il

Tnn 1987 CorvsururroN

OF THE
Rnpunr,rc oF THE Purr,rpprNns:
A CoUUENTARY

JOAQUIN G.BERNAS,SJ.
Jesuit Residence
Ateneo de Manila University
Loyola Heights, Quezon City
Philippines
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2OO9 EDITION
 Philippine Copyright, 2009
by

JOAQUIN G. BERNAS, S.J.

PREFACE
tsBN 978-971 -23-5326-0
The 1987 Constitution completed its twenty-second year last
No portion of this book may be copied or
February 2,2OC9. Tltere have been attempts to amend or revise the
reproduced in books, pamphlets, outlines or notes,
whetherprinted, mimeographed, typewritten, copied document but none has succeeded.
in different electronic devices or in any other form, for It is not that the l9E7 Constitution is a perfect document. But part
distribution or sale, without the written permission of the reason why it has survived attempts at alteration has been the
ofthe author except briefpassages in books, articles, contoversy swirling around the meaning of the document's amendatory
reviews, legal papers, and judicial or other official
process in Article XVII. Initially designed for a unicameral National
proceedings with proper citation.
Assembly, by oversight, Article XVII has been forced into service for a
Arry copyof this bookwithoutthe correspond- bicameral Congress. Hence, there has been a raging debate about how
ing number and the signature of the author on this it should be read.
page either proceeds an illegitimate source or is
Until a definitive interpretation of its meaning can be arrived at,
iffi:u"c no authority to dispose
the document, for weal or woe, will remain untouched.

In recent months, however, the process towards clarification

has intensified. Meanwhile, jurisprudence on the document's various
BY THE AUTHOR provisions has grown over the years and a mere supplement to the 2003
edition to the author's Commentary would be unwieldy. This updated
N9 1914 2009 edition incorporat€s jurisprudence up to the end of 2008 in the
hope of making it more useful for those who will eventually undertake
the task of amendment or revision.
tsBN 978-971-23-5326 0

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CONTENTS

Preface........ lll

PREAMBLE I
1. Deliberations on the Committee Report I
2. Purpose and effect of the Preamble..........'.'..'.. 4

ARTICLE I: THE NATIONALTERRITORY 5

Section I ................. '........'.:......... 5

1. The Place of Territorial Delimitation in the

935 Constitution.....'........
I 5
2. National Territory under the 1935 Constitution....'.""""" 7
3. Why a Definition of Territory in the 1973 and 1987
Constitutions? ..'-............. 8
4. The 1973 Provision on National Tenitory 1l
5. 1982 Convention on the Law of the Sea (LOS)."""""""' 2r
6. National Territory in the 1987 Constitution. 28
7. Summary and Conclusion................ 33

ARTICLE II: DECLARATION OF PRINCIPLES AND STATE

POLICIES 35

PRINCIPLES ................. 35

Section I ................. 35

1. Title of the Article 35

2. Definition and elements of "state." 38
q
3. Id.; "PeoPle"
4. Id.; "Territory" ......'..'........ 4t
lh
I 5. Id.; "government"; definitions and functions.'......"""""" 43
6. Id.; government de jure and de facto .'....'..... 47
7 . Government under the 1986 Freedom Constitution.."""" 47
8. The government under Gloria Macapagal-Alroyo """""' 52
9. Presidential and parliamentary government ...'......"""""' 52
10. "SovereigntY 54
ll. "Democratic and republican state" 56

iv
 Section 2 59 y'l Section 13 ................ 87

1. Renunciation of war.......... 59 1. Vital role...... 87

2. Incorporation of international law .......... 60 88
Section 14 ................
3. Adherence to policy of peace, freedom, amity ................. 63

Section 3
1. Equality of women and men 89
64
Section l5 ................ 89
1. Civilian supremacy 64
2. Role of the armed forces 65 l. The right to health....... 90

Section 16 .,.............. 90
Section 4 66

1. Compulsory military and civil service; protection

1. Right to abalanced and healthful ecology 90

of people and state 66 Section l7 ................ 9l

Section 5 70 l. Education, science and technologY, arts and culture
and sPorts 9l
1. Peace and order, general welfare 70
Section I 8 ................ 91
Section 6 7l
t. Separation of Church and State 7l
1. Labor........... 92

Section 19 ................ 94
STATE POLICIES Section 20 ................ 94

Section 7 7t l. Nationalist economy and private initiative 94

95
l. An independent foreign po1icy........... 7t Section 21 ................

Section 8 72 1. Comprehensive rural and agrarian policy '......'.. 95

Section 22 ................ 95
1. A policy of freedom from nuclear weapons....... 72

Section 9 75
l. The welfare of indigenous cultural communities 95

Section 23 ................ 95
1. Social order 75
l. Community-basedprivateorganizations 96
Section l0 76
Section 24 ................
1. Social Justice in the 1935 Constitution 76
2. . Social Justice in the 1973 Constitution 80
1. Communications......'.'..... 96

3. Social justice under the 1987 Constitution 82 Section 25 ................ 96

Section ll 82 l. Local autonomy ............'.. 96

l. Personal dignity and human rights............ 82 Section 26 ................ 98

Section t2 82 l. Political dynasties 98

Section 27 ................ 99
t. The family as basic social institution 83
Section 28 ................ 99
2. Protection of the unborn 84
3. Natural right and duty of parents ................. n5 l. Honesty and integrity in public service 99
 !"

ARTICLE III: BILL OF RIGHTS r00 15. Suspicionless drug tests 203
Anests with warrant 204
Section I ................. 100 16.
17. Warrantless arrest..........., 207
l. Bill of Rights: Protection against abuse of power ............ 100 18. When to challenge validity of arrest 2tt
2. Life, Liberty, Property..... 105 19. ASSOs and Presidential Commitment Orders (PCO)..'.... 212
3. Hierarchy of rights lll Section 3 217
4. Due process as procedural fairness il3
5. Substantive due process il8 t. Privacy of communication and correspondence'............'. 217
6. Publication and clarity of laws as a requirement 2. Exclusionary rule: historical development.......'...'............ 221
of due process ................... l3l J. Exclusionary rule: current status..'......... 229
7 . Equal protection............... 139 4. Violations by private persons..'..... 229
8. Alienage as basis of classification................. t45 230
Section 4
9. Equal protection and laws of local application... t52
10. Adjustments resulting from war...... 154 1. 1987 Text..... 231
ll. Equal protection and the political process 155 2. Freedom of Speech and Press: prior restraint
12. Equal protection and land reform 158 and subsequent punishment...............'... 231
13. Equality in the criminal process..... 159 3. Prior restraint and the press............ 234
14. Equal protection and women, etc................ 162 4. Prior restraint, movies and electronic media.......' 239
15. Miscellany on equal protection.... t& 5. Media and judicial process......... 243
16. The future of equal protection.... 165 6. Media and privacy.. 244
7. Subsequent punishment: standards for restraint 248
Section 2 ................. 166
8. The constitutional guarantee in action:
l. Purposoof the provision t67 seditious speech .....:i:........'.... 252
2. Probable cause ........... 169 9. Id.; Contempt of court by publication..'................ 257
3. Determination of probable cause: by whom and 10. process........'
Purifying the electoral 271
how; meaning of "personally" ............... 172 11. Commercial speech.......... 281
4. From the 1973 Constitution interlude to the t2. Unprotected speech: 1ibe1.............. 283
1987 restoration ............... t74 13. Unprotected speech: obscenitY 296
5. Personal examination of the witnesses ............... 177 14. Miscellany on Freedom of Expression 306
6. Particularity of description 182 15. Assembly and petition.. 310
7. Searches and seizures "ofwhatever nature and for
Section 5 324
any purpose" 186
8. Warrantless searches and seizures: (1) search 1. Jurisprudence before the 1935 Constitution 324
' incidental to arrest. l9r 2. Free exercise and non-establishment of religion:
9. Warrantless searches and seizures: (2) search in general 327
of moving vehicles........ 193 J. The free exercise clause .......... 330
10. Warrantless searches and seizures: (3) evidence 4. The non-establishment clause .......... 345
in plain view ............ 197 5. Non-discriminatory concessions : tax exemptions
11. Warrantless searches and seizures: (4) customs and chaplaincies................ 359
inspections lglt 6. Religion in the public schools......... 362
12. Warrantless searches and seizures: (5) waiver.... 198 7. Intramural religious disputes........ 366
13. "Exigentcircumstance 2(Xr 8. Religious tests and obligations of citizenship 368
14. The "stop and frisk" ru|e.............. 9. Church and state under martial ruIe......'....' 372
.l(, r

vlll lx
 lr

Section 6 ................. 375 3. Rights of a person under investigation.'....""' 473

4. When Section 129(1) rights end 476
l. Freedom of movement: liberty of abode and of lrnvcl ..... 375
5. Waiver of the rights. 477
2. Aliens and right of entry 379
6. Coerced confessions'. 479
Section 7 ................. 379 7. Exclusionary ru1e.............- 480
8. Retroactivity or prospectivity ...'..'......... 484
l. Right to information, access to public documents............ 380 g. Penal and civil sanctions, compensation and
Section 8 ................. 3tt6 rehabilitation 485

1. Right of association............ 3tt7 Section 13 ................ 486

2. Right of association in the 1987 text............... 3tt9
1. Right to bail..'............ 486
3. The right of association in action: labor, subversion ........ 39t
2. The 1987 Provision 496
Section 9 ................. 396 3. Excessive bai1............... 496

l. Eminent domain 396 Section 14................ 497

2. Eminent domain: Definition, nature........... 396
l. Due process in criminal cases............ 497
3. Publicuse............... lmo
2. Due process and military tribunals 503
4. Just compensation............ 4A2
3. "In all criminal prosecutions . . . " 509
5. Just compensation in the 1987 Constitution 413
4. PresumPtion of innocence 510
6. Expropriation for resale to the landless ............................ 415
5. Right to be heard....... 5I4
7. Judicial Review........ 426
8. Does "res judicata" apply? 432
6. Right to counsel in Section l4(2)--......-... 516

9. Regulation versus taking.......... 433

7. night to be informed 523

10. Expropriation of municipal property 439

8. Speedy, impartial, and public trial ....""""' " 526
g. Rlghttoconfrontation 530
I l. Expropriation by municipal property... 442
12. Eminent domain and contracts 443
10. Compulsory process..........!...-....r'r..,."" 533
11. Trial in absentia........ 534
Section l0 ................ 444
Section l5................ 535
l. The Contract Clause before the 1935 Constitution........... 444
) The Contract Clause at the 1935 Constitutional
1. Suspension of the privilege: seat and limits of the
power under the 1935 and 1973 Constitutions """"" 535
Convention.. 448
3. Jurisprudence on the Contract Clause under the
2. Effect of the suspension of the privilege under
the 1935 and 1973 Constitutions 545
1935 Constitution............... 451
4. Police power and contracts 455
3. Changes made by the 1987 Constitution 552

5.
"
Reservation clause .......... 459 Section 16................ 556
6. The contract clause under the 1973 and 1987
Constitutions 461
l. SpeedY disPosition ofcases 556

Section 17 ................ 558

Section ll ................ 4&
l. Free access to courts, quasi-judicial bodies,
l. Self-incrimination ............ 558

and adequate legal assistance................. 4& 2. Documents and Records 563

Section l8 ................ 565

Section 12................. 466
I. Freedom of political belief '.......... s65
I. Evolution of the provision ................ '167
2. "Any person under investigation ... ,l(r() 2. Involuntary servitude s65
 Section 19 ................ 568 Section .................
5 648
1. Cruel, degrading or inhuman punishment; 1. Dual citizenship ............... 648
excessive fines ............ 569 2. Dual a11egiance................. 649
2. Abolition of death penalty 574
3. Capital punishment restored, reviewed, stopped 578 ARTICLE V: SUFFRAGE............... 651

4. Custodial cruelties and inadequate penal facilities s80 Section I """"""""' 651
Section 20 ................ 58t Section 2 .......,......... 651

l. Imprisonment for debt...... 58r 1. Suffrage as right and dutY 651

2. Non-payment of poll tax............... 588 2. The broadening of the mass base 654

Section 2l ................
3. CitizenshiP qualification 656
-589 4. Age qualification..............'.. 656
1. Double jeopardy................... -589 5. Residence qualification 658
2. When jeopardy attaches 592 6. Absentee voting .......... 66I
3. Termination of jeopardy.. 594 7. Prohibited qualifications: Literacy test .'............ 664
4. The same offense 601 8. Voting by illiterates and disabled in the 1987
5. Same offense: Ordinance and Statute 608 constitution' 667
6. Same offense: "Supervening Fact" 612 g. Secrecy and sanctity ofthe ballot 668
7. Appeals 615 10. Prohibited qualifications: property..... 669

Section 22 ................
11. Prohibited qualifications: other substantive
618
requirements 670
1. "Ex post facto" laws... 618 12. Disqualifications: forfeiture of the right '........... 671
2. Billsofattainder................ 623 13. The requirement of registration .....'......... 674

ARTICLE IV: CITIZENSIilP........ 629 ARTICLE VI: THE LEGISLATIVE DEPARTMENT .. 675

Section I ................. 629 Section I ................. 675

l. Citizenship 629 1. A Bicameral body ............ 675

2. Citizens of the Philippines at the time of the adoption 2. Nature of legislative power....'..... 676
of the 1973 Constitution 630 3. Separation of powers..... 677
3. Children of Filipino fathers or mothers 632 4. Limits on legislative power."........ 678
4. Citizens by election... 633 5. The holders of legislative power: Congress;
5. Naturalization, judicial and administrative ....................... 637 people through initiative and referendum;
President in emergencY 679
Section 2 640
6. The Once and Former Legislative power of
l. Natural-borncitizen 640 President Marcos and President Aquino....... 681

Section 3 ................. 642 7. Non-delegability of legislative power'..'....'.. 685

8. Developments in jurisprudence............... 69t
l. Loss of citizenship........... 642 9. Exceptions to non-delegability .............. 695
2. Reacquisition of citizenship 644
696
Section 2
Section 4 641
l. Composition and election of Senate 696
t. Marriage to an alien spouse 647
Section 3 ................. 697

xii
 i

2. "A quorum to do business" ..'....""""" 740

1. Qualification of Senators... 697
741
3. Internal rules and disciPline
Section 4 ................. 698 4. Journals, Record: publicity and probative value;
"enrolled bill" rule 743
1. The term of Senators; staggering of terms....... 698
747
5. Recess
Section 5 .....................................; 699
747
Section l7 ................
1. Composition of the House of Representatives.................. 700
747
2. District representatives................. 701 1. Composition
2. Jurisdiction of the Electoral Tribunals 749
3. Apportionment ................. 702
755
4. Sectoral representation and party-list representation ........ 705 3. Independence of the Electoral Tribunals""'
5. Jurisprudence on the party-list system......... 709 Section 18 ................ 757
Section l9 ................ 757
Section 6 ................. 713

1. Qualifications of district and party-list representatives .... 7t3 1. Commission on Appointments: composition,
nature, functions 757
Section'7 ................. 719
Section 20 ..............'. 760
1. Term of Representatives..... 7t9 Section 2l ................
7@

Section 8 ................. 721 1. Legislative investigations................." 76t

Section 9 ................. 721
767
Section 22 ................
1. Filling vacancies 722
768
1. Congress and Heads of Departments """""""""
Section l0 ................ 723
771
Section 23 ................
1. Salary of Senators and Representatives 723
772
2. Allowances.. 724 1. Declaration of the existence of a state of war "
2. Delegation of emergency powers...""" 773
Section I I ................ 725
774
Section 24 ................
l. Privilege from arrest 725
2. Parliamentary freedom of speech and debate 727 l. Origin of money bills, private bills and bills
of local aPPlication 77s
Section 12 ................ 729
Section 25 ................
776
1. Financial and business interests 730
777
l. Limits on Power to apProPriate
Section 30 ................ 730 2. Prohibition of increase 779

1. Disqualifications............. 730 3. Prohibition of "riders" in appropriation bills 779

4. Transfer of funds....... 780
Section l4 ................ 731 5. Appropriations must be for a public purpose"""""""""" 781

1. Prohibitions; lawyer legislators.... 731 Section 26 ...........,.... 782

2. Prohibitions: Conflict of interests 734
l. Subject and title ofbills: general prohibition
Section 15 ................ 734 of "riders" 783
2. Three readings.'....."........ 785
l. Sessions of Congress.. 714
Section 27 ................ 788
Section I 6 ................. 73.5

L Otliccrs of (lclngress 736 I . Passage of bil1s.......... 788

 2. Conference Committees. 189 2. Term of the President and Vice-President........... 84r

3. Veto power; "item veto".. 19t 3, The Congress as national board of canvassers.................. 842

4. The new "doctrine of inappropriate provisions"............... 794 4. Breaking a presidential or vice-presidential tie ........'....... 844

5. Executive "impoundment"................ 798 5. hesidential andVice-Presidentialelection

controversies 84
Section 28 ................ 799
Section 5 845
1. Poweroftaxation: scope and purpose 199 Section 6 846
2. Limitation on the power to tax............ 801 Section 7 846
3. Specific limits on the taxing power: "uniform Section 8 846
and equitable" .................. 803
4. Progressive system of taxation... 805
1. Filling in the
a vacancy presidency..............' 847

5. Delegated tax legislation................... 805

2. From Joseph Estrada to GloriaArroyo '............... 847

6. Taxexemptions................. 807 Section 9 ................. 858

Section 29 ................ 8ll 1. Vacancy in the Office of Vice-President...'......... 858

l. Fiscal powers of Congress 811 Section l0 ................ 858

2. Special funds........... 814
l. Vacancy in both the presidency and vice-presidency ..."" 859
Section 30 ................ 815
Section ll ................ 859
l. Appellate jurisdiction of the Supreme Court 815
1. Incapacity of the President.....'......-.... 860
Section 3 I ................ 816
Section 12................ 861

l. Titles of royalty or nobility 816 1. Serious illness of the President ..........'...... 862
Section 32 ................ 816 Section 13................ 862
I . Initiative and referendum................. 817 l. Prohibition againstholding anotheroffice
or emPloYment ................. 862
ARTICLE VII: EXECUTIVE DEPARTMENT 820
2. Otherprohibitions..........- 867
Section I ................. 820
Section 14 ................ 868
l. The executive power....... 820 Section l5 ................ 868
2. Ceremonialfunctions 827
l. Midnightappointments 868
3. Immunity from suit 82',7
4. ' Executive privilege 835 Section 16 ................ 869

5. The Cabinet. 837

l. Nature of the aPPointing Power 869
Section 2 ................. 838 2. Kinds of presidential appointments 87t
l. 3. Scope of the power of the Commission
Qualifications of the President..... 838
on Appointments ..'............. 872
Section 3 ................. 839 4. Appointment of officers "lower in rank" 876

1. The Vice-President........... 839

5. May Congress require other appointments to be
confirmed by the Commission on Appointments?""' 878
Section 4 ......,.......... 840 6. "Recess" or "ad-interim" appointments and
l. Election of the President and Vice-President........ n.t I
"temporary appointments"..............'.'.. 882

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 7. Aquino appointments made between Section 23 ................ 945
February 2,1987 and July 2i , 1987 886
ARTICLE VIII: JUDICIAL DEPARTMENT......'.. 946
Section l7 ................ 888
Section I .................. 946
.
I Power of control..... 888
2. Faithful execution clause .......... 894 1. JudicialPower.........' 946

Section I 8 ................
2. Intrinsic limit on judicial power...... 948
895 3. Grave abuse of discretion. 951
l. Commander-in-chiefship 896 4. AdvisoryoPinions'...'.. 954
2. Three types of "martial law"............. 898 5. Declaratory relief ...........' 957
3. Martial law proper is essentially police power 901 Section 2 ................. 957
4. T\e 1972 Martial Law............. 903
5. Id.; Aquino, Jr. v. Enrile 906 1. Role of the legislature 958
6. Id.; Aquino, Jr. v. COMELEC............... 910 Section 3 ................. 961
7. Id.; Aquino, Jr. v. Military Commission No. 2;
Military Tribunals 9t3
1. Fiscalautonomy..............' 961

8. Id.; Sanidad v. COMELEC; Constituenr powers 913 Section 4 ................. 962

9. Id.; Jurisprudenctial legacy of martial law........................ 915 1. Composition and sessions 963
10. The new martial law doctrine; when, by whom,
5 966
and how imposed? 916 Section .................
11. The new martial law doctrine: role of Congress l. Powers of the Supreme Court...'....... 967
andCourt 917 2. Judicial review 968
12. The new martial law doctrine: effects of imposition ........ gl9 J. Requisites for the exercise of judicial review:
13. The May 2001 "state of rebellion" or "state "actual case" and "ripeness".... 97O
emergency"...................
of 921 4. Requisites for the exercise of judicial review:
"standing" 972
Section 19 .....................!............... 924
5. Standing of legislators, taxpayers and citizens 981
l. Pulpose of executive clemency..... 924 6. Other requisites for judicial review.'........ 984
2. Constitutional limits on executive clemency gZ4 7. Political questions 985
3. Pardon: nature and legal effects gLs 8. Effect of declaration of unconstitutionality 994
4. Amnesty 927 9. Judicial review by inferior courts .......... 99s
5. Other forms of executive clemency g3Z 10. Modalities of constitutional interpretation .............'........'. 996
11. Review of death sentences 998
12. Temporary assignment of judges 999
l. Power to contract or guarantee foreign loans ................... 933 13. Change of venue 1000

Section 2l ................ 14. Rules concerning protection and enforcement of

935
constitutional rights, pleading, practice,
I. Senate concurence in international agreements............... 935 and procedure, and admission to the 8ar................... l0O1
2. The Visiting Forces Agreement... 938 15. Congress and the Rules of Court ..'............'. 1005
3. Termination of treaty....... 9N 16. Integration of the Bar.... .'.'...... 1008
4. Other foreign affairs powers 94t 11. Appointment of court officials and employees ...........'..... 1012
Section 22 ................ 943 Section 6 """' 1012

l. The Budger.. 94't t. Adrninistrativc supervision of inferior courts ...'....-'. ....-... l0l2
 Section 7 ................. 1014 Section 7 ................. ........... 1038
l. Qualifications of Members of the Judiciary 1015 1. Decisions of theCommissions.......... ........... 1039
Section 8 ................. l0l6 2. Review of decisions ................ 1040

l. The Judicial and Bar Council........ l0l7 Section 8 ................. ........... 1043

Section 9 ................. 1018 B. The Civil Service Commission ............. 1043

l. Appointment of justices and judges... l0l8 Section I ................. ........... 1043
Section l0 ................ l0l9 1. Purpose and History of the System ........'.'... lO44
l. Diminution of salary l0l9 2. Organization of the Commission............ ..... 1045
Section I I ................ to20 Section 2 ................. ....'.'.... lO47
1. Security ofTenure in thejudiciary to20
1. Scope of the System......... ....... 1047
Section 12 ................ to25 2. Classification and appointments ............. ..... 1051
l. Non-judicial assignments. 1025 3. Role of the Civil Service Commission
in appointments................ ..................... 1052
Section l3 ................ to25
4. Security of tenure...... .............. 1053
1. Process of decision making......... to26 5. Electioneering or partisal political activity .. 1061
Section l4 ................ 1027 6. The right to self-organization........... ............ 1062
l. Contents of decisions of courts...... to27 Section 3 ................. ........... 1063
2. Petitions for review and motions for reconsideration....... 1030 1. Powers of the Commission ........... ............... 1063
Section l5 ................ 1030 Section 4 ................. ........." 1064
l. Period of making decisions..... 1031 1. Oath to defend this Constitution.............. .... 1064
2. Period for decisions under the 1973 Constitution............. to32
3. Report to the President and to Congress 1034
Section 5 ................. ........... 1064
1. Standardization of compensation........... ...... 1065
ARTICLE IX: CONSTITUTIONAL COMMISSIONS...................... 1035
Section 6 ................. ........... 1065
A. Common Provisions 1035
l. Political lame ducks ................ 1065
Section I 1035
Section 1 ................. ........... 1065
1.. The Constitutional Commissions .......... 1035
1. Political opportunism and spoils.... .............. 1066
Section 2 1035
Section 8 ................. ..........' 1067
Section 3 1036
Section 4 ........'............ 1036 1. Additional or double compensation ............. 1067
2. Present, emolument, office or title from a
l. Appointing power .......... 1036 foreign state ............. 1070
Section 5 1036 C. The Commission on Elections loTt
l. Automatic release of funds 1036
Section I ............. lo7l
Section 6 1036
Composition, qualifi cations, appointment, term ............... 107 I
l. Independence of the Commissions 1037
 Section 2 1075 Section 3 ................. 1109

l. ;;;";;;;;;;;;;: :: : :::: to17 Section 4 ................. It09

,,
Historical development of Commission's ARTICLE X: LOCAL GOVERNMENT............ 1110
administrative powers: 1935 - 1987 1078
3. Section 2(2): Election contests........ 1083
General Provisions ll10
4. Section 2(3): Powers not given 1087 SectionI ................. l1l0
5. Section 2(4): Depatizing law enforcement agencies ........ 1088
1. Units of local government 1110
6. Section 2(5): Registration of parties and organizations .... 1089
7. Section 2(6): Prosecution of election offenses.... 1091 Section 2 ......,.,........ tttz
8. Section 2(7 ), (8), and (9) : Recommendatory powers ........ to92 l. Local autonomy ............... tl12
Section 3 to92 Section 3 ................. ttlT
l. Commission decisions to92 l. Local Government Code... ttt7
Section 4 1093 Section 4 ................. 1119

l. ;";; ;; ;;: ;,;;;;";, ;";;;, ;;;";,; tog4 l. The President and local governments tl20
Section 5 1096
2. Hierarchical relation among local units Lt2l
Section 5 ................. tlzt
l. Pardons........ 1096

1096
1. Sourcesofrevenue... tt22
Section 6
Section 7 1096 Section 6 ................. r126
Section 8 :::::::::::: 1096 l. Share in the national taxes ............ tl26
t. From two-party, to multi-party, to one-party, SectionT ................. tt28
to multi-party system tog'l
l. Share in proceeds from natural resources I 128
Section 9 1098
Section 8 ................. tr28
1. "Election period" 1098
l. Term oflocal officials tt28
Section l0 ................ 1099
Section 9 ................. tt32
I . Equal protection of candidates.............. 1099
I . Sectoral representation................... 1132
Section -1 I ................ 1099 Section 10 ................ 1133
l. Fiscal autonomy............... 1099 l. Creation, division, merger, abolition, substantial
D. The Commission on Audit .......... 1099
boundary.
change of ......... 1133
Section 1l ................ ........... L134
Section I 1099

l. Purpose, organization, composition, appointment . I I00

l. Metropolitan political subdivisions. ............. 1134
Section 12.............,.. ........... 1136
Section 2 """"':"""""' I l0t
I . Classification of cities ............. 1136
L Powers and functions I l0l
2. Private auditors It07 Section 13................. ..........ll37
3. Rcview of Commission's decisions ................... ltog l. Common efforts, services, and resources ..... ll37

xxll
 Section 14 ................ 1137 Section 7 ................. ........... 1161

1. Regional development councils I 138 1. The Tanodbayan (Ombudsman) and the Special
Prosecutor ... 116l
Autonomous Regions I 138
Section 8 ................. ........... 1162
Section 15 ................ I 138
Section 9 ................. ........... 1163
l. Why and how many autonomous regions? I 138 Section 10................. .......... 1163
Section 11 ................ ........... 1163
Section 16 ................ 1139

1. The President and autonomous regions tt39 1. Qualifications, appointment, term.......... ...... 1163
Section 12................ ........... 1163
Section 17 ................ I 140
Section 18 ................ ll40 1. Procedure ........... 1164
Section l9 ................ ll40
Section 13................ ........... ll@
1. Enactment of Organic Acts and creation of Section 14................ ........... 1165
autonomous regions I 140
1. Powers and responsibilities of Ombudsman
Section 20 ................ fi45 and Deputies .................... 1165
1. Legislative power of autonomous regions tt46 Section 15................ ........... 1170
Section 2l ................ tl47 l. Prescription ........ 1170
1. Peace and orders, defense and national security............... tt47 Section 16................ ........... l17l
ARTICLE XI: ACCOUNTABILITY OFPUBLIC OFFICERS ........ ll48 l. Financial accommodations.............. ............. llTl
Section I 1148 Section l7 ................ ........... ll72

1. ;;;;;;"";;;;;;;,; :: : 1148 1. Disclosure of assets....... .......... ll72

Section 2 lt49 Section 18................ ........... ll72

l. Impeachment as "political justice" tt49 l. A public officer's allegiance ... ll72

2. Offi cers subject to impeachment................ 1l5l
J. Grounds for impeachment.................. tl52 ARTICLE XII: NATIONAL ECONOMY AND PATRIMONY ......... ll7 4
Section 3 tt54 Section I ................. ........... ll74
l. Nature and initiation of impeachment................ I 155 1 . General economic policy of the Constitution ................... ll74
2. Trial and penalties...... I 156
Section 2 ................. .....-...-. ll77
J. The Estrada impeachment trial ........... tt57
4. Only one impeachment in a year ll57 l. Jura regalia and limits on dominium ............ 1178
5. Prosecution after impeachment............. I 158 2. Limits on dominium ................ ll79
rt59
3. Exploration, development and utilization
ofinalienable resources ... 1180
l. The Sandiganbayan........... I 159 4. Other limitations ............. ........ 1184
Section 5 I lfi) Section 3 ................. ........... 1188
Scction 6 I t60
l. Classilication of lands of the public domain..................... 1188
t. lndcpcndent body ............. I tfl)

xxlv
 2. Disposition of lands of the public domain ll9l Section l5 ................ t226
3. Disqualification of private corporations. tt92 I . Development of cooperatives ............... t227
4. From public agricultural land to private land ................... tt92
5. Area limits on leases and acquisitions............... lt96 Section 16 ................ t227
6. Discretion of Congress in development of 1. PrivateCorporations 1227
alienable lands ........... I 198
7. Citizenship limitation..... I 198 Section 17 ................ 1228

Section 4 ................. tt99 l Temporary stake take overofbusiness affected

interest
with public .......... 1228
l. Forest lands and parks..... tr99
Section 18................ ........... l23l
Section 5 ................. lt99
1. Nationalizationofindustries................. ....... l23l
1. Ancestral lands and ancestral domain......... 1200
Section 19................ ........... 1233
Section 6 ................. 1202 1. Monopolies and combinations.............. ....... 1233
l Lands and the common good............ 1202 Section 20................ ........... 1234
Section 7 ................. 1203 l. A central monetary authority .. 1235
1. Meaning of "private lands".......... 1203 Section 2l ................ ........... 1235
2. Who may acquire private land? ........... 1203
l. Foreign 1oans............ ..........,.... 1236
3. Can a Filipino corporation acquire land?............ t207
4. Effect of Parity Amendment on Section 7 ........................ 1208 Section 22................ ........... 1236
5. Consequences of conveyances made in violation 1. Penal sanctions................. ....... 1236
of Section 7 .................. 1209

Section 8 ................. t2t3 ARTICLE XIII: SOCIALJUSTICEAND HUMAN RIGHTS ......... 1237

1 Exception for former Philippine citizens lzt3 I .................

Section ...........1237
Section ..............,..
2 ........... 1237
Section 9 ................. tzt5
1. Social Justice ...... 1237
I . The National Economic and Development Authority....... tzt5

Section l0 ................ tzt6 Labor.......... .......... l24O

I . Filipinization of areas of investment.................... t2t6 Section 3 ................. ........... l24O

Section'I1 r2t9 l. Rights of Labor .. l2q

l. Publicutilities................... I219 Agrarian and Natural Resources Reform .. 1244
Section 12 ................ 1225 Section4 ................. ........... lz$
l. Filipino First Policy 1225 l. TheFoundationofagrarianlandreform.. ....1244
Section I 3 ................ 1226 2. Holders of the right to own land through agrarian
land reform.. ..................... 1246
l. Forms and arrangements in economic exchange 1226
3. Priorities and reasonable retention limits.......................... 1248
Section I4 ................. 1226 4. Just compensation............ ....... 1250
I . Care for Filipino Professionals and skilled workcrs......... t2'26 -5. Voluntary land sharing ............ 1255

xxvll
 6. The Comprehensive Agrarian Reform Law:
Section 18................ ....'...... 12'74

R.A. No. 6657 ............ 1255

Section 19................ ........... 1275

Section 5 125'7 1. Functions of the Commission ........... ........... 1275

1. Right to participate in management of program r257 ARTICLE XIV: EDUCATION, SCIENCE AND TECHNOLOGI
125'7
ARTS, CULTURE, AND SPORTS
Section 6

1. Agrarian reform and natural resources 1258 Education ............ 1278

r260 Secrion 1 ................. ........... 1278

Section 7

1. Special rights of subsistence fishermen and fish

1. Quality education accessible to all citizens . 1278
workers t260 Section 2 ................. ...'......' 12'79
Section 8 ................. 1263 1. Availability of quality education..... .'........... 1280
l. Agrarian reform and total development t263 Section 3 .'...........'... """""' 1281
Urban Land Reform and Housing 1264 l. Desired educational values ..... 1282

9 ................. t264
2. Optional religious instruction in public schools ............... 1282
Section
Section 4 ................. ........... 1282
l. Program ofurban land reform and housing 1264
1266
1. Private school education '.-...... L283
Section 10 ................
2. Filipinization of education ...... 1284
I. Dealing with "squatters" ................ 1261 3. Tax breaks for private schools ....'...............' 1285

Health 1269 Section 5 ................. ........... 1293

Section 1 I ................ 1269 1. Education in national perspective -.'--.-..'.....' 1293

Section 12 ............-... 1269 2. Academic freedom....... ......'.... 1294
Section 13 ................ 1269
Language.... .'.....'.. 1306
1. Integrated and comprehensive health delivery system ..... t2t0
Section 6 ................. ........... 1306
Women t270 Section 7 ................. ........... L307

Section 14 ................ t270 1. Filipino as national and official language .... 1307
l. Special protection for women l21l Section g ................. ........... t30g
Section 9 ................. ........... 1309
Role and Rights of People's Organizations................' t27l
l. The Language of the Constitution. '.............. 1309
Section l5 ................ t27t
Section l6 ................ t2'71 Science and Tbchnologf .............. ........'......... l3l0

1. Independentpeople's organizations l27l Section 10................ ........... 1310

Secrion ll ................ ........... 1310
Human Rights.......... 1273 Section 12................ ........... 1310
1273 Section 13................. .......... 1310
Section I 7 .................
1213 l. Science and technology................. ............... 1310
xxlx
Arts and Culture 1311

Section 14 ................ 1311

Section 15 ................ t3l I
Section 16 ................ 131 1

Section 17 ................ 131 I

Section 18 ................ l3l I
l. Arts and culture......... l31l
Sports 1311

Section l9 ................ l3l1

1. Sports .......... t3t2
ARTICLE XV: THE FAMILY..... l3l3
Section I ................. l3l3
l. The family as foundation of the nation l3r3
Section 2 ................. l3l3
l. Maniage...... l3l3
Section 3 ................. l3t4
1. Specific family rights ........... r 3l5
Section 4 ................. l3l6
1. Care of the elderly......... l3 l6

ARTICLE XVI: GENERAL PROVISIONS t3t7

Section I t3t7
l. The Flag t3t7
Section 2 t3t7 1987 methods................... ..................... 1348
1. New national name, anthem, seal .............. t3t7 3. Initiative and Referendum.................. .......... 1350
4. Jurisprudence on constitutional change ....... 1353
Section 3 l3l8 5. In the realm of the unusual ...... 136/.
l. ;;;";;;-;;;;, ;;;;;;;" ;;" :: l3l8 Section 4 ....... 1365
2. When a suit is against the state 1320
3. Id.; suits against unincorporated agencies t32t l. Ratification or Revolution: the 1973 Constitution............ 1365
4. Id.; suits against government officers 1323 2. Political character of the effectivity of a revolutionary
5. Id.; suits against government-owned corporation .. 1329 constitution .1377
6. Waiver of immunity 1330 3. "Javellana
Postscript to ............ 1380
't. Suability, liability, execution..... r333 4. Ratification and date of effectivity of amendments
or revisions.. ..................... l38l
 Section 16................ ........... 1391
l. Career civil service officers .... 1392
1. First elections under the 1987 Constitution 1383 Section 17 ......-....,.... ........... 1392
Section 2 ................. I 384
Section 18................ ........... 1392

l. Term of first Members of Congress and of first

l. Re-adjustment of salaries.. ...... 1393
local officials I 384 Section 19................ ........... 1393
Section 3 .................
Section 20................ ........... 1393
I 384
Section 2l ................ ........... 1393
1. Status oflaws, decrees, etc. passed before the 1987
Constitution. I 384
l. Reversion of lands and real rights illegally acquired........ 1393
Section 22................ ........... 1394
Section 4 ................. r 385

l. Status of treaties and international agreements... t 385

l. Idle or abandoned lands for land reform.. .... 1394
Section 23 ................ ................................ 1394
Section 5 ................. l3tt6
1. Term of President Corazon C. Aquino. I 386
l. Advertising entities ................. 1395
2. Synchronization of elections................. t3ti7 Section 24................ ........... 1395
Section 6 ................. l3tttt l. Private armies, etc................ ... 1395
1. President Aquino's legislative power..... r 3till Section 25 ...........,.... ........... 1396
Section 1 ................. I 388 1. Foreign military bases, troops or facilities.. . 1396
1. Sectoral representatives ................. I 388
2. The Visiting Forces Agreement............. ....... 1400
Section 26................ ........... l40l
Section 8 ................. I 389
1. MetropolitanAuthority l3tt9
l. Sequestration orders........... .,... lq2
2. Subsequent jurisprudence on sequestration ...................... 1406
Section 9 ................. 389
Section 27 ................
I
........... 1409
l. Sub-provinces .................. I 389
l. Date of effectivity of the 1987 Constitution .............. ....... t4f/g
Section l0 ................ r 390
. Section 11 ................ I 390

1. Security of tenure ofjudges I 390

Section 12 ................. 1390
Section l3 ................ l 390
Section l4 ................. 1390

l. Cases filed before the effectivity of the 1987

Constitution. 1391

Section I 5 .......'..."..... t39t

I . Term of carry-over Commissioners I 391

xxrolt
 THE 1987 CONSTITUTION
OF THE
REPUBLIC OF THE PHILIPPINES

AND ESTABLISH A GOVERNMENT THAT SHALL EMBODY OUR IDEALS AND

ASPIRATIONS, PROMOTE THE COMMON GOOD, CONSERVE AND DEVELOP
ouR PATRIMONY, AND SECURE TO OURSELYES AND OUR POSTERITY THE
BLESSINGS OF INDEPENDENCE AND DEMOCRACY TJIIDER THE RULE OF
LAW AND A REGIME OF TRUTH, JUSTICE, FREEDOM, LOVE, EQUALITY
AND PEACE, DO ORDAIN AND PROMULGATE THIS CONSTITI'TTON.

1. Deliberations on the Committee Report.

The very first Committee Report to come out for deliberation by
the 1986 Constitutional Commission was a draft of a preamble.t The
draft was a modification of the Preamble of the 1973 Constitution and
read thus:

We, tur sovEREIGN Frr,rprxo pEopLE, rMpLoRrNG THE

cUIDANCE or DrvrNp PnovmeNcr, To EsTABLIsH .L GovnnNupllr
TIIAT SHALL EMBODY OUR IDEALS AND ASPIRATIONS, PROMOTE THE
coMMoN GOOD, CONSERVE AND ENHANCE OUR PATRTMONY, SECURE
TO OURSELVES AND OUR POSTERITY TIIE BLESSINGS OF PARTICIPATORY
DEMOCRACY UNDER A RULE OF JUSTICE, PEACE, FREEDOM, AND
EeuALITy, Do oRDAIN AND rRoMULGATE THrs CousrrrurroN.

rcommittee Report No. 1,

Committee on preamble, National rerritory, and Declaration of
Principlcs. June 10, 1986. I RECORD oF THE CONSTITUTIONAL coMMISsIoN 288 (1986),
hereirutftrr cited as I RECORD.
2 THE 1987 CONSTITTJ"TION
OF THE REPUBLIC OF THE PHILIPPINES
In the course of the initial deliberations, there were those who
felt that the Preamble should be formulated only after the body of the
Constitution had been completed. Their contention was that, since the
Preamble is a distillation of the ideals and aspirations of the Filipino
people, it should not be finalized until after those ideals and aspirations
Lad been hammered out especially after widespread consultation in
public hearings. Others, however, thought that, since the Commission-
ers themselves were in a position to enumerate, at least tentatively, the
ideals and aspirations of the Filipino people, a Preamble formulated in
advance could serve as a guide for the rest of the work of the Commis-
sion. A compromise was reached when it was agreed that the Preamble
would still be subject to modifications after the formulation of the body
of the document. It was a reasonable compromise, because a constitu-
tion essentially consists of an enumeration of fundamental values and
goals and of devices for achieving and protecting these goals. An enu-
meration of the values and goals, therefore, albeit tentative, could be a
useful aid for future deliberations. As it turned out, however, the Com-
mission did not go back to the Preamble after the completion of the
body of the document.2
The Commission deliberations took up most of the plenary ses-
sion time on June 10 and 11.3 The Committee's "guidance" gave way
to "aid" as the more all-embracing term. The word "enhance" yielded
to the 1935's and 1973's "conserve and develop." The addition of the
more dynamic word "aspirations" to the passive sounding "ideals" was
accepted. But the modifier "participatory," which the Committee said
was meant to introduce the element of direct democracy and "people
power," was deleted as being tautological.
An attempt to restore the phrase "general welfare" in place of the
Committee's phrase "common good" was not accepted' The change
from "general welfare" to "common good" was intended to project the
idea of a social order that enables every citizen to attain his or her fullest
development economically, politically, culturally and spiritually. The
rejection of the phrase "general welfare" was based on the apprehen-
sion that the phrase could be interpreted as meaning "the greatest good
for the greatest number" even if what the greater number wants does
'/r/. ll () I ()7, I 24 I l(,.
./
'.ltxrrrrul No rttrl ll,.lttttt' lO rrrrtl II ' l()tt(r: I Rli('()Rl) t{7 l0(). I l6 l4o
PREAMBLE
violence to human dignity, as for instance when the greater majority
might want the extermination of those who are considered as belong-
ing to an inferior race. It was thought that the phrase "common good"
would guarantee that mob rule would not prevail and that the majority
would not persecute the minority.4
An attempt to substitute "Lord of History" or "God of History"
for "Divine Provider\ce" was made on the reasoning that the suggested
substitute connoted active involvement of God in the affairs of men.
But the suggestion was rejected when it was pointed out that the phrase
could be misunderstood as an acceptance of the Marxist concept of his-
tory aS being the only God. Instead, the phrase "Almighty God" was
chosen as being more personal than "Divine Providence" and therefore
more consonant with Filipino religiosity.
Another change made by the body was the insertion of the phrase
"a just and humane society". The phrase added the notion that a con-
stitution not merely sets up a government but is also an instrument for
building the larger society of which government is merely a part.
An attempt to substitute "equity" for "equality" was rejected as
being subject to the interpretation that the Commission was rejecting
the enshrinement of "equality" already made by the 1973 Constitution.
The 1973 Preamble had added "equality" to reflect the mounting wave
of protests against basic social inequalities which even at the time of the
1971 Constitutional Convention plagued Philippine society.
The Committee's desire to substitute "rule" for "regime" was
rejected. Instead, the phrase "rule of law" was inserted and the con-
cluding litany was made to read "truth, justice, freedom,love, equality
and peace". The introduction of the word "love" probably makes the
Philippines the only nation to enshrine the word in its Constitution. It
serves as a monument to the love that prevented bloodshed in the Feb-
ruary Revolution of 1986. Moreover, the insertion of "truth" is a protest
against the deception that characteized the Marcos regime. Finally, the
enumeration captures a stream in Catholic thought which sees peace as
the fruit of the convergence of truth, justice, freedom, and love.
The draft was approved on second reading on the eve of Indepen-
dence Day, June I l, 1986.
{ilt Rt('()Rt)
277
4 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES

2. Purpose and effect of the Preamble.

Constitutionally, however, a Preamble is not a source of power or
right for any department of government.5 But because it sets down the
origin, scope, and purpose of the Constitution, it is useful as an aid in Anucln I
ascertainins the meaning of ambiguous provisionq igihs:-body-olfuhg
fonstitution .ln Aglipay
v. Ruiz,6 for instance, Justice Laurel, in seeking
TnB NauoN,ql TnnRIToRY
i[E t*" r*utting of separation of chu in Philippine juris-
prudence, had occasion to allufle to the invocation of the "g!l li! llyjqp
Prwidence" found in the I935tPreamble. Srcuox 1. TnB NATIoNAL TERRTToRY coMPRIsEs rIrE
AND warERS
Preamble, moreover, bears witness to the fact that the 9ons!i- Pmr,rpprNn ARCHIPELAGot WITH ALL THE ISLANDS
te EMBRACED TIIEREIN' AND ALL OTIIER TERRITORIES OVER WHICH
tlti_onjs*4e.Ilanifestation of the sovereign will of the Fllipino-people. coNsIsrING
rns HAS SOVEREIGNTY oR JURISDICTIONt
PHu,rpprNEs
ftts iAeaioitres out more clearly in the present text, as also in the 1973 OF ITS TERRESTRIAL' FLUVIAL' AND AERIAL DOMAINS'
INCLUDING ITS
text, which uses the first person approach. The 1935 Preamble had used TERRITORIAL SEA' THE SEABED' TIIE SUBSOIL'
THE INSULAR SHELVES'
the third person approach: "The Filipino people, imploring the aid, etc." AND orHER 5UBMARTNE AREA5. Tnn mrrns ABQUND,
BETwEEN, AfOC-
The effect of the 1935 text was to suggest that some third person, the AND qONNECTING TIIE ISLANDS OF TIIE ARCHIPELAGO'
REGARDLESS

United States, was making the announcement that the Filipino people OF THEIR BREADTII AND DIMENSIONS' FORM
PART OF THE INTERNAL

were finally being allowed to promulgate a constitution. warERs oF Tr{E Pnrr-rPPrxrs.

K The identificarion of the Filipino peopte ur,h@Jfhe-"ol- in the 1935

stitution also calls attention to an important principle: that the document
1. The Place of Territorial Delimitation
r--'- r.i Constitution.
rtrna went
The definition of national territory found in the constitution
Con-
through three phases. The first phase was during the
1934-1935
The 1935 text had also stated that one of the oliects of the promul- of the
was "t9.-$glulejolheo $eJYg! i44lb9ll!9!!9r- stitut[nal Convention. This was followed by the deliberations
@ 1972 Constitutional convention and finally by the deliberations
of the
i:_ '" The text thus suggested that inde-
p*a"n"e was still merely an aspiration (as indeed it was then) and not lg86ConstitutionalCommission.BetweenIgT2and1986,however'
yet a possession of the Filipino people. To remove this anachronistic thePhilippinesbecamepartytothelgS2ConventionontheLawofthe
Sea. In the exposition o1th" law on national territory
all these phases
suggestion, the Preamble now, as also the 1973 Preamble, speaks of
the "@y" and calls the Filipino people'oii9y91g!g9''o will be taken into consideration.

in the territorial limits ol

i it is imPortant for the
, .

,ou"r"ign state to know the extent of the territoly gyer which

it cal
i t :^ -^-

rggtii.L"ry-"-"t"tr" i". or purposes of

Sl4g+5Tllf,?9
th9t"gq-
conflicts, however, a@al instrument purporting tglgl "g!
rial
'; lirnits of the.-Fstate must
-
\.lrn tilt.ttttt t'. Mtt.t\tk hu.\t'lls, l(I/ tI S .l.l ( 1905)
"(yl I'lril .'Ol . .)(Xr { l(t I /)
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
olglernatioqgljgw. Hence, the silence of a constitution regarding the
territorial limits of a sovereignty does not deprive such sovereignty of
any portion of territory it is entitled to under international law. Neither,
however, does a constitutional definition of territory have the effect of
legitimizing a territorial claim not founded on some legal right pro-
tected by international law.
Philippine constitutionalism accepts the principle that it is not the
constitution which definitely fixes the extent of philippine territory.
This principle ran through the debates on the national territory during
the 1935 constitutional convention.' The existence of a territorial defi-
nition in Article I of the 1935 constitution was not a denial of this prin-
ciple. Rather, Article I reflected a historical purpose. The determinative
factor which persuaded the 1935 convention to include an article on
national territory was the intent of the convention to use the constitu-
tion as an international document binding on the United states. The
possibility of transforming the constitution, a municipal law, into an
international document arose from a provision of the Tydings-McDuffie
Law which prescribed that the effectivity of the philippine constitu-
tion would depend partly on the acceptance of its provisions by the
United States Government.'?Delegate Singson Encarnacion put the mat-
ter bluntly: "Es cosa necessaria para nosotros. No debemos redactar
nuestra constitucion, como se ha repetido aqui muchas veces, imitando
simplemente la constitucion de otros paises; debemos poner aqui lo
que es necessario, a fin de que despues no se conviertan algunas de
nuestras islas en 'yoyo', o sea, que Estados Ilnidos retire Io que hoy de
buena gana nos concede."s Answering the question of Delegate palma,
singson Encarnacion was even more blunt: "como sabe su senoria
muy bien, en este mundo no rige el verdadero derecho internacional
basado en la justicia estricta, sino lafundada enfuerza de los cenones,
y claro esta, es mejor que fortaleTcamos desde ahora.,,a
IV
934- I 935 CONSTITUTIONAL CONVENTION RECORD 3 I 8-359, 389-447,
I
528 (196'1), hereinafier to be referred ro as 193-5 CONVENTION RECORD.
49O.
rSec. 3, Act,
Mar.24,1934, Cth. 84,4U Star. 546.
IV I935 CoNVIINTION RTICORD
]42.
all. tt -147 . A licr Sirlgson littcttt ttttt
iott's ittk't vcnliorr, rr v()lc wirs lrrkt.rr orr ir rn()li1ln
lttesslltt'ptovisiottttt'ttitli.trtl k'flilory.'l'lrcnroli,rrwrrsrlclcillcrl hyrrvolcol'llllo ll(),/r/.trl
ART. I _ THENATIONALTERRITORY
Sec. I
2. National Territory under the L935 Constitution'
Article I, Section I of the 1935 Constitution read:
States by the Treaty of Paris concluded between the United
States and Spain on the tenth day of December, eighteen hundred
and ninety-eight, the limits of which are set forth in Article III of
said treaty, together with all the islands in the treaty concluded at
Washington, between the United States and Spain on the seventh
dayofNovember,nineteenhundred,andinthetreatyconcluded
between the United States and Great Britain on the second day of
January, nineteen hundred and thirty, and all territory over which
juris-
the present Government of the Philippine Islands exercises
diction.
The article, thus gave four.points of reference for the determina-
tion of Phillppine territory: 6f fne Treaty of Paris on December 10,
l8g8; Qrt;e Treaty of Washington on November 7, 1900; (U'tne
treaty between Great Britain and the United States on January 2,I93O;
over which the present Government of the Philippine
1r+f'allterritory
Islands exercises jurisdiction."
By Article III of the Treaty of Paris, Spain ceded to the united
States "the archipelago known as the Philippine Islands, and compre-
hending the islands lying within" the line drawn by the technical de-
scription of the same article. The technical description embodied in the
Treaty of Paris, however,left some doubt about the inclusion within the
ceded territory of the Batanes Islands to the north and of the Islands of
Sibutu and Cagayan de Sulu to the south as well as of the Turtle and
Mangsee Islands. The Treaty of washington of November 7, 1900 cor-
rected the error with respect to the Islands of Sibutu and Cagayan de
Sulu, and jurisdiction over the Turtle and Mangsee Islands was clari-
fied by the convention concluded between Great Britain and the United
States of January 2,1930.5 The doubt with respect to the Batanes Is-
lands, however, was left unclarified in spite of the fact that, from time
immemorial, these islands had undisputedly formed part of the Philip-
pine Islands. Hence, to remove the doubt, the 1935 Constitution added
lo ssl)
'r./. .l I 9-320
11 l.
 THE 1987 CONSTITUTION Sec. 1 Sec. I ART.I -THENATIONALTERRITORY
OFTHE REPUBLIC OF THE PHILIPPINES

the clause "all territory over which the present (1935) government
the Philippine Islands exercises jurisdiction.'%
of
3. Why a Definition of Territory in the 1973 and l9g7
Constitutions?
The 1971 Convention spent a considerable amount of time on Feb_
ruary 14 and 15, 1972 debating whether the new constitution should
contain a definition of Philippine territory. This question had to be set-
tled before the convention could proceed to consider amendments to
the draft report of the Committee on National Tenitory.
The principal proponent of the motion to delete the entire article
on National rerritory was the late Delegate voltaire Garcia (Rizal).'
Garcia argued that territorial definition was a subject of international
l4y,q$ rl*unj4pul !a\{/, and that philippine tenitory wa-heady de_
fined by existing treaties. As for the Batanes Islands, Garcia pointed
out that no state ever questioned the continued exercise of philippine
sovereignty over these islands. while the definition of philippine ter-
ritory in the 1935 constitution might have been useful in 1935, Gar-
cia observed that its continued presence in the constitution had in fact
embarrassed the Philippines in negotiations for territories not covered
by the constitutional definition. Hence, Garcia concluded that a consti-
tutional definition of territory would not only be unnecessary but could
even be prejudicial to the interests of the philippines. Answering the ac-
cusation8 that his reasoning was tacit advocacy of expansionism, Garcia
said that international law recognized peaceful modes of acquiring new
territory. Moreover, he retorted that the real advocates of expansionism
were those who positively wished to mandate the state to pursue claims
over areas not clearly within the Philippine territory. Garcia specifically
singled out the movement to claim the Marianas Islands, a trust territory
which the United Nations was then preparing for independence.
Delegates Amanio Sorongon (Iloilo 3rd districr) and Magtanggol
G. Gunigundo (Bulacan lst district) supplied the ,.nationalislic,' argu-
61d.327;
Committee Report No.01, Committee on National Territory, 1971 Constitutional
convention, Jan. 15,1972; committee Report No. 7, committee on Territorial Delimitation 1935
constitutional Convention, August 31, 1934; I Anurco, Tus Fneurna or rne pur1rppwe Cousrrru-
LroN ll'7-l l9 (1936), hereinafier cited as Arr;unco. on the Batanes qucstion, see also Speech
of
l)clegatc Villalva, Session of Febrr,ary ll ,1912.
/Spcc';hcs, Scssiolrs
ol lit:brrr:rry l4 rrrrtl 15, l()72.
i/rr/izr, rrotc I
l.
I ments for deletion of the article on national territory. Sorongon found
the mention of the Treaty of Paris a repulsive reminder of the indig-
I
nity of our colonial past.n Gunigundo, in utter disregard of the historic
evolution of the Filipino nation, claimed that the Philippines existed
before Magellan ever came. More plausibly, but only after a leap over
four centuries of history, he recalled that Felipe Agoncillo had protested
Spain's cession of the Philippines to the United States, first, because the
Philippines had not been consulted, and second, because Spain had al-
ready lost effective control over the Philippines. Hence, he argued that
to accept the territorial boundaries defined in the Treaty of Paris would
be to lend legitimacy to the illegal act of Spain and the United States.
Finally, after some irrelevant statements about the Catholic Church,
Gunigundo concluded that the ancestral home of the Filipino people
might be larger than the Treaty of Paris would allow.'n
The arguments for the inclusion of an article defining the national
territory ran along two levels. On one level was an attempt to dem-
onstrate the need for a clear definition of Philippine territory. Thus,
Delegate Raul Roco (Camarines Sur) argued that a territorial definition
was necessary for the preservation of our national wealth, for national
security, and as a manifestation of our solidarity as a people." Similarly,
eSpeech, Session February 15,1972. Sorongon favored a process of selective recollection.
He said that if the charter must remind us of our past, let it remind us of our glorious past -
Mactan, Tirad Pass, Bataan.
roGunigundo's speech is a rambling sort of oratory best suited for losing a good cause.
Session of February 15, 1972.
A short-sighted argument for deletion was supplied by Delegate Manuel T. Molina
(Cagayan). He said that if Sabah were to be made part of Philippine tenitory, the Philippine
govemment would have to drop criminal cases of smuggling from Sabah. And if the President
were to send an armed battalion to Sabah, nobody could rightly call such an act an invasion.
Session of FebruNy 15,1972.
Not very helpfully, Delegate Clemente Abundo (Catanduanes) argued that the definition of
our "ancestral home" has already been "written in blood." Session of February 15,1972.
t'Speech, Session of February 15,1972. Delegate Roco also said that to argue for deletion
in order to allow for expansion is to give "dangerous obeisance to the principle of expansionism."
Moreover, he said that if some people find mention of the Treaty of Paris offensive to their
nationalist sensibilities, he would favor a mere mention of treaties without specification.
Delegate Juan Liwag (Nueva Ecija, 2nd district), speaking against the Committee report,
was opposed to its details. First, he said that the details were an unnecessary repetition ofprovi-
sions of R.A. No. 3046 and R.A. No. 5,146. Secondly, while the proposal claimed sovereignty
over territorial waters, it did not claim dominion or ownership over the same areas. Hence, he
said that the proposal did not make the territorial waters part of the Philippine public domain. This
observation of Liwag. howcvcr, ditl not get any reaction from the Convention. Speech, Session of
Fbbruary 15, 1972.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Delegate Jose Nolledo (Palawan) expressed concern for the protection
of our national resources.r2
The arguments of Roco and Nolledo, however, did not prove that
the definition must be expressed in the Constitution. Along another
level of argumentation therefore, was an attempt to show that the defi-
nition of Philippine territory must be expressed in the Constitution it-
self.In support of this proposition, Delegate Eduardo Quintero (Leyte),
Chairman of the Committee on National Territory, made three points.
First, he said that the territorial assertions found in Republic Act 3046
were couched merely in "Whereas" clauses. These clauses should be
expressed in more authoritative fashion. Second, he said that to delete
the article entirely would again leave the status of the Batanes Islands
in doubt. Third, he expressed the need for curing the failure of the 1935
Constitution to express the possibility of future territorial acquisitions
by the Philippines. He said that this failure had caused the Philippine
government some embarrassment in two conferences over Sabah, first
in London in 1963 and then in Bangkok in 1968." Delegate Nolledo
added that the ratification of the Constitution by the people should
strengthen the Philippine territorial position.ro Similarly, Delegate Ale-
jandro Lichauco (Rizal) argued that such an important matter as ter-
ritorial delimitation should not be left to subordinate agencies of the
government such as the legislature or the executive.ls
Admittedly, these arguments were valid for strengthening the
force of our territorial definition as municipal law. However, they did
not prove that a constitutional definition would strengthen Philippine
legal position in international law. The transposition of the provisions
of R.A. No. 3046 to the Constitution would transform such provisions
into constitutional provisions, but the provisions would remain munici-
pal law, not international law. The deletion of the article on national
territory would not mean abandonment of the Batanes Islands or any
portion of Philippine territory as long as Philippine jurisdiction contin-
ued to be actually exercised over such territories, as in fact it had always
been exercised even before the curative clause of the 1935 Constitution.
rzSpeech, Session of February 15, 1972.
lrspeech, Session of February 15,1972. Quintero was a member of the Philippine delega-
tion to both the London and Bangkok conferences. See dny'a, note 2-5.
raS'lprc. nolc 12.
I'lntcrpllntirrg I)elcgult'V. (irrrtirr, Scssitrl ol lit:brtrrrry l4, l()711.
Sec. l ART.I -THENATIONALTERRITORY
Nor could the argument of estoppel, used by the British government
both in London in 1963 and in Bangkok in 1968, be answered by a1973
unilateral assertion of jurisdiction over Sabah.
4. The L973 Provision on National Territory.
Article I of the 1987 Constitution cannot be fully understood with-
out reference to Article I of the 1973 Constitution. Although the 1986
Constitutional Commission spent a considerable amount of time on Ar-
ticle I, in the end the provision that emerged was in substance a copy of
its 1973 Counterpart.
Article I of the 1973 Constitution said:
The national territory comprises the Philippine archipelago,
with all the islands and waters embraced therein, and all other ter-
ritories belonging to the Philippines by historic right or legal title,
including the territorial sea, the air space, the subsoil, the sea-bed,
the insular shelves, and the other submarine areas over which the
Philippines has sovereignty or jurisdiction. The waters around, be-
tween and connecting the islands of the archipelago, irrespective
of their breadth and dimensions, form part of the internal waters
of the Philippines.
Briefly, and for purposes of analysis, pttitipplne national
undefihe 1973 Constitution may roughly be divided into three groups:
,/
(l/the Philippine archipelago; (2) other territories belonging to the
Philippines; and (3) Philippine waters, air-space, and submarine areas.
The territory thus has a horizontal reach consisting of land and waters,
an upward reach consisting of air-space over the land and waters, and
a downward reach consisting of submarine areas. Moreover, the last
sentence of the provisions makes an important assertion of adherence
to the "archipelagic principle."
a. The Philippine Archipelago
What or where is the Philippine archipelago? The answer given
by Article I of the 1973 Constitution simply made reference to "all the
#
islands and waters embraced thereiq." The Article, however, gave no
point of reference that could delineate the exact location ofthese islands
and waters. On its face, therefore, the Article did not serve as a defini-
tion of national tcrritory. To understand its meaning, one must look into
tlrc cvolutiorr. ol'(lrc: Articlc l'rom its first draft to its final form.
 THE 1987 CONSTITUTION
OFTHEF.YBLIC OF THE PHILIPPINES
Section I of the ffst draft submitted by the Committee
tional Territory almost literally reproduced Article I of the 1935 Con-
stitution which, as shown above, embodied four points of references.
Unlike the 1935 version, however, the draft designated the Philippines
notsimplyasthePhilippinesbutas..t@.'''uIn
response to the criticism that the definition was colonial in tone in that it
gave no indication that the Filip\ngxfLad a native land even prior to the
arrival of the Spaniards, the sa6nd draft fwther designated the Phil-
ippine archipelago, as "the historic home of the Filipino people from
its beginning."" This drew the comment from Delegate Voltaire Garcia
that the home of our ancestors once formed part of the Madjapahit Em-
pire and that it would be ridiculous to suppose that we were claiming
the vast expanse of the former Madjapahit Empire as the ancestral home
of the Filipino people.
After debates on February 14 and 15,1972, the Committee re-
paired back to the drawing board and fumigated the draft of all co-
lonial vermin by dropping all reference to prior treaties' On February
I7,1972, the Committee reported out a final draft, more aseptically
patriotic than clear, which became the initially approved version: "The
national territory consists of the Philippine archipelago, which is the
ancestral home of the Filipino people, and which is composed of all the
islands and waters embraced therein . . ."
What was the intent behind the designation of the Philippines as
an "9gghipe!ggg'? An archipelago may be defined, depending on one's
utiliiarian preference, either as a cluster of islands forming a territorial
. unity, or as a unit of water studded with islands. In the first deflnition,
the waters are considered adjuncts to the land area and their extent is
determined by reference to the land area. In the second definition, the
land area is everything that comes within the water area. The Committee
preference was for the second definition." Asked by Delegate Roseller
Lim (Zamboanga) where this archipelago was, Committee Chairman
Quintero answered that it was the area delineated in the Treaty of Paris.
He said that objections to the colonial implication of mentioning the
t6Report No.01 of the Committee on National Territory.
r?ReportNo.020f theCommitteeonNationalTerritory,January 3l ,19'72. DelegateQuin-
tero singled out Ambassador Leon Ma. Cuerrenr as thc principal sourcc ol'thc criticisrtl. Scssiott
of Fchruary 14,1972.
f*Scssiott ol lrt'brttltty 14, ltrl?.
ART. I - THE NATIONAL TERRITORY
on Na- Treaty of Paris was responsible for the omission of the express mention
of the Treaty of Paris.'n
Report No. 01 of the Committee on National Territory had in fact
been explicit in its delineation of the expanse of this archipelago. It
said:
Now if we plot on a map the boundaries of this archipelago
as set forth in the Treaty of Paris, a huge or giant rectangle will
emerge, measuring about 600 miles in width, and over 1,200 miles
in length. Inside this giant rectangle are the 7,100 islands compris-
ing the Philippine Islands. From the east coast of Luzon to the
eastern boundary of this huge rectangle in the Pacific Ocean, there
is a distance of over 300 miles. From the west coast of Luzon to the
western boundary of this giant rectangle in the China Sea, there is
a distance of over 150 miles.
When the United States Government enacted the Jones Law,
the Hare-Hawes-Cutting Law and the Tydings-McDuffie Law, it
in reality announced to the whole world that it was turning over to
the Government of the Philippine Islands an archipelago (that is,
a big body of water studded with islands) the boundaries of which
archipelago are set forth in Article III of the Treaty of Paris. It
also announced to the whole world that the waters inside the giant
rectangle belong to the Philippines - that they are not part ofthe
high seas.
When Spain signed the Treaty of Paris, in effect she an-
nounced to the whole world that she was ceding to the United
States the Philippine archipelago which she had been occupying
for over four hundred years, that this archipelago was bounded by
lines specified in the treaty, and that the archipelago consisted of
the huge body of water inside the boundaries and the islands inside
said boundaries.
The delineation of the extent of the Philippine archipelago must
be understood in the context of the modifications made both by the
Treaty of Washington of November 7, 1900, and of the Convention of
January 2, I 930, in order to include the Islands of Sibutu and of Cagayan
de Sulu and the Turtle and Mangsee Islands.2o However, although the
reTo which Lim rcplicd that the text should be clear even at the risk of sounding colonial
Sessirrn <rf Fcbruary 17, 1972.
rr),Sa;rrrr, xrtc 5,
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
evident intent of the Convention was to secure the inclusion of the
Batanes group, the definition of the archipelago did not include the
Batanes group. Even the map distributed by the Committee on National
Tenitory placed the Batanes Islands outside the boundaries of the
Philippine archipelago as set forth in the Treaty of Paris.In literal terms,
therefore, the Batanes islands would come not under the Philippine
archipelago but under the phrase "all other territories belonging to the
Philippines." It is submitted, however, since both geographically and
historically these islands form a unity with the Philippine archipelago
of the Treaty of Paris, they should be considered part of the Philippine
archipelago for purposes of the 1973 Constitution.'?'
The conclusion that emerges from this discussion is that the "Phil-
ippine archipelago" of the 1973 Constitution corresponds with the ter-
ritory defined in Article I of the 1935 Constitution. Thus must the 1973
definition be understood if it is to be a useful definition at all and not
just a piece of patriotic assertion of national history dating back to an-
cestral Madjapahit rulers. In other words, try as we might to forget our
colonial past by erasing colonial traces from our Constitution, remem-
bering history also serves our national purpose.
b. ". . all other temitories belonging to the Philippines by
historic right or legal title."
Under the 1973 Constitution, aside from the Philippine archipel-
ago, Philippine territory also includes "all other territories belonging
to the Philippines by historic right or legal title." What are these other
territories?
The history of this provision goes back to the last clause of Article
I of the 1935 Constitution which included "all territory over which the
present Government of the Philippine Islands exercises jurisdiction."
Section I of the first draft of the 1973 version updated the 1935 version
to read: "All the territory over which the Government of the Philippines
was exercising jurisdiction on July 4, 1946 as well as tenitory which
2rThe importance of including the Batanes islands within the Philippine archipelago will
bccome apparcnt when the "internal waters of the Philippines," as described in the second para-
graph of thc article. are discussed. Quintero said: "The correct delinition of archipelago is, it is a
sca stutklctl with isllntls. ln otlrcr wortls, an archilrcllgo rncitns sca plus isluntls.'l'he scu scclns t()
lx. rrrrxt irnlxrllrurl lllur lhc isltttttls."
Sec. I ART. I - THE NATIONALTERRITORY
said government has acquired or over which it has a ight.""The second
draft simplified the modification thus: "All other territories over which
the government of the Philippines has been exercising jurisdiction or
over which it has a right."" The final 1973 version was the draft re-
ported out on February 17,1972.
It will be recalled that the last clause of Article I of the 1935 Con-
stitution was intended to ensure the inclusion of the Batanes Islands
within Philippine territory. In his sponsorship speech delivered on Feb-
ruary 11, l972,Delegate Custodio Villalva of Batanes said that the first
portion ofSection 1 ofthe second draft saying "all otherterritories over
which the government of the Philippines has been exercising jurisdic-
tion" was a carry-over from the 1935 Constitution "expressed in the
imperfect or durative tense and intended to place the ten small islands
of the province of Batanes under the sovereignty of the Philippines."'?o
Committee Report No. 01 also said that the phrase found in the first
draft which referred to "territory which said government has acquired
or over which it has a right" was "intended to cover the claim to Sabah
which has been filed by the Republic of the Philippines, and the pos-
sible claim to Freedom Land and the Marianas Islands." This comment
of Committee Report No. 01 is also applicable to the clause in the sec-
ond draft which referred to all territory "over which (the Philippines)
has a right." Thus, both the first and the second draft contained a clause
intended to cover the Batanes Islands, which certainly formed part of
Philippine territory, and all other territories over which the Philippines
might have a claim both then and in the future. The clause was inserted
in answer to the clamor to protect and ensure Philippine claim to terri-
tories not covered by prior treaties. The intent was to avoid forfeiture of
these claims by their omission from the constitutional definition.
The same intent was carried over into the final draft which said
"all the other territories belonging to the Philippines by historic right or
legal title." Committee Chairman Quintero said that the word "belong-
ing" was used both in the present and future sense: "now or later may
belong." By "historic right," Quintero said, Batanes belonged to the
22Session of February 14, 1972.
2!ld.
2'Villalva, besides going into some detail on the history of Batanes, also makes the claim
thrt mcrc rcrention ol'Article I ol'the I 935 Constitution would have the effect of excluding Batanes
Ironr l)hilippinc tcrrit()ry.'l'his writcr rlirl not clrcck whctht'r Villalva's history is as bacl as his law.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Philippines because in all its history Batanes had always been a part of
the Philippines. By "historic right." he said, the Marianas Islands might
also belong to the Philippines depending on historical evidence. As for
Sabah, Quintero said that Philippine jurisdiction was based on "legal
title" perfected in 1962." "Legal title" was used to mean all accepted
legal modes of acquiring territory.26
Briefly, then, the phrase "all other territories" was a catch-all used
to cover areas linked to the Philippines with varying degrees of certainty
and firmness. It covered Batanes, which undisputedly belonged to the
Philippines. It covered Sabah, over which the Philippines had filed
a formal claim. It covered the Marianas Islands and Freedom Land,
claim over which was under investigation. It covered any other territory
which the Philippines might acquire in the future through accepted
international modes of acquisition. The clause therefore was nothing
more than an insurance clause which could be meaningful only if
supported by title extraneous to the Constitution.
c. The territorial sea.
The territorial sea of a state, as distinct from its inland and internal
waters, consists of a marginal belt of maritime waters adjacent to the
base lines extending twelve nautical miles outward. Outside the territo-
rial sea are the high seas. A state exercises sovereignty over its territo-
rial sea subject to the right of innocent passage by other states. Innocent
passage is understood as passage not prejudicial to the interests of the
coastal state nor contrary to recognized principles of international law.
The traditional length of the territorial waters measured seawards, ac-
cording to the cannon-shot rule formulated in l702,was three miles, the
-effective range of 18th century defensive shore batteries. Modern law,
however, now recognizes twelve nautical miles.
z5Session of February l7 1972. Delegates
, Quintero and Jal Anni (Sulu) give the history
of the Sabah claim in Session of February 12, 1912. Delegate Amado S. Tolentino, Jr. (Oriental
Mindoro) expounds on the findings on the Marianas Islands and Delegate Geronimo M. Cabal
(Batanes) on the findings oir Freedom Land in Session of February 14, 19'72. Committee Report
No.0l contains substantially the same material.
lmmediate adverse reaction to the Convention claim over the Marianas Islands was sup
plicd hy a visiting Guarnanian senator, Sen. George M. Bamba, The Philippines Htruld,Fthnrity
2I, lt)72, p.l
.
r"llruhr thr' l().15 (irnslilrrtiorr, thc l'hilipllincs rniry lrrwlirlly ntr;rrirt'lcrrilory n()l (\'vcrc(l
hy Arlielt'L lArltrrr l,l,l l.l().
Sec. 1
Sec. l ART.I -THENATIONALTERRITORY
Two methods are used for fixing the starting point or baseline from
which the territorial belt is measured seawards: "l) the normal base-
line method, under which the breadth of the territorial sea is measured
from the low water-line, following the indentations of the coast;2) the
straight baseline method, under which instead of the baseline follow-
ing the sinuosities of the coast, it is drawn as straight lines connecting
appropriate points on the coast, without departing to any appreciable
extent from the general direction of the coast."27
Both the first and second draft of the 1973 article on national ter-
ritory contained the following provision: "All the waters beyond the
outermost islands of the archipelago within the boundaries set forth in
the treaties and convention mentioned in Section t hereof comprise the
territorial sea of the Philippines." The treaties and convention referred
to were those found in Article I of the 1935 Constitution. This proposed
provision represented the official position espoused by the Philippines
in international conventions and it is found in Republic Act No. 3046
(1961) and Republic Act No. 54r''6 (1968).
What, then, was the extent of the territorial waters claimed by
rhe 1973 Constitution which antedated the 1982 Law of the Sea? The
final draft, unlike the first two drafts, simply claimed jurisdiction over
"the territorial waters," without making explicit the extent of the area
claimed.It must also be pointed out that the Convention was aware that
this claim, which extended Philippine territorial waters beyond the old
three mile rule, was something which had yet to be accepted in inter-
national circles. In his sponsorship speech delivered on February 11,
l972,Delegate Quintero reminded the delegates that no accord had yet
been reached on the breadth of the territorial sea and that the Philip-
pine government was preparing for an international conference on the
law of the sea in 1973 where "every effort will be exerted to get accord
on the breadth of the territorial sea."" The hope, however, was also
2TSrLoNcn rxo Ylp, Pueuc lNrenNenouer Ltw 158-9 (1966), R.A. No. 3046 and R.A. No.
5446 draw straig,ht baselines around the Philippines.
2EQuintero added that the average breadth of territorial sea claimed by Republic Act 3046
is only I I 5 miles. "The Republic of the Philippines believes that this is reasonable considering that
South American countries have declared their territorial seas to be 200 miles. ... And the United
Statcs which wants the adoption of the territorial seas only six miles wide has established in the
l)tcilic Occan the so-called salbty identitication zone. They have sectored 1,400 miles and they
c1n st(I) ilny trirllic."'l'hcy can control thcse aircrafts to identify itself and be subject to penalty if
it (l(x's n(rt lsicl.'l Slrcclr, Scssiort ol l;chrttary ll,19"12.
 18 THE 1987 CONSTITUTION Sec.
OF THE REPUBLIC OF THE PHILIPPINES
partly strengthened by the decision of the World Court in the Anglo-
Norwegian Fisheries Case2e which upheld the straight baseline method
of fixing the territorial sea as unilaterally adopted by Norway. So indeed
the LOS would do in 1982.
Internal waters; the Archipelagic Principle
Both the first and the second draft of the 1973 article on national
territory contained the following provision: "All the waters around,
between and connecting the various islands of the Philippine archi-
pelago, irrespective of their widths and dimensions, are necessary ap-
purtenances of the land territory, forming part of the inland or internal
waters of the Philippines." An abbreviated version appeared in the final
draft: "The waters around, between and connecting the islands of the
archipelago, irrespective of their breadth and dimensions, form part of
the internal waters of the Philippines." This assertion, together with the
"straight base line method," form the "Archipelagic Principle."
The significance of this assertion lies in the meaning of "internal
waters." Internal or inland waters consist of all parts of the sea land-
wards from the baseline as well as inland rivers and lakes. All of them
are subject to the sovereignty of the state to the same extent that the land
domain is. Unlike territorial waters, they are not subject to the right of
innocent passage by other states.
This assertion over internal waters was a statement of an aspect of
the archipelagic principle which the Philippines, along with Indonesia,
had been espousing in international conferences. As early as 1955, the
Philippines projected this concept in a note verbale to the Secretary
General of the United Nations in the following language:
' All waters around, between and connecting different islands
belonging to the Philippine archipelago, inespective of their width
or dimension, are necessary appurtenances of the land territory,
forming an integral part of the national or inland waters, subject to
the exclusive sovereignty ofthe Philippines.
This concept, on June 17,196I, was embodied in Republic Act
No. 3046 whence it found its way into the 1973 Constitution in the
8I.CJ. Reports ( 195 | ) I 30. The argument from this case is by analogy and, thercfore, only
tls litrong as the analogy. Sec Colrrnrittec Rcport No.0l and Spccch ol Dclcgutc l-lggui, Scssiorr
ol'lrchruury 14, 1972.
1 Sec. I ART. I -THENATIONALTERRITORY
hope that it would eventually gain international acceptance. Commit-
tee Report No. 01 of 1973 said: "The inclusion in the new Constitution
of a provision spelling out the archipelagic principle of the Philippine
Government will certainly strengthen our historical position and will
help us in sustaining our archipelagic theory in the Convention on the
Law of the Sea in 1973 and in any case that may possibly be ventilated
before the World Court in the future."
The significance of this assertion on the extent of internal wa-
ters is that large bodies of water connecting the islands of the archi-
pelago
- the Sibuyan Sea, the Mindanao Sea, the Sulu Sea - would
be considered by the Philippines in the same light as rivers and lakes
found within the islands themselves. It should be noted, however, that
this assertion was envisioned to apply only to the waters connecting
the islands of the archipelago proper. It was not meant to apply to the
waters between the archipelago and "other territories belonging to the
Philippines."'o
". . . the air space, the sub-soil, the sea-bed, the insular shelves
and the other submarine areas."
The first draft of the 1973 article contained the following provi-
sions:
Section 5. The sovereignty ofthe Philippines also extends to
the air space over its land territory and its territorial sea as well as
to its bed and sub-soil.
Section 6. The extent of the control that the Philippines ex-
ercises in the contiguous zone and the superjacent waters of the
continental shelf shall be determined by law.
The second draft came out thus:
Section 4. The sovereignty of the Philippines ... also extends
over the air space above its land areas, its internal waters and ter-
ritorial seas as well as to its sea-bed and sub-soil.
r0See exchange between Delegate
Quintero and Delegate Felixberto Senano (Batangas),
Session of Febru ary , 1972. Serrano said that if the intemal waters include the "waters around"
11
the islands "irrespective of their breadth and dimensions", these waters would extend outward
intlclinitcly in all tlirections. Quintcro answcrod that reference is mcrcly to connecting waters. The
irnpcrli.ction of'tht .tcxi, howcvt:r, lt nrls vllirlity to Scrrano's rcading, ridiculous though it mry be.
20 THE 198TCONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
Section 5. The National Assembly shall define the control
that the Philippines will exercise in the contiguous zone and in the
superjacent waters ofthe continental shelf.
Commenting on Section 4 of the second draft, Committee Report
No.02 said that the provision on airspace was based on the provisions
of Articles I and 2 of the Convention on International Civil Aviation
adopted in Chicago in I944.The Convention entered into force in 1974.
Thus, the present regime on air navigation has developed from the Chi-
cago Convention on International Civil Aviation (1944) which entered
into force in 1974. Articles 1 to 4 of the Convention set down the gov-
erning principles:
Article 1. Sovereignty
The contracting States recognize that every State has com-
plete and exclusive sovereignty over the airspace above its terri-
tory.
Article 2. Territory
For the purposes of this Convention the territory of a State
shall be deemed to be the land areas and territorial waters adjacent
thereto under the sovereignty, suzerainty, protection or mandate of
such State.
The assertion under air space law was that sovereignty extended
to an unlimited extent, usque ad coelum.The development of the law on
outer space modified this assertion. Sovereignty over air space extends
only until where outer space begins. But where is that?
There is as yet no definite answer to that question. The answer
will eventually come from technological capabilities of conventional
aircraft to reach greater heights. Different numbers ranging from fifty to
one hundred miles from the earth have been mentioned.
The provisions on the sea-bed and sub-soil were based on Article
2, Section 1 of the Convention on the Territorial Sea and Contiguous
Zone adopted in Geneva in 1958.
Commenting on Section 5, Committee Report No.02 said:
The Convention on the Territorial Sea and the Contiguous
Zonc ackrptcd by thc Gcncvt Cbnfcrcncc of 1958 allows u coustul
Sec. l Sec. I ART. I - THENAIIONALTERRITORY
state to exercise some control over the contiguous zone, which is
a part of the high seas. The Convention on the Continental Shelf
adopted by the Geneva Conference in 1958 allows a coastal state
to exercise over the continental shelf sovereign rights for certain
purposes. The control which the Philippines should exercise in the
contiguous zone and in the superjacent waters of the continental
shelf is the subject of study by the technical bureaus of the Phil-
ippine Government. Under the circumstances, the Committee on
National Territory believes that the matter of the extent of the con-
trol the Philippine Government should have in the contiguous zone
and in the continental shelf may be left to the National Assembly
for future decision.
It will be noted therefore that, while sovereignty is claimed over
the air space, sub-soil, sea-bed, the insular or continental shelves and
other submarine areas, the physical extent of these areas and the degree
of control claimed over these areas were left undefined. This indeter-
minate stance was preserved in the final 1973 version which simply
claimed "the air space, the sub-soil, the sea-bed, the insular shelves
other submarine areas" as part of Philippine territory. Determination,
in other words, was left to other modes than by constitutional precept.3l
5. 1982 Convention on the Law of the Sea (LOS)"
The 1987 Constitution was formulated while the Philippines was
already a party to the 1982 Convention on the Law of the Sea. The dis-
cussion of the 1982 Convention was not very thorough. However, since
the Convention has substantial provisions which help in the understand-
ing of the constitutional text, it is best to treat these before going on to
the 1987 version. Some important concepts found in the Convention are
archipelago, archipelagic state, archipelagic wears, baseline,
srDelegate Justiniano Hermoso (Bulacan, 2nd district) has a long disquisition on air space
in international law and on the continental shelf, Session of Februaq 12, 1972. See also the ex-
changes on the continental shelfbetween Delegates Azcuna and Quintero, Session ofFebruary 14,
1972, and on air space between Delegates Hermoso and Rebeck Espiritu (Nueva Ecija), Session
ol February 11 , 1912. The all embracing character of "other submarine areas" is discussed in the
cxclrangc among Delcgatcs Serano, Quintero, and llmmanuel Santos (Nueva Ecija), Session of
f;clrrualy 11 . 197 ).
rrl)onc tl Morrlcgo llrry, Jrrrnirica, l)cccnrhcl 10, l9lt2, Sixty parties are trecessary for the
( irrrvt'rrliorr l(t (otnc ilrl() lotct'. As ol Nrtvctnbct l()()0, linly lirttr hatl become ptrties.
 22 THE 1987 CONSTITUTION Sec.
OF THE REPUBLIC OF THE PHILIPPINES
Arc hipe lago, archipelagic state
The Convention contains a definition of an archipelagic state,
which the Philippines is, and an archipelago. Article 46 says:
For the purpose of this Convention:
(a) "Archipelagic State" means a State constituted whol-
ly by one or more archipelagos and may include other islands;
(b) "Archipelago" means a group of islands, including
parts of islands, interconnecting waters and other natural features
which are so closely interrelated that such islands, waters and oth-
er natural features form an intrinsic geographical, economic and
political entity, or which historically have been regarded as such.
It may be noted that under the above definition of an archipelago
Batanes should be considered part of the archipelago and not just of
other territories outside the archipelago. This conclusion has implica-
tions for the application of the archipelagic principle with reference to
the waters between Batanes and other islands of the territory which will
be discussed below.
The territorial sea.
The territorial sea of a state, as distinct from its inland and internal
waters, consists of a marginal belt of maritime waters adjacent to the
base lines extending twelve nautical miles outward. Outside the territo-
rial sea are the high seas.
The traditional length of the territorial waters measured seawatds,
according to the cannon-shot rule formulated in 1702, was three miles,
the effective range of 18th century defensive shore batteries. The three
. mile rule has now been discarded in favor of the twelve-mile rule now
found in Article 3 of the 1982 Convention on the Law of the Sea.
Where, however, the application of the twelve-mile rule to neigh-
boring littoral states would result in overlapping, the rule now estab-
lished is that the dividing line is a median line equidistant from the op-
posite baselines. Bui the equidistance rule does not apply where historic
title or other special circumstances require a different measurement.rr
"Alticlc 15. l9tl2 l,OS
I Sec. I ART.I -THENAIIONALTERRITORY
Baselines
To understand the extent of the territorial sea one must begin with
an understanding of baselines. The baseline is "the low-water line along
the coast as marked on large scale charts officially recognized by the
coastal Sate."3o The width of the territorial sea is measured from the
baseline.
There are two ways of drawing the baseline.The "normal" base-
line is one drawn following "the low-water line along the coast as marked
on large-scale charts officially recognized by the coastal State."" This
line follows the sinuosities of the coast and therefore would normally
not consist of straight lines. There is no fixed norm for determining the
"low water mark" but the Anglo-Norwegian Fisheries Case36 suggested
that "for the purpose of measuring the breadth of the territorial sea, it
is the low-water mark as opposed to the high-water mark, or the mean
between the two tides, which has generally been adopted in the practice
of States. This criterion is the most favorable to the coastal State and
clearly shows the character of territorial waters as appurtenant to the
land territory."37
Archipelagic States, however, instead of drawing "normal base-
lines," have drawn "straight baselines." Instead of following the sinu-
osities of the coast, straight lines are drawn connecting selected points
on the coast without appreciable departure from the general shape of
the coast. This method of drawing lines was first upheld in the Anglo-
Norwegian Fisheries Case.The case upheld the validity of the straight
baseline unilaterally adopted by Norway. Likewise, R.A. No. 3046 and
R.A. No. 5446have drawn "straight baselines" around the Philippines.
The decision in the Fisheries Case upholding the "straight base-
line method" eventually became part of convention law. throughArticle
7(1) of the Convention on the Law of the Sea. The rule now is that in
localities where the coastline is deeply indented and cut into, or if there
is a fringe of islands along the coast in its immediate vicinity, the meth-
od of straight baselines joining appropriate points may be employed
ra Section -5. 182 LOS
'5Article 5, Ittw tf the Sea.
r"( l.K
. v. Norway I(-'J I 95 I .
'/1951 l('J ll6. t28.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
in drawing the baseline from which the breadth of the territorial sea is
measured.tt
The provision on baselines found in Article 47 of the 1982 Con-
vention are the following:
l. An archipelagic State may draw straight archipelagic
baselines joining the outermost points of the outerrnost islands and
drying reefs of the archipelago provided that within such baselines
are included the main islands and an area in which the ratio of
the area of the water to the area of the land, including atolls, is
between I to I and 9 to 1.
2.The length of such baseline shall not exceed 100 nauti-
cal miles, except that up to 3 per cent of the total number of base-
lines enclosing any archipelago may exceed that length, up to a
maximum length of 125 nautical miles.
3. The drawing of such baselines shall not depart to any
appreciable extent from the general configuration ofthe archipela-
go.
4.Such baselines shall not be drawn to and from low-
tide elevations, unless lighthouses or similar installations which
are permanently above sea level have been built on them or where
a low-tide elevation is situated wholly or partially at a distance not
exceeding the breadth ofthe territorial sea ofanother State.
5.
The system of such baselines shall not be applied to an
archipelagic State in such a manner as to cut-offfrom the high seas
or the exclusive economic zone the territorial sea of another State.
6.If a part of the archipelagic waters of an archipelagic
State lies between two parts of an immediately adjacent neighbor-
ing State, existing rights and all other legitimate interests which
the latter State has traditionally exercised in such waters and all
rights stipulated by agreement between those States shall continue
and be respected.
I. For the purpose of computing the ratio of water to land
under paragraph l, land areas may include waters lying within the
fringing reefs of islands and atolls, including that part of a steep-
sided oceanic plateau rvhich is enclosed or nearly enclosed by a
'*.\r'r' rtl.to ltlSt|Ii'rritrn iul Sflt ('tnrt\,,t!it)n
ART. I _ THE NATIONALTERRITORY
chain of limestone islands and drying reefs lying on the perimeter
of the plateau.
8. The baselines drawn in accordance with this article
shall be shown on charts ofa scale or scales adequate for ascertain-
ing their position. Alternatively, lists of geographical co-ordinates
of points, specifying the geodetic datum, may be substituted'
g. The archipelagic State shall give due publicity to such
charts or lists of geographical co-ordinates and shall deposit a copy
of each such chart or list with the secretary-General of the united
Nations.
Article 47 is both a solution and a problem. Two observations
intimately interconnected need to be made. First, paragraph 1 affirms
,.straight baselines" as practiced by the Philippines. How-
the use of
ever, paragraph 2 prescribes that "straight baselines" may not exceed a
maximum of 125 nautical miles. Some of the lines drawn by Republic
Act No. 3046 and Republic Act No. 5446 extend beyond 125 nautical
miles.'n
At the time of the publication of this edition of the commentary,
congress was in the process of re-drafting the baselines in order to con-
form to the requirement of the convention on the Law of the sea and to
deal with the territorial disputes over areas claimed by the Philippines.
S ov erei gnty ov er territor ial w at er s
A state exercises sovereignty over its territorial sea subject to the
right of innocent passage by other States. Innocent passage is under-
stood as passage not prejudicial to the interests ofthe coastal state nor
contrary to recognized principles of international law. Article 19(2)
enumerates acts that are not considered innocent passage thus:
2. Passage of a foreign ship shall be considered to be
prejudicial to the peace, good order or security of the coastal State
if ln ttre territorial sea it engages in any of the following activities;
(a)any threat or use of force against the sovereignty, ter-
ritorial integrity or political independence of the coastal State, or
r"Scc Cl4Utn, I)t'.vt:tttt'utitut'ttt"nn Ancntprtqctc Dtrtmne es 'q Recocnnro Pnt'taprc or
INrtnxrrtrtr,ttr /,,rw, 5tl I'llll, l, J. l.l' 26 (l9tl3)'
 THE 1987 CONSTITI.]TION
OF THE REPUBLIC OF THE PHILIPPINES
in any other manner in violation of the principles of international
law embodied in the Charter of the United Nations;
(b) any exercise or practice with weapons of any kind;
(c) any act aimed at collecting information to the preju-
dice ofthe defense or security ofthe coastal State;
(d) any act ofpropaganda aimed at affecting the defense
or security of the coastal State;
(e) the launching, landing or taking on board of any air-
craft;
(0 the launching, landing or taking on board of any mili-
tary device;
(g) the loading or unloading of any commodity, cunency
or person contrary to the customs, fiscal, immigration or sanitary
laws and regulations of the coastal State;
(h) any act of willful and serious pollution contrary to this
Convention;
(i) any fishing activities;
C) the carrying out of research or survey activities;
(k)
any act aimed at interfering with any systems of com-
munication or any other facilities or installations of the coastal
State;
0) any other activity not having a direct bearing on pas-
sage.
Coastal states have the unilateral right to verify the innocent char-
acter ofpassage, and it may take the necessary steps to prevent passage
that it deterrnines to be not innocent.
Archipelagic waters
Article I of the 1973 Constitution said: "The waters around,
between and connecting the islands of the archipelago, irrespective
of their breadth and dimensions, form part of the internal waters of
the Philippines." This assertion, together with the "straight base line
method," form the "Archipelagic Principle." This now also found in the
1987 Constitution.
The significance of this assertion lies in the meaning of "intcrnal
watcrs." lntcrnal or inland watcrs consist ol'all parts ot'thc scl lantl-
ART. I- THE NATIONAL TERRITORY
wards from the baseline as well as inland rivers and lakes. All of them
are subject to the sovereignty of the state to the same extent that the land
domain is. Unlike territorial waters, they are not subject to the right of
innocent passage bY other states.
Article 8(2) the 1982 Convention, however, says: "'Where the es-
tablishment of a straight baseline in accordance with the method set
forth in Article 7 has the effect of enclosing as internal waters afeas
which had not previously been considered as such, a right of innocent
passage as provided in this Convention shall exist in those waters." Ar-
ii"t" 5: of the Convention refers to this type of internal water as "ar-
chipelagic waters" and says that "[a]n archipelagic State may designate
sea lanes and air routes thereabove, suitable for the continuous and ex-
peditious passage of foreign ships and aircraft through of over its archi-
pelagic *it"rr and the adjacent territorial sea." In effect, therefore, the
Law of the Sea provision establishes a right of innocent passage over
waters which the Philippine constitution considers as internal.
Aware of this possible conflict, the Philippine government, in sign-
ing the Law of the Sea Convention, made the following reservation:40
1.
The signing of the Convention by the Government of
the Republic of the Philippines shall not in any manner impair or
prejudice the sovereign rights of the Republic of the Philippines
under and arising from the Constitution of the Philippines;
2.
Such signing shall not in any manner affect the sover-
eign rights of the Republic of the Philippines as successor to the
United States of America, under and arising out of the Treaty of
Paris between Spain and the United States of America of Decem-
ber 10, 1988, and the Treaty of Washington between the United
States of America and Great Britain of January 2'1930;
3.
Such signing shall not diminish or in any manner af-
fect the rights and obligations ofthe Contracting Parties under the
MutualDefenseTreatybetweenthePhilippinesandtheUnited
States of America of August 30, 1951, and its related interpretative
instruments; nor those under any pertinent bilateral or multilateral
trcaty or agreement to which the Philippines is a party;
Bulletin,special
"\LN rrth*' t"r ()ceurrs Alllirs:rntl thc l-:rw of the Sea, Law of the sea
Svsrtu
lssrrt, l.Mrrrtlt l()llT,Artrrcr ll.p.6,r1trrttcr! irrSwr,rNr.v,Ottvt'H,l.tltlt'tt,Tnclnt*:nNtttttNtt
111 1 1 1111 l11l l()l3t{)
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
:x xxx xxx
6. The provisions of the Convention on archipelagic pas-
sage through sea lanes do not nullify or impair the sovereignty of
the Philippines as an archipelagic State over the sea lanes and do
not deprive it of authority to enact legislation to protect its sover-
eignty, independence, and security;
7. The concept of archipelagic waters is similar to the
concept of internal waters under the Constitution of the Philip-
pines, and removes straits connecting these waters with the eco-
nomic zone or high sea from the rights offoreign vessels to transit
passage for international navigation;
The reservation, however, may be seen as merely ad cautelam.
The claim made in the Constitution took effect in lgT3beforethe 1982
Law of the Sea Convention was formulated. Article 8(2) of the Conven-
tion itself says that the new rule on archipelagic waters applies only to
"areas which had not previously been considered as" internal waters.
Insular shelf
The continental shelf, archipelagic or insular shelf for archipela-
gos, refers to (a) the seabed and subsoil ofthe submarine areas adjacent
to the coastal state but outside the territorial sea, to a depth of two hun-
dred meters or, beyond that limit, to where the depth allows exploitation,
and (b) the seabed and subsoil of areas adjacent to islands. The coastal
state has the right to explore and exploit its natural resources, to erect
installations needed, and to erect a safety zone over its installations with
a radius of 500 meters. The right does not affect the right of navigation
of others. Moreover, the right does not extend to non-resource material
in the shelf area such as wrecked ship and their cargoes.
6. National Territory in the 1987 Constitution.
On June 26,1986, The Committee on Preamble, National Ter-
ritory and Declaration of Principles presented the following draft on
National Territory:
The national territory comprises the Philippine archipelago,
with all the islands and waters embraced therein, and all other ter-
ritories belonging to the Philippines by historic right or lcgal titlc,
inclu<ling thc tcrritorial sea. thc lir spacc, thc subsoil, thc scn.btrtl,
Sec. 1 ART. I_ THE NATIONAL TERRITORY
the insular shelves, and the other submarine areas over which the
Philippines has sovereignty orjurisdiction. The waters around, be-
tween and connecting the islands of the archipelago, irrespective
of their breadth and dimensions, form part of the internal waters
of the Philippines.
Sovereignty or jurisdiction of the Philippines shall also ex-
tend to straits connecting these waters with the economic zone pro-
vided for in the Convention on the Law of the Sea.
It will be noted that the first paragraph was an exact reproduction
of the 1973 text. The second paragraph was new and made reference to
the 1982 Convention of the Law of the Sea.
The concept and territorial space embodied in the phrase "Phil-
ippine Archipelago" has been left untouched by the 1987 text. The-.
deliberations of the 1986 Constitutional Commission pCused on: ($
whether to have a provision on national territory; (?fwhat posture to
take relative to Sabah as covered by the clause "all other terrijtp(es be-
long to the Philippines by historic right or legal title"; and @ how the
definition of territory would relate to the 1982 Convention on the Law
of the Sea.
The first issue, which came almost as a side issue, was resolved
easily enough. Much of the 1972 debate on whether to have an article
on national territory at all was repeated in the 1986 Constitutional Com-
mission. In the end there was recognition of the fact that such an article
would have an educational value and there was apprehension that it
would be difficult to explain why after the 1935 and 1973 provisions on
national territory the new Constitution should fail to provide for one.a'
The second issue was debated per longum et latum with a certain
degree of warmth even if it was not always clear what individual dele-
gates, including the sponsor, wanted. The second was not so thoroughly
discussed, and nothing conclusive was put down in writing. Both of
these, however, need some discussion.
1'l RL(lORl) 306-312i Journul ol July 2. l9tl6.
I
 THE 1987 CONSTITUTION ART. I - THENATIONALTERRITORY 31

Sec. I
OF THE REPUBLIC OF THE PHILIPPINES
a. "all other territories over which the Philippines has sover-
eignty or jurisdiction."
In the 1986 Constitution, t973's "all other territories belonging
to the Philippines by historic right or legal title" gave way to ,.all other
The debates on the subject were prolonged and emotionally intense but
easily summarized.o2 Those who proposed to retain the 1973 phraseol-
ogy basically wanted to avoid the impression of constitutional abandon-
ment of the Philippine claim to Sabah. Those who espoused the new
phraseology, however, contended that as worded the new phraseology,
while prescinding from any international claim, did not mean abandon-
ment of any claim which might be justifiable under generally accepted
principles of international law to which the nation subscribes.
The original phraseology proposed as substitute for the 197 4 ver-
sion read thus: ". . . and all other territories over which the government
exercises sovereign jurisdiction." After much debate and explaining
that the phrase was not an abandonment of any unsettled philippine
claim, the proposal was approved on second reading by a nominal vote
margin of 24-9. When the matter came up for third reading, however,
on the night of July 9, 1986, the resulting vote was Z2-II, short of the
required majority of all the members of the Commission.
The principal stumbling block to final approval, articulated by
Commissioner Roberto Concepcion, was the phrase "exercises sover-
eign jurisdiction." It was argued that the phrase could easily be read to
mean that territory not under the effective control of the philippines,
such as Sabah, would not be part of the Philippines. Because of this
argument, and with the help of the suspension of rules, the matter was
reopened on July 10, 1986, for the sole purpose of returning to sec-
ond reading situation in order to introduce a very specific rephrasing.
@, formulator and sponsor of the original amend-
ment, introduced the
R phraseology: "and all other territories over
or jurisdiction." It was explained
that the word "has'j was of broader scope than "exerciseJ" so that it
clearly allowedjuridical retention of a territory even when it was physi-
cally wrested by a stronger force. The phrase was explained to import
rrSlr,.lorrrrrirlsol .lrrly j,7,(),lntl lO, l9lt6:IRl|CORl)120-1j?,41?-411,,42,1.,1?9
(
u
th.'
isl it included any territorv over which the Philip-
a durative sense, that
pines then had soverei.-ehf or jurisdic-tion.^eygry[qch tenitory should
i" ny-gllqlgrrilqry
over or judsd&tio!
in the fi'tlre7t clearly therefore did not abandon any claim to Sabah or
to any otheFterritory but left all such matters to determination through
international processes. The intent was to more effectively allay the
fears of those who saw the abandonment of the 1973 language as an
abandonment of the Sabah claim since the Philippines did not actually
exercise jurisdiction over Sabah. The 1973 phraseology had acquired a
historic meaning as embodying a claim to Sabah which, while harming
diplomatic relations with Malaysia, did not add any more force to the
Philippine claim. The new phraseology had the advantage of avoiding
a phraseology which was offensive to Malaysia while not foreclosing
any claim to Sabah. Moreover, it was meant to take care of a situation
where an invading force might take away from the Philippines tempo-
rary control over all or a portion of its territory.
Even with such explanations, however, there were some firm
hold-outs. When the change was put to a vote, the result was 38 in favor
and 2 against.a3
c. "
terrestrial,fluvial, and aerial domnins, including the
. . . its
territorial sea, the seabed, the subsoil, the insular shelves, and other
submnrine areas thereof ."
This rephrasing was authored by CommissionerAdolfo Azcuna in
order to introduce a logical sequencing and a summary of the elements
that make up the Philippine territory. It was not meant to and does not
add anything to the substance of what was already contained in the
1973 definition. Azcuna elaborated on it thus:a
The jerrestrial domqin includes a]!:g5fa99r glJagd above
$e-leagaj-b{on€lqthePhiljptrtrgs.ThesearetheEEsincluded
o.
aron suhsequent sccond reading, the vote was 39-3, and on third reading 39-4. I RECORD
428-429.
a'r.ir,r, Journul ol July 2, l9lt6; I Rti(loRl) 305.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The fluvial domain includes the:4etd-watsrs: bays and riv-
ers, streams, as well as internal waters or the waters of the sea,
t.a"0W*Or t o- tn" U"r"lm
The qerial domaiu of the Philippines includes rhe air directly
gbgveiE_terrestrial and flUviaklagaits. All the air that lies above
our land territory and our water territory belongs to us, all the way
up to outer space where there is no more air. ... The aerial domain
extends up to where outer space besins. directlv ou"riillinili?
w3lglleni!@s.
Then we specify that our national territory includes the ter-
ritorial sea, the seabed, the subsoil
- again we reiuranged the se-
quence here, the territorial sea comes first
- this is the margin or
belt of maritime waters adjacent to our base lines up to the extent
of 12 nautical miles. It is a belt surrounding our base lines sea-
ward. Whether we like it or not, international law imposes a ter-
ritorial sea in every country that has waters. Under the territorial
sea is the seabed, which also belongs to us. And then the insular
shelves or the continental shelf, meaning the submarine area that
is directly under the water beyond the territorial sea, up to the edge
of the continental margin, regardless of the depth of the superja-
cent waters. Under international law,th" conjinen.1qul rhqlf; namely,
the seabed and subsoil of the submarine area, belongs to us. This
includes not onlv the continental shelf of individual islands but
[also] the archipelagic shelves and the other submarine areas over
which the Philippines has sovereignty orjurisdiction
- this is true
in the old provision. This was intended to cover any other areas
that also belong to us, such as the continental slope or the conti-
nental margin, over which we have jurisdiction or sovereignty. ...
It will be noted that the explanation made by Commissioner Az-
cuna follows closely the terms of the 1982 Convention on the Law of
the Sea. To begin with, Article 2 of the Convention says:
l. The sovereigpty of a coastal State extends, beyond its
land territory and internal wate.rs and, in the case of an archipelagic
State, its archipelagic waters, to an adjacent belt of sea, described
as the territorial sea.
2. This sovereignty extends to the air space over the ter-
ritorial sea as well as to its bed and subsoil.
3. Thc sovcrcigltty ()vcr thc tcrriklrial sca is cxclcisc:d
strbjct't to llris (irrrvcttiiott irrttl kr othcr rulos ol'intcrnttionll law.
Sec. I THE NATIONALTERRITORY
1 ART-
-
7. Summary and Conclusion.
Like the 1934-1935 Convention, the l97l Convention did not
claim that a constitutional provision standing by itself is binding in-
ternational law. During the 1973 debates on the provision on national
territory, the local newspapers played up the intent of the Convention
to secure the claim to sabah and the possible claim to the Marianas
Islands and Freedom Land. The impression was easily given that, by
a unilateral act, the Convention was attempting to add new territory to
what was defined in the 1935 Constitution. It is clear from a study of
Convention records, however, that there was no such attempt. But the
IgT3language tended to admit such an interpretation. The 1987 lan'
guage attempts to remedy the misimpression.
The only clear claim made by the 1971 Convention of the power
unilaterally to delimit territorial boundaries was with respect to inland
and territorial waters. But even in this, the Convention was merely pur-
suing the Republic's existing official policy of pushing for international
acceptance of the archipelagic principle. It was a claim therefore which
the Convention realized must be submitted to determination by interna-
tional convention.
Is the Philippine territory bigger because of the new article on
national territory? Not really. The Treaty of Paris is the 1935 Consti-
tution's principal point of reference for the delineation of Philippine
territory. Although the 1973 and 1987 Constitutions make no mention
of the Treaty of Paris or any other treaty, the Philippine archipelago
of the new Constitution is, according to the sponsors of the provision,
also the archipelago of the Treaty of Paris. If the present provision ac-
complishes anything at all, its omission of any mention of the Treaty of
Paris in the new Constitution only succeeds in putting the Philippines in
an ambiguous if not embarrassing position. On the one hand, it wishes
to be washed clean of the colonial taint of the treaty; on the other hand,
it claims the longitude and latitude lines of the treaty as the rightful
boundaries of the archipelago and of its territorial waters.
The 1913 Constitution affirmed Philippine title to the Batanes Is-
lands by "historic right." But this too was adequately covered by the
last clauscrff Articlc I of the 1935 Constitution. Under the 1987 Consti-
tution, it ccrtainly is c<tvcrctl by the clause "other territories over which
tlrc lrhil ip;tirrcs l,rirs sovcrrerignty or .itrristliction." Morcover, untler thc
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES

definition of an archipelago in Article 46 of the 1982 Convention on

the Law of the Sea, the Batanes Islands can be considered part of the
archipelago.

The 1973 Constitution ensured the possibility of claiming other Anrrcr,E II

territories on the basis of "historic right or legal title." In this, it merely
affirmed what the Republic had been doing under the 1935 Constitu-
tion. The 1987 version prescinds from the question and relies on gen- DncL.q.RATroN or PnTNCTPLES AND
erally accepted principles of international law which recognizes legal
modes of establishing legal claim to territory. If Sabah, the Marianas,
Srmn Por,rcrBs
and Freedom Land should eventually be recognized by the world as
annexed to the Philippines, it will be in virtue of "historic right or legal
title" independent of the 1973 or 1987 Constiturion.
PRINCIPLES
The extent and degree of control over territorial waters, internal
waters, air-space, sea-bed, sub-soil, insular shelves and other submarine
areas cannot, in our modern world, be determined with finality by a uni- Sscrrox 1. TnB Pnrupprxns Is A DEMocRATIc AND REPUBLTcAN

lateral flat. Of this the l97l Convention was well aware when it enacted
the new provision. So was the 1986 Constitutional Commission. How-
ever, to the extent that the provisions ofArticle 47 of the 1982 Conven-
tion on the Law of the Sea might conflict with Philippine constitutional
law and rights based on treaties, such provisions are repudiated.
What then did the 1973 provision gain for the Philippines? A se-
curity blanket, a rhetorical assertion ofhistoric identity, "decolonializa-
tion" on paper, and an embarrassing muddling of Philippine position
towards the Treaty of Paris.
As to the 1987 version, it merely removed language possibly of-
fensive to an ASEAN neighbor and achieved a more logical sequencing
of the elements that make up the territory but preserved everything else
found in the 1973 Constitution.
Sutr. SovrnrrcNrv RESIDES IN TIrE PEoPLE AND ALL G0vERNMENT
AUTHORITY EMANATES FROM THEM.
1. Title of the Article.
The counterpart of this article in the 1935 Constitution was sim-
ply entitled "Declaration of Principles." Its place in the constitutional
scheme was described by Vicente Sinco thus:'
This portion of the Constitution might be called the basic
political creed of the nation. It lays down the policies that the gov-
ernment is bound to observe. With the exception of Section 2 [now
Section 4,1987 Constitutionl, which refers to the duty of the citi
zen to serve the State, these provisions prescribe the fundamen-
tal obligations of the government, particularly the legislative and
executive departments as its policy determining organs. It is in-
cumbent on the people to demand fulfillment of these government
duties through the exercise of the right of suffrage. But indirectly
some of these principles may aid the courts in determining the va-
lidity of statutes or executive acts injusticiable cases.

lSrN<rr, Prlrlllr,vr Pounctt Ltw 116 (llth Ed., 1962).

l5
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Sec. I
In general, therefore, the 1935 provisions were not intended to
be self-executing principles ready for enforcement through the courts.
They were rather directives addressed to the executive and to the legis-
lature. If the executive and the legislature failed to heed the directives
of the article, the available remedy was not judicial but political. The
electorate could express their displeasure with the failure of the execu-
tive and the legislature through the language of the ballot.
This is not to say, however, that the provisions did not have their
usefulness in litigation. They also obligated the judiciary to be guided
by the provisions in the exercise of the power of judicial review. Thus,
for instance, the principle of "social justice" enunciated in Section 5 of
the 1935 Declaration or erinE6Gs revoiuilonized judicial attitude to
the right of property and to the powers of government in relation to the
regulation of property., And the same principle has had and continues to
have a profound and pervasive impact on the developing jurisprudence
on property rights and social and welfare legislation.
The 1973 Constitution changed the title of the article to ,.Declara-
:&q of Principles and State Policies." The change in the title, Ii6ililer,
did not effect an intent different from that of the Declaration of prin-
ciples of the 1935 constitution. As the committee on Declaration of
Principles and Ideologies reported:3
There are inherent limits to constitution making, however,
that we accept. For a new constitution does not mean an instant
and reformed social order. The unity between thought and action,
between principles and programs, between goals and implementa-
tion will be ascertained by time, the commitment of the Filipino
people and the responsiveness both of the government structure
and the men in positions of power in the next two decades.
Nonetheless, we can never under-estimate the power of
ideas to institute change.
2The earlier cases
on this subject are discussed in Bemres, A Hrsrontcn mo Junorctt Sruor
or rae Pnupnnt Bnr op Rrcars 46-8, 103-5 (1921).
3Committee on Declaration of Principles
and Ideologies, Report No. l, as Amended. The
Report originally entitled the article "Directive Principles and State Policies" apparently in imita-
tion, among others, of the Indian Constitution.
'Ihe Indian Constitution's "Directive Principles of State Policy," Articles
36-51 . in turn hus
btrcn htx'rtrwc<l litrnr lhc lrish tnd the Spanish (ilnstitutions. J.N. Prrrunly, Colsttttrrnntt. I"tw tu.
luu,r 2)5.
1
Sec. ART.II - DECLARAIONOFPRINCIPLESANDSTATEPOLICIES 37
Principles
The directives are therefore a source of rights in the same
way the present declaration of principles are [sic]. But such rights
will depend on the circumstances and questions involved in each
case.
The Declaration of Principles and State Policies of the 1987 Con-
stitution ballooned from the five sections of 1935 and the ten sections of
1973 to twenty-eight sections. The 1987 provisions were written in the
same spirit as their counterparts in the 1935 and 1973 Constitutions; but
there was an attempt to distinguish "principles" from "policies." The
"principles" are binding rules which must be observed in the conduct
of government whereas "policies".are guidelines for the orientation of
the state.4 In fact, however, the distinction is of little significance be-
cause not all of the six "principle-s" are self-executory and some of the
"policies" already anchor justiciable rights.' Kilosbayan v. Morato,6 for
instance, read Sections 5,12,13 and 17 as mere "guidelines" which do
not yet confer rights enforceable by the courts but recognized Section
16 as a righ confening provision because it speaks of "the right of the
people."
ln Tafiada v. Angara,? a case involving possible conflict of the
General Agreement on Tariff and Trade with the natonalistic provisions
of Article II, the Supreme Court made this statement:
By its very title, Article II of the Constitution is a "declara-
tion of principles and state policies." The counterpart of tfrii articG
in the 1935 Constitution is called the "basic political creed of the
nation" by Dean Vicente Sinco. These principles in Article II are
A6lEiended to be self-executing principles ready for enforcement
through the courts. They are used by the judiciary as aids or as
guides in the exercise of its power of judicial review, and by the
legislature in its enactment of laws. As held in the leading case of
Kilosbayan vs. Morato, the principles and state policies enumer-
at-i6?i.Ifti;i6 n me sections of Article XII are not "self-ex-
ecuting 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."
aSee IV RECORD OF THE CONSTITUTIONAL COMMISSION 768 and 580.
l.Saz e.g., the
right to ecological balance in Section 15, infa.
6(i.R. No. ll89l0, Novemher 16, l935,on reconsideration.
'( i.R. No. I llt295. Mty 2, 1997.
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
The statement, however, is less than exact whcn applied to the
1987 version. whether or not a provision in it is self-executing depends
on the way it is formulated. For instance, as already seen. the right to a
healthful environment asserted in Section 16 was deemed by the court
to be an enforceable right without need for further legislation.8 But
Time and again, the Court has ruled that the social justice provisions
of the constitution are not self-executing principles ready for enforce-
ment through the courts. They are merely statements of principles and
policies. To give them effect,legislative enactment is required. They do
not embody judicially enforceable constitutional rights but guidelines
for legislation.,
2. Definition and element, of 66G,')
\-/
The Philippines is a state and all th;i5ei--ng a srare means in the
international scene:'o
The states are the repositories of legitirnated authority over
peoples and territories. It is only in terms of state powers , preroga-
tives, jurisdictional limits and law-making capabilities that territo-
rial limits and jurisdiction, responsibility for official actions, and a
host of other questions of co-existence between nations can be de-
termined. It is by virtue of their law-making power ancl monopoly
that states enter into bilateral and multilateral compacts, that wars
can be started or terminated, that individuals can be punished or
extradited.
States come in various shapes and sizes and vary immensely in
their cultures, forms of government, natural resources, language and a
host of other attributes. But custom has come to recognize the essen-
tial attributes which make an entity a state, whatever its shape or size
or the color of its inhabitants might be. These were summed up in the
Montevideo convention of 1933 which said in.Article I: "The state as a
peryon of international law shogJd possess the tollowi4g qualifications:
rf a permanent populati on; ffi defi ned tenitory : r+$vern me n r : and *{
capacity to enter into relations with other states." or, as the Restatement
8op<rsa
v. Factoran, Jr.,224 SCRA 192 (l()93).
"lll,AR linrployccs v. (lOA, (i.R. No. I(r98 l-5, Augusl l.t. l(X)tt.
rirliRrtil)MAN. l'ttt.('tr,tut;tt,tt;
stntt tttnr ot, Iprt..nw,ruoN,,tt /,.,1y
l\llt,sruA(rrl.,t slrtt,/rulllrrurl/r)N.r/ /.r[. ( r\/\ lN/' lll.ttttit.tts.).)(){l(A/..)l(l l;(l
Sec. I ART.II - DECLARATIoN AND srArE PoLICIES 3e
T;#il;ltt"s
(Third) onlke Foreign Relations lnw of the United States enumerates
them: "t6 sovgpignty over its territory and general authority over its
nationals; (b/status as a legal person, with capacity to own, acquire and
transfer property, to make contracts and enter into international agree-
ments, to become a member of internationalgrganizations, and to pur-
sue, and be subject to, legal remedies; @fr,apacity to join with other
states to make international law, as customary law or by international
agreement."t'
Hence. the definition of the has found cur-
"on."p(Gua1)uhich
rency among Philippine writers is this: iiE-a community of persons
more or less numerous, pennanently occupying a definite portion of
,
territory, independent of external control, and possessing an organized
government to which the great body of inhabitants render habitual obe-
dience. Commentators, following the Montevideo Convention of 1933,
tggi!9ry, sg!,ercign-
break down the concept intoobUrplemcnls'
tY.evernmgnt' -stfifr" .S1", .,--\\
are also in the habit of distinguishing("state"-ftAm
---Qrmmentators
('natioi)nd it is pointed out that the s.tate is a legal coniFrfrhile a
-nntio-n-ilarlrcial or ethnic conceBt. While the distinction may be useful
f@ciology, it is of little consequence for pur-
poses of constitutional law. The 1935 and t973 Preambles themselves
spoke of the "patrimony of our nation" and it is not to be supposed that
"nation" in fiis co;Gxt s-foufdbtfifrited to one racial or ethnic group.
Likewise, the President under the 1935 Constitution had the duty of
giving Congress information on the "state of the Natior-t." Indeed, it
would have been awkward for the Constitution to have said "state of
the State"; but if it had so stated, the sense would have been the same.
-
Similarly, the word "34!iqnd appears in the 1987 Constitution, as it
did in the 1973, in a context that does not limit the word to an ethnic
concept. The legislature, under the original 1973 Constitution, was the
National Assembly.Article XII is entitled "National Economy and PAt-
r!ryy." For purposes of the Constitution, therefore, the word state is
interchangeable with nation. In fact, a decision of the Supreme Court,
discussing what makes a foreign country a state in the legal sense, used
nation and state interchangeably. The Supreme Court said:r'?
llr ll,t (l(xrl t. rrr llrNxrn ttRaslutemcnl $2(16.
). r r( irllcctor ol lrrtcrnll Rcvcnuo v. CttmJxrs Rucda, 42 SCRA 23, 28-9 ( l 97 l ).

