G.R. No.
183591             October 14, 2008 The signing of the MOA-AD between the GRP and the MILF was not to materialize,
THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR
JESUS SACDALAN and/or VICE-GOVERNOR EMMANUEL PIÑOL, for and in
his own behalf, petitioners,  Order enjoining the GRP from signing the same.
vs.
THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE
PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO
GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA,
MARK RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the
latter in his capacity as the present and duly-appointed Presidential Adviser on the
Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the
Peace Process, respondents.
DECISION
CARPIO MORALES, J.:
Subject of these consolidated cases is the extent of the powers of the President in
pursuing the peace process.While the facts surrounding this controversy center on the
armed conflict in Mindanao between the government and the Moro Islamic Liberation
Front (MILF), the legal issue involved has a bearing on all areas in the country where
there has been a long-standing armed conflict. Yet again, the Court is tasked to perform
a delicate balancing act. It must uncompromisingly delineate the bounds within which
the President may lawfully exercise her discretion, but it must do so in strict adherence
to the Constitution, lest its ruling unduly restricts the freedom of action vested by that
same Constitution in the Chief Executive precisely to enable her to pursue the peace
process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS
On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the
MILF, through the Chairpersons of their respective peace negotiating panels, were
scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD)
Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 in Kuala Lumpur,
Malaysia.
The MILF is a rebel group which was established in March 1984 when, under the
leadership of the late Salamat Hashim, it splintered from the Moro National Liberation
Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what
Salamat perceived to be the manipulation of the MNLF away from an Islamic basis
towards Marxist-Maoist orientations.1
however, for upon motion of petitioners, specifically those who filed their cases before
the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining
The MOA-AD was preceded by a long process of negotiation and the concluding of
several prior agreements between the two parties beginning in 1996, when the GRP-
MILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels
signed the Agreement on General Cessation of Hostilities. The following year, they
signed the General Framework of Agreement of Intent on August 27, 1998.
The Solicitor General, who represents respondents, summarizes the MOA-AD by stating
that the same contained, among others, the commitment of the parties to pursue peace
negotiations, protect and respect human rights, negotiate with sincerity in the resolution
and pacific settlement of the conflict, and refrain from the use of threat or force to attain
undue advantage while the peace negotiations on the substantive agenda are on-going.2
Early on, however, it was evident that there was not going to be any smooth sailing in
the GRP-MILF peace process. Towards the end of 1999 up to early 2000, the MILF
attacked a number of municipalities in Central Mindanao and, in March 2000, it took
control of the town hall of Kauswagan, Lanao del Norte.3 In response, then President
Joseph Estrada declared and carried out an "all-out-war" against the MILF.
When President Gloria Macapagal-Arroyo assumed office, the military offensive against
the MILF was suspended and the government sought a resumption of the peace talks.
The MILF, according to a leading MILF member, initially responded with deep
reservation, but when President Arroyo asked the Government of Malaysia through
Prime Minister Mahathir Mohammad to help convince the MILF to return to the
negotiating table, the MILF convened its Central Committee to seriously discuss the
matter and, eventually, decided to meet with the GRP.4
The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by
the Malaysian government, the parties signing on the same date the Agreement on the
General Framework for the Resumption of Peace Talks Between the GRP and the
MILF. The MILF thereafter suspended all its military actions.5
Formal peace talks between the parties were held in Tripoli, Libya from June 20-22,
2001, the outcome of which was the GRP-MILF Tripoli Agreement on Peace (Tripoli
Agreement 2001) containing the basic principles and agenda on the following aspects of
the negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral
Domain Aspect. With regard to the Ancestral Domain Aspect, the parties in Tripoli
Agreement 2001 simply agreed "that the same be discussed further by the Parties in their
next meeting."
A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001
which ended with the signing of the Implementing Guidelines on the Security Aspect of
the Tripoli Agreement 2001 leading to a ceasefire status between the parties. This was
followed by the Implementing Guidelines on the Humanitarian Rehabilitation and
Development Aspects of the Tripoli Agreement 2001, which was signed on May 7, 2002
at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between
government forces and the MILF from 2002 to 2003.
Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he
was replaced by Al Haj Murad, who was then the chief peace negotiator of the MILF.
Murad's position as chief peace negotiator was taken over by Mohagher Iqbal.6
In 2005, several exploratory talks were held between the parties in Kuala Lumpur,
eventually leading to the crafting of the draft MOA-AD in its final form, which, as
mentioned, was set to be signed last August 5, 2008.
II. STATEMENT OF THE PROCEEDINGS
Before the Court is what is perhaps the most contentious "consensus" ever embodied in
an instrument - the MOA-AD which is assailed principally by the present petitions
bearing docket numbers 183591, 183752, 183893, 183951 and 183962.
Commonly impleaded as respondents are the GRP Peace Panel on Ancestral
Domain7 and the Presidential Adviser on the Peace Process (PAPP) Hermogenes
Esperon, Jr.
On July 23, 2008, the Province of North Cotabato8 and Vice-Governor Emmanuel Piñol
filed a petition, docketed as G.R. No. 183591, for Mandamus and Prohibition with
Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining
Order.9 Invoking the right to information on matters of public concern, petitioners seek
to compel respondents to disclose and furnish them the complete and official copies of
the MOA-AD including its attachments, and to prohibit the slated signing of the MOA-
AD, pending the disclosure of the contents of the MOA-AD and the holding of a public
consultation thereon. Supplementarily, petitioners pray that the MOA-AD be declared
unconstitutional.10
This initial petition was followed by another one, docketed as G.R. No. 183752, also for
Mandamus and Prohibition11 filed by the City of Zamboanga,12 Mayor Celso Lobregat,
Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar
injunctive reliefs. Petitioners herein moreover pray that the City of Zamboanga be
excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical Entity and, in
the alternative, that the MOA-AD be declared null and void.
By Resolution of August 4, 2008, the Court issued a Temporary Restraining
Order commanding and directing public respondents and their agents to cease and desist
from formally signing the MOA-AD.13 The Court also required the Solicitor General to
submit to the Court and petitioners the official copy of the final draft of the MOA-
AD,14 to which she complied.15
Meanwhile, the City of Iligan16 filed a petition for Injunction and/or Declaratory Relief,
docketed as G.R. No. 183893, praying that respondents be enjoined from signing the
MOA-AD or, if the same had already been signed, from implementing the same, and
that the MOA-AD be declared unconstitutional. Petitioners herein additionally implead
Executive Secretary Eduardo Ermita as respondent.
The Province of Zamboanga del Norte,17 Governor Rolando Yebes, Vice-Governor
Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep. Cesar Jalosjos, and the members18 of
the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a
petition for Certiorari, Mandamus and Prohibition,19 docketed as G.R. No. 183951. They
pray, inter alia, that the MOA-AD be declared null and void and without operative
effect, and that respondents be enjoined from executing the MOA-AD.
On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a
petition for Prohibition,20docketed as G.R. No. 183962, praying for a judgment
prohibiting and permanently enjoining respondents from formally signing and executing
the MOA-AD and or any other agreement derived therefrom or similar thereto, and
nullifying the MOA-AD for being unconstitutional and illegal. Petitioners
herein additionally implead as respondent the MILF Peace Negotiating Panel
represented by its Chairman Mohagher Iqbal.
Various parties moved to intervene and were granted leave of court to file their
petitions-/comments-in-intervention. Petitioners-in-Intervention include Senator Manuel
A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of
Isabela21 and Mayor Cherrylyn Santos-Akbar, the Province of Sultan Kudarat22 and Gov.
Suharto Mangudadatu, the Municipality of Linamon in Lanao del Norte,23 Ruy Elias
Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member
Marino Ridao and businessman Kisin Buxani, both of Cotabato City; and lawyers Carlo
Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan
City. The Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-
Sectoral Movement for Peace and Development (MMMPD) filed their respective
Comments-in-Intervention.
By subsequent Resolutions, the Court ordered the consolidation of the petitions.
Respondents filed Comments on the petitions, while some of petitioners submitted their
respective Replies.
Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive
Department shall thoroughly review the MOA-AD and pursue further negotiations to
address the issues hurled against it, and thus moved to dismiss the cases. In the
succeeding exchange of pleadings, respondents' motion was met with vigorous
opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the
following principal issues:
1. Whether the petitions have become moot and academic
(i) insofar as the mandamus aspect is concerned, in view of the
disclosure of official copies of the final draft of the Memorandum of
Agreement (MOA); and
(ii) insofar as the prohibition aspect involving the Local Government
Units is concerned, if it is considered that consultation has become fait
accompli with the finalization of the draft;
2. Whether the constitutionality and the legality of the MOA is ripe for
adjudication;
3. Whether respondent Government of the Republic of the Philippines Peace
Panel committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it negotiated and initiated the MOA vis-à-vis ISSUES Nos. 4
and 5;
4. Whether there is a violation of the people's right to information on matters of
public concern (1987 Constitution, Article III, Sec. 7) under a state policy of full
disclosure of all its transactions involving public interest (1987 Constitution,
Article II, Sec. 28) including public consultation under Republic Act No. 7160
(LOCAL GOVERNMENT CODE OF 1991)[;]
If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules
of Civil Procedure is an appropriate remedy;
5. Whether by signing the MOA, the Government of the Republic of the
Philippines would be BINDING itself
a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a
separate state, or a juridical, territorial or political subdivision not
recognized by law;
b) to revise or amend the Constitution and existing laws to conform to
the MOA;
c) to concede to or recognize the claim of the Moro Islamic Liberation
Front for ancestral domain in violation of Republic Act No. 8371 (THE
INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly
Section 3(g) & Chapter VII (DELINEATION, RECOGNITION OF
ANCESTRAL DOMAINS)[;]
If in the affirmative, whether the Executive Branch has the authority to so bind
the Government of the Republic of the Philippines;
6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of
Zamboanga, Iligan and Isabela, and the Municipality of Linamon, Lanao del
Norte in/from the areas covered by the projected Bangsamoro Homeland is a
justiciable question; and
7. Whether desistance from signing the MOA derogates any prior valid
commitments of the Government of the Republic of the Philippines.24
The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of
the parties submitted their memoranda on time.
III. OVERVIEW OF THE MOA-AD
As a necessary backdrop to the consideration of the objections raised in the subject five
petitions and six petitions-in-intervention against the MOA-AD, as well as the two
comments-in-intervention in favor of the MOA-AD, the Court takes an overview of the
MOA.
The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading "Terms of Reference" (TOR), the MOA-AD includes not only four
earlier agreements between the GRP and MILF, but also two agreements between the
GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the
Implementation of the 1976 Tripoli Agreement, signed on September 2, 1996 during the
administration of President Fidel Ramos.
The MOA-AD also identifies as TOR two local statutes - the organic act for the
Autonomous Region in Muslim Mindanao (ARMM)25 and the Indigenous Peoples
Rights Act (IPRA),26 and several international law instruments - the ILO Convention
No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries in relation
to the UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter,
among others.
The MOA-AD includes as a final TOR the generic category of "compact rights
entrenchment emanating from the regime of dar-ul-mua'hada (or
territory under compact) and dar-ul-sulh (or territory under peace agreement) that
partakes the nature of a treaty device."
During the height of the Muslim Empire, early Muslim jurists tended to see the world
through a simple dichotomy: there was the dar-ul-Islam (the Abode of Islam) and dar-
ul-harb (the Abode of War). The first referred to those lands where Islamic laws held
sway, while the second denoted those lands where Muslims were persecuted or where
Muslim laws were outlawed or ineffective.27 This way of viewing the world, however,
became more complex through the centuries as the Islamic world became part of the
international community of nations.
As Muslim States entered into treaties with their neighbors, even with distant States and
inter-governmental organizations, the classical division of the world into dar-ul-
Islam and dar-ul-harb eventually lost its meaning. New terms were drawn up to describe
novel ways of perceiving non-Muslim territories. For instance, areas like dar-ul-
mua'hada (land of compact) and dar-ul-sulh (land of treaty) referred to countries which,
though under a secular regime, maintained peaceful and cooperative relations with
Muslim States, having been bound to each other by treaty or agreement. Dar-ul-
aman (land of order), on the other hand, referred to countries which, though not bound
by treaty with Muslim States, maintained freedom of religion for Muslims.28
It thus appears that the "compact rights entrenchment" emanating from the regime
of dar-ul-mua'hada and dar-ul-sulh simply refers to all other agreements between the
MILF and the Philippine government - the Philippines being the land of compact and
peace agreement - that partake of the nature of a treaty device, "treaty" being broadly
defined as "any solemn agreement in writing that sets out understandings, obligations,
and benefits for both parties which provides for a framework that elaborates the
principles declared in the [MOA-AD]."29
The MOA-AD states that the Parties "HAVE AGREED AND ACKNOWLEDGED AS
FOLLOWS," and starts with its main body.
The main body of the MOA-AD is divided into four strands, namely, Concepts and
Principles, Territory, Resources, and Governance.
A. CONCEPTS AND PRINCIPLES
This strand begins with the statement that it is "the birthright of all Moros and all
Indigenous peoples of Mindanao to identify themselves and be accepted as
‘Bangsamoros.'" It defines "Bangsamoro people" as the natives or original
inhabitants of Mindanao and its adjacent islands including Palawan and the Sulu
archipelago at the time of conquest or colonization, and their descendants whether
mixed or of full blood, including their spouses.30
Thus, the concept of "Bangsamoro," as defined in this strand of the MOA-AD, includes
not only "Moros" as traditionally understood even by Muslims,31 but
all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds that the
freedom of choice of indigenous peoples shall be respected. What this freedom of choice
consists in has not been specifically defined.
The MOA-AD proceeds to refer to the "Bangsamoro homeland," the ownership of
which is vested exclusively in the Bangsamoro people by virtue of their prior rights of
occupation.32 Both parties to the MOA-AD acknowledge that ancestral domain does not
form part of the public domain.33
The Bangsamoro people are acknowledged as having the right to self-governance, which
right is said to be rooted on ancestral territoriality exercised originally under the suzerain
authority of their sultanates and the Pat a Pangampong ku Ranaw. The sultanates were
described as states or "karajaan/kadatuan" resembling a body politic endowed with all
the elements of a nation-state in the modern sense.34
The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on
the past suzerain authority of the sultanates. As gathered, the territory defined as the
Bangsamoro homeland was ruled by several sultanates and, specifically in the case of
the Maranao, by the Pat a Pangampong ku Ranaw, a confederation of independent
principalities (pangampong) each ruled by datus and sultans, none of whom was
supreme over the others.35
The MOA-AD goes on to describe the Bangsamoro people as "the ‘First Nation' with
defined territory and with a system of government having entered into treaties of amity
and commerce with foreign nations."
The term "First Nation" is of Canadian origin referring to the indigenous peoples of
that territory, particularly those known as Indians. In Canada, each of these indigenous
peoples is equally entitled to be called "First Nation," hence, all of them are usually
described collectively by the plural "First Nations."36 To that extent, the MOA-AD, by
identifying the Bangsamoro people as "the First Nation" - suggesting its exclusive
entitlement to that designation - departs from the Canadian usage of the term.
The MOA-AD then mentions for the first time the "Bangsamoro Juridical Entity"
(BJE) to which it grants the authority and jurisdiction over the Ancestral Domain and
Ancestral Lands of the Bangsamoro.37
B. TERRITORY
The territory of the Bangsamoro homeland is described as the land mass as well as the
maritime, terrestrial, fluvial and alluvial domains, including the aerial domain and the
atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region.38
More specifically, the core of the BJE is defined as the present geographic area of the
ARMM - thus constituting the following areas: Lanao del Sur, Maguindanao, Sulu,
Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes certain
municipalities of Lanao del Norte that voted for inclusion in the ARMM in the 2001
plebiscite.39
Outside of this core, the BJE is to cover other provinces, cities, municipalities and
barangays, which are grouped into two categories, Category A and Category B. Each of
these areas is to be subjected to a plebiscite to be held on different dates, years apart
from each other. Thus, Category A areas are to be subjected to a plebiscite not later than
twelve (12) months following the signing of the MOA-AD.40 Category B areas, also
called "Special Intervention Areas," on the other hand, are to be subjected to a plebiscite
twenty-five (25) years from the signing of a separate agreement - the Comprehensive
Compact.41
The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural
resources within its "internalwaters," defined as extending fifteen (15) kilometers from
the coastline of the BJE area;42 that the BJE shall also have "territorial waters," which
shall stretch beyond the BJE internal waters up to the baselines of the Republic of the
Philippines (RP) south east and south west of mainland Mindanao; and that within
these territorial waters, the BJE and the "Central Government" (used interchangeably
with RP) shall exercise joint jurisdiction, authority and management over all natural
resources.43 Notably, the jurisdiction over the internal waters is not similarly described
as "joint."
The MOA-AD further provides for the sharing of minerals on the territorial waters
between the Central Government and the BJE, in favor of the latter, through production
sharing and economic cooperation agreement.44 The activities which the Parties are
allowed to conduct on the territorial waters are enumerated, among which are the
exploration and utilization of natural resources, regulation of shipping and fishing
activities, and the enforcement of police and safety measures.45 There is no similar
provision on the sharing of minerals and allowed activities with respect to
the internal waters of the BJE.
C. RESOURCES
The MOA-AD states that the BJE is free to enter into any economic cooperation and
trade relations with foreign countries and shall have the option to establish trade
missions in those countries. Such relationships and understandings, however, are not to
include aggression against the GRP. The BJE may also enter into environmental
cooperation agreements.46
The external defense of the BJE is to remain the duty and obligation of the Central
Government. The Central Government is also bound to "take necessary steps to ensure
the BJE's participation in international meetings and events" like those of the ASEAN
and the specialized agencies of the UN. The BJE is to be entitled to participate in
Philippine official missions and delegations for the negotiation of border agreements or
protocols for environmental protection and equitable sharing of incomes and revenues
involving the bodies of water adjacent to or between the islands forming part of the
ancestral domain.47
With regard to the right of exploring for, producing, and obtaining all potential sources
of energy, petroleum, fossil fuel, mineral oil and natural gas, the jurisdiction and control
thereon is to be vested in the BJE "as the party having control within its territorial
jurisdiction." This right carries the proviso that, "in times of national emergency, when
public interest so requires," the Central Government may, for a fixed period and under
reasonable terms as may be agreed upon by both Parties, assume or direct the operation
of such resources.48
The sharing between the Central Government and the BJE of total production pertaining
to natural resources is to be 75:25 in favor of the BJE.49
The MOA-AD provides that legitimate grievances of the Bangsamoro people arising
from any unjust dispossession of their territorial and proprietary rights, customary land
tenures, or their marginalization shall be acknowledged. Whenever restoration is no
longer possible, reparation is to be in such form as mutually determined by the Parties.50
The BJE may modify or cancel the forest concessions, timber licenses, contracts or
agreements, mining concessions, Mineral Production and Sharing Agreements (MPSA),
Industrial Forest Management Agreements (IFMA), and other land tenure
instruments granted by the Philippine Government, including those issued by the present
ARMM.51
D. GOVERNANCE
The MOA-AD binds the Parties to invite a multinational third-party to observe and
monitor the implementation of the Comprehensive Compact. This compact is to
embody the "details for the effective enforcement" and "the mechanisms and modalities
for the actual implementation" of the MOA-AD. The MOA-AD explicitly provides that
the participation of the third party shall not in any way affect the status of the
relationship between the Central Government and the BJE.52
The "associative" relationship 
between the Central Government 
and the BJE
The MOA-AD describes the relationship of the Central Government and the BJE as
"associative," characterized by shared authority and responsibility. And it states that the
structure of governance is to be based on executive, legislative, judicial, and
administrative institutions with defined powers and functions in the Comprehensive
Compact.
The MOA-AD provides that its provisions requiring "amendments to the existing legal
framework" shall take effect upon signing of the Comprehensive Compact and upon
effecting the aforesaid amendments, with due regard to the non-derogation of prior
agreements and within the stipulated timeframe to be contained in the Comprehensive
Compact. As will be discussed later, much of the present controversy hangs on the
legality of this provision.
The BJE is granted the power to build, develop and maintain its own institutions
inclusive of civil service, electoral, financial and banking, education, legislation, legal,
economic, police and internal security force, judicial system and correctional
institutions, the details of which shall be discussed in the negotiation of the
comprehensive compact.
As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo
Garcia and Mohagher Iqbal, Chairpersons of the Peace Negotiating Panels of the GRP
and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD
identifies the signatories as "the representatives of the Parties," meaning the GRP and
MILF themselves, and not merely of the negotiating panels.53 In addition, the signature
page of the MOA-AD states that it is "WITNESSED BY" Datuk Othman Bin Abd
Razak, Special Adviser to the Prime Minister of Malaysia, "ENDORSED BY"
Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC)
Secretary General and Special Envoy for Peace Process in Southern Philippines, and
SIGNED "IN THE PRESENCE OF" Dr. Albert G. Romulo, Secretary of Foreign
Affairs of RP and Dato' Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs,
Malaysia, all of whom were scheduled to sign the Agreement last August 5, 2008.
Annexed to the MOA-AD are two documents containing the respective lists cum maps
of the provinces, municipalities, and barangays under Categories A and B earlier
mentioned in the discussion on the strand on TERRITORY.
IV. PROCEDURAL ISSUES
A. RIPENESS
The power of judicial review is limited to actual cases or controversies. 54 Courts decline
to issue advisory opinions or to resolve hypothetical or feigned problems, or mere
academic questions.55 The limitation of the power of judicial review to actual cases and
controversies defines the role assigned to the judiciary in a tripartite allocation of power,
to assure that the courts will not intrude into areas committed to the other branches of
government.56
An actual case or controversy 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. There must be a contrariety of legal rights that can be
interpreted and enforced on the basis of existing law and jurisprudence. 57 The Court can
decide the constitutionality of an act or treaty only when a proper case between
opposing parties is submitted for judicial determination.58
Related to the requirement of an actual case or controversy is the requirement of
ripeness. A question is ripe for adjudication when the act being challenged has had a
direct adverse effect on the individual challenging it.59 For a case to be considered ripe
for adjudication, it is a prerequisite that something had then been accomplished or
performed by either branch before a court may come into the picture, 60 and the petitioner
must allege the existence of an immediate or threatened injury to itself as a result of the
challenged action.61 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.62
The Solicitor General argues that there is no justiciable controversy that is ripe for
judicial review in the present petitions, reasoning that
The unsigned MOA-AD is simply a list of consensus points subject to further
negotiations and legislative enactments as well as constitutional processes aimed
at attaining a final peaceful agreement. Simply put, the MOA-AD remains to be
a proposal that does not automatically create legally demandable rights and
obligations until the list of operative acts required have been duly complied
with. x x x
xxxx
In the cases at bar, it is respectfully submitted that this Honorable Court has no
authority to pass upon issues based on hypothetical or feigned constitutional
problems or interests with no concrete bases. Considering
the preliminary character of the MOA-AD, there are no concrete acts that could
possibly violate petitioners' and intervenors' rights since the acts complained of
are mere contemplated steps toward the formulation of a final peace agreement.
Plainly, petitioners and intervenors' perceived injury, if at all, is merely
imaginary and illusory apart from being unfounded and based on mere
conjectures. (Underscoring supplied)
The Solicitor General cites63 the following provisions of the MOA-AD:
 TERRITORY
xxxx
2. Toward this end, the Parties enter into the following stipulations:
xxxx
d. Without derogating from the requirements of prior agreements, the
Government stipulates to conduct and deliver, using all possible legal measures,
within twelve (12) months following the signing of the MOA-AD, a plebiscite
covering the areas as enumerated in the list and depicted in the map as Category
A attached herein (the "Annex"). The Annex constitutes an integral part of this
framework agreement. Toward this end, the Parties shall endeavor to complete
the negotiations and resolve all outstanding issues on the Comprehensive
Compact within fifteen (15) months from the signing of the MOA-AD.
xxxx
GOVERNANCE
xxxx
7. The Parties agree that mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into force upon the signing of a Comprehensive
Compact and upon effecting the necessary changes to the legal framework with
due regard to non-derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact.64 (Underscoring
supplied)
The Solicitor General's arguments fail to persuade.
Concrete acts under the MOA-AD are not necessary to render the present controversy
ripe. In Pimentel, Jr. v. Aguirre,65 this Court held:
x x x [B]y the mere enactment of the questioned law or the approval of the
challenged action, the dispute is said to have ripened into a judicial controversy
even without any other overt act. Indeed, even a singular violation of the
Constitution and/or the law is enough to awaken judicial duty.
xxxx
By the same token, when an act of the President, who in our constitutional
scheme is a coequal of Congress, is seriously alleged to have infringed the
Constitution and the laws x x x settling the dispute becomes the duty and the
responsibility of the courts.66
In Santa Fe Independent School District v. Doe,67 the United States Supreme Court held
that the challenge to the constitutionality of the school's policy allowing student-led
prayers and speeches before games was ripe for adjudication, even if no public prayer
had yet been led under the policy, because the policy was being challenged as
unconstitutional on its face.68
That the law or act in question is not yet effective does not negate ripeness. For
example, in New York v. United States,69 decided in 1992, the United States Supreme
Court held that the action by the State of New York challenging the provisions of the
Low-Level Radioactive Waste Policy Act was ripe for adjudication even if the
questioned provision was not to take effect until January 1, 1996, because the parties
agreed that New York had to take immediate action to avoid the provision's
consequences.70
The present petitions pray for Certiorari,71 Prohibition, and Mandamus. Certiorari and
Prohibition are remedies granted by law when any tribunal, board or officer has acted, in
the case of certiorari, or is proceeding, in the case of prohibition, without or in excess of
its jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction.72 Mandamus is a remedy granted by law when any tribunal, corporation,
board, officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully
excludes another from the use or enjoyment of a right or office to which such other is
entitled.73 Certiorari, Mandamus and Prohibition are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts of
legislative and executive officials.74
The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O.
No. 3), issued on February 28, 2001.75 The said executive order requires that "[t]he
government's policy framework for peace, including the systematic approach and the
administrative structure for carrying out the comprehensive peace process x x x be
governed by this Executive Order."76
The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the
terms of the MOA-AD without consulting the local government units or communities
affected, nor informing them of the proceedings. As will be discussed in greater detail
later, such omission, by itself, constitutes a departure by respondents from their
mandate under E.O. No. 3.
Furthermore, the petitions allege that the provisions of the MOA-AD violate the
Constitution. The MOA-AD provides that "any provisions of the MOA-AD requiring
amendments to the existing legal framework shall come into force upon the signing of a
Comprehensive Compact and upon effecting the necessary changes to the legal
framework," implying an amendment of the Constitution to accommodate the MOA-
AD. This stipulation, in effect, guaranteed to the MILF the amendment of the
Constitution. Such act constitutes another violation of its authority . Again, these points
will be discussed in more detail later.
As the petitions allege acts or omissions on the part of respondent that exceed their
authority, by violating their duties under E.O. No. 3 and the provisions of the
Constitution and statutes, the petitions make a prima facie case for Certiorari,
Prohibition, and Mandamus, and an actual case or controversy ripe for
adjudication exists. When an act of a branch of government 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.77
B. LOCUS STANDI
For a party to have locus standi, one must allege "such a personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for illumination of
difficult constitutional questions."78
Because constitutional cases are often public actions in which the relief sought is likely
to affect other persons, a preliminary question frequently arises as to this interest in the
constitutional question raised.79
When suing as a citizen, the person complaining must allege 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 or act complained
of.80 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.81
For a taxpayer, one is allowed to sue where there is an assertion that public funds are
illegally disbursed or deflected to an illegal purpose, or that there is a wastage of public
funds through the enforcement of an invalid or unconstitutional law. 82 The Court retains
discretion whether or not to allow a taxpayer's suit.83
In the case of a legislator or member of Congress, an act of the Executive that injures
the institution of Congress causes a derivative but nonetheless substantial injury that can
be questioned by legislators. A member of the House of Representatives has standing to
maintain inviolate the prerogatives, powers and privileges vested by the Constitution in
his office.84
An organization may be granted standing to assert the rights of its members,85 but 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 does not suffice to clothe it with
standing.86
As regards a local government unit (LGU), it can seek relief in order to protect or
vindicate an interest of its own, and of the other LGUs.87
Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy
the requirements of the law authorizing intervention,88 such as a legal interest in the
matter in litigation, or in the success of either of the parties.
In any case, the Court has discretion to relax the procedural technicality on locus standi,
given the liberal attitude it has exercised, highlighted in the case of David v.
Macapagal-Arroyo,89 where technicalities of procedure were brushed aside, the
constitutional issues raised being of paramount public interest or of transcendental
importance deserving the attention of the Court in view of their seriousness, novelty and
weight as precedents.90 The Court's forbearing stance on locus standi on issues involving
constitutional issues has for its purpose the protection of fundamental rights.
In not a few cases, the Court, in keeping with its duty under the Constitution to
determine whether the other branches of government have kept themselves within the
limits of the Constitution and the laws and have not abused the discretion given them,
has brushed aside technical rules of procedure.91
In the petitions at bar, petitioners Province of North Cotabato (G.R. No.
183591) Province of Zamboanga del Norte (G.R. No. 183951), City of Iligan (G.R.
No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-in-
intervention Province of Sultan Kudarat, City of Isabela and Municipality of
Linamon have locus standi in view of the direct and substantial injury that they, as
LGUs, would suffer as their territories, whether in whole or in part, are to be included in
the intended domain of the BJE. These petitioners allege that they did not vote for their
inclusion in the ARMM which would be expanded to form the BJE territory. Petitioners'
legal standing is thus beyond doubt.
In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino
Pimentel III would have no standing as citizens and taxpayers for their failure to
specify that they would be denied some right or privilege or there would be wastage of
public funds. The fact that they are a former Senator, an incumbent mayor of Makati
City, and a resident of Cagayan de Oro, respectively, is of no consequence. Considering
their invocation of the transcendental importance of the issues at hand, however, the
Court grants them standing.
Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers,
assert that government funds would be expended for the conduct of an illegal and
unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can
be given legal standing. Their allegation that the issues involved in these petitions are of
"undeniable transcendental importance" clothes them with added basis for their
personality to intervene in these petitions.
With regard to Senator Manuel Roxas, his standing is premised on his being a member
of the Senate and a citizen to enforce compliance by respondents of the public's
constitutional right to be informed of the MOA-AD, as well as on a genuine legal
interest in the matter in litigation, or in the success or failure of either of the parties. He
thus possesses the requisite standing as an intervenor.
With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district
of Davao City, a taxpayer and a member of the Bagobo tribe; Carlo B. Gomez, et al., as
members of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as
taxpayer, resident and member of the Sangguniang Panlungsod of Cotabato City;
and Kisin Buxani, as taxpayer, they failed to allege any proper legal interest in the
present petitions. Just the same, the Court exercises its discretion to relax the procedural
technicality on locus standi given the paramount public interest in the issues at hand.
Intervening respondents Muslim Multi-Sectoral Movement for Peace and
Development, an advocacy group for justice and the attainment of peace and prosperity
in Muslim Mindanao; and Muslim Legal Assistance Foundation Inc., a non-
government organization of Muslim lawyers, allege that they stand to be benefited or
prejudiced, as the case may be, in the resolution of the petitions concerning the MOA-
AD, and prays for the denial of the petitions on the grounds therein stated. Such legal
interest suffices to clothe them with standing.
B. MOOTNESS
Respondents insist that the present petitions have been rendered moot with the
satisfaction of all the reliefs prayed for by petitioners and the subsequent pronouncement
of the Executive Secretary that "[n]o matter what the Supreme Court ultimately
decides[,] the government will not sign the MOA."92
In lending credence to this policy decision, the Solicitor General points out that the
President had already disbanded the GRP Peace Panel.93
In David v. Macapagal-Arroyo,94 this Court held that the "moot and academic" principle
not being a magical formula that automatically dissuades courts in resolving a case, it
will decide cases, otherwise moot and academic, if it finds that (a) there is a grave
violation of the Constitution;95 (b) the situation is of exceptional character and
paramount public interest is involved;96 (c) the constitutional issue raised requires
formulation of controlling principles to guide the bench, the bar, and the public;97 and
(d) the case is capable of repetition yet evading review.98
Another exclusionary circumstance that may be considered is where there is
a voluntary cessation of the activity complained of by the defendant or doer. Thus, once
a suit is filed and the doer voluntarily ceases the challenged conduct, it does not
automatically deprive the tribunal of power to hear and determine the case and does not
render the case moot especially when the plaintiff seeks damages or prays for injunctive
relief against the possible recurrence of the violation.99
The present petitions fall squarely into these exceptions to thus thrust them into the
domain of judicial review. The grounds cited above in David are just as applicable in the
present cases as they were, not only in David, but also in Province of Batangas v.
Romulo100 and Manalo v. Calderon101 where the Court similarly decided them on the
merits, supervening events that would ordinarily have rendered the same moot
notwithstanding.
Petitions not mooted
Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and
the eventual dissolution of the GRP Peace Panel did not moot the present petitions. It
bears emphasis that the signing of the MOA-AD did not push through due to the Court's
issuance of a Temporary Restraining Order.
Contrary too to respondents' position, the MOA-AD cannot be considered a mere "list of
consensus points," especially given its nomenclature, the need to have it signed or
initialed by all the parties concerned on August 5, 2008, and the far-reaching
Constitutional implications of these "consensus points," foremost of which is the
creation of the BJE.
In fact, as what will, in the main, be discussed, there is a commitment on the part of
respondents to amend and effect necessary changes to the existing legal framework
for certain provisions of the MOA-AD to take effect. Consequently, the present
petitions are not confined to the terms and provisions of the MOA-AD, but to other  on-
going and future negotiations and agreements necessary for its realization. The petitions
have not, therefore, been rendered moot and academic simply by the public disclosure of
the MOA-AD,102 the manifestation that it will not be signed as well as the disbanding of
the GRP Panel not withstanding.
Petitions are imbued with paramount public interest
There is no gainsaying that the petitions are imbued with paramount public interest,
involving a significant part of the country's territory and the wide-ranging political
modifications of affected LGUs. The assertion that the MOA-AD is subject to further
legal enactments including possible Constitutional amendments more than ever
provides impetus for the Court to formulate controlling principles to guide the
bench, the bar, the public and, in this case, the government and its negotiating
entity.
Respondents cite Suplico v. NEDA, et al.103 where the Court did not "pontificat[e] on
issues which no longer legitimately constitute an actual case or controversy [as this] will
do more harm than good to the nation as a whole."
The present petitions must be differentiated from Suplico. Primarily, in Suplico, what
was assailed and eventually cancelled was a stand-alone government procurement
contract for a national broadband network involving a one-time contractual
relation between two parties-the government and a private foreign corporation. As the
issues therein involved specific government procurement policies and standard
principles on contracts, the majority opinion in Suplico found nothing exceptional
therein, the factual circumstances being peculiar only to the transactions and parties
involved in the controversy.
The MOA-AD is part of a series of agreements
In the present controversy, the MOA-AD is a significant part of a series of
agreements necessary to carry out the Tripoli Agreement 2001. The MOA-AD which
dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the third such
component to be undertaken following the implementation of the Security Aspect in
August 2001 and the Humanitarian, Rehabilitation and Development Aspect in May
2002.
Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008
to the Solicitor General, has stated that "no matter what the Supreme Court ultimately
decides[,] the government will not sign the MOA[-AD]," mootness will not set in in
light of the terms of the Tripoli Agreement 2001.
Need to formulate principles-guidelines
Surely, the present MOA-AD can be renegotiated or another one will be drawn up to
carry out the Ancestral Domain Aspect of the Tripoli Agreement 2001, in another or
in any form, which could contain similar or significantly drastic provisions. While the
Court notes the word of the Executive Secretary that the government "is committed to
securing an agreement that is both constitutional and equitable because that is the only
way that long-lasting peace can be assured," it is minded to render a decision on the
merits in the present petitions to formulate controlling principles to guide the bench,
the bar, the public and, most especially, the government in negotiating with the
MILF regarding Ancestral Domain.
Respondents invite the Court's attention to the separate opinion of then Chief Justice
Artemio Panganiban in Sanlakas v. Reyes104 in which he stated that the doctrine of
"capable of repetition yet evading review" can override mootness, "provided the party
raising it in a proper case has been and/or continue to be prejudiced or damaged as a
direct result of their issuance." They contend that the Court must have jurisdiction over
the subject matter for the doctrine to be invoked.
The present petitions all contain prayers for Prohibition over which this Court exercises
original jurisdiction. While G.R. No. 183893 (City of Iligan v. GRP) is a petition for
Injunction and Declaratory Relief, the Court will treat it as one for Prohibition as it has
far reaching implications and raises questions that need to be resolved. 105 At all events,
the Court has jurisdiction over most if not the rest of the petitions.
Indeed, the present petitions afford a proper venue for the Court to again apply the
doctrine immediately referred to as what it had done in a number of landmark
cases.106 There is a reasonable expectation that petitioners, particularly the Provinces of
North Cotabato, Zamboanga del Norte and Sultan Kudarat, the Cities of Zamboanga,
Iligan and Isabela, and the Municipality of Linamon, will again be subjected to the same
problem in the future as respondents' actions are capable of repetition, in another or any
form.
It is with respect to the prayers for Mandamus that the petitions have become moot,
respondents having, by Compliance of August 7, 2008, provided this Court and
petitioners with official copies of the final draft of the MOA-AD and its annexes. Too,
intervenors have been furnished, or have procured for themselves, copies of the MOA-
AD.
V. SUBSTANTIVE ISSUES
As culled from the Petitions and Petitions-in-Intervention, there are basically two
SUBSTANTIVE issues to be resolved, one relating to the manner in which the MOA-
AD was negotiated and finalized, the other relating to its provisions, viz:
1. Did respondents violate constitutional and statutory provisions on public consultation
and the right to information when they negotiated and later initialed the MOA-AD?
2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE
Petitioners invoke their constitutional right to information on matters of public
concern, as provided in Section 7, Article III on the Bill of Rights:
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.107
As early as 1948, in Subido v. Ozaeta,108 the Court has recognized the statutory right to
examine and inspect public records, a right which was eventually accorded
constitutional status.
The right of access to public documents, as enshrined in both the 1973 Constitution and
the 1987 Constitution, has been recognized as a self-executory constitutional right.109
In the 1976 case of Baldoza v. Hon. Judge Dimaano,110 the Court ruled that access to
public records is predicated on the right of the people to acquire information on matters
of public concern since, undoubtedly, in a democracy, the pubic has a legitimate interest
in matters of social and political significance.
x x x The incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy. There can be no
realistic perception by the public of the nation's problems, nor a meaningful democratic
decision-making if they are denied access to information of general interest. Information
is needed to enable the members of society to cope with the exigencies of the times. As
has been aptly observed: "Maintaining the flow of such information depends on
protection for both its acquisition and its dissemination since, if either process is
interrupted, the flow inevitably ceases." x x x111
In the same way that free discussion enables members of society to cope with the
exigencies of their time, access to information of general interest aids the people in
democratic decision-making by giving them a better perspective of the vital issues
confronting the nation112 so that they may be able to criticize and participate in the
affairs of the government in a responsible, reasonable and effective manner. It is by
ensuring an unfettered and uninhibited exchange of ideas among a well-informed public
that a government remains responsive to the changes desired by the people. 113
The MOA-AD is a matter of public concern
That the subject of the information sought in the present cases is a matter of public
concern114 faces no serious challenge. In fact, respondents admit that the MOA-AD is
indeed of public concern.115 In previous cases, the Court found that the regularity of real
estate transactions entered in the Register of Deeds,116 the need for adequate notice to the
public of the various laws,117 the civil service eligibility of a public employee,118 the
proper management of GSIS funds allegedly used to grant loans to public officials,119 the
recovery of the Marcoses' alleged ill-gotten wealth,120 and the identity of party-list
nominees,121 among others, are matters of public concern. Undoubtedly, the MOA-AD
subject of the present cases is of public concern, involving as it does the sovereignty
and territorial integrity of the State, which directly affects the lives of the public at
large.
Matters of public concern covered by the right to information include steps and
negotiations leading to the consummation of the contract. In not distinguishing as to the
executory nature or commercial character of agreements, the Court has categorically
ruled:
x x x [T]he right to information "contemplates inclusion of negotiations
leading to the consummation of the transaction." Certainly, a consummated
contract is not a requirement for the exercise of the right to information.
Otherwise, the people can never exercise the right if no contract is
consummated, and if one is consummated, it may be too late for the public to
expose its defects.
Requiring a consummated contract will keep the public in the dark until the
contract, which may be grossly disadvantageous to the government or even
illegal, becomes fait accompli. This negates the State policy of full transparency
on matters of public concern, a situation which the framers of the Constitution
could not have intended. Such a requirement will prevent the citizenry from
participating in the public discussion of any proposed contract, effectively
truncating a basic right enshrined in the Bill of Rights. We can allow neither an
emasculation of a constitutional right, nor a retreat by the State of its avowed
"policy of full disclosure of all its transactions involving public
interest."122 (Emphasis and italics in the original)
Intended as a "splendid symmetry"123 to the right to information under the Bill of Rights
is the policy of public disclosure under Section 28, Article II of the Constitution reading:
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.124
The policy of full public disclosure enunciated in above-quoted Section
28 complements the right of access to information on matters of public concern found in
the Bill of Rights. The right to information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of officialdom to give information
even if nobody demands.125
The policy of public disclosure establishes a concrete ethical principle for the conduct of
public affairs in a genuinely open democracy, with the people's right to know as the
centerpiece. It is a mandate of the State to be accountable by following such
policy.126 These provisions are vital to the exercise of the freedom of expression and
essential to hold public officials at all times accountable to the people.127
Whether Section 28 is self-executory, the records of the deliberations of the
Constitutional Commission so disclose:
MR. SUAREZ. And since this is not self-executory, this policy will not be
enunciated or will not be in force and effect until after Congress shall have
provided it.
MR. OPLE. I expect it to influence the climate of public ethics immediately but,
of course, the implementing law will have to be enacted by Congress, Mr.
Presiding Officer.128
The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on
the issue, is enlightening.
MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding
Officer, did I get the Gentleman correctly as having said that this is not a self-
executing provision? It would require a legislation by Congress to implement?
MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an
amendment from Commissioner Regalado, so that the safeguards on national
interest are modified by the clause "as may be provided by law"
MR. DAVIDE. But as worded, does it not mean that this will immediately
take effect and Congress may provide for reasonable safeguards on the sole
ground national interest?
MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it
should immediately influence the climate of the conduct of public
affairs but, of course, Congress here may no longer pass a law revoking it, or if
this is approved, revoking this principle, which is inconsistent with this
policy.129 (Emphasis supplied)
Indubitably, the effectivity of the policy of public disclosure need not await the
passing of a statute. As Congress cannot revoke this principle, it is merely directed to
provide for "reasonable safeguards." The complete and effective exercise of the right to
information necessitates that its complementary provision on public disclosure derive
the same self-executory nature. Since both provisions go hand-in-hand, it is absurd to
say that the broader130 right to information on matters of public concern is already
enforceable while the correlative duty of the State to disclose its transactions involving
public interest is not enforceable until there is an enabling law. Respondents cannot thus
point to the absence of an implementing legislation as an excuse in not effecting such
policy.
An essential element of these freedoms is to keep open a continuing dialogue or process
of communication between the government and the people. It is in the interest of the
State that the channels for free political discussion be maintained to the end that the
government may perceive and be responsive to the people's will. 131Envisioned to
be corollary to the twin rights to information and disclosure is the design for feedback
mechanisms.
MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people
be able to participate? Will the government provide feedback mechanisms
so that the people can participate and can react where the existing media
facilities are not able to provide full feedback mechanisms to the
government? I suppose this will be part of the government implementing
operational mechanisms.
MR. OPLE. Yes. I think through their elected representatives and that is how
these courses take place. There is a message and a feedback, both ways.
xxxx
MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last
sentence?
I think when we talk about the feedback network, we are not talking about
public officials but also network of private business o[r] community-based
organizations that will be reacting. As a matter of fact, we will put more
credence or credibility on the private network of volunteers and voluntary
community-based organizations. So I do not think we are afraid that there will
be another OMA in the making.132(Emphasis supplied)
The imperative of a public consultation, as a species of the right to information, is
evident in the "marching orders" to respondents. The mechanics for the duty to disclose
information and to conduct public consultation regarding the peace agenda and process
is manifestly provided by E.O. No. 3.133 The preambulatory clause of E.O. No. 3
declares that there is a need to further enhance the contribution of civil society to the
comprehensive peace process by institutionalizing the people's participation.
One of the three underlying principles of the comprehensive peace process is that it
"should be community-based, reflecting the sentiments, values and principles important
to all Filipinos" and "shall be defined not by the government alone, nor by the different
contending groups only, but by all Filipinos as one community."134 Included as a
component of the comprehensive peace process is consensus-building and
empowerment for peace, which includes "continuing consultations on both national and
local levels to build consensus for a peace agenda and process, and the mobilization and
facilitation of people's participation in the peace process."135
Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate
"continuing" consultations, contrary to respondents' position that plebiscite is
"more than sufficient consultation."136
Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of
which is to "[c]onduct regular dialogues with the National Peace Forum (NPF) and other
peace partners to seek relevant information, comments, recommendations as well as to
render appropriate and timely reports on the progress of the comprehensive peace
process."137 E.O. No. 3 mandates the establishment of the NPF to be "the principal
forum for the PAPP to consult with and seek advi[c]e from the peace advocates, peace
partners and concerned sectors of society on both national and local levels, on the
implementation of the comprehensive peace process, as well as for government[-]civil
society dialogue and consensus-building on peace agenda and initiatives."138
In fine, E.O. No. 3 establishes petitioners' right to be consulted on the peace
agenda, as a corollary to the constitutional right to information and disclosure.
PAPP Esperon committed grave abuse of discretion
The PAPP committed grave abuse of discretion  when he failed to carry out the
pertinent consultation. The furtive process by which the MOA-AD was designed and
crafted runs contrary to and in excess of the legal authority , and amounts to a
whimsical, capricious, oppressive, arbitrary and despotic exercise thereof.
The Court may not, of course, require the PAPP to conduct the consultation in a
particular way or manner. It may, however, require him to comply with the law and
discharge the functions within the authority granted by the President.139
Petitioners are not claiming a seat at the negotiating table, contrary to respondents' retort
in justifying the denial of petitioners' right to be consulted. Respondents' stance
manifests the manner by which they treat the salient provisions of E.O. No. 3 on
people's participation. Such disregard of the express mandate of the President is not
much different from superficial conduct toward token provisos that border on classic lip
service.140 It illustrates a gross evasion of positive duty and a virtual refusal to perform
the duty enjoined.
As for respondents' invocation of the doctrine of executive privilege, it is not tenable
under the premises. The argument defies sound reason when contrasted with E.O. No.
3's explicit provisions on continuing consultation and dialogue on both national and
local levels. The executive order even recognizes the exercise of the public's
right even before the GRP makes its official recommendations or before the
government proffers its definite propositions.141 It bear emphasis that E.O. No. 3 seeks to
elicit relevant advice, information, comments and recommendations from the people
through dialogue.
AT ALL EVENTS, respondents effectively waived the defense of executive privilege in
view of their unqualified disclosure of the official copies of the final draft of the MOA-
AD. By unconditionally complying with the Court's August 4, 2008 Resolution, without
a prayer for the document's disclosure in camera, or without a manifestation that it was
complying therewith ex abundante ad cautelam.
Petitioners' assertion that the Local Government Code (LGC) of 1991 declares it a State
policy to "require all national agencies and offices to conduct periodic consultations
with appropriate local government units, non-governmental and people's organizations,
and other concerned sectors of the community before any project or program is
implemented in their respective jurisdictions"142 is well-taken. The LGC chapter on
intergovernmental relations puts flesh into this avowed policy:
Prior Consultations Required. - No project or program shall be implemented by
government authorities unlessthe consultations mentioned in Sections 2 (c) and
26 hereof are complied with, and prior approval of the sanggunian concerned is
obtained: Provided, That occupants in areas where such projects are to be
implemented shall not be evicted unless appropriate relocation sites have been
provided, in accordance with the provisions of the Constitution.143 (Italics and
underscoring supplied)
In Lina, Jr. v. Hon. Paño,144 the Court held that the above-stated policy and above-
quoted provision of the LGU apply only to national programs or projects which are to be
implemented in a particular local community. Among the programs and projects covered
are those that are critical to the environment and human ecology including those that
may call for the eviction of a particular group of people residing in the locality where
these will be implemented.145 The MOA-AD is one peculiar program that
unequivocally and unilaterally vests ownership of a vast territory to the
Bangsamoro people,146 which could pervasively and drastically result to the
diaspora or displacement of a great number of inhabitants from their total
environment.
With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs),
whose interests are represented herein by petitioner Lopez and are adversely affected by
the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all
levels of decision-making in matters which may affect their rights, lives and
destinies.147 The MOA-AD, an instrument recognizing ancestral domain, failed to justify
its non-compliance with the clear-cut mechanisms ordained in said Act, 148 which entails,
among other things, the observance of the free and prior informed consent of the
ICCs/IPs.
Notably, the IPRA does not grant the Executive Department or any government agency
the power to delineate and recognize an ancestral domain claim by mere agreement or
compromise. The recognition of the ancestral domain is the raison d'etre of the MOA-
AD, without which all other stipulations or "consensus points" necessarily must fail. In
proceeding to make a sweeping declaration on ancestral domain, without complying
with the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly
transcended the boundaries of their authority. As it seems, even the heart of the
MOA-AD is still subject to necessary changes to the legal framework. While paragraph
7 on Governance suspends the effectivity of all provisions requiring changes to the legal
framework, such clause is itself invalid, as will be discussed in the following section.
Indeed, ours is an open society, with all the acts of the government subject to public
scrutiny and available always to public cognizance. This has to be so if the country is to
remain democratic, with sovereignty residing in the people and all government authority
emanating from them.149
ON THE SECOND SUBSTANTIVE ISSUE
With regard to the provisions of the MOA-AD, there can be no question that they cannot
all be accommodated under the present Constitution and laws. Respondents have
admitted as much in the oral arguments before this Court, and the MOA-AD itself
recognizes the need to amend the existing legal framework to render effective at least
some of its provisions. Respondents, nonetheless, counter that the MOA-AD is free of
any legal infirmity because any provisions therein which are inconsistent with the
present legal framework will not be effective until the necessary changes to that
framework are made. The validity of this argument will be considered later. For now,
the Court shall pass upon how
The MOA-AD is inconsistent with the Constitution and laws as presently worded.
In general, the objections against the MOA-AD center on the extent of the powers
conceded therein to the BJE. Petitioners assert that the powers granted to the BJE exceed
those granted to any local government under present laws, and even go beyond those of
the present ARMM. Before assessing some of the specific powers that would have been
vested in the BJE, however, it would be useful to turn first to a general idea that serves
as a unifying link to the different provisions of the MOA-AD, namely, the international
law concept of association. Significantly, the MOA-AD explicitly alludes to this
concept, indicating that the Parties actually framed its provisions with it in mind.
Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on
RESOURCES, and paragraph 4 on GOVERNANCE. It is in the last mentioned
provision, however, that the MOA-AD most clearly uses it to describe the envisioned
relationship between the BJE and the Central Government.
4. The relationship between the Central Government and the Bangsamoro
juridical entity shall be associative characterized by shared authority and
responsibility with a structure of governance based on executive, legislative,
judicial and administrative institutions with defined powers and functions in the
comprehensive compact. A period of transition shall be established in a
comprehensive peace compact specifying the relationship between the Central
Government and the BJE. (Emphasis and underscoring supplied)
The nature of the "associative" relationship may have been intended to be defined more
precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there
is a concept of "association" in international law, and the MOA-AD - by its inclusion of
international law instruments in its TOR- placed itself in an international legal context,
that concept of association may be brought to bear in understanding the use of the term
"associative" in the MOA-AD.
Keitner and Reisman state that
[a]n association is formed when two states of unequal power voluntarily
establish durable links. In the basic model, one state, the associate, delegates
certain responsibilities to the other, the principal, while maintaining its
international status as a state. Free associations represent a middle ground
between integration and independence. x x x150 (Emphasis and underscoring
supplied)
For purposes of illustration, the Republic of the Marshall Islands and the Federated
States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of
the Pacific Islands,151 are associated states of the U.S. pursuant to a Compact of Free
Association. The currency in these countries is the U.S. dollar, indicating their very
close ties with the U.S., yet they issue their own travel documents, which is a mark of
their statehood. Their international legal status as states was confirmed by the UN
Security Council and by their admission to UN membership.
According to their compacts of free association, the Marshall Islands and the FSM
generally have the capacity to conduct foreign affairs in their own name and right, such
capacity extending to matters such as the law of the sea, marine resources, trade,
banking, postal, civil aviation, and cultural relations. The U.S. government, when
conducting its foreign affairs, is obligated to consult with the governments of the
Marshall Islands or the FSM on matters which it (U.S. government) regards as relating
to or affecting either government.
In the event of attacks or threats against the Marshall Islands or the FSM, the U.S.
government has the authority and obligation to defend them as if they were part of U.S.
territory. The U.S. government, moreover, has the option of establishing and using
military areas and facilities within these associated states and has the right to bar the
military personnel of any third country from having access to these territories for
military purposes.
It bears noting that in U.S. constitutional and international practice, free association is
understood as an international association between sovereigns. The Compact of Free
Association is a treaty which is subordinate to the associated nation's national
constitution, and each party may terminate the association consistent with the right of
independence. It has been said that, with the admission of the U.S.-associated states to
the UN in 1990, the UN recognized that the American model of free association is
actually based on an underlying status of independence.152
In international practice, the "associated state" arrangement has usually been used as
a transitional device of former colonies on their way to full independence. Examples of
states that have passed through the status of associated states as a transitional phase are
Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All
have since become independent states.153
Back to the MOA-AD, it contains many provisions which are consistent with the
international legal concept of association, specifically the following: the BJE's capacity
to enter into economic and trade relations with foreign countries, the commitment of the
Central Government to ensure the BJE's participation in meetings and events in the
ASEAN and the specialized UN agencies, and the continuing responsibility of the
Central Government over external defense. Moreover, the BJE's right to participate in
Philippine official missions bearing on negotiation of border agreements, environmental
protection, and sharing of revenues pertaining to the bodies of water adjacent to or
between the islands forming part of the ancestral domain, resembles the right of the
governments of FSM and the Marshall Islands to be consulted by the U.S. government
on any foreign affairs matter affecting them.
These provisions of the MOA indicate, among other things, that the Parties aimed to
vest in the BJE the status of an  associated state or, at any rate, a status closely
approximating it.
The concept of association is not recognized under the present Constitution
No province, city, or municipality, not even the ARMM, is recognized under our laws as
having an "associative" relationship with the national government. Indeed, the concept
implies powers that go beyond anything ever granted by the Constitution to any local or
regional government. It also implies the recognition of the associated entity as a state.
The Constitution, however, does not contemplate any state in this jurisdiction other than
the Philippine State, much less does it provide for a transitory status that aims to prepare
any part of Philippine territory for independence.
Even the mere concept animating many of the MOA-AD's provisions, therefore, already
requires for its validity the amendment of constitutional provisions, specifically the
following provisions of Article X:
SECTION 1. The territorial and political subdivisions of the Republic of the
Philippines are the provinces, cities, municipalities, and barangays. There
shall be autonomous regions in Muslim Mindanao and the Cordilleras as
hereinafter provided.
SECTION 15. There shall be created autonomous regions in Muslim Mindanao
and in the Cordilleras consisting of provinces, cities, municipalities, and
geographical areas sharing common and distinctive historical and cultural
heritage, economic and social structures, and other relevant
characteristics within the framework of this Constitution and the national
sovereignty as well as territorial integrity of the Republic of the Philippines.
The BJE is a far more powerful 
entity than the autonomous region 
recognized in the Constitution
It is not merely an expanded version of the ARMM, the status of its relationship with the
national government being fundamentally different from that of the ARMM.
Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in
the Montevideo Convention,154 namely, a permanent population, a defined territory,
a government, and a capacity to enter into relations with other states.
Even assuming arguendo that the MOA-AD would not necessarily sever any portion of
Philippine territory, the spirit animating it - which has betrayed itself by its use of the
concept of association - runs counter to the national sovereignty and territorial
integrity of the Republic.
The defining concept underlying the relationship between the national government
and the BJE being itself contrary to the present Constitution, it is not surprising
that many of the specific provisions of the MOA-AD on the formation and powers
of the BJE are in conflict with the Constitution and the laws.
Article X, Section 18 of the Constitution provides that "[t]he creation of the autonomous
region shall be effective when approved by a majority of the votes cast by the
constituent units in a plebiscite called for the purpose, provided that only provinces,
cities, and geographic areas voting favorably in such plebiscite shall be included in
the autonomous region." (Emphasis supplied)
As reflected above, the BJE is more of a state than an autonomous region. But even
assuming that it is covered by the term "autonomous region" in the constitutional
provision just quoted, the MOA-AD would still be in conflict with it. Under paragraph
2(c) on TERRITORY in relation to 2(d) and 2(e), the present geographic area of the
ARMM and, in addition, the municipalities of Lanao del Norte which voted for
inclusion in the ARMM during the 2001 plebiscite - Baloi, Munai, Nunungan, Pantar,
Tagoloan and Tangkal - are automatically part of the BJE without need of another
plebiscite, in contrast to the areas under Categories A and B mentioned earlier in the
overview. That the present components of the ARMM and the above-mentioned
municipalities voted for inclusion therein in 2001, however, does not render another
plebiscite unnecessary under the Constitution, precisely because what these areas voted
for then was their inclusion in the ARMM, not the BJE.
The MOA-AD, moreover, would not
comply with Article X, Section 20 of  sole authority to negotiate with other states.  (Emphasis and underscoring
the Constitution
since that provision defines the powers of autonomous regions as follows:
SECTION 20. Within its territorial jurisdiction and subject to the provisions of
this Constitution and national laws, the organic act of autonomous regions
shall provide for legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the
general welfare of the people of the region. (Underscoring supplied)
Again on the premise that the BJE may be regarded as an autonomous region, the MOA-
AD would require an amendment that would expand the above-quoted provision. The
mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional
provision would not suffice, since any new law that might vest in the BJE the powers
found in the MOA-AD must, itself, comply with other provisions of the Constitution. It
would not do, for instance, to merely pass legislation vesting the BJE with treaty-making
power in order to accommodate paragraph 4 of the strand on RESOURCES which
states: "The BJE is free to enter into any economic cooperation and trade relations with
foreign countries: provided, however, that such relationships and understandings do not
include aggression against the Government of the Republic of the Philippines x x x."
Under our constitutional system, it is only the President who has that power. Pimentel v.
Executive Secretary155 instructs:
In our system of government, the President, being the head of state, is regarded
as the sole organ and authority in external relations and is the country's
sole representative with foreign nations. As the chief architect of foreign
policy, the President acts as the country's mouthpiece with respect to
international affairs. Hence, the President is vested with the authority to deal
with foreign states and governments, extend or withhold recognition, maintain
diplomatic relations, enter into treaties, and otherwise transact the business
of foreign relations. In the realm of treaty-making, the President has the
supplied)
Article II, Section 22 of the Constitution must also be amended if the scheme
envisioned in the MOA-AD is to be effected. That constitutional provision states: "The
State recognizes and promotes the rights of indigenous cultural communities within the
framework of national unity and development." (Underscoring
supplied) An associative arrangement does not uphold national unity. While there may
be a semblance of unity because of the associative ties between the BJE and the national
government, the act of placing a portion of Philippine territory in a status which, in
international practice, has generally been a preparation for independence, is certainly
not conducive to national unity.
Besides being irreconcilable with the Constitution, the MOA-AD is also inconsistent
with prevailing statutory law, among which are R.A. No. 9054 156 or the Organic Act
of the ARMM, and the IPRA.157
Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the
definition of "Bangsamoro people" used in the MOA-AD. Paragraph 1 on Concepts
and Principles states:
 1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to
identify themselves and be accepted as "Bangsamoros". The Bangsamoro
people refers to those who are natives or original inhabitants of Mindanao
and its adjacent islands including Palawan and the Sulu archipelago at the time
of conquest or colonization of its descendants whether mixed or of full blood.
Spouses and their descendants are classified as Bangsamoro. The freedom of
choice of the Indigenous people shall be respected. (Emphasis and underscoring
supplied)
This use of the term Bangsamoro sharply contrasts with that found in the Article X,
Section 3 of the Organic Act, which, rather than lumping together the identities of the
Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes
between Bangsamoro people and Tribal peoples, as follows:
"As used in this Organic Act, the phrase "indigenous cultural community" refers
to Filipino citizens residing in the autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and economic
conditions distinguish them from other sectors of the national community; and
(b) Bangsa Moro people. These are citizens who are believers in
Islam and who have retained some or all of their own social, economic,
cultural, and political institutions."
Respecting the IPRA, it lays down the prevailing procedure for the delineation and
recognition of ancestral domains. The MOA-AD's manner of delineating the ancestral
domain of the Bangsamoro people is a clear departure from that procedure. By
paragraph 1 of Territory, the Parties simply agree that, subject to the delimitations in the
agreed Schedules, "[t]he Bangsamoro homeland and historic territory refer to the land
mass as well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial
domain, the atmospheric space above it, embracing the Mindanao-Sulu-Palawan
geographic region."
Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as
illustrated in the following provisions thereof:
SECTION 52. Delineation Process. - The identification and delineation of
ancestral domains shall be done in accordance with the following procedures:
xxxx
b) Petition for Delineation. - The process of delineating a specific perimeter may
be initiated by the NCIP with the consent of the ICC/IP concerned, or through a
Petition for Delineation filed with the NCIP, by a majority of the members of
the ICCs/IPs;
c) Delineation Proper. - The official delineation of ancestral domain boundaries
including census of all community members therein, shall be immediately
undertaken by the Ancestral Domains Office upon filing of the application by
the ICCs/IPs concerned. Delineation will be done in coordination with the
community concerned and shall at all times include genuine involvement and
participation by the members of the communities concerned;
d) Proof Required. - Proof of Ancestral Domain Claims shall include the
testimony of elders or community under oath, and other documents directly or
indirectly attesting to the possession or occupation of the area since time
immemorial by such ICCs/IPs in the concept of owners which shall be any one
(1) of the following authentic documents:
1) Written accounts of the ICCs/IPs customs and traditions;
2) Written accounts of the ICCs/IPs political structure and institution;
3) Pictures showing long term occupation such as those of old
improvements, burial grounds, sacred places and old villages;
4) Historical accounts, including pacts and agreements concerning
boundaries entered into by the ICCs/IPs concerned with other ICCs/IPs;
5) Survey plans and sketch maps;
6) Anthropological data;
7) Genealogical surveys;
8) Pictures and descriptive histories of traditional communal forests and
hunting grounds;
9) Pictures and descriptive histories of traditional landmarks such as
mountains, rivers, creeks, ridges, hills, terraces and the like; and
10) Write-ups of names and places derived from the native dialect of the
community.
e) Preparation of Maps. - On the basis of such investigation and the findings of
fact based thereon, the Ancestral Domains Office of the NCIP shall prepare a
perimeter map, complete with technical descriptions, and a description of the
natural features and landmarks embraced therein;
f) Report of Investigation and Other Documents. - A complete copy of the
preliminary census and a report of investigation, shall be prepared by the
Ancestral Domains Office of the NCIP;
g) Notice and Publication. - A copy of each document, including a translation in
the native language of the ICCs/IPs concerned shall be posted in a prominent
place therein for at least fifteen (15) days. A copy of the document shall also be
 posted at the local, provincial and regional offices of the NCIP, and shall be
published in a newspaper of general circulation once a week for two (2)
consecutive weeks to allow other claimants to file opposition thereto within
fifteen (15) days from date of such publication: Provided, That in areas where
no such newspaper exists, broadcasting in a radio station will be a valid
substitute: Provided, further, That mere posting shall be deemed sufficient if
both newspaper and radio station are not available;
h) Endorsement to NCIP. - Within fifteen (15) days from publication, and of the
inspection process, the Ancestral Domains Office shall prepare a report to the
NCIP endorsing a favorable action upon a claim that is deemed to have
sufficient proof. However, if the proof is deemed insufficient, the Ancestral
Domains Office shall require the submission of additional evidence: Provided,
That the Ancestral Domains Office shall reject any claim that is deemed
patently false or fraudulent after inspection and verification: Provided, further,
That in case of rejection, the Ancestral Domains Office shall give the applicant
due notice, copy furnished all concerned, containing the grounds for denial. The
denial shall be appealable to the NCIP: Provided, furthermore, That in cases
where there are conflicting claims among ICCs/IPs on the boundaries of
ancestral domain claims, the Ancestral Domains Office shall cause the
contending parties to meet and assist them in coming up with a preliminary
resolution of the conflict, without prejudice to its full adjudication according to
the section below.
xxxx
To remove all doubts about the irreconcilability of the MOA-AD with the present legal
system, a discussion of not only the Constitution and domestic statutes, but also of
international law is in order, for
Article II, Section 2 of the Constitution states that the Philippines "adopts the
generally accepted principles of international law as part of the law of the land."
Applying this provision of the Constitution, the Court, in Mejoff v. Director of
Prisons,158 held that the Universal Declaration of Human Rights is part of the law of the
land on account of which it ordered the release on bail of a detained alien of Russian
descent whose deportation order had not been executed even after two years. Similarly,
the Court in Agustin v. Edu159 applied the aforesaid constitutional provision to the 1968
Vienna Convention on Road Signs and Signals.
International law has long recognized the right to self-determination of "peoples,"
understood not merely as the entire population of a State but also a portion thereof. In
considering the question of whether the people of Quebec had a right to unilaterally
secede from Canada, the Canadian Supreme Court in REFERENCE RE SECESSION
OF QUEBEC160 had occasion to acknowledge that "the right of a people to self-
determination is now so widely recognized in international conventions that the
principle has acquired a status beyond ‘convention' and is considered a general principle
of international law."
Among the conventions referred to are the International Covenant on Civil and Political
Rights161 and the International Covenant on Economic, Social and Cultural
Rights162 which state, in Article 1 of both covenants, that all peoples, by virtue of the
right of self-determination, "freely determine their political status and freely pursue their
economic, social, and cultural development."
The people's right to self-determination should not, however, be understood as
extending to a unilateral right of secession. A distinction should be made between the
right of internal and external self-determination. REFERENCE RE SECESSION OF
QUEBEC is again instructive:
"(ii) Scope of the Right to Self-determination
126. The recognized sources of international law establish that the right to self-
determination of a people is normally fulfilled through internal self-
determination - a people's pursuit of its political, economic, social and
cultural development within the framework of an existing state.  A right
to external self-determination (which in this case potentially takes the form
of the assertion of a right to unilateral secession) arises in only the most
extreme of cases and, even then, under carefully defined circumstances. x x
x
External self-determination can be defined as in the following statement
from the Declaration on Friendly Relations, supra, as
The establishment of a sovereign and independent State, the free
association or integration with an independent State or the emergence into
any other political status freely determined by a peopleconstitute modes of
implementing the right of self-determination by that people. (Emphasis added)
127. The international law principle of self-determination has evolved
within a framework of respect for the territorial integrity of existing
states. The various international documents that support the existence of a
people's right to self-determination also contain parallel statements supportive
of the conclusion that the exercise of such a right must be sufficiently limited to
 prevent threats to an existing state's territorial integrity or the stability of
relations between sovereign states.
x x x x (Emphasis, italics and underscoring supplied)
The Canadian Court went on to discuss the exceptional cases in which the right to
external self-determination can arise, namely, where a people is under colonial rule, is
subject to foreign domination or exploitation outside a colonial context, and - less
definitely but asserted by a number of commentators - is blocked from the meaningful
exercise of its right to internal self-determination. The Court ultimately held that the
population of Quebec had no right to secession, as the same is not under colonial rule or
foreign domination, nor is it being deprived of the freedom to make political choices and
pursue economic, social and cultural development, citing that Quebec is equitably
represented in legislative, executive and judicial institutions within Canada, even
occupying prominent positions therein.
The exceptional nature of the right of secession is further exemplified in the REPORT
OF THE INTERNATIONAL COMMITTEE OF JURISTS ON THE LEGAL ASPECTS
OF THE AALAND ISLANDS QUESTION.163 There, Sweden presented to the Council
of the League of Nations the question of whether the inhabitants of the Aaland Islands
should be authorized to determine by plebiscite if the archipelago should remain under
Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council, before
resolving the question, appointed an International Committee composed of three jurists
to submit an opinion on the preliminary issue of whether the dispute should, based on
international law, be entirely left to the domestic jurisdiction of Finland. The Committee
stated the rule as follows:
x x x [I]n the absence of express provisions in international treaties, the right of
disposing of national territory is essentially an attribute of the sovereignty
of every State. Positive International Law does not recognize the right of
national groups, as such, to separate themselves from the State of which
they form part by the simple expression of a wish, any more than it
recognizes the right of other States to claim such a separation. Generally
speaking, the grant or refusal of the right to a portion of its population of
determining its own political fate by plebiscite or by some other method, is,
exclusively, an attribute of the sovereignty of every State which is
definitively constituted. A dispute between two States concerning such a
question, under normal conditions therefore, bears upon a question which
International Law leaves entirely to the domestic jurisdiction of one of the
States concerned. Any other solution would amount to an infringement of
sovereign rights of a State and would involve the risk of creating difficulties and
a lack of stability which would not only be contrary to the very idea embodied
in term "State," but would also endanger the interests of the international
community. If this right is not possessed by a large or small section of a nation,
neither can it be held by the State to which the national group wishes to be
attached, nor by any other State. (Emphasis and underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands did not refer to a
question which is left by international law to the domestic jurisdiction of Finland,
thereby applying the exception rather than the rule elucidated above. Its ground for
departing from the general rule, however, was a very narrow one, namely, the Aaland
Islands agitation originated at a time when Finland was undergoing drastic political
transformation. The internal situation of Finland was, according to the Committee, so
abnormal that, for a considerable time, the conditions required for the formation of a
sovereign State did not exist. In the midst of revolution, anarchy, and civil war, the
legitimacy of the Finnish national government was disputed by a large section of the
people, and it had, in fact, been chased from the capital and forcibly prevented from
carrying out its duties. The armed camps and the police were divided into two opposing
forces. In light of these circumstances, Finland was not, during the relevant time period,
a "definitively constituted" sovereign state. The Committee, therefore, found that
Finland did not possess the right to withhold from a portion of its population the option
to separate itself - a right which sovereign nations generally have with respect to their
own populations.
Turning now to the more specific category of indigenous peoples, this term has been
used, in scholarship as well as international, regional, and state practices, to refer to
groups with distinct cultures, histories, and connections to land (spiritual and otherwise)
that have been forcibly incorporated into a larger governing society. These groups are
regarded as "indigenous" since they are the living descendants of pre-invasion
inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples,
nations, or communities are culturally distinctive groups that find themselves engulfed
by settler societies born of the forces of empire and conquest. 164 Examples of groups
who have been regarded as indigenous peoples are the Maori of New Zealand and the
aboriginal peoples of Canada.
As with the broader category of "peoples," indigenous peoples situated within states do
not have a general right to independence or secession from those states under
international law,165 but they do have rights amounting to what was discussed above as
the right to internal self-determination.
In a historic development last September 13, 2007, the UN General Assembly adopted
the United Nations Declaration on the Rights of Indigenous Peoples (UN DRIP)
through General Assembly Resolution 61/295. The vote was 143 to 4, the Philippines
being included among those in favor, and the four voting against being Australia,
Canada, New Zealand, and the U.S. The Declaration clearly recognized the right of
indigenous peoples to self-determination, encompassing the right to autonomy or
self-government, to wit:
Article 3
Indigenous peoples have the right to self-determination. By virtue of that right
they freely determine their political status and freely pursue their economic,
social and cultural development.
Article 4
Indigenous peoples, in exercising their right to self-determination, have the
right to autonomy or self-government in matters relating to
their internal and local affairs, as well as ways and means for financing their
autonomous functions.
Article 5
Indigenous peoples have the right to maintain and strengthen their distinct
political, legal, economic, social and cultural institutions, while retaining their
right to participate fully, if they so choose, in the political, economic, social and
cultural life of the State.
Self-government, as used in international legal discourse pertaining to indigenous
peoples, has been understood as equivalent to "internal self-determination." 166 The extent
of self-determination provided for in the UN DRIP is more particularly defined in its
subsequent articles, some of which are quoted hereunder:
Article 8
1. Indigenous peoples and individuals have the right not to be subjected to
forced assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress
for:
(a) Any action which has the aim or effect of depriving them of their
integrity as distinct peoples, or of their cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their
lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of
violating or undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or ethnic
discrimination directed against them.
Article 21
1. Indigenous peoples have the right, without discrimination, to the
improvement of their economic and social conditions, including, inter alia, in
the areas of education, employment, vocational training and retraining, housing,
sanitation, health and social security.
2. States shall take effective measures and, where appropriate, special measures
to ensure continuing improvement of their economic and social conditions.
Particular attention shall be paid to the rights and special needs of indigenous
elders, women, youth, children and persons with disabilities.
Article 26
1. Indigenous peoples have the right to the lands, territories and resources
which they have traditionally owned, occupied or otherwise used or
acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands,
territories and resources that they possess by reason of traditional ownership or
other traditional occupation or use, as well as those which they have otherwise
acquired.
3. States shall give legal recognition and protection to these lands, territories and
resources. Such recognition shall be conducted with due respect to the customs,
traditions and land tenure systems of the indigenous peoples concerned.
Article 30
1. Military activities shall not take place in the lands or territories of indigenous
peoples, unless justified by a relevant public interest or otherwise freely agreed
with or requested by the indigenous peoples concerned.
2. States shall undertake effective consultations with the indigenous peoples
concerned, through appropriate procedures and in particular through their
representative institutions, prior to using their lands or territories for military
activities.
Article 32
1. Indigenous peoples have the right to determine and develop priorities and
strategies for the development or use of their lands or territories and other
resources.
 2. States shall consult and cooperate in good faith with the indigenous peoples
concerned through their own representative institutions in order to obtain their
free and informed consent prior to the approval of any project affecting their
lands or territories and other resources, particularly in connection with the
development, utilization or exploitation of mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any
such activities, and appropriate measures shall be taken to mitigate adverse
environmental, economic, social, cultural or spiritual impact.
Article 37
1. Indigenous peoples have the right to the recognition, observance and
enforcement of treaties, agreements and other constructive arrangements
concluded with States or their successors and to have States honour and respect
such treaties, agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or eliminating
the rights of indigenous peoples contained in treaties, agreements and other
constructive arrangements.
Article 38
States in consultation and cooperation with indigenous peoples, shall take the
appropriate measures, including legislative measures, to achieve the ends of this
Declaration.
Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must
now be regarded as embodying customary international law - a question which the Court
need not definitively resolve here - the obligations enumerated therein do not strictly
require the Republic to grant the Bangsamoro people, through the instrumentality of the
BJE, the particular rights and powers provided for in the MOA-AD. Even the more
specific provisions of the UN DRIP are general in scope, allowing for flexibility in its
application by the different States.
There is, for instance, no requirement in the UN DRIP that States now guarantee
indigenous peoples their own police and internal security force. Indeed, Article 8
presupposes that it is the State which will provide protection for indigenous peoples
against acts like the forced dispossession of their lands - a function that is normally
performed by police officers. If the protection of a right so essential to indigenous
people's identity is acknowledged to be the responsibility of the State, then surely the
protection of rights less significant to them as such peoples would also be the duty of
States. Nor is there in the UN DRIP an acknowledgement of the right of indigenous
peoples to the aerial domain and atmospheric space. What it upholds, in Article 26
thereof, is the right of indigenous peoples to the lands, territories and resources which
they have traditionally owned, occupied or otherwise used or acquired.
Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy,
does not obligate States to grant indigenous peoples the near-independent status of an
associated state. All the rights recognized in that document are qualified in Article 46 as
follows:
1. Nothing in this Declaration may be interpreted as implying for any State,
people, group or person any right to engage in any activity or to perform any act
contrary to the Charter of the United Nations or construed as authorizing or
encouraging any action which would dismember or impair, totally or in
part, the territorial integrity or political unity of sovereign and independent
States.
Even if the UN DRIP were considered as part of the law of the land pursuant to Article
II, Section 2 of the Constitution, it would not suffice to uphold the validity of the MOA-
AD so as to render its compliance with other laws unnecessary.
It is, therefore, clear that the MOA-AD contains numerous provisions that cannot
be reconciled with the Constitution and the laws as presently worded. Respondents
proffer, however, that the signing of the MOA-AD alone would not have entailed any
violation of law or grave abuse of discretion on their part, precisely because it stipulates
that the provisions thereof inconsistent with the laws shall not take effect until these
laws are amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE
quoted earlier, but which is reproduced below for convenience:
7. The Parties agree that the mechanisms and modalities for the actual
implementation of this MOA-AD shall be spelt out in the Comprehensive
Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal
framework shall come into force upon signing of a Comprehensive Compact
and upon effecting the necessary changes to the legal framework with due
regard to non derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD
from coming into force until the necessary changes to the legal framework are
effected. While the word "Constitution" is not mentioned in the provision now
under consideration or anywhere else in the MOA-AD, the term "legal
framework" is certainly broad enough to include the Constitution.
Notwithstanding the suspensive clause, however, respondents, by their mere act of
incorporating in the MOA-AD the provisions thereof regarding the associative
relationship between the BJE and the Central Government, have already violated the
Memorandum of Instructions From The President dated March 1, 2001, which states
that the "negotiations shall be conducted in accordance with x x x the principles of the
sovereignty and territorial integrityof the Republic of the Philippines." (Emphasis
supplied) Establishing an associative relationship between the BJE and the Central
Government is, for the reasons already discussed, a preparation for independence, or
worse, an implicit acknowledgment of an independent status already prevailing.
Even apart from the above-mentioned Memorandum, however, the MOA-AD is
defective because the suspensive clause is invalid, as discussed below.
The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is
founded on E.O. No. 3, Section 5(c), which states that there shall be established
Government Peace Negotiating Panels for negotiations with different rebel groups to be
"appointed by the President as her official emissaries to conduct negotiations, dialogues,
and face-to-face discussions with rebel groups." These negotiating panels are to report to
the President, through the PAPP on the conduct and progress of the negotiations.
It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro
Problem through its negotiations with the MILF, was not restricted by E.O. No. 3 only
to those options available under the laws as they presently stand. One of the components
of a comprehensive peace process, which E.O. No. 3 collectively refers to as the "Paths
to Peace," is the pursuit of social, economic, and political reforms which may require
new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which
reiterates Section 3(a), of E.O. No. 125,167 states:
SECTION 4. The Six Paths to Peace. - The components of the comprehensive
peace process comprise the processes known as the "Paths to Peace". These
component processes are interrelated and not mutually exclusive, and must
therefore be pursued simultaneously in a coordinated and integrated fashion.
They shall include, but may not be limited to, the following:
a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This
component involves the vigorous implementation of various
policies, reforms, programs and projects aimed at addressing the root
causes of internal armed conflicts and social unrest. This may require
administrative action, new legislation or even constitutional amendments.
x x x x (Emphasis supplied)
The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to
address, pursuant to this provision of E.O. No. 3, the root causes of the armed conflict in
Mindanao. The E.O. authorized them to "think outside the box," so to speak. Hence,
they negotiated and were set on signing the MOA-AD that included various social,
economic, and political reforms which cannot, however, all be accommodated within the
present legal framework, and which thus would require new legislation and
constitutional amendments.
The inquiry on the legality of the "suspensive clause," however, cannot stop here,
because it must be asked whether the President herself may exercise the power
delegated to the GRP Peace Panel under E.O. No. 3, Sec. 4(a).
The President cannot delegate a power that she herself does not possess. May the
President, in the course of peace negotiations, agree to pursue reforms that would
require new legislation and constitutional amendments, or should the reforms be
restricted only to those solutions which the present laws allow? The answer to this
question requires a discussion of the extent of the President's power to conduct peace
negotiations.
That the authority of the President to conduct peace negotiations with rebel groups is not
explicitly mentioned in the Constitution does not mean that she has no such authority.
In Sanlakas v. Executive Secretary,168 in issue was the authority of the President to
declare a state of rebellion - an authority which is not expressly provided for in the
Constitution. The Court held thus:
"In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into
jurisprudence. There, the Court, by a slim 8-7 margin, upheld the President's
power to forbid the return of her exiled predecessor. The rationale for the
majority's ruling rested on the President's
. . . unstated residual powers which are implied from the grant of
executive power and which are necessary for her to comply with her
duties under the Constitution. The powers of the President are not
limited to what are expressly enumerated in the article on the
Executive Department and in scattered provisions of the
Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers
of the President as a reaction to the abuses under the regime of Mr.
Marcos, for the result was a limitation of specific powers of the
President, particularly those relating to the commander-in-chief clause,
but not a diminution of the general grant of executive power.
 Thus, the President's authority to declare a state of rebellion springs in the
main from her powers as chief executive and, at the same time, draws
strength from her Commander-in-Chief powers. x x x (Emphasis and
underscoring supplied)
Similarly, the President's power to conduct peace negotiations is implicitly included in
her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the
President has the general responsibility to promote public peace, and as Commander-in-
Chief, she has the more specific duty to prevent and suppress rebellion and lawless
violence.169
As the experience of nations which have similarly gone through internal armed conflict
will show, however, peace is rarely attained by simply pursuing a military solution.
Oftentimes, changes as far-reaching as a fundamental reconfiguration of the nation's
constitutional structure is required. The observations of Dr. Kirsti Samuels are
enlightening, to wit:
x x x [T]he fact remains that a successful political and governance transition
must form the core of any post-conflict peace-building mission. As we have
observed in Liberia and Haiti over the last ten years, conflict cessation without
modification of the political environment, even where state-building is
undertaken through technical electoral assistance and institution- or capacity-
building, is unlikely to succeed. On average, more than 50 percent of states
emerging from conflict return to conflict. Moreover, a substantial proportion of
transitions have resulted in weak or limited democracies.
The design of a constitution and its constitution-making process can play an
important role in the political and governance transition. Constitution-making
after conflict is an opportunity to create a common vision of the future of a state
and a road map on how to get there. The constitution can be partly a peace
agreement and partly a framework setting up the rules by which the new
democracy will operate.170
In the same vein, Professor Christine Bell, in her article on the nature and legal status of
peace agreements, observed that the typical way that peace agreements establish or
confirm mechanisms for demilitarization and demobilization is by linking them to new
constitutional structures addressing governance, elections, and legal and human rights
institutions.171
In the Philippine experience, the link between peace agreements and constitution-
making has been recognized by no less than the framers of the Constitution. Behind the
provisions of the Constitution on autonomous regions172 is the framers' intention to
implement a particular peace agreement, namely, the Tripoli Agreement of 1976
between the GRP and the MNLF, signed by then Undersecretary of National Defense
Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.
MR. ROMULO. There are other speakers; so, although I have some more
questions, I will reserve my right to ask them if they are not covered by the
other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already exists in
the Muslim region; it is working very well; it has, in fact, diminished a great
deal of the problems. So, my question is: since that already exists, why do we
have to go into something new?
MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner
Yusup Abubakar is right that certain definite steps have been taken to
implement the provisions of the Tripoli Agreement with respect to an
autonomous region in Mindanao. This is a good first step, but there is no
question that this is merely a partial response to the Tripoli Agreement
itself and to the fuller standard of regional autonomy contemplated in that
agreement, and now by state policy.173(Emphasis supplied)
The constitutional provisions on autonomy and the statutes enacted pursuant to them
have, to the credit of their drafters, been partly successful. Nonetheless, the Filipino
people are still faced with the reality of an on-going conflict between the Government
and the MILF. If the President is to be expected to find means for bringing this conflict
to an end and to achieve lasting peace in Mindanao, then she must be given the leeway
to explore, in the course of peace negotiations, solutions that may require changes to the
Constitution for their implementation. Being uniquely vested with the power to conduct
peace negotiations with rebel groups, the President is in a singular position to know the
precise nature of their grievances which, if resolved, may bring an end to hostilities.
The President may not, of course, unilaterally implement the solutions that she considers
viable, but she may not be prevented from submitting them as recommendations to
Congress, which could then, if it is minded, act upon them pursuant to the legal
procedures for constitutional amendment and revision. In particular, Congress would
have the option, pursuant to Article XVII, Sections 1 and 3 of the Constitution, to
propose the recommended amendments or revision to the people, call a constitutional
convention, or submit to the electorate the question of calling such a convention.
While the President does not possess constituent powers - as those powers may be
exercised only by Congress, a Constitutional Convention, or the people through
initiative and referendum - she may submit proposals for constitutional change to
Congress in a manner that does not involve the arrogation of constituent powers.
In Sanidad v. COMELEC,174 in issue was the legality of then President Marcos' act of
directly submitting proposals for constitutional amendments to a referendum, bypassing
the interim National Assembly which was the body vested by the 1973 Constitution with
the power to propose such amendments. President Marcos, it will be recalled, never
convened the interim National Assembly. The majority upheld the President's act,
holding that "the urges of absolute necessity" compelled the President as the agent of the
people to act as he did, there being no interim National Assembly to propose
constitutional amendments. Against this ruling, Justices Teehankee and Muñoz Palma
vigorously dissented. The Court's concern at present, however, is not with regard to the
point on which it was then divided in that controversial case, but on that which was not
disputed by either side.
Justice Teehankee's dissent,175 in particular, bears noting. While he disagreed that the
President may directly submit proposed constitutional amendments to a referendum,
implicit in his opinion is a recognition that he would have upheld the President's action
along with the majority had the President convened the interim National Assembly and
coursed his proposals through it. Thus Justice Teehankee opined:
"Since the Constitution provides for the organization of the essential
departments of government, defines and delimits the powers of each and
prescribes the manner of the exercise of such powers, and the constituent power
has not been granted to but has been withheld from the President or Prime
Minister, it follows that the President's questioned decrees proposing and
submitting constitutional amendments directly to the people (without the
intervention of the interim National Assembly in whom the power is
expressly vested) are devoid of constitutional and legal basis."176 (Emphasis
supplied)
From the foregoing discussion, the principle may be inferred that the President - in the
course of conducting peace negotiations - may validly consider implementing even those
policies that require changes to the Constitution, but she may not unilaterally implement
them without the intervention of Congress, or act in any way as if the assent of that
body were assumed as a certainty.
Since, under the present Constitution, the people also have the power to directly propose
amendments through initiative and referendum, the President may also submit her
recommendations to the people, not as a formal proposal to be voted on in a plebiscite
similar to what President Marcos did in Sanidad, but for their independent consideration
of whether these recommendations merit being formally proposed through initiative.
These recommendations, however, may amount to nothing more than the President's
suggestions to the people, for any further involvement in the process of initiative by the
Chief Executive may vitiate its character as a genuine "people's initiative." The only
initiative recognized by the Constitution is that which truly proceeds from the people.
As the Court stated in Lambino v. COMELEC:177
"The Lambino Group claims that their initiative is the ‘people's voice.'
However, the Lambino Group unabashedly states in ULAP Resolution No.
2006-02, in the verification of their petition with the COMELEC, that ‘ULAP
maintains its unqualified support to the agenda of Her Excellency President
Gloria Macapagal-Arroyo for constitutional reforms.' The Lambino Group
thus admits that their ‘people's' initiative is an ‘unqualified support to the
agenda' of 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."
It will be observed that the President has authority, as stated in her oath of office,178 only
to preserve and defend the Constitution. Such presidential power does not, however,
extend to allowing her to change the Constitution, but simply to recommend proposed
amendments or revision. As long as she limits herself to recommending these changes
and submits to the proper procedure for constitutional amendments and revision, her
mere recommendation need not be construed as an unconstitutional act.
The foregoing discussion focused on the President's authority to
propose constitutional amendments, since her authority to propose new legislation is
not in controversy. It has been an accepted practice for Presidents in this jurisdiction to
propose new legislation. One of the more prominent instances the practice is usually
done is in the yearly State of the Nation Address of the President to Congress.
Moreover, the annual general appropriations bill has always been based on the budget
prepared by the President, which - for all intents and purposes - is a proposal for new
legislation coming from the President.179
The "suspensive clause" in the MOA-AD viewed in light of the above-discussed
standards
Given the limited nature of the President's authority to propose constitutional
amendments, she cannot guaranteeto any third party that the required amendments will
eventually be put in place, nor even be submitted to a plebiscite. The most she could do
is submit these proposals as recommendations either to Congress or the people, in whom
constituent powers are vested.
Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof
which cannot be reconciled with the present Constitution and laws "shall come into
force upon signing of a Comprehensive Compact and upon effecting the necessary
changes to the legal framework." This stipulation does not bear the marks of a
suspensive condition - defined in civil law as a future and uncertain event - but of a
term. It is not a question of whether the necessary changes to the legal framework will
be effected, but when. That there is no uncertainty being contemplated is plain from
what follows, for the paragraph goes on to state that the contemplated changes shall be
"with due regard to non derogation of prior agreements and within the stipulated
timeframe to be contained in the Comprehensive Compact."
Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes
to the legal framework contemplated in the MOA-AD - which changes would include
constitutional amendments, as discussed earlier. It bears noting that,
By the time these changes are put in place, the MOA-AD itself would be counted
among the "prior agreements" from which there could be no derogation.
What remains for discussion in the Comprehensive Compact would merely be the
implementing details for these "consensus points" and, notably, the deadline for
effecting the contemplated changes to the legal framework.
Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of
the President's authority to propose constitutional amendments, it being a virtual
guarantee that the Constitution and the laws of the Republic of the Philippines will
certainly be adjusted to conform to all the "consensus points" found in the MOA-
AD. Hence, it must be struck down as unconstitutional.
A comparison between the "suspensive clause" of the MOA-AD with a similar provision
appearing in the 1996 final peace agreement between the MNLF and the GRP is most
instructive.
As a backdrop, the parties to the 1996 Agreement stipulated that it would be
implemented in two phases. Phase Icovered a three-year transitional period involving
the putting up of new administrative structures through Executive Order, such as the
Special Zone of Peace and Development (SZOPAD) and the Southern Philippines
Council for Peace and Development (SPCPD), while Phase II covered the
establishment of the new regional autonomous government through amendment or
repeal of R.A. No. 6734, which was then the Organic Act of the ARMM.
The stipulations on Phase II consisted of specific agreements on the structure of the
expanded autonomous region envisioned by the parties. To that extent, they are similar
to the provisions of the MOA-AD. There is, however, a crucial difference between the
two agreements. While the MOA-AD virtually guarantees that the "necessary
changes to the legal framework" will be put in place, the GRP-MNLF final peace
agreement states thus: "Accordingly, these provisions [on Phase II] shall
be recommended by the GRP to Congress for incorporation in the amendatory or
repealing law."
Concerns have been raised that the MOA-AD would have given rise to a binding
international law obligation on the part of the Philippines to change its Constitution in
conformity thereto, on the ground that it may be considered either as a binding
agreement under international law, or a unilateral declaration of the Philippine
government to the international community that it would grant to the Bangsamoro
people all the concessions therein stated. Neither ground finds sufficient support in
international law, however.
The MOA-AD, as earlier mentioned in the overview thereof, would have included
foreign dignitaries as signatories. In addition, representatives of other nations were
invited to witness its signing in Kuala Lumpur. These circumstances readily lead one to
surmise that the MOA-AD would have had the status of a binding international
agreement had it been signed. An examination of the prevailing principles in
international law, however, leads to the contrary conclusion.
The Decision on Challenge to Jurisdiction: Lomé Accord Amnesty180 (the Lomé Accord
case) of the Special Court of Sierra Leone is enlightening. The Lomé Accord was a
peace agreement signed on July 7, 1999 between the Government of Sierra Leone and
the Revolutionary United Front (RUF), a rebel group with which the Sierra Leone
Government had been in armed conflict for around eight years at the time of signing.
There were non-contracting signatories to the agreement, among which were the
Government of the Togolese Republic, the Economic Community of West African
States, and the UN.
On January 16, 2002, after a successful negotiation between the UN Secretary-General
and the Sierra Leone Government, another agreement was entered into by the UN and
that Government whereby the Special Court of Sierra Leone was established. The sole
purpose of the Special Court, an international court, was to try persons who bore the
greatest responsibility for serious violations of international humanitarian law and Sierra
Leonean law committed in the territory of Sierra Leone since November 30, 1996.
Among the stipulations of the Lomé Accord was a provision for the full pardon of the
members of the RUF with respect to anything done by them in pursuit of their objectives
as members of that organization since the conflict began.
In the Lomé Accord case, the Defence argued that the Accord created
an internationally binding obligation not to prosecute the beneficiaries of the amnesty
provided therein, citing, among other things, the participation of foreign dignitaries and
international organizations in the finalization of that agreement. The Special Court,
however, rejected this argument, ruling that the Lome Accord is not a treaty and that
it can only create binding obligations and rights between the parties in municipal law,
not in international law. Hence, the Special Court held, it is ineffective in depriving an
international court like it of jurisdiction.
"37. In regard to the nature of a negotiated settlement of an internal armed
conflict it is easy to assume and to argue with some degree of plausibility, as
Defence counsel for the defendants seem to have done, that the mere fact
that in addition to the parties to the conflict, the document formalizing the
settlement is signed by foreign heads of state or their representatives and
representatives of international organizations, means the agreement of the
parties is internationalized so as to create obligations in international law.
xxxx
40. Almost every conflict resolution will involve the parties to the conflict and
the mediator or facilitator of the settlement, or persons or bodies under whose
auspices the settlement took place but who are not at all parties to the conflict,
are not contracting parties and who do not claim any obligation from the
contracting parties or incur any obligation from the settlement.
41. In this case, the parties to the conflict are the lawful authority of the
State and the RUF which has no status of statehood and is to all intents and
purposes a faction within the state. The non-contracting signatories of the
Lomé Agreement were moral guarantors of the principle that, in the terms
of Article XXXIV of the Agreement, "this peace agreement is implemented
with integrity and in good faith by both parties". The moral guarantors
assumed no legal obligation. It is recalled that the UN by its representative
appended, presumably for avoidance of doubt, an understanding of the extent of
the agreement to be implemented as not including certain international crimes.
42. An international agreement in the nature of a treaty must create rights and
obligations regulated by international law so that a breach of its terms will be a
breach determined under international law which will also provide principle
means of enforcement. The Lomé Agreement created neither rights nor
obligations capable of being regulated by international law. An agreement
such as the Lomé Agreement which brings to an end an internal armed
conflict no doubt creates a factual situation of restoration of peace that the
international community acting through the Security Council may take
note of. That, however, will not convert it to an international agreement
which creates an obligation enforceable in international, as distinguished
from municipal, law. A breach of the terms of such a peace agreement
resulting in resumption of internal armed conflict or creating a threat to peace in
the determination of the Security Council may indicate a reversal of the factual
situation of peace to be visited with possible legal consequences arising from
the new situation of conflict created. Such consequences such as action by the
Security Council pursuant to Chapter VII arise from the situation and not from
the agreement, nor from the obligation imposed by it. Such action cannot be
regarded as a remedy for the breach. A peace agreement which settles
an internal armed conflict cannot be ascribed the same status as one which
settles an international armed conflict which, essentially, must be between
two or more warring States. The Lomé Agreement cannot be characterised
as an international instrument. x x x" (Emphasis, italics and underscoring
supplied)
Similarly, that the MOA-AD would have been signed by representatives of States and
international organizations not parties to the Agreement would not have sufficed to vest
in it a binding character under international law.
In another vein, concern has been raised that the MOA-AD would amount to a unilateral
declaration of the Philippine State, binding under international law, that it would comply
with all the stipulations stated therein, with the result that it would have to amend its
Constitution accordingly regardless of the true will of the people. Cited as authority for
this view is Australia v. France,181 also known as the Nuclear Tests Case, decided by the
International Court of Justice (ICJ).
In the Nuclear Tests Case, Australia challenged before the ICJ the legality of France's
nuclear tests in the South Pacific. France refused to appear in the case, but public
statements from its President, and similar statements from other French officials
including its Minister of Defence, that its 1974 series of atmospheric tests would be its
last, persuaded the ICJ to dismiss the case.182 Those statements, the ICJ held, amounted
to a legal undertaking addressed to the international community, which required no
acceptance from other States for it to become effective.
Essential to the ICJ ruling is its finding that the French government intended to be bound
to the international community in issuing its public statements, viz:
43. It is well recognized that declarations made by way of unilateral acts,
concerning legal or factual situations, may have the effect of creating legal
obligations. Declarations of this kind may be, and often are, very
specific. When it is the intention of the State making the declaration that it
should become bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the State being
thenceforth legally required to follow a course of conduct consistent with
the declaration. An undertaking of this kind, if given publicly, and with an
intent to be bound, even though not made within the context of international
negotiations, is binding. In these circumstances, nothing in the nature of a quid
pro quo nor any subsequent acceptance of the declaration, nor even any reply or
reaction from other States, is required for the declaration to take effect, since
such a requirement would be inconsistent with the strictly unilateral nature of
the juridical act by which the pronouncement by the State was made.
44. Of course, not all unilateral acts imply obligation; but a State may
choose to take up a certain position in relation to a particular matter
with the intention of being bound-the intention is to be ascertained by
interpretation of the act. When States make statements by which their freedom
of action is to be limited, a restrictive interpretation is called for.
xxxx
51. In announcing that the 1974 series of atmospheric tests would be the
last, the French Government conveyed to the world at large, including the
Applicant, its intention effectively to terminate these tests. It was bound to
assume that other States might take note of these statements and rely on
their being effective. The validity of these statements and their legal
consequences must be considered within the general framework of the
security of international intercourse, and the confidence and trust which are
so essential in the relations among States. It is from the actual substance of
these statements, and from the circumstances attending their making, that
the legal implications of the unilateral act must be deduced. The objects of
these statements are clear and they were addressed to the international
community as a whole, and the Court holds that they constitute an
undertaking possessing legal effect. The Court considers *270 that the
President of the Republic, in deciding upon the effective cessation of
atmospheric tests, gave an undertaking to the international community to which
his words were addressed. x x x (Emphasis and underscoring supplied)
As gathered from the above-quoted ruling of the ICJ, public statements of a state
representative may be construed as a unilateral declaration only when the following
conditions are present: the statements were clearly addressed to the international
community, the state intended to be bound to that community by its statements, and that
not to give legal effect to those statements would be detrimental to the security of
international intercourse. Plainly, unilateral declarations arise only in peculiar
circumstances.
The limited applicability of the Nuclear Tests Case ruling was recognized in a later case
decided by the ICJ entitled Burkina Faso v. Mali,183 also known as the Case Concerning
the Frontier Dispute. The public declaration subject of that case was a statement made
by the President of Mali, in an interview by a foreign press agency, that Mali would
abide by the decision to be issued by a commission of the Organization of African Unity
on a frontier dispute then pending between Mali and Burkina Faso.
Unlike in the Nuclear Tests Case, the ICJ held that the statement of Mali's President was
not a unilateral act with legal implications. It clarified that its ruling in the Nuclear Tests
case rested on the peculiar circumstances surrounding the French declaration subject
thereof, to wit:
40. In order to assess the intentions of the author of a unilateral act, account
must be taken of all the factual circumstances in which the act occurred. For
example, in the Nuclear Tests cases, the Court took the view that since the
applicant States were not the only ones concerned at the possible
continuance of atmospheric testing by the French Government, that
Government's unilateral declarations had ‘conveyed to the world at large,
including the Applicant, its intention effectively to terminate these
tests‘ (I.C.J. Reports 1974, p. 269, para. 51; p. 474, para. 53). In the particular
circumstances of those cases, the French Government could not express an
intention to be bound otherwise than by unilateral declarations. It is
difficult to see how it could have accepted the terms of a negotiated solution
with each of the applicants without thereby jeopardizing its contention that
its conduct was lawful. The circumstances of the present case are radically
different. Here, there was nothing to hinder the Parties from manifesting
an intention to accept the binding character of the conclusions of the
Organization of African Unity Mediation Commission by the normal
method: a formal agreement on the basis of reciprocity. Since no agreement
 of this kind was concluded between the Parties, the Chamber finds that there are
no grounds to interpret the declaration made by Mali's head of State on 11 April
1975 as a unilateral act with legal implications in regard to the present case.
(Emphasis and underscoring supplied)
Assessing the MOA-AD in light of the above criteria, it would not have amounted to a
unilateral declaration on the part of the Philippine State to the international community.
The Philippine panel did not draft the same with the clear intention of being bound
thereby to the international community as a whole or to any State, but only to the MILF.
While there were States and international organizations involved, one way or another, in
the negotiation and projected signing of the MOA-AD, they participated merely as
witnesses or, in the case of Malaysia, as facilitator. As held in the Lomé Accord case,
the mere fact that in addition to the parties to the conflict, the peace settlement is signed
by representatives of states and international organizations does not mean that the
agreement is internationalized so as to create obligations in international law.
Since the commitments in the MOA-AD were not addressed to States, not to give legal
effect to such commitments would not be detrimental to the security of international
intercourse - to the trust and confidence essential in the relations among States.
In one important respect, the circumstances surrounding the MOA-AD are closer to that
of Burkina Faso wherein, as already discussed, the Mali President's statement was not
held to be a binding unilateral declaration by the ICJ. As in that case, there was also
nothing to hinder the Philippine panel, had it really been its intention to be bound to
other States, to manifest that intention by formal agreement. Here, that formal agreement
would have come about by the inclusion in the MOA-AD of a clear commitment to be
legally bound to the international community, not just the MILF, and by an equally clear
indication that the signatures of the participating states-representatives would constitute
an acceptance of that commitment. Entering into such a formal agreement would not
have resulted in a loss of face for the Philippine government before the international
community, which was one of the difficulties that prevented the French Government
from entering into a formal agreement with other countries. That the Philippine panel
did not enter into such a formal agreement suggests that it had no intention to be bound
to the international community. On that ground, the MOA-AD may not be considered a
unilateral declaration under international law.
The MOA-AD not being a document that can bind the Philippines under international
law notwithstanding, respondents' almost consummated act of guaranteeing
amendments to the legal framework is, by itself, sufficient to constitute grave abuse
of discretion. The grave abuse lies not in the fact that they considered, as a solution to
the Moro Problem, the creation of a state within a state, but in their brazen willingness
to guarantee that Congress and the sovereign Filipino people would give their
imprimatur to their solution. Upholding such an act would amount to authorizing a
usurpation of the constituent powers vested only in Congress, a Constitutional
Convention, or the people themselves through the process of initiative, for the only way
that the Executive can ensure the outcome of the amendment process is through an
undue influence or interference with that process.
The sovereign people may, if it so desired, go to the extent of giving up a portion of its
own territory to the Moros for the sake of peace, for it can change the Constitution in
any it wants, so long as the change is not inconsistent with what, in international law, is
known as Jus Cogens.184 Respondents, however, may not preempt it in that decision.
SUMMARY
The petitions are ripe for adjudication. The failure of respondents to consult the local
government units or communities affected constitutes a departure by respondents from
their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the
mere act of guaranteeing amendments to the Constitution. Any alleged violation of the
Constitution by any branch of government is a proper matter for judicial review.
As the petitions involve constitutional issues which are of paramount public interest or
of transcendental importance, the Court grants the petitioners, petitioners-in-intervention
and intervening respondents the requisite locus standi in keeping with the liberal stance
adopted in David v. Macapagal-Arroyo.
Contrary to the assertion of respondents that the non-signing of the MOA-AD and the
eventual dissolution of the GRP Peace Panel mooted the present petitions, the Court
finds that the present petitions provide an exception to the "moot and academic"
principle in view of (a) the grave violation of the Constitution involved; (b) the
exceptional character of the situation and paramount public interest; (c) the need to
formulate controlling principles to guide the bench, the bar, and the public; and (d) the
fact that the case is capable of repetition yet evading review.
The MOA-AD is a significant part of a series of agreements necessary to carry out the
GRP-MILF Tripoli Agreement on Peace signed by the government and the MILF back
in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up
that could contain similar or significantly dissimilar provisions compared to the original.
The Court, however, finds that the prayers for mandamus have been rendered moot in
view of the respondents' action in providing the Court and the petitioners with the
official copy of the final draft of the MOA-AD and its annexes.
The people's right to information on matters of public concern under Sec. 7, Article III
of the Constitution is in splendid symmetry with the state policy of full public disclosure
of all its transactions involving public interest under Sec. 28, Article II of the
Constitution. The right to information guarantees the right of the people to demand
information, while Section 28 recognizes the duty of officialdom to give information
even if nobody demands. The complete and effective exercise of the right to information
necessitates that its complementary provision on public disclosure derive the same self-
executory nature, subject only to reasonable safeguards or limitations as may be
provided by law.
The contents of the MOA-AD is a matter of paramount public concern involving public
interest in the highest order. In declaring that the right to information contemplates steps
and negotiations leading to the consummation of the contract, jurisprudence finds no
distinction as to the executory nature or commercial character of the agreement.
An essential element of these twin freedoms is to keep a continuing dialogue or process
of communication between the government and the people. Corollary to these twin
rights is the design for feedback mechanisms. The right to public consultation was
envisioned to be a species of these public rights.
At least three pertinent laws animate these constitutional imperatives and justify the
exercise of the people's right to be consulted on relevant matters relating to the peace
agenda.
One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both
national and local levels and for a principal forum for consensus-building. In fact, it is
the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to
seek relevant information, comments, advice, and recommendations from peace partners
and concerned sectors of society.
Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all
national offices to conduct consultations before any project or program critical to the
environment and human ecology including those that may call for the eviction of a
particular group of people residing in such locality, is implemented therein. The MOA-
AD is one peculiar program that unequivocally and unilaterally vests ownership of a
vast territory to the Bangsamoro people, which could pervasively and drastically result
to the diaspora or displacement of a great number of inhabitants from their total
environment.
Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides
for clear-cut procedure for the recognition and delineation of ancestral domain, which
entails, among other things, the observance of the free and prior informed consent of the
Indigenous Cultural Communities/Indigenous Peoples. Notably, the statute does not
grant the Executive Department or any government agency the power to delineate and
recognize an ancestral domain claim by mere agreement or compromise.
The invocation of the doctrine of executive privilege as a defense to the general right to
information or the specific right to consultation is untenable. The various explicit legal
provisions fly in the face of executive secrecy. In any event, respondents effectively
waived such defense after it unconditionally disclosed the official copies of the final
draft of the MOA-AD, for judicial compliance and public scrutiny.
In sum, the Presidential Adviser on the Peace Process committed grave abuse of
discretion when he failed to carry out the pertinent consultation process, as mandated by
E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by
which the MOA-AD was designed and crafted runs contrary to and in excess of the legal
authority, and amounts to a whimsical, capricious, oppressive, arbitrary and despotic
exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to
perform the duty enjoined.
The MOA-AD cannot be reconciled with the present Constitution and laws. Not only
its specific provisions but the very concept underlying them, namely, the associative
relationship envisioned between the GRP and the BJE, are unconstitutional, for the
concept presupposes that the associated entity is a state and implies that the same is on
its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent
with the present legal framework will not be effective until that framework is amended,
the same does not cure its defect. The inclusion of provisions in the MOA-AD
establishing an associative relationship between the BJE and the Central Government is,
itself, a violation of the Memorandum of Instructions From The President dated March
1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it
virtually guarantees that the necessary amendments to the Constitution and the laws will
eventually be put in place. Neither the GRP Peace Panel nor the President herself is
authorized to make such a guarantee. Upholding such an act would amount to
authorizing a usurpation of the constituent powers vested only in Congress, a
Constitutional Convention, or the people themselves through the process of initiative,
for the only way that the Executive can ensure the outcome of the amendment process is
through an undue influence or interference with that process.
While the MOA-AD would not amount to an international agreement or unilateral
declaration binding on the Philippines under international law, respondents' act of
guaranteeing amendments is, by itself, already a constitutional violation that renders the
MOA-AD fatally defective.
WHEREFORE, respondents' motion to dismiss is DENIED. The main and intervening
petitions are GIVEN DUE COURSE and hereby GRANTED.
The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF
Tripoli Agreement on Peace of 2001 is declared contrary to law and the Constitution.
SO ORDERED.
PROF. MERLIN M. MAGALLONA, G.R No. 187167
Petitioners,
- versus -
HON. EDUARDO ERMITA, IN HIS
Respondents. July 16, 2011
x -----------------------------------------------------------------------------------------x
 
