) as COMELEC Commissioners. Petitioner also questions
the legality of the appointment of Velma J. Cinco ("Cinco" for
1 

brevity) as Director IV of the COMELEC’s Education and

Information Department ("EID" for brevity).

The Facts

On February 2, 1999, the COMELEC en banc appointed

petitioner as "Acting Director IV" of the EID. On February 15,
2000, then Chairperson Harriet O. Demetriou renewed the
appointment of petitioner as Director IV of EID in a "Temporary"
capacity. On February 15, 2001, Commissioner Rufino S.B.
Javier renewed again the appointment of petitioner to the same
position in a "Temporary" capacity. 2 

G.R. No. 149036            April 2, 2002

On March 22, 2001, President Gloria Macapagal Arroyo
MA. J. ANGELINA G. MATIBAG, petitioner,  appointed, ad interim, Benipayo as COMELEC Chairman, and 3 

vs. Borra and Tuason as COMELEC Commissioners, each for a term

4  5 

ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, of seven years and all expiring on February 2, 2008. Benipayo
FLORENTINO A. TUASON, JR., VELMA J. CINCO, and took his oath of office and assumed the position of COMELEC
Chairman. Borra and Tuason likewise took their oaths of office
and assumed their positions as COMELEC Commissioners. The
Office of the President submitted to the Commission on
Appointments on May 22, 2001 the ad interim appointments of
Benipayo, Borra and Tuason for confirmation. However, the
6 
Commission on Appointments did not act on said appointments.
On June 1, 2001, President Arroyo renewed the ad
interim appointments of Benipayo, Borra and Tuason to the same
positions and for the same term of seven years, expiring on
February 2, 2008. They took their oaths of office for a second
7 
time. The Office of the President transmitted on June 5, 2001
their appointments to the Commission on Appointments for
confirmation. 8 
Congress adjourned before the Commission on Appointments
could act on their appointments. Thus, on June 8, 2001,
President Macapagal Arroyo renewed again the ad
interim appointments of Benipayo, Borra and Tuason to the same
positions. The Office of the President submitted their
9 
appointments for confirmation to the Commission on
Appointments. They took their oaths of office anew.
10 
In his capacity as COMELEC Chairman, Benipayo issued a
Memorandum dated April 11, 2001 addressed to petitioner as
11  Memorandum Circular No. 07, s. 001, and other pertinent
Director IV of the EID and to Cinco as Director III also of the EID,
designating Cinco Officer-in-Charge of the EID and reassigning
petitioner to the Law Department. COMELEC EID Commissioner-
in-Charge Mehol K. Sadain objected to petitioner’s reassignment
in a Memorandum dated April 14, 2001 addressed to the
12 
COMELEC en banc. Specifically, Commissioner Sadain
questioned Benipayo’s failure to consult the Commissioner-in-
Charge of the EID in the reassignment of petitioner.
On April 16, 2001, petitioner requested Benipayo to reconsider
her relief as Director IV of the EID and her reassignment to the
Law Department. Petitioner cited Civil Service Commission
13  removal as Director IV of the EID and her reassignment to the
Memorandum Circular No. 7 dated April 10, 2001, reminding
heads of government offices that "transfer and detail of
employees are prohibited during the election period beginning
January 2 until June 13, 2001." Benipayo denied her request for
reconsideration on April 18, 2001, citing COMELEC Resolution
14 
No. 3300 dated November 6, 2000, which states in part:
"NOW, THEREFORE, the Commission on Elections by
virtue of the powers conferred upon it by the Constitution,
the Omnibus Election Code and other election laws, as an
exception to the foregoing prohibitions, has RESOLVED,
as it is hereby RESOLVED, to appoint, hire new
employees or fill new positions and transfer or reassign its
personnel, when necessary in the effective performance
of its mandated functions during the prohibited period,
provided that the changes in the assignment of its field
personnel within the thirty-day period before election day
shall be effected after due notice and hearing."
Petitioner appealed the denial of her request for reconsideration
to the COMELEC en banc in a Memorandum dated April 23,
2001. Petitioner also filed an administrative and criminal
15 
complaint with the Law Department against Benipayo, alleging
16  17 
that her reassignment violated Section 261 (h) of the Omnibus
Election Code, COMELEC Resolution No. 3258, Civil Service
administrative and civil service laws, rules and regulations.
During the pendency of her complaint before the Law
Department, petitioner filed the instant petition questioning the
appointment and the right to remain in office of Benipayo, Borra
and Tuason, as Chairman and Commissioners of the COMELEC,
respectively. Petitioner claims that the ad interim appointments of
Benipayo, Borra and Tuason violate the constitutional provisions
on the independence of the COMELEC, as well as on the
prohibitions on temporary appointments and reappointments of its
Chairman and members. Petitioner also assails as illegal her
Law Department. Simultaneously, petitioner challenges the
designation of Cinco as Officer-in-Charge of the EID. Petitioner,
moreover, questions the legality of the disbursements made by
COMELEC Finance Services Department Officer-in-Charge
Gideon C. De Guzman to Benipayo, Borra and Tuason by way of
salaries and other emoluments.
In the meantime, on September 6, 2001, President Macapagal
Arroyo renewed once again the ad interimappointments of
Benipayo as COMELEC Chairman and Borra and Tuason as
Commissioners, respectively, for a term of seven years expiring
on February 2, 2008. They all took their oaths of office anew.
18 
The Issues
The issues for resolution of this Court are as follows:
1. Whether or not the instant petition satisfies all the requirements
before this Court may exercise its power of judicial review in
constitutional cases;
2. Whether or not the assumption of office by Benipayo, Borra
and Tuason on the basis of the ad interimappointments issued by
the President amounts to a temporary appointment prohibited by
Section 1 (2), Article IX-C of the Constitution;
3. Assuming that the first ad interim appointments and the first
assumption of office by Benipayo, Borra and Tuason are legal,
whether or not the renewal of their ad interim appointments and
subsequent assumption of office to the same positions violate the
prohibition on reappointment under Section 1 (2), Article IX-C of
the Constitution;
4. Whether or not Benipayo’s removal of petitioner from her
position as Director IV of the EID and her reassignment to the
Law Department is illegal and without authority, having been
done without the approval of the COMELEC as a collegial body;
5. Whether or not the Officer-in-Charge of the COMELEC’s
Finance Services Department, in continuing to make
disbursements in favor of Benipayo, Borra, Tuason and Cinco, is
acting in excess of jurisdiction.
First Issue: Propriety of Judicial Review
Respondents assert that the petition fails to satisfy all the four
requisites before this Court may exercise its power of judicial
review in constitutional cases. Out of respect for the acts of the
Executive department, which is co-equal with this Court,
respondents urge this Court to refrain from reviewing the
constitutionality of the ad interim appointments issued by the
President to Benipayo, Borra and Tuason unless all the four
requisites are present. These are: (1) the existence of an actual
and appropriate controversy; (2) a personal and substantial
interest of the party raising the constitutional issue; (3) the
exercise of the judicial review is pleaded at the earliest
opportunity; and (4) the constitutional issue is the lis mota of the
case. Respondents argue that the second, third and fourth
19 
requisites are absent in this case. Respondents maintain that
petitioner does not have a personal and substantial interest in the
case because she has not sustained a direct injury as a result of
the ad interim appointments of Benipayo, Borra and Tuason and
their assumption of office. Respondents point out that petitioner
does not claim to be lawfully entitled to any of the positions
assumed by Benipayo, Borra or Tuason. Neither does petitioner
claim to be directly injured by the appointments of these three
respondents.
Respondents also contend that petitioner failed to question the
constitutionality of the ad interim appointments at the earliest
opportunity. Petitioner filed the petition only on August 3, 2001
despite the fact that the ad interimappointments of Benipayo,
Borra and Tuason were issued as early as March 22, 2001.
Moreover, the petition was filed after the third time that these
three respondents were issued ad interim appointments.
Respondents insist that the real issue in this case is the legality of
petitioner’s reassignment from the EID to the Law Department.
Consequently, the constitutionality of the ad interim appointments
is not the lis mota of this case.
We are not persuaded.
Benipayo reassigned petitioner from the EID, where she was
Acting Director, to the Law Department, where she was placed on
detail service. Respondents claim that the reassignment was
20  exercise of sound discretion, the time when a constitutional issue
"pursuant to x x x Benipayo’s authority as Chairman of the
Commission on Elections, and as the Commission’s Chief
Executive Officer." Evidently, respondents anchor the legality of
21 
petitioner’s reassignment on Benipayo’s authority as Chairman of
the COMELEC. The real issue then turns on whether or not
Benipayo is the lawful Chairman of the COMELEC. Even if
petitioner is only an Acting Director of the EID, her reassignment
is without legal basis if Benipayo is not the lawful COMELEC
Chairman, an office created by the Constitution.
On the other hand, if Benipayo is the lawful COMELEC Chairman
because he assumed office in accordance with the Constitution,
then petitioner’s reassignment is legal and she has no cause to
complain provided the reassignment is in accordance with the
Civil Service Law. Clearly, petitioner has a personal and material
stake in the resolution of the constitutionality of Benipayo’s
assumption of office. Petitioner’s personal and substantial injury,
if Benipayo is not the lawful COMELEC Chairman, clothes her
with the requisite locus standi to raise the constitutional issue in
this petition.
Respondents harp on petitioner’s belated act of questioning the
constitutionality of the ad interim appointments of Benipayo, Borra
and Tuason. Petitioner filed the instant petition only on August 3,
2001, when the first ad interimappointments were issued as early
as March 22, 2001. However, it is not the date of filing of the
petition that determines whether the constitutional issue was
raised at the earliest opportunity. The earliest opportunity to raise
a constitutional issue is to raise it in the pleadings before a
competent court that can resolve the same, such that, "if it is not
raised in the pleadings, it cannot be considered at the trial, and, if
not considered at the trial, it cannot be considered on
appeal." Petitioner questioned the constitutionality of the ad
22 
interim appointments of Benipayo, Borra and Tuason when she
filed her petition before this Court, which is the earliest
opportunity for pleading the constitutional issue before a
competent body. Furthermore, this Court may determine, in the
may be passed upon. There is no doubt petitioner raised the
23 
constitutional issue on time.
Moreover, the legality of petitioner’s reassignment hinges on the
constitutionality of Benipayo’s ad interimappointment and
assumption of office. Unless the constitutionality of Benipayo’s ad
interim appointment and assumption of office is resolved, the
legality of petitioner’s reassignment from the EID to the Law
Department cannot be determined. Clearly, the lis mota of this
case is the very constitutional issue raised by petitioner.
In any event, the issue raised by petitioner is of paramount
importance to the public. The legality of the directives and
decisions made by the COMELEC in the conduct of the May 14,
2001 national elections may be put in doubt if the constitutional
issue raised by petitioner is left unresolved. In keeping with this
Court’s duty to determine whether other agencies of government
have remained within the limits of the Constitution and have not
abused the discretion given them, this Court may even brush
aside technicalities of procedure and resolve any constitutional
issue raised. Here the petitioner has complied with all the
24 
requisite technicalities. Moreover, public interest requires the
resolution of the constitutional issue raised by petitioner.
Second Issue: The Nature of an Ad Interim Appointment
Petitioner argues that an ad interim appointment to the
COMELEC is a temporary appointment that is prohibited by
Section 1 (2), Article IX-C of the Constitution, which provides as
follows:
"The Chairman and the Commissioners shall be appointed by the
President with the consent of the Commission on Appointments
for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two
Members for five years, and the last Members for three years,
without reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no case shall any
Member be appointed or designated in a temporary or acting
capacity." (Emphasis supplied)
Petitioner posits the view that an ad interim appointment can be
withdrawn or revoked by the President at her pleasure, and can
even be disapproved or simply by-passed by the Commission on
Appointments. For this reason, petitioner claims that an ad
interim appointment is temporary in character and consequently
prohibited by the last sentence of Section 1 (2), Article IX-C of the
Constitution.
Based on petitioner’s theory, there can be no ad
interim appointment to the COMELEC or to the other two
constitutional commissions, namely the Civil Service Commission
and the Commission on Audit. The last sentence of Section 1 (2),
Article IX-C of the Constitution is also found in Article IX-B and
Article IX-D providing for the creation of the Civil Service
Commission and the Commission on Audit, respectively.
Petitioner interprets the last sentence of Section 1 (2) of Article
IX-C to mean that the ad interim appointee cannot assume office
until his appointment is confirmed by the Commission on
Appointments for only then does his appointment become
permanent and no longer temporary in character.
The rationale behind petitioner’s theory is that only an appointee
who is confirmed by the Commission on Appointments can
guarantee the independence of the COMELEC. A confirmed
appointee is beyond the influence of the President or members of
the Commission on Appointments since his appointment can no
longer be recalled or disapproved. Prior to his confirmation, the
appointee is at the mercy of both the appointing and confirming
powers since his appointment can be terminated at any time for
any cause. In the words of petitioner, a Sword of Damocles hangs
over the head of every appointee whose confirmation is pending
with the Commission on Appointments.
We find petitioner’s argument without merit.
An ad interim appointment is a permanent appointment because
it takes effect immediately and can no longer be withdrawn by the
President once the appointee has qualified into office. The fact
that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character. The
Constitution itself makes an ad interim appointment permanent in
character by making it effective until disapproved by the
Commission on Appointments or until the next adjournment of
Congress. The second paragraph of Section 16, Article VII of the
Constitution provides as follows:
"The President shall have the power to make
appointments during the recess of the Congress, whether
voluntary or compulsory, but such appointments shall
be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the
Congress." (Emphasis supplied)
Thus, the ad interim appointment remains effective until such
disapproval or next adjournment, signifying that it can no longer
be withdrawn or revoked by the President. The fear that the
President can withdraw or revoke at any time and for any reason
an ad interim appointment is utterly without basis.
More than half a century ago, this Court had already ruled that
an ad interim appointment is permanent in character. In Summers
vs. Ozaeta, decided on October 25, 1948, we held that:
25 
 "x x x an ad interim appointment is one made in
pursuance of paragraph (4), Section 10, Article VII of the
Constitution, which provides that the ‘President shall have
the power to make appointments during the recess of the
Congress, but such appointments shall be effective only
until disapproval by the Commission on Appointments or
until the next adjournment of the Congress.’  It is an
appointment permanent in nature, and the circumstance
that it is subject to confirmation by the Commission on
Appointments does not alter its permanent character.
An ad interim appointment is disapproved certainly for a
reason other than that its provisional period has expired.
Said appointment is of course distinguishable from an
‘acting’ appointment which is merely temporary, good until
another permanent appointment is issued." (Emphasis
supplied)
The Constitution imposes no condition on the effectivity of an ad
interim appointment, and thus an ad interimappointment takes
effect immediately. The appointee can at once assume office and
exercise, as a de jure officer, all the powers pertaining to the
office.  In Pacete vs. Secretary of the Commission on
Appointments, this Court elaborated on the nature of an ad
26 
interim appointment as follows:
"A distinction is thus made between the exercise of such
presidential prerogative requiring confirmation by the
Commission on Appointments when Congress is in
session and when it is in recess. In the former, the
President nominates, and only upon the consent of the
Commission on Appointments may the person thus
named assume office. It is not so with reference to ad
interim appointments. It takes effect at once. The
individual chosen may thus qualify and perform his
function without loss of time. His title to such office is
complete. In the language of the Constitution, the
appointment is effective ‘until disapproval by the
Commission on Appointments or until the next
adjournment of the Congress.’"
Petitioner cites Black’s Law Dictionary which defines the term "ad
interim" to mean "in the meantime" or "for the time being." Hence,
petitioner argues that an ad interim appointment is undoubtedly
temporary in character. This argument is not new and was
answered by this Court in Pamantasan ng Lungsod ng Maynila
vs. Intermediate Appellate Court, where we explained that:
27 
"x x x From the arguments, it is easy to see why the petitioner
should experience difficulty in understanding the situation. Private
respondent had been extended several ‘ad interim’ appointments
which petitioner mistakenly understands as appointments
temporary in nature. Perhaps, it is the literal translation of the
word ‘ad interim’ which creates such belief. The term is defined
by Black to mean "in the meantime" or "for the time being". Thus,
an officer ad interim is one appointed to fill a vacancy, or to
discharge the duties of the office during the absence or temporary
incapacity of its regular incumbent (Black’s Law Dictionary,
Revised Fourth Edition, 1978). But such is not the meaning nor
the use intended in the context of Philippine law. In referring to
Dr. Esteban’s appointments, the term is not descriptive of the
nature of the appointments given to him.  Rather, it is used to
denote the manner in which said appointments were made, that
is, done by the President of the Pamantasan in the meantime,
while the Board of Regents, which is originally vested by the
University Charter with the power of appointment, is unable to
act. x x x." (Emphasis supplied)
Thus, the term "ad interim appointment", as used in letters of
appointment signed by the President, means a permanent
appointment made by the President in the meantime that
Congress is in recess. It does not mean a temporary appointment
that can be withdrawn or revoked at any time. The term, although
not found in the text of the Constitution, has acquired a definite
legal meaning under Philippine jurisprudence. The Court had
again occasion to explain the nature of an ad interim appointment
in the more recent case of Marohombsar vs. Court of
Appeals, where the Court stated:
28 
"We have already mentioned that an ad interim
appointment is not descriptive of the nature of the
appointment, that is, it is not indicative of whether the
appointment is temporary or in an acting capacity, rather it
denotes the manner in which the appointment was made.
In the instant case, the appointment extended to private
respondent by then MSU President Alonto, Jr. was issued
without condition nor limitation as to tenure. The
permanent status of private respondent’s appointment as
Executive Assistant II was recognized and attested to by
the Civil Service Commission Regional Office No.
12.  Petitioner’s submission that private respondent’s ad
interim appointment is synonymous with a temporary
appointment which could be validly terminated at any time
is clearly untenable. Ad interim appointments are
permanent but their terms are only until the Board
disapproves them." (Emphasis supplied)
An ad interim appointee who has qualified and assumed office
becomes at that moment a government employee and therefore
part of the civil service. He enjoys the constitutional protection
that "[n]o officer or employee in the civil service shall be removed
or suspended except for cause provided by law." Thus, an ad
29 
interim appointment becomes complete and irrevocable once the
appointee has qualified into office. The withdrawal or revocation
of an ad interim appointment is possible only if it is communicated
to the appointee before the moment he qualifies, and any
withdrawal or revocation thereafter is tantamount to removal from
office. Once an appointee has qualified, he acquires a legal right
30 
to the office which is protected not only by statute but also by the
Constitution. He can only be removed for cause, after notice and
hearing, consistent with the requirements of due process.
An ad interim appointment can be terminated for two causes
specified in the Constitution. The first cause is the disapproval of
his ad interim appointment by the Commission on Appointments.
The second cause is the adjournment of Congress without the
Commission on Appointments acting on his appointment. These
two causes are resolutory conditions expressly imposed by the
Constitution on all ad interim appointments. These resolutory
conditions constitute, in effect, a Sword of Damocles over the
heads of ad interim appointees. No one, however, can complain
because it is the Constitution itself that places the Sword of
Damocles over the heads of the ad interimappointees.
While an ad interim appointment is permanent and irrevocable
except as provided by law, an appointment or designation in a
temporary or acting capacity can be withdrawn or revoked at the
pleasure of the appointing power. A temporary or acting
31 
appointee does not enjoy any security of tenure, no matter how
briefly. This is the kind of appointment that the Constitution
prohibits the President from making to the three independent
constitutional commissions, including the COMELEC. Thus, in
Brillantes vs. Yorac, this Court struck down as unconstitutional
32 
the designation by then President Corazon Aquino of Associate
Commissioner Haydee Yorac as Acting Chairperson of the
COMELEC. This Court ruled that:
"A designation as Acting Chairman is by its very terms
essentially temporary and therefore revocable at will. No
cause need be established to justify its revocation.
Assuming its validity, the designation of the respondent as
Acting Chairman of the Commission on Elections may be
withdrawn by the President of the Philippines at any time
and for whatever reason she sees fit. It is doubtful if the
respondent, having accepted such designation, will not be
estopped from challenging its withdrawal.
xxx
The Constitution provides for many safeguards to the
independence of the Commission on Elections, foremost
among which is the security of tenure of its members.
 That guarantee is not available to the respondent as
Acting Chairman of the Commission on Elections by
designation of the President of the Philippines."
Earlier, in Nacionalista Party vs. Bautista, a case decided under
33 
the 1935 Constitution, which did not have a provision prohibiting
temporary or acting appointments to the COMELEC, this Court
nevertheless declared unconstitutional the designation of the
Solicitor General as acting member of the COMELEC. This Court
ruled that the designation of an acting Commissioner would
undermine the independence of the COMELEC and hence violate
the Constitution. We declared then: "It would be more in keeping
with the intent, purpose and aim of the framers of the Constitution
to appoint a permanent Commissioner than to designate one to
act temporarily." (Emphasis supplied)
In the instant case, the President did in fact appoint permanent
Commissioners to fill the vacancies in the COMELEC, subject
only to confirmation by the Commission on Appointments.
Benipayo, Borra and Tuason were extended permanent
appointments during the recess of Congress. They were not
appointed or designated in a temporary or acting capacity, unlike
Commissioner Haydee Yorac in Brillantes vs. Yorac and Solicitor
34 
General Felix Bautista in Nacionalista Party vs. Bautista. The ad
35 
interim appointments of Benipayo, Borra and Tuason are
expressly allowed by the Constitution which authorizes the
President, during the recess of Congress, to make appointments
that take effect immediately.
While the Constitution mandates that the COMELEC "shall be
independent" , this provision should be harmonized with the
36 
President’s power to extend ad interim appointments. To hold that
the independence of the COMELEC requires the Commission on
Appointments to first confirm ad interim appointees before the
appointees can assume office will negate the President’s power
to make ad interim appointments. This is contrary to the rule on
statutory construction to give meaning and effect to every
provision of the law. It will also run counter to the clear intent of
the framers of the Constitution.
The original draft of Section 16, Article VII of the Constitution - on
the nomination of officers subject to confirmation by the
Commission on Appointments - did not provide for ad interim
appointments. The original intention of the framers of the
Constitution was to do away with ad interim appointments
because the plan was for Congress to remain in session
throughout the year except for a brief 30-day compulsory recess.
However, because of the need to avoid disruptions in essential
government services, the framers of the Constitution thought it
wise to reinstate the provisions of the 1935 Constitution on ad
interim appointments. The following discussion during the
deliberations of the Constitutional Commission elucidates this:
"FR. BERNAS: X x x our compulsory recess now is only
30 days. So under such circumstances, is it necessary to
provide for ad interim appointments? Perhaps there
should be a little discussion on that.
xxx
MS. AQUINO: My concern is that unless this problem is
addressed, this might present problems in terms of
anticipating interruption of government business,
considering that we are not certain of the length of
involuntary recess or adjournment of the Congress. We
are certain, however, of the involuntary adjournment of
the Congress which is 30 days, but we cannot leave to
conjecture the matter of involuntary recess.
FR. BERNAS: That is correct, but we are trying to look for
a formula. I wonder if the Commissioner has a formula x x
x.
xxx
 MR. BENGZON: Madam President, apropos of the matter
raised by Commissioner Aquino and after conferring with
the Committee, Commissioner Aquino and I propose the
following amendment as the last paragraph of Section 16,
the wordings of which are in the 1935 Constitution: THE
PRESIDENT SHALL HAVE THE POWER TO MAKE
APPOINTMENTS DURING THE RECESS OF
CONGRESS WHETHER IT BE VOLUNTARY OR
COMPULSORY BUT SUCH APPOINTMENTS SHALL BE
EFFECTIVE ONLY UNTIL DISAPPROVAL BY THE
COMMISSION ON APPOINTMENTS OR UNTIL THE
NEXT ADJOURNMENT OF THE CONGRESS.
This is otherwise called the ad interim appointments.
xxx
THE PRESIDENT: Is there any objection to the proposed
amendment of Commissioners Aquino and Bengzon,
adding a paragraph to the last paragraph of Section 16?
(Silence) The Chair hears none; the amendment is
approved." (Emphasis supplied)
37  appointment papers, until February 15, 2002, the original expiry
Clearly, the reinstatement in the present Constitution of the ad
interim appointing power of the President was for the purpose of
avoiding interruptions in vital government services that otherwise
would result from prolonged vacancies in government offices,
including the three constitutional commissions. In his concurring
opinion in Guevara vs. Inocentes, decided under the 1935
38  Desamito were therefore supposed to fall after the May 2001
Constitution, Justice Roberto Concepcion, Jr. explained the
rationale behind ad interim appointments in this manner:
"Now, why is the lifetime of ad interim appointments so
limited? Because, if they expired before the session of
Congress, the evil sought to be avoided – interruption in
the discharge of essential functions – may take place.
Because the same evil would result if the appointments
ceased to be effective during the session of Congress
and before its adjournment. Upon the other hand, once
Congress has adjourned, the evil aforementioned may
easily be conjured by the issuance of other ad
interim appointments or reappointments." (Emphasis
supplied)
Indeed, the timely application of the last sentence of Section 16,
Article VII of the Constitution barely avoided the interruption of
essential government services in the May 2001 national elections.
Following the decision of this Court in Gaminde vs. Commission
on Appointments, promulgated on December 13, 2000, the terms
39 
of office of constitutional officers first appointed under the
Constitution would have to be counted starting February 2, 1987,
the date of ratification of the Constitution, regardless of the date
of their actual appointment. By this reckoning, the terms of office
of three Commissioners of the COMELEC, including the
Chairman, would end on February 2, 2001. 40 
Then COMELEC Chairperson Harriet O. Demetriou was
appointed only on January 11, 2000 to serve, pursuant to her
41 
date of the term of her predecessor, Justice Bernardo P. Pardo,
who was elevated to this Court. The original expiry date of the
term of Commissioner Teresita Dy-Liacco Flores was also
February 15, 2002, while that of Commissioner Julio F. Desamito
was November 3, 2001. The original expiry dates of the terms of
42 
office of Chairperson Demetriou and Commissioners Flores and
elections. Suddenly and unexpectedly, because of
the Gaminde ruling, there were three vacancies in the seven-
person COMELEC, with national elections looming less than
three and one-half months away. To their credit, Chairperson
Demetriou and Commissioner Flores vacated their offices on
February 2, 2001 and did not question any more before this Court
the applicability of the Gaminderuling to their own situation.
In a Manifestation dated December 28, 2000 filed with this Court
43 
in the Gaminde case, Chairperson Demetriou stated that she was
vacating her office on February 2, 2001, as she believed any
delay in choosing her successor might create a "constitutional
crisis" in view of the proximity of the May 2001 national elections.
Commissioner Desamito chose to file a petition for intervention in
44 
the Gaminde case but this Court denied the intervention. Thus,
Commissioner Desamito also vacated his office on February 2,
2001.
During an election year, Congress normally goes on voluntary
recess between February and June considering that many of the
members of the House of Representatives and the Senate run for
re-election. In 2001, the Eleventh Congress adjourned from
January 9, 2001 to June 3, 2001. Concededly, there was no
45 
more time for Benipayo, Borra and Tuason, who were originally
extended ad interim appointments only on March 22, 2001, to be
confirmed by the Commission on Appointments before the May
14, 2001 elections.
If Benipayo, Borra and Tuason were not extended ad
interim appointments to fill up the three vacancies in the
COMELEC, there would only have been one division functioning
in the COMELEC instead of two during the May 2001 elections.
Considering that the Constitution requires that "all x x x election
cases shall be heard and decided in division", the remaining one
46 
division would have been swamped with election cases.
Moreover, since under the Constitution motions for
reconsideration "shall be decided by the Commission en banc",
the mere absence of one of the four remaining members would
have prevented a quorum, a less than ideal situation considering
that the Commissioners are expected to travel around the country
before, during and after the elections. There was a great
probability that disruptions in the conduct of the May 2001
elections could occur because of the three vacancies in the
COMELEC. The successful conduct of the May 2001 national
elections, right after the tumultuous EDSA II and EDSA III events,
was certainly essential in safeguarding and strengthening our
democracy.
Evidently, the exercise by the President in the instant case of her
constitutional power to make ad interimappointments prevented
the occurrence of the very evil sought to be avoided by the
second paragraph of Section 16, Article VII of the Constitution.
This power to make ad interim appointments is lodged in the
President to be exercised by her in her sound judgment. Under
the second paragraph of Section 16, Article VII of the
Constitution, the President can choose either of two modes in
appointing officials who are subject to confirmation by the
Commission on Appointments. First, while Congress is in
session, the President may nominate the prospective appointee,
and pending consent of the Commission on Appointments, the
nominee cannot qualify and assume office. Second, during the
recess of Congress, the President may extend an ad
interim appointment which allows the appointee to immediately
qualify and assume office.
Whether the President chooses to nominate the prospective
appointee or extend an ad interim appointment is a matter within
the prerogative of the President because the Constitution grants
her that power. This Court cannot inquire into the propriety of the
choice made by the President in the exercise of her constitutional
power, absent grave abuse of discretion amounting to lack or
excess of jurisdiction on her part, which has not been shown in
the instant case.
The issuance by Presidents of ad interim appointments to the
COMELEC is a long-standing practice. Former President
Corazon Aquino issued an ad interim appointment to
Commissioner Alfredo E. Abueg. Former President Fidel V.
47 
Ramos extended ad interim appointments to Commissioners Julio
F. Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall and
Manolo F. Gorospe. Former President Joseph Estrada also
48 
extended ad interim appointments to Commissioners Abdul Gani
M. Marohombsar, Luzviminda Tancangco, Mehol K. Sadain and
Ralph C. Lantion.49 
The President’s power to extend ad interim appointments may
indeed briefly put the appointee at the mercy of both the
appointing and confirming powers. This situation, however, is only
for a short period - from the time of issuance of the ad
interim appointment until the Commission on Appointments gives
or withholds its consent. The Constitution itself sanctions this
situation, as a trade-off against the evil of disruptions in vital
government services. This is also part of the check-and-balance
under the separation of powers, as a trade-off against the evil of
granting the President absolute and sole power to appoint. The
Constitution has wisely subjected the President’s appointing
power to the checking power of the legislature.
This situation, however, does not compromise the independence
of the COMELEC as a constitutional body. The vacancies in the
COMELEC are precisely staggered to insure that the majority of
its members hold confirmed appointments, and not one President
will appoint all the COMELEC members. In the instant case, the
50 
Commission on Appointments had long confirmed four of the
51 
incumbent COMELEC members, comprising a majority, who
could now be removed from office only by impeachment. The
special constitutional safeguards that insure the independence of
the COMELEC remain in place. The COMELEC enjoys fiscal
52 
autonomy, appoints its own officials and employees, and
promulgates its own rules on pleadings and practice. Moreover,
the salaries of COMELEC members cannot be decreased during
their tenure.
In fine, we rule that the ad interim appointments extended by the
President to Benipayo, Borra and Tuason, as COMELEC
Chairman and Commissioners, respectively, do not constitute
temporary or acting appointments prohibited by Section 1 (2),
Article IX-C of the Constitution.
Third Issue: The Constitutionality of Renewals of Appointments
Petitioner also agues that assuming the first ad interim
appointments and the first assumption of office by Benipayo,
Borra and Tuason are constitutional, the renewal of the their ad
interim appointments and their subsequent assumption of office
to the same positions violate the prohibition on reappointment
under Section 1 (2), Article IX-C of the Constitution, which
provides as follows:
"The Chairman and the Commissioners shall be
appointed by the President with the consent of the
Commission on Appointments for a term of seven
years without reappointment. Of those first appointed,
three Members shall hold office for seven years, two
Members for five years, and the last members for three
years, without reappointment. X x x." (Emphasis supplied)
Petitioner theorizes that once an ad interim appointee is by-
passed by the Commission on Appointments, his ad interim
appointment can no longer be renewed because this will violate
Section 1 (2), Article IX-C of the Constitution which prohibits
reappointments. Petitioner asserts that this is particularly true to
permanent appointees who have assumed office, which is the
situation of Benipayo, Borra and Tuason if their ad
interim appointments are deemed permanent in character.
There is no dispute that an ad interim appointee disapproved by
the Commission on Appointments can no longer be extended a
new appointment. The disapproval is a final decision of the
Commission on Appointments in the exercise of its checking
power on the appointing authority of the President. The
disapproval is a decision on the merits, being a refusal by the
Commission on Appointments to give its consent after
deliberating on the qualifications of the appointee. Since the
Constitution does not provide for any appeal from such decision,
the disapproval is final and binding on the appointee as well as on
the appointing power. In this instance, the President can no
longer renew the appointment not because of the constitutional
prohibition on reappointment, but because of a final decision by
the Commission on Appointments to withhold its consent to the
appointment.
An ad interim appointment that is by-passed because of lack of
time or failure of the Commission on Appointments to organize is
another matter. A by-passed appointment is one that has not
been finally acted upon on the merits by the Commission on
Appointments at the close of the session of Congress. There is
no final decision by the Commission on Appointments to give or
withhold its consent to the appointment as required by the
Constitution. Absent such decision, the President is free to renew
the ad interim appointment of a by-passed appointee. This is
recognized in Section 17 of the Rules of the Commission on
Appointments, which provides as follows:
"Section 17. Unacted Nominations or Appointments
Returned to the President. Nominations or appointments
submitted by the President of the Philippines which are
not finally acted upon at the close of the session of
Congress shall be returned to the President and, unless
new nominations or appointments are made, shall not
again be considered by the Commission." (Emphasis
supplied)
Hence, under the Rules of the Commission on Appointments, a
by-passed appointment can be considered again if the President
renews the appointment.
It is well settled in this jurisdiction that the President can renew
the ad interim appointments of by-passed appointees. Justice
Roberto Concepcion, Jr. lucidly explained in his concurring
opinion in Guevara vs. Inocentes why by-passed ad
53 
interim appointees could be extended new appointments, thus:
"In short, an ad interim appointment ceases to be
effective upon disapproval by the Commission, because
the incumbent can not continue holding office over the
positive objection of the Commission. It ceases, also,
upon "the next adjournment of the Congress", simply
because the President may then issue new appointments
- not because of implied disapproval of the Commission
deduced from its inaction during the session of Congress,
for, under the Constitution, the Commission may affect
adversely the interim appointments only by action, never
by omission. If the adjournment of Congress were an
implied disapproval of ad interimappointments made prior
thereto, then the President could no longer appoint those
so by-passed by the Commission. But, the fact is that the
President may reappoint them, thus clearly indicating that
the reason for said termination of the ad
interim appointments is not the disapproval thereof
allegedly inferred from said omission of the Commission,
but the circumstance that upon said adjournment of the
Congress, the President is free to make ad interim
appointments or reappointments." (Emphasis supplied)
Guevara was decided under the 1935 Constitution from where
the second paragraph of Section 16, Article VII of the present
Constitution on ad interim appointments was lifted verbatim. The
54 
jurisprudence under the 1935 Constitution governing ad
interim appointments by the President is doubtless applicable to
the present Constitution. The established practice under the
present Constitution is that the President can renew the
appointments of by-passed ad interim appointees. This is a
continuation of the well-recognized practice under the 1935
Constitution, interrupted only by the 1973 Constitution which did
not provide for a Commission on Appointments but vested sole
appointing power in the President.
The prohibition on reappointment in Section 1 (2), Article IX-C of
the Constitution applies neither to disapproved nor by-passed ad
interim appointments. A disapproved ad interim appointment
cannot be revived by another ad interimappointment because the
disapproval is final under Section 16, Article VII of the
Constitution, and not because a reappointment is prohibited
under Section 1 (2), Article IX-C of the Constitution. A by-
passed ad interim appointment can be revived by a new ad
interim appointment because there is no final disapproval under
Section 16, Article VII of the Constitution, and such new
appointment will not result in the appointee serving beyond the
fixed term of seven years.
Section 1 (2), Article IX-C of the Constitution provides that "[t]he
Chairman and the Commissioners shall be appointed x x x for a
term of seven years without reappointment." (Emphasis supplied)
There are four situations where this provision will apply. The first
situation is where an ad interim appointee to the COMELEC, after
confirmation by the Commission on Appointments, serves his full
seven-year term. Such person cannot be reappointed to the
COMELEC, whether as a member or as a chairman, because he
will then be actually serving more than seven years. The second
situation is where the appointee, after confirmation, serves a part
of his term and then resigns before his seven-year term of office
ends. Such person cannot be reappointed, whether as a member
or as a chair, to a vacancy arising from retirement because a
reappointment will result in the appointee also serving more than
seven years. The third situation is where the appointee is
confirmed to serve the unexpired term of someone who died or
resigned, and the appointee completes the unexpired term. Such
person cannot be reappointed, whether as a member or chair, to
a vacancy arising from retirement because a reappointment will
result in the appointee also serving more than seven years.
The fourth situation is where the appointee has previously served
a term of less than seven years, and a vacancy arises from death
or resignation. Even if it will not result in his serving more than
seven years, a reappointment of such person to serve an
unexpired term is also prohibited because his situation will be
similar to those appointed under the second sentence of Section
1 (2), Article IX-C of the Constitution. This provision refers to the
first appointees under the Constitution whose terms of office are
less than seven years, but are barred from ever being
reappointed under any situation. Not one of these four situations
applies to the case of Benipayo, Borra or Tuason.
The framers of the Constitution made it quite clear that any
person who has served any term of office as COMELEC member
– whether for a full term of seven years, a truncated term of five
or three years, or even for an unexpired term of any length of time
– can no longer be reappointed to the COMELEC. Commissioner
Foz succinctly explained this intent in this manner:
"MR. FOZ. But there is the argument made in the
concurring opinion of Justice Angelo Bautista in the case
of Visarra vs. Miraflor, to the effect that the prohibition on
reappointment applies only when the term or tenure is for
seven years. But in cases where the appointee serves
only for less than seven years, he would be entitled to
reappointment. Unless we put the qualifying words
"without reappointment" in the case of those appointed,
then it is possible that an interpretation could be made
later on their case, they can still be reappointed to serve
for a total of seven years.
Precisely, we are foreclosing that possibility by making it
clear that even in the case of those first appointed under
the Constitution, no reappointment can be
made." (Emphasis supplied)
55 
In Visarra vs. Miraflor, Justice Angelo Bautista, in his
56 
concurring opinion, quoted Nacionalista vs. De Vera that57 
a "[r]eappointment is not prohibited when a Commissioner
has held office only for, say, three or six years, provided
his term will not exceed nine years in all." This was the
interpretation despite the express provision in the 1935
Constitution that a COMELEC member "shall hold office
for a term of nine years and may not be reappointed."
To foreclose this interpretation, the phrase "without
reappointment" appears twice in Section 1 (2), Article IX-C of the
present Constitution. The first phrase prohibits reappointment of
any person previously appointed for a term of seven years. The
second phrase prohibits reappointment of any person previously
appointed for a term of five or three years pursuant to the first set
of appointees under the Constitution. In either case, it does not
matter if the person previously appointed completes his term of
office for the intention is to prohibit any reappointment of any
kind.
However, an ad interim appointment that has lapsed by inaction
of the Commission on Appointments does not constitute a term of
office. The period from the time the ad interim appointment is
made to the time it lapses is neither a fixed term nor an unexpired
term. To hold otherwise would mean that the President by his
unilateral action could start and complete the running of a term of
office in the COMELEC without the consent of the Commission
on Appointments. This interpretation renders inutile the
confirming power of the Commission on Appointments.
The phrase "without reappointment" applies only to one who has
been appointed by the President and confirmed by the
Commission on Appointments, whether or not such person
completes his term of office. There must be a confirmation by the
Commission on Appointments of the previous appointment before
the prohibition on reappointment can apply. To hold otherwise will
lead to absurdities and negate the President’s power to make ad
interim appointments.
In the great majority of cases, the Commission on Appointments
usually fails to act, for lack of time, on the ad
interim appointments first issued to appointees. If such ad
interim appointments can no longer be renewed, the President
will certainly hesitate to make ad interim appointments because
most of her appointees will effectively be disapproved by mere
inaction of the Commission on Appointments. This will nullify the
constitutional power of the President to make ad
interim appointments, a power intended to avoid disruptions in
vital government services. This Court cannot subscribe to a
proposition that will wreak havoc on vital government services.
The prohibition on reappointment is common to the three
constitutional commissions. The framers of the present
Constitution prohibited reappointments for two reasons. The first
is to prevent a second appointment for those who have been
previously appointed and confirmed even if they served for less
than seven years. The second is to insure that the members of
the three constitutional commissions do not serve beyond the
fixed term of seven years. As reported in the Journal of the
Constitutional Commission, Commissioner Vicente B. Foz, who
sponsored the proposed articles on the three constitutional
58 
commissions, outlined the four important features of the proposed
articles, to wit:
"Mr. Foz stated that the Committee had introduced basic
changes in the common provision affecting the three
Constitutional Commissions, and which are: 1) fiscal
autonomy which provides (that) appropriations shall be
automatically and regularly released to the Commission in
the same manner (as) provided for the Judiciary; 2) fixed
term of office without reappointment on a staggered basis
to ensure continuity of functions and to minimize the
opportunity of the President to appoint all the members
during his incumbency; 3) prohibition to decrease salaries
of the members of the Commissions during their term of
office; and 4) appointments of members would not require
confirmation." (Emphasis supplied)
59 
There were two important amendments subsequently made by
the Constitutional Commission to these four features. First, as
discussed earlier, the framers of the Constitution decided to
require confirmation by the Commission on Appointments of all
appointments to the constitutional commissions. Second, the
framers decided to strengthen further the prohibition on serving
beyond the fixed seven-year term, in the light of a former chair of
the Commission on Audit remaining in office for 12 years despite
his fixed term of seven years. The following exchange in the
deliberations of the Constitutional Commission is instructive:
"MR. SUAREZ: These are only clarificatory questions,
Madam President. May I call the sponsor’s attention, first
of all, to Section 2 (2) on the Civil Service Commission
wherein it is stated: "In no case shall any Member be
appointed in a temporary or acting capacity." I detect in
the Committee’s proposed resolutions a constitutional
hangover, if I may use the term, from the past
administration. Am I correct in concluding that the reason
the Committee introduced this particular provision is to
avoid an incident similar to the case of the Honorable
Francisco Tantuico who was appointed in an acting
capacity as Chairman of the Commission on Audit for
about 5 years from 1975 until 1980, and then in 1980,
was appointed as Chairman with a tenure of another 7
years. So, if we follow that appointment to (its) logical
conclusion, he occupied that position for about 12 years
in violation of the Constitution?
MR. FOZ: It is only one of the considerations.  Another is
really to make sure that any member who is appointed to
any of the commissions does not serve beyond 7
years." (Emphasis supplied)
60 
Commissioner Christian Monsod further clarified the prohibition
on reappointment in this manner:
"MR. MONSOD. If the (Commissioner) will read the whole
Article, she will notice that there is no reappointment of
any kind and, therefore as a whole there is no way that
somebody can serve for more than seven years. The
purpose of the last sentence is to make sure that this
does not happen by including in the appointment both
temporary and acting capacities." (Emphasis supplied)
61 
Plainly, the prohibition on reappointment is intended to insure that
there will be no reappointment of any kind. On the other hand, the
prohibition on temporary or acting appointments is intended to
prevent any circumvention of the prohibition on reappointment
that may result in an appointee’s total term of office exceeding
seven years. The evils sought to be avoided by the twin
prohibitions are very specific - reappointment of any kind and
exceeding one’s term in office beyond the maximum period of
seven years.
Not contented with these ironclad twin prohibitions, the framers of
the Constitution tightened even further the screws on those who
might wish to extend their terms of office. Thus, the word
"designated" was inserted to plug any loophole that might be
exploited by violators of the Constitution, as shown in the
following discussion in the Constitutional Commission:
"MR. DE LOS REYES: On line 32, between the words
"appointed" and "in", I propose to insert the words OR
DESIGNATED so that the whole sentence will read: "In
no case shall any Member be appointed OR
DESIGNATED in a temporary or acting capacity."
THE PRESIDING OFFICER (Mr. Trenas): What does the
Committee say?
MR. FOZ: But it changes the meaning of this sentence.
The sentence reads: "In no case shall any Member be
appointed in a temporary or acting capacity."
MR. DE LOS REYES: Mr. Presiding Officer, the reason
for this amendment is that some lawyers make a
distinction between an appointment and a designation.
The Gentleman will recall that in the case of
Commissioner on Audit Tantuico, I think his term
exceeded the constitutional limit but the Minister of
Justice opined that it did not because he was only
 designated during the time that he acted as
Commissioner on Audit. So, in order to erase that
distinction between appointment and designation, we
should specifically place the word so that there will be no
more ambiguity. "In no case shall any Member be
appointed OR DESIGNATED in a temporary or acting
capacity."
MR. FOZ: The amendment is accepted, Mr. Presiding
Officer.
MR. DE LOS REYES: Thank you.
THE PRESIDING OFFICER (Mr. Trenas): Is there any
objection? (Silence) The Chair hears none; the
amendment is approved." 62  to exercise all the powers of that office for so long as his ad
The ad interim appointments and subsequent renewals of
appointments of Benipayo, Borra and Tuason do not violate the
prohibition on reappointments because there were no previous
appointments that were confirmed by the Commission on
Appointments. A reappointment presupposes a previous
confirmed appointment. The same ad interim appointments and
renewals of appointments will also not breach the seven-year
term limit because all the appointments and renewals of
appointments of Benipayo, Borra and Tuason are for a fixed term
expiring on February 2, 2008. Any delay in their confirmation will
63 
not extend the expiry date of their terms of office. Consequently,
there is no danger whatsoever that the renewal of the ad
interim appointments of these three respondents will result in any
of the evils intended to be exorcised by the twin prohibitions in the
Constitution. The continuing renewal of the ad
interim appointment of these three respondents, for so long as
their terms of office expire on February 2, 2008, does not violate
the prohibition on reappointments in Section 1 (2), Article IX-C of
the Constitution.
Fourth Issue: Respondent Benipayo’s Authority to Reassign
Petitioner
Petitioner claims that Benipayo has no authority to remove her as
Director IV of the EID and reassign her to the Law Department.
Petitioner further argues that only the COMELEC, acting as a
collegial body, can authorize such reassignment. Moreover,
petitioner maintains that a reassignment without her consent
amounts to removal from office without due process and therefore
illegal.
Petitioner’s posturing will hold water if Benipayo does not
possess any color of title to the office of Chairman of the
COMELEC. We have ruled, however, that Benipayo is the de
jure COMELEC Chairman, and consequently he has full authority
interim appointment remains effective. Under Section 7 (4),
Chapter 2, Subtitle C, Book V of the Revised Administrative
Code, the Chairman of the COMELEC is vested with the following
power:
"Section 7. Chairman as Executive Officer; Powers and
Duties. The Chairman, who shall be the Chief Executive
Officer of the Commission, shall:
xxx
(4) Make temporary assignments, rotate and transfer
personnel in accordance with the provisions of the Civil
Service Law." (Emphasis supplied)
The Chairman, as the Chief Executive of the COMELEC, is
expressly empowered on his own authority to transfer or reassign
COMELEC personnel in accordance with the Civil Service Law. In
the exercise of this power, the Chairman is not required by law to
secure the approval of the COMELEC en banc.
Petitioner’s appointment papers dated February 2, 1999,
February 15, 2000 and February 15, 2001, attached as Annexes
"X", "Y" and "Z" to her Petition, indisputably show that she held
her Director IV position in the EID only in an acting or
temporary capacity. Petitioner is not a Career Executive Service
64 
(CES) officer, and neither does she hold Career Executive
Service Eligibility, which are necessary qualifications for holding
the position of Director IV as prescribed in the Qualifications
Standards (Revised 1987) issued by the Civil Service
Commission. Obviously, petitioner does not enjoy security of
65 
tenure as Director IV. In Secretary of Justice Serafin Cuevas vs.
Atty. Josefina G. Bacal, this Court held that:
66 
"As respondent does not have the rank appropriate for the
position of Chief Public Attorney, her appointment to that
position cannot be considered permanent, and she can
claim no security of tenure in respect of that position. As
held in Achacoso v. Macaraig:
‘It is settled that a permanent appointment can be
issued only ‘to a person who meets all the
requirements for the position to which he is being
appointed, including the appropriate eligibility
prescribed.’ Achacoso did not. At best, therefore,
his appointment could be regarded only as
temporary. And being so, it could be withdrawn at
will by the appointing authority and ‘at a moment’s
notice’, conformably to established jurisprudence
x x x.
The mere fact that a position belongs to the
Career Service does not automatically confer
security of tenure on its occupant even if he does
not possess the required qualifications. Such right
will have to depend on the nature of his
be appointed to it in the first place, or as an
exception to the rule, may be appointed to it
merely in an acting capacity in the absence of
appropriate eligibles. The appointment extended
to him cannot be regarded as permanent even if it
may be so designated x x x.’"
Having been appointed merely in a temporary or acting capacity,
and not possessed of the necessary qualifications to hold the
position of Director IV, petitioner has no legal basis in claiming
that her reassignment was contrary to the Civil Service Law. This
time, the vigorous argument of petitioner that a temporary or
acting appointment can be withdrawn or revoked at the pleasure
of the appointing power happens to apply squarely to her
situation.
Still, petitioner assails her reassignment, carried out during the
election period, as a prohibited act under Section 261 (h) of the
Omnibus Election Code, which provides as follows:
"Section 261.  Prohibited Acts. The following shall be
guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil service -
Any public official who makes or causes any transfer or
detail whatever of any officer or employee in the civil
service including public school teachers, within the
election period except upon prior approval of the
Commission."
Petitioner claims that Benipayo failed to secure the approval of
the COMELEC en banc to effect transfers or reassignments of
COMELEC personnel during the election period. Moreover,
67 