THE 1987 CONSTITUTION
OF THE REPUBLIC OF TI{E PHILIPPINES
It does not admit of doubt that if a foreign country is to be
identified with a state, it is required in line with Pound's formula-
tion that it be a politically organized sovereign community inde-
pendent of outside control bound by ties of nationhood, legally
supreme within its territory, acting through a government func-
tioning under a regime of law. It is thus a sovereign person with
the people composing it viewed as an organized corporate society
under a government with the legal competence to exact obedience
to its commands.It has been referred to as a body-politic organized
by common consent for mutual defense and mutual safety and to
promote the general welfare. Correctly, it has been described by
Esmein as "thg-igfidical personi n." This is to
view it in the light of its historical development. The stress is on its
being a nation, its people occupying a definite territory, politically
organized, exercising by means of its government its sovereign
will over the individuals within it and maintaining its separate in-
ternational personality. Laski could speak of it then as a territo-
rial society divided into government and subject, claiming over
its allotted area a supremacy over all other institutions. Mclver
similarly would point to the power entrusted to its government to
maintain within its territory the conditions of a legal order and to
enter into international relations. With the latter requisite satisfied,
international law does not exact independence as a condition of
statehood. So Hyde did opine.
3. Id; "People."
As an element of a state, "people" simply means a community of
persons sufficient in number and capable of maintaining the continued
existence of the community and held together by a common bond of
law. It is ofno legal consequence ifthey possess diverse racial, cultural,
or economic interests.
-.-...--\
The worf"peopldi appears several times in the Constitution. The
Preamble attribues+#uthorship of the Constitution to "the sovereign
Filipino people." Article II mentions people several timefTGTill6f
Rights also uses the word several times. The meaning of the word in
each case depends on the context where it is found.
The second sentence of Section I says that sovereignty "resides
in the peopled.rall government authority emanates from them."
The wrlrf'$:opl/in this context has rcf'crcncc to thc scgmcnt ol'thcr
political s<lciety whcrcin lcgal sovcrcignty lics. llcltcc,ls will bc sltowtt
Sec. I ART.II - DECLARATIoN TJ*til;J"t"s AND srArE POLICIES 41
later, it has reference to the electorate or to that segment of the political
community which can establish or alter the fundamental law.
4. Id.l "Territory."
Adefinite territory, consisting of lan{and ryatets and the air -space
above them and the submarine areas below them, is another essential
element of the modern state. And as the Restatement (Third) on the
Foreign Relations Law of the llnited States explains: "An entity may
satisfy the territorial requirement for statehood even if its boundaries
have not been finally settled, if one or more of its boundaries are dis-
puted, or if some of its territory is claimed by another state. An entity
does not necessarily cease to be a state even if all its territory has been
occupied by a foreign power or if it has otherwise lost control of its ter-
ritory temporarily."t:
The extent of Philippine territory is defined inArticle I of the con-
stitution. The character of the power which the Philippines has over its
territory was the subject of |"oTa, v.Com*ittio*, of I@u-
enue. Petitioner in this case drspute0 tne pavment of
assessedonhimby theresponden d
a. His contention was that the
ffi"s tvtitita* g"sg
U"it"A
rejecting his claim, said:'a
Nothing is better settled than that the Philippines being
independent and sovergigr, its authority may be exercised qv.er
@gpn. There is no portion thereof that is beyond its
p-G. wittrln its limits, its decrees are supreme, its commands
paramount. Its laws govern therein, and everyone to whom it ap-
plies must submit to its terms. That is the extent of its jurisdiction,
both territorial and personal. Necessarily, likewise, it has to be ex-
clusive. If it were not thus, there is a diminution of its sovereignty'
It is to be admitted that any state may, by its consent, express
or implied, submit to a restriction of its sovereign rights. There
may thus be a curtailment of what otherwise is a power plenary
in character. That is the concept of sovereignty as auto-limitation,
13$ 201. U.S. courts generally view the Restatement as the most authoritative scholarly
statement of contemporary international law.
1430 SCRA 968,973-5 (1969). Footnotes have been omifted. The same doctrine is reiter-
ited itt I'u t pl c v. ( i oz.o, 53 SCR A 476 (October 26' 1 973).
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
which, in the succinct language ot Jelline#1gjhe4rops;1y-gf a
state-force due to which it has f-
A*ermination ana sen ." A state then, if it chooses to,
may refrain from the exercise of what otherwise is illimitable com-
petence.
Its laws may as to some persons found within its territory no
longer control. Nor does the matter end there. It is not precluded
from allowing another power to participate in the exercise of ju-
risdictional right over certain portions of its territory. If it does so,
it by no means follows that such areas become impressed with an
alien character. They retain their status as native soil. &yj{g
slill subject to its authorily. Its jurisdiction may be diminished, but
it does not disappear. So it is with the bases under lease to the
American armed forces by virtue of the military bases agreement
of 1947 . They are not and cannot be foreign territory.
4
Decisions cS>f'ing from petitioner's native land, penned by
jurists of repglq! speak to that effect with impressive .unanimity.
We start with the citation from Chief Justice Marshall, announced
in the lead/g case of Scnoone, fxcnanse ,. . an l8l2
decisiony''Thejurisdiction of the nation within its own t"rriion, is
[ iherein, the territorial sovereign, if it secures custody of the of-
rySsadb$.xclusixe and ebsolufe. I@a-
tion not imposed bv itself. Any restriction upon it, deriving validity
from an external source, would imply a 4llm4Cqon of its sover-
eignty to the- extent of the restriction, and an investment of that
sovereignty to the s/me extent in that power which could impose
such restriction.'y'Afte, which came this paragraph: "All-gxgep-
tions. tferefore. to.the full and complete p<
its own territories. must be traced un to th
j!!g$. Thev can flo* fto- no othet
"."
Chief Justice Taney, in an 1857 decision, affirmed the fun-
damental principle of everyone wit$,n the territorial domain of a
state being subject to its commandt'r"@
son who is found within t, whgbgl&r
temDorarv Dumoses or as a resident. is bound bv its laws." It is
no exaggeration then for Justice Brewer to stress that the Unit-
ed States government "is one having jurisdiction over every foot
of soil within territory, and acting directly upon each [individual
foundthereinl;xxx."
Not too long ago, there was a reiteration of such a view, this
time from the pen of Justice Van Devanter. Thus, "lt now is scttlcd
in the United Statcs and rccognizcd clscwhcrc thal thc lcrritory
Sec. I Sec. I ART. II - DECLARATION OF PRINCIPLES AND STAIE POLICIES
Principles
subject to its jurisdiction includes the land areas under its do4q.i4!on
and control thclarts, ttarUg.s, b,aY!, anO ot6"i.n"iot"O6t frft"
sea along its coast, and a marginal belt of the sea extending from
the coast line outward a marine league, or 3 geographic miles." He
could cite moreover, in addition to many American decisions, such
eminent treatise writers as Kent, Moore, Hyde, Wilson, Westlake,
Wheaton and Oppenheim.
As a matter of fact, the eminent commentator Hyde in h
three-volume work on tllenationd-Uw, as interpreted and ap-
plied by the United States, made clear that not even the
premrles €_e&ptgryssr
i-torial domain o{ the host state. Thus: "Thegggq$ occupied by
5[ernEaGv is not -ln r*t ttt. territory of thejGEnSlale to which
the premises belong @P.E-.bY- is determi
fulness or unlawfulness.gf acts
*l;*v'aa
that the individual is exempt from prosecution. If a person qEllg
-------
exemit, or whose immunitlir waived, similarly commits a crime
-fender, may subject him to prosecution, even though its criminal
code lgryllylloe!-ngt qo4lgmnlatelle lg!i$![eql Sf--eneJho
commtts an o nse - It is +qt believed'
therefore, that an ambassador himself possesses the right to exer-
cise jurisdiction, cg4llrary.lqlbg-ylt Sf the State of his sojoum'
even within his embassy with respect to acts there committed. Nor
is there apparent at the present time any tendency on the part of
States to ac99j9Sc-e in his exercise of it."
11
5. Id.; "government"i definitions and functions.
Government, as an element of a state, is defined as "that institu-
tion or aggregate of institutions by which an independent society makes
and carries out those rules of action which are necessary 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."'' Section 2 of the Revised Administrative Code (1917) defined
the "Government of the Republic of the Philippines" thus:'6
l'[].S. v. l)orr.2 l'hil. ]32,cittl in Bacani v. NACOCO, 100 Phil.468'471 (1956).
rr'll:rt'lrri v. NA('( )('( ). l(X) l'hil. rrt 471
.
44 THE 1987 CONSTITUTION Sec. I Sec. 1 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 45
OF THE REPUBLIC OF THE PHILIPPINES Principles

The Government of the Philippine Islands is a term which (2) The@between4qnandw!ft

refers to the corporate governmental entity through which the
functions of government are exercised throughout the Philippine
Islands, including, save as the contrary appears from the context,
the various arms through which political authority is made effec-
tive in said Islands, whether pertaining to the central Govemment
or to the provincial or municipal branches or other form of local
govemment.
On the national sc4le, therefore, the term "gevernment of the Phil-
ippines" refers to the three great departments
- legislative, executive,
and jg4!@
- mandated by the Constitution, and on the lsalletlel, it
means the rygional, plqyiueial, qity, mlglipal and berria€svqrnmel5l.
It does not include government entities which are given a corporate per-
sonality separate and distinct from the government and which are gov-
erned by the corporation law.'7 Moreover, for purposes of international
]ry, it is the national government that has legal personality and it is the
national government that is internationally responsible for the actions
of other agencies and instrumentalities of the state.
The concept of government should be distinguished from admin-
istration. ag""g-g! is the institution through which the state e4ercis-
power; administration, on the other hand, consists of thC-SgI o;Lpqo-
-es
ple currently running the institution.@t
a change in er@-!!ate-or government. The transitions from the 1935
Constitution to the 1973 Constitution to the 1987 Constitution involved
changes of government but not of state The transition from President
Estrada to PresidentArroyo did not involve a change of government but
only of administration.
//---)
The functions of government may be classified intoQonstituent,2
and (ninistrarytr functions. The former are the compulsory-ffif
wtric President Wilson's enumer-
ation of the constituent functio t was adopted in Bacani
v. NACOCO.'8 They are:le
04' tne keeping of order and providing for the pJglgglion
of persons and propertJ from violence and robbery.
and between pgrelis and cbilclren.
(3)
The regulation of the hgliling, transmi$sion, and j4qer-
change of property, and the determination of its Jiabilities for de!!
or for c!49e.
(4) Thed@betweenindivid-
e4
(5) The definifion and pnnishment of crime.
(6) The adq4llgation pfigstige in civil caseq.
(7) The determination of the political duties' PJrvttsggs'
and relations of citizens.
(8)
Dealings of the state w1th-folgjglgwglglthe preser-
vation of the state fto* ert"lna! dugggr orlgggq3ghlqent and the
advancement of its international interest'
Ministrant functions are the Qptional functions of grrvernment in-
o'The principles
tended for achieving a better life for the community.
for determining whether or not a ggvernment shall exercise certain of
these og{ona$uggligns are: Qfthat a government should do for the
public welfare those things which Eivate capital would not naturally
undertake, and Wthat a govemment should do those things which by
its very nature it is better equipped to administer for the publiqi/elfare
than is any private individrral or group of individuals."'o
For the purpose of the decision in Bacani, the disquisition on the
functions of government was really of little moment. The issue in the
case was t. And
since NACOCO was a corporation with pe e
ggl'ern![gg.t, it was clearlv not part of the government and could not
therefore claim the privileges which flow frqm-soverelgg.ty. When'
however, government chooses to operate noq through a government-
owned corporation but through an unincomorated agencv, the distinc-
tion between constituent and ministrant functions can-!
concepts, however, seem to belong more to the field @political science
than to law. Law prefers to use the term &overnmental andiroprlenry.

ttld @,"rA1^frrrr^rt - ,^)UoL1 W*t"'1^'h^ /ft w4

/*^h + k"h
'nt 474.
INId 2rr/r/. The whole discussion on functions of govemment in Bacani was lifted from Mel-
t,'lrl rt 47 ).. t' ot.u.' !' t n. ( ] t tv c n tt u t: Nl t t t t tt *: P t ttt t p t' t N t: I s t"l,vos l 9-2O.

THE 1987 CONSTTTUTION
OF THE REPUBLIC OF THE PHILIPPINES
Whether one, however, uses the terms AlSliIUe11t andg,lrU!.]tran!
or governmental and proprietary, what is important to remember is that
the enumeration of specific government functions under these headings
cannot be static. This was emphasized in the case of ACCFA v. CUG-
CO." Atissue was the characterization of the
agencv charged with the implementation of the land reform proqram.
The function, the Court said, may not strictly be "constituent" in the
sense of Bacani, but the compelling urgency with which the Constitu-
tion speaks of social justice does not leave any doubt that land reform
is nq!-en_Ap&El but a compulsory function of sovereignty.'z, In the
language of Justice Makalintal:':1
The growing complexities of modern society, however, have
rendered this traditional classification of the functions of govern-
ment quite unrealistic, not to say obsolete. The areas which used
to be left to private enterprise and initiative and which the gov-
ernment was called upon to enter optionally, and only "because
aiy private individgal 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 de-
velopment was envisioned, indeed adopted as a national policy, by
the Constitutrgljtsetfio-t(s declaration of principle concerning the
promotion o(locial justicg.
\d'-to&dfuL
Among more recent decisions, lqgsing\has been found to be a
governmental function since housing is considered eg: r"n!ialS"r-
y!g:.'But undertaking to supply water for a pricg, as does the govern-
ment corporation National Irrigation ,A,uthority, is considered a trade
and not a sovernmental activitv.,t I
vr^"^71*;5
,'30 scRA 649 (1969).
22|d. at 661 .
2tld. at 662 (1969\.
IPHHC v. (\xrrt ol lntlus(riul Rclations, 150 SCRA 296, 310 (1987).
sSlrrrtrstrs lirnturrilll v. I krrr. Mllilmnn. (i.R. Nos. 55963 tnd 61045, l.'cbruury
27
-
d- t*'
I Sec. 1 ART.II - DECLARAIIONOFPRINCIPLESANDSTATFTPOLICIES
dL _ frdo _
Sec.
principres
6. Id.; government de jure and de facto. U
On the basis of legitimacy, governments are classified into de jure
governments and those which ne defacto merely. "It is a legal truism in
political and international law that all acts and proceedings of the legis-
lative, executive, and judicial departments of a de facto government are
good and valid."26 This principle coupled with the fact that the Philip-
pines had just emerged from military occupation by the Imperial Forces
of Japan made the concept of a government merely de facto of great
importance in Philippine Law of the late forties. Since then, however,
the concept has merely been of academic importance. But the concept
and some of its various famifications have been thoroughly discussed
in Philippine jurisprudence and they are there ready for-exhumatiorr{
should it become necessary once more to use them. For the purpose of
this commentary, however, suffice it to recite the classification of gov-
ernments merely de facto in Cg-KlruChan v. Vqlcpz Thtl Ee.h."
There are several kinds of de facto governments. The fiK
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 government and maintains
itself against the will of the latter, sugh as the government of Eng-
land under the Commonwealth'i/st by Parliament and later by
Cromwell as Protector. The seednd 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
of Tampico, Mexico, occupied during the war with Mexico, by the
troops of the United Stut"r.l,nd the-th1{is that established as an
independent government by the inhabitants of a country who rise
in insurrection against the parent state, such as the government of
the Southern Confederacy in revolt against the Union during the
war of secession.2*
7. Government under the 1986 Freedom Constitution.
The first question that must be asked in studying a fundamental
law is: By what authority is the Constitution promulgated? Both the
loCo Kim Chan v. Valdez Tan Keh,75 Phil. I 13. 122 (1945)-
]tld.
)^kl.
, l99l
.
48 THE I9STCONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
1935 Constitution_gur4*hql973 Constitution stated the source of their
authority in their@rnllg) The Provisional Constitution of 1986 did
not contain a Preamble. What it had were the introductory "Whereases"
and the concluding paragraphs of Proclamation No. 4. The following
preceded the text of the Provisional Constitution:
PROCLAMATION NO.3
DECLARING A NATIONAL POUCY TO IMPLEMENT
THE REFORMS MANDATED BY THE PEOPLE, PROTECT:
ING THEIR BASIC RIGHTS, ADOPTING A PROVISIONAL
CONSTITUTION, AND PROVIDING FOR AN ORDERLY
TRANSITION TO A GOVERNMENT UNDER A NEW CON-
STITUTION.
WHEREAS, the new government under President Corazon
C. Aquino was installed through a direct exercise of the power of
the Filipino people assisted by units of the New Armed Forces of
the Philippines;
WHEREAS, the heroic action of the people was done in de-
fiance of the provisions of the 1973 Constitution, as amended;
WHEREAS, the direct mandate of the people as manifested
by their extraordinary action demands the complete reorganization
of the government, restoration of democracy, protection of basic
rights, rebuilding of confidence in the entire governmental system,
eradication of graft and comrption, restoration of peace and order
and the supremacy of civilian authority over the military, the tran-
sition to a government under a New Constitution in the shortest
time possible;
WHEREAS, during the period of transition to a New Consti-
tution it must be guaranteed that the government will respect basic
human rights and fundamental freedoms;
WHEREFORE, I, CORAZON C. AQUINO, President of
the Philippines. by virtue of the powers vested in me by the sov-
ereign mandate of the people, do hereby promulgate the following
Provisional Constitution:
DONE in the City of Manila, this 24th day of March in the
year ofOur l-ord nineteen hundred and eighty-six.
CORAZON C. AQUTNO
l)rt:sirlcnl ol' thcr Phil ippincs
Sec. I 49
Sec. I ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES
Principles
In essence therefore PresidentAquino anchored her assumption of
power on "the direct mandate of the people" when she "was installed
ihrough a direct exercise of [their] power" and "in defiance of the provi-
sions of the 1973 Constitution."
Both Corazon Aquino and Ferdinand Marcos had run for the pres-
idency under the provisions of the 1973 Constitution. on February 15,
1986, the Batasan Pambansa, in the exercise of powers given by the
1973 Constitution, proclaimed Ferdinand Marcos president amid wide-
spread protest. Subsequently, starting on the afternoon of February 22,
1b86, Vtinister of National Defense Juan Ponce Enrile and Vice Chief
of Staff General Fidel Ramos initiated a revolt against Ferdinand Mar-
cos. Ramos and Enrile placed their support instead behind Corazon C.
Aquino.
Completely outnumbered by the Marcos forces and confined to
camp crame and camp Aguinaldo, the Enrile-Ramos forces could
have easily been crushed by the Marcos forces. But hordes of unarmed
civilians came to their rescue by surrounding the two military camps
with masses of human bodies. They dared tanks and armored vehicles
to come at them. The civilian support given to the outnumbered Enrile-
Ramos forces caused other military elements to switch their support
to Corazon Aquino. By the morning of February 24,1986, after ele-
ments of the Air Force switched, it was all over for Mr. Marcos and
all those who had connived to proclaim him President under the 1973
Constitution. Finally, on the morning of February 25,1986, Corazon
C. Aquino, in defiance of the provisions of the 1973 Constitution and
without the sanction of the Batasan Pambansa which had chosen to give
the presidency to Mr. Marcos, was proclaimed first woman President
of the Philippines in simple rites held at the Club Filipino and was im-
mediately sworn in by senior Associate Justice of the supreme court
Claudio Teehankee.
Meanwhile, at almost the same time and in virtue of the Batasan
proclamation of February 15,1986, Mr. Marcos was sworn in by Chief
Justice Ramon Aquino at Malacafrang. The night of the same day, Mr'
Marcos, accompanied by a large entourage of family and supporters,
went into exile.
President Aquino could have made herself subject to the provi-
sions ol' thc 1973 C-'onstitution by allowing herself to be proclaimed by
tlrr: llittasalt" Shc, httwcvcr, chgsc ngt ttl alltlw thc Batasan nrenlbers
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
t
to undo their perfidy. She hoped thereby to be able to more effectively
respond to the extraordinary challenge thrown at her by a heroic nation
which had stood against a long reigning dictator. She turned her back
on the 1973 Constitution whose officials had denied her the presidency.
Barred by the processes of the 1973 Constitution, she chose instead to
govern under a Provisional Constitution designed to enable her to meet
the people's challenge.
Was the government she set up, therefore, revolutionary?
It was revolutionary in the sense that it came into existence in
defiance of the existing legal processes.2e She did not win her victory
through a protest lodged either before the Batasan or before a Presiden-
tial Electoral Tribunal. She won it through the extralegal action taken
by the people.
)o
it revolutionary in the sense that it was despot6? Since the
Was
Provisional Constitution contained a Bill of Rights which also bound
the President and all officials of government, and since the actions of
the President were subject to judicial review, theoretically at least it was
not despotic. But since the Provisional Constitution also conferred ex-
traordinary powers on the President, it can be said that the government
had the potential for being despotic. In the end, therefore, the answer
to the question would depend on how PresidentAquino comported her-
self, on how courageously the Supreme Court exercised its powers to
check abuse, and on the vigilance and activism of the people who chose
to install her President.
Was it revolutionary in the sense that it was militaristic? The prin-
ciple of civilian supremacy was enshrined in the Provisional Consti-
tution. The military leaders who initiated the February upheaval pur-
ported to act in support of a civilian Commander-in-Chief. The military
establishment recognized a civilian Commander-in-Chief, and a wom-
an at that! However, in the end, the military or non-military character of
a regime is shown not so much in words but in actual behaviour: in the
behaviour of military as well as of civilian leaders.
Was it revolutionary in the of being temporary? That cer-
sense
tainly is what the text of the Provisional Constitution said. Admittedly,
2'tl'lris position wits ittluptcrl by Jtrstrcc l)arlillt in
/n rr l,cttcr ol'Assrr,cittc Jrrstict: Puno,2 l()
S('RA 5tig, 59tt ( 1992).'l'ltt'rt' wcrc tlissctrting r4riniorrs in thr. r'asc but n()t on this lxrint.
Sec. I
Sec. I ART.II - DECLARAIIoN Tj#il,:lt*s AND srArE PoLIcIES sl
however, temporary arTangements are rarely free from the temptation
to prolongation. Fortunately, one of the first things the President did
was to appoint a Constitutional Commission to draft a Constitution for
presentation to the people for ratification or rejection.
a1\iv1e
Was the government a de facto or one?
In answering the question whether a government is merely de
raised in
facto or de jure, one must state whether the question is being
international law corltext.In local law, until
a local law context or in an
a government is ousted, it is not too important to ask the question. For
as long as the government is in possession, it is the law and it is legal
within the context of its structures. Once a government is ousted, how-
ever, for the purpose of determining the validity of the actions taken
by the ousted government, it becomes necessary to ask whether it was
merely de facto or de jure. Thus, for instance, the question could not
be asked relative to the nature of the Japanese occupation government
for as long as Japan held sway in the Philippines.It was only after the
defeat of Japan that the question could usefully be asked. Similarly,
it was premature to ask soon after the February Revolution whether
President Aquino's government, which to all indications was in firm
possession, w as de iure or merely de facto. If Mr. Marcos, however, had
successfully reestablished the govemment under the 1973 Constitution,
the question could have been asked relative to the nature of the Aquino
government.
The status of a government in international law depends on the
recognition it receives or does not receive from the community of na-
tions. It is clear now that nations accept the government of President
Aquino as the legitimate government of the Philippines.
In the light of what has been said it is not surprising that, when
the government under the Freedom Constitution was challenged, the
Supreme Court, in an en banc minute resolution did not consider the
challenge a justiciable matter and dismissed the challenge saying that
the people had accepted the Aquino government and the community of
nations had recognized its legitimacy.3o
Aquino, G.R. No. 73748,
"'1r,")""r' h,gue for a Better Philippines, et al. v. hesident
Poople's crusrrclc lirr thc Suprcmacy of the Constitution v. Aquino, c.R. No. 739721 Ganay
v.
Aquirto, (i.R. Ntt.,7'l()(X), Mly 22, l9tt6.
 52 THE 1987 CONSTTIIITION
OF THE REPUBLIC OF THE PHILIPPINES
8. The government under Gloria Macapagal-Arroyo.
Gloria Macapagal-Arroyo succeeded Joseph Estrada in January
2001 in the wake of what came to be known as EDSA IL The legiti-
macy of her presidency was challenged by Estrada and his supporters.
The resolution of these challenges will be discussed under Article VII,
Section 8, infra.
9. Presidential and parliamentary government.3,
There is a bewildering variety of forms of modern constitutional
democracy. These forms present various ways of allocating the pow-
ers that emanate from the people. For the pu{pose of this commentary,
however, which is not meant to be a treatise in political science, only
the highlights of the presidential and parliamentary form of government
will be treated, and these only schematically.
The presidential form of government first adopted under the 1935
Constitution and borrowed from the American system is familiar to the
contemporary Filipino.Its principal identifying feature is what is called
the "separation of powers." Legislative power is given to the Legisla-
ture whose members hold office for a fixed term; executive power is
given to a separate Executive who also holds office for a flxed term;
and judicial power is held by an independent Judiciary. Thg_qyptem is
@t, by establithilggggjlibriu* u-ong ft
power holde^,
and tlrus tyranny will be avoided. Because of the prominent position,
however, which the system gives to the President as chief executive, it
is designated as a presidential form of government.
- q" original 1973 Constitution adopt"ou stitt-uorf@nB.y;
differentiates a parliamentarv form of goveiilentEo-m
r/systeryfrhat
)Erag44? The difference lies in certain essential features which
are found in-all varieti
iamentary form. They are the fol-
lowing: (tJThe @t or qabiqet or the executivg
arm are, as a rule, limuGneouiiy ,r,ernbers of the legislaturr-ffi,
gov€rnment or cabinet, consisting of the pglilggl !qq!-ers of the major-
ity party or of a coalition who are also members of the legislative, is in
effect a committee of the legisl utur{{Th"government or cabinet has
rf
S'er thc excellcnt discussion in l,otwttxsnitx. Pot,ntt:ttt. Pow;ns tuo Tnt: Gownnunxt,tt.
Pnrx rss 72- l 2O ( l ()57 ).
Sec. I ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 53
Principles
or his
tbgjgeulelqle. (5)aoth
government and legislature are possessed of control devices with which
each can demand of the other immediate political responsibility. In the
hands of the legislature is the vote of non-confidence (censure) whereby
government may be ousted. In the hands of government is the power to
dissolve the legislature and call for new elections.
Briefly, therefore, while the presidential system embodies inter-
dependence by separation and coordination, parliamentarism embodies
interdependence by integration.
of 1981 reverted to a form of govern-
The constitutional revision
ment which, although adopting features of parliamentarism, preserved
the essence of presidentialism. Free Telephone Workers Union v. Minis-
ter of Labor and Employmenf2 put it thus:
The adoption of certain aspects of a parliamentary system in
the amended Constitution does not alter its essentially presidential
character. Article VII I1973 Coq+fitutionl on the presidency starts
with this provision: "Th@_lOCoi shall be !bq!9g4il-sta!9-aid
chief executive of the Republic of the Philippines." [Section l] Its
last section is an even more emphatic affirmation thaty' is a presi-
dential system that obtains in our government.Thu{All powers
,
vested in the President of the Philippines under the 1935 Consti-
tution and the laws of the land which are not herein provided for
or conferred upon any official shall be deemed and are hereby
vested in the president unless the Batasang Pambansa provides
otherwise." [Section 16] There is a provision, of course, on the
Prime Minister, but the Constitution is explicit that while he shall
be the head of the Cabinet, it is the President who nominates him
from s of the Batasang Pambansa, thereafter
lArticle
choice. He
need not even come from its elected members. He is responsible,
along with the Cabinet, to the Batasang Pambansa for the program
of government but as "approved by the President." [Article IX'
Section 2l His term of otfice as Prime Minister "shall commence
from the date of his election by the Batasang Pambansa and shall
end on the date that the nomination of his successor is submitted
')lott S('llA 15'l ,'16.1-5 (()ctotrcr 10, lgttl)
54 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
by the President to the Batasang Pambansa. Any other member
of the Cabinet or the Executive Committee may be removed at
the discretion of the President." [Article IX, Section 4] Even the
duration of his term then depends on the Presidential pleasure, not
on legislative approval or lack of it. During his incumbency, he
exercises supervision over all ministries [Article IX, Section 10],
a recognition of the important role he plays in the implementa-
tion of the policy of the government, the legislation duly enacted
in pursuance thereof, and the decrees and orders of the President.
To the Prime Minister can thus be delegated the performance of
administrative functions of the President, who can then devote
more time and energy in the fulfillment of his exacting role as the
national leader. As the only one whose constituency is national it
is the President who, by virtue of his election by the entire elector-
ate, has an indisputable claim to speak for the country as a whole.
Moreover, it is he who is explicitly granted the greater power of
control of such ministries . . .
With hardly any debate, the 1986 Constitutional Commission de-
cided to stay with the familiar. Thus, the 1987 Constitution has brought
back the country to the presidential system of 1935 and has removed the
parliamentary features of the 1973 Constitution but has imposed nbw
limits on the powers of the President.
10.
"Sovereignty."
A final essential element of statehood according to the Montevi-
deo Convention is caoacitv to conduct international relations. "An en-
tity is not a state unless it has competence., within its own constitutional
system, to conduct international relatior!!_ytilh_qlhe! rletes, as well as
the political, technical and financ so. An entity that
has the capacity to conduct foreign relations does not cease to be a state
because it voluntarily turns over to another state control of its foreign
relations, as in the 'pleqqtoIate.s' of the period of colonialism, the case
of Liechtenstein, or the 'q!!gg13.te4 {etes;' of today. States do not cease
to be states because they have agreed not to engage in certain interna-
tional activities or have delegated authority to do so to a 'supranational'
entity, e.g., the European Communities. Clearly, a state does not cease
to be a state if it joins a common market."33
"ltr'.rlrrlr'rrlrrl $2O I {c ;
Sec. I sec. I ARr. II - DECLARAIIoN Tj*li;Jtt"s AND srAIE PoLIcIES ss
This capacity to conduct international relatiops is an aspect of
sovereignty which the Constitution asserts in Qg49q-!-.A4tSl9lL. fhe
assertion of sovereignty was already made in the 1935 Constitution. But
the Philippines did not begin to conduct its foreign relations until after it
became independent from the United States int946}a By way of excep-
tion, however, the Philippines became signatory to the United Nations
Charter in 1945 even before it became independent.
SSSligd-Artislq-Il, says: "sovereignty resides in the Peoplq and
all government authority emanates from them." Soyglglg!ry in this sen-
tence therefore can be understood
ity. Since the ultimate law in the Philippine system is th(:onstitutiot
fivereignty, understood as legal sovereignty, means the pow-Tfo-Ztl6pt
or alter a constitution. This power resides in the :99p&_understood as
those who have a direct hand in the formulation, adoption, and amend-
ment or alteration of the Constitution.
Spygfglg!_gUlbg4ty, moreover, is not alwavs directlv exercisgd
bv the Deople.It is normall
ild r" rtt" p"tt*s in t
""."*"
tq*po_tg4lf:g9ide.TbF temptation to which government personnel are
pi'on" is to forget thad'public office is a public trust, and an essentially
temporary trust at that, and to equate every attempt to wrest that trust
from them, no matter by what means, to criminal acts of subversion. It
is a temptation not easily resisted under any form of authoritarian rule.
Soverelgqbloflbe-pgaple also includes the concept that govern-
ment oTfiiials have only the authority g d defined by
law,. and such euthority continues only with the consent of the people.36
3aln terms of political reality, moreover, for as long as the United States maintained mili-
tary bases in the philippines, Philippine foreign relations affecting national security were dictated
mostly by American decisions.
,5TrN,rpe nNo Cnrnr.oru, Pounc* Ltw or rnr Purupnues at l8 (1961); SNCO, Paralrr,vr
pot.rrr.tr. Law tt l'1,2(> ( 1962 nd.) prefers not to make the distinction and places legal sovereignty
in thc slatc itscll'ctlttsidcrcd as a.iuridical pcmon.
tr'l
v Rl,:('(.)R l) 6({) 66 l, 663 6M, 7 12-'134,'l 67 .
 THE 1987 CONSTITUTION 1 - DECLARAIIONOFPRINCIPLESANDSTATEPOLICIES
Sec. ART.II s7
OF THE REPUBLIC OF THE PHILIPPINES

This is the meaning of the rule of law: a government of laws and not
of men. The Constitutional Commission, however, did not consider it
necessary to make explicit the right of the people to oust an abusive and
authoritarian government through non-violent means.37
Finally, is recognition by other states a constitutive element of a
state such that even if it has all four elements of the Montevideo con-
vention it is not a state if it has not been recognized? In international
law, there are two views on this. One view, the.cg4g1jyyglyeJhgery, is
that recognition "cluslLilulgs" a state, that is, it is what makes a state
a state and confers legal personality on the entity. The other view,the
&claratory theory, is that recognition ir gg4yjd""l3rato.y" of the ex-
istence ofthe state and that its being a state depends upon its possession
of the required elements and not upon recognition. A recognizing state
merely agggptuq_etqgQ_existing situation. The weight of authority fa-
vors thC<'declaratory view.']{n practice, however, whether to recognize
or not if-;=efyffiitical decision.
11. "Democratic and republican state."
Article IV, Section 4, of the United States Constitution impcises
on the Federal Government the duty to guarantee to every state ,,a Re-
publican Form of Government." And a republican form of government
is understood as "one constructed on this principle, that the supreme
power resides in the body of the people.'3' Its purpose therefore is to
guarantee against two extremes: on the one hand, against monarchy and
oligarchy, and on the other, against pure democracy.
It is not clear, however, from the text of the Federal Constitution
to which department of the government belongs the duty of implement-
ing the guarantee. Ever since the leading case of Luther v. Bordefis the
constant holding of the u.S. Supreme Court has been that the enforce-
ment of Article IV section 4, belongs solely to the political departments
and not to the courts.
One of the mandatory requirements of the Tydings-McDuffie
Law, the instrument by which the American government authorized the
Filipino people to draft a constitutiort in 1934, was that the "constitution
formulated and drafted shalHre fgpgblic3n in lornn.)
Section l, in 1934, was a response to that
when first formulated
command. It was not an unwilling response, however, because a repub-
lican form of government was the form with which the Filipinos were
most familiar. lts meaning, as understood by the delegates at that time,
was the one expressed by James Madison:a'
\
We may defin(r Leplllieto be
a]l its power directl@ fro{n the gre?t bodv of people;
and is a9lqbistered by perso+s holding their offices aunngplsa
sury, for a lj4gi!94-p94-od, o.4Ullgggg{ b,ehaylggr.It is essential
to such a government that it be dprived frory the great bod
sjggg. tgt from an ir.rconsiderable proportion, or a f3vqgqlg da$
of it. It is sufficient for such a government that the person admin-
GGing it u. dnreO eitler-direedy or indirectt(-by the peopli
and that they bsldlbgllqppggtmelts by either of the tenurep-Ds1
specffied.
To paraphrase Section 1, therefore, a @
for- is on" *tr"t" rot"..l le and w.higlg_allggl-
ernment authoritv emanates from the people.
It should be noted, however, that the American constitution speaks
of a guarantee of a "Republican Form of Government" whereas, the
Philippine constitution provides for a "republican State." Constitution-
ally, the difference in phraseolo€Kis insignificant. What the Philippine
text declares is that thedhilippited is a qtate-whose governmen -
oublican in form. ttat islffi-u"-rnEt is democratic in the sense
of American constitutionalism.
It the question wlgth€LglSttgfs arising from the gonstitutional
suarantee of reoublicanism are political questions within the exclusive
@ggjf th,@as they gsljn{rerican constitu-
tional law, the Philippine Sup a(-nst yethad occasion to
givg an express i-nclcategorical answer .h rygylglgJ,Baaoiho*&;r,
the Supreme Court treated a matter coming under the guarantee at 3J!!-

(159-9()9.
'//./. al a.Scction 2(a).
'3('ltisltolttt v (i(rlpil, I l)lll.'ll(),,157 (Ll.S. l79l), r
' I Axr rrr r r,'l't u run t: Consnrunou I 32
'f
F' n,tur r'tt ; ttr'rut: Pn ( I 936).
"'lkrw. I(lls ltt,l')) irl5 S('RA 7 ( l9(r5).
 THE 1987 CONSTITIITION Sec.2 ART. II _ DECLARATION OF PRINCIPLES AND STATE POLICIES
Principles
OF TTIE REPUBLIC OFTHE PHILIPPINES

( ,-'ticiable questiory)At i$gglilhqJaJe was the 1C rytgiven ,

Vo*2L frFich a the republican nature o , at least from a minimalist point of

one vear's salary of the position fpr wbtshttcjg-a-gandldAle. The Court v_199,, is not affected ,

declared ile affiunt of the bond constitutionally oblc le for be- The report of the Committee on Declaration of Principles and lde-
ing equivalent to a propertv n "juponsislent witfuhe-narure ologies (1971,)* had recommended that the Philippinel be designated a
and essence of the Republican system ordained in our Constitution ... "national and social @!qggl4tg_!qpUblic." The Convention, however,
[which] ... implies necessarily that the right to vote and to be voted for * ignation whose meaning and impli-
shall not be dependent upon the wealth of the inj[vidual."" Justice J.P. cations it did not fully
comprehend. Instead, it preferred to retain the
t--- 6---- L^.,^ +L.-^
Bengzon, in his concuning opinion added, that'our citizenry have thus
^:-:-^^-.
formulation of the 1935 Constitution and the meaning it embodied as
been given the supreme guaranty of a @ understood by the 1935 Convention,4s a meaning borrowed from Amer-
its freedo{n and limitationl, elli!!-!gb6 3!d-dg!les" and t@-Congrysi). ican constitutional theory.
may "pjcgsdbelhc- nlanner of e x erci si n g pol i tic al ri gh t LWS@U; The 1987 Constitution, formulated before the euphoria of the Feb-
adr ;, *" """""t.,h Thus, there *X Gplsit-o{d
ruary Revolution of 1986 had died down, did what the earlier Consti-
statement that the question wa(irrsticiahld but the ggarantee was used
tutional Conygfionchose not to do and added a new word to describe
as a yardstick for dgtermining constitutionality.o'
the state:f-'clemocrati) The import of this addition, a monument to
In 1980, in Ceniza v. COMELEC,46 it was contended that to proj "people polerTfi'ich rq-won democracy in (Epifanio de los
hettJAtr$j!-eltp from voting for elective provinc s would Santos Avenue), is that the Philippines under the new Constitution is
the principle of republicanism as it would @pgIg 3 r4129!--9f not just a representative government but also shares some aspects of
V. -subvert
hir . This contention was direct democracy such, for instance, as the "initiative and referendum"
"/!.$t") raised bV t"tidentt of Vtundaue Cry, which under the law was clas- underArticle VI, Section 32. As Commissioner Nolledo said, the use of
yr, sified as a hi urbanized the word is a'Justifiable redrndancv."ae
ision. Hence, it ry4lpoinleel-ggt that
such citv hrrr,rpprxss
RENoLTNcEs wAR As AN INsTRUMENT
TIIE GENERALLY ACCEPTED PRINCIPLES
ADOP'TS

,---=---\ F INTERNATIONAL LAWJAS PART OF THE LAW OF TITE LAND AND

N^ntnl44jDmd t@expanded powers of given by ADHERES ro rHE PoLrcY oF PEACE, Eig{,rry,
J!$l!B, FlSIegM,
the Transitory Provisions and Amendment 6 under the 1973 Constitu- coopERArroN, AND aMrTy wn!y.!I4lrgls.
tion, which begot the form of government called "c3nltitulsnal ag&r-
itarianism" also gave rise to the question whether such concentration 1. Renunciation of war.
of governmental powers in the President was compatible with a "Re--
,/
There are three parts to Section 2: lg{renunciation of wau; W
publican Stale,l' But the question is easily answered on the theoretical
adoption of the principles of international law; (3fadherence to a policy
plain if one remembers that a rggrblleA4-slale is 49!b!ng-mol9lbg4-a
of peace, freedom, and amity with all nations. The first two parts were
slate where sovereignty resides in the people and w!9I9 e!!ryt
copied by the 1973 Constitution from Article II, Section 3, of the 1935
u refore that th(t*1ryfl it
Constitution. The third part is an addition made by the 1973 Constitu-
elected by the people and bases his assumption of extraordinary powers
+r- tion. The present Section 2 is an exact copy of the 1973 provision.

a3ld. at9. |rSaTrra, note 3.

aalr/.
at 10. aNScssiorts rrl Novcrnbor 24 ,tnd27 ,1972.
rlThc suhicct rtf "pliticul qucstittns" is trciltcd untlcr Articlc VIll 4"1v Rli('( )R I).6nl .61t4, 735.7:17 ,752-'15J,769.
"{)5 S('RA 16f ,'l-14 (Jnnrrlry 211, lgtl0).
 THE 1987 CONSTITUTION Sec.2 Sec.2 ART, II - DECLARATION OF PRINCIPLES AND STAIE POLICIES
OF THE REPUBLIC OF THE PHILIPPINES Principles

The inspiration of this provision on renunciation of war, when first law only if it is transformed into
adopted in 1935, was the 8.T- e
Pact renounced wars of aggressi,on. And this is all that the Constitution what is called the locftine of tans.formatio.n. Another theory is the doc-
reiounces,Eithe power to wage a e . Blackstone expressed this in his Commentary
afugyglgfgqly. For that matter, the Constitution makes defense of the when he said that:
state a $rty of governmelt and o.!-.!trg Pgeqleso and.gives to Cgngress
the power to declare a st .5' As one writer, however, has put tTlhe bw_Sf_qefgls, wherever qry_qCestiaq arises which
it, the provision is a political gesture of no significance and a pomp- is properly the obiect of its iud, is here adopted in its full
extent by th" rqAlSq4-ley, and it is held to bS_pga_ofthelaw of
ous declaration that impresses no one. By stating that the Philippines
the land.

The secondpartoflCcliaL2 accepts the

@.
This provision makes the Philippines one of t s lvhich make a
specific declaration that international laq has the force also of domes-
ld have more accurately expresse4 it by ti!x9-9$ tic law.53International law.therefor can be @
settlej!9rng$& illpgps in much the same way that they rysU!{us.e the
Civil Code or the Penal Code and other lawpaessed-by_lg9lgresi.
is, impressed no one in the 1971 Convention nor in the 1986 Commis-
sion. Thus, the phraseology of the 1935 provision has been retained' What elements of international law become part of PhiliRpine law
by incorporation through Article II, Section 2? Sinc(reatiedlecome
It should be noted, however, that as a member of the United Na-
tions the Philippines d.o"t not -"t"ty t"n. , which is a limited- --'\ law only by ratificatior' the principle o
part of Philippine oration
applies only tfustomary lai} and6 treatiedwhich hafg_bsc_@e+artpl
conceDt which does not include some forms of force. As a signatory to
cq$g!ryy-lqw. This distinction, however, is sometimes blurred in some
tto IT'''it".l Nefinns Charter the Philinnines adheres to Article 2@\ of
Philippine Supreme Court decisions.5a
Aproblem, however, which the provision posses is the problem of
determining what these generally accepted principles of international
law are which the Philippines accepts. Ultimately, in the absence of the
guiding direction of treaties or statutes, the process of selecting what
2. Incorporation of international law. these accepted principles are will have to be done by the courts. The
Supreme Court as a matter of fact, has had occasion to perform this
Implicit in this provision is the acceptance of )Ked@5t view df
function. In Mejoff v. Director of Prisons,s'an alien of Russian descent
legal systems, namely that gomestic law is digingt from iuernational
who had been detained pending execution of the order of deportation
law. Since dualism holds that international law and municipal law be-
long to di international law of muni
1aw munrcl w. What the second part
53Similar provisions are found in the Austrian
of SEEffi2 aoes ls to makeinternational la@. Constitution, Article 9: "The generally rec-
ognized rules of international law shall be considered as component parts of the Federal Law," and
In other jurisdictiont, i!!9*gqtprAllaw-"an become part 9! rngntglpal in Article 25 of the Constitution of the Federal Republic of Germany: "The general rules of public
international law are an integral part offederal law."
5aSae ALoysrus
Lr-iwrzoN, "The Generally Accepted Principles of International lnw as
5oArticle Il. Scction 4. Philippine bw: Towards a Structurally Consistent (Jse oJCustomary International law in Philip-
'rArtie lc Vl. Srclion 2l( I ). pine Courts," u J.D. Thcsis presentcd ro the College of Law, Ateneo de Manila University, 2002.
!190 Phil. 70
"SrNr r r,.rlr/lll. rlrlc I itl Llo (I 95 I ).
I
l,
 TI{E 1987 CONSTITUTION Sec.2 Sec.2 ART. II DECLARATION OF PRINCIPLES AND STATE POLICIES 63
OF THE REPUBLIC OF THE PHILIPPINES - Principles

-----'-__\
was orderetfglgqlg!_gn larq)vhen lfter two yeafs the deportation or-
der could no-i be carried out bgcause no ship or country would take the
alien. The Court said in part:56
Moreover, by its Constitution (Art. II, Sec. 3) the Philippines
"adopts the generally accepted principles of international law as
part of the law of the Nation." And in a resolution entitled "Uni-
versal Declaration of Human Rights" and approved by the Gen-
eral Assembly of the United Nations of which the Philippines is a
member, at its plenary meeting on December 10, 1948, the right
to life and liberty and all other fundamental rights as applied to
all human beings were proclaimed. It was there resolved that "All
human beings are born free and equal in degree and rights" (Art.
1); that "Everyone is entitled to all the rights and freedom set forth
in this Declaration, without distinction of any kind, such as race,
color, sex, language, religion, political or other opinion, national-
/y or social origin, property, birth, or other status" (Art. 2); that
/,2Everyone has the right to an effective rerng4J jlltrg_sgr0palqnt
nationals for acts violating the fundamental rights granted him by
the Constitution or by W" (Art. 8); that "No one shall be sub--
j""t"O t" *rt, e" (Art. 9); etc.
"rUit "ry
More recently, in Agustin v. Edu,uo a case involving a presiden-
tial Letter of Instruction prescribing the use of early warning devices
(EWD), the Court said that the constitutional provision "possesses rel-
evance." The Court pointed out that the 1968 Vienna Convention on
Road Signs and Signals had been ratified by the Philippine government
under Presidential Decree No. 207. "It is not for this country to repudi-
ate a commitment to which it had pledged its word. The concept pacta
sunt servanda stands in the way of such an attitude, which is, more-
over, at war with the principle of international morality."ot Likewise,
the international duty of protecting foreign embassies was recognized
in J.B.L. Reyes v. Bagatsing.62
3. Adherence to policy of peace, freedom, amity.
The third part of Section 2 states that the Philippines "adheres to
the policy of peace, equality, justice, freedom, cooperation, and amity
with all nations." This is an abbreviated statement of Section 1 and Sec-
tion 3 of an article on Foreign Relations approved by the 1971 Conven-
tion on second reading on June 2,1972.
Section 1 of the article read:
The Philippines shall pursue a foreign policy aimed at the
fulfillment of the national interest in a world order based on equal-
ity, peace, freedom, justice, and prosperity for all nations.

@." Thus, although the Philippines

Thus, it is seen that the guiding principle of Philippine foreign
a Qlg4gtqry to the HSgue Cenvgnl&n and became a si
policy will be, as it is with all other nations, the national interest. This
neva Conveqtlien only
-- in 1942, the Court held that a Pbiltpptqg-A4rl4g{y
"selfish" policy, however, is tempered with concern for "equality, peace,
C:..5!g had iurisdiction over u'ar c4mes commijlgll riolgggngf
freedom, justice."
rhet@
- The last two items of the section
- "cooperation, and amity with
The doctrine of immunity from suit of a foreign state is likewise
all nations" were more fully expressed by Section 2 of the earlier
a principle of international law whose acceptance in this jurisdiction -
approved article which said:
has been established in a long line of cases starting with Raquila v.
Bradford,ss and was summarized and reaffirmed in Baer v. Tizon.se In the national interest and of international peace and coop-
eration, the Philippines may extend recognition, exchange diplo-
matic relations and establish consular, trade, and cultural relations
with other nations irrespective of ideology.
16|d. at73-4.
(tfltl S('RA 195,213 (l;chruary
'tr3 Phil. t7l, t7n (1949). 2,19'79).
975 Phit. 50 ( 1945).
u'57 S('l(A l. () ll ( l()74). A krng linc ()l els('s lo lhc surttc t'llt'ct httvtr lirlkrwctl.
ut
Il.
"'(iR. No.(r5 l((r.()tlolx.r ,t5. l(ll{l.

THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
While the words "cooperation and amity with all nations" found
in Section 2 do not expressly manifest the intent to establish diplomatic
and other relations with all nations irrespective of ideology, the intent
is nonetheless there. However, constitutionally, the provision is without
real significance; the decision whether to establish or not to establish
such relations remains, as in the 1935 Constitution, a policy question
addressed to the discretion of the political departments.
Finally, while the 1987 text preserves the 1973 counterpart, the
1986 Commission read into the word "amity" the concept "love" found
in the Preamble.o'
SBc. 3. Clvrrrlx AUTHORITY Ist AT ALL TIMEST SUPREME
ovER THE MILITARy. Tsn lniueo FoRcEs oF THE Pnrr-pptnns rs
TIIE pRorEcroR oF TIIE PEoPLE, AND THE Smrn. Irs colr, rs to
sEctJ'RE THE SOVEREIGNTY oF rur Smrn AND THE INTEGRITY oF TIrE
NATIONAL TERRITORY.
1. Civilian supremacy.
Underthe 1935 Constitution civilian supremacy was impliedfrom
its Article VII, Section 10(2) which made the President, a civilian and
as civilian, Commander-in-Chief. The 1973 Constitution made the prin-
ciple explicit. The first sentence of the present Section 3, except for the
two commas, is a copy of the 1973 provision. The commas were added
for emphasis on "at all times."*
Civilian supremacy came as a legacy of the American conquer-
ors. The process of locally instilling the principle was so successful
under American rule that, up until the World War II and even beyond,
there was no serious problem which arose from military submission to
civilian authority. As the nation developed, however, faith in civilian
supremacy began to wane. The waning of that faith began when civilian
officials started using military elements for furthering their ambitions
and when military officers began allowing themselves to be so used.
The author of The Power Elite, plut it thus: "As politics gets into the
army, the army gets into politics." Hence, when the Filipinos drafted the
1973 Constitution it was thought necessary, just to emphasize the point.
to make the principle supremacy of civilian authority.
"'lv l{ti(\)Rl) 772
'alr/ rrl ()5()
Sec.3 ART.II - DECLARATION AND srArE PoLICIES 6s
Sec.3 "#*til;J.tts
2. Role of the armed forces.
The period of martial rule up until EDSA I was another phase
in the constitutional development. Military abuses were rampant then.
Hence, the 1986 Constitutional Commission thought it necessary to put
down the positive role of the military in explicit terms. "The Armed
Forces of the Philippines is the protector of the people and the State.
Its goal is to secure the sovereignty of the State and the integrity of the
national territory." This is counterpoint.
The second and third sentences of Section 3, originally discussed
by the 1986 Constitutional Commission under the General Provisions,
are meant to express the philosophy that underlies the existence of
armed forces. The original formulation made by Commissioner Ople
read: "The purpose of a military establishment is to secure the sov-
ereignty of the people and the integrity of the national territory and
to serve the general welfare."65 The provision was born of a desire to
express in positive terms the Commission's disapproval of abuses com-
mitted by the military against civilians during the period of authori-
tarian ru1e.66 The transposition of the two sentences from the General
Provisions to the Declaration of Principles and specifically as a continu-
ation of the principle of civilian supremacy was meant to add emphasis
on the philosophy they express.6T
The phrase "protector of the people" was not meant to be an as-
sertion of the political role of the military. But the temptation to read it
that way against the background of the EDSAI event is understandable.
The intent of the phrase "protector of the people" was rather to make
it act as corrective to military abuses experienced during martial rule.
Does this mean, however, that the military has no political role?
It does not mean that because the political role is found in the follow-
ing sentence. "Its goal is to secure the sovereignty of the State and the
integrity of the national territory." Thus, there are two thoughts in the
constitutional provision: disapproval of military abuses and guardian-
ship of state sovereignty, which of course means sovereignty of the
people. The military exercise of political power can be justified as a last
resort when civilian authority has lost its legitimacy.
-
6'V RI,CORI) 246.
'n'\rc id. tt lO4-lO6.
'//./. rl 2()li 29().
 THE 1987 CONSTITUTION Sec.4
OF THE REPUBLIC OF THE PHILIPPINES
The two sentences, therefore, also yield a meaning which was not
articulated during the Commission debates. When one reads them in
the light of the unsuccessful military coups of 1987 and the reasons
given for them, and especially in the light of the successful and civilian-
approved coup of February 1986 which became known as the Febru-
ary Revolution, one cannot escape the conclusion that the armed forces
can be a legitimate instrument for the overthrow of a civilian govern-
ment that has ceased to be a servant of the people. Such conclusion
also finds support in the principle, accepted by the commission but not
made explicit, that a long standing tyranny can be legitimately over-
thrown.68 Civilian supremacy, in other words, is, in the final analysis,
not a guaranteed supremacy of civilian officers who are in power but of
supremacy of the sovereign people. The Armed Forces, in this sense, "is
the protector of the people and the State."
Snc.4. Tnn Pnrue DUTY oF rnn GovenNMENT rs ro sERvE
AND pRorEcr PEoPLE. Tnn GovBnNMENT MAY cALL uPoN THE
BuE
pEopLE ro unfbNn rnn Stlrn ANDr rN THE FULFILLMENT THEREoFt
ALL CITIZENS MAY BE REQUIRED' UNDER CONDITIONS PROVIDED BY
LAW, TO RENDER PERSONAL MILITARY OR CIVL SERVICE.
1. Compulsory military and civil servicel protection of peo-
ple and State.
The 1973 counterpart of this provision was Article II, Section 2
which read: "The defense of the State is a prime duty of the government
and the people, and in the fulfillment of this duty all citizens may be re-
quired by law to render personal military or civil service." It was almost
a literal reproduction of Article II, Section 2 of the 1935 Constitution.
In the light of the recent experience with the Marcos regime which
placed inordinate emphasis on national security, it was understandable
that the Commission should opt for a provision more people-centered
than national security-centered.6e Thus the old provision was recast to
read: "The prime duty of the Government is to serve and protect the
people." National defense is placed merely as one of the modes of serv-
ing and protectihg the people.
- -.S",.trl-,rJ*ttcs 34 lntl 35 and text.
,'q.Srr lV Rl('()ltl) nt tt.il-lt12. Srr specch 0l'(irnrrnissioncr Ranla agitinst lltc provisitrr
tlcllrcting il usu rt'tttttitttl ol tltt' oltl spiril. /r/ rrt 1(lI.
Sec.4 ART.II - DECLARAIIONOFPRINCIPLESANDSTATEPOLICIES 67
The 1935 provision had been inspired by Section 37 of the Con-
stitution of the Spanish Republic.'o The 1935 provision was thought
necessary because of the recognized inadequacy of a volunteer system
both in terms of military effectiveness and in terms of equality between
the rich and the poor. The report of the Committee on National Defense
said in part:7r
The volunteer system is not suitable for a poor country
which cannot afford to pay the army well enough to attract well
qualified, able-bodied young men to the service. The volunteer
system involves the objectionable feature of entrusting the sacred
mission of defending the country to men lacking in capacity who
have proved failures in other fields of activity. The volunteer sys-
tem is undemocratic, because the cannon fodder, with very few
exceptions, consists of proletarians. The sons of the wealthy can
evade the sacred duty of defending their country, though it is they
i. who enjoy the advantages obtained through the services rendered
$
t and blood spilled by men to whom fortune has been unkind. A high
* morale, which only a person fighting for an ideal can possess, is
very necessary in an army, and with mercenaries fighting for a pit-
tance, such a morale cannot be attained.
While the inspiration of the 1935 provision came from the Span-
ish Constitution, compulsory military service is not without precedent
in the American constitutional system to which the 1935 Constitution
was heir. The right of the state to exact compulsory military service
of its citizens, as against the contention that such an exaction would
*i
violate the prohibition of involuntary servitude found in the Thirteenth
Amendment, was definitively established in 1918.In the Selective Draft
Law Cases, the Supreme Court declared that the argument based on
the Thirteenth Amendment refuted itself:', "We are unable to conceive
upon what theory the exaction by the government from the citizen of
the performance of his supreme and noble duty of contributing to the
defense of the rights and honor of the nation, as the result of a war de-
clared by the great representative body of the people, can be said to be
the imposition of involuntary servitude." Moreover, the U.S. Supreme
$ Court has upheld laws passed in the exercise of this same state power
il
;t
ll
?(rl
Attnrxl, Tttt: F-ntutut; ot rnr Pntttpptt'tc Cousrnunou at 135.
frlr/. at I 36.
I
'r245 U.S. .166. lq) ( t9llt).
I
68 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
requiring compulsory civilian labor of those who are excused from mil-
itary service.'3
The first Philippine case on the subject was People v. LagmanJa
The accused in this case, prosecuted for failure to register for military
service under the National Defense Act, assailed the validity of the Act.
The Supreme Court upheld the law on the basis of Section 2 U935
Constitutionl saying:?s
The National Defense Law, in so far as it establishes com-
pulsory military service, does not go against this constitutional
provision but is, on the contrary, in faithful compliance therewith'
The duty of the Government to defend the State cannot be per-
formed except through an army. To leave the organization of an
army to the will of the citizens would be to make this duty of the
Government excusable should there be no sufficient men who vol-
unteer to enlist therein.
In the Unted States the courts have held in a series of deci-
sions that the compulsory military service adopted by reason of
the civil war and the world war does not violate the Constitution,
because the power to establish it is derived from that granted to
Congress to declare war and to organize and maintain an afiny.
This is so because the right of the Government to require com-
pulsory military service is a consequence of its duty to defend the
State and is reciprocal with its duty to defend the life, liberty, and
property of the citizen. In the case of Jacobson v. Massachusetts
(197 U.5., tl;25 Sup. Ct. Rep.,385), it was said that, without
violating the Constitution; a person may be compelled by force, if
need be, against his will, against his pecuniary interests, and even
against his religious or political convictions, to take his place in the
ranks of the army of his country, and risk the chance of being shot
down in its defense. In the case of United States vs. Olson (253
Fed.,233), it was also said that this is not deprivation of property
without due process of law, because, in its just sense, there is no
right of property to an office or employment. The circumstance
that these decisions refer to laws enacted by reason of the actual
existence of war does not make our case any different, inasmuch
as, in the last analysis, what justifies compulsory military service
T3Scswenrz, ACouneN'rtnv oN rnt CousrturtoN oF THE Ur'tnro Snrds,
rue Psnsor 80-5 ( I 968).
il66 Phil. l3 ( 1938).
?1ftl. [t I 5-6.
Sec.4 Sec.4 ART.II - DECLARATIoN AND srAIE POLICIES 6e
"#*il:Jtt"s
is the defense of the State whether actual or whether in preparation
to make it more effective. in case of need.
The circumstance that the appellants have dependent fami-
lies to support does not excuse them from their duty to present
themselves before the Acceptance Board because, if such circum-
stance exists, they can ask for deferment in complying with their
duty and, at all events, they can obtain the proper pecuniary al-
lowance to these family responsibilities (Secs. 65 and 69 of Com-
monwealthActNo. 1).
After the Second World War, the Supreme Court once more
had occasion to appeal to Section 2 [1935 Constitution].ln People v.
Manayao,16 the Supreme Court said:
This constitutional provision covers both time of peace and
time of war, but it is brought more immediately and perempto-
rily into play when the country is involved in war. During such a
period of stress, under a constitution enshrining such tenets, the
citizen cannot be considered free to cast offhis loyalty and obliga-
tions toward the Fatherland. And it cannot be supposed, without
reflecting on the patriotism and intelligence of the Legislature, that
6
in promulgating Commonwealth Act No. 63, under the aegis of
{
q our Constitution, it intended (but did not declare) that the duties of
the citizen solemnly proclaimed in the above-quoted constitutional
ti precept could be effectively cast offby him even when his country
is at war, by the simple expedient of subscribing to an oath of al-
:l
legiance to support the constitution or laws of a foreign country,
and an enemy country atthat, or by accepting a commission in the
military, naval or air service of such country, or by deserting from
the Philippine Army, Navy, or Air Corps.
It would shock the conscience of any enlightened citizenry
to say that this appellant, by the very fact of committing the trea-
sonous acts charged against him, the doing of which under the cir-
cumstances of record he does not deny, divested himself of his
Philippine citizenship and thereby placed himself beyond the arm
of the law. For if this were so, his very crime would be the shield
that would protect him from punishment.
Pnrr III, Rtcrns or
'^7ll l'lril. 1?.1,1.?7 (ltr.lll
 THE 1987 CONSTITUTION Sec.5
Secs. 6-7 ARr. rr
- DECLARATToN AND srArE pol-rcrEs 7r
OF THE REPUBLIC OF THE PHILIPPINES
ffilH,:,::rrs
nized a hierarchy of rights first, life; second, liberty; and only third,
The 1973 provision altered the 1935 version and declared national
property.80
-
defense to be a prime duty not just of the government but also of the
people. The addition of the words "and the people" was objected to on
Src. 6. Tnr snpluuoN oF Csuncn .lNu Srlrr srrALL BE
lhe ground that national defense was the duty only of citizens and not
INVIOLABLE.
of all the people, citizens and aliens alike. Sponsors of the provision
immediately explained that people in this section meant citizens. Refer-
ence was made to Article V Section I (1973), which said: "It shall be
l. Separation ofChurch and State.
0
the duty of the citizens ... to defend the state ... " Moreover, reflecting
77
This provision is discussed under the non-establishment clause of
the preoccupation of the martial law period which overtook the Con- the Bill of Rights.
vention, it was pointed out that the citizen's duty was to defend the state
against both external and internal aggression.?8
STATE POLICIES
As far as the constitutional doctrine on compulsory military and
civil service is concerned, the 1987 provision has preserved existing Snc.7. Tsn Smrn SHALL pr;RsuE AN INDEpENDENT FoRErcN
jurisprudence on the subject. One alteration made on the text is the poLICy. IN tts nrr,,ltloNs wITH orHER srATEs rIIE pARAMouNT
addition of the phrase "under conditions provided by law." This was CONSIDERATION SHALL BE NATIONAL SOVER,EIGNTY, TERRITOR,IAL

placed in lieu of "with due regard for objections of conscience" and INTEGRITY, NATIONAL INTEREST, AND TIIE RIGHT TO SELF.

was intended to give to Congress a flexible guideline for dealing with

DETERMINATION.

conscientious objectors; but no new doctrine was thereby formulated.'n

Snc. 5. Tnr ulNrrxlNcr oF PEAcE AND oRDERT THE'
PROTECTION OF LIFE' LIBERTY' AND PROPERTY' AND THE PROMOTION
OF THE GENERAL WELFARE ARE ESSENTIAL FOR THE ENJOYMENT BY
ALL TIIE PEOPLE OF TIIE BLESSINGS OF DEMOCRACY.
1. Peace and orderrgeneral welfare.
This provision has no counterpart either in the 1935 or in the 1973
Constitution. The mention of "maintenance of peace and order" pro-
voked the objection that it could create the notion that peace and order
must be promoted at all cost and even at the expense of justice and
could encourage the use of military solutions to what could normally
be treated as social, economic and political problems. But its author,
Commissioner Ambrosio Padilla, explained that the provision recog-
?TSession of November 25, 1972. Later, however, on November 2"1 , 1972, Delegate de
Guzman said that while aliens may not be compelled to render personal military or civil scrvicc,
all those enjoying the protection of the state may be required in some other manner to assist in thc
defense ofthe state.
The 198? Constitution no longer contains a separate articlc on dutics lntl ohligrrtions ol'
citizens.
T8Scssion ol' Novcmbcr 27, 1972.
'0.Srr lV Rl'l('()Rl) 666-667,61t1 ,6\)l 692'-142
l. An independent foreign policy.
Although Section 7 might read like a coldly detached statement
of principle, it in fact is a by-product of the less than detached discus-
a
sions of the future of the military bases in Clark and Subic. The word
"relations" covers the whole gamut of treaties and international agree-
ments and other kinds of intercourse. The Section is the closest refer-
ence to military bases that a dominant majority in the Constitutional
Commission would allow in the body of the Constitution. Although the
overwhelming sentiment was that only American military bases could
ever be allowed, and under terms dictated in Article XVIII, Section 25,
for some inexplicable logic the dominant majority refused to accept the
explicitation of the general principle that "No foreign military bases,
troops or facilities shall be allowed in Philippino territory."sr
Section 7 states a principle which no one will dispute but fidelity
to which will always be a matter of dispute.',
80V RECORD II-I4,
srJcc IV RECORD
778-81 3 and discussions of Article XVI[, Section 25.
3r'l'hc issuc of ncutrality was
discusscd in connection with this provision but the proposal to
;rlrr;rl ncrrrralilv ls a Policy was irhantkrncrl. scc Id. irt 5tt3,592-593,613-61-5,635-636,6-55-656,
((r().74I 742.75| 755.
72 THE 1987 CONSTITUTION Sec.8
OF THE REPUBLIC OF THE PHILIPPINES
Src. 8. TnB Pnrr,rpprNEsr coNSISTENT wITH THE NATIoNAL
INTEREST, ADOPIS AND PURSUES A POLICY OF FREEDOM FROM NUCLEAR
WEAPONS IN ITS TERRITORY.
1. A policy of freedom from nuclear weapons.
The original formulation of this provision read thus: "The Philip- 'i
I
pines is a nuclear-free country. No portion of its territory shall be used
for the purpose of storing or stockpiling nuclear weapons, devices or !
parts thereof." Speaking for the provision, CommissionerAzcuna said:*'
+
I do not have to elaborate, Madame President, the enormous f any new negotiation with the United States on the subject of military
destructive capacity of nuclear weapons, particularly, because Asia
has had the distinct misfortune of being the only place in the world
where nuclear weapons were dropped and exploded during war'
It was not too long ago that Asia and the world commemorated
that fateful event. Since the dropping of atomic bombs in Japan
towards the end of World War II, the technology of
nuclear
weapons has multiplied tremendously such that the weapons
dropped in Japan are only used as trigger devices for the weapons
of today. Those bombs were merely atomic bombs. The bombs of
today are hydrogen bombs. Those bombs merely used fission as a
principle. The bombs of today use fusion, the very power of the
sun fusion of nuclear particles, releasing tremendous energy.
- albeit a basic policy because it is stated in the Declaration of Prin-
An explosion of a nuclear bomb, Madam President, is con-
sidered an uncontrolled nuclear reaction. That is the definition of a
nuclear explosion. What we seek to prevent from happening with-
in our land is the occurrence of an uncontrolled nuclear reaction'
Why put it in the Constitution? Why not leave it to the President,
why not leave it to the Senate, to deal with these matters? Madam
President, we are here framing a constitution. We are here in that
part of the Constitution which we call the Article on the Declara-
tion of Principles. We say that the Constitution is a reflection of the
aspirations and the ideals, and even the fears, of our people. Then
why be silent about this?
The provision, as it stands now, raises two questions. First, what
are banned by the provision? Second, how absolute is the ban?
Clearly, the ban is only on nuclear arms - that is, the use and
stockpiling of nuclear weapons, devices, and parts thereof. And this
8'/r/. ut
5117. Sct: ttlso /r/. rrl 5l'11'l 5tt(), ()t{ l, 1( I5
Sec. 8 ART.II - DECLARATIoN !.!,:ltfffrt"s AND srAIE POLICIES '13
6
includes, according to Commissioner Azcuna, "not only possessing'
controlling and manufacturing nuclear weapons, but also nuclear tests
in our territory, as well as the use of our territory as dumping ground for
radioactive wastes."84 Moreover, the ban suggests that, in our relations
with other states, there must be a mechanism for the verification of the
existence or non-existence of nuclear arms.ss This will therefore affect
the terms of any renewal the country might agree to of existing military
i bases agreements with the united states. The provision must be read as
a mandate to the Philippine government to insist that the pursuit of a
policy on nuclear weapons is a controlling guideline if there should be
I
i
bases.86
The provision, however, is not a ban on the peaceful uses ofnucle-
ar energy.s? Nor is it a ban on all "nuclear-capable vessels." For a vessel
.,il to be banned, it is not enough that it is capable of carrying nuclear arms;
it must actually carry nuclear arms.88
1l
ii The original formulation of the provision, cited above, might sug-
'jrl
'ii gest that the ban on nuclear arms is absolute. But, as explained by Com-
rl missioner Azcuna, that was never the intention:8e
:i
In my sponsorship speech, I pointed out that this is a policy,
ciples and State Policies in the Constitution. Consequently, what
we are seeking here is primarily a statement of an orientation,
a basic direction in the Constitution, that as a matter of policy,
we are against nuclear weapons in our territory. As practiced by
other states, that means prohibition not only of possessing, con-
trolling and manufacturing nuclear weapons, but also of nuclear
tests in our territory, as well as the use of our territory as a dump-
ing ground for radioactive wastes. This is embraced in the policy
against nuclear weapons in one's territory. As practiced both in
Latin America, under the Treaty of Tlatelolco, as well as by the
South Pacific countries that endorsed the Treaty of Rarotonga, pas-
sage of ships, whether nuclear-powered or nuclear-arms-bearing,
eld. at 818.
Es/d. at 815.
861d-
at 816.
8?/r1.
at 663, 666, 667-668
**/r/. at tl 19. .Sra rrlso tl2tl.
r')/r/ ttl llltl. ,\t'r ulvt /./. ttl 8l() lt2l
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
is left to the determination of every state on a case-to-case basis.
Itis not per se a violation of a nuclear weapons free zone to allow
a ship that is nuclear-powered or bearing nuclear weapons to pass
or enter one's territory. However, it has to be done in the light of
policy.
There is a policy against the presence of nuclear weapons
and, therefore, the exceptions to that policy would have to be
strictly construed or justified. What we are saying with the for-
mulation now is that it can be justified only on the basis or on the
crucible of the national interest. If it is consistent with the national
interest, then really there is the possibility of deviating from that
policy but the policy is there. The basic direction is there. There
can be deviations now and then because we said that this is not a
100 percent rule; this is not absolute. But deviations must be justi-
fied on the basis and the crucible or test of national interest.
Azcuna, however, did not explicate what the exception would be.
The exception first surfaced in the reformulation which was word-
ed thus: "The Philippines shall, consistent with considerations solely
of national interest, pursue a policy of freedom from nuclear weapons
in its territory." Explaining this reformulation, Commissioner Monsod
said that whether or not to allow nuclear weapons would be decided
on the basis of what is best for the "national interest" as this might be
defined by the executive and legislative departments.eo Later the word
"solely" was dropped in order not to suggest that the nation's commit-
ment to a policy against nuclear arms was dictated solely by national
interest; the opposition could also be based, for example, on the desire
for peace in the region.el
But that was not to be the end of the discussion. Concerned about
media reports which tended to read the provision as a total and absolute
ban on nuclear arms, Commissioner Monsod wanted to be doubly sure
of what the meaning was of the phrase "consistent with the national
interest" and so he wanted it rephrased to read "subject to the national
interest." Thus, he elicited from Commissioner Azcuna the explana-
tion that "consisient with" means "subject to," that is, "that both the
q'/r/.
ut tl I 4
urftl. ut ll l(r
Sec.8 Sec. e ARr. II - DECLARATIoN AND srArE PoLICIES 7s
ffiH,::?ts
adoption and the pursuit of the policy, as well as any exception there-
from, must be subject to the national interest."e Still uneasy about the
possibility of misinterpretation, Commissioner Monsod asked for the
approval of a clarificatory resolution. Co-authored by several Commis-
sioners, the resolution read:e3
Resolved that since it is the intent and sense of the Consti-
tutional Commission that the phrase "consistent with the national
interest" in Section 7 [now Section 8] of the kticle on Declaration
of Principles involving the policy on nuclear weapons in Philip-
pine territory also means "subject to the national interest" as borne
by the records of the proceedings and the unanimous manifestation
of the Members of the Commission, the motion to reconsider and
amend such provision filed by 28 Commissioners is deemed un-
necessary and withdrawn from further consideration but is hereby
incorporated in the records of the Commission.
No one objected to the resolution and the problem was deemed
settled.
Src. 9. Tnr Surp sHALL PRoMorE A JUsr AND DYNAMIC
SOCIAL ORDER THAT WILL ENSTJRE THE PROSPERITY AND INIDEPENDENCE
OF THE NATION AND FREE THE PEOPLE FROM POVERTY THROUGH
POLICIES THAT PR,OVIDE ADEQUATE SOCIAL SERVICES' PROMOTE FTJLL
EMPLOYMENT, A RISING STAI\DARD OF LWING' AND AN IMPROVED
QUALITY OF LIFE FOR ALL.
1. Social order.
Perhaps the best commentary on this provision is the draft whence
it came. The original proposal said: "The prime concern of the State is
the promotion and establishment of a socio-political and economic sys-
tem that will ensure the independence of the nation and aims to secure
for the people the benefits of full employment, a high standard of living,
equality in economic opportunities, security in old age, and other ba-
sic human rights." It reflects a preoccupation with poverty as resulting
from structures that mire the people in a life of dependence. Hence the
provision is closely linked with the provision on social justice which
follows.
'D hl. ttl 1126
u'ftl. ul 64ll
 THE 1987 CONSTITUTION Sec. 10
OFTHE REPUBLIC OFTHE PHILIPPINES
Sec. 10. Tnn, Surr sHALL pRoMorE socrAl JUSTTcE rN ALL
PHASES OF NATIONAL DEVELOPMENT.
1. Social Justice in the 1935 Constitution.
Constitutional law arrived in the Philippines long after "due pro-
cess" had become recognized notjust as a procedural restraint but also
as a substantive restraint upon governmental action. Although frequent-
ly invoked, however, as a protest against arbitrariness in legislation,
substantive due process was rarely invoked with success. From the very
beginning, the Supreme Court gave generous latitude to legislation de-
signed to promote public health, public safety or public welfare-even
when legislation collided with the rights to life, liberty, or property. Of
the pre-1935 cases, however, one case stands out as deficient in social
conscience: People v. Pomer.ea
At issue in Pomar was freedom of contract. The case dealt with
a statute prescribing a thirty- day vacation with pay both before and
after confinement arising from pregnancy. The Court said: "The rule in
this jurisdiction is, that the contracting parties may establish any agree-
ments, terms, and conditions they may deem advisable, provided they
are not contrary to law, morals or public policy."n' Relying chiefly on
early American casese6 that still embodied the doctrine of laissezfaire,
the Philippine Supreme Court struck down the statute as an invasion
of freedom of contract. The Court said that "the right to contract about
one's affairs is a part of the liberty of the individual guaranteed by this
[due process] clause ..."e? The Court also approved of the "equality of
right" principle: "In all such particulars the employer and the employee
have equality of right, and any legislation that disturbs that equality is
an arbitrary interference with the liberty of contract, which no govern-
ment can legally justify in a free land ..."e8 Police power, the Court
conceded, is an expanding power; but it "cannot grow faster than the
fundamental law of the state. ... If the people desire to have the police
,446 Phil. 44O (1924).
esld. at 456, relying onArticle I 255 of the (old) Civil codc.
e6Adkins v. Children's Hospital 261
tJ.S.52.5 (1923)t Atlflir v. U.S. 20tt U.S t6t. 174
(l90tl): Grppage v. K:utsas,236 tl.S. I, 14 (1915): Muglcr v. Kunsls. l.l.l t).S. ('l l (lttt{7).
"t46 Phil. tt 449.
"N/r/. rrt 452.
Sec. 10 ART.II - DECLARATIoN AND srArE PoLICIES 7'l
ffilt},:,t|*s
power extended and applied to conditions and things prohibited by the
organic law, they must first amend that law'"nn
Whtn for criticism in the Constitu-
the Pomar decision came up
tional Convention of 1935, Delegate Laurel contended that the Pomar
decision could no longer stand because of the "social provisions" of the
new (1935) constitution.'m chief among these provisions was Section
5 of Article II which said: "The promotion of social justice to insure
the well-being and economic security of all the people should be the
concern of the State."
In the course of the 1935 Convention, principally through the ad-
vocacy of Delegate Locsin, the idea of social justice was developed to
mean:ror
fi]ustice to the common tao, the "little man" so-called. It
means justice to him, his wife, and children in relation to their
employers in the factories, in the farms, in the mines, and in other
employment's. It means justice to him in the education of his chil-
dren in the schools, in his dealings with the different offices of
government, including the courts of justice.
In other words, what the declaration of principles advocated was
nothing less than the idea echoed in the slogans used by many a can-
didate for delegate to the 1971 Constitutional convention: Those who
have less in life should have more in law.
The idea of social justice also came up during the debates on
the contract clause. Delegate Locsin again, strongly influenced by
Roosevelt's New Deal Program and expressing profound concern for
the working-man bound to service by inequitable contracts, advocated
elimination of the contract clause. He considered existing jurisprudence
on police power an inadequate counterbalance to the unequivocal tenor
of the contract clause: " que peso tendria un enunciado abstracto sujeto
a pronunciamientos contradictorios para contravenir un dictum tan
inequivocante constitucional?"toz Locsin's proposal, however, was
*Id. at 455-6.
IO'3 JOI.IRNAI- OF THE (I935) CONSTITUTIONAL CONVENTION 1073 (FNUCISCO
cd.).
I J . Alt ttr io, 'l'ttu l" nturvr;
l('l ot tttt; Pt ut tpptlt; CrtNstntnnn 147 ( 1936).
|D.l J(XIRNAI , 1179.
 78 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
rejected on the understanding that the interest of the working man
was sufficiently protected by police power as superior to the contract
clause.r03
The impact of the 1935 Constitution on Philippine jurisprudence
first appeared as a tentative probing made by Justice Laurel in one of
the early decisions under the 1935 Constitution:r@
... the legislation which [we] are now called upon to con-
strue was enacted in pursuance ofwhat appears to be the deliberate
embodiment of a new social policy, founded on the conception of a
society integrated not by independent individuals dealing at arm's
length, but by interdependent members of a consolidated whole
whose interests must be protected against mutual aggression and
warfare among and between diverse and diverse rzrirs which are
impelled by countervailing and opposite individual and group in-
terests. ... In the United States labor legislation has undergone a
long process of development too long to narrate here ... Scrutiny
of legislation in that country and of pronouncements made by its
Supreme Court reveals a continuous renovation and change made
necessary by the impact of changing needs and economic pres-
sure brought about by the inesistible momentum of new social and
" tls. "The promotion of social justice to insure the well-being and
economic forces developed there. In the light ofchanges that have
occurred, it is doubted if the pronouncements made by the said Su-
preme Court in 1905 or in 1908 ... cases which are relied upon
--
by the petitioner in its printed memorandum still retain their
- social legislation
virtuality at the presenr rime. In the Philippines,
has had a similar development. ... In the midst of changes that
have taken place, it may likewise be doubted if the pronouncement
made by this court in the case of People v. Pomar... also relied
upon by the petitioner in its printed memorandum - still retains
- in agriculture." The same section also states that "the State may
its virtuality as a living principle. The policy of laissezfaire has
to some extent given way to the assumption by the government of
the right of intervention even in contractual relations affected with
public interests.
Sec. l0 sec. 10 ART.II - DEcLARAIIoN AND srArE PoLIcIES 'te
S:l},:l?"s
The foundation for this change had been laid by the Constitution''os
It should be observed at the outset that our Constitution was
adopted in the midst of surging unrest and dissatisfaction result-
ing from economic and social distress which was threatening the
stability of governments the world over. Alive to the social and
economic forces at work, the framers of our Constitution boldly
met the problems and difficulties which faced them and endeav-
ored to crystallize, with more or less fidelity, the political, social
and economic propositions of their age, and this they did, with
the consciousness that the political and philosophical aphorism of
their generation will, in the language of a great jurist, "be doubted
by the next and perhaps entirely discarded by the third." Embody-
ing the spirit of the present epoch, general provisions were inserted
in the constitution which are intended to bring about the needed
social and economic equilibrium between component elements
of society through the application of what may be termed as the
justitia communis advocated by Grotius and Iribnitz many years
ago to be secured through the counterbalancing of economic and
social forces and opportunities which should be regulated, if not
controlled, by the State or placed, as it were, in custodiq societa-
economic security of all the people" was thus inserted as vital prin-
ciple in our constitution. ... And in order that this declaration of
principle may not just be an empty medley of words, the Constitu-
tion in various sections thereof has provided the means towards
its realization. For instance, Section 6 of Article XIII declares that
the State "shall afford protection to labor, especially to working
women and minors, and shall regulate the relations between land-
owner and tenant, and between labor and capital in industry and
provide for compulsory arbitration." In extraordinary cases men-
tioned in Section 16, Article VI, of the Constitution, the President
of the Philippines may be authorized by law, for a limited period
and subject to such restrictions as the National Assembly may pre-
scribe, to "promulgate rules and regulations to carry out a declared
national policy."

Laurel's tentative probe eventually became a clear and definitive

to3ld. at 1184-90. doctrine which revolutionized jurisprudence on property. Government
reAntamok Goldfields Mining Co. v- Court of IntJustrial
Rcl0rions, 70 Phil. 340, 359-6{)
(194O), quoting an u:rpublished portion of Laurel's rtpinion in Ang 'I'ihny v. Ci)urr ol Agruriurr
Rclations, 69 Phil. 635 ( I 940).
..-ffi7
 THE 1987 CONSTITT]TION Sec. 10
OF THE REPUBLIC OF THE PHILIPPINES
became clearly recognized as equipped with sufficient power to push
forward a land reform and labor program designed to ameliorate the
conditions of the masses. This minor revolution will be examined in
some detail particularly in the discussion of the right of property, the
obligation of contracts, and the power of eminent domain.r06
2. Social justice in the 1973 Constitution.
Many delegates to the 1971 Constitutional Convention were ap-
parently unaware that existing jurisprudence had already formulated
a very socially oriented concept of property. Some of them spoke of
changing the concept of property from an "absolute concept" to one
imbued with a social conscience. For instance, the Committee on Dec-
laration of Principles and Ideologies, after stating that the concept of
property in the committee report "obliges all persons to use their prop-
erty to benefit not only [the owners] but [also] society" added the ex-
planation that "The right to property is changed in concept."roT In truth,
however, what the 1973 Constitution succeeded in doing was merely
to preserve and codify what had already been accomplished under the
1935 Constitution.
Section 6, Article II, of the 1973 Constitution said: "The State
shall promote social justice to ensure the dignity, welfare, and security
of all the people. Towards this end, the State shall regulate the acquisi-
tion, ownership, use, enjoyment, and disposition of private property,
and equitably diffuse property ownership and profits."
The constitutional command was addressed to the legislative arm
which creates policy, to the executive arm which implements policy,
and to the judicial arm which interprets policy. Under the 1973 Con-
stitution, where the President was both executive and legislator, the re-
sponse to the social justice command came principally from the Presi-
dent. Presidential Decree No. 27 of October 21,1972, which sought to
emancipate the tenants from the bondage of the soil, while antedating
implementation of the constitutional command by a few months, was
the most dramatic attempt at an executive-legislative response. It or-
dained that all tenant farmers "of private agricultural lands devoted t<r
rooArticlelll,Scctions l,9and l().Arliclcll.St'ction2l,anrl
AltielcXlll.Scctions,l :urrl tl
rotScctiott(r,Rc1xrr'1 No. l,('ottttttilltt'orrl)cclrrrirliorrol
l\'irrtilrlcsrrltl lrh.ok4lics{lr),tl)
POLICIES 81
Sec. 10 ART. II - DECLARATION OF PRINCIPLES AND STATE
State Policies
rice and corn under a system of sharecrop or lease-tenancy, whether
classified as landed estates or not" shall be deemed "owner of a portion
constituting a family-size farm of five (5) hectares if not irrigated and
three (3) hectares if irrigated." But the luster of this dramatic response
was marred not just by decrees which curtailed other rights of laborers
and tenants but also by the preferential treatment government gave to
fie acquisitive tendency of large multi-national corporations'
The judicial response came in the form of a growing number of
cases which emphasized the urgency of the state's task'o' and which
made constant, almost titesome, appeal to the social justice clause even
in controversies which could be solved by simple application of stat-
utes. But there were significant pedagogic decisions clearly teaching
for instance that mere procedural technicalities should not be allowed to
get in the way of adequate protection for labor'on and also clearly estab-
lishing that social and welfare legislation must be interpreted liberally
in favor of labor."o
At the same time, however, the court was not wanting in caution.
Thus, in National Federation of Sugar Workers v. Ovejera,lll the Court,
against the strong plea for social justice made by chief Justice Fernan-
do, interpreted the 13th-month pay requirement under P.D. No. 851 as,
from a clear reading of the statute, not applicable to a company already
giving the equivalent in the form of Christmas, milling and amelio-
ration bonuses. More importantly, the Court resisted efforts to stretch
the social justice provision to clearly illegal lengths. Categorically, it
was held that the social justice provision did not legalize usurpation
of private or public property by squattersil2 or otherwise "to trample
on the rights of property owners who under our Constitution and laws
are entitled to protection."rl3 Nor did it oblige the Court to be unjust
or unfair to employers. "After all, in the eyes of all fair minded men,
injustice to the more affluent and fortunate sectors of society cannot be
,,rE-r*"_,_,Bormaheco v. Abancs, 52 SCRA 73 (1g73); Sabio v. Gonzales, 54 SCRA
-261 (1973)lDeChavezv.Zobel,55SCRA26(1974);Victorianov.ElizaldeRopeWorkersUnion,
59 SCRA 54 (lg'7 4).Sae also cases under Section 1 8 of this Article'
Ip/i.g., [Jstrada v. NLRC, I l2 SCRA 688 (March 19' 1982)'
r l"/:.g., (
ialccran v. Sccretary of [.abor, I I 5 SCRA 300 (July 20' 1982)'
rrrl 14 s1'1.([ .]-54 (May .l l, l9tt2), n:vcrsing Marcopper Mining v. Blas ople, 105 scRA
'75(Junc ll, l9tll).
ll,Astrrrlilhrv. lloilrrl ol l)i[t.etor.s,7.]S('ltA l5(Sr:plcntlrcr22,l1)16'1.
il,Strkxr11tr v. liirrrirlt.s, lO\ :.i('l{A t5(), l(r() (.lrrly lO, l()tl I ).
 THE 1987 CONSTITUTION
OF T}IE REPUBLIC OF THE PHILIPPINES
less condemnable and reprehensible, and should be avoided as much as
injustice to labor and the poor."rre
In the end, for purposes of the judiciary, the import of social jus-
tice which developed was that when the law is clear and valid, it simply
must be applied; but when the law can be interpreted in more ways than
one, an interpretation that favors the underprivileged must be followed.
3. Social justice under the 1987 Constitution.
The 1987 Constitution builds on the developments on social jus-
tice made under the 1935 and 1973 Constitutions. As will be seen, how-
ever, the 1987 provisions go beyond what was covered by the 1935 and
1973 provisions. The former constitutions focused their attention on
economic inequities; the new Constitution covers all phases of national
development but with emphasis not just on the socio-economic but also
on political and cultural inequities."j
To signal the urgency of promoting social justice, an entire article,
Article XIII, is devoted to the subject. Section 10, in fact, was approved
as the flagship provision of Article XIII but it was later lifted and trans-
ferred to Article II.
Snc. 11. TnB Smrn VALUES TrrE DrctrrTy oF EvERy ItuMAN
PER,SON AND GUARANTEES FTJLL RESPECT FOR HT'MAN RIGIITS.
1. Personal dignity and human rights.
The concretization of this provision is found principally in the
of Rights and in the human rights provisions of Article XIII.
Src. 12. Txn Surr RrcocNrzEs rHE sANcrrry or, FAMTLy
LIFE AND SHALL PROTECT AND STRENGTHEN THE FAMILY AS A BASIC
AUToNoMous socrAl rNsTrrurroN. It sx,lr,r, EeuALLy pRorEcr
THE LIFE OF TIIE MOTHER AND THE LITE OF THE UNBORN FROM
coNcEprtoN. Tnr x.lrunlI, AND pRrMARy RIGHT AND DUTy oF
PARENTS IN THE REARING OF THE YOUTTI FOR CIVIC EFTTCIENCY
AND THE DEVELOPMENT OF MORAL CHARACTER SHALL RECEIVE THE
SUPPORT oF TIIE Govnnmrlpxr.
rraFederation of Free Farmcrs v.
Courr of Appcals, 107 SCRA lS2, j62-3 (Scpfcmbcr 10,
198 l ).
rrl.Srl lV RIiCORI) tl64 1t65.
Secs. I 1-12 Sec. 12 ART.II - DEcLARATIoN AND srArE PoLICIES 83
!L:}H,:i*ts
1. The family as basic social institution.
The$rst part of section 4 of Article II of the 1973 Constitution
said: "The state shall strengthen the family as a basic social institution."
Although it was a new constitutional provision then, it did not express
a new policy. It merely adopted Article 216 of the civil code (1950)
which said: "The family is a basic social institution which public policy
cherishes and protects." Title VII of the Civil Code spelled out in detail
measures protective of the family as the basic social institution'"6 The
continuing constitutional policy is for the protection of the family as a
basic social institution. Thus, in annulment cases, any doubt should be
resolved in favor of the validity of a marriage.r'7
The purpose of the provision was to formalize the adoption of an
ideology which recognized the family as the basic social institution."8
Positively, the provision enjoined the state to strengthen the family;
negatively, it prohibited the state from adopting measures which can
impair the solidarity of the Filipino family. On the question of divorce,
however, the 1973 text did not take a stand."e
Section 12 in the 1987 text has recast the sentence to read:
"The State recognizes the sanctity of family life and shall protect and
strengthen the family as a basic autonomous social institution." An en-
tire article besides, Article XV, is devoted to the family'
The family here is to be understood as a stable heterosexual re-
lationship whether formalized by civilly recognized marriage or not.
Bill Calling the family a "basic" social institution is an assertion that the
family is anterior to the state and is not a creature of the state. The
categorization of the family as "autonomous" is meant to protect the
family against instrumentalization by the state.r2o
r164 new family code, Executive order No. 209, was promulgated by President Aquino on
Jufy 6, 1987 (and amended by Executive order No. 227 on July I7,1987), and took effect
one
ycar
- after its publication.
.rlp"nu6lic v. Dagdag, G.R. No. 1099?5, February 9,2001; Malcampo-Sin v. Sin, G.R. No.
I 17-590, March 26, 20{'t | .
r'*SJrccch of l)elcgate Corpus, Scssion of November 24' 1972'
l'r.!cl rcmnrk ol l)clcgalc M:rria cltru 1,. l-obrcgat, Session of April 20,19'12. Delegate
'llillrrnir, hgwcvcr. llrcurly slw in this provision n prohihilion ol'tlivorcc. Scssion of April 22' 1972'
rx'lv Rli('()l{l) ll0lt tl(X); V l{li('()RI) 5'1 s5'
84 THE I9STCONSTITUTION Sec. 12
OF TI{E REPUBLIC OF THE PHILIPPINES
2. Protection of the unborn.
The formula that is found as the second sentence of Section 12
is the product of much debate. It is first of all important to understand
what it does not assert. It does not say that the unborn is a legal person;
nor does it deny, however, that the state under certain conditions might
regard the unborn as a person.'2r It does not assert that the life of the
unborn is placed on exactly the same level as the life of the mother. It
recognizes that, when necessary to save the life of the mother, it may be
necessary and legitimate to sacrifice the life of the unborn. It, however,
denies that the life of the unborn may be sacrificed merely to save the
mother from emotional suffering or to spare the child from a life of
poverty. The emotional trauma of a mother as well as the welfare of the
child after birth can be attended to through other means such as availing
of the resources of welfare agencies. The provision, in fact, is intended
primarily to prevent the state from adopting the doctrine in the United
States Supreme Court decision of Rae v.Wadet22 which liberalized abor-
tion laws up to the sixth month of pregnancy by allowing abortion at the
discretion of the mother any time during the first six months when it can
be done without danger to the mother.t23
The unborn's entitlement to protection begins "from conception,"
that is, from the moment of conception. The intention is to protect life
from its beginning, and the assumption is that human life begins at con-
ception and that conception takes place at fertilization. There is, how-
ever, no attempt to pin-point the exact moment when conception takes
place. But while the provision does not assert with certainty when hu-
man life precisely begins, it reflects the view that, in dealing with the
protection of life, it is necessary to take the safer approach.'ro
Incidentally, too, the respect for life manifested by the provision
harmonizes with the abolition of the death penalty and the ban on nu-
clear arms.
t2rE.g., Articles 40 and 41,
Civil Code of the Philippines.
f 2410
u.s. 113 (1973).
tz3See passim I RECORD 689-698,'721-723; IV RECORD 596-602,668-700,70-5-76t.
r24IV RECORD 799-81 I . The provision
clearly reflects a Catholic approach to thc prublenr.
Advocucy of the provision wns bortt principnlly by tlishop Btctni untl (\lnrnrissioncl llcrnurtlo
Villcgtrs, u stltlwrtrl ('rrtholic luyrrrrrrr.
Sec. 12 ART.II - DECLARATIoN AND srArE POLICIES 8s
!.|,:1t),:,tJrtts
3. Natural right and duty ofparents.
Modern society recognizes the indispensable role which the mod-
ern state has to play in the field of education. This role is performed
by the state either through state established schools or thlough state
regulation of private institutions of learning. This subject is treated by
the Constitution primarily in Article XIV, more fully than it ever was in
earlier constitutions..
The 1973 provision, in Article II, Section 4, aheady not only rec-
ognized the family as the basic social institution but also recognizedthe
natural right and duty of parents, as heads of the family, in preparing
their children for a socially useful and upright life. "The natural right
and duty of parents in the rearing of the youth for civic efficiency shall
receive the aid and support of the Government." This portion of Section
4 was a reproduction of Article II, Section 4 of the 1935 Constitution.It
placed the government not in opposition to but in support of the natural
right and duty of parents.It was a logical corollary to the recognition of
the family as the basic social institution.
The 1987 provision has added the adjective "primary" to modify
the right of parents. It imports the assertion that the right of parents is
superior to that of the state."5
The provision, both as it is now and as it was originally embodied
in the 1935 and t973 Constitutions, also has its root in the basic phi-
losophy of liberty guaranteed by the due process clause. Thus, in Meyer
v. Nebraskn 126 a statute prohibiting the teaching of German to students
up to a certain age was declared invalid. The Supreme Court said'r27
For the welfare of his Ideal Commonwealth, Plato suggested
a law which should provide: "That the wives of our guardians are
to be common, and their children are to be common, and no par-
ents is to know his own child nor any child his parent ' ' ' The
proper officers will take the offspring of the good parents to the
pen or fold, and there they will deposit them with certain nurses
who dwell in a separate quarter; but the offspring of the inferior,
or the better when they chance to be deformed will be put away
in some mysterious, unknown place, as they should be." In order
rrl/r/. al tJ09.
ur262 tJ.S.390 ( 1922),
il/lrl. ll 4Ol 2.
 86 THE l98Z CONSTITIJTION Sec. t2
OF THE REPUBLIC OF THE PHILIPPINES
to submerge the individual and develop ideal citizens, Sparta as_
sembled the males at seven into barracks and entrusted their subse_
quent education and training to official guardians. Although such
measures have been deliberately approved by men ofgreat genius,
their ideas touching the relation between individual and state were
wholly different from those upon which our institutions rest; and
it hardly will be affirmed that any legislature could impose such
restrictions upon the people of a state without doing violence to
both letter and spirit of the Constitution.
Again in Pierce v. Society of Sisters,t2s which invalidated a law
requiring children up to a certain age to go to public schools only, the
Supreme Court said:r2e
The fundamental theory of liberty upon which all govern-
ments in this Union repose excludes any general power of the state
to standardize its children by forcing them to accept instruction
from public teachers only. The child is not the mere creature of the
state; those who nurture him and direct his destiny have the right,
coupled with the high duty, to recognize and prepare him for ad-
ditional obligations.
Thus, again , in Wisconsin v. Yodert3' the Supreme Court said that
"only those interests [of the State] of the highest order and those not
otherwise served can over-balance" the primary interest of parents in
the religious upbringing of their children.
In the exercise of their natural right and duty, parents are entitled
to the support of laws designed to aid them in the discharge of their re-
sponsibility. various laws, for instance, giving legitimate financial sup-
port for private school students, have been upheld.rrr Moreover, in rec-
ognition of the supporting role of the state in the upbringing of children,
the law recognizes in the state a power of control over the conduct of
children which reaches beyond the scope of its authority over adults.''
t2E262V.5.510 (1925).
tRId. at 535.
'30106 U.S. 2O5 (1972). See also discussion
underArticle III, Section 5.
Board .f Education,330 U.S. | (9ai); Board of Allen, 392 U.S. 236
r3rSee Everson v.
(1968); Tilton v. Richzudson,403 tJ.S.672 (1971).
rl2Princc v. Mussuchuscils, 121
tr.s. l5tt 1;ty44;, (iinsbcrg v. Ncw y.rk..l9o t1.s.629
( l96t{).
Sec. 13 ART.II - DECLARATIoN !.|,:l},:lt:"s AND srArE PoLICIES 87
This provision also highlights the inherent duty of the state to act
as parens patriae and to protect the right of persons and individuals
who because of age or inherent incapacity are in an unfavorable posi-
tion vis-ti-vi.r other parties. Court decisions have called attention to the
inherent connection between the duty of the state as parens patriae and
the concern of the fundamental law for the strengthening of the fam-
ily as a basic social institution.,33 Likewise, in upholding the power of
schools to take disciplinary action for acts committed outside the school
campus, the Court has adverted to the duty of the state to aid schools
in the development of moral character. The Court has held that while
the authority of the school is generally confined within the school cam-
pus, schools may take disciplinary action (1) in respect to violations of
school policies in connection with school sponsored activities or (2)
where the misconduct affects the student's status or the good name or
reputation of the school."o
Snc. 13. Tnr Surr RECocNIzES rHE vrrAr, RoLE oF THE
YOUTII IN NATION-BUILDING AND SHALL PROMOTE AND PROTECT
TIIEIR PHYSICAL' MORAL' SPIRITUAL' INTELLECTUAL' AND SOCIAL
wELL-BErNG. Ir snlt r, NCULCATE IN TIrE YourH PATRIoTISM ANI)
NATIONALISM' AND ENCOURAGE THEIR INVOLVEMENT IN PUBLIC AND
CIVIC AFFAIRS.
1. Vital role of Youth.
section 5,Article II, of the 1973 Constitution said: "The state rec-
ognizes the vital role of the youth in nation-building and shall promote
their physical, intellectual, and social well being." This was taken from
un article on youth which had been approved on second reading
"niit"
on May 3,Ig7z.The article contained the following provisions:
Section 1. The State recognizes the vital role ofthe youth in
the development and defense of society. To enable them to fulfill
this role, the State shall:
(l) Provide for their health, education, training, social
welfare, employment opportunity and community support;
-1r",p1... lr,ykrrr, 57 SCRA I I4, l2l (May 29,1974);Cabanas v. Pilapil,58 scRA 94,
99 (July 25, le74).
''{Attgck's v. Jtllllc Sison, I l2 S('RA 26
(ltcbrulry l6' l9tt2)'
 88 THE 1987 CONSTITUTION 15 AND srArE POLICIES 8e
OF THE REPUBLIC OF THE PHILIPPINES
Sec. 14 Sec. ART.II - DECLARATION
!.|,:ltffillt"s
(2) Extend social protection to minors against all forms of 1. EqualitY of women and men'
neglect, cruelty, exploitation, immorality, and practices which may
a role
foster racial, religious, or other forms of discrimination. This provision is new. Beyond stating that women do have
(3) Recognize and strengthen the family as a basic social
innation-building,theprovisionmakesthemoreimportantassertion
before the
institution and aid legitimate associations and youth service orga- that there exists a fundamental equality of women and men
absolute sameness be-
nizations in the preparation of youth for civic involvement. law' There was, however, no intent to advocate
men and wom-
cause there are obvious biological differences between
Section 2. The State may cail upon the youth between fifteen
en.'rs It was precisely to make room for these natural
differences that the
and twenty-three to render service to the nation in development
provision was made to read "fundamental equality before ffue In\ry'"t:6
and welfare programs of the government or in governmenrassist-
ed projects with such incentives and under such conditions as
may Duringtheperiodofsponsorshipandinterpellation'Commis-
was to for-
be determined by law. sioner Felicitas Aquino took the position that the intention
mulate the provisiron in language that would be "self-implementing"
Section 3. Congress shall create a National youth Commis_
and would repeal all discriminatory and anti-feminist laws
in the civil
sion to coordinate the planning and implementation of government
programs concerned with child and youth development. Code.Duringtheperiodofamendment,however'CommissionerAqui-
she made
no changed i'er position. Answering questions from the floor'
Report No. 2 of the committee on youth (rg7r) had this to say
on
it clear ihat the intent was not to achieve an ipso facto repeal of laws
legislation
its draft article on youth: offensive to equality but merely to give a push to statutory
that would eliminate the inequalities found in existing law. The follow-
A comprehensive program for the development of children ing exchange should shed light:'3'
and youth calls for attention to their health, welfare, education, .

training, productivity, and community involvement. The adequate FR. BERNAS' My problem is that a mere intent unspecified
satisfaction of these different aspects of young people,s needs is in a constitutional provision and an intent which runs contrary to
the letter is not jusia vagueness in the letter. The letter
would have
utterly wanting in this country. Not the least of the reasons for this
is [sic] the limited available resources of the nation, compounded toprevailoverwhateverunexpressedintentthereissincetheletter
by accelerated population growth which threatens to cancel out is clear. The letter expresses equal protection and every inequality
the possibility of raising the levels of adequacy in meeting those in existing law must Yield to it'
needs. But more significant is the failure to appreciate properly
the MS. AQUINO. The problem is that if we provide fot an ipso
pertaining to the
role of children and youth in society and the substantial retums that facto amendment of the Civil Code, particularly
would accrue from a determined investment in their development. laws on personal and family relations' the determination of the
This is manifest from the absence in the constitution of a oennite rightsanddutiespertainingtheretocarrieswithitintricatedetails
and comprehensive policy for youth development, the fragmented which could not proceed from a vacuum' "'
approach of the government in meeting the needs and problems
of
children and youth, and the failure to draw the children and youth And so the matter was left at that'
into the mainstream of national life.
SBc. 15. Tun Surn sHALL PRoTECT AND PRoMorE THE RIGITT
The 1987 provision, although slightly longer than the 1973 coun- ToHEALTHoFTHEPEOPLEANDINSTILLHEALTHCONSCIOUSNESS
terpart, has added nothing significant. AMONG THEM.

Spc. 14. THn Sr,trr REC(x;Ntzts rru, R()l,t ()r,, w()Mt:N rN l''lV Rl:('()l{l) 6115'"126-121 '
NATION-BU|I_D|N(;, AND SHA!.t. uNsI[at: ,ilt]; |.,'/l/,:rtt.llJ]t{tl5'llrllirrrttieirlly'ilisittsonlefundamentalsthatmenandwomenaremost
HllNt)AMt,lNt.At. r,:QltAl.t,t,y
rlille rrl!
BH|.ORt,t'ilil,t l.Aw ()f w(rMl;N ANr) Mt;N. re
Ir/r/ ;tl X /l{.

L
90 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
1. The right to health.
This is discussed underArticle XIII, Sections l1 to 13, as an as-
pect of social justice.'3'
Src. 16. Tnr Srarn pRortcr rHE RrcHr
sHALL AND ADvANcE
OF TIIE PEOPLE TO A BALANCED AND HEALTHFUL ECOLOGY IN ACCORD
WITH TIIE RHYTHM AND ITARMONY OF NATURE.
1. Right to a balanced and healthful ecology.
The 1987 Constitution was drafted at a time when there was a
growing concern about the preservation of a healthy environment. The
discussions manifested a clear desire to make environmental protection
and ecological balance conscious objects of police power.r3e
The provision first found application in Oposa v. Factoran, Jr.t40
The case involved thirty-four minors who went to Court represented by
their parents pleading the cause of "inter-generational responsibility"
and "inter-generational justice" and asking the Supreme Court to order
the Secretary of Natural Resources to cancel all existing timber license
agreements and to "cease and desist from receiving, accepting, pro-
cessing, renewing or approving new timber license agreements." The
minors filed the action for themselves as representing "their generation
as well as generations yet unborn." They had originally gone to a lower
court before which they had listed a whole litany of harmful effects
flowing from deforestation. In the lower court the govemment argued
that no legal right of the petitioners had been violated and that the issue
of whether to grant or not to grant timber licenses was not a matter for
the courts to decide but for the political departments, namely Congress
and the President.
The lower court dismissed the petition of the minors but the Su-
preme Court reversed. Although Oposa, Jr. did not order the Secretary
outright to cancel licenses and desist from issuing new ones, the Court
affirmed the justiciability of the issue raised. The Court, on the basis of
Section 16linked with the right to health, recognized a "right to a bal-
rrESee also lV RECORD 9(X-9O9,912-916.
t"'kl. at9l2-916.
r{'224 S('RA 792 ( l99l),
Secs. 17-18 ART. II - DECLARATION OF PRINCIPLES AND STATE POLICIES 91
anced and healthful ecology" and "the correlative duty to refrain from
impairing the environment."r4r
Oposa,,Ir. was followed by Laguna Lake Development Authority
(LLDA) v. Court of AppealsJ42 The Supreme Court, relying on Section
16 as also bolstered by the right to health in Section 15 as well as by the
Universal Declaration of Human Rights and theAlma Conference Dec-
laration of 1978 upheld the authority of LLDAto protect the inhabitants
of the Laguna Lake Area from the deleterious effects of pollutants com-
ing from garbage dumping and the discharge of wastes in the area.'a3 In
another LLDA case, in l-aguna Lake Development Authority v. Court
of Appeals,'* the Supreme Court upheld the exclusive authority of the
Laguna Lake DevelopmentAuthority to regulate the exploitation of La-
guna Lake, as against the claim of municipalities around the lake, in
order to effectively address the environmental and ecological stress on
Laguna Lake. The latest on this subject is Metropolitan Manila Devel-
opment Authority v. Residents of Manila Bay'05 where various agencies
of the government were ordered by the Court to clean up Manila Bay.
Src. 17. THs SrATr sHALL GrvE PRToRJTY To EDUCATIoN'
SCIENCE AND TECHNOLOGY, ARTS' CULTI,JRE' AND SFORTS TO FOSTER
PATRIOTISM AND NATIONALISM, ACCELERATE SOCIAL PROGRESS' AND
PROMOTE TOTAL HUMAN LIBERATION AND DEVELOPMENT.
1. Education, science and technologSr, arts, culture and
sports.
This is meant to be the flagship provision for Article XIV. It sees
education and total human development as the gateway not only to in-
tellectual and moral development but also to economic advancement
and the cultivation of the yearning for freedom and justice.'06
Soc. 1.8. Tnn Surr AFTTRMS LABoR AS A PRTMARY socIAL
ECoNoMIc FoRcE. Ir su,l,r,r, pRorEcr rHE Rrclrrs oF woRKERs AND
PROMOTE THBIR WELFARE.
ra'Id. at 8(X-805.
14231 SCRA292(t994).
rar/r/. at 307-30tl.
laa(i.R.N<rs. l20tt65-7l,Deccntbcr7, 1995.Seeulsoinlra,underArticleX,Section2.
rar(i.R. Nos. 1 7 947-41{, l)cccnthcr l tl, 2(X)tt.
1
,ftlv Rl,t(\)Rl) I 7 i- I 74.
92 THE 1987 CONSTITUTION Sec. 18
OF THE REPUBLIC OF THE PHILIPPINES
1. Labor.
As a corollary to the social justice provision of the 1935 Constitu-
tion and in order that the principle of social justice may not just be a
medley of words, the 1935 Constitution provided the means towards
its realization. For instance, Article XIV Section 6, provided that the
"State shall afford protection to labor, especially to working women
and minors, and shall regulate the relation between landowner and ten-
ant, and between labor and capital in industry and in agriculture." The
same section also stated that "[t]he State may provide for compulsory
arbitration."
The 1973 Constitution adopted the provisions of the 1935 Con-
stitution with the additional injunction that the state should "promote
full employment and equality in employment, ensure equal work op-
portunities regardless of sex, race, or creed," and "assure the rights of
workers to self-organization, collective bargaining, security of tenure,
and just and humane conditions of work." Under the 1973 Constitution,
the protection the state was commanded to give to labor was linked by
the Court to the survival of the nation itself:'4'
More than elusive justice, survival is the daily problem of
the worker and his family. The employer is not faced with such a
problem. More often than not, the employer dissipates part of his
income or profit in pleasures of the flesh and gambling aside from
luxuries, fabulous parties and conspicuous consumption.
The stability of the economy does not depend on the em-
ployer alone, but on government economic policies concerning
productivity in all areas. ... It is the living wage of workers which
is the basis of a stable economy. If the company cannot pay a liv-
ing wage, it has no business operating at the expense of the lives
of its workers. ...
The preservation of the lives of the citizens is a basic duty
of the State, more vital than the preservation of the profits of the
corporation....
To invoke the nebulous term "stable economy" to justify
rejection of the claims of workers as against the assets of the em-
ployer, is to regard human life as more expendable than corporate
r'r'ltltililrpincApprucl Wrrkclrllrtionv.Nl.lt('. lO6:i('|i4444,462(.luly ll,lgttl)
sec. 18 ART.II - DEcLARAIIoNS:J}H:|J,*SAND STATEPoLICIES e3
capital. There is nothing in the Constitution that expressly guaran-
tees the viability of business enterprises much less assuring them
of profits.
The assurance of equality in employment and work opportunities
regardless of sex, race, or creed is also given by the equal protection
clause of the Bill of Rights. The specific mention of "race," however,
made by the 1973 Constitution as a prohibited basis of discrimination
might present an interesting question: Did the provision prohibit the
nationalization of labor? Under the 1935 Constitution, citizenship was
a valid basis of classification for purposes of employment opportuni-
ties.'48 If "race" means citizenship, then citizenship can no longer be
a valid basis for discrimination in employment opportunities and ben-
efits unless the provision is to be understood as a one-edged sword
- protects
which only Filipinos. There is evidence, in fact, that the men-
tion of "tace" in the 1973 Constitution was intended as a protection
for Filipinos working in their own country. In his sponsorship speech,
Delegate Corpus pointed to the discrimination practiced against Fili-
pinos in American military bases and suggested that the Constitution
should give protection to Filipinos against discrimination within their
own country.'4e
The 1987 Constitution builds on previous provisions and elabo-
rates on its policy on labor in Article XIII, Section 3 which will be dis-
cussed in its proper place. Suffice it here to say that Article II, Section
18, in affirming labor as a "primary" social economic force, proclaims
the primacy of the human factor over the non-human factors of produc-
tion. Commissioner Bacani put it thus:'5.
It is really an assertion of the supremacy of human dignity
over things.
In the process of production, labor is always a primary and
efficient cost [sic] while capital remains a mere instrumental [cosr].
We will notice that all the means by which a person appropriates
natural resources and transforms them in accordance with his need
are the result of the historical heritage of human labor. Besides, it
r4EKing v. Hernaez,4 SCRA792 (1962).
r"Scssion of Novembcr 24, 19'12. ln the 1987 Constitution, the words race, and sex, for
tl[rt rnulter, n0 krnget lppcurs.
rxrr(r. rt ll9l.
94 THE 1987 CONSTITUTION Secs. l9-20 Secs. 2l-23 ART. II - DECLARATION OF PRINCIPLES AND STAIE POLICIES 95
OF THE REPUBLIC OF THE PHILIPPINES State Policies

is clear that every person sharing in the production process is the
real efficient subject, while the collection of instruments, no mat-
ter how perfect they are, is only a mere instrument subordinate to
human labor.
In the process of production, labor is always a primary and
efficient cost, while capital remains a mere instrumental cost. We
will notice that all the means by which a person appropriates natu-
ral resources and transforms them in accordance with his need are
the result of the historical heritage of human labor. Besides, it is
clear that every person sharing in the production process is the
real efficient subject, while the collection of instruments, no mat-
ter how perfect they are, is only a mere instrument subordinate to
human labor.
In our present system, capital is sometimes given more
weight than labor. Let me give an illustration: Sometimes when
there is an increase in the price of raw materials, we automatically
increase the price of goods and there is no question about that be-
cause the price of raw materials has been increased. Yet when the
workers ask for corresponding increase in their wages, they are
told: "Wait, the price of raw materials is already very high and you
will still ask for an increase in the price oflabor?"
So in actual consideration, it seems that labor takes the last
place in the consideration and computation of the things that must
beincreased....
I believe Commissioner Aquino caught the thrust very well
when she said that this is really an assertion of the primacy of hu-
man dignity over things.
Snc. 1"9. Tnr SurB sHALL DEvELop A sELF-RELIANT AND
INDEPENDENT NATIONAL ECONOMY EFFECTIVELY CONTROLLED BY
Frr.rprNos.
Src. 20. Tnn Surr REcocNIzFs rIrE INDIspENSABLE RoLE
OF THE PRIVATE SECTOR, ENCOURAGES PRIVATE ENTERPRISE, AND
PROVIDES INCENTIVES TO NEEDED INVESTMENTS.
that the private sector is an indispensable engine of development.'5'
Both are more fully discussed under Article XII.
Snc.21. rxr Surr sHALL pRoMorE coMpREHENsIvE RURAL
DEVELOPMENT AND AGRARIAN REFORM.
1. Comprehensive rural and agrarian policy.
The emphasis in this Section is on the adjective "comprehensive."
Rural development is not just agricultural development but rather it
encompasses a broad spectrum of social, economic, human, cultural,
political and even industrial development.'s2
Snc.22. Tnr Srmn REcocMzEs AND pRoMorEs rHE Rrclrrs
OF INDIGENOUS CULTTIRAL COMMUNITIES WITHIN THE FRAMEWORK OF
NATIONAL TJNITY AND DEVELOPMENT.
1. The welfare of indigenous cultural communities.
The implementation of this policy is found principally in the pro-
.
visions on cultural communities found in Article X, on local govern-
ments, Article XII, on the economy, Article XIV on arts and culture,
and Section I2,Article XVI, on a consultative body to advise the Presi-
dent. It is also worth noting that, in the initial discussions of this provi-
sion, the proposal had among its objectives the "banning and rectifying
of erroneous allusions to ethnic minorities in books, museums, other
institutions and records of government."'53 The final text does not reflect
this objective the pursuit of which can involve the weighing of consid-
erations of freedom of experience.
More will be said about this under Article XII, Section 5.
Snc.23. Tns SmrB SHALL ENcouRAcE NoN-coVERNMENTAL,
CoMMUNITY-BASED, OR SECTORAL ORGANIZATIONS TIIAT PROMOTE
THE WELFAR,E OF TI{E NATION.