DECISION
CARPIO, J.:
The Case  resources, in violation of relevant constitutional provisions.13
This original action for the writs of certiorari and prohibition assails the constitutionality
of Republic Act No. 95221 (RA 9522) adjusting the countrys archipelagic baselines and
classifying the baseline regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime
baselines of the Philippines as an archipelagic State.3 This law followed the framing of
the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS
I),4 codifying, among others, the sovereign right of States parties over their territorial
sea, the breadth of which, however, was left undetermined. Attempts to fill this void
during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile.
Thus, domestically, RA 3046 remained unchanged for nearly five decades, save for
legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical
errors and reserving the drawing of baselines around Sabah in North Borneo.
 
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now
under scrutiny. The change was prompted by the need to make RA 3046 compliant with
the terms of the United Nations Convention on the Law of the Sea (UNCLOS
III),5 which the Philippines ratified on 27 February 1984.6 Among others, UNCLOS III
prescribes the water-land ratio, length, and contour of baselines of archipelagic States
like the Philippines7 and sets the deadline for the filing of application for the extended
continental shelf.8 Complying with these requirements, RA 9522 shortened one baseline,
optimized the location of some basepoints around the Philippine archipelago and
classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the
Scarborough Shoal, as regimes of islands whose islands generate their own applicable
maritime zones.
 
Petitioners, professors of law, law students and a legislator, in their respective capacities
as citizens, taxpayers or x x x legislators,9 as the case may be, assail the constitutionality
of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces Philippine maritime
territory, and logically, the reach of the Philippine states sovereign power, in violation of
Article 1 of the 1987 Constitution,10 embodying the terms of the Treaty of Paris 11 and
ancillary treaties,12 and (2) RA 9522 opens the countrys waters landward of the baselines
to maritime passage by all vessels and aircrafts, undermining Philippine sovereignty and
national security, contravening the countrys nuclear-free policy, and damaging marine
In addition, petitioners contend that RA 9522s treatment of the KIG as regime
of islands not only results in the loss of a large maritime area but also prejudices the
livelihood of subsistence fishermen.14 To buttress their argument of territorial
diminution, petitioners facially attack RA 9522 for what it excluded and included its
failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS IIIs
framework of regime of islands to determine the maritime zones of the KIG and the
Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues
questioning (1) the petitions compliance with the case or controversy requirement for
judicial review grounded on petitioners alleged lack of locus standi and (2) the propriety
of the writs of certiorari and prohibition to assail the constitutionality of RA 9522. On
the merits, respondents defended RA 9522 as the countrys compliance with the terms of
UNCLOS III, preserving Philippine territory over the KIG or Scarborough Shoal.
Respondents add that RA 9522 does not undermine the countrys security, environment
and economic interests or relinquish the Philippines claim over Sabah.
 
Respondents also question the normative force, under international law, of
petitioners assertion that what Spain ceded to the United States under the Treaty of Paris
were the islands and all the waters found within the boundaries of the rectangular area
drawn under the Treaty of Paris.
We left unacted petitioners prayer for an injunctive writ.
 
The Issues
 
The petition raises the following issues:
1.    Preliminarily
 
1.    Whether petitioners possess locus standi to bring this suit; and
2.    Whether the writs of certiorari and prohibition are the proper remedies to assail
the constitutionality of RA 9522.
2.    On the merits, whether RA 9522 is unconstitutional.
 
 
The Ruling of the Court
On the threshold issues, we hold that (1) petitioners possess locus standi to bring this
suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to test
the constitutionality of RA 9522. On the merits, we find no basis to declare RA 9522
unconstitutional.
 
On the Threshold Issues
 
Petitioners Possess Locus
Standi as Citizens
 
Petitioners themselves undermine their assertion of locus standi as legislators and
taxpayers because the petition alleges neither infringement of legislative
prerogative15 nor misuse of public funds,16 occasioned by the passage and
implementation of RA 9522. Nonetheless, we recognize petitioners locus standi as
citizens with constitutionally sufficient interest in the resolution of the merits of the case
which undoubtedly raises issues of national significance necessitating urgent resolution.
Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult to find
other litigants possessing a more direct and specific interest to bring the suit, thus
satisfying one of the requirements for granting citizenship standing.17
 
The Writs of Certiorari and Prohibition
Are Proper Remedies to Test
the Constitutionality of Statutes
 
In praying for the dismissal of the petition on preliminary grounds, respondents seek a
strict observance of the offices of the writs of certiorari and prohibition, noting that the
writs cannot issue absent any showing of grave abuse of discretion in the exercise of
judicial, quasi-judicial or ministerial powers on the part of respondents and resulting
prejudice on the part of petitioners.18
Respondents submission holds true in ordinary civil proceedings. When this Court
exercises its constitutional power of judicial review, however, we have, by tradition,
viewed the writs of certiorari and prohibition as proper remedial vehicles to test the
constitutionality of statutes,19 and indeed, of acts of other branches of
government.20 Issues of constitutional import are sometimes crafted out of statutes
which, while having no bearing on the personal interests of the petitioners, carry such
relevance in the life of this nation that the Court inevitably finds itself constrained to
take cognizance of the case and pass upon the issues raised, non-compliance with the
letter of procedural rules notwithstanding. The statute sought to be reviewed here is one
such law.
RA 9522 is Not Unconstitutional
 
 
RA 9522 is a Statutory Tool
to Demarcate the Countrys
Maritime Zones and Continental
Shelf Under UNCLOS III, not to
Delineate Philippine Territory
 
 
Petitioners submit that RA 9522 dismembers a large portion of the national
territory21 because it discards the pre-UNCLOS III demarcation of Philippine territory
under the Treaty of Paris and related treaties, successively encoded in the definition of
national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that
this constitutional definition trumps any treaty or statutory provision denying the
Philippines sovereign control over waters, beyond the territorial sea recognized at the
time of the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners
argue that from the Treaty of Paris technical description, Philippine sovereignty over
territorial waters extends hundreds of nautical miles around the Philippine archipelago,
embracing the rectangular area delineated in the Treaty of Paris.22
 
Petitioners theory fails to persuade us.
 
UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a
multilateral treaty regulating, among others, sea-use rights over maritime zones (i.e., the
territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical
miles from the baselines], exclusive economic zone [200 nautical miles from the
baselines]), and continental shelves that UNCLOS III delimits.23 UNCLOS III was the
culmination of decades-long negotiations among United Nations members to codify
norms regulating the conduct of States in the worlds oceans and submarine areas,
recognizing coastal and archipelagic States graduated authority over a limited span of
waters and submarine lands along their coasts.
 
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III
States parties to mark-out specific basepoints along their coasts from which baselines
are drawn, either straight or contoured, to serve as geographic starting points to measure
the breadth of the maritime zones and continental shelf. Article 48 of UNCLOS III on
archipelagic States like ours could not be any clearer:
 
Article 48. Measurement of the breadth of the territorial sea,
the contiguous zone, the exclusive economic zone and the continental
shelf. The breadth of the territorial sea, the contiguous zone, the
exclusive economic zone and the continental shelf shall be measured
from archipelagic baselines drawn in accordance with article 47.
(Emphasis supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III
States parties to delimit with precision the extent of their maritime zones and continental
shelves. In turn, this gives notice to the rest of the international community of the scope
of the maritime space and submarine areas within which States parties exercise treaty-
based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the
jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the
contiguous zone (Article 33), and the right to exploit the living and non-living resources
in the exclusive economic zone (Article 56) and continental shelf (Article 77).
 
Even under petitioners theory that the Philippine territory embraces the islands
and all the waters within the rectangular area delimited in the Treaty of Paris, the
baselines of the Philippines would still have to be drawn in accordance with RA 9522
because this is the only way to draw the baselines in conformity with UNCLOS III. The
baselines cannot be drawn from the boundaries or other portions of the rectangular area
delineated in the Treaty of Paris, but from the outermost islands and drying reefs of the
archipelago.24
 
UNCLOS III and its ancillary baselines laws play no role in the acquisition,
enlargement or, as petitioners claim, diminution of territory. Under traditional
international law typology, States acquire (or conversely, lose) territory through
occupation, accretion, cession and prescription,25 not by executing multilateral treaties
on the regulations of sea-use rights or enacting statutes to comply with the treatys terms
to delimit maritime zones and continental shelves. Territorial claims to land features are
outside UNCLOS III, and are instead governed by the rules on general international
law.26
 
RA 9522s Use of the Framework of Regime of Islands to Determine the Maritime
Zones of the KIG and the Scarborough Shoal, not Inconsistent with the Philippines
Claim of Sovereignty Over these Areas
Petitioners next submit that RA 9522s use of UNCLOS IIIs regime of islands framework
to draw the baselines, and to measure the breadth of the applicable maritime zones of the
KIG, weakens our territorial claim over that area.27 Petitioners add that the KIGs (and
Scarborough Shoals) exclusion from the Philippine archipelagic baselines results in the
loss of about 15,000 square nautical miles of territorial waters, prejudicing the
livelihood of subsistence fishermen.28 A comparison of the configuration of the baselines
drawn under RA 3046 and RA 9522 and the extent of maritime space encompassed by
each law, coupled with a reading of the text of RA 9522 and its congressional Economic 382,669
deliberations, vis--vis the Philippines obligations under UNCLOS III, belie this view. Zone
 
TOTAL 440,994 586,210
The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA
9522 merely followed the basepoints mapped by RA 3046, save for at least nine  
basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the Thus, as the map below shows, the reach of the exclusive economic zone drawn under
length of one baseline (and thus comply with UNCLOS IIIs limitation on the maximum RA 9522 even extends way beyond the waters covered by the rectangular demarcation
length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough under the Treaty of Paris. Of course, where there are overlapping exclusive economic
Shoal lie outside of the baselines drawn around the Philippine archipelago. This zones of opposite or adjacent States, there will have to be a delineation of maritime
undeniable cartographic fact takes the wind out of petitioners argument branding RA boundaries in accordance with UNCLOS III.30
9522 as a statutory renunciation of the Philippines claim over the KIG, assuming that  
baselines are relevant for this purpose.
   
Petitioners assertion of loss of about 15,000 square nautical miles of territorial waters Further, petitioners argument that the KIG now lies outside Philippine territory because
under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522, the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself.
by optimizing the location of basepoints, increased the Philippines total maritime space Section 2 of the law commits to text the Philippines continued claim of sovereignty and
(covering its internal waters, territorial sea and exclusive economic zone) by 145,216 jurisdiction over the KIG and the Scarborough Shoal:
square nautical miles, as shown in the table below:29  
Extent of maritime area using Extent of maritime area SEC. 2. The baselines in the following areas over which the
Philippines likewise exercises sovereignty and jurisdiction shall be
RA 3046, as amended, taking using RA 9522, taking
into account the Treaty of Paris into account UNCLOS determined as Regime of Islands under the Republic of the Philippines
consistent with Article 121 of the United Nations Convention on the
delimitation (in square nautical III (in square nautical
miles) miles) Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential
Internal or     Decree No. 1596 and
archipelagic 166,858 171,435 b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis
waters supplied)
 
       
Territorial 274,136 32,106 Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part
Sea of the Philippine archipelago, adverse legal effects would have ensued. The Philippines
would have committed a breach of two provisions of UNCLOS III. First, Article 47 (3)
      of UNCLOS III requires that [t]he drawing of such baselines shall not depart to any
Exclusive     appreciable extent from the general configuration of the archipelago. Second, Article 47
(2) of UNCLOS III requires that the length of the baselines shall not exceed 100 nautical
miles, save for three per cent (3%) of the total number of baselines which can reach up
to 125 nautical miles.31
 
Although the Philippines has consistently claimed sovereignty over the
KIG32 and the Scarborough Shoal for several decades, these outlying areas are located at
an appreciable distance from the nearest shoreline of the Philippine archipelago, 33 such
that any straight baseline loped around them from the nearest basepoint will inevitably
depart to an appreciable extent from the general configuration of the archipelago.
 
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-
Santiago, took pains to emphasize the foregoing during the Senate deliberations:
 
What we call the Kalayaan Island Group or what the rest of the
world call[] the Spratlys and the Scarborough Shoal are outside our
archipelagic baseline because if we put them inside our baselines we
might be accused of violating the provision of international law which
states: The drawing of such baseline shall not depart to any
appreciable extent from the general configuration of the archipelago.
So sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil
malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa
atin although we are still allowed by international law to claim them as
our own.
 
This is called contested islands outside our configuration. We see that
our archipelago is defined by the orange line which [we] call[]
archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon
sa itaas, that is Scarborough Shoal, itong malaking circle sa ibaba, that
is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago
kaya kung ilihis pa natin ang dating archipelagic baselines para
lamang masama itong dalawang circles, hindi na sila magkalapit at
baka hindi na tatanggapin ng United Nations because of the rule that it
should follow the natural configuration of the archipelago.34 (Emphasis
supplied)
 
 
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs
limits. The need to shorten this baseline, and in addition, to optimize the location of
basepoints using current maps, became imperative as discussed by respondents:
 
[T]he amendment of the baselines law was necessary to enable
the Philippines to draw the outer limits of its maritime zones including
the extended continental shelf in the manner provided by Article 47 of
[UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the
baselines suffer from some technical deficiencies, to wit:
 
1.    The length of the baseline across Moro Gulf (from Middle of 3 Rock
Awash to Tongquil Point) is 140.06 nautical miles x x x. This exceeds
the maximum length allowed under Article 47(2) of the [UNCLOS III],
which states that The length of such baselines shall not exceed 100
nautical miles, except that up to 3 per cent of the total number of
baselines enclosing any archipelago may exceed that length, up to a
maximum length of 125 nautical miles.
2.    The selection of basepoints is not optimal. At least 9 basepoints can be
skipped or deleted from the baselines system. This will enclose an
additional 2,195 nautical miles of water.
3.    Finally, the basepoints were drawn from maps existing in 1968, and not
established by geodetic survey methods. Accordingly, some of the
points, particularly along the west coasts of Luzon down to Palawan
were later found to be located either inland or on water, not on low-
water line and drying reefs as prescribed by Article 47.35
 
 
Hence, far from surrendering the Philippines claim over the KIG and the
Scarborough Shoal, Congress decision to classify the KIG and the Scarborough Shoal as
Regime[s] of Islands under the Republic of the Philippines consistent with Article
12136 of UNCLOS III manifests the Philippine States responsible observance of
its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS
III, any naturally formed area of land, surrounded by water, which is above water at high
tide, such as portions of the KIG, qualifies under the category of regime of islands,
whose islands generate their own applicable maritime zones.37
Statutory Claim Over Sabah under RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its failure to textualize the
Philippines claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446,
which RA 9522 did not repeal, keeps open the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of
the Philippine Archipelago as provided in this Act is without prejudice
to the delineation of the baselines of the territorial sea around the
territory of Sabah, situated in North Borneo, over which the
Republic of the Philippines has acquired dominion and sovereignty.
(Emphasis supplied)
UNCLOS III and RA 9522 not Incompatible with the Constitutions Delineation of
Internal Waters
 
As their final argument against the validity of RA 9522, petitioners contend that the law
unconstitutionally converts internal waters into archipelagic waters, hence subjecting
these waters to the right of innocent and sea lanes passage under UNCLOS III, including
overflight. Petitioners extrapolate that these passage rights indubitably expose Philippine
internal waters to nuclear and maritime pollution hazards, in violation of the
Constitution.38
Whether referred to as Philippine internal waters under Article I of the Constitution39 or
as archipelagic waters under UNCLOS III (Article 49 [1]), the Philippines exercises
sovereignty over the body of water lying landward of the baselines, including the air
space over it and the submarine areas underneath. UNCLOS III affirms this:
 
Article 49. Legal status of archipelagic waters, of the air space
over archipelagic waters and of their bed and subsoil.
 
1.    The sovereignty of an archipelagic State extends to
the waters enclosed by the archipelagic
baselines drawn in accordance with article 47,
described as archipelagic waters, regardless of their
depth or distance from the coast.
2.    This sovereignty extends to the air space over the
archipelagic waters, as well as to their bed and
subsoil, and the resources contained therein.
xxxx
4. The regime of archipelagic sea lanes passage established in
this Part shall not in other respects affect the status of the
archipelagic waters, including the sea lanes, or the exercise by the
archipelagic State of its sovereignty over such waters and their air
space, bed and subsoil, and the resources contained therein.
(Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and
international law norms subjecting the territorial sea or archipelagic waters to necessary,
if not marginal, burdens in the interest of maintaining unimpeded, expeditious
international navigation, consistent with the international law principle of freedom of
navigation. Thus, domestically, the political branches of the Philippine government, in
the competent discharge of their constitutional powers, may pass legislation designating
routes within the archipelagic waters to regulate innocent and sea lanes
passage.40 Indeed, bills drawing nautical highways for sea lanes passage are now
pending in Congress.41
In the absence of municipal legislation, international law norms, now codified in
UNCLOS III, operate to grant innocent passage rights over the territorial sea or
archipelagic waters, subject to the treatys limitations and conditions for their
exercise.42 Significantly, the right of innocent passage is a customary international
law,43 thus automatically incorporated in the corpus of Philippine law. 44 No modern
State can validly invoke its sovereignty to absolutely forbid innocent passage that is
exercised in accordance with customary international law without risking retaliatory
measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both
the right of innocent passage and sea lanes passage45 does not place them in lesser
footing vis--vis continental coastal States which are subject, in their territorial sea, to the
right of innocent passage and the right of transit passage through international straits.
The imposition of these passage rights through archipelagic waters under UNCLOS III
was a concession by archipelagic States, in exchange for their right to claim all the
waters landward of their baselines, regardless of their depth or distance from the coast,
as archipelagic waters subject to their territorial sovereignty. More importantly, the
recognition of archipelagic States archipelago and the waters enclosed by their baselines
as one cohesive entity prevents the treatment of their islands as separate islands under
UNCLOS III.46 Separate islands generate their own maritime zones, placing the waters
between islands separated by more than 24 nautical miles beyond the States territorial
sovereignty, subjecting these waters to the rights of other States under UNCLOS III.47
 
 
Petitioners invocation of non-executory constitutional provisions in Article II
(Declaration of Principles and State Policies)48 must also fail. Our present state of
jurisprudence considers the provisions in Article II as mere legislative guides, which,
absent enabling legislation, do not embody judicially enforceable constitutional rights x
x x.49 Article II provisions serve as guides in formulating and interpreting implementing
legislation, as well as in interpreting executory provisions of the Constitution.
Although Oposa v. Factoran50treated the right to a healthful and balanced ecology under
Section 16 of Article II as an exception, the present petition lacks factual basis to
substantiate the claimed constitutional violation. The other provisions petitioners cite,
relating to the protection of marine wealth (Article XII, Section 2, paragraph 251) and
subsistence fishermen (Article XIII, Section 752), are not violated by RA 9522.
In fact, the demarcation of the baselines enables the Philippines to delimit its
exclusive economic zone, reserving solely to the Philippines the exploitation of all living
and non-living resources within such zone. Such a maritime delineation binds the
international community since the delineation is in strict observance of UNCLOS III. If
the maritime delineation is contrary to UNCLOS III, the international community will of
course reject it and will refuse to be bound by it.
UNCLOS III favors States with a long coastline like the Philippines. UNCLOS
III creates a sui generis maritime space the exclusive economic zone in waters
previously part of the high seas. UNCLOS III grants new rights to coastal States to
exclusively exploit the resources found within this zone up to 200 nautical
miles.53 UNCLOS III, however, preserves the traditional freedom of navigation of other
States that attached to this zone beyond the territorial sea before UNCLOS III.
RA 9522 and the Philippines Maritime Zones
 
Petitioners hold the view that, based on the permissive text of UNCLOS III,
Congress was not bound to pass RA 9522.54 We have looked at the relevant provision of
UNCLOS III55 and we find petitioners reading plausible. Nevertheless, the prerogative
of choosing this option belongs to Congress, not to this Court. Moreover, the luxury of
choosing this option comes at a very steep price. Absent an UNCLOS III compliant
baselines law, an archipelagic State like the Philippines will find itself devoid of
internationally acceptable baselines from where the breadth of its maritime zones and
continental shelf is measured. This is recipe for a two-fronted disaster: first, it sends an
open invitation to the seafaring powers to freely enter and exploit the resources in the
waters and submarine areas around our archipelago; and second, it weakens the countrys
case in any international dispute over Philippine maritime space. These are
consequences Congress wisely avoided.
 