appointment, which in turn depends on his

petitioner insists that the COMELEC en banc must concur to
eligibility or lack of it. A person who does not have
the requisite qualifications for the position cannot
every transfer or reassignment of COMELEC personnel during
the election period.
Contrary to petitioner’s allegation, the COMELEC did in fact issue
COMELEC Resolution No. 3300 dated November 6,
2000, exempting the COMELEC from Section 261 (h) of the
68  prohibited period, provided that the changes in the
Omnibus Election Code. The resolution states in part:
"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and
(h), of the Omnibus Election Code provides as follows:
xxx
Sec. 261. Prohibited Acts. The following shall be
guilty of an election offense:
xxx
(h) Transfer of officers and employees in the civil
service – Any public official who makes or causes
any transfer or detail whatever of any officer or
employee in the civil service including public
school teachers, within the election period except
upon approval of the Commission.
WHEREAS, the aforequoted provisions are applicable to
the national and local elections on May 14, 2001;
WHEREAS, there is an urgent need to appoint, transfer or
reassign personnel of the Commission on Elections
during the prohibited period in order that it can carry out
its constitutional duty to conduct free, orderly, honest,
peaceful and credible elections;
"NOW, THEREFORE, the Commission on Elections by
virtue of the powers conferred upon it by the Constitution,
the Omnibus Election Code and other election laws, as an
exception to the foregoing prohibitions, has RESOLVED,
as it is hereby RESOLVED, to appoint, hire new
employees or fill new positions and transfer or reassign
its personnel, when necessary in the effective
performance of its mandated functions during the
assignment of its field personnel within the thirty-day
period before election day shall be effected after due
notice and hearing." (Emphasis supplied)
The proviso in COMELEC Resolution No. 3300, requiring due
notice and hearing before any transfer or reassignment can be
made within thirty days prior to election day, refers only to
COMELEC field personnel and not to head office personnel like
the petitioner. Under the Revised Administrative Code, the
69 
COMELEC Chairman is the sole officer specifically vested with
the power to transfer or reassign COMELEC personnel. The
COMELEC Chairman will logically exercise the authority to
transfer or reassign COMELEC personnel pursuant to COMELEC
Resolution No. 3300. The COMELEC en banc cannot arrogate
unto itself this power because that will mean amending the
Revised Administrative Code, an act the COMELEC en
banc cannot legally do.
COMELEC Resolution No. 3300 does not require that every
transfer or reassignment of COMELEC personnel should carry
the concurrence of the COMELEC as a collegial body.
Interpreting Resolution No. 3300 to require such concurrence will
render the resolution meaningless since the COMELEC en
banc will have to approve every personnel transfer or
reassignment, making the resolution utterly useless. Resolution
No. 3300 should be interpreted for what it is, an approval to effect
transfers and reassignments of personnel, without need of
securing a second approval from the COMELEC en banc to
actually implement such transfer or reassignment.
The COMELEC Chairman is the official expressly authorized by
law to transfer or reassign COMELEC personnel. The person
holding that office, in a de jure capacity, is Benipayo. The
COMELEC en banc, in COMELEC Resolution No. 3300,
approved the transfer or reassignment of COMELEC personnel
during the election period. Thus, Benipayo’s order reassigning
petitioner from the EID to the Law Department does not violate
Section 261 (h) of the Omnibus Election Code. For the same
reason, Benipayo’s order designating Cinco Officer-in-Charge of
the EID is legally unassailable.
Fifth Issue: Legality of Disbursements to Respondents
Based on the foregoing discussion, respondent Gideon C. De
Guzman, Officer-in-Charge of the Finance Services Department
of the Commission on Elections, did not act in excess of
jurisdiction in paying the salaries and other emoluments of
Benipayo, Borra, Tuason and Cinco.
WHEREFORE, the petition is dismissed for lack of merit. Costs
against petitioner.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Mendoza,
Panganiban, Quisumbing, Ynares-Santiago, De Leon, Jr., and
Sandoval-Gutierrez, JJ., concur.
Puno, and Vitug, JJ., on official leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 200903               July 22, 2014
KALIPUNAN NG DAMAY ANG MAHIBIRAP, INC., represented
by its Vice-President, CARLITO BADION, CORAZON DE
JESUS HOMEOWNERS ASSOCIATION, represented by its
President, ARNOLD REPIQUE, FERNANDO SEVILLA as
President of Samahang Pamata sa Kapatirang Kr.istiyano,
ESTRELIETA BAGASBAS, JOCY LOPEZ, ELVIRA VIDOL, and
DELIA FRA YRES, Petitioners, 
vs.
JESSIE ROBREDO, in his capacity as Secretary, Department
of Interior and Local Government, Hon. GUIA GOMEZ, in her
capacity as MAYOR OF THE CITY. OF SAN JUAN, Hon.
HERBERT BAUTISTA, in his capacity as the MAYOR OF
QUEZON CITY, Hon. JOHN REY TIANGCO, in his capacity as
MAYOR OF NAVOTAS CITY, and the GENERAL MANAGER of
the NATIONAL HOUSING AUTHORITY, Respondents.
DECISION
BRION, J.:
This is a petition for prohibition and mandamus to enjoin the
public respondents from evicting the individual petitioners as well
as the petitionerassociations’ members from their dwellings in the
cities of San Juan, Navotas and Quezon without any court order,
and to compel the respondents to afford them judicial process
prior to evictions and demolitions. The petition primarily seeks to
declare asunconstitutional Section 28 (a) and (b) of Republic Act
No. 7279 (RA 7279), otherwise known as Urban Development
Housing Act, which authorizes evictions and demolitions under
certain circumstances without any court order.
The Factual Antecedents
The members of petitioners Kalipunan ng Damayang Mahihirap,
Inc. and Corazon de Jesus Homeowners’ Association as well as
the individual petitioners, Fernando Sevilla, Estrelieta Bagasbas,
Jocy Lopez, Elvira Vidol and Delia Frayres, were/are occupying
parcels of land owned by and located in the cities of San Juan,
Navotas and Quezon (collectively, the LGUs ). These LGUs sent
1 Theypoint out that Section 6, Article 3 of the 1987 Constitution
the petitioners notices of eviction and demolition pursuant to
Section 28 (a) and (b) of RA 7279 in order to give way to the
implementation and construction of infrastructure projects  in the
2 violate their right to adequate housing, a universal right
areas illegally occupied by the petitioners.
3 recognized in Article 25 of Universal Declaration ofHuman Rights
Section 28 (a) and (b) of RA 7279 authorize evictions and
demolitions without any court order when: (1) persons or entities
occupy danger areas such as esteros, railroad tracks, garbage
dumps, riverbanks, shorelines, waterways, and other public
places suchas sidewalks, roads, parks, and playgrounds; and (2)
persons or entities occupy areas where government infrastructure
projects with available funding are about to be implemented.
The Petition
On March 23, 2012, the petitionersdirectly filed a petition for
prohibition and mandamus before the Court, seeking to compel
the Secretary of Interior and Local Government, et al. (the public
respondents)to first secure an eviction and/or demolition order
from the court prior to their implementation of Section 28 (a) and
(b) of RA 7279.
The petitioners justify their directrecourse before this Court by
generally averring that they have no plain, speedy and adequate
remedy in the ordinary course of law.  They also posit that the
4 particularly state the grave abuse of discretion that the Mayor of
respondents gravely abused their discretion in implementing
Section 28 (a) and (b) of RA 7279 which are patently
unconstitutional. They likewise insist that they stand to be directly
injured by the respondents’threats of evictions and demolitions. In
the alternative, they contend that the transcendental public
importance of the issues raised in this case clothes them with
legal standing.5
The petitioners argue that Section 28 (a) and (b) of RA 7279
offend their constitutional right to due process because they
warrant evictions and demolitions without any court order.
expressly prohibits the impairment of liberty of abode unless there
is a court order. Moreover, Section 28 (a) and (b) of RA 7279
and Section 2 (a) of RA 7279. The petitioners further complain
that the respondents had previously conducted evictions and
demolitions in a violent manner, contrary to Section 10, Article 13
of the 1987 Constitution. 6
The Respondents’ Case
A. The Position of the Mayor of Navotas
The Mayor of Navotas prays for the outright dismissal of the
petition for its serious procedural defects. First, the petitioners
ignored the hierarchy of courts when they directly filed a Rule 65
petition before the Court.  Second, the petitioners incorrectly
7
availed themselves of a petition for prohibition and mandamus in
assailing the constitutionality of Section 28 (a) and (b) of RA
7279. According to the Mayor of Navotas, the office of a writ of
prohibition is merely to prevent the public respondent’s usurpation
of power or improper assumption of jurisdiction. On the other
hand, a writ of mandamus only commands the public respondent
to perform his ministerial functions. Third, the petitioners failed to
Navotas allegedly committed. Fourth, the petition does not
present any justiciable controversy since the City of Navotas had
already successfully evicted the petitioners in San Roque, informal settlers in a just and humane manner. C. The Position of
10