1. Nationalist economy and private initiative.

Sections 19 and 20 represent two of the pillars of the economic
ltl.Srcc V RECORD 22-24
policy of the Constitution. The first commands an indcpcndent and ,r,lv Rli('oRl) tt98,tt99.
nationalist appnlach to ccon<llnic dcvclopmt:nl and tltc sccontl al'linns rrrlr/. nl 7.10.
96 THE 1987 CONSTITUTION Secs.24-25
Sec.25 ART.II - DECLARATION AND srArE PoLICIES e7

OF THE REPUBLIC OF THE PHILIPPINES

1. Community-basedpriyateorganizations.
The provision recognizes the principle that volunteerism and par-
ticipation of non-governmental organizations in national development
should be encouraged.'s4 This is elaborated on in the provisions on vol-
untary people's organizations found in the article on social justice, Ar-
ticle XIII.
Src. 24. Tur Srnrr RECocNIZES
COMMUNICATION AND INFORMATION IN NATION-BUILDING.
1. Communications.
More is said about communications in Article XVI, Sections 10
and 11. Significant about this provision is that the 1986 Constitutional
Commission refused to impose "a social responsibility" on media on
the reasoning that imposing such duty will open the door for the state to
require media to follow a certain line.'$
Src. 25. Tnr Surn sHALL ENSURE THE AUToNoMy oF LocAL
GOVERNMENTS.
L. Local autonomy.
Under the 1935 Constitution,local governments were purely crea-
tures of the legislature. Their creation and the extent of their powers in
relation to the national government were at the discretion of the legis-
lature. The philosophy behind this structure was explained by the Su-
preme Court in Planas v. Gil:"u
Our attention has been directed to the fact that, with refer-
ence to local governments, the Constitution speaks of general sa-
pervision which is distinct from the contol given to the President
over executive depaftments, bureaus and offices. This is correct.
But ... the deliberations of the Constitutional Convention show
that the grant of the supervisory authority to Chief Executive in
this regard was in the nature of a compromise resulting from the
conflict of views, in that body, mainly between the historical view
t5ald. at90l-904.
l'\lv t<li('oRl) 9?,4.9)1
ru(r'l
l'lril ('.).71{ ( l() 11)}
ffi;tJ,!lr.l-"s
n
f which recognizes the right of local self-government (People ex
t
i rel. Le Roy vs. Hurlbut [ ] 871 I , 24 Mich., 44) and the legal theory
$
j which sanctions the possession by the state of absolute control
.:l
ti
over local governments (Booten vs. Pinson, LRA. IN.5., 1917-1 ].
: 1 244 ; 77 W. Va., 4 I 2 [ ] 9 I 5 I ).The result was the recognition of the
power of supervision and all its implications and the rejection of
what otherwise would be an imperium in imperio to the detriment
of a strong national government.
rHE vITAL RoLE oF
It should thus be noted that, while the 1935 Constitution denied
to the President the power of control over local governments, it recog-
nized the legislature's power of control over the same.
t* The position of local governments in the constitutional structure
of the government was made firmer by the 1973 Constitution, through
i Section 10 of its Declaration of Principles, and was made flrmer still by
{
1: Article XI on Local Autonomy. The purpose of this new constitutional
t
attitude to local autonomy was expressed thus in Explanatory Note to
Report No. 1 of the Committee on Declaration of Principles and Ideolo-
gies (1971):
Section 13 which mandates the promotion of local autonomy
is implicit in Section 2, when it seeks continuous involvement of
every citizen in public affairs. For indeed, widest participation of
the citizenry in government is best manifested in the smallest gov-
ernment unit.
In this section, the committee adopted the recommendation
of the UP Law Center, as suggested in many resolutions, to have a
new section under Article II seeking the promotion of local auton-
omy. Subject to re-styling, the committee is also in full agreement
with the Committee on Local Governments and the Committee
on Community Development on the following salient criteria for
autonomy:
First, autonomy should be compatible with national goals;
Second, autonomy should ensure widest participation and
initiative to the local government unit;
Third, autonomy should assure the development of self-re-
liant communities. In this regard, there is a recognition given the
horrio irs the cxisting, smallest social unit; that is to say, the devel-
ol.rnrcrrt of'lhc balrio as a scll:rcliant community must bc f<rstered
hy krcirl llrl()n()rry.
i
I
fl
98 THE I98TCONSTITUTION Sec.26 Secs.27-28 ART.II-DECLARATIONOFPRINCIPLESANDSTATEPOLICIES 99
OF THE REPUBLIC OF THE PHILIPPINES State Policies

Perhaps, for clarity, the latter point should be stressed. The
barrio is not recognized here as the basic political or administrative
unit. The section merely asserts the fact that today, the smallest
existing social unit is the barrio. No matter what the local govern-
ment unit may be in the future, therefore, such unit must ensure the
development of the barrio.
The fulfillment of the constitutional mandate was placed in the
hands of the legislature. Indeed, a Local Government Code was en-
acted by the Batasang Pambansa, but Presidential Decrees issued un-
der the 1973 Constitution touching on local governments manifested a
less than zealous eagerness to relinquish central control over the affairs
of local government. Moreover, the authoritarian structure itself of the
Marcos regime was inhospitable to local autonomy.
The 1987 Constitution once more takes a crack at local autonomy.
Its more ambitious goals for local autonomy and the manner of attain-
The establishment of political dynasties is an effective way of mo-
nopolizing and perpetuating power. Hence, the state is commanded to
prohibit political dynasties. But the argument that the electorate should
be left free to decide whom to choose is not without validity. Partly for
that reason, the meaning of political dynasties has been left for Con-
gress to define. But since Congress is the principal playground of politi-
cal dynasties, the realization of the dream of Commissioner Sarmiento,
that the provision on political dynasties would widen access to political
opportunities, will very probably be exhaustingly long in coming.
Snc.27. Tnn Smrn sHALL MATNTATN HoNESTy AND rNTEcRrry
IN THE PUBLIC SERVICE AND TAKE FOSITIVE AND EFFECTIVE MEASURES
AGAINST GR,AFT AND CORRUPTION.
Snc.28. Susrncr ro REASoNABLE coNDrrroNs pREScRTBED By
LAw, THE Surr lnop,rs AND IMrLEMENTS A poLICy oF FULL puBLIc
DISCLOSUR,E OF ALL ITS TRANSACTIONS INVOLVING PI,'BLIC INTER,EST.

ing them are found in and discussed under Article X.

1. Honesty and integrity in public service.
sHALL GUARANTEE EQUAL ACcEss ro
Src.26. Tnn Smrr
The whole article onAccountability of Public Officers,Article XI,
OPFORTUNITIES FOR PUBLIC SERVICE, AND PROHIBIT FOLITICAL
DYNASTIES AS MAY BE DEFINED BY LAW.
is devoted to this subject. Section 27 is a constitutional confession of
the prevalence of graft and comrption. The policy of full public dis-
closure enunciated in Section 28 complements the right of access to
1. Politicaldynasties.
information on matters of public concern found in the Bill of Rights.
The thrust of this provision is to impose on the state the obligation The right to information guarantees the right of the people to demand
of guaranteeing equal access to public office. Although the provision information; this provision recognizes the duty of officialdom to give
speaks in terms of service, it is meant to be a blow in the direction of information even if nobody demands. The provision, however, is not
democratizing political power.And since power was the subject, it oc- self-executory.rse
casioned intense debate.'' Commissioner Sarmiento explained the ra-
tionale of the provision thus:"8
By including this provision, we widen the opportunities of
competent, young and promising poor candidates to occupy im-
portant positions in the government. While it is tme we have gov-
ernment officials who have ascended to power despite accident of
birth, they are exceptions to the general rule. The economic stand-
ing of these officials would show that they come from powerful
clans with vast economic fortunes.
a

'57See Id. at 73 I -732,935-956.

Fuv Rli('()Rl) 24-29.
'lE/z/. ut 939.

{

Anrrcr.E
Brll or RIcHTS
Srcrtox L. No pBnsoN sHALL BE DEPRIVED oF LIFE' LIBERTY
oR PROPERTY WITHOUT DUE PROCESS OF LAWTNOR SHALL ANY PERSON
BE DENIED TIIE EQUAL PROTECTION OF THE LAWS.
1. Bill of Rights: Protection against abuse of power.
Marcelo H. del Pilar, one of the leading writers of the Philippine
Propaganda Movement, speaking before a gathering of Freemasons,
said:' "The perfection of humanity is not possible without freedom for
the individual. Thus, the existence of social institutions and all politi-
cal organizations and relationships are justified insofar as they have
for their primary aim the defense and protection of freedo-." Fof the
proper defense and protection of freedom, however, a political institu-
tion must possess power. Hence, government becomes the delicate art
of balancing the power of government and the freedom of the governed.
The Phitippine experience under Spanish rule was one of politi-
cal and social system where power far outweighed freedom. The aim of
the Philippine revolution was to achieve a just restraint of governmental
power and a corresponding expansion of individual freedom' The gift
of the American conqueror, after having suppressed the Filipino repub-
lic established by the revolution, was the implantation of a system that
promised the achievement of balance between power and freedom- The
balancing of these two social values, first under the 1935 Constitution
and later under the 1973 Constitution and the accompanying martial
law interlude and now under the 1987 Constitution, is the story of gov-
ernmental power and the constitutional limits on it found in the Bill of
Rights.
rC. Mllut-, Tue Pouncet tNo CoNsnnn-ktuAr Itt',ts tt' ntt I'tnt rrrnt s'
ART. III - BILL OF RIGHTS 101
The totality of governmental power is contained in three great
powers: police power, power of eminent domain, and power of taxa-
tion. These belong to the very essence of government and without them
III no government can exist. They are inherent powers and they belong to
government as much as spirit and mind belong to the essence of man.
A constitution does not grant such powers to government; a constitu-
tion can only define and delimit them and allocate their exercise among
various government agencies. The story of constitutional jurisprudence
is the story of great minds striving to strike a balance between govern-
mental power and personal freedom.
Police power has been characterized as "the most essential, in-
sistent and the least limitable of powers, extending as it does to all the
great public needs."2 Negatively, it has been defined as "that inherent
and plenary power in the State which enables it to prohibit all that is
hurtful to the comfort, safety, and welfare of society."3 The most fre-
quently cited definition, however, has been Chief Justice Shaw's classic
statement which calls police power "[t]he power vested in the legis-
lature by the constitution to make, ordain, and establish all manner of
wholesome and reasonable laws, statutes, and ordinances, either with
penalties or without, not repugnant to the constitution, as they shall
judge to be for the good and welfare of the commonwealth, and of the
subjects of the same."o
Police power rests upon public necessity and upon the right of
a the state and of the public to self-protection.s For this reason, its scope
expands and contracts with changing needs. "The numerous attempts
which have been made to limit by definition the scope of the police
power are only interesting as illustrations of its rapid extension within
comparatively recent years to points heretofore deemed entirely within
the field of private liberty and property rights."u
'?Ermita-Malate Hotel and Motel Operators Association,Inc. v. Mayor of Manila, G.R. No.
L-24693, July 31, 1967, citing Noble State Bank v. Haskell,219 U.S. 412 (l9ll) and Ichong v.
Hemandez, 101 Phil. 1155, 1163 (1957).
31d., citingRnbi v. Provincial Board,39
Phil.660 (1918).
aCommonwealth v. Alger, 7 Cush, 53 (Mass. 1851), quoted in U.S. v. Pompeya, 31 Phil.
245,253-254 (1915); Churchill v. Rafferty, 32 Phil. 580, 603 (1915); People v. Pomar, 46 Phil.
440,447 (t924).
5U.S. v. Toribio, 15 Phil.85,97 (1910); Iloilo Ice and Storage Co. v. Municipal Council of
Iloilo, 24 Phil. 47 I.485 (1913); Chuoco Tiaco v. Forbes,40 Phil.1122, 1126 (1913); Cu-Unjieng
4O ( 1957)
v. Patstonc,42 Phil. ttl8 (1922).
6('hurchill v. Rall'crty, 32 Phil. 5110,601-602 (1915)l (J.S. v. Salaveria,39 Phit. 102, lOtl
( l() lll); l'coplc v. I'onrur, 4(r l'hil. 440, 445 ( 1924): ('alalang v. Willianrs, 70 Phil. 726, 734 ( l94O).
J
 THE 1987 CONSTITUTION Sec. I
OFTHE REPUBLIC OFTHE PHILIPPINES
The pervasive reach of police power has been used to justify such
public healthmeasures as requirements to make house repairs,T compul-
sory connection to a city sewerage system,8 the licensing of the practice
of medicine,n the regulation of cattle imports,t0 and the sale of meat."
Police power has likewise been used to justify public safety mea-
sures such as building regulations,'2 the regulation of the carrying of
deadly weapons,r3 the requirement of rotational participation in patrol
duty,'o regulation of gasoline stations's and movie theaters,'6 and the use
of city roads.r'
In the field of public morals,police power has been used as the ba-
sis forjudicial approval of legislation punishing vagrancy and classify-
ing a pimp as a vagrant,'8 regulating the operation of public dance halls,'e
prohibiting gambling,'o regulating the days when panguingui may be
played,'z' licensing cockpits,2'z penalizing various activities connected
with the use of opium,'3 prohibiting the operation of pinball machines,2a
regulating the operation of motels and hotels,2s and regulating establish-
ment of massage parlors.26 But where a municipality refused to give
7U.S. v.Abendan,24 Phil. 165 (1913).
sCase v. Board of Health,24 Phil.250 (1913).
eU.S. v. Gomez Jesus, 3l Phil. 218 (1915); People v. Ventura, G.R. No. L-15079, January
3t, 1962.
roCruz v. Youngberg,56 Phil. 234 (1931).
trPeople v. Sabarre, 65 Phil. 684 (1938); Co Kiam v. City of Manila, 96 Phil. 649 (1955).
rzFabie v. City of Manila, 2l Phil. 486 (1912); Bastida v. City Council of Baguio, 53 Phil.
ss3 (re29).
(1914).
'3U.S. v. Villareal,28 Phil. 390
(1915).
'aU.S. v. Pompeya,3l Phil. 245
rsJavier v. Eamshaw,64 Phil. 626 (1937).
r6People v. Chan,65 Phil.611 (1938).
rTCalalang v. Williams, 70 Phil. 726 (19210); Luque v. Villegas, G.R. No. L-22545, Novem-
ber 28, 1969.
r8U.S. v. Giner Cruz,38 Phil.677 (1918)
reU.S. v. Rodriguez, 38 Phil. 759 (1918); Sarmiento v. Belderal, G.R. No. L-15719, May
13, 1961; Lopera v. Vicente L-18102, June 30, 1962.
20U.S. v. Pacis, 3l Phil. 524 (1915); U.S. v. Espiritu-Santo, 23 Phil. 610 (t912); U.S. v.
Joson,26 Phil. I (1913); People v. Chan Hong,65 Phil.625 (1938).
2rU.S. v. Salaveria,39 Phil. 102 (1918). Panguingui is a card game popular in rural areas.
22Pedro v. Provincial Board ofRizal,56 Phil. 123 (1931).
23U.S. v. Ten Yu,24Phil.l (1912).
2aUy Ha v. City Mayor, G.R. No. L-14149, May 30, 1960; Miranda v. City of Manilt,
L-17252,May 31,1961.
2sErmita-Malate Hotel and Motel Opcrators Asso,ciation v. City Mayor, C.R. No. l--2469.1,
July 31.1967.
rnVelusco v. Muyor Villegns, (i.R. No. 24I5.1, llehrrrlry 14. lgtl1.
Sec. I ART. III - BILL OF RIGHTS 103
any permit for night clubs and any license for professional dancers, the
Court declared the ordinance unconstitutional as going beyond mere
regulation into prohibition of a profession or calling which, properly
regulated, can be legitimate.rT Similarly, even conceding that the Er-
mita-Malate area teems with houses of ill-repute and establishments
of the like which the City Council may lawfully prohibit, it is base-
less and insupportable to bring within that classification sauna parlors,
massage parlors, karaoke bars, night clubs, day clubs, supper clubs,
discotheques, cabarets, dance halls, motels and inns. The enumerated
establishments are lawful pursuits which arc not per se offensive to the
moral welfare of the community.,s
Moreover, while gambling may prohibited, when it is allowed, the
courts will not pass judgment on the choice of Congress. "The morality
of gambling is not a justiciable issue. Gambling is not illegal per se.
While it is generally considered inimical to the interests of the people,
there is nothing in the Constitution categorically proscribing or penal-
izing gambling or, for that matter, even mentioning it at all. It is left to
the discretion of Congress to deal with the activity as it sees fit." Nor
may local governments, in spite of the provisions on local autonomy,
contravene the judgment of Congress not to prohibit gambling.,n
Under the general rubric of promoting the general welfare, en-
actments have been upheld regulating the slaughter of carabaos,3o pre-
scribing provisions for the suppression of agricultural pests,rr regulating
nuisances,r2 laying down rules for the deportation of aliens,33 regulating
building construction34 and the activities of town criers and the noise of
bells,3' prescribing registration of land under the Torrens System,36 zon-
27De
la Cruz v. Judge Paras, G.R. Nos.4257l-72,July 25, 1983.
'?8City of Manila v. Judge Laguio, G.R. No. 118127, Apnl n,2C[.5.
2eMagtajas v. Pryce Properties, 234
SCRA 255, 268 (1994). This is a much disputed issue
in local autonomy.
30U.S. v. Toribio, l5 Phil.85 (1910).
rrPunzalan v. Ferriols, 19 Phil.214 (1911).
r2lloilo lce and Cold Storage Co. v. Municipal Council of Iloilo, 24 Phil. 4?l (1913);
Churchill v. Raff'erty,32 Phil.580 (1915).
"tJ.S. v. De los Santos, 33 Phil. 397 ( l9 l6); Chuoco Tiaco v. Forbes, 40 Phil. 1 122 ( 1913).
r'l('u-llnjieng v. Patstone,42 Phil. 818 (1922).
''l'cr4rlc v. (ilbrit:1. 4.1 I'hil. 641 ( 1922).
r"l)irct lor ol l,;rrrls v. Alrtllu,54 I'hi1.455 ( l93O).
 I9STCONSTITUTION Sec.l
104 THE
OF THE REPUBLIC OF THE PHILIPPINES
ing regulations,3T moratodum laws,rs anti-graft laws designed to curb
activities of public officials,'n restrictions on foreign exchange,no and
limitation on the net profits realized by public utilities.4'
The only areas, however, where the use of police power has shown
significant development and change in Philippine jurisprudence are the
areas of labor, agricultural tenancy, and social legislation. The direction
of change has been away from laissez faire. With unhesitating bold-
ness police power has been used even in the face of apparent conflict
with both the freedom of contract and the sacredness of contractual
obligations.o2 Even the employer's choices may also be curtailed. Thus,
the law requiring the decision of a labor arbiter ordering reinstatement
pending appeal has been allowed even when the employer is willing to
post a bond.o'
The almost awesome character of police power shown by the vast-
ness of its reach comes out in greater relief when seen together with the
presumption of constitutionality which its exercise enjoys. "The pre-
sumption is all in favor of validity. ... The judiciary should not lightly
set aside legislative action when there is no clear invasion of personal
or property rights under the guise of police regulation.aa This has been
the constant holding of the Supreme Court.4s
Vast as the power is, however, it must be exercised within the
limits set by the constitution. In the words of the leading case of U.S. v.
37Seng
Kee and Co. v. Earnshaw,56 Phil. 204 (1931); People v. Fajardo, 104 Phil.443
(r e58).
38Rutter v. Esteban,93 Phil. 68 (1953).
reMorfe v. Mutuc, L-20387, January 3l , 1968.
{Phil. American Life Insurance Co. v. Auditor General, G.R. No. L-19255, January 18,
1968.
arAlalayan v. National Power Corporation. G.R. No. L-24396, July 29, 1968.
In Gomez v. Palomar,L-23645, October 29,1968, Femando, J., concurring, said that Re-
public Act 2631, providing for the raising of funds for the Philippine Tuberculosis Society by the
issuance of anti-TB postal stamps could have been treated as an exercise of the police power. The
majority treated it as an exercise of the taxing power.
a2People v. Pomar,46 Phil. zg0 (1924); People v. Reyes,67 Phil. I 87 (1939); Ongsiako v.
Gamboa, 86 Phil. 50 (1950); Primero v. Court ofAgrarian Relations, lol Phil. 675 ( | 957)' and thc
agricultural tenancy cases discussed under Obligations of Contracts.
a3Maranaw Hotel v. National Labor Relations Commission, 238 SCRA 190. l9l ( 1994).
4U.S. v. Salaveria,39 Phil. 102, I ll ( l9l8).
asE.g., Case v. Board of Health, 24 Phil. 250,276 (l9ll): ('hurchill v. Rllli'rly. .1J l'ltil.
58O,602 (1915); Ebona v. I)aot, ll5 l'hil. 3()9 (1950): firnritl Mal:rlc lftrlcl utxl Molt'l ()pt'r':tlols
v. City Mayor ol Mlnill. 1,246()l,.luly \l, l(l(r7: Morli' v. Mttlttt, (i.ll No. l. .)Olll/..1;rrrrrrrry
I I . l()()tl.
Sec. I ART. III _ BILL OF RIGHTS
Tbribio,o6 the legislative "determination of what is a proper exercise of
its police power is not final or conclusive, but is subject to the supervi-
'i
::,
sion of the courts." "[T]he exercise of such police power," says a 1967
; decision, "insofar as it may affect the life, liberty or property of any
person is subject to the judicial inquiry."a'And the principal yardsticks
against which such exercise must be measured are the "due process'o
clause and the "equal protection clause."
Finally, it should be noted that the restrictions found in the Bill of
Rights, as constitutional law, are directed against the state. They do not
govern the relations between private persons. However, almost all the
protections against the state found in the Bill of Rights have been made
applicable as civil law to relations between private persons through
Article 32 of the Civil Code.
2. Life,liberty,property.
The methodology for the study of the due process and equal pro-
tection clauses and of their application to Philippine litigation was set in
the early days of the American regime. Said one decision:o*
The guaranties extended by the Congress of the United
States to the Philippines have been used in the same sense as like
provisions found in the United States Constitution. While the "due
process of law" and "equal protection of the laws" clause of the
Philippine Bill of Rights is couched in slightly different words
than the corresponding clause of the Fourteenth Amendment to
the United States Constitution, the first should be interpreted and
given the same force and effect as the latter. ... The meaning of the
FourteenthAmendment has been announced in classic decisions of
the United States Supreme Court. . .
The same decision, carrying to the Philippines established Ameri-
can doctrine, made the affirmation that the reach of the protection
touched all persons, be they citizens or aliens, natural or corporate:4e
4615
Phil. 85,98 (19t0).
oTErmita-Malate Hotel and Motels Operators, supra note 42.
asSmith, Bell & Co. v. Natividad,40 Phil. 136,1,{4-145 (1919),citing Kepner v. U.S., 195
tJ.S. lm(1901);Serrav.Mortiga,2(XU.S.470(1907);U.S.v.Bull, l5Phil.7(1910).
{"4{)Phil.at 145.r'iring,infavorof aliens,YickWov.Hopkins, 118U.S.356(1886);Truax
v. Ruich,219 tJ.S.33 (1915), and, in favorofcorporate persons, Santa Clara County v. Southern
lheilitR.R,('o. ll1ltl.S.l94(ll'llt6):l)cnrhinttMiningCo.v.Pcnnsylv;tnia. l25tl.S. l8l (llltlt'l)l
106 TI{E 1987 CONSTITUTION
* OFTHE REPUBLIC OFTHE PHILIPPINES
The guaranties of the Fourteenth Amendment and so of the
first paragraph of the Philippine Bill of Rights, are universal in
their application to all persons within the territorial jurisdiction,
without regard to any differences of race, color, or nationality. The
word "person" includes aliens. ... Private corporations, likewise,
are "persons" within the scope of the guaranties in so far as their
property is concerned. ...
The guarantee protects liberty. Justice Malcolm, in one of the ear-
lier cases, elaborated on the subject thus:so
Civil liberty may be said to mean that measure of freedom
which may be enjoyed in a civilized community,consistently with
the peaceful enjoyment of like freedom in others. The right to lib-
erty guaranteed by the Constitution includes that right to exist and
the right to be free from arbitrary personal restraint or servitude.
The term cannot be dwarfed into mere freedom from physical re-
straint of the person of the citizen, but is deemed to embrace the
right of man to enjoy the faculties to which he has been endowed
by his Creator, subject only to such restraints as are necessary for
the common welfare. As enunciated in a long array of authorities
including epoch-making decisions of the United States Supreme
Court, liberty includes the right of the citizen to be free to use his
faculties in all lawful ways; to live and work where he will; to earn
his livelihood by any lawful calling; to pursue any avocation, and
for that purpose, to enter into all contracts which may be proper,
necessary, and essential to his carrying out these purposes to a suc-
cessful conclusion. The chief elements of the guaranty are the right
to contract, the right to choose one's employment, the right to la-
bor, and the right of locomotion.
Malcolm likewise borrowed from Apolinario Mabini calling lib-
erty "freedom to do right and never wrong ... ever guided by reason
and the upright and honorable conscience of the individual."'' The core
Covingon & L. Turnpike Road Co. v. Sandford, 164 U.S. 578 (1896). See also Kwong Sing v. City
of Manila,4l Phil. 103 (1920) and other cases which reaffirm that the civil rights of aliens are
basically the same as those of citizens. The exceptions and the rule on the political rights of aliens
willbe discussed elsewhere.
There is no significant Philippinejurisprudence on the inherent differences between niltural
persons and artificial persons for purposes of the protection given by the due pn^-ess cltusc.
$Rubi v. Prorincial Board of Mindoro,39 Phil.660.705 (1919).
1t
Id.
Sec. I Sec. 1 ART. III _ BILL OF RIGHTS
of protected liberty includes "not merely freedom from bodily restraint
but also the right of the individual to contract, to engage in any cofirmon
occupations of life, to acquire useful knowledge, to marry, establish a
home and bring up children [and] to worship God according to the dic-
tates of cons cience."5'
And the importance of liberty in Philippine tradition was empha-
sized by Justice Concepcion saying that "the preservation of liberty is
such a major preoccupation of our political system that, not satisfied
with guaranteeing its enjoyment in the very first paragraph of Section
(1) of the Bill of Rights, the framers of our t19351 Constitution devoted
paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16),
(17), (18), and (21) of said Section (1) to the promotion of several as-
pects of freedom."53 These have been preserved in the 1987 Constitu-
tion.
More recently, under the guidance of Chief Justice Renato Puno,
a new safeguard of liberty, the Writ of Amparo, borrowed for Latin
American tradition, has been adopted. The new rule provides:
SECTION 1. Petition. - The petition for a writ of amparo
.
is a remedy available to any person whose right to life, liberty
and security is violated or threatened with violation by an unlaw-
ful act or omission of a public official or employee, or of a private
individual or entity.
The writ shall cover extralegal killings and enforced disap-
pearances or threats thereof.
However, a threatened demolition of a dwelling is not included
among the enumeration of rights as stated in the above-quoted provi-
sion since it does not constitute right to life,liberty and security."
But where the only limitation imposed upon police officers is that
their movements within the premises of the camp shall be monitored,
that they have to be escorted whenever the circumstances warrant that
they leave the camp, and that their estimated time of departure and ar-
"rMcycr v. Nebraska, 262 U.5. 3m, 399 (1923).
"l'coplc v. Hcrnandez,99 Phil.515,551-2 (1956), cited in Baking v. Director ofPrisons,
(i.R. No. l.-.1().1(r4, July 28, l9(rtt, Fcrnando, J., dissenting.
"('urrlus v. Nupico Ikrrncowrrcrs,G.R. No. ItJ2795,June 5.2(Dll.
IO8 THE 1987 CONSTITUTION Sec.
OF THE REPUBLIC OF THE PHILIPPINES
rival shall be entered in a logbook, there is no deprivation of liberty.55
Moreover, the case of In re Petitionfor Habeas Corpus upheld the blan-
ket restriction on contact visits of military detainees as a practice rea-
sonably related to maintaining security. Contact visits make it possible
for the detainees to hold visitors andjail staffhostage to effect escapes.
Contact visits also leave the jail vulnerable to visitors smuggling in
weapons, drugs, and other contraband. The security consideration in the
imposition of blanket restriction on contact visits outweighs the senti-
ments of the detainees.'6
Protected property has been deemed to include vested rights such
as a perfected mining claim," or a perfected homestead,ss or a final judg-
ment.se It also includes the right to work* and the right to earn a living.6'
One's employment, profession, trade, or calling is protected property.6'?
A license to operate a cockpit, however was not considered protected
property. It was deemed merely a privilege withdrawable when public
interest required its withdrawal.u' In like manner, it has been ruled that
a certificate of public convenience granted to a transportation company
confers no property right on the route covered thereby.s But even a
privilege may evolve into some form of property protected by the Con-
stitution, as for instance when a holder of an export quota, has been
enjoying it for so long and has put in substantial investment making the
business the source of employment for thousands.65
has also been asserted that public office is not property but a
It
"public trust or agency."uu This is not to say, however, that the right to
55Manalo v. PNP Chief, G.R. No. 178920, October 15,2007.
56G.R. No. 160792, August 25, 2005. Block v. Rutherford, 468 U.S. 576 (1984).
s?McDaniel v. Apacible, 44 Phil.248 (1922); Goldcreek Mining Co. v. Rodriguez, 66 Phil.
2s9 (1938).
58Balboa v. Farrales,5l Phil.498 (1928); Segovia v' Garcia,94 Phil' 300 (1954); Isaac v'
Tan Chuan lrong,89 Phil. 24 (1951).
5eChina Insurance and Surety Co. v. Far Eastern Surety and Insurance Co.' 63 Phil' 320
(1936).
oPhil. Movie Pictures Workers'Assn. v. hemier hoductions, Inc., 92 Phil. 843 (1953).
6rNational Labor Union v. Court of Industrial Relations,68 Phil. 732 (1939).
62Callanta v. Camation Phil., Inc., 145 SCRA 268,279 (October 28, 1986); Crespo v. Pro-
vincial Board, 160 scRA 66 (1988); Century Textile Mills, Inc. v. National Labor Relations, l6l
scRA s28 (1988).
6rPedro v. Provincial Board ofRizal,56 Phil. 123 (1931).
ilLuque v. Villegas, G.R. No. L-22545, November 28, 1969.
6sAmerican Intcr-Fashion (\rrporttion v. Oflice ofthe President. 197 SCRA 409 (1991 ).
,u"'Thc husic itlcu ol govcrnrncnt in thc l,hilippine lsltnds, as in the Unitcd Sttttcs, is thflt of
rr poprrlur rcl)rcsclltiltivc llovenunenl, lhc olliccrs hcing rrtcrc ngcnts ttntl not rttlcts ol the Pcoplc,
1 Sec. 1 ART. III _ BILL OF RIGHTS
office is not a protected right.6'As the court has asserted, "due process
may be relied upon by public officials to protect the security of tenure
which in the limited sense is analogous to property."us Thus, when the
life of existing license of harbor pilots was shortened by an adminis-
trative order to a certain date before their retirement but without any
hearing, the Court ruled that the order was a violation of the right of
the harbor pilots saying: "It is this pre-evaluation cancellation which
primarily makes PPA-AO No.04-92 unreasonable and constitutionally
infirm.In a real sense, it is a deprivation of property without due pro-
cess of law."uo
On this same reasoning too, it can be said that pronouncements
which say that licenses are not protected property but mere privileges
cannot be taken as a sweeping declaration that revocation of licenses
never requires opportunity for a hearing. "Once licenses are issued ...
continued possession may become essential in the pursuit of a liveli-
hood. Suspension ofissued licenses thus involves state action that adju-
dicate important interests of the licensees."To
The classification of property into historical treasures or land-
marks, to the extent that it will involve the imposition of limits on
ownership, must also be done with both procedural and substantive due
process.T'
More recent decisions continue to clarify the extent of the protec-
tion given to property. Thus, a policy against employees having marital
or romantic relationship with employees of competitor companies can
be justified if based on the right to guard a company's trade secrets, for
one where no one man or set of men has a proprietary or contractual right to an office, but where
every officer accepts office. . .as a trust for the people whom he represents." Cornejo v. Gabriel,41
Phil. 188, 194 (192O),citing Taylor v. Beckham, 178 U.S.548 (1899).
6TSegovia v. Noel,47 Phil.543 (1925); Borja v. Agoncillo,46 Phil.432 (1924). The subject
more properly belongs to the Law on Public Officers and the Civil Service System whose estab-
lishment is authorized by the Constitution itself.
6*Morfe v. Mutuc, L-20387, January 31, 1968. The subject more properly belongs to the
l.aw of Public Officers and the Civil Service System, whose establishment is authorized by the
(irnstitution.
6uCorona v. United Harbor Pilots Association of the Phils., G.R. No. 111953, 283 SCRA
1t,43.
/r'llell v. Burson, 402. U.S. 535, 539 ( 197 I ).
"Annyuntl Nuvy('luhol'Manila,lnc.v.(\rurtofAppcals,(i.R.No. ll0223,April lt'1997.
110 THE 1987 CONSTITUTION Sec.
OF THE REPUBLIC OF THE PHILIPPINES
instance, those of a pharmaceutical company.T'?Where, however, there
is no reasonable necessity for the prohibition, it is an illegal limitation
on employment as property.T3
A law allowing only skilled workers to be deployed for overseas
employment can be valid. No right is absolute, and the proper regula-
tion of a profession, calling, business or trade has always been upheld
as a legitimate subject of a valid exercise of the police power by the
state particularly when their conduct affects either the execution of le-
gitimate governmental functions, the preservation of the State, or the
public health and welfare and public morals.?4
Private commercial blood banks are protected property. However,
although their phase out can be disadvantageous to the owners as it can
affect their businesses and existing contracts with hospitals and other
health institutions, it can be justified by the duty of the State to promote
the general welfare. The State may interfere with personal liberty, with
property, and with business and occupations in order to secure the gen-
eral welfare.Ts
But an Executive Order requiring the closure of bus terminals in
the city was found to be an unreasonable exercise of police power"as it
would seriously inconvenience the riding public. Moreover, even if the
E.O. were valid, the MMDA would be the wrong person to carry it out
since this matter has been given by law to DOTC.^
The constitutional protection of the right to life is not just a pro-
tection of the right to be alive or to the security of one's limb against
physical harm. The right to life is also the right to a good life. The im-
portance of the quality of living now finds stronger emphasis in Article
XIII, on social justice, and even the life of the unborn finds protection
in the 1987 Constitution." The policy against nuclear arms78 as well as
?2Duncan Association of Employees v. Glaxo Wellcome, G.R. No. 162994, September 17,
2004.
73Star Paper v. No. 164774, Apnl n,20[,6.
Simbol, G.R.
TaExecutive Secrctary v. CA, G.R. No. 131719, May 25,2N4.
TsBeltran v. Secretary of Health, G.R. No. 133640, November 25, 2005.
T6lucena Grand Centml Terminal,Inc. v. JAC Liner, Inc., G.R. No. 14t1339, F'ebruury 23,
2005,452 SCRA 174, 185.
?TArticle II, Section 12.
?rArticle II. Scction 8.
I Sec. I ART. III - BILL OF RIGHTS n1
the abolition of the death penaltyle are also reflective of the high value
the Constitution places on life.
3. Hierarchy of rights.
In one same sweeping sentence, the Constitution has etched out
the basic protection given to life,liberty and property. The impression
is thus given that the Constitution gives to property the same degree
and quality of protection that it gives to life and liberty. It was in fact
this impression, albeit enoneous, which prompted a move in the 1971
Constitutional Convention to delete "property" from the due process
clause. The move was motivated by the desire to relegate property right
to a level inferior to the right to life and liberty. The move failed. But
Convention deliberations clearly recognized that the social character of
private property, emphatically enunciated in [1935] Article II, Section
6, definitely placed property in a position inferior to life or liberty.E.
This recognition of the inferior position occupied by property was
in fact not an enunciation of a novel principle. Already echoing estab-
lished jurisprudence in 1967, Justice Fernando categorically stated:
"What cannot be stressed sufficiently is that if the liberty involved were
freedom of the mind or the person, the standard for the validity of gov-
emmental acts is much more rigorous and exacting, but where the lib-
erty curtailed affects at the most the rights of property, the permissible
scope of regulatory measure is wider."*' Even Justice Makasiar, writing
under the 1973 Constitution could do no better than appeal to American
and Philippine jurisprudence which antedated the 1973 Constitution:"
While the Bill of Rights also protects property rights, the pri-
macy of human rights over property rights is recognized. Because
these freedoms are "delicate and vulnerable, as well as supremely
precious in our society" and the "threat of sanctions may deter
their exercise almost as potently as the actual application of sanc-
tions," they "need breathing space to survive," permitting govern-
ment regulation only "with narrow specificity."
ToArticle III, Section l9(l).
*'Session of November 25, 1 972.
trErnrita-Malttc llotcl and Motel Opcrators v. City of Manila,20 SCRA 849,865-6 (1967).
NrPhilippinc llkxrnring Mills linrployccs Organization v. Philippinc Blooming Mills Co.,
lnc..5O S('RA lll().2(l? I ( l()7.1).
tt2 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Property and property rights can be lost through prescrip-
tion; but human rights are imprescriptible. If human rights are
extinguished by the passage of time, then the Bill of Rights is a
useless attempt to limit the power of government and ceases to be
an efficacious shield against the tyranny of officials, of majorities,
ofthe influential and powerful, and ofoligarchs political, eco-
- Thus it is that property must also enjoy the protection of the due
nomic or otherwise.
In the hierarchy ofcivil liberties, the rights offree expression
and of assembly occupy a preferred position as they are essential to
the preservation and vitality of our civil and political institutions;
"gives
and such priority these liberties the sanctity and the sanction
not permitting dubious intrusions."
The superiority of these freedoms over property rights is un-
derscored by the fact that a mere reasonable or rational relation
between the means employed by the law and its object or purpose
- that the law is neither arbitrary nor discriminatory nor oppres-
sive would suffice to validate a law which restricts or impairs
-
property rights. On the other hand, a constitutional or valid in-
fringement of human rights requires a more stringent criterion,
namely existence of a grave and immediate danger of a substantive
evil which the State has the right to prevent.
This is not to say, however, that the right to property is not a basic
right. Property has an intimate relation with life and liberty. Shylock
was right: "[Y]ou take my life, when you do take the means whereby I
live." The Founders of the American Constitution, from which the Phil-
ippine due process clause has been lifted, were in fact keenly aware that
protection of property was a primary object of the social compact and
that the absence of such protection could well lead to anarchy and tyr-
anny.sr Moreover, experience does teach a very clear lesson that prop-
erty is an important instrument for the preservation and enhancement of
personal dignity. The poor are the oppressed precisely because they are
poor. In their regard therefore property is as important as life and liberty
property is really to protect their life and their
- and to protect their
liberty. If in today's hierarchy of values property tends to be relegated to
a lower level than life or liberty, it is not because its intimate connection
with life or liberty is being forgotten. On the contrary, today's hierarchi-
cal arrangement of values is precisely a recognition of thc importancc
of property for man. Hence, the precise ob.iect tlf nrorc intcnsivc ittttl
stSt tn rt l'ruvr ntr lt)
uw,tnlz, l Rn;trrs
Sec. I
ART. III - BILL OF RIGHTS 113
extensive government regulation of property is to make its beneficent
purpose equitably available to all. Property is more closely regulated
not in order to oppress the owner but in order to impress upon him the
social character of what he holds.
process clause. One may not agree with the elder John Adams that prop-
erty is "as sacred as the laws of God," but to deny protection to prop-
erty altogether is to invite both anarchy and tyranny. Under the present
provision, understood in the light of established jurisprudence on the
position of property in the hierarchy of constitutional values, property
stands a good chance of serving and enhancing the life and liberty of
all. Running through various provisions of the Constitution in fact, now
especially under Article XIII, are various provisions to protect property
always with he explicit or implicit reminder that property has a
- butdimension and that the right to property is weighted with a social
social
obligation.
4. Due process as procedural fairness.
The early history of the due process clause in American constitu-
tional law indicates that the restraint was construed mainly in the narrow
sense that a legislature must provide "due process in the enforcement of
law." Thus, due process was understood to relate chiefly to the mode of
procedure which government agencies must follow; it was understood
as a guarantee of procedural fairness. Its essence was expressed by
Daniel Webster as a "law which hears before it condemns."'o As one
early case put it, "it is not possible to hold that a party has, without due
process of law, been deprived of his property, when, as regards the is-
sue affecting it, he has, by the laws of the State, a fair trial in a court of
justice, according to the mode of proceeding applicable to such case.85
Among early decisions in Philippine jurisprudence can be found
attempts to define the concept of due process. Many of them are gener-
alized definitions which fuse together the elements of both procedural
an{ substantive due process as well as the elements of equal protection.
Thus, U.S. v. Ling Su Fan'u proclaims that due process simply means:
*'rl
rrlrcz v. l)ircekrr of Lantls,47 t'hi1.2J,32 (1924).
*'l )rrvirlsott v. Ntw ( )rlt'itrts, txr I l.S. ()7, IO5 ( I ttTlt).
i"lOl'lll. lO,l.lll,)(l(Xlt'l),rrl.rrrlttsttl:tt(irtv'l.v. l.irtpStrlr:rlt, l5l'lril.5tl,7l(l9l())
ll4 THE I9STCONSTITUTION Sec. I
OF THE REPUBLIC OF THE PHILIPPINES
First. That there shall be a law prescribed in harmony with
the general powers of the legislative department of the Govern-
ment; Second. That this law shall be reasonable in its operation;
Third. That it shall be enforced according to the regular methods of
procedure prescribed; and Fourth. That it shall be applicable alike
to all citizens of a state or to all of a class.
Forbes v. Chuoco TiacosT has this generalized statement:
Due process of law, in any particular case, means such an
exercise of the powers of the government as the settled maxims
of law permit and sanction under such safeguards for the protec-
tion of individual rights as those maxims prescribe for the class of
cases to which the one in question belongs.
Lopez v. Director of l-ands,88 a mortgage foreclosure case, recalls
Webster's oft-quoted remark:
as Mr. Daniel Webster said in his
By "due process of law,"
arguments before the Supreme Court of the United States in the fa-
mous Dartmouth College case, "is more clearly intended the gen-
eral law, a law which hears before it condemns; which proceeds
upon enquiry, and renders judgment only after trial. The meaning
is that every citizen shall hold his life, liberty, property and immu-
nities, under the protection of general rules which govern society."
... "Due process of law" contemplates notice and opportunity to
be heard before judgment is rendered, affecting one's person or
property. "Due process of law" is not every act, legislative in form.
... Arbitrary power, enforcing its edicts to the injury of the person
and property of the citizens, is not law.
That the concept was not a fixed and static one was clearly ac-
knowledged. "[W]hat is due process of law depends on circumstances.
It varies with the subject matter and the necessities of the situation."*'
el6 Phil. 534,5'12 (1918).
s47 Phil. 23,32 (1924). ScHwenrz points out that in Webster's conception, duc prtress is
already more than a procedural guarantee, since the law must be a "Sencral law," i.e., t luw which
is not discriminatory. ScHwARrz, THr Rrc;ms or Pnom:nrv23 (19641. Philippiuc dccisious gcucrully
look on Webster's definition as merely one of procedurttl duc pnrcss. l,'.3., Mnclhingkil v. Yrtt:o,
G.R. No. L-231"14, Septembcr lll, l9(t7.
8ul5 Phil. ut 73.
ART. III _ BILLOFRIGHTS 115
Amidst such abundance of indistinct definitions, one case, Banco
Espaftol Filipino v. Palanca,presents what has been considered a clear
delineation of the essentials of procedural fairness in judicial proceed-
ings. The Court said:m
As applied to judicial proceedings ... it may be laid down
with certainty that the requirement of due process is satisfied if
the following conditions are present, namely: (1) There must be a
court or tribunal clothed with judicial power to hear and determine
the matter before it; (2) jurisdiction must be lawfully acquired over
the person of the defendant or over the property which is the sub-
ject of the proceedings; (3) the defendant must be given an op-
portunity to be heard; and (4) judgment must be rendered upon
lawful hearing.
The enumeration gives the minimal requirements. They are
spelled out in the details of procedural statutes and the Rules of Court.
Due process, however, is not always judicial process. This has
always been recognized. Due process does not always include "actor,
reus, judex, regular allegations, opportunity to answer and a trial ac-
cording to some settled course of judicial proceedings."n' These are re-
quired in courts ofjustice; but frequently legal controversies have to be
decided not by courts but by administrative bodies. And administrative
bodies are not always bound by the finer points ofjudicial due process,
though bound, too, they are by the due process clause. For the pur-
pose of this essay, however, suffice it here to summarize what the lead-
ing case of Ang Tibay v. Court of Industrial Relationse2 has called the
"cardinal primary" requirements in administrative proceedings. These
requirements Justice Laurel gleaned from an array of American deci-
sions. They are: (1) The right to a hearing, which includes the right
to present one's case and submit evidence in support thereof; (2) The
tribunal must consider the evidence presented; (3) The decision must
have something to support itself; (4) The evidence must be substantial.
Substantial evidence means such reasonable evidence as a reasonable
mind might accept as adequate to support a conclusion; (5) The deci-
{'37 Phil. 921, 934 (l9l 8).
')tli.g., Irtrrbcs v. Chuoco Tiaco, l6 Phil. 534 (1910): Tan Te v. Bell,27 Phil.354 (1914):
ll.S.v.(iorlczJcsus,3l l'hil.2ltt(1915)i(lityv.Posadas,48Phil.309(1925);Austriav.Solicitor
(icrtcrul. 7l l'lril. 2lttl ( l()41 ).
"/(r() I'hrl. 6 lt ( l(r,l0).
116 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
sion must be based on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected; (6) The
tribunal or body or any of its judges must act on its own independent
consideration of the law and facts of the controversy, and not simply
accept the views of a subordinate; (7) The Board or body should, in
all controversial questions, render its decision in such manner that the
parties to the proceeding can know the various issues involved, and the
: administrative proceedings when the hearing officer is not the same
reason for the decision rendered.
I
Whether in judicial or administrative proceedings, therefore, the
heart ofprocedural due process is the need for notice and an opportu-
nity to be heard. Moreover, what is required is not actual hearing but a
real opportunity to be heard. Thus, one who refuses to appear at a hear-
ing is not thereby denied due process if a decision is reached without
waiting for him. Likewise, the requirement of due process can be satis-
fied by subsequent due hearing.e3
This has also been the gist of later decisions.oo It is a rule that guar-
antees fairness in the enforcement of laws which effect deprivation. As
a rule of fairness, procedural due process helps achieve two purposes.
e3Assistant Executive Secretary v. Court of Appeals, G.R. No. 7676l,Ianuaty 9, 1989;
Central Bank v. Court ofAppeals, 220 SCRA 536 (1993). A briefer statement of the requirements
is the following: Briefly, however, the following are required: "(l) the right to actual or construc-
tive notice of the institution of proceedings which may affect a respondent's legal rights; (2) a
real opportunity to be heard personally or with the assistance of counsel, to present witnesses and
evidence in one's favor, and to defend one's rights; (3) a tribunal vested with competent jurisdic-
tion and so constituted as to afford a person charged administratively a reasonable guarantee of
honesty as well as impartiality; and (4) a finding by said tribunal which is supported by substantial
evidence submitted for consideration during the hearing or contained the records or made known
to the parties affected." Fabella v. Court of Appeals, G.R. No. 110379, November 28, 1997 ,282
SCRA 256, 267 citing Ai Manila, Inc. v. Balatbat, 38 SCRA 489, 492 (1971); Ang Tibay v. Court
of Industrial Relations, 69 Phil. 635 (1940).
In administrative proceedings, the quantum ofproofrequired is only substantial evidence.
Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.
qE.g.,
Mendoza v. National Housing Authority, 111 SCRA 637 (January 30, 1982), on
ejectment of squatters; Malayan Insurance v. Salas,90 SCRA 252(May 25,1979), on enforcement
of responsibility of surety; Molino v. Court of Appeals, G.R. No.59283, July 3O,1982; Benigna v.
Philippine Maritime Institute, G.R. No. 58610, September 30, 1982, on the discipline of students.
For purposes of a hearing on an application for a certificate of public convenience, aside from
notice by publication there is required individual notice to operators affected and whose names
appear in the list attached to the order. Cordero v. Public Service Commission, G.R. No. 324U9,
March 28, 1983.
The provision of Presidential l)ecree No. 6 authrlrizing summruy tlisrnissul ol civil scrvicc
oflicers who are "notoriously unrlesirahlc" is iruplicitly uplrt:kl, hut witlrout tliscusri()n, in Oct()t v.
Yhtficz, ll I S('Rn 7() (.llrrulry 18, l()lt?).
Sec. 1 ART. III - BILL OF RIGHTS
Instrumentally, it contributes to accuracy and thus minimizes errors in
deprivations. More intrinsically to the person who is the subject of de-
privation, it gives him a sense of rational participation in a decision
that can affect his destiny and thus enhances his dignity as a thinking
person.
It has recently been held that, while fairness is not violated in
person who decides the case,e5 there is violation of due process when the
officer who reviews a case is the same person whose decision is on ap-
peal.e6 It has also been held that, while notice and hearing are required in
judicial and quasi-judicial proceedings, they are not prerequisites in the
promulgation of general rules.e7 But fixing rates, being a quasi-judicial
process, requires hearing.e8
A relatively recent development in Philippine law is the articula-
tion of specific due process guidelines for the handling of disciplinary
cases in schools. The development has come about as the balancing
instrument in conflicts involving the right of students to education and
the right of schools to academic freedom. The contractual obligation of
a school to afford its students a fair opportunity to complete the course
a student has enrolled for is recognized. However, when a student com-
mits a serious breach of discipline or fails to maintain the required aca-
demic standards of the school, the student forfeits his rights and courts
are not at liberty to reverse the discretion of university authorities in
this matter.e But the Court has also set down the procedure which edu-
cational institutions must follow. In the leading case of Guzman v. Na-
tional University,t* the Court said that:
... [d]ue process in disciplinary cases involving students does
not entail proceedings and hearings similar to those prescribed for
actions and proceedings in courts of justice. The proceedings in
e5American Tobacco Co. v. Director of Patents,6T SCRA 287 (October 14,1975).
$Zambales Chromite Mining v. Court of Appeals, G.R. No. 49711, November 7, 19'79;
Anzaldo v. Clave, G.R. No. 54597, December 15, 1982.
e?Taxicab Operators v. Board of Transportation, G.R. No. 59234, September 30, 1982.
eSPHILCOMSAI v. Alcuaz, G.R. No. 84818, December 18, 1989.
sl-icup v. University of San Carlos, 178 SCRA 637 (1989), citing Magtibay v. Garcia,
120 SCRA 370 ( l9tl3) snd also Ateneo de Manila University v. Court of Appeals, 145 SCRA 100
( l9tt6).
ttn142 s1'l{A 699,706-7 (l()116). Morc will hc sairl aboul acutlcmic lieedonr under Article
XIV,
118 THE I9STCONSTITUTION
OF THE REPI]BLIC OF THE PHILIPPINES
student discipline cases may be summary; and cross-examination
is not, contrary to petitioner's view, an essential part thereof. There
are withal minimum standards which must be met to satisfy the
demands ofprocedural due process; and these are, that (l) the stu-
dents must be informed in writing of the nature and cause of any
accusation against them; (2) they shall have the right to answer the
charges against them, with the assistance of counsel, if desired; (3)
they shall be informed of the evidence against them; (4) they shall
have the right to adduce evidence in their own behalf; and (5) the
evidence must be duly considered by the investigating committee
or official designated by the school authorities to hear and decide
the case.
Similarly, a teacher in a school administrative proceeding has a
right to be assisted by counsel.'o'
5. Substantive due process.
If all that the due process clause requires is proper procedure, then
life,liberty, and property can be destroyed provided proper forms are
observed. Such an interpretation, evidently, makes of the due process
clause a totally inadequate protection for personal and property rig.hts.
Hence, the clause must be understood to guarantee not just forms of
procedure but also the very substance of life, liberty and property. The
due process clause must be interpreted both as a procedural and as a
substantive guarantee. It must be a guarantee against the exercise of
arbitrary power even when the power is exercised according to prop-
er forms and procedure. In the language of Hurtado v. California,toz
"Arbitrary power, enforcing its edicts to the injury of the persons and
property of its subjects, is not law, whether manifested as the decree of
a personal monarch or of an impersonal multitude." Thus, as Justice
Harlan said in 1887''03 "The Courts are at liberty * indeed, are under a
solemn duty
- to look at the substance of things, whenever they enter
upon the enquiry whether the legislature has transcended the limits of
its authority."
Constitutional law arrived in the Philippines long after "due pro-
cess" had become recognized as a substantive restraint upon govern-
mental action. And as such it was used even in the earliest Philippine
rorGonzales v. NLRC and Ateneo de Davao, G.R. No- I 25735, Augusl 2(), l()()()
ro2ll0 u.s. 516,536 (ltt84).
r"'Muglcr v. Kansas, 123 t).S. 623,661 ( lttttT).
Sec.l Sec. I ART. III _ BILL OF RIGHTS
decisions. Although frequently invoked, however, as a protest against
arbitrariness in legislation, substantive due process was rarely invoked
with success. From the very beginning, the Supreme Court gave gen-
erous latitude to legislation designed to promote public health, public
safety, or public welfare.
The pattern was set in the early case of U.S. v. Toribio,'* where
a statute regulating the slaughter of large cattle, a measure designed to
preserve work animals needed for agriculture, was challenged as un-
lawful deprivation of property. With approval, the Court quotedt0s I4w'
ton v. Steel:to6
...
[t]he State may interfere wherever the public interest
demands it, and in this particular a large discretion is necessarily
vested in the legislature to determine, not only what the interests
of the public require, but what measures are necessary for the pro-
tection ofsuch interests. Tojustify the State in thus interposing its
authority in behalf of the public, it must appear, first, that the inter-
ests of the public generally, as distinguished from those of a par-
ticular class, require such interference; and, second, that the means
are reasonably necessary for the accomplishment of the purpose,
and not unduly oppressive upon individuals. The legislature may
not, under the guise of protecting the public interest, arbitrarily
interfere with private business, or impose unusual and unnecessary
restrictions upon lawful occupations. In other words, its determi-
nation as to what is a proper exercise of its police powers is not
final or conclusive, but is subject to the supervision ofthe courts.
Thus, the Court clearly considered itself a competent arbiter of
the objective reasonableness of legislative action. But it also allowed
such competency to be limited by the recognition of the presumptive
reasonableness of governmental action. In U.S. v. Salaveria,l.? the court
was even willing to defer to the legislative judgment of a municipal
council, the lowest law making authority under the existing system. The
Court said:'08
,'El5 Phit.85 (19t0).
r'rr/r/. at 98.
r'*'152 U.S. 133 ( llt94) citing Barbier v. Connolly, I 13 U.S. 27 (1885); Kidd v. Pearson'
t.l8 IJ.S. I(tttSri).
UJ9 l)hil. l02 ( l9ltt).
rrtrlr/.rrl lll.
 CONSTITUTION
120 THE 1987
OF THE REPUBLIC OF THE PHILIPPINES
Who is in a better position to say whether the playing of
panguingui (on weekdays) is deleterious to social order and the
public interest in a certain municipality - the municipal council,
or the courts? The answer is self-evident. The judiciary should not
lightly set aside legislative action where there is no clear invasion
of personal or property rights under the guise ofpolice regulation.
Under such rule, rarely did any legislative measure meet with ju-
dicial disapproval.
Examples of the wide variety of uses to which police power has
been put have already been given. A few cases are worthy of special
note to illustrate how substantive due process was allowed to operate-
In Churchill v. Rafferty,r@ the Court took a rather bold move in
favor of an unusual piece of nuisance abatement. It upheld the validity
of portion of a statute authorizing the Collector of Internal Revenue to
a
remove any sign, signboard or billboard found by him to be offensive to
the sight or otherwise a nuisance. It applied the rule in Munn v. Illinois
that. "o
If no state of circumstances could exist to justify such stat-
ute, then we may declare this one void because in excess of the
legislative power of this state; but if it could, we must presume it
did. Of the propriety of legislative interference, within the scope of
the legislative power, a legislature is the exclusive judge.
Then the Court added:"'
Without entering into the realm of psychology, we think it
quite demonstrable that sight is as valuable to a human being as
any of his other senses, and that the proper ministration to this
sense conduces as much to his contentment as the care bestowed
upon the senses of hearing and smell, and probably as much as
both together.
To the objection that aesthetic tastes are a tricky lot the Court
answered:lr2
r@32 Phil. 580 (1919).
ltold. at 602, citing Munn v. lllinois, 94 tl.S. I ll ( I lt77)
rrr/r/. al 6{)tl.
rrr[/. irl (il)() lO.
ART. III - BILL OF RIGHTS
Sec. I Sec. 1
We answer in the language of the Supreme Court in Noble
State Bank v. Haskel,"1 and which has already been adopted by
several state courts. ... that "the prevafling morality or strong and
preponderating opinion" demands such legislation.
Thus, by this curious juxtaposition of principles, and unwilling to
accept the American rule that aesthetic considerations are a matter of
luxury and do not justify the exercise of police power,il4 the Supreme
Court saw in its ruling no new doctrine but merely a new application of
an old principle.r's Indeed, there would be no novelty in the ruling if the
Court's solicitude for the sense of sight meant, implausibly, a desire to
protect the health of the eYe.
Incidentally, the place of aesthetics in police power jurisprudence
in the United States has an interesting history."6 Time was when aes-
thetics was rejected as a basis for the use of police power. A new Jersey
Court put it this way: "Aesthetic considerations are a mater of luxury
and indulgence rather than of necessity, and it is necessity alone which
justifies the exercise of police power.""'And a California Court said:
..we find that the one ground upon which the town council may be
'
thought to have acted is that appearance of billboards is, or may be, of-
fensive to the sight ofpersons ofrefined taste. ... It has never been held
that these considerations alone justify, as an exercise of police power'
a radical restriction of an owner of property to use his property in an
ordinary and benefici&l waY."ttt
Gradually, however, "persons of refined taste" slowly gained
ground by pairing considerations of aesthetics with health, safety and
morals, as our Court did in ChurchilL Thus Justice Pound was quoted
.'Beauty may not be queen, but she is not an outcast beyond
as saying:
the pale of protection or respect. She may at least shelter herself under
the wing of safety, morality or decency.""'
ffi7rtstt,.rraSee ScHwentz, supra,note'14 at249-251 and authorities cited'
rr532 Phil. at 6ll.
ildThe lilllowing parlgraphs about billb0ards are based on Csanr-Es F. Ft'ovo, BLLaoenos,
Ar.srttrrtts ,tNrt rru I'or.tct /'rrrvr.r:.lollRNAl. oI ECONOMICS AND SOCIOLOGY
(forthcom-
ing)'
'r/('ilyof l'itssit v. I'itllt'lsrtttllrll llrslirrg'72NJI'2t'ltl(I905)'
rr*Vu'tey & ( irccrr v. Wrllr:rrrrs, I \5 ('ll. I I tt, l(X) P. lt67 ( lqX)).
rr"ll'rlntttlle t v (,itce ttt'..)5(, N,Y. l.t/. ltt,) N,l:.5 ( l()12).
 t22
".*#""'iijl,Eoil'ffi#?Jlrr,*r,
Progress was further made in 1935 through a law which disal-
lowed billboards that blocked the view of areas of scenic beauty. A
Massachusetts court said: "we think that the preservation of scenic
beauty and places of historical interest would be of sufficient support
[for advertising regulation]. considerations of taste and fitness may be
a proper basis for action in granting and denying permits for locations
for advertisiflg devices."tzo
Finally, aesthetics came to its own in 1954 when the U.S. Supreme
Court, in an eminent domain case, said: "The concept of public welfare
is broad and inclusive. ... The values it represents are spiritual as well
as physical, aesthetic as well as monetary. It is within the power of the
legislature to determine that the community should be beautiful as well
as healthy, spacious as well as clean, well balanced as well as carefully
Potrolled."rzt
State courts soon followed.
The scope of the regulatory power can also depend on whether
billboards are on site, that is, set to advertise goods and services which
may be found in the place where the billboards stand, or off site, that is,
billboards erected in public places or away from the goods or services
being advertised. The regulatory power over on site bill boards can be
necessarily narrower because of the freedom of persons to treat their
premises as they please. But whether on site or off site, billboards can
be regulated for the purpose of safeguarding public safety or avoiding
visual clutter or urban blight.
The next phase of this development dealt with billboards as ve-
hicles of expression. This will be treated under Section 4.
The special measure whichthe government tookforthe care of non-
christian inhabitants of the country also provoked objections grounded
on due process. Thus, in Rubi v. Provincial Board of Mindoro,L22 a law
creating reservations for the Mangyan tribes and prescribing penalties
" for Mangyan non-conformists was challenged as a deprivation of lib-
erty without due process of law. In answer to the challenge, Justice
rrGeneral Outdoor Advertising Co. v. Department
of Public Works, 2ll9 Mass t49.
N.E.799 (1936).
r2rBerman v. Parker,34tl
U.S. 26 ( 1954).
,2239
Phil.660 (t9I9).
sec r Sec. 1 ART. III _ BILL OF RIGFTTS 123
Malcolm, writing for the Court, recited the various provisions of the
Laws of the Indies governing reducciones and cited the royal purpose
of uplifting the indios and protecting them from comrpting influences
of other races Then he pointed to the care which legislation after the
arrival of the Americans had lavished upon the non-Christian tribes.
He also drew analogy from the treatment of Indian tribes in the United
States. The conclusion reached was that the law was justified by the de-
mands of general welfare and public interest.r23 And when in de Palad v.
Saito,the objection of deprivation of property without due process was
raised against an act prescribing that "conveyances and encumbrances
made by persons belonging to the so-called 'non-Christian tribes,'when
proper, shall not be valid unless duly approved by the Director of the
Bureau of non-Christian Tribes," it was an easy matter for the Court
to fall back on the reasoningin Rubi}'o Similarly, applying principles
of social justice, the municipality of Makati was allowed to use public
money for burial assistance to indigents.'2s
Not so successful, however, were the efforts of the Mayor and
Chief of Police of Manila to clean the city of prostitutes. Not authorized
by any law, order or regulation, they herded together the prostitutes of
Manila and shipped them to the distant province of Davao. There was
at that time no provision in the constitution guaranteeing to citizens
the right not to be made to change their residence. Nevertheless, the
liberty of abode and of changing the same was subsumed under the
due process clause. The Supreme Court granted a writ of habeas corpus
and ordered the return of the deportees. The Court said that the primary
question was, "Shall the judiciary permit a government of men instead
of a government of laws to be set up in the Philippine Islands?" And
the emphatic answer given was that "the courts will assist in retain-
ing it as a government of laws, and not of men," and that "no official,
however high, is above the law," and that "the courts are the forum
which function to safeguard individual liberty and to punish official
transgressors."t26
t2tld. at 6'19-94.
19.|
l93l ).
'x55 Phil. lt3 I . lt3tt (
rlllinuy v. Drtnringo, (i.R. Ntt.923ti(), September I l, 1991.
t,nVilluviecrrt:io v. Lukhun, .l() Plul. 77tl,7tt0,7tl7 ( I9I()), Arncricttn ttttlhoritics relicd upon.
t24 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
More signiflcant, however, was the judicial censure meted out in
People v. Pomar.t21 At issue was freedom of contract. The case dealt
with a statute prescribing a thirty day vacation with pay both before and
after confinement arising from pregnancy. The Court said: "The rule in
this jurisdiction is that the contracting parties may establish any agree-
ments, terms, and conditions they may deem advisable, provided they
are not contrary to law, morals or public policy."'^ Relying chiefly on
Adkins v. Children's Hospital,',n Adair v. (/.,S.,'30 Coppage v. Kansas,t3l
and Mugler v. Kansas,t32 the Philippine Supreme Court struck down the
statute as an invasion of freedom of contract. Citing Adkins, the Court
said that "the right to contract about one's own affairs is a part of the lib-
eny of the individual guaranteed by this [due process] clause . ..",33 The
Court also approved of Adair's "equality of right" principle:'3. "In all
such particulars the employer and the employee have equality of right,
and any legislation that disturbs that equality is an arbitrary interference
with the liberty of contract, which no government can legally justify
in a free land. ..." Police power, the court conceded, is an expanding
power; but it "cannot grow faster than the fundamental law of the State.
... If the people desire to have the police power extended and applied
to conditions and things prohibited by the organic law, they must first
amend that law."':'
The general run of due process decisions under the 1935 Constitu-
tion continued to echo and occasionally elaborate on earlier doctrine.
ln Caunca v. Salazar,'36 the Court said that liberty could be impaired
in the absence of physical force; freedom could be lost through moral
compulsion. The care which the Rubi and the de Palad cases had for
the welfare of the non-Christian tribes found reaffirmatio n in People v.
Cayat;', The right of the state to provide the citizens with competent
medical assistance through the licensing of physicians in the Gomez
t2746Phi1.440 (1924).
t28ld. at 456,relying on Art. 1255
of the (old) Civil Code.
',e261 U.S. 525 (1923).
'1208 U.S. 161, 174 (1908).
'3'236 U.S. I, 14 (1915).
'e123 U.S.623 (1887).
r33People v. Pomar, 46 Phil. 4q,449 .
t3ald. at 452.
t3sld. at 455-6.
r:1682
Phil. 851 ( 1949).
,il68 Phil. l2 ( 1939).
ART. III - BILL OF RIGHTS
Jesus case was affirmed in People v. Ventura.t3' A few cases deserve
some discussion.
The judicial experiment in the field of aesthetics found in the
Churchill came in People v. Fajardo}3e Here, a building permit was
denied to an owner of a piece of land on the ground that the proposed
construction would block the view from the highway towards the mu-
nicipal plaza. The Court said:'oo
[T]he ordinance is unreasonable and oppressive in that it op-
erates to permanently deprive appellants of the right to use their
own property; hence, it oversteps the bounds of police power, and
amounts to a taking of appellant's property without just compensa-
tion. We do not overlook that the modern tendency is to regard the
beautification of neighborhoods as conducive to the comfort and
happiness of residents. But while property may be regulated in the
interest of the general welfare, and in its pursuit, the State may pro-
hibit structures offensive to the sight, the State may not under the
guise of police power permanently divest owners of the beneficial
use of their property and practically confiscate them solely to pre-
serve or assure the aesthetic appearance of the community. As the
case now stands, every structure that may be erected on appellant's
land regardless of its own beauty, stands condemned under the or-
dinance in question, because it would interfere with the view of the
public plaza from the highway. The appellants would, in effect, be
constrained to let their land remain idle and unused for the obvious
purpose for which it is best suited, being urban in character. To
legally achieve that result, the municipality must give appellants
just compensation and an opportunity to be heard.
In effect, aesthetics may be used as reason for "taking," but then
there must be due process and just compensation.
One significant 1967 due process case demonstrates the continu-
ing adherence to the principle of presumed constitutionality. Ermita
Malate Hotel and Motel Operators, Inc.v. City Mayor of Manila,'u' in'
volved a city ordinance designed in part to curb the rampant use of ho-
tels and motels as places of illicit assignation. The constitutionality of
r$G.R. No. L-l5079.January 31, 1962.
r"t04 Phil.443 (1958).
tatltl .
ut, 44'l -tl .
r'r(i,R. No. lr ll, 1967, 2O S('RA lJ49 ( 1967)
24(r().1, July
 THE 1987 CONSTITUTION Sec.
OF THE REPUBLIC OF THE PHILIPPINES
the ordinance was challenged on various grounds: (1) that the license
fee it imposed was unreasonably high; (2) that the registration require-
ments for guests (requiring full name, date of birth, address, occupa-
tion, sex, nationality, planned length of stay, number of companions and
their names, relationship, age and sex, data from the guest's residence
certificate and his passport number, together with a certification by the
competent hotel or motel officer that the person signing the form filled
it up personally and affixed his signature in the presence of such of-
ficer) violated due process not only for being arbitrary and oppressive
but also for being vague, uncertain, and likewise for being an invasion
of privacy and of the guaranty against self-incrimination; (3) that the
official inspection requirements violated due process; (4) that the mini-
mum facilities requirements were arbitrary and oppressive; (5) that the
requirements that persons less than 18 years of age may not be accepted
unless accompanied by parent or guardian and that no room may be let
out more than twice every 24 hours lacked certainty and were unreason-
able and arbitrary; and (6) that the penalty of automatic cancellation of
license was violative of due process.
The issues of invasion of the right of privacy and of the right
against self-incrimination were correctly dismissed by the Court as not
having been raised by the proper parties. Neither the hotel and motel
opefators nor an "accommodating intervenor," on the basis merely of
his being a regular customer, were deemed parties whose right of pri-
vacy and right against self-incrimination had been affected. The Court
was left therefore with a simple case of the exercise of police power to
regulate the use of property for the purpose of checking "the alarming
increase in the rate of prostitution, adultery and fornication in Manila
traceable in great part to the existence of motels, which 'provide a nec-
essary atmosphere for clandestine entry, presence and exit' and thus
become the 'ideal haven for prostitutes and thrill-seekers!"'With the
issue thus limited, it was an easy matter for the Court to recall U.,S. v.
o Salaveriai42 and O'Gorman v. Hartfurd Fire Insurance Co.t43 and re-
quire that, since underlying questions of fact might condition the con-
stitutionality of this type of legislation, some factual foundation must be
presented to rebut the presumption of constitutionality. No such factual
foundation was presented and the presumption of validity was allowed
rc39 Phit. 102 (t9ltt).
r4'2ta2 U.S.25t il93t)
1 ART. III - BILL OF RIGHTS
to prevail. When on reconsideration petitioners invoked the principle
of laissezfaire,the Court merely reminded them that the principle had
long ago given way to the assumption by the government of the right
of intervention.'*
Two signifi cant 1 968 cases o Morfe v. Mutuct4s and Alalayan v. Na-
tional Power Corporation,r46 again emphasized presumption of consti-
tutionality. Moreover, they again demonstrated the elastic approach to
challenges against the exercise of police power. ln Morfe v. Mutuc, a
provision in the Anti-Graft Law which required public officers to sub-
mit periodically a sworn statement of assets and liabilities was chal-
lenged as an oppressive exercise of police power. The Court said that
"[i]t would be to dwell in the realm of abstractions and to ignore the
harsh and compelling realities of public service with its ever-present
temptation to heed the call of greed and avarice" were it to condemn
such requirement as arbitrary and oppressive.
In Alalayan v. National Power Corporation, the requirement that
electric power franchise holders, receiving at least fifty per cent of its
electric power from the National Power Corporation, "shall not realize a
net profit of more than IZVo annually of its investments plus two-month
operating expenses" was branded as confiscatory by the petitioner. The
Court said, "To speak of it as confiscatory ... is to employ the language
of hyperbole." Such comment was made in the context of an earlier
case, Manila Electric Co. v. Public Service Commission,to' where l27o
rate of return had been challenged, unsuccessfully, as too generous.
Homeowner's Association of the Philippines, Inc. v. Municipal
Board of Manila,''8 presented one of those rare cases where a police
power measure was declared unconstitutional. At issue was a municipal
ordinance declaring a state of emergency in the matter of housing ac-
commodations and regulating rentals of lots and buildings for residen-
tial purposes. Solely on the ground that the ordinance did not fix the
period of its effectivity, the Court declared it unreasonable and therefor
unconstitutional:
'.il
:t,
r
lf''G.R. No. L-24693, October 23,1967.
'{'(i.R. No. l.'203t.l7, Janrrary .} l, l9(rtl.
rar'(i.R. No. L-24l96, Jrrly 29, l96tl.
l{/(i.R. N(). l.2416'), Novctttlrt:r 14, l()(r(r.
L r1*(;.lt No l, )l()7(),Atrgrrst l(1. l()(rll.

128 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
... [I]ndividual rights may
be adversely affected by the ex-
ercise of police power to the extent only and only to the extent
that may fairly be required by the legitimate demands of public
-
interest or public welfare. If such demands are brought about by a
state of emergency, the interference upon individual rights, result-
ing from the regulations adopted to meet the situation, must be, by
and large, coextensive, coeval or coterminous with the existence
thereof. And since an emergency is by nature temporary in charac-
ter, so must the regulation promulgated therefor be ...
That a regulation designed to meet a temporary need must of
necessity also be temporary in duration is undeniable. Is it necessary,
however, that the statute must fix the period of its effectivity or is it suf-
ficient that the statute be understood to be only for the duration ofthe
emergency, however long such emergency may last? It is clear from the
Homeowners' Association case that the Court requires a fixed period;
the cardinal sin of the ordinance in question was found to be the fact
that it did not flx a period at all.
In reaching such a conclusion, the Court relied on Rutter v. Es-
tebant\e and the Emergency Powers Cases.'s' It is not clear, however,
that the Court's conclusion truly reflects the doctrine of the cited cases.
ln Rutter v. Esteban, what the Court declared unconstitutional was the
continued application of the moratory law even after the lapse of eight
years. The Court presumed the initial validity of the law. Likewise, in
the Emergency Powers Cases, although Congress did not set the time
limit to the grant of emergency powers to the President, the Court did
not question the validity of the initial grant. Rather, the cases on the
emergency powers were an exercise in search for a time limit that could
not be found in the statute itself.
The error of the questioned ordinance was, it would seem, more
tactical than substantial. It declared a "state of emergency." Consc-
quently, the Court applied what it considered rules on emergency leg-
islation. What is an emergency? "\t is difficult to define an emergency
but as a generalization it is a sudden or unexpected event which crcatcs
a temporarily dangerous condition usually necessitating immcdiatc or
quick action. ... Ordinary conditions or customarily existing conditions
,4"93 Phit. 6n ( t95l).
r'"Arirrrcl;r
v l)irrlqlrrr;rrr, irrrrl corrrpirrrior t lsr:s, ll4
ART. III - BILL OF RIGHTS t29
Sec. I
are not emergencies."rsr $y'ry or threatened economic collapse would
be such an emergency. And that is the type of emergency contem-
- plated in the constitutional provision which was the topic of the cited
Emergency Powers Cases. An ordinary housing shortage, however, is
not such emergency. As one American decision has said, "The word
'emergency,'as used in the housing legislation. ... does not have the
meaning given to it by lexicographers. The Legislature has given to
the word 'emergency' a new and peculiar meaning, namely, a perma-
nent condition of insufficiency of service or of facilities, resulting in
social disturbance or distress."'5'This is the type of "emergency" that
has been the subject of rental regulation in New York which has been
in effect for over twenty years but which the New York Supreme Court
has continued to consider valid and constitutional.'sr This also is the
type of emergency contemplated by the questioned Manila ordinance.
It is the subject of ordinary police power, not of emergency powers. In
fact, the Court considered it as such, "The authority of the municipal
corporations to regulate is essentially police power." The Court, how-
ever, was diverted into considerations of emergency legislation by the
language of the questioned ordinance. Hence, instead of presuming the
constitutionality of the regulation and asking for a demonstration of its
unreasonableness, as it had emphatically done in recent cases discussed
in this chapter, the court immediately declared it unreasonable and a
violation of due process.
By far the most significant due process decisions, however, were
those which completely obliterated laissezfaire from constitutional ju-
risprudence. These decisions were a direct outgrowth from the social
orientation which the 1934-t935 Constitutional Convention gave to the
Philippine Constitution.r54 Some of these decisions will be discussed
under the topics of eminent domain, obligation of contracts, and social
justice.
Decisions in the 70's and 80's have adhered to traditional prin-
ciples. For instance, a regulation requiring cars to be equipped with
rstscacciav.Boroughof OldForge,94 A.2d563,564(Pa. 1953),citedin Scrwarrz,Zar
Rn;trrs ot, I'run'rnrv (1964\ 294.
r1)l Irf ll'v. ('ity ol'Ncw Vrrk, 195 N.Y. Supp. 25-1 ,258 (2d Dep't 1922), cited in Scuwanrz,
ttp. rit .,2\)45.
r''Slrtw,rH rz. lifrirl.
''rllr uruns. Allt.srwu,tt tNn,ltrNtmn.Sttrttt'ot ntt. l>tttttt't,tvt:lJttl,tn Rr;trrs l9-43(1971).
l'lril. ttrtl ( ltl,ltl)
r30 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
"early warning devices" (EWD),'s'an ordinance regulating the storage
of copral56 and another regulating public marketsi5T as well as a regula-
tion imposing an age limit on taxicabs,rs8 were all upheld. The principle
was also reiterated that notice and hearing, while required for judicial
and quasi-judicial proceedings, is not needed in the promulgation of
general regulations.'se But a law requiring that skimmed milk carry the
warning that it is not suitable for infants was found to be a deprivation
of property without due process.rm On due process grounds too, a Ma-
nila ordinance requiring aliens to obtain a permit from the Mayor before
accepting employment was declared unconstitutional. "While it is true
that the Philippines as a State is not obliged to admit aliens within its
territory, once an alien is admitted, he cannot be deprived of life without
due process of law."t6r
Decisions under the 1987 Constitution have not departed from
established patterns. Thus car license plates may not be detached by
traffic officers in the absence of a law prescribing such police action.r62
Outright confiscation of carabaos illegally transported is unduly op-
pressive.'63 Indelible markings on the forefinger as a requisite for the
exercise of suffrage is a reasonable instrument for preserving the sanc-
tity of the ballot.'a A rule of the Professional Regulatory Commi'ssion
which restricted reviewees from attending review classes, briefing con-
ferences or the like, and receiving any hand out, review material, etc.,
was deemed unreasonable and arbitrary and violative of the academic
freedom of schools.'6' An ordinance prescribing that children between
the ages of 7 and 12 should be charged only half the admission price in
movie houses was found to be unrelated to a public purpose.'66 Indefi-
IssAgustin v. Edu,88 SCRA 195 (February 2,1979).
r56Procter and Gamble v. Municipality,g4 SCRA
894 (December 28, 1979).
rsTavellana v. Judge Kintanar, G.R. No. 33169, July 30, 1982.
rs8Taxicab Operators v. Board of Transportation,
G.R. No. 59234, September 30, 1982.
tseld,
loVera v. Cuevas,90 SCRA 379 (May 31,1979).
r6'Villegas v. Hiu Chiong Tsai Pao Ho,86 SCRA270,276-7 (November 10, 1978). But see
Teehankee's concurence which prefers to treat the matter as an ultra vires problem under thc law
on public corporations.
g r?oTatel v. Municipality
'62Metropolitan Traffi c Command v. Judge Gonong, G.R. No. l 023, July 1 3, l 9q).
r63Ynot v. Intermediate
Court of Appeats, 148 SCRA 659 ( 1987).
reAgcaoili v. Felipe, 149 SCRA 341 (1987).
r65lupangco v. Court of Appeals, l6{) SCRA lt4tl ( lgttll).
r6Balacuit v. Court ol First lnstlnc(:, 163 S('RA ltt2 ( l()tt8).
Sec. I ART. III _ BILL OF RIGHTS 13r
nite suspension of a person under investigation is unreasonable.'67 The
cancellation of all mortgages and other liens was found to be an arbi-
trary violation of the rights of creditors.'68 An arbitrary cancellation of
a government contract was found to be unconstitutional.r6'But even the
fractured syntax of an ordinance was not enough to defeat the validity
of one regulating the construction of warehouses wherein flammable
materials are stored.rTo The Metro Manila Development Authority may
not, without authority of law, compel a residential subdivision to open
its private road to the public."'
The principle of presumptive validity of official action has been
applied by the Court under the new Constitution even to actions of Pres-
ident Marcos during the authoritarian years. Two cases stand out. In
Development Bank of the Philippines v. Pundugar,r?2 to recoverproperty
lost to the government after a series of Jacinto lawyers withdrew from
the case was branded by the Court as "fraud and misrepresentation ...
perpetrated under the mantel of due process." Likewise, Lim v. Pacqu-
ing"' in a sharply divided decision upheld the validity of Presidential
Decree 771 which had stripped Associated Development Corporation
of its jai-alai franchise but only to give it two months later to a Marcos
,t
;;
relative.
rl,
6. Publication and clarity of laws as a requirement of due
process.
Arecent 1986 case clarifies the obscurities that surround the need
to publish laws prior to their effectivity. The central issue in Taftada v.
Tuverarla was the meaning to be given to the Civil Code's requirement
of publication. Article 2 of the Code says: "Laws shall take effect after
fifteen days following the completion of theirpublication inthe Official
Gazette, unless it is otherwise provided. ..." The Court said that the
l6TDeloso v. Sandiganbayan, GR. Nos. 86899-903, May 15, 1989. See Layno, Sr. v. San-
diganbayan, 136 SCRA 536 (1985); Doromal v. Sandiganbayan, G.R. No.85468, September 7,
f989; Gonzaga v. Sandiganbayan, G.R. No. 96131, September 6,1991.
rsNational Development Co. and New Agrix v. Philippine Veterans Bank, G.R. Nos.
84132-33, December 10, 1990.
r6eGenaro Reyes Construction v. Cou( of Appeals,234 SCRA ll6 (1994).
of Virac, 207 SCRA 157 (1992).
rTlMMDA v. Bel-Air Village, G.R. No. 135962, March 27
,z00o.
,22ttt scRA ll8 (1993).
r7,240 S(.RA 649 ( 1995).
r/r(i.R. No. 6J915, l)cccnrhcr 29, l9116.
t32 THE 1987 CONSTITUTION Sec.
OF THE REPUBLIC OF THE PHILIPPINES
phrase "unless it is otherwise provided" refers not to the need of pub-
lication inthe Official Gazette but to the requirement of "fifteen days."
The fifteen days can be lengthened or shortened but not to the point of
allowing no publication at all. There can therefore be no such thing as a
law that is effective immediately, even if the law is not penal in nature.
The underlying reason for this rule is that due process, which is a rule
of fairness, requires that those who must obey a command must first
know the command.
The old rule required that publication must be in the Official Ga-
zette.The legislature can change this rule and require instead that pub-
lication be made in some other form. But sufficient publication there
must be. And the rule applies to all laws and not only to those of general
application. It applies even to laws of local application and to adminis-
trative rules.r" But it does not apply to interpretative regulations and to
those merely internal in nature, that is, regulating only the personnel of
the administrative agency and not the public.
Needless to say, since the Civil Code is a creation of Congress,
Congress itself may require some other form of publication for a spe-
cific law even without amending the Civil Code, provided that equal
protection is not violated.
Moreover, the rule that requires publication for the effectivity of
laws applies not only to statutes but also to presidential decrees and
executive orders promulgated by the President in the exercise of legis-
lative powers whenever the same are validly delegated by the legisla-
ture or, at present, directly conferred by the Constitution. Administra-
tive rules and regulations must also be published if their purpose is to
enforce or implement existing law pursuant also to a valid delegation.'?6
Related to the rule on publication is the rule on vagueness. A law
that is utterly vague is defective because it fails to give notice of what it
commands. People v- Nazario"' said:
As a rule, a statute or act may be said to be vague when
it lacks comprehensible standards that men "of common intelli-
rTsJoint
Ministry of Health-Ministry of Labor Committce v. Court of Appeals. G.R. No
18254, Aptil25,1991.
'T6Republic v.Pilipinas Shell,G.R. No. I 739 I ta, April tt, 20oll.
SCRA l116. t9-5-196 (t9tt8).
'|77165
1 ART. III _ BILL OF RIGHTS 133
gence must necessarily guess at its meaning and differ as to its
application."'78 It is repugnant to the Constitution in two respects:
(l) it violates due process for failure to accord persons, especially
the parties targeted by it, fair notice ofthe conduct to avoid; and
(2) it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government
muscle.
But the act must be utterly vague on its face, that is to say,
it cannot be clarified by either a saving clause or by construction.
Thus, in Coates v. City of Cincinnati,t?e the U.S. Supreme Court
struck down an ordinance that had made it illegal for "three or more
persons to assemble on any sidewalk and there conduct themselves
in a manner annoying to persons passing by."teo gt"-ty, the ordi-
nance imposed no standard at all "because one may never know in
advance what 'annoys some people but does not annoy others."'r8r
Coates highlights what has been referred to as a "perfectly
vague"r82 act whose obscurity is evident on its face. It is to be dis-
tinguished, however, from legislation couched in imprecise lan-
guage
- but which nonetheless specifies a standard though de-
fectively phrased
- in which case, it may be "saved" by proper
construction.
It must further be distinguished from statutes that are appar-
ently ambiguous yet fairly applicable to certain types of activities.
In that event, such statutes may not be challenged whenever direct-
ed against such activities.In Parker v. l,ety,'"t a prosecution origi-
nally under the U.S. Uniform Code of Military Justice (prohibir
ing, specially, "conduct unbecoming an officer and gentleman"),
the defendant, an army officer who had urged his men not to go
Vietnam and called the Special Forces trained to fight there thieves
and murderers, was not allowed to invoke the void for vagueness
doctrine on the premise that accepted military interpretation and
practice had provided enough standards, and consequently, a fair
notice that his conduct was impermissible.
r78Tnrne, Avenrc,w CoNsrnwtoxtr Ltw7l8 (1978), citing Connally v. General Construction
Co.,269 U.S. 385 (1926).
ril402 U.S.6l I (1971); see Tntse, d., 720-'121 .
r8(lSeeTnrsr, id.
t$tld.,72l .
t*')k|.,'120.
r*1417 ll.S.73t (1974): sce Tnrnlr, il.,'l2l
.
134 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
People v. de la Piedra'8* reiterated the principle:
A criminal statute that 'fails to give a person of ordinary in-
telligence fair notice that his contemplated conduct is forbidden
by the statute,'or is so indefinite that 'it encourages arbitrary and
erratic arrests and convictions,' is void for vagueness. The consti-
tutional vice in a vague or indefinite statute is the injustice to the
accused in placing him on trial for an offense, the nature of which
he is given no fair warning. It is repugnant to the Constitution in
two respects: (1) it violates due process for failure to accord per-
sons, especially the parties targeted by it, fair notice of the conduct
to avoid; and (2) it leaves law enforcers unbridled discretion in
carrying out its provisions and become an arbitrary flexing of the
Government muscle.
The most important case involving vagueness was the effort of
the defense of President Estrada to declare the Plunder Law, R.A. No.
7089, invalid for being, among other things, vague. The defense put
up a three pronged attack on the law saying that (a) it suffered from
the vice of vagueness; (b) it dispensed with the "reasonable doubt"
standard in criminal prosecutions; and, (c) it abolished. The element of
mens rea in crimes already punishable under The Revised Penal Code,
all of which are purportedly clear violations of the fundamental rights
of the accused to due process and to be informed of the nature and cause
of the accusation against him. The Court was unconvinced and, on the
issue of vagueness, it said''"
Verily, the onerous task of rebutting the presumption weighs
heavily on the party challenging the validity of the statute. He must
demonstrate beyond any tinge of doubt that there is indeed an in-
fringement of the constitution, for absent such a showing, there
can be no finding of unconstitutionality. A doubt, even if well-
founded, will hardly suffice. As tersely put by Justice Malcolm,
"To doubt is to sustain." And petitioner has miserably failed in the
instant case to discharge his burden and overcome the presumption
of constitutionality of the Plunder Law.
As it is written, the Plunder Law contains ascertainable
standards and well-defined parameters which would enable the
l8aG.R. No. 121777,lanuary 24,2U)l .
rssEstrada v. Slndigtnbnyln, (i.R. No. l4tl5(). Novcmber l(),2(X)l
ART. III _ BILL OF RIGHTS 135
accused to determine the nature of his violation. Section 2 is suf-
ficiently explicit in its description of the acts, conduct and con-
ditions required or forbidden, and prescribes the elements of the
crime with reasonable certainty and particularity. Thus -
l. That the offender is a public officer who acts by him-
self or in connivance with members of his family, relatives by af-
finity or consanguinity, business associates, subordinates or other
persons;
2. That he amassed, accumulated or acquired ill-gotten
wealth through a combination or series of the following overt or
criminal acts: (a) through misappropriation, conversion, misuse,
or malversation of public funds or raids on the public treasury; (b)
by receiving, directly or indirectly, any commission, gift, share,
percentage, kickback or any other form of pecuniary benefits from
any person and/or entity in connection with any government con-
tract or project or by reason of the office or position of the pub-
lic officer; (c) by the illegal or fraudulent conveyance or disposi-
tion of assets belonging to the National Government or any of its
subdivisions, agencies or instrumentalities of Government owned
or controlled corporations or their subsidiaries; (d) by obtaining,
receiving or accepting directly or indirectly any shares of stock,
equity or any other form of interest or participation including the
promise of future employment in any business enterprise or under-
taking; (e) by establishing agricultural, industrial or commercial
monopolies or other combinations and/or implementation of de-
crees and orders intended to benefit particular persons or special
interests; or (fl by taking advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines; and
3. That the aggregate amount or total value of the
ill-gotten wealth amassed, accumulated or acquired is at least
P50000,000.00.
The defense bewailed the vagueness of two key words: "combina-
tion" and "series." The Court replied:
Moreover, it is a well-settled principle of legal hermeneutics
that words of a statute will be interpreted in their natural, plain and
ordinary acccplation and signification, unless it is evident that the
lcgislatrrrc irrlcrttlctl it lcchnic:itl <lr spccial lcgal meaning to those
136 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
words. The intention of the lawmakers
- who are, ordinarily, un-
trained philologists and lexicographers
- to use statutory phrase-
ology in such a manner is always presumed. Thus, Webster's New
Collegiate Dictionary contains the following commonly accepted
definition of the words "combination" and "series."
Combination the result or product of combining; the act
- either forbids or requires the doing of an act in terms so vague that
or process of combining. To combine is to bring into such close
relationship as to obscure individual characters.
Series
- a number of things or events of the same class
coming one after another in spatial and temporal succession.
A statute or act may be said to be vague when it lacks com-
prehensible standards that men of common intelligence must nec-
essarily guess at its meaning and differ in its application. In such
instance, the statute is repugnant to the Constitution in two (2)
respects
- it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of what conduct to
avoid; and, it leaves law enforcers unbridled discretion in carrying
out its provisions and becomes an arbitrary flexing of the Gov-
emment muscle. But the doctrine does not apply as against legis-
lations that are merely couched in imprecise language but which"
nonetheless specify a standard though defectively phrased; or to
those that are apparently ambiguous yet fairly applicable to certain
types of activities. The first may be "saved" by proper construc-
tion, while no challenge may be mounted as against the second
whenever directed against such activities. With more reason, the
doctrine cannot be invoked where the assailed statute is clear and
free from ambiguity, as in this case.
The test in determining whether a criminal statute is void for
uncertainty is whether the language conveys a sufficiently defi-
nite warning as to the proscribed conduct when measured by com-
mon understanding and practice. It must be stressed, however, that
the "vagueness" doctrine merely requires a reasonable degree of
certainty for the statute to be upheld
- not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibil-
ity, rather than meticulous specificity, is permissible as long as the
metes and bounds of the statute are clearly delineated. An act will
not be held invalid merely because it might have been morc cx-
plicit in its wordings or detailed in its provisions, cspccially whcrc,
because of the nature of thc act, it would bc inrpossiblc to;rrovidc
all the details in advancc as in all ollrcr slululcs.
Sec. I ART. III - BILL OF RIGHTS 13'7
The ponencia went on to add, borrowing from the concurrence of
Justice Mendoza, that the void for vagueness doctrine and the "over-
breadth doctrine" do not apply to criminal cases in general but only to
cases involving speech.
The void-for-vagueness doctrine states that "a statute which
men of common intelligence must necessarily guess at its meaning
and differ as to its application, violates the first essential of due
process of law." The overbreadth doctrine, on the other hand, de-
crees that "a governmental purpose may not be achieved by means
which sweep unnecessarily broadly and thereby invade the area of
protected freedoms."
A facial challenge is allowed to be made to a vague statute
and to one which is overbroad because of possible "chilling ef-
fect" upon protected speech. The theory is that "[w]hen statutes
regulate or proscribe speech and no readily apparent construction
suggests itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of constitution-
ally protected expression is deemed to justify allowing attacks on
overly broad statutes with no requirement that the person making
the attack demonstrate that his own conduct could not be regulated
by a statute drawn with nilrow specificity.'The possible harm to
society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others
may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal stat-
utes have general in terrorem effect resulting from their very exis-
tence, and, if facial challenge is allowed for this reason alone, the
State may well be prevented from enacting laws against socially
harmful conduct. In the area of criminal law, the law cannot take
chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special
application only to free speech cases. They are inapt for testing the
validity of penal statutes. ... ln Broadrick v. Oklahoma, the Court
ruled that "claims of facial overbreadth have been entertained in
cases involving statutes which, by their terms, seek to regulate only
spoken words" and, again, that "overbreadth claims, if entertained
al lll, havc bccn curtailcd whcn invtlked against ordinary criminal
i
I
l:rws thitt arc sottgltl trl bc lpplitxl to pro(cclcd contlttct." ltlr this
J
t38 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
reason, it has been held that "a facial challenge to a legislative
act is the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under
which the Act would be valid." As for the vagueness doctrine, it
is said that a litigant may challenge a statute on its face only if it
is vague in all its possible applications. "A plaintiff who engages
in some conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others."
In sum, the doctrines of strict scrutiny, overbreadth,
vagueness are analytical tools developed for testing "on their fac-
es" statutes in free speech cases or, as they are called in American
law, First Amendment cases. They cannot be made to do service
when what is involved is a criminal statute. With respect to such
statute, the established rule is that "one to whom application of a
statute is constitutional will not be heard to attack the statute on
the ground that impliedly it might also be taken as applying to
other persons or other situations in which its application might be
unconstitutional." As has been pointed out, "vagueness challenges
in the First Amendment context, like overbreadth challenges typi-
cally produce facial invalidation, while statutes found vague as a
matter of due process typically are invalidated [only] 'as applied'.
to a particular defendant." Consequently, there is no basis for pe-
titioner's claim that this Court review the Anti-Plunder Law on its
face and in its entirety.
It is submitted, however, that while indeed the defect of
"overbreadth" as analytical tool is applicable only to cases involving
speech, this is not so about "vagueness." Vagueness and overbreadth are
distinct from each other. An overbroad law does not need to lack clarity
or precision, but a vague law does. Laws which do not involve speech
can be declared invalid for "vagueness." Thus, for instance Innzetta v.
New Jerseyt86 invalidated a statute for vagueness because it criminalized
being a member of a "gang."
The distinction between "void for vagueness" and "overbreadth"
a,
Whs recently reiterated in Rotnualde z v. C O MELEC .t87
'86306U.S.45l (1939); see also Coates v. City of Cincinnutti,.rryrra
|E7G.R.
No. l6?01I, Deccmber ll.2(X)tl.
Sec. I Sec. I ART. III - BILL OF RIGHTS
7. Equal protection.
The equal protection clause is a specific constitutional guarantee
of the Equality of the Person. The equality it guarantees is "legal equal-
ity or, as it is usually put, the equality of all persons before the law. Un-
der it, each individual is dealt with as an equal person in the law, which
does not treat the person differently because of who he is or what he is
or what he possesses. The goddess of Justice is portrayed with a blind-
fold, not because she must be hindered in seeing where the right lies,
and
but that she may not discriminate against suitors before her, dispensing
instead an even handed justice to all."r88
The equality guaranteed, however, "is not a disembodied equal-
ity." It does not deny to the state the power to recognize and act upon
factual differences between individuals and classes. It recognizes that
inherent in the right to legislate is the right to classify. The problem,
thus, in equal protection cases is one of determining the validity of the
classification made by law. The guarantee of equal protection, accord-
ing to Tolentino v. Board of Accountancy:" simply means "that no per-
son or class of persons shall be deprived of the same protection of the
laws which is enjoyed by other persons or other classes in the same
place and in like circumstances."
People v. Cayat summarized early jurisprudence on equal protec-
tion thus:'m
It is an established principle of constitutional law that the
guaranty of the equal protection of the laws is not violated by a
legislation based on reasonable classification. And the classifica-
tion, to be reasonable, (1) must rest on substantial distinctions; (2)
must be germane to the purpose of the law; (3) must not be limited
to existing conditions only; and (4) must apply equally to all mem-
bers of the same class.
For determining the reasonableness of classification, later juris-
prudence has developed three kinds of test depending on the subject
matter involved. The most demanding is the strlcl scrutiny resl which
requires the government to show that the challenged classification
lrsl I St t tw,rtlz,'l' t t: R tt t tts t tt tttt:
t ; Pa:a.so,v, 487-8 (I 968).
rn('90
l,hil. lt.], 90 ( I r)5 I ).
|$(rll l'hil, 12, lR ( 19.19).
t40 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
serves a compelling state interest and that the classification is necessary
to serve that interest. This case is used in cases involving classifications
based on race, national origin, religion, alienage, denial of the right to
vote, interstate migration, access to courts and other rights recognized
as fundamental.
Next is the intermediate or middle-tier scrutiny /esf which re-
quires government to show that the challenged classification serves an
important state interest and that the classification is at least substantially
related to servins that interest. This is aoolied to susDect classifications
like gender or illegitimacy.
The most liberal isthe minimum or rational basis scrutiny accord-
ing to which government need only show that the challenged classifica-
tion is rationallv related to servine a leeitimate state interest. This is the
traditional rationality test and it applies to all subjects other than those
listed above.
When one looks at most if not all of Philippine jurisprudence on
the subject, one can note that the most used test is the liberal rational
scrutiny /esl. Thus when R.A. No.7227 was challenged as violative
of equal protection because it granted tax and duty incentives only to
businesses and residents within the "secured area" of the Subic Special
Economic Zone and denied them to those who lived within the Zone but
outside such "fenced-in" territory, the Court justified the classification
saying that the Constitution does not require absolute equality among
residents. The real concern of R.A. No.7227 was to convert the lands
formerly occupied by the US military bases into economic or industrial
areas. In furtherance of such objective, Congress deemed it necessary
to extend economic incentives to attract and encourage investors, both
local and foreign.'e'
In International School Alliance of Educators v. Quisumbing,te'1
however, the practice of the International School of giving higher
salary for foreign hires than Filipinos of equal rank was declared un-
c(nstitutional. The Court argued that the principle of "equal pay for
equal work." required that persons who work with substantially equal
qualifications, skill, effort and responsibility, under similar conditions,
r"rTiu v. Court ol'Appcals,(i.R. No. l2T4lO,Janulry 2O, 199().
r"rlntcrnalional Schrxrl Alliitnt:c ol'lirlttt'itlots v. Qrrisrrntbittg, (i.l{. No. llltlt'1,15..lrrrrc I,
Sec. 1 ART. III _ BILL OF RIGHTS 14t
should be paid similar salaries. If an employer accords employees the
same position and rank, the presumption is that these employees per-
form equal work. Neither could the School invoke the need to entice
foreign-hires to leave their domicile to rationalize the distinction in sal-
ary rates. While the Court recognized the need of the School to attract
foreign-hires, it did not allow salaries to be used as an enticement to
the prejudice of local-hires. The dislocation factor and limited tenure
affecting foreign-hires were, the Court argued, adequately compensated
by certain benefits accorded them which were not enjoyed by local-
hires, such as housing, transportation, shipping costs, taxes and home
leave travel allowances.
At the end of the decision, however, the Court made this observa-
tion:
We agree, however, that foreign-hires do not belong to the
same bargaining unit as the local-hires.
A bargaining unit is "a group of employees of a given em-
ployer, comprised of all or less than all of the entire body of em-
ployees, consistent with equity to the employer indicate to be the
best suited to serve the reciprocal rights and duties of the parties
under the collective bargaining provisions of the law." The factors
in determining the appropriate collective bargaining unit are (l)
the will of the employees (Globe Doctrine); (2) affinity and unity
of the employees' interest, such as substantial similarity of work
and duties, or similarity of compensation and working conditions
(Substantial Mutual Interests Rule); (3) prior collective bargaining
history; and (4) similarity of employment status. The basic test of
an asserted bargaining unit's acceptability is whether or not it is
fundamentally the combination which will best assure to all em-
ployees the exercise of their collective bargaining rights.
It does not appear that foreign-hires have indicated their in-
tention to be grouped together with local-hires for purposes of col-
lective bargaining. The collective bargaining history in the School
also shows that these groups were always treated separately. For-
eign-hires have limited tenure; local-hires enjoy security of tenure.
Although foreign-hires perform similar functions under the same
working conditions as the local-hires, foreign-hires are accorded
certain benefits not granted to local-hires. These benefits, such
as housing, transportation, shipping costs, taxes, and home leave
travcl allowtncc, arc rcusonahly rclated to thcir stiltus as foreign-
 TI{E 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
hires, and justify the exclusion of the former from the latter. To
include foreign-hires in a bargaining unit with local-hires would
not assure either group the exercise of their respective collective
bargaining rights.
When one considers that the core issue of collective bargaining
is usually wages, it is legitimate to conclude that difference in wages
obtained by different bargaining units would be allowed. One wonders,
in fact, whether the proscribed differences in salary was not already the
result of bargaining!
Rationality was also the test in more recent decisions. Thus a law
that ordered discontinuance of a pension of a retired military officer if
he becomes a citizen of another country was held not to violate equal
protection for the reason that allegiance to the Philippines had been
cut.'e3 The Court did not seem to have considered the fact that pension
is property already eamed.re4
In R.A. No. 9335, the Attrition Act of 1995, the Bureau of Internal
Revenue (BIR) and the Bureau of Customs (BOC) were authorized to
give awards to those who surpass the BIR and BOC revenue collection
targets and to impose sanctions on those who fall short. The awards
were taken from the excess over target as set up by a Board. The Rules
for implementation were made subject to review by an Oversight Com-
mittee of Congress.
The validity of the law was challenged among others on the
ground that limiting the scope of the system of rewards and incentives
only to officials and employees of the BIR and the BOC would violate
the constitutional guarantee of equal protection. But the rational for the
classiflcation was that BIR and BOC personnel were involved in rev-
enue collection and hence incentives should be for them.re5
Violation of equal protection was also challenged by British
American Tbbaccote6 for the reason that its Lucky Strike Filter, Lucky
Strike Lights, and Lucky Strike Menthol Lights cigarettes, introduced
iil the market sometime in 2001 and validated by a BIR survey in 2003,
re3Parrefro v. COA,
G.R. No.162224,Jtne7 ,2C07
r%See Article IX, B,8.
.
resAbakada Guru v. Purisima,
G.R. No. l667l5,Augusr 14, 2ff)8.
r$British American Ttrbacco v. Cnmtcho, C.R. No. l635llll, August
20,2(X)lt
ART, III _ BILL OF RIGHTS
were found to have net retail prices of Pl1.53, PI1.59 and P10.34, re-
spectively, which were lower than those of Marlboro and Philip Morris.
However, since petitioner's cigarettes were newly introduced brands in
the market, they were taxed based on their current net retail prices and,
thus, fell under the premium-priced tax bracket with a higher excise tax
rate of P13.44 per pack. This unequal tax treatment between Marlboro
and Philip Morris, on the one hand, and Lucky Strike, on the other,
was the crux of petitioner's contention that the legislative classification
method used violated the equal protection and uniformity of taxation
clauses of the Constitution.
In upholding the method of classification used the Court said that it
was the only way of establishing a disparate tax treatment of old brands
and petitioner's newly introduced brands. The Court said: "This clari-
fication is significant because, under these circumstances, a declaration
of unconstitutionality would necessarily entail nullifying the whole
mechanism of the law and not just Annex "D." Consequently, if the as-
sailed law is declared unconstitutional on equal protection gtounds, the
entire method by which a brand of cigarette is classified would have to
be invalidated. As a result, no method to classify brands under Annex
"D" as well as new brands would be left behind and the whole Section
145 of the NIRC, as amended, would become inoperative." In the view
of the legislature, the classification into new and old brands was needed
to avert prize wars.
In making the distinction, the Court harked back to Sison, Jr. v.
Ancheta where the Court had explained the applicable standard in de-
ciding equal protection and uniformity of taxation challenges:
... I T]he applicable standard to avoid the charge that there is
a denial of this constitutional mandate whether the assailed act is in
the exercise of the police power or the power of eminent domain is
to demonstrate "that the governmental act assailed, far from being
inspired by the attainment of the common weal was prompted by
the spirit of hostility, or at the very least, discrimination that finds
no support in reason. It suffices then that the laws operate equally
and uniformly on all persons under similar circumstances or that
all persons must be treated in the same manner, the conditions not
being different, both in the privileges conferred and the liabilities
imposed. ... That same formulation applies as well to taxation
nleasurcs. Thc cqurl protcction clausc is, ol' course, inspired by
 1M THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
the noble concept of approximating the ideal of the law's benefits
being available to all and the affairs of men being governed by that
serene and impartial uniformity, which is of the very essence of the
idea of law. ... Hence, the constant reiteration of the view that
classification if rational in character is allowable. As a matter
of fact, in a leading case of Lutz v. Araneta, this Court, through
Justice J.B.L. Reyes, went so far as to hold "at any rate, it is inher-
ent in the power to tax that a state be free to select the subjects of
taxation, and it has been repeatedly held that 'inequalities which
result from a singling out of one particular class for taxation, or
exemption infringe no constitutional limitation. "'
As to the claim of violation of the concept of uniformity, the Court
said that the requirement of uniformity is met when the tax .,operates
with the same force and effect in every place where the subject may
be found." It added: "The rule of uniformity does not call for perfect
uniformity or perfect equality, because this is hardly attainable." ...
The taxing power has the authority to make reasonable and nat-
ural classifications for purposes of taxation. As clarified by Justice
Tuason, where "the differentiation" complained of "conforms to the
practical dictates of justice and equity" it "is not discriminatory within
the meaning of this clause and is therefore uniform." There is quite a
similarity then to the standard of equal protection for all that is required
is that the tax "applies equally to all persons, firms and corporations
placed in similar situation."
The Court recalled that"in our jurisdiction,the standard and anal-
ysis of equal protection challenges in the main have followed the 'ra-
tional basis' /esl, coupled with a deferential attitude to legislative clas-
sifications and a reluctance to invalidate a law unless there is a showing
of a clear and unequivocal breach of the Constitution." Finally it said,
"Within the present context of tax legislation on sin products which
neither contains a suspect classification nor impinges on a fundamental
right, the rational-basis test thus finds application. Under this test, a leg-
islative classification. to survive an equal protection challenge, must be
shd'wn to rationally further a legitimate state interest. The classifications
must be reasonable and rest upon some ground of difference having a
fair and substantial relation to the object of the legislation. Since evcry
law has in its favor the presumption of constitutionality, the burdcn ol'
proof is on the one attacking the constitutionality ol'thc law to provc
beyond reasonahle doubt that thc lcgislativc cl:rssilic:irtiolr is witlrorrl
Sec. I
Sec. I ART. III - BILL OF RIGHTS
rational basis. The presumption of constitutionality can be overcome
only by the most explicit demonstration that a classification is a hostile
and oppressive discrimination against particular persons and classes,
and that there is no conceivable basis which might support it."
ln Central Bank Employees v' Bangko Sentral,'n'the Court applied
the third in Cayat's quadruple test: namely that the classification must
apply not to present conditions only. The Court held that a law valid at
one time may be rendered invalid by subsequent developments. Thus,
with the passage of subsequent laws amending the charter of seven (7)
other governmental financial institutions (GFIs) removing limitations
on employees, the continued operation of the limitation on Central
Bank employees under Section 15(c), Article II of the Central Bank
Law has become invidious discrimination on the 2,994 rank-and-file
employees of the Bangko Sentral ng Pilipinas (BSP). The Court called
this a case of relative unconstitutionality.
8. Alienage as basis of classification.
Some of the more important equal protection cases which engaged
the attention of the Supreme Court prior to the enactment of the 1935
Constitution dealt with statutes which excluded aliens from the enjoy-
ment of certain economic privileges. The problem presented in Smith,
Bell and co . v. Natividad,"' a leading case decided before the common-
wealth, was the constitutionality of the exclusion of non-Filipinos and
non-Americans from coastwise trade. Did the statute which required
domestic ownership, that is, ownership by either Filipino or American
citizens, in order to be able to obtain a certificate of Philippine registry
of a vessel for coastwise trade, violate the due process and equal protec-
tion clauses of the Philippine Bill?
Relying on earlier Philippine decisions,'en the Court began by
saying that the "guaranties extended by the Congress of the United
States to the Philippine Islands have been used in the same sense as
like provisions found in the United States Constitution.'zoo Qlnscifisa-
r,,Tcentral llank Employees v. Bangko Sentral, G.R. No. 148208, December 15,2004 (see
tl isscnts ).
r*40 l,hil. 136 ( l9l9).
r',,Kt.Pnt.rv.U.li., l95tl.li. l(X)(l(I)4),tll'hil.(r(r9;Scrrav.Mortigt,2O4U.S.470(1907)'
I I l'lril.702; tl.S. v, ltrrll, l5 I'lril.7 ( l(rlO)
rx',1(l I'lril I t(r. l,l.l ( ltI())
 146 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
tion in American jurisprudence, the Court said, "with the end in view of
providing diversity of treatment may be made among corporations, but
must be based upon some reasonable ground and not be a mere arbitrary
selection."'0' Hence, "none of the provisions of the Philippine Organic
Law could have had the effect of denying to the Government of the
Philippine Islands, acting through its Legislature, the right to exercise
that most essential, insistent and illimitable of powers, the sovereign
police power, in the promotion of the general welfare and the public
interest."2o2 Classification "with reference to the evil to be prevented"
is a practical question "dependent upon experience."2'r And what local
experience and local conditions could justify the statute at issue? The
Court said:'@
To recall a few facts in geography, within the confines of
Philippine jurisdictional limits are found more than three thousand
islands. Literally, and absolutely, steamship lines are, for an Insular
Territory thus situated, the arteries of commerce.If one be severed,
the life-blood of the nation is lost. If on the other hand these arter-
ies are protected, then the security of the country and the promo-
tion of the general welfare is sustained. Time and again, with such
conditions confronting it, has the executive branch of the Govern-
ment of the Philippine Islands, always later with the sanction of the
judicial branch, taken a firm stand with reference to the presence
of undesirable foreigners. The Government has thus assumed to
act for the all-sufficient and primitive reason of the benefit and
protection of its own citizens and of the self-preservation and in-
tegrity of its dominion.2os Boats owned by foreigners, particularly
by such solid and reputable firms as the instant claimant, might
indeed traverse the waters of the Philippines for ages without do-
ing any particular harm. Again, some evil-minded foreigner might
very easily take advantage of such lavish hospitality to chart Phil-
ippine waters, to obtain valuable information for unfriendly pow-
ers, to stir up insurrection, or to prejudice Filipino or American
commerce. Moreover, under the Spanish portion of Philippine law,
the waters within the domestic jurisdiction are deemed part of the
t 2ftBook
ntld. at 145.
n2ld. at 147.
2o3ld.,
citing Patstone v. Commonwealth of Pennsylvania, 232 t.l.S. 138 ( l9l4).
MId. at 148.
205/nrePatterson, lPhil.93(ltX)2);Forbcsv.(thurrco'l'iuco,
l6Phil.534(1910),221tU.S.
5491 Inre McCulkxrk l)ick,3tt l)hil.4l (l()ltll
Sec. I ART. III - BILL OF RIGHTS
national domain, open to public use.206 Common carriers which
in the Philippines as in the United States and other counffies are,
as Lord Hale said, "affected with a public interest," can only be
permitted to use these public waters as a privilege and under such
conditions as to the representatives of the people may seem wise.2o?
Besides, the Court added, "while the apparent purpose of the Leg-
islature is seen to be to enact an anti-alien shipping act," the "ultimate
purpose of the Legislature is to encourage Philippine shipbuilding."'o'
Hence, the Court concluded, the challenged law did "not belong to that
vicious species of class legislation which must always be condemned."2oe
The Court did not say as much, but it can be said that its reasoning
meets the requirements of strict scrutiny.
The civil rights of aliens were once more involved in Kwong Sing
v. City of Manila."o An ordinance was passed requiring that receipts
must be issued in English and Spanish. Was the ordinance oppressive to
the Chinese business community? With frck Wo v. Hopkirxs2" as back-
ground, the Court declared that, while the rights of the plaintiffs were
"not less because they may be Chinese &liens,"ztz the ordinance was not
invalid for being unduly discriminatory. The ordinance applied to all
without distinction. "If the ordinance appears to the judicial mind to
be partial or oppressive, it must be declared invalid. The presumption
is, however, that the municipal authorities, in enacting the ordinance,
did so with a rational and conscientious regard for the rights of the
individual and of the community.""' Again, considering the times, the
reasoning could satisfy today's strict scrutiny.
statute, however, which prohibited anyone engaged in com-
A
merce from keeping "its account books in any language other than Eng-
lish, Spanish or any local dialect" met a different fate in the face of
the challenge of unreasonable discrimination against the Chinese. In
II,Tit. IV. Ch. I, (old) Civil Code; Spanish Law of Waters of August 3, 1866'Arts.
t,2,3.
\t7See De Villata v. Stanley,32 Phil. 541 (1915).
2081d. at 153.
'?(!'/r/. at l-50.
,ro4 I Phil. to3 ( l92o).
il I lt,t u.s. 356 ( t886).
rrr4l l)hil. ttt lOll.
/r'lrl. rrl lO().
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Yu Cong Eng v. Trinidad,,,o Justice Malcolm, writing for the majority,
made a valiant effort to save the law by interpreting it as applicable
only to "sales books and other records and returns required for taxation
purposes by regulations of the Bureau of Internal Revenue." Justice
Street2r5 and Justice Johns2'6 filed vigorous dissents against such inter-
pretation and accused the majority of attempting, by judicial legislation,
to save a law which patently prohibited the Chinese from keeping ac-
counts in Chinese. On appeal, the United States Supreme Court upheld
the minority view and invalidated the statute as discriminatory.2lT
Another anti-alien case is interesting as a foreshadowing of post-
Commonwealth cases dealing with exceptions to the equal protection
clause found in the Constitution itself. In Li Seng Giap and Co. v.
Director of Lands,r'8 a law prohibiting aliens from acquiring certain
public lands was challenged as discriminatory. The Court rejected the
contention by appealing to the right of the state "to the integrity of its
territory and the exclusive and peaceable possession of its dominions.'r'o
Then it proceeded to appeal to a specific exception in the organic law
itself saying that "far from violating any constitutional law, it deals
precisely with the enforcement of the provisions of the first organic law
of the country [Philippine Bill] and rhose of the Jones Law (Section 9),
to the effect that lands of the public domain should not be disposed of or
alienated to persons who are not inhabitants or citizens of the philippine
Islands.,2o
The Constitution thus, as a general rule, places the civil rights of
aliens on an equal footing with those of citizens. Their political rights,
however, do not enjoy the same protection.
It has been repeatedly decided when a government is deal-
ing with the political rights of aliens that it is not governed by that
"due process of law" which governs in dealing with the civil rights
of aliens. ...221
2t447Phil . 385 , 422 (1925) .
2t5ld.at423.
t
2t6ld. at 450.
2r7Yu Cong Erig v.
Trinidad,2Tl U.S.500 (1926).
2'859 Phil.687 (1934).
2teld. at7ffi.
22old. Also Mitsui Bussan
Kaisha v. Manila E.R.R. & L. Co., 39 Phil. 624 ( l9l9).
22rForbes v.
Chuoco Tiaco, I 6 Phil. .534, 572 ( l9 l0), uflirmed in Chutrco Tiuco v. Forbcs,
228 U.S. 542 (1913),,1O Phil. ll22: tJ.S. v. I)c krs Sunr.s, i3 l,hil. 197 ( t9t6); U.S. v. Ang, t4
Phil.44 ( l9l6); l)cr4rlc v. ('htn l.ixrk,42 I'hil. l t0 ( l92l ).
Sec. I ART. III - BILL OF RIGHTS t49
The rule that has been accepted is'222
Due process of law, in any particular case' means such an
exercise of the powers of the government as the settled maxim of
law permit and sanction and under such safeguards for the protec-
tion of individual rights as those maxims prescribe for the class of
cases to which one in question belongs.
Thus far, the important pre-Commonwealth cases on equal protec-
tion have been reviewed. The other cases were merely further illustra-
tions of allowable classification. Restrictive measures imposed upon
non-Christians for their benefit, the term non-Christian being under-
stood not as a religious designation but as descriptive of their state of
cultural advancement, were upheld as non-discriminatory."3
Under the 1935 Constitution, some of the more significant equal
protection cases also involved nationalization measures passed by Con-
gress or by local law-making bodies. Two approaches were open to the
Court: ( 1 ) to test the reasonableness of the classification and the unifor-
mity of its application, or (2) to apply one or other of the Filipinization
provisions of the 1935 Constitution.22o
The most economically far-reaching nationalization statute passed
by Congress was Republic Act 1180,225 the Retail Trade Nationalization
Law, which prohibited aliens from engaging in the retail trade. Expect-
edly, it met strong opposition from the formidable Chinese business
coflrmunity. The law was challenged in the leading case of Ichong v-
Hernandez.'u After the review of the Chinese stranglehold on the re-
tail business and against the background of Smith, Bell and Co-'v. Na'
tividad" and an array of American cases, the Court concluded:"' "The
above objectionable characteristics of the exercise of the retail trade
by the aliens, which are actual and real, furnish sufficient grounds for
legislative classification of retail traders into nationals and aliens." The
Ll6 Phil. at 572.
223Rubi v. Provincial Board ofMindoro,39 Phil.660 (1919); de Palad v. Saito' 55 Phil
n3l (193r).
rralllnuits, Allsutnxu.tNttJunnrttt.stuttvttt'tut':PtttttpptNt;BtttoeRrcms39-45.
rr\) t,Aws ANI) I{lts()l.tJ'rloNS 3ttl (1954).
,r,'l0t Phit. It55 ( 1957).
,,,4O
I'hil. I t().
'Il0l I'ltil.lt II/(r
150 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Court added'22e "The law in question is deemed absolutely necessary
to bring about the desired legislative objective, i.e.,to free the national
economy from alien control and dominance." And to remove any lin-
gering constitutional doubt on the subject, the Court quoted the reso-
lution passed by the Constitutional Convention leaving the subject of
nationalization of retail to the discretion of Congress.23o
To reinforce the provisions of the Retail Trade Nationalization
Law, the Anti-Dummy Law was passed. The question raised in King v.
Hernaezz3t was whether the prohibition, under the Anti-Dummy Law, of
the employment of aliens in control and non-control positions in a retail
establishment or trade was constitutional. The Court answered:
It is hard to see how the nationalization of employment in
the Philippines can run counter to any provision of our Constitu-
tion considering that its aim is not exactly to deprive a citizen of a
right that he may exercise under it but rather to promote, enhance
and protect those that are expressly accorded to a citizen such as
the right to life, liberty and pursuit of happiness. The nationaliza-
tion of an economic measure when founded on grounds of public
policy cannot be branded as unjust and arbitrary or oppressive or.
contrary to the Constitution because its aim is merely to further the
material progress and welfare of the citizens of a country. This is
what we expressed in the lchong case when we declared constitu-
tional the nationalization of the retail trade.
To the argument that Meyer v. Nebraskax2 guaranteed the right to
engage in the common occupations of life, the Court replied with an-
other quotation from lcftong justifying the legislative act "in view of the
monopolistic control exercised by aliens in the retail business and their
deadly stranglehold on the national economy endangering the national
security in times of crisis."233
ln Co Chiong v. Cuaderno234 and Co Chiong v. Mayor of Manila,r3s
the Court had the first opportunity to use the nationalization provision
{'
22eld.at 1184.
2nld. at 1186, supra.
23rL-14859, March 31, 1962.
112262U.5.390 (1923).
2tlSce alxt l,uzon
Stevcdoring (il. v. Anti-l)urnnry Boartl, 46 S('R A 474 ( I 972
']u83 Phil.242(1949\.
r,'81 l,hil.257 ( 1949).
Sec. 1 Sec. I ART. III - BILLOFRIGHTS 151
inArticle XIV, Section 8 (1935). The two cases involved respectively a
statute and an ordinance terminating the occupancy of public stalls by
Chinese nationals. Asserting the principle already used in the pre-Com-
monwealth case of Zi Seng Giap v. Director of Lands that the Constitu-
tion itself may contain exceptions to the equal protection clause, the
Court declared the measures constitutional. Public markets, according
to the Court, are public services or utilities, the operation of which is re-
served by the Constitution to Filipinos or corporations sixtyper centum
of which is owned by Filipinos.236 The Court added:87
Foodstuffs sold in public markets demand, at least, as much
official control and supervision as the commodities sold or distrib-
uted in other public utilities. They affect the life and health of the
people, the safeguarding ofwhich is one ofthe basic obligations of
a constituted government. Official control and supervision can be
exercised more effectively if public market stalls are occupied by
citizens rather than by aliens.
It is interesting to note that the statute whose constitutionality the
Court upheld itself authorized the lease to aliens of stalls which Filipi-
nos did not want. And, in fact, some stalls in remote and dark corners
had been awarded to aliens. Justice Tuason pointed to this fact in his
dissent inThn Seng Hoo v. De la Fuente.23E To which Justice Briones
answered:23e "Ins recurrentes, que obtuvieron licencia para ocupar un
puesto en un mercado publico a falta de solicitantes filipinos, deben
comprender que por cortesia se les concedio dicho puesto y, no porque
tienen derecho a el; no deben reclamar si se les echa del puesto porque
lo ocupan en contravencion de la prohibicion constitucional." The ar-
gument, however, can still be pushed backwards. Are public markets
the public utilities contemplated by the constitutional prohibition? And
if they are, can market stalls be equated with the public markets?24
The case of Villegas v. Hiu Chiong, also invalidated on equal pro-
tection grounds a Manila ordinance imposing a uniform license fee of
{ifty pesos on all aliens as a precondition for accepting employment.
:"'ld . tl 261 .
:ttld.
)
r,8(x) I'hil. t{)5,617 ( 195 l).
""/r/. rtl (r 0. 1
tathl. tl 616 l l .
 TT{E 1987 CONSTITUTION Sec. I
OF THE REPUBLIC OF THE PHILIPPINES
The decision is interesting not because it concerns an alienage law but
because it teaches that a law can offend against equal protection not
only when it classifies but also when it fails to classify. The uniform fee
was found unlawful "because it fails to consider valid substantial differ-
ences in situation among individual aliens who are required to pay it.'20'
But it seems better to treat this case as involving ultra vires exercise of
corporate powers. As Justice Teehankee noted in his concurrence: "The
national policy on the matter has been determined in the statutes en-
acted by the legislature,viT.,the various nationalization laws which on
the whole recognize the right of aliens to obtain gainful employment in
the country with the exception of certain specific fields and areas. Such
national policies may not in any way be interfered with, thwarted or in
any manner negated by any local government or its officials since they
are not separate from and independent of the national government."
9. Equal protection and laws of local application.
The equal protection clause does not require territorial uniformity
of laws. Zoning ordinances are a clear example of how the constitu-
tion allows different treatment of different places.242 However, there is
limit to allowable territorial lack of uniformity.
People v. Veraza3 gives an example of such limit. It shows also how
the equal protection clause can be violated not necessarily by actual
denial of equality but by creating a system that can foster inequality.
The case involved Act No. 2221, otherwise known as the probation
Act, which empowered Provincial Boards to appropriate salaries of
probation officers for the maintenance of the probation system in their
respective provinces. The Supreme Court said that such delegation of
legislative power to the local law making bodies, leaving to them the
option to support or not to support a probation system, could result
in gross inequalities among the various provinces and thus, in effect,
permit denial of equal protection. "We see no difference between a law
which denies equal protection and a law which permits such denial,":t
thg Court asserted. The law, the Court added, even permitted denial ol'
equal protection to inhabitants of the same province in that the Provirr-
xr86 SCRA 270,275 (November 10, l97tt)
2a2E.g.,People v. Cruz,
-54 Phil.24 ( 1929).
']ar(rS Phil. 5(r
( 1937 ).
r'tt
rt
ltl . I )7 .
ART. III - BILL OF RIGHTS
cial Board might appropriate money to support the system in one year
and refuse to do the same in another yetr.'o'To the objection that the
equal protection clause did not require territorial uniformity, as held
in Ocampo \'. (1.5.,'ou the Court pointed out that the system approved in
th:e Ocampo case was one which preserved substantial uniformity: the
preliminary investigation required by General Orders No. 58 for ter-
ritories outside Manila had its equivalent, for Manila, in the prescribed
investigation conducted by the prosecuting attorney.247
lf the Vera decision leaves the impression that the equal protection
clause requires territorial uniformity, subsequent decisions are clearly
to the contrary. Punplan v. Municipal Board of Manila,'o' rejected the
contention that the power given to Manila to impose an occupation tax
was invalid because the same power was not enjoyed by other munici-
pal corporations. In Tibon v. Auditor General,'on the fact that not all
local police and fire department officers uniformly enjoyed the right to
compensation for death in line of duty was not considered discrimina-
tory. And in Ermita-Malate Hotel and Motel Operators, Inc. v- Mayor
of Manila,"o the regulatory disadvantages imposed on hotels and motels
a in Manila were upheld in the face of the challenge that hotels and mo-
tels outside Manila (but in close competitive proximity to Manila) did
not suffer the same disadvantages.Vera,in fact, is distinguishable from
these other cases because the Probation Act was not a law of local ap-
plication but one intended for the entire nation. If allowed to operate in
accordance with its tenor, it could have had the effect of giving unequal
treatment to convicts under the same national Penal Code.
All of the above, moreover, should now be read in the light of the
bias which the 1987 Constitution has towards greater local autonomy.
It should also be noted that while the power of local governments
to enact local laws necessarily results in absence of national unifor-
mity of laws, the local laws themselves must also equally apply to all
those coming within their jurisdiction. For this reason, in Viray v. City
1a5ld. at 128.
16234 U.S. 9l (1914),affirmlng U.S. v. Ocampo, l8 Phil. I (1910).
]'/(r5 Phil. at 129.
r r{)5
l)ltil. .ltr 1 r)5.1'.
1
'r'{XrI'lril.7t{7 ( 1955).
"'.1 .),1(r()1. lrrly tl, l(Xrl,.)OS('l{At{'lt)
154 THE 1987 CONSTITUTION Sec. I Sec. I ART. III - BILLOF RIGHTS
OF THE REPUBLIC OF THE PHILIPPINES