The enactment of UNCLOS III compliant baselines law for the Philippine
archipelago and adjacent areas, as embodied in RA 9522, allows an internationally-
recognized delimitation of the breadth of the Philippines maritime zones and continental
shelf. RA 9522 is therefore a most vital step on the part of the Philippines in
safeguarding its maritime zones, consistent with the Constitution and our national
interest.
WHEREFORE, we DISMISS the petition.
 
SO ORDERED
G.R. No. L-32052 July 25, 1975
PHILIPPINE VIRGINIA TOBACCO ADMINISTRATION, petitioner, 
vs.
COURT OF INDUSTRIAL RELATIONS, respondents.
Gov't. Corp. Counsel Leopoldo M. Abellera, Trial Attorneys Manuel M. Lazaro and
Vicente Constantine, Jr., for petitioner.
Renato B. Kare and Simeon C. Sato for private respondents
FERNANDO, J.:
The principal issue that calls for resolution in this appeal by certiorari from an order of
respondent Court of Industrial Relations is one of constitutional significance. It is
concerned with the expanded role of government necessitated by the increased
responsibility to provide for the general welfare. More specifically, it deals with the
question of whether petitioner, the Philippine Virginia Tobacco Administration,
discharges governmental and not proprietary functions. The landmark opinion of the
then Justice, row Chief Justice, Makalintal in Agricultural Credit and Cooperative
Financing Administration v. Confederation of Unions in Government Corporations and
offices, points the way to the right answer.1 It interpreted the then fundamental law as
hostile to the view of a limited or negative state. It is antithetical to the laissez
faire concept. For as noted in an earlier decision, the welfare state concept "is not alien
to the philosophy of [the 1935] Constitution."2 It is much more so under the present
Charter, which is impressed with an even more explicit recognition of social and
economic rights.3 There is manifest, to recall Laski, "a definite increase in the profundity
of the social conscience," resulting in "a state which seeks to realize more fully the
common good of its members."4 It does not necessarily follow, however, just because
petitioner is engaged in governmental rather than proprietary functions, that the labor
controversy was beyond the jurisdiction of the now defunct respondent Court. Nor is the
objection raised that petitioner does not come within the coverage of the Eight-Hour
Labor Law persuasive.5 We cannot then grant the reversal sought. We affirm.
The facts are undisputed. On December 20, 1966, claimants, now private respondents,
filed with respondent Court a petition wherein they alleged their employment
relationship, the overtime services in excess of the regular eight hours a day rendered by
them, and the failure to pay them overtime compensation in accordance with
Commonwealth Act No. 444. Their prayer was for the differential between the amount
actually paid to them and the amount allegedly due them. 6 There was an answer filed by
petitioner Philippine Virginia Tobacco Administration denying the allegations and
raising the special defenses of lack of a cause of action and lack of jurisdiction. 7 The
issues were thereafter joined, and the case set for trial, with both parties presenting their
evidence.8 After the parties submitted the case for decision, the then Presiding Judge
Arsenio T. Martinez of respondent Court issued an order sustaining the claims of private
respondents for overtime services from December 23, 1963 up to the date the decision
was rendered on March 21, 1970, and directing petitioner to pay the same, minus what it
had already paid.9 There was a motion for reconsideration, but respondent Court en
banc denied the same. 10 Hence this petition for certiorari.
Petitioner Philippine Virginia Tobacco Administration, as had been noted, would
predicate its plea for the reversal of the order complained of on the basic proposition that
it is beyond the jurisdiction of respondent Court as it is exercising governmental
functions and that it is exempt from the operation of Commonwealth Act No.
444. 11 While, to repeat, its submission as to the governmental character of its operation
is to be given credence, it is not a necessary consequence that respondent Court is
devoid of jurisdiction. Nor could the challenged order be set aside on the additional
argument that the Eight-Hour Labor Law is not applicable to it. So it was, at the outset,
made clear.
1. A reference to the enactments creating petitioner corporation suffices to demonstrate
the merit of petitioner's plea that it performs governmental and not proprietary functions.
As originally established by Republic Act No. 2265, 12 its purposes and objectives were
set forth thus: "(a) To promote the effective merchandising of Virginia tobacco in the
domestic and foreign markets so that those engaged in the industry will be placed on a
basis of economic security; (b) To establish and maintain balanced production and
consumption of Virginia tobacco and its manufactured products, and such marketing
conditions as will insure and stabilize the price of a level sufficient to cover the cost of
production plus reasonable profit both in the local as well as in the foreign market; (c)
To create, establish, maintain, and operate processing, warehousing and marketing
facilities in suitable centers and supervise the selling and buying of Virginia tobacco so
that the farmers will enjoy reasonable prices that secure a fair return of their
investments; (d) To prescribe rules and regulations governing the grading, classifying,
and inspecting of Virginia tobacco; and (e) To improve the living and economic
conditions of the people engaged in the tobacco industry." 13The amendatory statute,
Republic Act No. 4155, 14 renders even more evident its nature as a governmental
agency. Its first section on the declaration of policy reads: "It is declared to be the
national policy, with respect to the local Virginia tobacco industry, to encourage the
production of local Virginia tobacco of the qualities needed and in quantities marketable
in both domestic and foreign markets, to establish this industry on an efficient and
economic basis, and, to create a climate conducive to local cigarette manufacture of the
qualities desired by the consuming public, blending imported and native Virginia leaf
tobacco to improve the quality of locally manufactured cigarettes." 15 The objectives are
set forth thus: "To attain this national policy the following objectives are hereby
adopted: 1. Financing; 2. Marketing; 3. The disposal of stocks of the Agricultural Credit
Administration (ACA) and the Philippine Virginia Tobacco Administration (PVTA) at
the best obtainable prices and conditions in order that a reinvigorated Virginia tobacco
industry may be established on a sound basis; and 4. Improving the quality of locally
manufactured cigarettes through blending of imported and native Virginia leaf tobacco;
such importation with corresponding exportation at a ratio of one kilo of imported to
four kilos of exported Virginia tobacco, purchased by the importer-exporter from the
Philippine Virginia Tobacco Administration." 16
It is thus readily apparent from a cursory perusal of such statutory provisions why
petitioner can rightfully invoke the doctrine announced in the leading Agricultural
Credit and Cooperative Financing Administration decision 17 and why the objection of
private respondents with its overtones of the distinction between constituent and
ministrant functions of governments as set forth in Bacani v. National Coconut
Corporation 18 if futile. The irrelevance of such a distinction considering the needs of the
times was clearly pointed out by the present Chief Justice, who took note, speaking of
the reconstituted Agricultural Credit Administration, that functions of that sort "may not
be strictly what President Wilson described as "constituent" (as distinguished from
"ministrant"),such as those relating to the maintenance of peace and the prevention of
crime, those regulating property and property rights, those relating to the administration
of justice and the determination of political duties of citizens, and those relating to
national defense and foreign relations. Under this traditional classification, such
constituent functions are exercised by the State as attributes of sovereignty, and not
merely to promote the welfare, progress and prosperity of the people — these latter
functions being ministrant, the exercise of which is optional on the part of the
government." 19Nonetheless, as he explained so persuasively: "The growing
complexities of modern society, however, have rendered this traditional classification of
the functions of government quite unrealistic, not to say obsolete. The areas which used
to be left to private enterprise and initiative and which the government was called upon
to enter optionally, and only "because it was better equipped to administer for the public
welfare than is any private individual or group of individuals", continue to lose their
well-defined boundaries and to be absorbed within activities that the government must
undertake in its sovereign capacity if it is to meet the increasing social challenges of the
times. Here as almost everywhere else the tendency is undoubtedly towards a greater
socialization of economic forces. Here of course this development was envisioned,
indeed adopted as a national policy, by the Constitution itself in its declaration of
principle concerning the promotion of social justice." 20 Thus was laid to rest the
doctrine in Bacani v. National Coconut Corporation, 21 based on the Wilsonian
classification of the tasks incumbent on government into constituent and ministrant in
accordance with the laissez faire principle. That concept, then dominant in economics,
was carried into the governmental sphere, as noted in a textbook on political
science, 22 the first edition of which was published in 1898, its author being the then
Professor, later American President, Woodrow Wilson. He took pains to emphasize that
what was categorized by him as constituent functions had its basis in a recognition of
what was demanded by the "strictest [concept of] laissez faire, [as they] are indeed the
very bonds of society." 23 The other functions he would minimize as ministrant or
optional.
It is a matter of law that in the Philippines, the laissez faire principle hardly commanded
the authoritative position which at one time it held in the United States. As early as
1919, Justice Malcolm in Rubi v. Provincial Board  24 could affirm: "The doctrines
of laissez faire and of unrestricted freedom of the individual, as axioms of economic and
political theory, are of the past. The modern period has shown a widespread belief in the
amplest possible demonstration of government activity." 25 The 1935 Constitution, as
was indicated earlier, continued that approach. As noted in Edu v. Ericta:26 "What is
more, to erase any doubts, the Constitutional Convention saw to it that the concept
of laissez-faire was rejected. It entrusted to our government the responsibility of coping
with social and economic problems with the commensurate power of control over
economic affairs. Thereby it could live up to its commitment to promote the general
welfare through state action." 27 Nor did the opinion in Edu stop there: "To repeat, our
Constitution which took effect in 1935 erased whatever doubts there might be on that
score. Its philosophy is a repudiation of laissez-faire. One of the leading members of the
Constitutional Convention, Manuel A. Roxas, later the first President of the Republic,
made it clear when he disposed of the objection of Delegate Jose Reyes of Sorsogon,
who noted the "vast extensions in the sphere of governmental functions" and the "almost
unlimited power to interfere in the affairs of industry and agriculture as well as to
compete with existing business" as "reflections of the fascination exerted by [the then]
current tendencies' in other jurisdictions. He spoke thus: "My answer is that this
constitution has a definite and well defined philosophy, not only political but social and
economic.... If in this Constitution the gentlemen will find declarations of economic
policy they are there because they are necessary to safeguard the interest and welfare of
the Filipino people because we believe that the days have come when in self-defense, a
nation may provide in its constitution those safeguards, the patrimony, the freedom to
grow, the freedom to develop national aspirations and national interests, not to be
hampered by the artificial boundaries which a constitutional provision automatically
imposes." 28
It would be then to reject what was so emphatically stressed in the Agricultural Credit
Administration decision about which the observation was earlier made that it reflected
the philosophy of the 1935 Constitution and is even more in consonance with the
expanded role of government accorded recognition in the present Charter if the plea of
petitioner that it discharges governmental function were not heeded. That path this Court
is not prepared to take. That would be to go backward, to retreat rather than to advance.
Nothing can thus be clearer than that there is no constitutional obstacle to a government
pursuing lines of endeavor, formerly reserved for private enterprise. This is one way, in
the language of Laski, by which through such activities, "the harsh contract which
[does] obtain between the levels of the rich and the poor" may be minimized. 29 It is a
response to a trend noted by Justice Laurel in Calalang v. Williams 30 for the
humanization of laws and the promotion of the interest of all component elements of
society so that man's innate aspirations, in what was so felicitously termed by the First
Lady as "a compassionate society" be attained. 31
2. The success that attended the efforts of petitioner to be adjudged as performing
governmental rather than proprietary functions cannot militate against respondent Court
assuming jurisdiction over this labor dispute. So it was mentioned earlier. As far back
as Tabora v. Montelibano, 32 this Court, speaking through Justice Padilla, declared: The
NARIC was established by the Government to protect the people against excessive or
unreasonable rise in the price of cereals by unscrupulous dealers. With that main
objective there is no reason why its function should not be deemed governmental. The
Government owes its very existence to that aim and purpose — to protect the
people." 33 In a subsequent case, Naric Worker's Union v. Hon. Alvendia, 34 decided four
years later, this Court, relying on Philippine Association of Free Labor Unions v.
Tan, 35 which specified the cases within the exclusive jurisdiction of the Court of
Industrial Relations, included among which is one that involves hours of employment
under the Eight-Hour Labor Law, ruled that it is precisely respondent Court and not
ordinary courts that should pass upon that particular labor controversy. For Justice J. B.
L. Reyes, the ponente, the fact that there were judicial as well as administrative and
executive pronouncements to the effect that the Naric was performing governmental
functions did not suffice to confer competence on the then respondent Judge to issue a
preliminary injunction and to entertain a complaint for damages, which as pointed out
by the labor union, was connected with an unfair labor practice. This is emphasized by
the dispositive portion of the decision: "Wherefore, the restraining orders complained of,
dated May 19, 1958 and May 27, 1958, are set aside, and the complaint is ordered
dismissed, without prejudice to the National Rice and Corn Corporation's seeking
whatever remedy it is entitled to in the Court of Industrial Relations." 36 Then, too, in a
case involving petitioner itself, Philippine Virginia Tobacco Administration, 37 where the
point in dispute was whether it was respondent Court or a court of first instance that is
possessed of competence in a declaratory relief petition for the interpretation of a
collective bargaining agreement, one that could readily be thought of as pertaining to the
judiciary, the answer was that "unless the law speaks clearly and unequivocally, the
choice should fall on the Court of Industrial Relations." 38 Reference to a number of
decisions which recognized in the then respondent Court the jurisdiction to determine
labor controversies by government-owned or controlled corporations lends to support to
such an approach. 39 Nor could it be explained only on the assumption that proprietary
rather than governmental functions did call for such a conclusion. It is to be admitted
that such a view was not previously bereft of plausibility. With the aforecited
Agricultural Credit and Cooperative Financing Administration decision rendering
obsolete the Bacani doctrine, it has, to use a Wilsonian phrase, now lapsed into
"innocuous desuetude." 40 Respondent Court clearly was vested with jurisdiction.
3. The contention of petitioner that the Eight-Hour Labor Law 41 does not apply to it
hardly deserves any extended consideration. There is an air of casualness in the way
such an argument was advanced in its petition for review as well as in its brief. In both
pleadings, it devoted less than a full page to its discussion. There is much to be said for
brevity, but not in this case. Such a terse and summary treatment appears to be a
reflection more of the inherent weakness of the plea rather than the possession of an
advocate's enviable talent for concision. It did cite Section 2 of the Act, but its very
language leaves no doubt that "it shall apply to all persons employed in any industry or
occupation, whether public or private ... ." 42 Nor are private respondents included
among the employees who are thereby barred from enjoying the statutory benefits. It
cited Marcelo v. Philippine National Red Cross 43 and Boy Scouts of the Philippines v.
Araos.44 Certainly, the activities to which the two above public corporations devote
themselves can easily be distinguished from that engaged in by petitioner. A reference to
the pertinent sections of both Republic Acts 2265 and 2155 on which it relies to obtain a
ruling as to its governmental character should render clear the differentiation that exists.
If as a result of the appealed order, financial burden would have to be borne by
petitioner, it has only itself to blame. It need not have required private respondents to
render overtime service. It can hardly be surmised that one of its chief problems is
paucity of personnel. That would indeed be a cause for astonishment. It would appear,
therefore, that such an objection based on this ground certainly cannot suffice for a
reversal. To repeat, respondent Court must be sustained.
WHEREFORE, the appealed Order of March 21, 1970 and the Resolution of respondent
Court en banc of May 8, 1970 denying a motion for reconsideration are hereby
affirmed. The last sentence of the Order of March 21, 1970 reads as follows: "To find
how much each of them [private respondents] is entitled under this judgment, the Chief
of the Examining Division, or any of his authorized representative, is hereby directed to
make a reexamination of records, papers and documents in the possession of respondent
PVTA pertinent and proper under the premises and to submit his report of his findings to
the Court for further disposition thereof." Accordingly, as provided by the New Labor
Code, this case is referred to the National Labor Relations Commission for further
proceedings conformably to law. No costs.
G.R. No. L-21484          November 29, 1969
THE AGRICULTURAL CREDIT and COOPERATIVE FINANCING
ADMINISTRATION (ACCFA), petitioner,  bargaining agreement in order to discourage the members of the Unions in the exercise
vs.
ACCFA SUPERVISORS' ASSOCIATION, ACCFA WORKERS' ASSOCIATION,
and THE COURT OF INDUSTRIAL RELATIONS, respondents.
Deogracias E. Lerma and Esmeraldo U. Guloy for petitioner Agricultural Credit and
Cooperative Financing Administration.
Office of the Agrarian Counsel, Department of Justice for petitioner Agricultural Credit
Administration
J. C. Espinas and Associates for respendents Confederation of Unions in Government
Corporations Offices, et al. Mariano B. Tuason for respondent Court of Industrial
Relations.
MAKALINTAL, J.:
These are two separate appeals by certiorari from the decision dated March 25, 1963
(G.R. No. L-21484) and the order dated May 21, 1964 (G.R. No. L-23605) as affirmed
by the resolutions en banc, of the Court of Industrial Relations, in Cases Nos. 3450-ULP
and 1327-MC, respectively. The parties, except the Confederation of Unions in
Government Corporations and Offices (CUGCO), being practically the same and the
principal issues involved related, only one decision is now rendered in these two cases.
The Agricultural Credit and Cooperative Financing Administration (ACCFA) was a
government agency created under Republic Act No. 821, as amended. Its administrative
machinery was reorganized and its name changed to Agricultural Credit Administration
(ACA) under the Land Reform Code (Republic Act No. 3844). On the other hand, the
ACCFA Supervisors' Association (ASA) and the ACCFA Workers' Association (AWA),
hereinafter referred to as the Unions, are labor organizations composed of the
supervisors and the rank-and-file employees, respectively, in the ACCFA (now ACA).
G.R. No. L-21484
On September 4, 1961 a collective bargaining agreement, which was to be effective for
a period of one (1) year from July 1, 1961, was entered into by and between the Unions
and the ACCFA. A few months thereafter, the Unions started protesting against alleged
violations and non-implementation of said agreement. Finally, on October 25, 1962 the
Unions declared a strike, which was ended when the strikers voluntarily returned to
work on November 26, 1962.
On October 30, 1962 the Unions, together with its mother union, the Confederation of
Unions in Government Corporations and Offices (CUGCO), filed a complaint with the
Court of Industrial Relations against the ACCFA (Case No. 3450-ULP) for having
allegedly committed acts of unfair labor practice, namely: violation of the collective
of their right to self-organization, discrimination against said members in the matter of
promotions, and refusal to bargain. The ACCFA denied the charges and interposed as
affirmative and special defenses lack of jurisdiction of the CIR over the case, illegality
of the bargaining contract, expiration of said contract and lack of approval by the office
of the President of the fringe benefits provided for therein. Brushing aside the foregoing
defenses, the CIR in its decision dated March 25, 1963 ordered the ACCFA:
1. To cease and desist from committing further acts tending to discourage the
members of complainant unions in the exercise of their right to self-
organization;
2. To comply with and implement the provision of the collective bargaining
contract executed on September 4, 1961, including the payment of P30.00 a
month living allowance;
3. To bargain in good faith and expeditiously with the herein complainants.
The ACCFA moved to reconsider but was turned down in a resolution dated April 25,
1963 of the CIR en banc. Thereupon it brought this appeal by certiorari.
The ACCFA raises the following issues in its petition, to wit:
1. Whether or not the respondent court has jurisdiction over this case, which in
turn depends on whether or not ACCFA exercised governmental or proprietary
functions.
2. Whether or not the collective bargaining agreement between the petitioner
and the respondent union is valid; if valid, whether or not it has already lapsed;
and if not, whether or not its (sic) fringe benefits are already enforceable.
 3. Whether or not there is a legal and/or factual basis for the finding of the
respondent court that the petitioner had committed acts of unfair labor practice.
4. Whether or not it is within the competence of the court to enforce the
collective bargaining agreement between the petitioner and the respondent
unions, the same having already expired.
G.R. No. L-23605
During the pendency of the above mentioned case (G.R. No. L-21484), specifically on
August 8, 1963, the President of the Philippines signed into law the Agricultural Land
Reform Code (Republic Act No. 3844), which among other things required the
reorganization of the administrative machinery of the Agricultural Credit and
Cooperative Financing Administration (ACCFA) and changed its name to Agricultural
Credit Administration (ACA). On March 17, 1964 the ACCFA Supervisors' Association
and the ACCFA Workers' Association filed a petition for certification election with the
Court of Industrial Relations (Case No. 1327-MC) praying that they be certified as the
exclusive bargaining agents for the supervisors and rank-and-file employees,
respectively, in the ACA. The trial Court in its order dated March 30, 1964 directed the
Manager or Officer-in-Charge of the ACA to allow the posting of said order "for the
information of all employees and workers thereof," and to answer the petition. In
compliance therewith, the ACA, while admitting most of the allegations in the petition,
denied that the Unions represented the majority of the supervisors and rank-and-file
workers, respectively, in the ACA. It further alleged that the petition was premature, that
the ACA was not the proper party to be notified and to answer the petition, and that the
employees and supervisors could not lawfully become members of the Unions, nor be
represented by them. However, in a joint manifestation of the Unions dated May 7,
1964, with the conformity of the ACA Administrator and of the Agrarian Counsel in his
capacity as such and as counsel for the National Land Reform Council, it was agreed
"that the union petitioners in this case represent the majority of the employees in their
respective bargaining units" and that only the legal issues raised would be submitted for
the resolution of the trial Court.
Finding the remaining grounds for ACA's opposition to the petition to be without merit,
the trial Court in its order dated May 21, 1964 certified "the ACCFA Workers'
Association and the ACCFA Supervisors' Association as the sole and exclusive
bargaining representatives of the rank-and-file employees and supervisors, respectively,
of the Agricultural Credit Administration." Said order was affirmed by the CIR en
banc in its resolution dated August 24, 1964.
On October 2, 1964 the ACA filed in this Court a petition for certiorari with urgent
motion to stay the CIR order of May 21, 1964. In a resolution dated October 6, 1964,
this Court dismissed the petition for "lack of adequate allegations," but the dismissal
was later reconsidered when the ACA complied with the formal requirement stated in
said resolution. As prayed for, this Court ordered the CIR to stay the execution of its
order of May 21, 1964.
In this appeal, the ACA in effect challenges the jurisdiction of the CIR to entertain the
petition of the Unions for certification election on the ground that it (ACA) is engaged in
governmental functions. The Unions join the issue on this single point, contending that
the ACA forms proprietary functions.
Under Section 3 of the Agricultural Land Reform Code the ACA was established,
among other governmental agencies,1 to extend credit and similar assistance to
agriculture, in pursuance of the policy enunciated in Section 2 as follows:
SEC. 2. Declaration of Policy. — It is the policy of the State:
(1) To establish owner-cultivatorships and the economic family-size farm as the
basis of Philippine agriculture and, as a consequence, divert landlord capital in
agriculture to industrial development;
(2) To achieve a dignified existence for the small farmers free from pernicious
institutional restraints and practices;
(3) To create a truly viable social and economic structure in agriculture
conducive to greater productivity and higher farm incomes;
(4) To apply all labor laws equally and without discrimination to both industrial
and agricultural wage earners;
(5) To provide a more vigorous and systematic land resettlement program and
public land distribution; and
(6) To make the small farmers more independent, self-reliant and responsible
citizens, and a source of genuine strength in our democratic society.
The implementation of the policy thus enunciated, insofar as the role of the ACA therein
is concerned, is spelled out in Sections 110 to 118, inclusive, of the Land Reform Code.
Section 110 provides that "the administrative machinery of the ACCFA shall be
reorganized to enable it to align its activities with the requirements and objective of this
Code and shall be known as the Agricultural Credit Administration." Under Section 112
the sum of P150,000,000 was appropriated out of national funds to finance the
additional credit functions of the ACA as a result of the land reform program laid down
in the Code. Section 103 grants the ACA the privilege of rediscounting with the Central
Bank, the Development Bank of the Philippines and the Philippine National Bank.
Section 105 directs the loaning activities of the ACA "to stimulate the development of
farmers' cooperatives," including those "relating to the production and marketing of
agricultural products and those formed to manage and/or own, on a cooperative basis,
services and facilities, such as irrigation and transport systems, established to support
production and/or marketing of agricultural products." Section 106 deals with the
extension by ACA of credit to small farmers in order to stimulate agricultural
production. Sections 107 to 112 lay down certain guidelines to be followed in
connection with the granting of loans, such as security, interest and supervision of
credit. Sections 113 to 118, inclusive, invest the ACA with certain rights and powers not
accorded to non-governmental entities, thus:
SEC. 113. Auditing of Operations. — For the effective supervision of farmers'
cooperatives, the head of the Agricultural Credit Administration shall have the
power to audit their operations, records and books of account and to issue
subpoena and subpoena duces tecum to compel the attendance of witnesses and
the production of books, documents and records in the conduct of such audit or
of any inquiry into their affairs. Any person who, without lawful cause, fails to
obey such subpoena or subpoena duces tecum shall, upon application of the
head of Agricultural Credit Administration with the proper court, be liable to
punishment for contempt in the manner provided by law and if he is an officer
of the Association, to suspension or removal from office.
SEC. 114. Prosecution of officials. — The Agricultural Credit Administration,
through the appropriate provincial or city fiscal, shall have the power to file and
prosecute any and all actions which it may have against any and all officials or
employees of farmers' cooperatives arising from misfeasance or malfeasance in
office.
SEC. 115. Free Notarial Service. — Any justice of the peace, in his capacity as
notary ex-officio, shall render service free of charge to any person applying for
a loan under this Code either in administering the oath or in the
acknowledgment of instruments relating to such loan.
SEC. 116. Free Registration of Deeds. — Any register of deeds shall accept for
registration, free of charge any instrument relative to a loan made under this
Code.
SEC. 117. Writing-off Unsecured and Outstanding Loans. — Subject to the
approval of the President upon recommendation of the Auditor General, the
Agricultural Credit Administration may write-off from its books, unsecured and
outstanding loans and accounts receivable which may become uncollectible by
reason of the death or disappearance of the debtor, should there be no visible
means of collecting the same in the foreseeable future, or where the debtor has
been verified to have no income or property whatsoever with which to effect
payment. In all cases, the writing-off shall be after five years from the date the
debtor defaults.
SEC. 118. Exemption from Duties, Taxes and Levies. — The Agricultural Credit
Administration is hereby exempted from the payment of all duties, taxes, levies,
and fees, including docket and sheriff's fees, of whatever nature or kind, in the
performance of its functions and in the exercise of its powers hereunder.
The power to audit the operations of farmers' cooperatives and otherwise inquire into
their affairs, as given by Section 113, is in the nature of the visitorial power of the
sovereign, which only a government agency specially delegated to do so by the
Congress may legally exercise.
On March 19, 1964 Executive Order No. 75 was promulgated. It is entitled: "Rendering
in Full Force and Effect the Plan of Reorganization Proposed by the Special Committee
on Reorganization of Agencies for Land Reform for the Administrative Machinery of
the Agricultural Land Reform Code," and contains the following pertinent provisions:
Section 3. The Land Reform Project Administration2 shall be considered a
single organization and the personnel complement of the member agencies
including the legal officers of the Office of the Agrarian Counsel which shall
provide legal services to the LRPA shall be regarded as one personnel pool from
which the requirements of the operations shall be drawn and subject only to the
civil service laws, rules and regulations, persons from one agency may be freely
assigned to positions in another agency within the LRPA when the interest of
the service so demands.
Section 4. The Land Reform Project Administration shall be considered as one
organization with respect to the standardization of job descriptions position
classification and wage and salary structures to the end that positions involving
the same or equivalent qualifications and equal responsibilities and effort shall
have the same remuneration.
Section 5. The Civil Service laws, rules and regulations with respect to
promotions, particularly in the consideration of person next in rank, shall be
made applicable to the Land Reform Project Administration as a single agency
so that qualified individuals in one member agency must be considered in
considering promotion to higher positions in another member agency.
The implementation of the land reform program of the government according to
Republic Act No. 3844 is most certainly a governmental, not a proprietary, function; and
for that purpose Executive Order No. 75 has placed the ACA under the Land Reform
Project Administration together with the other member agencies, the personnel
complement of all of which are placed in one single pool and made available for
assignment from one agency to another, subject only to Civil Service laws, rules and
regulations, position classification and wage structures.
The appointing authority in respect of the officials and employees of the ACA is the
President of the Philippines, as stated in a 1st indorsement by his office to the Chairman
of the National Reform Council dated May 22, 1964, as follows:
Appointments of officials and employees of the National Land Reform Council
and its agencies may be made only by the President, pursuant to the provisions
of Section 79(D) of the Revised Administrative Code. In accordance with the
policy and practice, such appointments should be prepared for the signature of
the Executive Secretary, "By Authority ofthe President".3
When the Agricultural Reform Code was being considered by the Congress, the nature
of the ACA was the subject of the following exposition on the Senate floor:
Senator Tolentino: . . . . "The ACA is not going to be a profit making institution.
It is supposed to be a public service of the government to the lessees and farmer-
owners of the lands that may be bought after expropriation from owners. It is the
government here that is the lender. The government should not exact a higher
interest than what we are telling a private landowner now in his relation to his
tenants if we give to their farmers a higher rate of interest . . . ." (pp. 17 & 18,
Senate Journal No. 16, July 3, 1963)
The reason is obvious, to pinpoint responsibility for many losses in the government, in
order to avoid irresponsible lending of government money — to pinpoint responsibility
for many losses . . . .
Senator Manglapus: ". . . But assuming that hypothesis, that is the reason why
we are appropriating P150,000,000.00 for the Agricultural Credit
Administration which will go to intensified credit operations on the barrio level .
. ." (p. 3, Senate Journal No. 7).
That it is the reason why we are providing for the expansion of the ACCFA and the
weeding out of the cooperative activity of the ACCFA and turning this over to the
Agricultural Productivity Commission, so that the Agricultural Credit Administration
will concentrate entirely on the facilitation of credit on the barrio level with the massive
support of 150 million provided by the government. . . . (pp. 4 & 5 of Senate Journal No.
7, July 3, 1963)
. . . But by releasing them from this situation, we feel that we are putting them in a much
better condition than that in which they are found by providing them with a business-
like way of obtaining credit, not depending on a paternalistic system but one which is
business-like — that is to say, a government office, which on the barrio level will
provide them that credit directly . . . . (p. 40, Senate Journal No. 7, July 3, 1963)
(emphasis supplied).
The considerations set forth above militate quite strongly against the recognition of
collective bargaining powers in the respondent Unions within the context of Republic
Act No. 875, and hence against the grant of their basic petition for certification election
as proper bargaining units. The ACA is a government office or agency engaged in
governmental, not proprietary functions. These functions may not be strictly what
President Wilson described as "constituent" (as distinguished from "ministrant"),4 such
as those relating to the maintenance of peace and the prevention of crime, those
regulating property and property rights, those relating to the administration of justice
and the determination of political duties of citizens, and those relating to national
defense and foreign relations. Under this traditional classification, such constituent
functions are exercised by the State as attributes of sovereignty, and not merely to
promote the welfare, progress and prosperity of the people — these letter functions
being ministrant he exercise of which is optional on the part of the government.
The growing complexities of modern society, however, have rendered this traditional
classification of the functions of government quite unrealistic, not to say obsolete. The
areas which used to be left to private enterprise and initiative and which the government
was called upon to enter optionally, and only "because it was better equipped to
administer for the public welfare than is any private individual or group of
individuals,"5 continue to lose their well-defined boundaries and to be absorbed within
activities that the government must undertake in its sovereign capacity if it is to meet the
increasing social challenges of the times. Here as almost everywhere else the tendency is
undoubtedly towards a greater socialization of economic forces. Here of course this
development was envisioned, indeed adopted as a national policy, by the Constitution
itself in its declaration of principle concerning the promotion of social justice.
It was in furtherance of such policy that the Land Reform Code was enacted and the
various agencies, the ACA among them, established to carry out its purposes. There can
be no dispute as to the fact that the land reform program contemplated in the said Code
is beyond the capabilities of any private enterprise to translate into reality. It is a purely
governmental function, no less than, say, the establishment and maintenance of public
schools and public hospitals. And when, aside from the governmental objectives of the
ACA, geared as they are to the implementation of the land reform program of the State,
the law itself declares that the ACA is a government office, with the formulation of
policies, plans and programs vested no longer in a Board of Governors, as in the case of
the ACCFA, but in the National Land Reform Council, itself a government
instrumentality; and that its personnel are subject to Civil Service laws and to rules of
standardization with respect to positions and salaries, any vestige of doubt as to the
governmental character of its functions disappears.
In view of the foregoing premises, we hold that the respondent Unions are not entitled to
the certification election sought in the Court below. Such certification is admittedly for
purposes of bargaining in behalf of the employees with respect to terms and conditions
of employment, including the right to strike as a coercive economic weapon, as in fact
the said unions did strike in 1962 against the ACCFA (G.R. No. L-21824). 6 This is
contrary to Section 11 of Republic Act No. 875, which provides:
SEC. 11. Prohibition Against Strike in the Government — The terms and
conditions of employment in the Government, including any political
subdivision or instrumentality thereof, are governed by law and it is declared to
be the policy of this Act that employees therein shall not strike for the purposes
of securing changes or modification in their terms and conditions of
employment. Such employees may belong to any labor organization which does
not impose the obligation to strike or to join in strike: Provided, However, that
this section shall apply only to employees employed in governmental functions
of the Government including but not limited to governmental corporations.7
With the reorganization of the ACCFA and its conversion into the ACA under the Land
Reform Code and in view of our ruling as to the governmental character of the functions
of the ACA, the decision of the respondent Court dated March 25, 1963, and the
resolution en banc affirming it, in the unfair labor practice case filed by the ACCFA,
which decision is the subject of the present review in G. R. No. L-21484, has become
moot and academic, particularly insofar as the order to bargain collectively with the
respondent Unions is concerned.
What remains to be resolved is the question of fringe benefits provided for in the
collective bargaining contract of September 4, 1961. The position of the ACCFA in this
regard is that the said fringe benefits have not become enforceable because the condition
that they should first be approved by the Office of the President has not been complied
with. The Unions, on the other hand, contend that no such condition existed in the
bargaining contract, and the respondent Court upheld this contention in its decision.
It is to be listed that under Section 3, Article XIV, of the agreement, the same "shall not
become effective unless and until the same is duly ratified by the Board of Governors of
the Administration." Such approval was given even before the formal execution of the
agreement, by virtue of "Resolution No. 67, Regular Meeting No. 7, FY 1960-61, held
on August 17, 1961," but with the proviso that "the fringe benefits contained therein
shall take effect only if approved by the office of the President." The condition is,
therefore, deemed to be incorporated into the agreement by reference.
On October 23, 1962 the Office of the President, in a letter signed by the Executive
Secretary, expressed its approval of the bargaining contract "provided the salaries and
benefits therein fixed are not in conflict with applicable laws and regulations, are
believed to be reasonable considering the exigencies of the service and the welfare of
the employees, and are well within the financial ability of the particular corporation to
bear."
On July 1, 1963 the ACCFA management and the Unions entered into an agreement for
the implementation of the decision of the respondent Court concerning the fringe
benefits, thus:
In the meantime, only Cost of Living Adjustment, Longevity Pay, and Night
Differential Benefits accruing from July 1, 1961 to June 30, 1963 shall be paid
to all employees entitled thereto, in the following manner:
A) The sum of P180,000 shall be set aside for the payment of:
1) Night differential benefits for Security Guards.
2) Cost of Living Adjustment and Longevity Pay.
3) The unpaid balance due employees on Item A (1) and (2) this paragraph shall
be paid in monthly installments as finances permit but not beyond December 20,
1963.
3. All benefits accruing after July 1, 1963, shall be allowed to accumulate but
payable only after all benefits accruing up to June 30, 1963, as per CIR decision
hereinabove referred to shall have been settled in full; provided, however, that
commencing July 1, 1963 and for a period of only two (2) months thereafter
(during which period the ACCFA and the Unions shall negotiate a new
Collective Bargaining Agreement) the provisions of the September 4, 1961
Collective Bargaining Agreement shall be temporarily suspended, except as to
Cost of Living Adjustment and "political" or non-economic privileges and
benefits thereunder.
On July 24, 1963 the ACCFA Board of Governors ratified the agreement thus entered
into, pursuant to the provision thereof requiring such ratification, but with the express
qualification that the same was "without prejudice to the pending appeal in the Supreme
Court . . . in Case No. 3450-ULP." The payment of the fringe benefits agreed upon, to
our mind, shows that the same were within the financial capability of the ACCFA then,
and hence justifies the conclusion that this particular condition imposed by the Office of
the President in its approval of the bargaining contract was satisfied.
We hold, therefore, that insofar as the fringe benefits already paid are concerned, there is
no reason to set aside the decision of the respondent Court, but that since the respondent
Unions have no right to the certification election sought by them nor, consequently, to
bargain collectively with the petitioner, no further fringe benefits may be demanded on
the basis of any collective bargaining agreement.
The decisions and orders appealed from are set aside and/or modified in accordance with
the foregoing pronouncements. No costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Sanchez, Castro, Teehankee and Barredo,
JJ., concur.
Zaldivar, J., concurs in the result.
G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE ALFONSO, all surnamed
OPOSA, petitioners,  acting in his behalf to —
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 Environment and Natural Resources (DENR). His substitution in this
petition by the new Secretary, the Honorable Angel C. Alcala, was subsequently ordered
upon proper motion by the petitioners.1 The complaint2 was instituted as a taxpayers'
class suit3 and alleges that the plaintiffs "are all citizens of the Republic of the
Philippines, taxpayers, and entitled to the full benefit, use and enjoyment of the natural
resource treasure that is the country's virgin tropical forests." The same was filed for
themselves and others who are equally concerned about the preservation of said resource
but are "so numerous that it is impracticable to bring them all before the Court." The
minors further asseverate that they "represent their generation as well as generations yet
unborn."4 Consequently, it is prayed for that judgment be rendered:
. . . ordering defendant, his agents, representatives and other persons
(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.7 In the said order, not only was the defendant's claim — that the complaint
states no cause of action against him and that it raises a political question — sustained,
the respondent Judge further ruled that the granting of the relief prayed for would result
in the impairment of contracts which is prohibited by the fundamental law of the land.
Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the
Revised Rules of Court and ask this Court to rescind and set aside the dismissal order on
the ground that the respondent Judge gravely abused his discretion in dismissing the
action. Again, the parents of the plaintiffs-minors not only represent their children, but
have also joined the latter in this case.8
On 14 May 1992, We resolved to give due course to the petition and required the parties
to submit their respective Memoranda after the Office of the Solicitor General (OSG)
filed a Comment in behalf of the respondents and the petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and unmistakably states a cause of action
as it contains sufficient allegations concerning their right to a sound environment based
on Articles 19, 20 and 21 of the Civil Code (Human Relations), Section 4 of Executive
Order (E.O.) No. 192 creating the DENR, Section 3 of Presidential Decree (P.D.) No.
1151 (Philippine Environmental Policy), Section 16, Article II of the 1987 Constitution
recognizing the right of the people to a balanced and healthful ecology, the concept of
generational genocide in Criminal Law and the concept of man's inalienable right to
self-preservation and self-perpetuation embodied in natural law. Petitioners likewise rely
on the respondent's correlative obligation per Section 4 of E.O. No. 192, to safeguard the
people's right to a healthful environment.
It is further claimed that the issue of the respondent Secretary's alleged grave abuse of
discretion in granting Timber License Agreements (TLAs) to cover more areas for
logging than what is available involves a judicial question.
Anent the invocation by the respondent Judge of the Constitution's non-impairment
clause, petitioners maintain that the same does not apply in this case because TLAs are
not contracts. They likewise submit that even if TLAs may be considered protected by
the said clause, it is well settled that they may still be revoked by the State when the
public interest so requires.
On the other hand, the respondents aver that the 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.9 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 as well as future generations. 10Needless to say, every generation has a
responsibility to the next to preserve that rhythm and harmony for the full enjoyment of
a balanced and healthful ecology. Put a little differently, the minors' assertion of their
right to a sound environment constitutes, at the same time, the performance of their
obligation to ensure the protection of that right for the generations to come.
The locus standi of the petitioners having thus been addressed, We shall now proceed to
the merits of the petition.
After a careful perusal of the complaint in question and a meticulous consideration and
evaluation of the issues raised and arguments adduced by the parties, We do not hesitate
to find for the petitioners and rule against the respondent Judge's challenged order for
having been issued with grave abuse of discretion amounting to lack of jurisdiction. The
pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the Complaint, the Court
cannot help but agree with the defendant. For although we believe that
plaintiffs have but the noblest of all intentions, it (sic) fell short of
alleging, with sufficient definiteness, a specific legal right they are
seeking to enforce and protect, or a specific legal wrong they are
seeking to prevent and redress (Sec. 1, Rule 2, RRC). Furthermore, the
Court notes that the Complaint is replete with vague assumptions and
vague conclusions based on unverified data. In fine, plaintiffs fail to
state a cause of action in its Complaint against the herein defendant.
Furthermore, the Court firmly believes that the matter before it, being
impressed with political color and involving a matter of public policy,
 may not be taken cognizance of by this 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, 13 then
President Corazon C. Aquino promulgated on 10 June 1987 E.O. No. 192, 14 Section 4
of which expressly 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 1987,15 specifically in Section 1 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." 16 As its goal, it speaks of
the "responsibilities of each generation as trustee and guardian of the environment for
succeeding generations." 17 The latter statute, on the other hand, 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, 19 the 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? 20 In Militante
vs. Edrosolano, 21 this Court laid down the rule that the judiciary should "exercise the
utmost care and circumspection in passing upon a motion to dismiss on the ground of
the absence thereof [cause of action] lest, by its failure to manifest a correct appreciation
of the facts alleged and deemed hypothetically admitted, what the law grants or
recognizes is effectively nullified. If that happens, there is a blot on the legal order. The
law itself stands in disrepute."
After careful examination of the petitioners' complaint, We find the statements under the
introductory affirmative allegations, as well as the specific averments under the sub-
heading CAUSE OF ACTION, to be adequate enough to show, prima facie, the claimed
violation of their rights. On the basis thereof, they may thus be granted, wholly or partly,
the reliefs prayed for. It bears stressing, however, that insofar as the cancellation of the
TLAs is concerned, there is the need to implead, as party defendants, the grantees
thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to raise a political question.
Policy formulation or determination by the executive or legislative branches of
Government is not squarely put in issue. What is principally involved is the enforcement
of a right vis-a-vis policies already formulated and expressed in legislation. It must,
nonetheless, be emphasized that the political question doctrine is no longer, the
insurmountable obstacle to the exercise of judicial power or the impenetrable shield that
protects executive and legislative actions from judicial inquiry or review. The second
paragraph of section 1, Article VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government.
Commenting on this provision in his book, Philippine Political Law, 22 Mr. Justice
Isagani A. Cruz, a distinguished member of this Court, says:
The first part of the authority represents the traditional concept of
judicial power, involving the settlement of conflicting rights as
conferred as law. The second part of the authority represents a
broadening of judicial power to enable the courts of justice to review
what was before forbidden territory, to wit, the discretion of the political
departments of the government.
As worded, the new provision vests in the judiciary, and particularly the
Supreme Court, the power to rule upon even the wisdom of the
decisions of the executive and the legislature and to declare their acts
invalid for lack or excess of jurisdiction because tainted with grave
abuse of discretion. The catch, of course, is the meaning of "grave abuse
of discretion," which is a very elastic phrase that can expand or contract
according to the disposition of the judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for this Court, noted:
In the case now before us, the jurisdictional objection becomes even
less tenable and decisive. The reason is that, even if we were to assume
that the issue presented before us was political in nature, we would still
not be precluded from revolving it under the expanded jurisdiction
conferred upon us that now covers, in proper cases, even the political
question. Article VII, Section 1, of the Constitution clearly provides: . . .
The last ground invoked by the trial court in dismissing the complaint is the non-
impairment of contracts clause found in the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no matter how we
stretch our jurisdiction, grant the reliefs prayed for by the plaintiffs, i.e.,
to cancel all existing timber license agreements in the country and to
cease and desist from receiving, accepting, processing, renewing or
approving new timber license agreements. For to do otherwise would
amount to "impairment of contracts" abhored (sic) by the fundamental
law. 24
We are not persuaded at all; on the contrary, We are amazed, if not shocked, by such a
sweeping pronouncement. In the first place, the respondent Secretary did not, for
obvious reasons, even invoke in his motion to dismiss the non-impairment clause. If he
had done so, he would have acted with utmost infidelity to the Government by providing
undue and unwarranted benefits and advantages to the timber license holders because he
would have forever bound the Government to strictly respect the said licenses according
to their terms and conditions regardless of changes in policy and the demands of public
interest and welfare. He was aware that as correctly pointed out by the petitioners, into
every timber license must be read Section 20 of the Forestry Reform Code (P.D. No.
705) which provides:
. . . Provided, That when the national interest so requires, the President
may amend, modify, replace or rescind any contract, concession,
permit, licenses or any other form of privilege granted herein . . .
 Needless to say, all licenses may thus be revoked or rescinded by executive
action. It is not a contract, property or a property right protested by the due
process clause of the Constitution. In Tan vs. Director of Forestry, 25 this Court
held:
. . . 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. 28 this Court stated:
The freedom of contract, under our system of government, is not meant
to be absolute. The same is understood to be subject to reasonable
legislative regulation aimed at the promotion of public health, moral,
safety and welfare. In other words, the constitutional guaranty of non-
impairment of obligations of contract is limited by the exercise of the
police power of the State, in the interest of public health, safety, moral
and general welfare.
The reason for this is emphatically set forth in Nebia vs. New York, 29 quoted
in Philippine American Life Insurance Co. vs. Auditor General,30 to wit:
Under our form of government the use of property and the making of
contracts are normally matters of private and not of public concern. The
general rule is that both shall be free of governmental interference. But
neither property rights nor contract rights are absolute; for government
cannot exist if the citizen may at will use his property to the detriment
of his fellows, or exercise his freedom of contract to work them harm.
Equally fundamental with the private right is that of the public to
regulate it in the common interest.
In short, the non-impairment clause must yield to the police power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how the non-impairment clause
could apply with respect to the prayer to enjoin the respondent Secretary from receiving,
accepting, processing, renewing or approving new timber licenses for, save in cases
of renewal, no contract would have as of yet existed in the other instances. Moreover,
with respect to renewal, the holder is not entitled to it as a matter of right.
WHEREFORE, being impressed with merit, the instant Petition is hereby GRANTED,
and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No.
90-777 is hereby set aside. The petitioners may therefore amend their complaint to
implead as defendants the holders or grantees of the questioned timber license
agreements.
No pronouncement as to costs. health care, equipped schools and planted the seeds of businesses. They have
SO ORDERED. woven together the world by transmitting ideas and knowledge from country to
Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and country. They have provided the dynamic human link between cultures, societies
Quiason, JJ., concur. and economies. Yet, only recently have we begun to understand not only how
Narvasa, C.J., Puno and Vitug, JJ., took no part. much international migration impacts development, but how smart public
  policies can magnify this effect.
United Nations Secretary-General Ban Ki-Moon
ANTONIO M. SERRANO,   G.R. No. 167614 Global Forum on Migration and
Petitioner,     Development
    Present: Brussels, July 10, 2007[1]
       
    PUNO, C.J., For Antonio Serrano (petitioner), a Filipino seafarer, the last clause in the 5 th paragraph of
    QUISUMBING, Section 10, Republic Act (R.A.) No. 8042,[2] to wit:
    YNARES-SANTIAGO,  
    CARPIO, Sec. 10. Money Claims. - x x x In case of termination of overseas
    AUSTRIA-MARTINEZ, employment without just, valid or authorized cause as defined by law or contract,
- versus -   CORONA, the workers shall be entitled to the full reimbursement of his placement fee with
    CARPIO MORALES, interest of twelve percent (12%) per annum, plus his salaries for the unexpired
    TINGA, portion of his employment contract or for three (3) months for every year of the
    CHICO-NAZARIO, unexpired term, whichever is less.
    VELASCO, Jr.,  
    NACHURA, x x x x (Emphasis and underscoring supplied)
    LEONARDO-DE CASTRO,  
    BRION, and does not magnify the contributions of overseas Filipino workers (OFWs) to national development,
GALLANT MARITIME SERVICES,   PERALTA, JJ. but exacerbates the hardships borne by them by unduly limiting their entitlement in case of illegal
INC. and MARLOW NAVIGATION     dismissal to their lump-sum salary either for the unexpired portion of their employment contract or
CO., INC.,   Promulgated: for three months for every year of the unexpired term, whichever is less (subject clause).Petitioner
Respondents.   March 24, 2009 claims that the last clause violates the OFWs' constitutional rights in that it impairs the terms of their
x----------------------------------------------------------x contract, deprives them of equal protection and denies them due process.
   
DECISION By way of Petition for Review under Rule 45 of the Rules of Court, petitioner assails the
  December 8, 2004 Decision[3] and April 1, 2005 Resolution[4] of the Court of Appeals (CA), which
AUSTRIA-MARTINEZ, J.: applied the subject clause, entreating this Court to declare the subject clause unconstitutional.
  Petitioner was hired by Gallant Maritime Services, Inc. and Marlow Navigation Co., Ltd.
For decades, the toil of solitary migrants has helped lift entire families (respondents) under a Philippine Overseas Employment Administration (POEA)-approved
and communities out of poverty. Their earnings have built houses, provided Contract of Employment with the following terms and conditions:
 Duration of contract 12 months   ---------------------------
Position Chief Officer ---------------------------
Basic monthly salary US$1,400.00 --------------------------
Hours of work 48.0 hours per week 25,382.23
Overtime US$700.00 per month Amount adjusted to chief mate's salary  
Vacation leave with pay 7.00 days per month[5] (March 19/31, 1998 to April 1/30, 1998) + 1,060.50[10]
    ---------------------------
On March 19, 1998, the date of his departure, petitioner was constrained to accept a ---------------------------
downgraded employment contract for the position of Second Officer with a monthly salary of ---------------------------
US$1,000.00, upon the assurance and representation of respondents that he would be made Chief -------------
Officer by the end of April 1998.[6] TOTAL CLAIM US$ 26,442.73[11]
   
Respondents did not deliver on their promise to make petitioner Chief Officer.[7] Hence, as well as moral and exemplary damages and attorney's fees.
petitioner refused to stay on as Second Officer and was repatriated to the Philippines on May 26,  
1998.[8] The LA rendered a Decision dated July 15, 1999, declaring the dismissal of petitioner
  illegal and awarding him monetary benefits, to wit:
Petitioner's employment contract was for a period of 12 months or from March 19, 1998  
up to March 19, 1999, but at the time of his repatriation on May 26, 1998, he had served only two WHEREFORE, premises considered, judgment is hereby rendered declaring
(2) months and seven (7) days of his contract, leaving an unexpired portion of nine (9) months and that the dismissal of the complainant (petitioner) by the respondents in the above-
twenty-three (23) days. entitled case was illegal and the respondents are hereby ordered to pay the
  complainant [petitioner], jointly and severally, in Philippine Currency, based on
Petitioner filed with the Labor Arbiter (LA) a Complaint[9] against respondents for the rate of exchange prevailing at the time of payment, the amount of EIGHT
constructive dismissal and for payment of his money claims in the total amount of US$26,442.73, THOUSAND SEVEN HUNDRED SEVENTY U.S. DOLLARS (US
broken down as follows: $8,770.00), representing the complainants salary for three (3) months of the
  unexpired portion of the aforesaid contract of employment.
May 27/31, 1998 (5 days) incl. Leave pay US$ 413.90  
June 01/30, 1998 2,590.00 The respondents are likewise ordered to pay the complainant [petitioner], jointly
July 01/31, 1998 2,590.00 and severally, in Philippine Currency, based on the rate of exchange prevailing at
August 01/31, 1998 2,590.00 the time of payment, the amount of FORTY FIVE U.S. DOLLARS (US$
Sept. 01/30, 1998 2,590.00 45.00),[12] representing the complainants claim for a salary differential. In
Oct. 01/31, 1998 2,590.00 addition, the respondents are hereby ordered to pay the complainant, jointly and
Nov. 01/30, 1998 2,590.00 severally, in Philippine Currency, at the exchange rate prevailing at the time of
Dec. 01/31, 1998 2,590.00 payment, the complainants (petitioner's) claim for attorneys fees equivalent to ten
Jan. 01/31, 1999 2,590.00 percent (10%) of the total amount awarded to the aforesaid employee under this
Feb. 01/28, 1999 2,590.00 Decision.
Mar. 1/19, 1999 (19 days) incl. leave pay 1,640.00  
 The claims of the complainant for moral and exemplary damages are hereby
DISMISSED for lack of merit.
All other claims are hereby DISMISSED.
 
SO ORDERED.[13] (Emphasis supplied)
 
In awarding petitioner a lump-sum salary of US$8,770.00, the LA based his computation
on the salary period of three months only -- rather than the entire unexpired portion of nine months
and 23 days of petitioner's employment contract - applying the subject clause. However, the LA
applied the salary rate of US$2,590.00, consisting of petitioner's [b]asic salary, US$1,400.00/month
+ US$700.00/month, fixed overtime pay, + US$490.00/month, vacation leave pay =
US$2,590.00/compensation per month.[14]
 
Respondents appealed[15] to the National Labor Relations Commission (NLRC) to
question the finding of the LA that petitioner was illegally dismissed.
 
Petitioner also appealed[16] to the NLRC on the sole issue that the LA erred in not applying
the ruling of the Court in Triple Integrated Services, Inc. v. National Labor Relations
Commission[17] that in case of illegal dismissal, OFWs are entitled to their salaries for the unexpired
portion of their contracts.[18]
 
In a Decision dated June 15, 2000, the NLRC modified the LA Decision, to wit:
 
WHEREFORE, the Decision dated 15 July 1999 is MODIFIED.
Respondents are hereby ordered to pay complainant, jointly and severally, in
Philippine currency, at the prevailing rate of exchange at the time of payment the
following:
 
1. Three (3) months salary
$1,400 x 3 US$4,200.00
2. Salary differential 45.00
US$4,245.00
3. 10% Attorneys fees 424.50
TOTAL US$4,669.50
                                         
The other findings are affirmed.
SO ORDERED.[19]
The NLRC corrected the LA's computation of the lump-sum salary awarded to petitioner
by reducing the applicable salary rate from US$2,590.00 to US$1,400.00 because R.A. No. 8042
does not provide for the award of overtime pay, which should be proven to have been actually
performed, and for vacation leave pay.[20]
 
Petitioner filed a Motion for Partial Reconsideration, but this time he questioned the
constitutionality of the subject clause.[21] The NLRC denied the motion.[22]
 
Petitioner filed a Petition for Certiorari[23] with the CA, reiterating the constitutional
challenge against the subject clause.[24] After initially dismissing the petition on a technicality, the
CA eventually gave due course to it, as directed by this Court in its Resolution dated August 7,
2003 which granted the petition for certiorari, docketed as G.R. No. 151833, filed by petitioner.
 
In a Decision dated December 8, 2004, the CA affirmed the NLRC ruling on the
reduction of the applicable salary rate; however, the CA skirted the constitutional issue raised by
petitioner.[25]
 
His Motion for Reconsideration[26] having been denied by the CA,[27] petitioner brings his
cause to this Court on the following grounds:
 
I
The Court of Appeals and the labor tribunals have decided the case in a
way not in accord with applicable decision of the Supreme Court involving
similar issue of granting unto the migrant worker back wages equal to the
unexpired portion of his contract of employment instead of limiting it to three (3)
months
 
II
In the alternative that the Court of Appeals and the Labor Tribunals
were merely applying their interpretation of Section 10 of Republic Act No.
8042, it is submitted that the Court of Appeals gravely erred in law when it failed
to discharge its judicial duty to decide questions of substance not theretofore
determined by the Honorable Supreme Court, particularly, the constitutional
 issues raised by the petitioner on the constitutionality of said law, which
unreasonably, unfairly and arbitrarily limits payment of the award for back
wages of overseas workers to three (3) months.
 
III
Even without considering the constitutional limitations [of] Sec. 10 of
Republic Act No. 8042, the Court of Appeals gravely erred in law in excluding
from petitioners award the overtime pay and vacation pay provided in his
contract since under the contract they form part of his salary.[28]
 
On February 26, 2008, petitioner wrote the Court to withdraw his petition as he is already
old and sickly, and he intends to make use of the monetary award for his medical treatment and
medication.[29] Required to comment, counsel for petitioner filed a motion, urging the court to allow
partial execution of the undisputed monetary award and, at the same time, praying that the
constitutional question be resolved.[30]
 
Considering that the parties have filed their respective memoranda, the Court now takes
up the full merit of the petition mindful of the extreme importance of the constitutional question
raised therein.
On the first and second issues
 
The unanimous finding of the LA, NLRC and CA that the dismissal of petitioner was
illegal is not disputed. Likewise not disputed is the salary differential of US$45.00 awarded to
petitioner in all three fora. What remains disputed is only the computation of the lump-sum salary
to be awarded to petitioner by reason of his illegal dismissal.
Applying the subject clause, the NLRC and the CA computed the lump-sum salary of
petitioner at the monthly rate of US$1,400.00 covering the period of three months out of the
unexpired portion of nine months and 23 days of his employment contract or a total of
US$4,200.00.
 
Impugning the constitutionality of the subject clause, petitioner contends that, in addition
to the US$4,200.00 awarded by the NLRC and the CA, he is entitled to US$21,182.23 more or a
total of US$25,382.23, equivalent to his salaries for the entire nine months and 23 days left of his
employment contract, computed at the monthly rate of US$2,590.00.[31]
The Arguments of Petitioner
 
Petitioner contends that the subject clause is unconstitutional because it unduly impairs the
freedom of OFWs to negotiate for and stipulate in their overseas employment contracts a
determinate employment period and a fixed salary package.[32] It also impinges on the equal
protection clause, for it treats OFWs differently from local Filipino workers (local workers) by
putting a cap on the amount of lump-sum salary to which OFWs are entitled in case of illegal
dismissal, while setting no limit to the same monetary award for local workers when their dismissal
is declared illegal; that the disparate treatment is not reasonable as there is no substantial distinction
between the two groups;[33] and that it defeats Section 18,[34] Article II of the Constitution which
guarantees the protection of the rights and welfare of all Filipino workers, whether deployed locally
or overseas.[35]
 
Moreover, petitioner argues that the decisions of the CA and the labor tribunals are not in
line with existing jurisprudence on the issue of money claims of illegally dismissed OFWs.Though
there are conflicting rulings on this, petitioner urges the Court to sort them out for the guidance of
affected OFWs.[36]
Petitioner further underscores that the insertion of the subject clause into R.A. No. 8042
serves no other purpose but to benefit local placement agencies. He marks the statement made by
the Solicitor General in his Memorandum, viz.:
Often, placement agencies, their liability being solidary, shoulder the
payment of money claims in the event that jurisdiction over the foreign employer
is not acquired by the court or if the foreign employer reneges on its obligation.
Hence, placement agencies that are in good faith and which fulfill their
obligations are unnecessarily penalized for the acts of the foreign employer. To
protect them and to promote their continued helpful contribution in deploying
Filipino migrant workers, liability for money claims was reduced under
Section 10 of R.A. No. 8042. [37] (Emphasis supplied)
 
Petitioner argues that in mitigating the solidary liability of placement agencies, the subject
clause sacrifices the well-being of OFWs. Not only that, the provision makes foreign employers
better off than local employers because in cases involving the illegal dismissal of employees,
foreign employers are liable for salaries covering a maximum of only three months of the
unexpired employment contract while local employers are liable for the full lump-sum salaries of
their employees. As petitioner puts it:
 
 In terms of practical application, the local employers are not limited to
the amount of backwages they have to give their employees they have illegally
dismissed, following well-entrenched and unequivocal jurisprudence on the
matter. On the other hand, foreign employers will only be limited to giving the
illegally dismissed migrant workers the maximum of three (3) months unpaid
salaries notwithstanding the unexpired term of the contract that can be more than
three (3) months.[38]
 
Lastly, petitioner claims that the subject clause violates the due process clause, for it
deprives him of the salaries and other emoluments he is entitled to under his fixed-period
employment contract.[39]
 
The Arguments of Respondents
 
In their Comment and Memorandum, respondents contend that the constitutional issue
should not be entertained, for this was belatedly interposed by petitioner in his appeal before the
CA, and not at the earliest opportunity, which was when he filed an appeal before the NLRC.[40]
 
The Arguments of the Solicitor General
The Solicitor General (OSG)[41] points out that as R.A. No. 8042 took effect on July 15,
1995, its provisions could not have impaired petitioner's 1998 employment contract. Rather, R.A.
No. 8042 having preceded petitioner's contract, the provisions thereof are deemed part of the
minimum terms of petitioner's employment, especially on the matter of money claims, as this was
not stipulated upon by the parties.[42]
 
Moreover, the OSG emphasizes that OFWs and local workers differ in terms of the nature
of their employment, such that their rights to monetary benefits must necessarily be treated
differently. The OSG enumerates the essential elements that distinguish OFWs from local workers:
first, while local workers perform their jobs within Philippine territory, OFWs perform their jobs
for foreign employers, over whom it is difficult for our courts to acquire jurisdiction, or against
whom it is almost impossible to enforce judgment; and second, as held in Coyoca v. National
Labor Relations Commission[43] and Millares v. National Labor Relations Commission,[44] OFWs
are contractual employees who can never acquire regular employment status, unlike local workers
who are or can become regular employees. Hence, the OSG posits that there are rights and
privileges exclusive to local workers, but not available to OFWs; that these peculiarities make for a
reasonable and valid basis for the differentiated treatment under the subject clause of the money
claims of OFWs who are illegally dismissed. Thus, the provision does not violate the equal
protection clause nor Section 18, Article II of the Constitution.[45]
 
Lastly, the OSG defends the rationale behind the subject clause as a police power measure
adopted to mitigate the solidary liability of placement agencies for this redounds to the benefit of
the migrant workers whose welfare the government seeks to promote. The survival of legitimate
placement agencies helps [assure] the government that migrant workers are properly deployed and
are employed under decent and humane conditions.[46]
The Court's Ruling
 
The Court sustains petitioner on the first and second issues.
 
When the Court is called upon to exercise its power of judicial review of the acts of its co-
equals, such as the Congress, it does so only when these conditions obtain: (1) that there is an actual
case or controversy involving a conflict of rights susceptible of judicial determination; [47] (2) that the
constitutional question is raised by a proper party[48] and at the earliest opportunity;[49] and (3) that
the constitutional question is the very lis mota of the case,[50] otherwise the Court will dismiss the
case or decide the same on some other ground.[51]
Without a doubt, there exists in this case an actual controversy directly involving petitioner
who is personally aggrieved that the labor tribunals and the CA computed his monetary award
based on the salary period of three months only as provided under the subject clause.
 