Navotas on November 28, 2011. Fifth, the petition was filed out of
time since the petitioners were personally notified of the intended
eviction and demolition on September 23, 2011. 8
The Mayor argues that Section 10, Article 13 of the 1987
Constitution allows evictions and demolitions to beconducted
even without a court order provided they are done in accordance
withthe law and in a just and humane manner. According to him,
RA 7279 isprecisely the law referred to by Section 10, Article 13
of the 1987 Constitution. The Mayor also disputes the petitioners’
the Mayor of Quezon
The Mayor of Quezon City holds that the petitioners’ premature
invocation of the Court’s power of judicial review and their
violation of the principle of hierarchy of courts are fatal to their
cause of action. Moreover, the petitioners failed to substantiate
the material allegations in the petition. He additionally argues that
his faithful implementation of RA 7279, which the legislature
enacted inthe exercise of police power, does not amount to grave
abuse of discretion.11

claim that RA 7279 does notafford the informal settlers procedural

due process prior to evictions and demolitions. He points out that D. The Position of the Secretary ofInterior and Local Government
Section 28 of RA 7279 and its implementing rules and regulations
(IRR) mandate that the affected persons or entities shall be given and the General Manager of the National Housing Authority
notice at least thirty (30) days prior to the date of eviction or
demolition. The respondents are likewise required to consult with
The Secretary of Interior and Local Government and the National
the duly designated representatives of the affected families and
Housing Authority (NHA)General Manager adopt the Mayor of
communities with respect to their relocation. He further asserts
Navotas’ position that the petition is procedurally infirm. They
that his faithful implementation of Section 28 (a) and (b) of RA
further argue that the liberty of abode is not illimitable and does
7279, which are presumed to be constitutional, cannotbe equated
not include the right to encroach upon other person properties.
to grave abuse of discretion. Lastly, the Mayor of Navotas insists
They also reiterate that Section 28 of RA 7279 provides sufficient
that the petitioners’ invocation of their right to freely choose their
safeguards in ensuring that evictions and demolitions are carried
abode is misplaced since they have no vested right to occupy
out in a just and humane manner. 12

properties that they do not own. 9

The Issues
B. The Position of the Mayor of San Juan
This case presents to us the following issues:
The Mayor of San Juan similarly argues that the petitioners
improperly availed themselves of a petition for prohibition and
mandamus before the Court. She contends thatshe performed (1) Whether the petition should be dismissed for serious
neither judicial nor ministerial functions in implementing RA 7279, procedural defects; and
the enabling law of Section 10, Article 13 of the 1987
Constitution. She also maintains that the petition has been (a) Whether the petitioners violated the principle
rendered moot and academic by the successful eviction of some of hierarchy of courts;
of the petitioners in Pinaglabanan, Corazon de Jesus, San Juan.
The Mayor of San Juan further stresses that Section 28 (a) and
(b) of RA 7279 already lay down the procedure in evicting
 (b) Whether the petitioners correctlyavailed
themselves of a petition for prohibition and
mandamus;
(2) Whether Section 28 (a) and (b) of RA 7279 are
violative of Sections 1 and 6, Article 3 of the 1987
Constitution.
The Court’s Ruling
We dismiss the petition.
The petitioners violated the principle of hierarchy of courts when
they directly filed the petition before the Court.
The petitioners have unduly disregarded the hierarchy of courts
by coming directly to the Court withtheir petition for prohibition
and mandamus. The petitioners appear to have forgotten that the
Supreme Court is a court of last resort, not a court offirst
instance. The hierarchy of courts should serve as a general
determinant of the appropriate forum for Rule 65 petitions. The
concurrence of jurisdiction among the Supreme Court, Court of
Appeals and the Regional Trial Courts to issue writs of certiorari,
prohibition, mandamus, quo warranto, habeas corpus and
injunction does not give the petitioners the unrestricted freedom
of choice of forum. By directly filing Rule 65 petitions before us,
the petitioners have unduly taxed the Court’s time and attention
which are better devoted to matters within our exclusive
jurisdiction. Worse, the petitioners only contributed to the
overcrowding of the Court's docket. We also wish to emphasize
that the trial court is better equipped to resolve cases ofthis
nature since this Court is not a trier of facts and does not
normallyundertake an examination of the contending parties’
evidence.13
The petitioners wrongly availed themselves of a petition for
prohibition and mandamus.
We cannot also ignore the petitioners’ glaring error in using a
petition for prohibition and mandamus in the current case.
The petitioners seem to have forgotten that a writ of prohibition
only lies against the tribunal, corporation, board, officer or
person’s exercise of judicial, quasi-judicial or ministerial
functions.  We issue a writ of prohibition to afford the aggrieved
14
party a relief against the respondent’s usurpation or grave abuse
of jurisdiction or power.
15
On the other hand, a petition for mandamus is merely directed
against the tribunal, corporation, board, officer, or person who
unlawfully neglects the performance of an act which the law
enjoins as a duty resulting from an office, trust or station or who
unlawfully excludes another from the use and enjoyment of a right
or office to which such other is entitled.  Thus, a writ of
16
mandamus will only issue to compel an officer to perform a
ministerial duty. It will not control a public officer’s exercise of
discretion as where the law imposes upon him the duty to
exercisehis judgment in reference to any manner in which he is
required to actprecisely because it is his judgment that is to be
exercised, not that of the court.
17
In the present case, the petitionersseek to prohibit the
respondents from implementing Section 28 (a) and (b) of RA
7279 without a prior court order of eviction and/or demolition. In
relation to this, paragraph 1, Section 28 of RA 7279 provides:
Sec. 28. Eviction and Demolition. — Eviction or demolition as a
practice shall be discouraged. Eviction or demolition, however,
maybe allowed under the following situations:
(a) When persons or entities occupy danger areas such
as esteros, railroad tracks, garbage dumps, riverbanks,
shorelines, waterways, and other public placessuch as
sidewalks, roads, parks, and playgrounds;
 (b) When government infrastructure projects with
available funding are about to be implemented;or
(c) When there is a court order for eviction and demolition.
(emphasis and underline ours)
A reading of this provision clearly shows that the acts complained
of are beyond the scope of a petition for prohibition and
mandamus. The use of the permissive word "may" implies that
the public respondents have discretion when their duty to execute
evictions and/or demolitions shall be performed. Where the words
of a statute are clear, plain, and free from ambiguity, it must be
given its literal meaning and applied without attempted
interpretation.
18
Consequently, the time when the public respondents shall carry
out evictions and/or demolitions under Section 28 (a), (b), and (c)
of RA 7279 is merely discretionary, and not ministerial, judicial or
quasi-judicial. The duty is discretionary if the law imposesa duty
upon a public officer and gives him the right to decide when the
duty shall be performed.
In contrast, a ministerial duty is one which an officer or tribunal
performs in a given state of facts,in a prescribedmanner, in
obedience to the mandate of a legal authority, without regard to
or the exercise of his own judgment upon the propriety or
impropriety of the act done. 19
On the other hand, both judicial and quasi-judicial functions
involve the determination of what the law is, and what the legal
rights of the contending parties are, with respect tothe matter in
controversy and, on the basis thereof and the facts obtaining, the
adjudication of their respective rights.
20
The resolution of the constitutionality of Section 28 (a) and (b) of
RA 7279 is not the lis motaof the case.
Even if we treat the present petition as one for certiorari since it
assails the constitutionality of Section 28 (a) and (b) of RA 7279,
the petition must necessarily fail for failure to show the essential
requisites that would warrant the Court’s exercise of judicial
review. It is a rule firmly entrenched in our jurisprudence thatthe
courts will not determine the constitutionality of a law unless the
following requisites are present: (1) the existence of an actual
case or controversy involving a conflict of legal rights susceptible
of judicial determination; (2) the existence of personal and
substantial interest on the part ofthe party raising the
constitutional question; (3) recourse to judicial review is made at
the earliest opportunity; and (4) the resolution of the constitutional
question must be necessary to the decision of the case. 21
Save for the petition pertaining to the City of Quezon’s threat of
eviction and demolition, this case no longer presents a justiciable
controversy with respect to the Mayors of Navotas and San Juan.
We take note of the Comments of these Mayors who alleged that
they had already successfully evicted the concerned petitioners in
their respective cities at the time of the filing of the petition.
What further constrains this Court from touching on the issue of
constitutionality is the fact that this issue is not the lis mota of this
case. Lis motaliterally means "the cause of the suit or action"; it is
rooted in the principle of separation of powers and is thus merely
an offshoot of the presumption of validity accorded the executive
and legislative acts of our coequal branches of the government.
This means that the petitioner who claims the unconstitutionality
of a law has the burden of showing first that the case cannot be
resolved unless the disposition of the constitutional question that
he raised is unavoidable. If there is some other ground upon
which the court may rest its judgment, that course will be adopted
and the question of constitutionality should be avoided.  Thus, to
22
justify the nullification ofa law, there must be a clear and
unequivocal breach of the Constitution, and not one that is
doubtful, speculative or argumentative. 23
We carefully read the petitions and we conclude that they fail to
compellingly show the necessity ofexamining the constitutionality
of Section 28 (a) and (b) of RA 7279 in the light of Sections 1 and
6, Article 3 of the 1987 Constitution.  In Magkalas v. NHA,  this
24 25
orentities occupy danger areas and when persons or entities
occupy areas where government infrastructure projects with
available funding are about to be implemented.

Court had already ruled on the validity of evictions and
demolitions without any court order. In that case, we affirmed the
validity ofSection 2 of Presidential Decree No. 1472 which
authorizes the NHA to summarily eject all informal settlers’
colonies on government resettlement projects as well as any
illegal occupant in any homelot, apartment or dwelling unit owned
or administered by the NHA. In that case, we held that Caridad
Magkalas’ illegal possession of the property should not hinder the
NHA’s development of Bagong Barrio Urban Bliss Project. We
further stated that demolitions and evictions may be validly
carried out even without a judicial order in the following instances:
(1) when the property involved is an expropriated property xxx
pursuant to Section 1 of P.D. No. 1315;
(2) when there are squatters on government resettlement
projects and illegal occupants in any homelot, apartment
or dwelling unit owned or administered by the NHA
pursuant to Section 2 of P.D. No. 1472;
(3) when persons or entities occupy danger areas such as
esteros, railroad tracks, garbage dumps, riverbanks,
shorelines, waterways and other public places such as
sidewalks, roads, parks and playgrounds, pursuant
toSection 28(a) of R.A. No. 7279;
To ensure that evictions and demolitions are conducted in a just
and humane manner, paragraph 2, Section 28 of RA 7279
commands the public respondents to comply with the following
prescribed procedure in executing eviction and/or demolition
orders:
In the execution of eviction or demolition orders involving
underprivileged and homeless citizens, the following shall be
mandatory:
(1) Notice upon the effected persons orentities at least
thirty (30) days prior to the date of eviction or demolition;
(2) Adequate consultations on the matter of settlement
with the duly designated representatives of the families to
be resettled and the affected communities in the areas
where they are to be relocated;
(3) Presence of local government officials or their
representatives during eviction or demolition;
(4) Proper identification of all persons taking part in the
demolition;

(4) when government infrastructure projects with available (5) Execution of eviction or demolition only during regular
funding are about to be implemented pursuant to Section office hours from Mondays to Fridays and during good
28(b) of R.A. No. 7279.  (emphasis ours)
26 weather, unless the affected families consent otherwise;

We note that Section 10, Article13 of the 1987 Constitution (6) No use of heavy equipment for demolition except for
provides that urban or rural poor dwellers shall not be evicted nor structures that are permanent and of concrete materials;
their dwelling demolished, except in accordance withlaw and in a
just and humane manner. Paragraph 1, Section 28 of RA 7279
allows summary evictions and demolition in cases where persons
 (7) Proper uniforms for members ofthe Philippine National
Police who shall occupy the first line of law enforcement
and observe proper disturbance control procedures; and
(8) Adequate relocation, whether temporary or
permanent: Provided, however, That in cases of eviction
and demolition pursuant to a court order involving
underprivileged and homeless citizens, relocation shall be
undertaken by the local government unit concerned and
the National Housing Authority with the assistance of
other government agencies within forty-five (45) days
from service of notice of final judgment by the court, after
which period the said order shall be executed: Provided,
further, That should relocation not be possible within the
said period, financial assistance in the amount equivalent
to the prevailing minimum daily wage multiplied by sixty
(60) days shall be extended to the affected families by the
local government unit concerned.
This Department of the Interior and Local Government and the
Housing and Urban Development Coordinating Council shall
jointly promulgate the necessary rules and regulations to carry
out the above provision.
Lastly, the petitioners failed to substantiate their allegations that
the public respondents gravely abused their discretion in
implementing Section 28 (a) and (b) of RA 7279. Instead,
theymerely imputed jurisdictional abuse to the public respondents
through general averments in their pleading, but without any
basis to support their claim.
This is precisely the reason why we frown upon the direct filing of
Rule 65 petitions before the Court.  To the point of being
1âwphi1
repetitive, we (xxx source text missing)
Lastly, the petitioners failed to substantiate their allegations that
the public respondents gravely abused their discretion in
implementing Section 28 (a) and (b) of RA 7279. Instead, they
merely imputed jurisdictional abuse to the public respondents
through general averments in their pleading, but without any
basis to support their claim.
This is precisely the reason why we frown upon the direct filing of
Rule 65 petitions before the Court. To the point of being
repetitive, we emphasize that we are not trier of facts and this
applies with greater force to Rule 65 petitions which are original
and independent actions. To justify judicial intrusion into what is
fundamentally the domain of the executive department, the
petitioners must establish facts that are necessarily linked to the
jurisdictional problem they presented in this case, i.e., whether
the public respondents exercised their power in an arbitrary and
despotic manner by reason of passion or personal hostility in
implementing Section 28 (a) and (b) of RA 7279.
Since the petitioners failed to establish that the public
respondents' alleged abuse of discretion was so patent and gross
as to amount to an evasion or to a unilateral refusal to perform
the duty enjoined or to act in contemplation of law, this petition
must necessarily fail.
27
WHEREFORE, premises considered, we hereby DISMISS the
petition for its serious procedural defects. No costs.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
 Republic of the Philippines
ANTONIO T. CARPIO PRESBITERO J. SUPREME COURT
Associate Justice VELASCO, JR. Manila
Chief Justice Associate Justice
EN BANC
TERESITA J.
DIOSDADO M. G.R. No. 209287               July 1, 2014
LEONARDO-DE
PERALTA
CASTRO
Associate Justice
Associate Justice MARIA CAROLINA P. ARAULLO, CHAIRPERSON, BAGONG
ALYANSANG MAKABAYAN; JUDY M. TAGUIWALO,
PROFESSOR, UNIVERSITY OF THE PHILIPPINES DILIMAN,
MARIANO C. DEL CO-CHAIRPERSON, PAGBABAGO; HENRI KAHN,
LUCAS P. BERSAMIN
CASTILLO CONCERNED CITIZENS MOVEMENT; REP. LUZ ILAGAN,
Associate Justice
Associate Justice GABRIELA WOMEN'S PARTY REPRESENTATIVE; REP.
CARLOS ISAGANI ZARATE, BAY AN MUNA PARTY-LIST
MARTIN S. JOSE PORTUGAL REPRESENTATIVE; RENATO M. REYES, JR., SECRETARY
VILLARAMA, JR. PEREZ GENERAL OF BAYAN; MANUEL K. DAYRIT, CHAIRMAN,
Associate Justice Associate Justice ANG KAPATIRAN PARTY; VENCER MARI E. CRISOSTOMO,
CHAIRPERSON, ANAKBAYAN; VICTOR VILLANUEVA,
CONVENOR, YOUTH ACT NOW, Petitioners, 
(On leave) vs.
JOSE CATRAL BIENVENIDO L. REYES BENIGNO SIMEON C. AQUINO III, PRESIDENT OF THE
MENDOZA Associate Justice REPUBLIC OF THE PHILIPPINES; PAQUITO N. OCHOA, JR.,
Associate Justice EXECUTIVE SECRETARY; AND FLORENCIO B. ABAD,
SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
ESTELA M. PERLAS- MARVIC MARIO
BERNABE VICTOR F. LEONEN
x-----------------------x
Associate Justice Associate Justice
G.R. No. 209135

AUGUSTO L. SY JUCO JR., Ph.D., Petitioner, 

vs.
FLORENCIO B. ABAD, IN HIS CAPACITY AS THE
SECRETARY OF DEPARTMENT OF BUDGET AND
MANAGEMENT; AND HON. FRANKLIN MAGTUNAO DRILON,
IN HIS CAP A CITY AS THE SENATE PRESIDENT OF THE
PHILIPPINES, Respondents.
x-----------------------x
G.R. No. 209136
MANUELITO R. LUNA, Petitioner,  OF BUDGET AND MANAGEMENT (DBM),Respondent.
vs.
SECRETARY FLORENCIO ABAD, IN HIS OFFICIAL
CAPACITY AS HEAD OF THE DEPARTMENT OF BUDGET
AND MANAGEMENT; AND EXECUTIVE SECRETARY
PAQUITO OCHOA, IN HIS OFFICIAL CAPACITY AS ALTER
EGO OF THE PRESIDENT, Respondents.
x-----------------------x
G.R. No. 209155
ATTY. JOSE MALV AR VILLEGAS, JR., Petitioner,  REPRESENTATIVES, REPRESENTED BY SPEAKER
vs.
THE HONORABLE EXECUTIVE SECRETARY PAQUITO N.
OCHOA, JR.; AND THE SECRETARY OF BUDGET AND
MANAGEMENT FLORENCIO B. ABAD, Respondents.
x-----------------------x
G.R. No. 209164
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
REPRESENTED BY DEAN FROILAN M. BACUNGAN,
BENJAMIN E. DIOKNO AND LEONOR M.
BRIONES, Petitioners, 
vs.
DEPARTMENT OF BUDGET AND MANAGEMENT AND/OR
HON. FLORENCIO B. ABAD, Respondents.
x-----------------------x
G.R. No. 209260
INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioner, 
vs.
SECRETARY FLORENCIO B. ABAD OF THE DEPARTMENT
x-----------------------x
G.R. No. 209442
GRECO ANTONIOUS BEDA B. BELGICA; BISHOP REUBEN
MABANTE AND REV. JOSE L. GONZALEZ,Petitioners, 
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III, THE SENATE
OF THE PHILIPPINES, REPRESENTED BY SENATE
PRESIDENT FRANKLIN M. DRILON; THE HOUSE OF
FELICIANO BELMONTE, JR.; THE EXECUTIVE OFFICE,
REPRESENTED BY EXECUTIVE SECRETARY PAQUITO N.
OCHOA, JR.; THE DEPARTMENT OF BUDGET AND
MANAGEMENT, REPRESENTED BY SECRETARY
FLORENCIO ABAD; THE DEPARTMENT OF FINANCE,
REPRESENTED BY SECRETARY CESAR V. PURISIMA; AND
THE BUREAU OF TREASURY, REPRESENTED BY ROSALIA
V. DE LEON, Respondents.
x-----------------------x
G.R. No. 209517
CONFEDERATION FOR UNITY, RECOGNITION AND ADV AN
CEMENT OF GOVERNMENT EMPLOYEES (COURAGE),
REPRESENTED BY ITS 1ST VICE PRESIDENT, SANTIAGO
DASMARINAS, JR.; ROSALINDA NARTATES, FOR HERSELF
AND AS NATIONAL PRESIDENT OF THE CONSOLIDATED
UNION OF EMPLOYEES NATIONAL HOUSING AUTHORITY
(CUENHA); MANUEL BACLAGON, FOR HIMSELF AND AS
PRESIDENT OF THE SOCIAL WELFARE EMPLOYEES
ASSOCIATION OF THE PHILIPPINES, DEPARTMENT OF
SOCIAL WELFARE AND DEVELOPMENT CENTRAL OFFICE
(SWEAP-DSWD CO); ANTONIA PASCUAL, FOR HERSELF
AND AS NATIONAL PRESIDENT OF THE DEPARTMENT OF
AGRARIAN REFORM EMPLOYEES ASSOCIATION (DAREA);
ALBERT MAGALANG, FOR HIMSELF AND AS PRESIDENT
OF THE ENVIRONMENT AND MANAGEMENT BUREAU
EMPLOYEES UNION (EMBEU); AND MARCIAL ARABA, FOR
HIMSELF AND AS PRESIDENT OF THE KAPISANAN PARA
SA KAGALINGAN NG MGA KAW ANI NG MMDA
(KKKMMDA), Petitioners,  the President exercising his constitutional authority under Section
vs.
BENIGNO SIMEON C. AQUINO Ill, PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES; PAQUITO OCHOA, JR.,
EXECUTIVE SECRETARY; AND HON. FLORENCIO B. ABAD,
SECRETARY OF THE DEPARTMENT OF BUDGET AND
MANAGEMENT, Respondents.
x-----------------------x
G.R. No. 209569
VOLUNTEERS AGAINST CRIME AND CORRUPTION (VACC),
REPRESENTED BY DANTE L. JIMENEZ,Petitioner,  some Senators, including himself, had been allotted an additional
vs.
PAQUITO N. OCHOA, EXECUTIVE SECRETARY, AND
FLORENCIO B. ABAD, SECRETARY OF THE DEPARTMENT
OF BUDGET AND MANAGEMENT, Respondents.
DECISION
BERSAMIN, J.:
For resolution are the consolidated petitions assailing the
constitutionality of the Disbursement Acceleration Program(DAP),
National Budget Circular (NBC) No. 541, and related issuances of
the Department of Budget and Management (DBM) implementing
the DAP.
At the core of the controversy is Section 29(1) of Article VI of the
1987 Constitution, a provision of the fundamental law that firmly
ordains that "[n]o money shall be paid out of the Treasury except
in pursuance of an appropriation made by law." The tenor and
context of the challenges posed by the petitioners against the
DAP indicate that the DAP contravened this provision by allowing
the Executive to allocate public money pooled from programmed
and unprogrammed funds of its various agencies in the guise of
25(5) of the 1987 Constitution to transfer funds out of savings to
augment the appropriations of offices within the Executive Branch
of the Government. But the challenges are further complicated by
the interjection of allegations of transfer of funds to agencies or
offices outside of the Executive.
Antecedents
What has precipitated the controversy?
On September 25, 2013, Sen. Jinggoy Ejercito Estrada delivered
a privilege speech in the Senate of the Philippines to reveal that
₱50 Million each as "incentive" for voting in favor of the
impeachment of Chief Justice Renato C. Corona.
Responding to Sen. Estrada’s revelation, Secretary Florencio
Abad of the DBM issued a public statement entitled Abad:
Releases to Senators Part of Spending Acceleration
Program,  explaining that the funds released to the Senators had
1
been part of the DAP, a program designed by the DBM to ramp
up spending to accelerate economic expansion. He clarified that
the funds had been released to the Senators based on their
letters of request for funding; and that it was not the first time that
releases from the DAP had been made because the DAP had
already been instituted in 2011 to ramp up spending after
sluggish disbursements had caused the growth of the gross
domestic product (GDP) to slow down. He explained that the
funds under the DAP were usually taken from (1) unreleased
appropriations under Personnel Services;  (2) unprogrammed
2
funds; (3) carry-over appropriations unreleased from the previous
year; and (4) budgets for slow-moving items or projects that had
been realigned to support faster-disbursing projects.
The DBM soon came out to claim in its website  that the DAP
3
releases had been sourced from savings generated by the
Government, and from unprogrammed funds; and that the
savings had been derived from (1) the pooling of unreleased
appropriations, like unreleased Personnel
Services  appropriations that would lapse at the end of the year,
4
unreleased appropriations of slow-moving projects and
discontinued projects per zero based budgeting findings;  and (2)
5
the withdrawal of unobligated allotments also for slow-moving
programs and projects that had been earlier released to the
agencies of the National Government.
The DBM listed the following as the legal bases for the DAP’s use
of savings,  namely: (1) Section 25(5), Article VI of the 1987
6
Constitution, which granted to the President the authority to
augment an item for his office in the general appropriations law;
(2) Section 49 (Authority to Use Savings for Certain Purposes)
and Section 38 (Suspension of Expenditure Appropriations),
Chapter 5, Book VI of Executive Order (EO) No. 292
(Administrative Code of 1987); and (3) the General
Appropriations Acts (GAAs) of 2011, 2012 and 2013, particularly
their provisions on the (a) use of savings; (b) meanings of savings
and augmentation; and (c) priority in the use of savings.
As for the use of unprogrammed funds under the DAP, the DBM
cited as legal bases the special provisions on unprogrammed
fund contained in the GAAs of 2011, 2012 and 2013.
The revelation of Sen. Estrada and the reactions of Sec. Abad
and the DBM brought the DAP to the consciousness of the Nation
for the first time, and made this present controversy inevitable.
That the issues against the DAP came at a time when the Nation
was still seething in anger over Congressional pork barrel – "an
appropriation of government spending meant for localized
projects and secured solely or primarily to bring money to a
representative’s district"  – excited the Nation as heatedly as the
7
pork barrel controversy.
Nine petitions assailing the constitutionality of the DAP and the
issuances relating to the DAP were filed within days of each
other, as follows: G.R. No. 209135 (Syjuco), on October 7, 2013;
G.R. No. 209136 (Luna), on October 7, 2013; G.R. No. 209155
(Villegas),  on October 16, 2013; G.R. No. 209164 (PHILCONSA),
8
on October 8, 2013; G.R. No. 209260 (IBP), on October 16, 2013;
G.R. No. 209287 (Araullo), on October 17, 2013; G.R. No.
209442 (Belgica), on October 29, 2013; G.R. No. 209517
(COURAGE), on November6, 2013; and G.R. No. 209569
(VACC), on November 8, 2013.
In G.R. No. 209287 (Araullo), the petitioners brought to the
Court’s attention NBC No. 541 (Adoption of Operational Efficiency
Measure – Withdrawal of Agencies’ Unobligated Allotments as of
June 30, 2012), alleging that NBC No. 541, which was issued to
implement the DAP, directed the withdrawal of unobligated
allotments as of June 30, 2012 of government agencies and
offices with low levels of obligations, both for continuing and
current allotments.
In due time, the respondents filed their Consolidated Comment
through the Office of the Solicitor General (OSG).
The Court directed the holding of oral arguments on the
significant issues raised and joined.
Issues
Under the Advisory issued on November 14, 2013, the
presentations of the parties during the oral arguments were
limited to the following, to wit:
Procedural Issue:
A. Whether or not certiorari, prohibition, and mandamus are
proper remedies to assail the constitutionality and validity of the
Disbursement Acceleration Program (DAP), National Budget
Circular (NBC) No. 541, and all other executive issuances
allegedly implementing the DAP. Subsumed in this issue are
whether there is a controversy ripe for judicial determination, and
the standing of petitioners.
Substantive Issues:
B. Whether or not the DAP violates Sec. 29, Art. VI of the 1987
Constitution, which provides: "No money shall be paid out of the
Treasury except in pursuance of an appropriation made by law."
C. Whether or not the DAP, NBC No. 541, and all other executive
issuances allegedly implementing the DAP violate Sec. 25(5), Art.
VI of the 1987 Constitution insofar as:
(a)They treat the unreleased appropriations and
unobligated allotments withdrawn from
government agencies as "savings" as the term is
used in Sec. 25(5), in relation to the provisions of
the GAAs of 2011, 2012 and 2013;
(b)They authorize the disbursement of funds for
projects or programs not provided in the GAAs for
the Executive Department; and
(c)They "augment" discretionary lump sum
appropriations in the GAAs.
D. Whether or not the DAP violates: (1) the Equal Protection
Clause, (2) the system of checks and balances, and (3) the
principle of public accountability enshrined in the 1987
Constitution considering that it authorizes the release of funds
upon the request of legislators.
E. Whether or not factual and legal justification exists to issue a
temporary restraining order to restrain the implementation of the
DAP, NBC No. 541, and all other executive issuances allegedly
implementing the DAP.
In its Consolidated Comment, the OSG raised the matter of
unprogrammed funds in order to support its argument regarding
the President’s power to spend. During the oral arguments, the
propriety of releasing unprogrammed funds to support projects
under the DAP was considerably discussed. The petitioners in
G.R. No. 209287 (Araullo) and G.R. No. 209442 (Belgica)
dwelled on unprogrammed funds in their respective memoranda.
Hence, an additional issue for the oral arguments is stated as
follows:
F. Whether or not the release of unprogrammed funds under the
DAP was in accord with the GAAs.
During the oral arguments held on November 19, 2013, the Court
directed Sec. Abad to submit a list of savings brought under the
DAP that had been sourced from (a) completed programs; (b)
discontinued or abandoned programs; (c) unpaid appropriations
for compensation; (d) a certified copy of the President’s directive
dated June 27, 2012 referred to in NBC No. 541; and (e) all
circulars or orders issued in relation to the DAP.
9
In compliance, the OSG submitted several documents, as follows:
(1) A certified copy of the Memorandum for the President
dated June 25, 2012 (Omnibus Authority to Consolidate
Savings/Unutilized Balances and their Realignment); 10
(2) Circulars and orders, which the respondents identified
as related to the DAP, namely:
a. NBC No. 528 dated January 3, 2011
(Guidelines on the Release of Funds for FY
2011);
b. NBC No. 535 dated December 29, 2011
(Guidelines on the Release of Funds for FY
2012);
c. NBC No. 541 dated July 18, 2012 (Adoption of
Operational Efficiency Measure – Withdrawal of
Agencies’ Unobligated Allotments as of June 30,
2012);
d. NBC No. 545 dated January 2, 2013
(Guidelines on the Release of Funds for FY
2013);
e. DBM Circular Letter No. 2004-2 dated January
26, 2004 (Budgetary Treatment of
Commitments/Obligations of the National
Government);
f. COA-DBM Joint Circular No. 2013-1 dated
March 15, 2013 (Revised Guidelines on the
Submission of Quarterly Accountability Reports on
Appropriations, Allotments, Obligations and
Disbursements);
g. NBC No. 440 dated January 30, 1995
(Adoption of a Simplified Fund Release System in
the Government).
(3) A breakdown of the sources of savings, including
savings from discontinued projects and unpaid
appropriations for compensation from 2011 to 2013
On January 28, 2014, the OSG, to comply with the Resolution
issued on January 21, 2014 directing the respondents to submit
the documents not yet submitted in compliance with the directives
of the Court or its Members, submitted several evidence packets
to aid the Court in understanding the factual bases of the DAP, to
wit:
(1) First Evidence Packet  – containing seven
11
memoranda issued by the DBM through Sec. Abad,
inclusive of annexes, listing in detail the 116 DAP
identified projects approved and duly signed by the
President, as follows:
a. Memorandum for the President dated October
12, 2011 (FY 2011 Proposed Disbursement
Acceleration Program (Projects and Sources of
Funds);
b. Memorandum for the President dated
December 12, 2011 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and its
Realignment);
c. Memorandum for the President dated June 25,
2012 (Omnibus Authority to Consolidate
 Savings/Unutilized Balances and their
Realignment);
d. Memorandum for the President dated
September 4, 2012 (Release of funds for other
priority projects and expenditures of the
Government);
e. Memorandum for the President dated
December 19, 2012 (Proposed Priority Projects
and Expenditures of the Government);
f. Memorandum for the President dated May 20,
2013 (Omnibus Authority to Consolidate
Savings/Unutilized Balances and their
Realignment to Fund the Quarterly Disbursement
Acceleration Program); and
g. Memorandum for the President dated
September 25, 2013 (Funding for the Task Force
Pablo Rehabilitation Plan).
(2) Second Evidence Packet  – consisting of 15
12
applications of the DAP, with their corresponding Special
Allotment Release Orders (SAROs) and appropriation
covers;
(3) Third Evidence Packet  – containing a list and
13
descriptions of 12 projects under the DAP;
(4) Fourth Evidence Packet  – identifying the DAP-related
14
portions of the Annual Financial Report (AFR) of the
Commission on Audit for 2011 and 2012;
(5) Fifth Evidence Packet  – containing a letter of
15
Department of Transportation and
Communications(DOTC) Sec. Joseph Abaya addressed
to Sec. Abad recommending the withdrawal of funds from
his agency, inclusive of annexes; and
(6) Sixth Evidence Packet  – a print-out of the Solicitor
16
General’s visual presentation for the January 28, 2014
oral arguments.
On February 5, 2014,  the OSG forwarded the Seventh Evidence
17
Packet,  which listed the sources of funds brought under the
18
DAP, the uses of such funds per project or activity pursuant to
DAP, and the legal bases thereof.
On February 14, 2014, the OSG submitted another set of
documents in further compliance with the Resolution dated
January 28, 2014, viz:
(1) Certified copies of the certifications issued by the Bureau of
Treasury to the effect that the revenue collections exceeded the
original revenue targets for the years 2011, 2012 and 2013,
including collections arising from sources not considered in the
original revenue targets, which certifications were required for the
release of the unprogrammed funds as provided in Special
Provision No. 1 of Article XLV, Article XVI, and Article XLV of the
2011, 2012 and 2013 GAAs; and (2) A report on releases of
savings of the Executive Department for the use of the
Constitutional Commissions and other branches of the
Government, as well as the fund releases to the Senate and the
Commission on Elections (COMELEC).
RULING
I.
Procedural Issue:
a) The petitions under Rule 65 are proper remedies
All the petitions are filed under Rule 65 of the Rules of Court, and the issuance of NBC No. 541 were not in the exercise of the
include applications for the issuance of writs of preliminary taxing or spending power of Congress;  and that even if the
20