of Caloocan 25' the Supreme Court invalidated as discriminatory against

11. Equal protection and the political process.
private cemeteries a city ordinance which imposed a burial fee solely
on cadavers coming from places outside the territory of Caloocan for ln Philippine Constitutional Association v. Jimenez,2'u an interest-
burial in private cemeteries within the city. ing if not questionable application of the equal protection clause was
made. The case involved a politically scandalous legislation entitled
10. Adjustments resulting from war. "An Act Amending Subsection (c), Section Ttvelve of Commonwealth
Act Numbered One Eighty Six, as Amended by Republic Act Numbered
Another set of cases illustrates how unusual circumstances, such
Thirty Hundred Ninety-Six." The particular provision challenged was
as the events following World War II, can demand certain legal adjust-
paragraph 2, Subsection c, Section 1. The amendatory paragraph pro-
ments. For instance, the handling of the large number of political pris-
vided for retirement benefits for Senators and Members of the House of
oners necessitated some change in existing procedurallaw. Laurel v.
Representatives. The law was found defective on three counts. Two of
Misa252 answered a challenge to Commonwealth Act No. 682 which ex-
these, defective title and violation of the prohibition of increase of com-
tended the period for filing an information beyond the limit prescribed
pensation of members of Congress, need not concern us here except to
in article 125 of the Revised Penal Code. Said the Court.r3 "There were
ask the question whether, absent such grounds, which by themselves
600 [political prisoners] in round numbers. The problem was momen-
could have settled the issue, the Court would have nullified the law on
tous and urgent. Criminal information against all, or a majority, or even
the basis of the equal protection clause. The Court's censure on this
a substantial number of them could not be properly filed within the six
last ground seems to make an unwarranted denial of the possibility of
hour period." Likewise, the handling of tax delinquency after the war
grouping members of Congress as a class and considering them worthy
necessitated adjustment. ln Juan Luna Subdivision, Inc. v. Sarmiento,2sa
of treatment different from that given to other elective officials or other
Commonwealth Act No. 703, which remitted taxes that were due and
members of the governmental system. The Court enumerated the cen-
payable for the last semester of l94l,was challenged as discriminaiory
surable inequalities created by law: (1) The retirement benefits given
against those who had already paid. The Court answered:2s5
to Members of Congress, who are elective officials, were not given to
The property owners who had paid their taxes before libera- other elective officials; (2) Members of Congress could be entitled to
tion and those who had not were not on the same footing on the retirement benefits after serving twelve years, which did not have to be
need of material relief. ... It is also true that ... the taxes paid dur- continuous, whereas other officers of the government must wait for at
ing the occupation had been satisfied in Japanese military notes, least twenty years; (3) All other government officers could earn only one
many of them at a time when those notes were well-nigh worth-
retirement benefit irrespective of length of service, whereas members of
less. To refund those taxes with the restored currency, even if the
Congress could be entitled to retirement benefits after twenty years of
Government could afford to do so, would be unduly to enrich many
of the payers at a greater expense to the people at large. What is service; (4) Most grantees of retirement benefits had to be members of
more, the process of refunding would entail a tremendous amount the Government Service Insurance System or must at least contribute
of work and difficulties, what with the destruction of tax records a portion of their monthly salaries to the system, whereas members of
and the great number of claimants who would take advantage of Congress were not and did not have to be members of the system.
such grace.
In Martinez among the reasons for invalidating Article
v. Morfe ]"
145 of the Revised Penal Code, which gave legislators immunity from
arrest for certain criminal offenses, was that such immunity "would
July 26, 1967.
amount to the creation of a privileged class, without justification in rea-
'?5'L-231 18,
25276Phil.372 (1946).
2531d.
at 378. AIso People v. Carlos, 7ll Phil. .53-5 ( 1947)
,s9l Phit.37l (1952). tv'15 s1'l{A 479 ( 1965)
r11ld.at377.
t,'44 {('RA 2) (191].1,
156 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
son." This salutary decision, however, has been nullified by both the
1973 and 1987 Constitutions which give to legislators immunity from
arrest, while Congress is in session, for crimes punishable by not more
than six years imprisonment.
The effort of Congress to purify the electoral process has received
cooperative sympathy from the Court against the challenge of odious
discrimination. In In re Subido,2ss Section 4 of R.A. No. 6132 was chal-
lenged as discriminatory on the ground that it disqualified public of-
ficials and employees from serving as delegates to the Constitutional
Convention by considering them resigned from office upon filing of
their certificates of candidacy a disqualification that did not apply to
-
persons employed in private enterprises. The Court answered:25e
That while Section 4 of Republic Act No. 6132 applies ex-
clusively to officials and employees of the govemment or of gov-
ernment-owned and/or controlled corporations, it does not offend
against the equal protection clause of the Constitution, since the
classification is germane to the purpose of the Act and is based on
substantial differences between the situation of said officials and
employees and that of persons outside the government enterprises.'
This effort at purification as basis for valid classification was dis-
cussed more thoroughly from another angle in Imbong v. COMELEC.'uo
Under the 1973 Constitution, a statute providing that a "retired
elective provincial city or municipal official who has received payment
of retirement benefits .. . and who shall have been 65 years of age at the
commencement of the term of office to which he seeks to be elected,
shall not be qualified to run for the same elective local office from which
he has retired" was upheld as valid against the challenge of violation
of the equal protection clause. The reasons given were geriatric: "The
need for new blood assumes relevance. The tiredness of the retiree filr
government work is present, and what is emphatically significant is that
t\ retired employee has already declared himself tired and unavailablc
for the same government work, but, which by virtue of a change of'
6E35 SCRA I (1970).
zseld. at 6.
rd,'15 s('RA 2tt ( 1970)
Sec. I Sec. ART. III _ BILL OF RIGHTS t57
;
1
mind, he would like to assume dgain."zot Indeed, retirees must really be
tired because the challenge was not posed by a retiree.
Of interest in the Marcos years, in the face of the overwhelming
strength of President Marcos' Kilusang Bagong Lipunan, were the at-
tempts of oppositionists to use the equal protection clause to gain a
measure of equality with the ruling party. The Marcos Supreme Court
did not show itself hospitable to such challenges. The first attempt was
by way of challenge to the adoption of block voting as being disad-
vantageous to independent candidates.ln Peralta v. COMELEC,'''the
Court, aside from pointing to safety measures in the actual law which
require the listing of all candidates on the ballots and at the same time
give the voters the option to vote either for party or for individuals, also
curtly pointed out that, if a candidate wishes to avail of the advantage
of block-voting, he was free to join a party.
Next followed the challenge to the rule that residents of Mandaue
City, a supposedly oppositionist city, should be excluded from voting in
provincial elections. To the argument that residents of similarly situated
cities were allowed to vote in provincial elections, the Court said in
cenizav. c)MELEC,26 that this was a "matter of legislative discretion"
and that equal protection would be violated only if groups within the
same city were allowed to vote while others were not'
Again, on the occasion of the campaign for and against the ratifi-
cation of amendments to the Constitution scheduled for submission to
a plebiscite onApril 7,Ig9l,the COMELEC issued rules providing for
equal opportunity in public discussion, equal time in the use of broad-
cast media, and equal space in the papers. On March 12,I98l,the Pres-
ident spent two hours on radio and television speaking in favor of the
amendments. The United Democratic Opposition (UNIDO) asked for
equal time and for media coverage of their Plaza Miranda rally in oppo-
sition to the amendments. On the equal protection issue, the Court said
in UNIDO v. COMELEC,26' that "the head of state of every country in
the world must, from the very nature of his position, be accorded certain
privileges not equally available to those who are opposed to him in the
26rDumlao v. COMELEC, 95 SCRA 392, N5 (January 22' 1980). For reasons of great
public intercst, the Court closed its eyes to the requirement of "standing."
sc--RA 30,56 (Morch I I, 1978).
'l621.t2
16'95 S(lRA?6.1
,172,17.l (Jurrurry 2tt, I9tt0).
'M104 S('RA 17. ltt.9 (April l, lgltl).
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
sense that ... the opposition cannot be placed at par with him, since the
opposition can only fiscalize the administration and punctualize [sic] its
errors and shortcomings." Similar limitations on election campaigns for
the purpose of equalizing opportunities was likewise upheld under the
new Constitution in National Press Club v. Commission on Elections.26s
12. Equal protection and land reform.
A novel approach to the equal protection clause was made in J M.
Tuason & Co. v. Innd Tenure Administration.'z66 Petitioners argued that
singling out their property for expropriation would violate the equal
protection clause. It is clear, of course, that when the government de-
cides to expropriate land, it must decide which among various possible
objects of expropriation it should take. To compel the government to
take "all or none" would be practically to strip the government of the
power of eminent domain. Hence, as Justice Fernando concluded, to
make out a case of violation of the equal protection clause, it would
require a clear and palpable showing that a particular piece of property
was chosen to bear the brunt of governmental authority out of "a feeling
of disapproval or ill-will." Fernando added:26'
Moreover, there is nothing to prevent Congress in view of the
public funds at its disposal to follow a system ofpriorities. It could
thus determine what lands would first be the subject of expropria-
tion. This it did under the challenged legislative act. As already
noted, Congress was moved to act in view of what it considered
a serious social and economic problem. The solution which for it
was the most acceptable was the authorization of the expropriation
of the Tatalon Estate. So it provided under the statute in question.
It was confronted with a situation that called for correction, and
the legislation that was the result of its deliberation sought to apply
the necessary palliative. That it stopped short ofpossibly attaining
the cure of other analogous ills certainly does not stigmatize its ef-
fort as a denial of equal protection. We have given our sanction to
the principle underlying the exercise of police power and taxation,
but certainly not excluding eminent domain, that "the legislature
ois
not required by the Constitution to adhere to the policy of 'all
or none'." Thus, to reiterate, the invocation by petitioner of equal
protection clause is not attended with success.
265G.R.
No. 102653, March 5, 1992.
n6t scRA4t3 (t970).
)"11,1 tl 4\t)
Sec. I Sec. I ART. III - BILL OF RIGHTS 159
that the power of eminent domain
It is clear from J.M. Tuason
can be used by the government as an instrument for the effectuation of
land reform. Land reform, however, to the extent that it seeks to diffuse
enjoyment of land, cannot be used as an argument for nullifying clas-
sification based on alienage.lnThn Sy v. LandTenure Administration,268
Section 3 of R.A. No. 1162, interpreted as effectively excluding aliens
from the right to lease land covered by the law, was upheld as a valid
classification. The law, the Court said, was "aimed at giving realization
and meaning to the policy of the State to provide land for the landless
citizens and enabling them to acquire home-lots at minimum cost."26e
More recently, the name Barrio Obrero of a section of Manila was used
as justification for allowing sale of subdivided lots in the area exclu-
sively to ordinary laborers even to the exclusion of foreclosing mort-
gagees.2To
13. Equality in the criminal process.
One clear consequence of economic inequality is inequality in the
field of criminal justice. In a criminal prosecution the accused finds
himself face to face with the State and all its resources of wealth and
power. Even the rich can feel intimidated by the resources that are at
the disposal of the State. How much more helpless will a poor man feel
when he flnds himself ranged against the power of the State? It is for
this reason that the law takes a special interest in the poor when brought
before the bar of justice to answer for a crime. The Constitution itself,
in Article III, Section 11, which will be discussed below, ordains that
"[flree access to the courts and quasi-judicial bodies and adequate legal
assistance shall not be denied to any person by reason ofpoverty."
The interest of the law in the plight of the poor is the foundation
for the defense made by the Supreme Court, during the Japanese occu-
pation, of Article 66 of the Revised Penal Code which graduates fines
within a prescribed minimum and maximum range determined accord-
ing to the "means and wealth of the culprit." The Court said:27'
,s35 SCRA 250 (1970).
2&ld. at 255.
27"C-'itizen
Surety v. Judge Puno, G.R. No. 34669, December 15, 1982.
zTrPcoplc v. Clhing Kuan, 74 Phn.23,24 ( I 942). The same spirit of concem for the less for-
tunrtc nr&y btr rcatl in 'littt, t,. Sfurt ,J() LW 430 I ( 197 I ) where the U.S. Supreme Court said that the
cqual protcclion eluusc llrr s th(: stutc lirrnr rrrrlornatically corrvcriing linc to irnprisonment for those
who lrt willirrg lrrrl rurrrblc to ply, whilc lirrrilirrg llrrrishrnt:nt to linc litr thrtsc who rtrc trhlc to pay.

160 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
This but goes to show that equality before the law is not
literal and mathematical but relative and practical. That is neces-
sarily so because human beings are not born equal and do not all
start in life from scratch; many have handicaps material, physi-
cal, or intellectual. It is not within the power of-society to abolish
such congenital inequality. All it can do by way of remedy is to
endeavor to afford everybody equal opportunity.
Another case of equality in criminal justice, but not arising from
poverty, presents an instance ofthe equal protection clause and the due
process clause combining to protect the liberty of a person. InGumabon
v. Director of Prisons,,,, petitioners had been sentenced to life impris-
onment for the complex crime of rebellion with murder. Subsequently,
People v. Hernande7213 negated the existence of such complex offense.
Petitioners asked for release invoking the equal protection clause.
Granting the petition, the Court said: "The continued incarceration after
the twelve-year period when such is the maximum length of imprison-
ment in accordance with our controlling doctrine, is fraught with impli-
cations at war with equal protection.'z?4
With the creation of the Sandiganbayan mandated by the'1973
Constitution came the challenge on equal protection grounds to the
Sandiganbayan Law. Charged with estafa before the Sandiganbayan,
petitioner contended that the law creating the special court was un-
constitutional because procedural rights of accused before the special
court, such as the extent of the right of appeal, were less than those
before ordinary courts for the same offense. In upholding the law, the
Court said in Nuftez v. Sandiganbayan,2ls that the constitutional com-
mand mandating the creation of the special court in recognition of the
pervasiveness of crime in public office was itself authority for making
a distinction between prosecution for dishonesty in public service and
prosecution for crimes not connected with public service. The Court
saw Article XIII (1973) as textual exception to the general guarantee of
equal protection in the Bill of Rights and as confirmatory of justifiably
distinct treatment of comrpt public officers.
,7137 SCRA420 (1971).
,7399 Phil.5l5 (1956).
SCRA at 428.
'?7437
r/'l
I I S(lRA 4.1:1,445'0 (Jttnuuty .lO, l9ll2).
ART. III - BILLOF RIGHTS
Sec. I
ln Himagan v. People, the Court also allowed different treatment
for accused police officers. Section 47 of R.A. No. 6975, the National
Police Law, allows suspension of a police man to continue beyond 90
days until the case against him is terminated. This was challenged as
violative of the equal protection clause. In upholding the provision the
Court said that the "reason why members of the PNP are treated differ-
ently from the other classes of persons charged criminally or adminis-
tratively insofar as the application of the rule on preventive suspension
is concerned is that policemen carry weapons and the badge of the law
which can be used to harass or intimidate witnesses against them, as
succinctly brought out in the legislative discussions."2'6
Equal protection also played a role the disposition of martial law
cases where military tribunals had been allowed to try civilians. In
olaguer v. Military Commission,2|T the court had declared that mili-
tary tribunals had no jurisdiction over civilians even during martial law.
The Court therefore vacated the conviction of Olaguet. Cruzv. Enrile,z1t
following Olaguer, nullified the proceedings against petitioners who
had been convicted by military tribunals and still serving sentence but,
without ordering their release, had directed the Department of Justice
to file appropriate charges in the proper civil courts against them. Tan
was not among the petitioners in cruz v. Enrile because he was free,
having been acquitted by the military tribunal. Acting on the basis of
Cruz v. Enrile however, the Fiscal filed information against Tan for the
crime for which he had previously been acquitted by a military tribunal.
The Court, beyond ruling that Cruz v. Enrile was not applicable to Tan
because he had not been a party to the suit, also made the following
observation:2to
There is, however, a perceptible lack of consistency in the
application of the Olaguer doctrine to Cruz v. Enrile which needs
to be rectified. For, although the Court nullified the proceedings
against the civilians-petitioners who were still serving their sen-
tences after conviction by the military courts and commissions,
ancl we directed the Secretary ofJustice to file the necessary infor-
r7''llimagan v. People,237 SCRA 538,551 (1994)'
,r7t 50 sctRA 144 ( 1987).
,at60 sCRA 7(X) ( l9til7).
,r't'irn v. Barrios. (i.R. NOs. tl54tll ll2, ()clobcr 18, t990. The court's decision in Tan
('7v7. v
irtlnltlctl llrt' rlisscttl ol Jttstit't' ( ittticl rcz i11 l')nrib.
162 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
mation against them in the proper civil courts, we did not nullify
the court martial proceedings against the other civilians-petitioners
who: (1) had finished serving their sentences; (2) had been granted
amnesty; or (3) had been acquitted by the military courts. We did
not order their prosecution, retrial, and resentencing by the proper
civil courts. We set them free.
In effect, the Court applied one rule for those civilians who
were convicted by the military courts and were still serving their
sentences, and another rule for those who were acquitted, or par-
doned, or had finished service of their sentences. The Court ap-
plied a rule of retroactive invalidity to the first group (whom the
Court ordered to be prosecuted before the proper civil courts) and
another of prospective invalidity for the others (whom the Court
ordered to be released from custody."
To remedy this imbalance, the Court ordered that the Olaguer
doctrine be applied only "to future cases and cases still ongoing or not
yet final when that decision was promulgated" saying that the "trial
of thousands of civilians for common crimes before military tribunals
and commissions during the ten-year period of martial rule ... is an op-
erative fact that may not be justly ignored" and thereby expanding the
application of the "operative fact" principle of Municipality of Mala-
bang v. Benito.280 The Court added that to go against the "operative fact"
would constitute "double jeopardy in hard fact if not in constitutional
logic" and would also be in ex post facto ruling against them.28'
In recent years, the restoration of the death penalty has been chal-
lenged as discriminatory against the poor who cannot obtain the ser-
vices of first class counsel. The argument, however, has been dismissed
as speculative and unsupported by evidence."'
14. Equal protection and women, etc.
"Woman is the lesser man," wrote Tennyson in Locksley HalI.Law
has tended to confirm such societal prejudice and statutes have prohib-
ite{,women from engaging in certain occupations, such as professional
wrestling283 or bartending. "[B]artending by women," said the United
,s27 SCRA533.
28127
SCRA 533
282lbid.
28r8.g., State v. Huntcr,20ll Orc. 2112,3(XI l'. 2(l 4.55 ( 1956)
Sec. I Sec. I ART. III - BILL OF RIGHTS 163
States Supreme Court in Goesart v. Cleary ]'o may, in the allowable leg-
islative judgment, give rise to moral and social problems against which
it may devise preventive measlues. ...." The Court also said''s
The fact that women may now have achieved the virtues that
men have long claimed as their prerogatives and now indulge in
vices that men have long practiced, does not preclude the States
from drawing a sharp line between the sexes, certainly in such
matters as the regulation of the liquor traffic. ... The Constitution
does not require legislatures to reflect sociological insight, or shift-
ing social standards, any more than it requires them to keep abreast
ofthe latest scientific standards.
The Court also justified an exception made in favor of wives and
daughters of the owners of liquor establishments by saying that "the
legislature need not go to the full length of prohibition if it believes that
as to a defined group of females other facts are operating which either
eliminate or reduce the moral and social problems otherwise calling for
prohibition."zae
It is doubtful if such reasoning will sit well with Filipina'owomen
libbers" especially since Section 14 of Article II, which will be dis-
cussed in its proper place, now commands the State to ensure the fun-
damental equality of women and men before the law and since Article
IV has sought the equalization of men and women at least in matters
of citizenship. Filipinas might, however, take heart from the victory
of sorts for women's lib in Reed v. Reed,'"t which invalidated the Ida-
ho Probate Code provision giving mandatory preference to men over
women when members of the same entitlement class apply for appoint-
ment as the administrator of an estate. However, within four months
aftet Reed, "men's lib" struck back. Under Illinois law, parents can be
deprived of custody of their children only after notice and hearing. An
unwed father, however, did not come under the definition of "parent"
in the Juvenile CourtAct. The children of unwed fathers become wards
of the state upon the death of their mother. The United States Supreme
14-135 U.S.464,466 ( 1948).
!8'hl.
:^,'ll.
*/404 l,.s.7t(t971).
 THE 1987 CONSTITUTION Sec. I
OF THE REPUBLIC OF THE PHILIPPINES
Court ruled in Stanley v.Illinoiszss that an unwed father cannot be denied
custody of his children without a hearing on parental fitness.2*n
ln Philippine Telegraph and Telephone Company v. NLRCIq the
court proscribed the company policy of not accepting or considering
as disqualified from work any woman worker who contracts marriage.
Since, however, PT&T is a private corporation, this decision must be
Seen not so much as a constitutional law case as a civil law case under
Article 32 of the Civil Code.
15. Miscellany on equal protection.
Many of the appeals made to the equal protection clause may be
classed as appeals to the "usual last refuge of constitutional arguments."
Hence, in not a few cases, the Court's task has simply been to point out
either the obvious reasonableness of the challenged classification or the
uniform applicability of a particular restraint to all of a class.2e' Not all
of the cases, however, come out with totally satisfactory conclusions.
One such case was Rafael v. Embroidery and Apparel Control
Board,zs2 where petitioner, a member of the Philippine Chamber of Em-
broidery and Apparel Producers, Inc. (PCEAP) objected to the provi-
sion of Republic Act No. 3137 which prescribed that the representative
of the private sector in the Embroidery and Apparel Control and Inspec-
tion Board shall be chosen from the Philippine Association of Embroi-
dery and Apparel Exporters, Inc. (P'A'E.A.E'). Petitioner considered
this discriminatory against PCEAP. The Court answered:2e3
,ffi405 U.S. &5 (1972).
28eof interest to students of family relations is Labine v. vncent,40l U.S. 532 (1971),
where the U.S. Supreme Court said that neither due process nor equal protection bars denial to
illegitimate children of inheritance rights in the father's estate equal to those of legitimate children.
2sG.R. No. 118978, May 23, 1997.
,ntGE.g., Batangas Transportation co. v. Manila Railroad,64 Phil. 312 (1937); People v.
Sabarrc, 65 Phil. 684 (1938); People v. Chan,65 Phil. 611 (1938); Yap Tak Wing and Co' v' Mu-
nicipl?Board of Manila. 68 phil. 511 (1939); Manila Electric co. v. Public utilities Ernployees
asso., z9 Phil. 409 (1947); People v. Isnain, 85 Phil. 648 (1950); Manila Race Horse Trainers
Assn. v. de la Fuente,88 Phil.60 (1951); Tolentino v. Board ofAccountancy,90 Phil. 83 (1951);
Co Kiam v. City of Manila,96 Phil' 649 (1955)l Manansala v Herras, 103 Phil' 575
(1958); Ca-
bangis v. Almeda-Lopez,1o Phil.443 ( I 940): Government v. Visayan surety,66 Phil. 326 1938);
( 'r"t'Krnt.rrNn,'l'ttt.. Strrntur
People v. Solon, L-14864, Novcmber 23' 1960.
tull .- I 997t|, Septcnrhcr 29 , 196'7 .
Ir,21 s1.ftA.166 ( 1967).
ART. III * BILL OF RIGHTS 165
The argument is without merit. Respondent P.A.E.A.E.
was not singled out by the law in order to favor it over and above
others, but rather because it is the dominant organization in the
field. Under the law no privileges are accorded P.A.E.A.E. mem-
bers which are not similarly given to non-members. Both are
within the coverage of theAct. Non-membership in the P.A.E.A.E.
does not mean that the benefits granted and the restrictions im-
posed by the Act shall not apply to those who choose to venture
into the business independently.
Apparently, either the Court did not consider the privilege of being
the sole source of private representation in the Control and Inspection
Board a favor, or it forgot that this favor was denied the rival PCEAP.
Most equal protection cases, however, are run of the mill. For in-
stance, in Vera v. Cuevas,2e4 an unequal application of the requirement of
warning markers on infant feed was proscribed while in Thxicab Opera-
tors v. Board of Transportation2es special regulations imposed on taxi-
cabs as distinct from other modes of public transportation was upheld.
16. The future of equal protection.
The question has been asked "whether the command implicit in
equal protection constitute merely a ban on the creation of inequalities
by the state or a command, as well, to eliminate inequalities existing
without direct contribution thereto by state action."2e6 In other words,
does the equal protection clause merely prohibit the state from institu-
tionalizing inequality or does it command the state to take positive mea-
sures to eradicate inequalities that have arisen not necessarily through
state action?
The equal protection clause in the constitution is a legacy from "a
nation which depends so greatly on initiative and achievement in the pri-
vate sector to determine the distribution of most of society's goods,"2e7
and which consequently has not recognized in the state a constitution-
ally imposed "duty to raise everyone to a minimum acceptable standard
'?q90 SCRA 379 (May 3l, 1979).
']e1(1.R. No..5t)234, Septemher 30, 1982.
(\trw, lt)6-l T'rnu: Fonswono: "Eeunr tu Ontclll nNo EquaL w
I'rrr.l'rrr rrrl l,rr;rsr nrrvr ntn lr.xrrrrlrvl IIR^N(1ltis (r; r'ltLGovuRNMarlr," 78 HARV. L. REV. 143.
l4ll ( l9(r4).
r''ll)t'vclrprrrcrrlsintltcl,lw li;rutl l'r'otcetion,ll2 llARV. l..RliV. l065, ll9l(1969).
t66 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
of living."2e8 But even in that nation and under the vague generality of
its equal protection clause there have been significant strides towards
recognizing a constitutionally imposed duty of the state to take positive
measures to achieve equality in certain fields, such as the requirement
of free court transcripts for indigents.'ee
Philippine constitutional law, however, does not have to take
its cue from American developments in law before it can take bolder
strides towards equalization. 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," furthet explicated
in Article XIII, are clear commands to the State to take affirmative ac-
tion in the direction of greater equality. The Commission on Elections
is given broad powers in order to enable it to implement laws seeking to
equalize political opportunities. The command to Congress to prohibit
political dynasties has equalization for its goal. In the Bill of Rights,
Section 11, there is an express guarantee of free access to the courts
regardless of ability or inability to pay. Finally, in Article XIV the State
is commanded to make quality education accessible to all.
There is thus in the Philippine Constitution no lack of doctrinal
support for a more vigorous state effort towards achieving a reasonable
measure of equality. The Puno Supreme Court, for instance, is vigor-
ously promoting equal justice by its efforts to bring justice especially to
the under privileged through the Justice on Wheels program. Equality is
not an ideal which can be achieved by doctrinal fiat alone. The practical
problems of surmounting the monumental obstacles that stand in the
way towards approximating the ideal remain as one of the most daring
challenges to any government administration.
Snc.2. Ttm nrcnr oF THE PEoPLE To BE sEcuRE IN TITEIR
PERSONS, HOUSES, PAPERS, AND EFFECTS AGAINST L,I\REASONABLE
I SEARCHES AND SEIZURES OF WIIATEVER NATURE AND FOR ANY PURPOSE
SHALL BE INVIOLABLE, AND NO SEARCH WARRANT OR WARRANT
OF ARREST SHALL ISSUE EXCEPT UPON PROBABLE CAUSE TO BE
2o8ld.
al 1192.
2sCrillin v. lllinois, 351 tJ.S. l2 ( 1956)
Sec.2 Sec. 2 ART. III - BILL OF RIGHTS 167
DETERMINED PERSONALLY BY THE JUDGE AFTER EXAMINATION T]NDER
OATH OR AFFIRMATION OF THE COMPLAINANT AND THE WITNESSES
IIE MAY PRODUCE, AND PARTICULARLY DESCRIBING THE PLACE TO BE
SEARCHED AND THE PERSONS OR THINGS TO BE SEIZED.
1. Purpose of the provision.
One lofty purpose of the protection against unreasonable searches
and seizures
- and, perhaps, the most important in the eyes of the
Filipino just freed from the Spanish regime
- was clearly set out in an
early decision of the Supreme Court:3m
The inviolability of the home is one of the most fundamental
of all the individual rights declared and recognized in the political
codes of civilized nations. No one can enter into the home of an-
other without the consent of its owners or occupants.
The privacy of the home
- the place of abode, the place
where a man with his family may dwell in peace and enjoy the
companionship of his wife and children unmolested by anyone,
even the king, except in rare cases
- has always been regarded by
civilized nations as one of the most sacred personal rights to which
men are entitled. Both the common and the civil law guaranteed
to man the right of absolute protection to the privacy of his home.
The king was powerful; he was clothed with majesty; his will was
the law, but, with few exceptions, the humblest citizen or subject
might shut the door of his humble cottage in the face of the mon-
arch and defend his intrusion into that privacy which was regarded
as sacred as any of the kingly prerogatives. The poorest and most
humble citizen or subject may, in his cottage, no matter how frail
or humble it is, bid defiance to all the powers of the state; the wind,
the storm and the sunshine alike may enter through its weather-
beaten parts, but the king may not enter against its owner's will;
none of his forces dare to cross the threshold of even the humblest
tenement without its owner's consent.
"A man's home is his castle," has become a maxim among
the civilized people of the earth. His protection therein has be-
come a matter of constitutional protection in England, America,
and Spain, as well as in other countries.
rrrrll.S. v.At.co, I l,hrl. ltll, lll4 11t114y
168 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Or, as a later decision put it, the guarantee prevents a person from
being irreversibly "cut off from that domestic security which renders
the lives of the most unhappy in some measure agreeable.'to'
Section 2, however, is not just a circumscription of the power of
the state over a person's home and possessions. More important, it pro-
tects the privacy and sanctity of the person himself. It is a guarantee of
the right ofthe people to be secure in their "persons. . . against unrea-
sonable searches and seizures." It is therefore also a guarantee against
unlawful arrests and other forms of restraint on the physical liberty of
the person.
The constitutional guarantee is not a prohibition of all searches
and seizures but only of "unreasonable" searches and seizures. What
are "unreasonable searches and seizures?" For search or seizure to be-
come unreasonable, there must be in the first place a search or seizure
in the constitutional sense. The point at which seizure occurs is eas-
ily enough determined; but at what point does an inspection become
a search in the sense of Section 2? This became an issue in cases in-
volving police check points instituted at a time when the country was
wracked by crimes and the government by coup attempts. The Court
in Valmonte v. de Vlla said that there is as yet no cause for th6 ap-
plication of the constitutional rule when what are involved are routine
checks consisting of "a brief question or two. For as long as the vehicle
is neither searched nor its occupants subjected to a body search, and
the inspection of the vehicle is limited to a visual search, said routine
checks cannot be regarded as violative of an individual's right against
unreasonable searches and seizures."'o'
People v. Escafio3|3 elaborated on this further in dealing with
checkpoints when a gun ban has been imposed by the Comelec. Escafio
described what are allowable checkpoints:
Those which are warranted by the exigencies of public order
and are conducted in a way least intrusive to motorists are allowcd.
For, admittedly, routine checkpoints do intrude, to a certain ex-
o "In dealing with probable cause ... as the very name implies, we
tent, on motorists'right to 'free passage without intem"rption,' but
rrPeople v. Bolasa, G.R. No. 125754, December 22, 1999.
rr l 85 SCRA 665, 669 ( I 990).
3o3People v. Escaffo, G.R. Nos. 129756-511, Janrrirry 2ll. l(XX).'l'lrt't:rst' irrvrrlvtrl
rantcd entry hy the policc rrpon sccing lhlorrgh;r snr:rll rvirrrlrrrv ir rrurrr ;rrtl rvorrrirrr pirtkinl'.
pcc{crl rrxrri juirrrir.
Sec.2
Sec.2 ART. III _ BILL OF RIGHTS
it cannot be denied that, as a rule, it involves only a brief detention
of travelers during which the vehicle's occupants are required to
answer a brief question or two. For as long as the vehicle is nei-
ther searched nor its occupants subjected to a body search, and
the inspection of the vehicle is limited to a visual search, said rou-
tine checks cannot be regarded as violative of an individual's right
against unreasonable search. In fact, these routine checks, when
conducted in a fixed area, are even less intrusive. We see no need
for checkpoints to be announced, as the accused have invoked.
Not only would it be impractical, it would also forewarn those
who intend to violate the ban. Even so, badges of legitimacy of
checkpoints may still be inferred from their fixed location and the
regularized manner in which they are operated.
As a general rule, however, wherever there is a search or seizure,
the plain import of the language of the Constitution, which in one sen-
tence prohibits unreasonable searches and seizures and at the same
time prescribes the requisites for a valid wzlrrant, is that searches and
seizures are unreasonable unless authorized by a validly issued search
warrant or wiurant of arrest. Thus, the fundamental protection given by
the search and seizure clause is that between person and police must
stand the protective authority of a magistrate clothed with power to is-
sue or refuse to issue search waffants or warrants of arrest.
2. Probable cause.
The key function of the officer whom the Constitution has inter-
posed between state and private person is the determination of the ex-
istence ofprobable cause: "no search warrant or warrant ofarrest shall
issue except upon probable cause." Probable cause is then the primary
requirement for the issuance of a warrant, and, as will be seen later,
its existence is also one of the requirements for the na:rowly drawn
instances when search or seizure may be made without a waffant. What
then is probable cause?
deal with probabilities. These are not technical; they are the factual and
practical considerations of everyday life on which reasonable and pru-
dent men, not legal technicians act."3* It has been defined generally as
rrrrrv:rr
srrs
uHllrinegnr v. Unitcd Stntes,33ll ll.S. l6{), 175 ( 1949)
d
170 THE 1987 CONSTTTUTION
OF THE REPUBLIC OF THE PHILIPPINES
"such reasons, supported by facts and circumstances, as will warrant a
cautious man in the belief that his action, and the means taken in pros-
ecuting it, are legally just and propel."ros It is "such facts and circum-
stances antecedent to the issuance of a warrant, that are in themselves
sufficient to induce a cautious man to rely upon them and act in pursu-
ance thereof."'e
As implied by the words themselves, "probable cause" is con-
cerned with probability, not absolute or even moral certainty. The pros-
ecution need not present at this stage proof beyond reasonable doubt.
The standards of judgment are those of a reasonably prudent man, not
the exacting calibrations of a judge after a full-blown trial.3.?
For judges of municipal courts the rule for the issuance of war-
rants of arrest is found in the Rules of Court which requires that a judge
"issue a warrant of arrest if he finds after an examination in writing and
under oath of the complainant and his witnesses in the form of search-
ing questions and answers, that a probable cause exists."3o8
But to establish probable cause of illegal possession of firearms
the witness must have personal knowledge of the existence of the fire-
arms and of the absence of license for such firearms.3.e Moreover, to
prevent stealthy encroachment upon, or gradual depreciation of the
right to privacy, a liberal construction in search and seizure cases is
given in favor of the individual. Hence, there is no presumption of regu-
larity of searches.3'o
More specifically, probable cause must be defined in relation to
the action which it justifies. Probable cause for an arrest or for the is-
suance of a warrant of arrest would mean such facts and circumstances
which would lead a reasonably discreet and prudent man to believe
that an offense has been committed by the person sought to be arrested.
Probable cause for a search would mean such facts and circumstances
which would lead a reasonably discreet and prudent man to believe that
an offense has been committed and that the objects sought in connec-
tion with the offense are in the place sought to be searched. It should
t 'ral-- I 9550, June 19, 1967 .
ssU.S. v. Addison,28 Phil. 566,570 (1914).
ffiPeople v. Sy Juco, 64Phi1.661,674 (1937).
3o\4icrosoft Corporation v. Maxicorp, G.R. No. | 40946, September I 3, 2004.
r8Tabujara v. People. G.R. No. I 75 I 62, October 29, 2008.
aDBetoy v. Judge,A.M. No. MTJ-05-1608, Fcbnrary 26,211116.
'r0Sony Music v. Jutlgc l rslrtrft rl, G.R. No. I 561104, Murch 4, 2(X)5.
1
Sec.2 ART. III - BILL OF RIGHTS t7l
be noted, however, that unlike proof of probable cause for warrant of
anest, probable cause for a search warrant need not point to a specific
offender.," But, in either case, it should be emphasized that what is re-
quired is not proofbeyond reasonable doubt but merely probable cause.
"Evidence required to establish guilt is not necessary.""'
What amounts to sufficient evidence may differ from case to case
depending on the nature of the object of search. Thus, for instance, it
has been held that in an application for a search warrant for contraband
videotapes the presentation of the master tapes of copyrighted films
from which copies had been made is essential but only if there is doubt
about the true nexus between the master tape and the copies.3'3
In the 1967 case of Stonehill v. Diokno]'o the Court said that the
establishment of the existence of probable cause "presupposes the intro-
duction of competent proof that the party against whom it is sought has
performed particular acts, or committed specffic omissions violating
a given provision of our criminal law." The Court, in invalidating the
warrant issued in the case, said that the description of the offense sim-
ply as "violation of the Central Bank Laws, Tariff and Customs Laws,
Internal Revenue Code and Revised Penal Code" made it "impossible
for the judges who issued the warrants to have found the existence of
probable cause."3r5 In other words, "probable cause" means probable
cause of something specific.
The situation was different in Central Bank v. Judge Morfe,"u
where failure to show probable cause was also raised by a respondent
savings and loans association. The association was one not authorized
to accept deposits of funds from the public nor to engage in the banking
rWebb v. de Leon, G.R. No. 1 21 234, August 23, 1995.
3r
3r2Henry v. United states,361 u.s.98, 102 (1959).
3r3Columbia Pictures v. CA, G.R. No. 110318,August 28,1996.In two earlier cases,20rft
Century Fox Films v. Court of Appeals, l64 SCRA 524 (1988); Columbia Pictures, Inc. v. Court
tf Appeals,237 SCRA 367 (1994), the Court had said "The court cannot presume that duplicate or
copied tapes were necessarily reproduced from the tapes that [the complainant] owns,
'r5The Court stressed the seriousness of the irregularity by pointing to the amended provi
sion ol'the Rulcs ol'Court which now says that "a search warrant shall not issue but upon probable
clusc in conncction with rxrc specific otTense" and that "no search warrant shall issue for more
llran onc spccilic oflbnse." Section 3, Rule 126. This amendment was passed postthe issuance
ol'thc Stonclrill wrrrnrnts (hut hefirrc thc present decision) and, according to one wrilet, propter.
lrrnNctsrrr, ('RtMtNAr l'utt ttnttt llt)(|.
'r,1. .!()l lr)..1ltrrc lO, lr)(r7.
 THE I987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
business nor to perform any banking activity or function. After observ-
ing the activities of the organization over a period of time, a member of
the intelligence division of the Central Bank filed an application for a
search wanant alleging that the organization was engaging in unauthor-
ized banking activity "by receiving deposits of money for deposit, dis-
bursement, safekeeping or otherwise ... without having first complied
with the provisions of the Republic Act No. 337 ." The sufficiency of
these averments for establishing probable cause was challenged on the
ground that there was no showing of personal knowledge of "specific
illegal transactions" with identified parties. The Court answered this
argument by saying that "the failure of the witness to mention particular
individuals did not necessarily prove that he had no personal knowl-
edge of specific illegal transaction ... even if the names of the indi-
viduals concerned were unknown to him." Moreover, the interest of the
law in regulating this particular type of operation, the Court said, was
not necessarily to protect a specific "victim" but "to protect the public
against actual as well as potential injury." The acts imputed to the as-
sociation, besides, were not "isolated transactions distinct from the type
of business in which it was generally engaged" but "the general pattern
of the business organization."
3. Determination of probable cause: by whom and how;
meaning of "personally."
Article III, Section 2, says that probable cause is "to be determined
personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce." The provision then
poses two questions: (1) Who may determine probable cause? (2) What
procedure must be followed in determining probable cause?
Under Article III, Section 1 (3), of the 1 935 Constitution, probable
cause could be determined only by a judge and by no other officer. Qua
Chee Ganv. Deportation Board', called attention to this rule which was
a departure from the Fourth Amendment of the American constitution
and from earlier organic acts applicable to the Philippines. The Court
n61gft:ts
3rTSCRA 27 (1963). Probable cause for the purpose of
liling an infirrmation, howcvcr, is
determinedbytheprosecutingofticer.Pcoplcv.('ourtol Appcals,(i.R.No. 126(X)5,.ltrnuary2l,
I 999
rrNs('Rn l5 (r (l(Xrl).
Sec.2 Sec.2 ART. III - BILL OF RIGHTS t73
[A] notable innovation in this guarantee is found in our Con-
stitution that it specifically provides that the probable cause upon
which a warrant of arrest may be issued, must be determined by
the judge after examination under oath, etc., of the complainant
and the witnesses he may produce. This requirement
- "to be de-
termined by the judge" is not found in the Fourth Amendment
-
of the U.S. Constitution, in the Philippine Bill or in the Jones Act,
all of which do not specify who will determine the existence of a
probable cause. Hence, under their provisions, any public officer
may be authorized by the legislature to make such determination,
and thereafter issue the warrant of arrest. Under the express terms
of our Constitution, it is, therefore, even doubtful whether the ar-
rest of an individual may be ordered by any authority other than
the judge if the purpose is merely to determine the existence of
a probable cause, leading to an administrative investigation. The
Constitution does not distinguish between warrants in a criminal
case and administrative warrants in administrative proceedings.
And, if one suspected of having committed a crime is entitled to a
determination of the probable cause against him, by a judge, why
should one suspected of a violation of an administrative nature
deserve less guarantee? Of course it is different if the order of ar-
rest is issued to carry out a final finding of a violation, either by an
executive or legislative officer or agency duly authorized for the
purpose, as then the warrant is not that mentioned in the Constitu-
tion which is issuable only on probable cause. Such, for example,
would be a warrant of arrest to carry out a final order of deporta-
tion, or to effect compliance of an order of contempt.
ln Collector of Customs v. Villaluz,"' the Court also ruled that
judges, since the Constitution has conferred upon them the power'to de-
termine probable cause for the purpose of issuing warrants, necessarily
also have the power to conduct preliminary examination even if statutes
are silent about such power. Moreover, inherent in the courts'power to
issue search warrants is the power to quash warrants already issued.
The motion to quash should be filed in the court that issued the warrant
unless a criminal case has already been instituted in another court, in
which case, the motion should be filed with the latter.32o
\r'7 I SCRA 356, 373 (June I tl, I 976). ln his concurrence Justice Fernando pointed out that
thc ruling is <xrly on thc power of .jrrdgcs to conduct preliminary e,rarnination and not on the power
lo ('(trr(lucl ;xelirrrirrnry i nw st i 14ttt it n.
'"'Solitl liitutglcStlcsv.Slrcrill,(i.R.No. I44.10(),Novctuhtrr23,2(X)I.
174 THE 1987 CONSTITUTION
OF THE REPUBLIC OF TTIE PHILIPPINES
Since Qua Chee Gan,in an undeviating line of cases, the Supreme
Court has held that the Commissioner of Immigration, an executive of-
ficer, cannot issue warrants of arrest in aid merely of his investigatory
power.32r
4. From the 1973 Constitution interlude to the 1987 resto-
ration.
The 1973 provision departed from the 1935 rule. Under that 1973
law, probable cause could be determined also by "such other responsible
officer as may be authorized by law." While judges thus had authority
from the Constitution itself to determine probable cause, the Constitu-
tion also authorized the legislative authority to designate other "respon-
sible offlcers" to perform the same function. The jurisprudential task
under this new provision was to try to determine who the "responsible
officers" were who might be authorized by law to determine probable
cause and ultimately to issue warrants.
When the provision came for discussion on the convention floor
on November 27 ,I9lZ,Delegate Suarez moved for its deletion arguing
that the determination of probable cause, and ultimately the issuance of
warrants, was essentially a judicial function. The Convention voted to
support Suarez'motion but only to reverse itself, on motion of Delegate
Duavit, within hours of the initial approval.
It is in fact difficult to support Suarez'claim that the determina-
tion of probable cause is essentially a judicial function. Jurisprudence
attests to the contrary. In Ocampo v. United States,3z2 a case of Philip-
pine origin, the United States Supreme Court stated that "the function
of determining whether probable cause exists for the arrest of a person
accused is only quasi-judicial, and not such that, because of its nature,
it must necessarily be confided to a strictly judicial officer or tribunal."
The previously cited Qua Chee Gan case also points to the contrary rule
both in American jurisprudence and in Philippine law prior to the 1935
Constitution. And in Shadwick v. City of Tampa,323 the United States
SupSeme Court upheld the validity of a warrant issued by a municipal
clerk who was not even a lawyer. This is not difficult to see when one
32rDalamal v. Deportation
Board,9 SCRA 382 (1963); Morano v. Vivo.20 SCRA
(1967); Neria v. Vivo, 29 SCRA 701 ( 1969); Calacday v. Vivo, 33 SCRA 413 ( 1970).
122234 U.S. 9t. l0O (1914).
u'40 l-w 4758(19'1l).
Sec.2 Sec.2 ART. III - BILL OF RIGHTS
recalls that probable cause is a factual and practical concept which is
not necessarily technical.32a
When the amendment was being discussed by the 166-Man Spe-
cial Committee of the 1971 Constitutional Convention charged with
preparing the final working draft of the Convention, Delegate De la
Serna asked who these officers were who may be authorized by law to
issue warrants. The answer of Delegate R. Ortiz was that the provision
contemplated the "situation where the law may authorize the flscals to
issue search warrants or warrants of arrest."32s It was thus clear from
the little there was of Convention discussion that one view was that
the intent of the provision was to make it possible for the legislature to
authorize prosecution or law enforcement officers to issue search war-
rants or warrants of arrest. But in the session of November 27,1972,
it was partly the fear of the dire consequences that could follow from
giving such authority to local chiefs of police and similar officers which
persuaded the Convention to delete the innovation. And when the inno-
vation was eventually restored, the restoration came without any floor
discussion. Could any and every responsible officer then be authorized
to determine probable cause under the 1973 Constitution?
In looking for an answer to this question, an examination of
American jurisprudence should help. American constitutional law does
not ban the grant of this quasi-judicial power to non-judicial officers.
But American jurisprudence has evolved what amounts to a per se rule
prohibiting prosecutors and police officers from issuing warrants. The
American rule is that the estimate of probable cause must be made upon
a "detached scrutiny by a neutral magistrate""u and "not by a policeman
or government enforcement agent."3zt This rule was re-emphasized in
Coolidge v. New Hampshire.328 Moreover, in upholding the validity of a
warrant issued by a municipal court clerk who was not even a lawyer,
Justice Powell said in Shadwickv. City of Tampa}'n
An examination of the Court's decisions reveals that the
terms "magistrate" and 'Judicial officer" have been used inter-
tzaSupra,texl with note 3.
'?sMceting of 166-Man Special Committec, November 16,1972
-562 r2"Kutz v. United States, 3li9 tJ.S. 347,356 ( 1967).
rrTJohnson v. Unitc<l stntcs,333 tJ.S. 10, l4 (1948).
'1403 U.S.44] (197I).
,,040 l.w 4711t.4/({} I ( l97l)
t76 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
changeably. Little attempt was made to define either term, to dis-
tinguish the one from the other, or to advance one as the definitive
Fourth Amendment requirement. We find no commandment in
either term, however, that all warrant authority must reside exclu-
sively in a lawyer or judge. Such a requirement would have been
incongruous when even within the federal system warrants were
until recently widely issued by non-lawyers.
To attempt to extract further significance from the above ter-
minology would be both unnecessary and futile. The substance of
the Constitution's warrant requirements does not turn on the label-
ing of the issuing party. The warrant traditionally has represented
an independent assurance that a search and arrest will not proceed
without probable cause to believe that a crime has been committed
and that the person or place named in the warrant is involved in the
crime. Thus an issuing magistrate must meet two tests. He must
be neutral and detached, and he must be capable of determining
whether probable cause exists for the requested arrest or search.
This Court long has insisted that inferences of probable cause
be drawn by "a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise
of ferreting out crime." Johnson v. United States, supra, at 13-14;
Giordenello v. United States, supra, at 486. In Coolidge v. New
Hampshire, supra, the Court last Term voided a search warrant
issued by the state attorney general "who was actively in charge of
the investigation and later was to be chief prosecutor at trial." Id. at
450. If, on the other hand, detachment and capacity do conjoin, the
magistrate has satisfied the Fourth Amendment's purpose.
What we do reject today is any per se invalidation of a state
or local warrant system on the ground that the issuing magistrate
is not a lawyer or judge. Communities may have sound reasons
for delegating the responsibility of issuing warrants to competent
personnel other than judges or lawyers. Many municipal courts
face stiff and unrelenting caseloads. A judge pressured with the
docket before him may give warrant applications more brisk and
summary treatment than would a clerk. All this is not to imply
that a judge or lawyer would not normally provide the most desir-
Qble review of warrant requests. But our federal system warns of
converting desirable practice into constitutional commandment. It
recognizes in plural and diverse state activity one key to national
innovativeness and vitality. States are entitled to some flexibility
and leeway in their designation of magistrates, so long as all arc
neutral and detached and capahlc of thc prohablc causc dclcrrrrint-
tion rc<;rrircd ol' thcnr.
Sec.2 Sec.2 ART. III - BILL OF RIGHTS
This rule of American jurisprudence is a requirement of due pro-
cess. Due process is basically a rule of fair play, and fair play demands
that the arbiter of human rights be both competent and impartial. Due
process, as a rule of fair play, is also a basic principle of Philippine con-
stitutional law. Thus, the term "responsible officer" in the 1973 search
and seizure clause should have been given a meaning that did not do
violence to due process.
On June 18,1976, the Court could still say that no law had as yet
been passed authorizing an executive officer to issue warrants.r3. There-
after, however, a number of administrative boards were given such au-
thority. Moreover, in People v. Villanueva,33' Justice Aquino made the
assertion that a fiscal is a responsible officer authorized by law within
the meaning of Section 3 (1973). This case, however, was decided in
division and the assertion carried the concurrence of only two other
Justices. It therefore did not establish doctrine.
The above discussion of the 1973 provision, however, has become
academic. The 1987 Constitution has returned to the 1935 rule that war-
rants may be issued only by judges.33' However, the Commissioner of
Immigration may order the arrest of an alien in order to carry out a
deportation order that has already become fina1.333
5. Personal examination of the witnesses.
Whether, however, the officer determining probable cause be a
judge or not, the determination must be made only "after examination
under oath or affirmation of the complainant and the witnesses fre may
produce" and the warrant must contain the required particuladty of de-
scription.
The import of the prescribed manner of examination can be fully
understood when seen against the background of its development.
rtrrcollector of Customs v. Villaluz, 7 I SCRA 356, 373 (June I 8, 1976).
|r I l0 SCRA 465, 470 (December 19, l98l).
r'2Salazar v. Achacoso. G.R.81510, March 14, 1990; Board of Commissioners v' De la
Rosa, 197 S(lRA tt5'1, tl79 ( l99l ).
g
"'Qua ('hcc (inn v. l)cgrrtation Board, SCRA 382 (1963); Calacday v. Vivo' 33 SCRA
41.1 ( l97O): ltrxurl ol (lxnrnissioncrs (('ll)) v. l)c la Rosa, 197 SCRA 853,879 (1991). This last
r.irsc t ltrrilies llre irlrlrlrctrl tlcp:rrlrrrt' lirrrrr llrc rttle itt //rtrrey v. ('tnunissitm<'t'tn Inntigration rtru[
I)rlnrkttirttt, l(rl S('RA lt,t0 ( l()ttlt).
178 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
Under Section 3 of the Jones Law of 1916, the provision was: "That
no warrant shall issue but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched and
the person or thing to be seized." This was supplemented by General
Orders No. 58, Section 98 of which read: "The judge or justice must,
before issuing the warrant, examine on oath the complainant and
witnesses he may produce and take their deposition in writing." Thus,
it was considered an irregularity for the judge to issue a search warrant
without flrst examining the complainant or any witnesses under oath.334
With the adoption of the 1935 Constitution, Section 98 of General
Orders No. 58 became part of the organic law. The constitutional provi-
sion was made to read: "... no warrant shall issue but upon probable
cause, to be determined by the judge after examination under oath or af-
firmation of the complainant and the witnesses he may produce . . . " The
leading case of Alvarez v. Court of First Instance33s settled definitively
the import of this provision. Here, the government agent applying for a
search warrant admitted under oath that he had no personal knowledge
of the facts which were to serve as a basis for the issuance of the warrant
but that he had knowledge of them through mere information secured
from a person he considered reliable. The Court said that the "oath re-
quired must refer to the truth of the facts within the personal knowledge
of the petitioner or his witnesses, because the purpose thereof is to con-
vince the committing magistrate, not the individual making the affidavit
and seeking the issuance of the warrant, of the existence of probable
sns5s."336 The test of sufficiency, according to the Court, was "whether
it had been drawn in such a manner that pedury could be charged there-
on and affiant be held liable for damages snsssd."rrr
On the eve of the I97I Constitutional Convention the need for
personal examination by the officer was reiterated in Bache & Co.
lflUy Kheytin v. Villareal, 42 Phll.886, 894 (1920). The inegularity, however, was not
considdred sufficient cause for ordering the retum of the seized object which, in this case, was
prohibited opium . Id . at 895 .
33564
Phil. 33 (t937).
3361d.
at 43. Same ruling in case under the Jones Law, U.S. v. Addison, 28 Phil. 566, and
later cases of People v. Sy Juco, 64 Phil. 667, 674, (1937); Rodriguez v. Villamicl, 65 Phil. 230,
238 (1937); De Garcia v. Locsin, 65 Phil. 689, 693-4 (1938); Yce Sue Koy v. Almcdr, 70 Phil.
l4l, r4s-6(r940).
r1764 Phil. nt 44.
Sec.2 ART. III _ BILL OF RIGHTS
v. Ruiz3'" and perhaps was pushed to its limit. In the instant case, the
Deputy Clerk took the deposition of the complainant and his witness,
after which the stenographic notes of the deposition were read to the
judge in the presence of the complainant and his witness. The judge
inquired about the correctness of what was read with a few words of
warning against the commission of perjury. Thereafter, the judge issued
the warrant.Be The Supreme Court, declaring the warrant invalidly is-
sued, said:340
This cannot be considered as a personal examination. If
there was an examination at all of the complainant and his witness,
it was the one conducted by the Deputy Clerk of Court. But, as
already stated, the Constitution and the rules require a personal ex-
amination by the judge. It was precisely on account of the intention
of the delegates to the Constitutional Convention to make it a duty
of the issuing judge to personally examine the complainant and his
witnesses that the question of how much time would be consumed
by the judge in examining them came up before the Convention,
as can be seen from the record ofthe proceedings. The reading of
the stenographic notes to respondent Judge did not constitute suf-
ficient compliance with the constitutional mandate and the rule;
for by that manner respondent Judge did not have the opporrunity
to observe the demeanor of the complainant and his witness, and to
propound initial and follow up questions which the judicial mind,
on account of its training, was in the best position to conceive.
These were important in arriving at a sound inference on the all-
important question of whether or not there was probable cause.
Jurisprudence under the 1973 Constitution followed theBache
rule and was recalled in Roan v. Gonzales34' while the draft of 1987
Constitution was being finalized. Citing Mata v. Bayona,3a the Court
said in Roan:3a3 "Mere affidavits of the complainant and his witnesses
are thus not sufflcient. The examining Judge has to take depositions in
writing of the complainant and the witnesses he may produce and attach
them to the record."
n'37 SCRA 823 ( I 97 I ).
"e/r/. at tlJ I .
tt ll3 l-2.
''r'/r/.
ur
145 S('RA (1117,694 (Novt:nrtrcr 25, l9116)
trt l 2lt s('RA,lfltl. .191.
Ir145 S('RA rrl (r()4.
180 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
This rule found in the 1987 text saying that probable cause must be
determined "personally by the judge" was intended to embody Bache.
The import of the addition of the word "personally" was taken up in an
exchange between Commissioner Suarez and Father Bernas where it
was made clear that "the judge conducting the examination must do it
in person and not through a commissioner or a deputy clerk of court."3*
As formulated, however, "personally" defines "determined" and not the
examination of the witnesses. Thus it was that, almost immediately af-
ter the adoption of the new Constitution, in the libel case filed by Presi-
dent Aquino against the late Luis Beltran, the Court could soften the
Bache rule to justify the warrant issued against Beltran.
ln Soliven v. Judge Makasiar, the Court said'345
The addition of the word "personally" after the word "de-
termined" and the deletion of the grant of authority by the 1973
Constitution to issue warrants to "other responsible officers as may
be authorized by law," has apparently convinced petitioner Beltran
that the Constitution now requires the judge to personally examine
the complainant and his witnesses in his determination of probable
cause for the issuance of warrants of arrest. This is not an accurate
interpretation.
What the Constitution underscores is the exclusive and per-
sonal responsibility of the issuing judge to satisfy himself of the
existence of probable cause. In satisfying himself of the existence
of probable cause for the issuance of a warrant of arrest, the judge
is not required to personally examine the complainant and his wit-
nesses. Following established doctrine and procedure, he shall: (l)
personally evaluate the report and the supporting documents sub-
mitted by the f,scal regarding the existence ofprobable cause and,
on the basis thereof, issue a warrant ofarrest; or (2) ifon the basis
thereof he finds no probable cause, he may disregard the fiscal's
report and require the submission of supporting affidavits of wit-
nesses to aid him in arriving at a conclusion as to the existence of
probable cause.
I Sound policy dictates this procedure, otherwise judges
would be unduly laden with the preliminary examination and
investigation of criminal complaints instead of concentrating on
hearing and deciding cases filed before their courts.
1{l RFi('ot{l) 7 t5.
rarl(r7
S('llA 19,1. l()l{ ( l()ttl'l)
Sec.2 ART. III - BILL OF RIGHTS
The Court thereby returned to the 1935 rule in Alvarez which said:
"Neither the Constitution nor General Orders No.48 provides that it is
of imperative necessity to take the depositions of the witnesses to be
presented by the applicant or complainant in addition to the affidavit of
the latter. The purpose of both in requiring the presentation of deposi-
tions is nothing more than to satisfy the committing magistrate of the
existence ofprobable cause. Therefore, ifthe affidavit ofthe applicant
is sufficient, the judge may dispense with that of the other witnessss.":ne
Notwithstanding the Soliven case, however, subsequent decisions
still cite Section 4 of Rule 126 of the New Rules of Criminal Procedure
which says: "Sec. 4. Examination of complainant; record.-The judge
must, before issuing the warrant, personally examine in the form of
searching questions and answers, in writing and under oath the com-
plainant and the witnesses he may produce on facts personally known to
them and attach to the record their sworn statements together with any
affidavits submitted." Thus in Pendon v. Court of Appeals, the Court
reached this conclusion: "We find that the requirement mandated by
the law and the rules that the judge must personally examine the appli-
cant and his witnesses in the form of searching questions and answers
before issuing the warrant was not sufficiently complied with."34? What
this means, however, is that, depending on the circumstances of the
case, the judge may or may not rely on the fiscal's evaluation. Lim, Sr.
v. Judge Felix'or said:
We reiterate the ruling in Soliven v. Makasiar that the Judge
does not have to personally examine the complainant and his wit-
nesses. The Prosecutor can perform the same functions as a com-
missioner in the taking of evidence. However, there should be a
report and necessary documents supporting a Fiscal's bare certifi-
cation. All of these should be before the Judge.
The extent of the Judge's personal examination depends on
the circumstances of each case. We cannot determine beforehand
how cursory or exhaustive the Judge's examination should be. The
judge has to exercise sound discretion for, after all, the personal
determination is vested in the Judge by the Constitution. It can be
as briefas or as detailed as the circumstances ofeach case require.
To be sure, the Judge must go beyond the Prosecutor's certification
'ao(r4I'hil.ll 45. llcilcr:rlctl irrWcbbv. l)e l,con,(i.R.No. l2l234,August23, 1995
14f
l9 I li('l{A,1.)(), :l }7 ( l')(x))
(rlo5,l /, li'lrrrrirry l(). l()r)l
"rN(;.1{ Nos
 19STCONSTITUTION
t82 THE
OF THE REPUBLIC OF THE PHILIPPINES
and investigation report whenever necessary. He should call for
the complainant and witnesses themselves to answer the court's
probing questions when the circumstances of the case so warrants.
Thus, what is clear now is that a judge is not required to personally
examine the complainant and his witnesses or to await the submission
of counter affidavits from an accused. Following established doctrine
and procedure, the judge shall: (1) personally evaluate the report and
the supporting documents submitted by the prosecutor regarding the
existence of probable cause, and on the basis thereof, he may already
make a personal determination of the existence of probable cause; and
(2) if he is not satisfied that probable cause exists, he may disregard the
prosecutor's report and require the submission of supporting affidavits
of witnesses to aid him in arriving at a conclusion as to the existence of
probable cause.34e
6. Particularity of description.
ln Uy Kheytin v. Vllareal jso the Supreme Court explained the re-
quirement of particularity of description thus:
The evident purpose and intent of this requirement is to limit
the things to be seized to those, and only those, particularly de-
scribed in the search warrant
-to leave the officers of the law with
no discretion regarding what articles they shall seize, to the end
that unreasonable searches and seizures may not be made,
- that
abuses may not be committed . . .
This would mean therefore that whatever is not included in the
description may not be seized. Beyond that, however, jurisprudence has
defined the requirement thus:3s'
A search warrant may be said to particularly describe the
things to be seized when the description therein is as specific as
the circumstances will ordinarily allow ... or when the description
expresses a conclusion of fact not of law by which the war-
-
orant officer may be guided in making -
the search and seizure ...; or
when the things described are limited to those which bear direct
relation to the offense for which the warrant is being issued. ...
3aeBorlongan, Jr. v. Peffa, G.R. No. 143591, November 23,2(X)7
$042 Phil. 886, 896 (1920).
'rrllachc und (ir. v. Ruiz..l7 S('RA tt lt.l5.
ART. III _ BILL OF RIGHTS
Sec.2 Sec.2
Like the question of probable cause, the question of adequacy
of description was also met early in the pre-Commonwealth and ear-
ly post-Commonwealth period. ln People v. Veloso,3s2 the legality of a
John Doe warrant of arrest was questioned. (The principle enunciated
here is applicable, mutatis mutandis,to search warrants.) In upholding
its validity, the Court examined the warrant as a whole. While the per-
son to be seized was simply identifled as John Doe, the place occupied
by him was identified as "the building numbered I24 Calle Arzobispo,
City of Manila, Philippine Islands." The Court concluded:353
[A] is invariably recognized that the warrant for the appre-
hension of an unnamed party is void, "except in those cases where
it contains a descriptio personae such as will enable the fficer
to identifu the accused." The description must be sufficient to in-
dicate clearly the proper person upon whom the warrant is to be
served. As the search warrant stated that John Doe had gambling
apparatus in his possession in the building occupied by him at No.
124 Calle Arzobispo, City of Manila, and as this John Doe was
Jose Ma. Veloso, the manager of the club, the police could identify
John Doe as Jose Ma. Veloso without difficulty.
There is, however, a limit to John Doe warrants. Thus, a warrant
for the arrest of fifty John Does is of the nature of a general warrant
which does not satisfy the requirement of particularity of description.'*
With reference to property, the Court has also said that the de-
scription "is required to be specific only so far as the circumstances will
ordinarily allow" and "where, by the nature of the goods to be seized,
their description must be rather general, it is not required that a tech-
nical description be given, as this would mean that no warrant could
issue."35s Thus, the description "fraudulent books, invoices and records"
was found sufficient."u So also was the description "books, documents,
receipts,lists, chits and other papers used by him in connection with his
activities as money-lender, charging a usurious rate of interest, in viola-
x,48 Phil. I69 (1925).
'5'/r/. al I ll I .
"al\ug1uulumut v. ('usur, 159 SCRA 599, 6l I (1988).
"'l'copltr v. Ruhio, 57 l'hil. 3tt4, 389 (1932); Alvarez v. Court of First Instance, 64 Phil.
13. 4(r ( 19.17).
11"57
I'hil. lt ll{().
 185
ART. III - BILLOFRIGHTS
THE 1987 CONSTITUTION Sec.2
OF THE REPUBLIC OF THE PHILIPPINES
is insufficient:36'
tion of the 1n1ry.":sz Justifying the sufficiency of the later description, the Similarly the following description
Court said:358 Recorders' rewinders' tape
Television sets, Video Cassettes or
and other machines used
head cleaners, u"""rrorall".qrip*"*
Taking into consideration the nature of the articles so de- J"rl*t-rreproduction, sale, rental/lease'
intended to be used in ,t keep-
scribed, it is clear that no other more adequate and detailed de- video tapes which she is
scription could have been given, particularly because it is diffi- distribution of tt'" uUon"-*"ntioned
;"t #";;.;uilng in the premises above-described'
cult to give a particular description of the contents thereof. The
shops'
description so made substantially complies with the legal provi- be found in legitimate business
sions because the officer of the law who executed the warrant was The items mentioned may
from the earlier discussion
thereby placed in a position enabling him to identify the articles, From this discussion of Stonehilland of
which he did. cause,
-"" itt" the sufficiency of the description
of probable
"J;;; particularity
*fated with the iufficient
the objecr of th" ,"*"1i, "f"*i' identify-
One can see from the above cases that the Court has taken a broad The possibility of properly
of the averments of tt'" offensl' of
view of what particularity of description means, and this, in spite of
object th" ;;;;tuy A"p"ni 9n the ptoper identification
ing the in
the oft-repeated assertion that the constitutional protection should be "f r*t'urso became apparent' although
the offense this
given a "liberal construction or a strict construction in favor of the "or,,*itJi'iilt
a different way, in tnJ'"u'" "f
Central Bank v' tiage Morfe;u'In
parties to
individual."se In the case of Stonehill v. Diokno,3& however, the Court ;";i;";ss to identify the names of the
case, the failure cause
set the limit to permissible generality. Here, the warrant simply said: "f of-failure to prove probable
the transaction was ;;tt;i;;;toof of properly identifying the
of accounts, financial records, vouchers, journals, and, hence, u, that
Books
ouj""t of itre searctr' It was
"'oio""f,J;;;"'t*ptssibility argued
correspondence, receipts, ledgers, portfolios, credit journals, type- corporate pape$ *d;;;in" books
contarning;;t an'itemized.list' of :91f",::
writers, and other documents and/or papers showing all business the warrant, commission'" The
amounted to-a "roving
transactions including disbursement receipts, balance sheets and whose seizure *"' ;;;;' to specific
related profit and loss statements. books, it was tnl"td *"e been identified according this ar-
'r""U'
namJ per*.,r,The court, however, rejected
wittr
g"r'k l" this particular case had petitioned for
transactions a
The Court said: The centrai
sument. supervisor of
as the. state administrative
iearch warrant in its capacity to the records of
[T]he warrants authorized the search for and seizure of re-
the operation or uunt'liiii"
ct""
had barred access
cords pertainingto all business transactions ofpetitioners herein, an unreasonable
association by asking for
;; i;
regardless, of whether the transactions were legal or illegal.T\e the murual savings whose inspection
degree of particulJ;f
in tt'" description oi tr'e uoots
warrants sanctioned the seizure of all records of the petitioners
il;nlffii;n*"tt^u the regulatory power of
and the aforementioned corporations, whatever their nature, thus was desired, it *ou'iJ
openly contravening the explicit command of our Bill of Rights the Central Bank'
be suf-
that the things to be seized be particularly described as well
- general
-as tending to defeat its major objective: the elimination of also be noted that it is not enough that the object
It should be applied
besides ttralt ttre warrant
warrants. ficiently oescriteo'"ti i' """"tt*y "Abigail Vari
to what is described' Ct'o'
*t'"'" the-warrant indicated Palay' San
t Buhay Avenue' Sapang
ety Store e,pt. rzoila'"'"'+'n"g*g
3s764 Phll. at 47 .
,l
tsE
&
Id. u,|(.tlluntbiitPicturesv.Fklres,G.R.NoL?8631,June29,|993.
3sePeople v.
Veloso,48 Phil. 169,176 (1925): Alvarez v. Court ol Firsl lnstuncc, 64 Phil. 832-3'
at
r"tSr* ttlstt ttuttt'tl& C'u' v Ruiz' '\? SCRA at
42; People v. Sy Jucu,64 Phil. 667,674 ( 1937). ,r,,(i R. No. lOll(),Jrrlrc 1()' l()67'
"*'(i.R. No. l()55o, Junc 19, l9(r7.

&
 186 TI{E 1987 CONSTITUTION Sec.2 ART. III _ BILLOFRIGHTS 187
Sec.2
OF THE REPUBLIC OF THE PHILIPPINES

Jose del Monte, Bulacan," it was illegitimate to apply it to Apt. 1, a unit

t, The case of Material Distributors (Phil-),Inc 'v. Judge Natividad,36s
at the rear of and immediately next to what is described. "It is neither
d had an opportunity to look into constitutional issues arising from the
fair nor licit to allow police officers to search a place different from .,4
"iii*
provision. Under authority of Rule 27, Judge Natividad had granted
that stated in the warrant on the claim that the place actually searched-
a motion for the production and inspection of: (1) books and papers
-although not that specified in the warrant
- is exactly what they had
in view when they applied for the warrant and had demarcated in their
;r
,;l of Material Distributors, Inc. comprising journals, ledgers, letters and
cablegrams; (2) books and papers belonging to Harry Lyons,likewise,
supporting evidence. What is material in determining the validity of a
comprising journals, ledgers, letters and cablegrams; (3) the originals
search is the place stated in the warrant itself, not what the applicants
of two annexes to the complaint containing lists of names. Against such
had in their thought, or had represented in the proofs they submitted to
an order, three constitutional issues were raised: self-incrimination, un-
the court issuing the warrant."36a
reasonable search and seizure, violation of the privacy of communica-
tion. The decision was outstanding for a very scanty discussion of very
7. Searches and seizures 36of whatever nature and for any
purpose.tt important issues.
The self-incrimination issue arose out of the order to produce the
When the Constitution says that it is meant to cover .,searches
originals of the two annexes to the complaint. The object of such order
and seizures of whatever nature and for any purpose," one might ask
was to ascertain whether the additional names found in the annexes
what the 1971 Convention meant to sweep into the grab-bag. The same
also appeared in the original. In dismissing the allegation of self-in-
language, not found in the 1935 Constitution, is now also in the 1987
crimination, the Court gave nothing beyond this perplexing answer:3n
constitution. It is submitted, although the present writer has not found
"We have considered carefully the reasons advanced by the petitioners
anything explicit in the convention discussions in support of the posi-
in their pleadings in support of this allegation and we found nothing in
tion, that the new phrase has effectively extended the search and serzure
them to show how, without the inspection of Annexes A and B of the
clause to at least two penumbral areas.
complaint, petitioners may incriminate themselves."
The first is the area of constructive search contained in a subpoena
As to the violation of the search and seizure clause, the Court
duces tecum or an order for the production of books and papers. Rule 27
ggid.rrz
ICHECK] of the Rules of Court says in part:
The orders in question ..' pertain to a civil procedure that
Upon motion of any party showing good cause therefor and
cannot be identified or confused with unreasonable searches pro-
upon notice to all other parties, the court in which an action is
hibited by the Constitution. But in the erroneous hypothesis that'
pending may (a) order any party to produce and permit the inspec-
the production and inspection ofbooks and documents in question
tion and copying or photographing, by or on behalf of the moving
is tantamount to a search warrant, the procedure outlined by Rule
party, of any designated documents, papers, books, accounts, let-
ters, photographs, objects or tangible things, not privileged, which
2l [now 271and followed by respondent judge place them out-
side the realm of the prohibited unreasonable searches. There is no
constitute or contain evidence material to any matter involved in
question that upon the pleadings in the case, Sarreal [the party who
the action and which are in his possession, custody or control . . .
asked for the orderl has an interest in the books and documents in
{' question, that they are material and important to the issues between
him and the petitioners, that justice will be better served if all the
facts pertinent to the controversy are placed before the trial court.
3ePeople v. Court
of App€als, G.R. No. 126379, June 26, l99tt. This is tlillercnr liurn llur'.
gos, Sr. v. ChiefofStaff,AFP, 133 SCRA 80O (19s4), where the scarching olliccrs corrcclctl flrr ktr84 Phil. 127 (1949\.
obvioustypographicalenor,orfromFrankllyv.BlR,c.R.No. 129(151,()ckrht:r.2(),2(xx).wlrcre
the mistake in thc dcscription was obvious.
lt
rd'/rl. I 15.
"'/lrl. rrt I J5 (r.
 188 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The question which this pronouncement raises is whether, indeed,
the principles applicable to a search warrant are foreign to Rule 27.
The 1964 case of PANTRANCO v. Judge Legaspis6s even went to the
extent of saying that Rule 27 "permits'fishing' for evidence." This was
reiterated in Caltex (Phil.), Inc. v. Caltex Dealers Association 36e where
the Court said that "'fishing for evidence'is not prohibited but allowed
under the present Rules of Court on Discovery and Deposition, for the
reason that it enables litigants adequately to prepare their pleadings and
for trial, this, in turn, resulting often in the simplification or reduction of
triable issues." When it is realized that the power of the Supreme Court
to issue rules of procedure is subject to the specific constitutional limi-
tation that they shall not diminish substantive rights,3To it becomes clear
that the application of Rule 27 must follow constitutional principles on
search and seizure.
At any rate, even if to equate the power to order the production
of books with search and seizure was, under Material Distributors, an
"erroneous hypothesis," now, with the sweeping coverage of the new
search and seizure clause, the matter should be re-examined. In fact,
even the language ofRule 27 satisfies what the search and seizure clause
demands as a minimum requirement. Probable cause is the minimum
requirement of the search and seizure clause. And the idea of prob-
able cause is expressed in the requirement of Rule 27 that the books
and papers must "contain evidence material to any matter involved in
the action." Moreover, the requirement of particularity of description
is also contained in Rule 27 in that these books and papers must be
"designated." A 1948 American case puts the analogy with search and
seizure thus'"37r
Without attempt to summarize or accurately distinguish all
of the cases, the fair distillation, in so far as they apply merely to
the production of corporate records and papers in response to a
subpoena or order authorized by law and safeguarded by judicial
sanction, seems to be that the Fifth Amendment affords no protec-
I sought to inspect appellant's dwelling. The Supreme Court reversed the
36L-20916-7, December 23, 1964, citing 2 MoneN,
Conurxrs ou rnr Ruu:s ot-
(1963), which in turn cited the Material Distributors case.
36'L-25883, April 29, 1969.
3T0ArticleVIII,Section l3(1935),ArticleX,Section5(5)(1973),ArticleVIll,Secri6n5(5)
(l 987).
rrrOkluhornuPrcssl)uhlishirrg(ir.v.Wrlling. 127 ll.li. ltt6,.l0tt ()(l94tl).
Sec.2 Sec. 2 ART. III - BILL OF RIGHTS 189
tion by virtue of the self-incrimination provision, whether for the
corporation or for its officers; and the Fourth, if applicable, at the
most guards against abuse only by way of too much indefinite-
ness or breadth in the things required to be particularly described,
if also the inquiry is one the demanding agency is authorized by
law to make and the materials specified are relevant. The gist of
the protection is in the requirement, expressed in terms, that the
disclosure sought shall not be unreasonable.
As this has taken form in the decisions, the following spe-
cific results have been worked out. It is not necessary, as in the
case of a warrant, that a specific charge or complaint of violation
of law be pending or that the order be made pursuant to one. It
is enough that the investigation be for a lawfully authorized pur-
pose, within the power of Congress to command. This has been
ruled most often perhaps in relation to grand jury investigations,
but also frequently in respect to general or statistical investiga-
tion authorized by Congress. The requirement of "probable cause,
supported by oath or affirmation" literally applicable in the case
of a warrant is satisfied, in that of an order for production, by
the court's determination that the investigation is authorized by
Congress, is for a purpose Congress can order, and the documents
sought are relevant to the inquiry. Beyond this the requirement of
reasonableness, including particularity in "describing the place to
be searched, and the persons or things to be seized," also literally
applicable to warrants, comes down to specification of the docu-
ments to be produced adequate, but not excessive, for the purposes
of the relevant inquiry. Necessarily, as has been said, this cannot
be reduced to formula; for relevancy and adequacy or excess in
the breadth of the subpoena are matters variable in relation to the
nature, purposes and scope of the inquiry.
The other penumbral area of search and seizure, as yet untouched
by Philippine jurisprudence, became the subject of Camara v. Munici-
pal Court.3'z The case arose out of the conviction of the appellant for re-
fusing entry to a housing inspector who, unarmed with a search warrant,
conviction saying: "We hold that administrative searches of the kind at
Cunt l}t) issue here are significant intrusions upon the interests protected by the
Fourth Amendment, that such searches when authorized and conducted
t'r187 [,.S. 52 1( l()(r7). orzrlrtlin1 Frrtttk v. Mrtryltttul, .t59 tJ.S. .]60 ( l()5())
190 THE 987 CONSTITL]'TION
1 Sec.2
OF THE REPUBLIC OF THE PHILIPPINES
without a wiurant procedure lack the traditional safeguards which the
Fourth Amendment guarantees to the individual."3?3
In arriving at this conclusion, however, the Court was quite aware
"that the only effective way to seek universal compliance with the mini-
mum standards required by municipal codes is through routine periodic
inspections of all structulgs."rzr Thus, the search warrant it required,
the nature of the probable cause and the degree of particularity of de-
scription it prescribed were characterized by the dissent as "a new-
fangled 'warrant' system that is entirely foreign to Fourth Amendment
standards."'75 For determination of probable cause the Court did not
require specification of evidence of violation but allowed the issuing
magistrate's evaluation to rest upon "the passage of time, the nature
of the building (e.g., a multi-family apartment house), or the condition
of the entire area."376 As for description, the Court was willing to ac-
cept warrants on an area-wide basis.3r In justification of this "synthetic
warrant" the Court said: "Such an approach neither endangers time-
honored doctrines applicable to criminal investigations or makes nullity
of the probable cause requirement in this area. It merely gives full rec-
ognition to the competing public and private interests here at stake,and,
in so doing, best fulfills the historic purpose behind the constitutional
right to be free from unreasonable government invasions of privacy."
Still another instance when the issue of search can come up is the
requirement of IDs. Executive Order 420, which standardized ID's in
government offices, was challenged. But the Court said that the EO did
not establish a national ID card system injurious to privacy. EO 420 did
not compel all citizens to have an ID card. EO 420 applied only to gov-
ernment entities that under existing laws were already collecting data
and issuing ID cards as part of their governmental functions. Hence, it
did not require legislation.3'8
Bank enquiries can also raise privacy issues. The Constitution and
the Rules of Court prescribe particular requirements attaching to search
waqants. But these are not imposed by the AMLA with respect to bank
o
3731d.
at 534.
37ald.
at 535-6.
31sId. at
547.
3761d.
at 538.
171
Id.
'/8KMll v. l)inrctor,G.R. No. l(r779ll,April 19,2(X)6
ART. III - BILL OF RIGHTS 19t
inquiry orders. A constitutional warrant requires that the judge person-
ally examine under oath or affirmation the complainant and the wit-
nesses he may produce such examination being in the form of searching
questions and answers. Those are impositions which the legislative did
not prescribe as to the bank inquiry order under the AMLA. Simply put,
a bank inquiry order is not a search warrant or warrant of arrest as it
contemplates a direct object but not the seizure of persons or property.3?'
Waiver of right.
Even when a petitioner admits to opening his bag when the police
asks to see its contents, it does not necessarily follow that the action
signifies valid consent. His implied acquiescence, if at all, may have
been no more than mere passive conformity given under coercive or
intimidating circumstances.3so
Section 26, Rule 114 of the Revised Rules in Criminal Procedure
says that an application for bail or the admission to bail by an accused
is not considered a waiver of his right to assail the warrant issued for
his arrest or the legalities or irregularities thereof. This is a new rule
intended to modify previous rulings of this Court. The new rule is cu-
rative in nature because precisely, it is designed to supply defects and
curb evils in procedural rules.sl
8. Warrantless searches and seizures:38'z(1) search inciden'
tal to arrest.
The rule that searches and seizures must be supported by a val-
id warrant is not an absolute rule. The search and seizure clause has
two parts. The first prohibits "unreasonable searches and seizures" and
the second lays down the requirements for a valid warrant. As the text
stands, it does not yield the conclusion that a search or seizure not sup-
ported by a warrant is necessarily "unreasonable." Thus it is that juris-
prudence recognizes five generally well-established exceptions to the
warrant requirement. They are: (1) search incidental to an arrest, (2)
rTeRepublic v. Eugenio, G.R. No. 174629, February 14,2008.
r"'Vergara v. People, G.R. No. I 70 I 80, November 23, 2007.
fslokabc v. Judgc dc l-eon, G.R. No. 150185, May 27,2OO4.
'trA collvcnienl sunlrnary of thc d()ctrine may be found in People v. Aruta, G.R. No.
120915,April .1, l{)91{,2tttlS(IRA626,637-31,l,nndPadillav.CourtofAppeals,G.R.No. l2l9l7,
Murch 12. 1997.
192 THE 1 987 CONSTITT]'TION
OF THE REPUBLIC OF THE PHILIPPINES
search of moving vehicles, (3) seizure of evidence in plain view, (4)
customs searches, and (5) where there is waiver of the right. A rarer
exception is the de on "exigent circumstance" and the "stop and frisk"
rule.
The Philippine rule on search made incidental to arrest was stated
in Moreno v. Ago Chi'383 "An officer making an arrest may take from the
person arrested any money or property found upon his person which
was used in the commission of the crime or was the fruit of the crime or
which might furnish the prisoner with the means of committing violence
or escaping, or which may be used in evidence in the trial of the cause.
. . ." From the statement of the rule it can be seen that the purpose of the
exception is both to protect the arresting officer against physical harm
from the person being arrested who might be armed with a concealed
weapon and also to prevent the person arrested from destroying evi-
dence within his reach. The exception therefore should not be strained
beyond what is needed in order to serve its purpose. Thls Chimel v.
Califurnia'94 established the rule that the scope of allowable warrant-
less search is limited to the area within which the person arrested could
reach for a weapon or reach for evidence to destroy it. This was a rejec-
tion of the earlier case of United States v. Rabinowitz385 which allowed
warrantless searches of the area within the arrested person's "immedi-
ate control" and defined that phrase so vaguely as to allow a search of
the arrested person's entire premises. Subsequent to Chimel, the U.S.
Supreme Court disallowed warrantless search of a house following an
arrest on the steps,386 search of a house following an arrest twenty feet
from the house,387 and search of a car parked on the driveway following
an arrest in the house.'*'
The rule on the subject is now found in Nolasco v. Pafio.38e T\e
arrest had been made while Nolasco was riding in a jeepney and the
search was made in her house several blocks away from the place of
rErl2 Phil. 439.442 (19O9). A/so People v. Veloso, 48 Phil. 168, 181 (1925); Alvenr v.
.
Dizbn, 76 Phil. 631 ,645 (1946); People v. Che Chun Ting, G.R. Nos. 130568-69, March 2 I , 2(XX):
Padilla v. Court of Appeals, G.R. No. l2l9l7,March 12,1997.
s4395 U.S.752 (1969).
rs339 U.S.56 (19s0).
rtoVale v. Louisiana,399 U.S.30 (1970).
r8?Shipley v. (lalifornia, 395 U.S. 8 I 8 ( I 969).
'*8(ixrlidgc v. Ncw l{lrnpshirc.403 tJ.S.44-l ( l97l).
r"147 S('l(A 50r) ( l()lt7).
Sec.2 Sec.2 ART. III - BILL OF RIGHTS t93
arrest. The original Court ruling under the authoritarian rule had justi-
fied the search as one incidental to an arrest. Nolasco reversed the rule.
Chief Justice Teehankee in his concurring opinion said'3eo "The better
and established rule is a strict application of the exception provided in
Rule 126, Sec. 12 and that is to absolutely limit a warrantless search
of a person who is lawfully arrested to his or her person at the time of
and incident to his or her arrest and to 'dangerous weapons or anything
which may be used as proof of the commission of the offense.' Such
warrantless search obviously cannot be made in a place other than the
place of alTest."3er
9. Warrantless searches and seizures: (2) search of moving
vehicles.
The 1968 Philippine case of Papa v. Mago3e2 decided a case on
search and seizure which was of first impression in this jurisdiction. It
involved the seizure, without warrant, of two trucks coming from the
customs zone of the port of Manila and allegedly loaded with misde-
clared and undervalued imported goods. In upholding the validity of
the search and seizure without wuurant, as authorized by the Tariff and
Customs Code, the Court relied solely on the distinction between mov-
ing vehicles and stationary objects. The Court cited Carroll v. United
States:3e3
The guaranty of freedom from unreasonable searches and
seizures is construed as recognizing a necessary difference be-
tween a search of a dwelling house or other structure in respect
of which a search warrant may readily be obtained and a search
of a ship, motorboat, wagon, or automobile for contraband goods, '
where it is not practicable to secure a warrant, because the vehicle
can be quickly moved out of the locality or jurisdiction in which
the warrant must be sought.
While the distinction is plainly correct, it is important to emphasize
two points. First, the Carroll rule arose out of a portion of the Volstead
rq)/r/. at I 5.
-5
t"rThe Igli-5 Re viscd Rules on Criminal Procedure expressly clarifies this through a change
irr thc cirpt irrn, as l'ollows: "Scc. 12 Seurch incidcnt to lawful arrest. A person lawfully arrested
-
nr:ry ht scirn'herl lirr tllrngcrous wcap()ns ot anything which may be used as proof of the commis-
sion ol an ollcnsc. withotrl n scurch witrranl." (Rulc 126)
"'rl.-2? 1(O, lit'hrulry 2lt, l96l'1.
r"t'.)(,7 II.li. Il.), |5l(l()15)

t94 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Act providing for warrantless searches of a moving automobile on
the open road "where it is not practicable to secure a warrant because
the vehicle can be quickly moved out of the locality or jurisdiction in
which the warrant must be sought."3e4It was thus founded on an exigent
circumstance which demanded immediate action. Thus in Coolidge v.
New Hampshire3es the Court did not allow the warrantless search of a
parked car because the facts did not indicate that it was impracticable
to secure a warant. Secondly, the Carroll rule does not dispense with
the requirement of probable cause. As a later decision put it, "The
Carroll doctrine does not declare a field day for the police in searching
automobiles. Automobile or no automobile, there must be probable
cause for the search."3n6 Probable cause is the "minimum requirement
for a reasonable search permitted by the Constitution."3eT
It should also be noted that the Papa case involved enforcement of
customs laws which, as is also recognized in Papa, establish the third
exception to the requirement of warrants.3e8 It was therefore compara-
ble to American border control cases which give to customs and im-
migration officers the broadest power of search.'n'As the Carroll case
itself saidi* "Travelers may be . . . stopped in crossing an international
boundary because of national self protection reasonably requiring one
entering the country to identify himself as entitled to come in, and his
belongings as effects which may be lawfully brought in." Thus, the doc-
trine in the Papa case cannot be applied without necessary purification
to any and every search of moving vehicles.
The rule on moving vehicles was also applied by the Court to a
fishing vessel found violating fishery laws,4otbut not to a motor launch
3%Id.
3e5rm3
U.S.443, 461 (1911).
3sAlmeida-Sanchez v. United States, 37 L FA. 2nd 596, 600- 1 ( I 973
).
3eTChambers v. Maroney,399 U.S.42,5l (1970).
3e8See also Pacis v. Pamaran,56 SCRA 16 (March 15,1974). Moreover, the rule is that
thamoment imported goods are actually in the possession or control of Customs, the Bureau of
Customs acquires exclusive jurisdiction over the goods, subject only to appeal to the Court ofTax
Appeals and the SuprEme Court. Collector of Customs v. Villaluz, 7l SCRA 356,3'13 (June lti,
r976).
3el Scnw,qnrz, Rrcms or rnt
Pr,*sorv (1968) 216-8.
m267 U.S. at 154.
4rRoldan, Jr. v. Arca, 65 SCRA 336 (July 25, I 975). The seizurc was also
.justilicd as inc i-
dental tothe arrest ol'thc crcw. Ilizun v. ('orrrt ol Agrpuls,(1.R. No. II9619, Dcccrnbcr Ill, 199(r,
265 S('RA 5t7.527 28.
Sec.2 ART. III _ BILLOFRIGHTS
Sec.2
that had already been stripped of its engine.4o2 Nor was wilrantless
search allowed where the officers had the evidence and every opportu-
nity to obtain a warrant while waiting for an inter-island boat to arrive.4o3
A police checkpoint can also be the occasion for a search of a
moving vehicle. Illustrative of this is People v. Malmstedt 404 Accused,
Malmstedt, was a passenger on a bus from Sagada to Baguio City
which was stopped at a checkpoint in Camp Dangwa. The checkpoint
had been set up on the basis of reports that vehicles from Sagada were
being used to transport marijuana. Moreover, information had been re-
ceived that a Caucasian coming from Sagada had prohibited drugs in
his possession. During the inspection, officers noticed a bulge in ac-
cused's waist. When accused refused to comply with the request for
identification papers, he was made to show what he had on his waist. It
was found to contain hashish.*'
It was also by appeal to Malmstead in an analogous way that a
warrantless search of Eurocar Sales was justified. The occasion was the
attempted coup of 1989. There was an immediate need to search the
suspected arsenal of arms. "In addition, there was general chaos and
disorder at that time because of simultaneous and intense firing within
the vicinity of the office and in the nearby Camp Aguinaldo which was
under attack by rebel forces."* In such a situation, waiting for a war-
rant could give the suspects time to hide the instruments of the crime.
{2l-im v. Ponce de Leon, 66 SCRA 299, 307 (August 29, 1975) '
{3People v. Amminudin, 163 SCRA 402 (1988). But see an earliet case where thq Court
seems to have extended the exception beyond its rationale when it justified the warrantless search
of a car even though the searching authorities had all the time to obtain a warrant. People v. CFI of
Rizal, 101 SCRA86 (November 17, 1980).
eG.R. No. 91107, June 19, 1991. See also People v. Lo Ho Wing, et a1., G.R. No. 88017,
2l January l99t and People v. Bagista, G.R. No. 86218, September 18, 1992.
asOn stepping outside, Malmstead stopped to pick up two traveling bags which, upon be-
ing opened, were also found to contain prohibited drugs. This one was justified as search of one
who had just been arrested for possession of illegal drugs.
tn Guazon, et al. v. General de Villa, G.R. No. 80508, January 30, 1990, a blanket prohibi-
tion of "Areal Tirget Zonings" or "Saturation Drives" by the police was sought. While the Court
admi(ed the possibility of abuses in saturation drives, it did not grant a blanket prohibition. The
rnost it did was to say ( I ) that in the absence ofcomplainants and complaints against specific actors
no pnrhibition could bc issued, and (2) to "temporarily restrain the alleged banging on walls, the
kicking ol'drxrrs, thc herding of half-naked men kr assembly areas for examination of tattoo marks,
thc violution of rcsidenccs ovcn if thcsc nre humblc shanties of squattcrs, and the other alleged acts
which trc shrrckirrg to thc c()nscicncc."
{'l'c<4rlc v. rlc (irtcitt.2l.l S('RA 7l(r ( lt)t)4).
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
As to searches in check points, Aniag, Jr. v. Commission on Elec-
tions,recalling what was earlier said in Valmonte v. De Villa,oo'had this
to saY'oos
An extensive search without waffant could only be resorted
to if the officers conducting the search had reasonable or probable
cause to believe before the search that either the motorist was a
law offender or that they would find the instrumentality or evi-
dence pertaining to the commission of a crime in the vehicle to be
searched. The existence of probable cause justifying the warrant-
less search is determined by the facts of each case. Thus, we upheld
the validity of a warrantless search in situations where the smell of
marijuana emanated from a plastic bag owned by the accused, or
where the accused was acting suspiciously, and attempted to flee.
In Aniag, "Ir., however, the search of a car made by police officers
twenty meters from the entrance to the Batasan complex was not justi-
fied by any earlier confidential report nor by the behaviour or appear-
ance of the motorist.4oe
In Caballes v. Court of Appeals,aro the Court had occasion to re-
view the rulings on moving vehicles:
The mere mobility of these vehicles, however, does not give
the police officers unlimited discretion to conduct indiscriminate
searches without warrants if made within the interior of the terri-
tory and in the absence ofprobable cause. ...
Although the term eludes exact definition, probable cause
signifies a reasonable ground of suspicion supported by circum-
stances sufficiently strong in themselves to warrant a cautious
man's belief that the person accused is guilty of the offense with
which he is charged; or the existence of such facts and circum-
stances which could lead a reasonably discreet and prudent man
to believe that an offense has been committed and that the items,
articles or objects sought in connection with said offense or subject
to seizure and destruction by law is in the place to be searched.
The required probable cause that will justify a warrantless search
.
47178 SCRA at 216 (1989).
48237 SCRA 424 (1994).
qeAniag
has a summary ol ctrscs wlrcre wurrtrntlcss senrches
fied. /r/. at 433-435.
ar'r(i.l.l. No. I l(r2()1..1:rrtrr;rrv 15. .l(Xl,l.
Sec.2 Sec.2 ART. III - BILL OF RIGHTS t97
and seizure is not determined by a fixed formula but is resolved
according to the facts of each case.
One such form of search of moving vehicles is the "stop-
and-search" without warrant at military or police checkpoints
which has been declared to be not illegal per se, for as long as it
is warranted by the exigehcies ofpublic order and conducted in a
way least intrusive to motorists. A checkpoint may either be a mere
routine inspection or it may involve an extensive search.
Routine inspections are not regarded as violative of an in-
dividual's right against unreasonable search. The search which is
normally permissible in this instance is limited to the following
instances: (1) where the officer merely draws aside the curtain of a
vacant vehicle which is parked on the public fair grounds; (2) sim-
ply looks into a vehicle; (3) flashes a light therein without open-
ing the car's doors; (4) where the occupants are not subjected to a
physical or body search; (5) where the inspection of the vehicles
is limited to a visual search or visual inspection; and (6) where the
routine check is conducted in a fixed area.
In this case, the search which was thorough, was invalidated be-
cause it was based only on the fact that kakawati leaves covered por-
tions of the vehicle.
10. Warrantless searches and seizures: (3) evidence in plain
view.
The third exception, according to Harris v. United States4t is that
objects "falling in the plain view of an officer who has a right to be in
the position to have that view are subject to seizure and may be intro-
duced in evidence." Thus, where marijuana sticks fall before the eyes of
a police officer from an object a person is carrying, seizure of the sticks
would not require a warrant.4r2
The rule, however, was modified in the plurality opinion in
Coolidgeo'3 which said that to come under the exception the discovery
must be "inadvertent." If an officer encounters prohibited objects only
after poking around, the discovery would not be inadvertent.4'4
1r3()O IJ.S. 234,236 ( 1968).
{r/Peoplc v.'ftrhnr,222 S(lRA 144 (1993)
of vehicles havc bccn.justi
rrr40l ll.S. tl 472.
rr{l'cople v. Mustt,2l7 S('RA S97 ( l99l)
198 THE 1987 CONSTITUTION Sec.2
OF THE REPUBLIC OF THE PHILIPPINES
Our Supreme Court also had occasion to re-examine this excep-
tion in Roan v. Gonzaleso's where the object seized was an unlicensed
gun. But the seizure had been made in the course of a search on the
strength of a warrant which, besides not containing any mention of the
gun, turned out to be invalid. The Court stated the rule: seizure of a
malum prohibitum requires a warrant unless it is truly stumbled upon;
which was not the case here.
11. Warrantless searches and seizures: (4) customs inspec-
tions.
It has also been traditionally understood that customs officers or
border officers may search incoming persons and goods to look for ei-
ther goods concealed to avoid duties or other illegal materials.4'6
12. Warrantless searches and seizures: (5) waiver.
To the above specific exceptions must also be added the general
exception of waiver. "The right to be secure from unreasonable search
may,like every right, be waived and such waiver may be made either
expressly or impliedly.4l7 The waiver can be shown by failure to make
any objection or even mutter a bit of protest.4r8 De Garcia v. Lctcsin
stated the rule'4re
It is well-settled that to constitute a waiver of a constitutional
right, it must appear, first, that the right exists; secondly, that the
person involved had knowledge, either actual or constructive, of
the existence of such right; lastly, that said person had an actual
intention to relinquish the right.
There was in De Gracia failure to object to an objectionable war-
rant. But the Court added:o'o
In any event, the failure on the part of the petitioner and her
bookkeeper to resist or object to the execution ofthe warrant does
4b145 SCRA 687 (November 25, 1986).
t o'uuyKheytinv.Villareal, 116U.S.746(1886);Papav.Mago,22SCRA857(February28,
1968); Pacis v. Pamaran,56 SCRA 16 (March 15, 1974).
arTPeople v. Kagui Malasugui, 63 Phil. 221
,226 (1936); Alvarez v. Court of First Insiance,
64 Phil. at 48; People v. Bayua,4,0 O.G. 12th supp. 184, 187 (1940).
at863
Phil. at226.
4fe65
Phil. 689,694-5 (1938),citing 67 C.J.299. Recently reiterated in People v. Barnrs,
231 SCRAs5T (1e94).
4'?o65Phil
at695.citing l(1xrr.riv,(\tr.tsL.I.tu.630(ltthlrtl.)lnd56(:.J. llll0-1.
Sec. 2 ART. III - BILL OF RIGHTS 199
not constitute an implied waiver of constitutional right. It is ...
but a submission to the authority of the law. As the constitutional
guaranty is not dependent upon any affirmative act of the citizen,
the courts do not place the citizen in the position either of contest-
ing an officer's authority by force, or waiving his constitutional
rights; but instead they hold that a peaceful submission to a search
or seizure is not a consent or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the law.
Similarly, were the raid was conducted by armed officers, the
Court said:a'zl
The act of the accused-appellant in allowing the members of
the military to enter his premises and his consequent silence dur-
ing the unreasonable search and seizure could not be construed as
voluntary submission or an implied acquiescence to warrantless
search and seizure especially so when members of the raiding team
were intimidatingly numerous and heavily armed. His implied ac-
quiescence, if any, could not have been more than mere passive
conformity given under coercive or intimidating circumstances
and is, thus, considered no consent at all within the purview ofthe
constitutional guarantee. Consequently, herein accused-appellant's
lack of objection to the search and seizure is not tantamount to a
waiver of his constitutional right or a voluntary submission to the
warrantless search and seizure.
Even when a petitioner admits to opening his bag when the police
asks to see its contents, it does not necessarily follow that the action
signifies valid consent. His implied acquiescence, if at all, may have
been no more than mere passive conformity given under coercivb or
intimidating circumstances.422
But in Lopezv. Commissioner of Customs,on the Court saw waiver
in the fact that a "mere manicurist" found in a hotel room allowed of-
ficers to make a search in the absence of the registered occupant. The
Court said: "IJnder the circumstances, that was the most prudent course
of action [for the "manicurist"]. It would save her and even petitioner
Velasco himself from any gossip or innuendo. Nor could the officers of
thc luw bc blamcd if they would act on appearances. There was a person
'r'l'ur;tlc v. (irrttrprcion, (i.R. No. 124442, July 20, 2001.
"'V'tg:rr:r v. l'co1tlc. ( i.R. No. I 7O I l{0, Novr:rnbcr 2f , 2007 .
ilr(rl{ S('ltA l.\). lll{ 1l)t.t'r.rrrlx.r l.l, 1975).
 THE 1987 CONSTITUTION Sec- 2 Sec.2 ART. III - BILLOFRIGHTS
OF THE REPUBLIC OF THE PHILIPPINES

inside who from all indications was ready to accede to their request. warant from the courts. The trial judge himself manifested that on De-
Even common courtesy alone would have precluded them from inquir- cember 5, 1989 when the raid was conducted, his court was closed. Un-
ing too closely as to why she was there."a2a Thus,Velasco became the der such urgency and exigency of the moment, a search warrant should
victim of gentlemanliness! But the moral is clear: have your nails mani- lawfully be dispensed with."
cured outside your hotel room
- even if a later decision has said that,
since the right is a personal one, waiver must be given by the person 14. The "stop and frisk" rule.
himself or by one who has the authority to execute waiver for him.ars
Related to warrantless searches is what is known as the "stop and
It should finally be noted that the waiver must be understood to frisk" rule taken from the US Supreme Court decision of Terry v. Ohioo"
cover only what is included within the terms of the language. A permis- and adopted by Posadas v. Court of Appeals.o'?e
sion granted for officers to enter a house to look for rebel soldiers does
not include permission for a room to room search for firearms.a26 The rule arose out of the following situation described by Tbrry:
"In this case, two men repeatedly walked past a store window and re-
13. 6'Exigent circumstance." turned to a spot where they apparently conferred with a third man. This
aroused the suspicion of a police officer. To the experienced officer,
A rare case of allowable warrantless search is what can be called the behavior of the men indicated that they were sizing up the store
the doctrine of "exigent circumstance" applied in People v. De Gra-
for an armed robbery. When the police officer approached the men and
cia.o27 What precipitated its birth were intelligence reports that a build-
asked them their names, they mumbled a reply. Whereupon, the of-
ing was being used as headquarters by the RAM during the 1989 at-
ficer grabbed one of them, spun him around and frisked him. Finding a
tempted coup d'6tat. A surveillance team was fired at by a group of
concealed weapon, he did the same to the other two and found another
armed men coming out of the building and the occupants of the building
weapon. In prosecution for the offense of carrying a concealed weapon,
refused to open the door despite repeated requests. Indications were
the defense of illegal search and seizure was put up." on this basis the
that there were large quantities of explosives and ammunitions inside
court ruled that: "[w]here a police officer observes unusual conduct
the building. Nearby courts were closed and general chaos and disorder
which leads him reasonably to conclude in light of his experience that
prevailed. The Court ruled: "Under the foregoing circumstances, it is
criminal activity may be afoot and that the person with whom he is
our considered opinion that the instant case falls under one of the ex-
dealing may be armed and presently dangerous, where in the course of
ceptions to the prohibition against warrantless search. In the first place,
investigation of this behavior he identifies himself as a policeman and
the military operatives, taking into account the facts obtaining in this
makes reasonable inquiries, and where nothing in the initial stages of
case, had reasonable ground to believe that a crime was being com-
the encounter serves to dispel his reasonable fear for his own or oth-
mitted. There was consequently more than sufficient probable cause to
ers' safety, he is entitled for the protection of himself and others in the
warrant their action. Furthermore, under the situation then prevailing,
area to conduct a carefully limited search of the outer clothing of such
the raiding team had no opportunity to apply for and secure a search
persons in an attempt to discover weapons which might be used to as-
sault him. Such a search is reasonable search under the Fourth Amend-
424But ifthe defense of illegality ofthe search is purely personal,
can it be waived by any ment..."
other than the person himself?
It has also been held that the voluntary surrender of a gun constitutes waiver, People v.
Agbot, 106 SCRA 325, 331 (July 31, 1981) and that the posting of a bail bond constitutes waiver
of the right to challenge any defect in the warrant. Callanta v. Villanueva, 77 SCRA 377 (June 2O,
4'8392 U.S. t.88 S. Ct. 1868,20 1.. Ed. 2d. 889 (1968).
1971).
o25People v. Damaso, o',(i.R. No. 89139, August 2, 1990, lttll SCRA 288,later notably applied in the following
G.R. No. t).15 16. August 12, 1992.
a?"Spouscs Vcroy v. Layrrgrrt:,(i.R.
No, t)5(rl2,.lunc ltl. 1992. cuscs: I'coplc v. Solnytur, (i.R. No. I 19220, Scplcmher 20, 1996. 262 SCRA 255; and Malacat v.
{r/(i.R. N6s. lO2(X)() lO..lgly (r. lt)trl (irurl ol ApJrnls,(i.R. No. 12.15()5,1)etcnrbcr 12, 1997,2tt3 S('RA 159.
 THE 1987 CONSTITT]TION Sec.2
OFTHE REPUBLIC OFTHE PHILIPPINES
After Posada.s, our Court applied the principle in people v. So-
laya6o'o and Malacat v. court of Appeals.o3' rn solayao, the court said:
"As with Posadas, the case at bar constitutes an instance where a search
and seizure may be effected without first making an arrest. There was
justifiable cause to 'stop and frisk' [Solayao] when his companions fled
upon seeing the government agents. Under the circumstances, the gov-
ernment agents could not possibly have procured a search warrant first.
In Malacat, the Court, delving into the notable points of the krry rul-
ing, discussed the 'Justification for and allowable scope of a ,stop-and-
frisk' as a 'limited protective search of outer clothing for weapons,.',
Thus, the court said that: "while probable cause is not required to con-
duct a 'stop and frisk,' it nevertheless holds that mere suspicion or a
hunch will not validate a 'stop and frisk.'A genuine reason must exist,
in light of the police officer's experience and surrounding conditions,
to warrant the belief that the person detained has weapons concealed
about him.
Finally, a 'stop-and-frisk' serves a two-fold interest: (l) the gen-
eral interest of effective crime prevention and detection, which under-
lies the recognition that a police officer may, under appropriate circum-
stances and in an appropriate manner, approach a person forpulposris of
investigating possible criminal behavior even without probable cause;
and (2) the more pressing interest of safety and self-preservation which
permit the police officer to take steps to assure himself that the person
with whom he deals is not armed with a deadly weapon that could un-
expectedly and fatally be used against the police officer.
The above should be compared with People v. Mengote,a32 where
all the surveillance team of police officers saw were two men "looking
from side to side," and one of them holding his abdomen. When ap-
proached, the two men ran away but were caught. When searched, they
yielded a .38 caliber smith and wesson revolver with six live bullets
in the chamber. The weapons were taken, given to the police who used
it as evidence in a prosecution for possession of an unlicensed firearm.
.The court ruled the evidence inadmissible saying that no offense was
involved in "looking from side to side" and holing the abdomen.
arG.R. No. I19220, September
20, 1996,
{rrC.R. No. 123595, December
12, 1997 .
r'?G.R. No. tl7{)59. Junc 22.1992.
Sec.2 ART. III - BILL OF RIGHTS
These exceptions do not declare a field day for searching officers'
"The essential requisite of probable cause must still be satisfied before
a warrantless search and seizure can be lawfully conducted." "Prob-
able cause, in these cases, must only be based on reasonable ground of
suspicion or belief that a crime has been committed or is about to be
committed." It is, however, decided not by a judge but by the searching
officer.433
15. Suspicionless drug tests.
A new set of US decisions arose because of the rampant problem
of drugs. Because the problem can affect schools, measures have been
taken to protect the school atmosphere from drug abusers. One such
measure was Student Athlete Drug Policy adopted by Vernonia School
District in Oregon which denied participation in school athletics to stu-
dents who refused to submit to drug test. Parents of the students denied
participation filed suit seeking injunctive relief on the ground that the
policy constituted unconstitutional search. ln Vernonia School District
v. Acton,a3a the Court acknowledged that compelled urinalysis was a
form of search but that its "reasonableness" must be judged by balanc-
ing the intrusion on the individual's interests against the promotion of
legitimate government interests. Student athletes have a lesser privacy
expectation than free adults because an element of communal undress
is inherent in athletic participation and athletes are subject to preseason
physical examinations. The privacy interests involved in the process of
obtaining urine samples are negligible since the conditions of collection
are almost identical with those found in public restrooms. Moreover,
the tests looked only for standard drugs and not medical conditions, and
the results would be released only to a selected group. The legitimate
interest of the state in reducing the risk of physical harm to the athlete
an<l to others outweighs the privacy interest of the student athlete.
Vernonia was followedby Board of Education v. Earls,o" which
irrvolvcd the Student Activities Drug Testing Policy (Policy) adopted by
thc: Tccumseh, Oklahoma, School District' The policy required all mid-
'"'l'coplc v. Arull. (i.R. No. I 2O9l 5, April 3, 1998.
{!rNo. ()4-59O. I)et itlctl .lrrrtc 2(r. It)()5.
'rrlNo. Ol I12. l)ce irh:tl Jrrnc 2./,2(X)2.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
dle and high school students to consent to urinalysis testing for drugs in
order to participate in any extra-curricular activity and notjust in athlet-
ics. Students and parents brought suit. The Court upheld the policy rely-
ing on the reasoninginVernonia. To the argument that students engaged
in activities which are not athletic have greater expectation of privacy,
the Court replied that the distinction between athletes and non-athletes
inVernonia was not essential. What was essential were the schools cus-
todial responsibility and authority, the nature of the intrusion, the confi-
dentiality of test results and the legitimate government interest.
Republic Act No. (RA) 9165, otherwise known as the Compre-
hensive Dangerous Drugs Act of 2002, which requires mandatory drug
testing of candidates for public office, students of secondary and ter-
tiary schools, officers and employees of public and private offices, and
persons charged before the prosecutor's office with certain offenses,
among other personalities. The law was challenged Social Justice So-
ciety v. Dangerous Drugs Boardo3u but, following the ruling in Verno-
nia on random drug testing of students, the court upeld it as applied to
students. As applied to candidates for national office, the requirement
was declared unconstitutional because it added to the exclusive quali-
fications for such offices prescribed by the Constitution. But as to all
the others, the Court followed Vernonia equivalently saying that the
requirement was reasonable.
16. Arrests with warrant.
The constitutional protection of the person against arbitrary ar-
rests in the search and seizure clause of the 1935 Constitution was im-
plicit in the protection against unreasonable "seizures." Arrest, after all,
is a seizure. Moreover, since the 1935 text did not distinguish between
search warrants and wa:rants of arrest but merely used the general term
warrant, Amarga v. Abbaso', held that both search wanants and warrants
of arrest must satisfy the same requirements as to probable cause and
the manner of its determination. Both the 1973 and the 1987 texts re-
moved any doubto38 about the correctness of the Amarga decision since
the new provision now specifically imposes the same requirements for
both search warrants and warrants of arrest. Hence, what has been said
a36G.R.
No. 157870, November 3,2fi)8.
6?9ti Phil. 739 ( t956).
arsSee Morrtcrnlyor, J., tlisst nlin g it Anun gt t,. Ahfut.t,
Sec.2 Sec.2 ART. III - BILL OF RIGHTS 205
about probable cause and particularity of description in the discussion
of search warrants can with equal truth be said of warrants of arrest, and
little need be said on these two subjects.
In the discussion of probable cause, it will be recalled that for its
determination the judge is bound to examine the complainant and the
witnesses the complainant may produce. In other words, it is the judge
himself who must personally determine whether probable cause ex-
ists or not. A doubt arose in Amarga v. Abbaso3e when the question was
asked whether, after the filing of the information by the fiscal (which
presupposes that the fiscal has found probable cause after preliminary
investigation), a judge could still refuse to issue a warrant of arrest.
The background of this question goes back to the pre-1935 Con-
stitution doctrine on the subject. In the 1910 case of U.S. v. Ocampof0
the Philippine Supreme Court had said that the existence of probable
cause was for the judge to decide. The U.S. Supreme Court, however,
reviewing the decision in Ocampo v. U.S.f'said that the determina-
tion of probable cause was "only a quasi-judicial function or power
which could be exercised not only by a judge or magistrate but could
be delegated to an executive." Was such doctrine changed by the 1935
Constitution?
Justice Montemayor, dissenting in Amarga v. Abbas, argued that
it was not. He said that the motivation, brought out at the Convention,
for altering the search and seizure provision of the Autonomy Act, was
the occurrence of abuses touching on the issuance of search waJTants.*2
"Nothing, absolutely nothing," Montemayor recalled, "was said about
the issuance of warrants of arrest ever having been abused."*' What was
incorporated in the Constitution, moreover, according to the Conven-
tion debates, was Section 98 of General Orders No.58, a section falling
under the chapter on search warrants.4*
Nothing, indeed, was said in the Convention about abuses in the
issuance of warrants of arrest. But Francisco, speaking for the incor-
4teld.
4{'l 8 Phil. t, 4l-2 (l9to).
e,234 U.S.9t (1914).
a{r9lt Phil. at 74ti.
a'r/l/" nt 76.1.
irl., nnrl rliscrrssiorr in/ia 'aa ll . ttt
'l 52.
 TTIE 1987 CONSTITUTION Sec.2 ART. III - BILL OF RIGHTS 207
Sec.2
OF THE REPUBLIC OF THE PHILIPPINES

poration of section 98 of General orders No. 58 in the provision on

search and seizure, did say that the manner of determining probable
cause for the issuance of search warrants should also apply to warrants
of arrest.*s In the context, however, of Francisco's speech, dealing with
the abuses in the issuance of search warrants, it is not clear that the con-
vention approved his amendment with the intention of extending it to
warrants of arrest. Either for this reason, or, perhaps, because chief Jus-
tice Paras was not aware of Francisco's convention remark, the chief
Justice did not make use of this argument in the majority opinion. In
holding that the judge was not bound by the findings of the fiscal as to
probable cause, Paras merely appealed* to the text of the constitutional
provision and to the ruling in the 1910 case of U.S.v. Ocampo.Thus, in
effect and without saying so in so many words, paras rejected the u.s.
Supreme court ruling in ocampo v. u.s. in favor of the original philip-
pine decision. But Paras also said that the judge may issue a warrant of
arrest on the basis merely of the fiscal's findings recited in the informa-
tion, if he is satisfied with its adequacy.s?
ln Amarga, the doctrine on the verification of probable cause for
the issuance of arrest warrants was less than lucidly clear, subsequent
decisions emphasized that it is the judge who must determine probable
cause. In the immigration cases discussed above,*s the court reiterated
that only a judge can issue warrants. The legislature also affirmed the
constitutional need for judicial intervention when by R.A. No. 3g2g
(1963) it amended section 87(c) of the Judiciary Acr of 1948 by insert-
ing: "No warrant of arrest shall be issued by any justice of the peace
in any criminal case filed with him unless he first examines the witness
or witnesses personally, and the examination shall be under oath and
reduced to writing in the form of searching questions and answers.,'*n
Indeed, it is the judge who must determine the existence of prob-
able cause for the purpose of issuing a warrant of arrest. Moreover,
that the judge may require the prosecuting officer to present the evi-
dence which compelled him to conclude that probable cause exists is
also clear.oso But again, as in the case of search warrants, must the judge
personally examine the complainant and the witnesses or can he rely
on evidence presented by the prosecuting officer? In Lim, Sr. v. Felix,asl
Justice Gutierrez, Jr. put the question thus: "May a judge without ascer-
taining the facts through his own personal determination and relying
solely on the certification or recommendation of a prosecutor that a
probable cause exists issue a warrant of arrest?" In answering the ques-
tion Gutierrez said:052
We reiterate the ruling in Soliven v. Makasiar that the Judge
does not have to personally examine the complainant and his wit-
nesses. The Prosecutor can perform the same function as a com-
missioner for the taking of evidence. However, there should be a
report and necessary documents supporting the Fiscal's bare certi-
fication. All of these should be before the judge.
court prescribe detailed rules
It should be noted that the Rules of
which municipal judges must follow:
SEC. 6. When warrant of arrest may issue- xxx
-
(b)
By the Municipal Trial Court.
- x x x [T]he judge
may issue a warrant of anest if he finds after an examination in
writing and under oath of the complainant and his witnesses in the
form of searching questions and answers, that a probable cause
exists and that there is a necessity of placing the respondent under
immediate custody in order not to frustrate the ends of justice.
Thus ajudge cannot base his finding ofprobable cause solely on
the statement of a witness whom he did not personally examine tn writ-
ing and under oath and without propounding searching questions.os3
17. Warrantless arrest.
There is no question but that there can be cases of valid arrests
without a search warrant. This was definitely established in a series of