The constitutional challenge is also timely. It should be borne in mind that the requirement
that a constitutional issue be raised at the earliest opportunity entails the interposition of the issue in
the pleadings before a competent court, such that, if the issue is not raised in the pleadings before
that competent court, it cannot be considered at the trial and, if not considered in the trial, it cannot
be considered on appeal.[52] Records disclose that the issue on the constitutionality of the subject
clause was first raised, not in petitioner's appeal with the NLRC, but in his Motion for Partial
Reconsideration with said labor tribunal,[53] and reiterated in his Petition for Certiorari before the
CA.[54] Nonetheless, the issue is deemed seasonably raised because it is not the NLRC but the CA
which has the competence to resolve the constitutional issue. The NLRC is a labor tribunal that
merely performs a quasi-judicial function its function in the present case is limited to
determining questions of fact to which the legislative policy of R.A. No. 8042 is to be applied and
to resolving such questions in accordance with the standards laid down by the law itself; [55]thus,
its foremost function is to administer and enforce R.A. No. 8042, and not to inquire into the validity
of its provisions. The CA, on the other hand, is vested with the power of judicial review or the
power to declare unconstitutional a law or a provision thereof, such as the subject clause.
[56]
 Petitioner's interposition of the constitutional issue before the CA was undoubtedly
seasonable.The CA was therefore remiss in failing to take up the issue in its decision.
The third condition that the constitutional issue be critical to the resolution of the case
likewise obtains because the monetary claim of petitioner to his lump-sum salary for the entire
unexpired portion of his 12-month employment contract, and not just for a period of three months,
strikes at the very core of the subject clause.
 
Thus, the stage is all set for the determination of the constitutionality of the subject clause.
 
Does the subject clause violate Section 10,
Article III of the Constitution on non-impairment
of contracts?
 
The answer is in the negative.
 
Petitioner's claim that the subject clause unduly interferes with the stipulations in his
contract on the term of his employment and the fixed salary package he will receive[57] is not
tenable.
Section 10, Article III of the Constitution provides:
No law impairing the obligation of contracts shall be passed.
The prohibition is aligned with the general principle that laws newly enacted have only a
prospective operation,[58] and cannot affect acts or contracts already perfected;[59] however, as to
laws already in existence, their provisions are read into contracts and deemed a part thereof.
[60]
 Thus, the non-impairment clause under Section 10, Article II is limited in application to laws
about to be enacted that would in any way derogate from existing acts or contracts by enlarging,
abridging or in any manner changing the intention of the parties thereto.
As aptly observed by the OSG, the enactment of R.A. No. 8042 in 1995 preceded the
execution of the employment contract between petitioner and respondents in 1998. Hence, it cannot
be argued that R.A. No. 8042, particularly the subject clause, impaired the employment contract of
the parties. Rather, when the parties executed their 1998 employment contract, they were deemed
to have incorporated into it all the provisions of R.A. No. 8042.
 
But even if the Court were to disregard the timeline, the subject clause may not be
declared unconstitutional on the ground that it impinges on the impairment clause, for the law was
enacted in the exercise of the police power of the State to regulate a business, profession or calling,
particularly the recruitment and deployment of OFWs, with the noble end in view of ensuring
respect for the dignity and well-being of OFWs wherever they may be employed. [61] Police power
legislations adopted by the State to promote the health, morals, peace, education, good order, safety,
and general welfare of the people are generally applicable not only to future contracts but even to
those already in existence, for all private contracts must yield to the superior and legitimate
measures taken by the State to promote public welfare.[62]
 
Does the subject clause violate Section 1, Article III of the Constitution, and Section 18, Article II
and Section 3, Article XIII on labor as a protected sector? 
The answer is in the affirmative.
Section 1, Article III of the Constitution guarantees:
 
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 law.
Section 18,[63] Article II and Section 3,[64] Article XIII accord all members of the labor
sector, without distinction as to place of deployment, full protection of their rights and welfare.
To Filipino workers, the rights guaranteed under the foregoing constitutional provisions
translate to economic security and parity: all monetary benefits should be equally enjoyed by
workers of similar category, while all monetary obligations should be borne by them in equal
degree; none should be denied the protection of the laws which is enjoyed by, or spared the burden
imposed on, others in like circumstances.[65]
Such rights are not absolute but subject to the inherent power of Congress to incorporate,
when it sees fit, a system of classification into its legislation; however, to be valid, the classification
must comply with these requirements: 1) it is based on substantial distinctions; 2) it is germane to
the purposes of the law; 3) it is not limited to existing conditions only; and 4) it applies equally to all
members of the class.[66]
There are three levels of scrutiny at which the Court reviews the constitutionality of a
classification embodied in a law: a) the deferential or rational basis scrutiny in which the challenged
classification needs only be shown to be rationally related to serving a legitimate state interest; [67] b)
the middle-tier or intermediate scrutiny in which the government must show that the
challenged classification serves an important state interest and that the classification is at
least substantially related to serving that interest;[68] and c) strict judicial
scrutiny[69] in which a legislative classification which impermissibly interferes with the exercise of
a fundamental right[70] or operates to the peculiar disadvantage of a suspect class[71] is
presumed unconstitutional, and the burden is upon the government to prove that the classification
is necessary to achieve a compelling state interest and that it is the least restrictive means to
protect such interest.[72]
 
Under American jurisprudence, strict judicial scrutiny is triggered by suspect
classifications[73] based on race[74] or gender[75] but not when the classification is drawn along
income categories.[76]
 
It is different in the Philippine setting. In Central Bank (now Bangko Sentral ng Pilipinas)
Employee Association, Inc. v. Bangko Sentral ng Pilipinas,[77] the constitutionality of a provision in
the charter of the Bangko Sentral ng Pilipinas (BSP), a government financial institution (GFI), was
challenged for maintaining its rank-and-file employees under the Salary Standardization Law
(SSL), even when the rank-and-file employees of other GFIs had been exempted from the SSL by
their respective charters. Finding that the disputed provision contained a suspect classification
based on salary grade, the Court deliberately employed the standard of strict judicial scrutiny in its
review of the constitutionality of said provision. More significantly, it was in this case that the Court
revealed the broad outlines of its judicial philosophy, to wit:
 
Congress retains its wide discretion in providing for a valid
classification, and its policies should be accorded recognition and respect by the
courts of justice except when they run afoul of the Constitution.The deference
stops where the classification violates a fundamental right, or prejudices persons
accorded special protection by the Constitution. When these violations arise,
this Court must discharge its primary role as the vanguard of constitutional
guaranties, and require a stricter and more exacting adherence to constitutional
limitations. Rational basis should not suffice.
Admittedly, the view that prejudice to persons accorded special
protection by the Constitution requires a stricter judicial scrutiny finds no
support in American or English jurisprudence. Nevertheless, these foreign
decisions and authorities are not per se controlling in this jurisdiction. At
best, they are persuasive and have been used to support many of our decisions.
We should not place undue and fawning reliance upon them and regard them as
indispensable mental crutches without which we cannot come to our own
decisions through the employment of our own endowments.  We live in a
different ambience and must decide our own problems in the light of our own
interests and needs, and of our qualities and even idiosyncrasies as a people, and
always with our own concept of law and justice. Our laws must be construed in
accordance with the intention of our own lawmakers and such intent may be
deduced from the language of each law and the context of other local legislation
related thereto. More importantly, they must be construed to serve our own
public interest which is the be-all and the end-all of all our laws.  And it need not
be stressed that our public interest is distinct and different from others.
 
xxxx
 
Further, the quest for a better and more equal world calls for the use of
equal protection as a tool of effective judicial intervention.
 
Equality is one ideal which cries out for bold attention and action in the
Constitution.  The Preamble proclaims equality as an ideal precisely in protest
against crushing inequities in Philippine society.  The command to promote
social justice in Article II, Section 10, in all phases of national development,
further explicitated in Article XIII, are clear commands to the State to take
affirmative action in the direction of greater equality. x x x [T]here is thus in the
Philippine Constitution no lack of doctrinal support for a more vigorous state
effort towards achieving a reasonable measure of equality.
 
Our present Constitution has gone further in guaranteeing vital
social and economic rights to marginalized groups of society, including labor.
Under the policy of social justice, the law bends over backward to
accommodate the interests of the working class on the humane justification
that those with less privilege in life should have more in law. And the
obligation to afford protection to labor is incumbent not only on the legislative
and executive branches but also on the judiciary to translate this pledge into a
living reality. Social justice calls for the humanization of laws and the
equalization of social and economic forces by the State so that justice in its
rational and objectively secular conception may at least be approximated.
 
xxxx
 
Under most circumstances, the Court will exercise judicial restraint in
deciding questions of constitutionality, recognizing the broad discretion given to
Congress in exercising its legislative power.  Judicial scrutiny would be based on
the rational basis test, and the legislative discretion would be given deferential
treatment.
 
But if the challenge to the statute is premised on the denial of a
fundamental right, or the perpetuation of prejudice against persons favored by
the Constitution with special protection, judicial scrutiny ought to be more
strict.  A weak and watered down view would call for the abdication of this
Courts solemn duty to strike down any law repugnant to the Constitution and the
rights it enshrines.  This is true whether the actor committing the unconstitutional
act is a private person or the government itself or one of its instrumentalities.
Oppressive acts will be struck down regardless of the character or nature of the
actor.
 
xxxx
 
In the case at bar, the challenged proviso operates on the basis of the
salary grade or officer-employee status.  It is akin to a distinction based on
economic class and status, with the higher grades as recipients of a benefit
specifically withheld from the lower grades.  Officers of the BSP now receive
higher compensation packages that are competitive with the industry, while the
poorer, low-salaried employees are limited to the rates prescribed by the SSL.  Labor Relations Commission[79] (Second Division, 1999) that the Court laid down the following
The implications are quite disturbing: BSP rank-and-file employees are paid the
strictly regimented rates of the SSL while employees higher in rank - possessing
higher and better education and opportunities for career advancement - are given
higher compensation packages to entice them to stay.  Considering that
majority, if not all, the rank-and-file employees consist of people whose status
and rank in life are less and limited, especially in terms of job marketability, it
is they - and not the officers - who have the real economic and financial need
for the adjustment . This is in accord with the policy of the Constitution "to free
the people from poverty, provide adequate social services, extend to them a
decent standard of living, and improve the quality of life for all. Any act of
Congress that runs counter to this constitutional desideratum deserves strict
scrutiny by this Court before it can pass muster. (Emphasis supplied)
 
Imbued with the same sense of obligation to afford protection to labor, the Court in the
present case also employs the standard of strict judicial scrutiny, for it perceives in the subject clause
a suspect classification prejudicial to OFWs.
 
Upon cursory reading, the subject clause appears facially neutral, for it applies to all
OFWs. However, a closer examination reveals that the subject clause has a discriminatory intent
against, and an invidious impact on, OFWs at two levels:
 
First, OFWs with employment contracts of less than one year vis--vis
OFWs with employment contracts of one year or more;
 
Second, among OFWs with employment contracts of more than one
year; and
 
Third, OFWs vis--vis local workers with fixed-period employment;
 
OFWs with employment contracts of less
than one year vis--vis OFWs with
employment contracts of one year or
more
 
As pointed out by petitioner,[78] it was in Marsaman Manning Agency, Inc. v. National
rules on the application of the periods prescribed under Section 10(5) of R.A. No. 804, to wit:
  In the case at bar, the unexpired portion of private respondents
A plain reading of Sec. 10 clearly reveals that the choice of which employment contract is eight (8) months. Private respondent should therefore be
amount to award an illegally dismissed overseas contract worker, i.e., whether paid his basic salary corresponding to three (3) months or a total of SR3,600.[82]
his salaries for the unexpired portion of his employment contract or three (3)  
months salary for every year of the unexpired term, whichever is less, comes Another was Triple-Eight Integrated Services, Inc. v. National Labor Relations
into play only when the employment contract concerned has a term of at least Commission (Third Division, December 1998),[83] which involved an OFW (therein respondent
one (1) year or more. This is evident from the words for every year of the Erlinda Osdana) who was originally granted a 12-month contract, which was deemed renewed for
unexpired term which follows the words salaries x x x for three months. To another 12 months. After serving for one year and seven-and-a-half months, respondent Osdana
follow petitioners thinking that private respondent is entitled to three (3) months was illegally dismissed, and the Court awarded her salaries for the entire unexpired portion of four
salary only simply because it is the lesser amount is to completely disregard and and one-half months of her contract.
overlook some words used in the statute while giving effect to some. This is  
contrary to the well-established rule in legal hermeneutics that in interpreting a The Marsaman interpretation of Section 10(5) has since been adopted in the following
statute, care should be taken that every part or word thereof be given effect since cases:
the law-making body is presumed to know the meaning of the words employed  
in the statue and to have used them advisedly. Ut res magis valeat quam pereat.  
[80] 
(Emphasis supplied)         Period Applied in
  Case Title Contract Period of Unexpired the Computation of
In Marsaman, the OFW involved was illegally dismissed two months into his 10-month contract, Period Service Period the Monetary
but was awarded his salaries for the remaining 8 months and 6 days of his contract.       Award
 
Prior to Marsaman, however, there were two cases in which the Court made conflicting Skippers v. 6 months 2 months 4 months 4 months
rulings on Section 10(5). One was Asian Center for Career and Employment System and Services Maguad[84]
v. National Labor Relations Commission (Second Division, October 1998),[81] which involved an Bahia Shipping 9 months 8 months 4 months 4 months
OFW who was awarded a two-year employment contract, but was dismissed after working for v. Reynaldo
one year and two months. The LA declared his dismissal illegal and awarded him SR13,600.00 as Chua [85]
lump-sum salary covering eight months, the unexpired portion of his contract. On appeal, the
Court reduced the award to SR3,600.00 equivalent to his three months salary, this being the lesser Centennial 9 months 4 months 5 months 5 months
value, to wit: Transmarine v.
  dela Cruz l[86]
Under Section 10 of R.A. No. 8042, a worker dismissed from overseas Talidano v. 12 months 3 months 9 months 3 months
employment without just, valid or authorized cause is entitled to his salary for the Falcon[87]
unexpired portion of his employment contract or for three (3) months for every
year of the unexpired term, whichever is less. Univan v. 12 months 3 months 9 months 3 months
  CA [88]
Oriental v. 12 months more than 2 10 months 3 months
CA [89] months
 PCL v. 12 months more than 2 more or less 9 3 months To illustrate the disparity even more vividly, the Court assumes a hypothetical OFW-A
NLRC[90] months months   with an employment contract of 10 months at a monthly salary rate of US$1,000.00 and a
hypothetical OFW-B with an employment contract of 15 months with the same monthly salary rate
Olarte v. 12 months 21 days 11 months and 9 3 months of US$1,000.00. Both commenced work on the same day and under the same employer, and were
Nayona[91] days illegally dismissed after one month of work. Under the subject clause, OFW-A will be entitled to
JSS v. 12 months 16 days 11 months and 24 3 months US$9,000.00, equivalent to his salaries for the remaining 9 months of his contract, whereas OFW-
Ferrer[92] days B will be entitled to only US$3,000.00, equivalent to his salaries for 3 months of the unexpired
portion of his contract, instead of US$14,000.00 for the unexpired portion of 14 months of his
Pentagon v. 12 months 9 months and 2 months and 23 2 months and 23 contract, as the US$3,000.00 is the lesser amount.
Adelantar[93] 7 days days days  
Phil. Employ v. 12 months 10 months 2 months Unexpired portion The disparity becomes more aggravating when the Court takes into account jurisprudence
Paramio, that, prior to the effectivity of R.A. No. 8042 on July 14, 1995,[97] illegally dismissed OFWs, no
et al.[94] matter how long the period of their employment contracts, were entitled to their salaries for the
entire unexpired portions of their contracts. The matrix below speaks for itself:
Flourish 2 years 26 days 23 months and 4 6 months or 3  
Maritime v. days months for each Case Title Contract Period of Unexpired Period Applied in the
Almanzor [95] year of contract Period Service Period Computation of the
Athenna 1 year, 10 1 month 1 year, 9 months 6 months or 3       Monetary Award
Manpower v. months and and 28 days months for each ATCI v. CA, 2 years 2 months 22 months 22 months
Villanos [96] 28 days year of contract et al.[98]
As the foregoing matrix readily shows, the subject clause classifies OFWs into two
categories. The first category includes OFWs with fixed-period employment contracts of less than Phil. Integrated v. 2 years 7 days 23 months and 23 months and 23 days
one year; in case of illegal dismissal, they are entitled to their salaries for the entire unexpired NLRC[99] 23 days
portion of their contract. The second category consists of OFWs with fixed-period employment JGB v. NLC[100] 2 years 9 months 15 months 15 months
contracts of one year or more; in case of illegal dismissal, they are entitled to monetary
award equivalent to only 3 months of the unexpired portion of their contracts. Agoy v. 2 years 2 months 22 months 22 months
  NLRC[101]
The disparity in the treatment of these two groups cannot be discounted. In Skippers, the EDI v. NLRC, et 2 years 5 months 19 months 19 months
respondent OFW worked for only 2 months out of his 6-month contract, but was awarded his al.[102]
salaries for the remaining 4 months. In contrast, the respondent OFWs in Oriental and PCL who
had also worked for about 2 months out of their 12-month contracts were awarded their salaries for Barros v. NLRC, 12 months 4 months 8 months 8 months
only 3 months of the unexpired portion of their contracts. Even the OFWs involved et al.[103]  
in Talidano and Univan who had worked for a longer period of 3 months out of their 12-month Philippine 12 months 6 months and 5 months and 18 5 months and 18 days
contracts before being illegally dismissed were awarded their salaries for only 3 months. Transmarine v. 22 days days
  Carilla[104]
 
It is plain that prior to R.A. No. 8042, all OFWs, regardless of contract periods or the
unexpired portions thereof, were treated alike in terms of the computation of their monetary
benefits in case of illegal dismissal. Their claims were subjected to a uniform rule of computation:
their basic salaries multiplied by the entire unexpired portion of their employment contracts.
 
The enactment of the subject clause in R.A. No. 8042 introduced a differentiated rule of
computation of the money claims of illegally dismissed OFWs based on their employment periods,
in the process singling out one category whose contracts have an unexpired portion of one year or
more and subjecting them to the peculiar disadvantage of having their monetary awards limited to
their salaries for 3 months or for the unexpired portion thereof, whichever is less, but all the while
sparing the other category from such prejudice, simply because the latter's unexpired contractsfall
short of one year.
 
Among OFWs With Employment
Contracts of More Than One Year
 
 
Upon closer examination of the terminology employed in the subject clause, the Court
now has misgivings on the accuracy of the Marsaman interpretation.
 
The Court notes that the subject clause or for three (3) months for every year of the
unexpired term, whichever is less contains the qualifying phrases every year and unexpired
term. By its ordinary meaning, the word term means a limited or definite extent of time.
[105]
 Corollarily, that every year is but part of an unexpired term is significant in many
ways: first, the unexpired term must be at least one year, for if it were any
shorter, there would be no occasion for such unexpired term to be measured by every year;
and second, the original term must be more than one year, for otherwise, whatever would be the
unexpired term thereof will not reach even a year. Consequently, the more decisive factor in the
determination of when the subject clause for three (3) months for every year of the unexpired
term, whichever is less shall apply is not the length of the original contract period as held
in Marsaman,[106] but the length of the unexpired portion of the contract period -- the subject clause
applies in cases when the unexpired portion of the contract period is at least one year, which
arithmetically requires that the original contract period be more than one year.
Viewed in that light, the subject clause creates a sub-layer of discrimination among OFWs
whose contract periods are for more than one year: those who are illegally dismissed with less than
one year left in their contracts shall be entitled to their salaries for the entire unexpired portion
thereof, while those who are illegally dismissed with one year or more remaining in their contracts
shall be covered by the subject clause, and their monetary benefits limited to their salaries for three
months only.
 
To concretely illustrate the application of the foregoing interpretation of the subject clause,
the Court assumes hypothetical OFW-C and OFW-D, who each have a 24-month contract at a
salary rate of US$1,000.00 per month. OFW-C is illegally dismissed on the 12th month, and OFW-
D, on the 13th month. Considering that there is at least 12 months remaining in the contract period
of OFW-C, the subject clause applies to the computation of the latter's monetary benefits. Thus,
OFW-C will be entitled, not to US$12,000,00 or the latter's total salaries for the 12 months
unexpired portion of the contract, but to the lesser amount of US$3,000.00 or the latter's salaries for
3 months out of the 12-month unexpired term of the contract. On the other hand, OFW-D is spared
from the effects of the subject clause, for there are only 11 months left in the latter's contract
period. Thus, OFW-D will be entitled to US$11,000.00, which is equivalent to his/her total salaries
for the entire 11-month unexpired portion.
 
OFWs vis--vis Local Workers
With Fixed-Period Employment
 
 
As discussed earlier, prior to R.A. No. 8042, a uniform system of computation of the
monetary awards of illegally dismissed OFWs was in place. This uniform system was applicable
even to local workers with fixed-term employment.[107]
 
The earliest rule prescribing a uniform system of computation was actually Article 299 of
the Code of Commerce (1888),[108] to wit:
 
Article 299. If the contracts between the merchants and their shop
clerks and employees should have been made of a fixed period, none of the
contracting parties, without the consent of the other, may withdraw from the
fulfillment of said contract until the termination of the period agreed upon.
 Persons violating this clause shall be subject to indemnify the loss and
damage suffered, with the exception of the provisions contained in the following
articles.
 
In Reyes v. The Compaia Maritima,[109] the Court applied the foregoing provision to
determine the liability of a shipping company for the illegal discharge of its managers prior to the
expiration of their fixed-term employment. The Court therein held the shipping company liable for
the salaries of its managers for the remainder of their fixed-term employment.
There is a more specific rule as far as seafarers are concerned: Article 605 of the Code of
Commerce which provides:
 
Article 605. If the contracts of the captain and members of the crew
with the agent should be for a definite period or voyage, they cannot be
discharged until the fulfillment of their contracts, except for reasons of
insubordination in serious matters, robbery, theft, habitual drunkenness, and
damage caused to the vessel or to its cargo by malice or manifest or proven
negligence.
 
Article 605 was applied to Madrigal Shipping Company, Inc. v. Ogilvie,[110] in
which the Court held the shipping company liable for the salaries and subsistence allowance of its
illegally dismissed employees for the entire unexpired portion of their employment contracts.
 
While Article 605 has remained good law up to the present,[111] Article 299 of the Code of
Commerce was replaced by Art. 1586 of the Civil Code of 1889, to wit:
Article 1586. Field hands, mechanics, artisans, and other laborers
hired for a certain time and for a certain work cannot leave or be dismissed
without sufficient cause, before the fulfillment of the contract.(Emphasis
supplied.)
 
Citing Manresa, the Court in Lemoine v. Alkan[112] read the disjunctive "or" in Article 1586 as a
conjunctive "and" so as to apply the provision to local workers who are employed for a time certain
although for no particular skill. This interpretation of Article 1586 was reiterated in Garcia
Palomar v. Hotel de France Company.[113] And in both Lemoine and Palomar, the Court adopted
the general principle that in actions for wrongful discharge founded on Article 1586, local workers
are entitled to recover damages to the extent of the amount stipulated to be paid to them by the
terms of their contract. On the computation of the amount of such damages, the Court in Aldaz v.
Gay[114] held:
The doctrine is well-established in American jurisprudence, and nothing
has been brought to our attention to the contrary under Spanish jurisprudence,
that when an employee is wrongfully discharged it is his duty to seek other
employment of the same kind in the same community, for the purpose of
reducing the damages resulting from such wrongful discharge. However, while
this is the general rule, the burden of showing that he failed to make an effort to
secure other employment of a like nature, and that other employment of a like
nature was obtainable, is upon the defendant. When an employee is wrongfully
discharged under a contract of employment his prima facie damage is the
amount which he would be entitled to had he continued in such employment
until the termination of the period. (Howard vs. Daly, 61 N. Y., 362; Allen vs.
Whitlark, 99 Mich., 492; Farrell vs. School District No. 2, 98 Mich., 43.)
[115]
 (Emphasis supplied)
On August 30, 1950, the New Civil Code took effect with new provisions on fixed-term
employment: Section 2 (Obligations with a Period), Chapter 3, Title I, and Sections 2 (Contract of
Labor) and 3 (Contract for a Piece of Work), Chapter 3, Title VIII, Book IV. [116] Much like Article
1586 of the Civil Code of 1889, the new provisions of the Civil Code do not expressly provide for
the remedies available to a fixed-term worker who is illegally discharged. However, it is noted that
in Mackay Radio & Telegraph Co., Inc. v. Rich,[117] the Court carried over the principles on the
payment of damages underlying Article 1586 of the Civil Code of 1889 and applied the same to a
case involving the illegal discharge of a local worker whose fixed-period employment contract was
entered into in 1952, when the new Civil Code was already in effect.[118]
 
More significantly, the same principles were applied to cases involving overseas Filipino
workers whose fixed-term employment contracts were illegally terminated, such as in First Asian
Trans & Shipping Agency, Inc. v. Ople, [119] involving seafarers who were illegally
discharged. In Teknika Skills and Trade Services, Inc. v. National Labor Relations Commission,
[120]
 an OFW who was illegally dismissed prior to the expiration of her fixed-period employment
contract as a baby sitter, was awarded salaries corresponding to the unexpired portion of her
contract. The Court arrived at the same ruling in Anderson v. National Labor Relations
Commission,[121] which involved a foreman hired in 1988 in Saudi Arabia for a fixed term of two
years, but who was illegally dismissed after only nine months on the job -- the Court awarded him
salaries corresponding to 15 months, the unexpired portion of his contract. In Asia World
Recruitment, Inc. v. National Labor Relations Commission,[122] a Filipino working as a security
officer in 1989 in Angola was awarded his salaries for the remaining period of his 12-month
contract after he was wrongfully discharged. Finally, in Vinta Maritime Co., Inc. v. National Labor
Relations Commission,[123] an OFW whose 12-month contract was illegally cut short in the second
month was declared entitled to his salaries for the remaining 10 months of his contract.
 
In sum, prior to R.A. No. 8042, OFWs and local workers with fixed-term employment who
were illegally discharged were treated alike in terms of the computation of their money claims:
they were uniformly entitled to their salaries for the entire unexpired portions of their
contracts. But with the enactment of R.A. No. 8042, specifically the adoption of the subject clause,
illegally dismissed OFWs with an unexpired portion of one year or more in their employment
contract have since been differently treated in that their money claims are subject to a 3-month cap,
whereas no such limitation is imposed on local workers with fixed-term employment.
The Court concludes that the subject clause contains a suspect classification in that, in
the computation of the monetary benefits of fixed-term employees who are illegally discharged,
it imposes a 3-month cap on the claim of OFWs with an unexpired portion of one year or more
in their contracts, but none on the claims of other OFWs or local workers with fixed-term
employment. The subject clause singles out one classification of OFWs and burdens it with a
peculiar disadvantage.
 
There being a suspect classification involving a vulnerable sector protected by the
Constitution, the Court now subjects the classification to a strict judicial scrutiny, and determines
whether it serves a compelling state interest through the least restrictive means.
 
What constitutes compelling state interest is measured by the scale of rights and powers
arrayed in the Constitution and calibrated by history.[124] It is akin to the paramount interest of the
state[125] for which some individual liberties must give way, such as the public interest in
safeguarding health or maintaining medical standards,[126] or in maintaining access to information
on matters of public concern.[127]
In the present case, the Court dug deep into the records but found no compelling state
interest that the subject clause may possibly serve.
 
The OSG defends the subject clause as a police power measure designed to protect the
employment of Filipino seafarers overseas x x x. By limiting the liability to three months [sic],
Filipino seafarers have better chance of getting hired by foreign employers. The limitation also
protects the interest of local placement agencies, which otherwise may be made to shoulder
millions of pesos in termination pay.[128]
 
The OSG explained further:
Often, placement agencies, their liability being solidary, shoulder the
payment of money claims in the event that jurisdiction over the foreign employer
is not acquired by the court or if the foreign employer reneges on its obligation.
Hence, placement agencies that are in good faith and which fulfill their
obligations are unnecessarily penalized for the acts of the foreign employer. To
protect them and to promote their continued helpful contribution in deploying
Filipino migrant workers, liability for money are reduced under Section 10 of
RA 8042.
This measure redounds to the benefit of the migrant workers whose
welfare the government seeks to promote. The survival of legitimate placement
agencies helps [assure] the government that migrant workers are properly
deployed and are employed under decent and humane conditions.[129] (Emphasis
supplied)
 
However, nowhere in the Comment or Memorandum does the OSG cite the source of its
perception of the state interest sought to be served by the subject clause.
 
The OSG locates the purpose of R.A. No. 8042 in the speech of Rep. Bonifacio Gallego in
sponsorship of House Bill No. 14314 (HB 14314), from which the law originated; [130] but the
speech makes no reference to the underlying reason for the adoption of the subject clause. That is
only natural for none of the 29 provisions in HB 14314 resembles the subject clause.
 
On the other hand, Senate Bill No. 2077 (SB 2077) contains a provision on money claims,
to wit:
Sec. 10. Money Claims. - Notwithstanding any provision of law to the
contrary, the Labor Arbiters of the National Labor Relations Commission
(NLRC) shall have the original and exclusive jurisdiction to hear and decide,
within ninety (90) calendar days after the filing of the complaint, the claims
arising out of an employer-employee relationship or by virtue of the complaint,
the claim arising out of an employer-employee relationship or by virtue of any
 law or contract involving Filipino workers for overseas employment including
claims for actual, moral, exemplary and other forms of damages.
 
The liability of the principal and the recruitment/placement agency or
any and all claims under this Section shall be joint and several.
Any compromise/amicable settlement or voluntary agreement on any
money claims exclusive of damages under this Section shall not be less than fifty
percent (50%) of such money claims: Provided, That any installment payments,
if applicable, to satisfy any such compromise or voluntary settlement shall not be
more than two (2) months. Any compromise/voluntary agreement in violation of
this paragraph shall be null and void.
 
Non-compliance with the mandatory period for resolutions of cases
provided under this Section shall subject the responsible officials to any or all of
the following penalties:
 
(1) The salary of any such official who fails to render his
decision or resolution within the prescribed period shall be, or
caused to be, withheld until the said official complies
therewith;
(2) Suspension for not more than ninety (90) days; or
(3) Dismissal from the service with disqualification to hold any
appointive public office for five (5) years.
 
Provided, however, That the penalties herein provided shall be without
prejudice to any liability which any such official may have incurred under other
existing laws or rules and regulations as a consequence of violating the
provisions of this paragraph.
But significantly, Section 10 of SB 2077 does not provide for any rule on the computation of
money claims.
A rule on the computation of money claims containing the subject clause was inserted and
eventually adopted as the 5th paragraph of Section 10 of R.A. No. 8042. The Court examined the
rationale of the subject clause in the transcripts of the Bicameral Conference Committee
(Conference Committee) Meetings on the Magna Carta on OCWs (Disagreeing Provisions of
Senate Bill No. 2077 and House Bill No. 14314). However, the Court finds no discernible state
interest, let alone a compelling one, that is sought to be protected or advanced by the adoption of the
subject clause.
In fine, the Government has failed to discharge its burden of proving the existence of a
compelling state interest that would justify the perpetuation of the discrimination against OFWs
under the subject clause.
 
Assuming that, as advanced by the OSG, the purpose of the subject clause is to protect the
employment of OFWs by mitigating the solidary liability of placement agencies, such callous and
cavalier rationale will have to be rejected. There can never be a justification for any form of
government action that alleviates the burden of one sector, but imposes the same burden on another
sector, especially when the favored sector is composed of private businesses such as placement
agencies, while the disadvantaged sector is composed of OFWs whose protection no less than the
Constitution commands. The idea that private business interest can be elevated to the level of a
compelling state interest is odious.
 
Moreover, even if the purpose of the subject clause is to lessen the solidary liability of
placement agencies vis-a-vis their foreign principals, there are mechanisms already in place that
can be employed to achieve that purpose without infringing on the constitutional rights of OFWs.
The POEA Rules and Regulations Governing the Recruitment and Employment of Land-
Based Overseas Workers, dated February 4, 2002, imposes administrative disciplinary measures on
erring foreign employers who default on their contractual obligations to migrant workers and/or
their Philippine agents. These disciplinary measures range from temporary disqualification to
preventive suspension. The POEA Rules and Regulations Governing the Recruitment and
Employment of Seafarers, dated May 23, 2003, contains similar administrative disciplinary
measures against erring foreign employers.
Resort to these administrative measures is undoubtedly the less restrictive means of aiding
local placement agencies in enforcing the solidary liability of their foreign principals.
Thus, the subject clause in the 5th paragraph of Section 10 of R.A. No. 8042 is violative of
the right of petitioner and other OFWs to equal protection.
  
Further, there would be certain misgivings if one is to approach the declaration of the
unconstitutionality of the subject clause from the lone perspective that the clause directly violates
state policy on labor under Section 3,[131] Article XIII of the Constitution.
While all the provisions of the 1987 Constitution are presumed self-executing, ,[132] there are some
which this Court has declared not judicially enforceable, Article XIII being one,
[133]
particularly Section 3 thereof, the nature of which, this Court, in Agabon v. National Labor
Relations Commission,[134] has described to be not self-actuating:
 
Thus, the constitutional mandates of protection to labor and security of
tenure may be deemed as self-executing in the sense that these are automatically
acknowledged and observed without need for any enabling legislation. However,
to declare that the constitutional provisions are enough to guarantee the full
exercise of the rights embodied therein, and the realization of ideals therein
expressed, would be impractical, if not unrealistic. The espousal of such view
presents the dangerous tendency of being overbroad and exaggerated. The
guarantees of "full protection to labor" and "security of tenure", when examined
in isolation, are facially unqualified, and the broadest interpretation possible
suggests a blanket shield in favor of labor against any form of removal regardless
of circumstance. This interpretation implies an unimpeachable right to continued
employment-a utopian notion, doubtless-but still hardly within the contemplation
of the framers. Subsequent legislation is still needed to define the parameters of
these guaranteed rights to ensure the protection and promotion, not only the
rights of the labor sector, but of the employers' as well. Without specific and
pertinent legislation, judicial bodies will be at a loss, formulating their own
conclusion to approximate at least the aims of the Constitution.
Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be
a source of a positive enforceable right to stave off the dismissal of an
employee for just cause owing to the failure to serve proper notice or hearing. As
manifested by several framers of the 1987 Constitution, the provisions on social
justice require legislative enactments for their enforceability.[135] (Emphasis
added)
Thus, Section 3, Article XIII cannot be treated as a principal source of direct enforceable
rights, for the violation of which the questioned clause may be declared unconstitutional. It may
unwittingly risk opening the floodgates of litigation to every worker or union over every
conceivable violation of so broad a concept as social justice for labor.
It must be stressed that Section 3, Article XIII does not directly bestow on the
working class any actual enforceable right, but merely clothes it with the status of a sector for
whom the Constitution urges protection through executive or legislative action and judicial
recognition. Its utility is best limited to being an impetus not just for the executive and
legislative departments, but for the judiciary as well, to protect the welfare of the working
class. And it was in fact consistent with that constitutional agenda that the Court in Central
Bank (now Bangko Sentral ng Pilipinas) Employee Association, Inc. v. Bangko Sentral ng
Pilipinas, penned by then Associate Justice now Chief Justice Reynato S. Puno, formulated
the judicial precept that when the challenge to a statute is premised on the perpetuation of
prejudice against persons favored by the Constitution with special protection -- such as the
working class or a section thereof -- the Court may recognize the existence of a suspect
classification and subject the same to strict judicial scrutiny.
 
The view that the concepts of suspect classification and strict judicial scrutiny formulated
in Central Bank Employee Association exaggerate the significance of Section 3, Article XIII is a
groundless apprehension. Central Bank applied Article XIII in conjunction with the equal
protection clause. Article XIII, by itself, without the application of the equal protection clause, has
no life or force of its own as elucidated in Agabon.
 
Along the same line of reasoning, the Court further holds that the subject clause violates
petitioner's right to substantive due process, for it deprives him of property, consisting of monetary
benefits, without any existing valid governmental purpose.[136]
The argument of the Solicitor General, that the actual purpose of the subject clause of
limiting the entitlement of OFWs to their three-month salary in case of illegal dismissal, is to give
them a better chance of getting hired by foreign employers. This is plain speculation. As earlier
discussed, there is nothing in the text of the law or the records of the deliberations leading to its
enactment or the pleadings of respondent that would indicate that there is an existing governmental
purpose for the subject clause, or even just a pretext of one.
 The subject clause does not state or imply any definitive governmental purpose; and it is guarantees the right to overtime pay but the entitlement to such
for that precise reason that the clause violates not just petitioner's right to equal protection, but also benefit must first be established.
her right to substantive due process under Section 1,[137] Article III of the Constitution.
  In the same vein, the claim for the day's leave pay for the
The subject clause being unconstitutional, petitioner is entitled to his salaries for the entire unexpired portion of the contract is unwarranted since the
unexpired period of nine months and 23 days of his employment contract, pursuant to law and same is given during the actual service of the seamen.
jurisprudence prior to the enactment of R.A. No. 8042.  
  WHEREFORE, the Court GRANTS the Petition. The subject clause or for three
On the Third Issue months for every year of the unexpired term, whichever is less in the 5th paragraph of Section 10 of
  Republic Act No. 8042 is DECLARED UNCONSTITUTIONAL; and the December 8, 2004
Petitioner contends that his overtime and leave pay should form part of the salary basis in Decision and April 1, 2005 Resolution of the Court of Appeals are MODIFIED to the effect that
the computation of his monetary award, because these are fixed benefits that have been stipulated petitioner is AWARDED his salaries for the entire unexpired portion of his employment contract
into his contract. consisting of nine months and 23 days computed at the rate of US$1,400.00 per month.
  No costs. SO ORDERED.
Petitioner is mistaken. BASES CONVERSION AND G.R. No. 178160
  DEVELOPMENT AUTHORITY,
The word salaries in Section 10(5) does not include overtime and leave pay. For seafarers Petitioner,
like petitioner, DOLE Department Order No. 33, series 1996, provides a Standard Employment Present:
Contract of Seafarers, in which salary is understood as the basic wage, exclusive of overtime, leave PUNO, C.J.,
pay and other bonuses; whereas overtime pay is compensation for all work performed in excess of QUISUMBING,
the regular eight hours, and holiday pay is compensation for any work performed on designated YNARES-SANTIAGO,*
rest days and holidays. CARPIO,
  AUSTRIA-MARTINEZ,
By the foregoing definition alone, there is no basis for the automatic inclusion of overtime CORONA,
and holiday pay in the computation of petitioner's monetary award, unless there is evidence that he CARPIO MORALES,
performed work during those periods. As the Court held in Centennial Transmarine, Inc. v. Dela - versus - TINGA,*
Cruz,[138] CHICO-NAZARIO,
However, the payment of overtime pay and leave pay should be VELASCO, JR.,
disallowed in light of our ruling in Cagampan v. National Labor Relations NACHURA,
Commission, to wit: LEONARDO-DE CASTRO,
  BRION, and
The rendition of overtime work and the submission PERALTA, JJ.
of sufficient proof that said was actually performed are
conditions to be satisfied before a seaman could be entitled to
overtime pay which should be computed on the basis of 30% COMMISSION ON AUDIT, Promulgated:
of the basic monthly salary. In short, the contract provision Respondent. February 26, 2009
 x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x  Aside from the contractual employees, regular permanent employees, and Board
The Case
This is a petition for certiorari [1] with prayer for the issuance of a temporary restraining
order and a writ of preliminary injunction. The petition seeks to nullify Decision No.
2007-020[2] dated 12 April 2007 of the Commission on Audit (COA).
 
The Facts
 
On 13 March 1992, Congress approved Republic Act (RA) No. 7227[3] creating the
Bases Conversion and Development Authority (BCDA). Section 9 of RA No. 7227
states that the BCDA Board of Directors (Board) shall exercise the powers and functions
of the BCDA. Under Section 10, the functions of the Board include the determination of
the organizational structure and the adoption of a compensation and benefit scheme at
least equivalent to that of the Bangko Sentral ng Pilipinas (BSP). Accordingly, the
Board determined the organizational structure of the BCDA and adopted a compensation
and benefit scheme for its officials and employees.
 
On 20 December 1996, the Board adopted a new compensation and benefit scheme
which included a P10,000 year-end benefit granted to each contractual employee,
regular permanent employee, and Board member. In a memorandum[4] dated 25 August
1997, Board Chairman Victoriano A. Basco (Chairman Basco) recommended to
President Fidel V. Ramos (President Ramos) the approval of the new compensation and
benefit scheme. In a memorandum[5] dated 9 October 1997, President Ramos approved
the new compensation and benefit scheme.
 
In 1999, the BSP gave a P30,000 year-end benefit to its officials and employees. In
2000, the BSP increased the year-end benefit from P30,000 to P35,000. Pursuant to
Section 10 of RA No. 7227 which states that the compensation and benefit scheme of
the BCDA shall be at least equivalent to that of the BSP, the Board increased the year-
end benefit of BCDA officials and employees from P10,000 to P30,000. Thus in 2000
and 2001, BCDA officials and employees received a P30,000 year-end benefit, and, on 1
October 2002, the Board passed Resolution No. 2002-10-193[6] approving the release of
a P30,000 year-end benefit for 2002.
 
members, the full-time consultants of the BCDA also received the year-end benefit.
On 20 February 2003, State Auditor IV Corazon V. Espao of the COA issued Audit
Observation Memorandum (AOM) No. 2003-004[7] stating that the grant of year-end
benefit to Board members was contrary to Department of Budget and Management
(DBM) Circular Letter No. 2002-2 dated 2 January 2002. In Notice of Disallowance
(ND) No. 03-001-BCDA-(02)[8] dated 8 January 2004, Director IV Rogelio D. Tablang
(Director Tablang), COA, Legal and Adjudication Office-Corporate, disallowed the
grant of year-end benefit to the Board members and full-time consultants. In Decision
No. 2004-013[9] dated 13 January 2004, Director Tablang concurred with AOM No.
2003-004 and ND No. 03-001-BCDA-(02).
 
In a letter[10] dated 20 February 2004, BCDA President and Chief Executive Officer
Rufo Colayco requested the reconsideration of Decision No. 2004-013. In a
Resolution[11]dated 22 June 2004, Director Tablang denied the request. The BCDA filed
a notice of appeal[12] dated 8 September 2004 and an appeal memorandum[13] dated 23
December 2004 with the COA.
The COAs Ruling
 
In Decision No. 2007-020,[14] the COA affirmed the disallowance of the year-end benefit
granted to the Board members and full-time consultants and held that the presumption of
good faith did not apply to them. The COA stated that:
 
The granting of YEB x x x is not without x x x limitation. DBM
Circular Letter No. 2002-02 dated January 2, 2002 stating, viz:
 
2.0 To clarify and address issues/requests concerning the same,
the following compensation policies are hereby reiterated:
 
2.1 PERA, ADCOM, YEB and retirement benefits, are
personnel benefits granted in addition to salaries. As fringe benefits,
these shall be paid only when the basic salary is also paid.
 
2.2 Members of the Board of Directors of agencies are not
salaried officials of the government. As non-salaried officials they are
 not entitled to PERA, ADCOM, YEB and retirement benefits
unless expressly provided by law.
 
2.3 Department Secretaries, Undersecretaries and Assistant
Secretaries who serve as Ex-officio Members of the Board of Directors
are not entitled to any remuneration in line with the Supreme Court
ruling that their services in the Board are already paid for and covered
by the remuneration attached to their office. (underscoring ours)
 
Clearly, as stated above, the members and ex-officio members of the
Board of Directors are not entitled to YEB, they being not salaried
officials of the government. The same goes with full time
consultants wherein no employer-employee relationships exist between
them and the BCDA. Thus, the whole amount paid to them
totaling P342,000 is properly disallowed in audit.
 
Moreover, the presumption of good faith may not apply to the members
and ex-officio members of the Board of Directors because despite the
earlier clarification on the matter by the DBM thru the issuance on
January 2, 2002 of DBM Circular Letter No. 2002-02, still, the BCDA
Board of Directors enacted Resolution No. 2002-10-93 on October 1,
2002 granting YEB to the BCDA personnel including themselves. Full
time consultants, being non-salaried personnel, are also not entitled to
such presumption since they knew from the very beginning that they are
only entitled to the amount stipulated in their contracts as compensation
for their services. Hence, they should be made to refund the disallowed
YEB.[15] (Boldfacing in the original)
Hence, this petition.
 
The Courts Ruling
 
The Board members and full-time consultants of the BCDA are not entitled to the year-
end benefit.
First, the BCDA claims that the Board can grant the year-end benefit to its members and
full-time consultants because, under Section 10 of RA No. 7227, the functions of the
Board include the adoption of a compensation and benefit scheme.
 
The Court is not impressed. The Boards power to adopt a compensation and benefit
scheme is not unlimited. Section 9 of RA No. 7227 states that Board members are
entitled to a per diem:
 
Members of the Board shall receive a per diem of not more than
Five thousand pesos (P5,000) for every board
meeting: Provided, however, That the per diem collected per month
does not exceed the equivalent of four (4)
meetings: Provided, further, That the amount of per diem for every
board meeting may be increased by the President but such amount shall
not be increased within two (2) years after its last increase. (Emphasis
supplied)
 
 
Section 9 specifies that Board members shall receive a per diem for every board
meeting; limits the amount of per diem to not more than P5,000; and limits the total
amount of per diem for one month to not more than four meetings. In Magno v.
Commission on Audit,[16] Cabili v. Civil Service Commission,[17] De Jesus v. Civil Service
Commission,[18]Molen, Jr. v. Commission on Audit,[19] and Baybay Water District v.
Commission on Audit,[20] the Court held that the specification of compensation and
limitation of the amount of compensation in a statute indicate that Board members
are entitled only to the per diem authorized by law and no other. In Baybay Water
District, the Court held that:
 
By specifying the compensation which a director is entitled to receive
and by limiting the amount he/she is allowed to receive in a month, x x
x the law quite clearly indicates that directors x x x are authorized to
receive only the per diem authorized by law and no other compensation
or allowance in whatever form.[21]
Also, DBM Circular Letter No. 2002-2 states that, Members of the Board of Directors
of agencies are not salaried officials of the government. As non-salaried officials
they are not entitled to PERA, ADCOM, YEB and retirement benefits unless
expressly provided by law. RA No. 7227 does not state that the Board members are
entitled to a year-end benefit.
 
With regard to the full-time consultants, DBM Circular Letter No. 2002-2 states
that, YEB and retirement benefits, are personnel benefits granted in addition to
salaries. As fringe benefits, these shall be paid only when the basic salary is also
paid. The full-time consultants are not part of the BCDA personnel and are not paid the
basic salary. The full-time consultants consultancy contracts expressly state that there is
no employer-employee relationship between the BCDA and the consultants, and that the
BCDA shall pay the consultants a contract price. For example, the consultancy
contract[22] of a certain Dr. Faith M. Reyes states:
SECTION 2. Contract Price. For and in consideration of the services
to be performed by the CONSULTANT (16 hours/week), BCDA shall
pay her the amount of TWENTY THOUSAND PESOS and 00/100
(P20,000.00), Philippine currency, per month.
 
xxxx
 
SECTION 4. Employee-Employer Relationship. It is understood that
no employee-employer relationship shall exist between BCDA and the
CONSULTANT.
SECTION 5. Period of Effectivity. This CONTRACT shall have an
effectivity period of one (1) year, from January 01, 2002 to December
31, 2002, unless sooner terminated by BCDA in accordance with
Section 6 below.
 
SECTION 6. Termination of Services. BCDA, in its sole discretion
may opt to terminate this CONTRACT when it sees that there is no
more need for the services contracted for. (Boldfacing in the original)
 
Since full-time consultants are not salaried employees of BCDA, they are not entitled to
the year-end benefit which is a personnel benefit granted in addition to salaries and
which is paid only when the basic salary is also paid.
 
Second, the BCDA claims that the Board members and full-time consultants should be
granted the year-end benefit because the granting of year-end benefit is consistent with
Sections 5 and 18, Article II of the Constitution. Sections 5 and 18 state:
 
Section 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 people of the blessings of democracy.
 
Section 18. The State affirms labor as a primary social economic
force. It shall protect the rights of workers and promote their welfare.
 
The Court is not impressed. Article II of the Constitution is entitled Declaration of
Principles and State Policies. By its very title, Article II is a statement of general
ideological principles and policies. It is not a source of enforceable rights.[23] In Tondo
Medical Center Employees Association v. Court of Appeals,[24] the Court held
that Sections 5 and 18, Article II of the Constitution are not self-executing
provisions. In that case, the Court held that Some of the constitutional provisions
invoked in the present case were taken from Article II of the Constitution specifically,
Sections 5 x x x and 18 the provisions of which the Court categorically ruled to be non
self-executing.
Third, the BCDA claims that the denial of year-end benefit to the Board members and
full-time consultants violates Section 1, Article III of the Constitution.[25] More
specifically, the BCDA claims that there is no substantial distinction between regular
officials and employees on one hand, and Board members and full-time consultants on
the other. The BCDA states that there is here only a distinction, but no difference
because both have undeniably one common goal as humans, that is x x x to keep body
and soul together or, [d]ifferently put, both have mouths to feed and stomachs to fill.
 
The Court is not impressed. Every presumption should be indulged in favor of the
constitutionality of RA No. 7227 and the burden of proof is on the BCDA to show
that there is a clear and unequivocal breach of the Constitution.[26] In Abakada Guro
Party List v. Purisima,[27] the Court held that:
 
A law enacted by Congress enjoys the strong presumption of
constitutionality. To justify its nullification, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and unequivocal
one. To invalidate [a law] based on x x x baseless supposition is an
affront to the wisdom not only of the legislature that passed it but also
of the executive which approved it.
The BCDA failed to show that RA No. 7227 unreasonably singled out Board members
and full-time consultants in the grant of the year-end benefit. It did not show any clear
and unequivocal breach of the Constitution. The claim that there is no difference
between regular officials and employees, and Board members and full-time consultants
because both groups have mouths to feed and stomachs to fill is fatuous. Surely, persons
are not automatically similarly situated thus, automatically deserving of equal protection
of the laws just because they both have mouths to feed and stomachs to fill. Otherwise,
the existence of a substantial distinction would become forever highly improbable.
 
Fourth, the BCDA claims that the Board can grant the year-end benefit to its members
and the full-time consultants because RA No. 7227 does not expressly prohibit it from
doing so.
 
The Court is not impressed. A careful reading of Section 9 of RA No. 7227 reveals that
the Board is prohibited from granting its members other benefits. Section 9 states:
Members of the Board shall receive a per diem of not more than
Five thousand pesos (P5,000) for every board
meeting: Provided, however, That the per diem collected per month
does not exceed the equivalent of four (4)
meetings: Provided, further, That the amount of per diem for every
board meeting may be increased by the President but such amount shall
not be increased within two (2) years after its last increase. (Emphasis
supplied)
 
Section 9 specifies that Board members shall receive a per diem for every board
meeting; limits the amount of per diem to not more than P5,000; limits the total amount
of per diem for one month to not more than four meetings; and does not state that Board
members may receive other benefits. In Magno,[28] Cabili,[29] De Jesus,[30] Molen, Jr.,
[31]
and Baybay Water District,[32] the Court held that the specification of compensation
and limitation of the amount of compensation in a statute indicate that Board
members are entitled only to the per diem authorized by law and no other.
 
The specification that Board members shall receive a per diem of not more than P5,000
for every meeting and the omission of a provision allowing Board members to receive
other benefits lead the Court to the inference that Congress intended to limit the
compensation of Board members to the per diem authorized by law and no
other. Expressio unius est exclusio alterius. Had Congress intended to allow the Board
members to receive other benefits, it would have expressly stated so.[33] For example,
Congress intention to allow Board members to receive other benefits besides the per
diem authorized by law is expressly stated in Section 1 of RA No. 9286:[34]
 
SECTION 1. Section 13 of Presidential Decree No. 198, as amended, is
hereby amended to read as follows:
 
SEC. 13. Compensation. Each director shall receive per diem to be
determined by the Board, for each meeting of the Board actually
attended by him, but no director shall receive per diems in any given
month in excess of the equivalent of the total per diem of four meetings
in any given month.
Any per diem in excess of One hundred fifty pesos (P150.00) shall be
subject to the approval of the Administration. In addition thereto, each
director shall receive allowances and benefits as the Board may
prescribe subject to the approval of the Administration. (Emphasis
supplied)
 
 
The Court cannot, in the guise of interpretation, enlarge the scope of a statute or insert
into a statute what Congress omitted, whether intentionally or unintentionally.[35]
When a statute is susceptible of two interpretations, the Court must adopt the one in benefits other than the per diem authorized by law; and (3) President Ramos approval of
consonance with the presumed intention of the legislature to give its enactments the the new compensation and benefit scheme which included the granting of a year-end
most reasonable and beneficial construction, the one that will render them operative and benefit to each contractual employee, regular permanent employee, and Board
effective.[36] The Court always presumes that Congress intended to enact sensible member. The full-time consultants relied on Section 10 of RA No. 7227 which
statutes.[37] If the Court were to rule that the Board could grant the year-end benefit to its authorized the Board to adopt a compensation and benefit scheme. There is no proof that
members, Section 9 of RA No. 7227 would become inoperative and ineffective the the Board members and full-time consultants knew that their receipt of the year-end
specification that Board members shall receive a per diem of not more than P5,000 for benefit was unlawful. In keeping with Magno,[39] De Jesus,[40] Molen, Jr.,
[41]
every meeting; the specification that the per diem received per month shall not exceed  and Kapisanan ng mga Manggagawa sa Government Service Insurance System
the equivalent of four meetings; the vesting of the power to increase the amount of per (KMG) v. Commission on Audit,[42] the Board members and full-time consultants are not
diem in the President; and the limitation that the amount of per diem shall not be required to refund the year-end benefits they have already received.
increased within two years from its last increase would all become useless because the  
Board could always grant its members other benefits. WHEREFORE, the petition is PARTIALLY GRANTED. Commission on Audit
  Decision No. 2007-020 dated 12 April 2007 is AFFIRMED with
With regard to the full-time consultants, DBM Circular Letter No. 2002-2 states the MODIFICATION that the Board members and full-time consultants of the Bases
that, YEB and retirement benefits, are personnel benefits granted in addition to Conversion and Development Authority are not required to refund the year-end benefits
salaries. As fringe benefits, these shall be paid only when the basic salary is also they have already received.
paid. The full-time consultants are not part of the BCDA personnel and are not paid the  
basic salary. The full-time consultants consultancy contracts expressly state that there is SO ORDERED.
no employer-employee relationship between BCDA and the consultants and that BCDA
shall pay the consultants a contract price. Since full-time consultants are not salaried BUREAU OF FISHERIES AND AQUATIC G.R. No. 169815
employees of the BCDA, they are not entitled to the year-end benefit which is RESOURCES (BFAR) EMPLOYEES UNION,
a personnel benefit granted in addition to salaries and which is paid only when the REGIONAL OFFICE NO. VII, CEBU CITY, Present:
basic salary is also paid. Petitioner, Puno, C.J.,
    Quisumbing,
Fifth, the BCDA claims that the Board members and full-time consultants are entitled to   Ynares-Santiago,
the year-end benefit because (1) President Ramos approved the granting of the benefit to   Carpio,
the Board members, and (2) they have been receiving it since 1997.   Austria-Martinez,
    Corona,
The Court is not impressed. The State is not estopped from correcting a public officers   Carpio Morales,
erroneous application of a statute, and an unlawful practice, no matter how long, cannot   Azcuna,
give rise to any vested right.[38] - versus - Tinga,
    Chico-Nazario,
The Court, however, notes that the Board members and full-time consultants received   Velasco, Jr.,
the year-end benefit in good faith. The Board members relied on (1) Section 10 of RA   Nachura,*
No. 7227 which authorized the Board to adopt a compensation and benefit scheme; (2)   Reyes,
the fact that RA No. 7227 does not expressly prohibit Board members from receiving   Leonardo-De Castro,
   Brion, JJ.
 