prohibitory injunction or temporary restraining orders. More
specifically, the nature of the petitions is individually set forth
hereunder, to wit:
petitioners had suffered injury, there were plain, speedy and
adequate remedies in the ordinary course of law available to
them, like assailing the regularity of the DAP and related
issuances before the Commission on Audit (COA) or in the trial
courts.21

G.R. No. 209135 Certiorari, Prohibition and

(Syjuco)  Mandamus
G.R. No. 209136 (Luna)  Certiorariand Prohibition
G.R. No. 209155
The respondents aver that the special civil actions of certiorari
and prohibition are not proper actions for directly assailing the
constitutionality and validity of the DAP, NBC No. 541, and the
other executive issuances implementing the DAP. 22

Certiorariand Prohibition
(Villegas) 
In their memorandum, the respondents further contend that there
G.R. No. 209164 is no authorized proceeding under the Constitution and the Rules
Certiorariand Prohibition
(PHILCONSA)  of Court for questioning the validity of any law unless there is an
actual case or controversy the resolution of which requires the
G.R. No. 209260 (IBP)  Prohibition
determination of the constitutional question; that the jurisdiction of
G.R. No. 209287 the Court is largely appellate; that for a court of law to pass upon
Certiorariand Prohibition the constitutionality of a law or any act of the Government when
(Araullo) 
there is no case or controversy is for that court to set itself up as
G.R. No. 209442 a reviewer of the acts of Congress and of the President in
Certiorari violation of the principle of separation of powers; and that, in the
(Belgica) 
absence of a pending case or controversy involving the DAP and
G.R. No. 209517 NBC No. 541, any decision herein could amount to a mere
Certiorari and Prohibition
(COURAGE)  advisory opinion that no court can validly render. 23

G.R. No. 209569 (VACC)  Certiorari and Prohibition
The respondents submit that there is no actual controversy that is
ripe for adjudication in the absence of adverse claims between
the parties;  that the petitioners lacked legal standing to sue
19
because no allegations were made to the effect that they had
suffered any injury as a result of the adoption of the DAP and
The respondents argue that it is the application of the DAP to
actual situations that the petitioners can question either in the trial
courts or in the COA; that if the petitioners are dissatisfied with
the ruling either of the trial courts or of the COA, they can appeal
the decision of the trial courts by petition for review on certiorari,
or assail the decision or final order of the COA by special civil
action for certiorari under Rule 64 of the Rules of Court. 24

issuance of NBC No. 541; that their being taxpayers did not
immediately confer upon the petitioners the legal standing to sue The respondents’ arguments and submissions on the procedural
considering that the adoption and implementation of the DAP and issue are bereft of merit.
Section 1, Article VIII of the 1987 Constitution expressly provides:
Section 1. The judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality
of the Government.
Thus, the Constitution vests judicial power in the Court and in
such lower courts as may be established by law. In creating a
lower court, Congress concomitantly determines the jurisdiction of
that court, and that court, upon its creation, becomes by operation
of the Constitution one of the repositories of judicial
power.  However, only the Court is a constitutionally created
25
court, the rest being created by Congress in its exercise of the
legislative power.
The Constitution states that judicial power includes the duty of the
courts of justice 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." It has
thereby expanded the concept of judicial power, which up to then
was confined to its traditional ambit of settling actual
controversies involving rights that were legally demandable and
enforceable.
The background and rationale of the expansion of judicial power
under the 1987 Constitution were laid out during the deliberations
of the 1986 Constitutional Commission by Commissioner Roberto
R. Concepcion (a former Chief Justice of the Philippines) in his
sponsorship of the proposed provisions on the Judiciary, where
he said:–
The Supreme Court, like all other courts, has one main function:
to settle actual controversies involving conflicts of rights which are
demandable and enforceable. There are rights which are
guaranteed by law but cannot be enforced by a judicial party. In a
decided case, a husband complained that his wife was unwilling
to perform her duties as a wife. The Court said: "We can tell your
wife what her duties as such are and that she is bound to comply
with them, but we cannot force her physically to discharge her
main marital duty to her husband. There are some rights
guaranteed by law, but they are so personal that to enforce them
by actual compulsion would be highly derogatory to human
dignity." This is why the first part of the second paragraph of
Section 1 provides that: Judicial power includes the duty of courts
to settle actual controversies involving rights which are legally
demandable or enforceable…
The courts, therefore, cannot entertain, much less decide,
hypothetical questions. In a presidential system of government,
the Supreme Court has, also, another important function. The
powers of government are generally considered divided into three
branches: the Legislative, the Executive and the Judiciary. Each
one is supreme within its own sphere and independent of the
others. Because of that supremacy power to determine whether a
given law is valid or not is vested in courts of justice.
Briefly stated, courts of justice determine the limits of power of the
agencies and offices of the government as well as those of its
officers. In other words, the judiciary is the final arbiter on the
question whether or not a branch of government or any of its
officials has acted without jurisdiction or in excess of jurisdiction,
or so capriciously as to constitute an abuse of discretion
amounting to excess of jurisdiction or lack of jurisdiction. This is
not only a judicial power but a duty to pass judgmenton matters of
this nature.
This is the background of paragraph 2 of Section 1, which means
that the courts cannot hereafter evade the duty to settle matters
of this nature, by claiming that such matters constitute a political
question. (Bold emphasis supplied) 26
Upon interpellation by Commissioner Nolledo, Commissioner
Concepcion clarified the scope of judicial power in the following
manner:–
MR. NOLLEDO. x x x
The second paragraph of Section 1 states: "Judicial power
includes the duty of courts of justice to settle actual
controversies…" The term "actual controversies" according to the
Commissioner should refer to questions which are political in
nature and, therefore, the courts should not refuse to decide
those political questions. But do I understand it right that this is
restrictive or only an example? I know there are cases which are
not actual yet the court can assume jurisdiction. An example is
the petition for declaratory relief.
May I ask the Commissioner’s opinion about that?
MR. CONCEPCION. The Supreme Court has no jurisdiction to
grant declaratory judgments.
MR. NOLLEDO. The Gentleman used the term "judicial power"
but judicial power is not vested in the Supreme Court alone but
also in other lower courts as may be created by law.
MR. CONCEPCION. Yes.
MR. NOLLEDO. And so, is this only an example?
MR. CONCEPCION. No, I know this is not. The Gentleman
seems to identify political questions with jurisdictional questions.
But there is a difference.
MR. NOLLEDO. Because of the expression "judicial power"?
MR. CONCEPCION. No. Judicial power, as I said, refers to
ordinary cases but where there is a question as to whether the
government had authority or had abused its authority to the
extent of lacking jurisdiction or excess of jurisdiction, that is not a
political question. Therefore, the court has the duty to decide. 27
Our previous Constitutions equally recognized the extent of the
power of judicial review and the great responsibility of the
Judiciary in maintaining the allocation of powers among the three
great branches of Government. Speaking for the Court in Angara
v. Electoral Commission,  Justice Jose P. Laurel intoned:
28
x x x In times of social disquietude or political excitement, the
great landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the judicial
department is the only constitutional organ which can be called
upon to determine the proper allocation of powers between the
several department and among the integral or constituent units
thereof.
xxxx
The Constitution is a definition of the powers of government. Who
is to determine the nature, scope and extent of such powers? The
Constitution itself has provided for the instrumentality of the
judiciary as the rational way. And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any
superiority over the other department; it does not in reality nullify
or invalidate an act of the legislature, but only asserts the solemn
and sacred obligation assigned to it by the Constitution to
determine conflicting claims of authority under the Constitution
and to establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them. This is in
truth all that is involved in what is termed "judicial supremacy"
which properly is the power of judicial review under the
Constitution. x x x29
What are the remedies by which the grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government may be determined
under the Constitution?
The present Rules of Court uses two special civil actions for
determining and correcting grave abuse of discretion amounting
to lack or excess of jurisdiction. These are the special civil actions
for certiorari and prohibition, and both are governed by Rule 65. A
similar remedy of certiorari exists under Rule 64, but the remedy
is expressly applicable only to the judgments and final orders or
resolutions of the Commission on Elections and the Commission
on Audit.
The ordinary nature and function of the writ of certiorari in our
present system are aptly explained in Delos Santos v.
Metropolitan Bank and Trust Company: 30
In the common law, from which the remedy of certiorari evolved,
the writ of certiorari was issued out of Chancery, or the King’s
Bench, commanding agents or officers of the inferior courts to
return the record of a cause pending before them, so as to give
the party more sure and speedy justice, for the writ would enable
the superior court to determine from an inspection of the record
whether the inferior court’s judgment was rendered without
authority. The errors were of such a nature that, if allowed to
stand, they would result in a substantial injury to the petitioner to
whom no other remedy was available. If the inferior court acted
without authority, the record was then revised and corrected in
matters of law. The writ of certiorari was limited to cases in which
the inferior court was said to be exceeding its jurisdiction or was
not proceeding according to essential requirements of law and
would lie only to review judicial or quasi-judicial acts.
The concept of the remedy of certiorari in our judicial system
remains much the same as it has been in the common law. In this
jurisdiction, however, the exercise of the power to issue the writ of
certiorari is largely regulated by laying down the instances or
situations in the Rules of Court in which a superior court may
issue the writ of certiorari to an inferior court or officer. Section 1,
Rule 65 of the Rules of Court compellingly provides the
requirements for that purpose, viz:
xxxx
The sole office of the writ of certiorari is the correction of errors of
jurisdiction, which includes the commission of grave abuse of
discretion amounting to lack of jurisdiction. In this regard, mere
abuse of discretion is not enough to warrant the issuance of the
writ. The abuse of discretion must be grave, which means either
that the judicial or quasi-judicial power was exercised in an
arbitrary or despotic manner by reason of passion or personal
hostility, or that the respondent judge, tribunal or board evaded a
positive duty, or virtually refused to perform the duty enjoined or
to act in contemplation of law, such as when such judge, tribunal
or board exercising judicial or quasi-judicial powers acted in a
capricious or whimsical manner as to be equivalent to lack of
jurisdiction.
31
Although similar to prohibition in that it will lie for want or excess
of jurisdiction, certiorari is to be distinguished from prohibition by
the fact that it is a corrective remedy used for the re-examination
of some action of an inferior tribunal, and is directed to the cause
or proceeding in the lower court and not to the court itself, while
prohibition is a preventative remedy issuing to restrain future
action, and is directed to the court itself.  The Court expounded
32
on the nature and function of the writ of prohibition in Holy Spirit
Homeowners Association, Inc. v. Defensor: 33
A petition for prohibition is also not the proper remedy to assail an
IRR issued in the exercise of a quasi-legislative function.
Prohibition is an extraordinary writ directed against any tribunal,
corporation, board, officer or person, whether exercising judicial,
quasi-judicial or ministerial functions, ordering said entity or
person to desist from further proceedings when said proceedings
are without or in excess of said entity’s or person’s jurisdiction, or
are accompanied with grave abuse of discretion, and there is no
appeal or any other plain, speedy and adequate remedy in the
ordinary course of law. Prohibition lies against judicial or
ministerial functions, but not against legislative or quasi-legislative
functions. Generally, the purpose of a writ of prohibition is to keep
a lower court within the limits of its jurisdiction in order to maintain
the administration of justice in orderly channels. Prohibition is the
proper remedy to afford relief against usurpation of jurisdiction or
power by an inferior court, or when, in the exercise of jurisdiction
in handling matters clearly within its cognizance the inferior court
transgresses the bounds prescribed to it by the law, or where
there is no adequate remedy available in the ordinary course of
law by which such relief can be obtained. Where the principal
relief sought is to invalidate an IRR, petitioners’ remedy is an
ordinary action for its nullification, an action which properly falls
under the jurisdiction of the Regional Trial Court. In any case,
petitioners’ allegation that "respondents are performing or
threatening to perform functions without or in excess of their
jurisdiction" may appropriately be enjoined by the trial court
through a writ of injunction or a temporary restraining order.
With respect to the Court, however, the remedies of certiorari and
prohibition are necessarily broader in scope and reach, and the
writ of certiorari or prohibition may be issued to correct errors of
jurisdiction committed not only by a tribunal, corporation, board or
officer exercising judicial, quasi-judicial or ministerial functions but
also to set right, undo and restrain any act of grave abuse of
discretion amounting to lack or excess of jurisdiction by any
branch or instrumentality of the Government, even if the latter
does not exercise judicial, quasi-judicial or ministerial functions.
This application is expressly authorized by the text of the second
paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate
remedies to raise constitutional issues and to review and/or
prohibit or nullify the acts of legislative and executive officials. 34
Necessarily, in discharging its duty under Section 1, supra, to set
right and undo any act of grave abuse of discretion amounting to
lack or excess of jurisdiction by any branch or instrumentality of
the Government, the Court is not at all precluded from making the
inquiry provided the challenge was properly brought by interested
or affected parties. The Court has been thereby entrusted
expressly or by necessary implication with both the duty and the
obligation of determining, in appropriate cases, the validity of any
assailed legislative or executive action. This entrustment is
consistent with the republican system of checks and balances. 35
Following our recent dispositions concerning the congressional
pork barrel, the Court has become more alert to discharge its
constitutional duty. We will not now refrain from exercising our
expanded judicial power in order to review and determine, with
authority, the limitations on the Chief Executive’s spending power.
b) Requisites for the exercise of the
power of judicial review were
complied with
The requisites for the exercise of the power of judicial review are
the following, namely: (1) there must bean actual case or
justiciable controversy before the Court; (2) the question before
the Court 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. 36
The first requisite demands that there be an actual case calling
for the exercise of judicial power by the Court.  An actual case or
37
controversy, in the words of Belgica v. Executive Secretary
Ochoa: 38
x x x is one which involves a conflict of legal rights, an assertion
of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or
dispute. In other words, "[t]here must be a contrariety of legal
rights that can be interpreted and enforced on the basis of
existing law and jurisprudence." Related to the requirement of an
actual case or controversy is the requirement of "ripeness,"
meaning that the questions raised for constitutional scrutiny are
already ripe for adjudication. "A question is ripe for adjudication
when the act being challenged has had a direct adverse effect on
the individual challenging it. It is a prerequisite that something
had then been accomplished or performed by either branch
before a court may come into the picture, and the petitioner must
allege the existence of an immediate or threatened injury to itself
as a result of the challenged action." "Withal, courts will decline to
pass upon constitutional issues through advisory opinions, bereft
as they are of authority to resolve hypothetical or moot
questions."
An actual and justiciable controversy exists in these consolidated
cases. The incompatibility of the perspectives of the parties on
the constitutionality of the DAP and its relevant issuances satisfy
the requirement for a conflict between legal rights. The issues
being raised herein meet the requisite ripeness considering that
the challenged executive acts were already being implemented
by the DBM, and there are averments by the petitioners that such
implementation was repugnant to the letter and spirit of the
Constitution. Moreover, the implementation of the DAP entailed
the allocation and expenditure of huge sums of public funds. The
fact that public funds have been allocated, disbursed or utilized
by reason or on account of such challenged executive acts gave
rise, therefore, to an actual controversy that is ripe for
adjudication by the Court.
It is true that Sec. Abad manifested during the January 28, 2014
oral arguments that the DAP as a program had been meanwhile
discontinued because it had fully served its purpose, saying: "In
conclusion, Your Honors, may I inform the Court that because the
DAP has already fully served its purpose, the Administration’s
economic managers have recommended its termination to the
President. x x x."
39
The Solicitor General then quickly confirmed the termination of
the DAP as a program, and urged that its termination had already
mooted the challenges to the DAP’s constitutionality, viz:
DAP as a program, no longer exists, thereby mooting these
present cases brought to challenge its constitutionality. Any
constitutional challenge should no longer be at the level of the
program, which is now extinct, but at the level of its prior
applications or the specific disbursements under the now defunct
policy. We challenge the petitioners to pick and choose which
among the 116 DAP projects they wish to nullify, the full details
we will have provided by February 5. We urge this Court to be
cautious in limiting the constitutional authority of the President
and the Legislature to respond to the dynamic needs of the
country and the evolving demands of governance, lest we end up
straight jacketing our elected representatives in ways not
consistent with our constitutional structure and democratic
principles.
40
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. 41
The Court cannot agree that the termination of the DAP as a
program was a supervening event that effectively mooted these
consolidated cases. Verily, the Court had in the past exercised its
power of judicial review despite the cases being rendered moot
and academic by supervening events, like: (1) when there was a
grave violation of the Constitution; (2) when the case involved a
situation of exceptional character and was of paramount public
interest; (3) when the constitutional issue raised required the
formulation of controlling principles to guide the Bench, the Bar
and the public; and (4) when the case was capable of repetition
yet evading review. 42
Assuming that the petitioners’ several submissions against the
DAP were ultimately sustained by the Court here, these cases
would definitely come under all the exceptions. Hence, the Court
should not abstain from exercising its power of judicial review.
Did the petitioners have the legal standing to sue?
Legal standing, as a requisite for the exercise of judicial review,
refers to "a right of appearance in a court of justice on a given
question."  The concept of legal standing, or locus standi, was
43
particularly discussed in De Castro v. Judicial and Bar
Council,  where the Court said:
44
In public or constitutional litigations, the Court is often burdened
with the determination of the locus standi of the petitioners due to
the ever-present need to regulate the invocation of the
intervention of the Court to correct any official action or policy in
order to avoid obstructing the efficient functioning of public
officials and offices involved in public service. It is required,
therefore, that the petitioner must have a personal stake in the
outcome of the controversy, for, as indicated in Agan, Jr. v.
Philippine International Air Terminals Co., Inc.:
The question on legal standing is whether such parties have
"alleged such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends
for illumination of difficult constitutional questions." Accordingly, it
has been held that the interest of a person assailing the
constitutionality of a statute must be direct and personal. He must
be able to show, not only that the law or any government act is
invalid, but also that he sustained or is in imminent danger of
sustaining some direct injury as a result of its enforcement, and
not merely that he suffers thereby in some indefinite way. It must
appear that the person complaining has been or is about to be
denied some right or privilege to which he is lawfully entitled or
that he is about to be subjected to some burdens or penalties by
reason of the statute or act complained of.
It is true that as early as in 1937, in People v. Vera, the Court
adopted the direct injury test for determining whether a petitioner
in a public action had locus standi. There, the Court held that the
person who would assail 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." Vera was
followed in Custodio v. President of the Senate, Manila Race
Horse Trainers’ Association v. De la Fuente, Anti-Chinese
League of the Philippines v. Felix, and Pascual v. Secretary of
Public Works.
Yet, the Court has also held that the requirement of locus standi,
being a mere procedural technicality, can be waived by the Court
in the exercise of its discretion. For instance, in 1949, in Araneta
v. Dinglasan, the Court liberalized the approach when the cases
had "transcendental importance." Some notable controversies
whose petitioners did not pass the direct injury test were allowed
to be treated in the same way as in Araneta v. Dinglasan.
In the 1975 decision in Aquino v. Commission on Elections, this
Court decided to resolve the issues raised by the petition due to
their "far reaching implications," even if the petitioner had no
personality to file the suit. The liberal approach of Aquino v.
Commission on Elections has been adopted in several notable
cases, permitting ordinary citizens, legislators, and civic
organizations to bring their suits involving the constitutionality or
validity of laws, regulations, and rulings.
However, the assertion of a public right as a predicate for
challenging a supposedly illegal or unconstitutional executive or
legislative action rests on the theory that the petitioner represents
the public in general. Although such petitioner may not be as
adversely affected by the action complained against as are
others, it is enough that he sufficiently demonstrates in his
petition that he is entitled to protection or relief from the Court in
the vindication of a public right.
Quite often, as here, the petitioner in a public action sues as a
citizen or taxpayer to gain locus standi. That is not surprising, for
even if the issue may appear to concern only the public in
general, such capacities nonetheless equip the petitioner with
adequate interest to sue. In David v. Macapagal-Arroyo, the Court
aptly explains why:
Case law in most jurisdiction snow allows both "citizen" and
"taxpayer" standing in public actions. The distinction was first laid
down in Beauchamp v. Silk, where it was held that the plaintiff in
a taxpayer’s suit is in a different category from the plaintiff in a
citizen’s suit. In the former, the plaintiff is affected by the
expenditure of public funds, while in the latter, he is but the mere
instrument of the public concern. As held by the New York
Supreme Court in People ex rel Case v. Collins: "In matter of
mere public right, however…the people are the real parties…It is
at least the right, if not the duty, of every citizen to interfere and
see that a public offence be properly pursued and punished, and
that a public grievance be remedied." With respect to taxpayer’s
suits, Terr v. Jordan held that "the right of a citizen and a taxpayer
to maintain an action in courts to restrain the unlawful use of
public funds to his injury cannot be denied." 45
The Court has cogently observed in Agan, Jr. v. Philippine
International Air Terminals Co., Inc.  that "[s]tanding is a peculiar
46
concept in constitutional law because in some cases, suits are
not brought by parties who have been personally injured by the
operation of a law or any other government act but by concerned
citizens, taxpayers or voters who actually sue in the public
interest."
Except for PHILCONSA, a petitioner in G.R. No. 209164, the
petitioners have invoked their capacities as taxpayers who, by
averring that the issuance and implementation of the DAP and its
relevant issuances involved the illegal disbursements of public
funds, have an interest in preventing the further dissipation of
public funds. The petitioners in G.R. No. 209287 (Araullo) and
G.R. No. 209442 (Belgica) also assert their right as citizens to
sue for the enforcement and observance of the constitutional
limitations on the political branches of the Government. 47
On its part, PHILCONSA simply reminds that the Court has long
recognized its legal standing to bring cases upon constitutional
issues.  Luna, the petitioner in G.R. No. 209136, cites his
48
additional capacity as a lawyer. The IBP, the petitioner in G.R.
No. 209260, stands by "its avowed duty to work for the rule of law
and of paramount importance of the question in this action, not to
mention its civic duty as the official association of all lawyers in
this country."
49
Under their respective circumstances, each of the petitioners has
established sufficient interest in the outcome of the controversy
as to confer locus standi on each of them.
In addition, considering that the issues center on the extent of the
power of the Chief Executive to disburse and allocate public
funds, whether appropriated by Congress or not, these cases
pose issues that are of transcendental importance to the entire
Nation, the petitioners included. As such, the determination of
such important issues call for the Court’s exercise of its broad
and wise discretion "to waive the requirement and so remove the
impediment to its addressing and resolving the serious
constitutional questions raised."50
II.
Substantive Issues
1.
Overview of the Budget System
An understanding of the Budget System of the Philippines will aid
the Court in properly appreciating and justly resolving the
substantive issues.
a) Origin of the Budget System
The term "budget" originated from the Middle English word
bouget that had derived from the Latin word bulga (which means
bag or purse). 51
In the Philippine setting, Commonwealth Act (CA) No. 246
(Budget Act) defined "budget" as the financial program of the
National Government for a designated fiscal year, consisting of
the statements of estimated receipts and expenditures for the
fiscal year for which it was intended to be effective based on the
results of operations during the preceding fiscal years. The term
was given a different meaning under Republic Act No. 992
(Revised Budget Act) by describing the budget as the delineation
of the services and products, or benefits that would accrue to the
public together with the estimated unit cost of each type of
service, product or benefit.  For a forthright definition, budget
52
should simply be identified as the financial plan of the
Government,  or "the master plan of government."
53 54
The concept of budgeting has not been the product of recent
economies. In reality, financing public goals and activities was an
idea that existed from the creation of the State.  To protect the
55
people, the territory and sovereignty of the State, its government
must perform vital functions that required public expenditures. At
the beginning, enormous public expenditures were spent for war
activities, preservation of peace and order, security,
administration of justice, religion, and supply of limited goods and
services.  In order to finance those expenditures, the State raised
56
revenues through taxes and impositions.  Thus, budgeting
57
became necessary to allocate public revenues for specific
government functions.  The State’s budgeting mechanism
58
eventually developed through the years with the growing
functions of its government and changes in its market economy.
The Philippine Budget System has been greatly influenced by
western public financial institutions. This is because of the
country’s past as a colony successively of Spain and the United
States for a long period of time. Many aspects of the country’s
public fiscal administration, including its Budget System, have
been naturally patterned after the practices and experiences of
the western public financial institutions. At any rate, the Philippine
Budget System is presently guided by two principal objectives
that are vital to the development of a progressive democratic
government, namely: (1) to carry on all government activities
under a comprehensive fiscal plan developed, authorized and
executed in accordance with the Constitution, prevailing statutes
and the principles of sound public management; and (2) to
provide for the periodic review and disclosure of the budgetary
status of the Government in such detail so that persons entrusted
by law with the responsibility as well as the enlightened citizenry
can determine the adequacy of the budget actions taken,
authorized or proposed, as well as the true financial position of
the Government. 59
b) Evolution of the Philippine Budget System
The budget process in the Philippines evolved from the early
years of the American Regime up to the passage of the Jones
Law in 1916. A Budget Office was created within the Department
of Finance by the Jones Law to discharge the budgeting function,
and was given the responsibility to assist in the preparation of an
executive budget for submission to the Philippine Legislature. 60
As early as under the 1935 Constitution, a budget policy and a
budget procedure were established, and subsequently
strengthened through the enactment of laws and executive
acts.  EO No. 25, issued by President Manuel L. Quezon on April
61
25, 1936, created the Budget Commission to serve as the agency
that carried out the President’s responsibility of preparing the
budget.  CA No. 246, the first budget law, went into effect on
62
January 1, 1938 and established the Philippine budget process.
The law also provided a line-item budget as the framework of the
Government’s budgeting system,  with emphasis on the
63
observance of a "balanced budget" to tie up proposed
expenditures with existing revenues.
CA No. 246 governed the budget process until the passage on
June 4, 1954 of Republic Act (RA) No. 992,whereby Congress
introduced performance-budgeting to give importance to
functions, projects and activities in terms of expected results.  RA
64
No. 992 also enhanced the role of the Budget Commission as the
fiscal arm of the Government. 65
The 1973 Constitution and various presidential decrees directed a
series of budgetary reforms that culminated in the enactment of
PD No. 1177 that President Marcos issued on July30, 1977, and
of PD No. 1405, issued on June 11, 1978. The latter decree
converted the Budget Commission into the Ministry of Budget,
and gave its head the rank of a Cabinet member.
The Ministry of Budget was later renamed the Office of Budget
and Management (OBM) under EO No. 711. The OBM became
the DBM pursuant to EO No. 292 effective on November 24,
1989.
c) The Philippine Budget Cycle 66
Four phases comprise the Philippine budget process, specifically:
(1) Budget Preparation; (2) Budget Legislation; (3) Budget
Execution; and (4) Accountability. Each phase is distinctly
separate from the others but they overlap in the implementation
of the budget during the budget year.
c.1.Budget Preparation 67
The budget preparation phase is commenced through the
issuance of a Budget Call by the DBM. The Budget Call contains
budget parameters earlier set by the Development Budget
Coordination Committee (DBCC) as well as policy guidelines and
procedures to aid government agencies in the preparation and
submission of their budget proposals. The Budget Call is of two
kinds, namely: (1) a National Budget Call, which is addressed to
all agencies, including state universities and colleges; and (2) a
Corporate Budget Call, which is addressed to all government-
owned and -controlled corporations (GOCCs) and government
financial institutions (GFIs).
Following the issuance of the Budget Call, the various
departments and agencies submit their respective Agency Budget
Proposals to the DBM. To boost citizen participation, the current
administration has tasked the various departments and agencies
to partner with civil society organizations and other citizen-
stakeholders in the preparation of the Agency Budget Proposals,
which proposals are then presented before a technical panel of
the DBM in scheduled budget hearings wherein the various
departments and agencies are given the opportunity to defend
their budget proposals. DBM bureaus thereafter review the
Agency Budget Proposals and come up with recommendations
for the Executive Review Board, comprised by the DBM
Secretary and the DBM’s senior officials. The discussions of the
Executive Review Board cover the prioritization of programs and
their corresponding support vis-à-vis the priority agenda of the
National Government, and their implementation.
The DBM next consolidates the recommended agency budgets
into the National Expenditure Program (NEP)and a Budget of
Expenditures and Sources of Financing (BESF). The NEP
provides the details of spending for each department and agency
by program, activity or project (PAP), and is submitted in the form
of a proposed GAA. The Details of Selected Programs and
Projects is the more detailed disaggregation of key PAPs in the
NEP, especially those in line with the National Government’s
development plan. The Staffing Summary provides the staffing
complement of each department and agency, including the
number of positions and amounts allocated.
The NEP and BESF are thereafter presented by the DBM and the
DBCC to the President and the Cabinet for further refinements or
reprioritization. Once the NEP and the BESF are approved by the
President and the Cabinet, the DBM prepares the budget
documents for submission to Congress. The budget documents
consist of: (1) the President’s Budget Message, through which the
President explains the policy framework and budget priorities; (2)
the BESF, mandated by Section 22, Article VII of the
Constitution,  which contains the macroeconomic assumptions,
68
public sector context, breakdown of the expenditures and funding
sources for the fiscal year and the two previous years; and (3) the
NEP.
Public or government expenditures are generally classified into
two categories, specifically: (1) capital expenditures or outlays;
and (2) current operating expenditures. Capital expenditures are
the expenses whose usefulness lasts for more than one year, and
which add to the assets of the Government, including investments
in the capital of government-owned or controlled corporations and
their subsidiaries.  Current operating expenditures are the
69
purchases of goods and services in current consumption the
benefit of which does not extend beyond the fiscal year.  The two
70
components of current expenditures are those for personal
services (PS), and those for maintenance and other operating
expenses(MOOE).
Public expenditures are also broadly grouped according to their
functions into: (1) economic development expenditures (i.e.,
expenditures on agriculture and natural resources, transportation
and communications, commerce and industry, and other
economic development efforts);  (2) social services or social
71
development expenditures (i.e., government outlay on education,
public health and medicare, labor and welfare and others);  (3) 72
general government or general public services expenditures (i.e.,
expenditures for the general government, legislative services, the
administration of justice, and for pensions and gratuities);  (4)
73
national defense expenditures (i.e., sub-divided into national
security expenditures and expenditures for the maintenance of
peace and order);  and (5) public debt.
74 75
Public expenditures may further be classified according to the
nature of funds, i.e., general fund, special fund or bond fund.
On the other hand, public revenues complement public
expenditures and cover all income or receipts of the government
treasury used to support government expenditures. 77
Classical economist Adam Smith categorized public revenues
based on two principal sources, stating: "The revenue which must
defray…the necessary expenses of government may be drawn
either, first from some fund which peculiarly belongs to the
sovereign or commonwealth, and which is independent of the
revenue of the people, or, secondly, from the revenue of the
people."  Adam Smith’s classification relied on the two aspects of
78
the nature of the State: first, the State as a juristic person with an
artificial personality, and, second, the State as a sovereign or
entity possessing supreme power. Under the first aspect, the
State could hold property and engage in trade, thereby deriving
what is called its quasi private income or revenues, and which
"peculiarly belonged to the sovereign." Under the second aspect,
the State could collect by imposing charges on the revenues of its
subjects in the form of taxes.79
In the Philippines, public revenues are generally derived from the
following sources, to wit: (1) tax revenues(i.e., compulsory
contributions to finance government activities); 80 (2) capital
revenues(i.e., proceeds from sales of fixed capital assets or scrap
thereof and public domain, and gains on such sales like sale of
public lands, buildings and other structures, equipment, and other
properties recorded as fixed assets); 81 (3) grants(i.e., voluntary
contributions and aids given to the Government for its operation
on specific purposes in the form of money and/or materials, and
do not require any monetary commitment on the part of the
recipient);  (4) extraordinary income(i.e., repayment of loans and
82
advances made by government corporations and local
governments and the receipts and shares in income of the Banko
Sentral ng Pilipinas, and other receipts);  and (5) public
83
borrowings(i.e., proceeds of repayable obligations generally with
interest from domestic and foreign creditors of the Government in
76 general, including the National Government and its political
subdivisions). 84
 More specifically, public revenues are classified as follows: 85
The Budget Legislation Phase covers the period commencing
from the time Congress receives the President’s Budget, which is
inclusive of the NEPand the BESF, up to the President’s approval
General Income Specific Income
of the GAA. This phase is also known as the Budget
Subsidy Income from National Income Taxes Authorization Phase, and involves the significant participation of
Government Property Taxes the Legislative through its deliberations.
Subsidy from Central Office  Taxes on Goods and Services
Subsidy from Regional  Initially, the President’s Budget is assigned to the House of
Taxes on International Trade and Representatives’ Appropriations Committee on First Reading.
Office/Staff Bureaus  Transactions The Appropriations Committee and its various Sub-Committees
Income from Government  Other Taxes 6.Fines and Penalties-Tax Revenueschedule and conduct budget hearings to examine the PAPs of
Services  the departments and agencies. Thereafter, the House of
Other Specific Income
Income from Government  Representatives drafts the General Appropriations Bill (GAB). 87