453 JOURNAL
OF THE ( 1935) CONSTITU"TIONAL CONVENTION I 100. 4ecity Fiscal v. Judge villanueva, G.R. Nos.60349-62, December 29, 1983. Note, howev-
4698 Phil . at 7 4l
cr, that when it comes to a preliminary investigation for the purpose of determining whether there
.
wId. at758.
isprobablecauseforfilingacase.themattercanbelefttotheFiscal. Saltav.CourtofAppeals'
NSupra,under "3. Determination of probable
cause: by whom and how?"
aern Luna v. Plaza,26 143 SCRA 228 (July 31. lell6).)
scRA 310 (1968), however, the supreme Courr ulkrwed thc.i.dgc 411
I 94 SCRA 292 (1991\.
to adopt the questions askecl by il prcvious non-.ludicial invcstigstor. (irmptrc with llachr <t (o.
v. Ruiz..3'7 SCRA tl2l l97l).
( "rftl. ul 306.
'r"'lithtt jttrtt v. l't-r4rlc, ( i.R. No. I 75 I 62, Ockrbcr 29' 2([)l{-
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
decisions under the Philippine Bill of lmz. "The right to arrest without
a warrant was well-established in the common law of England" and
such common law doctrine was deemed carried to the philippines.*o
The exceptions to the requirement of a arrest warrant are now surnma-
rized in Rule 1 13, Section 5 , Rules of Court.
Sec. 5. Arrest without a warrant; when lawful. A peace
officer or private person may, without a warrant, arrest -a person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or attempting to commit an of-
fense;
(b)When an offense has in fact been committed, and he
has personal knowledge of facts indicating that the person to be
arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he is serving
final judgment or temporarily confined while his case is pending,
or has escaped while being transferred from one confinement to
another.
In cases falling under paragraphs (a) and (b) hereof, the per_
son arrested without a warrant shall be forthwith delivered to the
nearest police station orjail, and he shall be proceeded against in
accordance with Rule I12, Section 7.
People v. Burgo(ss had occasion to explain the scope of Rule I 13 ,
section 5(a). The court said that "the officer arresting a person who has
just committed, is committing, or about to commit an offense must have
personalknowledge of that fact. The offense must also be committed in
his presence or within his view." where, however, while patrolling in
their car, policemen received a radio message ftom their camp directing
them to proceed to "Ihaw-Ihahr" where there had been a shooting, went
to the place and there saw the victim and bystanders pointing to the ac-
cused fleeing from the scene, the Court ruled under Rule 113, g5(b): an
offense had in fact just been committed, and the officers had personal
knowledge of the facts indicating that the accused had committed it.4s,'
asE.g., U.S. v. Wilson,4 Phil.
317, 323-4 ( lq)8).
asrPeople v.
Burgos, 144 SCRA I, l4 (Scprcmhcr 4, 1986).
a56People v.
Juyson,(i.R. No. 120.1.1O, Novernhcr llt, l()g7.
Sec.2 Sec.2 ART. III _ BILL OF RIGHTS 209
But a warrantless arrest effected three months after the commission of
the crime was invalidated.o'?
The most common application of this in flagrante delicto rule is
the buy-bust operation conducted to enforce the Dangerous Drugs Act.
A buy-bust operation is a form of entrapment. The method is for an
officer to pose as a buyer. He, however, neither instigates nor induces
the accused to commit a crime because in these cases the "seller" has
already decided to commit a crime. Since the offense happens right be-
fore the eyes of the officer, there is no need for a warrant either for the
seizure of the goods or for the apprehension of the offender.o$
A "buy bust" operation thus is closely related to "entrapment"'
Entrapment may or may not be allowed depending on the circumstanc-
es.
.,It is recognized that in every iurest, there is a certain amount of
entrapment used to outwit the persons violating or about to violate the
law. Not every deception is forbidden. The type of entrapment the law
forbids is the inducing of another to violate the law, the 'seduction' of
an otherwise innocent person into a criminal career. Where the criminal
intent originates in the mind of the entrapping person and the accused is
lured into the commission of the offense charged in order to prosecute
him, there is entrapment and no conviction may be had. Where, how-
ever, the criminal intent originates in the mind of the accused and the
criminal offense is completed, the fact that a person acting as a decoy
for the state, or public officials furnished the accused an opportunity for
commission of the offense, or that the accused is aided in the commis-
sion of the crime in order to secure the evidence necessary to prosecute
him, there is no entrapment and the accused must be convictgd. The
law tolerates the use of decoys and other artifices to catch a criminal."45e
In warrantless arrests, the law tilts in favor of authority. Thus,
speech which in an officer's estimation is criminally seditious can jus-
tify warrantless arrest even if upon prosecution the officer is proved
wrong. The criminal character of speech is something that is not easily
determined and must await court estimation.m
a,'People v. Salvatierra, G.R. No. l(x663, July 24, l99T.Invalidated also was an arrest
rrrutlc six days afier the alleged commission of the crime. People v. Escordial, G.R. Nos. 138934-
15, Jirnuary 16,2J.12.
a'*l'coplc v. l)c ll ('ru2..(i.R. No.8326O'April l8' 1990'
a'{l'ct4rlc v. l)oril,(i.R. No. 1252()9,January 22, l9t)9'
{"'l')spiriiu v. l,irn,(i.R. No. t15727'()clohcr l. l99l' llut scc disscnts'
 2to THE 1987 CONSTITUTION Sec.2
OFTHE REPUBLIC OFTHE PHILIPPINES
A controversial application of the in flagrante delicto rule is its
use with regard to "continuing crimes." Rebellion and conspiracy or
proposal to commit rebellion are considered continuing crimes. In con-
tinuing crimes the accused is assumed to be always committing the of-
fense even when asleep. Hence, he may be arrested any time he may be
encounteredi6'
Regarding Section 5(b), "it is not enough that there is reasonable
ground to believe that the person to be arrested has committed a crime.
Acrime must in fact or actually have been committed first. That a crime
has been committed is an essential precondition."462 And the arresting
officer must have p ersonal knowledge of the commission of the crime.
Thus, a police officer who learns about the recent commission of the
crime merely from a report does not possess the "personal knowledge"
needed to justify a warrantless arrest.{3 Moreover, an arrest made nine-
teen hours after the offense has been committed cannot be of one whose
crime "in fact has just been committed."o*
A person may also waive his right not to be arrested without a
valid warrant. But courts indulge every reasonable presumption against
a waiver of fundamental constitutional rights. Thus waiver cannot be
infened from the mere fact of having failed to object to a warrantless
arest.465 But if a person enters a plea without having challenged the
validity of his arrest, he is deemed to have waived his right.ouu
It is noteworthy, too, that in prosecutions of peace officers for
illegal detention or arrest without warrant, the defense of good faith
has frequently been accepted with liberality. As one decision put it, ,,It
would be exacting too much of police officers to require them to in-
form themselves as to the right or wrong of a quarrel before making an
aITgSt.t'a67
*rumil and Dural v. Fidel Ramos, G.R. No. 81567, July 9, 1990,
reaffirmed on reconsid-
eration in In re Umil, October 3, 1991. The decision was a reaffirmation of the notorious Garcia-
Padilla v. Enrile, 121 SCRA 472 (1983).
eld. at 15.
63Go v. Court ofAppeals,206
SCRA 138, 150 (1992).
asPeople v. Manlulu,23l SCRA
701 (1994). See also people v. Rodrigueza,205 SCRA
791,796-797 (1992) and People v. Enrile,222 SCRA 586 ( I 993).
6sPeople v. Burgos,
144 SCRA at I 6.
*People v. Rabang, 187 SCRA 6tl2 ( 1990).
a67tj.S. v. llurguekr,
l0 phil. lll8, ltig ( tq)B).
ART. III BILL OF RIGHTS 2t1
Sec.2 -
While it is true, perhaps, that one should not expect too much of an
ordinary policeman and that therefore good faith should be a valid de-
fense against criminal liability for his action, it is nonetheless necessary
to determine the validity of the arrest, without reference to the criminal
liability of the arresting officer, because a search made incidentally to
an invalid arrest would itself be invalid and therefore unproductive of
admissible evidence. Thus it must be emphasized that for the validity
of a warrantless arrest, as in warrantless searches, the minimal require-
ment is probable cause. "Probable cause for an arrest without warrant
is such a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves as to warrant a reasonable man in be-
lieving the accused to be guilty."nu'
that both statutory law and the
It should, however, also be noted
1973 and 1987 Constitutions speak of "seizure" and "arrest" and that,
while an "arrest" is necesSarily a "Seizure," not every seizUre iS an ar-
rest. An arrest, according Rules of court, "is the taking of a person into
custody in order that he may be forthcoming to answer for the commis-
sion of an offense." There are, however, deprivations of physical liberty
whose object is not necessarily detention in order to be available to
answer for an offense. The classic case is the "stop and frisk" already
discussed above.
18. When to challenge validity of arrest.
"Any objection involving a warrant of arrest or procedure in the
acquisition by the court ofjurisdiction over the person of the accused
must be made before he enters his plea, otherwise the objecgion is
deemed waived." The accused must move for the quashing of the infor-
mation against him before arraignment. Otherwise, he is estopped from
questioning the validity of the arrest.6e
But Section 26, Rule 114 of the Revised Rules in Criminal Pro-
ccdure says that an application for bail or the admission to bail by an
accused is not considered a waiver of his right to assail the warrant is-
sued for his arrest or the legalities or inegularities thereof. This is a new
rule intended to modify previous rulings of this Court. The new rule is
'"ilt1.S. v. Suntos, .l(r l'hil. ll5 l, t{55 ( l9l7).
.rd,l,coplc v. ('flhilcs,(i.R. No. ll2O.l5.Jltnu[ry l(r, l99tl: Pcoplc v. Hcmandcz,c.R. No.
ll /(r24,I)cccrnlrr 4, l()()7.
212 THE 1987 CONSTITUTION Sec.2
OF THE REPUBLIC OF THE PHILIPPINES
curative in nature because precisely, it is designed to supply defects and
curb evils in procedural rules.47o
19. ASSOs and Presidential Commitment Orders (PCO).
During the period of martial law, searches and seizures by the mil-
itary of persons suspected to be engaged in revolutionary activity were
carried out by an Arrest, Search and Seizure Order (ASSO) generally
issued by the Minister of National Defense. Such orders by the Minister
of Defense were made in virtue of General Order No. 2-A issued by the
President pursuant to the proclamation of martial law and specifically
authorizing the Minister to arrest and detain such persons until released
by the President himself.And since the imposition of martial law, in the
accepted doctrine then, also carried with it the suspension of the privi-
lege of the writ of habeas corpus,4it the Court considered "purposeless"
any inquiry into the validity of these arrests and detentions.4T2
After the lifting of martial law came the use of another instrument,
the Presidential Commitment Order or PCO. In a general sense, the
PCO was an order of preventive detention issued by the President as
Commander-in-Chief. As concretized in Letter of Instruction No. 121 1 ,
it was an order issued by the President to his subordinates for the ar-
rest and detention of persons committing crimes mentioned in p.D. No.
2045 withrespect to which the privilege of the writ remained suspended
by the same P.D. No. 2045. LOI l2Il said that the PCO would issue
"(a) When resort to judicial process is not possible or expedient without
endangering public order and safety; or (b) When the release on bail of
the person or persons already under arrest by virtue of ajudicial warrant
would endanger said public order or safety."
Two questions were posed by the PCO in relation to the search
and seizure clause: (1) Did the President have the power to order arrest
and detention in times of crises? (2) Must the order of arrest and deten-
tion conform with the requirements of a valid warrant? These questions
were both dealt with in the landmark cases of Garcia-Padilla v. Enrile4lr
aT0Okabe v.
Judge de Leon, G.R. No. 150185, May 27 ,2CfJ,4.
aTlAquino, Jr. v. Enrite,59
SCRA 183 (September 17,1974).
al2Cruzv. Gatan,74 $CRA226,229 (November
29, l9?6).
a?r(i.R. No. 6l 3lttt, April 20, lgttl.
Sec.2 ART. III _ BILL OF RIGHTS
and Morales v. Enrile.ola And although these cases dealt with the PCo,
the doctrine formulated also applied to the earlier ASSO.
Although these case happened under the regime of the 1973 Con-
stitution, there are elements in it which have applicability to the current
Constitution. The President's power of preventive detention rests on
solid foundation. The crisis powers of the President as Commander-
in-Chief in Article VII, Section 9 of the 1973 Constitution, in hierar-
chic order were: (1) to call on the armed forces to suppress or prevent
lawless violence, invasion, insurrection or rebellion; (2) to suspend the
privilege of the writ of habeas corpus; (3) to impose martial law. In the
concrete, LOI 1211linked the PCO with the suspension of the privi-
lege, the second of the President's crisis powers; but as Chief Justice
Fernando noted in Garcia-Padilla, preventive detention can also be
ordered when the Commander-in-Chief calls on the armed forces to
prevent or suppress lawless violence, invasion, insurrection, or rebel-
lion. Chief jurisprudential reliance by Fernando, and also by the main
opinion, was on Moyer v. Peabodf" which did not involve the suspen-
sion of the writ but the calling of the National Guard for the suppression
of an insurrection. The American Supreme Court said:
This means that [the Governor] shall make the ordinary use
of soldiers to that end; that he may kill persons who resist, and, of
course, that he may use the milder measure of seizing the bodies
of those whom he considers to stand in the way of restoring peace.
Such arrests are not necessarily for punishment, but are by way of
precaution, to prevent the exercise of hostile power. .'. So long
as such :urest are made in good faith and in the honest belief that
they are needed in order to head the insurrection off, the Governdr
is the final judge and cannot be subjected to an action after he is
out of office on the ground that he had not reasonable ground for
his belief. ... When it comes to a decision by the head of the State
upon a matter involving its life, the ordinary rights of individuals
must yield to what he deems the necessities of the moment. Public
danger warrants the substitution of executive process for judicial
process.
Granted, however, that the President has the power to order pre-
ventive detention, is his order beyond judicial review? The question is
(rlOl6, Alxil 26, l()ti:l
'ra(i,R, No.
i^212 ll.li.7H. tt4 lts (lq)()).
 214 THE 1987 CONSTITUTION
Sec.2
OF THE REPUBLIC OF THE PHILIPPINES
still relevant because the 1987 provision on emergency retains much of
the old nrle. Garcia-Padilla and Morales said that the pCO was beyond
judicial review. But could the answer really be as simple as that? And,
even if it could under the 1973 constitution, can the same be said under
the 1987 Constitution?
As the question arose in the concrete cases of Garcia-padilla and.
Morales, the PCO was inextricably tied to the suspension of the privi-
lege of the writ of habeas corpus. The argumentin Garcia-paditta and,
Morales was that the restrictive effect of the PCO may not be inquired
into by the courts through a habeas corpus action because the privilege
of the writ, whose object precisely is the inquiry into the validity of a
detention, had been suspended. In other words, inquiry was not possible
not because the nature of the detention was preventive but because the
means for inquiry, the privilege of the writ, had been suspended. Note,
however, that the privilege of the writ was merely suspended; it was
not forever abolished. Hence, when the suspension of the privilege is
lifted and the person is still in detention, should ahabeas corpus case be
entertained? similarly, if the preventive detention is ordered on the oc-
casion merely of the calling of the armed forces but without suspension
of the privilege, will ahabeas corpus case be entertained?
The Chief Justice seemed to suggest that preventive detention, for
as long as it remained only preventive, was not subject to judicial re-
view. The detention could be actionable by habeas corpus only should
it continue for such a length of time as to make it punitive in character.
Assuming that the above is a correct reading of the view of the
chief Justice on the justiciability of preventive detention under circum-
stances where neither martial law nor suspension of the privilege is
in effect, it is submitted that a contrary view more hospitable to indi-
vidual liberty is defensible. Admittedly, the language of Justice Holmes
in Moyer v. Peabody on which the Chief Justice relied was sweeping
in its affirmation of executive discretion. But executive discretion in
Moyer v. Peabody was affirmed as possessing finality not for the pur-
pose of blocking release of Moyer but for the purpose of protecting
Peabody, a former governor, from being made to answer fbr action hc
took while governor. Holmes in fact conceded that the action taken hy
the then Governor Peabody was "without sufficient rcason" brrt r rolrncs
absolved the governor of liability becausc thc govcrrror hntl irctcrr "in
good faith."
Sec.2 ART. III - BILLOFRIGHTS 2t5
The significance of the ruling in Moyer v. Peabody becomes clear-
76ln
er when compared with the later case of Sterling v' Constantin.
Sterling,the object of the suit was not to make a state governor civilly
or criminally liable but to enjoin him from proceeding with measures
he was bent on taking pursuant to a martial law declaration and on the
claim that discretionary measures taken by him were not subject to judi
cial review. Chief Justice Hughes, writing for the Court in Sterling said:.
It does not follow from the fact that the Executive has this
range of discretion, deemed to be a necessary incident of his power
to suppress disorder, that every sort of action the Governor may
take, no matter how unjustified by the exigency or subversive of
private right and the jurisdiction of the courts, otherwise available,
is conclusively supported by mere executive fiat' The contrary is
well established. What are the allowable limits of military discre-
tion, and whether or not they have been overstepped in a particular
case, are judicial questions.
By analogy, while the President may indeed have flnal discretion
on whether or not to call on the armed forces or to suspend the privilege
or to impose martial law, it does not follow that everything he does in
the name of necessity or that everything he orders the armed forces to
do is legal. The contrary position completely subverts the supremacy
of the constitution. Hence, if the PCO in Garcia-Morales and Padilla
were not subject to judicial inquiry then, it was not because they were
orders of preventive detention but because the suspension of the writ
of habeas corpus temporarily prevented inquiry into their legality. In
other words, if the President wishes to close off inquiry into the legality
of emergency detentions, it is not enough that the detentions be charac-
terized as preventive; the President must in addition close the avenue
to inquiry by suspending the privilege of the writ. Which was what in
fact President Marcos had done. And since by its nature a suspension
of the privilege is temporary, the exclusion of the courts from inquiry
into questions of legality must also be temporary. Which in turn brings
up the question of standards for measuring the legality of the detention.
The purpose of inquiry into the legality of detention can be either
lbr determining the criminal or civil liability of the persons responsible
lirr the arrest and detention, or for the release of the person detained.
{'d287 lt.s. .l7l{ ( 1932).
 ART. III - BILL OF RIGHTS 2t'7
THE I 987 CONSTITI..ITION Sec.2 Sec.3
OFTHE REPUBLIC OFTHE PHILIPPINES

seen, the rule

For purposes of determining liability, the standard is the good or bad to allowable arrests without warrant. However, as already
whether the
faith of the executive ordering the arrest. As already shown, this was consecrated by the constitution for the validity of arrests,
the case in Moyer v. Peabody.In the language of Justice Hormes: "So or whether the warrant be is-
arrests be with warrant or without warrant
long as such arrests are made in good faith and in the honest belief that suedbyajudgeorbyanyotherresponsibleofficerauthorizedbylaw'is
cause'" This
they are needed in order to head the insurrection off, the Governor is the that the arresimust be based on the existence of "probable
final judge and cannot be subjected to an action after he is out of office is the bottom line. To require less and to say that the
ultimate test for the
on the ground that he had no reasonable ground for his belief." In the validityofadetentionisnotprobablecausebutthegoodorbadfaithof
concrete case of our constitutional system under the 1973 constitution, the executive is to trivialize personal dignity'
however, for purposes of civil or criminal liability, the good or bad faith
of the Executive was irrelevant. Executive immunity, for the president
Almosteverythingsaidabovehasbeensaidinthecontextofthe
1973 Constitution under which the Supreme court saw
itself as con-
and for those who act on his specific instructions, was guaranteed in of the President'
strained to a large measure by the emergency powers
sweeping terms by the mantle of immunity woven by the geniuses of less reason for
Now under th iggt Constituiion, the Supreme Court has
the Batasan. Article vII, Section 15 (1973), said: "The president shall "
beingpusillanimouswhenfacetofacewiththepresidency.The1936
be immune from suit during his tenure. Thereafter, no suit whatsoever than valorous
Constitutional Commission, very much aware of the less
shall lie for official acts done by him or others pursuant to his specific of human rights
stand taken by the Marcos Supreme Court in a number
orders during his tenure." that "Judicial
cases, included in Article VIIi, Section 1, the declaration
Immunity of the executive from liability, however, is one thing; po*", includes the duty of the courts of justice . .. to determine whether
the legality ofkeeping a person under detention is another. The suspen- ornottherehasbeenagraveabuseofdiscretionamountingtolackor
of the
sion of the privilege of the writ, while it prevents inquiry into the legali- excess of jurisdiction on the part of any branch or instrumentality
ty of the detention, does not legalize the detention. once the suspension Government."ntt
is lifted, the legality of tlre detention, even under the 1973 constitution,
should be examined by the courts for the purpose of determining wheth- Snc. 3. (1) Tns PRIvAcY oF coMMUNICATIoN AI\D coRREs'
LAWFUL ORDER OF TITE
er release should be ordered. For this purpose, the standard of legality PONDENCE SHALL BE INVIOLADLE EXCEPT UPON
COI,JRT' OR WHEN PUBLIC SAFETY OR OR'DER
REQUIRES OTHERWISE AS
cannot be simply the good faith or bad faith of the executive.It must be
PRESCRIBED BY LAW.
something more objective. Must the standard be the requirements for a
valid warrant? (2) Axv EvIDENcE oBTAINED IN vIoLATIoN oF TIls oR Tr{E
FOR ANY PURPOSE IN ANY I
PRECEDING SECTION SHALL BE INADMISSIBLE
Justice Hermogenes Concepcion in Morales says that the pCO PROCEEDING.
is a warrant issued by the President and therefore must comply with
the requirements of a valid warrant "in the same manner and to the
1. Privacy of communication and correspondence'
same extent as a w.urant of arrest issued by a judge." This, of course,
is obiter dictum because both Garcia-padilla and Morale.s found the Invasionofcommunicationandcorrespondenceisonekindof
search. The first paragraph of the present provision
on priv-acy of com-
arrests to be justifiable as exceptions to the ordinary requirement of
two questions: (1) What type of
a warrant. Moreover, it overstates the case. The pco can come in the munication and correspondence poses
(2) What
form of a warrant, in which case it must conform to the requirements communication and correspondence does the provision cover?
are the conditions for allowable intrusion into the
privacy of communi-
of a valid warrant. But the PCo can also be a simple go-signal given
by the President for a warrantless arrest. It is established doctrine that cuti<ln and corresPondence?
warrantless arrests can bc valid, and thc procedural requirements, such
asexamination untlcr oath,lpplicirhle to a warrant of arrest do not apply 'rl'Scc Arlit lt' Vlll, Scetlon Itl
218 THE 1987 CONSTITUTION Sec.3
OF THE REPUBLIC OF THE PHILIPPINES
At the 1935 Constitutional Convention, Delegate Laurel said that
the object of the provision was to provide adequate protection for "let-
ters and messages" carried by the agencies of the government lest "their
privacy be wantonly violated and great harm [be] inflicted upon the
citizens."47E If the impression given by this explanation is that the pro-
tection is meant only for written communication sent through the mails,
the impression is corrected by Laurel himself. When he was asked
whether the protection covered telephone calls, he replied that the terms
communication and correspondence were "used in a general sense."47e
The increasingly sophisticated methods of electronic surveillance
which have been made possible by modern technology and their pos-
sible impact on personal privacy make the clarification of the scope of
the privacy provision crucial for present day constitutional law. Does
it in fact cover wiretaps or other methods of electronic eavesdropping?
Definitely it does.
When the 1935 Constitution was being formulated the control-
ling doctrine was that the search and seizure clause did not prohibit
non-trespassory wire-taps. This doctrine was established in 1928 in Ol-
mstead v. United States.4E0 Briefly, the argument in Olmstead was that
where there is no actual trespass there is no search, and where thd ob-
ject is not tangible it cannot be seized. The "tangibles only" rule was
anchored on the text of the Fourth Amendment which enumerates tan-
gibles: house, persons, papers, effects.48' The framers of the 1935 Con-
stitution were quite aware of the Olmstead doctrine and their realization
of the inadequacy of the search and seizure clause as a protection for
personal privacy must have at least partly motivated the adoption of the
privacy provision. It has no counterpart in the American Constitution
nor in Philippine organic law earlier than the 1935 Constitution.In ef-
fect, the privacy provision anticipated future development of American
jurisprudence, for in 1967 Katz v. United States"2 ovemrled the Olm-
stead doctnne and placed wiretapping, with or without trespass, under
the ban of the search and seizure clause.4E3
4783
JOURNAL OF THE (1935) CONSTITUTIONAL COI\I/ENTION (Fuu<:rsru Ed.)
1034-5.
a1sld.
at 1120.
4s277 U.S.438 (1928).
aEt
Id. at 464-5.
4E'389 U.S. 347 (1967).
asrFor a discussi<ln
ol clcctronic eavesdnlpping situations which rkr n()t conlc rrnrlcr lhc
privucy rule,,rer Ilnilc(l Slrlcs v. Whiic,4OI tl.S. 745 ( I97I).
Sec- 3 ART. TII _ BILLOFRIGHTS
The guarantee given by the privacy provision is not absolute. But
what is the measure of allowable state intrusion into privacy? The origi-
nal proposal at the 1935 Convention read: "The privacy of communica-
tion and correspondence shall be inviolable except upon lawful order of
the court." It was obviously the intent of the proponent of the provision,
Delegate Laurel, to condition allowable intrusion upon an order of a
court. He argued:o&
We state the fundamental principle that a person is entitled
to the privacy of communication; that he is entitled to his secrets,
but in those cases where a secret involves public questions which
the State should and ought to know, the State may infringe that
privacy of communication by some process or by appealing to the
Court for the purpose of determining whether or not the privacy
should be maintained.
Laurel won approval for his proposal. But the Committee on Style
added to it: "or when public safety and order require otherwise." This
addition was readily approved by the Convention on Recto's plea that:
"Esto es en enteres del orden publico y de la seguridnd del Estado,
porque puede que se envien por correo propagandas subversivas que
tengan por objecto desftuir el Estado filipine."o" It is clear therefore
that the 1935 Constitution allowed intrusion into the privacy of com-
munication either upon lawful order of a court or even without a court
order when public safety and order so demands.
When intrusion is sought through an order of a court, upon what
grounds may the court allow intrusion? The text does not give any
ground. It is submitted that the requirement of probable cause in the
preceding section should be followed. After all, as may be seen in the
development of American jurisprudence on the subject, the privacy
right is but an aspect of the right to be secure in one's person.486
Should the order also particularly describe the communication or
correspondence sought to be seized? When the correspondence sought
is written correspondence, it would seem that there should be no incon-
venience in requiring particularity of description. But if the intrusion
is to be done through wire-taps, how is the description to be made?
'r'Supra,notc I at lll9-20.
4tX 19351 (\)NSTI'I'[ll'lONAl. ('()NVI]NTION RECORD ((lrngress ed.) 417 ( 1965).
|
"n,\arMrlcriul I)istrillrlors, lnt'.v.Nntivirlttl.lt4Phil. I27, I36(I949).
22O THE 19STCONSTITUTION Sec.3
OF THE REPUBLIC OF THE PHILIPPINES
Evidently, it would be impossible to describe the contents of a com-
munication that has not yet been made. Hence, it would be unreason-
able to require a description of the contents of the communication. But
the identity of the person or persons whose communication is to be
intercepted, and the identity of the offense or offenses sought to be pre-
vented, and the period of the authorization given can be specified. In
fact, an attempt in this direction is made by Section 3 of R.A. 4200, the
Anti-Wiretapping Law,487 and similar safeguards also found in Title III
of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. Section
2518, which was discussed in the wiretapping case of United States v.
U.S. District Ct., Eastern Michigan.o8s
When intrusion is made without a judicial order, how is the mat-
ter to be approached? It would have to be based upon a non-judicial
government official's assessment that public safety and order demands
such intrusion. In addition to what has been said about what transpired
at the 1935 Convention, it was also made clear in the 1972 Convention
that an executive officer can order intrusion when in his judgment and
even without prior court approval he believes that public safety or order
so requires, And public order and safety were deflned as "the security
of human lives, liberty and property against the activities of invaders,
insurrectionists and rebels."48e
Thus the law stood during the period of martial law, which did not
leave behind any clarificatory jurisprudence on the subject. In review-
ing this provision, the 1986 Constitutional Commission sought to flnd
ways of ensuring that the power will not be abused by executive offi-
cers. The Committee Report sought to modify the 1935 and 1973 ver-
sions to read "The privacy of communication and correspondence shall
be inviolable except upon lawful order of the court when public safety
or order requires otherwise." By the simple expedient of dropping the
word "or," the effect sought was the restoration of the original 1935
proposal of Laurel which required court order for a valid intrusion.4eu
aETRamirez v. Court of Appeals,
G.R. No. 93833, September 28, 1995 was a conviction un-
der this law for a tape recording of a private conversation in an office. The evidence was excluded
but the constitutional aspect was not touched.
4s407 U.S.29'1 (1972).Butlvanov v. Ilnired States,4l9 U.S.88l (1974) sustainod war
rantless tapping ofa foreign agent and ol arr Arrrcricarr found guilty ofespionage.
aEel9Tl Constitutional (llnventirn. Session ol Novcmber 25,19'12.
4qrl R[i('()Rl) 675.6tt7 tt.
Sec.3 ART. III _ BILLOFRIGHTS 221
This was resisted as being too restrictive of executive power. Commis-
sioner Rodrigo argued: "We must not hamper the activities of the intel-
ligence service of the government. This is specially true now that there
are threats to the stability of the government; for example, there is the
criticism [ofl why the Armed Forces seemed not to have known before-
hand about the aborted coup d'h6tel that happened a few Sundays ago.
... While I myself would want all my communications and correspon-
dence absolutely untampered with, ... [w]e should not tie the hands of
government. So I would be willing to subordinate my personal privacy
to public S&fety."4t But Commissioner Regalado added that intrusion
without court order should be "resorted to only in extreme cases."4e2
Rodrigo's and Regalado's argument struck a responsive chord and
the word "or" was restored. But Commissioner Davide was quick to
add a new phrase, "as prescribed by law," which Commissioner Bernas
immediately accepted for the Committee.4e3 The effect of this addition,
made in the interest of safeguarding liberty, is not only that the discre-
tion of the executive officer is limitable by law but also that a public
officer who exercises this power must be able to point to a law under
which he acts. To hold otherwise would be to opt for a government of
men and not of laws. Every police agent would feel authorized to snoop.
Moreover, it goes without saying that "abuse of discretion amounting to
lack or excess ofjurisdiction" can be checked through judicial review.oeo
2. Exclusionary rule: historical development.
The exclusionary rule bars admission of illegally obtained evi-
dence. The second paragraph of Section 3, Article III makes the rule
applicable to evidence obtained under both Section 2 and Section 3(1).
The rule, which first became explicit in Article IV Section 4(2) of the
1973 Constitution, has had an uneven history in Philippine jurispru-
dence. It was first brought into prominence in a case involving the ac-
tivities of agents of the Anti-Usury Board. ln Uy Kheytin v. Villareal,on'
the issue was clearly raised whether "books of account, private docu-
4'y'l RECORD 724. Rodrigo spoke on July I 8, 1987, within a week from the aborted coup
by Marcos loyalists who took control of the Manila Hotel.
,"2|d, at.l25,
aulltl. trl'126.
'qArticlc Vlll, Scction l.
.ut42 Phil. 8lt6 ( I 920).
 THE 1987 CONSTITUTION Sec.3
OF THE REPUBLIC OF THE PHILIPPINES
ments, and private papers" could be the object of a search and seizure.
Justice Johnson, writing for the majority, said'4e6
Books of account, private documents, and private papers are
property which men may lawfully possess. It is not believed that
the statute (subsection 2 of Section 96, G.O. 58) was intended to
cover property of this class. Granting that property of which men
may lawfully possess themselves has been used in the commission
of a crime and not possessed nor created purely for the purpose of
committing a crime, and not likely to be used again, then certainly
its seizure can only be for the purpose of using the same as evi-
dence to prove the commission of the crime already committed.
This purpose is not contemplated by the provision of the law. The
finding of evidence cannot be the immediate reason for issuing a
search warrant. To use a search warrant for the purpose of obtain-
ing possession of property for this purpose would be an "unreason-
able use of the remedy by search warrant, which is prohibited by
law."
There is here, therefore, a proscription of "fishing expeditions."
The Court added,a? moreover, citing Justice Bradley in Boyd v. t/.,S.,ae'
that "seizure or compulsory production of a man's private paper's to
be used against him" was equivalent to self-incrimination and there-
fore was "unreasonable search and seizure." Whereupon, the Court re-
strained the prosecution from using the books as evidence.
When, however, the defense of self-incrimination was raised in
People v. Carlos,one the Court said that although Boyd v. U.,S.500 and Si/-
verthorn Lumber Co. v. U.S.50r were authority for the proposition that
documents obtained by illegal searches were inadmissible evidence in
criminal cases, Weeks v. U .S .s02 had modified this doctrine by adding that
"the illegality ofthe search and seizure should first have been directly
litigated and established by a motion made before trial, for the return of
the things seized."5o3 This precondition had not been satisfied; hence, the
a%Id. at898-9, clring Regidor v. Araullo,5 O.G. 955,961-2; U.S. v. de los Reyes, 20 Phil.
467 (tgtt).
ae742Phil.
at899.
4q8t
l6 u.s.6t6 (1886).
4ee47
Phil. 626 (1925).
5m
I l6 U.S. 616 ( I 886).
50r25l u.s.385 (1920).
Hp232
U.S.3n3 (I920).
""47 l'hil. irl (rlI.
Sec.3 ART. III _ BILL OF RIGHTS 223
illegality of the seizure was not considered an obstacle to admissibility.
Fortunately, however, this overzealous interest in procedural technical-
ity in the face of a violation of substantive right was rendered harmless
by the exclusion of the evidence in question for being hearsay.ss
The defense of self-incrimination was also raised in People v. Ru-
bios,s where "fraudulent books, invoices and records" had been seized;
but again the Court rejected the contention. Three reasons were given:s6
"[T]he public has an interest in the proper regulation of appellant's
books. (Act No. 3292, Section 4.)" (2) The books belonged to a cor-
poration of which the appellant was simply manager. (3) The warrant
was not issued to get papers "solely for use as evidence of crime" but
to seize the "instruments used in the violation of said [internal revenue]
laws" and "to prevent the further perpetration of fraud." Justice Abad
Santos, however, filed a strong dissent reiterating mainly the doctrine
of Boyd andWeeks.so,
While the Carlos and Rubio cases did not reject the doctrine in
Uy Kheytin, the clearest case reaffirming Uy Kheytin was also an Anti-
Usury Board case. In Alvarezv. Court of First Instance of Tayabas,'o'
decided under the 1935 Constitution, the Court decreed in no uncer-
tain terms: "The seizure of books and documents by means of a search
warrant, for the purpose of using them as evidence in a criminal case
against the person in whose possession they were found, is unconstitu-
tional because it makes the warrant unreasonable, and it is equivalent to
a violation of the constitutional provision prohibiting compulsion of an
accused to testify against himself."
Several other Anti-Usury Board cases reaffirmed the proscription
of "fishing expeditions."5oe However, the final case in the Anti-Usury
Board series, Yee Sue Koy v. Almeda,',' ended in uncertainty. Here, the
Court found the warrant in every respect regular,5'r but, on the issue of
ttaltl. at 3l-2. The evidence in question was a letter written by wife to husband which
had
lost its privileged character because it had come into the hands of third persons. Id, at 629-3O.
4tr57 Phil. 384 (1932).
ltbltl. at 394. See also Puebl<t contra Remojo, 40 O.G. l lth supp. 40, 42-45 (1941).
!'57 Phil. at .199-40 I .
v,364 l)hil. 33,47 ( l9l7).
1'"1)cr4rlc v. Sy Juco.64 l)hil. (r(r7 (1937);
Rtxlriguez v. Villamiel,65 Phil.230 (1937); De
( itrt:it v. l,ocsin, 65 Phil. 6tt9 ( I 93tl).
lro70 I'lril. l4 I ( l94O).
'tthl. rt l4'l.
 THE 1987 CONSTITUTION Sec.3 Sec.3 ART. III - BILL OF RIGTTTS
OF THE REPUBLIC OF THE PHILIPPINES

self-incrimination, Justice Laurel, writing for the high bench, said that
self-incrimination was not clearly shown and had in fact been denied by
respondents. Then he continued:s'2
In the application for the issuance of the search warrant in
question, it was alleged that the articles seized were "being used
by it (Sam Sing and Co.) in connection with its activities of lend-
ing money at usurious rates of interest in violation of the Usury
Law," and it is now suggested (memoranda of respondents) that
the only object of the agents of the Anti-Usury Board in keeping
the articles is to prevent petitioners from employing them as means
of further violations of the Usury Law. In this state of the record,
without deciding the question whether petitioners will in fact use
the articles in question, if returned, for illegal purposes, we are
not prepared to order the return prayed for by the petitioners.5l3 If
it be true, furthermore, without, however, deciding the point, that
as alleged by the respondents the articles in question constitute the
corpus delicti of the violation of the Usury Law, their return to the
petitioners cannot be ordered.
From this brief survey it can be gathered that, at the start of the
second World War, the Supreme Court's teaching on search and selzure
of books and papers was this: (1) To use a search warrant to obtain pri-
vate papers for the purpose of using them as evidence of crime against
the person from whom they are taken is equivalent to self-incrimination
and is "unreasonable search and seizure." Such papers are not admis-
sible evidence. (2) However, for one to be able to use this privilege,
the illegality of the search and seizure should first have been directly
litigated and established by a motion, made before trial, for the return of
the things seized. (3) This privilege does not extend to books in whose
on search and seizure. Alvero v. Dizonsta was the first foreboding of ill
omens. Here, documents were seized without search warrant by United
States Military officers. May these be used by the Philippine Govern-
ment as evidence in a prosecution for treason? The Court answered in
the affirmative, giving as reasons (l) that the seizure of the documents
was in conformity with the Laws and Customs of War'5r5 and (2) that the
seizure, although without wuurant, was legal because it was incidental
to arrest.5r6 The problem of self-incrimination was not considered at all.
Instead, the Court saids" that even if the seizure had been illegal, the
evidence would still be admissible under the doctrine of the Weekssts
and Gambinosle cases allowing Federal officers the use of evidence il-
legally obtained by state officers, or under the Burdeau52o doctrine al-
lowing Federal officers the use of evidence illegally obtained by pri-
vate persons. Moreover, by not following the preconditions laid down
in Weeks, which had been adopted in Carlos, the accused equivalently
waived whatever privilege there was.52' The most cutting part of the
decision, however, was de la Rosa's remark, made in utter disregard of
presumption of innocence, to the effect that treason implied the renun-
ciation and deprivation of the guarantee against unreasonable searches
and seizures.522
In the light of this uneven history of the doctrine on the seizure of
documents and their admissibility as evidence, one is startled by Justice
Pablo's disregard of history in Moncado v. People's Court523 expressed
s1476 Phit. 637 (t946).
stsld. at 644.
st6ld.at645. I
517(d.
at 647
5'8232
.

regulation the public has an interest. (4) Nor may an individual person
avail himself of this privilege with respect to papers belonging to a cor-
poration. (5) The privilege does not apply to books used in the perpetra-
tion of a crime, 1.e., when they constitute the corpus delicti. *i:i
*r
The close of the second World War and the prosecution of treason tr
4i
cases brought in new opportunities for the court to develop its teaching
$t
st2ld. at 147-8.
5r3ff. People v. Rubio,57 Phil. 384,394-5 (1932). These puges, to which l.uurel rclcrs in
Rubio, arc thosc which suy th.lt thc w:rrnlnl wus issuctl n{)t to ltcl pllrcrs "solcly lirr usc us cvitlt:nce
rrl crirrrc" l)ut lo scizc inslrunrclls ol lltt'critttt'lrxl l() l)rrvcul lirrtlrt'r lirrrrrl.
& ttlxxlrnu irulrhiiltunrnn lr tulr.s lnutlutt lrln,n tunhiur .vr custigukts. Ati et utmo lu k'v im-
U.S.383 (1920).
sreGambino v. U.S.,275 U.S.310 (1922). But this ruling said that the evidence would
not
be admissible if defendants were violating no state law and the seizure was made only for the
benefit of federal officers.
saBurdeau v. McDowell,256 U.S.465 (1921).
52'76 Phil. at 645.
522"
It
traicion implica renuncia y privacion de la garantra contra irrazonables registros y
secuestros, deligencias previas a la conviccion o absolucion, actuales estas finales del proceso."
Id. at 648.
tr80Phil. 1,3-4(1948). "ktteoriadeWeeksvs.IJ.S.quesubviertelasreglasdepruebano
u at'eptaltle en esta jurisdiccion: es contratria al sentido de justiciay a la ordenaday sana admin-
islnu'ion de.ju.rtk'iu. Lt tloctrina ortuloxt se impone por su consistencia probada de rnuchisimos
unos. No huv quc ubundonarkt.ti se desea quc los derechos constitucionales sean respetados
v no pntlitnudtx. Int; cullnbles dahen redhar su condigno castigo, aunque las pruebas contra
rlkrs huvut sidtr tiltk'ni&n ik,yiltn'ntr. Y krs tluc um infruccion de kt ley de lu Constitut-ion sc

THE 1987 CONSTITUTION Sec.3
OF THE REPUBLIC OF THE PHILIPPINES
in the categorical declaration that "It is established doctrine in the Phil-
ippines that the admissibility of evidence is not affected by the illegal-
ity of the means used for obtaining it." He condemned with Wigmore
the "pernicious influence" of Boyd and totally rejected the doctrine in
Weeks as subversive of the rules of evidence in Philippine jurisdiction.
It is sufficient protection for the people, he said, that those guilty of
violating the right against unreasonable searches and seizures be pros-
ecuted.
To no avail was Justice Cesar Bengzon's appeal to history in his
dissent. Bengzon argued that the 1935 Philippine Constitutional Con-
vention wanted the search and seizure provision to be exactly like the
provision of the Fourth Amendment of the American Federal Constitu-
tion. The Convention made specific reference to Boyds'o and Gouled.s2s
Subsequently, under the 1935 Constitution, the Court adopted in Al-
varez the ruling in Boyd, and this, in spite of the fact that the Court, as
shown in Carlos, was aware of the divergent courses taken by Federal
and State decisions. Hence, Bengzon concluded, "we are not at liberty
now to select between two conflicting theories. The selection has been
made by the [1935] Constitutional Convention when it impliedly chose
to abide by the Federal decisions, upholding to the limit the inviolabil-
ity of a man's donfslls."sze
With Bengzon's failure to win the other justices to his side and to
the side of the ruling in Uy Kheytin and Alvarez, a new era was intro-
duced for the role of search and seizure in the Philippines. After Monca-
do, decisions could say that it was settled in Philippine jurisdiction "that
illegally obtained documents and papers [were] admissible in evidence,
pera,majestuosoyincolume." Id.atll,citingBartonv.LeyteAsphaltandMineralOilCo.,4T
Phil. 938 (1934). But there in Barton, what was involved was a carbon copy of a letter which in
some unexplained way came into the hands of the adverse party. The court admitted it, saying that
"it makes no difference how the adversary acquired possession," whether legally or illegally. /d. at
953-4. This was not a question of use of evidence for prosecution.
5'4116 U.S. 616 (1886).
525Gouled v. U.S.,255 U.S.,298 (1921).
5'?680
Phil. at 26-7.
Although Laurel did make reference to Boyd in his sponsorship speech on the Bill of'
Rights, it is not clear whether he was advrrcating the adoption of everything that Boyd said. Scc .l
JOURNAL OF THE ( 1934) CONSTITUTIONAI. CONVENTION 1034 (Fpnu<'tstrr lid.).
Failing in his ellbrts, Bcngzon nskt'rl lhll lhc ruling hc murlc lpplicnhlc only to cnscs ullcr
Moncutkr. (80 l'hil. ri 28).
:
Sec.3 ART. III _ BILL OF RIGHTS 227
ii
F if found to be competent and relevant to the snss."szz It is paradoxical
{i
{r' that this doctrine, oppressive to free people, was occasioned in part, at
l least, by the arrival of American forces come to liberate the Philippines
;, from the Japanese. The circumstances of liberation and the establish-
ment of temporary American military government brought about a tem-
porary duality of internal jurisdiction which allowed judicial appeal to
the Weeks, Burdeau and Gambino decisions which the United States
Supreme Court would eventually reject.5'?8
The pre-Moncado rule, however, was not allowed to die. Justice
Roberto Concepcion kept it alive in dissent52e appealing both to Weel<s
and the more recent case of Elkins v. United States."o Hence, it was fit-
ting that Concepcion should pen the 1967 decision in Stonehill v. Dio-
knos3t formally rejecting Moncado: "{.Ipon mature deliberation ... we
are unanimously of the opinion that the position taken in the Moncado
case must be abandoned."
It is noteworthy, however, that while the Stonehill decision re-
jected the Moncado doctrine that evidence illegally obtained was ad-
missible, it was not a complete return to the pre-Moncado rule. The
Uy Kheytin and the Alvarez cases appealed to the theory that seizure of
papers amounted to self-incrimination and thus rendered the seizure un-
reasonable. The Stonehill case,on the other hand, considered the search
and seizure clause by itself: admission of illegally obtained evidence
makes the rule of freedom from state invasion of privacy "so ephemeral
and so neatly severed from its conceptual nexus with freedom from all
brutish means of coercing evidence."s3'?To the argument that prosecu-
tion ofthose guilty ofillegal search and seizure sufficed to protebt the
constitutional guarantee, the Court answered that such argument over-
looks the fact that violation thereof are, in general, committed by agents
of the party in power, for, certainly, those belonging to the minority
527Wong Lee v. Collector of Internal Revenue, L-10155, August 30, 1958; Medina v.
Col-
lector of Intemal Revenue, L- | 5 I 13, January 28,1961.
528Both Weeks
and Gambino were rejected in Elkins v. U.S.,364 U.S.206 (1960). Burdeau
may also not be able to stand now in view of Weeks and of Mapp. v. Ohio,367 U.S.643 (1961).
s2eDissenting in Medina v. Collector of Internal Revenue, G.R. No. 15113,
January 28,
t96t.
14,364 U.S. 206 ( l9m)
lrrl.-19550, Junc 19, 1967. Justicc Ruiz C-'astro's dissent was not on admissibility but on
"slInding."
il)ft/., r;uoting Mrpp. v. Ohio..167 [J.S.64.1 ( l96l).
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
could not possibly abuse a power they do not have. Regardless of the
handicap under which the minority usually
- but, understandably -
finds itself in prosecuting agents of the majority, one must not lose sight
of the fact that the psychological and moral effect of the possibility of
securing their conviction is watered down by the pardoning power of
the party for whose benefit the illegality has been committed.
In spite of the patent illegality of the search waJTant,533 however,
and in spite of the reversal of the Moncado doctrine, not all the evi-
dence seized in virtue of the warrants was barred from admission. Jus-
tice Concepcion made a distinction between the documents, papers and
effects "found and seized in the offices ofthe aforementioned corpora-
tions" and those "found and seized in the residences of the petitioners."
The latter, Concepcion said, were barred from admission whereas the
former were not, because Stonehill, being a person separate and distinct
from the corporations, had no personality to raise unconstitutional sei-
zure of the evidence found in corporation premises. No effort, however,
was made to determine which items among the two sets of evidence
belonged to Stonehill and which to the corporations. Concepcion made
place of seizure the sole standard for distinguishing the admissible from
the inadmissible. He seemed to assume that the location of the items
seized also determined ownership.
Even assuming, however, that Concepcion's distinction had the
effect of separating personal papers from corporate papers, and admit-
ting further that the right against unreasonable searches and seizures is
a personal right, the distinction, under the circumstances, smacked of
hyperlegalism. The warrants were issued as part of a single operation
and they were couched in identically defective forms. Under such cir-
cumstances, to allow the distinction made by Concepcion on the basis
of "lack of standing" seems to render the constitutional provision "so
ephemeral and so neatly severed from its conceptual nexus with free-
dom from all brutish means of coercing evidence." This conclusion is
especially cogent since Concepcion's "location test" did not effectively
divide the personal from the corporate effects.
At any rate, Stonehill also clearly affirmed that "the legality
seizure can be contested only by the party whose rights have been im-
"'Srqrrrr. rrrrtlcr "prrrbrthlc crrusc" nntl "pnrticulnrity ol dcscliption."
ART. III - BILL OF RIG}ITS
paired thereby, and that the objection to an unlawful search and seizure
is purely personal and cannot be availed of by third p?rties."s:a
3. Exclusionary rule: current status.
Ever since Stonehill, the exclusionary rule has been in firm pos-
session. It was reiterated in Bache & Co. v. Ruizs3s which, among other
things, also upheld the right of a corporation to object against uffeason-
able searches and seizures.$u With the incorporation of the rule into the
text of Article IV, Section 4(2) (1973) , and now in Article III, Section 3,
the position of the rule in Philippine jurisprudence becomes firmer still.
It is no longer subject to the vagaries of a fluctuating judicial climate.
The specific incorporation of the rule into the constitutional text,
aside from firming up the rule, producas two other consequences. First,
it divorces the rule from the self-incrimination clause. Now, evidence
obtained in violation of the search and seizure clause, whether or not
it is also self-incriminating testimonial evidence, is inadmissible. Sec-
ondly, by making such evidence inadmissible "for any purpose in any
proceeding," the Constitution has closed the door to any judicial temp-
tation to erode the rule by distinguishing and splitting hairs.$?
The inadmissibility of the evidence, however, does not mean that
it must be returned where it came from. If the object is not a prohibited
object, it must be returned.ss But if contraband, it can be confiscated.r.e
4. Violations by private persons.
To come under the exclusionary rule, however, the evidence must
be obtained by government agents and not by private individuals acting
on their own. In People v. Andre Marti, a private firm engaged in the
business of forwarding packages, opened boxes entrusted to it by a cus-
tomer for final inspection as part of standard its operating procedure be-
fore delivery of packages to the Bureau of Posts or Bureau of Customs.
Finding dried marijuana leaves inside a package, the firm took samples
$420 SCRA
l5 390. See a/sa Nasiad v. Court ofTax Appeals,6l SCRA 238,243-4 (No-
vember 29. 1974).
of a 5tJ37 SCRAtt23 (1971).
1t6/r/.
at 837.
'r/(irmpirrc the crosion hy distinction which the Burger Court started in Harris v. New
Vrrk, 40 I Lt.5. 222 (19721.
'r*llugtlihog v. lrcrnnrrlcz.(i.R. No. (Xr.]56, Junc 27, I99I.
'"'Alih v. ('lslro, l5l li('RA ?7', ( l9ll7).
 THE I 987 CONSTITI,ITION
OF THE REPUBLIC OF TIIE PHILIPPINES
to the NB[, who verified that the dried leaves were marijuana leaves.
When presented by the NBI as evidence for prosecution for violation
of drug laws, its admissibility was challenged on the ground that it was
fruit of an illegal search. Brushing aside such defense the Court said:5a.
The constitutional proscription against unlawful searches
and seizures therefore applies as a restraint directed only against
the government and its agencies tasked with the enforcement of
the law. Thus, it could only be invoked against the State to whom
the restraint against arbifary and unreasonable exercise of power
is imposed.
If the search is made upon the request of law enforcers, a
warant must generally be first secured if it is to pass the test of
constitutionality. However, if the search is made at the behest or
initiative of the proprietor of a private establishment for its own
and private purposes, as in the case at bar, and without the inter-
vention ofpolice authorities, the right against unreasonable search
and seizure cannot be invoked for only the act of private indi-
vidual, not the law enforcers, is involved. In sum, the protection
against unreasonable searches and seizures cannot be extended to
acts committed by private individuals so as to bring it within the.
ambit of alleged unlawful intrusion by the government.
It must be made clear, however, that the principle that the Bill of
Rights applies only to actions taken by state officials does not necessar-
ily mean that a private individual cannot violate the liberty of another.
Violation of the Bill of Rights precisely as a constitutional guarantee
can be done only by public officials. But almost all these liberties are
also guaranteed by Article 32 of the Civil Code thus making private
violations actionable even if the violation does not have a constitutional
consequence such as the applicability of the exclusionary rule. Thus,
a private entity or person may be held liable for illegal search under
Article 32 of the Civil Code.so'
Suc.4. No r,rw sHALL BE pAssED ABRTDGING THE FREEDoM
OF SPEECH, OF EXPRESSION, OR OF THE PRESS, OR THE RIGITT OF THE
PEOPLE PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT
FOR. REDRESS OF GRIEVANCES.
sl93 SCRA 57,67-68 (1991); Waterous Drug Corporation v. NLRC,G.R. No.
October 16, 1997.
qrSilohis
lnternation&l v. Solutn,(i.R. No. 163O87, t"cbruury 2O,2(X)6.
Sec.4 Sec.4 ART. III - BILLOFRIGHTS
1. The 1987Text.
There are several reasons why freedom of expression is guaran-
teed by the Constitution. For some, freedom of expression is essential
for the search of truth. This is the marketplace idea which posits that the
power of thought can be tested by its acceptability in the competition of
the market. Another reason offered is that free expression is needed for
democracy to work properly. The citizen-critic has to be given the in-
formation and freedom required for him to be able to perform his civic
duty. Still another reason is a very personal one. Freedom ofexpression
promotes individual self-realization and self-determination.
Except for the addition of the phrase "of expression," the pres-
ent provision preserves the 1935 and 1973 texts. The sentiment was
that the provision had become the subject of an extensive body of ju-
risprudence, both Philippine and American, and should be preserved.
Moreover, the Committee noted that the proposed reformulation of the
provision, which came from the floor, did not contain anything not al-
ready contained in the old formula.5a2 The addition of the phrase "of ex-
pression," however, was readily accepted by the Committee as a "minor
amendment" and a broader formula which, while by itself does not add
anything to existing jurisprudence, should itself be inclusive of various
forms of expression which jurisprudence has placed under the speech
and press clause.s43
2. Freedom ofSpeech and Press: prior restraint and subse-
quent punishment.
Freedom of expression was a concept unknown to Philippine ju-
risprudence prior to 1900. It was one of the burning issues during the
Filipino campaign against Spain, first, in the writings of the Filipino
propagandists, and, finally, in the armed revolt against the mother coun-
try. Spain's refusal to recognize the right was, in fact, a prime cause of
5121
RECORD 758-60. The rejected reformulation read: "The right of the people to enjoy
lieedom of spcech and press and kr peaceably assemble and petition the government for redress of
gricvanccs shall not be abridged." ln rc.lccting the amendment Commissioner Bernas pointed out,
ll327l, arnong olhcr lhings, thilt hy spccilying "pcoplc" the amendment would limit the scope ofthe pro-
lct'liorr kr rr:rltttirl grrsotts lhtts lcrrvittll (a)rl)()t'lltc cntitics, likc publishing companies, unprotecte(l.
't'h I . ttt JTll .

232 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
the revolution.5* But the privilege was not known by Filipinos until its
guarantee was transplanted to the Philippines by President McKinley's
Instruction to the second Philippine Commission. Hence, as Justice
Malcolm observed, "a reform so sacred to the people of these Islands
and won at so dear a cost, should now be protected and carried forward
as one would protect and preserve the covenant of liberty itself."s4s
The Instruction's text, lifted bodily from the Federal Constitu-
tion of the United States and reproduced without alteration in both the
Philippine Bill and the Autonomy Act, brought the guarantee to the
Philippines weighted with all the applicable jurisprudence of American
constitutional cases.s{ The same guarantee, unaltered in form, became
part of the 1935 Philippine Constitution. It remained unaltered in the
1973 Constitution and, as already noted, remains unaltered in the 1987
Constitution.
The common law doctrine, which was first elevated to a constitu-
tional principle through the First Amendment of the American Federal
Constitution, was summarized by Blackstone thus:547
The liberty of the press is indeed essential to the nature of,
a free state: but this consists in laying no previous restraints upon
publication, and not in freedom from censure for criminal matter
when published. Every freeman has an undoubted right to lay what
sentiments he pleases before the public: to forbid this is to destroy
the freedom of the press: but if he publishes what is improper,
mischievous, or illegal, he must take the consequence of his own
temerity. To subject the press to the restrictive power of a licenser,
as was formerly done, both before and since the Revolution, is
to subject all freedom of sentiment to the prejudices of one man,
and make him the arbitrary and infallible judge of all controverted
points in learning, religion and government. But to punish as the
law does at present any dangerous or offensive writings, which,
when published, shall on a fair and impartial trial be adjudged of
a pernicious tendency, is necessary for the preservation of peace
sJose Rizal, the national hero of the Philippines, in his work Filipirus Despues de Cien
Affos counted freedom ofexpression as one ofthe reforms sine quibus non demanded by the lrili-
pinos. The columns of La Solidaridad were instruments used by the Filipino patriots in Spain lirr
advocating the needed reforms. See U.S. v. Bustos,37 Phil.73l,739-0 (1918).
sasld. at74O.
%ld.
1a7W.
Br.ncxsrrrNt,.. ( rt uu t :u nnn.: I 45 (| li76).
Sec.4 ART. III - BILL OF RIGHTS 233
Sec.4
and good order, of government and religion, the only solid founda-
tions of civil liberty. Thus, the will of individuals is still left free:
the abuse only of that free will is the object of legal punishment.
Neither is any restraint hereby laid upon freedom of thought or in-
quiry: liberty of private sentiment is still left; the disseminating, or
making public, of bad sentiments destructive to the ends of society'
is the crime which society corrects.
The first prohibition of the constitutional provision is thus a pro-
hibition of prior restraint. Prior restraint means official governmental
restrictions on the press or other forms of expression in advance of
actual publication or dissemination. Its most blatant form is a system
of licensing administered by an executive officer. In fact, the doctrine
which prohibits prior restraint arose as a reaction to sixteenth and sev-
enteenth century attempts to control the press by requiring licenses and
permits as a prerequisite to publication. Movie censorship, although not
placed on the same level as press censorship, also belongs to this type
of prior restraint.548 Also similar to the licensing system is judicial prior
restraint which takes the form of an injunction against publication.sa'
Equally objectionable as prior restraint are license taxes measured by
gross receipts for the privilege of engaging in the business of advertis-
ing in any newspaperss' or flat license fees for the privilege of selling
religious books.55'
The mere prohibition of government interference before words are
spoken or published would be an inadequate protection of the freedom
of expression if the government could punish without restraint after
publication. The unrestrained threat of subsequent punishment itself
would operate as a very effective prior restraint. As Cooley put it; "the
mere exemption from previous restraint cannot be all that is secured by
the constitutional provisions, inasmuch as of words to be uttered orally
there can be no previous censorship, and the liberty of the press might
be rendered a mockery and a delusion, and the phrase itself a byword
if, while every man was at liberty to publish what he pleased, the public
5asTimes Film Corp. v. City of Chicago, 365 U.S' 43 (1961); Freedman v. Maryland' 380
tJ.s.5t(t965).
'a"Ncar v. Minncsota.2ll3 tl.S. 697 ( 193l); New York Times Co. v. United States' 403 U'S.
7n(le7r).
""(irosjcirtt v. Atttcritittt l'ress ('o..297 tl.S 2.].1 ( l9-l(r).
"'Mrrrrkrr.kv. l'cnrrsylvuniu, ll()ll.li. lt)5(l(),1 l); AtttelieltttllihlcSociclyv.C'ityof Ma-
Irrl:r. l{ll lthrl. tlt(r{l()5/).
234 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
authorities might nevertheless punish him for harmless publications."552
Hence, the guarantee of freedom of expression also means a limitation
on the power of the state to impose subsequent punishment. Thus, it is
that much of the jurisprudence on freedom of expression consists of at-
tempts to find standards for allowable subsequent punishment.
3. Prior restraint and the press.
The two leading cases on prior restraint, separated by a span of
forty years, are Near v. Minnesota$3 and New York Times v. United
States.ss4
At issue in Near was a statute authorizing the state to obtain
injunction against the continued publication of any newspaper or maga-
zine after finding by a court that such newspaper or magazine has be-
come a public nuisance by engaging in the business of regularly pub-
lishing "malicious, scandalous and defamatory" articles. The Saturday
Press was found to be such a public nuisance because of a series of vi-
ciously anti-Semitic articles it had published. The articles in substance
charged that "a Jewish gangster was in control of gambling, bootleg-
ging and racketeering in Minneapolis, and that law enforcement agen-
cies were not energetically performing their duties."s', On this basis,
further publication of the newspaper was permanently enjoined.
As can be seen, the issue in Near was not licensing, or censorship
of the traditional type. The Court nonetheless found it to be a constitu-
tionally objectionable form of prior restraint:
If we cut through mere details of procedure, the operation
and effect of the statute in substance is that public authorities may
bring the owner or publisher of a newspaper or periodical before a
judge upon a charge of conducting a business of publishing scan-
dalous and defamatory matter in particular that the matter con-
-
sists ofcharges against public officers ofofficial dereliction and
- traditional presumption against prior restraint. "Any system of prior
unless the owner or publisher is able and disposed to bring com-
petent evidence to satisfy the judge that the charges are true and
are published with good motives and for justifiable ends, his news-
552CooLEy, t Lw trtnors 42 1 ( I 808).
Co,rrsr n un o ut
55rSupra, note 8.
'5a.Saprn, note 8.
"'283 [I.S. rt 714.
Sec.4 Sec.4 ART. III - BILL OF RIGHTS
paper or periodical is suppressed and further publication is made
punishable as a contempt. This is of the essence of censorship.556
The Supreme Court then added: "In determining the extent of the
constitutional protection, it has been generally, if not universally, con-
sidered that it is the chief purpose of the guaranty to prevent previous
re str aint s of p ublic at io n." "'
The case was decided by a narrow 5-4 vote. Moreover, Chief Jus-
tice Hughes, writing for the majority, acknowledged in an obiter dictum
that the prior restraint principle was not an unbending rule but admitted
of exceptions.55s
an
"When a nation is at war, many things that might be said
in time of peace are such a hindrance to its effort that their utter-
ance will not be endured so long as men fight and that no court
could regard them as protected by any constitutional right."5so Nq
one would question but that government might prevent actual ob-
struction to its recruiting service or the publication of the sailing
dates of transports or the number and location of troops. On similar
grounds, the primary requirements of decency may be enforced
against obscene publications. The security of the community life
may be protected against incitements to acts of violence and the
overthrow by force of orderly government'
Prior restraint again attracted public attention in l97l in the cel-
ebrated case of Nel, YorkTimes v. United States.s6o The case arose when
the New York Times started publication of excerpts from a classified
Pentagon study entitled "History of U.S. Decision Making Process on
Vietnam Policy." The Nixon administration claimed that cohtinued
publication of the study would pose a serious threat to national security.
On June 30,7971, the United States Supreme Court refused injunction.
The brief per curiam order of the Court simply reiterated the
rcstraints of expression comes to this Court bearing a heavy presumption
\'t'ld. il7!J.
,.111.
"*/r/.ll 716.
""Sclrt:rrck v. llrriterl Slllcs, l4() t,.S.47 ( l9l9).
".'401 it.s.7l I ( l()71 ).
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
against its constitutional validity."56r The Government "thus carries
a heavy burden of showing justification for the enforcement of such
a resffaint."562 The Court held that "the Government had not met
that burden."563 But the per curiam opinion was accompanied by six
concurring and three dissenting opinions all of which, in their divergent
ways, grappled with the problem of establishing noflns for determining
exceptions to the prior restraint rule. Specifically, the national security
exception mentioned inthe Near dictum came up for examination.
For Justice Black, consistent with his absolutist views, there could
be no occasion for enjoining the publication of news. "In my view it is
unfortunate that some of my Brethren are apparently willing to hold
that the publication of news may sometimes be enjoined. Such a hold-
ing would make a shambles of the First Amendment."se Likewise, for
Justice Douglas, there could be no two ways about the constitutional
mandate: "It should be noted at the outset that the First Amendment
provides that 'Congress shall make no law ... abridging the freedom of
speech or of the press'. That leaves, in my view, no room for govern-
mental restraint on the press."ses
Looking back to the Near dictum,Justice Brennan was willi4g to
concede a very narrow class ofexception: "only governmental allega-
tion and proof that publication must inevitably, directly and immedi-
ately cause the occurrence of an event kindred to imperiling the safety
of a transport already at sea can support even the issuance of an interim
restraining order."566 Likewise, Justice Stewart, while recognizing the
Executive duty, "through the promulgation and enforcement of execu-
tive regulations, to protect the confidentiality necessary to carry out its
responsibilities in the fields of international relations and national de-
fense," joined in refusing to grant the injunction because he could "not
say that disclosure of any of [the documents] would surely result in di-
rect, immediate, and irreparable damage to our Nation or its people."'u'
s6tCiting Bantam Books, Inc. v. Sullivan, 372
U.S. 58, 70 (1963) and Near v. Minnesota,
suprd.
562Citing Organization
for a BetterAusrin v.Keefe,402 U.S.4l5 (1971).
563403
U.S.713.
5uld. at714.
565ld. at'720.
t6ld. at726-7.
rn7lr/.
tt 730.
Sec.4 Sec.4 ART, III - BILL OF RIGHTS
Justice White would not deny the possibility of granting an in-
junction against publishing information about governmental plans or
operations. He would also grant that publication of some of the docu-
ments involved would "do substantial damage to public interests." But,
he concluded, "I nevertheless agree that the United States has not satis-
fied the very heavy burden which it must meet to warrant an injunction
against publication in these cases, at least in the absence of express and
appropriately limited congressional authorization for prior restraint in
circumstances such as these."568 Moreover, he said that to sustain the
government's suggestion that "grave and irreparable danger" is a suffi-
cient standard for prior restraint "would start the courts down a long and
hazardous road and I am not willing to travel at least without congres-
sional guidance and direction."
Justice Marshall'un discussed Congress' refusal to grant the execu-
tive branch the power that the Government contended it had and then
concluded: "It is not for this Court to fling itself into every breach per-
ceived by some government official nor is it for this Court to take on
itself the burden of enacting law, especially law that Congress has re-
fused to pass." Marshall, however, left open the question as to whether
Congress could authoizethe prior restraint sought by the government.
Chief Justice Burger in his dissent was appalled by the excessive
haste with which the case was decided, with the Court unable to know
what the facts were. Similarly appalled was Justice Blackmunn.'o And
so was Justice Harlan.s" Moreover, Harlan added that the Court should
defer to the Executive's judgment in foreign affairs and should limit its
enquiry to a determination of whether the Executive acted within his
powers to make treaties and command the armed forces.572
So the press won. But why? Justice Stewart put it well:5?3
In the government structure created by our Constitution, the
Executive is endowed with enormous power in the two related
areas of national defense and international relations. This power,
1n8
Id.
'6u/d. nt 740
""/u/. lt 75t)
"'lrl. tt 74tl
'"Id.tl75'7
\ttlil il'1.)"7
 THE 1987 CONSTITUTION Sec.4
OF THE REPUBLIC OF TIIE PHILIPPINES
largely unchecked by the Legislative and Judicial branches, has
been pressed to the very hilt since the advent of the nuclear missile
age. For better or for worse, the simple fact is that a president of
the United States possesses vastly greater constitutional indepen-
dence in these two vital areas of power than does, say, a prime
minister of a country with a parliamentary form of government.
In the absence of the governmental checks and balances
present in other areas of our national life, the only effective re-
straint upon executive policy and power in the areas of national
affairs may lie in an enlightened citizenry in an informed and
-
critical public opinion which alone can here protect the values of
democratic government. For this reason, it is perhaps here that a
press that is alert, aware, and free most vitally serves the basic
purpose of the FirstAmendment. For without an informed and free
press there cannot be an enlightened people.
The field of freedom of expression in the martial law decade is a
desolate wasteland. Newspapers and magazines and radios closed by
the regime at the start of martial law remained closed, and so total was
the regime's hold on media that none of these closures occasioned a
single freedom of expression case until 1984. The closure of the op-
position newspaper We Forum later during the regime was followdd by
charges of rebellion against editors and columnists. The Court in 1984
did condemn the closure. "Such closure is in the nature of previous
restraint or censorship abhorrent to the freedom of the press guaranteed
under the fundamental law, and constitutes virtual denial of petitioners'
freedom to express themselves in dissent."t4 But there was recogni-
tion on the part of publishers of the futility of trying to ask the Court
for leave to resume publication. And where blatant restraint was not
imposed, warning was used. A clear case of violation of freedom of
expression through the harassment of media was the summons the mili-
tary sent to several women writers. When brought to Court, the Court
did not pass judgment on the case but instead considered it moot since
the military had discontinued the interviews. But the warning had been
given.575
In the aftermath of the 2004 elections when there was wide talk
about election cheating, one of the topics that hugged the headlines was
sTaBurgos, Sr. v. Chief of Stall', AFp, 133 SCRA S00 ( I9g4). Su, ulxt Corro v. Lising, I 37
scRA54l (198s).
57'.Scc
Rahst v. N:rliorrul lntt.lligcncc lh:rnl, IJ2 S(lRA .l l6 ( l9tt4).
Sec.4 ART. III - BILL OF RIGHTS 239
the alleged telephone conversation between President Gloria Macapa-
gal-Arroyo and Election Commissioner Garcillano. The government
warning addressed to media against airing the alleged wiretapped con-
versation was deemed by the Court to constitute unconstitutional prior
restraint on the exercise of freedom of speech and of the press.5?6
4. Prior restraint, movies and electronic media.
Radio and television suffered the same fate during martial rule.
Radio and television stations were closed. Even before martial rule,
however, different standards were used for radio. A solitary Philippine
case, Santiago v. Far East Broadcasting,sTT is an illustration of less than
total obeisance to the prior restraint rule. Commonwealth Act No. 98578
gave the Secretary of Interior (before a Radio Board could be formed)
power to censor all programs and "to eliminate or cancel from the pro-
gram such number or parts thereof as in his opinion are neither moral,
educational nor entertaining, and prejudicial to public interest."5'n Pur-
suant to this authorization, the Secretary of Interior issued a regula-
tion requiring the submission of speeches twenty-four hours before
broadcast time. Was the requirement valid? The Court said it was, "as a
proper exercise of its police power." But then it added: "However, we
are not called upon here to inquire into the constitutionality and validity
of said Act. . . . because the petitioner has not specifically raised it ' . . "580
And if the petitioner had raised it, what could the Court have said? The
thinking of the Court was sufficiently made clear when it said that58'
-
... [a] speech that may endanger the public safety may be
censored and disapproved for broadcasting. How could the cen-
sor verify the petitioner's claim that the speeches he intendednto
broadcast offered no danger to public safety or public morality,
if the petitioner refused to submit the manuscript or even the gist
thereof?
In I 985 , when the strictures of martial rule had eased up somewhat,
Far Eastern Broadcasting v. Dans, Jr.,s82 had the opportunity to deal
'?"Chavez v. Gonzales, C.R. No. 168338, February | 5, 2008.
'773 Phit. 408 ( I 94 I ).
-8I PUBI,IC I-AWS OFTHE COMMONWEALTH 399 (I936)
'?')7.1 I'hil. tt 4l l .
13r/r/.
at 412.
'Nr/r/. rtt 4l ].
srl t7 s('l{A 62t{ 1111311.
 THE 1987 CONSTITUTION Sec.4
OF THE REPUBLIC OF THE PHILIPPINES
with a radio station which had been summarily closed on the grounds of
national security. In the midst of the litigation for the reopening of the
station, however, ownership of the station passed to someone to whom
the government willingly gave a permit to operate. Nevertheless,..for
the guidance of inferior courts and administrative tribunals," the court
issued guidelines which essentially required hearing and the application
of the clear and present danger rule. The need for licensing, moreover,
was rightly defended for the purpose not of regulation of broadcast
content but for the proper allocation of airwaves. At the same time,
however, the court pronounced that the freedom of broadcast media is
lesser in scope than the press because of their pervasive presence in the
lives of people and because of their accessibility to children. The same
observation was made in Gonzales v. Kalaw Katigbal# with respect to
television.
similarly, the preferential treatment in the matter of prior restraint
that has been given to the press, has not been extended with equal vigor
to motion pictures either. Even American jurisprudence treats motion
pictures differently. True it is that Burstyn v. wilsonss, held that motion
pictures come under the constitutional protection given to expression.
But in Tirnes Film Corp. v. Chicago,sss the U.S. Supreme Court, blz a
vote of 5 to 4, concluded that a Chicago ordinance requiring films to
be submitted and viewed by a board of censors prior to public exhibi-
tion was not unconstitutional on its face. Recalling the exceptions to
prior restraint in Near v. Minnesotass6 the court held that the constitu-
tional protection does not include "complete and absolute freedom to
exhibit, at least once, any and every kind of motion picture ... even if
this film contains the basest type of pornography, or incitement to riot,
or forceful overthrow of orderly government. ..."587 Three years later,
however, in Freedman v. Maryland,s88 the Court took pains to set down
strict standards and procedural safeguards for movie censorship. The
Court said:s8e
s83137
SCRA 717 (1985).
94343 u.s.495, sbz 6eszs.
58s365
U.S. 43,46 (1961).
s86283
U.S. at 716.
sE7365
U.S. at 47.
$8380 U.S.5t (t965).
'8"/r/. at 5ll-59.
Sec.4 ART. III - BILL OF RIGHTS
[We] hold that a non-criminal process which requires prior
submission of a film to a censor avoids constitutional infirmity
only if it takes place under procedural safeguards designed to ob-
viate dangers of a censorship system. First, the burden of proving
that the film is unprotected expression must rest on the censor. ...
Second, ... the requirement cannot be administered in a manner
which would lend an effect of finality to the censor's determina-
tion. ... The teaching of our cases is that, because only a judicial
determination in an adversary proceeding ensures the necessary
sensitivity to freedom ofexpression, only a procedure requiring a
judicial determination suffices to impose a valid final restraint' ...
To this end, the exhibitor must be assured, by statute or authorita-
tive judicial construction, that the censor will, within a specified
brief period, either issue a license or go to court to restrain show-
ing the film. Any restraint imposed in advance of a final judicial
determination on the merits must similarly be limited to preserva-
tion of the status quo for the shortest fixed period compatible with
sound judicial resolution. Moreover, ... the procedure must also
assure a prompt judicial decision, to minimize the deterrent effect
of an interim and possibly enoneous denial of a license.
The Freedman doctine, however, was not fully accepted by the
Philippine Court in lglesia ni Kristo v. Court of Appeals, where the
Court said:5*
This thoughtful thesis is an attempt to transplant another
American rule in our jurisdiction. Its seedbed was laid down by
Mr. Justice Brennan in his concurring opinion in the 1962 case
of Manual Enterprise v. Day. By 1965, the US Supreme Court
in Freedman v. Maryland *ut t"uAy to hold that "the teaching'of
cases is that, because only ajudicial determination in an adversary
proceeding ensures the necessary sensitivity to freedom ofexpres-
sion, only a procedure requiring a judicial determination suffices
to impose a valid final restraint."
While the thesis has a lot to commend itself, we are not
ready to hold that it is unconstitutional for Congress to grant an ad-
ministrative body quasi-judicial power to preview and classify TV
programs and enforce its decision subject to review by our courts.
As lirr back as l92l , we upheld this set-up in Sotto v. Ruiz,set viz.'.
''r(i.R. No. ll96'/.l,Jtrly 2(r' l()()(r'
'"r4 I I'hil. 4(rlt ( l(,2 I ) lrt .lrrrlict' Mttlcolrll
 THE 1987 CONSTITUTION Sec.4
OF THE REPUBLIC OF THE PHILIPPINES
"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 posses no absolute right to put into the
mail anything they please, regardless of its character.,,
On the other hand, the exclusion of newspaper and other
publications from the mails, in the exercise of executive power,
is extremely delicate in nature and can only be justified where the
statute is unequivocably applicable to the supposed objectionable
publication. In excluding any publication for the mails, the object
should be not to interfere with the freedom of the press or with any
other fundamental right of the people. This is the more true with
reference to articles supposedly libelous than to other particulars
of the law, since whether an article is or is not libelous, is funda-
mentally a legal question. In order for there to be due process of
law, the action of the Director of Posts must be subject to revision
by the courts in case he had abused his discretion or exceeded his
authority.se2
As has been said, the performance of the duty of determining
whether a publication contains printed matter of a libelous char-
acter rests with the Director of Posts and involves the exercise of
his judgment and discretion. Every intendment of the law is in
favor of the correctness of his action. The rule is (and we go only
to those cases corning from the United States Supreme Court and
pertaining to the United States Postmaster-General), that the courts
will not interfere with the decision of the Director of posts unless
clearly of opinion that it was wrong.5e3
To be sure, legal scholars in the United States are still de-
bating the proposition whether or not courts alone are competent
to decide whether speech is constitutionally protected. The issue
involves highly arguable policy considerations and can be better
addressed by our legislators.
Under martial rule in the Philippines, strict movie censor-
ship procedures were in effect. But even now after martial rule
movies are still under the constricting grip of the as yet judicial-
ly unchallenged censorship body created by Presidential Decree
5e2Ex parte
Jackson (1878),96 U.S.,727;P:ublic Clearing House vs. Coyne (1903), 194
U.S.,497; Post Publishing Co. vs. Murray (1916).23-Fed.,173.
5e3Bates & Guilid
Co. vs. Payne (1904). t94 tI.S., 106; Smith vs. Hitchc<rk (19lZ),226
U.S.,631 Masses Pub. (ir. vs. l);rttcn (1917),2461rct|., 24. Ilrrt sce l)uvitl vs. llnrwn ( l(rx)), lg l
lbd.,9O9, itttnottttt ing :t sotttt'wlr:tl tlillt'rr:rtl thrctrinc unrl rclitxl u;xrn by tlrc Ailorncy (icrrcr.rrl.
Sec.4 ART. III _ BILL OF RIGHTS
1986. Under the decree a movie classification board is made the ar-
biter 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.
Similarly, a television show such as"The Inside Story" was found
to be not exempt from the requirement of prior submission to the MT-
CRB. It was seen as being on the same level as news reporting.5e4
5. Media and judicial process.
A case of first impression in Philippine Jurisprudence was Secre-
tary of Justice v. Sandiganboyanses which involved a petition to allow
live television covefage of the trial of former President Estrada. In deny-
ing the petition the Court relied completely on American jurisprudence:
In Estes vs.Texas ,5e6 the United States Supreme Court held
that television coverage ofjudicial proceedings involves an inher-
ent denial of the due process rights of a criminal defendant. Voting
5-4, the Court through Mr. Justice Clark, identified four (4) areas
of potential prejudice which might arise from the impact of the
cameras on the jury, witnesses, the trial judge and the defendant.
The decision in part pertinently stated:
Experience likewise has established the prejudicial effect qf
telecasting on witnesses. Witnesses might be frightened, play to
the camera, or become nervous. They are subject to extraordinary
out-of-court influences which might affect their testimony. Also,
telecasting not only increases the trial judge's responsibility to
avoid actual prejudice to the defendant, it may as well affect his
own performance. Judges are human beings also and are subject
to the same psychological reactions as laymen. For the defendant,
telecasting is a form of mental harassment and subjects him to
excessive public exposure and distracts him from the effective
presentation of his def'ense.
Itry'1'p1'lt v. AltS ('llN,(i.R. No. l552tt2,.ltnuary
17, 2(X)5
'"'A.M. No. Ol.4 0.1 S('. Jrrrrr' .l(), 2(X)1.
n618 lll.li 5t?, l4l.crl ,)rl 1,ll.Xl:'i('l l().ltl.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The television camera is a powerful weapon which inten-
tionally or inadvertently can destroy an accused and his case in the
eyes of the public.'
Representatives ofthe press have no special standing to ap-
ply for a writ of mandate to compel a court to permit them to at-
tend a trial, since within the courtroom, a reporter's constitutional
rights are no greater than those of any other member of the public.
Massive intrusion of representatives of the news media into the
trial itself can so alter or destroy the constitutionally necessary ju-
dicial atmosphere and decorum that the requirements of impartial-
ity imposed by due process of law are denied the defendant and
a defendant in a criminal proceeding should not be forced to run
a gauntlet of reporters and photographers each time he enters or
leaves the courtroom.
Considering the prejudice it poses to the defendant's right
to due process as well as to the fair and orderly administration of
justice, and considering further that the freedom of the press and
the right of the people to information may be served and satis-
fied by less distracting, degrading and prejudicial means, live radio
and television coverage of court proceedings shall not be allowed.
Video footages of court hearings for news purposes shall be re-
stricted and limited to shots of the courtroom, the judicial offlcers,
the parties and their counsel taken prior to the commencement of
official proceedings. No video shots or photographs shall be per-
mitted during the trial proper.
Accordingly, in order to protect the parties'right to due pro-
cess, to prevent the distraction of the participants in the proceed-
ings and in the last analysis, to avoid miscarriage of justice, the
Court resolved to PROHIBIT live radio and television coverage
of court proceedings. Video footages of court hearings for news
purposes shall be limited and restricted as above indicated.
6. Media and priyacy.
The case of Ayer Productions v. CapulongseT was the occasion for
an examination of motion pictures as a vehicle not just for entertain-
ment but also for communication. The case involved the production
of "The Four Day Revolution," a movie account of the bloodless coup
that toppled the Marcos regime. Juan Ponce Enrile, a principal actor in
ler l60 s('RA 86 t ( I 9ttlt)
Sec.4 Sec.4 ART. III - BILL OF RIGHTS
the historic event, sought to enjoin the use of his name or of any mem-
ber of his family. Against Enrile's claim was the producer's assertion
of freedom of expression. The Court had to balance Enrile's claim to
the right of privacy against the producer's freedom of expression. The
Court began its disquisition with the assertion that freedom of expres-
sion as applicable to motion pictures:se8
Considering first petitioners'claim to freedom of speech and
of expression, the Court would once more stress that this freedom
includes the freedom to film and produce motion pictures and to
exhibit such motion pictures in theaters or to diffuse them through
television. In our day and age, motion pictures are a universally
utilized vehicle of communication and medium of expression.
Along with the press, radio and television, motion pictures consti-
tute a principal medium of mass communication for information,
education and entertainment. In Gonzales v. Katigbak,see former
ChiefJustice Fernando, speaking for the Court, explained:
1. Motion pictures are important both as a medium
for the communication of ideas and the expression of the ar-
tistic impulse. Their effects on the perception by our people
of issues and public officials or public figures as well as the
prevailing cultural traits is considerable. Nor as pointed out
in Burstyn v. Wilson (343 US 495 U942)) is the 'importance
of motion pictures as an organ of public opinion lessened
by the fact that they are designed to entertain as well as to
inform' (lbid.,50l). there is no clear dividing line between
what involves knowledge and what affords pleasure. If such
a distinction were sustained, there is a diminution of the ba-
sic right to free expression. x x x6m
:
This freedom is available in our country both to locally-
owned and to foreign-owned motion picture companies. Further-
more, the circumstance that the production of motion picture films
is a commercial activity expected to yield monetary profit, is not
a disqualification for availing offreedom ofspeech and ofexpres-
sion. In our community as in many other countries, media facilities
are owned either by the government or the private sector but the
private sector-owned media facilities commonly require to be sus-
tained by being devoted in whole or in part to revenue producing
roild. rt tl(rt)-1J70.
'wt.l7 s('RA 7 I 7 ( t9tt5)
drrl.l? S('RA ul 721.
 246 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
activities. Indeed, commercial media constitute the bulk of such
facilities available in our country and hence to exclude commer-
cially owned and operated media from the exercise of constitu-
tionally protected freedom of speech and of expression can only
result in the drastic contraction of such constitutional liberties in
our country.
Against freedom of expression, however, must be balanced the
right of privacy which is recognized by law as the "right to be left
alone."60r The Court said: "A limited intrusion into a person's privacy
has long been regarded as permissible where that person is a public
figure and the information sought to be elicited from him or to be pub-
lished about him constitute matters of a public character. Succinctly
put, the right of privacy cannot be invoked to resist publication and
dissemination of matters of public interest. The interest sought to be
protected by the right of privacy is the right to be free from 'unwar-
ranted publicity, from the wrongful publicizing of the private affairs
and activities of an individual which are outside the realm of legitimate
public g671ssyn."'602
Important for the resolution of the case is the concept of "public
figure" and the consequences of being such. The Court quoted from
Prosser and Keeton'603
A public figure has been defined as a person who, by his ac-
complishments, fame, or mode of living, or by adopting a profes-
sion or calling which gives the public a legitimate interest in his
doings, his affairs, and his character, has become a 'public person-
age.'He is, in other words, a celebrity. Obviously to be included in
this category are those who have achieved some degree of reputa-
tion by appearing before the public, as in the case of an actor, a
professional baseball player, a pugilist, or any other entertainer.
That list is, however, broader than this. It includes public officers,
famous inventors and explorers, war heroes and even ordinary sol-
diers, an infant prodigy, and no less a personage than the Grand
ot160 SCRA at 8T0,citing"TheConstitutional Foundations of privacy,', inCortls, Emerg-
ing Trends in Inw, pp. l-70 (Univ. of the Philippines Press, 1983). This lecture was originally
delivered in 1970.
62ld.The Court had had crccasion to deal with a similar casc in
l-agunsacl v. Vtla. de (ion-
z.ales, 92 SCRA 47(r ( I 979)
'orl)Rr)sslrR rrrtt Krt.trrr or'linrs, 5tlr lil. trt tt5() l{61 ( l()1.14)1
Sec.4 Sec.4 ART. III - BILL OF RIGHTS 247
Exalted Ruler of a lodge. It includes, in short, anyone who has
arrived at a position where public attention is focused upon him
as a person.
Such public figures were held to have lost, to some extent at
least, their right of privacy. Three reasons were given' more or less
indiscriminately, in the decisions" that they had sought publicity
and consented to it, and so could not complain when they received
it; that their personalities and their affairs had already become pub-
lic, and could no longer be regarded as their own private business;
and that the press had a privilege, under the Constitution, to inform
the public about those who have become legitimate matters of pub-
lic interest. On one or another of these grounds, and sometimes
all, it was held that there was no liability when they were given
additional publicity, as to matters legitimately within the scope of
the public interest they had aroused.
The privilege of giving publicity to news, and other mat-
ters of public interest, was held to arise out of the desire and the
right of the public to know what is going on in the world, and the
freedom of the press and other agencies of information to tell it.
'News' includes all events and items of information which are out
of the ordinary humdrum routine, and which have 'that indefinable
quality of information which arouses public attention.'To a very
great extent the press, with its experience or instinct as to what
its readers will want, has succeeded in making its own definition
of news, as a glance at any morning newspaper will sufficiently
indicate. It includes homicide and other crimes, arrests and police
raids, suicides, marriages and divorces, accidents, a death from
the use of narcotics, a woman with a rare disease, the birth of a
child to a twelve year old girl, the reappearance ofone supposed to
have been murdered years ago, and undoubtedly many other simi-
lar matters of genuine, if more or less deplorable, popular appeal.
The privilege of enlightening the public was not, however,
limited to the dissemination of news in the sense of current events.
It extended also to information or education, or even entertainment
and amusement, by books, articles, pictures, films and broadcasts
concerning interesting phases of human activity in general, as well
as the reproduction of the public scene in newsreels and travel-
ogucs. ln determining wherc to draw the line, the courts were in-
vitcd to cxcrcisc a specics of censtlrship over what the public may
bc pcrrniltcrl lo rcad; antl thcy wcrc understandably libcral in al-
itrrlics supplicrl.
krwirrg, 11t" l.lcllcrlil ol thc rkrtrhl.
 248 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
Clearly, Enrile was a public figure. Hence, he had no right to pre-
vent publication of the story of his participation in the event. But the
Court put down some necessary caution:
The line of equilibrium in the specific context of the instant
case between the constitutional freedom of speech and of expres-
sion and the right of privacy, may be marked out in terms of a
requirement that the proposed motion picture must be fairly truth-
ful and historical in its presentation of events. There must, in other
words, be no knowing or reckless disregard of truth in depicting
the participation of private respondent in the EDSA Revolution.60a
There must, further, be no presentation of the private life of the
unwilling private respondent and certainly no revelation of inti-
mate or embarrassing personal facts.60s The proposed motion pic-
ture should not enter into what Mme. Justice Melencio-Herrera in
ktgunzad referred to as "matters of essentially private concern."6ft
To the extent that "The Four Day Revolution" limits itself in por-
traying the participation of private respondent in the EDSA Revo-
lution to those events which are directly and reasonably related to
the public facts of the EDSA Revolution, the intrusion into private
respondent's privacy cannot be regarded as unreasonable and ac-,
tionable. Such portrayal may be carried out even without a license
from private respondent.
7. Subsequent punishment: standards for restraint.
If prior restraint were all that the constitutional guarantee prohib-
ited and govemment could impose subsequent punishment without re-
straint, freedom of expression would be "a mockery and a delusion.',607
Hence, freedom of expression also means that there are limits to the
power of government to impose rules or regulations curtailing freedom
of speech and of the press.
The search for standards for governmental curtailment of speech
presupposes the premise that freedom of speech is not absolute. In the
'*Time,Inc. v. Hill,385 U.S. 374,17 L.Ed.2d 456 (1967); New york Times Co. v. Sut_
livan,376 u.s.254, l1 L. Ed.2d686 (1964); and cox Broadcasting corp. v. cohn,420 u.s.469,
43 L. Ed,. 2d, 328 (t9'1 5).
n5,lee Sidis v. F-R Publishirrg
Corp., ll3 fr. 2d 806 (2d Cir. l94O) cerr. dcnied lll U.S.
7l I, 85 L. F,d.462.
""'92 S('RA at 4tl().
i0r,\a1rrrl, ttolt' I l.
Sec.4 Sec.4 ART. III - BILL OF RIGHTS
oft-quoted expression of Justice Holmes, the constitutional guarantee
"obviously was not intended to give immunity for every possible use
of language."608 For testing the validity of laws which impinge upon
freedom of expression, various tests have been evolved. The evolution
of the standards for curtailment of speech took place mainly in cases
involving speech which incited to illegal action.
In the early stages of Philippine jurisprudence, the accepted rule
was that speech may be curtailed or punished when it "creates a dan-
gerous tendency which the State has the right to prevent."6@ This stan-
dard has been labeled the "dangerous tendency" rule. All it requires, for
speech to be punishable, is that there be a rational connection between
the speech and the evil apprehended. In other words, under this rule, the
constitutionality of a statute curtailing speech is determined in the same
manner that the constitutionality of any statute is determined, namely,
by answering the question whether a statute is "reasonable."
In American jurisprudence, chiefly through the efforts of Justice
Holmes, the "dangerous tendency" rule yielded to the "clear and present
danger" test, a standard which serves to emphasize the importance of
speech to a free society without sacrificing other freedoms essential to
a democracy. In the celebrated case of Schenck v. United States,Justice
Holmes rejected the absolutist view of freedom of speech saying that
"the character of every act depends upon the circumstances in which
it is done. ... The most stringent protection of free speech would not
protect a man in falsely shouting fire in a theater and causing & p&nis-"6t0
At the same time, however, he made this oft-quoted formulation of the
"clear and present danger" rule: "The question in every case is whether
the words used are used in such circumstances and are of such a nature
as to create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent. It is a question of
proximity and degree."6rt As the Supreme Court was later on to explain,
in Dennis v. United States:612
Obviously, the words cannot mean that before the Govern-
ment may act, it must wait until the putsch is about to be executed,
'"'''l'r'ohwcrk v. Ljnitcd States,249 U.S. 204, 206 (1919)
""'l'coplc v. l)ctcz,4.5 l'hil.599 (1923).
',r,r.19 I I.S.,17. 5l ( t9t9).
,,ttltl.
.r't,ll lt ( .l().1.5o(,(l()51)
&
25O THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
the plans have been laid and the signal is awaited. If the Govern-
ment is aware that a group aiming at its overthrow is attempting to
indoctrinate its members and to commit them to a course whereby
they will strike when the leaders feel the circumstances permit, ac-
tion by the Government is required. The argument that there is no
need for Government to concern itself, for government is strong, it
possesses ample powers to put down a rebellion, it may defeat the
revolution with ease needs no answer. For that is not the question.
Certainly an attempt to overthrow the government by force, even
though doomed from the outset because of inadequate numbers
or power of the revolutionists, is a sufficient evil for Congress to
prevent. The damage which such attempts create both physically
and politically to a nation makes it impossible to measure the va-
lidity in terms of the probability of success, or the immediacy of a
successful attempt. ... We must therefore reject the contention that
success or probability of success is the criterion.
Citing Justice Learned Hand, the Supreme Court summarized the
rule thus: "In each case [courts] must ask whether the gravity of the
'evil', discounted by its improbability, justifies such invasion of free
speech as is necessary to avoid the danger."or:
Although, like the "dangerous tendency" rule, the "clear and pres-
ent danger" test evolved in the context of prosecutions for crimes in-
volving overthrow of the government, the test can be applied to other
substantive evils which the State has the right to prevent even if these
evils do not clearly undermine the safety of the Republic. However,
since the test is "a question of proximity and degree" and since not
all evils easily lend themselves to measurement in terms of proximity
and degree, the test cannot always be conveniently applied to all types
of encroachment on freedom of expression. As Professor Freund has
observed:
Even where it is appropriate, the clear and present danger
test is an oversimplified judgment unless it takes account also of a
number of other factors. The relative seriousness of the danger in
comparison with the value of the occasion for speech or political
activity; the availability of more moderate controls than those the
state has imposed; and perhaps the specific intent with which the
speech or activity is launched. No matter how rapidly we utter thc
6t\kl
Sec.4 Sec.4 ART. III _ BILL OF RIGHTS
phrase 'clear and present danger,'or how closely we hyphenate the
words, they are not a substitute for the weighing of values. They
tend to convey a delusion of certitude when what is most certain
is the complexity of the strands in the web of freedom which the
judge must disentangle.6ra
A case in point is Gonzales v. COMELEC.6T5 At issue in the case
was the validity of Republic Act No. 4880 which among other things
prohibited the too early nomination of political candidates and limited
the period for partisan political activity. The statute was designed to
prevent the debasement of the electoral process. When it was chal-
lenged as an infringement of freedom of speech and press, of assembly
and petition and of association, the main opinion written by Justice Fer-
nando, approached the case viathe clear and present danger test. In a
separate opinion, however, Justice Castro suggested that the clear and
present danger test, fashioned in the course of testing legislation limit-
ing speech expected to have deleterious consequences on public secu-
rity and order, was of doubtful applicability. He said that "where the
legislation under constitutional attack interferes with freedom of speech
and assembly in a more generalized way and where the effect of speech
and assembly in terms of the probability of realization of a specific
danger is not susceptible even of impressionistic calculation," what is
more suitable is what has been called the "balancing of interests" test.6r6
The basis for this test was stated by Chief Justice Vinson tn American
Communications Association v. Doudsu" thlus:.
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 un-
der the particular circumstances presented. ... We must, therefore,
undertake the 'delicate and difficult task. ... to weigh the circum-
stances and to appraise the substantiality of the reasons advanced
in support of the regulation of the free enjoyment of rights. ...6'8
6laFREuNo, T'ur: Supreue CouRr oF rHE IJwnto Snrts M (1961), cited in Gonzales v. COM-
t:.1.FlC.27 SCRA tt35, tl60 (1969), note 26.
61527 q(.RA 835 ( 1969).
or6ft/. ul ti9tl-9.
6rl.1.19 U.s. .ttil. 94 l.l il ()25, ()4.1 ( l()47
).
6r*/r/, ttl ()4 ()44
l, lil
 252 TI{E 1 987 CONSTITT]'TION Sec.4
OFTHE REPUBLIC OFTHE PHILIPPINES
Professor Kauper explained the theory fuither.6re
The theory of balance of interests represents a wholly prag-
matic approach to the problem of First Amendment freedom, in-
deed, to the whole problem of constitutional interpretation. It rests
on the theory that it is the Court's function in the case before it
when it finds public interests served by legislation on the one hand,
and First Amendment freedoms affected by it on the other, to bal-
ance the one against the other and to 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 a charac-
ter 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 First Amendment, and that they may be
abridged to some extent to serve appropriate and important public
interests.
These then are the tests for determining the validity of curtailment
of speech. The "dangerous tendency" rule found favor in early philip-
pine jurisprudence.620 More recent decisions have preferred the "clear
and present danger" rule.62r In addition, the "balancing of interests* test
has also been given clear recognition.
It
should also be noted that these tests apply not only to freedom
of speech and press, but also to the other preferred freedoms: freedom
of association, right of assembly and petition, freedom of religion.622
8. The constitutional guarantee in action: seditious speech.
The line of cases involving seditious utterances begins with peo-
ple v. Pere7,6'3 typically a decision of a nervous colonial government
disturbed by the unrest of the natives. The case arose at the time when
6reKeuren, Crvn
Lraznnx tuo rae CousrrrunoN ll3 (1966),cited in 27 SCRA at 899.
6'?0E.g.,
People v.Perez,45 Phil. 599 (1923); People v. Evangelista, 57 phil. 354 (1932)l
People v. Nabong,57 Phil.455 (1932); People v. Feleo,58 Phil. 573 (1933); Espuelas v. people,
90 Phil.524 (1951).
62'E.g., Primicias v. Fugoso,
80 Phil. 7l (1948); Cabansag v. Fernandez, 102 phil. 1.52
(1957); Gonzales v. COMELEC,27 SCRA 835 (1969); Imbong v. Ferrer, 35 SCRA 28 (1970);
Philippine Blooming Mills Employees v. Philippine Blooming Mills, 5 I SCRA I 89 ( I 973).
6'?2Philippine Blooming
Mills Employecs v. Philippine Blooming Mills, suprzr, norc 5l(:
Gonzales v. GoMELEC, supra,note 52; American tlihlc S<ricly v. ('iry ol Mlniln, lol lrhil. :ttt6
(l es7).
6'r4-5 l'hil. 599 ( 1923).
Sec.4 ART. III - BILL OF RIGHTS 253
there was great dissatisfaction with the administration of Governor
General Wood. In a political discussion that lacked the calm detach-
ment found in a graduate seminar, citizen Perez had made this remark:
"And the Filipinos, like myself must use bolos for cutting off Wood's
head for having recommended a bad thing for the Philippines."624 Pros-
ecuted for seditious speech, Perez was convicted. "Criticism," Justice
Malcolm said for the Court,625 "no matter how severe, on the Execu-
tive, the Legislature, and the Judiciary, is within the range of liberty of
speech, unless the intention and effect be seditious." Such, apparently,
in the judgment of the Court were the intention and effect of Perez'
remarks. Malcolm found in them "a seditious tendency which could
easily produce disaffection among the people and a state of feeling in-
compatible with a disposition to remain loyal to the Government and
obedient to the laws."626 That the character of the threatened extermi-
nation of Wood was "so excessive and outrageous" as to suggest that
the "superlative vilification" had "overleapt itself and become uncon-
sciously humorous"u'?? did not appeal to the sense of humor of the Court.
"While our sense of humor is not entirely blunted," Malcolm wrote,628
"we nevertheless entertain the conviction that the courts should be the
first to stamp out the embers of insurrection. The fugitive flame of dis-
loyalty,lighted by an irresponsible individual, must be dealt with firmly
before it endangers the general peace."
The language of Perez was decidedly less inflammatory than that
of Feleo in a later case. People v. Feleo62e arose out of Communist dis-
turbances of the early thirties. Speaking before a group of about a hun-
dred or so, among whom were soldiers of the Philippine Constabplary,
Feleo had made a special appeal to the soldiers in the crowd urging
them to imitate the French soldiers, who shot their chiefs, to desert their
ranks, and to join the Communists against the Americans, to get rid of
their leaders and to take possession of the haciendas of the rich land-
lords. Prosecuted for seditious utterances, Feleo was convicted. Bor-
62alcl. at 6O5.
n \ltl.
67o
ld.
6r7J.'hll'{ words in llulzuc v. I\tt'rto Rico,2ttll LJ.S. 29tl (1922\
n1r45 Phil. lt ({)7.
nre57 l'hil.451 ( l() 12).
254 THE 1987 CONSTITUTION Sec.4 Sec.4 ART. III - BILL OF RIGHTS 255
OF THE REPUBLIC OF THE PHILIPPINES

rowing a line from Gitlow v. New York,uto Justice Street said'", "Words
of this kind are properly considered seditious because they tend to incite
the people to take up anns against the constituted authorities and to rise
against the established government." Thus, the doctrine in Perez was
given an American garb
- the "dangerous tendency ruIe."
The Feleo ruling was followed by several more of the same
the most significant of which was People v. Evangelista.$ In
tenor,632
a public meeting, Evangelista had read the constitution and by-laws
of the Communist Party, had explained the advantages of the Russian
form of government, and had distributed pamphlets urging the seizure
of the government. Prosecuted for inciting to sedition, Evangelista of-
fered the defense that the meeting was unaccompanied by public distur-
bance. The Court ruled such defense untenable "in view of the doctrine
laid down in the case of People r. Pere7."ate "It is not necessary," the
Court continued,u" "that there should be any disturbance or breach of
the peace in order that the act may come under the sanction of the Pe-
nal Code. It is sufficient that it incites uprising or produces a feeling
incompatible with the permanency of the government. Nor can the acts
charged be considered as mere exposition in abstracto, coming rVithin
the exemption set outin Gitlow v. People of New York."
A later case, decided under the 1935 Constitution, did not show
any advance in the sense of humor of the Supreme Court of the Repub-
lic. Espuelas v. Peopleil6 was also a prosecution for inciting to sedition.
Espuelas had his picture taken making it appear that he was hanging
lifeless at the end of a piece of rope suspended from the limb of a tree.
He was, in fact, standing on a barrel. He then had this picture published
in several papers of general circulation accompanied by a letter whose
translation follows:637
Dearest wife and children, bury me five meters deep. Over
my grave don't plant a cross or put floral wreaths, for I don't need
them.
Please don't bury me in a lonely place. Bury me in the Cath-
olic cemetery. Although I have committed suicide,I still have the
right to be buried among Christians.
But don't pray for me. Don't remember me, and don't feel
sorry. Wipe me out of your lives.
My dear wife, if someone asks you why I committed suicide,
tell them I did it because I was not pleased with the administration
of (President) Roxas. Tell the whole world about this.
And if they ask why I did not like the administration of
Roxas, point out to them the situation in Central Luzon, the Huk-
balahaps. Tell them about Julio Guillen and the banditry of Leyte.
Dear wife, write to President Truman and Churchill. Tell
them that here in the Philippines our government is infested with
many Hitlers and Mussolinis.
Teach our children to burn pictures of Roxas if and when
they come across one.
I committed suicide because I am ashamed of our govern-
ment under Roxas. I cannot hold high my brows to the world with
this dirty govemment.
I committed suicide because I have no power to put under
Juez de Cuchillo all the Roxas people now in power. So, I sacri- '
ficed my own self.