COMMISSION ON AUDIT, Promulgated:
Respondent.  
August 13, 2008
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x
On appeal are the Decision[1] 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 Resolution[2] dated August 5, 2005, denying petitioners 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 of 1987, and approved by the Civil Service Commission
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.
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. Petitioners motion for reconsideration was likewise denied in a Resolution dated
August 5, 2005.
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 policies that provide
adequate social 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]
 
We deny the petition.
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,
[9]
 the 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.
th
Petitioner contends that the Food Basket Allowance falls under the 7  category above,
that of other additional compensation not otherwise specified herein as may be
determined by the DBM.
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 alleviating the economic condition of BFAR employees.
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 Malacaang 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.
Again, we reject petitioners 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
expenses involved in the honorary recognition of 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 behalf of respondent
did, that petitioner failed to exhaust its administrative remedies. It stopped seeking
remedies at the level of respondents Legal and Adjudication Office. It failed to appeal
the latters 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.
SO ORDERED.
G.R. No. L-9959 December 13, 1916
THE GOVERNMENT OF THE PHILIPPINE ISLANDS, represented by the
Treasurer of the Philippine Islands,plaintiff-appellee,  to one condition, to wit: the return of such sum of money to the Spanish
vs.
EL MONTE DE PIEDAD Y CAJA DE AHORRAS DE MANILA, defendant-
appellant.
William A. Kincaid and Thomas L. Hartigan for appellant.  2. The court erred in not having decreed that this donation had been cleared;
Attorney-General Avanceña for appellee.
About $400,000, were subscribed and paid into the treasury of the Philippine Islands by
the inhabitants of the Spanish Dominions of the relief of those damaged by the
earthquake which took place in the Philippine Islands on June 3, 1863. Subsequent
thereto and on October 6 of that year, a central relief board was appointed, by authority
of the King of Spain, to distribute the moneys thus voluntarily contributed. After a
thorough investigation and consideration, the relief board allotted $365,703.50 to the
various sufferers named in its resolution, dated September 22, 1866, and, by order of the
Governor-General of the Philippine Islands, a list of these allotments, together with the
names of those entitled thereto, was published in the Official Gazette of Manila dated
April 7, 1870. There was later distributed, inaccordance with the above-mentioned
allotments, the sum of $30,299.65, leaving a balance of S365,403.85 for distribution.
Upon the petition of the governing body of the Monte de Piedad, dated February 1,
1833, the Philippine Government, by order dated the 1st of that month, directed its
treasurer to turn over to the Monte de Piedad the sum of $80,000 of the relief fund in
installments of $20,000 each. These amounts were received on the following dates:
February 15, March 12, April 14, and June 2, 1883, and are still in the possession of
the Monte de Piedad. On account of various petitions of the persons, and heirs of others
to whom the above-mentioned allotments were made by the central relief board for the
payment of those amounts, the Philippine Islands to bring suit against the Monte de
Piedad a recover, "through the Attorney-General and in representation of the
Government of the Philippine Islands," the $80.000, together with interest, for the
benefit of those persons or their heirs appearing in the list of names published in the
Official Gazette instituted on May 3, 1912, by the Government of the Philippine Islands,
represented by the Insular Treasurer, and after due trial, judgment was entered in favor
of the plaintiff for the sum of $80,000 gold or its equivalent in Philippine currency,
together with legal interest from February 28, 1912, and the costs of the cause. The
defendant appealed and makes the following assignment of errors:
1. The court erred in not finding that the eighty thousand dollars ($80,000), give
to the Monte de Piedad y Caja de Ahorros, were so given as a donation subject
Government of these Islands, within eight days following the day when claimed,
in case the Supreme Government of Spain should not approve the action taken
by the former government.
said eighty thousand dollars ($80,000) being at present the exclusive property of
the appellant the Monte de Piedad y Caja de Ahorros.
3. That the court erred in stating that the Government of the Philippine Islands
has subrogated the Spanish Government in its rights, as regards an important
sum of money resulting from a national subscription opened by reason of the
earthquake of June 3, 1863, in these Island.
4. That the court erred in not declaring that Act Numbered 2109, passed by the
Philippine Legislature on January 30, 1912, is unconstitutional.
 5. That the court erred in holding in its decision that there is no title for the
prescription of this suit brought by the Insular Government against the Monte de
Piedad y Caja de Ahorros for the reimbursement of the eighty thousand dollars
($80,000) given to it by the late Spanish Government of these Islands.
6. That the court erred in sentencing the Monte de Piedad y Caja de Ahorros to
reimburse the Philippine Government in the sum of eighty thousand dollars
($80,000) gold coin, or the equivalent thereof in the present legal tender
currency in circulation, with legal interest thereon from February 28th, 1912,
and the costs of this suit.
In the royal order of June 29, 1879, the Governor-General of the Philippine Islands was
directed to inform the home Government in what manner the indemnity might be paid to
which, by virtue of the resolutions of the relief board, the persons who suffered damage
by the earthquake might be entitled, in order to perform the sacred obligation which the
Government of Spain had assumed toward the donors.
The next pertinent document in order is the defendant's petition, dated February 1, 1883,
addressed to the Governor-General of the Philippine Islands, which reads:
Board of Directors of the Monte de Piedad of Manila Presidencia.
Excellency: The Board of Directors of the Monte de Piedad y Caja de
Ahorros of Manila informs your Excellency, First: That the funds which it has
up to the present been able to dispose of have been exhausted in loans on
jewelry, and there only remains the sum of one thousand and odd pesos, which
will be expended between to-day and day after tomorrow. Second: That, to
maintain the credit of the establishment, which would be greatly injured were its
operations suspended, it is necessary to procure money. Third: That your
Excellency has proposed to His Majesty's Government to apply to the funds of
the Monte de Piedad a part of the funds held in the treasury derived form the
national subscription for the relief of the distress caused by the earthquake of
1863. Fourth: That in the public treasury there is held at the disposal of the
central earthquake relief board over $1090,000 which was deposited in the said
treasury by order of your general Government, it having been transferred thereto
from the Spanish-Filipino Bank where it had been held. fifth: That in the
straightened circumstances of the moment, your Excellency can, to avert
impending disaster to the Monte de Piedad, order that, out of that sum of one
hundred thousand pesos held in the Treasury at the disposal of the central relief
board, there be transferred to the Monte de Piedad the sum of $80,000, there to
be held under the same conditions as at present in the Treasury, to wit, at the
disposal of the Relief Board. Sixth: That should this transfer not be approved for
any reason, either because of the failure of His Majesty's Government to
approve the proposal made by your Excellency relative to the application to the
needs of the Monte de Piedad of a pat of the subscription intended to believe the
distress caused by the earthquake of 1863, or for any other reason, the board of
directors of the Monte de Piedad obligates itself to return any sums which it
may have received on account of the eighty thousand pesos, or the whole
thereof, should it have received the same, by securing a loan from whichever
bank or banks may lend it the money at the cheapest rate upon the security of
pawned jewelry. — This is an urgent measure to save the Monte de Piedad in
the present crisis and the board of directors trusts to secure your Excellency's
entire cooperation and that of the other officials who have take part in the
transaction.
The Governor-General's resolution on the foregoing petition is as follows:
GENERAL GOVERNMENT OF THE PHILIPPINES. 
MANILA, February 1, 1883.
In view of the foregoing petition addressed to me by the board of directors of
the Monte de Piedad of this city, in which it is stated that the funds which the
said institution counted upon are nearly all invested in loans on jewelry and that
the small account remaining will scarcely suffice to cover the transactions of the
next two days, for which reason it entreats the general Government that, in
pursuance of its telegraphic advice to H. M. Government, the latter direct that
there be turned over to said Monte de Piedad $80,000 out of the funds in the
public treasury obtained from the national subscription for the relief of the
distress caused by the earthquake of 1863, said board obligating itself to return
this sum should H. M. Government, for any reason, not approve the said
proposal, and for this purpose it will procure funds by means of loans raised on
pawned jewelry; it stated further that if the aid so solicited is not furnished, it
will be compelled to suspend operations, which would seriously injure the credit
of so beneficient an institution; and in view of the report upon the matter made
by the Intendencia General de Hacienda; and considering the fact that the public
treasury has on hand a much greater sum from the source mentioned than that
solicited; and considering that this general Government has submitted for the
determination of H. M. Government that the balance which, after strictly
applying the proceeds obtained from the subscription referred to, may remain as
a surplus should be delivered to the Monte de Piedad, either as a donation, or as
a loan upon the security of the credit of the institution, believing that in so doing
the wishes of the donors would be faithfully interpreted inasmuch as those
wishes were no other than to relieve distress, an act of charity which is exercised
in the highest degree by the Monte de Piedad, for it liberates needy person from
the pernicious effects of usury; and
Considering that the lofty purposes that brought about the creation of the pious
institution referred to would be frustrated, and that the great and laudable work
of its establishment, and that the great and laudable and valuable if the aid it
urgently seeks is not granted, since the suspension of its operations would
seriously and regrettably damage the ever-growing credit of the Monte de
Piedad; and
Considering that if such a thing would at any time cause deep distress in the
public mind, it might be said that at the present juncture it would assume the
nature of a disturbance of public order because of the extreme poverty of the
poorer classes resulting from the late calamities, and because it is the only
institution which can mitigate the effects of such poverty; and
Considering that no reasonable objection can be made to granting the request
herein contained, for the funds in question are sufficiently secured in the
unlikely event that H> M. Government does not approve the recommendation
mentioned, this general Government, in the exercise of the extraordinary powers
conferred upon it and in conformity with the report of the Intendencia de
Hacienda, resolves as follows:
First. Authority is hereby given to deliver to the Monte de Piedad, out of the
sum held in the public treasury of these Islands obtained from the national
subscription opened by reason of the earthquakes of 1863, amounts up to the
sum $80,000, as its needs may require, in installments of $20,000.
Second. The board of directors of the Monte de Piedad is solemnly bound to
return, within eight days after demand, the sums it may have so received, if H.
M. Government does not approve this resolution.
Third. The Intendencia General de Hacienda shall forthwith, and in preference
to all other work, proceed to prepare the necessary papers so that with the least
possible delay the payment referred to may be made and the danger that
menaces the Monte de Piedad of having to suspend its operations may be
averted.
H. M. Government shall be advised hereof.lawphi1.net
(Signed) P. DE RIVERA.
By the royal order of December 3, 1892, the Governor-General of the Philippine Islands
was ordered to "inform this ministerio what is the total sum available at the present
time, taking into consideration the sums delivered to the Monte de Piedad pursuant to
the decree issued by your general Government on February 1, 1883," and after the rights
of the claimants, whose names were published in the Official Gazette of Manila on April
7, 1870, and their heirs had been established, as therein provided, as such persons "have
an unquestionable right to be paid the donations assigned to them therein, your general
Government shall convoke them all within a reasonable period and shall pay their shares
to such as shall identify themselves, without regard to their financial status," and finally
"that when all the proceedings and operations herein mentioned have been concluded
and the Government can consider itself free from all kinds of claims on the part of those
interested in the distribution of the funds deposited in the vaults of the Treasury, such
action may be taken as the circumstances shall require, after first consulting the relief
board and your general Government and taking account of what sums have been
delivered to the Monte de Piedad and those that were expended in 1888 to relieve public
calamities," and "in order that all the points in connection with the proceedings had as a
result of the earthquake be clearly understood, it is indispensable that the offices
hereinbefore mentioned comply with the provisions contained in paragraphs 2 and 3 of
the royal order of June 25, 1879." On receipt of this Finance order by the Governor-
General, the Department of Finance was called upon for a report in reference to the
$80,000 turned over to the defendant, and that Department's report to the Governor-
General dated June 28, 1893, reads:
Intendencia General de Hacienda de Filipinas (General Treasury of the
Philippines) — Excellency. — By Royal Order No. 1044 of December 3, last, it
is provided that the persons who sustained losses by the earthquakes that
occurred in your capital in the year 1863 shall be paid the amounts allotted to
them out of the sums sent from Spain for this purpose, with observance of the
rules specified in the said royal order, one of them being that before making the
payment to the interested parties the assets shall be reduced to money. These
assets, during the long period of time that has elapsed since they were turned
over to the Treasury of the Philippine Islands, were used to cover the general
needs of the appropriation, a part besides being invested in the relief of
charitable institutions and another part to meet pressing needs occasioned by
public calamities. On January 30, last, your Excellency was please to order the
fulfillment of that sovereign mandate and referred the same to
this Intendencia for its information and the purposes desired (that is, for
compliance with its directions and, as aforesaid, one of these being the
liquidation, recovery, and deposit with the Treasury of the sums paid out of that
fund and which were expended in a different way from that intended by the
donors) and this Intendencia believed the moment had arrived to claim from the
board of directors of the Monte de Piedad y Caja de Ahorros the sum of 80,000
pesos which, by decree of your general Government of the date of February 1,
1883, was loaned to it out of the said funds, the (Monte de Piedad) obligating
itself to return the same within the period of eight days if H. M. Government did
not approve the delivery. On this Intendencia's demanding from the Monte de
Piedad the eighty thousand pesos, thus complying with the provisions of the
Royal Order, it was to be supposed that no objection to its return would be made
by the Monte de Piedad for, when it received the loan, it formally engaged itself
to return it; and, besides, it was indisputable that the moment to do so had
arrived, inasmuch as H. M. Government, in ordering that the assets of the
earthquake relief fund should he collected, makes express mention of the 80,000
pesos loaned to the Monte de Piedad, without doubt considering as sufficient the
period of ten years during which it has been using this large sum which lawfully
belongs to their persons. This Intendencia also supposed that the Monte de
Piedad no longer needed the amount of that loan, inasmuch as, far from
investing it in beneficient transactions, it had turned the whole amount into the
voluntary deposit funds bearing 5 per cent interests, the result of this operation
being that the debtor loaned to the creditor on interest what the former had
gratuitously received. But the Monte de Piedad, instead of fulfilling the promise
it made on receiving the sum, after repeated demands refused to return the
money on the ground that only your Excellency, and not
the Intendencia (Treasury), is entitled to order the reimbursement, taking no
account of the fact that this Intendencia was acting in the discharge of a
sovereign command, the fulfillment of which your Excellency was pleased to
order; and on the further ground that the sum of 80,000 pesos which it received
from the fund intended for the earthquake victims was not received as a loan,
but as a donation, this in the opinion of this Intendencia, erroneously
interpreting both the last royal order which directed the apportionment of the
amount of the subscription raised in the year 1863 and the superior decree which
granted the loan, inasmuch as in this letter no donation is made to the Monte de
Piedad of the 80,000 pesos, but simply a loan; besides, no donation whatever
could be made of funds derived from a private subscription raised for a specific
purpose, which funds are already distributed and the names of the beneficiaries
have been published in the Gaceta, there being lacking only the mere material
act of the delivery, which has been unduly delayed. In view of the unexpected
reply made by the Monte de Piedad, and believing it useless to insist further in
the matter of the claim for the aforementioned loan, or to argue in support
thereof, this Intendencia believes the intervention of your Excellency necessary
in this matter, if the royal Order No. 1044 of December 3, last, is to be complied
with, and for this purpose I beg your Excellency kindly to order the Monte de
Piedad to reimburse within the period of eight days the 80,000 which it owes,
and that you give this Intendencia power to carry out the provisions of the said
royal order. I must call to the attention of your Excellency that the said pious
establishment, during the last few days and after demand was made upon it, has
endorsed to the Spanish-Filipino Bank nearly the whole of the sum which it had
on deposit in the general deposit funds.
The record in the case under consideration fails to disclose any further definite action
taken by either the Philippine Government or the Spanish Government in regard to the
$80,000 turned over to the Monte de Piedad.
In the defendant's general ledger the following entries appear: "Public Treasury:
February 15, 1883, $20,000; March 12, 1883, $20,000; April 14, 1883, $20,000; June 2,
1883, $20,000, total $80,000." The book entry for this total is as follows: "To the public
Treasury derived from the subscription for the earthquake of 1863, $80,000 received
from general Treasury as a returnable loan, and without interest." The account was
carried in this manner until January 1, 1899, when it was closed by transferring the
amount to an account called "Sagrada Mitra," which latter account was a loan of
$15,000 made to the defendant by the Archbishop of Manila, without interest, thereby
placing the "Sagrada Mitra" account at $95,000 instead of $15,000. The above-
mentioned journal entry for January 1, 1899, reads: "Sagrada Mitra and subscription,
balance of these two account which on this date are united in accordance with an order
of the Exmo. Sr. Presidente of the Council transmitted verbally to the Presidente
Gerente of these institutions, $95,000."
On March 16, 1902, the Philippine government called upon the defendant for
information concerning the status of the $80,000 and received the following reply:
MANILA, March 31, 1902.
To the Attorney-General of the Department of Justice of the Philippine
Islands.
 SIR: In reply to your courteous letter of the 16th inst., in which you request
information from this office as to when and for what purpose the Spanish
Government delivered to the Monte de Piedad eighty thousand pesos obtained
from the subscription opened in connection with the earthquake of 1863, as well
as any other information that might be useful for the report which your office is
called upon to furnish, I must state to your department that the books kept in
these Pious Institutions, and which have been consulted for the purpose, show
that on the 15th of February, 1883, they received as a reimbursable loan and
without interest, twenty thousand pesos, which they deposited with their own
funds. On the same account and on each of the dates of March 12, April 14 and
June 2 of the said year, 1883, they also received and turned into their funds a
like sum of twenty thousand pesos, making a total of eighty thousand pesos. —
(Signed) Emilio Moreta.
I hereby certify that the foregoing is a literal copy of that found in the letter
book No. 2 of those Pious Institutions.
Manila, November 19, 1913  can be no doubt that it was so intended. That report refers expressly to the royal order of
(Sgd.) EMILIO LAZCANOTEGUI,  December 3d, and sets forth in detail the action taken in order to secure the return of the
Secretary
(Sgd.) O. K. EMILIO MORETA,
Managing Director.
The foregoing documentary evidence shows the nature of the transactions which took
place between the Government of Spain and the Philippine Government on the one side
and the Monte de Piedad on the other, concerning the $80,000. The Monte de Piedad,
after setting forth in its petition to the Governor-General its financial condition and its
absolute necessity for more working capital, asked that out of the sum of $100,000 held
in the Treasury of the Philippine Islands, at the disposal of the central relief board, there
be transferred to it the sum of $80,000 to be held under the same conditions, to wit, "at
the disposal of the relief board." The Monte de Piedad agreed that if the transfer of these
funds should not be approved by the Government of Spain, the same would be returned
forthwith. It did not ask that the $80,000 be given to it as a donation. The Governor-
General, after reciting the substance of the petition, stated that "this general Government
has submitted for the determination of H. M. Government that the balance which, after
strictly applying the proceeds obtained from the subscription referred to, may remain as
a surplus, should be delivered to the Monte de Piedad, either as a donation, or as a loan
upon the security of the credit of the institution," and "considering that no reasonable
objection can be made to granting the request herein contained," directed the transfer of
the $80,000 to be made with the understanding that "the Board of Directors of
the Monte de Piedad is solemnly bound to return, within eight days after demand, the
sums it may have so received, if H. M. Government does not approve this resolution." It
will be noted that the first and only time the word "donation" was used in connection
with the $80,000 appears in this resolution of the Governor-General. It may be inferred
from the royal orders that the Madrid Government did tacitly approve of the transfer of
the $80,000 to the Monte de Piedad as a loan without interest, but that Government
certainly did not approve such transfer as a donation for the reason that the Governor-
General was directed by the royal order of December 3, 1892, to inform the Madrid
Government of the total available sum of the earthquake fund, "taking into consideration
the sums delivered to the Monte de Piedad pursuant to the decree issued by your general
Government on February 1, 1883." This language, nothing else appearing, might admit
of the interpretation that the Madrid Government did not intend that the Governor-
General of the Philippine Islands should include the $80,000 in the total available sum,
but when considered in connection with the report of the Department of Finance there
$80,000. The Department of Finance, acting under the orders of the Governor-General,
understood that the $80,000 was transferred to the Monte de Piedad well knew that it
received this sum as a loan interest." The amount was thus carried in its books until
January, 1899, when it was transferred to the account of the "Sagrada Mitra" and was
thereafter known as the "Sagrada Mitra and subscription account." Furthermore,
the Monte de Piedad recognized and considered as late as March 31, 1902, that it
received the $80,000 "as a returnable loan, and without interest." Therefore, there cannot
be the slightest doubt the fact that the Monte de Piedad received the $80,000 as a mere
loan or deposit and not as a donation. Consequently, the first alleged error is entirely
without foundation.
Counsel for the defendant, in support of their third assignment of error, say in their
principal brief that:
The Spanish nation was professedly Roman Catholic and its King enjoyed the
distinction of being deputy ex officio of the Holy See and Apostolic Vicar-
General of the Indies, and as such it was his duty to protect all pious works and
charitable institutions in his kingdoms, especially those of the Indies; among the
latter was the Monte de Piedad of the Philippines, of which said King and his
deputy the Governor-General of the Philippines, as royal vice-patron, were, in a
special and peculiar manner, the protectors; the latter, as a result of the cession
 of the Philippine Islands, Implicitly renounced this high office and tacitly
returned it to the Holy See, now represented by the Archbishop of Manila; the
national subscription in question was a kind of foundation or pious work, for a
charitable purpose in these Islands; and the entire subscription not being needed
for its original purpose, the royal vice-patron, with the consent of the King, gave
the surplus thereof to an analogous purpose; the fulfillment of all these things
involved, in the majority, if not in all cases, faithful compliance with the duty
imposed upon him by the Holy See, when it conferred upon him the royal
patronage of the Indies, a thing that touched him very closely in his conscience
and religion; the cessionary Government though Christian, was not Roman
Catholic and prided itself on its policy of non-interference in religious matters,
and inveterately maintained a complete separation between the ecclesiastical
and civil powers.
In view of these circumstances it must be quite clear that, even without the
express provisions of the Treaty of Paris, which apparently expressly exclude
such an idea, it did not befit the honor of either of the contracting parties to
subrogate to the American Government in lieu of the Spanish Government
anything respecting the disposition of the funds delivered by the latter to
the Monte de Piedad. The same reasons that induced the Spanish Government to
take over such things would result in great inconvenience to the American
Government in attempting to do so. The question was such a delicate one, for
the reason that it affected the conscience, deeply religious, of the King of Spain,
that it cannot be believed that it was ever his intention to confide the exercise
thereof to a Government like the American. (U. S. vs. Arredondo, 6 Pet. [U. S.],
711.)
It is thus seen that the American Government did not subrogate the Spanish
Government or rather, the King of Spain, in this regard; and as the condition
annexed to the donation was lawful and possible of fulfillment at the time the
contract was made, but became impossible of fulfillment by the cession made by
the Spanish Government in these Islands, compliance therewith is excused and
the contract has been cleared thereof.
The contention of counsel, as thus stated, in untenable for two reason, (1) because such
contention is based upon the erroneous theory that the sum in question was a donation to
the Monte de Piedad and not a loan, and (2) because the charity founded by the
donations for the earthquake sufferers is not and never was intended to be an
ecclesiastical pious work. The first proposition has already been decided adversely to the
defendant's contention. As to the second, the record shows clearly that the fund was
given by the donors for a specific and definite purpose — the relief of the earthquake
sufferers — and for no other purpose. The money was turned over to the Spanish
Government to be devoted to that purpose. The Spanish Government remitted the money
to the Philippine Government to be distributed among the suffers. All officials,
including the King of Spain and the Governor-General of the Philippine Islands, who
took part in the disposal of the fund, acted in their purely civil, official capacity, and the
fact that they might have belonged to a certain church had nothing to do with their acts
in this matter. The church, as such, had nothing to do with the fund in any way whatever
until the $80,000 reached the coffers of the Monte de Piedad (an institution under the
control of the church) as a loan or deposit. If the charity in question had been founded as
an ecclesiastical pious work, the King of Spain and the Governor-General, in their
capacities as vicar-general of the Indies and as royal vice-patron, respectively, would
have disposed of the fund as such and not in their civil capacities, and such functions
could not have been transferred to the present Philippine Government, because the right
to so act would have arisen out of the special agreement between the Government of
Spain and the Holy See, based on the union of the church and state which was
completely separated with the change of sovereignty.
And in their supplemental brief counsel say:
By the conceded facts the money in question is part of a charitable subscription.
The donors were persons in Spain, the trustee was the Spanish Government, the
donees, the cestuis que trustent, were certain persons in the Philippine Islands.
The whole matter is one of trusteeship. This is undisputed and indisputable. It
follows that the Spanish Government at no time was the owner of the fund. Not
being the owner of the fund it could not transfer the ownership. Whether or not
it could transfer its trusteeship it certainly never has expressly done so and the
general terms of property transfer in the Treaty of Paris are wholly insufficient
for such a purpose even could Spain have transferred its trusteeship without the
consent of the donors and even could the United States, as a Government, have
accepted such a trust under any power granted to it by the thirteen original
States in the Constitution, which is more than doubtful. It follows further that
this Government is not a proper party to the action. The only persons who could
claim to be damaged by this payment to the Monte, if it was unlawful, are the
donors or the cestuis que trustent, and this Government is neither.
If "the whole matter is one of trusteeship," and it being true that the Spanish
Government could not, as counsel say, transfer the ownership of the fund to the Monte
de Piedad, the question arises, who may sue to recover this loan? It needs no argument
to show that the Spanish or Philippine Government, as trustee, could maintain an action
for this purpose had there been no change of sovereignty and if the right of action has
not prescribed. But those governments were something more than mere common law
trustees of the fund. In order to determine their exact status with reference to this fund, it
is necessary to examine the law in force at the time there transactions took place, which
are the law of June 20, 1894, the royal decree of April 27. 1875, and the instructions
promulgated on the latter date. These legal provisions were applicable to the Philippine
Islands (Benedicto vs. De la Rama, 3 Phil. Rep., 34)
The funds collected as a result of the national subscription opened in Spain by royal
order of the Spanish Government and which were remitted to the Philippine
Government to be distributed among the earthquake sufferers by the Central Relief
Board constituted, under article 1 of the law of June 20, 1894, and article 2 of the
instructions of April 27, 1875, a special charity of a temporary nature as distinguished
from a permanent public charitable institution. As the Spanish Government initiated the
creation of the fund and as the donors turned their contributions over to that
Government, it became the duty of the latter, under article 7 of the instructions, to
exercise supervision and control over the moneys thus collected to the end that the will
of the donors should be carried out. The relief board had no power whatever to dispose
of the funds confided to its charge for other purposes than to distribute them among the
sufferers, because paragraph 3 of article 11 of the instructions conferred the power upon
the secretary of the interior of Spain, and no other, to dispose of the surplus funds,
should there be any, by assigning them to some other charitable purpose or institution.
The secretary could not dispose of any of the funds in this manner so long as they were
necessary for the specific purpose for which they were contributed. The secretary had
the power, under the law above mentioned to appoint and totally or partially change the
personnel of the relief board and to authorize the board to defend the rights of the
charity in the courts. The authority of the board consisted only in carrying out the will of
the donors as directed by the Government whose duty it was to watch over the acts of
the board and to see that the funds were applied to the purposes for which they were
contributed .The secretary of the interior, as the representative of His Majesty's
Government, exercised these powers and duties through the Governor-General of the
Philippine Islands. The Governments of Spain and of the Philippine Islands in
complying with their duties conferred upon them by law, acted in their governmental
capacities in attempting to carry out the intention of the contributors. It will this be seen
that those governments were something more, as we have said, than mere trustees of the
fund.
It is further contended that the obligation on the part of the Monte de Piedad to return
the $80,000 to the Government, even considering it a loan, was wiped out on the change
of sovereignty, or inn other words, the present Philippine Government cannot maintain
this action for that reason. This contention, if true, "must result from settled principles of
rigid law," as it cannot rest upon any title to the fund in the Monte de Piedad acquired
prior to such change. While the obligation to return the $80,000 to the Spanish
Government was still pending, war between the United States and Spain ensued. Under
the Treaty of Paris of December 10, 1898, the Archipelago, known as the Philippine
Islands, was ceded to the United States, the latter agreeing to pay Spain the sum of
$20,000,000. Under the first paragraph of the eighth article, Spain relinquished to the
United States "all buildings, wharves, barracks, forts, structures, public highways, and
other immovable property which, in conformity with law, belonged to the public
domain, and as such belonged to the crown of Spain." As the $80,000 were not included
therein, it is said that the right to recover this amount did not, therefore, pass to the
present sovereign. This, in our opinion, does not follow as a necessary consequence, as
the right to recover does not rest upon the proposition that the $80,000 must be "other
immovable property" mentioned in article 8 of the treaty, but upon contractual
obligations incurred before the Philippine Islands were ceded to the United States. We
will not inquire what effect his cession had upon the law of June 20, 1849, the royal
decree of April 27, 1875, and the instructions promulgated on the latter date. In
Vilas vs.Manila (220 U. S., 345), the court said:
That there is a total abrogation of the former political relations of the inhabitants
of the ceded region is obvious. That all laws theretofore in force which are in
conflict with the political character, constitution, or institutions of the
substituted sovereign, lose their force, is also plain. (Alvarez y
Sanchez vs. United States, 216 U. S., 167.) But it is equally settled in the same
public law that the great body of municipal law which regulates private and
domestic rights continues in force until abrogated or changed by the new ruler.
If the above-mentioned legal provisions are in conflict with the political character,
constitution or institutions of the new sovereign, they became inoperative or lost their
force upon the cession of the Philippine Islands to the United States, but if they are
among "that great body of municipal law which regulates private and domestic rights,"
they continued in force and are still in force unless they have been repealed by the
present Government. That they fall within the latter class is clear from their very nature
and character. They are laws which are not political in any sense of the word. They
conferred upon the Spanish Government the right and duty to supervise, regulate, and to
some extent control charities and charitable institutions. The present sovereign, in
exempting "provident institutions, savings banks, etc.," all of which are in the nature of
charitable institutions, from taxation, placed such institutions, in so far as the investment
in securities are concerned, under the general supervision of the Insular Treasurer
(paragraph 4 of section 111 of Act No. 1189; see also Act No. 701).
Furthermore, upon the cession of the Philippine Islands the prerogatives of he crown of
Spain devolved upon he United States. In Magill vs. Brown (16 Fed. Cas., 408), quoted
with approval in Mormon Charch vs. United States (136 U. S.,1, 57), the court said:
The Revolution devolved on the State all the transcendent power of Parliament,
and the prerogative of the crown, and gave their Acts the same force and effect.
In Fontain vs. Ravenel (17 Hw., 369, 384), Mr. Justice McLean, delivering the opinion
of the court in a charity case, said:
When this country achieved its independence, the prerogatives of the crown
devolved upon the people of the States. And this power still remains with them
except so fact as they have delegated a portion of it to the Federal Government.
The sovereign will is made known to us by legislative enactment. The State as a
sovereign, is the parens patriae.
Chancelor Kent says:
In this country, the legislature or government of the State, as parens patriae, has
the right to enforce all charities of public nature, by virtue of its general
superintending authority over the public interests, where no other person is
entrusted with it. (4 Kent Com., 508, note.)
The Supreme Court of the United States in Mormon Church vs. United States, supra,
after approving also the last quotations, said:
This prerogative of parens patriae is inherent in the supreme power of every
State, whether that power is lodged in a royal person or in the legislature, and
has no affinity to those arbitrary powers which are sometimes exerted by
irresponsible monarchs to the great detriment of the people and the destruction
of their liberties. On the contrary, it is a most beneficient functions, and often
necessary to be exercised in the interest of humanity, and for the prevention of
injury to those who cannot protect themselves.
The court in the same case, after quoting from Sohier vs. Mass. General Hospital (3
Cush., 483, 497), wherein the latter court held that it is deemed indispensible that there
should be a power in the legislature to authorize the same of the estates of in facts,
idiots, insane persons, and persons not known, or not in being, who cannot act for
themselves, said:
These remarks in reference to in facts, insane persons and person not known, or
not in being, apply to the beneficiaries of charities, who are often in capable of
vindicating their rights, and justly look for protection to the sovereign authority,
acting as parens patriae. They show that this beneficient functions has not
ceased t exist under the change of government from a monarchy to a republic;
but that it now resides in the legislative department, ready to be called into
exercise whenever required for the purposes of justice and right, and is a clearly
capable of being exercised in cases of charities as in any other cases whatever.
In People vs. Cogswell (113 Cal. 129, 130), it was urged that the plaintiff was not the
real party in interest; that the Attorney-General had no power to institute the action; and
that there must be an allegation and proof of a distinct right of the people as a whole, as
distinguished from the rights of individuals, before an action could be brought by the
Attorney-General in the name of the people. The court, in overruling these contentions,
held that it was not only the right but the duty of the Attorney-General to prosecute the
action, which related to charities, and approved the following quotation from Attorney-
General vs. Compton (1 Younge & C. C., 417):
Where property affected by a trust for public purposes is in the hands of those
who hold it devoted to that trust, it is the privilege of the public that the crown
should be entitled to intervene by its officers for the purpose of asserting, on
behalf on the public generally, the public interest and the public right, which,
probably, no individual could be found effectually to assert, even if the interest
were such as to allow it. (2 Knet's Commentaries, 10th ed., 359; Lewin on
Trusts, sec. 732.)
It is further urged, as above indicated, that "the only persons who could claim to be
damaged by this payment to the Monte, if it was unlawful, are the donors or the cestuis
que trustent, and this Government is neither. Consequently, the plaintiff is not the proper
party to bring the action." The earthquake fund was the result or the accumulation of a
great number of small contributions. The names of the contributors do not appear in the
record. Their whereabouts are unknown. They parted with the title to their respective
contributions. The beneficiaries, consisting of the original sufferers and their heirs,
could have been ascertained. They are quite numerous also. And no doubt a large
number of the original sufferers have died, leaving various heirs. It would be
impracticable for them to institute an action or actions either individually or collectively
to recover the $80,000. The only course that can be satisfactorily pursued is for the
Government to again assume control of the fund and devote it to the object for which it
was originally destined.
The impracticability of pursuing a different course, however, is not the true ground upon
which the right of the Government to maintain the action rests. The true ground is that
the money being given to a charity became, in a measure, public property, only
applicable, it is true, to the specific purposes to which it was intended to be devoted, but
within those limits consecrated to the public use, and became part of the public
resources for promoting the happiness and welfare of the Philippine Government.
(Mormon Church vs. U. S., supra.) To deny the Government's right to maintain this
action would be contrary to sound public policy, as tending to discourage the prompt
exercise of similar acts of humanity and Christian benevolence in like instances in the
future.
As to the question raised in the fourth assignment of error relating to the
constitutionality of Act No. 2109, little need be said for the reason that we have just held
that the present Philippine Government is the proper party to the action. The Act is only
a manifestation on the part of the Philippine Government to exercise the power or right
which it undoubtedly had. The Act is not, as contended by counsel, in conflict with the
fifth section of the Act of Congress of July 1, 1902, because it does not take property
without due process of law. In fact, the defendant is not the owner of the $80,000, but
holds it as a loan subject to the disposal of the central relief board. Therefor, there can be
nothing in the Act which transcends the power of the Philippine Legislature.
In Vilas vs. Manila, supra, the plaintiff was a creditor of the city of Manila as it existed
before the cession of the Philippine Islands to the United States by the Treaty of Paris of
December 10, 1898. The action was brought upon the theory that the city, under its
present charter from the Government of the Philippine Islands, was the same juristic
person, and liable upon the obligations of the old city. This court held that the present
municipality is a totally different corporate entity and in no way liable for the debts of
the Spanish municipality. The Supreme Court of the United States, in reversing this
judgment and in holding the city liable for the old debt, said:
The juristic identity of the corporation has been in no wise affected, and, in law,
the present city is, in every legal sense, the successor of the old. As such it is
entitled to the property and property rights of the predecessor corporation, and
is, in law, subject to all of its liabilities.
In support of the fifth assignment of error counsel for the defendant argue that as
the Monte de Piedad declined to return the $80,000 when ordered to do so by the
Department of Finance in June, 1893, the plaintiff's right of action had prescribed at the
time this suit was instituted on May 3, 1912, citing and relying upon article 1961, 1964
and 1969 of the Civil Code. While on the other hand, the Attorney-General contends
that the right of action had not prescribed (a) because the defense of prescription cannot
be set up against the Philippine Government, (b) because the right of action to recover a
deposit or trust funds does not prescribe, and (c) even if the defense of prescription
could be interposed against the Government and if the action had, in fact, prescribed, the
same was revived by Act No. 2109.
The material facts relating to this question are these: The Monte de Piedad received the
$80,000 in 1883 "to be held under the same conditions as at present in the treasury, to
wit, at the disposal of the relief board." In compliance with the provisions of the royal
order of December 3, 1892, the Department of Finance called upon the Monte de
Piedadin June, 1893, to return the $80,000. The Monte declined to comply with this
order upon the ground that only the Governor-General of the Philippine Islands and not
the Department of Finance had the right to order the reimbursement. The amount was
carried on the books of the Monte as a returnable loan until January 1, 1899, when it was
transferred to the account of the "Sagrada Mitra." On March 31, 1902, the Monte,
through its legal representative, stated in writing that the amount in question was
received as a reimbursable loan, without interest. Act No. 2109 became effective
January 30, 1912, and the action was instituted on May 3rd of that year.
Counsel for the defendant treat the question of prescription as if the action was one
between individuals or corporations wherein the plaintiff is seeking to recover an
ordinary loan. Upon this theory June, 1893, cannot be taken as the date when the statute
of limitations began to run, for the reason that the defendant acknowledged in writing on
March 31, 1902, that the $80,000 were received as a loan, thereby in effect admitting
that it still owed the amount. (Section 50, Code of Civil Procedure.) But if counsels'
theory is the correct one the action may have prescribed on May 3, 1912, because more
than ten full years had elapsed after March 31, 1902. (Sections 38 and 43, Code of Civil
Procedure.)
Is the Philippine Government bound by the statute of limitations? The Supreme Court of
the United States in U. S. vs. Nashville, Chattanooga & St. Louis Railway Co. (118 U.
S., 120, 125), said:
It is settled beyond doubt or controversy — upon the foundation of the great
principle of public policy, applicable to all governments alike, which forbids
that the public interests should be prejudiced by the negligence of the officers or
agents to whose care they are confided — that the United States, asserting rights
vested in it as a sovereign government, is not bound by any statute of
 limitations, unless Congress has clearly manifested its intention that it should be
so bound. (Lindsey vs. Miller, 6 Pet. 666; U. S. vs. Knight, 14 Pet., 301;
Gibson vs. Chouteau, 13 Wall., 92; U. S. vs. Thompson, 98 U. S., 486;
Fink vs. O'Neil, 106 U. S., 272, 281.)
In Gibson vs. Choteau, supra, the court said:
It is a matter of common knowledge that statutes of limitation do not run against
the State. That no laches can be imputed to the King, and that no time can bar
his rights, was the maxim of the common laws, and was founded on the
principle of public policy, that as he was occupied with the cares of government
he ought not to suffer from the negligence of his officer and servants. The
principle is applicable to all governments, which must necessarily act through
numerous agents, and is essential to a preservation of the interests and property
of the public. It is upon this principle that in this country the statutes of a State
prescribing periods within which rights must be prosecuted are not held to
embrace the State itself, unless it is expressly designated or the mischiefs to be
remedied are of such a nature that it must necessarily be included. As legislation
of a State can only apply to persons and thing over which the State has
jurisdiction, the United States are also necessarily excluded from the operation
of such statutes.
In 25 Cyc., 1006, the rule, supported by numerous authorities, is stated as follows:
In the absence of express statutory provision to the contrary, statute of
limitations do not as a general rule run against the sovereign or government,
whether state or federal. But the rule is otherwise where the mischiefs to be
remedied are of such a nature that the state must necessarily be included, where
the state goes into business in concert or in competition with her citizens, or
where a party seeks to enforces his private rights by suit in the name of the state
or government, so that the latter is only a nominal party.
In the instant case the Philippine Government is not a mere nominal party because it, in
bringing and prosecuting this action, is exercising its sovereign functions or powers and
is seeking to carry out a trust developed upon it when the Philippine Islands were ceded
to the United States. The United States having in 1852, purchased as trustee for the
Chickasaw Indians under treaty with that tribe, certain bonds of the State of Tennessee,
the right of action of the Government on the coupons of such bonds could not be barred
by the statute of limitations of Tennessee, either while it held them in trust for the
Indians, or since it became the owner of such coupons. (U. S. vs. Nashville, etc., R.
Co., supra.) So where lands are held in trust by the state and the beneficiaries have no
right to sue, a statute does not run against the State's right of action for trespass on the
trust lands. (Greene Tp. vs. Campbell, 16 Ohio St., 11; see also Atty.-Gen. vs. Midland
R. Co., 3 Ont., 511 [following Reg. vs. Williams, 39 U. C. Q. B., 397].)
These principles being based "upon the foundation of the great principle of public
policy" are, in the very nature of things, applicable to the Philippine Government.
Counsel in their argument in support of the sixth and last assignments of error do not
question the amount of the judgment nor do they question the correctness of the
judgment in so far as it allows interest, and directs its payment in gold coin or in the
equivalent in Philippine currency.
For the foregoing reasons the judgment appealed from is affirmed, with costs against the
appellant. So ordered.
G.R. No. L-25843 July 25, 1974
MELCHORA CABANAS, plaintiff-appellee, 
vs.
FRANCISCO PILAPIL, defendant-appellant.
Seno, Mendoza & Associates for plaintiff-appellee.
Emilio Benitez, Jr. for defendant-appellant.
FERNANDO, J.:p
The disputants in this appeal from a question of law from a lower court decision are the
mother and the uncle of a minor beneficiary of the proceeds of an insurance policy
issued on the life of her deceased father. The dispute centers as to who of them should
be entitled to act as trustee thereof. The lower court applying the appropriate Civil Code
provisions decided in favor of the mother, the plaintiff in this case. Defendant uncle
appealed. As noted, the lower court acted the way it did following the specific mandate
of the law. In addition, it must have taken into account the principle that in cases of this
nature the welfare of the child is the paramount consideration. It is not an unreasonable
assumption that between a mother and an uncle, the former is likely to lavish more care
on and pay greater attention to her. This is all the more likely considering that the child
is with the mother. There are no circumstances then that did militate against what
conforms to the natural order of things, even if the language of the law were not as clear.
It is not to be lost sight of either that the judiciary pursuant to its role as an agency of the
State as parens patriae, with an even greater stress on family unity under the present
Constitution, did weigh in the balance the opposing claims and did come to the
conclusion that the welfare of the child called for the mother to be entrusted with such
responsibility. We have to affirm.
The appealed decision made clear: "There is no controversy as to the facts. "1 The
insured, Florentino Pilapil had a child, Millian Pilapil, with a married woman, the
plaintiff, Melchora Cabanas. She was ten years old at the time the complaint was filed
on October 10, 1964. The defendant, Francisco Pilapil, is the brother of the deceased.
The deceased insured himself and instituted as beneficiary, his child, with his brother to
act as trustee during her minority. Upon his death, the proceeds were paid to him. Hence
this complaint by the mother, with whom the child is living, seeking the delivery of such
sum. She filed the bond required by the Civil Code. Defendant would justify his claim to
the retention of the amount in question by invoking the terms of the insurance policy.2
After trial duly had, the lower court in a decision of May 10, 1965, rendered judgment
ordering the defendant to deliver the proceeds of the policy in question to plaintiff. Its
main reliance was on Articles 320 and 321 of the Civil Code. The former provides: "The
father, or in his absence the mother, is the legal administrator of the property pertaining
to the child under parental authority. If the property is worth more than two thousand
pesos, the father or mother shall give a bond subject to the approval of the Court of First
Instance."3 The latter states: "The property which the unemancipated child has acquired
or may acquire with his work or industry, or by any lucrative title, belongs to the child in
ownership, and in usufruct to the father or mother under whom he is under parental
authority and whose company he lives; ...4
Conformity to such explicit codal norm is apparent in this portion of the appealed
decision: "The insurance proceeds belong to the beneficiary. The beneficiary is a minor
under the custody and parental authority of the plaintiff, her mother. The said minor
lives with plaintiff or lives in the company of the plaintiff. The said minor acquired this
property by lucrative title. Said property, therefore, belongs to the minor child in
ownership, and in usufruct to the plaintiff, her mother. Since under our law the
usufructuary is entitled to possession, the plaintiff is entitled to possession of the
insurance proceeds. The trust, insofar as it is in conflict with the above quoted provision
of law, is pro tanto null and void. In order, however, to protect the rights of the minor,
Millian Pilapil, the plaintiff should file an additional bond in the guardianship
proceedings, Sp. Proc. No. 2418-R of this Court to raise her bond therein to the total
amount of P5,000.00."5
It is very clear, therefore, considering the above, that unless the applicability of the two
cited Civil Code provisions can be disputed, the decision must stand. There is no
ambiguity in the language employed. The words are rather clear. Their meaning is
unequivocal. Time and time again, this Court has left no doubt that where codal or
statutory norms are cast in categorical language, the task before it is not one of
interpretation but of application.6 So it must be in this case. So it was in the appealed
decision.
1. It would take more than just two paragraphs as found in the brief for the defendant-
appellant7 to blunt the force of legal commands that speak so plainly and so
unqualifiedly. Even if it were a question of policy, the conclusion will remain unaltered.
What is paramount, as mentioned at the outset, is the welfare of the child. It is in
consonance with such primordial end that Articles 320 and 321 have been worded.
There is recognition in the law of the deep ties that bind parent and child. In the event
that there is less than full measure of concern for the offspring, the protection is supplied
by the bond required. With the added circumstance that the child stays with the mother,
not the uncle, without any evidence of lack of maternal care, the decision arrived at can
stand the test of the strictest scrutiny. It is further fortified by the assumption, both
logical and natural, that infidelity to the trust imposed by the deceased is much less in
the case of a mother than in the case of an uncle. Manresa, commenting on Article 159
of the Civil Code of Spain, the source of Article 320 of the Civil Code, was of that view:
Thus "El derecho y la obligacion de administrar el Patrimonio de los hijos es una
consecuencia natural y lógica de la patria potestad y de la presunción de que nadie
cuidará de los bienes de acquéllos con mas cariño y solicitude que los padres. En nuestro
Derecho antiguo puede decirse que se hallaba reconocida de una manera indirecta
aquelia doctrina, y asi se desprende de la sentencia del Tribunal Supremeo de 30 de
diciembre de 1864, que se refiere a la ley 24, tit. XIII de la Partida 5. De la propia suerte
aceptan en general dicho principio los Codigos extranjeros, con las limitaciones y
requisitos de que trataremos mis adelante."8
2. The appealed decision is supported by another cogent consideration. It is buttressed
by its adherence to the concept that the judiciary, as an agency of the State acting
as parens patriae, is called upon whenever a pending suit of litigation affects one who is
a minor to accord priority to his best interest. It may happen, as it did occur here, that
family relations may press their respective claims. It would be more in consonance not
only with the natural order of things but the tradition of the country for a parent to be
preferred. it could have been different if the conflict were between father and mother.
Such is not the case at all. It is a mother asserting priority. Certainly the judiciary as the
instrumentality of the State in its role of parens patriae, cannot remain insensible to the
validity of her plea. In a recent case,9 there is this quotation from an opinion of the
United States Supreme Court: "This prerogative of parens patriae is inherent in the
supreme power of every State, whether that power is lodged in a royal person or in the
legislature, and has no affinity to those arbitrary powers which are sometimes exerted by
irresponsible monarchs to the great detriment of the people and the destruction of their  
liberties." What is more, there is this constitutional provision vitalizing this concept. It DECISION
reads: "The State shall strengthen the family as a basic social institution." 10 If, as the VELASCO, JR., J.:
Constitution so wisely dictates, it is the family as a unit that has to be strengthened, it  
does not admit of doubt that even if a stronger case were presented for the uncle, still In these two petitions for certiorari and prohibition under Rule 65, petitioner
deference to a constitutional mandate would have led the lower court to decide as it did. Eliseo F. Soriano seeks to nullify and set aside an order and a decision of the Movie and
WHEREFORE, the decision of May 10, 1965 is affirmed. Costs against defendant- Television Review and Classification Board (MTRCB) in connection with certain
appellant. utterances he made in his television show, Ang Dating Daan.
Zaldivar (Chairman), Antonio, Fernandez and Aquino, JJ., concur.  
Barredo, J., took no part. Facts of the Case
On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang
ELISEO F. SORIANO,     Dating Daan, aired on UNTV 37, made the following remarks:
Petitioner,    
    Lehitimong anak ng demonyo; sinungaling;
- versus -    
    Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung
MA. CONSOLIZA P. LAGUARDIA, in   putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael
her capacity as Chairperson of the Movie   ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae
and Television Review and Classification   yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang
Board, MOVIE AND TELEVISION   kasinungalingan ng mga demonyong ito.[1] x x x
REVIEW AND CLASSIFICATION    
BOARD, JESSIE L. GALAPON,   Two days after, before the MTRCB, separate but almost identical affidavit-
ANABEL M. DELA CRUZ, MANUEL M.   complaints were lodged by Jessie L. Galapon and seven other private respondents, all
HERNANDEZ, JOSE L. LOPEZ,   members of the Iglesia ni Cristo (INC),[2] against petitioner in connection with the
CRISANTO SORIANO, BERNABE S.   above broadcast. Respondent Michael M. Sandoval, who felt directly alluded to in
YARIA, JR., MICHAEL M. SANDOVAL,   petitioners remark, was then a minister of INC and a regular host of the TV
and ROLDAN A. GAVINO,   program Ang Tamang Daan.[3] Forthwith, the MTRCB sent petitioner a notice of the
Respondents.   hearing on August 16, 2004 in relation to the alleged use of some cuss words in the
x-------------------------------------------x   August 10, 2004 episode of Ang Dating Daan.[4]
   
  After a preliminary conference in which petitioner appeared, the MTRCB, by
  Order of August 16, 2004, preventively suspended the showing of Ang Dating
Daan program for 20 days, in accordance with Section 3(d) of Presidential Decree No.
(PD) 1986, creating the MTRCB, in relation to Sec. 3, Chapter XIII of the 2004
Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF
MTRCB Rules of Procedure.[5] The same order also set the case for preliminary DISCRETION AMOUNTING TO LACK OR EXCESS OF
investigation. JURISDICTION
   
The following day, petitioner sought reconsideration of the preventive (A)       BY REASON THAT THE [IRR] IS INVALID INSOFAR AS
suspension order, praying that Chairperson Consoliza P. Laguardia and two other IT PROVIDES FOR THE ISSUANCE OF PREVENTIVE
members of the adjudication board recuse themselves from hearing the case.[6] Two SUSPENSION ORDERS;
days after, however, petitioner sought to withdraw[7] his motion for reconsideration, (B)       BY REASON OF LACK OF DUE HEARING IN THE CASE
followed by the filing with this Court of a petition for certiorari and prohibition, AT BENCH;
[8] docketed as G.R. No. 164785, to nullify the preventive suspension order thus issued. (C)       FOR BEING VIOLATIVE OF EQUAL PROTECTION
  UNDER THE LAW;
On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a (D)       FOR BEING VIOLATIVE OF FREEDOM OF RELIGION;
decision, disposing as follows: AND
  (E)        FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND
WHEREFORE, in view of all the foregoing, a Decision is EXPRESSION.[10]
hereby rendered, finding respondent Soriano liable for his utterances  
and thereby imposing on him a penalty of three (3) months suspension In G.R. No. 165636, petitioner relies on the following grounds:
from his program, Ang Dating Daan.  
  SECTION 3(C) OF [PD] 1986, IS
Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT
Channel 37 and its owner, PBC, are hereby exonerated for lack of OR IN EXCESS OF JURISDICTION x x x CONSIDERING THAT:
evidence.  
  I
SO ORDERED.[9]  
  SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER,
Petitioner then filed this petition for certiorari and prohibition with prayer for UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE
injunctive relief, docketed as G.R. No. 165636. OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION AS IT
  PARTAKES OF THE NATURE OF A SUBSEQUENT
In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 PUNISHMENT CURTAILING THE SAME; CONSEQUENTLY, THE
with G.R. No. 165636. IMPLEMENTING RULES AND REGULATIONS, RULES OF
  PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB
In G.R. No. 164785, petitioner raises the following issues: PURSUANT THERETO, I.E. DECISION DATED 27
  SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE
THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE
BY RESPONDENT [MTRCB] DATED 16 AUGUST 2004 AGAINST CASE AT BENCH;
THE TELEVISION PROGRAM ANG DATING DAAN x x x IS NULL  
  
 
II
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER,
UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE
OF DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER
THE LAW; CONSEQUENTLY, THE [IRR], RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB
PURSUANT THERETO, I.E., DECISION DATED 27 SEPTEMBER
2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT
BENCH; AND
III
 
[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT
PROVIDE FOR A SUFFICIENT STANDARD FOR ITS
IMPLEMENTATION THEREBY RESULTING IN AN UNDUE
DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT
DOES NOT PROVIDE FOR THE PENALTIES FOR VIOLATIONS
OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR], RULES OF
PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB
PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER
2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE
CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT
BENCH[11]
 
G.R. No. 164785
 
We shall first dispose of the issues in G.R. No. 164785, regarding the assailed
order of preventive suspension, although its implementability had already been
overtaken and veritably been rendered moot by the equally assailed September 27, 2004
decision.
 
It is petitioners threshold posture that the preventive suspension imposed against
him and the relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does
not expressly authorize the MTRCB to issue preventive suspension.
Petitioners contention is untenable.
 
Administrative agencies have powers and functions which may be
administrative, investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of
the five, as may be conferred by the Constitution or by statute.[12] They have in fine
only such powers or authority as are granted or delegated, expressly or impliedly, by
law.[13] And in determining whether an agency has certain powers, the inquiry should
be from the law itself. But once ascertained as existing, the authority given should be
liberally construed.[14]
A perusal of the MTRCBs basic mandate under PD 1986 reveals the possession
by the agency of the authority, albeit impliedly, to issue the challenged order of
preventive suspension. And this authority stems naturally from, and is necessary for the
exercise of, its power of regulation and supervision.
Sec. 3 of PD 1986 pertinently provides the following:
 
Section 3. Powers and Functions.The BOARD shall have the following
functions, powers and duties:
xxxx
c)    To approve or disapprove, delete objectionable portions from
and/or prohibit the x x x production, x x x exhibition and/or television
broadcast of the motion pictures, television programs and publicity
materials subject of the preceding paragraph, which, in the judgment of
the board applying contemporary Filipino cultural values as standard,
are objectionable for being immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the Republic of the
Philippines or its people, or with a dangerous tendency to encourage the
commission of violence or of wrong or crime such as but not limited to:
 
xxxx

vi) Those which are libelous or defamatory to the good name and
reputation of any person, whether living or dead;
xxxx
(d) To supervise, regulate, and grant, deny or cancel, permits for the x
x x production, copying, distribution, sale, lease, exhibition, and/or
television broadcast of all motion pictures, television programs and
publicity materials, to the end that no such pictures, programs and
materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be x x x produced, copied,
reproduced, distributed, sold, leased, exhibited and/or broadcast by
television;  during the pendency of the case, and in order to prevent or stop further
xxxx
k)    To exercise such powers and functions as may be necessary or
incidental to the attainment of the purposes and objectives of this Act x
x x. (Emphasis added.)
 
The issuance of a preventive suspension comes well within the scope of the
MTRCBs authority and functions expressly set forth in PD 1986, more particularly
under its Sec. 3(d), as quoted above, which empowers the MTRCB to supervise,
regulate, and grant, deny or cancel, permits for the x x x exhibition, and/or television
broadcast of all motion pictures, television programs and publicity materials, to the end
that no such pictures, programs and materials as are determined by the BOARD to be
objectionable in accordance with paragraph (c) hereof shall be x x x exhibited and/or
broadcast by television.
 
Surely, the power to issue preventive suspension forms part of the MTRCBs
express regulatory and supervisory statutory mandate and its investigatory and
disciplinary authority subsumed in or implied from such mandate. Any other construal
would render its power to regulate, supervise, or discipline illusory.
Preventive suspension, it ought to be noted, is not a penalty by itself, being
merely a preliminary step in an administrative investigation.[15] And the power to
discipline and impose penalties, if granted, carries with it the power to investigate
administrative complaints and, during such investigation, to preventively suspend the
person subject of the complaint.[16]
 
To reiterate, preventive suspension authority of the MTRCB springs from its
powers conferred under PD 1986. The MTRCB did not, as petitioner insinuates,
empower itself to impose preventive suspension through the medium of the IRR of PD
1986. It is true that the matter of imposing preventive suspension is embodied only in
the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides:
Sec. 3. PREVENTION SUSPENSION ORDER.Any time
violations or for the interest and welfare of the public, the Chairman of
the Board may issue a Preventive Suspension Order mandating the
preventive x x x suspension of the permit/permits involved, and/or
closure of the x x x television network, cable TV station x x x provided
that the temporary/preventive order thus issued shall have a life of not
more than twenty (20) days from the date of issuance.
 
But the mere absence of a provision on preventive suspension in PD 1986,
without more, would not work to deprive the MTRCB a basic disciplinary tool, such as
preventive suspension. Recall that the MTRCB is expressly empowered by statute to
regulate and supervise television programs to obviate the exhibition or broadcast of,
among others, indecent or immoral materials and to impose sanctions for violations and,
corollarily, to prevent further violations as it investigates. Contrary to petitioners
assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended the
effect of the law. Neither did the MTRCB, by imposing the assailed preventive
suspension, outrun its authority under the law. Far from it. The preventive suspension
was actually done in furtherance of the law, imposed pursuant, to repeat, to the
MTRCBs duty of regulating or supervising television programs, pending a
determination of whether or not there has actually been a violation. In the final analysis,
Sec. 3, Chapter XIII of the 2004 IRR merely formalized a power which PD 1986
bestowed, albeit impliedly, on MTRCB.
 Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to
authorize the MTRCBs assailed action. Petitioners restrictive reading of PD 1986,
limiting the MTRCB to functions within the literal confines of the law, would give the
agency little leeway to operate, stifling and rendering it inutile, when Sec. 3(k) of PD
1986 clearly intends to grant the MTRCB a wide room for flexibility in its operation.
Sec. 3(k), we reiterate, provides, To exercise such powers and functions as may be
necessary or incidental to the attainment of the purposes and objectives of this Act x x
x. Indeed, the power to impose preventive suspension is one of the implied powers of
MTRCB. As distinguished from express powers, implied powers are those that can be
inferred or are implicit in the wordings or conferred by necessary or fair implication of
the enabling act.[17] As we held in Angara v. Electoral Commission, when a general
grant of power is conferred or a duty enjoined, every particular power necessary for the
exercise of one or the performance of the other is also conferred by necessary
implication.[18] Clearly, the power to impose preventive suspension pending
investigation is one of the implied or inherent powers of MTRCB.
 
We cannot agree with petitioners assertion that the aforequoted IRR provision
on preventive suspension is applicable only to motion pictures and publicity
materials. The scope of the MTRCBs authority extends beyond motion pictures. What
the acronym MTRCB stands for would suggest as much. And while the law makes
specific reference to the closure of a television network, the suspension of a television
program is a far less punitive measure that can be undertaken, with the purpose of
stopping further violations of PD 1986. Again, the MTRCB would regretfully be
rendered ineffective should it be subject to the restrictions petitioner envisages.
Just as untenable is petitioners argument on the nullity of the preventive
suspension order on the ground of lack of hearing. As it were, the MTRCB handed out
the assailed order after petitioner, in response to a written notice, appeared before that
Board for a hearing on private respondents complaint. No less than petitioner admitted
that the order was issued after the adjournment of the hearing,[19] proving that he had
already appeared before the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD
1986, preventive suspension shall issue [a]ny time during the pendency of the case. In
this particular case, it was done after MTRCB duly apprised petitioner of his having
possibly violated PD 1986[20] and of administrative complaints that had been filed
against him for such violation.[21]
 
At any event, that preventive suspension can validly be meted out even without
a hearing.[22]
Petitioner next faults the MTRCB for denying him his right to the equal
protection of the law, arguing that, owing to the preventive suspension order, he was
unable to answer the criticisms coming from the INC ministers.
 
Petitioners position does not persuade. The equal protection clause demands that
all persons subject to legislation should be treated alike, under like circumstances and
conditions both in the privileges conferred and liabilities imposed.[23] It guards against
undue favor and individual privilege as well as hostile discrimination.[24] Surely,
petitioner cannot, under the premises, place himself in the same shoes as the INC
ministers, who, for one, are not facing administrative complaints before the MTRCB.
For another, he offers no proof that the said ministers, in their TV programs, use
language similar to that which he used in his own, necessitating the MTRCBs
disciplinary action. If the immediate result of the preventive suspension order is that
petitioner remains temporarily gagged and is unable to answer his critics, this does not
become a deprivation of the equal protection guarantee. The Court need not belabor the
fact that the circumstances of petitioner, as host of Ang Dating Daan, on one hand, and
the INC ministers, as hosts of Ang Tamang Daan, on the other, are, within the purview
of this case, simply too different to even consider whether or not there is a prima
facie indication of oppressive inequality.
Petitioner next injects the notion of religious freedom, submitting that what he
uttered was religious speech, adding that words like putang babae were said in exercise
of his religious freedom.
The argument has no merit.
 
The Court is at a loss to understand how petitioners utterances in question can
come within the pale of Sec. 5, Article III of the 1987 Constitution on religious
freedom. The section reads as follows:
 
No law shall be made respecting the establishment of a religion,
or prohibiting the free exercise thereof. The free exercise and enjoyment
of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required
for the exercise of civil or political rights.

There is nothing in petitioners statements subject of the complaints expressing
any particular religious belief, nothing furthering his avowed evangelical mission. The
fact that he came out with his statements in a televised bible exposition program does
not automatically accord them the character of a religious discourse. Plain and simple
insults directed at another person cannot be elevated to the status of religious
speech. Even petitioners attempts to place his words in context show that he was moved
by anger and the need to seek retribution, not by any religious conviction. His claim,
assuming its veracity, that some INC ministers distorted his statements respecting
amounts Ang Dating Daanowed to a TV station does not convert the foul language used
in retaliation as religious speech. We cannot accept that petitioner made his statements
in defense of his reputation and religion, as they constitute no intelligible defense or
refutation of the alleged lies being spread by a rival religious group. They simply
illustrate that petitioner had descended to the level of name-calling and foul-language
discourse. Petitioner could have chosen to contradict and disprove his detractors, but
opted for the low road.
 
Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the
20-day preventive suspension order, being, as insisted, an unconstitutional abridgement
of the freedom of speech and expression and an impermissible prior restraint. The main
issue tendered respecting the adverted violation and the arguments holding such issue
dovetails with those challenging the three-month suspension imposed under the assailed
September 27, 2004 MTRCB decision subject of review under G.R. No. 165636. Both
overlapping issues and arguments shall be jointly addressed.
 
G.R. No. 165636
 
Petitioner urges the striking down of the decision suspending him from
hosting Ang Dating Daan for three months on the main ground that the decision
violates, apart from his religious freedom, his freedom of speech and expression
guaranteed under Sec. 4, Art. III of the Constitution, which reads:
 
No law shall be passed abridging the freedom of speech, of
expression, or of the press, or the right of the people peaceably to
assemble and petition the government for redress of grievance.
 
He would also have the Court declare PD 1986, its Sec. 3(c) in particular,
unconstitutional for reasons articulated in this petition.
 
We are not persuaded as shall be explained shortly. But first, we restate certain
general concepts and principles underlying the freedom of speech and expression.
 
It is settled that expressions by means of newspapers, radio, television, and
motion pictures come within the broad protection of the free speech and expression
clause.[25]Each method though, because of its dissimilar presence in the lives of people
and accessibility to children, tends to present its own problems in the area of free speech
protection, with broadcast media, of all forms of communication, enjoying a lesser
degree of protection.[26] Just as settled is the rule that restrictions, be it in the form of
prior restraint, e.g., judicial injunction against publication or threat of cancellation of
license/franchise, or subsequent liability, whether in libel and damage suits, prosecution
for sedition, or contempt proceedings, are anathema to the freedom of expression. Prior
restraint means official government restrictions on the press or other forms of
expression in advance of actual publication or dissemination.[27] The freedom of
expression, as with the other freedoms encased in the Bill of Rights, is, however, not
absolute. It may be regulated to some extent to serve important public interests, some
forms of speech not being protected. As has been held, the limits of the freedom of
expression are reached when the expression touches upon matters of essentially private
concern.[28] In the oft-quoted expression of Justice Holmes, the constitutional guarantee
obviously was not intended to give immunity for every possible use of language.
[29] From Lucas v. Royo comes this line: [T]he freedom to express ones sentiments and
belief does not grant one the license to vilify in public the honor and integrity of
another. Any sentiments must be expressed within the proper forum and with proper
regard for the rights of others.[30]
 
Indeed, as noted in Chaplinsky v. State of New Hampshire,[31] there are certain
well-defined and narrowly limited classes of speech that are harmful, the prevention and
punishment of which has never been thought to raise any Constitutional problems. In
net effect, some forms of speech are not protected by the Constitution, meaning that
restrictions on unprotected speech may be decreed without running afoul of the freedom
of speech clause.[32] A speech would fall under the unprotected type if the utterances
involved are no essential part of any exposition of ideas, and are of such slight social
value as a step of truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.[33] Being of little or no value,
there is, in dealing with or regulating them, no imperative call for the application of the
clear and present danger rule or the balancing-of-interest test, they being essentially
modes of weighing competing values,[34] or, with like effect, determining which of the
clashing interests should be advanced.
 
Petitioner asserts that his utterance in question is a protected form of speech.
 
The Court rules otherwise. It has been established in this jurisdiction that
unprotected speech or low-value expression refers to libelous statements, obscenity or
pornography, false or misleading advertisement, insulting or fighting words, i.e., those
which by their very utterance inflict injury or tend to incite an immediate breach of
peace and expression endangering national security.
 
The Court finds that petitioners statement can be treated as obscene, at least
with respect to the average child. Hence, it is, in that context, unprotected speech.
In Fernando v. Court of Appeals, the Court expressed difficulty in formulating a
definition of obscenity that would apply to all cases, but nonetheless stated the ensuing
observations on the matter:
 
There is no perfect definition of obscenity but the latest word is
that of Miller v. California which established basic guidelines, to wit:
(a) whether to the average person, applying contemporary standards
would find the work, taken as a whole, appeals to the prurient interest;
(b) whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law; and (c)
whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific value. But, it would be a serious misreading
of Miller to conclude that the trier of facts has the unbridled discretion
in determining what is patently offensive. x x x What remains clear is
that obscenity is an issue proper for judicial determination and should
be treated on a case to case basis and on the judges sound discretion.
[35]
 
 
Following the contextual lessons of the cited case of Miller v. California,[36] a
patently offensive utterance would come within the pale of the term obscenity should it
appeal to the prurient interest of an average listener applying contemporary standards.
A cursory examination of the utterances complained of and the circumstances of the
case reveal that to an average adult, the utterances Gago ka talaga x x x, masahol ka pa
sa putang babae x x x. Yung putang babae ang gumagana lang doon yung ibaba, [dito]
kay Michael ang gumagana ang itaas, o di ba! may not constitute obscene but merely
indecent utterances. They can be viewed as figures of speech or merely a play on words.
In the context they were used, they may not appeal to the prurient interests of an adult.
The problem with the challenged statements is that they were uttered in a TV program
that is rated G or for general viewership, and in a time slot that would likely reach even
the eyes and ears of children.
 
While adults may have understood that the terms thus used were not to be taken
literally, children could hardly be expected to have the same discernment. Without
parental guidance, the unbridled use of such language as that of petitioner in a television
broadcast could corrupt impressionable young minds. The term putang babae means a
female prostitute, a term wholly inappropriate for children, who could look it up in a
dictionary and just get the literal meaning, missing the context within which it was
used. Petitioner further used the terms, ang gumagana lang doon yung ibaba, making
reference to the female sexual organ and how a female prostitute uses it in her trade,
then stating that Sandoval was worse than that by using his mouth in a similar
manner. Children could be motivated by curiosity and ask the meaning of what
petitioner said, also without placing the phrase in context. They may be inquisitive as to
why Sandoval is different from a female prostitute and the reasons for the dissimilarity.
And upon learning the meanings of the words used, young minds, without the guidance
of an adult, may, from their end, view this kind of indecent speech as obscene, if they
take these words literally and use them in their own speech or form their own ideas on
the matter. In this particular case, where children had the opportunity to hear petitioners
words, when speaking of the average person in the test for obscenity, we are speaking of
the average child, not the average adult. The average child may not have the adults grasp
of figures of speech, and may lack the understanding that language may be colorful, and
words may convey more than the literal meaning. Undeniably the subject speech is very
suggestive of a female sexual organ and its function as such. In this sense, we find
petitioners utterances obscene and not entitled to protection under the umbrella of
freedom of speech.
 
Even if we concede that petitioners remarks are not obscene but merely indecent speech,
still the Court rules that petitioner cannot avail himself of the constitutional protection of
free speech. Said statements were made in a medium easily accessible to children. With
respect to the young minds, said utterances are to be treated as unprotected speech.
 
No doubt what petitioner said constitutes indecent or offensive utterances. But while a
jurisprudential pattern involving certain offensive utterances conveyed in different
mediums has emerged, this case is veritably one of first impression, it being the first
time that indecent speech communicated via television and the applicable norm for its
regulation are, in this jurisdiction, made the focal point. Federal Communications
Commission (FCC) v. Pacifica Foundation,[37] a 1978 American landmark case cited
inEastern Broadcasting Corporation v. Dans, Jr.[38] and Chavez v. Gonzales,[39] is a
rich source of persuasive lessons. Foremost of these relates to indecent speech without
prurient appeal component coming under the category of protected speech depending on
the context within which it was made, irresistibly suggesting that, within a particular
context, such indecent speech may validly be categorized as unprotected, ergo,
susceptible to restriction.
 
In FCC, seven of what were considered filthy words[40] earlier recorded in a
monologue by a satiric humorist later aired in the afternoon over a radio station owned
by Pacifica Foundation. Upon the complaint of a man who heard the pre-recorded
monologue while driving with his son, FCC declared the language used as patently
offensive and indecentunder a prohibiting law, though not necessarily obscene. FCC
added, however, that its declaratory order was issued in a special factual context,
referring, in gist, to an afternoon radio broadcast when children were undoubtedly in the
audience. Acting on the question of whether the FCC could regulate the subject
utterance, the US Supreme Court ruled in the affirmative, owing to two special features
of the broadcast medium, to wit: (1) radio is a pervasive medium and (2) broadcasting is
uniquely accessible to children. The US Court, however, hastened to add that the
monologue would be protected speech in other contexts, albeit it did not expound and
identify a compelling state interest in putting FCCs content-based regulatory action
under scrutiny.
 
The Court in Chavez[41] elucidated on the distinction between regulation or restriction
of protected speech that is content-based and that which is content-neutral. A content-
based restraint is aimed at the contents or idea of the expression, whereas a content-
neutral restraint intends to regulate the time, place, and manner of the expression under
well-defined standards tailored to serve a compelling state interest, without restraint on
the message of the expression. Courts subject content-based restraint to strict scrutiny.
 
With the view we take of the case, the suspension MTRCB imposed under the premises
was, in one perspective, permissible restriction. We make this disposition against the
backdrop of the following interplaying factors: First, the indecent speech was made via
television, a pervasive medium that, to borrow from Gonzales v. Kalaw Katigbak,
[42]easily reaches every home where there is a set [and where] [c]hildren will likely be
among the avid viewers of the programs therein shown; second, the broadcast was aired
at the time of the day when there was a reasonable risk that children might be in the
audience; and third, petitioner uttered his speech on a G or for general patronage rated
program.Under Sec. 2(A) of Chapter IV of the IRR of the MTRCB, a show for general
patronage is [s]uitable for all ages, meaning that the material for television x x x in the
judgment of the BOARD, does not contain anything unsuitable for children and minors,
and may be viewed without adult guidance or supervision. The words petitioner used
were, by any civilized norm, clearly not suitable for children. Where a language is
categorized as indecent, as in petitioners utterances on a general-patronage rated TV
program, it may be readily proscribed as unprotected speech.
 