Business Operations
Sales Revenue The GABis sponsored, presented and defended by the House of
Representatives’ Appropriations Committee and Sub-Committees
Rent Income
in plenary session. As with other laws, the GAB is approved on
Insurance Income Third Reading before the House of Representatives’ version is
Dividend Income transmitted to the Senate.88

Interest Income
After transmission, the Senate conducts its own committee
Sale of Confiscated Goods and hearings on the GAB. To expedite proceedings, the Senate may
Properties conduct its committee hearings simultaneously with the House of
Foreign Exchange (FOREX) Representatives’ deliberations. The Senate’s Finance Committee
Gains and its Sub-Committees may submit the proposed amendments
Miscellaneous Operating and to the GAB to the plenary of the Senate only after the House of
Service Income Representatives has formally transmitted its version to the
Senate. The Senate version of the GAB is likewise approved on
Fines and Penalties-Government Third Reading. 89

Services and Business Operations

Income from Grants and The House of Representatives and the Senate then constitute a
Donations panel each to sit in the Bicameral Conference Committee for the
purpose of discussing and harmonizing the conflicting provisions
of their versions of the GAB. The "harmonized" version of the
GAB is next presented to the President for approval.  The
90

President reviews the GAB, and prepares the Veto Message

c.2. Budget Legislation 86

where budget items are subjected to direct veto,  or are identified
91

for conditional implementation.

If, by the end of any fiscal year, the Congress shall have failed to
pass the GAB for the ensuing fiscal year, the GAA for the
preceding fiscal year shall be deemed re-enacted and shall
remain in force and effect until the GAB is passed by the
Congress. 92
c.3. Budget Execution 93
With the GAA now in full force and effect, the next step is the
implementation of the budget. The Budget Execution Phase is
primarily the function of the DBM, which is tasked to perform the
following procedures, namely: (1) to issue the programs and
guidelines for the release of funds; (2) to prepare an Allotment
and Cash Release Program; (3) to release allotments; and (4) to
issue disbursement authorities.
The implementation of the GAA is directed by the guidelines
issued by the DBM. Prior to this, the various departments and
agencies are required to submit Budget Execution
Documents(BED) to outline their plans and performance targets
by laying down the physical and financial plan, the monthly cash
program, the estimate of monthly income, and the list of
obligations that are not yet due and demandable.
Thereafter, the DBM prepares an Allotment Release Program
(ARP)and a Cash Release Program (CRP).The ARP sets a limit
for allotments issued in general and to a specific agency. The
CRP fixes the monthly, quarterly and annual disbursement levels.
Allotments, which authorize an agency to enter into obligations,
are issued by the DBM. Allotments are lesser in scope than
appropriations, in that the latter embrace the general legislative
authority to spend. Allotments may be released in two forms –
through a comprehensive Agency Budget Matrix (ABM),  or, 94
individually, by SARO. 95
Armed with either the ABM or the SARO, agencies become
authorized to incur obligations  on behalf of the Government in
96
order to implement their PAPs. Obligations may be incurred in
various ways, like hiring of personnel, entering into contracts for
the supply of goods and services, and using utilities.
In order to settle the obligations incurred by the agencies, the
DBM issues a disbursement authority so that cash may be
allocated in payment of the obligations. A cash or disbursement
authority that is periodically issued is referred to as a Notice of
Cash Allocation (NCA),  which issuance is based upon an
97
agency’s submission of its Monthly Cash Program and other
required documents. The NCA specifies the maximum amount of
cash that can be withdrawn from a government servicing bank for
the period indicated. Apart from the NCA, the DBM may issue a
Non-Cash Availment Authority(NCAA) to authorize non-cash
disbursements, or a Cash Disbursement Ceiling(CDC) for
departments with overseas operations to allow the use of income
collected by their foreign posts for their operating requirements.
Actual disbursement or spending of government funds terminates
the Budget Execution Phase and is usually accomplished through
the Modified Disbursement Scheme under which disbursements
chargeable against the National Treasury are coursed through
the government servicing banks.
c.4. Accountability 98
Accountability is a significant phase of the budget cycle because
it ensures that the government funds have been effectively and
efficiently utilized to achieve the State’s socio-economic goals. It
also allows the DBM to assess the performance of agencies
during the fiscal year for the purpose of implementing reforms
and establishing new policies.
An agency’s accountability may be examined and evaluated
through (1) performance targets and outcomes; (2) budget
accountability reports; (3) review of agency performance; and (4)
audit conducted by the Commission on Audit(COA).
2.
Nature of the DAP as a fiscal plan
a. DAP was a program designed to
promote economic growth
Policy is always a part of every budget and fiscal decision of any
Administration.  The national budget the Executive prepares and
99
presents to Congress represents the Administration’s "blueprint
for public policy" and reflects the Government’s goals and
strategies.  As such, the national budget becomes a tangible
100
representation of the programs of the Government in monetary
terms, specifying therein the PAPs and services for which specific
amounts of public funds are proposed and allocated.  Embodied
101
in every national budget is government spending. 102
When he assumed office in the middle of 2010, President Aquino
made efficiency and transparency in government spending a
significant focus of his Administration. Yet, although such focus
resulted in an improved fiscal deficit of 0.5% in the gross
domestic product (GDP) from January to July of 2011, it also
unfortunately decelerated government project implementation and
payment schedules.  The World Bank observed that the
103
Philippines’ economic growth could be reduced, and potential
growth could be weakened should the Government continue with
its underspending and fail to address the large deficiencies in
infrastructure.  The economic situation prevailing in the middle of
104
2011 thus paved the way for the development and
implementation of the DAP as a stimulus package intended to
fast-track public spending and to push economic growth by
investing on high-impact budgetary PAPs to be funded from the
"savings" generated during the year as well as from
unprogrammed funds.  In that respect, the DAP was the product
105
of "plain executive policy-making" to stimulate the economy by
way of accelerated spending. The Administration would thereby
106
accelerate government spending by: (1) streamlining the
implementation process through the clustering of infrastructure
projects of the Department of Public Works and Highways
(DPWH) and the Department of Education (DepEd),and (2) front
loading PPP-related projects  due for implementation in the
107
following year.
108
Did the stimulus package work?
The March 2012 report of the World Bank,  released after the
109
initial implementation of the DAP, revealed that the DAP was
partially successful. The disbursements under the DAP
contributed 1.3 percentage points to GDP growth by the fourth
quarter of 2011.  The continued implementation of the DAP
110
strengthened growth by 11.8% year on year while infrastructure
spending rebounded from a 29% contraction to a 34% growth as
of September 2013. 111
The DAP thus proved to be a demonstration that expenditure was
a policy instrument that the Government could use to direct the
economies towards growth and development.  The Government,
112
by spending on public infrastructure, would signify its commitment
of ensuring profitability for prospective investors.  The PAPs
113
funded under the DAP were chosen for this reason based on
their: (1) multiplier impact on the economy and infrastructure
development; (2) beneficial effect on the poor; and (3) translation
into disbursements. 114
b. History of the implementation of
the DAP, and sources of funds
under the DAP
How the Administration’s economic managers conceptualized
and developed the DAP, and finally presented it to the President
 remains unknown because the relevant documents appear to be
scarce. Appropriations FY 2011 but may be for the 2011
pooled as savings and Disbursement
realigned for priority Acceleration
The earliest available document relating to the genesis of the
programs that require Program
DAP was the memorandum of October 12,2011 from Sec. Abad
immediate funding
seeking the approval of the President to implement the proposed
DAP. The memorandum, which contained a list of the funding
sources for ₱72.11 billion and of the proposed priority projects to 482 Unreleased  
be funded,  reads:
115 Unreleased appropriations (slow
Appropriations moving projects and
MEMORANDUM FOR THE PRESIDENT programs for
discontinuance)
xxxx
12,336 Supported by the GFI Approve and
SUBJECT: FY 2011 PROPOSED DISBURSEMENT Unprogrammed Dividends authorize its use
ACCELERATION PROGRAM (PROJECTS AND SOURCES OF for the 2011
FUNDS) Disbursement
Acceleration
Program
DATE: OCTOBER 12, 2011

Mr. President, this is to formally confirm your approval of the 21,544 Unreleased With prior
Disbursement Acceleration Program totaling ₱72.11 billion. Carryover
We appropriations (slow approval from
are already working with all the agencies concerned for the Appropriation moving projects and the President in
immediate execution of the projects therein. programs for November 2010
discontinuance) and to declare as
savings from Zero-based Budgeting savings and with
A. Fund Sources for the Acceleration Program
Initiative authority to use
for priority
Amount projects
Action
Fund Sources (In million Description
Requested
FY 2011 Budget 7,748 FY 2011 Agency For information
Php)
Budget items that can
FY 2011 30,000 Unreleased Personnel realignment
Declare as be realigned within the
Unreleased Services (PS) savings and agency to fund new fast
Personal appropriations which approve/ disbursing projects
Services (PS) will lapse at the end of authorize its use DPWH-3.981 Billion
DA – 2.497 Billion
 DOT – 1.000 Billion 6. HGC: Equity infusion for credit insurance 400
DepEd – 270 Million and mortgage guaranty operations of HGC

7. PHIC: Obligations incurred (premium 1,496

TOTAL 72.110    
subsidy for indigent families) in January-June
2010, booked for payment in Jul[y] – Dec
B. Projects in the Disbursement Acceleration Program 2010. The delay in payment is due to the
delay in the certification of the LGU
counterpart. Without it, the NG is obliged to
(Descriptions of projects attached as Annex A)
pay the full amount.

GOCCs and GFIs 8. Philpost: Purchase of foreclosed property. 644

Agency/Project
(SARO and NCA Release)
1. LRTA: Rehabilitation of LRT 1 and 2
Payment of Mandatory Obligations, (GSIS,
AllotmentPhilHealth, ECC), Franking Privilege
(in Million Php)
9. BSP: First equity infusion out of Php 40B 10,000
1,868 capitalization under the BSP Law

2. NHA: 11,050 10. PCMC: Capital and Equipment Renovation 280

a. Resettlement of North Triangle residents to 450 11. LCOP: 105

Camarin A7 a. Pediatric Pulmonary Program
b. Housing for BFP/BJMP 500 b. Bio-regenerative Technology Program 35
c. On-site development for families living 10,000 (Stem-Cell Research – subject to legal
along dangerous review and presentation) 70
d. Relocation sites for informal settlers 100
along Iloilo River and its tributaries 12. TIDCORP: NG Equity infusion 570

3. PHIL. HEART CENTER: Upgrading of 357 TOTAL 26,945

ageing physical plant and medical equipment

4. CREDIT INFO CORP: Establishment of 75 NGAs/LGUs

centralized credit information system
Agency/Project Allotment
5. PIDS: purchase of land to relocate the PIDS 100 (SARO) Cash
office and building construction (In Million Requirement
Php) (NCA)
13. DOF-BIR: NPSTAR 20. DOT: Preservation of the Cine
centralization of data     Corregidor Complex 25 25
processing and others (To be    
synchronized with GFMIS     21. OPAPP: Activities for Peace
activities) 758 758 Process (PAMANA- Project    
details: budget breakdown,    
14. COA: IT infrastructure implementation plan, and    
program and hiring of     conditions on fund release    
additional litigational experts 144 144 attached as Annex B) 1,819 1,819

15. DND-PAF: On Base Housing 22. DOST 425 425

Facilities and Communication     a. Establishment of National
Equipment 30 30 Meterological and Climate    
Center 275 275
16. DA: 2,959 2,223b. Enhancement of Doppler
a. Irrigation, FMRs and Radar Network for National    
Integrated Community Based Multi-Species     Weather Watch, Accurate    
Hatchery and Aquasilvi     Forecasting and Flood Early    
Farming 1,629 1,629Warning 190 190
b. Mindanao Rural
Development Project 919 183 23. DOF-BOC: To settle the
principal obligations with    
c. NIA Agno River Integrated PDIC consistent with the    
Irrigation Project 411 411 agreement with the CISS and    
SGS 2,800 2,800
17. DAR: 1,293 1,293
a. Agrarian Reform 24. OEO-FDCP: Establishment of
Communities Project 2 1,293 132 the National Film Archive and    
b. Landowners Compensation 5,432local cinematheques, and other    
local activities 20 20
18. DBM: Conduct of National
Survey of     25. DPWH: Various infrastructure
Farmers/Fisherfolks/Ips 625 625 projects 5,500 5,500

19. DOJ: Operating requirements 26. DepEd/ERDT/DOST: Thin

of 50 investigation agents and     Client Cloud Computing    
15 state attorneys 11 11 Project 270 270
27. DOH: Hiring of nurses and Total 72,110 72,110 70,895
midwives 294 294
GOCCs 26,895 26,895
28. TESDA: Training Program in
partnership with BPO industry     NGAs/LGUs 45,165 44,000
and other sectors 1,100 1,100

29. DILG: Performance Challenge For His Excellency’s Consideration

Fund (People Empowered    
Community Driven     (Sgd.) FLORENCIO B. ABAD
Development with DSWD and    
NAPC) 250 50 [/] APPROVED

30. ARMM: Comprehensive Peace [ ] DISAPPROVED

and Development Intervention 8,592 8,592
(Sgd.) H.E. BENIGNO S. AQUINO, III
31. DOTC-MRT: Purchase of
additional MRT cars 4,500 -
OCT 12, 2011
32. LGU Support Fund 6,500 6,500
The memorandum of October 12, 2011 was followed by another
33. Various Other Local Projects 6,500 6,500 memorandum for the President dated December 12,
2011  requesting omnibus authority to consolidate the savings
116

34. Development Assistance to the and unutilized balances for fiscal year 2011. Pertinent portions of
Province of Quezon 750 750 the memorandum of December 12, 2011 read:

TOTAL 45,165 44,000 MEMORANDUM FOR THE PRESIDENT

xxxx
C. Summary
SUBJECT: Omnibus Authority to Consolidate Savings/Unutilized
  Fund Sources Balances and its Realignment
Identified for Allotments Cash
Approval for Release Requirements for DATE: December 12, 2011
(In Million Release in FY
Php) 2011 This is to respectfully request for the grant of Omnibus Authority
to consolidate savings/unutilized balances in FY 2011
corresponding to completed or discontinued projects which may
be pooled to fund additional projects or expenditures.
In addition, Mr. President, this measure will allow us to undertake
projects even if their implementation carries over to 2012 without
necessarily impacting on our budget deficit cap next year.
BACKGROUND
1.0 The DBM, during the course of performance
reviews conducted on the agencies’ operations,
particularly on the implementation of their
projects/activities, including expenses incurred in
undertaking the same, have identified savings out
of the 2011 General Appropriations Act. Said
savings correspond to completed or discontinued
projects under certain departments/agencies
which may be pooled, for the following:
1.1 to provide for new activities which
have not been anticipated during
preparation of the budget;
1.2 to augment additional requirements of
on-going priority projects; and
1.3 to provide for deficiencies under the
Special Purpose Funds, e.g., PDAF,
Calamity Fund, Contingent Fund
1.4 to cover for the modifications of the
original allotment class allocation as a
result of on-going priority projects and
implementation of new activities
2.0 x x x x
2.1 x x x
2.2 x x x
ON THE UTILIZATION OF POOLED SAVINGS
3.0 It may be recalled that the President approved
our request for omnibus authority to pool
savings/unutilized balances in FY 2010 last
November 25, 2010.
4.0 It is understood that in the utilization of the
pooled savings, the DBM shall secure the
corresponding approval/confirmation of the
President. Furthermore, it is assured that the
proposed realignments shall be within the
authorized Expenditure level.
5.0 Relative thereto, we have identified some
expenditure items that may be sourced from the
said pooled appropriations in FY 2010 that will
expire on December 31, 2011 and appropriations
in FY 2011 that may be declared as savings to
fund additional expenditures.
5.1 The 2010 Continuing Appropriations
(pooled savings) is proposed to be spent
for the projects that we have identified to
be immediate actual disbursements
considering that this same fund source will
expire on December 31, 2011.
5.2 With respect to the proposed
expenditure items to be funded from the
FY 2011 Unreleased Appropriations, most
of these are the same projects for which
the DBM is directed by the Office of the
 President, thru the Executive Secretary, to
source funds.
6.0 Among others, the following are such
proposed additional projects that have been
chosen given their multiplier impact on economy
and infrastructure development, their beneficial
effect on the poor, and their translation into
disbursements. Please note that we have
classified the list of proposed projects as follows:
7.0 x x x
FOR THE PRESIDENT’S APPROVAL
8.0 Foregoing considered, may we respectfully
request for the President’s approval for the
following:
8.1 Grant of omnibus authority to
consolidate FY 2011 savings/unutilized
balances and its realignment; and
8.2 The proposed additional projects
identified for funding.
For His Excellency’s consideration and approval.
(Sgd.)
[/] APPROVED
[ ] DISAPPROVED
(Sgd.) H.E. BENIGNO S. AQUINO, III
DEC 21, 2011
Substantially identical requests for authority to pool savings and
to fund proposed projects were contained in various other
memoranda from Sec. Abad dated June 25, 2012,  September 4,
117
2012,  December 19, 2012,  May 20, 2013,  and September 25,
118 119 120
2013.  The President apparently approved all the requests,
121
withholding approval only of the proposed projects contained in
the June 25, 2012 memorandum, as borne out by his marginal
note therein to the effect that the proposed projects should still be
"subject to further discussions." 122
In order to implement the June25, 2012 memorandum, Sec. Abad
issued NBC No. 541 (Adoption of Operational Efficiency Measure
– Withdrawal of Agencies’ Unobligated Allotments as of June 30,
2012),  reproduced herein as follows:
123
NATIONAL BUDGET CIRCULAR No. 541
July 18, 2012
TO: All Heads of Departments/Agencies/State Universities and
Colleges and other Offices of the National Government, Budget
and Planning Officers; Heads of Accounting Units and All Others
Concerned
SUBJECT : Adoption of Operational Efficiency Measure –
Withdrawal of Agencies’ Unobligated Allotments as of June 30,
2012
1.0 Rationale
The DBM, as mandated by Executive Order (EO) No. 292
(Administrative Code of 1987), periodically reviews and evaluates
the departments/agencies’ efficiency and effectiveness in utilizing
budgeted funds for the delivery of services and production of
goods, consistent with the government priorities.
In the event that a measure is necessary to further improve the
operational efficiency of the government, the President is
authorized to suspend or stop further use of funds allotted for any
agency or expenditure authorized in the General Appropriations
Act. Withdrawal and pooling of unutilized allotment releases can
be effected by DBM based on authority of the President, as
mandated under Sections 38 and 39, Chapter 5, Book VI of EO
292.
For the first five months of 2012, the National Government has
not met its spending targets. In order to accelerate spending and
sustain the fiscal targets during the year, expenditure measures
have to be implemented to optimize the utilization of available
resources.
Departments/agencies have registered low spending levels, in
terms of obligations and disbursements per initial review of their
2012 performance. To enhance agencies’ performance, the DBM
conducts continuous consultation meetings and/or send call-up
letters, requesting them to identify slow-moving programs/projects
and the factors/issues affecting their performance (both pertaining
to internal systems and those which are outside the agencies’
spheres of control). Also, they are asked to formulate strategies
and improvement plans for the rest of 2012.
Notwithstanding these initiatives, some departments/agencies
have continued to post low obligation levels as of end of first
semester, thus resulting to substantial unobligated allotments.
In line with this, the President, per directive dated June 27, 2012
authorized the withdrawal of unobligated allotments of agencies
with low levels of obligations as of June 30, 2012, both for
continuing and current allotments. This measure will allow the
maximum utilization of available allotments to fund and undertake
other priority expenditures of the national government.
2.0 Purpose
2.1 To provide the conditions and parameters on
the withdrawal of unobligated allotments of
agencies as of June 30, 2012 to fund priority
and/or fast-moving programs/projects of the
national government;
2.2 To prescribe the reports and documents to be
used as bases on the withdrawal of said
unobligated allotments; and
2.3 To provide guidelines in the utilization or
reallocation of the withdrawn allotments.
3.0 Coverage
3.1 These guidelines shall cover the withdrawal of
unobligated allotments as of June 30, 2012 of all
national government agencies (NGAs) charged
against FY 2011 Continuing Appropriation (R.A.
No.10147) and FY 2012 Current Appropriation
(R.A. No. 10155), pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating
Expenses (MOOE) related to the
implementation of programs and projects,
as well as capitalized MOOE; and
3.1.3 Personal Services corresponding to
unutilized pension benefits declared as
savings by the agencies concerned based
on their updated/validated list of
pensioners.
3.2 The withdrawal of unobligated allotments may
cover the identified programs, projects and
 activities of the departments/agencies reflected in Materials and Utility which shall be
the DBM list shown as Annex A or specific used for the grant of Collective
programs and projects as may be identified by the Negotiation Agreement incentive
agencies. benefit;