Espuelas was convicted of seditious libel. The Court solemnly

630268
U.S. 652 (1925). Said.638
63t57 Phll. at 454,
632People v. Nabong,57 Phil.453 (1932) which also
followed Girlow v. New York,268lJ.S. The letter is a scurrilous libel against the Government. It
652 (1925). In the third, People v. Feleo,58 Phil.573, 574 (1933), the speech in substance said: calls our government one of crooks and dishonest persons (dirty)
"My brothers: Nobody violates the law but he who makes it; and it is necessary that we should all infested with Nazis and Fascists, i.e., dictators.
unite to overthrow that power. A Soviet government is necessary here; Russia is the first country
where the laborers havd had their emancipation from oppression, imperialism and capitalism. It is
necessary that all property should be delivered to t}re govemment for its administration, and fronr "\'t Id. rt 526.
this we will see the redemption of the Filipino people." t'\8lil. nr 52J, citiag O.S. v. l)orr, 2 I'hil. 332 ( 1903) and l9 Am. Law REP. 1511. The Court
6x57 Phil. 354 (1932). coutinuctl ir1. at 5lO: "'l'lr: csscncc ol scditious libcl may be said to be its immediate tendency to
63ald.
at 363. stir up gcncrnl tlisconlcnt to thc l)ilch ol illcgal c()urses; that is to say induce people to resort to
illcgul rtrr:tlxxls ollttrr tlrirn tlursc provirk:tl hy tlrc (irnstitulirxt, in onlcr to repress tho cvils which
nr"tX)
l'hil 5?.1 ( l95l). l)r('ss ulx)n llrcir trrirxls "

256 THE 198TCONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
And the communication reveals a tendency to produce dis-
satisfaction or a feeling incompatible with the disposition to re-
main loyal to the government.
Writings which tend to overthrow or undermine the security
of the government or to weaken the confidence of the people in the
government are against the public peace, and are criminal not only
because they tend to incite to a breach of the peace but because
they are conducive to the destruction of the very government itself.
Regarded as seditious libels they were the subject of criminal pro-
ceedings since early times in England.
The Espuelas decision was not unanimous and the dissent of
Justice Tuason, concurred in by Chief Justice Paras and Justice Feria,
discussed the ancient background of the penal provision on seditious
libel.63e
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 ... but no one would accept
that doctrine now. Unless the words used directly tend to foment
riot or rebellion or otherwise disturb the peace and tranquility of
the Kingdom, the utmost latitude is allowed in the discussion of all
public affairs. ... Judge Cooley says: "The English common law
rule which made libels on the constitution or the government in-
dictable, as it was administered by the courts, seem to us unsuited
to the condition and circumstances of the people of America, and
therefore never to have been adopted in the several states."
In a decision of 1922, Justice Malcolm had spoken in a similar
vein:640 "No longer is there a Minister of the Crown or a person in au-
thority of such exalted position that the citizen must speak of him only
with bated breath." And again:(' "The crime of lese majeste disappeared
in the Philippines with the ratification of the Treaty of Paris." Finally,
Tuason asked what possible reaction the publication of the picture and
the letter could have evoked. He answered:il2
63eld.at 533-4, quoting English and American authorities.
ffiPeople v. Perfecto,43 Phil. 887,900 (1922).
@tId.
at902.
@290
Phil. at 536. Tuason also quoted rrl., Holmcs'rule that lirr spocch to hrr prolrihitctl it
musl he in sttch circunrst:tttccs antl ol "sttch il nirlurc ils lo crcalc clt:nr rurtl prcscnt (llutgcr lllltt lltcy
wrll lrritrg;rlrorrl lln.srrhsllrrrtitrl cvils tlr:rt (\rrrlirt.ss lrls;r r.i;ilrl l() l)t('v('n1."
Sec.4 ART. III - BILL OF RIGHTS
Sec.4
. . . The general reaction, it is fairly safe to say, was one of
regret for a man of eccentric and unbalanced mind and ridicule and
curiosity for a grotesque stunt. The witnesses for the government
themselves, some of whom were Constabulary officers stationed
at Tagbilaran, stated that upon reading the article and seeing the
author's picture they just laughed it off, "thinking that this fellow
must be crazy." That was akin to our own reaction, and there is
little or no doubt that that exemplified the general effect upon the
minds of other readers of the article. ...
There has been no significant and clarifying decision on seditious
speech since Espuelas.The case of Ei,pirituv. Lim,&3 however, while it
involves inciting to sedition, offers only vague hint about the thinking
of the current Supreme Court on the subject. Espiritu, in a gathering of
drivers and sympathizers at the corner of Valencia Street and Magsay-
say Boulevard, said, among others: "Bukas tuloy ang welga natin ...
hanggang sa magkngulo na." The facts, therefore, were very similar to
Perez.Later, at a conference at the National Press Club he called for a
nationwide strike. He was arrested, without warant, for inciting to sedi-
tion. The decision on the habeas corpus petition, however, touched only
on the validity of the arrest without warrant and said that, while people
may differ as to the criminal character of the speech, which at any rate
will be decided in court, for purposes of the arrest, not for conviction,
there was sufficient ground for the officer to believe that Espiritu was in
the act of committing a crime.
9. Id.; Contempt of court by publication.
The freedom of the press to express in good faith legal opinions
on legal questions pending before the Courts is guaranteed by the Con-
stitution. "So long as it is done in good faith," the Court said in E/
Hogar Filipino v. Prautch, "newspapers have the legal right to have
and express opinions on legal questions. To deny them that right would
infringe upon the freedom of the press."e4 But legal opinions are fre-
quently expressed with less than Olympian detachment and courts have
frequently moved in to defend themselves by the use of contempt pow-
"1'202 li('Rn ( l99l). Sirrcc lhc anesl itscll'ttxrk Pllcc some time after the utterance
252
ol lhc wirrrirrrllcss iulcsl was quostioncd in thc tlisscnting opinions.
was rrrltlc, thc valitlity
n{'4()I'lril. I7I,I76(|().1(r). Ilu'il[li(l(:w:rs(lcs(ribctl irstottlainingsonrccxprcssittn"morc
lirt'iblc llrrrrr t'lcgrrrrl."
258 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
ers. The history of this aspect of the contempt powers of courts is not
uninteresting.
The first major contempt case was In re Kelly,uos a Supreme Court
decision based on the now discredited case of U..S. v. Toledo Newspaper
Co.*u Amzi B. Kelly, an American, had been previously found guilty of
contempt. He was granted a rehearing and, pending final decision, he
caused a letter to be published in "The Independent," a Manila paper, in
which he severely castigated the Supreme Court. Characterizing the ini-
tial decision as "atrocious," "arbitrary and arrogant and knowingly and
maliciously perpetrated ... for the purpose of terrorizing the people and
intimidating the press," he accused members of the Court of "arrogantly
misusing imaginary judicial powers (to punish for contempt)," of being
made of mud, and of "cowardly shielding themselves behind contempt
proceedings." Mr. Justice Johnson, writing for a unanimous court laid
down the following rule: "Any publication pending a suit, reflecting
upon the court, the jury, the parties, the officers of the court, the coun-
sel, etc., with reference to the suit, or tending to influence the decision
of the controversy, is contempt of court and is punishable." The Court
found that Kelly's letter constituted contempt because it manifested an
intentional attempt to bring the Supreme Court and its members "into
contempt and ridicule and to lower their dignity, standing and prestige
... and to hinder and delay the due administration of justice." The publi-
cation tended "directly to affect and influence the action of the Supreme
Court."*t
The decision, however, for all its crippling implications, was not a
foreclosure on the right to citicizejudicial action. Two years later, Mr.
Justice Malcolm, the man who more than any single American contrib-
uted most to early constitutional development in the Philippines, was
to assert that "The guarantees of a free speech and a free press include
the right to criticize judicial conduct." Said he: "The interest of society
and the maintenance of good government demand a full discussion of
public affairs. Complete liberty to comment on the conduct of public
men is a scalpel in the case of free speech. The sharp incision of its
s535 Phil. 944 (1916).
64920 Fed. 458 (1915), upheld in Toledo Newspaper
Co. v. U.S., 247 U.S. 454 (
overruled in Nye v. United States, 3 | 3 tJ.S. 33 ( l94l).
()51'2.
'{735 Phil. rrl 947 11.
Sec- 4 Sec.4 ART. III - BILL OF RIGHTS
probe relieves the abscesses of officialdom. ... A public officer must
not be too thin skinned with reference to comment upon his official
acts."e' Noteworthy, however, in this decision was the fact that the of-
ficial "contemned" was not a member of the Supreme Court but a judge
of an inferior court.
Three subsequent contempt decisions penned by Mr. Justice Mal-
colm still loom large as landmarks in the Philippine judicial scene. The
first,In Re Lozano and Quevedo,se arose out of an article published in
"El Pueblo", an Iloilo newspaper, purporting to relate the proceedings
in an investigation of a district judge. The investigation had been held
behind closed doors in compliance with a resolution of the Supreme
Court making such investigations secret and confidential. The editor of
the paper and the author of the article were cited for contempt. Malcolm
approached the case conscious of its novelty and with the realization
that English jurisprudence supported the Supreme Court resolution, that
American state courts were divided on the subject, and that there was
no authoritative Federal Supreme Court decision he could rely upon.
"What is best for the maintenance of the judiciary in the Philippines,"
he said, "should be the criterion. Here, in contrast to other jurisdictions,
we need not be overly sensitive because of the sting of newspaper ar-
ticles, for there are no juries to be kept free from outside influence. Here
also we are not restrained by regulatory law. The only law, and that
judge made, which is at all applicable to the situation, is the resolution
adopted by this Court."65o Whereupon, the Court proceeded to declare
Lozano and Quevedo in contempt!
The reasoning behind this decision, which is still law, is qasily
summarized. The Supreme Court resolution requiring secrecy was in-
tended as a protection "against the practice of litigants and others mak-
ing vindictive and malicious charges against lawyers and Judges of
First Instance, which are ruinous to the reputations of the respondent
lawyers and judges." From that, it was only one step to saying that "Re-
spect for the Judiciary cannot be had if persons are privileged to scorn
a resolution of the court adopted for good purposes ..." And disrespect,
in the form of disregard of this resolution, prevents the Court from pro-
esU.S. v. Bustos, 37 Phil. 731, 740-l l9l8)
l9l7) and (
j
i '{'54 l'hil. 1t0l ( 19,10).
""Url. ul ll07.
 THE 1987 CONSTITUTION Sec.4
OFTHE REPUBLIC OFTHE PHILIPPINES
ceeding "with the disposition of its business in an orderly manner free
from outside interference obstructive of its constitutional functions.'%5'
The rule as here applied, by any other name, still smells "prior
restraint." There are no juries to be kept free from outside influence,
the Court said: yet there are lawyers to be shielded and judges to be
respected. Ordinary libel laws are not deemed sufficient for these. And
Malcolm was not only to reiterate this rule in In Re Abistado6s2 but he
was also to give it a novel twist in In Re Torres.6s3
Torres was the editor of "El Debate," a Manila paper which ran
an article anticipatory of a Supreme Court decision. The article claimed
knowledge of the actual decision already made, purported to name the
writer of the decision, and even pointed out the probable distribution of
the votes among the justices. The Court declared Torres in contempt.
Mr. Justice Malcolm, again writing for a unanimous court, said:6!
... The proceedings of this court must remain confidential
until decisions or orders have been properly promulgated. The rea-
son for this is so obvious that it hardly needs explanation. In a
civil case, for example, prior knowledge of the result would permit
parties to compromise cases to the detriment of parties not so well
informed. In criminal cases, for example, advance advice regard-
ing the outcome would permit the accused to flee the jurisdiction
of the court. The court must therefore insist on being permitted to
proceed to the disposition ofits business in an orderly manner, free
from outside interference obstructive of its functions and tending
to embarrass the administration of justice.
A refreshing change from the stringent tone ofthe above decisions
was the first contempt case decided under the 1935 Constitution. Jus-
tice Laurel, writing for the Court in People v. Alarcon, said'ut "It must
however clearly appear that such publications do impede, interfere with
and embarrass the administration ofjustice before the author of the pub-
lications should be held for contempt." The impact of this statement,
65rId. at 805, 807-8.
6'57 Phil.668 (1932).
65355 Phil. 799 (193t).
6541d.
at 800. Thus the stage was sct lbr an embarrassing interlude in which thc court would
lirtditself sevcntrrclryorrslator.^Slr,/nReSuhirkr,ttl I)hil.5l7(l94tl\,irrliu.
()
"11(r() l'ltil. 2()5. 27 I ( I l()).
ART. III _ BILL OF RIGHTS 261
however, is lost in the fact that the publication in question was a com-
ment on a case which technically was no longer pending.6'6 (Here again
the object of criticism was not the Supreme Court but an inferior court.)
We only add that Mr. Justice Moran's dissent advocating the application
of the "dangerous tendency" rule even to cases no longer pending sym-
bolized the dying gasp of that extreme view. Moran said that while the
opposite rule may find justification in the United States, "considering
the American temper and psychology and the stability of its political
institutions, it is doubtful whether here a similar toleration of gross mis-
use of liberty of the press would, under our circumstances, result in no
untoward consequences to our structure of democracy yet in the process
of healthful development and growth."657 This growing democracy was
in fact to meet its supreme test in a war which occasioned our next case
of contempt by publication.
To expedite the prosecution of the numerous treason cases which
arose out of the war against Japan, a People's Court with special juris-
diction over the crime of treason was established. A resolution of the
fifth division of this court denying bail to an accused was reversed by
the Supreme Court. Three days after the reversal, Judge Quirino of the
fifth division openly criticized the action of the Supreme Court before
a group of newspapennen. Calling the decision the "biggest blunder"
and claiming that it "robbed" the People's Court of its jurisdiction, he
accused the Supreme Court of lacking "intellectual leadership" and of
offering merely "sentimental leadership." He characterized the deci
sion as the result of intellectual dishonesty and of quantitative and not
qualitative voting.658 His remarks were published in the local dailies at
a time when, technically, the case was still pending before the Supreme
Q6uIt.ose
Although the Court said, in declaring Quirino in contempt, that
the latter's remarks merely "tended to embarrass this Court," it seems
656The alleged contemptuous utterance was made against a judge of a Court of First In-
stance after he had lost.jurisdiction over the case by the perfection of the appeal to the Court of
Appeals.
"'r(r9 I'hil. at 279.
"'8.h /ir, Quirino, 76 I'hil. 631 2 (1946).
n'''l'hc tusc was considcrctl strll pcntling hcctuse the C-ourt had nol yet written the extended
opirriorr which it irnnorrnt'ul wtrrkl lx. givtrn rrntl lhc cusc wus still opcn to n molion lirr rcconsid-
crrtl iott . /r/. rtl (r.l'.1.
262 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
that the court meant that they actually did emba:rass the Court. The
Court said:ffi
To be specific: At the time of adopting the resolution, the
majority members made up their minds to announce ... that, as a
general rule, in cases of abuse of discretion in the matter of bail,
our judgment should be to return the case to the People's Court
with a direction for the granting of bail; but in this particular case,
in view of the long process which the petitioner had to undergo,
the majority thought it conformable to equity and justice that
she should be bailed immediately. After the criticism had been
launched, it became a bit embarrassing for said majority members
to expound that view in the full-dress opinion, because the public
might suspect they had receded somewhat from this stand, falsely
represented as "robbing" the People's Court of its power to grant
bail. Again, the minority members proposed to question our au-
thority to grant bail. After Judge Quirino, without waiting for their
dissent, had publicly raised the same doubt, said minority felt un-
easy to appear as taking the cue from him. And so of other phases
of the issue.
One may well wonder whether the judicial embarrassmenl and
uneasiness generated by Judge Quirino's remarks were so substantive
an evil as to wzurant curtailment of a cherished freedom.
The next case to reach the Supreme Court was a repetition of the
Torres incident, but with a comico-tragic twist. Pending before the Su-
preme Court was the historic case of Krivenko v. Register of Deeds.uu'
The question at issue was whether aliens could, under the Constitution,
validly acquire residential lands. The case was with the Supreme Court
on appeal by Krivenko. When the Secretary of Justice issued a circular
amending a previous one, which Krivenko had originally challenged,
and directing Registrars of Deeds to accept registration of alien-ac-
quired real estate, Krivenko asked to withdraw his appeal. At this point,
Subido, editor of the "Manila Post," on information received from an
official of the Supreme Court, published an article saying that the Su-
preme Court had already voted 8-3 against the right of aliens to acquire
residential lands. The article further said'662
ffiId.at633-4.
6179Phil.46l (1947).
62/n Ra Subido,8l Phil.5l7 (1941t)
Sec.4 Sec.4 ART. III - BILL OF RIGHTS 263
My informant told me that the Court held three sessions to
deliberate on this petition to withdraw the appeal. These sessions,
he said, were featured [sic] by tumultuous and violent discussions
among the justices. He also told me that my series of editorials at-
tacking the unconstitutionality of Justice Secretary Ozaeta's order
helped in a big way to make the justices decide against the with-
drawal.
This official pointed out that the position of the petitioner
was strong because the office of the solicitor general, which rep-
resented the government in the case, agreed to the withdrawal.
Had the withdrawal been allowed, my informant indicated, the Su-
preme Court would have culpably abdicated its important function
as guardian or protector of the Philippine Constitution.
It turned out that Subido's informant was one of the Justices of the
Supreme Court. He had "leaked out" the information because he was
disturbed by the delay in the promulgation of the decision.
On the strength of the Torres ruling, Subido was declared in
contempt. The Court said that although the information had been fur-
nished by a member of the Court, it nonetheless was unauthorized and
therefore constituted contempt "por entorpecer, obstruir o embarazar
la administracion de justicia." That the article may have hastened the
promulgation of the decision and thus forestalled certain evils was not
recognized as a valid defense. Nor did the fact that the source of the
information was a member of the Court excuse the respondent. His re-
sponsibility was considered distinct from that of the Justice concerned.
Newspapermen, the Court said, should restrain the desire to satisfy the
public's yen for news "cuando van de por medio la vida y seguriddd de
las institucione t."663
One would wish that the perfervid utterances made in the name of
an outraged dignity and threatened extermination of democratic insti-
tutions were but lawyer's rhetorical flourishes, florid but painless; but
one who has read up to this point will easily see that the Court seriously
sces the problcm as a matter of life and death: "van de por medio la
vidu y seguridud de lus instituciones." The cases of /n Re Parazou* and
-/.
'''"/r/. al 52.1 I hc ( irurt lirllhcr ultlcd, at 521i, that since the Philippine judiciary had been
Irlrt'rirl to lltt'ptt'ss. llrt'lrrllt't'slrottkl rt'tr;xxirlc wilh rcspcct.
'nil{,t l)lrrl. I l{} ( lt),llt)
264 THE 1987 CONSTITUTION Sec.4
OF THE REPUBLIC OF THE PHILIPPINES
In Re Sotto,uu' parts of the series of vindications of the dignity of the
Supreme Court, may even give the impression that the final nails have
been driven into the coffin of critics of such an august body.
Angel Parazo,a reporter for the "Star Reporter," had published an
article alleging that the Bar Examination questions for 1948 had leaked
out. The examinations were conducted under direct supervision of the
Supreme Court in the exercise of a constitutional duty.6tu The Court,
therefore, ordered Parazo to reveal the source of his information. Para-
zo refused; he was declared in contempt. The Court said: "... we have
the inherent power of courts in general, specially of the Supreme Court
as representative of the Judicial Department, to proper and adequate
measures to preserve their integrity, and render possible and facilitate
the exercise of their functions, including, as in the present case, the
investigation of charges of error, abuse or misconduct of their officials
and subordinates, including lawyers, who are officers of the Couft."667
While the Supreme Court was reconsidering this decision, Sena-
tor Vicente Sotto published an article in the "Manila Times" which read
partly as follows:6u'
I regret to say that our High Tribunal ... is once more putting
in evidence the incompetence or n€Ilrow mindedness of the major-
ity of its members. In the wake of so many blunders and injustices
deliberately committed during these last years, I believe that the
only remedy to put an end to so much evil is to change the mem-
bers [sicl of the Supreme Court. To this effect I announce that one
of the first measures, which I will introduce in the coming congres-
sional sessions, will have as its object the complete reorganization
of the Supreme Court. As it is now constituted, the Supreme Court
of today constitutes a constant peril to liberty and democracy. ...
651d. at
595.
ffiArticle VII, Section l3 (1935).
ffiIn ReParazo,82Ph11.23O,244-5 (1948). Parazo's defense was that under scctiut I ol
Republic Act No. 53.newspapermen could be compelled to reveal the source ol'thcir ncws ottly
when revelation was demanded by the "interest ofthe State." Parazo claimed thal "inlcrcsl ()l lltt
State" meant "security of the State." The Court did not accept this def'ense. Subscqucnl lo :ttttl lx'
cause ofthis decision, Congress, by Republic Acl 147'l, amended the law to rcad "sccttrily ol lltc
State." The question may therefore be asked whether such amendmcnt can allcct wlritt lltt'trrttl
claims to be its "inherent power."
68/n Ra Sotto. tl2 Phil. 595,597 ( 1949).
ART. III - BIIIOFRIGHTS
Sotto went the way of Parazo. The Court said that "criticism or
Comment On the cOrTeCtneSS Or Wrongness, SOUndneSS Or UnSOundneSS
of the decision of the Court in a pending case made in good faith may be
tolerated" and may even "enlighten the Court and contribute to the cor-
rection of an error." But 'oto intimidate the members of this Court with
the presentation of a bill in the next Congress" and to falsely charge
,'that this Court has been for the last yea$ committing deliberately
'so many blunders and injustices'" constitute contempt.u@ The Court
continued:670
As a member of the bar and an officer of the courts Atty. Vi-
cente Sotto, like any other, is in duty bound to uphold the dignity
and authority of this Court, to which he owes fidelity according to
the oath he has taken as such attorney, and not to promote distrust
in the administration of justice. Respect to [sic] the courts guaran-
tee the stability of other institutions, which without such guaranty
would be resting on a very shaky foundation.
The decision was unanimous.
One of the later cases in this series of contempt citations, Ca-
bansag v. Fernandez,ol' gave no sign of any relaxation of the rule. Ca-
bansag, chafing at the long delay of his case before a Court of First
Instance, wrote a letter asking for relief. The letter was addressed not to
a court but to the Presidential Claims and Actions Committee (PCAC)
an executive body. The lower court resented this recourse to an extra-
judicial forum and declared Cabansag in contempt. On appeal, after
discoursing on the existence of two "rules," citing among others the
pronouncements in the Bridges,6" Pennekamp,6?3 and Craig674 cases, ther
Supreme Court, apparently accepting the applicability of either rule,
,,The question then to be determined is: Has the letter of cabansag
said:
created a sufficient danger to a fair administration of justice? Did its
remittance to the PCAC create a danger sufficiently imminent to come
under the two rules mentioned &bove?"ers In acquitting Cabansag' the
66e1d.
at 600-1.
670Id. at 6O2.
671102 Phit. I52 (1957).
6T2Bridges v.
Calilirrnia, .l l4 tLS. 252 (1941'r.
"TlPennckamp v. l"krrirlrr.l2t{ LJ.S. ,}(r7 ( 1946)
""('ritig v. llarvcy..l.ll ll.li. 167 ( l()47).
''l'l()2 I'hil. nl 164.
 THE 1987 CONSTTLITION Sec.4
OF THE REPUBLIC OF THE PHILIPPINES
Supreme Court found that neither rule was satisfied. For expression to
constitute contempt "the danger must cause a serious imminent threat
to the administration of justice. Nor can we infer that such act has a
'dangerous tendency'to belittle the court or undermine the administra-
tion ofjustice, for the writer merely expressed his constitutional right to
petition the government for redress of a legitimate griovales."ruo
The decision, however, ends with a special note addressed to Ca-
bansag's lawyers: "But they should be warned, as we now do, that a
commission of a similar misstep in the future would render them ame-
nable to a more severe disciplinary action."67? Thus, a further question:
Do lawyers, by the very fact of their being lawyers, enjoy a lesser de-
gree of freedom to criticize courts? It is true that Article VIII, Section
5(5) gives the Supreme Court regulatory powers over "pleading, prac-
tice, and procedure in all courts, and the admission to the practice of
law"; but the same provision also adds that this power "shall not dimin-
ish, increase, or modify substantive rights." What right can be more
substantive for a lawyer than the right freely to speak out in the name
of justice, and what person is in a better position than lawyers to see
whether justice is being done by the courts? Yet the Cabansag case sug-
gests that precisely in this area the lawyer is less free than the ordinary
citizen.
From this brief survey of Philippine decision, the following pre-
liminary observations may be drawn: (1) only publication made during
the pendency of a case is punishable as contempt. A case is pending
not only prior to the promulgation of the decision but even after prom-
ulgation when the possibility of reconsideration6T8 by the same court6?e
still exists. (2) The only test conclusively established by Supreme Court
decisions is the "dangerous tendency" rule. However, in certain cases
involving contempt of inferior courts, the "clear and present danger"
rule has been given at least a nodding assent.6s0 (3) The danger guarded
against in punishing for contempt is either extraneous influence on the
court's act of decision making or disrespect and disobedience which
6761d.
at 165.
6711d.
at 168.
67876
Phil. at 362.
67This and the preceding note seem
to indicate a tendency to prolong the "pending" stntls
of a case precisely for the purpose of prosecution.
nrPeople v. Alaru*on,69 Phil. lt 271
, nnrl ('tbnnsrg v. l.crnuntlcz, 102 l,hil. 152 ( 195'/).
ART. III _ BILL OF RIG}TTS 267
can breed popular distrust in courts and court decisions. (4) In every
case reaching the Supreme Court where the questioned publication was
alleged to be contemptuous of the Supreme Court or its Justices, the
publication was declared contemptuous;68r but in every case where an
inferior court or its judge was the target, absolution followed. (5) In
the early cases, where the rule for contempt by publication was forged,
reliance was had on American state court cases and on Federal Supreme
Court cases decided at a time when the guarantees of the First Amend-
ment had not yet been recognized as extending to state actions via the
Fourteenth Amendment.*' (6) At least one decision suggests that the
freedom of lawyers in relation to courts is less than that of ordinary
citizens.
In Re Contempt Proceedings Against Alfonso Ponce Enrile683 may
be an indication that things have not changed. The contempt proceed-
ings against Alfonso Ponce Enrile and his law partners arose out of a
motion for reconsideration filed with the Supreme Court. The motion,
in part, used the following language:
One pitfall into which this Honorable Court has repeatedly
fallen whenever the question as to whether or not a particular sub-
ject matter is within the jurisdiction of the Court of Industrial Rela-
tions is the tendency of this Honorable Court to rely upon its own
pronouncement without due regard to the statutes which delineate
the jurisdiction of the industrial court. Quite often, it is overlooked
that no court, not even this Honorable Court, is empowered to ex-
pand or contract through its decision the scope of its jurisdictional
authority as conferred by law. This error is manifested by the de-
cisions of this Honorable Court citing earlier rulings but withcnrt
making any reference to and analysis of the pertinent statute gov-
erning the jurisdiction of the Court of Industrial Relations. This
manifestation appears in this Honorable Court's decision in the
instant case. As a result, the erors cornmitted in earlier cases deal-
ing with the jurisdiction of the industrial court are perpetuated in
subsequent cases involving the same issue. . .
nsrAnexceptiontothisis InReGomez,43Phil.376(1922).Butherethechargesmadeby
rcsgrndent were not made in relation to a pending case.
'{2Thc extension was made in Citlow v. New York, 268 U.S. 652 (1925). In Re Kelly,35
I'hil. 944, which is still lirlkrwed was decided in 1916.
6i'[,-229?9, June 26,l%t7. See also Rhcem of the Philippines v. Ferrcr, L-22979,June26'
l()6?; Suriglo Mincrul Rcscrvrtion lhunl v. (-'loribcl,l.-270'12, January 9, l9'7O:' In re Almacen'
l. 27634,lrchnurry lll, 1970.
 THE 1987 CONSTITT-ITION
OF THE REPUBLIC OF THE PHILIPPINES
After recalling to the respondents the duty of lawyers to maintain
the respect due to courts of justice and to judicial officers, the Court
made this observation:
We concede that a lawyer may think highly of his intellectu-
al endowment. That is his privilege. And, he may suffer frustration
at what he feels is others' lack of it. That is his misfortune. Some
such frame of mind, however, should not be allowed to harden into
the belief that he may attack a court's decision in words calculated
to jettison the time-honored aphorism that courts are the temples
of right. He should give due allowance to the fact that judges are
but men; and men are encompassed by error, fettered by fallibility.
After such solemn acknowledgment of the fallibility of the presid-
ing officers of the "temple of right," one would expect a magniloquent
conclusion approximating the tenor of an imperial decree found in the
Code of Justinian:68a
... tllf anyone who knows no restraint and is a stranger to
propriety, thinks he must attack our names with scurrilous abuse
and in his intemperance become a noisy berater of our era, we
desire that he be not subjected to punishment nor suffer any harsh
or severe treatment, since if what he does proceeds from irrespon-
sibility, it should be despised, if from inationality, it deserves pity,
and if from ill-will, it should be pardoned.
Indeed, the respondents were not made to suffer "harsh and severe
treatment"; but warning was given to the principal author of the motion
that a "repetition of this incident will be dealt with accordingly" and
a copy of the courl's warning was ordered attached to the attorney's
record.
The pattern, however, of a more lenient attitude towards "con-
temnors" of courts lower than the Supreme Court continues. In Austria
v. Masaquel,u" ths judge had asked the lawyer: "Do you doubt the in-
tegrity of the presiding Judge to decide the case fairly and impartially
because the lawyer of the other party was my former assistant? Do you
doubt? Just answer the question." LJnder such "encouragement," the
lawyer acknowledged his doubt. Whereupon the Judge declared him in
6EaQuoted in RnorN, Fnrraov or Spcrcn tuo Coyreupr
or. Counr. 36 lLL.
(t942).
n8'1.-22536. August
.11, 1967.
Sec.4 Sec.4 ART. III - BILL OF RIGHTS
contempt. The Supreme Court disagreed. ln Matulina v. Buslon,686 the
Supreme Court had said that "contempt of court presupposes a contu-
macious attitude, a flouting or arrogant belligerence, a defiance of the
court." In the present instance, the Court said that the lawyer "simply
expressed his sincere feeling under the circumstances."
Finally, one may contrast the tendency perpetuated in the Ponce
Enrile case with the absolute privilege that has been accorded to state-
ments made in the course of judicial proceedings when the object of the
statements is not the Court but private parties. The Court has repeatedly
ruled that:u"
... [s]tatements made in the course of judicial proceedings
are absolutely privileged that is, privileged regardless of de-
-
famatory tenor and of the presence of malice if the same are
-
relevant, pertinent or material to the cause in hand or subject of
the inquiry. And that, in view of this, the person who makes them
such as a judge,lawyer or witness does not thereby incur the
- -
risk of being found liable thereon in a criminal prosecution or an
action for the recovery of damages.
,
The reason for this privilege has been stated thus:68s
The privilege is not intended so much for the protection of
those engaged in the public service and in the enactment and ad-
ministration of law, as for the promotion of the public welfare, the
purpose being that members of the legislature, judges of courts,
jurors, lawyers, and witnesses may speak their minds freely and
exercise their respective functions without incurring the risk of a
criminal prosecution or an action for the recovery of damages.
&
From this, it should also be reasonable to conclude that the Court
should exercise greater tolerance for the rhetorical effusions of lawyers
such as those found in the Ponce Enrile case. But the jealousy with
which the Court guards its dignity persists even under the 1987 Consti-
d6L-14637, August 24, 1960.
6*?People v. Aquino, L-23908, October 29, 1966,citingU.S' v. Bustos,37 Phil.743 (1918);
'I'rprs v. Parefro, L-12-54-5, April 30, 1959; People v. Andres, L-14548. April 29, 1960; Sison v.
l)rrvirl,l.-ll26ll,Junuary2tl, l96l;T<rlentinov.Baylosis,L-l5142,Ianuary 3l,l96l;Gonzalesv.
Alvurcs, l,-l9O?2,August 14, 1964. Reiterutetl inl)elesv.Aragona,Jr.,Adm.Casein598,March
1,.R. 599. 6 l9-20
28, t969.
n**llAn. hr.l7l 24,qutlrrlirtl'coplcv.Aqtrino, l,'23()Oll'()clohcr2(), 1966
 THE 1987 CONSTITUTION Sec.4
OF THE REPUBLIC OF THE PHILIPPINES
tution. Judicial tolerance of the court was put to the test soon after the
ratification of the new constitution. Former Tanodbayan Raul Gonza-
les, soon after losing a case in the Supreme Court, openly accused the
court of deliberately rendering an erroneous judgment in retaliation for
his claim that the justices should not claim immunity from investiga-
tion by government prosecutors, of pressuring him to render decisions
favorable to colleagues and friends, and for dismissing cases without
rhyme or reason.68e The charges were serious enough to occasion the
filing of a complaint for the impeachment of thirteen out of the fourteen
justices. Citing an exhaustive list of cases, the Court found Gonzalez
"guilty both of contempt of court in facie curiae and of gross miscon-
duct as an officer of the court and member of the Bar" and was punished
with indefinite suspension from the practice of law.6m When on recon-
sideration he contended that the application of the "clear and present
danger rule" should absolve him, the Court replied: .,The ,clear and
present danger' doctrine ... is not a magic incantation which dissolves
all problems and dispenses with analysis and judgment in the testing
of the legitimacy of claims to free speech, and which compels a court
to exonerate a defendant the moment the doctrine is invoked, absent
proof of impending apocalypse. ... It is not [moreover] the only test
which has been recognized and applied by the courts." The utterances
of Gonzales were deemed to merit proscription either under the "clear
and present danger" test or under the "balancing of interests', test. The
Court said: "What is here at stake is the authority of the Supreme Court
to confront and prevent a 'substantive evil' consisting not only of the
obstruction of a free and fair hearing of a particular case but also the
avoidance of the broader evil of the degradation of the judicial system
of a country and the destruction of the standards of professional conduct
required from members of the bar and officers 6f 6fus g6g1s."ol
The next to test the patience of the Supreme Court was the lawyer-
journalist Emil Jurado. In his newspaper column, Jurado was relentless
in his diatribes against justices, both named and unnamed. He too was
found guilty of contempt but received nothing more than a token fine of
one thousand pesos, hardly an amount to deter obstinate critics.utr
6s2aldivar v. Gonzalez,l66 SCRA
316, 335-337 ( 1988).
6xld. at 359.
6e'
170 SCRA I , 8-9 ( I 989). In I 995. Conzales was elected to the Housc ol'Rcproscntstivcs.
6e2lnreJurado,AM93-2-037s(',April 6, 1995; scrulsolal?eAtry. l,conrrtl l)cVelr.AM
P-O l - I 524, July 29, 2lX.l2.
Sec.4 ART. III - BILL OF RIGHTS 271
In the 2O07 case against newsman Jake Macasaet, the Court ex-
patiated on its finding of libel against the Court' "Unfortunately, the
published articles of respondent Macasaet ... has crossed the line, as
his are baseless scurrilous attacks which demonstrate nothing but an
abuse of press freedom. They leave no redeeming value in furtherance
of freedom of the press. They do nothing but damage the integrity of
the High Court, undermine the faith and confidence of the people in the
judiciary, and threaten the doctrine of judicial independence.
veteran journalist of many years and a president of a group
"A
of respectable media practitioners, respondent Macasaet has brilliantly
sewn an incredible tale, adorned it with some facts to make it lifelike,
but impregnated it as well with insinuations and innuendoes, which,
when digested entirely by an unsuspecting soul, may make him throw
up with seethe. Thus, he published his highly speculative articles that
bribery occurred in the High Court, based on specious information,
without any regard for the injury such would cause to the reputation of
thejudiciary and the effective administration of justice. Nor did he give
any thought to the undue, irreparable damage such false accusations
and thinly veiled allusions would have on a member of the Coult."6e3
10. Purifying the electoral process.
Gonzales v. COMELEC,Uno tn" first of the series of cases involv-
ing statutes designed to maintain the purity and integrity of the elec-
toral process, set the tone for the Court's approach to subsequent cases
involving the same topic. Republic Act 4880, amending the Revised
Election Code, prohibited the too early nomination of candid4tes and
limited the period of election campaign and partisan political activity.
The statute was challenged as a violation of the rights of free speech,
free press, freedom of assembly and freedom of association.
The principal bone of contention was the following provision:uos
Sec. 50-B. Limitation upon the period of Election Campaign
or Partisan Political Activity. It is unlawful for any person
-
whether or not a voter or candidate, or for any group or association
of persons, whether or not a political party or political commit-
*1/n re Mncasrot, A.M. No. 07-09- I 3-SC' August 6, 2Ur7
q2? s('RA 8:15 ( 1969).
ilr/zl. nl 1175 (r.
 272 THE I98TCONSTITIJTION
OFTHE REPUBLIC OFTHE PHILIPPINES
tee, to engage in an election campaign or partisan political activity
except during the period of one hundred twenty days immediately
preceding an election involving a public office voted for at large
and ninety days immediately preceding an election for any other
elective public office.
The term "Candidate" refers to any person aspiring for or
seeking an elective public office, regardless of whether or not said
person has already filed his certificate of candidacy or has been
nominated by any political party as its candidate.
The term "Election Campaign" or "Partisan political Activ-
ity" refers to acts designed to have a candidate elected or not or
promote the candidacy of a person to a public office which shall
include:
a. Forming Organizations, Associations, Clubs, Commit-
tees or other groups of persons for the purpose of soliciting votes
and/or undertaking any campaign or propaganda for or against a
party or candidate;
b. Holding political conventions, caucuses, conferences,
meetings, rallies, parades, or other similar assemblies, for the pur-
poses of soliciting votes and/or undertaking any campaign or pro-
paganda for or against any candidate or party;
c. Making speeches, announcements or commentaries or
holding interviews for or against the election of any party or can-
didate for public office;
d. Publishing or distributing campaign literature or materi-
als;
e.
Directly or indirectly soliciting votes and/or undertak-
ing any campaign or propaganda for or against any candidate or
party;
f. Giving, soliciting, or receiving contributions for elec-
tion campaign purposes, either directly or indirectly: provided,
That simple expressions of opinion and thoughts concerning the
election shall not be considered as part of an election campaign:
Provided,furthea That nothing herein stated shall be understood to
prevent any person from expressing his views on current political
problems or issues, or from mentioning the names of the candi-
dates for public office whom he supports.
The law thus, by enumerating the acts included in thc terms ..clec-
tion campaign" or "partisan political aclivity," avoirlc<l thc consrilu-
Sec.4 Sec.4 ART. III _ BILL OF RIGTITS
tional objection of vagueness and at the same time enabled the Court to
take separate votes on the enumerated acts and measure them against
the substantive evil the prohibitions were intended to prevent. Justice
Sanchez described the evil in his separate opinion thus:6e6
State authority here manifests itself in legislation intended
as an answer to the strong public sentiment that politics is growing
into a way of life, that political campaigns are becoming longer
and more bitter. It is a result of legislative appraisal that protracted
election campaign is the root of undesirable conditions. Bitter ri-
valries precipitate violence and deaths. Huge expenditures offunds
give deserving but poor candidates slim chances of winning. They
constitute an inducement to graft to winning candidates already in
office in order to recoup campaign expenses. Handouts doled out
by and expected from candidates corrupt the electorate. Official
duties and affairs of state are neglected by incumbent officials de-
siring to run for re-election. The life and health of candidates and
their followers are endangered. People's energies are dissipated in
political bickerings and long drawn-out campaigns.6e?
Indeed, a drawn-out political campaign taxes the reservoir of
patience and undermines respect of the electorate for democratic
processes. Sustained and bilious political contests eat away even
the veneer of civility among candidates and their followers and
transplant brute force into the arena.
As already seen in the discussion of the tests for constitutional
validity, Justice Fernando approached the question through the clear
and present danger test whereas Justice Castro expressed preference
for the balancing of interests test. The statute was upheld by aiharply
divided vote. Paragraphs (a), (b), and (f) were upheld by a vote of 6 to
5.6e8 On paragraphs (c), (d), and (e), the five dissenters were joined by
two others for a total of seven, one vote short of the required two-thirds
t<l declare a statute unconstitutional.6ee
"$/z/. at 878.
n"71,)xplanatory Notes to Senate Bill 209 and House Bill 2475, which eventually became
Rcpublic Act 4tllt0.
'n'N'l'hcsc paragraphs hatl the approval of F'emando and Sanchez'
JJ. with Conception, CJ',
Rcycs, Jlll,, Mtkulintal, antl 'lbclrunkcc, JJ., concurring in the result, Dizon, Zaldivar, Castro, or
./../., ('npistnrno tttul llttrrctlo wt'rc lirt dccltrritlS lhcm uncollstitutional.
n"'l'ltc livt' wt'rc ioilt<rl by Stttt ltcr tttttl lit'rttttntkr' ./-/-
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Explaining his switch to the side of the dissenters in the vote on
paragraphs (c), (d), and (e), Fernando emphasized that ..the scope of
the curtailment to which freedom of expression may be subjected is
not foreclosed by the recognition of the existence of a clear and present
danger of a substantive evil, the debasement of the electoral process."zoo
For him, these paragraphs prohibited "what under the constitution can-
not by any law be abridged."?or For Justice Sanchez, also explaining
his switch, the vagueness of paragraphs (c), (d), and (e) ,,opens a wide
latitude to law enforcers. Arbitrary enforcement of the letter of the law
by an expansive definition of election campaign or partisan political
activity, should not be branded as improbable. For, political rivalries
spawn persecution. The law then becomes an unwilliflg to6l."zoz
It should also be noted that of those who chose to uphold the stat-
ute, four merely concurred in the result. As noted by Justice sanchez,
these Justices preferred to leave the statute well alone in order to allow
the courts of justice "to hammer out the contours of the statute case by
gn5s."zo: Doctrinally, therefore, Gonzales v.
c)MELEC left the validity
of all the prohibitions open to re-examination. Neither did the case of
Badoy, Jr. v. COMELEC,TM decided a yeff later, definitively settle the
matter.
At issue in Badoy was paragraph F of Section 12 of Republic Act
No.6132 which read:7os
The Commission on Elections shall endeavor to obtain free
space from newspapers, magazines and periodicals which shall be
known as COMELEC space, and shall allocate this space equally
and impartially among all candidates within the areas in which
the newspapers are circulated. Outside of said COMELEC space,
it shall be unlawful to print or publish, or cause to be printed or
published, any advertisement, paid comment or paid article in fur_
therance of or in opposition to the candidacy of any person for
delegate, or mentioning the name of any candidate and the fact of
his candidacy, unless all the names of all other candidates in the
?m27
SCRA at 869 (1969).
ntld. at 87O.
1ald. at886-7.
7o3ld.
at 887 .
7G35 SCRA
285 (1970).
1ttsld. at 289.
Sec.4 ART. III - BILL OF RIGHTS 275
district in which the candidate is running are also mentioned with
equal prominence.
Writing for the prevailing opinion, Justice Makasiar said'706
The evident purpose of this limitation, on the freedom of
the candidate or his sympathizer to spend his own money for his
candidacy alone and not for the furtherance of the candidacy of
his opponents, is to give the poor candidates a fighting chance in
the election. While it is true that the mere mention of the poor
opponent in the same advertisement or paid article does not by it-
self alone engender perfect equality of chances, at least the chance
of the poor candidate for victory is improved because thereby his
name will be exposed to the reading public in the same article as
that of the wealthy candidate.
Moreover, against the background of so many other avenues of
expression open to the candidate, Makasiar found the limitation on the
law "so narrow as not to effect the substance and vitality of his freedom
of expression itself.''o' Then he concluded:7.8
Hence, consistent with our opinion expressed in the cases of
Imbong vs. COMELEC and Gonzales vs' COMELEC, this slight
limitation of the freedom of expression of the individual, whether
candidate or not, as expressed in par. F of Sec. 12, is only one of
the many devices employed by the law to prevent a clear and pres-
ent danger of the perversion of prostitution of the electoral appara-
tus and of the denial of the equal protection of the laws'
The fears and apprehensions ofpetitioner concerning his lib-
erty of expression in these two cases, applying the less stringerit
balancing-of-interests criterion, are far outweighed by the all im-
portant substantive interests of the State to preserve the purity of
the ballot and to render more meaningful and real the guarantee of
the equal protection of the laws.
Makasiar's opinion was supported by a total of five Justices. Fer-
nando's dissenting opinion, also supported by a total of five Justices,
compared Makasiar's use of the clear and present danger rule and the
ttN'ltl. trl2'Al-91
t"t
ltl. ul 295.
t"r
ll . trl )r)l.
 THE 1987 CONSTITUTION Sec,4
OF THE REPUBLIC OF THE PHILIPPINES
balancing of interests test to Byron's Julia who "whispering 'I will ne'er
consent' consented."'on Quoting from his own opinion in Gonzales v.
COMELEC, which had initially let the camel's nose into the tent, Fer-
nando said that "even though the governmental purposes be legitimate
and substantial, they cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more narrowly
achieved."T'o Fernando, it will be recalled, in the dissenting portion of
his opinion in Gonzales had said that "the scope of curtailment to which
freedom of expression may be subjected is not foreclosed by the rec-
ognition of the existence of a clear and present danger of a substantive
svil."rtr what Fernando found unforgivable in the statute was the clear
impairment of "the right to determine what the advertisement, the paid
comment or the paid article should contain"Tr2 in a matter which dealt
with "the right to disseminate political information.,'7'3
It should be noted that both sides of the divided Court, both in
Gonzales and in Badoy, eloquently defended the preferred position of
the right of political expression. Moreover, the side which ultimately fa-
vored curtailment found solace in the argument that, after all, the limita-
tion sought to be imposed was "so narrow as not to affect the substance
and vitality of freedom of expression."z'
Such was the jurisprudential situation of allowable curtailment
of political campaign in 1970. The situation had not changed by the
time martial law was imposed in I972;E Nor did it change, at least
doctrinally, during martial rule. Thus when the regulation imposed on
allowable time in broadcast media was challenged as unconstitutional
curtailment of speech, the Court ruled: "[I]t is our considered opinion
and we so hold that if such be the effect of the coMELEc regulations,
it is because they must have been contemplated to precisely constitute
an exception to freedom-of-speech-and-press clause on account ofcon-
7wld. at 311.
ltold.at309,citing 27 SCRAat 871.
7rt27 SCRA at 289.
7'235 SCRA
at 309 (1970).
1131d.
at304.
1tald. at295.
7r5The case
of Mutuc v. C)MELEC,36 scRA 228 (1970), which unanimously declared
unconstitutional a GOMELEC ruling enjoining the use of taped jingles for campaign purposes is
not really significant for the doctrine on freedom of expression because the dccision, applying thc
principle of ejusdem generis, ltugely vestcd on the luck of statutory authorizttion for the uction
taken by the COMEI.FIC.
Sec.4 ART. III - BILL OF RIGHTS
siderations more paramount for the general welfare and public interest,
which exceptions after all would operate only during limited periods,
that is, during the duration of the election campaign filed in the charter
itself and/or by law."zto
With the restoration of democracy, political campaigns once again
heated up. In response to the new challenge and to give substance to
the desire to equalize political opportunities, the Electoral Reform Law
of 1987, Republic Act 6646, Section 11(b) made it unlawful "for any
newspaper, radio broadcasting or television station, other mass media,
or any person making use of the mass media to sell or to give free of
charge print space or air time for campaign or other political purposes
except to the Commission as provided under Sections 90 and 92 of Ba-
tas Pambansa Blg. 881." Batas Pambansa Blg. 881 had also command-
ed the Commission to procure print space and broadcast time to be al-
located impartially among the candidates. The validity of the measures
was challenged as offensive to freedom of expression. In upholding the
reasonableness of the provisions National Press Club v. Commission
on Elections,T'7 said that the objective of the prohibition was the equal-
izing, as far as practicable, of the situation of rich and poor candidates
by preventing the former from enjoying undue advantage offered by
huge campaign "war chests." Further, the command to the Commission
on Elections to make avenues for expression available both in print
and broadcast media was seen as a saving grace. The Court said that
the provision on freedom of expression must be read in conjunction
with the power given to the Commission on Elections to supervise and
regulate media during elections as well as with the various provisions
in the Constitution which place a high premium on equalizatiorl of op-
portunities. A significant observation was made:7'8
The technical effect of Article IX(CX4) of the Constitution
may be seen to be that no presumption of invalidity arise in re-
spect of exercises of supervisory or regulatory authority on the part
of the COMELEC for the purpose of securing equal opportunity
among candidates for political office, although such supervision
or regulation may result in some limitation of the rights of free
speech and free press. For supervision or regulation of the opera-
(lOMUl.BC, lo4 S('RA 17, 3tt ( l9tlI)
'rntlNlDO v.
frt2()7 s('RA l ( 1992).
rrr/r/. nl ()- lO. llul scc lhc vigttrrtts rlisrcttls.
 TT{E 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
tions of media enterprises is scarcely conceivable without such ac-
companying limitation. Thus, the applicable rule is the general,
time-honored one- that a statute is presumed to be constitutional
and that the party asserting its unconstitutionality must discharge
the burden ofclearly and convincingly proving that assertion.
Opposition to the election ad ban law was revived in Osmefia
v. COMELEC,TTe on the eve of the 1998 elections. The argument used
was that the experience in the last five years since the National press
Club case had "shown the 'undesirable effects'of the law because .the
ban on political advertising [had] not only failed to level the playing
field, [but had] actually worked to the grave disadvantage of the poor
candidate[s]'by depriving them of a medium which they [could] afford
to pay while their more affluent rivals [could] always resort to other
means of reaching voters. ... "
Justice Mendoza made short shrift of the argument:
No empirical data have been presented by petitioners to back
up their claim, however. Argumentation is made at the theoretical
and not the practical level. Unable to show the "experience" and
"subsequent events" which they claim invalidate the major prem-
ise of our prior decision, petitioners now say "there is no need for
'empirical data'to determine whether the political ad ban offends
the Constitution or not." Instead they make arguments from which
it is clear that their disagreement is with the opinion of the Court
on the constitutionality of gll(b) of R.A. No. 6646 and that what
they seek is a re-argument on the same issue already decided in
that case. What is more, some of the arguments were already con-
sidered and rejected in the NPC case.
Mendoza also added that the "term political 'ad ban,'when used
to describe $11(b) of R.A. No. 6646, [was] misleading, for even as
$ l1(b) prohibits the sale or donation of print space and air time to po-
litical candidates, it mandates the COMELEC to procure and itself al-
locate to the candidates space and time in the media. There is no sup-
pression of political ads but only a regulation of the time and manner
of advertising." Moreover, 911(b) of R.A. No. 6646, Mendoza added,
was a content-neutral restriction, not content-based. Thus, it passed the
?roC.R. No. 132231, Murch 31.
l99ll
Sec.4 ART. III _ BILL OF RIGHTS
test for content-neutral restriction enunciated in U.S. v. O'Brien.TnThe
O'Brien case, which involved political protest by the burning of Selec-
tive Service certificates, ruled that when "speech" and "non-speech"
elements are combined in the same course of conduct, a sufficiently
important governmental interest in regulating the non-speech element
can justify incidental limitations on free speech. A governmental regu-
lation is sufficiently justified if it is within the constitutional power of
the Government and furthers an important or substantial governmental
interest unrelated to the suppression of free expression, and if the inci-
dental restriction on alleged freedom is no greater than is essential to
that interest.
The political ad ban law, however, has since been repealed.
Not everything in the Electoral Reform Law was saved. The
companion case to National Press CIub - Adiong v. Commission on
Elections,l2t held that the COMELEC may not prohibit the posting of
decals and stickers of candidates on "mobile" places, public or private.
The portion of Section 11 of Republic Act 6646 upon which the COM-
ELEC had relied was declared to be unconstitutional for infringing
freedom of speech and for being an undue delegation of rule making au-
thority. The prohibited acts were found to present no substantial danger
to government interest. The prohibition therefore did not satisfy the re-
quirements of the clear and present danger rule. "The regulation strikes
at the freedom of an individual to express his preference and, by dis-
playing it on his car, to convince others to agree with him." Moreover,
the prohibition was found to suffer from over breadth. It encompassed
the use of privately owned property such as a vehicle. It therefore was
an unreasonable restriction on the use of property. Finally, the constitu-
tional objective to give rich and poor candidates equal opportunity was
not seen as served by the prohibition of decals.?22
Similarly, Sanidad v. COMELECa" struck down an inappropriate
use of the powers given to the COMELEC to regulate the electoral pro-
cess. On the occasion of the ratification campaign for theAutonomy Act
lirr the Cordillera, the COMELEC had issued a resolution prohibiting
rn'391 u_s_ 361 2d 672 (1968)
,20l,.riJ
"'207 SCRA 1 t2 (1992\.
,,207 S('RA 712 ( 1992).
"'lll I S('RA 529 ( l()(X)).
 280 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
columnists, commentators, and announcers from using their columns
or radio or television time to campaign for or against the plebiscite
during the period of the campaign. Sanidad, a newspaper columnist,
challenged the validity of the resolution as a violation of freedom of
expression. The court ruled that the authority given by the constitution
was over holders of franchises and that the purpose was to assure cdn-
didates equal opportunity and equal access to media. Sanidad was not a
candidate and in fact, in a plebiscite, there are no candidates. plebiscite
issues are matters of public concern. The people's right to be informed
must be preserved. Moreover, the people's choice of forum for discus-
sion should not be restricted.
Another freedom of expression case connected with elections was
the matter of "exit polls." Exit polls are of recent origin in the country.
It is "a species of electoral survey conducted by qualified individuals
or group of individuals for the purpose of determining the probable
result of an election by confidentially asking randomly selected vot-
ers, immediately after they have officially cast their ballots, whom they
have voted for. The results of the survey are announced to the public,
usually through the mass media, to give an advance overview of how,
in the opinion of the polling individuals or organizations, the electorate
voted." The COMELEC, however, promulgated a resolution restrain-
ing ABS-CBN or any other groups, its agents or representatives from
conducting such exit survey. The resolution was challenged by ABS-
CBN as violative of freedom of expression. The Court, in ABS-CBN v.
COMELEC,i,4 upheld the challenge saying: "The holding of exit polls
and the dissemination of their results through mass media constitute an
essential part of the freedoms of speech and of the press. Hence, the
COMELEC cannot ban them totally in the guise of promoting clean,
honest, orderly and credible elections. Quite the contrary, exit polls
properly conducted and publicized
-
can be vital tools in eliminating
-
the evils of election-fixing and fraud."
Social Weather Station (SWS) v. COMELECT25 was another land-
mark decision on media and the electoral process. SWS brought action
for prohibition to enjoin the Commission on Elections from enforcing
Section 5.4 of R.A. No. 9006 (Fair Election Act), which provided thar
?'?4ABS-CBN Bnradcasting Corgrration (l()Mfll-fl(l, G.R. No.
v l3-14116. .lanu:rry 2tt,
2(Xn.
/r\(i.R. No. 1475'71, May 5,2(XX).
Sec.4 ART. III - BILL OF RIGHTS
"surveys affecting national candidates shall not be published fifteen
(1 5) days before an election and surveys affecting local candidates shall
not be published seven (7) days before an election." In implementing
this law, the COMELEC justified its action saying that the ban was
necessary in order to prevent the manipulation and comrption of the
electoral process by unscrupulous and elroneous surveys just before the
election.It contended that (1) the prohibition on the publication of elec-
tion survey results during the period proscribed by law bore a rational
connection to the objective of the law,i.e.,the prevention of the debase-
ment of the electoral process resulting from manipulated surveys, band-
wagon effect, and absence of reply; (2) it was narrowly tailored to meet
the "evils" sought to be prevented; and finally that (3) the impairment
of freedom of expression was minimal, the restriction being limited in
duration.
The Court disagreed and saw the law as a form of prior restraint
and therefore presumed to be invalid. The grant of power to the COM-
ELEC under Art. IX-C, Section 4, the Court said, was limited to en-
suring "equal opportunity, time, space, and the right to reply" as well
as uniform and reasonable rates of charges for the use of such media
facilities for "public information campaigns and forums among candi-
dates." It is only when exercising this power that Art. IX, C,4 reverses
this presumption of invalidity as it did inthe National Press Club case.
The Court ruled that the state had failed to overcome the presumption
of invalidity.
{
f
$
':t 11. Commercial speech.
Commercial speech simply means communication whose iole
; purpose is to propose a commercial transaction. The literature on com-
;
il mercial speech begins with Valentine v. Chrestensen,26 which involved
an ordinance banning distribution in the streets of printed handbills
bearing commercial advertising material. The Court upheld the ban
simply saying: "It is enough for the present purpose that the stipulated
facts justify the conclusion that the affixing of the protest against of-
licial conduct to the advertising circular was with the intent, and for
thc purpose, of evading the prohibition of the ordinance. If that evasion
i
wcrc sLlcccssful. cvory merchant who desires to broadcast advertising
q /'''tl(r tl S \-' I l().1.)l
 THE I 987 CONSTITI.-ITION
OF THE REPUBLIC OF THE PHILIPPINES
leaflets in the streets need only append a civic appeal, or a moral plati-
tude, to achieve immunity from the law's command." It was not until
more than thirty years later, in Vrginia State Bd. of Pharmacy v. Vir-
ginia Citizens Consumer Council,"'that the constitutional protection of
commercial advertising was recognized.
T\e Virginia State Bid case involved the advertising of prescrip-
tion drugs and affirmed that commercial advertising enjoyed First
Amendment protection. The Court reasoned:
Focusing first on the individual parties to the transaction
that is proposed in the commercial advertisement, we may assume
that the advertiser's interest is a purely economic one. That hardly
disqualifies him from protection under the First Amendment. The
interests of the contestants in a labor dispute are primarily eco-
nomic, but it has long been settled that both the employee and the
employer are protected by the FirstAmendment when they express
themselves on the merits of the dispute in order to influence its
outcome. ...
As to the particular consumer's interest in the free flow of
commercial information, that interest may be as keen, if not keener
' Both historically and doctrinally, freedom of expression, as seen
by far, than his interest in the day's most urgent political debate. ...
Generalizing, society also may have a strong interest in the
free flow of commercial information. Even an individual adver-
tisement, though entirely "commercial ," may be of general pub-
lic interest. The facts of decided cases furnish illustrations: ... a
manufacturer of artificial furs promotes his product as an alterna-
tive to the extinction by his competitors of fur-bearing mammals,
... a domestic producer advertises his product as an alternative to
imports that tend to deprive American residents of their jobs, ...
Moreover, there is another consideration that suggests that
no line between publicly "interesting" or "important" commercial
advertising and the opposite kind could ever be drawn. Advertis-
ing, however tasteless and excessive it sometimes may seem. is
nonetheless dissemination of information as to who is producing
and selling what product, for what reason, and at what price. So
long as we preserve a predominantly free enterprise economy, the
allocation of our resources in large measure will be made through
numerous private economic decisions. It is a matter of public in-
tr7425 tJ.S. 74lt ( I 9?6).
Sec.4 Sec.4 ART. III _ BILL OF RIGHTS 283
terest that those decisions, in the aggregate, be intelligent and well
informed. To this end, the free flow of commercial information is
indispensable.
Commercial speech, however, has not been accorded the same
level of protection as that given to what is called "core" speech such as
political speech. Central Hudson Gas v. Public Service Commissionl2s
set down the requirements for the protection of commercial speech.
First, the speech must not be false or misleading or proposing an il-
legal activity; second, the governmental interest sought to be served by
the regulation must be substantial; third, the regulation must directly
advance the government interest; fourth, the regulation must not be
overbroad.
ln Phnrmaceutical v. Secretary of Health,"n the Court found an
absolute ban on advertising breast milk substitutes as unduly restrictive
and as more than necessary to further the avowed governmental interest
of promoting the health of infants and young children.
12. Unprotected speech: libel.
in the preceding discussion, has never been understood to be an ab-
solute right. Moreover, as noted in Chaplinslq v. New Hampshire:"o
"There are certain well-defined and narrowly limited classes of speech,
the prevention and punishment of which has never been thought to raise
any Constitutional problems." In other words, some forms of speech are
not protected by the Constitution.
Ttvo types ofunprotected speech have in fact received consider-
able attention from the courts: libel and obscenity. "It has been well-
observed that such utterances are no essential part of any exposition
of ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the
social interests in order and morality."73r Thus, in dealing with them
there is no call for the application of the clear and present danger rule
or the dangerous tendency rule or the balancing of interests test because
DE447 US
-557 ( l9tJ0).
tle Phurmaccuticsl v. Secrctary of Health, C.R. No. 173034, October 9, 2007.
tx'315 U.S.56lt,57l-2 ( 1942).
^thl. n 5'12.
 THE 1 987 CONSTITI.]"TION Sec.4
OF THE REPUBLIC OF THE PHILIPPINES
these are essentially methods of weighing competing values. But that
is not the end of the problem; it is merely the beginning. For there still
remains the complicated task of discovering the norrns for determining
what speech is libelous or what speech is obscene.
The jurisprudence on libel has developed around the statutory pro-
visions on the subject with only occasional excursions to constitutional
issues. Libel is defined in Article 353 of the Revised Penal Code thus:
A libel is a public and malicious imputation of a crime, or of
a vice or a defect, real or imaginary, or any act, omission, condi-
tion, status, or circumstance tending to cause the dishonor, dis-
credit, or contempt of a natural or juridical person, or to blacken
the memory of one who is dead.
There is libel when the imputation is public and malicious. Pub-
licity means "making the defamatory matter, after it has been written,
known to someone other than the person to whom it has been written.
The reason for such rule is that 'a communication of the defamatory
matter to the person defamed cannot injure his reputation though it may
wound his self-esteem. A man's reputation is not the good opinion he
has of himself, but the estimation in which others hold him."'82 It is
malicious "when the author of the imputation is prompted by ill-will or
spite and speaks not in response to duty but merely to injure the reputa-
tion of the person who claims to have been defamed." But if speech is
not malicious even if defamatory, it is privileged. "The rule on privi-
leged communication is that a communication made in good faith on
any subject matter in which the communicator has an interest, or con-
cerning which he has a duty, is privileged if made to a person hav-
ing a corresponding interest, although it contains incriminatory matter
which, without the privilege, would be libelous and actionable."'33
The rule on privileged communication is found in Article 354(2)
of the Revised Penal Code. Article 354, however, is not an exclusive
list of qualifiedly privileged communications since fair commentaries
on matters of public interest are likewise privileged. The concept of
privileged communications is implicit in the freedom of the press. Fair
T32ledesma v. Court of Appeals, G.R. No. ll3216, September -5, 1997,27tt SCRA 656,
686-87.
733Alonzo v. Court ol'Appeals, G.R. No. l l(X)lltt, Fcbruary I, 1995, 241 SCRA 51 , 59 6()
rciteratedinl,cdesrnav.(\lurtol A;rpcrls,(i.l{.No. ll12 l(r.Scptorrbcr5.l()()7.
Sec.4 ART. III _ BILL OF RIGHTS
commentaries on matters of public interest are privileged and constitute
a valid defense in an action for libel or slander.734
The principle followed is that libel is a form of expression not
protected by the Constitution.ts'And it has been held that the evil which
the law on libel seeks to punish is not the disturbance of public or-
der caused by defamatory language but "its tendency ... to injure the
person defamed, regardless of its effect upon the public.""u Thus, it is
immediately obvious that in the matter of libel there is no occasion for
choosing between the "clear and present danger rule" or the "dangerous
tendency ruIe."
The characterization of libel as constitutionally unprotected
of vilification is not a
speech is easily understandable when the object
public figure. A private person is entitled to the protection of his repu-
tation, and the stupidity or immorality of his acts affecting only his
private life are not of vital concern to the common weal. But when a
person becomes a public figure, either as an occupant of or an aspirant
to a public office, the wisdom or unwisdom of his actions and the ab-
sence or abundance of his mental and moral qualifications for office, are
of vital concern to the public. Hence, it is in this area of the libel law
that the constitutional guarantee of freedom of expression deserves to
be carefully guarded. Two early cases serve to illustrate the allowable
limits of criticism of public figures.
In the 1909 case of U.S. v. Sedafio,'3' the subject of the prosecu-
tion was an article criticizing Rafael Palma, incumbent delegate to the
Philippine Assembly and, at the time of the publication, a candidate
for re-election. It was not denied that the publication "impeach6d the
honesty, virtue and reputation of [Palma] and tended to expose him to
public hatred, contempt, and ridicule by publishing to the world his al-
leged mental, moral, and physical defects." The Court enunciated the
rule relative to candidates thus:?38
trBorjal v. Court ofAppeals, G.R. No. 126466, January 14, 1999.
?35Worcester v. Ocampo,22 Phil.42 (1912).
736People v. Del Rosario, 86 Phil. 163, 1966 (1950). "The purpose of libel laws is to en-
couragc victims to civil suit instead of taking the law into their own hands." U.S. v. Sotto, 38 Phil.
666,676(l9lE).
7Dt4 Phil.338 (l9O9).
)\rld. ut14l-2. Another rulc for thc conduct nl political campaigns a rule which is now a
rleutl lctler, w$s cstuhlishcd in l\ttplr v.'litulur,49 l'hil.931 (lt)27). l"lphcld by the tlecisirxr was
n stntutc which prrnishcrl un()nyrn()lls criticism ol cunditlutcs hy rncuns ()l p()slcrs unrl circulars.
286 THE I98TCONSTITUTION Sec.4
OF THE REPUBLIC OF THE PHILIPPINES
But while it may be admitted that the public acts of public
men may lawfully be made the subject of comment and criticism
by the public and by the press, and that such criticism, when made
in good faith, should be and is privileged; and while it may, per-
haps, also be admitted that a somewhat broad license should be
allowed to criticisms of and comment on the mental, moral, and
physical fitness of candidates for public office, the very fact of
candidacy putting these matters in issue, and the public having a
right to be informed as to the qualifications of those who seek elec-
tion, and perhaps appointment to public office, nevertheless it is
clear upon general principle ... that such comment or criticism, if
defamatory in its nature, constitutes a criminal libel if it appears
that it was actuated by actual or express malice; that from the very
nature of the privilege claimed the freedom of such criticism is
necessarily limited to/air comment. ... fair comment being com-
ment which is true, or which, if false, expresses the real opinion
of the author, such opinion having been formed with a reasonable
degree ofcare and on reasonable grounds; and that such criticism
cannot be used as a cloak for malicious assaults on the private life
and character of the person criticized.
The accused was convicted.
InU.S. v. Contreras,"t the case was one of libel of the governor
of the province of Ambos Camarines. In convicting the author of the
publication, the Court said'740
Men have the right to attack, rightly or wrongly, the policy
of a public official with every argument which ability can find and
ingenuity can invent. They may show, by argument good or bad,
such policy to be injurious to the individual and to society. They
may demonstrate by logic true or false, that it is destructive of hu-
man freedom and will result in the overthrow of the nation itself.
But the law does not permit men falsely to impeach the motives,
For such criticism to be punishable, the law did not even require that the language be defamatory.
What it intended to punish, said the Court, was the anonymous character of the criticism. Such
criticism, according to the Court, tended to mislead the voters and tended to injure and def'eat u
candidate while at the same time denying him the opportunity of searching out his detractors und
answering them. Id. at 937. The law, therefore, was a rule of fair play. And the Court did not lind
it suppressive of public opinion because it left the citizen free to assert himself fearlessly during
election campaigns, "if he possessed the valor to do so under his individual responsibility." ft/. rt
938. The ruling was reiterated in Diaz v. People,67 Phil. 432 ( 1939).
r,23 Phit.5l3 (t9t2).
7{'/r/, at .5 I 6. Scc I l.S, v. lt:rlect(), 4:l lrhil. 58 ( 1922).
Sec.4 ART. III _ BILLOFRIGHTS
attack the honesty, blacken the virtue, or injure the reputation of
that official. They may destroy, by fair means or foul, the whole
fabric of his statesmanship, but the law does not permit them to at-
tack the man himself. They may falsely charge that his policies are
bad, but they may not falsely charge that he is bad.
What the Court has done in these two cases is to compartmental-
ize the life of a public figure into three possible objects of criticism:
his public and official acts, his "mental, moral and physical fitness" for
office, his strictly private life. When the object of criticism is his strictly
private life, defamatory imputations are not constitutionally protected
expression. When, however, his public acts are the object of criticism,
constitutional immunity applies. Sedafio says that "public acts of pub-
lic men may lawfully be made the subject of comment and criticism."
When such comment or criticism is done in good faith, it is privileged.
Contreras even goes a step further in that it protects criticism of official
acts even when the criticism is done in bad faith: "They may destroy
by fair means or foul, the whole fabric of his statesmanship." When,
finally, the object of the criticism is a public person's "mental, moral,
or physical fitness" for office, criticism, while liberally treated, enjoys
constitutional protection only when it is fair. And Sedafto says that fair
criticism means comment "which is true, or which, if false, expresses
the real opinion of the author, such opinion having been formed with a
reasonable degree of care and on reasonable grounds." True criticism,
therefore, of a person's fitness for office is always fair and, therefore,
privileged; false criticism is not privileged if malicious, tlat is, when
used as a cloak for assaults on a person's private life. Hence, good faith
is always a valid defense in a suit for defamatory imputations agaihst a
person's moral, mental or physical fitness for office.
The early Philippine cases on libel were decided under Act No.
277 , theLibel Law in effect prior to its incorporation into the Revised
Penal Code. Three sections of this law are important for an understand-
ing of the role of malice or absence of good faith in libel prosecutions.
Section 3 apportioned the burden of proof: "An injurious publication is
presumed to have been malicious if no justifiable motives for making it
are shown." Section 4 set out the requisites for a valid defense:
ln all crirninll prosccutions for libel the truth may be given
in cvidcncc to thc Court, and il'it appcars to the Court that the
nrattcr chlrgctl irs lihcklus is lnrc and was publishcd with grxrd
288 THE 1987 CONSTITUTION Sec.4
OF THE REPUBLIC OF THE PHILIPPINES
motives and for justifiable ends, the party shall be acquitted; other-
wise, he shall be convicted; but to establish this defense, not only
must the truth of the matter so charged be proven but also that it
was published with good motives and for justifiable ends.
Section 9 contained the provision on "privilege":
A private communication made by any person to another in
good faith, in the performance of any duty, whether legal, moral,
or social, solely with the fair and reasonable purpose ofprotecting
the interests of the person making the communication, or in the
interests of the person to whom the communication is made, is a
privileged communication, and the person making the same shall
not be guilty of libel within the provision of this Act.
By a laborious process of interpretation of the apparent clash of
privilege and presumptions in these three sections of the Libel Law, the
Court arrived at what basically is still the present doctrine on libel.
Unnecessarily, perhaps, the 1903 case of U.S. v. Lerma,at created
some confusion. The case was a prosecution arising out of a petition
written by the defendant to the local justice of the peace. Several crimi-
nal cases were at that time pending against the defendant before this
same judge. The petition stated that it was rumored that a plan had been
formed to prosecute the petitioner for the purpose of discrediting his
candidacy for the governorship of the province. He attributed the ru-
mored prosecutions to the malicious machinations of certain provincial
officials naming especially the governor and the provincial fiscal. He
considered the rumored accusations fabricated and the testimonial af-
fidavits extorted.742
From the evidence presented during the trial, the Court concluded
that "the circumstances of the case showed quite conclusively that the
sole motive of the defendant in presenting the petition was to defend
himself against those charges."i4r Looking to Section 3 of the Libel
Law, the Court saw in it the rule that whether the imputations made
were true or untrue, the existence of justifiable motives was an absolute
defense.'oo The accused therefore was acquitted.
71'2
7QId.
Phil. 254 (1903).
a|255-6.
1a"ld. at259-60.
1aIId. at 25'l -8. J. Willard, zrt 260-4 and J. (iroper, at 264-5, concurre<|, but lnrlh corrtt'nrlul
that Scction 3 was nrcrcly a rrrlt: ol cvirlcrt't'iurrl ils lirrtclion was kr lix lhc httlrlcrt ol prrxrl rrrrtl rrol
to rrrirke irrsliliirhlc rrrolivt' ;urtl :rbsolrtlt' tleli'nsc.
Sec.4 ART. III - BILL OF RIGHTS 289
In refusing to consider the truth or untruth of the allegations of
Lerma, did the Court run counter to the requisites for a valid defense
in Section 4 of the Libel Law? It seems that it did not. A careful read-
ing of Section 4 will reveal that it does not require truth as an essential
element for a valid defense. What it does say is that truth alone, un-
accompanied by good motives and justifiable ends, is not a sufficient
defense. But was it not said in the analysis of the Sedafio case that true
criticism of a person's fitness for office is always fair and therefore a
valid defense by itself? The meaning of this conclusion in the analysis
of the Sedafio case is that truth of the criticism of a person's fitness for
office justifies itself because of the public interest in the preservation of
the integrity of the office.
While the conclusion arrived at in U.S. v. Lerma was sound, it was
unfortunate in that the conclusion was reached by looking to Section 3
alone and seeing in it the establishment of 'Justifiable motives" as an
absolute defense. This view of Section 3 may perhaps be attributed to
the misleading awkwardness of its formulation. But its proper role in
libel prosecutions seems to have been better understood in the 1909
case of U .5. v. Bustos.l4s
The Bustos case was a prosecution for a written statement made
to the Secretary of Justice impeaching the honesty and reputation of a
judge and a fiscal. Bustos admitted that the letter was defamatory in
content but he claimed that the communication was privileged because
it was done in good faith.'46 Was such an initial showing of justifiable
motives an absolute defense on the basis of Section 3? The Court an-
swered that it was not. The proper function of Section 3 was to rdieve
the prosecution of the burden of proving malice whenever the utterance
was, on its face, defamatory and no justifiable motives were shown. If
.iustifiable motives were shown, the only effect this had was to rebut
lhe prima facie presumption of malice in law. Then the prosecution
rnust come up with proof of malice in fact to rebut the prima facie
prtmf of justifiable motives. "When malice in fact is shown to exist the
publisher cannot be relieved from liability by a pretense of 'justifiable
rnotives.' Section 3 relieves the plaintiff from the necessity of proving
rnalicc simply when no.justifiable motives are shown, but it does not
/r'l I I'ltil. ()(x) ( l(xt())
t'r"/r/. rtl (r()5.
 THE 1987 CONSTITUTION Sec.4
OFTHE REPUBLIC OFTHE PHILIPPINES
relieve the defendant from liability under the guise of 'justifiable mo-
tives'when malice actually is proved." Neither truth, the Court said, nor
qualified privilege could be a defense against proven malice infact.laT
And the Court found that there was malice in fact because during the
trial the defendant had admitted that "he had personally made no in-
vestigation with reference to the truth of the statements made in said
communication."T48
While the Bustos decision was not unanimous, the objection
raised by the dissent was not against the role the majority had given to
"malice in fact." Rather, it was against the interpretation given to the
"qualified privilege" found in Section 9. The purpose of Section 9, ac-
cording to the majority, "was to permit all interested persons or citizens
with grievances, to freely communicate, with immunity, to the persons
who could furnish the protection asked for, requiring, however, at all
times that such petitions or communications shall be made in good faith
or 'with justifiable motives."'7an The majority, however, did not consider
the Secretary of Justice a person who could give the relief expected.'so
Moreover, the Court said that the publication had not been made, in the
o'for
language of the statute, the sole purpose of protecting the interests
of the Secretary of Finance and Justice, to whom it was made," but
merely to have one "Jose Rivera brought to trial upon a charge of the
crime of robbery."t''
The burden of Justice Carson's dissent in Bustos was that the de-
cision placed "almost insurmountable difficulties in the way of clean
administration of government in these Islands, and materially abridged
the right of the people to petition the Government for redress of griev-
ances, and seek relieffrom the abuses at the hands ofthose set in author-
ity over them."752 Carson suggested that the accused, as a citizen of the
province and as a litigant in the courts of that province, had an interest
in the removal of incompetent and corrupt officials in the judiciary.?53
741hd.
at697-98.
748
Id . at 703 .
Iaeld. atTOl.
lnld. at7O3.
15tId. at'119-2O.
Tszld. at 7O3.
t1r/r/. at 719-20.
Sec.4 ART. III - BILL OF RIGHTS
A second Bustos case754 came nine years later, and its view on
qualified privilege was along the lines of Carson's thinking. The charg-
es which were made the basis of the prosecution for libel were misfea-
sance and malfeasance in office. These charges, accompanied by affi-
davits, were sent to the Executive Secretary. This time the Court said'''
It is true that the particular words set out in the information,
ifsaid of a private person, might well be considered libelous per
se. The charges might also under certain conceivable conditions
convict one of libel of a government official. As a general rule
words imputing to a judge or a justice of the peace dishonesty or
comrption or incapacity or misconduct touching him in his office
are actionable. But as suggested in the beginning we do not have
at present a simple case ofdirect and vicious accusations published
in the press, but of charges predicated on affidavits made to the
proper official and thus qualified privileged. Express malice has
not been proved by the prosecution. Further, although the charges
are probably not true as to the justice of the peace, they were be-
lieved to be true by the petitioners. Good raith surrounded their
action. Probable cause for them to think that malfeasance in office
existed is apparent. The ends and the motives of these citizens
-
to secure the removal from office of a person thought to be venal-
were justifiable. In no way did they abuse the privilege. ...
How did this differ from the first Bustos case? The court said:?56
"... in the Julio Bustos case we find wild statements, with no basis in
fact, made against reputable members of the judiciary, 'to persons who
could not furnish protection."' It seems, however, that Justice Carson,
in his concurrence, is more correct:?s? "The truth is that the doctrine in
the former Bustos case has long since been abandoned by this Court;
and in my opinion it would make for the more efficient administration
of the Libel Law in these Islands to say so, in so many words."
The present law on presumption of malice and on qualified privi-
lege is now found in Article 354 of the Revised Penal Code. It reads:
7sU.S. v. Bustos,37 Phil.73l (1918).
11111.at744.In U.S. y. Cafiete,38 Phil.253 (1918), the privilege was applied to communi-
cation to religious superior.
116ltl. rl 745.
?rr?/., citing U.S. v. Sctltfro,
l4 l'hil. .1311,.139 (1909): U.S. v. (bntrems,23 Phil.5l3
(1912);tl.S.v.Morttulvo, l()l'lrrl. 1t)5(l(rl5): (l.S.v.(irlt'zu,.ll l'hi|. 165(lt)15).
 THE 1987 CONSTITUTION Sec.4
OF THE REPUBLIC OF THE PHILIPPINES
Every defamatory imputation is presumed to be malicious,
even if it be true if no good intention and justifiable motive for
making it is shown, except in the following cases:
l. A private communication made by any person to an-
other in the performance of any legal, moral, or social duty; and
2. A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative, or other official
proceedings which are not of confidential nature, or of any state-
ment, report, or speech delivered in said proceedings, or of any
other act performed by public officers in the exercise of their func-
tion.
The Court had occasion to apply this provision in the 1962 case of
Policarpio v. Manila Times Publishing Co.1s8 and the results are not too
encouraging for the Philippine press. Policarpio was Executive Secre-
tary of the UNESCO. In that capacity, she worked under the Executive
Office of the Philippine government. An article was published in the
Saturday Mirror imputing various acts of dishonesty to her, much of
which were untrue. Policarpio sued for damages and the Court, finding
for her, said:
It goes without saying that newspapers must enjoy a certain
degree of discretion in determining the manner in which a given
event should be presented to the public, and the importance to be
attached thereto as a news item, and that its presentation in a sensa-
tional manner is not per se illegal. Newspapers may publish news
items relative to judicial, legislative, or other offlcial proceedings,
which are not of a confidential nature, because the public is en-
titled to know the truth with respect to such proceedings, which,
being official and non-confidential, are open to public consump-
tion. But to enjoy immunity, a publication containing derogatory
information must be not only true but, also,fair, and it must be
made in good faith and without comments or remarks.
It will be noted that the nonns for immunity used by the Court
in this civil suit for damages were those of Article 354 of the Revised
7s8L-16027,May30, 1962.See a/soImperialv.Ziga,L-l9126,April 13, l967.whereac-
tual malice was proved.In Barretto v. Philippine Publishing Co.,30 Phil. 88.9 ( l9l5), it was held
that publication of allegations in the pleadings is not privileged if made beforc the casc comcs to
trial. Reitelated in Choa Tek Hee v. Philippinc Publishing Co., 34 Phil. 447 ( | 9 l6). A llcgntions in
the pleadings, however, are absolutely privilcged. Peoplc v. Aquino, l,'239O1t, ()ctohcr 29, 1966.
Srr ul.utZurhilo v. Bayot, 20 Phil. 219, 22O-l ( l9l l).
Sec.4 ART. III - BILL OF RIGHTS
Penal Code. The Court, moreover, pointed to the presumption of malice
in Article 354: "Every defamatory imputation is presumed to be mali-
cious, even if it be true, if no good intention and justifiable motive for
making it is shown, except ... " in the enumerated instances of qualified
privilege. No distinction was made whether the subject of defamatory
statement was a public officer or a private person. What is more dis-
turbing, however, is that, besides the presumption of malice, the Court
now requires truth as an element of a valid defense: "a publication con-
taining derogatory information must not only be true but, also, fair."
Moreover, added to this requirement of truth in reporting, the Court also
introduced an interesting novelty which might be labeled "libel by neg-
ligence." Pointing to the omissions in the newspaper report which con-
tributed to the unfair picture created by the article, the Court said that
if the publisher was aware of the facts suppressed, there was malice; if
unaware, when, under the facts, the truth could have been verified, the
publisher was guilty of negligence and was liable under Articles 2176,
2194,2208 and22l9 of the Civil Code! Apparently, while malice is an
essential element in libel as a crime, negligence suffices to justify an
award in a civil suit a dangerous doctrine, indeed, if applied to the
press
-
!
The case of Lopez v. Court of Appeals"n penned by Justice Fer-
nando, does not depart from the Policarpio rule. Here Fernando takes
his turn to play the part of Byron's Julia saying "I'll ne'er consent" but
nonetheless consenting. Fernando quoted with approval the rule estab-
lished in the landmark 1964 case of New York Times v. Sullivan!60 "The
constitutional guarantees require, we think, a federal rule that prohibits
a public official from recovering damages for a defamatory falsefrood
relating to his official conduct unless he proves that the statement was
made with 'actual malice'- that is, with knowledge that it was false or
with reckless disregard of whether it was false or not." Fernando also
agreed with the later rule in Curtis Publishing Co. v. Buttsl6' extending
the New YorkTimes rule to statements referring to public figures regard-
less whether or not they are public officials. The rationale behind this
rule is that, in the discussion of public issues, the issues cannot be fully
meaningful unless reference is made to the men involved on both sides
"e34 S('Rn I l6 ( 1970).
'd'.176 U.S. 254.2-l9-tt() ( l()64)
brl8l{ lt s. I to (l()6/).
294 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
who may not necessarily be public officials.762 Nonetheless, Fernando
awarded damages in this action for libel arising from the publication in
a weekly magazine of plaintiff's photograph erroneously captioned as
that of the person responsible for a widely publicized hoax. In justifi-
cation of the award, Fernando said: "Here there was no pressure of a
daily deadline to meet, no occasion to act with haste as the picture of
respondent was published in a weekly magazine."'u'
At this point, it may be worthwhile to review the development
which the New York Times decision has undergone. The privilege pro-
tected under the New York Times case was conditioned upon the status
of the complainant, that is, that he be a public officer. Butts extended
the rule to statements affecting public figures. Both cases underscored
the vitality of the "profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and wide
open."zo+ But as the Supreme Court would later say, in Rosenbloom v.
Metromedia:765
If a matter is a subject of public interest, it cannot suddenly
become less so merely because a private individual is involved, or
because in some sense the individual did not "voluntarily" choose
to become involved. The public's primary interest is in the event;
the public focus is on the conduct of the participant and the con-
tent, effect, and significance of the conduct, not the participant's
prior anonymity or notoriety.
Whence it was easy for the Court to arrive at the final conclusion:
"We honor the commitment to robust debate on public issues ... by
extending constitutional protection to all discussion and communica-
tion involving matters of public or general concern, without regard to
whether the persons involved are famous or anonymous." Rosenbloom,
however, was rejected by Gertzv.Welch,IncJ6 and for all practical pur-
poses the basis for diverse treatment is still the status of being a public
official or a public figure.
As to Philippine jurisprudence, however, the general rule remains:
every defamatory imputation is presumed to be malicious. But the New
76234
SCRA at 126.
t63ld.
at 128.
7s New York Times Co. v. Sullivan,376 U.S. at270-271
765403
U.S. 29 ( t97 t ).
7*4t8 tr.s.323 ( t974).
Sec.4 Sec.4 ART. III - BILL OF RIGHTS
York Times rule was finally accepted in Borjal v. Court of Appeals,6, and
Jalandoni v. Drilon.768 The Court even applied the rule to a defamatory
imputation against a lowly baranggay official!?6e
Thus, it is firmly established now that Public officials must prove
actual malice in order to recover damages for alleged libel. But, al-
though Japan Airlines (JA) is not a public official, it was deemed cov-
ered by the rule already enunciated in the early case of Borjal v. Court
of Appeals. The rule on privileged commentaries on matters of public
interest applies to it. The privilege applies not only to criticism of public
officials but extends to the criticism of a great variety of subjects, and
includes matters of public concern, public men, and candidates for of-
fiCe.i7o
However, public figures are not unprotected. Although a wide lati-
tude is given to critical utterances made against public officials in the
performance of their official duties, or against public figures on matters
of public interest, such criticism does not automatically fall within the
ambit of constitutionally protected speech. If the utterances are false,
malicious or unrelated to a public officer's performance of his duties
or irrelevant to matters of public interest involving public figures, the
same may give rise to criminal and civil liability. While personalities in
the entertainment business, media people, including gossip and intrigue
writers and commentators, do not have the unbridled license to malign
their honor and dignity by indiscriminately airing fabricated and mali-
cious comments.??r
Similar result was found inTulfo v. People, where the Court found
that the article of a columnist was not "consistent with good faith and
reasonable care. The writer had abandoned his responsibility to verify
his story.7?'?
But a network telecast reporting alleged anomalies in the Medical
Board exams is not necessarily libelous where the report is based on
7"7 (i.R, No. 126466, January 14, 1999.
/"* (i.R. Nos. ll52]9-40, March 2,2(XX).
/"" Vrsrlucz v. ( inrrt ()l Al)pclls. (i.R. No. l l ll97 l, September l 5, l 999.
//''.lAl. v. Sirnlrrgln, ( i.R. No. I 7{} I 4 l, April 22, 2X)8.
/'r l;t'rt'rrrirr v. l\'opl<', ( i.R. No. I 57(r{ 1, Mrrrt:h 2ll, 2(X)8.
,,, (;.R. N(). l(rloll, Scptcrrrlrl l(r,,1(x)8
296 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
the content of the complaint filed in court. Malice means the offender is
prompted by ill-will or spite with intent to injure.773
13. Unprotected speech: obscenity.
There is not one reported decision of the Philippine Supreme
Court involving obscene literature. There are in fact only three report-
ed obscenity decisions: People v. Kottinger,lla People v. Go Pin,77s and
People v. Padan.716 The first was a prosecution under Section 12 of Act
No.277 and the last two underArticle 201 of the Revised Penal Code.
The statutes cited do not attempt to define obscenity. This is be-
cause, in the words of the Supreme Court, "The words 'obscene or in-
decent'are themselves descriptive. They are words in common use and
every person of average intelligence understands their meaning.".'The
Kottinger case, however, did make an attempt at definition by borrow-
ing from American jurisprudence: "The word 'obscene' and the term
'obscenity'may be defined as meaning something offensive to chastity,
decency or delicacy. 'Indecency'is an act against good behavior and a
just delicacy."??8 It is a definition which is very broad, very untechnical
and most unhelpful. Subsequent decisions have not added to it anything
in the way of improvement.
The chief contribution of the Kottinger case to Philippine juris-
prudence consists in the obscenity tests which it likewise borrowed
from American jurisprudence 7?e
:
... [T]he test ordinarily followed by the courts ... is whether
the tendency of the matter charged as obscene is to deprave or cor-
rupt those whose minds are open to such immoral influences and
into whose hands a publication or other article charged as being
obscene may fall. Another test of obscenity is that which shocks
the ordinary and common sense of men as an indecency.
773GMA Network v. Bustos, G.R. No. 146848, October 17, 2006
2445 Phit. 352 (1923).
u597 Phil.418 (1955).
,698 Phil. 749 (1957).
TTtPeople v. Kottinger, sapra,
Nott: lt't0, al 157.
778Id.
at 356.
I r'ld . wlrir.lr is i)n llll l)ul lt lx.lsoll l lrr' ct'rlr:tl issttt' is llr t rttttlttt'l ol lltt' tk'li'rxlrrnt
Sec.4 ART. III - BILL OF RIGHTS
These are the tests still followed by Philippine courts'
The case of People v. Go Pin,80 has two noter,vorthy contributions
to offer: a relative theory of obscenity and a theory of redeeming social
values. The case involved movie shorts which the lower couft charac-
terized as possessing "only slight degree of obscenity, indecency and
immorality." We are not told, however, in what this obscenity precisely
consisted. The accused had pleaded guilty to a charge underArticle 201
of the Revised Penal Code. In upholding the lower court's decision the
Supreme court made these observations on the exhibition of nudes:?8'
such pictures, sculptures and paintings are shown in
... tllf
art exhibits and art galleries for the cause of art, to be viewed and
appreciated by people interested in art, there would be no offense
committed. However, the pictures here in question were used not
exactly for art's sake but rather for commercial purposes. In other
words, the supposed artistic qualities of said pictures were being
commercialized so that the cause of art was only of secondary or
minor importance.
The court further said that those who went to see the pictures
upon payment of a fee were most likely more interested in "satisfy-
ing their morbid curiosity and taste, and lust, and love for excitement,
inituOing the youth who, because of their immaturity, are not in a posi-
tion to resist and shield themselves from the ill and perverting effects
of these pictures."782
There seems to be in this decision a definition of a crime - the
crime of commercially offering material dealing with sex to satisfy
"morbid curiosity and taste, and lust and love for [sexual] exciterfient."
The decision thus suggests that material dealing with sex, which may be
legitimate material under certain circumstances' can be the subject of a
crime if exploited for illegitimate purposes. Thus, the outcome is made
to depend not so much on the character of the object itself as on the
mannef of purveyance and on the intended audience.Tss This does not
mean, however, that under such a dispensation the law can do without
l{t'Supra. notc lt{ I .
t{t
ld. al 4lt) .
/rr/r/. lixrlnolt' 2o
,*,'l'lrrs is bul iiln)lhct w:ry ol siryinll llr:rl irr ir Proseettti0lt litr ohscettily il is not a picturc tlr
'rr6lit.rliorr
 THE 1987 CONSTITUTION Sec.4
OF THE REPUBLIC OF THE PHILIPPINES
a satisfactory definition of or test for obscenity or that the intent of the
purveyor is always material. when the material being purveyed by the
defendant is patently obscene, proof of criminal intent is unnecessary.It
is only in borderline cases that the rerative obscenity theory should find
application. The second contribution of the Go prn cases is its recogni-
tion of redeeming aesthetic values. It recognizes that there are people
who can perceive "the element of art" and derive legitimate aesthetic
"inspiration in the showing of pictures in the nude, or the human body
exhibited in sheer nakedness as moders or in tableaux vivants.,, There,
however, the court stops; it does not say when alleged art is really mas-
queraded pandering to the baser passions.
The Padan caseTs does not help to clarify this question in spite of
its reiteration of the theory of redeeming values. The defendants in this
case were prosecuted for performing carnal intercourse for the benefit
of paying viewers. The court concluded that the act inspired and caused
"nothing but lust and lewdness" and, therefore, was obscene.
Against the relative paucity of philippine literature on obscenity,
one may compare the abundance of American material. A survey of
American material on what Justice Harlan has characterized as,..the
intractable obscenity proble6"'rs should help underscore the delicate
problem of balancing freedom of speech and of the press against the
duty of the state of providing a wholesome atmosphere of pubiic moral-
ity.
ln Roth v. united states, which definitively established ,,that ob-
scenity is not within the area of constitutionally protected speech or
press,"ze. the supreme court deflned obscenity as "material which
deals
with sex in a manner appealing to prurient interest.'rn This was further
explained in a footnote as "material having a tendency to excite lustful
thoughts."'t' The court likewise cited webster's definition of ..pruri-
lusupra,note
182. The court said: "In those cases [stills and moving pictures], one might
yet claim that there was involved the element of art; that connoisseurs
of t[e same, and painters
and sculptors might find inspiration of the showing of pictures in the nude,
or the human body ex-
hibited in sheer nakedness as models or in tableaux vivazts. But an actual exhibition of
the sexual
act' preceded by acts of lasciviousness, can have no redeeming feature. In it, there is
no room for
art...." Id.at752.
TEslntersrate
Circuit, Inc. v. Dallas,390 U.S.676,704 (196g).
?s354 U.S.
476, 484-5 ( I 957).
1t7ld.
at 487 . rl rhc brxrkscllcr is crinrinally lisblc without knowledgc ofthe contents and the ordinance
1E8ld.
Sec.4 ART. III _ BILL OF RIGHTS
ent": "... Itching,longing; uneasy with desire or longing; of persons,
having itching, morbid, or lascivious longings; of desire, curiosity, or
propensity, lewd ... "?Ee It likewise accepted the definition of obscenity
suggestea in the American Law Institute's Model Penal code, s. 207.10
(2):
considered as a whole, its pre-
... tAl thing is obscene if,
dominant appeal is to prurient interest, i.e., a shameful or morbid
interest in nudity, sex, or excretion, and ifit goes substantially be-
yond customary limits of candor in description or representation
of such matters. ...7e0
These explanations and sub-explanations, however, do not serve
as convenient guides for the classification of material presented for ad-
judication. For this reason, courts have invariably resorted to various
iests in the form of verbal formulae by means of which they evaluate
the ,.obscene" contents of a piece of writing. In 1868, in the English
case of Regi na v. Hicklin, which arose out of a prosecution for obscene
libel for the publication of an anti-Catholic piece entitled "The Confes-
sional Unmasked," Lord Cockburn wrote out the verbal formula now
known as the Hicklin rule:
I think the test of obscenity is this, whether the tendency
of the matter charged as obscene is to deprave and comrpt those
whose minds are open to such immoral influences, and into whose
hands a publication of this sort may fall.?n'
18eld.
lnld
D'L.R.3 e.8.360 (1886). Forpurposes of criminal prosecution,the English practice seems
to be different from the American. In the former, there is a presumption that the accused
intended
thc consequences of his act, The presumption, however, is not irrebuttable." The presumption
.f intention is not a proposition of ordinary good sense." (Hosegood v. Hosegood I T.L-R. 735
( 1950). One judge expreises this presumption thus: "... when, from the act committed, an immedi-
by
flte intention of a particular character would be implied, the party doing the act is not exempted
upon
rcuson of some other paramount intention of a different description, which actually operated
his mind. The only question, therefore, would appear to be, what is the intention
which may fairly
ht: implied from tire act of offering for indiscriminate sale a work dealing with subjects of a filthy
N Moo-
nurur;. (Steele v. Brannan L.R. 7 C.P.261,2'11[ l9?2]). See J.E. Hell Wpnvs, Oasctnm
t;px Eucusrr Ltw20 LAWAND CONTEMPORARY PROBLEMS 634-5 (1955).American law,on
thc other hand, rcquires of the prosecution a showing of scienter. The reason: "By dispensing
with
seller, the ordinance
runy rcquircmcnt ot knowledge ()f the contents of the book on the part of the
For
t"n.l* ti, i,n1r,r*" r sevcrc limitution on fhe public's access to constitutionally protected matter'
fulfills its
lrc will fcnd to rcslrict the brxlks hc sclls to thosc hc has inspoctcd: and thus the state
will
lxrrgrsc.
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
The Hicklin rule was adopted by some American courts and ig-
nored by many. The chief criticism leveled against it was that, by mak-
ing the minds of susceptible persons the gauge for censorauitity or
non-censorability of materials, the rule reduced adult reading ..to the
standards of a child's library in the supposed interest of a salacious
few." Hence, this aspect of the Hicktin rule was finally rejected by the
u.S. supreme court in Butler v. Michigan speaking for a unanimous
court, Mr. Justice Frankfurter said that to quarantine.,the general read-
ing public against books not too rugged for grown men and women in
order to shield juvenile innocence" is "to bum the house to roast the
pig."tsz The gauge which many courts found more acceptable was
the
"average" or "normal" person. Judge woorsey describid such a per-
son as one "with average sex instincts what the French would call
l'homme moyen sensuel who plays, -in this branch of legal inquiry,
- reagent as does the 'reasonable
the same role of hypothetical
man' in
the law of torts and 'the learned man in the arts' on question of inven-
tion and patent law."7e3
The Hicklin rule, moreover, as adopted by some American courts,
admitted the "isolated passages test," i.e., a book could be rejected on
the basis of isolated obscene passages without regard to the total dffect
of the entire work. Already, in 1933, Judge Augustus N. Hand force-
fully and explicitly repudiated this rule:
while any construction of the statute that will fit all cases is
difficult, we believe that the proper test of whether a given book
is obscene is its dominant effect. In applying this test, relevancy
of the objectionable parts to the theme, the established reputation
of the work in the estimation of approved critics, if the book is
modern, and the verdict of the past, if it is ancient, are persuasive
pieces ofevidence; for works ofart are not likely to susiain a high
position with no better warrant for their existence than their ob-
scene content.Tea
have imposed a restriction upon the distribution of constitutionally protected
matter as obsccnc
literature." Smith v. California,36l U.S. l4Z, 153 (1959).
7e2352rJ.5.380,
383 (1957). The statute declared unconstitutional was one which banned
books which contain "obscene, immoral, lewd, lascivious language,
or descriptions, tending ut
incite.minors to violent or depraved or immoral acts, manifestly tinding to the
corruption of the
morals of youth.
7e3U.S.
v. One Book called.,Ulysses," 5 F. Supp. 1g2, lg4 (1934).
7e4ld. Aff'din.'2F.2d
705 (2d circ. tsr+),70g. see arso lrnsrnr nxo M.Lunn, Lnru.
ruRE AND ntr Ltw or oascnxnv AND rHE cousrnrrrutN,3s MlNNEsorA
1,. REv. 29:i, 327-g.
Sec.4 Sec.4 ART. III _ BILL OF RIGHTS
The supreme court put an end to all doubts by branding the "iso-
tated passagis test" as unconstitutionally restrictive of the freedom of
,p"".h and the press in that it "might well encompass material legiti-
mately treating of sex."?e5
with the..susceptible person test'o and the "isolated passages test"
of the Hicklin rule rejected , the Roth and Alberts opinion adopted as
its own a test which many American courts?eu had already been using:
"whether .to the average person applying contemporary community
standards, the dominant theme of the material taken as a whole appeals
to prurient interest."'n' The judge's instruction to the jury in the Roth
case, reproduced by the Supreme Court, explains the test well:
The test is not whether it would arouse sexual desires or
sexual impure thoughts in those comprising a particular segment
of the community, the young, the immature or the highly prudish
or would leave another segment, the scientific or the highly edu-
cated or the so called worldly-wise and sophisticated indifferent
and unmoved. ...
The test in each case is the effect of the book, picture or pub-
lication considered as a whole, not upon any particular class, but
upon all those whom it is likely to reach. In other words, you de-
termine its impact upon the average person in the community' The
books, pictures and circulars must be judged as a whole, in their
entire context, and you are not to consider detached or separate
portions in reaching a conclusion. You judge the circulars, pictures
and publications which have been put in evidence by present-day
standards of the community. You may ask yourselves does it of-
fend the common conscience of the community by present-day
standards.
In this case, ladies and gentlemen of the jury, you and you
alone are the exclusive judges of what the common conscience
of the community is, and in determining that conscience you are
to consider the community as a whole, young and old, educated
and uneducated, the religious and the irreligious-men, women and
children.tos
'etRoth v. U.S.,354 LJ.S. at 4tt9
t%See id.li)otnote 26.
,ut
ld,
'erll. ut 41X).
 302 THE 1987 CONSTITUTION Sec.4
OF THE REPUBLIC OF THE PHILIPPINES
In 1959, the u.s. Supreme court added a further refinement to the
Roth-Alberts rule. The court of Appeals had upheld the banning of the
French movie version of H.D. Lawrence's "Lady chatterley's Lover"
because, although not obscene, it "alluringly portrays adultery as proper
behaviour" and as "right and desirable for certain people under certain
circumstances." The supreme court accepted these findings?e but re-
fused to ban the picture. It did not agree with the holding Jf th" lo*",
court that a picture which advocates an idea "which is contrary to the
moral standards, the religious precepts, and the legal code of the citi-
zenry" could be banned.8m Mr. Justice stewart, writing for the court,
said:
This argument misconceives what it is that the Constitution
protects. Its guarantee is not confined to the expression of ideas
that are conventional or shared by a majority. It protects advocacy
of the opinion that adultery may sometimes be proper, no less than
advocacy of socialism or the single tax. And in the realm of ideas
it protects expression which is eloquent no less than that which is
unconvincing.sot
The Court, however, admitted two limitations to this rule: (l) The
advocacy must not be conducted in a manner that is itself obsc ene; (2)
Such advocacy, to be constitutionally protected, must not amount to
incitement to immediate illegal action.so2
To sum up, then, by the Roth-Alberts opinion three rules were
definitely established: (1) Appeal to prurient interest must be measured
by the effect of the work not on susceptible persons but on the average
person; (Z)The material must exceed the limits of tolerance imposed by
contemporary standards of the community with respect to freedom of
expression in matters concerning sex; (3) The material must be judged
by its dominant theme as a whole and not by isorated passages. A rorttr
rule was added by the Kingsley case; (4) Mere advocacy of a behavior
which is immoral by contemporary standards is also constitutionally
protected, provided such advocacy is not itself obscene and does not
amount to incitement to immediate illegal action.
TeeKingsley pictures
v. N.y. Regents,360 U.S.694,6g8 (1959).
mld.
8otld. at
689.
8021d.
In other words, ifthe advocacy itselfis not conducted in a manner that is ()bsccnc,
the "clear and present danger rule" must be applicd. But when the ativocacy is itscll'ubsccnc, .,thc
clear and present danger rule" has no placc hccuusc obsccnity is not constitutionully prolcctcrl.
III - BILL OF RIGHTS 303
Sec.4 ART.
While Roth, however, prescribed the average person as the hypo-
thetical reagent for testing obscenity, a further refinement was added by
Ginsberg v. New Yorkso3 where the court held that "it was not irrational
for the legislature to find that exposure to material condemned by the
statutes isharmful to minors." Moreover inGinzberg v. United States,*
the Court upheld the conviction of a publisher not because of the kind
of books and periodicals he sold but for the manner in which he adver-
tised his wares. The Court said, "where the purveyor's sole emphasis is
on the sexually provocative aspects of his publications, that fact may be
decisive in the determination of obscenity."'o'
Nine years after Roth,in Memoirs v. Massachusetts,8$ the court
reformulated the test in a manner that sharply departed from Roth in the
direction of greater liberality. The plurality opinion held'807
three elements must coalesce: it must be established that (a) the
dominant theme of the material taken as a whole appeals to a pru-
rient interest in sex; (b) the material is patently offensive because
it affronts contemporary community standards relating to the de-
scription or representation of sexual matters; and (c) the material
is utterly without redeeming social value.
The departurefromRothwas in the third element of the test. while
under Roth obscenity was presumed to be "utterly without redeeming
social value ," Memoirs required that to prove obscenity it must be af-
firmatively established that the material is "utterly without redeeming
social value."
Barely seven years later, the Court admitted that the Memoirs test
was unworkable. In Miller v. Califurnia,*'the Court said: "We do not
adopt as a constitutional standard the'utterly without redeeming social
value' test of Memoirs v. Massachusetts ... thatconcept has never com-
rnanded the adherence of more than three Justices at one time'" The
plurality opinion then proposed a revised test.8.e
Kr190 U.S. 629, 64 I ( 1 968).
er383 U.S.463 (1966).
*itld. at 4'10.
u"383 U.S.4l3(1966).
u'r/r/. ut 4lll.
il'r4tJ (J.S. 15,24 25 ( l97l).
trPlrl. lttlics ruklctl.
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
The basic guidelines for the trier of facts must be: (a) wheth_
er "the average person, applying contemporary community stan_
dards" would find that 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 .
In addition to the formulation of a revised test for obscenity, Mill-
er also clarified the meaning of "community standard s." Miller said that
although
fundamental First Amendment limitations on the powers of the
State do not vary from community to community ... this does not
mean that there are, or should or can be, fixed, uniform national
standards of precisely what appeals to the ..prurient interest,' or is
"patently offensive." These are essentially questions of fact, and
our nation is simply too big and too diverse for this Court to rea_
sonably expect that such standards could be articulated for all 50
States in a single formulation. ... To require a State to structure
obscenity proceedirigs around evidence of a national..community
standard" would be an exercise in futility.8tO
The Miller doctrine was substantially followed for movies in
Gonzales v. Kalaw but the Philippine court also noted that stricter rules
could be followed for television.s' American jurisprudence has also al-
lowed stricter rules for radio because of its pervasive quality and be-
cause of the interest in the protection of children.8r, Likewise, stricter
rules have been allowed for speech in schools because of the nature of
the community that is involved and the relationship between school and
parents.sr3 Allowable likewise zoning regulations which affect indecent
shows.s'4
8told. at
30.
Elll37 scRA 117 (1985).ln pita
v. court of Appeals, G.R. No. 80806, october 5, 19n9.
the Court did not offer standards but said that for the purpose of deterr,rilirlg whether tu issuc ;r
warrant for the seizure of obscene publications, the authorities must colivlnce the c()urt thal thc
materials sought to be seized are "obscene," and pose a clear and present danger of an evil suhstarr
tive enough to warrant State interference and action. Using his sound discretion, the.judge rrrust
determine whether the material is obscene. But if obscenity is not protected speech, why :rppcll lo
the clear and present danger test?
8r2FCC v.
Pacifica Foundation,438 U.S. 726 (197g).
8r3Bethel sch. Dist.
v. Fraser, 4?8 u.s. 675 ( l9g6); Hazelwrxxl sch. Dist. v. K ulrrrcie r.
u.s.260 (1988).
8ra8'.g.,
Renton v. Playtintc'l'hcutcrs, 475 I I.S. 4l ( 1986).
Sec.4 ART. III - BILL OF RIGHTS
Except for the Kalaw case, however, obscenity cases have gener-
ally eluded the SuPreme Court.
How long the Miller rule can last may be gauged from the precari-
ous rnajority that approved it. It is, at any rate, another expression of
the
realizaaion that "in the area of speech and press the courts must always
remain sensitive to any infringement on genuinely serious literary, ar-
tistic, political, or scientific expression. This is an area in which there
are few eternal verities."8r5
should also be added that the Miller modification does not
It
change the rule, accepted tn stanley v. Georgia,s'6 that an individual
has
a right to possess obscene material in the privacy of his home. stanley
,e.ognized "the right to satisfy [one's] intellectual and emotional needs
in G privacy of his home."sli The Constitution extends special safe-
guards to the privacy of the home. But the zone of privacy that Stanley
protected does not extend beyond the home. viewing obscene films in a
commercial theater open only to the adult publicsr8 or transporting such
films or similar obscene material in common carriersEre is not covered
by the Stanley protection.
The arrival of the Internet has begun to spawn a new class of cases
(Jnions'o passed upon the
0n obscenity . Reno v. American civit Liberties
constitutionality of two provisions of the Communications Decency Act
of 1996 (CDA orAct) which sought to protect minors from harmful ma-
tcrial on the Internet. The Act criminalized the "knowing" transmission
()l'"obscene or indecent" messages to any recipient under 18 years of
lge, and prohibited the "knowin[g]" sending or displaying to a person
runder 18 of any message "that, in context, depicts or describes, in terms
patently offensive as measured by contemporary community standards'
scxual or excretory activities or organs." The Act provided affirmative
tlcl'cnses for those who take "good faith, ... effective ... actions" to re-
strict access by minors to the prohibited communications and those who
r.cstrict such access by requiring certain designated forms of age proof,
srrch as a verified credit card or an adult identification number.
----
""t
3rn:194"t
ZL
U.li. 557 ( 1969).
*r'l</. itt 5(r5.
,l l{,1 *r*l';trisAtlttll lltcllct l v. Slatorr'41 l ti S 49(1973)'
*r,,lrritctl Stutes v. ()ritg,.ll t ll.S, I 19 ( 197.1).
xruNil (l(r \l I l)tr,irk.tl lrrrrr..t(r, l()()7.
 THE I98? CONSTITUTION Sec.4
OFTHE REPUBLIC OFTHE PHILIPPINES
The law was declared unconstitutional largely because the broad
and vague sweep of the content-based prohibition tended to ban materi-
al not suitable for minors but to which adults have a right of access. The
Court acknowledged the right of the state to take measures protective
of minors, but affirmed that it cannot be done to the detriment of those
who have a right to certain kinds of material. This was an application of
the "doctrine of overbreadth" which says that that "a governmental pur-
pose may not be achieved by means which sweep unnecessarily broadly
and thereby invade the area of protected freedoms."
14. Miscellany on Freedom of Expression.
Some isolated decisions serve to fill out the picture of freedom of
expression in the Philippines.
Sotto v. Rui7,s2t a I92I decision, is the only one on the use of the
mails. The case arose out of the provision in the Administrative Code
prohibiting the use of the mail for libelous material. Although the deci-
sion of the Director of Posts refusing mailing privileges to the newspa-
per The Independent was reversed by the Supreme Court, the decision
may be considered a victory for the Director of Posts. It acknowledged,
even in this delicate matter of censorship, the presumption of the cor-
rectness of official action. "The rule is, (and we go only to those cases
coming from the U.S. Supreme Court and pertaining to the U.S. post-
master-General), that the courts will not interfere with the decision of
the Director of Posts unless clearly of opinion that it was wrong."rz:
Mortera v. Court of Industrial RelationsE23 placed picketing under
the protection ofthe freedom of speech clause. Hence, peaceful picket-
ing cannot be curtailed even in the absence of employer-employee rela-
tionship.'ro However, courts are not without power to localize the sphere
of communication and demonstration to parties to the labor dispute and
to insulate establishments and persons having no industrial connection
or having an interest totally foreign to the context of the dispute. Thus,
er4l Phil.468 (1921).
E22Id.
at 470.The U.S. cases relied upon were Bates and Guild Co. v. payne, 194 U.S. l06
(1904); Smith v. Hitchcock,226 U.S.63 (1912); Masses Publishing Co. v. patten,246F.24 (tgt7\.
E2379
Phil.345 (1945).
E2aDe
[.eon v. National Labor Union, 100 Phil. 789. 79 l-2 (1957\. Atso philippinc Asscrcia-
tion of Frcc l,abor Unions v. Baror,99 Phil. lU)tl (1958).
Sec.4 ART. III _ BILL OF RIGHTS
in Philippine Association of Free Labor unions (PAFLU) v. Cloribel,"'
tt cou.t said that picketing that blocked the common passageway of
"
a building, the only ingress and egress used by all the occupants of
the building, some of whom were "innocent bystanders" in the dispute,
could be regulated. The doctrine, however, is now clear that the consti-
tutional right embraced in freedom of expression precludes any blanket
prohibition against picketing.E,6 There has thus been an undeviating ac-
ceptance of the doctrine enunciated in the American case of Thornhill
v. Alabama.s"
Two issues on freedom of speech as applied to labor disputes were
treated in Insular Life Assurance co., Ltd. Employees Association-
NATU v. Insular Life Assurance co., Ltcl.828 A letter of management to
striking employees containing promises of benefits in order to entice
them to return to work and another letter containing threats to obtain
replacements if they did not return to work were characterized as unfair
labor practice not protected by the free speech clause'82e
Revelations made by a union man, however, about the finances
of the company were justified under the free speech clause. The court
said:
But assuming arguendo that Tongos indeed revealed the
trueexpensesofGonzales'trip-whichtherespondentsnever
denied or tried to disprove his statements clearly fall within
-
the sphere of a unionist's right to discuss and advertise the facts
involved in a labor dispute, in accordance with Section 9(aX5) of
RepublicAct8T5,whichguaranteestheuntrammeledexerciseby
,t iting employees of the right to give "publicity to the existence
of, or the fact involved in any labor dispute, whether by advertis-
ing, speaking, patrolling, or by any method not involving fraud' or
violence."Indeed,itisnotonlytheright,itisaswelltheduty'of
every unionist to advertise the facts of a dispute for the purpose of
'ffi*h 28, 1969; Republic Flour Mills Workers Association v. Reyes, L-21378,
N0vcmber 28, 1966.ln People v. Barba,L-27615-16, September 30, 1969'
picketingrrhich re-
of two to leave the premises for more than twenty-four hours was
sultcd in the inability employees
rrot considered slight ille8al detention under the Penal Code'
*r,,SccurityBank Finployccs tJnion-NATU v. Bank and Trust Co., L-28539,April 30' 1968.
Nr?t l0 [J.s. tttt ( 1940).
f1N:t7 S('iRA 244 ( l97l).
N''l'hcuuthorilicsr.iicrlwcrr.: Nl.Rllv.('lclrrlieltl ('hccst(\t,lnc.'213I;2d70:3lAm'Jur'
1.14: Nl.Rll v. (ioit{v('o,?l I lr,ltl llt; 15 Al'l{ 2(l 422'
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
informing all those affected thereby. In labor disputes, the combat-
ants are expected to expose the truth before the public to justify
their respective demands. Being a union man and one of the strik-
ers, Tongos was expected to reveal the whole truth on whether or
not the respondent companies were justified in refusing to accede
to union demands. After all, not being one of the supervisors, he
was not a part of management. And his statement, if indeed made,
is but an expression offree speech protected by the Constitution.
In the post-EDSA years, the court has also been solicitous about
the freedom of sequestered media. Thus, where the board of directors
of media corporations have become operative, the Board of Adminis-
trators earlier imposed by government on the corporation is excluded
from administration of the corporation. "The reason for its existence
has ceased. This view is bolstered by the fact that Broadcast city is
not a purely commercial venture but a media enterprise covered by the
freedom of the press provision of the constitution, and that under our
ruling in Liwayway Publishing,Inc., et al.v. pCGG,$o may not lawfully
intervene and participate in the management and operations of a private
mass media to maintain its freedom and independence as guaranteed by
the Constitution (Art.XVI, Sec. II, 1987 Constitution).,,au
ln Tolentino v. secretary of Finance,83, the philippine press Insti-
tute challenged the provision in the Value Added rax Law, Republic
Act7716, which withdrew its VAI exemption. Before R.A. No. 27l6,
among the transactions exempted from VAI were:
(0 Printing, publication, importation or sale of books and
any newspaper, magazine, review, or bulletin which appears at
regular intervals with fixed prices for subscription and sale and
which is devoted principally to the publication of advertisements.
The Philippine Press institute did not claim immunity from gen_
eral laws; but it claimed that the deletion of the provision had singled
out the press for discriminatory treatment because broadcast media still
enjoyed exemption. The Court answered:s3l
Es160 SCRA 716 (1988).
83rBenedicto v.
Board of Administrators,20T SCRA 65g,666-667 (lgg2)
m,235 SCRA
630 ( 1994).
tltld. nt 6'7'l -6'18.
Sec.4 Sec.4 ART. III _ BILL OF RIGHTS 309
We have carefully examined this argument, but we are un-
able to find a differential treatment of the press by the law, much
less any censorial motivation for its enactment. If the press is now
required to pay a value-added tax on its transactions, it is not be-
cause it is being singled out, much less targeted, for special treat-
ment but only because of the removal of the exemption previously
granted to it by law. The withdrawal of exemption is all that is
involved in these cases. Other transactions, likewise previously
granted exemption, have been delisted as part of the scheme to
expand the base and the scope of the VAI system' The law would
perhaps be open to the charge of discriminatory treatment if the
only privilege withdrawn had been that granted to the press. But
that is not the case.
As to broadcast media, the Court observed:83.
The argument that, by imposing the VAI only on print media
whose gross sales exceeds P480,000 but not more than P750'000'
the law discriminates is without merit since it has not been shown
that as a result the class subject to tax has been unreasonably nar-
rowed. The fact is that this limitation does not apply to the press
alone but to all sales. Nor is impermissible motive shown by the
fact that print media and broadcast media are treated differently'
The press is taxed on its transactions involving printing and publi-
cation, which are different from the ffansactions of broadcast me-
dia. There is thus a reasonable basis for the classification.
Finally, a word about billboards on a subject not touched in the
earlier billboard case of Churchill v. Rafferty"s but which became an
issue when the Metropolitan Manila DevelopmentAuthority (MMDA)
went on a rampage of dismantling billboards along the major highways.
Billboards are not just property. They speak. They even shout. They
are used to advertise not only goods and services but also political and
religious ideas.
The expression of political and religious ideas occupy a preferred
rank in the hierarchy of constitutional rights. But even ideas may be
subject to "time, place, and manner" regulation. Our law has done this
with campaign speeches during the election period. Political speech
r,'lrl. nt 679-(1110.
i'r32 l)hil. 5lt0 ( l9l())
 310 THE 1987 CONSTITUTION Sec.4
OFTI{E REPUBLIC OFTHE PHILIPPINES
during the election campaign period is considered subject to stricter
regulation for the purpose of maintaining a free and orderly election and
equality among candidates. For this purpose jurisprudence recognizes
special regulatory powers of the commission on Elections during the
election period.
In general, however, the content of billboards, whether built on
public or private property, when they deal with political or religious
matters can be interfered with only under the strict ..clear and present
danger ruIe."
15. Assembly and petition.
In his commentary on the united States constitution, corwin
gives the English background of the right of assembly and petition:
The right of petition took its rise from the modest provision
made for it in chapter 6l of Magna Carta (1215).E36 To this meager
beginning Parliament itself and its procedures in the enactmeniof
legislation, the equity jurisdiction of the Lord Chancellor, and pro_
ceedings against the Crown by .,petition of right,, are all in some
measure traceable. Thus, while the King summoned parliament'
for the purpose of supply, the latter-but especially the House of
Commons-petitioned the King for a redress of grievances as its
price for meeting the financial needs of the Monarch; and as it
increased in importance it came to claim the right to dictate the
form of the King's reply, until in l4l4 Commons boldly declared
themselves to be "as well assenters as petitioners." Two hundred
and fifty years later, in 1669, Commons further resolved that every
commoner in England possessed..the inherent right to prepare and
present petitions" to it "in case of grievance,', and of Commons
"to receive the same" and to judge whether they were ..fit" to be
received. Finally chapter 5 of the Bill of Rights of 16g9 asserted
the right of the subjects to petition the King and "all commitments
and prosecutions for such petitioning to be illegal.',mz
836Here it is recited in part: "That if we, our justiciary, our bailiffs, or any qt'our olliccrs,
shall in any circumstances have failed in the performance ofthem toward any per*on,'r shull
have broken through any ofthese articles ofpeace and security, and the of'fense bcnotilictl
to linrr
barons chosen out of the five-and-twenty before mentioned, the said four barons shull
rcpuir ro ux,
or our justiciary, of we are out of the realm, and laying open thc gricvances. shull ptiritil
tg huvc
it redressed without delay."
8rr
| 2 Encyclopcdia of'thc Srrcinl Scit nccs, 9lt ( l9l4 ).
Sec.4 ART. III _ BILL OF RIGHTS 311
Historically, therefore, the right of petition is the primary
right, the right peaceably to assemble a subordinate and instrumen-
tal right, as if Amendment 1 read: "the right of the people peace-
ably to assembly" in order /o "petition the government"'83t
This understanding of the right of assembly and petition is re-
flected in the 1876 case of United States v. Cruilcshanft.$e Defendants
in the case were charged with hindering and preventing citizens from
freely exercising their right of assembly. The indictment was declared
by the Supreme Court to be defective because it did not specify that
the assembly was for the purpose of petitioning the government.m As
American jurisprudence, however, has developed, it has recognized a
right of assembly independent of the political right of assembly in order
to petition. In De Jonge v. oregon,s4t the Supreme court affirmed, "The
right of peaceable assembly is a right cognate to those of free speech
und fr""-pt"ss and is equally fundamental." Thus, what in Philippine
jurisprudince would be subsumed under the right to form associations
ip""in"my guaranteed under Article III, Section 8, is, in American ju-
risprudence placed under the protective mantel of the right of assembly
and petition.
Finally, since the right of assembly and petition is equally funda-
mental as freedom of expression, the standards for allowable impair-
ment of speech and press are also those for assembly and petition.
Discussion of this subject in Philippine jurisprudence might well
begin with U.S. v. Apurad.o*, which involved a spontaneous gathering
of iome five hundred men to demand the ouster of certain municipal of-
ficials. No permit was involved. But the significant point was that, in a
prosecution for sedition, the court, invoking the right of assembly and
petition, was willing to allow for a certain amount of disorder:e3
It is rather to be expected that more or less disorder will
mark the public assembly of the people to protest against griev-
E3EUnited States v. cruikshank,92 U.S.542,552 (1876) reffects this older view.
Eteld. at 542 (1876).
Batld. al 552.
84r299 U.S. 353, 364 ( 1937).
i47 Phil.422(tqt7).
satltl. ut 426.'I'hc mceting was actually peaceful. Evidence showed that the men were un-
nriltctl. cxccpl lirr I rurnthcr who cttrricd cuncs-l'ashi<lnable at the time and carried by older men
wlro ncctlctl thctn.
 312 THE 1987 CONSTITUTION Sec.4 ART, III - BILL OF RIGHTS 313
OFTHE REPUBLIC OFTHE PHILIPPINES