A view has been advanced that unprotected speech refers only to pornography,[43] false
or misleading advertisement,[44] advocacy of imminent lawless action, and expression
endangering national security. But this list is not, as some members of the Court would
submit, exclusive or carved in stone. Without going into specifics, it may be stated
without fear of contradiction that US decisional law goes beyond the aforesaid general
exceptions. As the Court has been impelled to recognize exceptions to the rule against
censorship in the past, this particular case constitutes yet another exception, another
instance of unprotected speech, created by the necessity of protecting the welfare of our
children. As unprotected speech, petitioners utterances can be subjected to restraint or
regulation.
 
Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner
asserts that his utterances must present a clear and present danger of bringing about a
substantive evil the State has a right and duty to prevent and such danger must be grave
and imminent.[45]
 
Petitioners invocation of the clear and present danger doctrine, arguably the most
permissive of speech tests, would not avail him any relief, for the application of said test
is uncalled for under the premises. The doctrine, first formulated by Justice Holmes,
accords protection for utterances so that the printed or spoken words may not be subject
to prior restraint or subsequent punishment unless its expression creates a clear and
present danger of bringing about a substantial evil which the government has the power
to prohibit.[46] Under the doctrine, freedom of speech and of press is susceptible of
restriction when and only when necessary to prevent grave and immediate danger to
interests which the government may lawfully protect. As it were, said doctrine evolved
in the context of prosecutions for rebellion and other crimes involving the overthrow of
government.[47] It was originally designed to determine the latitude which should be
given to speech that espouses anti-government action, or to have serious and substantial
deleterious consequences on the security and public order of the community.[48] The
clear and present danger rule has been applied to this jurisdiction.[49] As a standard of
limitation on free speech and press, however, the clear and present danger test is not a
magic incantation that wipes out all problems and does away with analysis and judgment
in the testing of the legitimacy of claims to free speech and which compels a court to
release a defendant from liability the moment the doctrine is invoked, absent proof of
imminent catastrophic disaster.[50] As we observed in Eastern Broadcasting
Corporation, the clear and present danger test does not lend itself to a simplistic and all
embracing interpretation applicable to all utterances in all forums.[51]
 
To be sure, the clear and present danger doctrine is not the only test which has been
applied by the courts. Generally, said doctrine is applied to cases involving the
overthrow of the government and even other evils which do not clearly undermine
national security. Since not all evils can be measured in terms of proximity and degree
the Court, however, in several casesAyer Productions v. Capulong[52] and Gonzales v.
COMELEC,[53] applied the balancing of interests test. Former Chief Justice Fred Ruiz
Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion that where the
legislation under constitutional attack interferes with the freedom of speech and
assembly in a more generalized way and where the effect of the speech and assembly in
terms of the probability of realization of a specific danger is not susceptible even of
impressionistic calculation,[54] then the balancing of interests test can be applied.
 
The Court explained also in Gonzales v. COMELEC the balancing of interests test:
When particular conduct is regulated in the interest of public order,
and the regulation results in an indirect, conditional, partial
abridgment of speech, the duty of the courts is to determine which
of the two conflicting interests demands the greater protection under
the particular circumstances presented. x x x We must, therefore,
undertake the delicate and difficult task x x x to weigh the
circumstances and to appraise the substantiality of the reasons
advanced in support of the regulation of the free enjoyment of rights
x x x.
 
In enunciating standard premised on a judicial balancing of the
conflicting social values and individual interests competing for
ascendancy in legislation which restricts expression, the court
in Douds laid the basis for what has been called the balancing-of-
interests test which has found application in more recent decisions
of the U.S. Supreme Court. Briefly stated, the balancing test
requires a court to take conscious and detailed consideration of the
interplay of interests observable in a given situation or type of
situation.
 
xxxx
 
Although the urgency of the public interest sought to be secured by
Congressional power restricting the individuals freedom, and the
social importance and value of the freedom so restricted, are to be
judged in the concrete, not on the basis of abstractions, a wide range
of factors are necessarily relevant in ascertaining the point or line of
equilibrium. Among these are (a) the social value and importance of
the specific aspect of the particular freedom restricted by the
legislation; (b) the specific thrust of the restriction, i.e., whether the
restriction is direct or indirect, whether or not the persons affected
are few; (c) the value and importance of the public interest sought to
be secured by the legislationthe reference here is to the nature and
gravity of the evil which Congress seeks to prevent; (d) whether the
specific restriction decreed by Congress is reasonably appropriate
and necessary for the protection of such public interest; and (e)
 whether the necessary safeguarding of the public interest involved
may be achieved by some other measure less restrictive of the
protected freedom.[55]
 
 
This balancing of interest test, to borrow from Professor Kauper,[56] rests on the theory
that it is the courts function in a case before it when it finds public interests served by
legislation, on the one hand, and the free expression clause affected by it, on the other,
to balance one against the other and arrive at a judgment where the greater weight shall
be placed. If, on balance, it appears that the public interest served by restrictive
legislation is of such nature that it outweighs the abridgment of freedom, then the court
will find the legislation valid. In short, the balance-of-interests theory rests on the basis
that constitutional freedoms are not absolute, not even those stated in the free speech and
expression clause, and that they may be abridged to some extent to serve appropriate and
important interests.[57] To the mind of the Court, the balancing of interest doctrine is
the more appropriate test to follow.
In the case at bar, petitioner used indecent and obscene language and a three (3)-month
suspension was slapped on him for breach of MTRCB rules. In this setting, the assertion
by petitioner of his enjoyment of his freedom of speech is ranged against the duty of the
government to protect and promote the development and welfare of the youth.
 
After a careful examination of the factual milieu and the arguments raised by petitioner
in support of his claim to free speech, the Court rules that the governments interest to
protect and promote the interests and welfare of the children adequately buttresses the
reasonable curtailment and valid restraint on petitioners prayer to continue as program
host of Ang Dating Daan during the suspension period.
 
No doubt, one of the fundamental and most vital rights granted to citizens of a State is
the freedom of speech or expression, for without the enjoyment of such right, a free,
stable, effective, and progressive democratic state would be difficult to attain. Arrayed
against the freedom of speech is the right of the youth to their moral, spiritual,
intellectual, and social being which the State is constitutionally tasked to promote and
protect. Moreover, the State is also mandated to recognize and support the vital role of
the youth in nation building as laid down in Sec. 13, Art. II of the 1987 Constitution.
 
The Constitution has, therefore, imposed the sacred obligation and responsibility on the
State to provide protection to the youth against illegal or improper activities which may
prejudice their general well-being. The Article on youth, approved on second reading by
the Constitutional Commission, explained that the State shall extend social protection to
minors against all forms of neglect, cruelty, exploitation, immorality, and practices
which may foster racial, religious or other forms of discrimination.[58]
 
Indisputably, the State has a compelling interest in extending social protection to minors
against all forms of neglect, exploitation, and immorality which may pollute innocent
minds. It has a compelling interest in helping parents, through regulatory mechanisms,
protect their childrens minds from exposure to undesirable materials and corrupting
experiences. The Constitution, no less, in fact enjoins the State, as earlier indicated, to
promote and protect the physical, moral, spiritual, intellectual, and social well-being of
the youth to better prepare them fulfill their role in the field of nation-building.[59] In
the same way, the State is mandated to support parents in the rearing of the youth for
civic efficiency and the development of moral character.[60]
 
Petitioners offensive and obscene language uttered in a television broadcast, without
doubt, was easily accessible to the children. His statements could have exposed children
to a language that is unacceptable in everyday use. As such, the welfare of children and
the States mandate to protect and care for them, as parens patriae,[61] constitute a
substantial and compelling government interest in regulating petitioners utterances in
TV broadcast as provided in PD 1986.
 
FCC explains the duty of the government to act as parens patriae to protect the children
who, because of age or interest capacity, are susceptible of being corrupted or prejudiced
by offensive language, thus:
 
[B]roadcasting is uniquely accessible to children, even those too young
to read. Although Cohens written message, [Fuck the Draft], might have
been incomprehensible to a first grader, Pacificas broadcast could have
enlarged a childs vocabulary in an instant. Other forms of offensive
expression may be withheld from the young without restricting the
expression at its source.Bookstores and motion picture theaters, for
example, may be prohibited from making indecent material available to
children. We held in Ginsberg v. New York that the governments
 interest in the well-being of its youth and in supporting parents claim to
authority in their own household justified the regulation of otherwise
protected expression. The ease with which children may obtain access
to broadcast material, coupled with the concerns recognized
in Ginsberg, amply justify special treatment of indecent broadcasting.
 
 
Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend
to the welfare of the young:
 
x x x It is the consensus of this Court that where television is concerned,
a less liberal approach calls for observance. This is so because unlike
motion pictures where the patrons have to pay their way, television
reaches every home where there is a set. Children then will likely will
be among the avid viewers of the programs therein shown. As was
observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly
the concern of the law to deal with the sexual fantasies of the adult
population. It cannot be denied though that the State as parens patriae is
called upon to manifest an attitude of caring for the welfare of the
young.[62]
 
The compelling need to protect the young impels us to sustain the regulatory action
MTRCB took in the narrow confines of the case. To reiterate, FCC justified the restraint
on the TV broadcast grounded on the following considerations: (1) the use of television
with its unique accessibility to children, as a medium of broadcast of a patently
offensive speech; (2) the time of broadcast; and (3) the G rating of the Ang Dating
Daan program. And in agreeing with MTRCB, the court takes stock of and cites with
approval the following excerpts from FCC:
 
It is appropriate, in conclusion, to emphasize the narrowness of
our holding. This case does not involve a two-way radio conversation
between a cab driver and a dispatcher, or a telecast of an Elizabethan
comedy. We have not decided that an occasional expletive in either
setting would justify any sanction. x x x The [FFCs] decision rested
entirely on a nuisance rationale under which context is all important.
The concept requires consideration of a host of variables. The time of
day was emphasized by the [FFC]. The content of the program in which
the language is used will affect the composition of the audience x x x.
As Mr. Justice Sutherland wrote a nuisance may be merely a right thing
in the wrong place, like a pig in the parlor instead of the barnyard.We
simply hold that when the [FCC] finds that a pig has entered the parlor,
the exercise of its regulatory power does not depend on proof that the
pig is obscene. (Citation omitted.)
 
There can be no quibbling that the remarks in question petitioner uttered on prime-time
television are blatantly indecent if not outright obscene. It is the kind of speech that PD
1986 proscribes necessitating the exercise by MTRCB of statutory disciplinary
powers. It is the kind of speech that the State has the inherent prerogative, nay duty, to
regulate and prevent should such action served and further compelling state
interests. One who utters indecent, insulting, or offensive words on television when
unsuspecting children are in the audience is, in the graphic language of FCC, a pig in the
parlor. Public interest would be served if the pig is reasonably restrained or even
removed from the parlor.
 
Ergo, petitioners offensive and indecent language can be subjected to prior restraint.
Petitioner theorizes that the three (3)-month suspension is either prior restraint or
subsequent punishment that, however, includes prior restraint, albeit indirectly.
 
After a review of the facts, the Court finds that what MTRCB imposed on petitioner is
an administrative sanction or subsequent punishment for his offensive and obscene
language in Ang Dating Daan.
 
To clarify, statutes imposing prior restraints on speech are generally illegal and
presumed unconstitutional breaches of the freedom of speech. The exceptions to prior
restraint are movies, television, and radio broadcast censorship in view of its access to
numerous people, including the young who must be insulated from the prejudicial
effects of unprotected speech. PD 1986 was passed creating the Board of Review for
Motion Pictures and Television (now MTRCB) and which requires prior permit or
license before showing a motion picture or broadcasting a TV program. The Board can
classify movies and television programs and can cancel permits for exhibition of films
or television broadcast.
 
The power of MTRCB to regulate and even impose some prior restraint on radio and
television shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of
Appeals. Speaking through Chief Justice Reynato S. Puno, the Court wrote:
We thus reject petitioners postulate that its religious program is per
se beyond review by the respondent Board. Its public broadcast on TV
of its religious program brings it out of the bosom of internal belief.
Television is a medium that reaches even the eyes and ears of children.
The Court iterates the rule that the exercise of religious freedom can be
regulated by the State when it will bring about the clear and present
danger of some substantive evil which the State is duty bound to
prevent, i.e., serious detriment to the more overriding interest of public
health, public morals, or public welfare. x x x
 
xxxx
 
While the thesis has a lot to commend itself, we are not ready to hold
that [PD 1986] is unconstitutional for Congress to grant an
administrative body quasi-judicial power to preview and classify TV
programs and enforce its decision subject to review by our courts. As
far back as 1921, we upheld this setup in Sotto vs. Ruiz, viz:
 
The use of the mails by private persons is in the nature
of a privilege which can be regulated in order to avoid its
abuse. Persons possess no absolute right to put into the mail
anything they please, regardless of its character.[63]
 
Bernas adds:
 
Under the decree a movie classification board is made the
arbiter of what movies and television programs or parts of either are fit
for public consumption. It decides what movies are immoral, indecent,
contrary to law and/or good customs, injurious to the prestige of the
Republic of the Philippines or its people, and what tend to incite
subversion, insurrection, rebellion or sedition, or tend to undermine the
faith and confidence of the people in their government and/or duly
constituted authorities, etc. Moreover, its decisions are executory unless
stopped by a court.[64]
 
Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,[65] it was held that the
power of review and prior approval of MTRCB extends to all television programs and is
valid despite the freedom of speech guaranteed by the Constitution. Thus, all broadcast
networks are regulated by the MTRCB since they are required to get a permit before
they air their television programs. Consequently, their right to enjoy their freedom of
speech is subject to that requirement. As lucidly explained by Justice Dante O. Tinga,
government regulations through the MTRCB became a necessary evil with the
government taking the role of assigning bandwidth to individual broadcasters. The
stations explicitly agreed to this regulatory scheme; otherwise, chaos would result in the
television broadcast industry as competing broadcasters will interfere or co-opt each
others signals. In this scheme, station owners and broadcasters in effect waived their
right to the full enjoyment of their right to freedom of speech in radio and television
programs and impliedly agreed that said right may be subject to prior restraintdenial of
permit or subsequent punishment, like suspension or cancellation of permit, among
others.
 
The three (3) months suspension in this case is not a prior restraint on the right of
petitioner to continue with the broadcast of Ang Dating Daan as a permit was already
issued to him by MTRCB for such broadcast. Rather, the suspension is in the form of
permissible administrative sanction or subsequent punishment for the offensive and
obscene remarks he uttered on the evening of August 10, 2004 in his television
program, Ang Dating Daan. It is a sanction that the MTRCB may validly impose under
its charter without running afoul of the free speech clause. And the imposition is
separate and distinct from the criminal action the Board may take pursuant to Sec. 3(i)
of PD 1986 and the remedies that may be availed of by the aggrieved private party under
the provisions on libel or tort, if applicable. As FCC teaches, the imposition of sanctions
on broadcasters who indulge in profane or indecent broadcasting does not constitute
forbidden censorship. Lest it be overlooked, the sanction imposed is not per se for
petitioners exercise of his freedom of speech via television, but for the indecent contents
of his utterances in a G rated TV program.
 
More importantly, petitioner is deemed to have yielded his right to his full enjoyment of
his freedom of speech to regulation under PD 1986 and its IRR as television station
owners, program producers, and hosts have impliedly accepted the power of MTRCB to
regulate the broadcast industry.
Neither can petitioners virtual inability to speak in his program during the period of
suspension be plausibly treated as prior restraint on future speech. For viewed in its
proper perspective, the suspension is in the nature of an intermediate penalty for uttering
an unprotected form of speech. It is definitely a lesser punishment than the permissible
cancellation of exhibition or broadcast permit or license. In fine, the suspension meted
was simply part of the duties of the MTRCB in the enforcement and administration of
the law which it is tasked to implement. Viewed in its proper context, the suspension
sought to penalize past speech made on prime-time G rated TV program; it does not bar
future speech of petitioner in other television programs; it is a permissible subsequent
administrative sanction; it should not be confused with a prior restraint on speech. While
not on all fours, the Court, in MTRCB,[66] sustained the power of the MTRCB to
penalize a broadcast company for exhibiting/airing a pre-taped TV episode without
Board authorization in violation of Sec. 7 of PD 1986.
 
Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its
authority were it to regulate and even restrain the prime-time television broadcast of
indecent or obscene speech in a G rated program is not acceptable. As made clear
in Eastern Broadcasting Corporation, the freedom of television and radio broadcasting
is somewhat lesser in scope than the freedom accorded to newspaper and print
media. The MTRCB, as a regulatory agency, must have the wherewithal to enforce its
mandate, which would not be effective if its punitive actions would be limited to mere
fines. Television broadcasts should be subject to some form of regulation, considering
the ease with which they can be accessed, and violations of the regulations must be met
with appropriate and proportional disciplinary action. The suspension of a violating
television program would be a sufficient punishment and serve as a deterrent for those
responsible. The prevention of the broadcast of petitioners television program is
justified, and does not constitute prohibited prior restraint. It behooves the Court to
respond to the needs of the changing times, and craft jurisprudence to reflect these
times.
 
Petitioner, in questioning the three-month suspension, also tags as unconstitutional the
very law creating the MTRCB, arguing that PD 1986, as applied to him, infringes also
upon his freedom of religion. The Court has earlier adequately explained why petitioners
undue reliance on the religious freedom cannot lend justification, let alone an exempting
dimension to his licentious utterances in his program. The Court sees no need to address
anew the repetitive arguments on religious freedom. As earlier discussed in the
disposition of the petition in G.R. No. 164785, what was uttered was in no way a
religious speech. Parenthetically, petitioners attempt to characterize his speech as a
legitimate defense of his religion fails miserably. He tries to place his words in
perspective, arguing evidently as an afterthought that this was his method of refuting the
alleged distortion of his statements by the INC hosts of Ang Tamang Daan. But on the
night he uttered them in his television program, the word simply came out as profane
language, without any warning or guidance for undiscerning ears.
 
As to petitioners other argument about having been denied due process and equal
protection of the law, suffice it to state that we have at length debunked similar
arguments in G.R. No. 164785. There is no need to further delve into the fact that
petitioner was afforded due process when he attended the hearing of the MTRCB, and
that he was unable to demonstrate that he was unjustly discriminated against in the
MTRCB proceedings.
 
Finally, petitioner argues that there has been undue delegation of legislative power, as
PD 1986 does not provide for the range of imposable penalties that may be applied with
respect to violations of the provisions of the law.
 
The argument is without merit.
 
In Edu v. Ericta, the Court discussed the matter of undue delegation of
legislative power in the following wise:
 
It is a fundamental principle flowing from the doctrine of
separation of powers that Congress may not delegate its legislative
power to the two other branches of the government, subject to the
exception that local governments may over local affairs participate in its
exercise. What cannot be delegated is the authority under the
 Constitution to make laws and to alter and repeal them; the test is the
completeness of the statute in all its term and provisions when it leaves
the hands of the legislature. To determine whether or not there is an
undue delegation of legislative power, the inquiry must be directed to
the scope and definiteness of the measure enacted. The legislature does
not abdicate its functions when it describes what job must be done, who
is to do it, and what is the scope of his authority. For a complex
economy, that may indeed be the only way in which the legislative
process can go forward. A distinction has rightfully been made between
delegation of power to make laws which necessarily involves a
discretion as to what it shall be, which constitutionally may not be done,
and delegation of authority or discretion as to its execution to be
exercised under and in pursuance of the law, to which no valid objection
can be made. The Constitution is thus not to be regarded as denying the
legislature the necessary resources of flexibility and practicability.
 
To avoid the taint of unlawful delegation, there must be a
standard, which implies at the very least that the legislature itself
determines matters of principle and lays down fundamental
policy. Otherwise, the charge of complete abdication may be hard to
repel. A standard thus defines legislative policy, marks its limits, maps
out its boundaries and specifies the public agency to apply it. It
indicates the circumstances under which the legislative command is to
be effected. It is the criterion by which legislative purpose may be
carried out. Thereafter, the executive or administrative office designated
may in pursuance of the above guidelines promulgate supplemental
rules and regulations.[67]
 
 
Based on the foregoing pronouncements and analyzing the law in question,
petitioners protestation about undue delegation of legislative power for the sole reason
that PD 1986 does not provide for a range of penalties for violation of the law is
untenable. His thesis is that MTRCB, in promulgating the IRR of PD 1986, prescribing a
schedule of penalties for violation of the provisions of the decree, went beyond the terms
of the law.
 
Petitioners posture is flawed by the erroneous assumptions holding it together, the first
assumption being that PD 1986 does not prescribe the imposition of, or authorize the
MTRCB to impose, penalties for violators of PD 1986. As earlier indicated, however,
the MTRCB, by express and direct conferment of power and functions, is charged with
supervising and regulating, granting, denying, or canceling permits for the exhibition
and/or television broadcast of all motion pictures, television programs, and publicity
materials to the end that no such objectionable pictures, programs, and materials shall be
exhibited and/or broadcast by television. Complementing this provision is Sec. 3(k) of
the decree authorizing the MTRCB to exercise such powers and functions as may be
necessary or incidental to the attainment of the purpose and objectives of [the law]. As
earlier explained, the investiture of supervisory, regulatory, and disciplinary power
would surely be a meaningless grant if it did not carry with it the power to penalize the
supervised or the regulated as may be proportionate to the offense committed, charged,
and proved. As the Court said in Chavez v. National Housing Authority:
 
x x x [W]hen a general grant of power is conferred or duty
enjoined, every particular power necessary for the exercise of the one or
the performance of the other is also conferred. x x x [W]hen the statute
does not specify the particular method to be followed or used by a
government agency in the exercise of the power vested in it by law, said
agency has the authority to adopt any reasonable method to carry out its
function.[68]
 
 
Given the foregoing perspective, it stands to reason that the power of the MTRCB to
regulate and supervise the exhibition of TV programs carries with it or necessarily
implies the authority to take effective punitive action for violation of the law sought to
be enforced. And would it not be logical too to say that the power to deny or cancel a
permit for the exhibition of a TV program or broadcast necessarily includes the lesser
power to suspend?
 
The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for
reference, provides that agency with the power [to] promulgate such rules and
regulations as are necessary or proper for the implementation of this Act, and the
accomplishment of its purposes and objectives x x x. And Chapter XIII, Sec. 1 of the
IRR providing:
 Section 1. VIOLATIONS AND ADMINISTRATIVE
SANCTIONS.Without prejudice to the immediate filing of the
appropriate criminal action and the immediate seizure of the pertinent
articles pursuant to Section 13, any violation of PD 1986 and its
Implementing Rules and Regulations governing motion pictures,
television programs, and related promotional materials shall be
penalized with suspension or cancellation of permits and/or licenses
issued by the Board and/or with the imposition of fines and other
administrative penalty/penalties.The Board recognizes the existing
Table of Administrative Penalties attached without prejudice to the
power of the Board to amend it when the need arises. In the meantime
the existing revised Table of Administrative Penalties shall be enforced.
(Emphasis added.)
 
 
This is, in the final analysis, no more than a measure to specifically implement the
aforequoted provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR
does not expand the mandate of the MTRCB under the law or partake of the nature of an
unauthorized administrative legislation. The MTRCB cannot shirk its responsibility to
regulate the public airwaves and employ such means as it can as a guardian of the
public.
In Sec. 3(c), one can already find the permissible actions of the MTRCB, along
with the standards to be applied to determine whether there have been statutory
breaches.The MTRCB may evaluate motion pictures, television programs, and publicity
materials applying contemporary Filipino cultural values as standard, and, from there,
determine whether these audio and video materials are objectionable for being immoral,
indecent, contrary to law and/or good customs, [etc.] x x x and apply the sanctions it
deems proper.The lawmaking body cannot possibly provide for all the details in the
enforcement of a particular statute.[69] 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 non-delegation of legislative powers.[70] 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.
[71] Allowing the MTRCB some reasonable elbow-room in its operations and, in the
exercise of its statutory disciplinary functions, according it ample latitude in fixing, by
way of an appropriate issuance, administrative penalties with due regard for the severity
of the offense and attending mitigating or aggravating circumstances, as the case may
be, would be consistent with its mandate to effectively and efficiently regulate the movie
and television industry.
 
But even as we uphold the power of the MTRCB to review and impose
sanctions for violations of PD 1986, its decision to suspend petitioner must be modified,
for nowhere in that issuance, particularly the power-defining Sec. 3 nor in the MTRCB
Schedule of Administrative Penalties effective January 1, 1999 is the Board empowered
to suspend the program host or even to prevent certain people from appearing in
television programs. The MTRCB, to be sure, may prohibit the broadcast of such
television programs or cancel permits for exhibition, but it may not suspend television
personalities, for such would be beyond its jurisdiction. The MTRCB cannot extend its
exercise of regulation beyond what the law provides. Only persons, offenses, and
penalties clearly falling clearly within the letter and spirit of PD 1986 will be considered
to be within the decrees penal or disciplinary operation. And when it exists, the
reasonable doubt must be resolved in favor of the person charged with violating the
statute and for whom the penalty is sought. Thus, the MTRCBs decision in
Administrative Case No. 01-04 dated September 27, 2004 and the subsequent order
issued pursuant to said decision must be modified. The suspension should cover only the
television program on which petitioner appeared and uttered the offensive and obscene
language, which sanction is what the law and the facts obtaining call for.
 
In ending, what petitioner obviously advocates is an unrestricted speech
paradigm in which absolute permissiveness is the norm. Petitioners flawed belief that he
may simply utter gutter profanity on television without adverse consequences, under the
guise of free speech, does not lend itself to acceptance in this jurisdiction. We repeat:
freedoms of speech and expression are not absolute freedoms. To say any act that
restrains speech should be greeted with furrowed brows is not to say that any act that
restrains or regulates speech or expression is per se invalid. This only recognizes the
importance of freedoms of speech and expression, and indicates the necessity to
carefully scrutinize acts that may restrain or regulate speech.
 
WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated
September 27, 2004 is hereby AFFIRMED with the MODIFICATION of limiting the
 suspension to the program Ang Dating Daan. As thus modified, the fallo of the MTRCB For several months in 2005, then 21-year old petitioner Jenie San Juan Dela
shall read as follows: Cruz (Jenie) and then 19-year old Christian Dominique Sto. Tomas Aquino (Dominique)
  lived together as husband and wife without the benefit of marriage. They resided in the
WHEREFORE, in view of all the foregoing, a Decision is house of Dominiques parents Domingo B. Aquino and Raquel Sto. Tomas Aquino at
hereby rendered, imposing a penalty of THREE (3) MONTHS Pulang-lupa, Dulumbayan, Teresa, Rizal.
SUSPENSION on the television program, Ang Dating Daan, subject  
of the instant petition. On September 4, 2005, Dominique died.[1] After almost two months, or on
  November 2, 2005, Jenie, who continued to live with Dominiques parents, gave birth to
Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV her herein co-petitioner minor child Christian Dela Cruz Aquino at the Antipolo Doctors
Channel 37 and its owner, PBC, are hereby exonerated for lack of Hospital, Antipolo City.
evidence.  
  Jenie applied for registration of the childs birth, using Dominiques surname
  Aquino, with the Office of the City Civil Registrar, Antipolo City, in support of which
Costs against petitioner. she submitted the childs Certificate of Live Birth,[2] Affidavit to Use the Surname of the
SO ORDERED. Father[3] (AUSF) which she had executed and signed, and Affidavit of
Acknowledgmentexecuted by Dominiques father Domingo Butch Aquino.[4] Both
affidavits attested, inter alia, that during the lifetime of Dominique, he had continuously
JENIE SAN JUAN DELA G.R. No. 177728 acknowledged his yet unborn child, and that his paternity had never been
CRUZ and minor   questioned. Jenie attached to the AUSF a document entitled AUTOBIOGRAPHY which
CHRISTIAN DELA CRUZ Present: Dominique, during his lifetime, wrote in his own handwriting, the pertinent portions of
AQUINO, represented by   which read:
JENIE SANJUAN DELA CRUZ, QUISUMBING, J., Chairperson,  
Petitioners, CARPIO MORALES, AQUINO, CHRISTIAN DOMINIQUE S.T.
  CHICO-NAZARIO,  
  LEONARDO-DE CASTRO, and AUTOBIOGRAPHY
versus PERALTA,* JJ.  
    IM CHRISTIAN DOMINIQUE STO. TOMAS AQUINO, 19
    YEARS OF AGE TURNING 20 THIS COMING OCTOBER 31, 2005.
[5]
RONALD PAUL S. GRACIA, in his    I RESIDE AT PULANG-LUPA STREET BRGY. DULUMBAYAN,
capacity as City Civil Registrar of Promulgated: TERESA, RIZAL. I AM THE YOUNGEST IN OUR FAMILY. I
Antipolo City, July 31, 2009 HAVE ONE BROTHER NAMED JOSEPH BUTCH STO. TOMAS
Respondent. AQUINO. MY FATHERS NAME IS DOMINGO BUTCH AQUINO
x------------------------------------------------x AND MY MOTHERS NAME IS RAQUEL STO. TOMAS AQUINO. x
  x x.
DECISION xxxx
CARPIO MORALES, J.:  
 AS OF NOW I HAVE MY WIFE NAMED JENIE DELA
CRUZ. WE MET EACH OTHER IN OUR HOMETOWN, TEREZA
RIZAL. AT FIRST WE BECAME GOOD FRIENDS, THEN WE
FELL IN LOVE WITH EACH OTHER, THEN WE BECAME GOOD
COUPLES. AND AS OF NOW SHE IS PREGNANT AND FOR
THAT WE LIVE TOGETHER IN OUR HOUSE NOW. THATS ALL.
[6]
 (Emphasis and underscoring supplied)
 
By letter dated November 11, 2005,[7] the City Civil Registrar of Antipolo City,
Ronald Paul S. Gracia (respondent), denied Jenies application for registration of the
childs name in this wise:
 
7.      Rule 7 of Administrative Order No. 1, Series of 2004
(Implementing Rules and Regulations of Republic Act No.
9255 [An Act Allowing Illegitimate Children to Use the Surname of
their Father, Amending for the Purpose, Article 176 of Executive
Order No. 209, otherwise Known as the Family Code of the
Philippines]) provides that:
 
Rule 7. Requirements for the Child to Use the Surname of the
Father
 
7.1 For Births Not Yet Registered
 
7.1.1 The illegitimate child shall use the surname of the father if
a public document is executed by the father, either
at the back of the Certificate of Live Birth or in a
separate document.
7.1.2 If admission of paternity is made through a private
handwritten instrument, the child shall use the
surname of the father, provided the registration is
supported by the following documents:
 
a. AUSF[8]
b. Consent of the child, if 18 years old and over at
the time of the filing of the document.
c. Any two of the following documents showing
clearly the paternity between the father and the
child:
 
1. Employment records
2. SSS/GSIS records
3. Insurance
4. Certification of membership in any organization
5. Statement of Assets and Liability
6. Income Tax Return (ITR)
In summary, the child cannot use the surname of his father because he
was born out of wedlock and the father unfortunately died prior to his
birth and has no more capacity to acknowledge his paternity to the child
(either through the back of Municipal Form No. 102 Affidavit of
Acknowledgment/Admission of Paternity or the Authority to Use the
Surname of the Father). (Underscoring supplied)
 
 
Jenie and the child promptly filed a complaint [9] for injunction/registration of
name against respondent before the Regional Trial Court of Antipolo City, docketed as
SCA Case No. 06-539, which was raffled to Branch 73 thereof. The complaint alleged
that, inter alia, the denial of registration of the childs name is a violation of his right to
use the surname of his deceased father under Article 176 of the Family Code, as
amended by Republic Act (R.A.) No. 9255,[10] which provides:
 
Article 176. Illegitimate children shall use the surname and
shall be under the parental authority of their mother, and shall be
entitled to support in conformity with this Code. However, illegitimate
children may use the surname of their father if their filiation has been
expressly recognized by the father through the record of birth appearing
in the civil register, or when an admission in a public document
or private handwritten instrument is made by the father. Provided,
the father has the right to institute an action before the regular courts to
prove non-filiation during his lifetime. The legitime of each illegitimate
child shall consist of one-half of the legitime of a legitimate child.
(Emphasis and underscoring supplied)
  
They maintained that the Autobiography executed by Dominique constitutes an
admission of paternity in a private handwritten instrument within the contemplation of
the above-quoted provision of law.
 
For failure to file a responsive pleading or answer despite service of summons,
respondent was declared in default.
 
Jenie thereupon presented evidence ex-parte. She testified on the circumstances
of her common-law relationship with Dominique and affirmed her declarations in her
AUSF that during his lifetime, he had acknowledged his yet unborn child.[11] She offered
Dominiques handwritten Autobiography (Exhibit A) as her documentary evidence-in-
chief.[12] Dominiques lone brother, Joseph Butch S.T. Aquino, also testified,
corroborating Jenies declarations.[13]
By Decision[14] of April 25, 2007, the trial court dismissed the complaint for lack
of cause of action as the Autobiography was unsigned, citing paragraph 2.2, Rule 2
(Definition of Terms) of Administrative Order (A.O.) No. 1, Series of 2004 (the
Rules and Regulations Governing the Implementation of R.A. 9255) which defines
private handwritten document through which a father may acknowledge an illegitimate
child as follows:
2.2 Private handwritten instrument an instrument executed in
the handwriting of the father and duly signed by him where he expressly
recognizes paternity to the child. (Underscoring supplied)
 
The trial court held that even if Dominique was the author of the handwritten
Autobiography, the same does not contain any express recognition of paternity.
Hence, this direct resort to the Court via Petition for Review on Certiorari
raising this purely legal issue of:
 
WHETHER OR NOT THE UNSIGNED HANDWRITTEN
STATEMENT OF THE DECEASED FATHER OF MINOR
CHRISTIAN DELA CRUZ CAN BE CONSIDERED AS A
RECOGNITION OF PATERNITY IN A PRIVATE HANDWRITTEN
INSTRUMENT WITHIN THE CONTEMPLATION OF ARTICLE
176 OF THE FAMILY CODE, AS AMENDED BY R.A. 9255,
WHICH ENTITLES THE SAID MINOR TO USE HIS FATHERS
SURNAME.[15] (Underscoring supplied)
 
Petitioners contend that Article 176 of the Family Code, as amended, does not
expressly require that the private handwritten instrument containing the putative fathers
admission of paternity must be signed by him. They add that the deceaseds handwritten
Autobiography, though unsigned by him, is sufficient, for the requirement in the above-
quoted paragraph 2.2 of the Administrative Order that the admission/recognition must
be duly signed by the father is void as it unduly expanded the earlier-quoted provision of
Article 176 of the Family Code.[16]
 
Petitioners further contend that the trial court erred in not finding
that Dominiques handwritten Autobiography contains a clear and unmistakable
recognition of the childs paternity.[17]
 
In its Comment, the Office of the Solicitor General (OSG) submits that
respondents position, as affirmed by the trial court, is in consonance with the law and
thus prays for the dismissal of the petition. It further submits that Dominiques
Autobiography merely acknowledged Jenies pregnancy but not [his] paternity of the
child she was carrying in her womb.[18]
Article 176 of the Family Code, as amended by R.A. 9255, permits an
illegitimate child to use the surname of his/her father if the latter had expressly
recognized him/her as his offspring through the record of birth appearing in the civil
register, or through an admission made in a public or private handwritten
instrument. The recognition made in any of these documents is, in itself, a consummated
act of acknowledgment of the childs paternity; hence, no separate action for judicial
approval is necessary.[19]
 
Article 176 of the Family Code, as amended, does not, indeed, explicitly state
that the private handwritten instrument acknowledging the childs paternity must be
signed by the putative father. This provision must, however, be read in conjunction with
related provisions of the Family Code which require that recognition by the father must
bear his signature, thus:
 
 Art. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as legitimate
children.
xxxx
 
Art. 172. The filiation of legitimate children is established by
any of the following:
 
(1) The record of birth appearing in the civil register or
a final judgment; or
 
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument and signed by the
parent concerned.
 
x x x x (Emphasis and underscoring supplied)
 
That a father who acknowledges paternity of a child through a written
instrument must affix his signature thereon is clearly implied in Article 176 of the
Family Code.Paragraph 2.2, Rule 2 of A.O. No. 1, Series of 2004, merely articulated
such requirement; it did not unduly expand the import of Article 176 as claimed by
petitioners.
In the present case, however, special circumstances exist to hold that
Dominiques Autobiography, though unsigned by him, substantially satisfies the
requirement of the law.
First, Dominique died about two months prior to the childs birth. Second, the
relevant matters in the Autobiography, unquestionably handwritten by Dominique,
correspond to the facts culled from the testimonial evidence Jenie proffered. [20] Third,
Jenies testimony is corroborated by the Affidavit of Acknowledgment of Dominiques
father Domingo Aquino and testimony of his brother Joseph Butch Aquino whose
hereditary rights could be affected by the registration of the questioned recognition of
the child. These circumstances indicating Dominiques paternity of the child give life to
his statements in his Autobiography that JENIE DELA CRUZ is MY WIFE as WE
FELL IN LOVE WITH EACH OTHER and NOW SHE IS PREGNANT AND FOR
THAT WE LIVE TOGETHER.
In Herrera v. Alba,[21] the Court summarized the laws, rules, and jurisprudence
on establishing filiation, discoursing in relevant part:
 
 
Laws, Rules, and Jurisprudence
Establishing Filiation
 
The relevant provisions of the Family Code provide as follows:
 
ART. 175. Illegitimate children may establish their illegitimate
filiation in the same way and on the same evidence as legitimate
children.
 
xxxx
ART. 172. The filiation of legitimate children is established by
any of the following:
 
(1) The record of birth appearing in the civil register or a
final judgment; or
(2) An admission of legitimate filiation in a public
document or a private handwritten instrument and signed by the
parent concerned.
In the absence of the foregoing evidence, the legitimate filiation
shall be proved by:
 
(1) The open and continuous possession of the status of a
legitimate child; or
 
 (2) Any other means allowed by the Rules of Court and
special laws.
 
The Rules on Evidence include provisions on pedigree. The relevant
sections of Rule 130 provide:
 
SEC. 39. Act or declaration about pedigree. The act or
declaration of a person deceased, or unable to testify, in respect to the
pedigree of another person related to him by birth or marriage, may be
received in evidence where it occurred before the controversy, and the
relationship between the two persons is shown by evidence other than
such act or declaration. The word "pedigree" includes relationship,
family genealogy, birth, marriage, death, the dates when and the places
where these facts occurred, and the names of the relatives. It embraces
also facts of family history intimately connected with pedigree.
 
SEC. 40. Family reputation or tradition regarding pedigree. The
reputation or tradition existing in a family previous to the controversy,
in respect to the pedigree of any one of its members, may be received in
evidence if the witness testifying thereon be also a member of the
family, either by consanguinity or affinity. Entries in family bibles or
other family books or charts, engraving on rings, family portraits and
the like, may be received as evidence of pedigree.
 
This Court's rulings further specify what incriminating acts are
acceptable as evidence to establish filiation. In Pe Lim v. CA, a case
petitioner often cites, we stated that the issue of paternity still has to be
resolved by such conventional evidence as the relevant incriminating
verbal and written acts by the putative father. Under Article 278 of
the New Civil Code, voluntary recognition by a parent shall be made in
the record of birth, a will, a statement before a court of record, or in any
authentic writing. To be effective, the claim of filiation must be
made by the putative father himself and the writing must be the
writing of the putative father. A notarial agreement to support a child
whose filiation is admitted by the putative father was considered
acceptable evidence. Letters to the mother vowing to be a good father to
the child and pictures of the putative father cuddling the child on
various occasions, together with the certificate of live birth, proved
filiation. However, a student permanent record, a written consent to a
father's operation, or a marriage contract where the putative father gave
consent, cannot be taken as authentic writing. Standing alone, neither a
certificate of baptism nor family pictures are sufficient to establish
filiation. (Emphasis and underscoring supplied.)
 
 
In the case at bar, there is no dispute that the earlier quoted statements in Dominiques
Autobiography have been made and written by him. Taken together with the other
relevant facts extant herein that Dominique, during his lifetime, and Jenie were living
together as common-law spouses for several months in 2005 at his parents house in
Pulang-lupa, Dulumbayan, Teresa, Rizal; she was pregnant when Dominique died on
September 4, 2005; and about two months after his death, Jenie gave birth to the
child they sufficiently establish that the child of Jenie is Dominiques.
 
In view of the pronouncements herein made, the Court sees it fit to adopt the
following rules respecting the requirement of affixing the signature of the
acknowledging parent in any private handwritten instrument wherein an admission of
filiation of a legitimate or illegitimate child is made:
 
1) Where the private handwritten instrument is the lone piece of evidence
submitted to prove filiation, there should be strict compliance with the requirement that
the same must be signed by the acknowledging parent; and
 
2) Where the private handwritten instrument is accompanied by other relevant
and competent evidence, it suffices that the claim of filiation therein be shown to have
been made and handwritten by the acknowledging parent as it is merely corroborative of
such other evidence.
 
Our laws instruct that the welfare of the child shall be the paramount
consideration in resolving questions affecting him.[22] Article 3(1) of the United Nations
Convention on the Rights of a Child of which the Philippines is a signatory is similarly
emphatic:
 
 Article 3
 
1. In all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative
authorities or legislative bodies, the best interests of the child shall be a
primary consideration.[23] (Underscoring supplied)
 
It is thus (t)he policy of the Family Code to liberalize the rule on the
investigation of the paternity and filiation of children, especially of illegitimate
children x x x.[24]Too, (t)he State as parens patriae affords special protection to children
from abuse, exploitation and other conditions prejudicial to their development.[25]
 
 
 
 
In the eyes of society, a child with an unknown father bears the stigma of
dishonor. It is to petitioner minor childs best interests to allow him to bear the surname
of the now deceased Dominique and enter it in his birth certificate.
 
WHEREFORE, the petition is GRANTED. The City Civil Registrar of
Antipolo City is DIRECTED to immediately enter the surname of the late Christian
Dominique Sto. Tomas Aquino as the surname of petitioner minor Christian dela Cruz
in his Certificate of Live Birth, and record the same in the Register of Births.
 