4.0 Exemption • Savings from mandatory

expenditures which can be
These guidelines shall not apply to the following: realigned only in the last quarter
after taking into consideration the
4.1 NGAs agency’s full year requirements,
i.e., Petroleum, Oil and Lubricants,
Water, Illumination, Power
4.1.1 Constitutional Offices/Fiscal
Services, Telephone, other
Autonomy Group, granted fiscal autonomy
Communication Services and
under the Philippine Constitution; and
Rent.
4.1.2 State Universities and Colleges,
4.2.3 Foreign-Assisted Projects (loan
adopting the Normative Funding allocation
proceeds and peso counterpart);
scheme i.e., distribution of a
predetermined budget ceiling.
4.2.4 Special Purpose Funds such as: E-
Government Fund, International
4.2 Fund Sources
Commitments Fund, PAMANA, Priority
Development Assistance Fund, Calamity
4.2.1 Personal Services other than Fund, Budgetary Support to GOCCs and
pension benefits; Allocation to LGUs, among others;

4.2.2 MOOE items earmarked for specific 4.2.5 Quick Response Funds; and
purposes or subject to realignment
conditions per General Provisions of the
4.2.6 Automatic Appropriations i.e.,
GAA:
Retirement Life Insurance Premium and
Special Accounts in the General Fund.
• Confidential and Intelligence
Fund;
5.0 Guidelines
• Savings from Traveling,
5.1 National government agencies shall continue
Communication, Transportation
to undertake procurement activities
and Delivery, Repair and
notwithstanding the implementation of the policy
Maintenance, Supplies and
of withdrawal of unobligated allotments until the
end of the third quarter, FY 2012. Even without
the allotments, the agency shall proceed in
undertaking the procurement processes (i.e.,
procurement planning up to the conduct of bidding
but short of awarding of contract) pursuant to
GPPB Circular Nos. 02-2008 and 01-2009 and
DBM Circular Letter No. 2010-9.
5.2 For the purpose of determining the amount of
unobligated allotments that shall be withdrawn, all
departments/agencies/operating units (OUs) shall
submit to DBM not later than July 30, 2012, the
following budget accountability reports as of June
30, 2012;
• Statement of Allotments, Obligations and
Balances (SAOB);
• Financial Report of Operations (FRO);
and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports
cited under item 5.2 of this Circular, the agency’s
latest report available shall be used by DBM as
basis for withdrawal of allotment. The DBM shall
compute/approximate the agency’s obligation
level as of June 30 to derive its unobligated
allotments as of same period. Example: If the
March 31 SAOB or FRO reflects actual obligations
of P 800M then the June 30 obligation level shall
approximate to ₱1,600 M (i.e., ₱800 M x 2
quarters).
5.4 All released allotments in FY 2011 charged
against R.A. No. 10147 which remained
unobligated as of June 30, 2012 shall be
immediately considered for withdrawal. This policy
is based on the following considerations:
5.4.1 The departments/agencies’
approved priority programs and projects
are assumed to be implementation-ready
and doable during the given fiscal year;
and
5.4.2 The practice of having substantial
carryover appropriations may imply that
the agency has a slower-than-
programmed implementation capacity or
agency tends to implement projects within
a two-year timeframe.
5.5. Consistent with the President’s directive, the
DBM shall, based on evaluation of the reports
cited above and results of consultations with the
departments/agencies, withdraw the unobligated
allotments as of June 30, 2012 through issuance
of negative Special Allotment Release Orders
(SAROs).
5.6 DBM shall prepare and submit to the
President, a report on the magnitude of withdrawn
allotments. The report shall highlight the agencies
which failed to submit the June 30 reports
required under this Circular.
5.7 The withdrawn allotments may be:
5.7.1 Reissued for the original programs
and projects of the agencies/OUs
 concerned, from which the allotments
were withdrawn;
5.7.2 Realigned to cover additional
funding for other existing programs and
projects of the agency/OU; or
5.7.3 Used to augment existing programs
and projects of any agency and to fund
priority programs and projects not
considered in the 2012 budget but
expected to be started or implemented
during the current year.
5.8 For items 5.7.1 and 5.7.2 above,
agencies/OUs concerned may submit to DBM a
Special Budget Request (SBR), supported with
the following:
5.8.1 Physical and Financial Plan (PFP);
5.8.2 Monthly Cash Program (MCP); and
5.8.3 Proof that the project/activity has
started the procurement processes i.e.,
Proof of Posting and/or Advertisement of
the Invitation to Bid.
5.9 The deadline for submission of request/s
pertaining to these categories shall be until the
end of the third quarter i.e., September 30, 2012.
After said cut-off date, the withdrawn allotments
shall be pooled and form part of the overall
savings of the national government.
5.10 Utilization of the consolidated withdrawn
allotments for other priority programs and projects
as cited under item 5.7.3 of this Circular, shall be
subject to approval of the President. Based on the
approval of the President, DBM shall issue the
SARO to cover the approved priority expenditures
subject to submission by the agency/OU
concerned of the SBR and supported with PFP
and MCP.
5.11 It is understood that all releases to be made
out of the withdrawn allotments (both 2011 and
2012 unobligated allotments) shall be within the
approved Expenditure Program level of the
national government for the current year. The
SAROs to be issued shall properly disclose the
appropriation source of the release to determine
the extent of allotment validity, as follows:
• For charges under R.A. 10147 –
allotments shall be valid up to December
31, 2012; and
• For charges under R.A. 10155 –
allotments shall be valid up to December
31, 2013.
5.12 Timely compliance with the submission of
existing BARs and other reportorial requirements
is reiterated for monitoring purposes.
6.0 Effectivity
This circular shall take effect immediately.
(Sgd.) FLORENCIO B. ABAD
Secretary
As can be seen, NBC No. 541 specified that the unobligated
allotments of all agencies and departments as of June 30, 2012
that were charged against the continuing appropriations for fiscal
year 2011 and the 2012 GAA (R.A. No. 10155) were subject to
withdrawal through the issuance of negative SAROs, but such
allotments could be either: (1) reissued for the original PAPs of
the concerned agencies from which they were withdrawn; or (2)
realigned to cover additional funding for other existing PAPs of
the concerned agencies; or (3) used to augment existing PAPs of
any agency and to fund priority PAPs not considered in the 2012
budget but expected to be started or implemented in 2012.
Financing the other priority PAPs was made subject to the
approval of the President. Note here that NBC No. 541 used
terminologies like "realignment" and "augmentation" in the
application of the withdrawn unobligated allotments.
Taken together, all the issuances showed how the DAP was to be
implemented and funded, that is — (1) by declaring "savings"
coming from the various departments and agencies derived from
pooling unobligated allotments and withdrawing unreleased
appropriations; (2) releasing unprogrammed funds; and (3)
applying the "savings" and unprogrammed funds to augment
existing PAPs or to support other priority PAPs.
c. DAP was not an appropriation
measure; hence, no appropriation
law was required to adopt or to
implement it
Petitioners Syjuco, Luna, Villegas and PHILCONSA state that
Congress did not enact a law to establish the DAP, or to
authorize the disbursement and release of public funds to
implement the DAP. Villegas, PHILCONSA, IBP, Araullo, and
COURAGE observe that the appropriations funded under the
DAP were not included in the 2011, 2012 and 2013 GAAs. To
petitioners IBP, Araullo, and COURAGE, the DAP, being actually
an appropriation that set aside public funds for public use, should
require an enabling law for its validity. VACC maintains that the
DAP, because it involved huge allocations that were separate and
distinct from the GAAs, circumvented and duplicated the GAAs
without congressional authorization and control.
The petitioners contend in unison that based on how it was
developed and implemented the DAP violated the mandate of
Section 29(1), Article VI of the 1987 Constitution that "[n]o money
shall be paid out of the Treasury except in pursuance of an
appropriation made by law."
The OSG posits, however, that no law was necessary for the
adoption and implementation of the DAP because of its being
neither a fund nor an appropriation, but a program or an
administrative system of prioritizing spending; and that the
adoption of the DAP was by virtue of the authority of the
President as the Chief Executive to ensure that laws were
faithfully executed.
We agree with the OSG’s position.
The DAP was a government policy or strategy designed to
stimulate the economy through accelerated spending. In the
context of the DAP’s adoption and implementation being a
function pertaining to the Executive as the main actor during the
Budget Execution Stage under its constitutional mandate to
faithfully execute the laws, including the GAAs, Congress did not
need to legislate to adopt or to implement the DAP. Congress
could appropriate but would have nothing more to do during the
Budget Execution Stage. Indeed, appropriation was the act by
which Congress "designates a particular fund, or sets apart a
specified portion of the public revenue or of the money in the
public treasury, to be applied to some general object of
governmental expenditure, or to some individual purchase or
expense."  As pointed out in Gonzales v. Raquiza:  ‘"In a strict
124 125
sense, appropriation has been defined ‘as nothing more than the
legislative authorization prescribed by the Constitution that money
may be paid out of the Treasury,’ while appropriation made by
law refers to ‘the act of the legislature setting apart or assigning to
a particular use a certain sum to be used in the payment of debt
or dues from the State to its creditors.’"
126
On the other hand, the President, in keeping with his duty to
faithfully execute the laws, had sufficient discretion during the
execution of the budget to adapt the budget to changes in the
country’s economic situation.  He could adopt a plan like the
127
DAP for the purpose. He could pool the savings and identify the
PAPs to be funded under the DAP. The pooling of savings
pursuant to the DAP, and the identification of the PAPs to be
funded under the DAP did not involve appropriation in the strict
sense because the money had been already set apart from the
public treasury by Congress through the GAAs. In such actions,
the Executive did not usurp the power vested in Congress under
Section 29(1), Article VI of the Constitution.
3.
Unreleased appropriations and withdrawn
unobligated allotments under the DAP
were not savings, and the use of such
appropriations contravened Section 25(5),
Article VI of the 1987 Constitution.
Notwithstanding our appreciation of the DAP as a plan or strategy
validly adopted by the Executive to ramp up spending to
accelerate economic growth, the challenges posed by the
petitioners constrain us to dissect the mechanics of the actual
execution of the DAP. The management and utilization of the
public wealth inevitably demands a most careful scrutiny of
whether the Executive’s implementation of the DAP was
consistent with the Constitution, the relevant GAAs and other
existing laws.
a. Although executive discretion
and flexibility are necessary in
the execution of the budget, any
transfer of appropriated funds
should conform to Section 25(5),
Article VI of the Constitution
We begin this dissection by reiterating that Congress cannot
anticipate all issues and needs that may come into play once the
budget reaches its execution stage. Executive discretion is
necessary at that stage to achieve a sound fiscal administration
and assure effective budget implementation. The heads of
offices, particularly the President, require flexibility in their
operations under performance budgeting to enable them to make
whatever adjustments are needed to meet established work goals
under changing conditions.  In particular, the power to transfer
128
funds can give the President the flexibility to meet unforeseen
events that may otherwise impede the efficient implementation of
the PAPs set by Congress in the GAA.
Congress has traditionally allowed much flexibility to the
President in allocating funds pursuant to the GAAs, particularly
129
when the funds are grouped to form lump sum accounts.  It is
130
assumed that the agencies of the Government enjoy more
flexibility when the GAAs provide broader appropriation
items.  This flexibility comes in the form of policies that the
131
Executive may adopt during the budget execution phase. The
DAP – as a strategy to improve the country’s economic position –
was one policy that the President decided to carry out in order to
fulfill his mandate under the GAAs.
Denying to the Executive flexibility in the expenditure process
would be counterproductive. In Presidential Spending
Power,  Prof. Louis Fisher, an American constitutional scholar
132
whose specialties have included budget policy, has justified
extending discretionary authority to the Executive thusly:
[T]he impulse to deny discretionary authority altogether should be
resisted. There are many number of reasons why obligations and
outlays by administrators may have to differ from appropriations
by legislators. Appropriations are made many months, and
sometimes years, in advance of expenditures. Congress acts with
imperfect knowledge in trying to legislate in fields that are highly
technical and constantly undergoing change. New circumstances
will develop to make obsolete and mistaken the decisions
reached by Congress at the appropriation stage. It is not
practicable for Congress to adjust to each new development by
passing separate supplemental appropriation bills. Were
Congress to control expenditures by confining administrators to
narrow statutory details, it would perhaps protect its power of the
purse but it would not protect the purse itself. The realities and
complexities of public policy require executive discretion for the
sound management of public funds.
xxxx
x x x The expenditure process, by its very nature, requires
substantial discretion for administrators. They need to exercise
judgment and take responsibility for their actions, but those
actions ought to be directed toward executing congressional, not
administrative policy. Let there be discretion, but channel it and
use it to satisfy the programs and priorities established by
Congress.
In contrast, by allowing to the heads of offices some power to
transfer funds within their respective offices, the Constitution itself
ensures the fiscal autonomy of their offices, and at the same time
maintains the separation of powers among the three main
branches of the Government. The Court has recognized this, and
emphasized so in Bengzon v. Drilon,  viz:
133
The Judiciary, the Constitutional Commissions, and the
Ombudsman must have the independence and flexibility needed
in the discharge of their constitutional duties. The imposition of
restrictions and constraints on the manner the independent
constitutional offices allocate and utilize the funds appropriated
for their operations is anathema to fiscal autonomy and violative
not only of the express mandate of the Constitution but especially
as regards the Supreme Court, of the independence and
separation of powers upon which the entire fabric of our
constitutional system is based.
In the case of the President, the power to transfer funds from one
item to another within the Executive has not been the mere
offshoot of established usage, but has emanated from law itself. It
has existed since the time of the American Governors-
General.  Act No. 1902 (An Act authorizing the Governor-
134
General to direct any unexpended balances of appropriations be
returned to the general fund of the Insular Treasury and to
transfer from the general fund moneys which have been returned
thereto), passed on May 18, 1909 by the First Philippine
Legislature,  was the first enabling law that granted statutory
135
authority to the President to transfer funds. The authority was
without any limitation, for the Act explicitly empowered the
Governor-General to transfer any unexpended balance of
appropriations for any bureau or office to another, and to spend
such balance as if it had originally been appropriated for that
bureau or office.
From 1916 until 1920, the appropriations laws set a cap on the
amounts of funds that could be transferred, thereby limiting the
power to transfer funds. Only 10% of the amounts appropriated
for contingent or miscellaneous expenses could be transferred to
a bureau or office, and the transferred funds were to be used to
cover deficiencies in the appropriations also for miscellaneous
expenses of said bureau or office.
In 1921, the ceiling on the amounts of funds to be transferred
from items under miscellaneous expenses to any other item of a
certain bureau or office was removed.
During the Commonwealth period, the power of the President to
transfer funds continued to be governed by the GAAs despite the
enactment of the Constitution in 1935. It is notable that the 1935
Constitution did not include a provision on the power to transfer
funds. At any rate, a shift in the extent of the President’s power to
transfer funds was again experienced during this era, with the
President being given more flexibility in implementing the budget.
The GAAs provided that the power to transfer all or portions of
the appropriations in the Executive Department could be made in
the "interest of the public, as the President may determine."136
In its time, the 1971 Constitutional Convention wanted to curtail
the President’s seemingly unbounded discretion in transferring
funds.  Its Committee on the Budget and Appropriation proposed
137
to prohibit the transfer of funds among the separate branches of
the Government and the independent constitutional bodies, but to
allow instead their respective heads to augment items of
appropriations from savings in their respective budgets under
certain limitations.  The clear intention of the Convention was to
138
further restrict, not to liberalize, the power to transfer
appropriations.  Thus, the Committee on the Budget and
139
Appropriation initially considered setting stringent limitations on
the power to augment, and suggested that the augmentation of
an item of appropriation could be made "by not more than ten
percent if the original item of appropriation to be augmented does
not exceed one million pesos, or by not more than five percent if
the original item of appropriation to be augmented exceeds one
million pesos."  But two members of the Committee objected to
140
the ₱1,000,000.00 threshold, saying that the amount was
arbitrary and might not be reasonable in the future. The
Committee agreed to eliminate the ₱1,000,000.00 threshold, and
settled on the ten percent limitation.
141
In the end, the ten percent limitation was discarded during the
plenary of the Convention, which adopted the following final
version under Section 16, Article VIII of the 1973 Constitution, to
wit:
(5) No law shall be passed authorizing any transfer of
appropriations; however, the President, the Prime Minister, the
Speaker, the Chief Justice of the Supreme Court, and the heads
of Constitutional Commissions may by law be authorized to
augment any item in the general appropriations law for their
respective offices from savings in other items of their respective
appropriations.
The 1973 Constitution explicitly and categorically prohibited the
transfer of funds from one item to another, unless Congress
enacted a law authorizing the President, the Prime Minister, the
Speaker, the Chief Justice of the Supreme Court, and the heads
of the Constitutional omissions to transfer funds for the purpose
of augmenting any item from savings in another item in the GAA
of their respective offices. The leeway was limited to
augmentation only, and was further constricted by the condition
that the funds to be transferred should come from savings from
another item in the appropriation of the office.
142
On July 30, 1977, President Marcos issued PD No. 1177,
providing in its Section 44 that:
Section 44. Authority to Approve Fund Transfers. The President
shall have the authority to transfer any fund appropriated for the
different departments, bureaus, offices and agencies of the
Executive Department which are included in the General
Appropriations Act, to any program, project, or activity of any
department, bureau or office included in the General
Appropriations Act or approved after its enactment.
The President shall, likewise, have the authority to augment any
appropriation of the Executive Department in the General
Appropriations Act, from savings in the appropriations of another
department, bureau, office or agency within the Executive
Branch, pursuant to the provisions of Article VIII, Section 16 (5) of
the Constitution.
In Demetria v. Alba, however, the Court struck down the first
paragraph of Section 44 for contravening Section 16(5)of the
1973 Constitution, ruling:
Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends
the privilege granted under said Section 16. It empowers the
President to indiscriminately transfer funds from one department,
bureau, office or agency of the Executive Department to any
program, project or activity of any department, bureau or office
included in the General Appropriations Act or approved after its
enactment, without regard as to whether or not the funds to be
transferred are actually savings in the item from which the same
are to be taken, or whether or not the transfer is for the purpose
of augmenting the item to which said transfer is to be made. It
does not only completely disregard the standards set in the
fundamental law, thereby amounting to an undue delegation of
legislative powers, but likewise goes beyond the tenor thereof.
Indeed, such constitutional infirmities render the provision in
question null and void. 143
It is significant that Demetria was promulgated 25 days after the
ratification by the people of the 1987 Constitution, whose Section
25(5) of Article VI is identical to Section 16(5), Article VIII of the
1973 Constitution, to wit:
Section 25. x x x
xxxx
5) No law shall be passed authorizing any transfer of
appropriations; however, the President, the President of the
Senate, the Speaker of the House of Representatives, the Chief
Justice of the Supreme Court, and the heads of Constitutional
Commissions may, by law, be authorized to augment any item in
the general appropriations law for their respective offices from
savings in other items of their respective appropriations.
xxxx
The foregoing history makes it evident that the Constitutional
Commission included Section 25(5), supra, to keep a tight rein on
the exercise of the power to transfer funds appropriated by
Congress by the President and the other high officials of the
Government named therein. The Court stated in Nazareth v.
Villar:
144
In the funding of current activities, projects, and programs, the
general rule should still be that the budgetary amount contained
in the appropriations bill is the extent Congress will determine as
sufficient for the budgetary allocation for the proponent agency.
The only exception is found in Section 25 (5), Article VI of the
Constitution, by which the President, the President of the Senate,
the Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, and the heads of Constitutional Commissions
are authorized to transfer appropriations to augmentany item in
the GAA for their respective offices from the savings in other
items of their respective appropriations. The plain language of the
constitutional restriction leaves no room for the petitioner’s
posture, which we should now dispose of as untenable.
It bears emphasizing that the exception in favor of the high
officials named in Section 25(5), Article VI of the Constitution
limiting the authority to transfer savings only to augment another
item in the GAA is strictly but reasonably construed as exclusive.
As the Court has expounded in Lokin, Jr. v. Commission on
Elections:
When the statute itself enumerates the exceptions to the
application of the general rule, the exceptions are strictly but
reasonably construed. The exceptions extend only as far as their
language fairly warrants, and all doubts should be resolved in
favor of the general provision rather than the exceptions. Where
the general rule is established by a statute with exceptions, none
but the enacting authority can curtail the former. Not even the
courts may add to the latter by implication, and it is a rule that an
express exception excludes all others, although it is always
proper in determining the applicability of the rule to inquire
whether, in a particular case, it accords with reason and justice.
The appropriate and natural office of the exception is to exempt
something from the scope of the general words of a statute,
which is otherwise within the scope and meaning of such general
words. Consequently, the existence of an exception in a statute
clarifies the intent that the statute shall apply to all cases not
excepted. Exceptions are subject to the rule of strict construction;
hence, any doubt will be resolved in favor of the general provision
and against the exception. Indeed, the liberal construction of a
statute will seem to require in many circumstances that the
exception, by which the operation of the statute is limited or
abridged, should receive a restricted construction.
Accordingly, we should interpret Section 25(5), supra, in the
context of a limitation on the President’s discretion over the
appropriations during the Budget Execution Phase.
b. Requisites for the valid transfer of
appropriated funds under Section
25(5), Article VI of the 1987
Constitution
The transfer of appropriated funds, to be valid under Section
25(5), supra, must be made upon a concurrence of the following
requisites, namely:
(1) There is a law authorizing the President, the President
of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court,
and the heads of the Constitutional Commissions to
transfer funds within their respective offices;
(2) The funds to be transferred are savings generated
from the appropriations for their respective offices; and (3)
The purpose of the transfer is to augment an item in the
general appropriations law for their respective offices.
b.1. First Requisite–GAAs of 2011 and
2012 lacked valid provisions to
authorize transfers of funds under
the DAP; hence, transfers under the
DAP were unconstitutional
Section 25(5), supra, not being a self-executing provision of the
Constitution, must have an implementing law for it to be
operative. That law, generally, is the GAA of a given fiscal year.
To comply with the first requisite, the GAAs should expressly
authorize the transfer of funds.
Did the GAAs expressly authorize the transfer of funds?
In the 2011 GAA, the provision that gave the President and the
other high officials the authority to transfer funds was Section 59,
as follows:
Section 59. Use of Savings. The President of the Philippines, the
Senate President, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, the Heads of
Constitutional Commissions enjoying fiscal autonomy, and the
Ombudsman are hereby authorized to augment any item in this
Act from savings in other items of their respective appropriations.
In the 2012 GAA, the empowering provision was Section 53, to
wit:
Section 53. Use of Savings. The President of the Philippines, the
Senate President, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, the Heads of
Constitutional Commissions enjoying fiscal autonomy, and the
Ombudsman are hereby authorized to augment any item in this
Act from savings in other items of their respective appropriations.
In fact, the foregoing provisions of the 2011 and 2012 GAAs were
cited by the DBM as justification for the use of savings under the
DAP. 145
A reading shows, however, that the aforequoted provisions of the
GAAs of 2011 and 2012 were textually unfaithful to the
Constitution for not carrying the phrase "for their respective
offices" contained in Section 25(5), supra. The impact of the
phrase "for their respective offices" was to authorize only
transfers of funds within their offices (i.e., in the case of the
President, the transfer was to an item of appropriation within the
Executive). The provisions carried a different phrase ("to augment
any item in this Act"), and the effect was that the 2011 and 2012
GAAs thereby literally allowed the transfer of funds from savings
to augment any item in the GAAs even if the item belonged to an
office outside the Executive. To that extent did the 2011 and 2012
GAAs contravene the Constitution. At the very least, the
aforequoted provisions cannot be used to claim authority to
transfer appropriations from the Executive to another branch, or
to a constitutional commission.
Apparently realizing the problem, Congress inserted the omitted
phrase in the counterpart provision in the 2013 GAA, to wit:
Section 52. Use of Savings. The President of the Philippines, the
Senate President, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, the Heads of
Constitutional Commissions enjoying fiscal autonomy, and the
Ombudsman are hereby authorized to use savings in their
respective appropriations to augment actual deficiencies incurred
for the current year in any item of their respective appropriations.
Even had a valid law authorizing the transfer of funds pursuant to
Section 25(5), supra, existed, there still remained two other
requisites to be met, namely: that the source of funds to be
transferred were savings from appropriations within the
respective offices; and that the transfer must be for the purpose
of augmenting an item of appropriation within the respective
offices.
b.2. Second Requisite – There were
no savings from which funds
could be sourced for the DAP
Were the funds used in the DAP actually savings?
The petitioners claim that the funds used in the DAP — the
unreleased appropriations and withdrawn unobligated allotments
— were not actual savings within the context of Section 25(5),
supra, and the relevant provisions of the GAAs. Belgica argues
that "savings" should be understood to refer to the excess money
after the items that needed to be funded have been funded, or
those that needed to be paid have been paid pursuant to the
budget.  The petitioners posit that there could be savings only
146
when the PAPs for which the funds had been appropriated were
actually implemented and completed, or finally discontinued or
abandoned. They insist that savings could not be realized with
certainty in the middle of the fiscal year; and that the funds for
"slow-moving" PAPs could not be considered as savings because
such PAPs had not actually been abandoned or discontinued
yet.  They stress that NBC No. 541, by allowing the withdrawn
147
funds to be reissued to the "original program or project from
which it was withdrawn," conceded that the PAPs from which the
supposed savings were taken had not been completed,
abandoned or discontinued. 148
The OSG represents that "savings" were "appropriations
balances," being the difference between the appropriation
authorized by Congress and the actual amount allotted for the
appropriation; that the definition of "savings" in the GAAs set only
the parameters for determining when savings occurred; that it
was still the President (as well as the other officers vested by the
Constitution with the authority to augment) who ultimately
determined when savings actually existed because savings could
be determined only during the stage of budget execution; that the
President must be given a wide discretion to accomplish his
tasks; and that the withdrawn unobligated allotments were
savings inasmuch as they were clearly "portions or balances of
any programmed appropriation…free from any obligation or
encumbrances which are (i) still available after the completion or
final discontinuance or abandonment of the work, activity or
purpose for which the appropriation is authorized…"
We partially find for the petitioners.
In ascertaining the meaning of savings, certain principles should
be borne in mind. The first principle is that Congress wields the
power of the purse. Congress decides how the budget will be
spent; what PAPs to fund; and the amounts of money to be spent
for each PAP. The second principle is that the Executive, as the
department of the Government tasked to enforce the laws, is
expected to faithfully execute the GAA and to spend the budget in
accordance with the provisions of the GAA.  The Executive is
149
expected to faithfully implement the PAPs for which Congress
allocated funds, and to limit the expenditures within the
allocations, unless exigencies result to deficiencies for which
augmentation is authorized, subject to the conditions provided by
law. The third principle is that in making the President’s power to
augment operative under the GAA, Congress recognizes the
need for flexibility in budget execution. In so doing, Congress
diminishes its own power of the purse, for it delegates a fraction
of its power to the Executive. But Congress does not thereby
allow the Executive to override its authority over the purse as to
let the Executive exceed its delegated authority. And the fourth
principle is that savings should be actual. "Actual" denotes
something that is real or substantial, or something that exists
presently in fact, as opposed to something that is merely
theoretical, possible, potential or hypothetical. 150
The foregoing principles caution us to construe savings strictly
against expanding the scope of the power to augment. It is then
indubitable that the power to augment was to be used only when
the purpose for which the funds had been allocated were already
satisfied, or the need for such funds had ceased to exist, for only
then could savings be properly realized. This interpretation
prevents the Executive from unduly transgressing Congress’
power of the purse.
The definition of "savings" in the GAAs, particularly for 2011,
2012 and 2013, reflected this interpretation and made it
operational, viz:
Savings refer to portions or balances of any programmed
appropriation in this Act free from any obligation or encumbrance
which are: (i) still available after the completion or final
discontinuance or abandonment of the work, activity or purpose
for which the appropriation is authorized; (ii) from appropriations
balances arising from unpaid compensation and related costs
pertaining to vacant positions and leaves of absence without pay;
and (iii) from appropriations balances realized from the
implementation of measures resulting in improved systems and
efficiencies and thus enabled agencies to meet and deliver the
required or planned targets, programs and services approved in
this Act at a lesser cost.
The three instances listed in the GAAs’ aforequoted definition
were a sure indication that savings could be generated only upon
the purpose of the appropriation being fulfilled, or upon the need
for the appropriation being no longer existent.
The phrase "free from any obligation or encumbrance" in the
definition of savings in the GAAs conveyed the notion that the
appropriation was at that stage when the appropriation was
already obligated and the appropriation was already released.
This interpretation was reinforced by the enumeration of the three
instances for savings to arise, which showed that the
appropriation referred to had reached the agency level. It could
not be otherwise, considering that only when the appropriation
had reached the agency level could it be determined whether (a)
the PAP for which the appropriation had been authorized was
completed, finally discontinued, or abandoned; or (b) there were
vacant positions and leaves of absence without pay; or (c) the
required or planned targets, programs and services were realized
at a lesser cost because of the implementation of measures
resulting in improved systems and efficiencies.
The DBM declares that part of the savings brought under the
DAP came from "pooling of unreleased appropriations such as
unreleased Personnel Services appropriations which will lapse at
the end of the year, unreleased appropriations of slow moving
projects and discontinued projects per Zero-Based Budgeting
findings."
The declaration of the DBM by itself does not state the clear legal
basis for the treatment of unreleased or unalloted appropriations
as savings.
The fact alone that the appropriations are unreleased or unalloted
is a mere description of the status of the items as unalloted or
unreleased. They have not yet ripened into categories of items
from which savings can be generated. Appropriations have been
considered "released" if there has already been an allotment or
authorization to incur obligations and disbursement authority. This
means that the DBM has issued either an ABM (for those not
needing clearance), or a SARO (for those needing clearance),
and consequently an NCA, NCAA or CDC, as the case may be.
Appropriations remain unreleased, for instance, because of
noncompliance with documentary requirements (like the Special
Budget Request), or simply because of the unavailability of funds.
But the appropriations do not actually reach the agencies to
which they were allocated under the GAAs, and have remained
with the DBM technically speaking. Ergo, unreleased
appropriations refer to appropriations with allotments but without
disbursement authority.
For us to consider unreleased appropriations as savings, unless
these met the statutory definition of savings, would seriously
undercut the congressional power of the purse, because such
appropriations had not even reached and been used by the
agency concerned vis-à-vis the PAPs for which Congress had
allocated them. However, if an agency has unfilled positions in its
plantilla and did not receive an allotment and NCA for such
vacancies, appropriations for such positions, although
unreleased, may already constitute savings for that agency under
the second instance.
Unobligated allotments, on the other hand, were encompassed by
the first part of the definition of "savings" in the GAA, that is, as
"portions or balances of any programmed appropriation in this Act
free from any obligation or encumbrance." But the first part of the
definition was further qualified by the three enumerated instances
of when savings would be realized. As such, unobligated
allotments could not be indiscriminately declared as savings
without first determining whether any of the three instances
existed. This signified that the DBM’s withdrawal of unobligated
allotments had disregarded the definition of savings under the
GAAs.
Justice Carpio has validly observed in his Separate Concurring
Opinion that MOOE appropriations are deemed divided into
twelve monthly allocations within the fiscal year; hence, savings
could be generated monthly from the excess or unused MOOE
appropriations other than the Mandatory Expenditures and
Expenditures for Business-type Activities because of the physical
impossibility to obligate and spend such funds as MOOE for a
period that already lapsed. Following this observation, MOOE for
future months are not savings and cannot be transferred.
The DBM’s Memorandum for the President dated June 25, 2012
(which became the basis of NBC No. 541) stated:
ON THE AUTHORITY TO WITHDRAW UNOBLIGATED
ALLOTMENTS
5.0 The DBM, during the course of performance reviews
conducted on the agencies’ operations, particularly on the
implementation of their projects/activities, including
 expenses incurred in undertaking the same, have been
continuously calling the attention of all National
Government agencies (NGAs) with low levels of
obligations as of end of the first quarter to speedup the
implementation of their programs and projects in the
second quarter.
6.0 Said reminders were made in a series of consultation
meetings with the concerned agencies and with call-up
letters sent.
7.0 Despite said reminders and the availability of funds at
the department’s disposal, the level of financial
performance of some departments registered below
program, with the targeted obligations/disbursements for
the first semester still not being met.
8.0 In order to maximize the use of the available
allotment, all unobligated balances as of June 30, 2012,
both for continuing and current allotments shall be
withdrawn and pooled to fund fast moving
programs/projects.
9.0 It may be emphasized that the allotments to be
withdrawn will be based on the list of slow moving
projects to be identified by the agencies and their catch
up plans to be evaluated by the DBM.
It is apparent from the foregoing text that the withdrawal of
unobligated allotments would be based on whether the allotments
pertained to slow-moving projects, or not. However, NBC No. 541
did not set in clear terms the criteria for the withdrawal of
unobligated allotments, viz:
3.1. These guidelines shall cover the withdrawal of
unobligated allotments as of June 30, 2012 ofall national
government agencies (NGAs) charged against FY 2011
Continuing Appropriation (R.A. No. 10147) and FY 2012
Current Appropriation (R.A. No. 10155), pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses
(MOOE) related to the implementation of
programs and projects, as well as capitalized
MOOE; and
3.1.3 Personal Services corresponding to
unutilized pension benefits declared as savings by
the agencies concerned based on their
undated/validated list of pensioners.
A perusal of its various provisions reveals that NBC No. 541
targeted the "withdrawal of unobligated allotments of agencies
with low levels of obligations"  "to fund priority and/or fast-moving
151
programs/projects."  But the fact that the withdrawn allotments
152
could be "[r]eissued for the original programs and projects of the
agencies/OUs concerned, from which the allotments were
withdrawn"  supported the conclusion that the PAPs had not yet
153
been finally discontinued or abandoned. Thus, the purpose for
which the withdrawn funds had been appropriated was not yet
fulfilled, or did not yet cease to exist, rendering the declaration of
the funds as savings impossible.
Worse, NBC No. 541 immediately considered for withdrawal all
released allotments in 2011 charged against the 2011 GAA that
had remained unobligated based on the following considerations,
to wit:
5.4.1 The departments/agencies’ approved priority
programs and projects are assumed to be
implementation-ready and doable during the given fiscal
year; and
 5.4.2 The practice of having substantial carryover
appropriations may imply that the agency has a slower-
than-programmed implementation capacity or agency
tends to implement projects within a two-year timeframe.
Such withdrawals pursuant to NBC No. 541, the circular that
affected the unobligated allotments for continuing and current
appropriations as of June 30, 2012, disregarded the 2-year period
of availability of the appropriations for MOOE and capital outlay
extended under Section 65, General Provisions of the 2011 GAA,
viz:
Section 65. Availability of Appropriations. — Appropriations for
MOOE and capital outlays authorized in this Act shall be available
for release and obligation for the purpose specified, and under
the same special provisions applicable thereto, for a period
extending to one fiscal year after the end of the year in which
such items were appropriated: PROVIDED, That appropriations
for MOOE and capital outlays under R.A. No. 9970 shall be made
available up to the end of FY 2011: PROVIDED, FURTHER, That
a report on these releases and obligations shall be submitted to
the Senate Committee on Finance and the House Committee on
Appropriations.
and Section 63 General Provisions of the 2012 GAA, viz:
Section 63. Availability of Appropriations. — Appropriations for
MOOE and capital outlays authorized in this Act shall be available
for release and obligation for the purpose specified, and under
the same special provisions applicable thereto, for a period
extending to one fiscal year after the end of the year in which
such items were appropriated: PROVIDED, That a report on
these releases and obligations shall be submitted to the Senate
Committee on Finance and the House Committee on
Appropriations, either in printed form or by way of electronic
document. 154
Thus, another alleged area of constitutional infirmity was that the
DAP and its relevant issuances shortened the period of
availability of the appropriations for MOOE and capital outlays.
Congress provided a one-year period of availability of the funds
for all allotment classes in the 2013 GAA (R.A. No. 10352), to wit:
Section 63. Availability of Appropriations.— All appropriations
authorized in this Act shall be available for release and obligation
for the purposes specified, and under the same special provisions
applicable thereto, until the end of FY 2013: PROVIDED, That a
report on these releases and obligations shall be submitted to the
Senate Committee on Finance and House Committee on
Appropriations, either in printed form or by way of electronic
document.
Yet, in his memorandum for the President dated May 20, 2013,
Sec. Abad sought omnibus authority to consolidate savings and
unutilized balances to fund the DAP on a quarterly basis, viz:
7.0 If the level of financial performance of some
department will register below program, even with the
availability of funds at their disposal, the targeted
obligations/disbursements for each quarter will not be
met. It is important to note that these funds will lapse at
the end of the fiscal year if these remain unobligated.
8.0 To maximize the use of the available allotment, all
unobligated balances at the end of every quarter, both for
continuing and current allotments shall be withdrawn and
pooled to fund fast moving programs/projects.
9.0 It may be emphasized that the allotments to be
withdrawn will be based on the list of slow moving
projects to be identified by the agencies and their catch
up plans to be evaluated by the DBM.
The validity period of the affected appropriations, already given
the brief Lifes pan of one year, was further shortened to only a
quarter of a year under the DBM’s memorandum dated May 20,
2013.
The petitioners accuse the respondents of forcing the generation
of savings in order to have a larger fund available for
discretionary spending. They aver that the respondents, by
withdrawing unobligated allotments in the middle of the fiscal
year, in effect deprived funding for PAPs with existing
appropriations under the GAAs. 155
The respondents belie the accusation, insisting that the
unobligated allotments were being withdrawn upon the instance
of the implementing agencies based on their own assessment
that they could not obligate those allotments pursuant to the
President’s directive for them to spend their appropriations as
quickly as they could in order to ramp up the economy. 156
We agree with the petitioners.
Contrary to the respondents’ insistence, the withdrawals were
upon the initiative of the DBM itself. The text of NBC No. 541
bears this out, to wit:
5.2 For the purpose of determining the amount of unobligated
allotments that shall be withdrawn, all
departments/agencies/operating units (OUs) shall submit to DBM
not later than July 30, 2012, the following budget accountability
reports as of June 30, 2012;
• Statement of Allotments, Obligation and Balances
(SAOB);
• Financial Report of Operations (FRO); and
• Physical Report of Operations.
5.3 In the absence of the June 30, 2012 reports cited under item
5.2 of this Circular, the agency’s latest report available shall be
used by DBM as basis for withdrawal of allotment. The DBM shall
compute/approximate the agency’s obligation level as of June 30
to derive its unobligated allotments as of same period. Example:
If the March 31 SAOB or FRO reflects actual obligations of P
800M then the June 30 obligation level shall approximate to
₱1,600 M (i.e., ₱800 M x 2 quarters).
The petitioners assert that no law had authorized the withdrawal
and transfer of unobligated allotments and the pooling of
unreleased appropriations; and that the unbridled withdrawal of
unobligated allotments and the retention of appropriated funds
were akin to the impoundment of appropriations that could be
allowed only in case of "unmanageable national government
budget deficit" under the GAAs,  thus violating the provisions of
157
the GAAs of 2011, 2012 and 2013 prohibiting the retention or
deduction of allotments.158
In contrast, the respondents emphasize that NBC No. 541
adopted a spending, not saving, policy as a last-ditch effort of the
Executive to push agencies into actually spending their
appropriations; that such policy did not amount to an
impoundment scheme, because impoundment referred to the
decision of the Executive to refuse to spend funds for political or
ideological reasons; and that the withdrawal of allotments under
NBC No. 541 was made pursuant to Section 38, Chapter 5, Book
VI of the Administrative Code, by which the President was
granted the authority to suspend or otherwise stop further
expenditure of funds allotted to any agency whenever in his
judgment the public interest so required.
The assertions of the petitioners are upheld. The withdrawal and
transfer of unobligated allotments and the pooling of unreleased
appropriations were invalid for being bereft of legal support.
Nonetheless, such withdrawal of unobligated allotments and the
retention of appropriated funds cannot be considered as
impoundment.
According to Philippine Constitution Association v.
Enriquez:  "Impoundment refers to a refusal by the President, for
159
whatever reason, to spend funds made available by Congress. It
is the failure to spend or obligate budget authority of any type."
Impoundment under the GAA is understood to mean the retention
or deduction of appropriations. The 2011 GAA authorized
impoundment only in case of unmanageable National
Government budget deficit, to wit:
Section 66. Prohibition Against Impoundment of Appropriations.
No appropriations authorized under this Act shall be impounded
through retention or deduction, unless in accordance with the
rules and regulations to be issued by the DBM: PROVIDED, That
all the funds appropriated for the purposes, programs, projects
and activities authorized under this Act, except those covered
under the Unprogrammed Fund, shall be released pursuant to
Section 33 (3), Chapter 5, Book VI of E.O. No. 292.
Section 67. Unmanageable National Government Budget Deficit.
Retention or deduction of appropriations authorized in this Act
shall be effected only in cases where there is an unmanageable
national government budget deficit.
Unmanageable national government budget deficit as used in this
section shall be construed to mean that (i) the actual national
government budget deficit has exceeded the quarterly budget
deficit targets consistent with the full-year target deficit as
indicated in the FY 2011 Budget of
Expenditures and Sources of Financing submitted by the
President and approved by Congress pursuant to Section 22,
Article VII of the Constitution, or (ii) there are clear economic
indications of an impending occurrence of such condition, as
determined by the Development Budget Coordinating Committee
and approved by the President.
The 2012 and 2013 GAAs contained similar provisions.
The withdrawal of unobligated allotments under the DAP should
not be regarded as impoundment because it entailed only the
transfer of funds, not the retention or deduction of appropriations.
Nor could Section 68 of the 2011 GAA (and the similar provisions
of the 2012 and 2013 GAAs) be applicable. They uniformly
stated:
Section 68. Prohibition Against Retention/Deduction of Allotment.
Fund releases from appropriations provided in this Act shall be
transmitted intact or in full to the office or agency concerned. No
retention or deduction as reserves or overhead shall be made,
except as authorized by law, or upon direction of the President of
the Philippines. The COA shall ensure compliance with this
provision to the extent that sub-allotments by agencies to their
subordinate offices are in conformity with the release documents
issued by the DBM.
The provision obviously pertained to the retention or deduction of
allotments upon their release from the DBM, which was a
different matter altogether. The Court should not expand the
meaning of the provision by applying it to the withdrawal of
allotments.
The respondents rely on Section 38, Chapter 5, Book VI of the
Administrative Code of 1987 to justify the withdrawal of
unobligated allotments. But the provision authorized only the
suspension or stoppage of further expenditures, not the
withdrawal of unobligated allotments, to wit:
Section 38. Suspension of Expenditure of Appropriations.- Except
as otherwise provided in the General Appropriations Act and
whenever in his judgment the public interest so requires, the
President, upon notice to the head of office concerned, is
authorized to suspend or otherwise stop further expenditure of
funds allotted for any agency, or any other expenditure authorized
in the General Appropriations Act, except for personal services
appropriations used for permanent officials and employees.
Moreover, the DBM did not suspend or stop further expenditures
in accordance with Section 38, supra, but instead transferred the
funds to other PAPs.
It is relevant to remind at this juncture that the balances of
appropriations that remained unexpended at the end of the fiscal
year were to be reverted to the General Fund.  This was the
1âwphi1
mandate of Section 28, Chapter IV, Book VI of the Administrative
Code, to wit:
Section 28. Reversion of Unexpended Balances of
Appropriations, Continuing Appropriations.- Unexpended
balances of appropriations authorized in the General
Appropriation Act shall revert to the unappropriated surplus of the
General Fund at the end of the fiscal year and shall not thereafter
be available for expenditure except by subsequent legislative
enactment: Provided, that appropriations for capital outlays shall
remain valid until fully spent or reverted: provided, further, that
continuing appropriations for current operating expenditures may
be specifically recommended and approved as such in support of
projects whose effective implementation calls for multi-year
expenditure commitments: provided, finally, that the President
may authorize the use of savings realized by an agency during
given year to meet non-recurring expenditures in a subsequent
year.
The balances of continuing appropriations shall be reviewed as
part of the annual budget preparation process and the
preparation process and the President may approve upon
recommendation of the Secretary, the reversion of funds no
longer needed in connection with the activities funded by said
continuing appropriations.
The Executive could not circumvent this provision by declaring
unreleased appropriations and unobligated allotments as savings
prior to the end of the fiscal year.
b.3. Third Requisite – No funds from
savings could be transferred under
the DAP to augment deficient items
not provided in the GAA
The third requisite for a valid transfer of funds is that the purpose
of the transfer should be "to augment an item in the general
appropriations law for the respective offices." The term "augment"
means to enlarge or increase in size, amount, or degree. 160
The GAAs for 2011, 2012 and 2013 set as a condition for
augmentation that the appropriation for the PAP item to be
augmented must be deficient, to wit: –
x x x Augmentation implies the existence in this Act of a program,
activity, or project with an appropriation, which upon
implementation, or subsequent evaluation of needed resources,
is determined to be deficient. In no case shall a non-existent
program, activity, or project, be funded by augmentation from
savings or by the use of appropriations otherwise authorized in
this Act.
In other words, an appropriation for any PAP must first be
determined to be deficient before it could be augmented from
savings. Note is taken of the fact that the 2013 GAA already
made this quite clear, thus:
Section 52. Use of Savings. The President of the Philippines, the
Senate President, the Speaker of the House of Representatives,
the Chief Justice of the Supreme Court, the Heads of
Constitutional Commissions enjoying fiscal autonomy, and the
Ombudsman are hereby authorized to use savings in their
respective appropriations to augment actual deficiencies incurred
for the current year in any item of their respective appropriations.
As of 2013, a total of ₱144.4 billion worth of PAPs were
implemented through the DAP. 161
Of this amount ₱82.5 billion were released in 2011 and ₱54.8
billion in 2012.  Sec. Abad has reported that 9% of the total DAP
162
releases were applied to the PAPs identified by the legislators.
The petitioners disagree, however, and insist that the DAP
supported the following PAPs that had not been covered with
appropriations in the respective GAAs, namely:
(i) ₱1.5 billion for the Cordillera People’s Liberation Army;
(ii) ₱1.8 billion for the Moro National Liberation Front;
(iii) ₱700 million for assistance to Quezon Province; 164
(iv) ₱50 million to ₱100 (million) each to certain
senators; 165
(v) ₱10 billion for the relocation of families living along
dangerous zones under the National Housing Authority;
(vi) ₱10 billion and ₱20 billion equity infusion under the
Bangko Sentral;
(vii) ₱5.4 billion landowners’ compensation under the
Department of Agrarian Reform;
(viii) ₱8.6 billion for the ARMM comprehensive peace and
development program;
APPROPRIATION
(ix) ₱6.5 billion augmentation of LGU internal revenue
allotments
(x) ₱5 billion for crucial projects like tourism road
construction under the Department of Tourism and the
Department of Public Works and Highways;
(xi) ₱1.8 billion for the DAR-DPWH Tulay ng Pangulo;
163
(xii) ₱1.96 billion for the DOH-DPWH rehabilitation of
regional health units; and
(xiii) ₱4 billion for the DepEd-PPP school infrastructure
projects.
166
In refutation, the OSG argues that a total of 116 DAP-financed
PAPs were implemented, had appropriation covers, and could
properly be accounted for because the funds were released
following and pursuant to the standard practices adopted by the
DBM.  In support of its argument, the OSG has submitted seven
167
evidence packets containing memoranda, SAROs, and other
pertinent documents relative to the implementation and fund
transfers under the DAP. 168
Upon careful review of the documents contained in the seven
evidence packets, we conclude that the "savings" pooled under
the DAP were allocated to PAPs that were not covered by any
appropriations in the pertinent GAAs.
For example, the SARO issued on December 22, 2011 for the
highly vaunted Disaster Risk, Exposure, Assessment and
Mitigation (DREAM) project under the Department of Science and
Technology (DOST) covered the amount of ₱1.6 Billion,  broken169
down as follows:
PARTICULARS AMOUNT
 CODE AUTHORIZED Generat
ion of
A.03.a.01.a Generation of new knowledge and technologies new
and research capability building in priority areas knowled
identified as strategic to National Development ge and
Personnel Services technol
Maintenance and Other Operating Expenses  P 43,504,024 ogies
Capital Outlays 1,164,517,589 and
391,978,387 researc
P 1,600,000,000 h
capabilit
y
the pertinent provision of the 2011 GAA (R.A. No. 10147) showed building
that Congress had appropriated only ₱537,910,000 for MOOE, in
but nothing for personnel services and capital outlays, to wit: priority
areas
Person Mainten Capital TOTAL identifie
nel ance Outlay d as
Service and s strategi
s Other c to
Operatin National
g Develop
Expendit ment 000 000
ures
Aside from this transfer under the DAP to the DREAM project
III Operations exceeding by almost 300% the appropriation by Congress for the
. program Generation of new knowledge and technologies and
a Funding 177,40 1,887,36 49,090 2,113,86
. Assistance 6,000 5,000 ,000 1,000 research capability building in priority areas identified as strategic
to Science to National Development, the Executive allotted funds for
and personnel services and capital outlays. The Executive thereby
Technology substituted its will to that of Congress. Worse, the Executive had
Activities not earlier proposed any amount for personnel services and
capital outlays in the NEP that became the basis of the 2011
1 Central Office 1,554,23 1,554,23 GAA. 170