ances whether real or imaginary, because on such occasions t'eel-

Then the Court cited with approval the following quotation from
ing is always wrought to a high pitch of excitement, and the greater
People v. Perez:8oj
the grievance and the more intense the feeling, the less perfect, as
a rule, will tle the disciplinary control of the leaders over their ir-
lW]hen the intention and effect of the act is seditious the
responsible followers ... If instances of disorderly conduct occur
constitutional guaranties of freedom of speech and press and of
on such occasions, the guilty individuals should be sought out and
assembly and petition must yield to punitive measures designed to
punished therefbr, but the utmost discretion must be exercised in
maintain the prestige of constituted authority, the supremacy of the
drawing the line between disorderly conduct and seditious conduct
constitution and the laws, and the existence of the State.
and between an essentially peaceable assembly and a tumultuous
uprising. Primicias v. Fugososos marked the first case on public meetings
decided under the 1935 Constitution. The case was a petition for man-
The limit to the tolerable amount of disorder was set in Evunge-
damus instituted by Cipriano Primicias, campaign manager of the Co-
lista v. Earnshaw,Bao the first leading case on public meetings. Evange-
alesced Minority Parties, against Mayor Valeriano Fugoso of Manila
lista, a communist leader, had requested permission to hold a meeting
to compel him to issue a permit for the holding of a public meeting at
inPlaza Moriones in Manila. The meeting was to be followed by a pa-
Plaza Miranda. The meeting was to be an indignation rally in protest
rade and the delivery to the Governor-General of a message from labor.
against the alleged fraud committed by the Liberal Party in the recent
Earnshaw, the city Mayor, refused permission and prohibited all com-
elections. In refusing the permit, the Mayor had given as his reason the
munist meetings. Previous to this, meetings had been had with prior
fact that "there was a reasonable ground to believe, basing upon [sic]
permission "in which seditious speeches were made urging the laboring
previous utterances and upon the fact that passions, specially on the part
class to unite by affiliating to the communist party of the philippines
of the losing groups, remain bitter and high, that similar speeches will
in order to be able to overthrow the present government, and stirring up
be delivered tending to undermine the faith and confidence of the peo-
enmity against the insular and local police fbrces by branding the mem-
ple in their government, and in the duly constituted authorities which
bers thereof as the enemies of the laborers and as tools of the capitalists
might threaten breaches of the peace and a disruption of public order."*n
and imperialists for oppressing the said Infe1s1s."sas In upholding the
In rejecting the Mayor's contention, the Court said that the right of the
Mayor's refusal, the Court said.s46
applicant to a permit was subject only to the Mayor's "reasonable dis-
[It] must be considered that the respondent mayor, whose cretion to determine or specify the streets or public places to be used for
sworn duty it is "to see that nothing should occur which would the purpose, with a view to prevent confusion by overlapping, to secure
tend to provoke or excite the people to disturb the peace of the convenient use ofthe streets and public places by others, and to provide
community or the safety or order of the Government,,'did only the adequate and proper policing to minimize the risk of disorder."8so It re-
right thing under the circumstances. ... jected the notion that "comfort and convenience in the use of streets or
Instead of being condemned or criticized, the respondent parks [was] the standard of official action."ssr It adopted as its own the
mayor should be praised and commended for having taken a concurring opinion of Justice Brandeis in Whitney v. Califurnia'8s2 "f6
prompt, courageous, and firm stand towards the said Communist justify suppression of free speech there must be reasonable ground to
Party of the Philippines before the latter could do more damage by fear that serious evil will result if free speech is practiced. There must
its revolutionary propaganda, and by the seditious speeches and
utterances of its members.
e/45 Phil. 599,605 ( 1923), cired id. at262
3'rNl30
l,hil. 7 I ( l94lt).
*r"/r/.:tl ll7.
8457 Phil. 255 (1932)
N"'ll . ;rl 77 .
sasId
. at 259. n'r/r/. itl lJ'/.
la"ltl. itt 260 l.
""1/'l t'.S l\/ ( l().)/),( ilc(1,.r.
314 THE 1987 CONSTITUTION Sec.4
OFTHE REPUBLIC OFTHE PHILIPPINES
be reasonable ground to believe that the danger apprehended is immi-
nent. There must be reasonable ground to believe that the evil to be
prevented is a serious one ..." Distinguishing the present case from the
Earnshnw case, the Court said:"3
The popular.meeting or assemblage intended to be held
therein by the Communist Party of the Philippines was clearly an
unlawful one, and therefore the Mayor of the City of Manila, had
no power to grant the permit applied for ...
Justice Briones, in his concurring opinion, even saw in the Earn-
shaw case an application of the clear and present danger rule.s54
lf Primicias v. Fugoso was an adoption of the "clear and pres-
ent danger rule" as against the "dangerous tendency rule" followed in
Evangelista v. Earnshaw, the next case,Ignacio v. Ela,sss marked a re-
turn to the Evangelista rule. ln Ignacio v. Ela,the members of Jehovah's
Witnesses had asked for a permit to hold a meeting at the Kiosft in the
public plaza of Sta. Cruz, Zambales. The Mayor granted permission
for the use only of the northwestern part of the plaza. In upholding the
qualified grant of the permit, the Court said'*u
It appears that the public plaza, particularly the kiosk, is lo-
cated at a short distance from the Roman Catholic Church. The
proximity of said church to the kiosk has caused some concern
on the part of the authorities that to avoid disturbance of peace
and order, or the happening of untoward incidents, they deemed
it necessary to prohibit the use of that kiosk by any religious de-
nomination as a place of meeting of its members. This was the
8531d.
at86.
Ev'El Alcalde Earnshaw revoco el permiso despues de una minuciosa investigaciltn en
que se habian encontrado pruebas indubitables no solo de que en los estatutos y documenkts dcl
partido comunista se preconizaba como uno de sus primordiales objetivos el denibar al gobicrrut
americano en Filipinas-gobierno que ellos calificaban de imperialista y capitalistico-sino que tle
hecho en mitines clebrados con anterioridad los comunistas habian pronunciado dis<'ursos < ldnt .y
positivamente sediciosos predicando una abierta rebelion e incitando un aftamiento pant lilx'ntr,
segun ellos, al proletariadofilipino de las garras del imperialismo capitttlista. Lt uccion, por
tanto, del Alcalde Earnshaw se fundo no en uno simple conjetura, en un mero tcmor () uy(nsi.ilr,
sino en la existencia de un peligro inminente, claro real, sustantivo-ingrcdientc utrittt y rurlr
cionalisimo que permite una salvedad suspensiva singularisimu cn el t.jcrcicitt tlc hts privilrgilt,t
constitucionales de que se trata. " Id. at 99. JJ Hilado and Tuason tlisscnlcrl at lO7'22 trnrl I 22 '/.
85599
Phil.347 (t956).
8r6/d. at 35O.
Sec.4 ART. III _ BILL OF RIGHTS
policy adopted by respondent for sometime previous to the request
made by petitioners. Respondents never denied such request but
merely tried to enforce this policy by assigning them the north-
western part of the public plaza. It cannot therefore be said that
petitioners were denied their constitutional right to assemble for,
as was said, such right is subject to regulation to maintain public
order and public safety. This is especially true, considering that
the tenets of petitioners'congregation are derogatory to those of
t}le Roman Catholic Church, a factor which respondent must have
considered in denying his request.
In his dissent, Justice Concepcion concurred in by Paras , C J.,
Reyes, A., and Reyes, J.B.L., first dismissed the special defense that
"religious assemblies or gatherings may not be held in public property"
as obviously false. He said'Es?
[P]ublic streets, boulevards, and thoroughfares are used, al-
most daily, forreligious processions in the Philippines. Masses and
other religious services are often held at the Luneta, the Quirino
Grandstand and the Rizal Memorial Stadium, in the City of Ma-
nila, as well as in other public property, such as penal institutions,
leprosaria, and army camps. So long as the use of public property
for religious purposes is incidental and temporary, and such as to
be reasonably compatible with the use to which other members
of the community are similarly entitled, or may be authorized to
make, the injunction in Section 23(3) of Article VI of the Constitu-
tion is not infringed.
Then, reassessing the history of previous cases, Concepcion thus
summed up:E58
The case of Primicias v. Fugoso,sse cited in the majority
opinion, is authority in favor of petitioners herein, for it applied
the clear and present danger rule, and no such clear and present
danger exists in the case at bar. It is true that said rule has not been
consistently adhered to by this Court, and that the same has, in
effect, shown its preference for the dangerous tendency rule. How-
ever, in every case in which the latter was applied, there had been a
tangible specific act of the party adversely affected thereby, which
8t?/r/. ut 3-54. citing Aglipuy v. Ruiz,64 Phil. 2Ol ( 1937).
t!r/r,I. ut 259-fl).
r!u80 I'htl. 7 I ( l94tt).
316 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
incited or tended to incite in a substantial manner a breach of the
peace. Thus, in People vs. Evangelista,s6} People vs. Nabong,su'
anld People vs, Feleo862 the defendants were found to have advo-
cated the overthrow of the government by the use of force. The
defendant in People vs. Perez863 had expressed himself publicly
in favor of beheading our then Governor-General Wood. In the
case of Espuelas vs. People of the Philippines86a this Court held
that the acts of Espuelas tended to stir up the people against lawful
authorities. In Evangelista vs. Earnshaws6s we upheld the refusal
of the Mayor of Manila to grant permit to the communist party
to hold further political meeting in said city, af-ter the members
of said party had in public meetings incited the people to rise in
arms against the government,for which reason several criminal
cases for sedition were filed against the leaders of said party who,
subsequently, were convicted of the crimes charged against them.
In the case at bar, it is not claimed that petitioners them-
selves, or their immediate associates, had ever performed any il-
legal or even improper act in preaching the tenets of their faith ...
After the Ela case, the next significant decision was Navarro v.
Villegas.'u6 The case arose outof the intensified student demonstrations
of 1969-1970. Student leader Navarro had asked Manila MayorAntonio
Villegas for a permit to hold a rally on a week-day atPlaza Miranda.
Against the background of recent student sponsored rallies which had
degenerated into some violence and disorder, the Mayor was willing
to allow a rally at Plaza Miranda on a Saturday, Sunday or holiday;
but for a week-day rally the Mayor offered the Sunken Gardens as an
alternative location. Navarro went to the Supreme Court for an order
to Villegas to allow a Plaza Miranda rally. Relying on Primicias v.
Fugoso,the Supreme Court in a brief resolution upheld Villegas saying
that the Mayor possessed "reasonable discretion to determine or specify
the streets or public places to be used for the assembly in order to secure
convenient use thereof by others and provide adequate and proper
8n57 Phil. 372 (1932), cited incorrectly as 5 I Phil. 254
86157
Phil.455 (1932).
86258
Phil.573 (1933).
86345 Phil.599.
8n90 Phil. 524 (t95t
).
86557
Phil. 255 ( t932).
rn6jl s('Rn 7ll ( l()70)
Sec.4 Sec.4 ART. III _ BILL OF RIGHTS 3t7
policing to minimize the risks of disorder and maintain public safety
4nd g1dg1."aou
Navarro v. vllegas was a brief resolution written "without preju-
dice to a more extended opinion" which never came. It therefore does
not present an adequate picture of the court's thinking. As the resolu-
tion stands, however, it is more like Ignacio v. Ela than primicias v.
Fugoso.It is unfortunate that the extended opinion never came, because
even Primicics itself, in its implication, if not in its result, bears re-
examination.
The result in Primicia.s was salutary in that, by the application
of the clear and present danger rule, fidelity to the constitutional pre-
cept was kept. However, it should be noted that while the clear and
present danger rule was applied to the action of the Mayor, no attempt
was made to examine the validity of the law upon which the Mayor
based his action. The supreme court said that there was no provision
in the ordinances of Manila regulating the holding of public meetings
at any street or public place but that the Mayor, by analogy, could rely
upon section 1119 of the Revised ordinances the pertinent portion of
which sud: "And provided, further,That the holding of any parade or
procession in any streets or public places is prohibited unless a permit
therefor is first secured from the Mayor, who shall, on every su"h o""a-
sion, determine or specify the streets or public places for the formation,
route, and dismissal of such parade or procession."s68 It is true that the
Supreme court understood this to mean that the Mayor was not vested
with unlimited discretion but only with discretion "with a view to pre-
vent confusion by overlapping, to secure convenient use ofthe streets
and public places by others, and to provide adequate and proper polic-
ing to minimize the risk of disorder."86e The standards for the Mayor's
exercise of discretion, however, are nowhere to be found in the ordi-
nance itself. In the language of cox v. Inuisiana,8?' "The situation is
thus the same as if the statute itself expressly provided that there could
only be peaceful parades or demonstrations in the unbridled discretion
of the local officials." The Mayor, as the ordinance stands, would ..be
guided only by [his] own ideas of 'public welfare, peace, safety, health,
^n1 ld.
idll0 Phil. at76-7'l
.
rNld. ul77 .
r^'179 [',S. J.t6 ( 1965),
318 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
decency, good order, morals or convenience'."8?r The ordinance thus
seems to overtax the constitutional mandate.
The Navarro case was the last Supreme Court case on assembly
and petition before martial law put an end to all political demonstra-
tions. A case, Philippine Blooming Mills Employees Organization v.
Philippine Bloorning Mills Co.,Inc.,E72 decided under martial law, might
be seen as indication that even in troubled times the Supreme Court, in
theory at least, still stood four square behind the Constitution. The case
started when the petitioner labor unions, against the wishes of man-
agement and in order to be able to stage a mass demonstration against
alleged abuses of local police, did not report for work. The Court of
Industrial Relations adjudged their "concerted act and the occurrence of
a temporary stoppage of work" a violation of the collective bargaining
agreement and upheld the dismissal of some union leaders.
The Supreme Court reversed the lower court decision and in the
process had to weigh the right of assembly and petition against the
property rights of management. Speaking through Justice Makasiar, the
Court said:8'3
As heretofore stated, the primacy of human right-freedom
of expression, of peaceful assembly and of petition for redress of
grievances-over property rights has been sustained.s?4 Emphatic
reiteration of this basic tenet as a coveted boon - at once the
shield and armor of the dignity and worth of human personality,
the all-consuming ideal of our enlightened civilization - becomes
our duty, if freedom and social justice have any meaning at all for
him who toils so that capital can produce economic goods that
can generate happiness for all. To regard the demonstration against
police officers, not against the employer, as evidence of bad faith
in collective bargaining agreement and a cause for the dismissal
from employment of the demonstrating employees, stretches
unduly the compass of the collective bargaining agreement, is "a
potent means of inhibiting speech" and therefore inflicts a moral
as well as mortal wound on the constifutional guarantees of free
expression, of peaceful assembly and of petition.875
8Tlshuttsworth
v.Birmingham,22L.Ed2nd162,l67 (1969),cited in 3l SCRAat 733.
E?251
SCRA 189 (t973).
811id. at 2O5 .
*?aM:rrsh v. Alabamt, 326 t I.S. 5O I :'I\rcker v.'l'cxls, 326 t l.S. 5 I 7.
s7'l'ickt'rirrg v. I}rxrnl ol' Iitluelt iorr, .y) I t I.li. 56.1, 574 ( I ()6lt).
Sec.4 Sec.4 ART. III - BILL OF RIGHTS
The case arose out of an incident which took place more than three
years before martial law was imposed, and the liberality with which the
Supreme Court treated it did not really materially affect the behavior of
the martial law authorities towards demonstrators.
The first martial law case was UNIDO v. COMELEC.S?6It touched
upon the restrictive power of the state. But UNIDO itself, instead of di-
minishing that restrictive power opened wider doors for state intrusion.
To the objection that the election period regulations on media imposed
by the COMELEC violated freedom of expression, the Court said:
Rather, it is our considered opinion and we so hold that if
such be the effect of the COMELEC regulations, it is because they
must have been contemplated to precisely constitute an exception
to freedom-of-speech-and-press clause on account of consider-
ations more paramount for the general welfare and public interest,
which exceptions after all would operate only during limited peri-
ods, that is, during the duration of the election campaign fixed in
the charter itself and/or by law.
Other cases did not involve confrontation with the state. PCIB v.
PHILNABANK EMPLOYEESsTT affirmed the legality of peaceful pick-
eting and declared that "it is far from likely that the language employed
[in labor disputes] would be both courteous and polite." There was also
reiteration of the rule that privileged communication yields to proof of
malicers and that pleadings in court, to be privileged, must be relevant
to the case.87e
Towards the end of the Marcos regime, however, and after the
assassination of Benigno Aquino, Jr., the Supreme Court showed oc-
casional sign of vigor. Retired Justice J.B.L. Reyes, in behalf of the
Anti-Bases Coalition, sought a permit from the Mayor of Manila for
the use of the empty field in front of the Luneta Grandstand and Roxas
Boulevard in front of the U.S. Embassy on October 26,1983,from 2 to
-5 p.m.The petitioners were sponsoring an International Conference for
General Disarmament, World Peace, and the Removal of All Foreign
o6l04 S('RA l7,3ti (April 3, lgtll).
8'lO5 S('RA 3 l4 (.luly 2, lgttl
).
*/iMr:rcixkr v. (ixrrt ol l;irst lnstancc, (i.R. No. 3tt753,
August 25, 1982.
'/uAtntttvil v. Jutlgc l)urisirttl, (i.R. No. ,192.51.|, Novcrnbcr 15, l9tl2; (iuticrrcz v. Abila,
,llrrutry lO. l(ltl2
320 THE 1987 CONSTITUTION Sec.4 Sec.4 ART. III _ BILL OF RIGHTS 321
OFTHE REPUBLIC OFTHE PHILIPPINES

Military Bases and proposed a March for Philippine Sovereignty and The presumption must be to incline the weight of the scales of justice
Independence, participated in by foreign and Philippine delegates. The on the side of liberty. If public authority is of the view that there is
march was to proceed from the Luneta to the gate of the U.S. Embassy such an imminent and grave danger of a substantive evil, the applicants
where a short program would be held. The Mayor refused the permit (1) must be heard on the matter. Thereafter, the decision of public authority,
because his of{ice \,vas "in receipt of police intelligence reports which whether favorable or adverse, must be transmitted to the applicants at
strongly militate against the advisability of issuing such permit at this the earliest opportunity. Thus, if so minded, they can have recourse to
time at the place applied fbr" and (2) because Ordinance No. 7295, in the proper judicial authority.s'
accordance with the Vienna Convention, prohibits rallies or demonstra-
The Court, however, tends to be protective of itself as shown by
tions within a radius of 500 feet from any foreign mission or chancery. a rule promulgated by the Supreme Court governing demonstrations
Should permit be granted?
in the vicinity of courts.ss2 Among the prescriptions was the following:
The Supreme Court found the vigor to say that permit should be
granted. In sum the Courl said: ( 1) to justify limitations on freedom of
Demonstrators, picketers, rallyists and all other similar
persons are enjoined from holding any activity on the sidewalks
assembly there must be proof of sufficient weight to satisfy the "clear
and streets adjacent to, in front of, or within a radius of two hun-
and present danger test;" (2) there was no showing that the distance dred (200) meters from, the outer boundary of the Supreme Court
between the chancery and the gate is less than 500 feet. And even if it Building, any Hall of Justice, and any other building that houses
were, the ordinance would not be conclusive because it still must be at least one (1) court sala. Such activities unquestionably intemrpt
measured against the requirement of the Constitution.s0 and hamper the working conditions in the salas, offices and cham-
bers oF the courts.
But what of the Philippine obligation under the Vienna Conven-
tion to protect the premises of embassies? The Court said that this must The validity of the resolution was challenged on at least two
be honored because the Philippines adheres to the generally accepted grounds. First, that it was an arrogation of legislative power thereby
principles of international law as part of the law of the land. However, violating separation of powers. Second, that it transgressed freedom of
observance of the obligation under the Convention does not preclude expression. Since in effect the challenge asked the Court to shoot its
application of the clear and present danger rule (which precisely is a own foot, the outcome perhaps should have been predictable.
way of measuring the degree of protection needed for safeguarding the
premises of embassies). The Court characterized the argument based on separation of
powers as "low watts" asserting against it what might be called its"high
Thereafter the Court proceeded to summarize the rules on assem-
wattage right to promulgate 'orules regulating conduct of demonstra-
bly and petition: The applicant for a permit to hold an assembly should
tions in the vicinity of courts to assure our people of an impartial and or-
inform the licensing authority of the date, the public place where anrJ
derly administration of justice." Quiet obviously the Court was also ap-
the time when it will take place. (If it is a private place, only the consent
pealing to its power to promulgate rules of procedure which, however,
of the owner or of the one entitled to its legal possession is requircd.)
according to the Constitution, "shall not diminish, increase, or modify
Such application should be filed well ahead in time to enable the public
substantive rights." In fact, to the contrary, the new constitution asserts
official concerned to appraise whether there may be valid objcctitlns
thc power of the Court to promulgate rules for the protection of rights.
to the grant of the permit or to its grant but to another public placc. /l
is an indispensable condition to such refusal or modifir:ation tfuil thc
ln thc Narvasa Court's view, however, it would seem, curtailment of
clear and present dang,er test be the standardfor the decision reuchcrl .

'^'l.ititrnilt! irr /{ai:: r,. (itnhut, (i.lt. Nrr. (r5(r()5. l)ct.crrrlrcr. l(). l98l ('l'hc corrcurring
sxoResolut ion, ./. Il J .. Ilryrs v. Mrtrr r /la.qrrtsirr4, ( i.R l.-(15.\6(). ( )ctol)('1 /f . I t)l'l I. I ixk'rrrl opittiorr ol li.r.lrirnkcc../ . is rvorllt lr.irrlirrl' )
riln M
crl opittiort. Novt'tttlrt't t), l()ll I. ',tl / O.t S('. lrrly /,1()()l,t
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
assemblies outside court premises do not diminish substantive rights
and may be done by the Court itself without waiting for Congress to act.
American practice, of course, is not normative of what we should
do; but it is interesting to compare how our Court has handled the prob-
lem with the manner in which the U.S. supreme Court has handled a
similar matter. The U.S. Supreme Court had occasion to deal not with
its own rule but with an act of Congress. The law involved said:
It shall be unlawful to parade, stand, or move in processions
or assemblages in the Supreme Court Building or grounds, or to
display therein any flag, banner, or device designed or adapted to
bring into public notice any party, organization, or movement.
The question raised was whether the curtailment on communica-
tive activity and assembly could be applied to "sidewalks" immediately
outside the Supreme Court grounds. The U.S. Court considered the pro-
scription unconstitutional when applied to sidewalks.*'The Court char-
acterized the sidewalks immediately outside the Supreme Court build-
ing as a "public place" like streets and parks historically associated with
the free exercise of expressive activities. They are considered without
more to be "public forums." The Court said: "In such places, the gov-
ernment's ability to permissibly restrict expressive conduct is very lim-
ited: the government [that is, Congress] may enforce reasonable time,
place, and manner regulations as long as the restrictions are content-
neutral, are narrowly tailored to serve a significant government inter-
est, and leave open ample alternative channels of communication." The
Court further said that the "sidewalks comprising the outer boundaries
of the Court grounds are indistinguishable from any other sidewalks
in Washington, D.C., and we can discern no reason why they should
be treated any differently. Sidewalks, of course, are among those areas
of public property that traditionally have been held open to the public
for expressive activities, and are clearly within those areas of public
property that may be considered, generally without further inquiry, to
be public forum property."
Our Court is more jealous in protecting courts from outside influ-
ence. The Guidelines it has issued cover not just the court premiscs
nor just the sidewalks immediately fronting courts but an arca up to a
**tt.lnitctl Statcs v. (iflrce .4(rl t,.S. l'71 ( l9ll.t).
Sec.4 Sec.4 ART. III _ BILL OF RIGTITS
radius of 200 meters from the outer boundary of courts. Conceivably
it can even cover private property neiu a courthouse. Incidentally, it is
also more extensive than the prohibited area for the sale of liquor in the
vicinity of schools! In justification the Court says: "It is sadly observed
that judicial independence and the orderly administration of justice
have been threatened not only by contemptuous acts inside, but also
by irascible demonstrations outside, the courthouses. They wittingly or
unwittingly spoil the ideal of sober, non-partisan proceedings before a
cold and neutral judge."
One might ask, however, whether the target of the rule is speech
or communication which can "spoil the ideal of sober, non-partisan pro-
ceedings before a cold and neutraljudge" orrather physical disturbance
which can disturb public peace and discombobulate the judicial mind.
The answer to this question might be found inWebb v. de Leon.Bs4 There
the question was about the kind of publicity or communicative activity
that can get in the way of due process. What the Court said of the De-
partment of Justice Investigating Panel can also be said of judges. The
Court said:885
Be that as it may, we recognize that pervasive and prejudi-
cial publicity under certain circumstances can deprive an accused
of his due process right to fair trial. Thus, in Martelino, et al. vs.
Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have
been unduly influenced, not simply that they might be, by the bar-
rage of publicity. In the case at bar, we find nothing in the records
that will prove that the tone and content of the publicity that at-
tended the investigation ofpetitioners fatally infected the fairnesi
and impartiality of the DOJ Panel. Petitioners cannot just rely on
the subliminal effects of publicity on the sense of fairness of the
DOJ Panel, for these are basically unbeknown and beyond know-
ing. To be sure, the DOJ Panel is composed of an Assistant Chief
State Prosecutor and Senior State Prosecutors. Their long experi-
ence in criminal investigation is a factor to consider in determining
whether they can easily be blinded by the klieg lights of publicity.
Indeed, their 26-page Resolution carries no indubitable indicia of
bias fbr it does not appear that they considered any extra-record
evidence except evidence properly adduced by the parties. The
{N'r(i.R. No. l2l2.l4,August
23. 1995.
N{'lrl. nl (r()l-6t)2.
324 THE I9STCONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
length of time' the investigation was conducted despite its sum-
mary nature and the generosity with which they accommodated
the discovery motions of petitioners speak well of their fairness.
At no instance, we note, did petitioners seek the disqualification of
any member of the DOJ Panel on the ground of bias resulting from
their bombardment of prejudicial publicity.
Government can also be over anxious in times of frequent anti-
government rallies. Thus was born what was called by the government
as "calibrated preemptive response" to demonstration and rallies. But
the Court in Bayan v. Ermitass6 said that calibrated preemptive response
had no place in the constitutional firmament and that the proper re-
sponse was "maximum tolerance" prescribed in Batas Pambansa 880
which is a codification of the JBL Reyes case. BP 880 also orders politi
cal units to set up freedom parks.
Src. 5. No r,lw sHALL BE MADE RESPEcTING AN ESTABLIsHMENT
oF RELIGIoN, oR IRoHIBITING TIrE FREE ExERcISp nrrnnor. Tnn
FREE EXERCISE AND ENJOYMENT OF RELIGIOUS PROFESSION AND
WORSHIP, WITIIOUT DISCRIMINATION OR PREFERENCE' SHALL FOREVER
BE ALLowED. No nrlrcrous rEST sHALL BE REQUIRED FoR THE
E)CER,CISE OF CIVI OR POLITICAL R,IGHTS.
1. Jurisprudence before the 1935 Constitution.
Under the Spanish Constitution of 1876, Catholicism was the state
religion and Catholics alone enjoyed the right of engaging in public
ceremonies of worship.'t'While the Spanish Constitution itself was not
extended to the Philippines, Catholicism too was the established church
in the Islands under the Spanish rule. As the established church, Cathol-
icism was protected by the Spanish Penal Code of 1884, which was in
effect in the Philippines. Thus, of the offenses enumerated in the chap-
ter of the Penal Code entitled "Crimes Against Religion and Worship,"
six specifically and solely referred to crimes against the state religion.
One of the immediate effects of the advent of the American con-
stitutional system in the Philippines was the denial to the Catholic
church of the privileged position it occupied under Spanish sovereignty.
*E6Bayan v. Ermita, G.R. No I 69tl3ti, April 25. 2m6.
rrTArticlc ll.
Sec.S Sec.5 ART. III - BILLOFRIGHTS
Justice Trent, speaking for the Court in U.,S. v. Balcorta,sss said that the
Philippine Bill of 1902 "caused the complete separation of church and
state, and the abolition of all special privileges and all restrictions there-
tofor conferred or imposed upon any particular religious sect." (The
separation, in fact, came earlier than the Philippine Bill, which merely
repeated the provision relative to religion in President McKinley,s In-
struction, which, in turn, merely implementedArticle X of the Treaty of
Paris guaranteeing that the territories ceded to the united states "shall
be secured in the free exercise of religion.") Necessarily, too, the new
constitutional system affected the Penal code's role as the bulwark
of Catholicism. Thus, in an obiter dictum in U.S. v. Smith,r'n Justice
Malcolm asserted that the classification in the Spanish penal Code of
Catholic Church officials as "persons in authority" for the purpose of
prosecution for "assault against persons in authority" had ceased to be
of any effect.
Corollary to the cutting down of the privileged position of the
Catholic church was the recognition of the equal position of other re-
ligions. Thus, the validity of marriages performed by priests and min-
isters of other religions, Christian and non-Christian, was recognized
in Adong v. Cheong Seng Gee.sso In a long disquisition, albeit obiter in
many respects, Justice Malcolm showed the leveling off of all religions
under the new sovereignty.'n,
The change in the constitutional system, however, did not mean
the adoption of an attitude of hostility to religion. The new sovereignty
was even liberal in the interpretation of tax exemption provisions in
favor of religious institutions, contrary to the generally accepted prin-
ciple of strictness in interpreting tax exemptions.se2 Neutral provisions,
moreover, found in the Old Penal Code, such as Article 223 which,
among other things, prohibited compelling a person to perform an act
ffin25 Phil. 2'13,276 (19t3).
88e39
Phil. 533, 536 ( I 919).
ns43 Phit. 43 (1922).
Eet
Id. at 54-5.
8e2Roman
catholic Church v. Hasrings,5 Phil. 701 (1906); yMCA v. collector of Intemal
Rcvenue, 3l Phil. 2 I 7 ( l9 I 6). ln Onlen da Prtdicctdrtres v. Metropolitan Water District, 44 Phil.
292.3O1"2 ( l92l), il was ht'ltl thll lhc privilcgc givcn kr thc l)ominican C)nlerol'getting free water
lrorn thc [ovcrnttlenl's Mclrtt;xrlil:trt Wrtcr l)islrict (li(l not violatc lho constitutional prohibition
on lhc tlsc ol govcnrntcttl ptopcrly bccttttse lhe privilcge was givt:rr in rtrttrrn lilr litn(l givcn to thc
MWI)
!g lb
326 THE 198TCONSTITUTION Sec.5
OF THE REPUBLIC OF THE PHILIPPINES
of worship or preventing him from performing an act of worship, con-
tinued to be enforced.se3
Another effect of the new system was the elimination of any insti-
tution which savored of union of church and state. It became necessary
to draw a proper line between what were civil property interests of the
Crown of Spain and religious trusts of the Catholic church, and between
civil functions of government officers and church functions of members
of religious organizations. In a statement made to the Pope, the then
Governor General Taft said:'e4
The transfer of sovereignty and all governmental property
rights and interests from the crown of Spain to the United States in
the Philippine Islands, contained in the Treaty of Paris, was a trans-
fer from a government between which and the Church of Rome
there had been in those islands the closest association in property,
religion, and politics, to a government which, by the law of its
being, is absolutely prevented from having such associations with
any church. To make the transfer effectual and, at the same time,
just, it is obvious that the proper line of division must be drawn
between what were really civil property interests of the Crown of
Spain and what were religious trusts of the Catholic Church; and
that all union of civil and clerical agencies for performance of po-
litical functions must end.
Thus, in Gonzales v. R.C. Archbishop,8es the Supreme Court re-
fused to interfere with an ecclesiastical decision making effective the
changes in the 1918 Code of Canon Law relative to qualifications for
ecclesiastical chaplaincy .In Verzosa v. Fernande3,8e6 the Court likewise
refused to apply the prohibition against religious tests for holding civil
and political office where the office involved was one in a cofradia, a
religious organization which under the Spanish regime required a royal
cedula for its legal existence. Finally, in Trinidad v. R.C. Archbishop of
Manila,"n' the Court declared that:
8e3U.S. v. Balcorta, supra,nole 2; U.S. v. Morales,3T Phil' 264 (l9l'l). A/so Peoplc v.
Reyes,60 Phil. 369 (1934).
SqREPORT OF THE SECRETARY OF WAR 237 O90D quoted in Ponce v' R.C. Apott-
tolic Church,2l0 U.S.322 (1908).
p55
I Phil. 420 ( 1928).
E%55 Phil.307 (1930). See also Verzosa v. Fcrnandcz.49 Phil.627 (1926).
'ut{tl 1'1.t1t. l31t I , lt94 ( 19.14).
Sec.5 ART. III - BILL OF RIGHTS
the second paragraph of Article 38 of the [old] Civil Code, provid-
ing that the Church shall be governed in the acquisition and pos-
session of property of all kinds by any agreement which may have
been entered into between the two powers [Spain and the Holy
Seel, and the Convenio Ley of June 24,1867 ,have been abrogated
as a consequence of the change of sovereignty, being inconsistent
with the principles of separation of church and state.
Concordats such as the Convenio Ley, according to the Court,
which regulate matters coming under the jurisdiction of church and
state, are possible only in regimes where church and state share a com-
mon interest in moral, social, religious and temporal matters.ses
It might be noted at this point that of all the organic acts made
applicable to the Philippines, only President McKinley,s Instruction
spoke of "real, entire, and absolute" separation of church and state. The
phrase "real, entire, and absolute" appeared neither in the philippine
Bill nor in the Autonomy Act. Nevertheless, it cannot be said that the
omission of the phrase both in the Philippine Bill and in the Autonomy
Act meant a rejection for the Philippines of the Jeffersonian "wall of
separation." Justice Trent, in fact, could say that the philippine Bill of
1902 caused the complete separation of Church and State."'re Moreover,
under the American Constitution, which does not contain the phrase
"real, entire, and absolute," separation that is "real, entire, and abso-
lute" has always been affirmed.
2. Free exercise and non-establishment of religion: in gen-
eral. *
The basic religion text of the 1935 Constitution was Section 1 (7)
of the Bill of Rights: "No law shall be made respecting an establish-
ment of religion, or prohibiting the free exercise thereof, and 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." At the 1934
Constitutional Convention, the basic provision itself was not a subject
of debate. The discussion focused on the provisions which Justice Lau-
rel had callcd "concessions ... indiscriminately accorded to religious
"''*/r/. ul ll() I .
Nrf'll !i. v lluLrrrtn. l5 I'hil lt
176

328 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
sects and denominations":m tax exemption of property devoted exclu-
sively to religious use,mr salary for priests and ministers in chaplaincy
service,s2 and optional religious instruction in the public schools.e03 The
basic provision was accepted without debate. Whether the absence of
debate indicated full agreement with the American provision or merely
reflected fear of Roosevelt's disapproval,'s the fact remains that the
1935 Constitution effectively transplanted the American provision and
earlier Philippine organic law and jurisprudence except to the extent
-
that they are modified, if indeed they are modified, by the "concessions
indiscriminately granted."
The 1973 Constitution preserved the basic 1935 text by reproduc-
ing it as Section 8 of Article IV. Likewise, the "concessions ... indis-
criminately accorded to religious sects and denominations" were pre-
served but with some modifications which will be noted in their proper
place. In addition, Article XV Section 15, borrowing the language of
President McKinley's Instruction and of Justice Trent,eos said: "The
separation of church and state shall be inviolable." In effect, therefore,
the 1973 Constitution preserved earlier church and state doctrine which
revolved around the free exercise and non-establishment clauses.
Except for some changes in the provision on religious instruction
in public schools,*u the 1987 constitution has preserved the old law in-
cluding the principle that "The separation of Church and State shall be
inviolable." An additional sentence, to read "The State, however, wel-
comes the cooperation of the church and religious bodies to promote
the well-being of its citizens," was rejected on the argument that, even
if salutary on its face, the language could be taken as an unnecessary if
not dangerous invitation to excessive entanglement of church with state
andvice versa.qT
mAglipay v. Ruiz,64 Phi1.2Ol,206 (1937).
slArt. VI, Sec. 22 (3) (1935).
mArt. VI, Sec.23 (3) (1935).
s3Art. XIV Sec 5 (1935).
rySeeBenNls,A Htsrontctttt'totuRrDrcALSTUDroFrnrPnupptut:Bttt.rttRrtrr
*525 Phil. at276.
sArticle XIV, Section 3(3) (1987).
sTThe sentence was proposed by Bishop Tcrxloro
lltctni untl rcsislcrl by l;ttlltct llt'rrrrrs
Session of Scplenrhcr 23, 1986.
Sec.5 ART. III - BILL OF RIGHTS 329
Sec.5
The twin clauses of free exercise and non-establishment express
an underlying relational concept of separation between religion and
secular government. The nature of the relational concept must constant-
ly be re-examined because the terms of the relation are not immobile
concepts. These terms afe, on one end, the human experience expressed
by the word "religion," and, on the other, the proper actions within the
domain of the state. Modern society is faced with the phenomenon of
expanding government reaching out its regulatory arm to an ever grow-
ing variety of areas of human action and the phenomenon of a growing
articulation and acceptance of an expanding concept of religion. Hence,
the two terms tend to come into conflict more often. Moreover, jurispru-
dence has brought into focus a built-in tension that exists between the
free exercise clause and the non-establishment clause, a tension never
perhaps thought of by the American formulators of the provision. Thus,
a literal interpretation of the provision does not suffice. Rather, the in-
terpretation, if it is adequately to meet the demands of modern society,
must be based not solely on the phraseology but especially on the so-
cietal values these provisions are intended to protect. This, in fact, has
been the approach followed by courts. And, while the constitutional
doctrine that has emerged does not enjoy the clean and simple lines that
satisfy the mathematically inclined legal craftsman, an attempt has been
made to arrive at coherence.
A conceptual problem common to both the free exercise clause
and the non-establishment clause is the definition of religion for consti-
tutional purposes. While one may argue that courts are not competent
to define what is or what is not a religious ritual, as a matter of practi-
cal necessity our Court has taken the position that "the determinption
of whether a certain ritual is or is not a religious ceremony must rest
with the coutts."eos Similarly, courts have attempted to define religion.
Traditionally, the definition has been couched in theistic terms: it has
"reference to one's views of his relations to his Creator, and to the ob-
ligations that they impose of reverence for his being and character, and
of obedience to his will."''
The problem is complicated by attempts to define constitution-
ally protected religion in non-theistic terms. In Torcaso v. Watkins,eto
156(l()7 l)
'''*(icrorra v. Sccr(:titry ol lilucntion, lO6 Phil.2' I I ( 1959)
''n'l)uvis v. llcason, l.l.l ll.S. l.].1 ( ltt90).
"rrrl(r7 ll S 4tl5 ( l()Ol ).
 THE 1987 CONSTITUTION Sec.5
OF THE REPUBLIC OF THE PHILIPPINES
for instance, Justice Black included non-theistic religions such as Bud-
dhism, ethical culture and secular humanism as within the ambit of con-
stitutional protection. Similarly, United States v. Seeger,s' while it deals
with a statutory interpretation of draft exemption for conscientious ob-
jectors, is nonetheless constitutionally significant in that it upheld the
right to exemption on religious grounds of one who denied any belief
in God. Theoretically, seeger is founded on that branch of religious
thought influenced by Paul rillich which views religion as encompass-
ing beliefs and views which illuminate the "very ground of one's being"
and which give life meaning and direction.
some constitutional writers believe that the historic purpose of the
constitutional provision would best be served by extending it to chang-
ing notions of religion. The more traditionally minded, however, prefer
to reserve the protection of the religion clause for theistic religion. For
the non-theistic religions, they offer the protection of the freedom of ex-
pression clause, where expression is involved, or the due process clause
and the equal protection clause, where action is involved. The 1973
constitution has left this matter to jurisprudential development. So has
the 1987 Constitution.
3. The free exercise clause.
At the basis of the free exercise clause is the respect for the in-
violability of the human conscience. Historically, the guarantee is an
outgrowth of two streams of thought: Protestant dissent and humanistic
rationalism. For the Protestant dissenter the inviolability of the con-
science was rooted in an ultimate allegiance to a Higher power; for the
rational humanist, the basis was the anteriority of the individual to the
state and the reservation to the individual, in the social contract, of the
right to his opinions and beliefs.
The first landmark decision on the free exercise clause, Reynolds
v. united stateset2 adopted the rule that the free exercise clause com-
pletely insulated the realm of belief from state action, leaving, how-
ever, religiously motivated action, including expression, subject to
police power. The scope of governmental action, however, as it gets
involved with ends and values of varying importance, is an expanding
e'r380 U.S. t63 (1965)
e,298
U.S. 145 (t878).
*i
ART. III BILL OF RIGHTS
Sec.5 -
one and frequently comes into conflict with religiously motivated ac-
tion or expression. Thus, the judicial task in free exercise cases is one
of balancing the secular interest of the state with the interest of religion.
How is this balancing act to be performed? on the basis of an analysis
of existing cases, one author suggests a formula:e'3 "A thorough-going
balancing test would measure three elements of the competing govern-
mental interest: first, the importance of the secular value underlying the
governmental regulation; second, the degree of proximity and neces-
sity that the chosen regulatory means bear to the underlying value; and
third, the impact that an exemption for religious reasons would have
on the over-all regulatory program. This assessment of the state's inter-
est would then have to be balanced against the claim for religious lib-
erty, which would require calculation of two factors: first, the sincerity
and importance of the religious practice for which special protection is
claimed; and second, the degree to which the governmental regulation
interferes with that practice."
While the formula looks neat, its actual application to the balanc-
ing task is fraught with problems and pitfalls. Even the relatively non-
debatable secular value of public health poses some subtle problems:
vaccination and blood transfusion as opposed to religious tenet, the use
of peyote or other hallucinogenic drugs in religious rituals. The values
of public welfare, comfort and convenience and economic progress can
also pose problems. The demands and the definition of public morality
also create problems. Likewise, civic responsibility such as payment of
tax and military service pose difficult questions. These questions and
problems, because of their variety and unpredictability, cannot easily be
subsumed under one clear generalization.
The heart of the doctrine on freedom of religion was expressed
thus in Cantwell v. Connecticut'.eta
The constitutional inhibition on legislation on the subject of
religion has a double aspect. On the one hand, it forestalls compul-
sion by law of the acceptance of any creed or the practice of any
form of worship. Freedom of conscience and freedom to adhere
to such religious organization or form of worship as the individ-
'lt(it,tNtit.t.l, "Rtt.tt;ttttts l.nu:nv, NoN-r:stAatls?Mr:'f/', ma Do<7nuu' DtvetopurNr; Penr
I'
Irtr Rt,t.x;unrs Lrnrnn (itr,r*'ttrm," tlO HARV. 1,. RI]V' l38l ' 1390 (1967).
0r4Jlo I j.s. 296, l0:l 4 ( 1940).
 332 THE 1987 CONSTITUTION Sec.5
OF THE REPUBLIC OF THE PHILIPPINES
ual may choose cannot be restricted by law. On the other hand, it
safeguards the free exercise of the chosen form of religion. Thus
the Amendment embraces two concepts
- freedom to believe and
freedom to act. The first is absolute, but in the nature of things, the
second cannot be.
The absoluteness of the freedom to believe carries with it the cor-
ollary that the government, while it may look into the good faith of a
person, cannot inquire into a person's religious pretensions. "Heresy
trials are foreign to our constitution. Men may believe what they can-
not prove. They may not be put to the proof of their religious doctrines
or beliefs."e's The moment, however, belief flows over into action, it
becomes subject to government regulation. It does not follow that ,,be-
cause no mode of worship can be established or religious tenets en-
forced in this country, therefore ... any tenets, however destructive of
society, may be held and advocated, if asserted to be part of the religious
doctrine of those advocating and practicing them ... whilst legislation
for the establishment of religion is forbidden, and its free exercise is
permitted, it does not follow that everything which may be so called can
be tolerated. crime is not the less odious because sanctioned by what
any particular sect may designate as religion."er6 Or again: ,,Whether an
act is immoral within the meaning of the statute is not to be determined
by the accused's concept of morality. congress has provided the stan-
dard. The offense is complete if the accused intended to perform, and
did in fact perform, the act which the statute coldslnps."erz
In this connection, Employment Division v. Smithst8 is important.
smith and Black were fired by a private rehabilitation organization be-
cause they ingested peyote, a hallucinogenic drug, for worship purposes
under their Native American church. For this reason they were denied
unemployment compensation on the legal ground that their dismissal
was for wqrk-related misconduct. In upholding the legal disqualifica-
tion the court said that the Free Exercise clause permits the state to pro-
hibit peyote use and to deny unemployment benefits to those discharged
for violation of the prohibition. The court ruled that the religion clause
ersUnited Stares v. Ballard,322
U.S.78,86 (1944).
er6Davis v. Beason,
r33 u.s. 333,34s (1890) (polygamy). A/sa Reynolds v. Unired Starcs.
98 U.S. l4s (1879).
erTCleveland v.
United States,329 U.S. 14,20 (1946).
er8494
U.S.872 (1990).
Sec.5 ART. III _ BILL OF RIGHTS 333
does not relieve an individual of the obligation to comply with a law
that incidentally forbids (or requires) the performance of an act which
his religious belief requires (or forbids) if the law is not specifically di-
rected to religious practice and is otherwise constitutional as applied to
those who engage in the specified acts for non-religious reasons.
Philippine cases on free exercise of religion are relatively few but
not uninteresting. In People v. Fabillar,nre Section 34 of the old Mar-
riage Law, which empowered the Director of the National Library to
satisfy himself whether the "church, sect or religion of the applicant
[for license to perform marriage] operates in the Philippine Islands and
is in good repute," was challenged as unconstitutional on the ground
that it in effect empowered the Director to enquire into the organization
and doctrine of the church or sect.e2o The court, answering the objection
Said.e2'
The duty thus conferred is not one ofenquiring into the orga-
nization or doctrine of a particular church or religion, but a duty to
distinguish and discriminate between a legitimately established re-
ligion or church and one that pretends to be such, as a prerequisite
to the issuance of a certificate of authority. The law, therefore, in
no sense prohibits or impairs the free exercise of any religion. On
the contrary, it purports to protect every legitimately established
religion from the imposture of pseudo or spurious religious orga-
nizations which ostensibly appear to be dedicated to the practice
of religion and the exercise of particular faith but which in reality
are mere marriage agencies.
ere68 Phil.584 (1939).
e2osection 34 says: "Every priest or minister authorized by his church, sect, or religion to
sglemnize maniage shall send to the Philippine National Library a swom statement setting forth
his full name and domicile, and that he is authorized by his church, sect, or religion to solemnize
rrrarriage, attaching to said statement a certified copy of his appointment. The director of the Phil-
rl4rine National Library, upon receiving such sworn statement containing the information required,
lrrl being satisfied that the church, sect, or religion of the applicant operates in the Philippine
Islnn4s and is in good repute, shall record the name of such priest or minister in a suitable register
rurrtl issuc t9 him an authorization to solemnize marriage. Said priest or minister shall be obliged
to cxhibit his authorization to contracting parties, to their parents, grandparents, guardians, or
pcrsons in-charge dcmantling thc same. No priest or minister not having the required autlorization
rnuy solcnrnizc murriage."
'l'hc sttnre pnrvision is ttlso lirttntl txrw in Arliclc 92 ol'thc (ncw) Clivil Codc.
,,,r(rll
I'hil. nt 5ll?.
 334 THE 1987 CONSTITUTION
Sec.5
OF THE REPUBLIC OF THE PHILIPPINES
Clearly, therefore, the Court defended the statute as merely an in-
stance of the exercise of police power. The power given by the statute,
according to the court, was not a power to inquire into the organization
or doctrine of a particular religion but merely a power to distinguish
between legitimate religions and mere marriage agencies posing as re-
ligion and exploiting the public. But the line thus drawn is very thin.
The statute itself allowed the state to enquire whether the religion of
the applicant was "in good repute." With such a vague standard, it is so
easy for a bureaucratic functionary to measure good reputation in terms
of locally accepted standards of religious orthodoxy.
An altogether different form of licensing was involved in Ameri-
can Bible Society v. City of Manila.en Plaintiff was a non-stock, non-
profit, religious missionary corporation which in the course of its min-
istry sold bibles and gospel portions of the bible. An attempt was made
by the City of Manila to compel the plaintiff to obtain both a Mayor,s
permit and a municipal license required of those who are engaged in the
business of general merchandise.e'?3 Plaintiff challenged this attempt on
the ground that it amounted to "religious censorship and restrained the
free exercise and enjoyment of religious profession, to wit: the distribu-
tion and sale of bibles and other religious literature to the people of the
PhiliPPine5."ezo
In holding for the plaintiff, the Supreme Court said that the consti-
tutional guarantee was plaintiff's license. "The constitutional guarantee
of the free exercise and enjoyment of religious profession and worship
carries with it the right to disseminate religious information. Any re-
straint of such right can only be justified like other restraints of freedom
of expression on the grounds that there is a clear and present danger
of any substantive evil which the State has the right to prevent."r:s Ths
Court continued'e26
I
It may be true that in the case at bar the price asked for the
bibles and other religious pamphlets was in some instances a little
bit higher than the actual cost of the same, but this cannot mean that
e,,101 Phil.386 (1957).
e23ld. at388.
ezald. at 393.
e2sld. at398.This
is the first unequivocal allirmation of thc "clcar and prcsr:nt rlungcr" rule
in Philippine jurisprudence.
e26ld.
at 401 . 'qlOl I'hil.
Sec.5 ART. III - BILL OF RIGHTS 335
the appellant was engaged in the business or occupation of selling
said "merchandise" for profit. For this reason we believe that the
provisions of City of Manila Ordinance No. 2529, as amended,
cannot be applied to appellant, for in doing so it would impair its
free exercise and enjoyment of its religious profession and wor-
ship as well as its rights of dissemination of religious beliefs.
Quoting Taffada and Fernando,e? the Court further said'e28
We do not mean to say that religious groups and the press
are free from all financial burdens of govemment.e2e We have here
something quite different, for example, from a tax on income of
one who engages in religious activities or a tax on property used
or employed in connection with those activities. It is one thing to
impose a tax on the income or property of a preacher. It is quite an-
other thing to exact a tax from him for the privilege of delivering a
sefinon . . . The power to tax the exercise of a privilege is the power
to control or suppress its enjoyment. ... Those who can tax the
exercise of this religious practice can make its exercise so costly
as to deprive it ofthe resources necessary for its maintenance. .'.
The next case on religious books did not come until I994.lnTo-
lentino v. Secretary of Finance,Bo the Philippine Bible Society ques-
tioned the validity of the registration provisions of the Value Added
Tax Law, Republic Act77l6,as a prior restraint. The Court prefaced its
discussion by saying that "as the U.S. Supreme Court unanimously held
in Jimmy Swaggart Ministries v. Board of Equalization,$t the Free Ex-
crcise of Religion clause does not prohibit imposing a generally appli-
c,able sales and use tax on the sale of religious materials by a religious
grganization."e32 As to the registration requirement itself, the Court dis-
tinguished the earlier American Bible Society case thus'e33
The case of American Bible Society v- City of Manila,e3a is
cited by both the PBS and the PPI in support of their contention
(4TbEN.)
"NI CONSTITUTION OFTIIE PHILIPPINES 297
"rrlOl Phil. at J99.
(1936)-
"r"(iross jcan v. Attrorican Press Co.,297 U.S.233
'q!'234 S('RA 630 ( 1994).
""49J U.S. 371t, 107 l-. lkl.2d 796 ( 1990).
"'1215 S('RA ut 6110.
'"'/r/. rtt 6llL
1116 ( l()5'I).
 336 TI{E 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
that the law imposes censorship. There, this Court held that an
ordinance of the City of Manila, which imposed a license fee on
those engaged in the business of general merchandise, could not
be applied to the appellant's sale of bibles and other religious lit_
erature. This Court relied on Murdock v. pennsylvanja,e3s in which
it was held that, as a license fee is fixed in amount and unrelated
to the receipts of the taxpayer, the license fee, when applied to a
religious sect, was actually being imposed as a condition for the
exercise of the sect's right under the constitution. For that reason,
it was held, the license fee "restrains in advance those constitu_
tional liberties of press and religion and inevitably tends to sup_
press their exercise."
But, in this case, the fee in Section 107, although a fixed
amount (Pl,000), is not imposed for the exercise of a privilege but
only for the purpose of defraying part of the cost of registration.
The registration requirement is a central feature of the VAT system.
It is designed to provide a record of tax credits because any person
who is subject to the payment of the VAT pays an input tax, even as
he collects an output tax on sales made or services rendered. The
registration fee is thus a mere administrative fee, one not imposed
on the exercise of a privilege, much less a constitutional right.
Likewise, in an obiter dictum in centeno v. villalon-pornillos,e3u
the court ruled that solicitation of contributions in general, which may
include contributions for religious purposes, may be regulated by gen-
eral law for the protection of the public:
... [e]ven the exercise of religion may
be regulated, at some
slight inconvenience, in order that the State may protect its citizens
from injury. Without doubt, a State may protect its citizens from
fraudulent solicitation by requiring a stranger in the community,
before permitting him publicly to solicit funds for any purpose, to
establish his identity and his authority to act for the cause which
he purpdrts to represent. The State is likewise free to regulate the
time and manner of solicitation generally, in the interest of public
safety, peace, convert or convenience.
e35319
U.S. 105, 113, 87 L.Ed. 1292 (t943).
e36235
SCRA 197,2O'7 (19O4). The Court, however, also rulctl th&t tho law in qucsrisn tlitl
not prohibit solicitation for religious purfx)scs hut (mly solicitatiorr ol contributions lirr chnritnhlc
or general welfarc purposcs.
Sec.5 ART. III _ BILL OF RIGHTS 33'7
Sec.5
Another decision, Victoriano v. Elizalde Rope Workers Union,e37
upheld a provision of the old Industrial Peace Act which excluded from
the application and coverage of a closed shop agreement employees
belonging to any religious sect which prohibits affiliation of any of their
members with any labor organization. The Court held:
It may not be amiss to point out here that the free exercise of
religious profession or belief is superior to contract rights. In case
of conflict, therefore, the latter must yield to the former' " ' Reli-
gious freedom, although not unlimited, is a fundamental personal
right and liberty, and has a preferred position in the hierarchy of
values. contractual rights, therefore, must yield to freedom of reli-
gion. It is only where unavoidably necessary to prevent an imme-
diate and grave danger to security and welfare of the community
that infringement of religious freedom may be justified, and only
to the smallest extent necessary to avoid the danger'
The court, moreover, added that religious conviction can be, as it
is here, a justifiable basis for classification for special treatment.
In another ni Kristo v- Gironella,"t tho Court saw
case, Iglesia
violation of the free exercise clause when a judge referred in his deci-
sion to the interest of Iglesia members in a case as "gimmickry." The
..Freedom of religion implies respect for every creed. No
court said:
one, much less a public official, is privileged to characterize the actua-
tion of its adherents in a derogatory sense." Still another lglesia case
involved the ban on television segments where the Iglesia program at-
tacked other religions especially the Catholic church. The Court, find-
ing the attacks to be purely about doctrinal matters, invalidated the ac-
tion of the Censorship Board.o'e
The lglesia decision, however, did not uphold the entirety of the
standards for censorship found in P.D. No. 1986. Nor indeed was there
a challenge to the constitutionality of the law in its totality.T\e Iglesia
tlccision simply rejected the claim that the Board had no authority to
rcquire prior submission of religious programs. It said:
ur759 S(:RA 54,72,17 (Septenrtrcr 12, lg74l. A/.r0 Basa v. Federacion obrera,61 SCRA
t).1 (Novcntbcr 19, 1974).
,"nlO6
S('lRA l, 4 (.ltrly 25' l9ltI )
u''(i.R No. l l(XrT l, rllly ?(r, l()(Xr' srz tlisettssion 'rtrTrrrr tttttlt'r Scclirrr 4
 338 TTIE 1987 CONSTITUTION
Sec.5
OF THE REPUBLIC OF THE PHILIPPINES
We thus reject petitioner's postulate that its religious pro_
gram is per se beyond review by the respondent Board. Its public
broadcast on TV ofits religious program brings it out ofthe bosom
of internal belief. Television is a medium that reaches even the
eyes and ears of children. The court iterates the rule that the exer-
cise 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. A laissez faire policy on the exercise of religion
can be seductive to the liberal mind but history counsels the court
against its blind adoption as religion is and continues to be a vola-
tile area ofconcern in our country today. Across the sea and in our
shore, the bloodiest and bitterest wars fought by men were caused
by irreconcilable religious differences. our country is still not safe
from the recurrence of this stultifying strife considering our war-
ring religious beliefs and the fanaticism,with which some of us
cling and claw to these beliefs. Even now, we have yet to settle
the near century old strife in Mindanao, the roots of which have
been nourished by the mistrust and misunderstanding between our
christian and Muslim brothers and sisters. The bewildering rise of
weird religious cults espousing violence as an article offaith also
proves the wisdom of our rule rejecting a strict let alone policy
on the exercise of religion . For sure, we shalr continue to subject
any act pinching the space for the free exercise of religion to a
heightened scrutiny but we shall not leave its rational exercise to
the irrationality of man. For when religion divides and its exercise
destroys, the State should not stand still.
Moreover, the court reaffirmed the doctrine on burden of proof in
prior restraint cases. It said:
Deeply ensconced in our fundamental law is its hostility
against ell prior restraints on speech, including religious speech.
Hence, any act that restrains speech is hobbled by the presumption
of invalidity and should be greeted with furrowed brows. It is the
burden of the respondent Board to overthrow this presumption. If
it fails to discharge this burden, its act of censorship will be struck
down. It failed in the case at bar.
The court found that the government had not satislied this re-
quirement. But what would satisfy the court? In the context of religious
speech, the Court said that rcligious spccch coultl bc rcgulltcd by thc
Sec.5 ART.III _ BILL OF RIGHTS 339
State "when it will bring about the clear and present danger of some
substantive evil which the States is duty bound to prevent, 1.e., serious
detriment to the more overriding interest of public health, public mor-
als, or public welfare."
The decisions seen thus far have generally made an effort to con-
form to American decisions on similar cases. In Gerona v. Secretary of
Education,eoo however, the Supreme Court made a significant departure
from American guidelines. The case involved a challenge by Jehovah's
Witnesses against a Department Order issued by the Secretary of Edu-
cation implementing Republic Act 1265 which prescribed compulsory
flag ceremonies in all public schools. Petitioner's children had refused
to salute the Philippine flag, sing the national anthem, or recite the pa-
triotic pledge; hence, they were expelled from school''o'
The Supreme Court found that the petitioners wefe "willing to
remain silent and stand at attention with their arms and hands down
,{106Phi1.2(1969),reiteratedin Balbuenav.secremryof Education,L-14283,November
29.1960.
qrThe
Department regulations objected to were the following:
.,a. pupils and teachers or students and faculty members who are in school and its prem-
ises shall urr"*tl" in formation facing the flag. At command, books shall be put away or
held in
shall
the left hand and everybody shall come to attention. Those with hats shall uncover. No one
cnter or leave the school grounds during the ceremony.
..b. The assembly shall sing the Philippine National Anthem accompanied by the school
band
band or without the accompaniment if it has none; or the anthem may be played by the school
alone. At the first note of the Anthem, the flag shall be raised briskly. While the flag is being
raised,
all persons present shall stand at attention and execute a salute. Boys and men with hats shall
salute
ty placing the hat over the heart. Those without hats may stand with their arms and hand6 down
prescribed
ilni straight at the sides. Those in military or Boy Scout uniform shall give the salute
by their regulations. The salute shall be started as the flag rises, and completed upon the last note
ol the anthem.
..c. Immediately following the singing of the Anthem, the assembly shall recite in unison
rhc following patriotic pledge (English of vernacular version), which may bring the ceremony
to
,r close. This is required of all public schools and private schools which are intended
for Filipino
studcnts or whose population is predominantly Filipino.
ENGLISH VERSION
I love the PhiliPPines,
tt is the land of mY birth;
It is the home of mY PeoPle.
It p()tects me and helps me to be strong' happy and useful'
ln return, I will hced thc counsel of my parents;
I will obcy thc rules ol'my schools;
will pcrlirrrn thc dutics ol'a patriotic, law-abiding citizcn;
will scrvc nly cotrntry trnscllishly rrntl llilhlillly;
will bc n lrrrc lrtlillirto, ttt lhotrtr'"h1, itl wttttl, in tlt:ctl."
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
straight at the sides."e42 Petitioners also agreed that members of the sect
who were taking part in military training or were Boy Scouts could ex-
ecute the salute requirement. Their objection therefore narrowed down
to the singing of the national anthem and the recitation of the patriotic
pledge.q,
one preliminary observation made by the supreme court is worth
quoting:,4
The realm of belief and creed is infinite and limitless bound_
ed only by one's imagination and thought. So is the freedom of
belief including religious belief,limitless and without bounds. One
may believe in most anything, however strange, bizarre and un_
reasonable the same may appear to others, even heretical when
weighed in the scales oforthodoxy or doctrinal standards. But be-
tween the freedom of belief and the exercise of said belief, there
is quite a stretch of road to travel. If the exercise of said religious
belief clashes with the established institutions of society and with
the law, then the former must yield and give way to the latter. The
Government steps in and either restrains said exercise or even
prosecutes the one exercising it.
But, perhaps, the most significant statement in the decision were
the following lines:e45 "After all, the determination of whether a certain
ritual is or is not a religious ceremony must rest with the courts. It can-
not be left to a religious group or sect, much less to a follower of said
group or sect; otherwise, there would be confusion and misunderstand-
ing for there might be as many interpretations and meanings to be given
to a certain ritual or ceremony as there are religious groups or sects
or fdllowers, depending upon the meaning which they, though in all
sincerity and good faith, may want to give to such ritual or ceremony."
should the court really attempt to determine whether a particular
ritual is religious or not? If it does, what norm can it possibly use?
or, should not the court rather view rituals with eyes color-blind to
religious categories and merely look at them as theologically uncarego-
rized overt actions with potential for public disturbance and, therelore,
%21d.
at 8.
%31d. at 12.
eald. at 9-lO.
%1|d.
rl ll-12
Sec.5 Sec.5 ART. III _ BILL OF RIGHTS 341
subject to reasonable regulation? The Court chose to categorize and
said:e6
The flag is not an image but a symbol of the Republic of the
Philippines, an emblem of national sovereignty, of national cohe-
sion and of freedom and liberty which it and the constitution guar-
antee and protect. considering the complete separation of church
and state in our system of government, the flag is utterly devoid of
any religious significance. Saluting the flag consequently does not
involve any religious ceremony. ...
According to the court, the only object of the law was to see to
it that all schools aim to develop civic conscience and teach the duties
of citizenship pursuant to the mandate of Art. XIV, Section 5 (1935) of
the Constitution.
Men may differ and do differ on religious beliefs and creeds,
government policies, the wisdom and legality of laws, even the
correctness of judicial decisions and decrees; but in the field of
love of country, reverence for the flag, national unity and patrio-
tism, they can hardly afford to differ, for these are matters in which
they are mutually and vitally interested, for to them, they mean
national existence and survival as a nation or national extinction.q?
Strong words, indeed, and such great confldence in flag ceremony
as an instrument for instilling patriotism!
The court, of course, was not unaware of the decision in west
Virginia State Board of Education v. Barnetteqs but it chose to follow
the earlier abandoned case of Minersville School District v. Gobitisxe
as being "more in keeping with the spirit of our Constitution and the
government policy as laid down in Republic Act No. 1265 [Flag Salute
Lawl ... "e50 The Court argued that what the Barnette case rejected was
the element of compulsion imposed upon parents and pupils: parents
had to either send their children to school and consent to flag salute or
withdraw their children from school and face prosecution for failing to
scnd their children to school.
s/d. at ll.
"'1 Id. ut 14.
si3l9 u.s. 624 ( 1943).
qu3l0
U.s. -596 ( l9zt{)),
eq'l0tr Phil.
rl 19.
 342 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Such a grave and embarrassing situation, however, does not
obtain in the Philippines. True, we have a law (Republic Act No.
896) requiring compulsory enrollment of children of age, but said
law contains so many exceptions and exemptions that it can be
said that a child of school age is very seldom compelled to attend
school, let alone the fact that almost invariably, there is a school
crisis every year wherein the pupils applyingrsr for admission in
public schools could not be accommodated, and what is equally
important is that there is no punishment or penal sanction iither
for the pupil who fails to attend school or is expelled for failure to
comply with school regulations such as the compulsory flag salute
ceremony, or his parents.
The court may indeed be right in saying that in the Barnette case
there was an objectionable element of compulsion; but what made the
compulsion objectionable was the fact that it touched upon conscience.
It was a question of weighing freedom of conscience against the du-
bious patriotic value of a compulsory flag ceremony. The court may
also be right in saying that the perennial crisis situation of the public
school system creates a situation where a "child of school age is seldom
compelled to go to ssfieel."rsz But this does not prevent the element of
compulsion from being inflicted upon those actually attending school
nor does this negative the statute's intention to compel. And when the
flag salute is made a test for determining whether a child has a right to
enjoy the benefit of a free public education, the question that must be
answered is whether the test is legitimate. The court defends the le-
gitimacy of the test by saying that it is not a religious test because flag
ceremony is a purely civic ceremony. Thus, the argument goes back to
whetha the court is competent to decide whether a given ceremony is
religious or not. If it is competent, what norm may the court use and
who will determine the norm?
Gerona lasted until 1993 when Ebralinag v. Division superinten-
dent of schools of cebue53 reversed it, for reasons already stated in the
criticism of Gerona, saying that freedom of religion requires that pro-
testing members be exempted from the operation of the law.
estId.
e52
Id -
,s2 l9 SCRA 2-56 (
t993)
Sec.5 Sec.5 ART. III _ BILL OF RIGHTS
However one may finally view the right and wrong of the Gerona
and Ebralinag decisions, what the cases do illustrate is that there is
need for a delicate balancing of legitimate interests of the state in the
education of the young and the equally legitimate interest of parents in
the religious upbringing of their children. The problem also came in
very sharp focus in theAmerican case of Wisconsinv.Yoder.nsa Respon-
dents in the case were members of the old order Amish religion and
the Conservative Amish Mennonite Church. For declining to send their
children to public or private school after they had graduated from the
eight grade, they were convicted of violating Wisconsin's compulsory
school attendance law which required a child's school attendance until
age 16. The respondents contended that high school attendance was
contrary to their religion and way of life and would endanger their own
salvation and the salvation of their children. After finding sufficient
evidence that accommodating the Amish beliefs would not impair the
physical or mental health of the child nor result in an inability to be self-
supporting, or to discharge the duties and responsibilities of citizenship,
the Supreme Court upheld the respondents. The Court said'"
There is no doubt as to the power of a State, having a high
responsibility for education of its citizens, to impose reasonable
regulations for the control and duration of basic education.ess Pro-
viding public schools ranks at the very apex of the function of a
State. Yet even this paramount responsibility was, in Pierce,made
to yield to the right of parents to provide an equivalent education
in a privately operated system. There the Court held that Oregon's
statute compelling attendance in a public school from age eight
to age 16 unreasonably interfered with the interest of parents i4
directing the rearing of their offspring including their education in
church-operated schools. As that case suggests, the values of pa-
rental direction of the religious upbringing and education of their
children in their early and formative years have a high place in our
society.esT Thus, a State's interest in universal education, however
highly we rank it, is not totally free from a balancing process when
it impinges on other fundamental rights and interests, such as those
specifically protected by the Free Exercise Clause of the First
ur44{)6 U.S. 205 (1972).
""/d.at213-215.
el"ficc .'.11., lticrcc v. S(rcicty ol'Sistcrs, 26tJ U.S. 510' 534 ( 192-5)'
,,./sce
ulso ( iitrshcrg v. Ncw vrrk, 390 tJ.s. 629, 639 ( l96lt); Meycr v. Ncbruska, 262 U.S.
l(X) ( l()2 t); r'l. Rowun v. ltrst ()llit:c l)cpl...197 tl.S. 72li ( l97O).
 344 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Amendment and the traditional interest of parents with respect to
the religious upbringing of their children so long as they;in rhe
words of Pie rce , "prepue [them] tbr additional obligation5."e:r
It follows that in order for Wisconsin to compel school
tendance beyond the eighth grade against a claim that such atten_
dance interferes with the practice of a legitimate religious belief, it
must appear either that the state does not deny the free exercise of
religious belief by its requirement, or that there is a state interest
of sufficient magnitude to override the interest claiming protection
under the Free Exercise clause. Long before there was general
acknowledgment of the need for universal formal education, the
Religion clauses had specifically and firmly fixed the right to free
exercise of religious beliefs, and buttressing this fundamental right
was an equally firm, even if less explicit, prohibition against the
establishment of any religion by government. The values underly-
ing these two provisions relating to religion have been zealousiy
protected, sometimes even at the expense of other interests of ad-
mittedly high social importance. The invalidation of financial aid
to parochial schools by government grants for a salary subsidy for
teachers is but one example of the extent to which courts have
gone in this regard, notwithstanding that such aid programs were
legislatively determined to be in the public interest and the service
of sound educational policy by States and by Congress.ese
The essence ofall that has been said and written on the sub_
ject is that only those interests of the highest order and those not
otherwise served can overbalance legitimate claims to the free ex-
ercise of religion. we can accept it as settled, therefore, that how-
ever strong the state's interest in universal compulsory education,
it is by no means absolute to the exclusion or subordination of all
ofher interests.e6o
More delicate was the case of Estrada v. Escritor.r6r The case was
about a clerk of court who was living with a man without benelit of
marriage. Her situation was thought to be incompatible with her office in
court and her dismissal from the service was being sought. The Suprenrc
'q58268 U.S. at 535.
e5elemon v.
Kurtzman,403 u.s. 602 (rg7r); J'iltrn v. Richards..,4o.r t.J.s. b7?
See also Everson v. Board of Etlucation, .l.l0 t j.S. l, I lj ( I 947).
q@E.g.,
Sherbert v. Vcrncr,.l74 tl.li. -l9tl ( 196.1): Mc(iowun v. Mnryluntl,.l(,6 U.S.4.)0..159
(1961) (lirankfurter.J., c.ncurrirrg); princc v. M:rss.chrrscrts. 12l lJ.li. l5lt, l6i ( r(rl4)
'''rllsrriul;rv. liscrirrr',A.M.N,.r'o,r r(r5r,Arrpust.r,r(x)rrrnrr .trrrre ,r,).2(xxr
Sec.5 ART. III - BILL OF RIGHTS
Court remanded the case to the Office of the Court Administrator' and
the Solicitor General was ordered to intervene in the case. He was
instructed: (a) to examine the sincerity and centrality of respondent's
at_ claimed religious belief and practice; (b) to present evidence on the
state's "compelling interest" to override respondent's religious belief
and practice; and (c) to show that the means the state adopts in pursuing
its interest is the least restrictive to respondent's religious freedom' On
reconsideration, the clerk of court's right of the woman was upheld on
the basis of "benevolent neutrality."
4. The non-establishment clause.
The core problem of the non-establishment clause is the task of
finding the political principle that it embodies. Its minimal sense is that
the state cannot establish or sponsor an official religion. Beyond that,
opinions on the subject range from one extreme to the other. At one end,
relevant to American federalism but not to the Philippine unitary sys-
tem, is the view that the clause merely insulates state policy on religion
fromfedernl interference. At the other end is the formulation found in
Everson v. Board of Education'e62 The non-establishment clause prohib-
its the state from passing "laws which aid one religion, aid all religions,
or prefer one religion over another." The intermediate views are chiefly
two: (1) the non-establishment clause prohibits only direct support of
institutional religion but not support indirectly accruing to churches and
church agencies through support given to members; (2) both direct and
indirect aid to religion are prohibited but only if the support involves
preference of one religion over another or preference of religion over
irreligion.
While there is no unanimity in non-establishment as a political
principle, there is substantial agreement on the values non-establish-
ment seeks to protect. These are two: voluntarism and insulation of the
po I tical process from interfaith dissensi on.
i
Vrluntarism as a value is both personal and social. As a personal
v:rluc, it is nothing more than the inviolability of the human conscience
which is also protected by the free exercise clause. As a social value,
lrrolcclcd by thc non-establishment clause, it means that the growth of a
(rgrr\
rcligiorrs secl ils it s<lcittl lilrcc ntust ctlme fiom the voluntary support of
'' t()ll5 l.|tt11t;17,
346 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
its members because of the belief that both spiritual and secular society
will benefit if religions are allowed to compete on their own intrinsic
merit without benefit of official patronage. Such voluntarism cannot be
achieved unless the political process is insulated from religion and un-
less religion is insulated from politics.
In effect, therefore, what non-establishment calls for is govern-
ment neutrality in religious matters. Such government neutrality may
be summarized in four general propositions: (1) Government must not
prefer one religion over another or religion over ineligion because such
preference would violate voluntarism and breed dissension; (2) Gov-
ernment funds must not be applied to religious purposes because this
too would violate voluntarism and breed interfaith dissension; (3) Gov-
ernment action must not aid religion because this too can violate vol-
untarism and breed interfaith dissension; (4) Government action must
not result in excessive entanglement with religion because this too can
violate voluntarism and breed interfaith dissension.
The first important non-establishment case under the 1935 Consti-
tution was in fact an application of the neutrality principle. It involved
a challenge made by the Philippine Independent Church to the consti-
tutionality of the issuance and sale of postage stamps commemorative
of the Thirty-Third International Eucharistic Congress of the Catholic
Church.*, The challenge was based on the prohibition in Article VI,
Section 23(3) of the 1935 Constitution against the use of public money
for religious purposes. The observations made by Justice Laurel for the
majority are worth quoting:,n
The prohibition herein expressed is a direct corollary of the
principle of separation of church and state. Without the necessity
of adverting to the historical background of this principle in our
count4i, it is sufficient to say that our history, not to speak of the
history of mankind, has taught us that the union of church and state
is prejudicial to both, for occasions might arise when the state will
- use the church, and the church the state, as a weapon in the further-
ance of their respective ends and aims. ... It is almost trite to say
now that in this country we enjoy both religious and civil freedom.
All the officeis of the Government, from the highest to the lowest,
in taking their oath to support and defend the Constitution, bind
%3Aglipay v. Ruiz,64 Phil. at 206.
wld. at 205-6.
Sec.5 Sec.5 ART. III - BILL OF RIGHTS
themselves to recognize and respect the constitutional guarantee
of religious freedom, with its inherent limitations and recognized
implications. It should be stated that what is guaranteed by our
Constitution is religious liberty, not mere toleration.
Religious freedom, however, as a constitutional mandate is
not an inhibition of profound reverence for religion and is not a
denial of its influence in human affairs. Religion as a profession of
faith to an active power that binds and elevates man to his Creator
is recognized. And, in so far as it instills into [sic] the minds the
purest principles of morality, its influence is deeply felt and highly
appreciated. When the Filipino people, in the preamble of their
Constitution, implored "the aid of Divine Providence, in order to
establish a government that shall embody their ideals, conserve
and develop the patrimony of the nation, promote the general wel-
fare, and secure to themselves and their posterity the blessings of
independence under a regime of justice, liberty and democracy,"
they thereby manifested their intense religious nature and placed
unfaltering reliance upon Him who guides the destinies of men
and nations. The elevating influence of religion in human society
is recognized here as elsewhere. In fact, certain general conces-
sions are indiscriminately accorded to religious sects and denomi-
nations....
Coming now to the issue at hand, Laurel wrote'e65
It is obvious that while the issuance and sale of the stamps
in question may be said to be inseparably linked with an event of
a religious character, the resulting propaganda, if any, received by
the Roman Catholic Church, was not the aim and purpose of thE
Govemment. We are of the opinion that the Government should
not be embarrassed in its activities simply because of incidental
results, more or less religious in character, if the puqpose had in
view is one which could legitimately be undertaken by appropriate
legislation. The main purpose should not be frustrated by its sub-
ordination to mere incidental results not contemplated.
A similar approach, but in a confused sort of way, was followed
lry the Court in Garces v. Estenzo.e6u The case involved a statue of San
. irt 209 210, riring llrlrllicld v. Robcrts, I75 U.S. 291 ( 1899).
"t'11il
'xr'lO4!i('RA5lO,5l6tt(M.ry25, l9tll).(lanthcrulingalsobejustifiedonthebasisofthe
rlrrrrl rrslrt't ol rrrurrit'i1lll coqxrrrrliorrs by irrguing that lhc non-cstlblishmcnt clausc dtrcs not apply
to lhc /rriy.r/., lsln't ol rnrrrrir'iprrl rrrrprxrrlions'l
348 THE IgSTCONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Vicente Ferrer which the barangay council had bought with funds ob-
tained through solicitation from residents of the barrio. On the occasion
of the town fiesta, the statue was lent to the church; but after the fiesta
the priest refused to return the statue. When resolutions were passed
by the council towards recovering the statue, the priest challenged the
resolutions as violative of the non-establishment clause. Although the
Court said that no religious issue was involved, there is in the Court's
language the suggestion that fiestas, although religious in origin, have a
secular aspect to them which can be legitimate object of state interest.
The Court said:
Manifestly puerile and flimsy is petitioners argument that
the barangay council favored the Catholic religion by using the
funds raised by solicitations and donations for the purchase ofthe
patron saint's wooden image and making the image available to
the Catholic church.
The preposterousness of that argument is rendered more evi-
dent by the fact that counsel advanced that argument in behalf of
the petitioner, Father Osmefla, the parish priest.
The wooden image was purchased in connection with the
celebration of the banio fiesta honoring the patron saint, San Vi-
cente Ferrer, and not for the pulpose of favoring any religion nor
interfering with religious matters or the religious beliefs of the
barrio residents. One of the highlights of the fiesta was the mass.
Consequently, the image of the patron saint had to be placed in the
church when the mass was celebrated.
If there is nothing unconstitutional or illegal in holding a
fiesta and having a patron saint for the barrio, then any activity
intended to facilitate the worship of the patron saint (such as the
acquisition and display of his image) cannot be branded as illegal.
As noted in the first resolution, the barrio fiesta is a socio-
religious affair. Its celebration is an ingrained tradition in rural
communities. The fiesta relieves the monotony and drudgery of
. the lives of the masses.
We find that the momentous issues of separation of church
and state, or religion and the use of public money to favor any sect
or church are not involved at all in this case even remotely or indi-
rectly. It is not a microcosmic test case on those issues."
Unstated in this decision is the fact that a municipal corporation
has a dual character, proprietary and governtncntal. Thc purchasc ol'thc
Sec.5 Sec.5 ART. III _ BILLOFRIGHTS 349
statue is more easily defensible when seen as a proprietary act of the
municipality.
More significant, however,is Pamil v.Tblerone6T which upheld the
validity of Section 2175 of the Administrative Code disqualifying "ec-
clesiastics" from being appointed or elected as municipal officer. Seven
justices approached the problem from a free-exercise point of view and
considered the law a prohibited religious test. Justice Fernando put it
thus: "The challenged Administrative Code provision, certainly insofar
as it declares ineligible ecclesiastics to any elective or appointive of-
fice, is, on its face, inconsistent with the religious freedom guaranteed
by the Constitution." Five justices approached the case from a non-es-
tablishment point of view and upheld the law as a safeguard against the
constant threat of union of church and state that has marked Philippine
history. Justice Makasiar declared: "To allow an ecclesiastic to head the
executive department of a municipality is to permit the erosion of the
principle of separation of Church and State and thus open the floodgates
for the violation of the cherished liberty of religion which the consti-
tutional provision seeks to enforce and protect." IJnder the rules of the
1973 Constitution, however, the vote of the seven justices for declaring
the law unconstitutional was one short of the required qualified major-
ity. But in McDaniel v. Pattye6s in the same year the U.S. Supreme Court
declared a similar law to be violative of the free exercise clause.
American jurisprudence is rich with cases on the non-establish-
ment clause and no serious student of Philippine constitutional law can
afTord to bypass them. With the addition in Article XV, Section.l5, of
the 1973 Constitution (now Article II, Section 6 of the 1987 Constitu-
tion) that "The separation of church and state shall be inviolable," it
becomes all the more necessary to find out what this phrase means and
what it does not mean in American constitutional law from which the
phrase has been borrowed.
What clearly appears from American jurisprudence on the subject
is that Jefferson's metaphoric "wall of separation" is not without bends
rrnd may constitute a "blurred, indistinct, and variable barrier depend-
$'ll(r S(lRA 4l l" 42lt 4tl0 (Novcrnher 29, l97tl)
w4.15 t, s 6ll( ( te78).
350 THE 1987 CONSTITUTION Sec.5
OF THE REPUBLIC OF THE PHILIPPINES
ing on all the circumstances of a particular relationship."res 1ry6u1 in fact
has been more useful for the Court in settling recent non-establishment
problems is not the metaphor of a dividing "wall" but the concept of
neutrality.
Some of the most important non-establishment cases that have
come to the American Supreme Court have involved the relation be-
tween religion and education. These cases may be divided into two gen-
eral categories: those dealing with religious activities within the public
school systemeT' and those involving aid to sectarian schools.eT'
The first two important cases under the first category, McCollum
v. Board of EducationeT2 and Zorach v. Clauson,nB although they are not
authoritative in Philippine law because the Philippine Constitution spe-
cifically allows religion in the public schools,e'n are nonetheless impor-
tant because of the principle they teach. McCollum involved a released
time program of religious education in Chicago which allowed sectar-
ian representatives to teach religion during regular school hours in the
school building. The Court said: "This is beyond all question autiliza-
tion of the tax-established and tax-supported public school system to
aid religious groups to spread their faith. And it falls squarely under the
ban of the First Amendment."e?5 lnZorach, however, the Supreme Court
upheld a New York released time program which allowed students to
be released from school to attend religious instruction or services out
of school. The Court said that this did not involve prohibited aid to re-
ligion because "the public schools do no more than accommodate their
e6elemon v. Kurtzman,403 U.S.602,614 (1971).
eT0McCollum v. Board of Educ., 333 U.S. 203 (1948) ("release time" from public educa-
tion for religious education); Zorach v. Clauson, 343 U.S. 306 (1952) (also a "release time" case);
Engel v. Vitate, 370 U.S. 421 (1962) (prayer reading in public schools); School Dist. of Abington
Township v. Schempp,374 U.S. 203 (1963) (Bible reading in public schools); Epperson v. Arkan-
sas,393 U.S. 97 (1968) (Anti-evolutionary limitation on public school study).
i'Eversonv.Boardof Educ.,330U.S. I (1947)(bustransportation);Boardof Educ.v.Al-
len,392 U.S.236 (1968) (textbooks); Lemon v. Kurtzman,403 U.S.602 (1971) (teacher's salaries,
textbooks instructional materials); Earley v. DiCenso,403 U.S. 602 (1971) (teacher's salaries);
Tilton v. Richardson,403 U.S. 672 (1971) (secular college facilities); Committee for Public Edu-
cation v. Nyquist,413 U.S.756 (1973) (maintenance and repair grants, tuition reimbursemcnt und
income tax relief).
e2333 U.S. 2O3 (1948).
e73343 U.S.306 (1952).
eT4Article XIV, Section 3(3).
')71333 U.S. at 2lO.
Sec.5 ART. III _ BILL OF RIGHTS
schedules to a program of outside religious instruction."n'6 Moreover,
Justice Douglas said'e77
There cannot be the slightest doubt that the First Amend-
ment reflects the philosophy that Church and State should be sepa-
rated. And so far as interference with the 'free exercise' of religion
and an 'establishment' of religion rue concerned, the separation
must be complete and unequivocal. The First Amendment within
the scope of its coverage permits no exception; the prohibition
is absolute. The First Amendment, however, does not say that in
every and all respects there shall be a separation of Church and
State. Rather, it studiously defines the manner, and specific ways,
in which there shall be no concert or union or dependency one on
the other. That is the common sense of the matter.
In the cases that followedZorach, the Court had the opportunity to
indicate specific ways of union and concert and dependency prohibited
by the Constitution . Engel v. Vtalee,8 involved a prayer which the local
school board had prescribed for recitation by each class in the begin-
ning of each day. The prayer simply said:
Almighty God, we acknowledge our dependence upon Thee,
and we beg Thy blessings upon us, our parents, our teachers and
our country.
Finding the recitation of the prayer "a religious activity,"rzo the
Court said that "it is no part of the business of government to compose
official prayers for any group of the American people to recite as part
of a religious program carried on by the government."e8' Then the Court
added.esr
The Establishment Clause, unlike the Free Exercise Clause,
does not depend upon any showing of direct governmental com-
pulsion and is violated by the enactment of laws which establish an
official religion whether those laws operate directly to coerce non-
observing individuals or not. This is not to say, of course, that laws
q76343
tl.S. at 315.
'1t ld., al 1l2.
uA37O
lt.S. 421 (19621
"t"ll. nt 424.
''er/r/. itl 425.
""r/r/ ul ,1 l() ||
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
officially prescribing particular form of religious worship do not
a schools and universities all discussion of the origin of man. The
involve coercion of such individuals. When the power, prestige
and financial support of government is placed behind a particular
religious belief, the indirect coercive pressure upon religious mi-
norities to conform to the prevailing officially approved religion
is plain.
From EngelS stricture on governmental participation in religious
activity it was an easy matter for the Court to arrive at the conclusion
it reached in Abington School District v. Schempp.et2 At issue was the
validity of a state law requiring that selections from the Bible be read in
public schools at the opening of each school day. The Court invalidated
the law. Bible reading was found to be a religious exercise. "They are
religious exercises, required by the States in violation of the command
of the First Amendment that the Government maintain strict neutrality,
neither aiding nor opposing religion."e$ The law did not pass the test
formulated by the Court:
The test may be stated as follows: what are the purpose and
primary effect of the enactment? If either is the advancement or
inhibition of religion then the enactment exceeds the scope of leg-
islative power as circumscribed by the Constitution. That is to say
that to withstand the strictures of the Establishment Clause there
must be a secular legislative purpose and a primary effect that nei-
ther advances nor inhibits religion.eM
The Court reached a similar conclusion in Epperson v. Arkansasess
when it was faced with an Arkansas statute which prohibited its pub-
lic schools and universities from teaching the theory that man evolved
from a lower species of life. The statute was a product of "fundamental-
ist" religious fervor which also created the famous Tennessee "monkey
law." It thus attempted to tailor teaching and learning to the principles
and prohibitions of "fundamentalism." Justice Fortas wrote for the
Court thus:e86
Arkansas' law cannot be defended as an act of religious neu-
trality. Arkansas did not seek to excise from the curricula of its
qr374
U.S. 2O3 (1963).
e8lld. at 225.
euld. at222.
es393 LJ.S. 97 ( t 968).
ee/r/. rt l(X)-
Sec.5
Sec.5 ART. III - BILLOFRIGHTS
law's effort was confined to an attempt to blot out a particular the-
ory because of its supposed conflict with the Biblical account, lit-
erally read. Plainly, the law is contrary to the mandate of the First,
and in violation of the Fourteenth Amendment to the Constitution.
Fortas also said: "No suggestion has been made thatArkansas law
may be justified by consideration of state policy other than the religious
views of some of its citizens."*,
The second category of cases put various forms of public aid to
sectarian institution to the neutrality test. The first of these was Everson
v. Board of Educationntt which involved a New Jersey ordinance which
authorized the township to reimburse all parents of children of school-
age for bus fares paid in transporting their children to school. The stat-
ute, therefore, helped the children get to church schools.It was never-
theless held to be valid. Justice Black's opinion for the Court stated that
the New Jersey "legislation, as applied, does no more than provide a
general program to help parents get their children, regardless of their
religion, safely and expeditiously, to and from accredited schools."e8e
Twenty-one years later, in Board of Education v. Allen,w the Court
was faced with a statute which required "local public school authorities
to lend textbooks free of charge to all students in grades seven through
twelve; students attending private schools [were] included.".' Although
evidently the law could have a financially beneficial effect on sectarian
schools, the law was nonetheless upheld. Applying the neutrality test
formulated in Schernpp, the statute which covered only secular text-
books, was found to have "a secular legislative purposes and a primary
effect that neither advances nor inhibits roligion."eez
Subsequent cases have supplemente dthe Allen decision by employ-
ing another aspect of the neutrality test, namely, the prohibition against
excessive state entanglement with religion. Lemon v. Kurtzmnn ', dealt
%1|d. at l0i
.
'{E8330U.S. I (1947).Thecaseitself wasthefoundationof theneutralitytestformulated
in Schempp.
qEe/r/.
at 18.
'a'392 U.S. 236 ( t96tt).
*r/r/. ut 2311.
*t kl. rt 243.
a,4{).t lt.s. fl)2 ( l97l).
 THE 1987 CONSTITUTION Sec.5
OF THE REPUBLIC OF THE PHILIPPINES
with Pennsylvania's Non-public Elementary and Secondary Education
Act, and the companion cases of Earley v. DiCenso and Robinson v. Di-
Censo dealt with Rhode Island's Salary Supplement Act. The Pennsyl-
vania Law authorized the Superintendent of Public Instruction to "pur-
chase" certain "secular educational services" from nonpublic schools,
directly reimbursing those for teachers' salaries, textbooks, and instruc-
tional materials. Reimbursement was restricted to courses in specified
secular subjects, the textbooks and materials had to be approved by the
Superintendent, and no payment was to be made for any course contain-
ing "any subject matter expressing religious teaching, or the morals or
forms of worship of any sect." Most of the schools with whom contracts
had been made were affiliated with the Roman Catholic Church.
The Rhode Island Law provided for a salary supplement to be
paid to teachers in non-public schools at which the average per pupil
expenditure on secular education was below the average in the public
schools. Eligible teachers must teach only courses offered in the pub-
lic schools and must use only materials used in the public schools and
must agree not to teach courses in religion. At the time of the litigation
about 250 teachers at Roman Catholic parochial schools were the sole
beneficiaries of the law.
Both laws were found unconstitutional on the ground that the sub-
stantial religious character of the schools involved and the comprehen-
sive measures of surveillance which the provisions of the acts required
would give rise to excessive church-state entanglement contrary to the
non-establishment clause. Distinguishing the case from A llen, the Court
said that the content of a textbook can easily be ascertained while a
teacher's treatment of a subject cannot and that the danger to separation
of church and state posed by a teacher under religious control could
not be ignored. Moreover, the Court said that continuing financial pres-
sure on nonpublic schools would generate recurring political activity to
maintain or increase state aid to church affiliated schools.
fn another case, however, Tilton v. Richardson,nno decided on thc
same day, the Supreme Court upheld the validity of the Higher Educa-
tion Facilities Act of 1963. The act provided federal construction grants
for colleges and universities, excluding "any facility used or to be uscd
for sectarian instruction or as a place for religious worship, or ... pri-
',8401 [].s. 6't2 (191 t\
ART. III _ BILL OF RIGHTS
marily in connection with any part of the program of a school or depart-
ment of divinity." The United States, moreover, retained a 2O-year in-
terest in any facility constructed with the funds. The act was found to be
within the principal and primary effect doctrine of Allen and without the
"entanglement" effects of Kurtanan and DiCensa. However, the part
providing for unlimited use after 20 years was invalidated as amounting
to a contribution to a religious body.e5
Many other U.S. cases have followed, most of them characterized
by sharply divided opinions. However, in more recent years a number
of cases have been decided which seem to indicate a liberalizing of the
doctrine on non-establishment. Notable among these is Zobrest v. Cata-
lina Foothills School District.e6 The case involved a deaf child and his
parents who filed this suit after the school district refused to provide a
sign language interpreter to accompany the child to classes at a Roman
Catholic high school. They alleged that the Individuals with Disabilities
EducationAct (IDEA) and the Free Exercise Cause of the FirstAmend-
ment required respondent to provide the interpreter and that the Estab-
lishment Clause did not bar such relief. The lower court denied the on
the ground that the interpreter would act as a conduit for the child's
religious inculcation, thereby promoting his religious development at
government expense in violation of the Establishment Clause. The US
Supreme Court reversed.
The Court argued that the Establishment Clause does not prevent
the state from furnishing a disabled child enrolled in a sectarian school
with a sign language interpreter in order to facilitate his education.
Government programs that neutrally provide benefits to a broad class
of citizens defined without reference to religion are not readily subject
to an Establishment Clause challenge just because sectarian institutions
may also receive an attenuated financial benefit.'' The Court said that
the service being offered was part of a general government program that
tlistributed benefits neutrally to any child qualifying as disabled with-
out regard to the sectarian, non-sectarian, or public nonpublic nature of
thc school the child attends. By according parents freedom to select a
schtxrl of their choice, the statute ensures that a government paid inter-
s1,!'r,c
qsNo.92-94.
for Public Education v. Nyquist,413 U.S. 756 (1973).
a/s'o Committec
l)ccidcd Junc 18, 1991..!er Sullubus.
'''Mucllcr v. Allcn,4(r.l t.l.S. 3lltl; Wittcrs v. Wushington Dcpt. of Sorviccs for.Blind,474
t,s 48t.
 THE 1987 CONSTITUTION Sec.5
OFTHE REPUBLIC OFTHE PHILIPPINES
preter will be present in a sectarian school only as a result of individual
parents'private decisions. Since the program creates no financial incen-
tive for parents to choose a sectarian school, an interpreter's presence
there cannot be attributed to state decision-making' The fact that a pub-
lic employee will be physically present in a sectarian school does not
make the program unacceptable unlike other invalidated programs be-
cause they gave direct grants of government aid - instructional equip-
ment and material, teachers, and guidance counselors - which relieved
sectarian schools of costs they otherwise would have borne in educating
their students. Here, the child is the primary beneficiary, and the school
receives only an incidental benefit. In addition, an interpreter, unlike a
teacher or guidance counselor, neither adds to nor subtracts from the
sectarian school's environment but merely interprets whatever material
is presented to the class as a whole. There is no absolute bar to the plac-
ing of a public employee in a sectarian school.
Another significant case is Agostini v. Felton.es The case involved
a New York program which sent public school teachers into parochial
schools to provide remedial education to disadvantaged children. The
Supreme Court ruled that a federally funded program providing sup-
plemental, remedial instruction to disadvantaged children on a neutral
basis was not invalid under the Establishment Clause when such in-
struction is given on the premises of sectarian schools by government
employees under a program containing safeguards such as those present
in New York City's program.
Recalling the three part Lemon v. Kurtzman test, the Court said
that the program satisfied the first test,i.e., that it had a secular purpose.
But did the program advance religion? Reversing earlier decisions the
Court said that placing full time government employees on parochial
school campuses did not as a matter of law have the impermissible ef-
fect of advancing religion through indoctrination. The Court said that
no evidence had ever shown that any New York City instructor teach-
ing onparochial school premises attempted to inculcate religion in stu-
dents. What was being provided was no different from what was al-
lowed inZobrest.
Finally, as to an excessive entanglement between church and statc,
the Court said that the program did not require "pervasive monitoring
s8No. 96-552. Deci<icd Junc 23, l()t)7. Scc Sylhbus
Sec.5 ART. III _ BILL OF RIGHTS 357
by public authorities," and that "administrative cooperation" between
the government and parochial schools and the dangers of "political di-
visiveness" were insufficient to create an "excessive entanglement" be-
cause they are present no matter where such services are offered, and
that no court has held that such services cannot be offered off campus.
As of this writing, Zelman v. Simmons-Harrise is the latest on
school related non-establishment cases. The case involved Ohio's pi
lot Project Scholarship Program, a voucher program, which gave edu-
cational choices to families in any Ohio school district that is under
state control. The program provides tuition aid for certain students in
the Cleveland City School District to attend participating public or pri-
vate schools of their parents choosing and tutorial aid for students who
choose to remain enrolled in public school. Both religious and non-
religious schools in the district could participate, as may public schools
in adjacent school districts. Tuition aid is distributed to parents accord-
ing to financial need, and where the aid is spent depends solely upon
where parents choose to enroll their children. The program was upheld
on the ground that it was for a valid secular purpose of providing edu-
cational assistance to poor children in a demonstrably failing public
school system. As to the possibility of advancing or inhibiting religion,
the Court fell back on Agostini v. Felton and other cases. "This Courts
jurisprudence makes clear that a government aid program is not readily
subject to challenge under the Establishment Clause if it is neutral with
respect to religion and provides assistance directly to a broad class of
citizens who, in turn, direct government aid to religious schools wholly
as a result of their own genuine and independent private choicer See,
e.9., Muellerv. Allen,463 U.S.388. Under such a program, government
aid reaches religious institutions only by way of the deliberate choices
of numerous individual recipients. The incidental advancement of a re-
ligious mission, or the perceived endorsement of a religious message, is
reasonably attributable to the individual aid recipients not the govern-
ment, whose role ends with the disbursement of benefits."'m
Notably, however, all the above recent cases were reached by a
sharply divided Court.
wNo. (X)1751, Junc 27,2(X)2. Scc Syllnbus
""'Sir, r,g,. Mucller v. Allcn.46.l I l.S. iltlt
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
As for Philippine doctrine, one important point to understand is
the meaning of ecclesiastical matters over which secular authority has
no jurisdiction. Austria v. NLRCroo' dealt with a pastor of 28 years expe-
rience who could not account for church tithes and offerings collected
by his wife. He was dismissed. When the dismissal was upheld by the
NLRC, Austria challenged the jurisdiction of the NLRC saying that the
matter was an ecclesiastical affair outside the jurisdiction of the NLRC.
The Court disposed of the objection saying that an ecclesiastical affair
is "one that concerns doctrine, creed or form or worship of the church,
or the adoption and enforcement within a religious association of need-
ful laws and regulations for the government of the membership, and
the power of excluding from such associations those deemed unworthy
of membership." The Court said that what was involved in the case
was relationship of the church as an employer and the minister as an
employee, a purely secular matter." It is purely secular and has no rela-
tion whatsoever with the practice of faith, worship or doctrines of the
church. The Court saw the matter as a pure labor case.
A later case, Long v. Basa,'@2 was a matter of religious discipline.
The disciplinary regulation of the church involved allowed the Board
of Directors to expel a member for dishonorable conduct "injurious to
the character and interest of the Institution" without notice and hearing.
The Court observed:
The CHURCH By-law provision on expulsion, as phrased,
may sound unusual and objectionable to petitioners as there is no
requirement of prior notice to be given to an erring member before
he can be expelled. But that is how peculiar the nature of a reli
gious corporation is vis-d-vis an ordinary corporation organized for
profit. It must be stressed that the basis of the relationship between
a religious corporation and its members is the latter's absolute ad-
herence to a common religious or spiritual belief. Once this basis
ceases, membership in the religious corporation must also cease.
Thus, generally, there is no room for dissension in a religious cor-
poration. And where, as here, any member of a religious corpora-
tion is expelled from the membership for espousing doctrines and
teachings contrary to that ofhis church, the established doctrine in
this jurisdiction is that such action from the church authorities is
rm'G.R. No. l24382,August 16, 1999.
r(r)2G.R. Nos. 134963-64, Scptcnthcr 27, 2(X)l
Sec.5 Sec.5 ART. III - BILL OF RIGHTS
conclusive upon the civil courts. As far back in 1918, we held in
United States vs. Caftete that:
... in matters purely ecclesiastical the decisions of the
proper church tribunals are conclusive upon the civil tribu-
nals. A church member who is expelled from the member-
ship by the church authorities, or a priest or minister who is
by them deprived of his sacred office, is without remedy in
the civil courts, which will not inquire into the correctness of
the decisions of the ecclesiastical tribunals.
The Court also pointed to Section 91 of the Corporation Code:
SECTION 9l . Tbrmination of membership. Membership
shall be terminated in the manner and for the causes - provided in
the articles of incorporation or the by-laws. Termination of mem-
bership shall have the effect of extinguishing all rights of a mem-
ber in the corporation or in its property, unless otherwise provided
in the articles of incorporation or the by-laws.
Similarly, the expulsion or excommunication of members of a re-
ligious institution or organization is a matter best left to the discretion
of church officials, and the laws and canons, of said institution/organi-
'zation.It is not for the courts to exercise control over church authorities
in the performance of their discretionary and official functions. Rather,
it is for the members of religious institutions/organizations to conform
to just church regulations.'oo3
5. Non-discriminatory concessions: tax exemptions and
chaplaincies.
Unlike the American Constitution whose text does not embody
rxrn-discriminatory concessions to religion, the Philippine Constitution
c:xplicitly embodies some. Tax exemption of religious property is one of
lhcm. Article VI, Section 28(3) says: "Charitable institutions, churches
irrrtl parsonages or convents appurtenant thereto, mosques, non-profit
t'ernctcrics, and all lands, buildings, and improvements, actually, di-
rcclly. and cxclusively used for religious, charitable, or educational pur-
lxrscs shall bc cxempt from taxation." Thus the Philippine legal prob-
lcrr is rrol how to.justify the concession but to find out what its scope is.
"'"'litt'ttt,cl ll. v llishrp,(i.R. No. l44tt0l,Mnrch 10,2(X)5.
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
The present provision is an adaptation, first made in 1973,of Ar-
ticle VI, Section 22(3) of the 1935 Constitution which gave tax exemp-
tion to "[c]emeteries, churches, and parsonages appurtenant thereto, and
all lands, buildings, and improvements used exclusively for religious,
charitable, or educational purposes." The new provision exempts not
all cemeteries but only non-profit cemeteries. Moreover, the condition
for exemption under the new provision is not just that the property be
used "exclusively" for religious purposes but that it be used "actually,
directly and exclusively" for such purpose. Lladoc v. Commissioner
of Internal Reyenuetfuo explained the scope of the exemption under the
1935 provision. "The exemption," the Court said, "was only for taxes
assessed. ... as property taxes, as contra-distinguished from excise tax-
es." Thus, it does not cover a donee's gift tax which is not a tax on the
property itself but on the privilege of receiving property. The Constitu-
tion does not mean "exemption from all kinds of taxes. And there being
no clear, positive or express grant of such privilege by law, in favor of
petitioner, the exemption herein must be denied."
Even as it stands, however, the exemption is a remarkable form of
aid to religion. It therefore presents a problem under the non-establish-
ment clause. There has as yet been no case which treats the full import
of the changes originally made by lhe 1973 Constitution. Province of
Abra v. Hernando'*'does not go beyond a textual comparison of the old
and new provisions. The Court said:
Under the 1935 Constitution: 'Cemeteries, churches, and
parsonages or convents appurtenant thereto, and all lands, build-
ings, and improvements used exclusively for religious' charitable,
or educational purposes shall be exempt from taxation.'The pres-
ent Constitution added: 'charitable institutions, mosques, and non-
profit cemeteries' and required that for the exemption of 'lands,
buildings, and improvements,'they should not only be 'exclusive-
ly'but also 'actually'and 'directly'used for religious or charitable
purposes. ... There must be proof therefor of the actual and direct
uge of the lands, buildings and improvements for religious or char-
itable purposes to be exempt from taxation. ... "
For Philippine law the problem is solved by the cxplicit consli-
tutional provision. American constitutional law, which posscsscs ll()
rrxMl,-19201, Jrrrtc
l(r, l()(r5.
lrtrlO7 ((.Rn lO4. l0lt ()(nutiilst lt. l()Nl)
&
Sec.5 ART. III - BILL OF RIGHTS
similar provision, had occasion to grapple with the problem in WaIz v.
Tax Commission,'M which is a good example of the need for respond-
ing to the tension between the non-establishment clause and the free
exercise clause. At issue was a New York law which granted property
tix exemptions to religious organizations for religious property used
solely for religious purpose. Appellant argued that in effect the exemp-
tion required him to contribute to religious bodies in violation of the
religion clause.
The opinion which upheld the law and carried the imprimatur of
five Justices argued from the neutrality principle. chief Justice Burger,
writing for the majority, said:
It has not singled out one particular church or religious group
or even churches as such; rather, it has granted exemptions to all
houses of religious worship within a broad class of property owned
by non-profit, quasi-public corporations which include hospitals,
libraries, playgrounds, scientifi c, professional, historical, and pa-
triotic groups. The State has an affirmative policy that considers
these groups as beneficial and stabilizing influences in community
life and finds this classification useful, desirable, and in the public
interest.tmT
Burger then added that this was not a case of establishing religion
but merely "sparing the exercise of religion from the burden of property
taxation levied on private profit institutions."roo8 Finally, Burger found
the law necessary for preventing excessive entanglement between state
and religion. "Elimination of the exemption would tend to expand the
involvement of government by giving rise to tax valuation of church
property, tax liens, tax foreclosures, and the direct confrontation and
conflicts that follow in the train of those legal processes."rooe "It restricts
the fiscal relationship between church and state, and tends to compli-
ment and reinforce the desired separation insulating each from the
()thef."roro
Another direct financial aid to religion comes in the form of sal-
:rry tbr chaplains of the armed forces, penal institutions, orphanages
rrb197 u.s.664 (1970).
ttrtt
ld. at 671.
ru,rra/.
rrrnft/. ul 674.
rorrr/r/. ll 676.
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
and leprosaria. Again in Philippine law, the constitutional problem is
solved by an explicit provision allowing salary for priests, preachers,
ministers or dignitaries "assigned to the armed forces, or to any penal
institution, or government orphanage or leprosmisln."tott American law
likewise allows such financial aid in spite of the absence of a constitu-
tional provision to that effect. Justice Brennan gives the rationale thus:
"Since government has deprived such persons [soldiers and inmates]
of the opportunity to practice their faith at places of their choice, the
argument runs, government may, in order to avoid infringing the free
exercise guarantees, provide substitutes where it requires such persons
to be."ror2 Thus, in effect, government maintains its neutrality by afford-
ing a balancing factor for the restriction of free exercise.
6. Religion in the public schools.
The original draft of the 1935 Constitution contained the follow-
ing provisions: "Optional religious instruction in public schools as now
authorized by law shall be maintained."ror3 The law on the subject at the
time of the Convention was Section 928 of the Revised Administrative
Code. It read:
It shall be lawful, however, for the priest or minister of any
church to establish in the town where a public school is situated,
either in person or by designated teacher of religion, to teach reli-
gion for one-half hour three times a week, in the school building,
to those public school pupils whose parents or guardians desire it
and express their desire thereof in writing filed with the principal
teacher of the school, to be forwarded to the Division Superinten-
dent, who shall fix the hours and rooms for such teaching. But no
public-school teachers shall either conduct religious exercise or
teach religion or act as a designated religious teacher in the school
or building under the foregoing authority, and no pupils shall be
required by any public-school teacher to attend and receive the
religious instruction herein permitted. Should the opportunity thus
given to teach religion be used by the priest, minister or religious
teacher for the purpose of arousing disloyalty to the Republic of
the Philippines, or of discouraging the attendance of pupils at such
rorrArticle VI, Section 29(2).
r"r2Concurring in Abington St:hrxrl l)istrict v. Schcnrpp, :t74 I I.S. 201, 297-ll
lt'frJ. Attuli<xr, 'lit*. I''xtrutttt; ot tttt; l'tm trrwt: ('olsrrrrillorv ()t)2 ( I () 17 ).
Sec.5 Sec.5 ART. III _ BILL OF RIGHTS
public school, or creating a disturbance of public order, or of inter-
fering with the discipline of the school, the Division Superinten-
dent, subject to approval of the Director of Public Schools, may,
after due investigation and hearing, forbid such offending priest,
minister, or religious teacher from entering the public school
building thereafter.
To the proposed constitutional provision, DelegateArtadi present-
ed the following amendment:ror4
En todus las escuelas publicas se incluira entre las asigna-
turas la moral o la instruccion religiosa a opcion de los padres o
encargados de los discipulos.
Artadi's original idea was to propose compulsory instruction in
religion and morals; but it was immediately obvious to him and to his
advisers that such a proposal would meet with approval neither from
the Convention nor from the President of the United States. Hence, he
proposed that religion and morals, while made part of the school cur-
riculum, should be taken only at the option of parents or guardians. He
believed that such instruction was needed for the welfare of the country
and that the option given to parents was sufficient to free the provision
from the restriction of the Tydings-McDuffie Law prescribing separa-
tion of church and state.rors Moreover, he said, the actual practice of
allowing religious instruction in the public schools was proof enough
that religious instruction was not and would not be a source of religious
discord in the schools.1016Artadi even drew applause from the delegates
when he said''or7
r0r4"In all public schools, morals or religious instruction at the option of parents or guard-
rnns shall be made a part of the curriculum." 10 CONSTITUTIONAL CONVENTION RECORD
,' 5 (Congress Ed., 1967 ).
K\31d. at25-28.
tttt6ld. at29.
'u'?... Si en nueslras escuelas no se exigeria el conocimiento de la gramatica y de Ia
tfitn,di.:u, tarde or temprano el nino de dara cuenta de la importancia de estos conocimientos,
lrt,llu( sc dora cuenta de que en Ia lucha por la vida es necessario saber un lenguaje y conocer
hn numeros, k) que no oconlece en cuenlo a la religion. Muchos de los alumnos so se dan cuenta
rlt' r.sttt irttportunciu, porque no Ia sienren de cerca en sus necesidades materiales,y con esto Pierde
al !,..rtado, lu nucion, la oytrtunidod de moldear con sanos principios eI caracter de laiuventud
( 1963) Itlrpint; picnle la ocusion c! Estutlo de crear en el individuo un racional iuicio de referrir el bien
l ttdutzur el mttl. . . " 2/. nt 30.
I
 THE 1987 CONSTITUTION Sec.5 Sec.5 ART. III - BILL OF RIGI{TS
OFTHE REPUBLIC OFTHE PHILIPPINES