SO ORDERED.
G.R. No. L-5            September 17, 1945
CO KIM CHAM (alias CO KIM CHAM), petitioner,  Instance, and the justices of the peace and municipal courts under the Commonwealth
vs.
EUSEBIO VALDEZ TAN KEH and ARSENIO P. DIZON, Judge of First Instance
of Manila, respondents.1
This petition for mandamus in which petitioner prays that the respondent judge of the
lower court be ordered to continue the proceedings in civil case No. 3012 of said court,
which were initiated under the regime of the so-called Republic of the Philippines
established during the Japanese military occupation of these Islands.
The respondent judge refused to take cognizance of and continue the proceedings in said
case on the ground that the proclamation issued on October 23, 1944, by General
Douglas MacArthur had the effect of invalidating and nullifying all judicial proceedings
and judgements of the court of the Philippines under the Philippine Executive
Commission and the Republic of the Philippines established during the Japanese
military occupation, and that, furthermore, the lower courts have no jurisdiction to take
cognizance of and continue judicial proceedings pending in the courts of the defunct
Republic of the Philippines in the absence of an enabling law granting such authority.
And the same respondent, in his answer and memorandum filed in this Court, contends
that the government established in the Philippines during the Japanese occupation were
no de facto governments.
On January 2, 1942, the Imperial Japanese Forces occupied the City of Manila, and on
the next day their Commander in Chief proclaimed "the Military Administration under
law over the districts occupied by the Army." In said proclamation, it was also provided
that "so far as the Military Administration permits, all the laws now in force in the
Commonwealth, as well as executive and judicial institutions, shall continue to be
effective for the time being as in the past," and "all public officials shall remain in their
present posts and carry on faithfully their duties as before."
A civil government or central administration organization under the name of "Philippine
Executive Commission was organized by Order No. 1 issued on January 23, 1942, by
the Commander in Chief of the Japanese Forces in the Philippines, and Jorge B. Vargas,
who was appointed Chairman thereof, was instructed to proceed to the immediate
coordination of the existing central administrative organs and judicial courts, based upon
what had existed therefore, with approval of the said Commander in Chief, who was to
exercise jurisdiction over judicial courts.
The Chairman of the Executive Commission, as head of the central administrative
organization, issued Executive Orders Nos. 1 and 4, dated January 30 and February 5,
1942, respectively, in which the Supreme Court, Court of Appeals, Courts of First
were continued with the same jurisdiction, in conformity with the instructions given to
the said Chairman of the Executive Commission by the Commander in Chief of
Japanese Forces in the Philippines in the latter's Order No. 3 of February 20, 1942,
concerning basic principles to be observed by the Philippine Executive Commission in
exercising legislative, executive and judicial powers. Section 1 of said Order provided
that "activities of the administration organs and judicial courts in the Philippines shall be
based upon the existing statutes, orders, ordinances and customs. . . ."
On October 14, 1943, the so-called Republic of the Philippines was inaugurated, but no
substantial change was effected thereby in the organization and jurisdiction of the
different courts that functioned during the Philippine Executive Commission, and in the
laws they administered and enforced.
On October 23, 1944, a few days after the historic landing in Leyte, General Douglas
MacArthur issued a proclamation to the People of the Philippines which declared:
1. That the Government of the Commonwealth of the Philippines is, subject to
the supreme authority of the Government of the United States, the sole and only
government having legal and valid jurisdiction over the people in areas of the
Philippines free of enemy occupation and control;
2. That the laws now existing on the statute books of the Commonwealth of the
Philippines and the regulations promulgated pursuant thereto are in full force
and effect and legally binding upon the people in areas of the Philippines free of
enemy occupation and control; and
3. That all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void and without
legal effect in areas of the Philippines free of enemy occupation and control.
On February 3, 1945, the City of Manila was partially liberated and on February 27,
1945, General MacArthur, on behalf of the Government of the United States, solemnly
declared "the full powers and responsibilities under the Constitution restored to the
Commonwealth whose seat is here established as provided by law."
In the light of these facts and events of contemporary history, the principal questions to
be resolved in the present case may be reduced to the following:(1) Whether the judicial
acts and proceedings of the court existing in the Philippines under the Philippine
Executive Commission and the Republic of the Philippines were good and valid and
remained so even after the liberation or reoccupation of the Philippines by the United
States and Filipino forces; (2)Whether the proclamation issued on October 23, 1944, by
General Douglas MacArthur, Commander in Chief of the United States Army, in which
he declared "that all laws, regulations and processes of any of the government in the
Philippines than that of the said Commonwealth are null and void and without legal
effect in areas of the Philippines free of enemy occupation and control," has invalidated
all judgements and judicial acts and proceedings of the said courts; and (3) If the said
judicial acts and proceedings have not been invalidated by said proclamation, whether
the present courts of the Commonwealth, which were the same court existing prior to,
and continued during, the Japanese military occupation of the Philippines, may continue
those proceedings pending in said courts at the time the Philippines were reoccupied and
liberated by the United States and Filipino forces, and the Commonwealth of the
Philippines were reestablished in the Islands.
We shall now proceed to consider the first question, that is, whether or not under the
rules of international law the judicial acts and proceedings of the courts established in
the Philippines under the Philippine Executive Commission and the Republic of the
Philippines were good and valid and remained good and valid even after the liberation
or reoccupation of the Philippines by the United States and Filipino forces.
1. It is a legal truism in political and international law that all acts and proceedings of
the legislative, executive, and judicial departments of a de facto government are good
and valid. The question to be determined is whether or not the governments established
in these Islands under the names of the Philippine Executive Commission and Republic
of the Philippines during the Japanese military occupation or regime were de
facto governments. If they were, the judicial acts and proceedings of those governments
remain good and valid even after the liberation or reoccupation of the Philippines by the
American and Filipino forces.
There are several kinds of de facto governments. The first, or government de facto in a
proper legal sense, is that government that gets possession and control of, or usurps, by
force or by the voice of the majority, the rightful legal governments and maintains itself
against the will of the latter, such as the government of England under the
Commonwealth, first by Parliament and later by Cromwell as Protector. The second is
that which is established and maintained by military forces who invade and occupy a
territory of the enemy in the course of war, and which is denominated a government of
paramount force, as the cases of Castine, in Maine, which was reduced to British
possession in the war of 1812, and Tampico, Mexico, occupied during the war with
Mexico, by the troops of the United States. And the third is that established as an
independent government by the inhabitants of a country who rise in insurrection against
the parent state of such as the government of the Southern Confederacy in revolt not
concerned in the present case with the first kind, but only with the second and third
kinds of de facto governments.
Speaking of government "de facto" of the second kind, the Supreme Court of the United
States, in the case of Thorington vs. Smith (8 Wall., 1), said: "But there is another
description of government, called also by publicists a government de facto, but which
might, perhaps, be more aptly denominated a government of paramount force. Its
distinguishing characteristics are (1), that its existence is maintained by active military
power with the territories, and against the rightful authority of an established and lawful
government; and (2), that while it exists it necessarily be obeyed in civil matters by
private citizens who, by acts of obedience rendered in submission to such force, do not
become responsible, or wrongdoers, for those acts, though not warranted by the laws of
the rightful government. Actual governments of this sort are established over districts
differing greatly in extent and conditions. They are usually administered directly by
military authority, but they may be administered, also, civil authority, supported more or
less directly by military force. . . . One example of this sort of government is found in
the case of Castine, in Mine, reduced to British possession in the war of 1812 . . . U.
S. vs. Rice (4 Wheaton, 253). A like example is found in the case of Tampico, occupied
during the war with Mexico, by the troops of the United States . . . Fleming vs. Page (9
Howard, 614). These were cases of temporary possessions of territory by lawfull and
regular governments at war with the country of which the territory so possessed was
part."
The powers and duties of de facto governments of this description are regulated in
Section III of the Hague Conventions of 1907, which is a revision of the provisions of
the Hague Conventions of 1899 on the same subject of said Section III provides "the
authority of the legislative power having actually passed into the hands of the occupant,
the latter shall take steps in his power to reestablish and insure, as far as possible, public
order and safety, while respecting, unless absolutely prevented, the laws in force in the
country."
According to the precepts of the Hague Conventions, as the belligerent occupant has the
right and is burdened with the duty to insure public order and safety during his military
occupation, he possesses all the powers of a de factogovernment, and he can suspended
the old laws and promulgate new ones and make such changes in the old as he may see
fit, but he is enjoined to respect, unless absolutely prevented by the circumstances
prevailing in the occupied territory, the municipal laws in force in the country, that is,
those laws which enforce public order and regulate social and commercial life of the
country. On the other hand, laws of a political nature or affecting political relations, such
as, among others, the right of assembly, the right to bear arms, the freedom of the press,
and the right to travel freely in the territory occupied, are considered as suspended or in
abeyance during the military occupation. Although the local and civil administration of
justice is suspended as a matter of course as soon as a country is militarily occupied, it is
not usual for the invader to take the whole administration into his own hands. In
practice, the local ordinary tribunals are authorized to continue administering justice;
and judges and other judicial officers are kept in their posts if they accept the authority
of the belligerent occupant or are required to continue in their positions under the
supervision of the military or civil authorities appointed, by the Commander in Chief of
the occupant. These principles and practice have the sanction of all publicists who have
considered the subject, and have been asserted by the Supreme Court and applied by the
President of the United States.
The doctrine upon this subject is thus summed up by Halleck, in his work on
International Law (Vol. 2, p. 444): "The right of one belligerent to occupy and govern
the territory of the enemy while in its military possession, is one of the incidents of war,
and flows directly from the right to conquer. We, therefore, do not look to the
Constitution or political institutions of the conqueror, for authority to establish a
government for the territory of the enemy in his possession, during its military
occupation, nor for the rules by which the powers of such government are regulated and
limited. Such authority and such rules are derived directly from the laws war, as
established by the usage of the of the world, and confirmed by the writings of publicists
and decisions of courts — in fine, from the law of nations. . . . The municipal laws of a
conquered territory, or the laws which regulate private rights, continue in force during
military occupation, excepts so far as they are suspended or changed by the acts of
conqueror. . . . He, nevertheless, has all the powers of a de facto government, and can at
his pleasure either change the existing laws or make new ones."
And applying the principles for the exercise of military authority in an occupied
territory, which were later embodied in the said Hague Conventions, President
McKinley, in his executive order to the Secretary of War of May 19,1898, relating to the
occupation of the Philippines by United States forces, said in part: "Though the powers
of the military occupant are absolute and supreme, and immediately operate upon the
political condition of the inhabitants, the municipal laws of the conquered territory, such
as affect private rights of person and property and provide for the punishment of crime,
are considered as continuing in force, so far as they are compatible with the new order of
things, until they are suspended or superseded by the occupying belligerent; and in
practice they are not usually abrogated, but are allowed to remain in force and to be
administered by the ordinary tribunals, substantially as they were before the occupation.
This enlightened practice is, so far as possible, to be adhered to on the present occasion.
The judges and the other officials connected with the administration of justice may, if
they accept the authority of the United States, continue to administer the ordinary law of
the land as between man and man under the supervision of the American Commander in
Chief." (Richardson's Messages and Papers of President, X, p. 209.)
As to "de facto" government of the third kind, the Supreme Court of the United States,
in the same case of Thorington vs. Smith, supra, recognized the government set up by
the Confederate States as a de factogovernment. In that case, it was held that "the central
government established for the insurgent States differed from the temporary
governments at Castine and Tampico in the circumstance that its authority did no
originate in lawful acts of regular war; but it was not, on the account, less actual or less
supreme. And we think that it must be classed among the governments of which these
are examples. . . .
In the case of William vs. Bruffy (96 U. S. 176, 192), the Supreme Court of the United
States, discussing the validity of the acts of the Confederate States, said: "The same
general form of government, the same general laws for the administration of justice and
protection of private rights, which had existed in the States prior to the rebellion,
remained during its continuance and afterwards. As far as the Acts of the States do not
impair or tend to impair the supremacy of the national authority, or the just rights of
citizens under the Constitution, they are, in general, to be treated as valid and binding.
As we said in Horn vs. Lockhart (17 Wall., 570; 21 Law. ed., 657): "The existence of a
state of insurrection and war did not loosen the bonds of society, or do away with civil
government or the regular administration of the laws. Order was to be preserved, police
regulations maintained, crime prosecuted, property protected, contracts enforced,
marriages celebrated, estates settled, and the transfer and descent of property regulated,
precisely as in the time of peace. No one, that we are aware of, seriously questions the
validity of judicial or legislative Acts in the insurrectionary States touching these and
kindered subjects, where they were not hostile in their purpose or mode of enforcement
to the authority of the National Government, and did not impair the rights of citizens
under the Constitution'. The same doctrine has been asserted in numerous other cases."
And the same court, in the case of Baldy vs. Hunter (171 U. S., 388, 400), held: "That
what occured or was done in respect of such matters under the authority of the laws of
these local de facto governments should not be disregarded or held to be
invalid merely because those governments were organized in hostility to the Union
established by the national Constitution; this, because the existence of war between the
United States and the Confederate States did not relieve those who are within the
insurrectionary lines from the necessity of civil obedience, nor destroy the bonds of
society nor do away with civil government or the regular administration of the laws, and
because transactions in the ordinary course of civil society as organized within the
enemy's territory although they may have indirectly or remotely promoted the ends of
the de facto or unlawful government organized to effect a dissolution of the Union, were
without blame 'except when proved to have been entered into with actual intent to
further invasion or insurrection:'" and "That judicial and legislative acts in the respective
states composing the so-called Confederate States should be respected by the courts if
they were not hostile in their purpose or mode of enforcement to the authority of the
National Government, and did not impair the rights of citizens under the Constitution."
In view of the foregoing, it is evident that the Philippine Executive Commission, which
was organized by Order No. 1, issued on January 23, 1942, by the Commander of the
Japanese forces, was a civil government established by the military forces of occupation
and therefore a de facto government of the second kind. It was not different from the
government established by the British in Castine, Maine, or by the United States in
Tampico, Mexico. As Halleck says, "The government established over an enemy's
territory during the military occupation may exercise all the powers given by the laws of
war to the conqueror over the conquered, and is subject to all restrictions which that
code imposes. It is of little consequence whether such government be called a military or
civil government. Its character is the same and the source of its authority the same. In
either case it is a government imposed by the laws of war, and so far it concerns the
inhabitants of such territory or the rest of the world, those laws alone determine the
legality or illegality of its acts." (Vol. 2, p. 466.) The fact that the Philippine Executive
Commission was a civil and not a military government and was run by Filipinos and not
by Japanese nationals, is of no consequence. In 1806, when Napoleon occupied the
greater part of Prussia, he retained the existing administration under the general
direction of a french official (Langfrey History of Napoleon, 1, IV, 25); and, in the same
way, the Duke of Willington, on invading France, authorized the local authorities to
continue the exercise of their functions, apparently without appointing an English
superior. (Wellington Despatches, XI, 307.). The Germans, on the other hand, when they
invaded France in 1870, appointed their own officials, at least in Alsace and Lorraine, in
every department of administration and of every rank. (Calvo, pars. 2186-93; Hall,
International Law, 7th ed., p. 505, note 2.)
The so-called Republic of the Philippines, apparently established and organized as a
sovereign state independent from any other government by the Filipino people, was, in
truth and reality, a government established by the belligerent occupant or the Japanese
forces of occupation. It was of the same character as the Philippine Executive
Commission, and the ultimate source of its authority was the same — the Japanese
military authority and government. As General MacArthur stated in his proclamation of
October 23, 1944, a portion of which has been already quoted, "under enemy duress, a
so-called government styled as the 'Republic of the Philippines' was established on
October 14, 1943, based upon neither the free expression of the people's will nor the
sanction of the Government of the United States." Japan had no legal power to grant
independence to the Philippines or transfer the sovereignty of the United States to, or
recognize the latent sovereignty of, the Filipino people, before its military occupation
and possession of the Islands had matured into an absolute and permanent dominion or
sovereignty by a treaty of peace or other means recognized in the law of nations. For it
is a well-established doctrine in International Law, recognized in Article 45 of the
Hauge Conventions of 1907 (which prohibits compulsion of the population of the
occupied territory to swear allegiance to the hostile power), the belligerent
occupation, being essentially provisional, does not serve to transfer sovereignty over the
territory controlled although the de jure government is during the period of occupancy
deprived of the power to exercise its rights as such. (Thirty Hogshead of
Sugar vs. Boyle, 9 Cranch, 191; United States vs. Rice, 4 Wheat., 246; Fleming vs. Page,
9 Howard, 603; Downes vs. Bidwell, 182 U. S., 345.) The formation of the Republic of
the Philippines was a scheme contrived by Japan to delude the Filipino people into
believing in the apparent magnanimity of the Japanese gesture of transferring or turning
over the rights of government into the hands of Filipinos. It was established under the
mistaken belief that by doing so, Japan would secure the cooperation or at least the
neutrality of the Filipino people in her war against the United States and other allied
nations.
Indeed, even if the Republic of the Philippines had been established by the free will of
the Filipino who, taking advantage of the withdrawal of the American forces from the
Islands, and the occupation thereof by the Japanese forces of invasion, had organized an
independent government under the name with the support and backing of Japan, such
government would have been considered as one established by the Filipinos in
insurrection or rebellion against the parent state or the Unite States. And as such, it
would have been a de facto government similar to that organized by the confederate
states during the war of secession and recognized as such by the by the Supreme Court
of the United States in numerous cases, notably those of Thorington vs. Smith,
Williams vs. Bruffy, and Badly vs. Hunter, above quoted; and similar to the short-lived
government established by the Filipino insurgents in the Island of Cebu during the
Spanish-American war, recognized as a de facto government by the Supreme Court of
the United States in the case of McCleod vs. United States (299 U. S., 416). According
to the facts in the last-named case, the Spanish forces evacuated the Island of Cebu on
December 25, 1898, having first appointed a provisional government, and shortly
afterwards, the Filipinos, formerly in insurrection against Spain, took possession of the
Islands and established a republic, governing the Islands until possession thereof was
surrendered to the United States on February 22, 1898. And the said Supreme Court held
in that case that "such government was of the class of de facto governments described in
I Moore's International Law Digest, S 20, . . . 'called also by publicists a government de
facto, but which might, perhaps, be more aptly denominated a government of paramount
force . . '." That is to say, that the government of a country in possession of belligerent
forces in insurrection or rebellion against the parent state, rests upon the same principles
as that of a territory occupied by the hostile army of an enemy at regular war with the
legitimate power.
The governments by the Philippine Executive Commission and the Republic of the
Philippines during the Japanese military occupation being de facto governments, it
necessarily follows that the judicial acts and proceedings of the courts of justice of those
governments, which are not of a political complexion, were good and valid, and, by
virtue of the well-known principle of postliminy (postliminium) in international law,
remained good and valid after the liberation or reoccupation of the Philippines by the
American and Filipino forces under the leadership of General Douglas MacArthur.
According to that well-known principle in international law, the fact that a territory
which has been occupied by an enemy comes again into the power of its legitimate
government of sovereignty, "does not, except in a very few cases, wipe out the effects of
acts done by an invader, which for one reason or another it is within his competence to
do. Thus judicial acts done under his control, when they are not of a political
complexion, administrative acts so done, to the extent that they take effect during the
continuance of his control, and the various acts done during the same time by private
persons under the sanction of municipal law, remain good. Were it otherwise, the whole
social life of a community would be paralyzed by an invasion; and as between the state
and the individuals the evil would be scarcely less, — it would be hard for example that
payment of taxes made under duress should be ignored, and it would be contrary to the
general interest that the sentences passed upon criminals should be annulled by the
disappearance of the intrusive government ." (Hall, International Law, 7th ed., p. 518.)
And when the occupation and the abandonment have been each an incident of the same
war as in the present case, postliminy applies, even though the occupant has acted as
conqueror and for the time substituted his own sovereignty as the Japanese intended to
do apparently in granting independence to the Philippines and establishing the so-called
Republic of the Philippines. (Taylor, International Law, p. 615.)
That not only judicial but also legislative acts of de facto governments, which are not of
a political complexion, are and remain valid after reoccupation of a territory occupied by
a belligerent occupant, is confirmed by the Proclamation issued by General Douglas
MacArthur on October 23, 1944, which declares null and void all laws, regulations and
processes of the governments established in the Philippines during the Japanese
occupation, for it would not have been necessary for said proclamation to abrogate them
if they were invalid ab initio.
2. The second question hinges upon the interpretation of the phrase "processes of any
other government" as used in the above-quoted proclamation of General Douglas
MacArthur of October 23, 1944 — that is, whether it was the intention of the
Commander in Chief of the American Forces to annul and void thereby all judgments
and judicial proceedings of the courts established in the Philippines during the Japanese
military occupation.
The phrase "processes of any other government" is broad and may refer not only to the
judicial processes, but also to administrative or legislative, as well as constitutional,
processes of the Republic of the Philippines or other governmental agencies established
in the Islands during the Japanese occupation. Taking into consideration the fact that, as
above indicated, according to the well-known principles of international law all
judgements and judicial proceedings, which are not of a political complexion, of the de
facto governments during the Japanese military occupation were good and valid before
and remained so after the occupied territory had come again into the power of the titular
sovereign, it should be presumed that it was not, and could not have been, the intention
of General Douglas MacArthur, in using the phrase "processes of any other government"
in said proclamation, to refer to judicial processes, in violation of said principles of
international law. The only reasonable construction of the said phrase is that it refers to
governmental processes other than judicial processes of court proceedings, for according
to a well-known rule of statutory construction, set forth in 25 R. C. L., p. 1028, "a statute
ought never to be construed to violate the law of nations if any other possible
construction remains."
It is true that the commanding general of a belligerent army of occupation, as an agent of
his government, may not unlawfully suspend existing laws and promulgate new ones in
the occupied territory, if and when the exigencies of the military occupation demand
such action. But even assuming that, under the law of nations, the legislative power of a
commander in chief of military forces who liberates or reoccupies his own territory
which has been occupied by an enemy, during the military and before the restoration of
the civil regime, is as broad as that of the commander in chief of the military forces of
invasion and occupation (although the exigencies of military reoccupation are evidently
less than those of occupation), it is to be presumed that General Douglas MacArthur,
who was acting as an agent or a representative of the Government and the President of
the United States, constitutional commander in chief of the United States Army, did not
intend to act against the principles of the law of nations asserted by the Supreme Court
of the United States from the early period of its existence, applied by the Presidents of
the United States, and later embodied in the Hague Conventions of 1907, as above
indicated. It is not to be presumed that General Douglas MacArthur, who enjoined in the
same proclamation of October 23, 1944, "upon the loyal citizens of the Philippines full
respect and obedience to the Constitution of the Commonwealth of the Philippines,"
should not only reverse the international policy and practice of his own government, but
also disregard in the same breath the provisions of section 3, Article II, of our
Constitution, which provides that "The Philippines renounces war as an instrument of
national policy, and adopts the generally accepted principles of international law as part
of the law of the Nation."
Moreover, from a contrary construction great inconvenience and public hardship would
result, and great public interests would be endangered and sacrificed, for disputes or
suits already adjudged would have to be again settled accrued or vested rights nullified,
sentences passed on criminals set aside, and criminals might easily become immune for
evidence against them may have already disappeared or be no longer available,
especially now that almost all court records in the Philippines have been destroyed by
fire as a consequence of the war. And it is another well-established rule of statutory
construction that where great inconvenience will result from a particular construction, or
great public interests would be endangered or sacrificed, or great mischief done, such
construction is to be avoided, or the court ought to presume that such construction was
not intended by the makers of the law, unless required by clear and unequivocal words.
(25 R. C. L., pp. 1025, 1027.)
The mere conception or thought of possibility that the titular sovereign or his
representatives who reoccupies a territory occupied by an enemy, may set aside or annul
all the judicial acts or proceedings of the tribunals which the belligerent occupant had
the right and duty to establish in order to insure public order and safety during military
occupation, would be sufficient to paralyze the social life of the country or occupied
territory, for it would have to be expected that litigants would not willingly submit their
litigation to courts whose judgements or decisions may afterwards be annulled, and
criminals would not be deterred from committing crimes or offenses in the expectancy
that they may escaped the penalty if judgments rendered against them may be afterwards
set aside.
That the proclamation has not invalidated all the judgements and proceedings of the
courts of justice during the Japanese regime, is impliedly confirmed by Executive Order
No. 37, which has the force of law, issued by the President of the Philippines on March
10, 1945, by virtue of the emergency legislative power vested in him by the Constitution
and the laws of the Commonwealth of the Philippines. Said Executive order abolished
the Court of Appeals, and provided "that all case which have heretofore been duly
appealed to the Court of Appeals shall be transmitted to the Supreme Court final
decision." This provision impliedly recognizes that the judgments and proceedings of
the courts during the Japanese military occupation have not been invalidated by the
proclamation of General MacArthur of October 23, because the said Order does not say
or refer to cases which have been duly appealed to said court prior to the Japanese
occupation, but to cases which had therefore, that is, up to March 10, 1945, been duly
appealed to the Court of Appeals; and it is to be presumed that almost all, if not all,
appealed cases pending in the Court of Appeals prior to the Japanese military occupation
of Manila on January 2, 1942, had been disposed of by the latter before the restoration
of the Commonwealth Government in 1945; while almost all, if not all, appealed cases
pending on March 10, 1945, in the Court of Appeals were from judgments rendered by
the Court of First Instance during the Japanese regime.
The respondent judge quotes a portion of Wheaton's International Law which say:
"Moreover when it is said that an occupier's acts are valid and under international law
should not be abrogated by the subsequent conqueror, it must be remembered that no
crucial instances exist to show that if his acts should be reversed, any international
wrong would be committed. What does happen is that most matters are allowed to stand
by the restored government, but the matter can hardly be put further than this."
(Wheaton, International Law, War, 7th English edition of 1944, p. 245.) And from this
quotion the respondent judge "draws the conclusion that whether the acts of the
occupant should be considered valid or not, is a question that is up to the restored
government to decide; that there is no rule of international law that denies to the restored
government to decide; that there is no rule of international law that denies to the restored
government the right of exercise its discretion on the matter, imposing upon it in its
stead the obligation of recognizing and enforcing the acts of the overthrown
government."
There is doubt that the subsequent conqueror has the right to abrogate most of the acts of
the occupier, such as the laws, regulations and processes other than judicial of the
government established by the belligerent occupant. But in view of the fact that the
proclamation uses the words "processes of any other government" and not "judicial
processes" prisely, it is not necessary to determine whether or not General Douglas
MacArthur had power to annul and set aside all judgments and proceedings of the courts
during the Japanese occupation. The question to be determined is whether or not it was
his intention, as representative of the President of the United States, to avoid or nullify
them. If the proclamation had, expressly or by necessary implication, declared null and
void the judicial processes of any other government, it would be necessary for this court
to decide in the present case whether or not General Douglas MacArthur had authority
to declare them null and void. But the proclamation did not so provide, undoubtedly
because the author thereof was fully aware of the limitations of his powers as
Commander in Chief of Military Forces of liberation or subsequent conqueror.
Not only the Hague Regulations, but also the principles of international law, as they
result from the usages established between civilized nations, the laws of humanity and
the requirements of the public of conscience, constitute or from the law of nations.
(Preamble of the Hague Conventions; Westlake, International Law, 2d ed., Part II, p.
61.) Article 43, section III, of the Hague Regulations or Conventions which we have
already quoted in discussing the first question, imposes upon the occupant the obligation
to establish courts; and Article 23 (h), section II, of the same Conventions, which
prohibits the belligerent occupant "to declare . . . suspended . . . in a Court of Law the
rights and action of the nationals of the hostile party," forbids him to make any
declaration preventing the inhabitants from using their courts to assert or enforce their
civil rights. (Decision of the Court of Appeals of England in the case of
Porter vs. Fruedenburg, L.R. [1915], 1 K.B., 857.) If a belligerent occupant is required to
establish courts of justice in the territory occupied, and forbidden to prevent the
nationals thereof from asserting or enforcing therein their civil rights, by necessary
implication, the military commander of the forces of liberation or the restored
government is restrained from nullifying or setting aside the judgments rendered by said
courts in their litigation during the period of occupation. Otherwise, the purpose of these
precepts of the Hague Conventions would be thwarted, for to declare them null and void
would be tantamount to suspending in said courts the right and action of the nationals of
the territory during the military occupation thereof by the enemy. It goes without saying
that a law that enjoins a person to do something will not at the same time empower
another to undo the same. Although the question whether the President or commanding
officer of the United States Army has violated restraints imposed by the constitution and
laws of his country is obviously of a domestic nature, yet, in construing and applying
limitations imposed on the executive authority, the Supreme Court of the United States,
in the case of Ochoa, vs. Hernandez (230 U.S., 139), has declared that they "arise from
general rules of international law and from fundamental principles known wherever the
American flag flies."
In the case of Raymond vs. Thomas (91 U.S., 712), a special order issued by the officer
in command of the forces of the United States in South Carolina after the end of the
Civil War, wholly annulling a decree rendered by a court of chancery in that state in a
case within its jurisdiction, was declared void, and not warranted by the acts approved
respectively March 2, 1867 (14 Stat., 428), and July 19 of the same year (15 id., 14),
which defined the powers and duties of military officers in command of the several
states then lately in rebellion. In the course of its decision the court said; "We have
looked carefully through the acts of March 2, 1867 and July 19, 1867. They give very
large governmental powers to the military commanders designated, within the States
committed respectively to their jurisdiction; but we have found nothing to warrant the
order here in question. . . . The clearest language would be necessary to satisfy us that
Congress intended that the power given by these acts should be so exercised. . . . It was
an arbitrary stretch of authority, needful to no good end that can be imagined. Whether
Congress could have conferred the power to do such an act is a question we are not
called upon to consider. It is an unbending rule of law that the exercise of military
power, where the rights of the citizen are concerned, shall never be pushed beyond what
the exigency requires. (Mithell vs. Harmony, 13 How., 115; Warden vs. Bailey, 4
Taunt., 67; Fabrigas vs. Moysten, 1 Cowp., 161; s.c., 1 Smith's L.C., pt. 2, p. 934.)
Viewing the subject before us from the standpoint indicated, we hold that the order was
void."
It is, therefore, evident that the proclamation of General MacArthur of October 23, 1944,
which declared that "all laws, regulations and processes of any other government in the
Philippines than that of the said Commonwealth are null and void without legal effect in
areas of the Philippines free of enemy occupation and control," has not invalidated the
judicial acts and proceedings, which are not a political complexion, of the courts of
justice in the Philippines that were continued by the Philippine Executive Commission
and the Republic of the Philippines during the Japanese military occupation, and that
said judicial acts and proceedings were good and valid before and now good and valid
after the reoccupation of liberation of the Philippines by the American and Filipino
forces.
3. The third and last question is whether or not the courts of the Commonwealth, which
are the same as those existing prior to, and continued during, the Japanese military
occupation by the Philippine Executive Commission and by the so-called Republic of
the Philippines, have jurisdiction to continue now the proceedings in actions pending in
said courts at the time the Philippine Islands were reoccupied or liberated by the
American and Filipino forces, and the Commonwealth Government was restored.
Although in theory the authority the authority of the local civil and judicial
administration is suspended as a matter of course as soon as military occupation takes
place, in practice the invader does not usually take the administration of justice into his
own hands, but continues the ordinary courts or tribunals to administer the laws of the
country which he is enjoined, unless absolutely prevented, to respect. As stated in the
above-quoted Executive Order of President McKinley to the Secretary of War on May
19, 1898, "in practice, they (the municipal laws) are not usually abrogated but are
allowed to remain in force and to be administered by the ordinary tribunals substantially
as they were before the occupation. This enlightened practice is, so far as possible, to be
adhered to on the present occasion." And Taylor in this connection says: "From a
theoretical point of view it may be said that the conqueror is armed with the right to
substitute his arbitrary will for all preexisting forms of government, legislative,
executive and judicial. From the stand-point of actual practice such arbitrary will is
restrained by the provision of the law of nations which compels the conqueror to
continue local laws and institution so far as military necessity will permit." (Taylor,
International Public Law, p.596.) Undoubtedly, this practice has been adopted in order
that the ordinary pursuits and business of society may not be unnecessarily deranged,
inasmuch as belligerent occupation is essentially provisional, and the government
established by the occupant of transient character.
Following these practice and precepts of the law of nations, Commander in Chief of the
Japanese Forces proclaimed on January 3, 1942, when Manila was occupied, the
military administration under martial law over the territory occupied by the army, and
ordered that "all the laws now in force in the Commonwealth, as well as executive and
judicial institutions, shall continue to be affective for the time being as in the past," and
"all public officials shall remain in their present post and carry on faithfully their duties
as before." When the Philippine Executive Commission was organized by Order No. 1
of the Japanese Commander in Chief, on January 23, 1942, the Chairman of the
Executive Commission, by Executive Orders Nos. 1 and 4 of January 30 and February 5,
respectively, continued the Supreme Court, Court of Appeals, Court of First Instance,
and justices of the peace of courts, with the same jurisdiction in conformity with the
instructions given by the Commander in Chief of the Imperial Japanese Army in Order
No. 3 of February 20, 1942. And on October 14, 1943 when the so-called Republic of
the Philippines was inaugurated, the same courts were continued with no substantial
change in organization and jurisdiction thereof.
If the proceedings pending in the different courts of the Islands prior to the Japanese
military occupation had been continued during the Japanese military administration, the
Philippine Executive Commission, and the so-called Republic of the Philippines, it
stands to reason that the same courts, which had become reestablished and conceived of
as having in continued existence upon the reoccupation and liberation of the Philippines
by virtue of the principle of postliminy (Hall, International Law, 7th ed., p. 516), may
continue the proceedings in cases then pending in said courts, without necessity of
enacting a law conferring jurisdiction upon them to continue said proceedings. As
Taylor graphically points out in speaking of said principles "a state or other
governmental entity, upon the removal of a foreign military force, resumes its old place
with its right and duties substantially unimpaired. . . . Such political resurrection is the
result of a law analogous to that which enables elastic bodies to regain their original
shape upon removal of the external force, — and subject to the same exception in case
of absolute crushing of the whole fibre and content." (Taylor, International Public Law,
p. 615.)
The argument advanced by the respondent judge in his resolution in support in his
conclusion that the Court of First Instance of Manila presided over by him "has no
authority to take cognizance of, and continue said proceedings (of this case) to final
judgment until and unless the Government of the Commonwealth of the Philippines . . .
shall have provided for the transfer of the jurisdiction of the courts of the now defunct
Republic of the Philippines, and the cases commenced and the left pending therein," is
"that said courts were a government alien to the Commonwealth Government. The laws
they enforced were, true enough, laws of the Commonwealth prior to Japanese
occupation, but they had become the laws — and the courts had become the institutions
— of Japan by adoption (U.S. vs.Reiter. 27 F. Cases, No. 16146), as they became later
on the laws and institutions of the Philippine Executive Commission and the Republic of
the Philippines."
The court in the said case of U.S. vs. Reiter did not and could not say that the laws and
institutions of the country occupied if continued by the conqueror or occupant, become
the laws and the courts, by adoption, of the sovereign nation that is militarily occupying
the territory. Because, as already shown, belligerent or military occupation is essentially
provisional and does not serve to transfer the sovereignty over the occupied territory to
the occupant. What the court said was that, if such laws and institutions are continued in
use by the occupant, they become his and derive their force from him, in the sense that
he may continue or set them aside. The laws and institution or courts so continued
remain the laws and institutions or courts of the occupied territory. The laws and the
courts of the Philippines, therefore, did not become, by being continued as required by
the law of nations, laws and courts of Japan. The provision of Article 45, section III, of
the Hague Conventions of 1907 which prohibits any compulsion of the population of
occupied territory to swear allegiance to the hostile power, "extends to prohibit
everything which would assert or imply a change made by the invader in the legitimate
sovereignty. This duty is neither to innovate in the political life of the occupied districts,
nor needlessly to break the continuity of their legal life. Hence, so far as the courts of
justice are allowed to continue administering the territorial laws, they must be allowed
to give their sentences in the name of the legitimate sovereign " (Westlake, Int. Law,
Part II, second ed., p. 102). According to Wheaton, however, the victor need not allow
the use of that of the legitimate government. When in 1870, the Germans in France
attempted to violate that rule by ordering, after the fall of the Emperor Napoleon, the
courts of Nancy to administer justice in the name of the "High German Powers
occupying Alsace and Lorraine," upon the ground that the exercise of their powers in the
name of French people and government was at least an implied recognition of the
Republic, the courts refused to obey and suspended their sitting. Germany originally
ordered the use of the name of "High German Powers occupying Alsace and Lorraine,"
but later offered to allow use of the name of the Emperor or a compromise. (Wheaton,
International Law, War, 7th English ed. 1944, p. 244.)
Furthermore, it is a legal maxim, that excepting that of a political nature, "Law once
established continues until changed by the some competent legislative power. It is not
change merely by change of sovereignty." (Joseph H. Beale, Cases on Conflict of Laws,
III, Summary Section 9, citing Commonwealth vs. Chapman, 13 Met., 68.) As the same
author says, in his Treatise on the Conflict on Laws (Cambridge, 1916, Section 131):
"There can no break or interregnum in law. From the time the law comes into existence
with the first-felt corporateness of a primitive people it must last until the final
disappearance of human society. Once created, it persists until a change take place, and
when changed it continues in such changed condition until the next change, and so
forever. Conquest or colonization is impotent to bring law to an end; in spite of change
of constitution, the law continues unchanged until the new sovereign by legislative acts
creates a change."
As courts are creatures of statutes and their existence defends upon that of the laws
which create and confer upon them their jurisdiction, it is evident that such laws, not
being a political nature, are not abrogated by a change of sovereignty, and continue in
force "ex proprio vigore" unless and until repealed by legislative acts. A proclamation
that said laws and courts are expressly continued is not necessary in order that they may
continue in force. Such proclamation, if made, is but a declaration of the intention of
respecting and not repealing those laws. Therefore, even assuming that Japan had legally
acquired sovereignty over these Islands, which she had afterwards transferred to the so-
called Republic of the Philippines, and that the laws and the courts of these Islands had
become the courts of Japan, as the said courts of the laws creating and conferring
jurisdiction upon them have continued in force until now, it necessarily follows that the
same courts may continue exercising the same jurisdiction over cases pending therein
before the restoration of the Commonwealth Government, unless and until they are
abolished or the laws creating and conferring jurisdiction upon them are repealed by the
said government. As a consequence, enabling laws or acts providing that proceedings
pending in one court be continued by or transferred to another court, are not required by
the mere change of government or sovereignty. They are necessary only in case the
former courts are abolished or their jurisdiction so change that they can no longer
continue taking cognizance of the cases and proceedings commenced therein, in order
that the new courts or the courts having jurisdiction over said cases may continue the
proceedings. When the Spanish sovereignty in the Philippine Islands ceased and the
Islands came into the possession of the United States, the "Audiencia" or Supreme Court
was continued and did not cease to exist, and proceeded to take cognizance of the
actions pending therein upon the cessation of the Spanish sovereignty until the said
"Audiencia" or Supreme Court was abolished, and the Supreme Court created in Chapter
II of Act No. 136 was substituted in lieu thereof. And the Courts of First Instance of the
Islands during the Spanish regime continued taking cognizance of cases pending therein
upon the change of sovereignty, until section 65 of the same Act No. 136 abolished them
and created in its Chapter IV the present Courts of First Instance in substitution of the
former. Similarly, no enabling acts were enacted during the Japanese occupation, but a
mere proclamation or order that the courts in the Island were continued.
On the other hand, during the American regime, when section 78 of Act No. 136 was
enacted abolishing the civil jurisdiction of the provost courts created by the military
government of occupation in the Philippines during the Spanish-American War of 1898,
the same section 78 provided for the transfer of all civil actions then pending in the
provost courts to the proper tribunals, that is, to the justices of the peace courts, Court of
First Instance, or Supreme Court having jurisdiction over them according to law. And
later on, when the criminal jurisdiction of provost courts in the City of Manila was
abolished by section 3 of Act No. 186, the same section provided that criminal cases
pending therein within the jurisdiction of the municipal court created by Act No. 183
were transferred to the latter.
That the present courts as the same courts which had been functioning during the
Japanese regime and, therefore, can continue the proceedings in cases pending therein
prior to the restoration of the Commonwealth of the Philippines, is confirmed by
Executive Order No. 37 which we have already quoted in support of our conclusion in
connection with the second question. Said Executive Order provides"(1) that the Court
of Appeals created and established under Commonwealth Act No. 3 as amended, be
abolished, as it is hereby abolished," and "(2) that all cases which have heretofore been
duly appealed to the Court of Appeals shall be transmitted to the Supreme Court for
final decision. . . ." In so providing, the said Order considers that the Court of Appeals
abolished was the same that existed prior to, and continued after, the restoration of the
Commonwealth Government; for, as we have stated in discussing the previous question,
almost all, if not all, of the cases pending therein, or which had theretofore (that is, up to
March 10, 1945) been duly appealed to said court, must have been cases coming from
the Courts of First Instance during the so-called Republic of the Philippines. If the Court
of Appeals abolished by the said Executive Order was not the same one which had been
functioning during the Republic, but that which had existed up to the time of the
Japanese occupation, it would have provided that all the cases which had, prior to and up
to that occupation on January 2, 1942, been dully appealed to the said Court of Appeals
shall be transmitted to the Supreme Court for final decision.
It is, therefore, obvious that the present courts have jurisdiction to continue, to final
judgment, the proceedings in cases, not of political complexion, pending therein at the
time of the restoration of the Commonwealth Government.
Having arrived at the above conclusions, it follows that the Court of First Instance of
Manila has jurisdiction to continue to final judgment the proceedings in civil case No.
3012, which involves civil rights of the parties under the laws of the Commonwealth
Government, pending in said court at the time of the restoration of the said Government;
and that the respondent judge of the court, having refused to act and continue him does a
duty resulting from his office as presiding judge of that court, mandamus is the speedy
and adequate remedy in the ordinary course of law, especially taking into consideration
the fact that the question of jurisdiction herein involved does affect not only this
particular case, but many other cases now pending in all the courts of these Islands.
In view of all the foregoing it is adjudged and decreed that a writ of mandamus issue,
directed to the respondent judge of the Court of First Instance of Manila, ordering him to
take cognizance of and continue to final judgment the proceedings in civil case No. 3012
of said court. No pronouncement as to costs. So ordered.
Moran, C.J., Ozaeta, Paras, Jaranilla and Pablo, JJ., concur.
G.R. No. L-17467             April 23, 1963
NATIONAL DEVELOPMENT COMPANY, represented by its Agents, 
THE PHILIPPINE NATIONAL BANK, plaintiff-appellant, 
 vs.
JOSE YULO TOBIAS, defendant-appellee.
Appeal taken by plaintiff, National Development Company, represented by its agent,
The Philippine National Bank, from an order of the Court of First Instance of Negros
Occidental dismissing plaintiff's complaint upon the ground of prescription of action,
without special pronouncement as to costs.
In said complaint, filed on March 22, 1960, plaintiff seeks to recover from defendant,
Jose YULO TOBIAS, the sum of P6,905.81, plus interest and attorney's fees, under a
promissory note of said defendant, dated and issued on May 13, 1946, for the sum of
P7,000.00, payable "on demand after date" to the order of said plaintiff. Upon being
summoned, the defendant filed a motion to dismiss upon the ground that "the action
upon which the complaint is based has prescribed long ago," more than ten (10) years
having elapsed since May 13, 1946, when said promissory note was issued and
plaintiff's action accrued. Hence, the aforementioned order of dismissal, which plaintiff
assails as erroneous upon the theory that the statute of limitations does not run against
the plaintiff because the same is an instrumentality of the Government. In support of this
view plaintiff cites the case of the Government of the Philippine Islands vs. Monte de
Piedad (35 Phil. 738).
Plaintiffs pretense is clearly devoid of merit. The case cited is not in point, it having
been instituted by the Government of the Philippine Islands. Plaintiff herein is neither
the Government of the Republic nor a branch or subdivision thereof. It is true that
plaintiff is an instrumentality of such Government, but as this Court has held in the case
of Association Cooperative de Credito Agricola de Miagao vs. Monteclaro (74 Phil.
281), "even the Agricultural and Industrial Bank, which is a government owned and
controlled corporation and which has been created to promote agriculture and industry
on a larger scale than agriculture credit cooperative associations, cannot be said to
exercise a sovereign function. It is, like all other corporation capitalized by the
Government, a business corporation," and, as such, its causes of action are subject to the
statute of limitations. To the same effect are the cases of Monteadora vs. Cebu Portland
Cement Co. (54 O.G. 4289), Price Stabilization Corp. vs. CIR (54 O.G. 4472), GSIS vs.
Castillo (52 O.G. 4269), and Manila Hotel Employees Association vs. Manila Hotel
Co. (73 Phil. 374).
Wherefore, the parties respectfully pray that the foregoing stipulation of facts be
admitted and approved by this Honorable Court, without prejudice to the parties
adducing other evidence to prove their case not covered by this stipulation of
facts. 1äwphï1.ñët
That plaintiff herein does not exercise sovereign powers — and, hence, can not invoke
the exemptions thereof — but is an agency for the performance of purely corporate,
proprietary or business functions, is apparent from its Organic Act (Commonwealth Act
182, as amended by Commonwealth Act 311) pursuant to section 3 of which it "shall be
subject to the provisions of the Corporation Law in so far as they are not inconsistent"
with the provisions of said Commonwealth Act "and shall have the general powers
mentioned in said" Corporation Law, and, hence, "may engage in commercial,
industrial, mining, agricultural, and other enterprises which may be necessary or
contributory to the economic development of the country, or important in the public
interest," as well as "acquire, hold, mortgage, and alienate personal and real property in
the Philippines or elsewhere . . .; make contracts of any kind and description" and
"perform any and all acts which a corporation or natural person is authorized to perform
under the laws now existing or which may be enacted hereafter."
In fact, plaintiff was sentenced to pay costs in Batongbacal v. National Development
Co. (49 O.G. 229), and National Development Co. vs. CIR, L-13209 (September 30,
1959), despite the fact that "no costs shall be allowed against the Republic of the
Philippines, unless otherwise provided by Law," pursuant to Rule 131, Section 1, of the
Rules of Court.
WHEREFORE, the order appealed from is hereby affirmed, with the costs of this
instance against plaintiff-appellant.
Bengzon, C.J., Padilla, Bautista Angelo, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala
and Makalintal, JJ., concur.
Labrador, J., took no part.
G.R. No. 1051            May 19, 1903
THE UNITED STATES, complainant-appellee, 
vs.
FRED L. DORR, ET AL., defendants-appellants.
F. G. Waite for appellants.
Solicitor-General Araneta for appellee.
LADD, J.:
The defendants have been convicted upon a complaint charging them with the offense of
writing, publishing, and circulating a scurrilous libel against the Government of the
United States and the Insular Government of the Philippine Islands. The complaint is
based upon section 8 of Act No. 292 of the Commission, which is as follows:
 Every person who shall utter seditious words or speeches, write, publish, or
circulate scurrilous libels against the Government of the United States or the
Insular Government of the Philippine Islands, or which tend to disturb or
obstruct any lawful officer in executing his office, or which tend to instigate
others to cabal or meet together for unlawful purposes, or which suggest or
incite rebellious conspiracies or riots, or which tend to stir up the people against
the lawful authorities, or to disturb the peace of the community, the safety and
order of the Government, or who shall knowingly conceal such evil practices,
shall be punished by a fine not exceeding two thousand dollars or by
imprisonment not exceeding two years, or both, in the discretion of the court.
The alleged libel was published as an editorial in the issue of the "Manila Freedom" of
April 6, 1902, under the caption of "A few hard facts."
The Attorney-General in his brief indicates the following passages of the article as those
upon which he relies to sustain the conviction:
Sidney Adamson, in a late letter in "Leslie's Weekly," has the following to say
of the action of the Civil Commission in appointing rascally natives to important
Government positions:
"It is a strong thing to say, but nevertheless true, that the Civil
Commission, through its ex-insurgent office holders, and by its
continual disregard for the records of natives obtained during the
military rule of the Islands, has, in its distribution of offices, constituted
a protectorate over a set of men who should be in jail or deported. . . .
[Reference is then made to the appointment of one Tecson as justice of
the peace.] This is the kind of foolish work that the Commission is
doing all over the Islands, reinstating insurgents and rogues and turning
down the men who have during the struggle, at the risk of their lives,
aided the Americans."
x x x           x x x          x x x
There is no doubt but that the Filipino office holders of the Islands are in a good
many instances rascals.
x x x           x x x          x x x
The commission has exalted to the highest positions in the Islands Filipinos who
are alleged to be notoriously corrupt and rascally, and men of no personal
character.
x x x           x x x          x x x
Editor Valdez, of "Miau," made serious charges against two of the native
Commissioners — charges against Trinidad H. Pardo de Tavera, which, if true, would
brand the man as a coward and a rascal, and with what result? . . . [Reference is then
made to the prosecution and conviction of Valdez for libel "under a law which specifies
that the greater the truth the greater the libel."] Is it the desire of the people of the United
States that the natives against whom these charges have been made (which, if true,
absolutely vilify their personal characters) be permitted to retain their seats on the Civil
Commission, the executive body of the Philippine Government, without an
investigation?
x x x           x x x          x x x
It is a notorious fact that many branches of the Government organized by the
Civil Commission are rotten and corrupt. The fiscal system, upon which life,
liberty, and justice depends, is admitted by the Attorney-General himself to be
most unsatisfactory. It is a fact that the Philippine judiciary is far from being
what it should. Neither fiscals nor judges can be persuaded to convict insurgents
when they wish to protect them.
x x x           x x x          x x x
Now we hear all sorts of reports as to rottenness existing in the province [of
Tayabas], and especially the northern end of it; it is said that it is impossible to
secure the conviction of lawbreakers and outlaws by the native justices, or a
prosecution by the native fiscals.
x x x           x x x          x x x
The long and short of it is that Americans will not stand for an arbitrary
government, especially when evidences of carpetbagging and rumors of graft
are too thick to be pleasant.
We do not understand that it is claimed that the defendants succeeded in establishing at
the trial the truth of any of the foregoing statements. The only question which we have
considered is whether their publication constitutes an offense under section 8 of Act No.
292, above cited.
Several allied offenses or modes of committing the same offense are defined in that
section, viz: (1) The uttering of seditious words or speeches; (2) the writing, publishing,
or circulating of scurrilous libels against the Government of the United States or the
Insular Government of the Philippine Islands; (3) the writing, publishing, or circulating
of libels which tend to disturb or obstruct any lawful officer in executing his office; (4)
or which tend to instigate others to cabal or meet together for unlawful purposes; (5) or
which suggest or incite rebellious conspiracies or riots; (6) or which tend to stir up the
people against the lawful authorities or to disturb the peace of the community, the safety
and order of the Government; (7) knowingly concealing such evil practices.
The complaint appears to be framed upon the theory that a writing, in order to be
punishable as a libel under this section, must be of a scurrilous nature and directed
against the Government of the United States or the Insular Government of the Philippine
Islands, and must, in addition, tend to some one of the results enumerated in the section.
The article in question is described in the complaint as "a scurrilous libel against the
Government of the United States and the Insular Government of the Philippine Islands,
which tends to obstruct the lawful officers of the United States and the Insular
Government of the Philippine Islands in the execution of their offices, and which tends
to instigate others to cabal and meet together for unlawful purposes, and which suggests
and incites rebellious conspiracies, and which tends to stir up the people against the
lawful authorities, and which disturbs the safety and order of the Government of the
United States and the Insular Government of the Philippine Islands." But it is "a well-
settled rule in considering indictments that where an offense may be committed in any
of several different modes, and the offense, in any particular instance, is alleged to have
been committed in two or more modes specified, it is sufficient to prove the offense
committed in any one of them, provided that it be such as to constitute the substantive
offense" (Com. vs. Kneeland, 20 Pick., Mass., 206, 215), and the defendants may,
therefore, be convicted if any one of the substantive charges into which the complaint
may be separated has been made out.
We are all, however, agreed upon the proposition that the article in question has no
appreciable tendency to "disturb or obstruct any lawful officer in executing his office,"
or to "instigate" any person or class of persons "to cabal or meet together for unlawful
purposes," or to "suggest or incite rebellious conspiracies or riots," or to "stir up the
people against the lawful authorities or to disturb the peace of the community, the safety
and order of the Government." All these various tendencies, which are described in
section 8 of Act No. 292, each one of which is made an element of a certain form of
libel, may be characterized in general terms as seditious tendencies. This is recognized
in the description of the offenses punished by this section, which is found in the title of
the act, where they are defined as the crimes of the "seditious utterances, whether
written or spoken."
Excluding from consideration the offense of publishing "scurrilous libels against the
Government of the United States or the Insular Government of the Philippine Islands,"
which may conceivably stand on a somewhat different footing, the offenses punished by
this section all consist in inciting, orally or in writing, to acts of disloyalty or
disobedience to the lawfully constituted authorities in these Islands. And while the
article in question, which is, in the main, a virulent attack against the policy of the Civil
Commission in appointing natives to office, may have had the effect of exciting among
certain classes dissatisfaction with the Commission and its measures, we are unable to
discover anything in it which can be regarded as having a tendency to produce anything
like what may be called disaffection, or, in other words, a state of feeling incompatible
with a disposition to remain loyal to the Government and obedient to the laws. There
can be no conviction, therefore, for any of the offenses described in the section on which
the complaint is based, unless it is for the offense of publishing a scurrilous libel against
the Government of the of the United States or the Insular Government of the Philippine
Islands.
Can the article be regarded as embraced within the description of "scurrilous libels
against the Government of the United States or the Insular Government of the Philippine
Islands?" In the determination of this question we have encountered great difficulty, by
reason of the almost entire lack of American precedents which might serve as a guide in
the construction of the law. There are, indeed, numerous English decisions, most of
them of the eighteenth century, on the subject of libelous attacks upon the "Government,
the constitution, or the law generally," attacks upon the Houses of Parliament, the
Cabinet, the Established Church, and other governmental organisms, but these decisions
are not now accessible to us, and, if they were, they were made under such different
conditions from those which prevail at the present day, and are founded upon theories of
government so foreign to those which have inspired the legislation of which the
enactment in question forms a part, that they would probably afford but little light in the
present inquiry. In England, in the latter part of the eighteenth century, any "written
censure upon public men for their conduct as such," as well as any written censure
"upon the laws or upon the institutions of the country," would probably have been
regarded as a libel upon the Government. (2 Stephen, History of the Criminal Law of
England, 348.) This has ceased to be the law in England, and it is doubtful whether it
was ever the common law of any American State. "It is true that there are ancient dicta
to the effect that any publication tending to "possess the people with an ill opinion of the
Government" is a seditious libel ( per Holt, C. J., in R. vs. Tuchin, 1704, 5 St. Tr., 532,
and Ellenborough, C. J., in R. vs. Cobbett, 1804, 29 How. St. Tr., 49), but no one would
accept that doctrine now. Unless the words used directly tend to foment riot or rebellion
or otherwise to disturb the peace and tranquility of the Kingdom, the utmost latitude is
allowed in the discussion of all public affairs." (11 Enc. of the Laws of England, 450.)
Judge Cooley says (Const. Lim., 528): "The English common law rule which made
libels on the constitution or the government indictable, as it was administered by the
courts, seems to us unsuited to the condition and circumstances of the people of
America, and therefore never to have been adopted in the several States."
We find no decisions construing the Tennessee statute (Code, sec. 6663), which is
apparently the only existing American statute of a similar character to that in question,
and from which much of the phraseology of then latter appears to have been taken,
though with some essential modifications.
The important question is to determine what is meant in section 8 of Act No. 292 by the
expression "the Insular Government of the Philippine Islands." Does it mean in a general
and abstract sense the existing laws and institutions of the Islands, or does it mean the
aggregate of the individuals by whom the government of the Islands is, for the time
being, administered? Either sense would doubtless be admissible.
We understand, in modern political science, . . . by the term government, that institution
or aggregate of institutions by which an independent society makes and carries out those
rules of action which are unnecessary to enable men to live in a social state, or which are
imposed upon the people forming that society by those who possess the power or
authority of prescribing them. Government is the aggregate of authorities which rule a
society. By "dministration, again, we understand in modern times, and especially in
more or less free countries, the aggregate of those persons in whose hands the reins of
government are for the time being (the chief ministers or heads of departments)."
(Bouvier, Law Dictionary, 891.) But the writer adds that the terms "government" and
"administration" are not always used in their strictness, and that "government" is often
used for "administration."
In the act of Congress of July 14, 1798, commonly known as the "Sedition Act," it is
made an offense to "write, print, utter, or published," or to "knowingly and willingly
assist or aid in writing, printing, uttering, or publishing any false, scandalous, and
malicious writing or writings against the Government of the United States, or either
House of the Congress of the United States, or the President of the United States, with
intent to defame the said Government, or either House of the said Congress, or the said
President, or to bring them, or either of them, into contempt or disrepute, or to excite
against them or either or any of them the hatred of the good people of the United States,"
etc. The term "government" would appear to be used here in the abstract sense of the
existing political system, as distinguished from the concrete organisms of the
Government — the Houses of Congress and the Executive — which are also specially
mentioned.
Upon the whole, we are of the opinion that this is the sense in which the term is used in
the enactment under consideration.
It may be said that there can be no such thing as a scurrilous libel, or any sort of a libel,
upon an abstraction like the Government in the sense of the laws and institutions of a
country, but we think an answer to this suggestion is that the expression "scurrilous
libel" is not used in section 8 of Act No. 292 in the sense in which it is used in the
general libel law (Act No. 277) — that is, in the sense of written defamation of
individuals — but in the wider sense, in which it is applied in the common law to
blasphemous, obscene, or seditious publications in which there may be no element of
defamation whatever. "The word 'libel' as popularly used, seems to mean only
defamatory words; but words written, if obscene, blasphemous, or seditious, are
technically called libels, and the publication of them is, by the law of England, an
indictable offense." (Bradlaugh vs. The Queen, 3 Q. B. D., 607, 627, per Bramwell L. J.
See Com. vs. Kneeland, 20 Pick., 206, 211.)
While libels upon forms of government, unconnected with defamation of individuals,
must in the nature of things be of uncommon occurrence, the offense is by no means an
imaginary one. An instance of a prosecution for an offense essentially of this nature is
Republica vs. Dennie, 4 Yeates (Pa.), 267, where the defendant was indicted "as a
factious and seditious person of a wicked mind and unquiet and turbulent disposition
and conversation, seditiously, maliciously, and willfully intending, as much as in him
lay, to bring into contempt and hatred the independence of the United States, the
constitution of this Commonwealth and of the United States, to excite popular discontent
and dissatisfaction against the scheme of polity instituted, and upon trial in the said
United States and in the said Commonwealth, to molest, disturb, and destroy the peace
and tranquility of the said United States and of the said Commonwealth, to condemn the
principles of the Revolution, and revile, depreciate, and scandalize the characters of the
Revolutionary patriots and statesmen, to endanger, subvert, and totally destroy the
republican constitutions and free governments of the said United States and this
Commonwealth, to involve the said United States and this Commonwealth in civil war,
desolation, and anarchy, and to procure by art and force a radical change and alteration
in the principles and forms of the said constitutions and governments, without the free
will, wish, and concurrence of the people of the said United States and this
Commonwealth, respectively," the charge being that "to fulfill, perfect, and bring to
effect his wicked, seditious, and detestable intentions aforesaid he . . . falsely,
maliciously, factiously, and seditiously did make, compose, write, and publish the
following libel, to wit; 'A democracy is scarcely tolerable at any period of national
history. Its omens are always sinister and its powers are unpropitious. With all the lights
or experience blazing before our eyes, it is impossible not to discover the futility of this
form of government. It was weak and wicked at Athens, it was bad in Sparta, and worse
in Rome. It has been tried in France and terminated in despotism. it was tried in England
and rejected with the utmost loathing and abhorrence. It is on its trial here and its issue
will be civil war, desolation, and anarchy. No wise man but discerns its imperfections;
no good man but shudders at its miseries; no honest man but proclaims its fraud, and no
brave man but draws his sword against its force. The institution of a scheme of polity so
radically contemptible and vicious is a memorable example of what the villainy of some
men can devise, the folly of others receive, and both establish, in despite of reason,
reflection, and sensation.'"
An attack upon the lawfully established system of civil government in the Philippine
Islands, like that which Dennie was accused of making upon the republican form of
government lawfully established in the United States and in the State of Pennsylvania
would, we think, if couched in scandalous language, constitute the precise offense
described in section 8 of Act No. 292 as a scurrilous libel against the Insular
Government of the Philippine Islands.
Defamation of individuals, whether holding official positions or not, and whether
directed to their public conduct or to their private life, may always be adequately
punished under the general libel law. Defamation of the Civil Commission as an
aggregation, it being "a body of persons definite and small enough for its individual
members to be recognized as such" (Stephen, Digest of the Criminal Law, art. 277), as
well as defamation of any of the individual members of the Commission or of the Civil
Governor, either in his public capacity or as a private individual, may be so punished.
The general libel law enacted by the Commission was in force when Act No. 292, was
passed. There was no occasion for any further legislation on the subject of libels against
the individuals by whom the Insular Government is administered — against the Insular
Government in the sense of the aggregate of such individuals. There was occasion for
stringent legislation against seditious words or libels, and that is the main if not the sole
purpose of the section under consideration. It is not unreasonable to suppose that the
Commission, in enacting this section, may have conceived of attacks of a malignant or
scurrilous nature upon the existing political system of the United States, or the political
system established in these Islands by the authority of the United States, as necessarily
of a seditious tendency, but it is not so reasonable to suppose that they conceived of
attacks upon the personnel of the government as necessarily tending to sedition. Had this
been their view it seems probable that they would, like the framers of the Sedition Act of
1798, have expressly and specifically mentioned the various public officials and
collegiate governmental bodies defamation of which they meant to punish as sedition.
The article in question contains no attack upon the governmental system of the United
States, and it is quite apparent that, though grossly abusive as respects both the
Commission as a body and some of its individual members, it contains no attack upon
the governmental system by which the authority of the United States is enforced in these
Islands. The form of government by a Civil Commission and a Civil Governor is not
assailed. It is the character of the men who are intrusted with the administration of the
government that the writer is seeking to bring into disrepute by impugning the purity of
their motives, their public integrity, and their private morals, and the wisdom of their
policy. The publication of the article, therefore, no seditious tendency being apparent,
constitutes no offense under Act No. 292, section 8.
The judgment of conviction is reversed and the defendants are acquitted, with costs de
oficio.
Arellano, C.J. Torres, Willard and Mapa, JJ., concur.
G.R. No. L-49            November 12, 1945
WILLIAM F. PERALTA, petitioner, 
vs.
THE DIRECTOR OF PRISONS, respondent.
William F. Peralta in his own behalf.
Office of the Solicitor General Tañada for respondent.
City Fiscal Mabanag as amicus curiae.
FERIA, J.:
Petitioner-defendant, a member of the Metropolitan Constabulary of Manila charged
with the supervision and control of the production, procurement and distribution of
goods and other necessaries as defined in section 1 of Act No. 9 of the National
Assembly of the so-called Republic of the Philippines, was prosecuted for the crime of
robbery as defined and penalized by section 2 (a) of Act No. 65 of the same Assembly.
He was found guilty and sentenced to life imprisonment, which he commenced to serve
on August 21, 1944, by the Court of Special and Exclusive Criminal Jurisdiction,
created in section 1 of Ordinance No. 7 promulgated by the President of the so-called
Republic of the Philippines, pursuant to the authority conferred upon him by the
Constitution and laws of the said Republic. And the procedure followed in the trial was
the summary one established in Chapter II of Executive Order No. 157 of the Chairman
of the Executive Commission, made applicable to the trial violations of said Act No. 65
by section 9 thereof and section 5 of said Ordinance No. 7.
The petition for habeas corpus is based on the ground that the Court of Special and
Executive Criminal Jurisdiction created by Ordinance No. 7 "was a political
instrumentality of the military forces of the Japanese Imperial Army, the aims and
purposes of which are repugnant to those aims and political purposes of the
Commonwealth of the Philippines, as well as those of the United States of America, and
therefore, null and void ab initio," that the provisions of said Ordinance No. 7 are
violative of the fundamental laws of the Commonwealth of the Philippines and "the
petitioner has been deprived of his constitutional rights"; that the petitioner herein is
being punished by a law created to serve the political purpose of the Japanese Imperial
Army in the Philippines, and "that the penalties provided for are much (more) severe
than the penalties provided for in the Revised Penal Code."
The Solicitor General, in his answer in behalf of the respondent, states that, in his own
opinion, for the reasons expressed in his brief in the case of People of the Philippines,
plaintiff-appellant, vs. Benedicto Jose y Santos, defendant-appellee, G. R. No. L-22 (p.
612, post), the acts and proceedings taken and had before the said Court of Special and
Exclusive Criminal Jurisdiction which resulted in the conviction and imprisonment of
the herein petitioner, should now be denied force and efficacy, and therefore the petition
for habeas corpus should be granted. The reasons advanced by the Solicitor General in
said brief and in his reply memorandum in support of his contention are, that the Court
of Special and Exclusive Criminal Jurisdiction created, and the summary procedure
prescribed therefor, by said Ordinance No. 7 in connection with Executive Order No.
157 of the Chairman of the Executive Commission are tinged with political complexion;
that the procedure prescribed in Ordinance No. 7 does not afford a fair trial, violates the
Constitution of the Commonwealth, and impairs the Constitutional rights of accused
persons under their legitimate Constitution. And he cites, in support of this last
proposition, the decisions of the Supreme Court of the United States in the cases of
Texas vs. White (7 Wall., 700, 743); Horn vs. Lockart (17 Wall., 570, 581); United
States vs. Home Insurance Co. (22 Wall., 99, 104); Sprott vs. United States (20 Wall.,
459).
The City Fiscal of Manila appeared before this Court as amicus curiae. In his
memorandum he submits that the petition for habeas corpus be denied on the following
grounds: That the Court of Special and Exclusive Criminal Jurisdiction and the Acts,
Ordinances and Executive Orders, creating it are not of a political complexion, for said
Court was created, and the crimes and offenses placed under its jurisdiction were
penalized heavily, in response to an urgent necessity, according to the preamble of
Ordinance No. 7; that the right to appeal in a criminal case is not a constitutional right;
and that the summary procedure established in said Ordinance No. 7 is not violative of
the provision of Article III, section 1 (18) of the Constitution of the Commonwealth, to
the effect that no person shall be compelled to be a witness against himself, nor of the
provision of section 1 (1) of the same Article that no person shall be deprived of life,
liberty, or property without due process of law.
The features of the summary procedure adopted by Ordinance No. 7, assailed by the
petitioner and the Solicitor General as impairing the constitutional rights of an accused
are: that court may interrogate the accused and witnesses before trial in order to clarify
the points in dispute; that the refusal of the accused to answer the questions may be
considered unfavorable to him; that if from the facts admitted at the preliminary
interrogatory it appears that the defendant is guilty, he may be immediately convicted;
and that the sentence of the sentence of the court is not appealable, except in case of
death penalty which cannot be executed unless and until reviewed and affirmed by a
special division of the Supreme Court composed of three Justices.
Before proceeding further, and in order to determine the law applicable to the questions
involved in the present case, it is necessary to bear in mind the nature and status of the
government established in these Islands by the Japanese forces of occupation under the
designation of Republic of the Philippines.
In the case of Co Kim Cham vs. Valdez Tan Keh and Dizon (G. R. No. L-5, pp. 113,
127, ante), recently decided, this Court, speaking through the Justice who pens this
decision, held:
In view of the foregoing, it is evident that the Philippines Executive
Commission, which was organized by Order No. 1, issued on January 23, 1942,
by the Commander of the Japanese forces, was a civil government established
by the military forces of occupation and therefore a de facto government of the
second kind. It was not different from the government established by the British
in Castine, Maine, or by the United States in Tanpico, Mexico. As Halleck says,
"the government established over an enemy's territory during the military
occupation may exercise all the powers given by the laws of war to the
conqueror over the conquered, and is subject to all restrictions which that code
imposes. It is of little consequence whether such government be called a
military or civil government. Its character is the same and the source of its
authority the same. In either case it is a government imposed by the laws of war
and so far as it concerns the inhabitants of such territory or the rest of the world
 those laws alone determine the legality or illegality of its acts." (vol. 2 p. 466.)
The fact that the Philippine Executive Commission was a civil and not a military
government and was run by Filipinos and not by Japanese nationals is of no
consequence.
And speaking of the so-called Republic of the Philippines in the same decision, this
Court said:
The so-called Republic of the Philippines, apparently established and organized
as a sovereign state independent from any other government by the Filipino
people, was, in truth and reality, a government established by the belligerent
occupant or the Japanese forces of occupation. It was of the same character as
the Philippine Executive Commission, and the ultimate source of its authority
was the same — the Japanese military authority and government. As General
MacArthur stated in his proclamation of October 23, 1944, a portion of which
has been already quoted, "under enemy duress, a so-called government styled as
the 'Republic of the Philippines' was established on October 14, 1943, based
upon neither the free expression of the peoples" will nor the sanction of the
Government of the United States.' Japan had no legal power to grant
independence to the Philippines or transfer the sovereignty of the United States
to, or recognize the latent sovereignty of the Filipino people, before its military
occupation and possession of the Islands had matured into an absolute and
permanent dominion or sovereignty by a treaty of peace or other means
recognized in the law of nations.
As the so-called Republic of the Philippines was a de facto government of the second
kind (of paramount force), as the government established in Castine, Maine, during its
occupation by the British forces and as that of Tampico, Mexico, occupied during the
war with that the country by the United State Army, the question involved in the present
case cannot be decided in the light of the Constitution of the Commonwealth
Government; because the belligerent occupant was totally independent of the
constitution of the occupied territory in carrying out the administration over said
territory; and the doctrine laid down by the Supreme Court of the United States in the
cases involving the validity of judicial and legislative acts of the Confederate States,
considered as de facto governments of the third kind, does not apply to the acts of the
so-called Republic of the Philippines which is a de facto government of paramount
force. The Constitution of the so-called Republic of the Philippines can neither be
applied, since the validity of an act of a belligerent occupant cannot be tested in the light
of another act of the same occupant, whose criminal jurisdiction is drawn entirely from
the law martial as defined in the usages of nations.
In the case of United States vs. Rice (4 Wheaton, 246), the Supreme Court of the United
States held that, by the military occupation of Castine, Maine, the sovereignty of the
United States in the territory was, of course, suspended, and the laws of the United
States could no longer be rightfully enforced there or be obligatory upon the inhabitants
who remained and submitted to the belligerent occupant. By the surrender the
inhabitants passed under a temporary allegiance to the British government, and were
bound by such laws, and such only, as it chose to recognize and impose. And