. 8,000 8,000
It is worth stressing in this connection that the failure of the GAAs
a. 537,910, 537,910, to set aside any amounts for an expense category sufficiently
 indicated that Congress purposely did not see fit to fund, much
less implement, the PAP concerned. This indication becomes
clearer when even the President himself did not recommend in
the NEP to fund the PAP. The consequence was that any PAP
requiring expenditure that did not receive any appropriation under
the GAAs could only be a new PAP, any funding for which would
go beyond the authority laid down by Congress in enacting the
GAAs. That happened in some instances under the DAP.
In relation to the December 22, 2011 SARO issued to the
Philippine Council for Industry, Energy and Emerging Technology
Research and Development (DOST-PCIEETRD)  for 171
Establishment of the Advanced Failure Analysis Laboratory,
which reads:
APPROPRIATION PARTICULARS
CODE
AUTHORIZED
Development, integration and coordination of the
National Research System for Industry, Energy and
A.02.a
Emerging Technology and Related Fields
Capital Outlays
P 300,000,000
the appropriation code and the particulars appearing in the SARO
did not correspond to the program specified in the GAA, whose
particulars were Research and Management Services(inclusive of
the following activities: (1) Technological and Economic
Assessment for Industry, Energy and Utilities; (2) Dissemination
of Science and Technology Information; and (3) Management of
PCIERD Information System for Industry, Energy and Utilities.
Even assuming that Development, integration and coordination of
the National Research System for Industry, Energy and Emerging
Technology and Related Fields– the particulars stated in the
SARO – could fall under the broad program description of
Research and Management Services– as appearing in the
SARO, it would nonetheless remain a new activity by reason of its
not being specifically stated in the GAA. As such, the DBM, sans
legislative authorization, could not validly fund and implement
such PAP under the DAP.
In defending the disbursements, however, the OSG contends that
the Executive enjoyed sound discretion in implementing the
budget given the generality in the language and the broad policy
objectives identified under the GAAs;  and that the President
172
enjoyed unlimited authority to spend the initial appropriations
under his authority to declare and utilize savings,  and in keeping
173
with his duty to faithfully execute the laws.
Although the OSG rightly contends that the Executive was
authorized to spend in line with its mandate to faithfully execute
the laws (which included the GAAs), such authority did not
translate to unfettered discretion that allowed the President to
AMOUNTsubstitute his own will for that of Congress. He was still required
to remain faithful to the provisions of the GAAs, given that his
power to spend pursuant to the GAAs was but a delegation to him
from Congress. Verily, the power to spend the public wealth
resided in Congress, not in the Executive.  Moreover, leaving the
174
spending power of the Executive unrestricted would threaten to
undo the principle of separation of powers.
175
Congress acts as the guardian of the public treasury in faithful
discharge of its power of the purse whenever it deliberates and
acts on the budget proposal submitted by the Executive.  Its 176
power of the purse is touted as the very foundation of its
institutional strength,  and underpins "all other legislative
177
decisions and regulating the balance of influence between the
legislative and executive branches of government."  Such 178
enormous power encompasses the capacity to generate money
for the Government, to appropriate public funds, and to spend the
money.  Pertinently, when it exercises its power of the purse,
179
Congress wields control by specifying the PAPs for which public
money should be spent.
It is the President who proposes the budget but it is Congress
that has the final say on matters of appropriations. For this
180
purpose, appropriation involves two governing principles, namely:
(1) "a Principle of the Public Fisc, asserting that all monies
received from whatever source by any part of the government are
public funds;" and (2) "a Principle of Appropriations Control,
prohibiting expenditure of any public money without legislative
authorization." To conform with the governing principles, the
181
Executive cannot circumvent the prohibition by Congress of an
expenditure for a PAP by resorting to either public or private
funds.  Nor could the Executive transfer appropriated funds
182
resulting in an increase in the budget for one PAP, for by so doing
the appropriation for another PAP is necessarily decreased. The
terms of both appropriations will thereby be violated.
b.4 Third Requisite – Cross-border
augmentations from savings were
prohibited by the Constitution
By providing that the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the
Supreme Court, and the Heads of the Constitutional
Commissions may be authorized to augment any item in the GAA
"for their respective offices," Section 25(5), supra, has delineated
borders between their offices, such that funds appropriated for
one office are prohibited from crossing over to another office even
in the guise of augmentation of a deficient item or items. Thus, we
call such transfers of funds cross-border transfers or cross-border
augmentations.
To be sure, the phrase "respective offices" used in Section 25(5),
supra, refers to the entire Executive, with respect to the
President; the Senate, with respect to the Senate President; the
House of Representatives, with respect to the Speaker; the
Judiciary, with respect to the Chief Justice; the Constitutional
Commissions, with respect to their respective Chairpersons.
Did any cross-border transfers or augmentations transpire?
During the oral arguments on January 28, 2014, Sec. Abad
admitted making some cross-border augmentations, to wit:
JUSTICE BERSAMIN:
Alright, the whole time that you have been Secretary of
Department of Budget and Management, did the Executive
Department ever redirect any part of savings of the National
Government under your control cross border to another
department?
SECRETARY ABAD:
Well, in the Memos that we submitted to you, such an instance,
Your Honor
JUSTICE BERSAMIN:
Can you tell me two instances? I don’t recall having read your
material.
SECRETARY ABAD:
Well, the first instance had to do with a request from the House of
Representatives. They started building their e-library in 2010 and
they had a budget for about 207 Million but they lack about 43
Million to complete its 250 Million requirements. Prior to that, the
COA, in an audit observation informed the Speaker that they had
to continue with that construction otherwise the whole building, as
well as the equipments therein may suffer from serious
deterioration. And at that time, since the budget of the House of
Representatives was not enough to complete 250 Million, they
wrote to the President requesting for an augmentation of that
particular item, which was granted, Your Honor. The second
instance in the Memos is a request from the Commission on
Audit. At the time they were pushing very strongly the good
governance programs of the government and therefore, part of
that is a requirement to conduct audits as well as review financial JUSTICE BERSAMIN:
reports of many agencies. And in the performance of that
function, the Commission on Audit needed information technology So your position as Secretary of Budget is that you could do that?
equipment as well as hire consultants and litigators to help them
with their audit work and for that they requested funds from the SECRETARY ABAD:
Executive and the President saw that it was important for the
Commission to be provided with those IT equipments and
In an extreme instances because…(interrupted)
litigators and consultants and the request was granted, Your
Honor.
JUSTICE BERSAMIN:
JUSTICE BERSAMIN:
No, no, in all instances, extreme or not extreme, you could do
that, that’s your feeling.
These cross border examples, cross border augmentations were
not supported by appropriations…
SECRETARY ABAD:
SECRETARY ABAD:
Well, in that particular situation when the request was made by
the Commission and the House of Representatives, we felt that
They were, we were augmenting existing items within their…
we needed to respond because we felt…(interrupted). 183

(interrupted)
The records show, indeed, that funds amounting to
JUSTICE BERSAMIN:
₱143,700,000.00 and ₱250,000,000.00 were transferred under
the DAP respectively to the COA  and the House of
184

No, appropriations before you augmented because this is a cross Representatives.  Those transfers of funds, which constituted
185

border and the tenor or text of the Constitution is quite clear as far cross-border augmentations for being from the Executive to the
as I am concerned. It says here, "The power to augment may only COA and the House of Representatives, are graphed as follows: 186

be made to increase any item in the General Appropriations Law

for their respective offices." Did you not feel constricted by this
provision?
AMOUNT
SECRETARY ABAD: DATE (In thousand pesos)
PURPOSE
RELEASED Reserve Releases
Well, as the Constitution provides, the prohibition we felt was on
Imposed
the transfer of appropriations, Your Honor. What we thought we
did was to transfer savings which was needed by the Commission
Commission on IT Infrastructure Program and 11/11/11   143,700
to address deficiency in an existing item in both the Commission hiring of additional litigation
as well as in the House of Representatives; that’s how we saw… experts
(interrupted)
ngress – Completion of the construction 07/23/12 207,034
use of of the Legislative Library and (Savings of HOR)
presentative Archives Building/Congressional
e-library
The respondents further stated in their memorandum that the
President "made available" to the "Commission on Elections the
savings of his department upon [its] request for funds…"  This
187
was another instance of a cross-border augmentation.
The respondents justified all the cross-border transfers thusly:
99. The Constitution does not prevent the President from
transferring savings of his department to another department
upon the latter’s request, provided it is the recipient department
that uses such funds to augment its own appropriation. In such a
case, the President merely gives the other department access to
public funds but he cannot dictate how they shall be applied by
that department whose fiscal autonomy is guaranteed by the
Constitution.188
In the oral arguments held on February 18, 2014, Justice Vicente
V. Mendoza, representing Congress, announced a different
characterization of the cross-border transfers of funds as in the
nature of "aid" instead of "augmentation," viz:
HONORABLE MENDOZA:
The cross-border transfers, if Your Honors please, is not an
application of the DAP. What were these cross-border transfers?
They are transfers of savings as defined in the various General
Appropriations Act. So, that makes it similar to the DAP, the use
of savings. There was a cross-border which appears to be in
violation of Section 25, paragraph 5 of Article VI, in the sense that
the border was crossed. But never has it been claimed that the
purpose was to augment a deficient item in another department of
the government or agency of the government. The cross-border
transfers, if Your Honors please, were in the nature of [aid] rather
than augmentations. Here is a government entity separate and
independent from the Executive Department solely in need of
public funds. The President is there 24 hours a day, 7 days a
week. He’s in charge of the whole operation although six or seven
heads of government offices are given the power to augment.
Only the President stationed there and in effect in-charge and has
the responsibility for the failure of any part of the government.
You have election, for one reason or another, the money is not
enough to hold election. There would be chaos if no money is
given as an aid, not to augment, but as an aid to a department
like COA. The President is responsible in a way that the other
heads, given the power to augment, are not. So, he cannot very
well allow this, if Your Honor please.
189
JUSTICE LEONEN:
May I move to another point, maybe just briefly. I am curious that
the position now, I think, of government is that some transfers of
savings is now considered to be, if I’m not mistaken, aid not
augmentation. Am I correct in my hearing of your argument?
HONORABLE MENDOZA:
That’s our submission, if Your Honor, please.
JUSTICE LEONEN:
May I know, Justice, where can we situate this in the text of the
Constitution? Where do we actually derive the concepts that
transfers of appropriation from one branch to the other or what
happened in DAP can be considered a said? What particular text
in the Constitution can we situate this?
HONORABLE MENDOZA:
There is no particular provision or statutory provision for that But Counsel, this would be new doctrine, in case?
matter, if Your Honor please. It is drawn from the fact that the
Executive is the executive in-charge of the success of the HONORABLE MENDOZA:
government.
Yes, if Your Honor please. 190

JUSTICE LEONEN:
Regardless of the variant characterizations of the cross-border
So, the residual powers labelled in Marcos v. Manglapus would transfers of funds, the plain text of Section 25(5), supra,
be the basis for this theory of the government? disallowing cross border transfers was disobeyed. Cross-border
transfers, whether as augmentation, or as aid, were prohibited
HONORABLE MENDOZA: under Section 25(5), supra.