Oppenheim, in his Treatise on International Law, says that, in carrying out the
administration over the occupied territory and its inhabitants, "the (belligerent) occupant
is totally independent of the constitution and the laws of the territory, since occupation
is an aim of warfare, and the maintenance and safety of his forces, and the purpose of
war, stand in the foreground of his interest and must be promoted under all
circumstances or conditions. (Vol. II, Sixth Edition, Revised, 1944, p. 342.)
The doctrine laid down in the decisions of the Supreme Court of the United States (in
the cases of Texas vs. White, 7 Wall., 700; Horn vs. Lockart, 17 Wall., 570;
Williams vs. Bruffy, 96 U. S., 176 United States vs. Home Insurance Co., 20 Wall., 249;
Sprott vs. United States, 20 Wall., 459, and others) that the judicial and legislative acts
of the Confederate States which impaired the rights of the citizens under the
Constitution of the United States or of the States, or were in conflict with those
constitutions, were null and void, is not applicable to the present case. Because that
doctrine rests on the propositions that "the concession (of belligerency) made to the
Confederate Government . . . sanctioned no hostile legislation . . . and it impaired in no
respect the rights of loyal and citizens as they existed at the commencement of
hostilities" (Williams vs. Bruffy, supra);that the Union is perpetual and indissoluble, and
the obligation of allegiance to the to the estate and obedience to her laws and the estate
constitution, subject to the Constitution of the United States, remained unimpaired
during the War of Secession (Texas vs. White, supra) and that the Confederate States "in
most, if not in all instances, merely transferred the existing state organizations to the
support of a new and different national head. the same constitution, the same laws for
the protection of the property and personal rights remained and were administered by the
same officers." (Sprott vs. United States, supra). In fine, because in the case of the
Confederate States, the constitution of each state and that of the United States or the
Union continued in force in those states during the War of Secession; while the
Constitution of the Commonwealth Government was suspended during the occupation
of the Philippines by the Japanese forces of the belligerent occupant at regular war with
the United States.
The question which we have to resolve in the present case in the light of the law of
nations are, first, the validity of the creation of the Court of Special and Exclusive
Criminal Jurisdiction, and of the summary procedure adopted for that court; secondly,
the validity of the sentence which imprisonment during the Japanese military
occupation; and thirdly, if they were then valid, the effect on said punitive sentence of
the reoccupation of the Philippines and the restoration therein of the Commonwealth
Government.
(1) As to the validity of the creation of the Court of Special and Exclusive Criminal
Jurisdiction by Ordinance No. 7, the only factor to be considered is the authority of the
legislative power which promulgated said law or ordinance. It is well established in
International Law that "The criminal jurisdiction established by the invader in the
occupied territory finds its source neither in the laws of the conquering or conquered
state, — it is drawn entirely form the law martial as defined in the usages of nations. The
authority thus derived can be asserted either through special tribunals, whose authority
and procedure is defined in the military code of the conquering state, or through the
ordinary courts and authorities of the occupied district." (Taylor, International Public
Law, p. 598.) The so-called Republic of the Philippines, being a governmental
instrumentality of the belligerent occupant, had therefore the power or was competent to
create the Court of Special and Exclusive Criminal Jurisdiction. No question may arise
as to whether or not a court is of political complexion, for it is mere a governmental
agency charged with the duty of applying the law to cases falling within its jurisdiction.
Its judgments and sentences may be of political complexion, or not depending upon the
nature or character of the law so applied. There is no room for doubt, therefore, as to the
validity of the creation of the court in question.
With respect to the Summary procedure adopted by Ordinance No. 7, and followed in
the trial of the case which resulted in the conviction of the herein petitioner, there is also
no question as to the power or competence of the belligerent occupant to promulgate the
law providing for such procedure. For "the invader deals freely with the relations of the
inhabitants of the occupied territory towards himself . . . for his security also, he declares
certain acts, not forbidden by the ordinary laws of the country, to be punishable; and he
so far suspends the laws which guard personal liberty as is required for the summary
punishment of any one doing such acts." (Hall's International Law, seventh ed., p. 5000).
A belligerent "occupant may where necessary, set up military courts instead of the
ordinary courts; and in case, and in so far as, he admits the administration of justice by
the ordinary courts, he may nevertheless, so far as is necessary for military purposes, or
for the maintenance of public order and safety temporarily alter the laws, especially the
Criminal Law, on the basis of which justice is administered as well as the laws
regarding procedure." (Oppenheim's International Law, Vol. II, sixth edition, 1944,
p.349.)
No objection can be set up to the legality of its provisions in the light of the precepts of
our Commonwealth Constitution relating to the rights of accused under that
Constitution, because the latter was not in force during the period of the Japanese
military occupation, as we have already stated. Nor may said Constitution be applied
upon its revival at the time of the re-occupation of the Philippines by virtue of the
principle of postliminium because "a constitution should operate prospectively only,
unless the words employed show a clear intention that it should have a retrospective
effect" (Cooley's Constitutional Limitations, seventh edition, page 97, and cases quoted
and cited in the footnote), especially as regards laws of procedure applied to cases
already terminated completely.
The only restrictions or limitations imposed upon the power of a belligerent occupant to
alter the laws or promulgate new ones, especially the criminal law as well as the laws
regarding procedure, so far as it is necessary for military purposes, that is, for his control
of the territory and the safety and protection of his army, are those imposed by the
Hague Regulations, the usages established by civilized nations, the laws of humanity
and the requirements of public conscience. It is obvious that the summary procedure
under consideration does not violate those precepts. It cannot be considered as violating
the laws of humanity and public conscience, for it is less objectionable, even from the
point of view of those who are used to the accusatory system of criminal procedure than
the procedural laws based on the semi-inquisitorial or mixed system prevailing in France
and other countries in continental Europe.
(2) The validity of the sentence rendered by the Court of Special and Exclusive Criminal
Jurisdiction which imposes life imprisonment upon the herein petitioner, depends upon
the competence or power of the belligerent occupant to promulgate Act No. 65 which
punishes the crime of which said petitioner was convicted.
Westlake says that Article XLIII, Section III, of the Hague Conventions of 1907
"indicates that the laws to be enforced by the occupant consist of, first, the territorial law
in general, as that which stands to the public order and social and commercial life of the
district in a relation of mutual adaptation, so that any needless displacement of it would
defeat the object which the invader is enjoined to have in view, and secondly, such
variations of the territorial law as may be required by real necessity and are not
expressly prohibited by any of the rules which will come before us. Such variations will
naturally be greatest in what concerns the relation of the communities and individuals
within the district to the invading army and its followers, it being necessary for the
protection of the latter, and for the unhindered prosecution of the war by them, that acts
committed to their detriment shall not only lose what justification the territorial law
might give them as committed against enemies, but shall be repressed more severely
than the territorial law would repress acts committed against fellow subjects. Indeed the
entire relation between the invaders and the invaded, so far as it may fall within the
criminal department whether by the intrinsic nature of the acts done or in consequence
of the regulations made by the invaders, may be considered as taken out of the territorial
law and referred to what is called martial law." (Westlake, International Law, Part II,
War, p. 96.)
According to Hyde (International Law, Vol. II, p. 386), the term "martial law," in so far
as it is used to describe any fact in relation to belligerent occupation, does not refer to a
particular code or system of law, or to a special agency entrusted with its administration.
The term merely signifies that the body of law actually applied, having the sanction of
military authority, is essentially martial. All law, by whomsoever administered, in an
occupied district martial law; and it is none the less so when applied by civil courts in
matters devoid of special interest to the occupant. The words "martial law" are doubtless
suggestive of the power of the occupant to share the law as he sees fit; that is, to
determine what shall be deemed lawful or unlawful acts, to establish tests for
ascertaining the guilt of offenders, to fix penalties, and generally to administer justice
through such agencies as the found expedient.
And the United States Rules of Land Warfare provide that the belligerent occupant may
promulgate such new laws and regulations as military necessity demands, and in this
class will be included those laws which come into being as a result of military rule; that
is, those which establish new crimes and offenses incident to a state of war and are
necessary for the control of the country and the protection of the army, for the principal
object of the occupant is to provide for the security of the invading army and to
contribute to its support and efficiency and the success of its operations. (Pub. 1940, pp.
76, 77.)
From the above it appears clear that it was within the power and competence of the
belligerent occupant to promulgate, through the National Assembly of the so-called
Republic of the Philippines, Act No. 65 of the said Assembly, which penalizes the
crimes of robbery and other offenses by imprisonment ranging from the maximum
period of the imprisonment prescribed by the laws and ordinances promulgated by the
President of the so-called Republic as minimum, to life imprisonment or death as
maximum. Although these crimes are defined in the Revised Penal Code, they were
altered and penalized by said Act No. 65 with different and heavier penalties, as new
crimes and offenses demanded by military necessity, incident to a state of war, and
necessary for the control of the country by the belligerent occupant, the protection and
safety of the army of occupation, its support and efficiency, and the success of its
operations.
They are not the same ordinary offenses penalized by the Revised Penal Code. — The
criminal acts penalized by said Act No. 65 are those committed by persons charged or
connected with the supervision and control of the production, procurement and
distribution of foods and other necessaries; and the penalties imposed upon the violators
are different from and much heavier than those provided by the Revised Penal Code for
the same ordinary crimes. The acts penalized by said Act were taken out of the territorial
law or Revised Penal Code, and referred to what is called martial law by international
jurists, defined above by Hyde, in order, not only to prevent food and other necessaries
from reaching the "guerrillas" which were harassing the belligerent occupant from every
nook and corner of the country, but also to preserve the food supply and other
necessaries in order that, in case of necessity, the Imperial Japanese forces could easily
requisition them, as they did, and as they had the right to do in accordance with the law
of nations for their maintenance and subsistence (Art. LII, Sec. III, Hague Conventions
of 1907). Especially taking into consideration the fact, of which this court may take
judicial notice, that the Imperial Japanese Army had depended mostly for their supply
upon the produce of this country.
The crimes penalized by Act No. 65 — as well as the crimes against national security
and the law of nations, to wit: treason, espionage, inciting war, violation of neutrality,
correspondence with hostile country, flight to enemy's country, piracy; and the crimes
against public order, such as rebellion, sedition and disloyalty, illegal possession of
firearms and other, penalized by Ordinance No. 7 and placed under jurisdiction of the
Court of Special and Exclusive Criminal Jurisdiction — are all of a political
complexion, because the acts constituting those offenses were punished, as are all
political offenses, for public rather than private reasons, and were acts in aid or favor of
the enemy and against the welfare, safety and security of the belligerent occupant. While
it is true that these offenses, when committed against the Commonwealth or United
States Government, are defined and also penalized by the territorial law Revised Penal
Code, they became inapplicable as crimes against the occupier upon the occupation of
the Islands by the Japanese forces. And they had to be taken out of the territorial law and
made punishable by said Ordinance No. 7, for they were not penalized before under the
Revised Penal Code when committed against the belligerent occupant or the government
established by him in these Island. They are also considered by some writers as war
crimes in a broad sense. In this connection Wheaton observes the following:
"Of 'war crimes' the number is naturally indefinite, depending as they do on the acts
from time to time ordered to be done or forbidden to be done in the martial law
proclamation or regulations of the invading or occupying commander. Thus, in the
Anglo-Boer war, the British military authorities proclaimed the following to be offenses
against their martial law; — Being in possession of arms, ammunition, etc.; traveling
without a permit; sending prohibited goods; holding meetings other than those allowed;
using seditious language; spreading alarmist reports; overcharging for goods; wearing
uniforms without due authority; going out of doors between certain hours; injuring
military animals or stores; being in possession, without a permit, of horses, vehicles,
cycles, etc.; hindering those in execution of military orders; trespassing on defense
works. Such offenses, together with several others, were specified in the Japanese
regulations made in the Russo-Japanese war." (Wheaton's International Law, War,
seventh edition, 1944, p. 242.)
It is, therefore, evident that the sentence rendered by the Court of Special and Exclusive
Criminal Jurisdiction against the petitioner, imposing upon him the penalty of life
imprisonment, was good and valid, since it was within the admitted power or
competence of the belligerent occupant to promulgate the law penalizing the crime of
which petitioner was convicted.
(3) The last question is the legal effect of the reoccupation of the Philippines and
restoration of the Commonwealth Government; that is whether or not, by the principle
of postliminy, the punitive sentence which petitioner is now serving fell through or
ceased to be valid from that time.
In order to resolve this last question, it is not necessary to enter into an elaborate
discussion on the matter. It is sufficient to quote the opinion on the subject of several
international jurists and our recent decision in the case of Co Kim Cham vs. Valdez Tan
Keh and Dizon, supra.
Hall, commenting on the effect of the principle of postliminy upon sentences of the
tribunals continued or created by the belligerent occupant, opines "that judicial acts done
under this control, when they are not of a political complexion, administrative acts so
done, to the extent that they take effect during the continuance of his control, and the
various acts done during the same time by private persons under the sanction of
municipal law, remain good. . . . Political acts on the other hand fall through as of
course, whether they introduce any positive change into the organization of the country,
or whether they only suspend the working of that already in existence. The execution
also of punitive sentences ceases as of course when they have had reference to acts not
criminal by the municipal law of the state, such for example as acts directed against the
security or control of the invader." (Hall's International Law, seventh edition, p. 518.)
Westlake, speaking of the duration of the validity of punitive sentences for offenses such
as the one in question, which is within the admitted power or competence of the
belligerent occupant to punish, says that: "To the extent to which the legal power of the
occupant is admitted he can make law for the duration of his occupation. Like any other
legislator he is morally subject to the duty of giving sufficient notice of his enactments
or regulations, not indeed so as to be debarred from carrying out his will without notice,
when required by military necessity and so far as practically carrying out his will can be
distinguished from punishment, but always remembering that to punish for breach of a
regulation a person who was justifiably ignorant of it would be outrageous. But the law
made by the occupant within his admitted power, whether morally justifiable or not, will
bind any member of the occupied population as against any other member of it, and will
bind as between them all and their national government, so far as it produces an effect
during the occupation. When the occupation comes to an end the authority of the
national government is restored, either by the progress of operations during the war or
by the conclusion of a peace, no redress can be had for what has been actually carried
out but nothing further can follow from the occupant's legislation. A prisoner detained
under it must be released, and no civil right conferred by it can be further enforced. The
enemy's law depends on him for enforcement as well as for enactment. The invaded
state is not subject to the indignity of being obliged to execute his commands.
(Westlake, International Law, Part II, War, pp. 97, 98.)
And Wheaton, who, as above stated, considers as war crimes such offenses as those
penalized in Ordinance No. 7 and Act No. 65, says: "In general, the cast of the occupant
possess legal validity, and under international law should not be abrogated by the
subsequent government. But this rule does not necessarily apply to acts that exceed the
occupant's power (e.g., alienation of the domains of the State or the sovereign), to
sentences for 'war treason' and 'war crimes,' to acts of a political character, and to those
that beyond the period of occupation. When occupation ceases, no reparation is legally
due for what has already been carried out." (Wheaton's International Law, supra, p.
245.)
We have already held in our recent decision in the case of Co Kim Cham vs. Valdez Tan
Keh and Dizon, supra, that all judgments of political complexion of the courts during
the Japanese regime, ceased to be valid upon the reoccupation of the islands by virtue of
the principle or right of postliminium. Applying that doctrine to the present case, the
sentence which convicted the petitioner of a crime of a political complexion must be
considered as having ceased to be valid ipso facto upon the reoccupation or liberation of
the Philippines by General Douglas MacArthur.
It may not be amiss to say in this connection that it is not necessary and proper to invoke
the proclamation of General Douglas MacArthur declaring null and void all laws, among
them Act No. 65, of the so-called Republic of the Philippines under which petitioner
was convicted, in order to give retroactive effect to the nullification of said penal act and
invalidate sentence rendered against petitioner under said law, a sentence which, before
the proclamation, had already become null and of no effect.
We therefore hold that the punitive sentence under consideration, although good and
valid during the military occupation of the Philippines by the Japanese forces, ceased to
be good and valid ipso facto upon the reoccupation of these Island and the restoration
therein of the Commonwealth Government.
In view of all the foregoing, the writ of habeas corpus prayed for is hereby granted and
it is ordered that the petitioner be released forthwith, without pronouncement as to costs.
So ordered.
Jaranilla, Pablo and Bengzon, JJ., concur.
Moran, C.J., concurs in the result.
G.R. No. L-6            November 29, 1945
ANICETO ALCANTARA, petitioner,  and jurisdiction.
vs.
DIRECTOR OF PRISONS, respondent.
Buenaventura B. Martinez for petitioner.
Office of the Solicitor General Tañada for respondent.
FERIA, J.:
This is a petition for the issuance of a writ of habeas corpus and for the release of the
petitioner on the ground that the latter is unlawfully imprisoned and restrained of his
liberty by the respondent Director of Prison in the provincial jail at Vigan, Ilocos Sur.
Petitioner was convicted by the Court First Instance of Ilocos Sur (Criminal case No. 23)
of the crime of illegal discharge of firearms with less serious physical injuries. Upon
appeal, the Court of Appeals of Northern Luzon at Baguio modified said sentence (CA-
G.R. No. 790)and sentence the petitioner to an indeterminate penalty of from four
months four months and twenty-one days of arresto mayor to three years, nine months
and three days of prison correccional. The sentence as modified became final on
September 12, 1944, and June 23, 1945, petitioner commenced serving his sentence.
Petitioner now questions the validity of the decision of the Court of Appeals of Northern
Luzon, on the sole ground that said court was only a creation of the so-called Republic
of the Philippines during the Japanese military occupation of the Islands; that the Court
of Appeals was not authorized by Commonwealth Act No. 3 to hold sessions in Baguio,
and that only the two Justices constituted the majority which promulgated the decision
in question. The petitioner does not question the validity of said decision on the strength
of the Proclamation of General Douglas McArthur of October 23, 1944, which
according to our decision in the case of Co Kim Cham vs. Valdez Tan Keh and Dizon,
G.R. No. L-5 (p. 113, ante), does not refer to judicial processes.
In the said case of Co Kim Cham vs. Valdez Tan Keh and Dizon, this Court ruled that the
so-called Republic of the Philippines and the Philippine Executive Commission
established in the Philippines during the Japanese regime were governments de
facto organized by the belligerent occupant by the judicial acts thereof were good and
valid and remained good and valid after the restoration of the Commonwealth
Government, except those a political complexion. In that the same case this Court held
that the Court of Appeals which was continued throughout the Japanese occupation, was
the same Court of Appeals existed prior to the Japanese occupation and was lately
abolished by Executive Order No. 37. The division of the Court of Appeals into several
District Court of Appeals, and the reduction of the number of Justices sitting in each
division, the regime of the so-called Republic effected no substantial change in its nature
Even assuming that the Court of Appeals of Northern Luzon was a new court created by
the belligerent occupant or the de facto governments established by him, the judgments
of such court, like those of the court which were continued during the Japanese
occupation, were good and valid and remain good and valid, and therefore enforceable
now after the liberation or occupation of the Philippines, provided that such judgments
do not have a political complexion, as this court held in its decision in the
abovementioned case of Co Kim Cham vs. Valdez Tan Keh and Dizon supra, in
accordance with the authorities therein cited.
Obviously, the sentence which petitioner is now serving has no political complexion. He
was charged with and convicted of an offense punishable under the municipal law of the
Commonwealth, the Revised Penal Code. Therefore, the sentence of the Court of First
Instance of Ilocos Sur, as modified by the Court of Appeals of Northern Luzon, is valid
and enforceable.
A punitive or penal sentence is said to of a political complexion when it penalizes either
a new act not defined in the municipal laws, or acts already penalized by the latter as a
crime against the legitimate government, but taken out of the territorial law and
penalized as a new offenses committed against belligerent occupant, incident to a state
of a war and necessary for the control of the occupied territory and the protection of the
army of the occupier. They are acts penalized for public rather than private reasons, acts
which tend, directly or indirectly, to aid or favor the enemy and are directed against the
welfare, safety and security, of the belligerent occupant. As example, the crimes against
national security , such as treason, espionage, etc., and against public order, such as
rebellion, sedition, etc., were crimes against the Commonwealth or United States
Government under the Revised Penal Code, which were made crimes against the
belligerent occupant.
In view of the foregoing, the petitioner for the writ of habeas corpus is denied.
Moran, C.J., Ozaeta, Paras, Jaranilla, Pablo and Bengzon, JJ., concur.
G.R. No. L-533             August 20, 1946
RAMON RUFFY, ET AL., petitioners,  corporal, all of the Philippine Constabulary garrison stationed in Mindoro. When, on
vs.
THE CHIEF OF STAFF, PHILIPPINE ARMY, ET AL., respondents.
Placido C. Ramos for petitioners.
Lt. Col. Fred Ruiz Castro and Capt. Ramon V. Diaz, JAGS, PA., for respondents.
TUASON, J.:
This was a petition for prohibition, praying that the respondents, the Chief of Staff and
the General Court Martial of the Philippine Army, be commanded to desist from further
proceedings in the trial of petitioners before that body. Preliminary injunction having
been denied by us and the General Court Martial having gone ahead with the trial, which
eventually resulted in the acquittal of one of the defendants, Ramon Ruffy, the dismissal
of the case as to another, Victoriano Dinglasan, and the conviction of Jose L. Garcia,
Prudente M. Francisco, Dominador Adeva and Andres Fortus, the last-named four
petitioners now seek in their memorandum to convert the petition into one for certiorari,
with the prayer that the records of the proceedings before the General Court Martial be
ordered certified to this court for review.
The ground of the petition was that the petitioners were not subject to military law at the
time the offense for which they had been placed on trial was committed. In their
memorandum they have raised an additional question of law — that the 93d Article of
War is unconstitutional.
An outline of the petitioner's previous connection with the Philippine Army, the
Philippine Constabulary, and/or with guerrilla organizations will presently be made.
This outline is based on allegations in the petition and the answer, and on exhibits
attached thereto and to the parties' memoranda, exhibits which were offered in the
course of the oral argument and admitted without objection. The said exhibits are public
documents certified by the officials who had them in custody in their official capacity.
They are presumed to be authentic, as we have no doubt they are.
It appears that at the outbreak of war on December 8, 1941, Ramon Ruffy was the
Provincial Commander, Prudente M. Francisco, a junior officer, and Andres Fortus, a
February 27, 1942, the Japanese forces landed in Mindoro, Major Ruffy retreated to the
mountains instead of surrendering to the enemy, disbanded his company, and organized
and led a guerrilla outfit known as Bolo Combat team of Bolo Area. Lieutenant
Francisco, Corporal Fortus and Jose L. Garcia, the last then a civilian joined Major
Ruffy's organization towards the latter part of 1942, while Dominador Adeva and
Victoriano Dinglasan, then likewise civilians, became its members some time in 1943..
Meanwhile, Brigadier General Macario Peralta, Jr., then a lieutenant colonel of the
Philippine Army, also took to the hills of Panay and led the operation of the 6th Military
District, one of the districts into which the Philippine Army had been divided before the
war. About November, 1942, Colonel Peralta succeeded in contacting the General
Headquarters of General MacArthur in Australia as the result of which on February 13,
1943, the 6th Military District was recognized by the Headquarters of the Southwest
Pacific Area as a military unit and part of its command.
Even before General MacArthur's recognition of the 6th Military District Colonel
Peralta had extended its sphere of operation to comprise Mindoro and Marinduque, and
had, on January 2, 1943, named Major Ruffy as Acting Commander for those two
provinces and Commanding Officer of the 3rd Battalion, 66 Infantry 61st Division,
Philippine Corps. After the recognition, 2d Lieut. Prudente M. Francisco, by virtue of
Special Orders No. 99, dated November 2, 1943, and signed by Enrique L. Jurado,
Major, OSE, Commanding, was assigned as S-3 in the Bolo Area. Major, later Lieut.
Col., Jurado, it should be noted, had been dispatched by the 6th Military District to
Mindoro to assume operational control supervision over the Bolo Area unit and to make
and direct the necessary report to the Headquarters, 6th Military District, in Panay. On
April 26, 1944, by General Orders No. 40 of the 6th Military District, 2d Lieutenant
Francisco was promoted to the rank of 1st Lieutenant (Brevet), effective April 15, 1944,
subject to approval by the President of the Philippines, and was re-assigned to the Bolo
Area. As to Andres Fortus he was assigned to the same Bolo Area as probationary 3d
lieutenant for two-month probationary training, by the Headquarters of the 6th Military
District, as per Special Orders No. 70, dated May 15, 1944.
According to a memorandum of the Chief of Staff, 6th Military District, dated January
1943, and signed by L.R. Relunia, Lieut. Col., CE, Chief of Staff, Jose L. Garcia and
Dominador Adeva were appointed 3d lieutenants, infantry as of December 31, 1942.
Garcia later was promoted to the rank of captain, effective March 15, 1943, as per
Special Orders No. 82, issued in the field, 6th Military District, and dated August 28,
1943. On May 24, 1943, Jose L. Garcia took his oath before Captain Esteban P.
Beloncio, then Acting Commanding Officer, 3d Battalion, 66th Infantry Regiment, 61st
Division, 6th Military District.
As has been said, the 6th Military District sent Lieut. Col. Enrique L. Jurado to be
Commanding Officer of the Bolo Combat Team in Mindoro and to undertake other
missions of Military character. Pursuant to instructions, Colonel Jurado on November 2,
1943, assigned Major Ruffy as Commanding Officer of the Bolo Area with 3d Lieut.
Dominador Adeva and 2d Lieut. Prudente M. Francisco as members of his staff and
Victoriano Dinglasan as Finance Officer, as per Special Orders No. 99 dated November
2, 1943. In a memorandum of Colonel Jurado for Major Ruffy bearing date 25 June,
1944, it was stated that Captain Garcia had been given P5,000 for palay and Lieut.
Francisco P9,000, P5,000 for palay and P4,000 for salary of the personnel B. Company.
A change in the command of the Bolo Area was effected by Colonel Jurado on June 8,
1944: Major Ruffy was relieved of his assignment as Commanding Officer, Bolo
Battalion, and Capt. Esteban P. Beloncio was put in Ruffy's place. On October 19, 1944,
Lieut. Col. Jurado was slain allegedly by the petitioners. After the commission of this
crime, the petitioners, it is alleged, seceded from the 6th Military District. It was this
murder which gave rise to petitioner's trial, the legality of which is now being contested.
On July 26, 1941, the President of the Untied States issued a military order the pertinent
paragraph of which stated: ". . . as Commander in Chief of the Army and Navy of the
United States, I hereby call and order into the service of the armed forces of the United
States Army, for the period of the existing emergency, and place under the command of
the general officer, United States Army, to be designated by the Secretary of War, from
time to time, all of the organized military forces of the Government of the
Commonwealth." Following the issuance of President Roosevelt's order General
Douglas MacArthur was appointed Commanding General of the United States Armed
Forces in the Far East.
It is contended, in behalf of Captain Francisco and Lieutenant Fortus, that "by the enemy
occupation of the Philippines, the National Defense Act and all laws and regulations
creating and governing the existence of the Philippine Army including the Articles of
War, were suspended and in abeyance during such belligerent occupation."
The paragraph quoted in the petitioner's memorandum from Winthrop's Military Law
and Precedents and the subsequent paragraph which has been omitted furnish a complete
answer to petitioner's contention of the Philippines by Japanese forces, the officers and
men of the Philippine Army did not cease to be fully in the service, though in a
measure,' only in a measure, they were not subject to the military jurisdiction, if they
were not active duty. In the latter case, like officers and soldiers on leave of absence or
held as prisoners of war, they could not be held guilty of a breach of the discipline of the
command or of a neglect of duty, or disobedience of orders, or mutiny, or subject to a
military trial therefor; but for an act unbecoming an officer and a gentleman, or an act
which constitutes an offense of the class specified in the 95th Article of War, they may
in general be legally held subject to military jurisdiction and trial. "So a prisoner of war,
though not subject, while held by the enemy, to the discipline of his own army, would,
when exchanged of paroled, be not exempt from liability for such offenses as criminal
acts or injuriuos conduct committed during his captivity against other officers or soldiers
in the same status." (Winthrop's Military Law and Precedents, 2d Edition, pp. 91, 92.)
The rule invoked by counsel, namely, that laws of political nature or affecting political
relations are considered superseded or in abeyance during the military occupation, is
intended for the governing of the civil inhabitants of the occupied territory. It is not
intended for and does not bind the enemies in arms. This is self-evident from the very
nature of things. The paradox of a contrary ruling should readily manifest itself. Under
the petitioner's theory the forces of resistance operating in an occupied territory would
have to abide by the outlawing of their own existence. They would be stripped of the
very life-blood of an army, the right and the ability to maintain order and discipline
within the organization and to try the men guilty of breach thereof.
The surrender by General Wainright of the Fil-American Forces does not profit the
petitioner's who were former members of the Philippine Constabulary any more than
does the rule of war or international law they cite. The fall of Bataan and Corregidor did
not end the war. It did not, legally or otherwise, keep the United States and the
Commonwealth of the Philippines from organizing a new army, regular or irregular, out
of new men and men in the old service who had refused to surrender or who having
surrendered, had decided to carry on the fight through other diverse means and methods.
The fall of Corregidor and Bataan just marked the beginning of the gigantic preparation
for the gigantic drive that was to fight its way to and beyond the Philippines in
fulfillment of General MacArthur's classic promise, "I shall return." The heroic role
which the guerrillas played in that preparation and in the subsequent liberation of the
Philippines is now history.
Independently of their previous connection with the Philippine Army and the Philippine
Constabulary, Captain Francisco and Lieutenant Fortus as well as Major Garcia and
Lieutenant Adeva were subject to military jurisdiction.
The 2d Article of War defines and enumerates the persons subject to military law as
follows:
Art. 2. Persons Subject to Military Law. — The following persons are subject to
these articles and shall be understood as included in the term "any person
subject to military law" or "persons subject to military law," whenever used in
these articles:
(a) All officers, members of the Nurse Corps and soldiers belonging to the
Regular Force of the Philippine Army; all reservists, from the dates of their call
to active duty and while on such active duty; all trainees undergoing military
instructions; and all other persons lawfully called, drafted, or order to obey the
same;
(b) Cadets, flying cadets, and probationary third lieutenants;
(c) All retainers to the camp and all persons accompanying or serving with the
Army of the Philippines in the field in time of war or when martial law is
declared though not otherwise subject to these articles;
(d) All persons under sentences adjudged by courts-martial.
It is our opinion that the petitioners come within the general application of the clause in
sub-paragraph (a); "and all other persons lawfully called, drafted, or ordered into, or to
duty for training in, the said service, from the dates they are required by the terms of the
call, draft, or order to obey the same." By their acceptance of appointments as officers in
the Bolo Area from the General Headquarters of the 6th Military District, they became
members of the Philippine Army amendable to the Articles of War. The Bolo Area, as
has been seen, was a contigent of the 6th Military District which, as has also been
pointed out, had been recognized by and placed under the operational control of the
United States Army in the Southwest Pacific. The Bolo Area received supplies and
funds for the salaries of its officers and men from the Southwest Pacific Command. As
officers in the Bolo Area and the 6th Military District, the petitioners operated under the
orders of duly established and duly appointed commanders of the United States Army.
The attitude of the enemy toward underground movements did not affect the military
status of guerrillas who had been called into the service of the Philippine Army. If the
invaders refused to look upon guerrillas, without distinctions, as legitimate troops, that
did not stop the guerillas who had been inducted into the service of the Philippine Army
from being component parts thereof, bound to obey military status of guerrillas was to
be judged not by the concept of the army of the country for which they fought.
The constitutionality of the 93d Article of War is assailed. This article ordains "that any
person subject to military law who commits murder in time of was shall suffer death or
imprisonment for life, as the court martial may direct." It is argued that since "no review
is provided by that law to be made by the Supreme Court, irrespective of whether the
punishment is for life imprisonment or death", it violates Article VIII, section 2,
paragraph 4, of the Constitution of the Philippines which provides that "the National
Assembly may not deprive the Supreme Court of its original jurisdiction over all
criminal cases in which the penalty imposed is death or life imprisonment."
We think the petitioners are in error. This error arose from failure to perceive the nature
of courts martial and the sources of the authority for their creation.
Courts martial are agencies of executive character, and one of the authorities "for the
ordering of courts martial has been held to be attached to the constitutional functions of
the President as Commander in Chief, independently of legislation." (Winthrop's
Military Law and Precedents, 2d Edition, p. 49.) Unlike courts of law, they are not a
portion of the judiciary. "The Supreme Court of the United States referring to the
provisions of the Constitution authorizing Congress to provide for the government of the
army, excepting military offenses from the civil jurisdiction, and making the President
Commander in Chief, observes as follows: "These provisions show that Congress has
the power to provide for the trial and punishment of military and naval offenses in the
manner then and now practiced by civilized nations, and that the power to do so is given
without any connection between it and the 3d Article of the United States; indeed that
the two powers are entirely independent of each other."
"Not belonging to the judicial branch of the government, it follows that courts-martial
must pertain to the executive department; and they are in fact simply instrumentalities of
the executive power, provided by Congress 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."
(Winthrop's Military Law and Precedents, 2d Edition, p. 49.) Of equal interest Clode, 2
M. F., 361, says of these courts in the British law: "It must never be lost sight of that the
only legitimate object of military tribunals is to aid the Crown to maintain the discipline
and government of the Army." (Footnote No. 24, p. 49, Winthrop's Military Law and
Precedents, 2d Edition.)
Our conclusion, therefore, is that the petition has no merit and that it should be
dismissed with costs. It is so ordered.
Moran, C.J., Paras, Feria, Pablo, Hilado, Bengzon, Briones and Padilla, JJ., concur.
A.M. No. 133-J May 31, 1982
BERNARDITA R. MACARIOLA, complainant, 
vs.
HONORABLE ELIAS B. ASUNCION, Judge of the Court of First Instance of
Leyte, respondent.
MAKASIAR, J:
In a verified complaint dated August 6, 1968 Bernardita R. Macariola charged
respondent Judge Elias B. Asuncion of the Court of First Instance of Leyte, now
Associate Justice of the Court of Appeals, with "acts unbecoming a judge."
The factual setting of the case is stated in the report dated May 27, 1971 of then
Associate Justice Cecilia Muñoz Palma of the Court of Appeals now retired Associate
Justice of the Supreme Court, to whom this case was referred on October 28, 1968 for
investigation, thus:
Civil Case No. 3010 of the Court of First Instance of Leyte was a
complaint for partition filed by Sinforosa R. Bales, Luz R. Bakunawa,
Anacorita Reyes, Ruperto Reyes, Adela Reyes, and Priscilla Reyes,
plaintiffs, against Bernardita R. Macariola, defendant, concerning the
properties left by the deceased Francisco Reyes, the common father of
the plaintiff and defendant.
In her defenses to the complaint for partition, Mrs. Macariola alleged
among other things that; a) plaintiff Sinforosa R. Bales was not a
daughter of the deceased Francisco Reyes; b) the only legal heirs of the
deceased were defendant Macariola, she being the only offspring of the
first marriage of Francisco Reyes with Felisa Espiras, and the remaining
plaintiffs who were the children of the deceased by his second marriage
with Irene Ondez; c) the properties left by the deceased were all the
conjugal properties of the latter and his first wife, Felisa Espiras, and no
properties were acquired by the deceased during his second marriage; d)
if there was any partition to be made, those conjugal properties should
first be partitioned into two parts, and one part is to be adjudicated
solely to defendant it being the share of the latter's deceased mother,
Felisa Espiras, and the other half which is the share of the deceased
Francisco Reyes was to be divided equally among his children by his
two marriages.
On June 8, 1963, a decision was rendered by respondent Judge
Asuncion in Civil Case 3010, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING
CONSIDERATIONS, the Court, upon a preponderance
of evidence, finds and so holds, and hereby renders
judgment (1) Declaring the plaintiffs Luz R. Bakunawa,
Anacorita Reyes, Ruperto Reyes, Adela Reyes and
Priscilla Reyes as the only children legitimated by the
subsequent marriage of Francisco Reyes Diaz to Irene
Ondez; (2) Declaring the plaintiff Sinforosa R. Bales to
have been an illegitimate child of Francisco Reyes
Diaz; (3) Declaring Lots Nos. 4474, 4475, 4892, 5265,
4803, 4581, 4506 and 1/4 of Lot 1145 as belonging to
the conjugal partnership of the spouses Francisco Reyes
Diaz and Felisa Espiras; (4) Declaring Lot No. 2304
and 1/4 of Lot No. 3416 as belonging to the spouses
Francisco Reyes Diaz and Irene Ondez in common
partnership; (5) Declaring that 1/2 of Lot No. 1184 as
belonging exclusively to the deceased Francisco Reyes
Diaz; (6) Declaring the defendant Bernardita R.
Macariola, being the only legal and forced heir of her
mother Felisa Espiras, as the exclusive owner of one-
half of each of Lots Nos. 4474, 4475, 4892, 5265, 4803,
4581, 4506; and the remaining one-half (1/2) of each of
said Lots Nos. 4474, 4475, 4892, 5265, 4803, 4581,
4506 and one-half (1/2) of one-fourth (1/4) of Lot No.
1154 as belonging to the estate of Francisco Reyes
Diaz; (7) Declaring Irene Ondez to be the exclusive
owner of one-half (1/2) of Lot No. 2304 and one-half
(1/2) of one-fourth (1/4) of Lot No. 3416; the remaining
one-half (1/2) of Lot 2304 and the remaining one-half
(1/2) of one-fourth (1/4) of Lot No. 3416 as belonging
to the estate of Francisco Reyes Diaz; (8) Directing the
division or partition of the estate of Francisco Reyes
Diaz in such a manner as to give or grant to Irene
Ondez, as surviving widow of Francisco Reyes Diaz, a
hereditary share of. one-twelfth (1/12) of the whole
estate of Francisco Reyes Diaz (Art. 996 in relation to
Art. 892, par 2, New Civil Code), and the remaining
portion of the estate to be divided among the plaintiffs
Sinforosa R. Bales, Luz R. Bakunawa, Anacorita
Reyes, Ruperto Reyes, Adela Reyes, Priscilla Reyes
and defendant Bernardita R. Macariola, in such a way
that the extent of the total share of plaintiff Sinforosa R.
Bales in the hereditary estate shall not exceed the
equivalent of two-fifth (2/5) of the total share of any or
each of the other plaintiffs and the defendant (Art. 983,
New Civil Code), each of the latter to receive equal
shares from the hereditary estate, (Ramirez vs. Bautista,
14 Phil. 528; Diancin vs. Bishop of Jaro, O.G. [3rd Ed.]
p. 33); (9) Directing the parties, within thirty days after
this judgment shall have become final to submit to this
court, for approval a project of partition of the
hereditary estate in the proportion above indicated, and
in such manner as the parties may, by agreement,
deemed convenient and equitable to them taking into
consideration the location, kind, quality, nature and
value of the properties involved; (10) Directing the
plaintiff Sinforosa R. Bales and defendant Bernardita R.
Macariola to pay the costs of this suit, in the proportion
of one-third (1/3) by the first named and two-thirds
(2/3) by the second named; and (I 1) Dismissing all
other claims of the parties [pp 27-29 of Exh. C].
The decision in civil case 3010 became final for lack of an appeal, and
on October 16, 1963, a project of partition was submitted to Judge
Asuncion which is marked Exh. A. Notwithstanding the fact that the
project of partition was not signed by the parties themselves but only by
the respective counsel of plaintiffs and defendant, Judge Asuncion
approved it in his Order dated October 23, 1963, which for convenience
is quoted hereunder in full:
The parties, through their respective counsels, presented
to this Court for approval the following project of
partition:
COMES NOW, the plaintiffs and the defendant in the
above-entitled case, to this Honorable Court
respectfully submit the following Project of Partition:
l. The whole of Lots Nos. 1154, 2304 and 4506 shall
belong exclusively to Bernardita Reyes Macariola;
2. A portion of Lot No. 3416 consisting of 2,373.49
square meters along the eastern part of the lot shall be
awarded likewise to Bernardita R. Macariola;
3. Lots Nos. 4803, 4892 and 5265 shall be awarded to
Sinforosa Reyes Bales;
4. A portion of Lot No. 3416 consisting of 1,834.55
square meters along the western part of the lot shall
likewise be awarded to Sinforosa Reyes-Bales;
5. Lots Nos. 4474 and 4475 shall be divided equally
among Luz Reyes Bakunawa, Anacorita Reyes,
Ruperto Reyes, Adela Reyes and Priscilla Reyes in
equal shares;
6. Lot No. 1184 and the remaining portion of Lot No.
3416 after taking the portions awarded under item (2)
and (4) above shall be awarded to Luz Reyes
Bakunawa, Anacorita Reyes, Ruperto Reyes, Adela
Reyes and Priscilla Reyes in equal shares, provided,
however that the remaining portion of Lot No. 3416
shall belong exclusively to Priscilla Reyes.
WHEREFORE, it is respectfully prayed that the Project
of Partition indicated above which is made in
accordance with the decision of the Honorable Court be
approved.
Tacloban City, October 16, 1963.
(SGD) BONIFACIO RAMO Atty. for the Defendant
Tacloban City
(SGD) ZOTICO A. TOLETE Atty. for the Plaintiff
Tacloban City
While the Court thought it more desirable for all the
parties to have signed this Project of Partition,
nevertheless, upon assurance of both counsels of the
respective parties to this Court that the Project of
Partition, as above- quoted, had been made after a
conference and agreement of the plaintiffs and the
defendant approving the above Project of Partition, and
that both lawyers had represented to the Court that they
are given full authority to sign by themselves the
Project of Partition, the Court, therefore, finding the
above-quoted Project of Partition to be in accordance
with law, hereby approves the same. The parties,
therefore, are directed to execute such papers,
documents or instrument sufficient in form and
substance for the vesting of the rights, interests and
participations which were adjudicated to the respective
parties, as outlined in the Project of Partition and the
delivery of the respective properties adjudicated to each
one in view of said Project of Partition, and to perform
such other acts as are legal and necessary to effectuate
the said Project of Partition.
SO ORDERED.
Given in Tacloban City, this 23rd day of October, 1963.
(SGD) ELIAS B. ASUNCION Judge
EXH. B.
The above Order of October 23, 1963, was amended on November 11,
1963, only for the purpose of giving authority to the Register of Deeds
of the Province of Leyte to issue the corresponding transfer certificates
of title to the respective adjudicatees in conformity with the project of
partition (see Exh. U).
One of the properties mentioned in the project of partition was Lot 1184
or rather one-half thereof with an area of 15,162.5 sq. meters. This lot,
which according to the decision was the exclusive property of the
deceased Francisco Reyes, was adjudicated in said project of partition to
the plaintiffs Luz, Anacorita Ruperto, Adela, and Priscilla all surnamed
Reyes in equal shares, and when the project of partition was approved
 by the trial court the adjudicatees caused Lot 1184 to be subdivided into
five lots denominated as Lot 1184-A to 1184-E inclusive (Exh. V).
Lot 1184-D was conveyed to Enriqueta D. Anota, a stenographer in
Judge Asuncion's court (Exhs. F, F-1 and V-1), while Lot 1184-E which
had an area of 2,172.5556 sq. meters was sold on July 31, 1964 to Dr.
Arcadio Galapon (Exh. 2) who was issued transfer certificate of title
No. 2338 of the Register of Deeds of the city of Tacloban (Exh. 12).
On March 6, 1965, Dr. Arcadio Galapon and his wife Sold a portion of
Lot 1184-E with an area of around 1,306 sq. meters to Judge Asuncion
and his wife, Victoria S. Asuncion (Exh. 11), which particular portion
was declared by the latter for taxation purposes (Exh. F).
On August 31, 1966, spouses Asuncion and spouses Galapon conveyed
their respective shares and interest in Lot 1184-E to "The Traders
Manufacturing and Fishing Industries Inc." (Exit 15 & 16). At the time
of said sale the stockholders of the corporation were Dominador Arigpa
Tan, Humilia Jalandoni Tan, Jaime Arigpa Tan, Judge Asuncion, and
the latter's wife, Victoria S. Asuncion, with Judge Asuncion as the
President and Mrs. Asuncion as the secretary (Exhs. E-4 to E-7). The
Articles of Incorporation of "The Traders Manufacturing and Fishing
Industries, Inc." which we shall henceforth refer to as "TRADERS"
were registered with the Securities and Exchange Commission only on
January 9, 1967 (Exh. E) [pp. 378-385, rec.].
Complainant Bernardita R. Macariola filed on August 9, 1968 the instant complaint
dated August 6, 1968 alleging four causes of action, to wit: [1] that respondent Judge
Asuncion violated Article 1491, paragraph 5, of the New Civil Code in acquiring by
purchase a portion of Lot No. 1184-E which was one of those properties involved in
Civil Case No. 3010 decided by him; [2] that he likewise violated Article 14, paragraphs
I and 5 of the Code of Commerce, Section 3, paragraph H, of R.A. 3019, otherwise
known as the Anti-Graft and Corrupt Practices Act, Section 12, Rule XVIII of the Civil
Service Rules, and Canon 25 of the Canons of Judicial Ethics, by associating himself
with the Traders Manufacturing and Fishing Industries, Inc., as a stockholder and a
ranking officer while he was a judge of the Court of First Instance of Leyte; [3] that
respondent was guilty of coddling an impostor and acted in disregard of judicial
decorum by closely fraternizing with a certain Dominador Arigpa Tan who openly and
publicly advertised himself as a practising attorney when in truth and in fact his name
does not appear in the Rolls of Attorneys and is not a member of the Philippine Bar; and
[4] that there was a culpable defiance of the law and utter disregard for ethics by
respondent Judge (pp. 1-7, rec.).
Respondent Judge Asuncion filed on September 24, 1968 his answer to which a reply
was filed on October 16, 1968 by herein complainant. In Our resolution of October 28,
1968, We referred this case to then Justice Cecilia Muñoz Palma of the Court of
Appeals, for investigation, report and recommendation. After hearing, the said
Investigating Justice submitted her report dated May 27, 1971 recommending that
respondent Judge should be reprimanded or warned in connection with the first cause of
action alleged in the complaint, and for the second cause of action, respondent should be
warned in case of a finding that he is prohibited under the law to engage in business. On
the third and fourth causes of action, Justice Palma recommended that respondent Judge
be exonerated.
The records also reveal that on or about November 9 or 11, 1968 (pp. 481, 477, rec.),
complainant herein instituted an action before the Court of First Instance of Leyte,
entitled "Bernardita R. Macariola, plaintiff, versus Sinforosa R. Bales, et al.,
defendants," which was docketed as Civil Case No. 4235, seeking the annulment of the
project of partition made pursuant to the decision in Civil Case No. 3010 and the two
orders issued by respondent Judge approving the same, as well as the partition of the
estate and the subsequent conveyances with damages. It appears, however, that some
defendants were dropped from the civil case. For one, the case against Dr. Arcadio
Galapon was dismissed because he was no longer a real party in interest when Civil
Case No. 4234 was filed, having already conveyed on March 6, 1965 a portion of lot
1184-E to respondent Judge and on August 31, 1966 the remainder was sold to the
Traders Manufacturing and Fishing Industries, Inc. Similarly, the case against defendant
Victoria Asuncion was dismissed on the ground that she was no longer a real party in
interest at the time the aforesaid Civil Case No. 4234 was filed as the portion of Lot
1184 acquired by her and respondent Judge from Dr. Arcadio Galapon was already sold
on August 31, 1966 to the Traders Manufacturing and Fishing industries, Inc. Likewise,
the cases against defendants Serafin P. Ramento, Catalina Cabus, Ben Barraza Go, Jesus
Perez, Traders Manufacturing and Fishing Industries, Inc., Alfredo R. Celestial and Pilar
P. Celestial, Leopoldo Petilla and Remedios Petilla, Salvador Anota and Enriqueta
Anota and Atty. Zotico A. Tolete were dismissed with the conformity of complainant
herein, plaintiff therein, and her counsel.
On November 2, 1970, Judge Jose D. Nepomuceno of the Court of First Instance of
Leyte, who was directed and authorized on June 2, 1969 by the then Secretary (now
Minister) of Justice and now Minister of National Defense Juan Ponce Enrile to hear and
decide Civil Case No. 4234, rendered a decision, the dispositive portion of which reads
as follows:
A. IN THE CASE AGAINST JUDGE ELIAS B. ASUNCION
(1) declaring that only Branch IV of the Court of First Instance of Leyte
has jurisdiction to take cognizance of the issue of the legality and
validity of the Project of Partition [Exhibit "B"] and the two Orders
[Exhibits "C" and "C- 3"] approving the partition;
(2) dismissing the complaint against Judge Elias B. Asuncion;
(3) adjudging the plaintiff, Mrs. Bernardita R. Macariola to pay
defendant Judge Elias B. Asuncion,
(a) the sum of FOUR HUNDRED THOUSAND
PESOS [P400,000.00] for moral damages;
(b) the sum of TWO HUNDRED THOUSAND PESOS
[P200,000.001 for exemplary damages;
(c) the sum of FIFTY THOUSAND PESOS
[P50,000.00] for nominal damages; and
(d) he sum of TEN THOUSAND PESOS [PI0,000.00]
for Attorney's Fees.
B. IN THE CASE AGAINST THE DEFENDANT
MARIQUITA VILLASIN, FOR HERSELF AND FOR
THE HEIRS OF THE DECEASED GERARDO
VILLASIN —
(1) Dismissing the complaint against the defendants Mariquita Villasin
and the heirs of the deceased Gerardo Villasin;
(2) Directing the plaintiff to pay the defendants Mariquita Villasin and
the heirs of Gerardo Villasin the cost of the suit.
C. IN THE CASE AGAINST THE DEFENDANT
SINFOROSA R. BALES, ET AL., WHO WERE
PLAINTIFFS IN CIVIL CASE NO. 3010 —
(1) Dismissing the complaint against defendants Sinforosa R. Bales,
Adela R. Herrer, Priscilla R. Solis, Luz R. Bakunawa, Anacorita R. Eng
and Ruperto O. Reyes.
D. IN THE CASE AGAINST DEFENDANT
BONIFACIO RAMO —
(1) Dismissing the complaint against Bonifacio Ramo;
(2) Directing the plaintiff to pay the defendant Bonifacio Ramo the cost
of the suit.
SO ORDERED [pp. 531-533, rec.]
It is further disclosed by the record that the aforesaid decision was elevated to the Court
of Appeals upon perfection of the appeal on February 22, 1971.
I
WE find that there is no merit in the contention of complainant Bernardita R. Macariola,
under her first cause of action, that respondent Judge Elias B. Asuncion violated Article
1491, paragraph 5, of the New Civil Code in acquiring by purchase a portion of Lot No.
1184-E which was one of those properties involved in Civil Case No. 3010. 'That Article
provides:
Article 1491. The following persons cannot acquire by purchase, even
at a public or judicial action, either in person or through the mediation
of another:
xxx xxx xxx
(5) Justices, judges, prosecuting attorneys, clerks of superior and
inferior courts, and other officers and employees connected with the
administration of justice, the property and rights in litigation or levied
upon an execution before the court within whose jurisdiction or territory
they exercise their respective functions; this prohibition includes the act
of acquiring by assignment and shall apply to lawyers, with respect to
the property and rights which may be the object of any litigation in
which they may take part by virtue of their profession [emphasis
supplied].
The prohibition in the aforesaid Article applies only to the sale or assignment of the
property which is the subject of litigation to the persons disqualified therein. WE have
already ruled that "... for the prohibition to operate, the sale or assignment of the
property must take place during the pendency of the litigation involving the property"
(The Director of Lands vs. Ababa et al., 88 SCRA 513, 519 [1979], Rosario vda. de Laig
vs. Court of Appeals, 86 SCRA 641, 646 [1978]).
In the case at bar, when the respondent Judge purchased on March 6, 1965 a portion of
Lot 1184-E, the decision in Civil Case No. 3010 which he rendered on June 8, 1963 was
already final because none of the parties therein filed an appeal within the reglementary
period; hence, the lot in question was no longer subject of the litigation. Moreover, at
the time of the sale on March 6, 1965, respondent's order dated October 23, 1963 and
the amended order dated November 11, 1963 approving the October 16, 1963 project of
partition made pursuant to the June 8, 1963 decision, had long become final for there
was no appeal from said orders.
Furthermore, respondent Judge did not buy the lot in question on March 6, 1965 directly
from the plaintiffs in Civil Case No. 3010 but from Dr. Arcadio Galapon who earlier
purchased on July 31, 1964 Lot 1184-E from three of the plaintiffs, namely, Priscilla
Reyes, Adela Reyes, and Luz R. Bakunawa after the finality of the decision in Civil
Case No. 3010. It may be recalled that Lot 1184 or more specifically one-half thereof
was adjudicated in equal shares to Priscilla Reyes, Adela Reyes, Luz Bakunawa,
Ruperto Reyes and Anacorita Reyes in the project of partition, and the same was
subdivided into five lots denominated as Lot 1184-A to 1184-E. As aforestated, Lot
1184-E was sold on July 31, 1964 to Dr. Galapon for which he was issued TCT No.
2338 by the Register of Deeds of Tacloban City, and on March 6, 1965 he sold a portion
of said lot to respondent Judge and his wife who declared the same for taxation purposes
only. The subsequent sale on August 31, 1966 by spouses Asuncion and spouses
Galapon of their respective shares and interest in said Lot 1184-E to the Traders
Manufacturing and Fishing Industries, Inc., in which respondent was the president and
his wife was the secretary, took place long after the finality of the decision in Civil Case
No. 3010 and of the subsequent two aforesaid orders therein approving the project of
partition.
While it appears that complainant herein filed on or about November 9 or 11, 1968 an
action before the Court of First Instance of Leyte docketed as Civil Case No. 4234,
seeking to annul the project of partition and the two orders approving the same, as well
as the partition of the estate and the subsequent conveyances, the same, however, is of
no moment.
The fact remains that respondent Judge purchased on March 6, 1965 a portion of Lot
1184-E from Dr. Arcadio Galapon; hence, after the finality of the decision which he
rendered on June 8, 1963 in Civil Case No. 3010 and his two questioned orders dated
October 23, 1963 and November 11, 1963. Therefore, the property was no longer
subject of litigation.
The subsequent filing on November 9, or 11, 1968 of Civil Case No. 4234 can no longer
alter, change or affect the aforesaid facts — that the questioned sale to respondent
Judge, now Court of Appeals Justice, was effected and consummated long after the
finality of the aforesaid decision or orders.
Consequently, the sale of a portion of Lot 1184-E to respondent Judge having taken
place over one year after the finality of the decision in Civil Case No. 3010 as well as
the two orders approving the project of partition, and not during the pendency of the
litigation, there was no violation of paragraph 5, Article 1491 of the New Civil Code.
It is also argued by complainant herein that the sale on July 31, 1964 of Lot 1184-E to
Dr. Arcadio Galapon by Priscilla Reyes, Adela Reyes and Luz R. Bakunawa was only a
mere scheme to conceal the illegal and unethical transfer of said lot to respondent Judge
as a consideration for the approval of the project of partition. In this connection, We
agree with the findings of the Investigating Justice thus:
And so we are now confronted with this all-important question whether
or not the acquisition by respondent of a portion of Lot 1184-E and the
subsequent transfer of the whole lot to "TRADERS" of which
respondent was the President and his wife the Secretary, was intimately
related to the Order of respondent approving the project of partition,
Exh. A.
Respondent vehemently denies any interest or participation in the
transactions between the Reyeses and the Galapons concerning Lot
1184-E, and he insists that there is no evidence whatsoever to show that
Dr. Galapon had acted, in the purchase of Lot 1184-E, in mediation for
him and his wife. (See p. 14 of Respondent's Memorandum).
xxx xxx xxx
On this point, I agree with respondent that there is no evidence in the
record showing that Dr. Arcadio Galapon acted as a mere "dummy" of
respondent in acquiring Lot 1184-E from the Reyeses. Dr. Galapon
appeared to this investigator as a respectable citizen, credible and
sincere, and I believe him when he testified that he bought Lot 1184-E
in good faith and for valuable consideration from the Reyeses without
any intervention of, or previous understanding with Judge Asuncion
(pp. 391- 394, rec.).
On the contention of complainant herein that respondent Judge acted illegally in
approving the project of partition although it was not signed by the parties, We quote
with approval the findings of the Investigating Justice, as follows:
1. I agree with complainant that respondent should have required the
signature of the parties more particularly that of Mrs. Macariola on the
project of partition submitted to him for approval; however, whatever
error was committed by respondent in that respect was done in good
faith as according to Judge Asuncion he was assured by Atty. Bonifacio
Ramo, the counsel of record of Mrs. Macariola, That he was authorized
by his client to submit said project of partition, (See Exh. B and tsn p.
24, January 20, 1969). While it is true that such written authority if
there was any, was not presented by respondent in evidence, nor did
Atty. Ramo appear to corroborate the statement of respondent, his
affidavit being the only one that was presented as respondent's Exh. 10,
certain actuations of Mrs. Macariola lead this investigator to believe that
she knew the contents of the project of partition, Exh. A, and that she
gave her conformity thereto. I refer to the following documents:
1) Exh. 9 — Certified true copy of OCT No. 19520 covering Lot 1154
of the Tacloban Cadastral Survey in which the deceased Francisco
Reyes holds a "1/4 share" (Exh. 9-a). On tills certificate of title the
Order dated November 11, 1963, (Exh. U) approving the project of
partition was duly entered and registered on November 26, 1963 (Exh.
9-D);
2) Exh. 7 — Certified copy of a deed of absolute sale executed by
Bernardita Reyes Macariola on October 22, 1963, conveying to Dr.
Hector Decena the one-fourth share of the late Francisco Reyes-Diaz in
Lot 1154. In this deed of sale the vendee stated that she was the absolute
owner of said one-fourth share, the same having been adjudicated to her
as her share in the estate of her father Francisco Reyes Diaz as per
decision of the Court of First Instance of Leyte under case No. 3010
(Exh. 7-A). The deed of sale was duly registered and annotated at the
back of OCT 19520 on December 3, 1963 (see Exh. 9-e).
In connection with the abovementioned documents it is to be noted that
in the project of partition dated October 16, 1963, which was approved
by respondent on October 23, 1963, followed by an amending Order on
November 11, 1963, Lot 1154 or rather 1/4 thereof was adjudicated to
Mrs. Macariola. It is this 1/4 share in Lot 1154 which complainant sold
to Dr. Decena on October 22, 1963, several days after the preparation of
the project of partition.
Counsel for complainant stresses the view, however, that the latter sold
her one-fourth share in Lot 1154 by virtue of the decision in Civil Case
3010 and not because of the project of partition, Exh. A. Such
contention is absurd because from the decision, Exh. C, it is clear that
one-half of one- fourth of Lot 1154 belonged to the estate of Francisco
Reyes Diaz while the other half of said one-fourth was the share of
complainant's mother, Felisa Espiras; in other words, the decision did
not adjudicate the whole of the one-fourth of Lot 1154 to the herein
complainant (see Exhs. C-3 & C-4). Complainant became the owner of
the entire one-fourth of Lot 1154 only by means of the project of
partition, Exh. A. Therefore, if Mrs. Macariola sold Lot 1154 on
October 22, 1963, it was for no other reason than that she was wen
aware of the distribution of the properties of her deceased father as per
Exhs. A and B. It is also significant at this point to state that Mrs.
Macariola admitted during the cross-examination that she went to
Tacloban City in connection with the sale of Lot 1154 to Dr. Decena
(tsn p. 92, November 28, 1968) from which we can deduce that she
could not have been kept ignorant of the proceedings in civil case 3010
relative to the project of partition.
Complainant also assails the project of partition because according to
her the properties adjudicated to her were insignificant lots and the least
valuable. Complainant, however, did not present any direct and positive
evidence to prove the alleged gross inequalities in the choice and
distribution of the real properties when she could have easily done so by
presenting evidence on the area, location, kind, the assessed and market
value of said properties. Without such evidence there is nothing in the
record to show that there were inequalities in the distribution of the
properties of complainant's father (pp. 386389, rec.).
Finally, while it is. true that respondent Judge did not violate paragraph 5, Article 1491
of the New Civil Code in acquiring by purchase a portion of Lot 1184-E which was in
litigation in his court, it was, however, improper for him to have acquired the same. He
should be reminded of Canon 3 of the Canons of Judicial Ethics which requires that: "A
judge's official conduct should be free from the appearance of impropriety, and his
personal behavior, not only upon the bench and in the performance of judicial duties, but
also in his everyday life, should be beyond reproach." And as aptly observed by the
Investigating Justice: "... it was unwise and indiscreet on the part of respondent to have
purchased or acquired a portion of a piece of property that was or had been in litigation
in his court and caused it to be transferred to a corporation of which he and his wife
were ranking officers at the time of such transfer. One who occupies an exalted position
in the judiciary has the duty and responsibility of maintaining the faith and trust of the
citizenry in the courts of justice, so that not only must he be truly honest and just, but his
actuations must be such as not give cause for doubt and mistrust in the uprightness of his
administration of justice. In this particular case of respondent, he cannot deny that the
transactions over Lot 1184-E are damaging and render his actuations open to suspicion
and distrust. Even if respondent honestly believed that Lot 1184-E was no longer in
litigation in his court and that he was purchasing it from a third person and not from the
parties to the litigation, he should nonetheless have refrained from buying it for himself
and transferring it to a corporation in which he and his wife were financially involved, to
avoid possible suspicion that his acquisition was related in one way or another to his
official actuations in civil case 3010. The conduct of respondent gave cause for the
litigants in civil case 3010, the lawyers practising in his court, and the public in general
to doubt the honesty and fairness of his actuations and the integrity of our courts of
justice" (pp. 395396, rec.).
II
With respect to the second cause of action, the complainant alleged that respondent
Judge violated paragraphs 1 and 5, Article 14 of the Code of Commerce when he
associated himself with the Traders Manufacturing and Fishing Industries, Inc. as a
stockholder and a ranking officer, said corporation having been organized to engage in
business. Said Article provides that:
Article 14 — The following cannot engage in commerce, either in
person or by proxy, nor can they hold any office or have any direct,
administrative, or financial intervention in commercial or industrial
companies within the limits of the districts, provinces, or towns in
which they discharge their duties:
1. Justices of the Supreme Court, judges and officials of the department
of public prosecution in active service. This provision shall not be
applicable to mayors, municipal judges, and municipal prosecuting
attorneys nor to those who by chance are temporarily discharging the
functions of judge or prosecuting attorney.
xxx xxx xxx
5. Those who by virtue of laws or special provisions may not engage in
commerce in a determinate territory.
It is Our considered view that although the aforestated provision is incorporated in the
Code of Commerce which is part of the commercial laws of the Philippines, it, however,
partakes of the nature of a political law as it regulates the relationship between the
government and certain public officers and employees, like justices and judges.
Political Law has been defined as that branch of public law which deals with the
organization and operation of the governmental organs of the State and define the
relations of the state with the inhabitants of its territory (People vs. Perfecto, 43 Phil.
887, 897 [1922]). It may be recalled that political law embraces constitutional law, law
of public corporations, administrative law including the law on public officers and
elections. Specifically, Article 14 of the Code of Commerce partakes more of the nature
of an administrative law because it regulates the conduct of certain public officers and
employees with respect to engaging in business: hence, political in essence.
It is significant to note that the present Code of Commerce is the Spanish Code of
Commerce of 1885, with some modifications made by the "Commission de Codificacion
de las Provincias de Ultramar," which was extended to the Philippines by the Royal
Decree of August 6, 1888, and took effect as law in this jurisdiction on December 1,
1888.
Upon the transfer of sovereignty from Spain to the United States and later on from the
United States to the Republic of the Philippines, Article 14 of this Code of Commerce
must be deemed to have been abrogated because where there is change of sovereignty,
the political laws of the former sovereign, whether compatible or not with those of the
new sovereign, are automatically abrogated, unless they are expressly re-enacted by
affirmative act of the new sovereign.
Thus, We held in Roa vs. Collector of Customs (23 Phil. 315, 330, 311 [1912]) that:
By well-settled public law, upon the cession of territory by one nation to
another, either following a conquest or otherwise, ... those laws which
are political in their nature and pertain to the prerogatives of the former
government immediately cease upon the transfer of sovereignty.
(Opinion, Atty. Gen., July 10, 1899).
While municipal laws of the newly acquired territory not in conflict
with the, laws of the new sovereign continue in force without the
express assent or affirmative act of the conqueror, the political laws do
not. (Halleck's Int. Law, chap. 34, par. 14). However, such political laws
of the prior sovereignty as are not in conflict with the constitution or
institutions of the new sovereign, may be continued in force if the
conqueror shall so declare by affirmative act of the commander-in-chief
during the war, or by Congress in time of peace. (Ely's Administrator
vs. United States, 171 U.S. 220, 43 L. Ed. 142). In the case of American
and Ocean Ins. Cos. vs. 356 Bales of Cotton (1 Pet. [26 U.S.] 511, 542,
7 L. Ed. 242), Chief Justice Marshall said:
On such transfer (by cession) of territory, it has never
been held that the relations of the inhabitants with each
 other undergo any change. Their relations with their
former sovereign are dissolved, and new relations are
created between them and the government which has
acquired their territory. The same act which transfers
their country, transfers the allegiance of those who
remain in it; and the law which may be denominated
political, is necessarily changed, although that which
regulates the intercourse and general conduct of
individuals, remains in force, until altered by the newly-
created power of the State.
Likewise, in People vs. Perfecto (43 Phil. 887, 897 [1922]), this Court stated that: "It is
a general principle of the public law that on acquisition of territory the previous political
relations of the ceded region are totally abrogated. "
There appears no enabling or affirmative act that continued the effectivity of the
aforestated provision of the Code of Commerce after the change of sovereignty from
Spain to the United States and then to the Republic of the Philippines. Consequently,
Article 14 of the Code of Commerce has no legal and binding effect and cannot apply to
the respondent, then Judge of the Court of First Instance, now Associate Justice of the
Court of Appeals.
It is also argued by complainant herein that respondent Judge violated paragraph H,
Section 3 of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt
Practices Act, which provides that:
Sec. 3. Corrupt practices of public officers. — In addition to acts or
omissions of public officers already penalized by existing law, the
following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
x x x           x x x          x x x
(h) Directly or indirectly having financial or pecuniary
interest in any business, contract or transaction in
connection with which he intervenes or takes part in his
official capacity, or in which he is prohibited by the
Constitution or by any Iaw from having any interest.
Respondent Judge cannot be held liable under the aforestated paragraph because there is
no showing that respondent participated or intervened in his official capacity in the
business or transactions of the Traders Manufacturing and Fishing Industries, Inc. In the
case at bar, the business of the corporation in which respondent participated has
obviously no relation or connection with his judicial office. The business of said
corporation is not that kind where respondent intervenes or takes part in his capacity as
Judge of the Court of First Instance. As was held in one case involving the application of
Article 216 of the Revised Penal Code which has a similar prohibition on public officers
against directly or indirectly becoming interested in any contract or business in which it
is his official duty to intervene, "(I)t is not enough to be a public official to be subject to
this crime; it is necessary that by reason of his office, he has to intervene in said
contracts or transactions; and, hence, the official who intervenes in contracts or
transactions which have no relation to his office cannot commit this crime.' (People vs.
Meneses, C.A. 40 O.G. 11th Supp. 134, cited by Justice Ramon C. Aquino; Revised
Penal Code, p. 1174, Vol. 11 [1976]).
It does not appear also from the records that the aforesaid corporation gained any undue
advantage in its business operations by reason of respondent's financial involvement in
it, or that the corporation benefited in one way or another in any case filed by or against
it in court. It is undisputed that there was no case filed in the different branches of the
Court of First Instance of Leyte in which the corporation was either party plaintiff or
defendant except Civil Case No. 4234 entitled "Bernardita R. Macariola, plaintiff,
versus Sinforosa O. Bales, et al.," wherein the complainant herein sought to recover Lot
1184-E from the aforesaid corporation. It must be noted, however, that Civil Case No.
4234 was filed only on November 9 or 11, 1968 and decided on November 2, 1970 by
CFI Judge Jose D. Nepomuceno when respondent Judge was no longer connected with
the corporation, having disposed of his interest therein on January 31, 1967.
Furthermore, respondent is not liable under the same paragraph because there is no
provision in both the 1935 and 1973 Constitutions of the Philippines, nor is there an
existing law expressly prohibiting members of the Judiciary from engaging or having
interest in any lawful business.
It may be pointed out that Republic Act No. 296, as amended, also known as the
Judiciary Act of 1948, does not contain any prohibition to that effect. As a matter of
fact, under Section 77 of said law, municipal judges may engage in teaching or other
vocation not involving the practice of law after office hours but with the permission of
the district judge concerned.
Likewise, Article 14 of the Code of Commerce which prohibits judges from engaging in
commerce is, as heretofore stated, deemed abrogated automatically upon the transfer of
sovereignty from Spain to America, because it is political in nature.
Moreover, the prohibition in paragraph 5, Article 1491 of the New Civil Code against
the purchase by judges of a property in litigation before the court within whose
jurisdiction they perform their duties, cannot apply to respondent Judge because the sale
of the lot in question to him took place after the finality of his decision in Civil Case No.
3010 as well as his two orders approving the project of partition; hence, the property
was no longer subject of litigation.
In addition, although Section 12, Rule XVIII of the Civil Service Rules made pursuant
to the Civil Service Act of 1959 prohibits an officer or employee in the civil service
from engaging in any private business, vocation, or profession or be connected with any
commercial, credit, agricultural or industrial undertaking without a written permission
from the head of department, the same, however, may not fall within the purview of
paragraph h, Section 3 of the Anti-Graft and Corrupt Practices Act because the last
portion of said paragraph speaks of a prohibition by the Constitution or law on any
public officer from having any interest in any business and not by a mere administrative
rule or regulation. Thus, a violation of the aforesaid rule by any officer or employee in
the civil service, that is, engaging in private business without a written permission from
the Department Head may not constitute graft and corrupt practice as defined by law.
On the contention of complainant that respondent Judge violated Section 12, Rule XVIII
of the Civil Service Rules, We hold that the Civil Service Act of 1959 (R.A. No. 2260)
and the Civil Service Rules promulgated thereunder, particularly Section 12 of Rule
XVIII, do not apply to the members of the Judiciary. Under said Section 12: "No officer
or employee shall engage directly in any private business, vocation, or profession or be
connected with any commercial, credit, agricultural or industrial undertaking without a
written permission from the Head of Department ..."
It must be emphasized at the outset that respondent, being a member of the Judiciary, is
covered by Republic Act No. 296, as amended, otherwise known as the Judiciary Act of
1948 and by Section 7, Article X, 1973 Constitution.
Under Section 67 of said law, the power to remove or dismiss judges was then vested in
the President of the Philippines, not in the Commissioner of Civil Service, and only on
two grounds, namely, serious misconduct and inefficiency, and upon the
recommendation of the Supreme Court, which alone is authorized, upon its own motion,
or upon information of the Secretary (now Minister) of Justice to conduct the
corresponding investigation. Clearly, the aforesaid section defines the grounds and
prescribes the special procedure for the discipline of judges.
And under Sections 5, 6 and 7, Article X of the 1973 Constitution, only the Supreme
Court can discipline judges of inferior courts as well as other personnel of the Judiciary.
It is true that under Section 33 of the Civil Service Act of 1959: "The Commissioner
may, for ... violation of the existing Civil Service Law and rules or of reasonable office
regulations, or in the interest of the service, remove any subordinate officer or employee
from the service, demote him in rank, suspend him for not more than one year without
pay or fine him in an amount not exceeding six months' salary." Thus, a violation of
Section 12 of Rule XVIII is a ground for disciplinary action against civil service officers
and employees.
However, judges cannot be considered as subordinate civil service officers or employees
subject to the disciplinary authority of the Commissioner of Civil Service; for, certainly,
the Commissioner is not the head of the Judicial Department to which they belong. The
Revised Administrative Code (Section 89) and the Civil Service Law itself state that the
Chief Justice is the department head of the Supreme Court (Sec. 20, R.A. No. 2260)
[1959]); and under the 1973 Constitution, the Judiciary is the only other or second
branch of the government (Sec. 1, Art. X, 1973 Constitution). Besides, a violation of
Section 12, Rule XVIII cannot be considered as a ground for disciplinary action against
judges because to recognize the same as applicable to them, would be adding another
ground for the discipline of judges and, as aforestated, Section 67 of the Judiciary Act
recognizes only two grounds for their removal, namely, serious misconduct and
inefficiency.
Moreover, under Section 16(i) of the Civil Service Act of 1959, it is the Commissioner
of Civil Service who has original and exclusive jurisdiction "(T)o decide, within one
hundred twenty days, after submission to it, all administrative cases against permanent
officers and employees in the competitive service, and, except as provided by law, to
have final authority to pass upon their removal, separation, and suspension and upon all
matters relating to the conduct, discipline, and efficiency of such officers and
employees; and prescribe standards, guidelines and regulations governing the
administration of discipline" (emphasis supplied). There is no question that a judge
belong to the non-competitive or unclassified service of the government as a Presidential
appointee and is therefore not covered by the aforesaid provision. WE have already
ruled that "... in interpreting Section 16(i) of Republic Act No. 2260, we emphasized
that only permanent officers and employees who belong to the classified service come
under the exclusive jurisdiction of the Commissioner of Civil Service" (Villaluz vs.
Zaldivar, 15 SCRA 710,713 [1965], Ang-Angco vs. Castillo, 9 SCRA 619 [1963]).
Although the actuation of respondent Judge in engaging in private business by joining
the Traders Manufacturing and Fishing Industries, Inc. as a stockholder and a ranking
officer, is not violative of the provissions of Article 14 of the Code of Commerce and
Section 3(h) of the Anti-Graft and Corrupt Practices Act as well as Section 12, Rule
XVIII of the Civil Service Rules promulgated pursuant to the Civil Service Act of 1959,
the impropriety of the same is clearly unquestionable because Canon 25 of the Canons
of Judicial Ethics expressly declares that:
A judge should abstain from making personal investments in enterprises
which are apt to be involved in litigation in his court; and, after his
accession to the bench, he should not retain such investments previously
made, longer than a period sufficient to enable him to dispose of them
without serious loss. It is desirable that he should, so far as reasonably
possible, refrain from all relations which would normally tend to arouse
the suspicion that such relations warp or bias his judgment, or prevent
his impartial attitude of mind in the administration of his judicial duties.
...
WE are not, however, unmindful of the fact that respondent Judge and his wife had
withdrawn on January 31, 1967 from the aforesaid corporation and sold their respective
shares to third parties, and it appears also that the aforesaid corporation did not in
anyway benefit in any case filed by or against it in court as there was no case filed in the
different branches of the Court of First Instance of Leyte from the time of the drafting of
the Articles of Incorporation of the corporation on March 12, 1966, up to its
incorporation on January 9, 1967, and the eventual withdrawal of respondent on January
31, 1967 from said corporation. Such disposal or sale by respondent and his wife of their
shares in the corporation only 22 days after the incorporation of the corporation,
indicates that respondent realized that early that their interest in the corporation
contravenes the aforesaid Canon 25. Respondent Judge and his wife therefore deserve
the commendation for their immediate withdrawal from the firm after its incorporation
and before it became involved in any court litigation
III
With respect to the third and fourth causes of action, complainant alleged that
respondent was guilty of coddling an impostor and acted in disregard of judicial
decorum, and that there was culpable defiance of the law and utter disregard for ethics.
WE agree, however, with the recommendation of the Investigating Justice that
respondent Judge be exonerated because the aforesaid causes of action are groundless,
and WE quote the pertinent portion of her report which reads as follows:
The basis for complainant's third cause of action is the claim that
respondent associated and closely fraternized with Dominador Arigpa
Tan who openly and publicly advertised himself as a practising attorney
(see Exhs. I, I-1 and J) when in truth and in fact said Dominador Arigpa
Tan does not appear in the Roll of Attorneys and is not a member of the
Philippine Bar as certified to in Exh. K.
The "respondent denies knowing that Dominador Arigpa Tan was an
"impostor" and claims that all the time he believed that the latter was
a bona fide member of the bar. I see no reason for disbelieving this
assertion of respondent. It has been shown by complainant that
Dominador Arigpa Tan represented himself publicly as an attorney-at-
law to the extent of putting up a signboard with his name and the words
"Attorney-at Law" (Exh. I and 1- 1) to indicate his office, and it was but
natural for respondent and any person for that matter to have accepted
that statement on its face value. "Now with respect to the allegation of
complainant that respondent is guilty of fraternizing with Dominador
Arigpa Tan to the extent of permitting his wife to be a godmother of Mr.
Tan's child at baptism (Exh. M & M-1), that fact even if true did not
render respondent guilty of violating any canon of judicial ethics as long
as his friendly relations with Dominador A. Tan and family did not
influence his official actuations as a judge where said persons were
concerned. There is no tangible convincing proof that herein respondent
gave any undue privileges in his court to Dominador Arigpa Tan or that
the latter benefitted in his practice of law from his personal relations
with respondent, or that he used his influence, if he had any, on the
Judges of the other branches of the Court to favor said Dominador Tan.
Of course it is highly desirable for a member of the judiciary to refrain
as much as possible from maintaining close friendly relations with
practising attorneys and litigants in his court so as to avoid suspicion
'that his social or business relations or friendship constitute an element
in determining his judicial course" (par. 30, Canons of Judicial Ethics),
but if a Judge does have social relations, that in itself would not
constitute a ground for disciplinary action unless it be clearly shown
that his social relations be clouded his official actuations with bias and
partiality in favor of his friends (pp. 403-405, rec.).
In conclusion, while respondent Judge Asuncion, now Associate Justice of the Court of
Appeals, did not violate any law in acquiring by purchase a parcel of land which was in
litigation in his court and in engaging in business by joining a private corporation during
his incumbency as judge of the Court of First Instance of Leyte, he should be reminded
to be more discreet in his private and business activities, because his conduct as a
member of the Judiciary must not only be characterized with propriety but must always
be above suspicion.
WHEREFORE, THE RESPONDENT ASSOCIATE JUSTICE OF THE COURT OF
APPEALS IS HEREBY REMINDED TO BE MORE DISCREET IN HIS PRIVATE
AND BUSINESS ACTIVITIES.
SO ORDERED.