Yes, if Your Honor, please. 4.

Sourcing the DAP from unprogrammed
JUSTICE LEONEN: funds despite the original revenue targets
not having been exceeded was invalid
A while ago, Justice Carpio mentioned that the remedy is might
be to go to Congress. That there are opportunities and there have Funding under the DAP were also sourced from unprogrammed
been opportunities of the President to actually go to Congress funds provided in the GAAs for 2011, 2012,and 2013. The
and ask for supplemental budgets? respondents stress, however, that the unprogrammed funds were
not brought under the DAP as savings, but as separate sources
HONORABLE MENDOZA: of funds; and that, consequently, the release and use of
unprogrammed funds were not subject to the restrictions under
Section 25(5), supra.
If there is time to do that, I would say yes.
The documents contained in the Evidence Packets by the OSG
JUSTICE LEONEN:
have confirmed that the unprogrammed funds were treated as
separate sources of funds. Even so, the release and use of the
So, the theory of aid rather than augmentation applies in extra- unprogrammed funds were still subject to restrictions, for, to start
ordinary situation? with, the GAAs precisely specified the instances when the
unprogrammed funds could be released and the purposes for
HONORABLE MENDOZA: which they could be used.

Very extra-ordinary situations. The petitioners point out that a condition for the release of the
unprogrammed funds was that the revenue collections must
JUSTICE LEONEN: exceed revenue targets; and that the release of the
unprogrammed funds was illegal because such condition was not
met.191
The respondents disagree, holding that the release and use of
the unprogrammed funds under the DAP were in accordance with
the pertinent provisions of the GAAs. In particular, the DBM avers
that the unprogrammed funds could be availed of when any of the
following three instances occur, to wit: (1) the revenue collections
exceeded the original revenue targets proposed in the BESFs
submitted by the President to Congress; (2) new revenues were
collected or realized from sources not originally considered in the
BESFs; or(3) newly-approved loans for foreign assisted projects
were secured, or when conditions were triggered for other
sources of funds, such as perfected loan agreements for foreign-
assisted projects.  This view of the DBM was adopted by all the
192
respondents in their Consolidated Comment. 193
The BESFs for 2011, 2012 and 2013 uniformly defined
"unprogrammed appropriations" as appropriations that provided
standby authority to incur additional agency obligations for priority
PAPs when revenue collections exceeded targets, and when
additional foreign funds are generated.  Contrary to the DBM’s
194
averment that there were three instances when unprogrammed
funds could be released, the BESFs envisioned only two
instances. The third mentioned by the DBM – the collection of
new revenues from sources not originally considered in the
BESFs – was not included. This meant that the collection of
additional revenues from new sources did not warrant the release
of the unprogrammed funds. Hence, even if the revenues not
considered in the BESFs were collected or generated, the basic
condition that the revenue collections should exceed the revenue
targets must still be complied with in order to justify the release of
the unprogrammed funds.
The view that there were only two instances when the
unprogrammed funds could be released was bolstered by the
following texts of the Special Provisions of the 2011 and 2012
GAAs, to wit:
2011 GAA
1. Release of Fund. The amounts authorized herein shall be
released only when the revenue collections exceed the original
revenue targets submitted by the President of the Philippines to
Congress pursuant to Section 22, Article VII of the Constitution,
including savings generated from programmed appropriations for
the year: PROVIDED, That collections arising from sources not
considered in the aforesaid original revenue targets may be used
to cover releases from appropriations in this Fund: PROVIDED,
FURTHER, That in case of newly approved loans for foreign-
assisted projects, the existence of a perfected loan agreement for
the purpose shall be sufficient basis for the issuance of a SARO
covering the loan proceeds: PROVIDED, FURTHERMORE, That
if there are savings generated from the programmed
appropriations for the first two quarters of the year, the DBM may,
subject to the approval of the President, release the pertinent
appropriations under the Unprogrammed Fund corresponding to
only fifty percent (50%) of the said savings net of revenue
shortfall: PROVIDED, FINALLY, That the release of the balance
of the total savings from programmed appropriations for the year
shall be subject to fiscal programming and approval of the
President.
2012 GAA
1. Release of the Fund. The amounts authorized herein shall be
released only when the revenue collections exceed the original
revenue targets submitted by the President of the Philippines to
Congress pursuant to Section 22, Article VII of the Constitution:
PROVIDED, That collections arising from sources not considered
in the aforesaid original revenue targets may be used to cover
releases from appropriations in this Fund: PROVIDED,
FURTHER, That in case of newly approved loans for foreign-
assisted projects, the existence of a perfected loan agreement for
the purpose shall be sufficient basis for the issuance of a SARO
covering the loan proceeds.
As can be noted, the provisos in both provisions to the effect that
"collections arising from sources not considered in the aforesaid
original revenue targets may be used to cover releases from
appropriations in this Fund" gave the authority to use such
additional revenues for appropriations funded from the
unprogrammed funds. They did not at all waive compliance with
the basic requirement that revenue collections must still exceed
the original revenue targets.
In contrast, the texts of the provisos with regard to additional
revenues generated from newly-approved foreign loans were
clear to the effect that the perfected loan agreement would be in
itself "sufficient basis" for the issuance of a SARO to release the
funds but only to the extent of the amount of the loan. In such
instance, the revenue collections need not exceed the revenue
targets to warrant the release of the loan proceeds, and the mere
perfection of the loan agreement would suffice.
It can be inferred from the foregoing that under these provisions
of the GAAs the additional revenues from sources not considered
in the BESFs must be taken into account in determining if the
revenue collections exceeded the revenue targets. The text of the
relevant provision of the 2013 GAA, which was substantially
similar to those of the GAAs for 2011 and 2012, already made
this explicit, thus:
1. Release of the Fund. The amounts authorized herein shall be
released only when the revenue collections exceed the original
revenue targets submitted by the President of the Philippines to
Congress pursuant to Section 22, Article VII of the Constitution,
including collections arising from sources not considered in the
aforesaid original revenue target, as certified by the BTr:
PROVIDED, That in case of newly approved loans for foreign-
assisted projects, the existence of a perfected loan agreement for
the purpose shall be sufficient basis for the issuance of a SARO
covering the loan proceeds.
Consequently, that there were additional revenues from sources
not considered in the revenue target would not be enough. The
total revenue collections must still exceed the original revenue
targets to justify the release of the unprogrammed funds (other
than those from newly-approved foreign loans).
The present controversy on the unprogrammed funds was rooted
in the correct interpretation of the phrase "revenue collections
should exceed the original revenue targets." The petitioners take
the phrase to mean that the total revenue collections must
exceed the total revenue target stated in the BESF, but the
respondents understand the phrase to refer only to the collections
for each source of revenue as enumerated in the BESF, with the
condition being deemed complied with once the revenue
collections from a particular source already exceeded the stated
target.
The BESF provided for the following sources of revenue, with the
corresponding revenue target stated for each source of revenue,
to wit:
TAX REVENUES
Taxes on Net Income and Profits
Taxes on Property
Taxes on Domestic Goods and Services
General Sales, Turnover or VAT
Selected Excises on Goods
Selected Taxes on Services
Taxes on the Use of Goods or Property or Permission to
Perform Activities
Other Taxes
Taxes on International Trade and Transactions
NON-TAX REVENUES
 Fees and Charges dividends from shares of stock in government-owned and
BTR Income controlled corporations is 5.5 billion.

Government Services This is to certify further that based on the records of the Bureau of
Interest on NG Deposits Treasury, the National Government has recorded dividend
Interest on Advances to Government Corporations income amounting to ₱23.8 billion as of 31 January 2011. 196

Income from Investments

For 2012, the OSG submitted the certification dated April 26,
Interest on Bond Holdings 2012 issued by National Treasurer Roberto B. Tan, viz:

Guarantee Fee This is to certify that the actual dividend collections remitted to the
Gain on Foreign Exchange National Government for the period January to March 2012
NG Income Collected by BTr amounted to ₱19.419 billion compared to the full year program of
₱5.5 billion for 2012.197

Dividends on Stocks
NG Share from Airport Terminal Fee And, finally, for 2013, the OSG presented the certification dated
NG Share from PAGCOR Income July 3, 2013 issued by National Treasurer Rosalia V. De Leon, to
NG Share from MIAA Profit wit:

Privatization This is to certify that the actual dividend collections remitted to the
Foreign Grants National Government for the period January to May 2013
amounted to ₱12.438 billion compared to the full year program of
Thus, when the Court required the respondents to submit a ₱10.0  billion for 2013.
198

certification from the Bureau of Treasury (BTr) to the effect that

the revenue collections had exceeded the original revenue
targets,  they complied by submitting certifications from the BTr
195
and Department of Finance (DOF) pertaining to only one
Moreover, the National Government accounted for the sale of the
right to build and operate the NAIA expressway amounting to
₱11.0 billion in June 2013. 199

identified source of revenue – the dividends from the shares of

stock held by the Government in government-owned and
controlled corporations.
To justify the release of the unprogrammed funds for 2011, the
OSG presented the certification dated March 4, 2011 issued by
DOF Undersecretary Gil S. Beltran, as follows:
The certifications reflected that by collecting dividends amounting
to ₱23.8 billion in 2011, ₱19.419 billion in 2012, and ₱12.438
billion in 2013 the BTr had exceeded only the ₱5.5 billion in target
revenues in the form of dividends from stocks in each of 2011
and 2012, and only the ₱10 billion in target revenues in the form
of dividends from stocks in 2013.

This is to certify that under the Budget for Expenditures and However, the requirement that revenue collections exceed the
Sources of Financing for 2011, the programmed income from original revenue targets was to be construed in light of the
purpose for which the unprogrammed funds were incorporated in
the GAAs as standby appropriations to support additional
expenditures for certain priority PAPs should the revenue
collections exceed the resource targets assumed in the budget or
when additional foreign project loan proceeds were realized. The
unprogrammed funds were included in the GAAs to provide ready
cover so as not to delay the implementation of the PAPs should
new or additional revenue sources be realized during the
year.  Given the tenor of the certifications, the unprogrammed
200
funds were thus not yet supported by the corresponding
resources. 201
The revenue targets stated in the BESF were intended to address
the funding requirements of the proposed programmed
appropriations. In contrast, the unprogrammed funds, as standby
appropriations, were to be released only when there were
revenues in excess of what the programmed appropriations
required. As such, the revenue targets should be considered as a
whole, not individually; otherwise, we would be dealing with
artificial revenue surpluses. The requirement that revenue
collections must exceed revenue target should be understood to
mean that the revenue collections must exceed the total of the
revenue targets stated in the BESF. Moreover, to release the
unprogrammed funds simply because there was an excess
revenue as to one source of revenue would be an unsound fiscal
management measure because it would disregard the budget
plan and foster budget deficits, in contravention of the
Government’s surplus budget policy. 202
We cannot, therefore, subscribe to the respondents’ view.
5.
Equal protection, checks and balances,
and public accountability challenges
The DAP is further challenged as violative of the Equal Protection
Clause, the system of checks and balances, and the principle of
public accountability.
With respect to the challenge against the DAP under the Equal
Protection Clause,  Luna argues that the implementation of the
203
DAP was "unfair as it [was] selective" because the funds released
under the DAP was not made available to all the legislators, with
some of them refusing to avail themselves of the DAP funds, and
others being unaware of the availability of such funds. Thus, the
DAP practised "undue favoritism" in favor of select legislators in
contravention of the Equal Protection Clause.
Similarly, COURAGE contends that the DAP violated the Equal
Protection Clause because no reasonable classification was used
in distributing the funds under the DAP; and that the Senators
who supposedly availed themselves of said funds were differently
treated as to the amounts they respectively received.
Anent the petitioners’ theory that the DAP violated the system of
checks and balances, Luna submits that the grant of the funds
under the DAP to some legislators forced their silence about the
issues and anomalies surrounding the DAP. Meanwhile, Belgica
stresses that the DAP, by allowing the legislators to identify
PAPs, authorized them to take part in the implementation and
execution of the GAAs, a function that exclusively belonged to the
Executive; that such situation constituted undue and unjustified
legislative encroachment in the functions of the Executive; and
that the President arrogated unto himself the power of
appropriation vested in Congress because NBC No. 541
authorized the use of the funds under the DAP for PAPs not
considered in the 2012 budget.
Finally, the petitioners insist that the DAP was repugnant to the
principle of public accountability enshrined in the
Constitution,  because the legislators relinquished the power of
204
appropriation to the Executive, and exhibited a reluctance to
inquire into the legality of the DAP.
The OSG counters the challenges, stating that the supposed
discrimination in the release of funds under the DAP could be
raised only by the affected Members of Congress themselves,
and if the challenge based on the violation of the Equal Protection
Clause was really against the constitutionality of the DAP, the
arguments of the petitioners should be directed to the entitlement
of the legislators to the funds, not to the proposition that all of the
legislators should have been given such entitlement.
The challenge based on the contravention of the Equal Protection
Clause, which focuses on the release of funds under the DAP to
legislators, lacks factual and legal basis. The allegations about
Senators and Congressmen being unaware of the existence and
implementation of the DAP, and about some of them having
refused to accept such funds were unsupported with relevant
data. Also, the claim that the Executive discriminated against
some legislators on the ground alone of their receiving less than
the others could not of itself warrant a finding of contravention of
the Equal Protection Clause. The denial of equal protection of any
law should be an issue to be raised only by parties who
supposedly suffer it, and, in these cases, such parties would be
the few legislators claimed to have been discriminated against in
the releases of funds under the DAP. The reason for the
requirement is that only such affected legislators could properly
and fully bring to the fore when and how the denial of equal
protection occurred, and explain why there was a denial in their
situation. The requirement was not met here. Consequently, the
Court was not put in the position to determine if there was a
denial of equal protection. To have the Court do so despite the
inadequacy of the showing of factual and legal support would be
to compel it to speculate, and the outcome would not do justice to
those for whose supposed benefit the claim of denial of equal
protection has been made.
The argument that the release of funds under the DAP effectively
stayed the hands of the legislators from conducting congressional
inquiries into the legality and propriety of the DAP is speculative.
That deficiency eliminated any need to consider and resolve the
argument, for it is fundamental that speculation would not support
any proper judicial determination of an issue simply because
nothing concrete can thereby be gained. In order to sustain their
constitutional challenges against official acts of the Government,
the petitioners must discharge the basic burden of proving that
the constitutional infirmities actually existed.  Simply put,
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guesswork and speculation cannot overcome the presumption of
the constitutionality of the assailed executive act.
We do not need to discuss whether or not the DAP and its
implementation through the various circulars and memoranda of
the DBM transgressed the system of checks and balances in
place in our constitutional system. Our earlier expositions on the
DAP and its implementing issuances infringing the doctrine of
separation of powers effectively addressed this particular
concern.
Anent the principle of public accountability being transgressed
because the adoption and implementation of the DAP constituted
an assumption by the Executive of Congress’ power of
appropriation, we have already held that the DAP and its
implementing issuances were policies and acts that the Executive
could properly adopt and do in the execution of the GAAs to the
extent that they sought to implement strategies to ramp up or
accelerate the economy of the country.
6.
Doctrine of operative fact was applicable
After declaring the DAP and its implementing issuances
constitutionally infirm, we must now deal with the consequences
of the declaration.
Article 7 of the Civil Code provides:
Article 7. Laws are repealed only by subsequent ones, and their
violation or non-observance shall not be excused by disuse, or
custom or practice to the contrary.
When the courts declared a law to be inconsistent with the
Constitution, the former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations shall be
valid only when they are not contrary to the laws or the
Constitution.
A legislative or executive act that is declared void for being
unconstitutional cannot give rise to any right or
obligation.  However, the generality of the rule makes us ponder
206
whether rigidly applying the rule may at times be impracticable or
wasteful. Should we not recognize the need to except from the
rigid application of the rule the instances in which the void law or
executive act produced an almost irreversible result?
The need is answered by the doctrine of operative fact. The
doctrine, definitely not a novel one, has been exhaustively
explained in De Agbayani v. Philippine National Bank: 207
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 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.’"
The doctrine of operative fact recognizes the existence of the law
or executive act prior to the determination of its unconstitutionality
as an operative fact that produced consequences that cannot
always be erased, ignored or disregarded. In short, it nullifies the
void law or executive act but sustains its effects. It provides an
exception to the general rule that a void or unconstitutional law
produces no effect.  But its use must be subjected to great
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scrutiny and circumspection, and it cannot be invoked to validate
an unconstitutional law or executive act, but is resorted to only as
a matter of equity and fair play.  It applies only to cases where
209
extraordinary circumstances exist, and only when the
extraordinary circumstances have met the stringent conditions
that will permit its application.
We find the doctrine of operative fact applicable to the adoption
and implementation of the DAP. Its application to the DAP
proceeds from equity and fair play. The consequences resulting
from the DAP and its related issuances could not be ignored or
could no longer be undone.
To be clear, the doctrine of operative fact extends to a void or
unconstitutional executive act. The term executive act is broad
enough to include any and all acts of the Executive, including
those that are quasi legislative and quasi-judicial in nature. The
Court held so in Hacienda Luisita, Inc. v. Presidential Agrarian
Reform Council: 210
Nonetheless, the minority is of the persistent view that the
applicability of the operative fact doctrine should be limited to
statutes and rules and regulations issued by the executive
department that are accorded the same status as that of a statute
or those which are quasi-legislative in nature. Thus, the minority
concludes that the phrase ‘executive act’ used in the case of De
Agbayani v. Philippine National Bank refers only to acts, orders,
and rules and regulations that have the force and effect of law.
The minority also made mention of the Concurring Opinion of
Justice Enrique Fernando in Municipality of Malabang v. Benito,
where it was supposedly made explicit that the operative fact
doctrine applies to executive acts, which are ultimately quasi-
legislative in nature.
We disagree. For one, neither the De Agbayani case nor the
Municipality of Malabang case elaborates what ‘executive act’
mean. Moreover, while orders, rules and regulations issued by
the President or the executive branch have fixed definitions and
meaning in the Administrative Code and jurisprudence, the
phrase ‘executive act’ does not have such specific definition
under existing laws. It should be noted that in the cases cited by
the minority, nowhere can it be found that the term ‘executive act’
is confined to the foregoing. Contrarily, the term ‘executive act’ is
broad enough to encompass decisions of administrative bodies
and agencies under the executive department which are
subsequently revoked by the agency in question or nullified by
the Court.
A case in point is the concurrent appointment of Magdangal B.
Elma (Elma) as Chairman of the Presidential Commission on
Good Government (PCGG) and as Chief Presidential Legal
Counsel (CPLC) which was declared unconstitutional by this
Court in Public Interest Center, Inc. v. Elma. In said case, this
Court ruled that the concurrent appointment of Elma to these
offices is in violation of Section 7, par. 2, Article IX-B of the 1987
Constitution, since these are incompatible offices. Notably, the
appointment of Elma as Chairman of the PCGG and as CPLC is,
without a question, an executive act. Prior to the declaration of
unconstitutionality of the said executive act, certain acts or
transactions were made in good faith and in reliance of the
appointment of Elma which cannot just be set aside or invalidated
by its subsequent invalidation.
In Tan v. Barrios, this Court, in applying the operative fact
doctrine, held that despite the invalidity of the jurisdiction of the
military courts over civilians, certain operative facts must be
acknowledged to have existed so as not to trample upon the
rights of the accused therein. Relevant thereto, in Olaguer v.
Military Commission No. 34, it was ruled that ‘military tribunals
pertain to the Executive Department of the Government and are
simply instrumentalities of the executive power, provided by the
legislature for the President as Commander-in-Chief to aid him in
properly commanding the army and navy and enforcing discipline
therein, and utilized under his orders or those of his authorized
military representatives.’
Evidently, the operative fact doctrine is not confined to statutes
and rules and regulations issued by the executive department
that are accorded the same status as that of a statute or those
which are quasi-legislative in nature.
Even assuming that De Agbayani initially applied the operative
fact doctrine only to executive issuances like orders and rules and
regulations, said principle can nonetheless be applied, by
analogy, to decisions made by the President or the agencies
under the executive department. This doctrine, in the interest of
justice and equity, can be applied liberally and in a broad sense
to encompass said decisions of the executive branch. In keeping
with the demands of equity, the Court can apply the operative fact
doctrine to acts and consequences that resulted from the reliance
not only on a law or executive act which is quasi-legislative in
nature but also on decisions or orders of the executive branch
which were later nullified. This Court is not unmindful that such
acts and consequences must be recognized in the higher interest
of justice, equity and fairness.
Significantly, a decision made by the President or the
administrative agencies has to be complied with because it has
the force and effect of law, springing from the powers of the
President under the Constitution and existing laws. Prior to the
nullification or recall of said decision, it may have produced acts
and consequences in conformity to and in reliance of said
decision, which must be respected. It is on this score that the
operative fact doctrine should be applied to acts and
consequences that resulted from the implementation of the PARC
Resolution approving the SDP of HLI. (Bold underscoring
supplied for emphasis)
In Commissioner of Internal Revenue v. San Roque Power
Corporation,  the Court likewise declared that "for the operative
211
fact doctrine to apply, there must be a ‘legislative or executive
measure,’ meaning a law or executive issuance." Thus, the Court
opined there that the operative fact doctrine did not apply to a
mere administrative practice of the Bureau of Internal Revenue,
viz:
Under Section 246, taxpayers may rely upon a rule or ruling
issued by the Commissioner from the time the rule or ruling is
issued up to its reversal by the Commissioner or this Court. The
reversal is not given retroactive effect. This, in essence, is the
doctrine of operative fact. There must, however, be a rule or
ruling issued by the Commissioner that is relied upon by the
taxpayer in good faith. A mere administrative practice, not
formalized into a rule or ruling, will not suffice because such a
mere administrative practice may not be uniformly and
consistently applied. An administrative practice, if not formalized
as a rule or ruling, will not be known to the general public and can
be availed of only by those with informal contacts with the
government agency.
It is clear from the foregoing that the adoption and the
implementation of the DAP and its related issuances were
executive acts.  The DAP itself, as a policy, transcended a merely
1avvphi1
administrative practice especially after the Executive, through the
DBM, implemented it by issuing various memoranda and
circulars. The pooling of savings pursuant to the DAP from the
allotments made available to the different agencies and
departments was consistently applied throughout the entire
Executive. With the Executive, through the DBM, being in charge
of the third phase of the budget cycle – the budget execution
phase, the President could legitimately adopt a policy like the
DAP by virtue of his primary responsibility as the Chief Executive
of directing the national economy towards growth and
development. This is simply because savings could and should
be determined only during the budget execution phase.
As already mentioned, the implementation of the DAP resulted
into the use of savings pooled by the Executive to finance the
PAPs that were not covered in the GAA, or that did not have
proper appropriation covers, as well as to augment items
pertaining to other departments of the Government in clear
violation of the Constitution. To declare the implementation of the
DAP unconstitutional without recognizing that its prior
implementation constituted an operative fact that produced
consequences in the real as well as juristic worlds of the
Government and the Nation is to be impractical and unfair.
Unless the doctrine is held to apply, the Executive as the
disburser and the offices under it and elsewhere as the recipients
could be required to undo everything that they had implemented
in good faith under the DAP. That scenario would be enormously
burdensome for the Government. Equity alleviates such burden.
The other side of the coin is that it has been adequately shown as
to be beyond debate that the implementation of the DAP yielded
undeniably positive results that enhanced the economic welfare
of the country. To count the positive results may be impossible,
but the visible ones, like public infrastructure, could easily include
roads, bridges, homes for the homeless, hospitals, classrooms
and the like. Not to apply the doctrine of operative fact to the DAP
could literally cause the physical undoing of such worthy results
by destruction, and would result in most undesirable
wastefulness.
Nonetheless, as Justice Brion has pointed out during the
deliberations, the doctrine of operative fact does not always
apply, and is not always the consequence of every declaration of
constitutional invalidity. It can be invoked only in situations where
the nullification of the effects of what used to be a valid law would
result in inequity and injustice; but where no such result would
212
ensue, the general rule that an unconstitutional law is totally
ineffective should apply.
In that context, as Justice Brion has clarified, the doctrine of
operative fact can apply only to the PAPs that can no longer be
undone, and whose beneficiaries relied in good faith on the
validity of the DAP, but cannot apply to the authors, proponents
and implementors of the DAP, unless there are concrete findings
of good faith in their favor by the proper tribunals determining
their criminal, civil, administrative and other liabilities.
WHEREFORE, the Court PARTIALLY GRANTS the petitions for
certiorari and prohibition; and DECLARES the following acts and
practices under the Disbursement Acceleration Program, National
Budget Circular No. 541 and related executive issuances
UNCONSTITUTIONAL for being in violation of Section 25(5),
Article VI of the 1987 Constitution and the doctrine of separation
of powers, namely:
(a) The withdrawal of unobligated allotments from the
implementing agencies, and the declaration of the
withdrawn unobligated allotments and unreleased
appropriations as savings prior to the end of the fiscal
year and without complying with the statutory definition of
savings contained in the General Appropriations Acts;
(b) The cross-border transfers of the savings of the
Executive to augment the appropriations of other offices
outside the Executive; and
(c) The funding of projects, activities and programs that
were not covered by any appropriation in the General
Appropriations Act.
The Court further DECLARES VOID the use of unprogrammed
funds despite the absence of a certification by the National
Treasurer that the revenue collections exceeded the revenue
targets for non-compliance with the conditions provided in the
relevant General Appropriations Acts.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
See Dissenting Opinion I join the Concurring and
 CERTIFICATION
Dissenting Opinion of J.
Del Castillo I certify that the conclusions in the above Decision had been
ANTONIO T. CARPIO
PRESBITERO J. reached in consultation before the cases were assigned to the
Associate Justice
VELASCO, JR. writer of the opinion of the court.
Associate Justice
MARIA LOURDES P. A. SERENO
No part: Chief Justice
TERSITA J. See: Separate Opinion
LEONARDO-DE ARTURO D. BRION
CASTRO Associate Justice
Associate Justice

Pls. see separate
concurring and
DIOSDADO M.
dissenting opinion
PERALTA
MARIANO C. DEL
Associate Justice
CASTILLO
Associate Justice

MARTIN S. JOSE PORTUGAL

VILLARAMA, JR. PEREZ
Associate Justice Associate Justice

JOSE CATRAL
BIENVENIDO L. REYES
MENDOZA
Associate Justice
Associate Justice

Pls. see Separate See separate concurring

Concurring Opinion opinion
ESTELA M. PERLAS- MARVIC MARIO
BERNABE VICTOR F. LEONEN
Associate Justice Associate Justice