... If the knowledge of grammar and of arithmetic were not Artadi's amendment was rejected and the original proposal was
required in our schools, sooner or later the child would [never_
approved.'o" It became Article XIV, Section 5 of the 1935 Constitution.
thelessl realize the importance of knowing them, because he will
come to realize that, in the struggle for life, knowledge of a lan_
As with tax exemption and chaplaincies, therefore, the constitutional
guage and of arithmetic is necessary. This realization does not problem of religion in the public schools was solved by a specific con-
come about with regard to religion. Many students do not come stitutional provision. Since, however, the constitutional provision made
to realize this importance because they do not feel its relevance reference to religious instruction "as now authorized by law," the ques-
to their material needs. Because of this, the state, the nation, loses tion arose whether Section 928 of the Revised Administrative Code,
the opportunity of molding the character of Filipino youth accord- which was the existing law on the subject, itself became part of the
ing to sound principles; the state loses the occasion for creating in Constitution. Some argued that the Constitution had merely approved
the individual a habit of mind which rationally chooses good and the concept of religious instruction in the public schools and had left the
rejects evil. ...
details of implementation to the legislature. Others maintained that Sec-
tion 928 had been incorporated into the Constitution by reference and
Moreover, he said, the proposal would not cost the government
hence could no longer be touched except by constitutional amendment.
any money because the financial burden would be bome, as in the exist-
ing system, by the religious groups.r0r8 The question was never settled under the 1935 Constitution but it
was rendered academic by the 1973 Constitution. Article XV Section
Answering Artadi's speech, Delegate Roxas very pointedly
8(8) (1973) said: "At the option expressed in writing by the parents
showed that the suggestion was impracticable'r're "... we would have to or guardians, and without cost to them and the government, religion
have a professor for every religion. And it will very easily happen that
shall be taught to their children or wards in public elementary and high
the father of a child will say that he wants his son to be instructed in the
schools as may be provided by law)'Thus, as long as the option of
religion, for example, of Zoroaster or the Mormons.',
parents expressed in writing is respected and as long as the system is
Another Delegate who spoke against the amendment was Del- without expense to the parents and to the government, religion may be
egate castro, himself a religious minister of his church. castro spoke taught in the public schools. Implicit in this provision therefore is that
both against the amendment and against the original provision allow- public school physical facilities may be used and all other details are
ing optional religious instruction in public schools. He argued that the left to ordinary legislation.
proposals (1) violated the non-establishment clause, (2) violated the
The provision has once again undergone transformation under the
prohibition against the use of public funds for religious purposes, (3)
1987 Constitution. Article XIV Section 3(3) now reads: "At the option
could make dangerous books available to the young, (4) could facili-
expressed in writing by the parents or guardians, religion shall be al-
tate the way for any demagogue bent on spreading anarchical ideas.
lowed to be taught to their children or wards in public elementary and
Then he concluded: "To make one a good christian and a virtuous man,
high schools within the regular class hours by instructors designated
it is more than sufficient if he learn by memory any compendium of
or approved by the religious authorities of the religion to which the
christian doctrine without having to take a religion course in public
children or wards belong, without additional cost to the government."
SChOOIS.',,020
The 1973 requirement that the option of the parents or guardians be
expressed in writing was retained against the argument that such a re-
totsld. at34. quirement would impose an unnecessary and, in some instances, diffi-
tote... tendriamos
un profesor para cada religion que se he de enserutr y se ptxlritt evtulir
cult burden. The new provision, however specifies that religion classes
muy facilmente esto, con tal que el padre de un nino diga que quiere que su hi.jo seu irtspuiltt rn
la religion, por ejemplo de Zoroastro o de los mormones." Itl. at 33 .
may be held "during regular class hours." This specification provides
tD2o'Para hacer a cualquiera
butn t'ristiuno .y homhn, r,irturt,;tt hu.\ld \t .\(,hru qur tprunltt
de memorio <'uttlquier cttmptndio dr I\u trint ('ristint sin nu.rttitltrl d( (urs(tr ht rrligitnr 1t ht.t
t.rtm,hr publitus. " /r/. irl .i,1 4l
.
"''rlr/. rl 4.1
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
a uniform rule to be followed by all school administrators. In specify-
ing that the instructors must be "designated or approved by religious
authorities of the religion to which the children or wards belong" the
law spares the school administrator from the responsibility of having to
decide who among competing claimants is the person entitled to teach
a particular religious group. Moreover, it was the sense of the Commis-
sion that volunteering public school teachers may be allowed to teach
religion but, in order to avoid any suspicion of religious pressure on
pupils they may be regularly teaching, not in the school where he or she
may be regularly teaching. As to the phrase "without additional cost to
the Government," its meaning is that religious instruction should not
cost government anything over and above normal maintenance costs
such as the cost of wear and tear on the building,janitorial services, and
electrical cost to light the building. The 1973 provision which said that
the teaching should not involve additional cost for parents was removed
on the reasoning that, at any rate, government cannot impose extra cost
on parents.ro22
7. Intramural religious disputes.
Another type of cases which has reached the Court deals with the
intramural conflicts within the Philippine Independent Church. The
leading case on the subject is Fonacier v. Court of Appeals.to23 Atissue in
the case was the right of control over certain properties of the Philippine
Independent Church. Whether the civil courts could take cognizance of
such conflict was problem enough. It was, however, not a simple intra-
mural property conflict. What made it more complicated was the fact
that the property conflict could be settled only by the resolution of an
eminently ecclesiastical question: Who was the legitimate bishop of the
church? The Supreme Court cut this initial knot by a simple appeal to a
passage in Ame ri c an J ur is prudenc e :t02a
Where, however, a decision of an ecclesiastical court plainly
violates the law it professes to administer, or is in conflict with the
law of the land, it will not be followed by the civil courts. ... In
some instances, not only have the civil courts assumed the right to
'o22On all of this, see Session of September 6, lgtl(r
ru396 Phil. 4l 7 ( 195-5).
tt\2ald. irl426, quoting
45 Anr, Jur. 77.
Sec.5 ART. III - BILL OF RIGHTS 367
Sec.5
inquire into the jurisdiction of religious tribunals and the regularity
of their procedure, but they have subjected their decisions to the
test of fairness or to the test furnished by the constitution and the
law of the church. Thus, it has been held that expulsion of a mem-
ber without notice or an opportunity to be heard is not conclusive
upon the civil courts when a property right is involved.
Having said this, the Court ruled, on the basis of the internal laws
of the Philippine Independent Church, that Fonacier was not the le-
gitimate bishop, that his ouster had been legitimately done, and that his
rival, de los Reyes, was the duly elected head of the Philippine Indepen-
dent Church.ro25 The next question was: Whose faction should control
the controverted ProPertY?
The contention of Fonacier was that his faction should control the
property because de los Reyes' opposing faction consisted of schismat-
ics. He argued that "in case of schism within a church its properties
should remain with the faction that continues adhering to the original
doctrines and practices of the church irrespective of whether it consti-
tutes a majority or minority ffislssf."rozo The Court answered with an-
other ecclesiastical ruling: the factions arose not out of a schism, which
requires doctrinal differences, but out of a simple physical division into
two groups. The doctrinal differences, the Court found, came after the
physical division became a reality.''"
The ultimate position taken by the Supreme Court, however, did
not require any further discussion of the question whether there was or
there was not in fact a schism. The Court said that even if there in fact
had been a schism, the law could not favor Fonacier. The Court said that
the rule established in Watson v. Jonestu| was that in the case of prop-
erty controversies within religious congregations strictly independent
of any other superior ecclesiastical association (such as the Philippine
Independent Church was), the rules for resolving such controversies
should be those of any voluntary association. If the principle adopted by
the congregation is rule by majority vote, then the vote of the majority
n25
Id. at 432_8.
t,'20|d. at 44l,cirlng American Authorities. Strangely, watson v. Jones, 13 Wall 679 (U.S.
IttTl)iscited.
rrtr?(Xr
Phil.lt 442.
r"'"()6
I'hil. rrt 44 I , citing Atltcrictttt ttttlhoritics.
 THE I98? CONSTITUTION Sec.5
OF THE REPUBLIC OF THE PHILIPPINES
should prevail; if the principle followed is adherence to duly constituted
authorities within the congregation, then the voice of duly constituted
authorities should prevail.toze The Court concluded that, whichever prin-
ciple was applied, Fonacier should lose the case. And lose he did.
The decision in Fonacier should be compared with those in Goz-
Zalesroto and in the two Verzosa cases.ro3' This latter set of cases also
involved an intramural property dispute, but, it will be recalled, the
Court took a neutral position. The matter was left to the decision of
intramural authorities. The difference between this and the Fonacier
case lies in the fact that, whereas in the Fonacier case the disputants
were not subject to a higher ecclesiastical authority, inthe Gonzales and
Verzosa cases both disputants were subject to superior Catholic Church
law and judicial authority. But, even inthe Fonacier case,there was one
area which the Court would not touch: doctrinal and disciplinary differ-
ences. The Court said'l.,
The amendments of the constitution, restatement of articles
of religion and abandonment of faith or abjuration alleged by ap-
pellant, having to do with faith, practice, doctrine, form of wor-
ship, ecclesiastical law, custom and rule of a church and having
reference to the power of excluding from the church those alleg-
edly unworthy of membership, are unquestionably ecclesiastical
matters which are outside the province of the civil courts.
8. Religious tests and obligations of citizenship.
The third sentence of Section 5, Article III says: "No religious
test shall be required for the exercise of civil or political rights." The
purpose of this provision, which is but a corollary of the freedom and
non-establishment clause, is to render the government powerless "to
restore the historically and constitutionally discredited policy of prob-
to2e96
Phil. at 442-3.
ror5l Phit.420(t928).
Phil.307 (.1930); 49Phil.627 (1926).
'03155
I 0t96 Phil . a1 y'l! quoting 45 Am . Jur. 7 43-52 and 7
, 55 .
The principle that decisions of civil courts should not be made to tum upon whether 6nc
or other of the competing factions has departed from orthodox doctrine has fouryi affirmution in
recent American decisions. Kedroff v. St. Nicholas cathedral, 3,14 u.s. 94 (1952\: Kreshik v. st.
Nicholas Cathedral,363 U.S. 190 (196{D; Presbyterian Church in the United States v. Mnry l.lliet.
beth llluc Hull Mcmorial Preshytcrian Church, 393 U.S. 44{) ( 1969).
Sec.5 ART. III _ BILL OF RIGHTS
ing religious beliefs by test oaths or limiting public offlces to persons
who have, or perhaps more properly, profess to have a belief in some
particular kind of religious corcept."to:r For, indeed, to allow religious
tests would have the effect of "formal or practical 'establishment' of
particular religious faiths ... with consequent burdens imposed on the
free exercise of the faiths of non-favored believers."'o3o
As already seen in Pamil v.Teleron,to35 the Supreme Court rejected
the notion that the prohibition imposed on "ecclesiastics" from holding
appointive or elective municipal offices was a religious test. But, as
already noted, McDaniel v. Pattyto36 declared a similar law violative of
the free exercise clause.
When the religious test that is imposed by law is overt and clear,
the constitutional problem it presents is easy to resolve. Torcaso v.Wat-
kinsto3. presented a clear case. At issue there was the state law which re-
quired belief in the existence of God as a qualification for a notary pub-
lic commission. The Supreme Court had no difficulty in declaring the
law to be an unconstitutional religious test. There are, however, certain
requirements partaking of the nature of religious tests which have divid-
ed the United States Supreme Court. In United States v. Mackintosh,t03s
the Supreme Court upheld the denial of citizenship to one who because
of religious scruples refused to take an oath to bear arms in defense of
the United States. Later, however, Girouard v. United Statest\3e over-
ruled Mackintosh saying: "The test oath is abhorrent to our tradition.
... We do not believe that Congress intended to reverse that policy
when it came to draft the naturalization oath. Such an abrupt and radi-
cal departure from our traditions should not be implied."toao But in In
re Summersro4' a divided Supreme Court upheld the denial of a license
to practice law to one who entertained conscientious scruples against
participation in war. The decision drew this dissent from Justice Black:
rosrTorcaso v. Watkins, 367 U.S. 488,494 (1961).
ta4ld. at 490.
(November 29, 1978).
'0$86 SCRA 413
1016435
U.S. 6l 8 ( 1978).
t"t1
Supra.
nrt28j U.s. 60-5 ( l93l ).
rore.l2ll [,.s. 6l ( 1946).
Ixrft/, ul 69.
rir.l25 lt.s. 561 ( lr)45).
 THE 1987 CONSTITUTION Sec.5
OFTHE REPUBLIC OFTHE PHILIPPINES
"I cannot agree that a state can lawfully bar from a semi-public posi-
tion a well qualified man of good character solely because he entertains
a religious belief which might prompt him at some time in the future
to violate a law which has not yet been and may never be enacted."r'a2
The opposite side of religious tests is the imposition of civic obli-
gations that might conflict with a person's religious beliefs. Aspects of
this problem have already been seen in the discussion of the Flag salute
Law in Gerona v. secretary of Education,tw rater reversed by Ebralinag
v. Division superintendent of schools,'* and of compulsory schooling
in wisconsin v. Yoder.t*s Another important aspect is the problem raised
by conscientious objectors. can the state compel a person to bear arms
in defense of the country even when bearing arms is contrary to the
person's religious beliefs?
That a citizen has the duty to defend the country is clear from
Article II, section 4,'* and from the former Article V section I of the
1973 constitution.ro4? Defense of one's country, however, is not lim-
ited to the bearing of arms. "Total war in its modern form dramatizes
as never before the great cooperative effort necessary for victory. The
nuclear physicists who developed the atomic bomb, the worker at his
lathe, the seaman on cargo vessels, construction battalions, nurses,
engineers, litter bearers, doctors, chaplains-these, too, made essential
contributions."'*t Thus, it is that from the earliest history of American
constitutional law conscientious objectors have been exempted from
direct military service. The cases that have been handled by American
courts have mainly dealt with the problem of determining not whether
twld. at 578.
re3l06 Phil.2 (1969).
rw2l9 SCRA 256 (1993).
rs5406 U.S. 205 (1972).
'M'The Prime duty of the Government is to serve and protect the people. The Govemmcnt
may call upon the people to defend the State and, in the fulfillment thereoi, all citizens
may be
requiled, under conditions provided by law, to render personal military or civil service." The
1973
version, Article II, section 2, read: "The defense of the state is a prime duty of the Government
and the people, and in the fulfillment of this duty all citizens may be required by 1aw t6
rcndcr
penonal military or civil service."
rs7"It shall be the
, duty ofthe citizen to be loyal to the Republic and to honor the philippine
flag, to defend the state and contribute to its development and welfare, to uphold Jrc constitutirxr
and obey the laws, and to cooperate with the duly constitutetl authorities in rhc ntttinrnent
tntl
preservation of a just and orderly s(rciety."This doos n()t ap;rcur in rhc 1987 (irnstitutign.
rrx8Girouar<l v.
[.lnited Stutcs, .l28 U.S. tt (r.1.
Sec.5 ART. III _ BILL OF RIGHTS 371
anybody should be exempt but rather which classes of persons are cov-
ered by existing statutory exemptions.'@e
It should be noted, however, that when the State exempts a per-
son from military service on religious grounds, the State in effect gives
preferential treatment to religious affiliations which object to war over
ieligious affiliations which do not object to war. Is not such an exemp-
tion then conffary to the non-establishment clause? GilleXe v. United
Statestoso dealt with this question and answered that the exemption
could
violate neutrality only if it is religiously motivated on its face,rO5r or
when it is religiously discriminatory.rosz This was not the case in Gillette
because the Court found that the exemption in question was supported
by valid reasons, neutral with respect to religion, such as the need to
insure a fair and uniform system for deciding who will and who will
not be forced to serve'ros3
Philippine jurisprudence has not yet had the opportunity to deal
with the probl". of conscientious objectors. when such opportunity
comes, it will be well to recall Article XIV Section 11, of the 1973
Constitution, which says: "The State shall consider the customs, tra-
ditions, beliefs, and interests of national cultural communities in the
formulation and.implementation of State policies." The same sentiment
is now expressed in Section 17, Article XIV of the 1987 Constitution:
,,The
State shall recognize, respect, and protect the rights of indigenous
cultural communities to preserve and develop their cultures, traditions,
'and institutions. It shall consider these rights in the formulation of na-
tional plans and policies." In other words, the fact that an obligation has
been imposed on citizens by the Constitution to defend the State does
not mean that the obligation imposed overrides all rights'
The approach followed by the United States Supreme Court in
dealing with conscientious objectors to war could have been useful in
dealing with the problern'regarding suffrage arising from Article v
Section 4, of the 1973 Constitution which imposed the obligation to
register and vote. The provision was supported by penal legislation but
rne8.g., selective Draft cases, 245 U.S. 366 ( 1918); United states v. Seeger, 380 U.S. 163
( 1965)l Cillene v. United Statcs, Negre v. Larsen,40l U S' 437 (1971)
roa,40l (J.s. 4j7 ( l97l ).
Inr/d. nt 460.
t"'l<1.
tL 462.
r"1'/r/. ttt 4(rl
 372 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
no case involving the provision reached the supreme court. The obliga-
tion has since been removed by the 1987 constitution by being silent
about it.
9. Church and state under martial rule.
The decade of martial rule brought about near confrontations be-
tween the state and the catholic church. The tension continued even in
the post-martial law era chiefly because of two factors: the expanded
powers of the state under the 1973 constitution on the one hand, and on
the other the church's perception of an expanded mission.
The expanded powers of the state were most dramatically mani-
fest in the martial law jurisprudence under the 1973 constitution,'s4 and
in Amendment 6r05i of the same constitution. The expansion of the no-
tion of protected religion beyond the theistic has been seen in Torcaso v.
watkins.1056It is also necessary to explain the forces that have influenced
and shaped the church's socio-economic-political position over the past
decade or so.
The transformation of the church in recent years was brought
about by a new awareness of what she is, a new awareness which in
turn has resulted in a new vision of what she is called to do and which
has led to the adoption of methods of action more suited to the de-
mands of the new awareness and of the new vision. Recent reflection
of the church, particularly of the third world church, has awakened an
awareness that the church must have a preferential optionfor the poor.
This new awareness found articulation in encyclicals such as populo-
rum Progressio, in the world Synod document witnessing to Justice,
and in the reflections of local churches particularly in Medellin and
Puebla. This awareness has been system atizedinto a theology of libera-
tion which has had a profound impact not just on young seminarians,
religious, and students but also on church leaders.
This new awareness is clearly visible in the pastoral Letter Evan-
gelization and Development issuedby the catholic Bishops conference
of the Philippines in July 1973.The letter reflects on the inequitable
distribution of income, on unemployment and underemproyment, orr
rosaBEnrvas,
Panur nur: Cousnt urnNn. Lew 506-517 ( 1984 Ed.)
tlssld. at 54O-543.
1016367
[J.S. 4tt8 ( l96l ).
Sec.5 Sec.5 ART. III - BILL OF RIGHTS 3'73
housing and land use. It criticizes ostentatious display of wealth and
a tax structure biased against the poor. The pastoral letter clarifles the
church's changed understanding of its vocation in the world today. It
expresses the church's concern for society and for the poor no longer
mainly in terms of personal almsgiving or working in charitable institu-
tions but especially in terms of its duty to participate in the building of
a new social order.
This new understanding logically led to major shifts in the church's
social action programs. The most important expression of this shift was
the simultaneous rise in diverse places and in diverse forms of Basic
Christian Communities.
Their common denominator was the effort to integrate social ac-
tion and faith within communitY.
These shifts of apostolate have required and in turn have been in-
fluenced by new methods of analysis and organization. Structural Anal-
ysis together with other methods have been very effective in consci-
entizing different sectors, giving participants a sharper understanding
of the forces operating in society, of the need for structural reform, of
the role they can play in the process of change. Methods of community
organization developed by Saul Alinsky were also introduced among
the urban poor in Manila. These methods provided a viable process
for tfanslating the desire for community organization and people-power
into reality. In turn, experience in the use of these methods of analysis
and conflict-confrontation had a profound effect on the church's under-
standing of its vocation and role in society.
The forces of change described above were already pres0nt be-
lore martial law was imposed in 1972; but the advent of martial law
served to heighten both the church's awareness of her necessary role
and her position of leadership in the socio-political field. After martial
law shocked many into the need for action and involvement, for a long
while martial law left the church as the only forum where opposition
lnd criticism could still be openly voiced.
expanded governmental powers and of a
It is in this context of
rrrrlrc socially involved church that the two religion clauses must be
lcittl.
It shoultl bc nOtctl that whilc religion lirr purposcs of the free ex-
'litr<'ustt and
e rcisc claUsc ltits bcctt givcltt ittt Cxpttttsivc tttcanittg, r'.3. in
JL
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
Gironella, it seems that religion for purposes of the non-establishment
clause has been kept narrow. The difference in scope is sometimes ex-
pressed thus: everything that is arguably religious is protected by the
free exercise clause, but everything that is arguabry non-rerigious may
be the subject of state support of involvement. Thus, while transcen-
dental meditation may not be much different from secular methods of
body control and concentration, for some at least it is a form of religious
practice and therefor is protected by the free exercise clause; conversely,
since it is also arguably non-religious, presenting it as a course in a pub-
lic school should not violate the non-establishment clause. similarly, in
our Philippine context, while some activities of basic christian commu-
nities and church social action centers might not materially differ from
those of barangay action groups or of government welfare agencies, in
motivation and initial inspiration at least church related activities are
arguably religious and therefor should be jealously protected by the free
exercise clause; and since these same activities are also arguably non-
religious but social and humanitarian, they can be the subject of state
support without violating the non-establishment clause.
It should be pointed out on the one hand that the main beneficia-
ries of the expanded notion of religion for purposes of free exercise are
what one might call the "freak minority," or the innovative ones, or the
unorthodox, or those who might rock the boat. And in our context, it is
the boat rockers, howsoever gently they might rock, that make the pilots
of our ship of state nervous. But the constitutional guarantee exists not
just for the traditionally pious but also and especially for the boat rock-
ers. Again, as the Pastoral Letter of l3 February 1983 said:
The fact is that [the] issues are not merely and narrowly po-
litical problems. They do fall under the religious mission of the
Church for the simple reason that there is a way of working for
development, there is a way of dissenting from unjust laws, a way
that is either in accordance with or, on the contrary, in contraven-
tion of the law of the Gospel. It is a Gospel which includes work-
ing for justice as a 'constitutive element' of our preaching (Cf.
Bishops' Synod of 1971).
On the other hand, it should also be pointed out that maintaining
a nrurow definition of religion for purposes of non-establistrment is an
accommodation to the expansive reach of government and prevents a
situation where every "humane" program of government coulcl bc rcn-
Sec.5 Sec.6 ART. III _ BILLOFRIGHTS 375
dered suspect as an act of establishment of religion. The thinking in
Garces v. Estenzo goes in the direction of a narrow definition of religion
for purposes of non-establishment.
SBc.6. Tnn r,rnnnrv oF ABoDE AND oF cHANGING TIrE sAME
WTTIIIN TIIE LIMITS PRESCRIBED BY LAW SITALL NOT BE IMPAIRED
ExcEpr upoN LAwruL oRDER oF THE couRT. Nurmn sITALL THE
RIGHT TO TRAVEL BE IMPAIRED EXCEPT IN TIIE INTERFJT OF NATIONAL
SECURITY, PUBLIC SAFETY' OR PT'BLIC HEAITH' AS MAY BE PROVIDED
BY LAW.
1. Freedom of movement: liberty of abode and of travel.
Concurring in Aptheker v. Secretary of State,'l" Justice Douglas
said: "Free movement by the citizen is of course as dangerous to a ty-
rant as free expression of ideas or the right of assembly and it is there-
fore controlled in most countries in the interest of security. ... That
is why the ticketing of people and the use of identification papers are
routine matters under totalitarian regimes."
in Section 6 includes two rights: the lib-
Freedom of movement
erty of abode and the liberty of travel. Under the 1935 Constitution the
two liberties were treated under one provision. Article III, Section 1(4)
said: "The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired." The teaching then was that no
one could be compelled to change his or her home except in accordance
with law. Thus, when the Mayor of Manila sought to cleanse the city of
prostitutes by sending them to Davao, the Supreme Court stoppep him'
The Court said in Villavicencio v. Lukban ro5s "If [the City Mayor and
Chief of Policel can take to themselves such power, then any official
can do the same. ... And if a prostitute could be sent against her wishes
and under no law from one locality to another within the country, then
officialdom can hold the same club over the head of any citizen."'05e
The 1973 Constitution altered the 1935 text to read: "The libeny
of abode and of travel shall not be impaired except upon lawful order of
(,17j78
U.c. 5m,519 ( l964).
ro5i19 Phil. 771t,7116 ( l9l9).
Itrrql'lrc conlinerncnt of Mungyrns in rc$ervationli in Rubi v. Provincial Board' 39 Phil.660
(l9l9) wn!$ by vinuc ol n lttw prtssctl by thc lcgisltrtrrrc.
 THE 1987 CONSfiTUTION
OF THE REPUBLIC OF THE PHILIPPINES
the court, or when necessary in the interest of national security, public
safety, or public health."r060 The liberty could thus be impaired either
"upon lawful order of the court" or even without such order of a court
provided that the restriction is "necessary in the interest of national se-
curity, public safety, or public health." The phrase "within the limits
prescribed by law" in the 1935 provision disappeared. Thus, the net
effect was that an executive officer could impair liberty of abode and
of travel even without a prior court order provided only that in the ex-
ecutive officer's judgment impairment was "necessary in the interest of
national security, public safety, or public fisal1fu."roor
Publicized cases of "hamletting," or the herding of people into a
militarily quarantined sanctuary within rebel areas during the regime
of Mr. Marcos should have come under this provision; but they never
reached the Supreme court. Thus there are no decided cases touching
on liberty of abode under the l9z3 constitution. But drastic attempts
by the government to control the travel of citizens during the period
of martial law did reach the court. The curtailment took the form of
denial of exit permits to some who wanted to leave the country. The
court had occasion to warn the Travel processing center to be ever,.on
its guard,lest the impression be created that such declarations amount,
to paraphrase Justice Jackson, to no more than a munificent bequest in
a pauper's will."ro62 Unfortunately, however, right to travel cases dur-
ing martial law tended to become moot because court action generally
came after the eventual grant of an exit permit.
The 1987 constitution has strengthened the guarantee by splitting
it into two distinct sentences and treating them differently. The liberty
of abode is treated in the first sentence. It may be impaired only ..upon
lawful order of the court," and the court is to be guided by .,the limits
prescribed by law" on the liberty itself. The clear intent was to proscribe
practices like "hamletting."roo: A clear example of an allowable order of
a court would be a condition imposed in connection with the grant of
bail. Thus, where the court of Appeals imposed the condition that the
accused secure "a certification/guaranty from the Mayor of the place of
his residence that he is a resident of the area and that he will remain to
'mArticle IY Section 5 ( 1973). u 6.r.r ( 1993).
106ll97l Constitutional
Convention. Session of Novembcr 25,lg7l.
r62Salonga v.
Hermoso, 97 SCRA l2l, 123-4 (April 25, lgll0).
rr)nrl
RECORI) 671, 7 l S.764.75.
Sec.6 Sec.6 ART. IU _ BILLOFRIGHTS
be a resident therein until final judgment is rendered or in case he trans-
fers residence, it must be with prior notice to the court," the Supreme
Court held the condition to be a "lawful order" consistent with the na-
ture and function of a bail bond.'*
As to liberty of travel, under the 1987 law, it may be impaired
even without court order, but the appropriate executive officer is not
armed with arbitrary discretion to impose limitations. He can impose
limits only on the basis of "national security, public safet!, or public
health" and "as may be provided by law," a limitive phrase which did
not appear in the 1973 text.
Impairment of this liberty, moreover, must be subject to judicial
review as even emergency measures taken by the executive are subject
to judicial review.r065 The Constitution itself sets down the measure of
o'in
allowable impairment: necessity the interest of national security,
public safety, or public health"'* as well as explicit provisions of statu-
tory law or the Rules of Court. Thus, for instance, a person who is out
on bail may be prevented from leaving the country. The right to travel
should not be "construed as delimiting the inherent power of the Courts
to use all means necessary to carry their orders into effect in criminal
cases pending before them. When by law jurisdiction is conferred on
a Court or judicial officer, all auxiliary writs, process and other means
necessary to carry it into effect may be employed by such Court or
6ffigs1."toez 4nd when a person who is out on bail asks for leave to travel
for medical reasons, it is within the prerogative of the court to seek the
advise of medical experts regarding the necessity of going abroad.'*'
But it has also been ruled that when a hold order has expired and no
good reason appqrs for extending it, an alien may not be prevented
from leaving the country.'6e
rHYap, Jr. v. Court of Appeals, G.R. No. 141529, June 6, 2001.
rfrsArticle VII, Section l8 and Article VIII, Section 1.
rhSee Edwards v. California, 314 U.S. 160 (1941) (interstate travel) and Zemel v. Rusk,
Itt I Ll.S. I (1965) (travel to Cuba).
r$?Rule 136, Section 6, Rules of Court; Silverio v. Court of Appeals, G.R. 94284, April 8,
l()91; Mlnottr, Jr. v. Courl of Appeals, 142 SCRA I49 (1986); Santiago v. Vasquez,2l? SCRA
"*Mlrrcos v. Suntliganhuyrn, (i.R . Nos. I I 5 I 32-34, August 9, 1995.
"mKant Kwtrrg v. l'('(i(i, l5() S('RA 222,212 (l9lt7), citing ulso the Universal f)eclara-
trorr ol llrtrrurrr Rrgltls.
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
The celebrated case on this provision was Marcos v. ManglapustoT,
which dealt with the ban of President Aquino on the former President's
return to the Philippines. The ban was challenged as violative of the
right to travel and the right to return to one's abode. The Court treated it
merely as involving the right to travel. And since the authority to impair
the right to travel must be based on law, the President had to be able to
point to a law giving her such authority. The Court, speaking through
Justice Cortes, found this in the totality of executive powers, both stated
and unstated in the Constitution, explicit and residual:ro7r
The Constitution declares among the guiding principles that
"[t]he prime duty of the Government is to serve and protect the
people" and that "[t]he maintenance ofpeace and order, the protec-
tion of life, liberty, and property, and the promotion of the general
welfare are essential for the enjoyment by all the people of the
blessings of democracy." [Art. II, Secs.4 and 5.]
Admittedly, service and protection of the people, the main-
tenance of peace and order, the protection of life, liberty and prop-
erty, and the promotion of the general welfare are essentially ideals
to guide governmental action. But such does not mean that they
are empty words. Thus, in the exercise of presidential functions, in
drawing a plan of government, and in directing implementing ac-
tion for these plans, or from another point of view, in making any
decision as President ofthe Republic, the President has to consider
these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right
to allow the Marcoses to return to the Philippines, the President is,
under the Constitution, constrained to consider these basic prin-
ciples in arriving at a decision. More than that, having sworn to
defend and uphold the Constitution, the President has the obliga-
tion under the Constitutron to protect the people, promote their
welfare and advance the national interest. It must be borne in mind
that the Constitution, aside from being an allocation of power is
also a social contract whereby the people have surrendered their
sovereign powers to the State for the common good. Hence, lest
the officers of the Government exercising the powers delegatcd by
the people forget and the servants of the people become rulers, thc
Constitution reminds everyone that "[slovereignty resides in thc
roTo
177 scRA 66tt ( 1989).
rr'7r/r/. at 6911.
Sec.6 Sec.7 ART. III _ BILLOFRIGHTS 379
people and all government authority emanates from them." [Art.
II, Sec. 1.1
The Court also said that the right to travel guaranteed in the Con-
stitution involves the right to travel within the country, the right to
leave the country, but not the right to return to the country. It arrived at
this conclusion from the fact that the Universal Declaration of Human
Rights has one provision for the right to move within the country and
out of the country and another for the right to return to one's country.ro72
Thus, whereas the Universal Declaration of Human Rights is normally
used to affirm or supplement rights in domestic law, the Court chose to
use it to curtail the guarantee of our domestic law.
The court also did another unusual thing. It said: "This case is
unique. It should not create a precedent, for the case ofa dictator forced
out of office and into exile after causing twenty years of political, eco-
nomic and social havoc in the country and who within the short space
of three years seeks to return, is a class by itself."tozr
2. Aliens and right of entry.
While the right to travel of citizens covers both exit from and entry
into the country, aliens cannot claim the same right. "It is an accepted
maxim of international law, that every sovereign nation has the power,
as inherent in sovereignty, and essential to self-preservation, to forbid
the entrance of foreigners within its dominions, or to admit them only
in such cases and upon such conditions as it may see fit to prescribrs."tour
As a result, nonns for admission of aliens into the country are political
matters virtually beyond the reach of judicial review.
Src. 7. Tnr nrcnT oF THE pEopLE To TNFoRMATToN oN MATTERS
oF puBLIc CONCERN sHALL BE REcocNzED. Accnss r1o oFFTcIAL
RECORDS, AND TO IX)CUMENTS, AND PAPERS PEnTAINING TO OTITCIAL
ACTS, TRANSACTIONS, OR DECISIONS, AS WELL AS TO GOVERNMENT
RESEARCH DATA USED AS BASIS FOR FOLICY DEVELOPMENT, SHALL BE
Atr'FOR,DED THE CITIZEN, SUBJECT TO SUCH LIMITATIONS AS MAY BE
PROVIDED BY LAW.
r"/'/r/. ut 6114-6115.
r"/'ftl. ut 6l{2. Scc ulso thc slrong tlisscnling opinions.
rrr"Nishinlrru l,:kiu v. I lnilc(l Strtcx, I 42 t I 6J l, 659 ( I tl92).
"S.
380 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
1. Right to information, access to public documents.
The original draft of this provision presented to the 1971 Consti-
tutional Convention simply said that access to official records and the
right to information "shall be afforded the citizens as may be provided
by law." Delegate De la Serna, at the Meeting of the 166-Man Special
Committee on November 16,1972, pointed out that the proposed pro-
vision did not grant a self-executory right to citizens. It still had to be
implemented by statute. De la Serna therefore proposed that the draft be
reworded so that the Constitution itself should give the right but subject
to statutory limitations. The final provision followed De la Serna's sug-
gestion.
The significance of this change may be seen when viewed in the
light of the pre-1973 case of Subido v. Ozaeta.lol' The question pre-
sented before the Court was whether the press, and, for that matter, the
public, had a constitutional right to demand the examination of public
land records. The Court answered:1076
We do not believe that this constitutional right [freedom of
the pressl is in any way involved. The refusal by the respondent
does not constitute a restriction upon or censorship ofpublication.
It only affects facilities ofpublication, and the respondents are cor-
rect in saying that freedom of information or freedom to obtain
information for publication is not guaranteed by the constitution.
Fortunately, however, the Court finally ruled that the press had a
statutory right to examine the records of the Register of Deeds because
the interest of the press was real and adequate.
The 1973 Constitution went beyond the Subido case and recog-
nized the right of access to public documents and records as a self-
executory constitutional right. The role given to the National Assembly
was not to give the right but simply to set limits on the right given by
the Constitution. The right, moreover, was a public right where the real
parties in interest are the people. Hence, every citizen has "standing"
to challenge any violation of the right and may seek its enforcement by
mandamLts.toTT
ro's80 Phil. 38.1 ( I 948).
to76ld. at386.
ro7?Legaspi v. ('ivil Service (\rnrrrrissior, l5O li('l{A 5.t0
s('RA 27 ( re85).
Sec.7 Sec.7 ART. III _ BILL OF RIGHTS 381
The 1987 Constitution has preserved the 1973 text but with the
addition of the phrase "as well as to government research data used as
basis for policy development." The amendment came as a reaction to
the government practice during the martial law regime of withholding
social research data from the knowledge of the public whenever such
data contradicted policies which the government wanted to espouse.
The reference, however, is to "government research data," that is, to
the findings of government funded research and not to the findings of
privately funded research over which private proprietary rights might
eXiSt,rozs
The constitutional right, however, does not mean that every day
is an open house in public offices. The right given by the Constitution
is "subject to such limitations as may be provided by law." Thus, while
access to official records may not be prohibited, it certainly may be
regulated. The regulation can come either from statutory law and from
what the Supreme Court has called the "inherent power [of an officer]
to control his office and the records under his custody and ... to exercise
[some discretion] as to the manner in which persons desiring to inspect,
examine, or copy the record may exercise their rights."'o', The question
then boils down to a determination of the scope of official regulatory
discretion.
In determining the allowable scope of offlcial limitation on access
to official records, it is important to keep in mind that the two sentences
of Section 7 guarantee only one general right, that is, the right to in-
formation on matters of public concern. The right of access to official
records is given as an implementation of the right to information. Thus,
the right to information on matters of public concern is both the ptrpose
and the limit of the right of access to public documents. Thus, too, regu-
latory discretion must include both authority to determine what matters
are of public concern and authority to determine the manner of access
t() them.to8o
In Chavez v. President Commission on Good Governmenf,rostn"
C-ourt enumerated some of the recognized limittions on the right to in-
lrlrmation. These are:
ro?tCommissioner Wilfredo Villncorta authored the
amendment. I RECORD 708-10,757-8,
I
/({).
ro7'80 Phil. at 3ti6-7.
( lt)ti7)l'littlutlt v.'1i,u.'111, I l(r rorr.\cr I Rli('()Rl) (r77.
r0rr(1.R. No. l3()716, l)eccnrbcr9, lt)Ql{.
382 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
1) National security matters. These include state secrets re-
garding military, diplomatic and other national security, and informa-
tion on inter-government exchanges prior to the conclusion of treaties
and executive agreements. Where there is no need to protect state se-
crets, the privilege to withhold documents and other information may
not be invoked, provided that they are examined "in strict confidence"
and given "scrupulous protection."
2) Trade secrets and banking transactions, pursuant to the In-
tellectual Property Code (R.A. No. 8283) and other related laws, and to
the Secrecy of Bank Deposits Act (R.A. No. 1405).
3) Criminal rnatters or classified law enforcement matters,
"such as those relating to the apprehension, the prosecution and the
detention of criminals, which courts may not inquire into prior to such
arrest, detention and prosecution." Otherwise, efforts at effective law
enforcement would be seriously jeopardized.
4) Other confidential matters. The Ethical Standards Act (R.A.
No. 6713) prohibits public officials and employees from using or di-
vulging "confidential or classified information officially known to them
by reason of their office and not made available to the public." Other
acknowledged limitations include diplomatic correspondence, closed
door Cabinet meetings and executive sessions of wither house of Con-
gress, and the internal deliberations of the Supreme Couri. Chavez v.
President Commission on Good Government.
Of great interest to the public are the efforts of government
through the PCGG to recover illegally obtained wealth. The extent to
which the public has a right to obtain information about the matter was
also determined in Chavez:
Considering the intent of the framers of the Constitution, we
believe that it is incumbent upon the PCGG, and its officers, as well
as other government representatives, to disclose sufficient public
information on any proposed settlement they have decided to take
up with the ostensible owners and holders of ill-gotten wealth.
Such information, though, must pertain to definite propositions of
the government, not necessarily to intra-agency or inter-agency
recommendations or communications during the stage whcn com-
mon assertions are still in the process of bcing tbrmulated or arc in
the'exploratory' stngc.
Sec.7 Sec.7 ART. Iil _ BILL OF RIGHTS
Another area of interest are bank accounts of suspects in Anti-
Graft cases. The question raised in Court was whether the Ombudsman,
in the course of an investigation and in the exercise of his powers under
the Ombudsman Act, R.A. No. 6770 may "examine and have access to
bank accounts and records" and order an in camera inspection of ques-
tioned accounts in spite of the Bank Secrecy Law. The Court answered
the question, thus: ro82
Before an in-camera inspection may be allowed, there must
be a pending case before a court ofcompetentjurisdiction. Further,
the account must be clearly identified, the inspection limited to the
subject matter of the pending case before the court of competent
jurisdiction. The bank personnel and the account holder must be
notified to be present during the inspection, and such inspection
may cover only the account identified in the pending case. Since
these conditions are not fulfilled, the Ombudsman may not hold
back official in contempt.
lnGonzalez v. Narvasa,ro83 ihe question raised was whether the
Executive Secretary, upon petition of a citizen, may be ordered to give
access to the names of executive officials holding multiple positions in
government, copies of their appointments, and a list of the recipients
of luxury vehicles seized by the Bureau of Customs and turned over to
Malacaflang. The Court held the information to be of public concern but
called attention to the limitations on the right found in Republic Act No.
6713, otherwise knows as the "Code of Conduct and Ethical Standards
for Public Officials and Employees," which took effect on March 25,
1989. This law provides that, in the performance of their duties, allBub-
lic officials and employees are obliged to respond to letters sent by the
public within fifteen working days from receipt thereof and to ensure
the accessibility of all public documents for inspection by the public
within reasonable working hours, subject to the reasonable claims of
confidentiality.
Once material has been classified as being of public concern and
therefor open to the public, the scope of the power to regulate access
to it is relatively easy to determine. What the Supreme Court has said
irbout land records is pertinent: the power is "confined to prescribing
"'"'Mrrrrptt'z v. | )csit'rlo, ( i.R . No. I .l5llll2, J uttc 2?, 2(X) I
ro|'( i.R. No. l40ll i5, Augrrst 14, ?(Xx).

384 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
the manner and hours of examination to the end that damage to, or loss
of, the records may be avoided, that undue interference with the duties
of the custodian of the books and documents and other employees may
be prevented, that the right of other persons entitled to make inspection
may be insured, and the like."ros4 The Court also added:'0E5
Except, perhaps, when it is clear that the purpose of the ex-
amination is unlawful, or sheer' idle curiosity, we do not believe it
is the duty uncler the law of registration officers to concern them-
selves with the motives, reasons' and objects of the person seek-
ing access to the records. It is not their prerogative to see that the
information which the records contain is not flaunted before public
gaze,or that scandal is not made of it. If it be wrong to publish the
contents of the records, it is the legislature and not the officials
having custody thereof which is called upon to devise a remedy' As
to the moral or material injury which the publication might inflict
on other parties, that is the publisher's responsibility and lookout'
The publication is made subject to the consequences of the law'
Under the I97 3 provision the Court said in B aldoza v' Dimaanotos6
that while the Constitution guarantees access to information on mat-
ters of public concern, access is subject to reasonable regulation for the
convenience of and for order in the office that has custody of the docu-
ments. And in Inntaco, Sr. v. Llamns,'o87 the Court, in chiding a judge
for giving petitioners a run around in obtaining a copy of a decision,
said: "while the public officers in custody or control of public records
have the discretion to regulate the manner in which such records may
be inspected, examined or copied by interested persons, such discre-
tion does not carry with it the authority to prohibit access' inspection,
examination, or coPYing."
The real problem, however,lies in determining what matters are
of public concern and what are not. Unwittingly perhaps, by this provi-
sion the Constitution might have opened a Pandora's box. For, certainly,
every act of a public officer in the conduct of the governmental process
is a matter of public concern. Jurisprudence in fact has said that "public
concern," like "public interest," eludes exact definition and embraces a
'oEagO
Phil. at 387.
ro85/d. at 388.
10867t sC.RA 14, l9 (May 5, 19T6).
ur ; 113 s('R A 5O2, 50lt (( )cloh't:r 21i. I
gtt I ).
,L
Sec- ? ART. III _ BILLOFRIGHTS 385
broad spectrum of subjects which the public may want to know, either
because these directly affect their lives or simply because such matters
arouse the interest of an ordinary citizen.'0s8 Moreover, the right may be
asserted even against government-owned and controlled corporations
because their function, analogous to that of government agencies, is to
serve the people.rose Thus with greater reason it can be asserted against
government agencies.'@ Even the voting slips of individual members
of the Censorship Board when they pass judgment on movies may be
opened for inspection.'D'
But then there is also the obvious need, especially in matters of
national security and foreign relations, of preserving a measure of confi-
dentiality. Thus, the right of the people to information must be balanced
against other genuine interests necessary for the proper functioning of
government. This is a new area of constitutional jurisprudence for it
involves not just the right to disseminate information but the right of
access to information that is within the control of government. While,
however, it is a new area, it is not a totally unexplored one.It is submit-
ted that the standards that have been developed for the regulation of
speech and press and of assembly and petition and of association are
applicable to the right of access to information. These, after all, are cog-
nate rights, for they all commonly rest on the premise that ultimately it
is an informed and critical public opinion which alone can protect the
values of democratic government.
The government, whether carrying out its sovereign attributes or
running some business, discharges the same function of service to the
people. Consequently, that the GSIS, in granting the loans, was exercis-'
ing a proprietary function would not justify the exclusion of the transac-
tions from the coverage and scope of the right to information. Thus, the
GSIS, a government institution, may be compelled to show documents
evidencing behest loans even if the transactions are proprietary in na-
ture. But while a government owned and controlled corporation like
the Government Service lnsurance System (GSIS) may be compelled
to make available the documents evidencing clean loans to legislators,
r"**l.r:grs;riw. Civil Scrvicc (irtrtnission, 150 SCRA 530 (1987).
r"*"Vrhnontc v. llchnontc, Jr.,G.R. No.74910, February 13, 1989.
r{Atirrrcir v. llurrl ol lnvcstrncnls, Scl)tcrnbcr 7, l9tl9.
rrerArprirto Srrrruit'rrkr v. Monrto, ( i.R. No. ()2541 , Nttventtrcr 11, l99l
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
the GSIS may not be compelled to compile a list or make abstracts
the transactions.roe2
More recently, the refusal of the COMELEC to reveal the names
of the nominees for party-list seats violates the right of the people to in-
formation on maters of public concern. It also violate the rule on trans-
parency in Article II, Section 27.'@3
However, that trade secrets are of a privileged nature is beyond
quibble. The protection that this jurisdiction affords to trade secrets is
evident in our laws. The Securities Regulation Code is explicit that the
Securities and Exchange Commission is not required or authorized to
require the revelation of trade secrets or processes in any application,
report or document filed with the Commission. This confldentiality is
made paramount as a limitation to the right of any member of the gen-
eral public, upon request, to have access to all information filed with
the Commission.'@
As to court records, a distinction must be made. Decisions antl
opinions of a court are, of course, matters of public concern or intercst.
Unlike court orders and decisions, however, pleadings and other docu-
ments filed by parties to a case need not be matters of public conccrn
or interest. They are filed for the purpose of establishing the basis upon
which the court may issue an order or a judgment affecting their rightrt
and interests. In fine, access to court records may be permitted at tlre
discretion and subject to the supervisory and protective powers of lhc
court, after considering the actual use or purpose for which the rcqucril
for access is based and the obvious prejudice to any ofthe partics.""'
Finally, the matter of executive privilege will be taken up unrlcf
Article VIL
Snc.8.Tm nIGHT oF THE pEopLE,INCLUDING THosn l:Mt,r.()yrlrrt
IN TIIE PUBLIC AND PRIVATE SECTORS, TO FORM UNIONS, ASS(X'IA'I'I0NITI
OR SOCIETIES FOR PURPOSES NOT CONTRARY TO LAW SHAI,I, N(TI'NT
ABRIDGED.
r$21d. On the issue of privacy, the Court said that such mottcr slroukl hc r urrcrl lut lry
but by the bonowers.
rmrBa-Ra 7941 v. COMELEC. O.R. No. I7727I, May 4,2(X)7.
rMAir Philippincs v. Pcnnswcll.lrrc.,(i.R. No. l72tt.l5,l)cccrrrlrr Lt.2(X)/.
rrprHilutlo,ct ul. v. Jurlgc, (i.R. No. Itr.lI15,.luly 2l, 2(X)6.
Sec.8 Sec.8 ART. III _ BILL OF RIGHTS 387
of t. Right of association.
The original constitutional provision on the right to form asso-
ciations was inserted in the Bill of Rights by the 1935 Constitutional
Convention. The proposed provision read: "The right to form associa-
tions for purposes not contrary to law shall not be abridged." The pro-
ponent of the provision was Delegate Laurel and he had borrowed it
from Article 20, title IV of the Malolos Constitution; but, as Laurel
himself admitted, the right, although not protected by explicit constitu-
tional guarantee either in the American Constitution or in early Philip-
pine constitutional law, was already a recognized constitutional right.''u
Hence, the focus of the debate was not on whether the right should be
guaranteed but rather whether the phraseology of Laurel's proposal was
a desirable one. For one thing, Delegate Ventanilla expressed the fear
that the phrase "for purposes not contrary to law" might have the ef-
fect of elevating existing statutory laws on associations to the level of
constitutional precepts. This objection was not seriously considered.'@'
For another, it was feared that the same phrase would render the guaran-
tee, in the words of Delegate Perfecto,like the "carabina de Ambrosio,
colgado de un clavo."r'es I>ut differently, Delegate Roxas feared that the
phrase could be interpreted by courts to mean that the existence or le-
gality of associations depended on the whim of the legislature. Roxas
himself admitted, however, that the phrase could also mean simply that
the right was "subject to the police power;" but he nevertheless opposed
the phrase for the reason that an explicit statement of the limitive effect
of police power on one right might give the impression that other rights
were not so limited if their corresponding constitutional guarantee pid
not contain a similar limiting phrase.'@e Delegate Orense, however,
was satisfied with the hope that the courts would interpret the phrase in
Roxas'second sense. After all, Orense said, the courts could consult the
convention debates.l'm Laurel himself explained that the phrase meant
no more than that the right was subject to police power and, rather in-
consistently with the position he had taken in the debates on obligation
Iffi3 JOURNAL OF THE I I934] CONSTITUTIONAL CONVENTION OF THE PHILIP.
I lHli I'INES I036 (FnnN<'rxn Fd.. l96l ).
\]91ld.Jl1l _12.
r(ntrd. I 1.16.
r,prl. ll.l4.
rr'''/r/. I I .15.
 THE 1987 CONSTITIJTION
OF THE REPUBLIC OF THE PHILIPPINES
of contracts, he argued that there was no harm in making the limitive
force of police power explicit.'r.r
The 1935 provision was approved as proposed.rto2 All it means is
that the right to form associations shall not be impaired without due
process of law. It is therefore an aspect of the general right of liberty.
More specifically, it is an aspect of freedom of contract, and in so far as
associations may have for their object the advancement of beliefs and
ideas, freedom of association is an aspect of freedom of expression and
of belief.
Aside from contractual associations and associations for the ad-
vancement of ideas and beliefs, there are myriad of other forms of as-
sociations organized for a vast range of important and unimportant pur-
poses social clubs, athletic clubs, fraternal societies, garden clubs,
-
and many others. The instinct to organize is a very basic human drive.
All these are protected by Section 8. The framers of the 1935 Constitu-
tion recognizedthe importance of this basic drive and saw fit to protect
it with a special provision rather than merely infer its protection from
the due process clause or from other constitutional guarantees.
As already seen however, under Section 1, the Constitution recog-
nizes a hierarchy of values.r'03 Hence, the degree of protection an asso-
ciation enjoys depends on the position which the association's objective
or activity occupies in the constitutional hierarchy of values. Thus, for
instance, where the object of an association is the advancement of a
common political belief such as racial equality, any law which either
has the effect of limiting membership in such association or blunting
its effectivity must satisfy the more stringent standards for allowablc
limitation of expression and belief."*
It should also be noted that the provision guarantees the right to
form associations.It does not include the right to compel others to frrnn
an association. But there may be situations in which, by entering into u
contract, one may also be agreeing to join an association. Thus a lunrl
buyer who buys a lot with an annotated lien that the lot owner bcconrcr
rotld.113840.
to2ld.1146.
'ro3Philippine Blooming Mills Ernployecs v. Philippinc Bloonring Mills,.5l S('RA lNu,
202-3 (t973).
rr(xNAA(r[)v.Alubunru.]57 11.S.449 11t1531,N4A('l'v. llutt()n,.]7
Sec.8 Sec.8 ART. III - BILL OF RIGHTS
an automatic member of a homeowners' association thereby voluntarily
joins the association."* Similarly, one who becomes an employee of an
establishment that has a closed shop agreement with the union thereby
becomes a member of the union."ou
2. Right of association in the 1987 text.
Whereas the 1973 Constitution preserved the 1935 text, the 1987
Constitution has made significant changes. The Bill of Rights text now
reads: "The right of the people, including those employed in the pub-
Iic and private sectors, to form Ltnions, associations, or societies for
purposes not contrary to law shall not be abridged." The right is thus
recognized as belonging to people whether employed or unemployed,
and whether employed in the government or in the private sector. The
provision also explicitly recognizes that the right to form associations
includes the right to unionize.
In presenting the modification on the 1935 and 1973 texts, Com-
missioner Eulogio R. Lerum explained that the modification included
three categories of workers: (1) government employees, (2) supervisory
employees, and (3) security guards. Lerum made of record the explicit
intent to repeal provisions of P.D. No.442, the Labor Code."'7 The pro-
visions referred to were:
Art.245. Security guards and other personnel employed for
the protection and security of the person, properties and premises
of the employers shall not be eligible for membership in a labor
organization.
Art.246.Managerial employees are not eligible to join, as-
sist, and form any labor organization.
The right of civil servants to unionize is also recognized in Article
IX, B, Section 2(5) which says: "The right to self-organization shall not
be denied to government employees." The right is recognized wheth-
er such employees perform governmental or proprietary functions.rr'8
Commissioner Blas Ople, Minister of Labor under the Marcos regime,
ro'lJcl-A ir Villagc Associirtirxr v. I)ionisio, I 74 SCRA 589, 597 ( 1 989).
I
rr(""I'irttluay l)istillcry Ltthor Iirriotr v. Nl.lt(', 1,19 SCRA 470 (l9lt7); Volkschel Labor
Union v. lltrrt:iut ol l,abor llclnlions. l.i7 S('R442 ( l9ll5).
rr('/l Rl'l('()Rl) 7(rl 7.
ltl.S.4l5(196t) I lil] | l{ I r( .( )l{ | ) lartt
*L.
390 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
pointed out that government tended to interpret the Civil Service pro-
visions of the 1973 Constitution in so narrow a manner as to deprive
1200,000 government employees of the right to self-organization.il@
The right of labor in general to unionize is again recognized in
Article XIII, Section 3: "[The State] shall guarantee the rights of all
workers to self-organization, collective bargaining and negotiations,
and peaceful concerted activities, including the right to strike in ac-
cordance with law." It should be noted that the right to strike is quali-
fied by the phrase "in accordance with law." The right to organize is
seen as broader than the right to strike, and thus, for valid reasons, the
right to strike may be limited by law and may be narrowly curtailed
in the case of certain classes of workers in both the public and private
sector.trroIn fact, Commission Lerum, who had argued for the right of
government employees to unionize, addressed the question of the right
tO strike thus'nrr
When we proposed this amendment providing for self-orga-
nization of government employees, it does not mean that because
they have the right to organize, they also have the right to strike.
That is a different matter. We are only talking about organizing,
uniting as a union. With regard to the right to strike, everyone will
remember that in the Bill of rights there is a provision that the right
to form associations or societies whose purpose is not contrary to
law shall not be abridged. Now then, if the purpose of the state
is to prohibit strikes coming from employees performing govern-
ment functions, that could be done because the moment that is
prohibited, then the union which will go on strike will be an illegul
union. ...
In this light, the Court has definitively ruled that empkryecs ol tlrc
Social Security Systeln'," and public school teachers"', do not huvo n
constitutional right to strike. But the current ban on them agairrst strikar
is statutory and may be lifted by statute.
'IBI RECORD 566.
ttIol RFCORD 569: II RECORD 749.
ttttld. at 569.
rrr2social Security System v. The Court of Appculs, G.R. No. t15279,
July lH, ltrtil,
rrr3Manila Public School Teachcrs Asrlrciation v.
Sccrctury ol litluurtion, ( LR No
August 6, 1991. Thc disscnting juntices nrgucd thtt thc right t() ritrile coukl hn rlerlurerl hlrl
frccdom of spccch.
Sec.8 Sec.8 ART.II - BILLOFRIGHTS 391
3. The right of association in action: labor, subversion'
In Philippine jurisprudence, the right of association has figured in
litigation involving two areas of associational activity: labor unionism
and communist organization. In Philippine Association of Free Labor
IJnions v. Secretary of Labor,ttta section 23 of R.A. No. 875 requiring
the registration of labor unions was challenged as violative of the Bill
of Rights. The challenge was answered by Chief Justice Concepcion
thUS'rrts
The theory to the effect that Section 23 of Republic Act No'
875 unduly curtails the freedom of assembly and association guar-
anteed in the Bill of Rights is devoid of factual basis. The registra-
tion prescribed in paragraph (b) of said section is not a limitation
to the right of assembly or association, which may be exercised
with or without said registration. The latter is merely a condition
sine qua non for the acquisition of legal personality by labor orga-
nizations, associations, or unions and the possession of the "rights
and privileges granted by law to legitimate labor organizations'"
The Constitution does not guarantee these rights and privileges,
much less said personality, which are mere statutory creations, for
the possession and exercise of which registration is required to
protect both labor and the public against abuses, fraud, or impos-
tors who pose as organizers, although not truly accredited agents
of the union they purport to represent. Such requirement is a valid
exercise of the police power, because the activities in which labor
organizations, associations and union or workers are engaged af-
fect public interest, which should be protected. Furthermore, the
obligation to submit financial statements, as a condition for the
non-cancellation of a certificate ofregistration is a reasonable reg-
ulation, for the benefit of the members of the organization, consid-
ering that the same generally solicits funds or membership, as well
as oitentimes collects, on behalf of its members, huge amounts of
money due to them or to the organization.
It is indeed correct to say that the right to form associations does
not necessarily include the right to be given legal personality. However,
if the law itself should make possession of legal personality a pre-con-
ilition for cfl'cctive associational action, involved would be not just the
right to havc lcgal pcrsonality but also the right to be an association.
9!,1{t,
rr{27 (i('RA 4 | ( l9(}()).
rrrt/r/ ttl,14 5.

THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
In such a situation, the requirement of legal personality should itself
be examined in the light of allowable limits on the right of association.
As to communist and similar organizations, the question that has
provoked discussion is whether mere membership in such organizations
may be made punishable as a criminal offense. The question was an-
swered seminally in People v. Hernandez,rrr5 where the Supreme Court
Said.ilt7
We do not believe that mere membership in the Commu-
nist Party or in the CLP renders the members either of rebellion
or of conspiracy to commit rebellion, because mere membership
and nothing more merely implies advocacy of abstract theory or
principle without any action being induced thereby; and that such
advocacy becomes criminal only if it is coupled with action or ad-
vocacy of action, namely actual rebellion or conspiracy to commit
rebellion, or acts conducive thereto or evincing the same.
The same decision, however, declared membership in the HMB a
sufficient basis for conviction: "r8
On the other hand, membership in the HMB (Hukbalahap)
implied participation in actual uprising or rebellion to secure, as
the Huks pretend, the liberation of the peasants and laboring class
from thralldom. By membership in the HMB, one already advo-
cates uprising and the use of force, and by such membership he
agrees or conspires that force be used to secure the ends of the
parfy. Such membership, therefore, even if there is nothing more,
renders the member guilty of conspiracy to commit rebellion pun-
ishable by law.
And when a Huk member, not content with his membership,
does anything to promote the ends of the rebellion like soliciting
contributions, or acting as courier, he thereby becomes guilty o[
conspiracy, unless he takes to the field and joins in the rebe llion or
uprising, in which latter case he commits rebellion.
The question was finally more fully treated in thc multi-lirccterl
case of People v. Ferrer,ttte which involved the constitutionllily ol'lltr
Phil.5t5 (t956).
"r99
ttt1Quoted in People v. l.,ava,2tl S('RA ?2, 133 ( 1969)
tttlQuotecl id.
rrr048 sCRA 3ll2 ( 1972).
Sec.8 ART. III _ BILL OF RIGHTS
Sec.8
Anti-Subversion Act.rr2o The Act, after declaring the Communist Party
of the Philippines and similar organizations "illegal and outlawed,"rr2'
provided in Section 4 thus: "After the approval of this Act, whoever
knowingly, willfully and by overt acts affiliates himself with, becomes
or remains a member of the communist Party of the Philippines and/
or its successor or of any subversive association as defined in Section 2
hereof shall be punished. ..."
Writing for the majority, Justice Castro seemed strangely ambiva-
lent about his assessment of the substantiality of the possible impact of
the statute on fundamental rights.In one instance he said'"2? "Whatever
interest in freedom of speech and freedom of association is infringed by
the prohibition against knowing membership in the Communist Party
of the Philippines, is so indirect and so insubstantial as to be clearly and
heavily outweighed by the overriding considerations of national secu-
rity and the preservation of democratic institutions in this country." But
finally he said:"23 "In conclusion, even as we uphold the validity of the
Anti-subversion Act, we cannot overemphasize the need for prudence
and circumspection in its enforcement, operating as it does in the sensi-
tive area of freedom of expression and belief." He then proceeded to lay
down what he called "basic guidelines" for prosecution under the Act.
He said that in addition to proving circumstances which may affect li-
ability, the following elements of the crime must be established:"'o
(1) In the case of subversive organizations other than the
Communist Party of the Philippines, (a) that the purpose of the
organization is to overthrow the present Government of the Philip-
pines and to establish in this country a totalitarian regime under
the domination of a foreign power; (b) that the accused joined such
organization; and (c) that he did so knowingly, willfully and by
overt acts; and
(2) In the case of the Communist Party of the Philippines'
(a) that the CPP continues to pursue the objectives which led Con-
gress in 1957 to declare it to be an organized conspiracy for the
overthrow of the Government by illegal means for the purpose of
rrzrR.A. No. l7m (1957).
"'?lThqbill of atlainder issue will be treated under Section 22' infra
ilrr48 ((.RA4I2 (1972).
rrr'48 s('RA 4l I ( 1972).
ilx48q('RA4l5 6(1972).
 394 THE I98?CONSTITUTION Sec.8 III BILLOFRIGHTS 395
OF THE REPUBLIC OF TI{E PHILIPPINES Sec.8 ART. -
placing the country under the control of a foreign power; (b) that 'not contrary to
the accused joined the Cpp; and (c) that he did so willfully, know- the condition that its exercise should be for purposes
prohibiting
ingly and by overt acts. law.' In the case of Art. 245, there is a rational basis for
managerialemployeesfromformingorjoininglabororganizations'"
We refrain from making any pronouncement as to the crime to or be
of remaining a member of the communist party of the philippines
tt was-treld thai "if these managerial employees would belong
affiliated with a union, the latter might not be assured
of their loyalty
or of any other subversive association; we leave this matteito fu- The union can also
ture determination. to the union in view of evident conflict of interest.
employ-
become company-dominated with the presence of managerial
on reconsideration of the case, the court also added that since the ees in the Union membershiP."
act was a conspiracy statute the heart of which "[was] the agreement
ItisinterestingtolookatthehistoryofthedisputedArt.245'
itself and not the action taken pursuant to it," the overt-act requirement ,.Managerial employees" fall into two distinct categories: the "manag-
may be satisfied by proof of non-criminal and relatively minor acts such
ers" perse, who compose the top and middle
managers' and the "supef-
as the signing of membership papers, paying dues, attending meetings, Peace Act of
visors,,, who form the first-line managers. The Industrial
and the like.,,25 managers, to form
1953 affirmed the right of supervisors, or front-line
Filipino Managers Super-
one really wonders if these basic guidelines, as they stand, go far their own organization. However, Caltex 7Yd
upheld the right
enough or are narrow enough. If the demanding standards of freedom visors Association v. court of Industrial Relations,rr2s
general proposi-
of association coupled with freedom of expression and belief are to be of all managerial employees to self-organization as a
the terms "supervisor"
satisfied, and to that extent also meet some of the objections in Justice tion. The LaUor Code of 1974 lumped together
Fernando's dissent, it is not enough for the prosecution to prove merely and..manager,,perseandcalledthem..managerialemployees.''Article
forming unions.
that the avowed purpose of the organization is to overthrow the gov- 246 explicltly piohibits all managerial employees from
ernment and to establish a totalitarian regime. The government must ThiswasthestatusofthelawbeforethelgSTConstitution.
comply with the heavy burden of showing that the organization in fact
Duringthedeliberationsofthelg86ConstitutionalCommission,
presents a clear and present danger of a substantive evil which the
statc Commissioner Lerum made a "proposal to amend Art'
III' $8 of the
has the right to prevent.,26 short of that, the association provision can of the or-
draft constitution by including labor unions in the guarantee
become ineffective.
ganizational right. i{is object, however, was specific: the
removal of
employees
on the labor front, a significant decision is united pepsi-cola su- ;he statutory ban against security guards and supervisory
joining labor organiiations. united pepsi cola supervisors took the ap-
pervisory union (UPSU) v. Laguesrna,'27 where the dispute was ahrur
proposal to mean'
the right of association of managerial employees. The first sentcncr: ptonut"by the Constitutional Commission of Lerum's
of Article 245 of the Labor code provides that: "Managerial emplry trrat the commission intended the absolute right
to otganize of govern-
security guards to be consti-
ees are not eligible to join, assist or form any labor organization.'. 'l.hc ment workers, supervisory employees, and
Petitioner-union contended that this provision contravened the consti tutionally guaranteed UuittraiUy implication no similar constitutional
tutional right to form associations. The validity of the ban, howcvcr. absoluterighttoorganizeforlaborpurposescouldbedeemedtohave
them the right of
was upheld because the "right guaranteed in Art. IU,
$g is subjccr r. been given-to top-level and middle managers. As to
conformably to
self-oiganization may be regulated and even abridged
tr556 SCRA 7c)3,796,798 (April
30,lg74).The Act was amendetl urrl nrudc lrurrilrr hy
Art.III, $8.
Presidential Decree No.885 (1976). Moreover, PD. No.88.5 has sincc rcnlrvcrl thc
clerrrcrrt lf
"placing the country under a foreign prrwer." The Anti-subversion Lrw lned lr.l). N. llxl
hlr
since been repealed. But the doctrine in Ftrrcr st0ys.
rr2tThe "clear
and prescnr dangcr" rcst is triscrrssctr sr4rra untrcr sceti.n 4.
rl2?G.R.
No. l22226,Mrrr:lr 2i, l99lt. [il4? (('RA l l2 ( 1972)
 THE 1987 CONSTITUTION Sec.9 Sec.9 ART. III - BILL OF RIGHTS
OF THE REPUBLIC OF THE PHILIPPINES

Ssc.9. Pnrvlre pRopERTy sHALL Nor BE TAKEN FoR puBr,rc RiverBridgev'WarrenBridge.'|32Itisapowerinherentinsovereignty.

USE WITHOUT JUST COMPENSATION. any fundamental law'
Hence, it is a power which need not be granted by
..Inotherwords,,,saysalglgPhilippinedecisioll,rlrrel*"provisions
1. Eminent domain.
no* g"n"rully foundin modern constitutions of civilized countries
to
Aside from the above provision, there were two other eminent the eflect thai private property shall not be
taken for public use without
for re-
domain provisions in the 1973 Constitution: Article XIV
Section 6, .o.p"nru,ioniun" ttreir origln in the recognition of a necessiry
which said: "The State may, in the interest of national welfare
or de_ ,ouining the sovereign and protecting the individual'"
The exercise of the power of eminent domain is by
fense, establish and operate industries and means of transportation tradition
and
communication, and, upon payment of just compensation, ,TheVsayan Refining
transfer to lodged with the executive arm of the government
public ownership utilities and other private enterprises to be Court said''r34
operated ,urJ r".ognized this tradition' The
by the government," andArticle XIV section t3, which said: ,,The
Na- in sec-
tional Assembly may authorize, upon payment of just compensation, Therefore, when the Philippine Legislature declared
the expropriation of private lands to be subdividedlnto
smail lots and tion 64 of the Administrative Code' that the Governor-General'
should
conveyed at cost to deserving citizens." The former was a who exercises supreme executive power in these Islands'
copy of Ar- proceedings'
ticle XIII, section 6 of the 1935 constitution and the latter modificd be the person to dlirect the initiation of expropriation
to find it'
Section 4, Article XIII, of the 1935 constitution.rrze |fie provision it placed the authority exactly where one would expect
social justice and equitable difftrsiolrrro sf property as well
on *i *" conceive of no ground upon which the efficacy the stat-
of
as the pro- ute can reasonablY be questioned'
vision on agrarian refom'3r of the earlier constitutions also
affect thc
jurisprudence on expropriation for resale.
It is, however, evident from the same authority that the power
Article XII, section 18, of the new constitution now arso pro- isdormantuntiltheLegislaturesetsitinmotion.Inthewordsofthe
vides: "The state may, in the interest of national welfare or COUIt.tt35
defense,
establish and operate vital industries and, upon payment
of just com- We would not of course pretend that' under our
modern sys-
pensation, transfer to public ownership utilities and other piivate in which the kgislature plays so important
cn- tem of Government,
terprises to be operated by the government." This will be the authority of
discussecl in a role, the Executive Department could' without
its proper place. Likewise, expropriation, in so far as it forms part some statute, proceed to condemn property for
its own uses;
.r' -be-
are not often
the scheme for achieving social justice found in Article XIII,
will bc cause the traditional prerogatives of the sovereign
at leastin coun-
discussed in its proper place. recognized nowadays as a valid source ofpower'
Neverthe-
tries-organized under republican forms of government'
Leg-
2. Eminent domain: Definition, nature. less it riay be observed ittut ttt" real check
which the modern
matter
islature exerts over the Executive Department' in
such a as
"The right of eminent domain is usually understood t' bc rhc prerogative as in- the
ulrl this, lies not so much in the extinction of the
paralyzed by
mate right of the sovereign power to appropriate, not onry
the puhllc hrrr fact that the hands of the Executive can always be
the private property of all citizens within ihe tenitoriar sovcieignry, lack of money something which is ordinarily supplied only by
r, -
public purpose." so wrote Justice story in the leading casc of the Legislature'
i,h,,t,lr,r

rr'zeArticle
XIII, Section 4 (r935) read: "The congrcss may uurhorizc, urn,n pnylrrlr
1J hpr
compensation, the expropriation of lancJs to hc subdivitletl inkr srntll llul lrPet. 420,641 (Ll S.
l,rt. ,,n,1 ,.,,r,uni.rl
nt r trr 1837).
individuals." 'rl rrrrVisttynn Rclining (it. v ('tttnus'40 Phil 550' 559 (1919)
rrroArticle II,
Section 6 ( 1973). IIr'40 Phil. 550, 559 (I9I()) Also ir! nt 564'
rr"Articlc XlV. Scclion (
l2 l97 t). rr n1,1. n1 55t) (rl)

b'
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The reverse, however, is not true; the executive cannot impose
limits on the legislature.r'36
Once authority, however, has been given to the executive,,,expro_
priation proceedings may be maintained upon the exclusive initiative
of the [executive] without the aid of any special legislative authority
other than that already in the statute fe6fts."rr:u put differently: ,.once
authority is given to exercise the power of eminent domain, the matter
ceases to be wholly legislative. The executive authorities may then de-
cide whether the power will be invoked and to what extent."u3s
The power of eminent domain may also be conferred upon munic-
ipal governments and other government entities. The court said in city
of Manila v. chinese community of Manila:ttse "The power of the legis-
lature to confer, upon municipal corporations and other entities within
the State, general authority to exercise the right of eminent domain can-
not be questioned by the courts. . .." The scope of such delegated power
is necessarily narrower than that of the delegating authority and must be
sought in the terms of the delegation itself.u4o
Likewise, the authority of the legislature to delegate the right of
eminent domain to private entities operating public utilities has never
been questioned. The court has also said that the exercise of the del-
egated authority and the prescribed mode of procedure being in deroga-
tion of general right and conferring upon the public utility corporation
exceptional privileges with regard to the property of others of which it
may have need, must be construed strictly in favor of private proper-
ty.tr+t
It is thus seen that in the hands of the legislature, the power of
eminent domain is an inherent power.In the hands of government agen-
cies,local govemments and public utilities, however, eminent domain
is only a delegated power. This distinction has important legal consc-
quences both with respect to the scope of the power and with respect to
the scope of judicial review of the exercise of the power.
't36Republic v. Juan, G.R. No. 247,10, July lO,lgjg.
tt37Id.
at 558.
tt38
Id. at 56O, quoting l0 R.C.L. I 4.
r'3e40 Phil. 349,
368 ( t9 l9).
rqtld.
rr4rTcnrlrio v. (\r., 2l I'hil. 4I l,4I4 ( I9I2)
Mlrrihr Rtilrontl
Sec.9 Sec.9 ART. III _ BILL OF RIGHTS 399
In the hands of congress the scope of the power is, like the scope
of legislative power itself, plenary. It is as broad as the scope of police
po*", itself. it can thus reach every form of property which the State
might need for public use.il42 It can reach even private property already
deJicated to puUti. use or even property devoted to religious worship.'ro3
As one early American case put it, "All separate interests of individu-
als in property are held of the government under this tacit agreement
or implied reservation. Notwithstanding the grant to individuals, the
eminint domain,the highest and most exact idea of property, remains
in the government, of in the aggregate body of the people in their sov-
ereign capacity; and they have the right to resume the possession of the
property whenever the public interest requires it'""*
The delegated power of eminent domain of local governments
is strictly speaking not a power of eminent but of inferior domain -
a share merely in eminent domain. Hence, it is only as broad as the
eminent authority would allow it to be. A clear case in point is City of
Manila v. chinese community of Manila:'45 At issue in the case was
authority over a porlion of a chinese cemetery which had been estab-
lished under authority of the Spanish Governor-General and "founded
and maintained by the spontaneous and fraternal contribution of their
protector, merchants and industrialists." It was a cemetery "adjusted to
ih" turt" and traditional practices of those born and educated in China"
and authorized by the Spanish government as a mark of recognition of
the civic contribution of Chinese nationals.rl46 The city was seeking to
expropriate a portion of the property in order to open a street through
the cemetery. Did the city have authority to do it?
considering the nature of the property, expropriation was doubr
less offensive to the cultural sensibilities of the Chinese. The Court,
while disavowing the belief "that the dead must not give place to the
living,"il+z did find a legal solution to what was undoubtedly also a so-
cial dilemma. The court asserted that a cemetery open to the public was
ttalsupra, note I I at 357.
rKr61ro."hs5 are outside the commerce of man under the Spanish civil code.Brttit Barlin
v. Ramirez.'l Phil.4l ,56 (1906) the court said that "by virtue of "'
the power of eminent domain'
church or other churches'"
Ithe governmentl might have appropriated this
' "
rr'peekmnn i- Sururngu,,nJ Schene.to,ly R.R- Co.,3 Paige Ch' 45,72-3 (N'Y' l83l)'
rr'rt.9l2rrr, notc Il.
I'rn/r/. nl .](r9 70.
rr'rf/r/. ttl |70.
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
already in public use "and no part of the ground could be taken for other
public uses under a general authority."tras And general authority was
all that the city of Manila could show. Hence, it was without authority
to expropriate the property. But the court said that "if the legislature
under proper authority should grant the expropriation of a certain or
particular parcel of land for some specified purpose, the courts would
be without authority to enquire into the purpose of the legislatiel."rro
And that is what the legislature did; it authorized the city of Manila to
expropriate the specific parcel of property
- which accounts for the
present extension of Rizal Avenue across what once was a portion of
the Chinese cemetery.
3. Public use.
Justice story, in the charles River Bridge case already
cited,
wrote'rrso "Although the sovereign power in free government may ap_
propriate all property, public as well as private, for public purposes,
making compensation therefor; yet it has never been understood, at
least never in our republic, that the sovereign power can take the private
property of A and give it to B by the right of eminent domain; or that
it can take it at all, except for public pulposes; or that it can take it for
public purposes, without the duty and responsibility of ordering com-
pensation for the sacrifice of the private property of one, for the good
of the whole." Article III, Section 9, puts the matter more succinctly:
"Private property shall not be teken for public use without just compen-
sation." There are thus two constitutional limitations on the power of
eminent domain: (1) the purpose of the taking must be public use, and
(2) just compensation must be given to the private owner.
what then is the meaning of public use which can justify state ap-
propriation of private property? Time was when the term "public use"
was understood as the equivalent of "use by the public." The eminent
cooley, writing in 1868, said that there can be no government seizure
and appropriation of property unless the purpose implies "posses-
sion, occupation, and enjoyment of the land by the public, oipublic
&gerciss."tts' This narrow definition of public use, however, has since
tta8ld. at
369.
tlaeld. at 357 . Dr'(bscollucla v. (\rurt ol Appcals' I 64 SCRA 393 ( I 988) '
'r5t'Charlcs Rivcr Britlgc v. Wurcn llritlge , I I ltt:t. irt (r42
rr\r('oNs'l'l'l'l t'l'l( )NAl, LIMI lAl )Ns I
l( .s I
Sec.9
Sec.9 ART. III - BILL OF RIGHTS
been rejected. As one court has put it, "public use means public useful-
ness, utility, or advantage, or what is productive of general benefit, so
that any appropriating of private property by the state under its right of
eminent d-omain, for purposes of great advantage to the community, is
a taking for public use."rr52 This is the concept that has been accepted
in
philippine jurisprudence.ln sena v. Manila Railroad co.,the Supreme
Court, quoting American sources, said'"sl
"A historicalresearch discloses the meaning of the term
'public use' to be one of constant growth' As society advances'
individual increase and each demand is a
iis demands upon the
newusetowhichtheresourcesoftheindividualmaybedevoted.
... for "whatever is beneficially employed for the community is a
public use ..."
Thus, what has emerged is a concept of public use which is as
broad as public welfare. The scope of the power of eminent domain
has become as broad as the expansive and ever expanding scope of
police power itself. Expropriation for socialized housing, for instance'
is for puUtic use.rr54 So is expropriation for the construction of irrigation
systems to make water available for farmers,rl55 for urban and housing
refolmrl56 and for agrarian reform, which will be discussed more fully in
its proper place. Moreover, jurisprudence considers action by the state
to out its duty to provide housing as an exercise of police power
"u.ry
superior to the obligation of contracts.ils?
But where the city authorizes the taking of private property to be
converted into a sports facility for the benefit of a small community
which seeks to have its own sports and recreational facility, notwith-
standing that there is such a recreational facility only a short distance
away, the purpose is not clearly and categorically public'1158
Moreover, the predominant precept is that upon abandonment of
rcal property condemned for public purpose, the party who originally
c0ndemned the property retains control of the land if the condemning
trlrGohld Realty Co. v. Hartford, 104 A- 2d 365' 368-9 (Conn' 1954)'
,,1142 Phil. lo2, 105 (1921).
rriaSutnulong v. (iucrrcnr. (i.R No' 4tl6ti5' September 30' 1987'
rr$ltrovincc ol (itttttttittcs Strr v. (-orrrt ol Appeals' 222 SCRA 173 (1993)'
rrr1214 s1,l{A 475 ( t992).
il.rMllsikiP v (,iy ol lrrrsip,(i.R. No l l(rl,l(),.ltrrrullry .](X)().
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
party continues to use the property for public purpose. However, if the
condemning authority ceases to use the property for a public pulpose,
property reverts to the owner in fee simple. The compensation due the
condemning party is the price paid upon expropriation plus legal inter-
est. (Here there was evidence that in the negotiations for appropriation
there was assurance that the former owners could recover the properfy
if public use is abandored.)rrsr
Public use is sometimes equated with pubic necessity. As a rule,
the determination of whether there is genuine necessity for the exercise
of eminent domain is a justiciable question. However, when the power
is exercised by the Legislature, the question of necessity is essentially
a political question."m
4. Just compensation.
Much of the eminent domain litigation that has reached the Su_
preme court deals with the adequacy of the compensation given. For
this reason, the concept of 'Just compensation,' has received ample
treatment from the court and a fairly complete explanation of the con-
cept was formed even in the early 1900's.
Just compensation has been described as "the just and complete
equivalent of the loss which the owner of the thing expropriated has
to suffer by reason of the expropriation."rror Blplsssed differently, the
compensation given to the owner is just if he receives for his property
a sum equivalent to its "market value." "Market value,, has been dc_
scribed in a variety of ways.It is the "price fixed by the buyer and seller
in the open market in the usual and ordinary course of legal trade anrl
competition; the price and value of the article established or shown by
sale, public or private, in the ordinary way of business; the fair value of
property as between one who desires to purchase and one who tlesircs
to sell; the current price; the general or ordinary price for which pnrp-
erty may be sold in that locality.""u' This must include "consequentiul
rrseHeirs
of Moreno v. Mactan-cebu Intemational Airport, G.R. No. I56273, Augr$r
2005.
lloManapat v. CA, G.R. No.
I10478, October 15,z(iJ.)j.
r16rProvinceofTayabasv.Perez,66Phil.467,469(l93tt);MlnilrrRnilnlrtl (ir.v V'llr
quez,32 Phil. 286,313-14 (1915); City of Manill v. Esrrn<ta, 2.5 phit. 2O8,234 ( t9l.t)
rr62Manila Railroad
Co. v. Fabic, l7 Phil. 206,201t 11t)1111, (lity ot Mnrrill v. listrltll, J1
Phil.20tt,2l5(1913);Cityol Munillv.(ixr.llcs,t.lt,lril.n5,r,r.l,()tt(l()15):
MurrilrrRlilrrrul
v. Vclusqucz, 32 Phil. 2lt6 ( l 9 | 5).
Sec.9 ART. III _ BILL OF RIGHTS
Sec.9
damages," that is, damages to other interests of the owner that can be at-
tributed to the expropriation. From the "consequential damages," how-
ever, must be deducted the "consequential benefits," that is, the increase
in the value of the other interests of the owner that can be attributed to
the new use to which his former property will be put by the expropriat-
ing authority.rts If the property is taken before compensation is given
jurisdiction
or before compensation is deposited with the court having
just
over the case, the final compensation must include interests on its
value, to be computed from the time the property was taken to the time
compensation is given or deposited with the court'ns
In terms of time, what is the point of reference for assessing the
value of a piece of property? The general rule is that the value must
be that as o1 the time of the filing of the complaint for expropriation.
(section 4, Rule 67, Rules of court). The flling of the case generally
coincides with the taking. When, however, the filing of the case comes
later than the time of taking and meanwhile the value of the property
has increased because of the use to which the expropriator has put it,
the value is that of the time of the earlier taking. Otherwise the owner
would gain undeserved profit. But if the value increased independently
of whaithe expropriator did, then the value is that of the later filing of
the case.,,6s Moreover, between the time payment is due and the actual
payment, legal interest accrues.
This is clearly illustrated in the case of Forfom Development vs.
PNRu66 where the Philippine National Railway had taken
possession of
property to be used for the extension of a railway system' No expro-
priution case was filed and no compensation was given while the PNR
continued to negotiate with the ownefs. Years later, with the owners
still unpaid, they asked for the return of property and damages based on
unrealiied profits. Clearly there was taking and it was for public use.
The Court ruled that the proper remedy was for an expropriation court
to appoint assessors to determine the value of the property as of the
time of the PNR's entry. The just compensation would be the amount
determined by assessors together with 6Vo interest'
(r,
Co. v. Rodriguez, 13 Phil. 34? (1909) and Cases cited srupra, n.25.
'ffithoad
Uehilippine Railway Co. v. Solon, l3 Phil.34 (1909); Philippine Railway Co' v. Duran,
33 Phil. 156 (1916).
il6tNnlionul Power (lrrpor[tion v. ( lrurl ol' Appcals, G.R. No. I I 3 194, March I I , I 996.
(ir
rr6l"irrfirml)t'vt:hrlltttcntv.PNR,(iRNol247()5'l)ccctnbcrl0'2(X)tl'
 THE 1987 CONSTITUTION
Sec.9
OF THE REPUBLIC OF THE PHILIPPINES
The owners also asked for the surrender to them of whatever rent-
al PNR might have received for the leased portions of the property. But
the property had been leased out by pNR for the purpose of relieving
housing problem along the railway. It was therefore ilso a public use.
Moreover, the fact that the owners had negotiated with ttre pNR ror
whatever compensation might be due estopped them from asking for
the return of the property which, in any case, had to remain with the
PNR as a matter of public policy.
It has also been held that Article 1250 of the civil code govern-
ing adjustments needed due to inflation is a rule on contracts *d i, not
applicable to the computation of compensation in expropriation even if
payment comes long after actual taking.,rez
Just compensation, moreover, is due not to the owner alone. .,The
defendants in an expropriation case are not limited to the owners of the
property condemned. They include all other persons owning, occupy-
ing or claiming to own the property. when a parcel of land ii taken by
eminent domain, the owner of the fee is not necessarily the only person
who is entitled to compensation. In the American jurisdiction, ih" t"rrn
'owner'when employed in statutes relating to eminent domain to desig-
nate the persons who are to be made parties to the proceeding, refer, as
is the rule in respect of those entitled to compensation, to allThose wfut
have lawful interest in the property to be condemned,including a mort-
gagee, a lessee and a vendee in possession under an executory contract.
Every person having an estate or interest at law or in equity in the lantl
taken is entitled to share in the award. If a person claiming an interest
in the land sought to be condemned is not made a pffiy, he is given the
right to intervene and lay claim to the compensation."n68
Even before compensation is given, however, entry may be mutle
upon the property condemned. statutes existing prior to the 1935 con
stitution prescribed previous payment as a prerequisite to deprivatiun ol
property. Article 249 of the old Civil Code said:"6e
No one may be deprived of his property unless it be by coln-
petent authority for some purpose of proven public utility and uftcr
payment of the proper compensation.
rr6TCommissioner
of Public Highw'ys v. Burgos, g6 scRA tti r (Murch .il. r9n0).
r6De Knecht v. (irurt
ot Appcurs, (i.R. N.s. r0tt0 l 5 arrd I09234, Muy 20, r99il,
rr@Visuyun
Relining Co. v. ('rrnus,4{) l,hil, 1550.557 1 1tp19y.
III BILL OF RIGHTS 405
Sec.9 ART. -
Unlessthisrequisitehasbeencompliedwith,itshallbethe
duty of the court to protect the owner of such property in its pos-
session or to restore its possession to him, as the case may be'
Section 247 of the Code of Civil Procedure contained a similar
,,and the judgment shall require payment of the sum award-
provision:
... before the plaintiff can enter upon the ground and appropriate it
"0.
to the public g5s.;"'o Section 2 of Act No. 2826, however, provided for
an insiance when immediate possession could be given to the
govern-
ment before the amount had been fully settled:"''
When condemnation proceedings are instituted by or in fa-
vor of the Insular Government ... in any competent court of the
Philippines,theplaintiffshallbeentitledtoenterimmediately
upon tft" land covered by such proceedings, after depositing with
the provincial treasurer the value of said land in cash, as previously
andpromptlydeterminedandfixedbythecompetentcourt,which
-oniy thi provincial treasurer shall retain subject to the order and
final decision ofthe court. . .
A similar right of immediate entry was given to railroad compa-
nies by section 1 of Act 1592.u7, Now the rule is found in Rule
67 of
the Rules of Court.
Forpurposesofentryintothepropertypriortofullpayment,Sec.
tion 10 of R.A. 7 160 requires a deposit with the proper court of at least
fifteen percent (l|vo) of the fair market value of the property based on
the cunent tax declaration of the property to be expropriated'1''
There is a special rule, however, in expropriation for infrastruc-
ture projects. whereas under Rule 67 of the Rules of court entry may
be made into the property even before payment provided that a deposit
of an amount fixed by the curt is made, under R.A. No. 8974 the gov-
(not
ernment, in infrastructure projects, must make a direct payment
just a deposit under Rule 67) of the proffered value of the property
before it can enter and exercise proprietary rights. Against the objection
rno17. s1 5.55.
'rll/r/. ut 556'
tr?2Mttttilu Rnilroad Co. v. I'arcdcs' 3l Phil r rn, 127 (19ls).
ItlKnccht v. Municipulity of ('uinta, G'R No. 145254' July 20' 2(D6; City of Iloilo v'
l.cguspi, (i.R. No. I 546 I 4, Novetttbcr 25' 2(X)4'
 406 THE 1987 CONSTITT]TION Sec.9 III BILL OF RIGHTS
OF THE REPUBLIC OF THE PHILIPPINES
Sec.9 ART. -

that congress may not amend the Rules of court, the argument given
was that expropriation involves both substance and procedure and the
substantive aspect is within the reach of the legislature to regulate.'74
Is the right of immediate entry before payment constitutional? In
city of Manila v. Battle,'75 where the government's right of immedi-
ate entry was involved, the court said that the deposit of the money
with the court was necessary and sufficient to satisfy the compensation
requirement of the constitution . ln Manila Railroad co. v. paredes
,ri6
a railroad company's right of immediate entry was discussed more ex-
tensively and the discussion is applicable to any situation where a right
of immediate entry may be given to the condemnor. Reviewing conflict-
ing American authorities, the court said that "according to the weight
of authority, if the constitution or statutes do not expressly require it,
actual payment or tender before taking is unnecessary, and it will be
sufficient if a certain and adequate remedy is provided by which the
owner can obtain compensation without any unreasonable delay.,'rrn
The court opted for this more liberal view and found that the statute in
question with its provision for deposit of the money with the court satis-
fied constitutional requirements.
During the debates onArticle III, section l(l), of the 1935 consti-
tution, several amendments, the principal tenor of which was to demand
"previous compensation," were proposed."rs Delegate Diez argued that
the provision was not a novel one in philippine legal history: it was
embodied in Article 349 of the Spanish code, it was embodied in the
Malolos Constitution ("con anticipacion a la expropriacion'); it was
provided for in an early constitutional draft prepared by cayetano Arel-
lano ("siendo indemnizado por adelantado el duefio,,). Moreover, he
added that it was provided for in the constitutions of many American
states. such a provision, he said, would prevent the said cases, common
in provincial towns, of long delays in the grant of final compensation.
He argued that seldom had there been a real necessity for the state to
take immediate possession and, in these rare instances of real necessity,
exceptions, he said, could be made by law.rrTe
unconvinced by Diez' argument and fearing undue paralyzation
of governmental efforts'rrso the Convention rejected the amendment'lrEt
Another amendment proposed was to require "compensation
previously assessed and tendered." It was thought that while such a
iequirement would not unduly paralyze the state (because immediate
assessment would be made by the judge and not by commissioners),tte:
it would at least assure private owners prompt payment."83 The pro-
ponents of this amendment seemed to have had in mind a procedure
not unlik" that already found in Section 2 of Act 2826 and in Section
1 of Act 1592 which required, as a pre-requisite for immediate
posses-
determined by the judge and
sion, the deposit of an amount summarily
changeable in its total sum upon appraisal of proper evidence.r'to The
proposed amendment therefore, while it did not improve existing statu-
^tory
law,"* could have raised the statute to the level of a constitutional
precept. But the proposal was rejected by the Convention'"86
present, the right to enter into immediate possession of the
At
property even before the final ascertainment and payment of just com-
p"n.uti"n is given to any plaintiff. The pertinent Rules of Court provi-
sion reads:"*?
Upon the filing of the complaint or at any time thereafter
the plaintiff shall have the right to take or enter upon the posses-
sion of the real or personal property involved if he deposits with
the National or Provincial Treasurer its value, as provisionally and
promptlyascertainedandfixedbythecourthavingjurisdictionof
ihe pioceedings, to be held by such treasurer subject to the orders
and final disposition ofthe court . ...

r7e1d.1087.
ttTaRepublic v.
ils/d. 1084.
Judge Gingoyon, G.R. No. 166429, December 19, 2005. il8rld. 1089.
r'7525
Phil. 566, 572 (1913). ru/d.
il7631 Phil. 1084.
118 (1915). il81Id.
tt77ld. at 134, quoting l0q).
15 CYC., 778, and at 134-35, quoting l_ewrs Er,lrr.*.ur r&! JoURNAL 1094.
'ouen, Sec.678. rrs/r/. l0ll9-90.
rr7E3
JOURNAL oF THE (193i) coNSTll't,TloNAl, coNVtlN.I.loN, lh,rnrrsrrr lirt rrslr/. 1095.
,
l0l12, hrrcinufter circrl as JOtlRNAl,. rritscelion 2, Rulc 67.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Moreover, P.D. No. 42 removed the discretion of the court in
determining provisional value. what is to be deposited is an amount
equivalent to the assessed value for taxation purposes. No hearing is
required for that purpose. All that is required is notice to the owner of
the property sought to be condemned.u8s
The supreme court, however, has been careful to point out that
it is not the mere filing of the condemnation proceedings which
pends the condemnee's dominical rights but the deposit of the amount
summarily determined by the court. The reason for this, according to
Tuason v. Court of Appeals,''se is that both the Bill of Rights and Article
XIII, section 4 (1935), "prohibit any disturbance of proprietary rights
without coetaneous payment of just indemnity." As the court said in a
subSequent case'rreo
Definitely, to hold that the mere declaration of an intention
to expropriate, without instituting the corresponding proceeding
therefor before the courts, with assurance of just compensation,
would already preclude the exercise by the owner of his rights of
ownership over the land, or bar the enforcement of any final eject_
ment order that the owner may have obtained against any intruder
into the land, is to sanction an act which is indeed confiscatory and
therefore offensive to the Constitution.
It
has been held, however, that where entry is to be made upon
payment of the amount fixed in P.D. No.42 which governs entry before
actual payment, prior hearing for the purpose of determining neces-
sity is not required."e'I Reliance on the Transitory provisions (1973) as
confirmatory of P.D. No. 42, however, somehow confused the issue in
this case.
Aside from the assurance of adequate compensation, does the
Constitution also specify the form of compensation? Must compensa-
tion be in cash? The Rules of court, Rule 67, Section 10, speaks of the
"amount" to be paid as compensation, and section 9 of the same Rule
rr8.National Porver corporation
v. Judge Jocson, G.R. Nos.94193-99, February 25, rgg2.
Where proper, the legal interest in expropriation cases is 6Zo. National power Corp,oration v.
gas,208 SCRA 542 (1992).
rl8eL-18128, December
26.1961. A/so cuatico v. courr of Appcals,
3 l, 1962; J.M. Tuason (ir. v. ('ahiltkr, l. I 7 I 68, ( )ctobcr 3 I, I 9()2.
r|r'lrrnrilarr v..1. M.'lilrsorr ('o.,49
& S('RA llll, 14 I ( 197.1).
rr"rS:rrr I)icgo
v. Vaklelknr, lt0 S('RA lO5 (N()vcntlx.r 2?. 1977).
Sec.9 Sec.9 ART. III _ BILL OF RIGHTS 449
speaks of "sum or sums." Jurisprudence which treats of compensation
speaks of "price, sums of money, amount of money-" One writer would
go so far as to say that by existing jurisprudence "just compensation
has invariably been construed to mean fair market value in cash."rte2
Section 80, however, of the Agricultural Land Reform Code, R.A. No.
3844, provided that the condemnee should be paid IUVo in cash and the
sus-
remaining gOVo in bonds issued by the Land Bank. A similar structure
of payment is also provided for in Presidential Decree No. 27 which
calls for payment in fifteen equal annual installments guaranteed with
shares of stocks in government owned or controlled corporations. Do
these forms of payment satisfy the requirements of just compensation?
No case arose under the 1973 Constitution in which this ques-
tion could have been squarely set before the Court.It should be noted,
however, that, just as the Constitution does not require prior compen-
sation, neither does it specify that compensation be in money. What it
does require is just compensation. As Manila Railroad Co.v. Paredestte3
says, "it will be sufficient if a certain and adequate remedy is provided
by which the owner can obtain compensation without any unreasonable
delay." And just as entry by the condemnor prior to actual payment
has been upheld as satisfying the constitutional requirement, so also
it would not be unreasonable for a liberal approach to the problem to
allow compensation in the form described above. Indeed, a liberal ap-
proach to the problem seems to be dictated by constitutional policy on
land distribution. Both the Agricultural Land Reform Law and Presi-
dential Decree No. 27 under the former dispensation were attempts to
solve this problem of land distribution which, in the present history of
the country, has been clamoring for an adequate solution. And now,
Article XIII, Section 8, of the 1987 Constitution, which says "Financial
instruments used as payment for their lands shall be honored as equity
irr enterprises of their choice," clearly means that payment need not
lrc in cash. The Agrarian Reform Law now provides for partial pay-
rncnt in bonds and it has been ruled that government owned corpora-
tions like the GSIS are obliged to accept at face value Land Bank notes
clrlicr receivcd as payment for expropriated land. Jurisprudence has
An_
lccoglrized that land owners seldom get what they want for their land,
l siluation which can be aggravated should they be compelled to accept
L.-2ol4l-42,()cr6hcr
Il"r ll Mr rvrlMnv rr,t. Ltutt. At;xtxtll ,tt'ttt Stx ttt l,lt;lsr"'uro,r' 4I9 ( l9(lll).
r,,ll lTrrl lltt. l14(1911).
 410 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
land Bank notes at discount.rr* Ramirez v. Court of Appealste' added:
"If landowners are called to sacrifice in the interest of land reform, by
their acceptance of Land Bank bonds in payment of their agricultural
lands, government lending institutions should share in the sacrifice by
accepting the same Land Bank bonds at their face value, as tendered by
landowners in payment of their loans with such government lending in-
stitutions, as long as such Land Bank bonds are derived by landowners
from the sale of their agricultural lands to the Land Bank."
Finally, of interest is the question whether just compensation may
be fixed by legislation. Presidential Decree No. 42 fixed the just com-
pensation at either the value declared by the owner for tax purposes or
the assessed value, whichever is lower. The decree was issued Novem-
ber 9, 1972, two months before the declared ratification of the 1973
Constitution. A number of decisions'e6 assumed that the decree became
part of the law of the land via the Transitory Provisions. But in Export
Processing Tnne v. Dulay,trel the just compensation provision of P.D.42
and similar decrees were declared unconstitutional:
The method of ascertaining just compensation under the afo-
recited decrees constitutes impermissible encroachment on judicial
prerogatives. It tends to render this Court inutile in a matter which
under the Constitution is reserved to it for final determination.
Thus, although in an expropriation proceeding the court
technically would still have the power to determine the just com-
pensation for the property, following the applicable decrees, its
task would be relegated to simply stating the lower value of the
property as declared either by the owner or the assessor. As a nec-
essary consequence, it would be useless for the court to appoint
commissioners under Rule 67 of the Rules of Court. Moreover,
the need to satisfy the due process clause in the taking of private
property is seemingly fulfilled since it cannot be said that a judi-
cial proceeding was not had before the actual taking. However,
the strict application of the decrees during the proceedings woulcl
IrqMaddumba v. GSIS, G.R. No. 61 293, February
I 5, I 990.
rresG.R.No. 83972, February 14, 1991.
rr%Arce v. Genato,69 SCRA 544 (February
27,19'16).. San Diego v. Vrltlclkrrr, lt0 S('RA
305 (November 22, 1977); Municipality of Daet v. Court ol'Appe als, 93 S('RA 5O.l (( )crelp I lt,
1979).
rre?149
SCRA 305,3ll-312 (l9tl7), rcitcntlctl in lgnleio v, (iur.rlclo, l50
(l9tl7),incll'cctrc:vt:rsingNutionul IlousirrgAuthor.ityv.Rt.yt.s, IIIS('RA.).15.
Sec.9 Sec.9 ART. III - BILL OF RIGHTS 4tl
be nothing short of a mere formality or charade as the court has
only to choose between the valuation of the owner and that of the
assessor, and its choice is always limited to the lower of the two.
The court cannot exercise its discretion or independence in deter-
mining what is just or fair. Even a grade school pupil could substi-
tute for the judge insofar as the determination of constitutional just
compensation is concerned.
However, cases applying P.D. No.42 and similar laws which have
long become final may no longer be opened for enquiry.r'eE
Just compensation in land reform.
In a long line of cases, the Court has consistently ruled that com-
pensation for property expropriated must be determined as of the time
the expropriating authority takes possession thereof and not as of the
institution of the proceedings.'too There is, however, a little confusion in
this because the general rule in the Rules of Court for determining "just
compensation" in eminent domain is the value of the property as of the
date of the filing of the complaint. But this is because normally the time
of the taking coincides with the filing of the complaint for expropria-
tion. The general rule, however, admits of an exception. Simply stated,
the exception finds application where the owner would be given undue
incremental advantages arising from the use to which the government
devotes the property expropriated as for instance, the extension of
-
a main thoroughfare, which increased the value of the property after it,
was taken but before expropriation petition was filed.'2m
Thus where the government occupied a piece of private land for
the extension of its airport runway but without expropriating it and after
lapse of many years the owner seeks compensation and rental, for pur-
poses of compensation the value of the land should be based on what it
was worth at the time of entry and not its value after many years. Be-
yond the payment for the value of the land the owner is entitled to legal
interest, not rental.'20'
rr"tFLpuhlic v. (ilrrt ol Appcals,227 SCRA 509 (1993).
r|n'Rcpublic v. Sarahi:r. (i.R. No. 157t147, August 25,2(X)5.
I xirNlt('!
li('ltA lfr', v, l,trt rttrut Ihritltirtr, ( i.R. Ntl. I 6ti732. June 29, 2(n7 .
nr M ln n V. Rtxh igrrcz, ( i.R. No. lt.l. lichruttry 2tt,
I
I 6 I 2(X)6.
 412 THE 1987 CONSTITIJTION
OF THE REPUBLIC OF THE PHILIPPINES
Just compensation also applies in agrarian refonn. Section 4, Ar_
ticle XIII of the 1987 constitution mandates that the redistribution of
agricultural lands shall be "subject to the payment of just compensa-
tion." The deliberations of the 1986 constitutional commission on this
subject reveal that just compensation should not do violence to the Bill
of Rights but should also not make an insurmountable obstacle to a suc-
cessful agrarian reform. Hence, the landowners'right to just compensa-
tion should be balanced with the purpose of agrarian reform. It ii the
duty of the court to protect the weak and the underprivileged, but this
duty should not be carried out to such an extent as to deny justice to the
landowner whenever truth and justice happen to be on his side.
since land acquisition under either presidential Decree No. 27 and
the comprehensive Agrarian Reform Law is an extraordinary method
of expropriating private property, the law must be strictly construed.
Faithful compliance with legal provisions especially those which relate
to the procedure for acquisition of expropriated lands, e.g., the need for
notice, should !s efsgrysd.ruoz
As a concept in the Bill of Rights, just compensation is defined as
the fair or market value of the property as between one who receives,
and one who desires to sell. R.A. No. 6657 requires that just compensa-
tion should be the full and fair equivalent of the property taken from its
owner by the expropriator, the equivalent being real, substantial, full
and ample.'203
The concept of just compensation, however, embraces not only
the correct determination of the amount to be paid to the owners of
the land, but also payment within a reasonable time from its taking.
without prompt payment, compensation cannot be considered 'Just"
inasmuch as the property owner is made to suffer the consequences of
being immediately deprived of his land while being made to wait for a
decade or more before actually receiving the compensation.
Put differently, while prompt payment of just compensation re-
quires the immediate deposit and release to the landowner of the provi-
sional compensation as determined by the DAR, it does not end there.
Verily, it also encompasses the payment in full of the just compensation
r2o2Jugalbot
v. C-A, (i.R. No. 170346, Murch 12, 2(X)7.
rr0'l,unrl Ilurrk v. l)rruingo, (1.R.
No. l6lJli.ll.lttbrunry 4,2(X)ll
Sec.9 Sec.9 ART. III _ BILL OF RIGHTS 413
to the landholders as finally determined by the coufts. Thus, it cannot
be said that there is already prompt payment of just compensation when
there is only a partial payment thereof."M
5. Just Compensation in the L987 Constitution'
The discussions of just compensation by the 1986 Constitutional
Commission reveal both adherence to traditional jurisprudence on the
subject and adjustment to the demands of social justice'
The subject was first discussed during the deliberations on the
Bill of Rights provision. The commission saw just compensation as
an amount equal to the market value of the property: "that is, the price
which the property will command if the seller is not bound to sell and
yThen the question was asked what ef-
the buyer is not bound to buy."tzos
fect a statutory determination of the amount ofjust compensation would
have, Commissioner Bernas answered that any statutory determination
of just compensation would be "only a prima facie assessment. In the
end, the final determination of whether or not the compensation is
just
will have to be made by the court." He added that any law fixing the
amount that would constitute just compensation would not be binding
on the courts "because it is a question of fact which is always subject to
review by the coults."1206 And no one contradicted him when he said: "I
rhink I will be speaking for the [Bill of Rights] Committee when I say
that whatever determination there may be in a decree or law of what
just compensation is, is always subject to review by the .outts'trtzoz (AS
already seen, this view has been affirmed by the coult.1208) Thus, Bernas
resisted as unnecessary an amendment which sought to add the phrase
"as determined by the proper coult."t2'e
The subject of just compensation again came up for discussion
during the deliberations on land reform. Article XIII, Section 4 dictates
that the redistribution of agricultural lands shall be "subject to the pay-
ment of just compensation." with just compensation seen as equivalent
to the market value of the property, the requirement of payment of just
lilLand Bank v. Spouses Orilla, G.R. No. 157206, June 27
'2008'
rasCommissioner Bemas, answering interpellation' I RECORD 683'
t^qd.
rar?/r/. at 686.
! r('rljxprrt Proccssing 7.onc v. I )ulrty, I 49 S('RA 305' 3 I l -3 I 2 ( I 9tt7)'
rlel Rlr(.ORI) 11t ?21] 4.
 414 THE I 987 CONSTITI.TTION ART. III - BILL OF RIGHTS
Sec.9 Sec.9
OF THE REP{JBLIC OF THE PHILIPPINES

compensation was seen by some sectors as an insurmountable obstacle when this meaning was accepted
property. But Regalado was satisfied
to the achievement of the goals of land reform because the intended u-nO t'" did not insist on
an explicit constitutional
by the Commission
beneficiaries would not be able to afford the payment of market value.
provision.'2'o
The commission's understanding, however, was that full bompensation
landless'
need not come from the beneficiary. Land reform could require that the Expropriation for resale to the
6.
state step in to make up the difference between what the farmer can af- and constant affirmation in Phil-
ford and what is due to the landowner.r2r. commissioner Bernas pointed Although there has been clear in
power of eminent domain is inherent
out that this would fine tune the meaning of just compensation in order ippine jurispruden"" ;i; the Consti
be specifically granted by the
to "give substance and meaning to the general concept of social jus- government unO, tt"t""]n""d "* matter of great
rhe Philippines is such a
turion, redistributio,
tice as an attempt to enable the law to make things more affordable for "if"rJit the 1g7j Constitution already saw fit to
those who cannot nff61d."r:rr However, an explicit constitutional provi- urgency that both th" it t and The
expropriation of land f611s5als.r"5
formulate a special p-nirion on get
understood' took a little while to
sion proposed by commissioner Bernas authorizing state subsidy for
land reform was resisted. commissioner ople argued: "I think I made extent of this po*"', u' fresently
my meaning clear that subsidies may be necessary to make up the dif- accepted.
of large landed estates may be
ference in price so that the landowner may be justly compensated. But, The significance of expropriation social
at the same time, subsidy must always be a last resort. And I think the gathered from the ;;i"nu'e hus held in the political andagainst
less that is said about it the better, so that it does not become an open
';;
ry^.-oi" oirrr" i--"diate causes
of the revolt
history orrn"
invitation in the future to potential confabulators. we know all about "oun
Spainweretheabusesconnectedwithextensivelandholdingsofvari. Filipino
intense was the feeling of the
some of these scandals in land pricing.It is very easy for a government ous religious corporations' So
article of the Malolos Constitution
bureaucrat and a landowner in Mindanao to fix a price so that both of leadership in this t;;;;;one possessed
them will gain at the expense of the t8xpaye1.',rzn yielding to Ople's properties' and other belongings
said: " ... all the buildings, as re-
argument, Bernas withdrew his proposal adding: "I also want to avoid by the religious in thete islands will be understood
"o*tt"f;"tt After the transfer of sovereignty
a situation where we make acquisition of land so easy that, in effect, it stored to the Filipi"".;;;nt.",2,6
paris, this demand of the Filipino lead-
over the islands uv it"'ir*,v
may encourage the inefficient use of resoulgss."rzr: of
American administration was confront-
It is arguable, however, as will be pointed out under Article XIII, ership was not rorgoii"n and"the
ed with the problem-oi *inning
Filipino cooperation u1d ut the same
Section 4, that just compensation in land reform, since expropriation in *ittr ttr" terms of the Treaty of Paris
land reform is both an eminent domain act and a police power act, can time reconcifing filip;oa"*un'Or
property rights of persons and' corpora-
which protected religious and
was out of the question. The schur-
be made less than market value.
confiscation'of friar lands
tions.r2rT
Another matter taken up by the commission was the proposal to president Mckinley to survey the Philippine
man commirrion,"r"ni uy "would have
require "prior payment ofjust compensation" in land reform expropria- purchase of the friar lands
situation, ,ugg"""d that the of this solution
tions. commissioner Regalado proposed the amendment as a measure "early consideration
good results" und
'""o-tnenied established in the Archipelago."""
to protect the interest of landowners. Regalado's explanation, however, by the ,ou"*-"n,i".""rr". to be
revealed that all he wanted was what already obtains in expropriation
laws which requires a court deposit prior to entry into the condemned
tzt4ld. 18-21
^t Xlll,Section 4 (I935) and Article XIV'Section I3 (I973)'
.

rrlArricle
I'IOIII RECORD I7.
,,,ngfnnu*6"r"6 last anicle ol' the Malolos Constttutton'
(parls 1.2), 36 CATHoLIC
I2IIII RECORD 647.
I]l /{.,(, [.ARRtl|-l-| d ,,,.,,,1: ]9o2 T,qrr MtsstoN ro Rout
REVIEw I ( les l)'
r2r2lll RECORD
at l9 Rtivlliw ^.o,*,,,r,,
t, trnittcjt't<' tttsront(lAt' l3l ( l90I)'
rrr r/r1. rl
l
''iiii"'i PRllsll)IiNT
2O. ,,xl Rt,l,(
's't'()ltt('Al. )R,1.( ),,,,.,,,ii,iirii'u'iNii,.r.,tvtssloN'l\)'l'tlIi

416 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The Taft Commission which followed up the work of the Schurman
Commission renewed the same recommendation and more specifically
asked for "authority to issue bonds with which to buy up the agricul-
tural holdings and other property of the religious orders ... " The Taft
Commission moreover believed itself in a position to say that there was
a willingness on the part of ecclesiastical authorities "to negotiate and
part with all the land to the government at reason&ble prices."rzrs
Taft's belief that religious authorities were willing to negotiate the
sale of religious property was subsequently borne out by history. The
problem thereby was removed from the strict ambit of eminent domain
powers and was treated as a diplomatic challenge. Taft himself headed
a diplomatic mission to Rome in 1902 and, within two and a half years,
there was effected a purchase of nearly all the lands in question for the
amount of a little over seven million dollars, which was raised by the
sale of bonds.1220 In a large measure, therefore, the friar lands question
was solved without the need of the exercise of eminent domain powers.
The religious corporations, however, were not the only holders of
large landed estates. The encomienda systembrought to the Philippines
by the Spaniards created a big landlord class formed from aristocratic
families who had served Spanish officialdom well.,22, And it is not dis-
puted that the communist uprisings of the 1930's arose largely out of
discontent over the inequitable distribution of land. The speeches and
publications of socialist leaders which became the basis of prosecutions
for seditious utterances in the 1930's sufficiently illustrate this fact.,222
And the continuing effort of the government to remedy this situation
has not yet totally resolved the problem. A disenchanted peasantry re-
mains even today a major source of recruitment for the armed forces of
communism in the Philippines.tzz:
'z''REPORT OF THE UNITED STATES PHILIPPINE COMMISSION TO THE SECRE-
TARYOFWAR 24-5 Q9[1).
f 24P.C. Jrssur, Ezlru Roor 367 (1938).
r22f"The Spaniards took to the Philippines
the encomienda systenr which they used in their
American possessions. A large part of the land, and the best at that, was thus handed over with its
natives to the orvnership of the Catholic Church or to Spanish or half-caste families, who were
termed Caciques. The natives who cultivated the encomiendas were not hirecl laborers, but rcrn-
nants of small holders or inquilinos." Rose 329 ( l9 54),quotetl in 2 G. Mynuiu., /"na t Dn,tut lli6,
n. 2 ( 1968). See Report of the Committee on Nationalizaticln and l)rcscrvation ol'l,ands, 2 Arr rrir io,
Tne FnturNc or rnt Pnrupnue CoNsnruuou 971-2 (l9l7l,lhercintlicr citcrl rrs Anrrr rrlr r. I
l22zSection 4, supra.
r)2rScc I (i. Myrunr A,varv /)na,v,r .llll,l .lll() ( l9(rlt).
,
Sec.9 ART. III _ BILL OF RIGHTS
Sec.9
During the debates on Article XIII, Section 4 (1935), authorizing
the expropriation of lands for subdivision and resale, Delegate Araneta
raised the question whether the provision was at all necessary consid-
ering the state's inherent power of eminent domain. In reply, Delegate
Laurel recalled that Secretary Elihu Root had expressed the opinion that
the expropriation and redistribution of lands for the purpose of preserv-
ing peace and order was a public enough purpose to come under the
right of eminent domain; but Governor Taft, according to Laurel, was of
the contrary opinion.r224 Whether or not Laurel accurately reported the
opinions of Root and Taft is not important for the purpose of this essay.
It should also be recalled that religious authorities were not unwilling to
sell. Laurel himself did not give a categorical answer to Araneta's ques-
tion; but implicit in the former's reply was the significant suggestion
that Article XIII, Section 4 (1935), would remove whatever doubt Gov-
ernor Taft might have succeeded in raising, if, indeed, he entertained the
doubt attributed to him.
A fuller explanation of the purpose of Article XIII, Section 4
(1935), may be found in a speech of Delegate Cuaderno, the author and
sponsor of the provision. In a speech before the Convention entitled
'oLarge Estates and Trusts in Perpetuity," he said:'225
There has been an impairment of public tranquillity, and to
be sure a continuous impairment of it, because of the existence
of these conflicts. In our folklore the oppression and exploitation
of the tenants are vividly referred to; their sufferings at the hand
of the landlords are emotionally pictured in our drama; and even
in the native movies and talkies of today, this theme of economic
slavery has been touched upon. In official documents these same
conflicts are narrated and exhaustively explained as a threat to so-
cial order and stability.
But we should go to Rizal for inspiration and illumination
in this problem of the conflicts between landlords and tenants.
The national hero and his family were persecuted because of these
same conflicts in Calamba, and Rizal himself met a martyr's death
because of his espousal of the cause of the tenant class, because
he would not close his eyes to oppression and persecution with his
own people as victims.
rt!.t J()t.tRNAl. 1086.
tt)\Qtuttu! iu (iurrkr v. ltttrttl l\rtgrcss Atlrnrnistration, li4 Phil. 847,850 (1949) and 2
Anrtrn" (rlO l l.
418 THE 1987CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
I ask you, gentlemen of the Convention, knowing this as you
do and feeling deeply as you must feel over the immolation of the
hero's life, would you not write in the Constitution the provision
on large estates and trusts in perpetuity, so that you would be the
very instrument of Providence to complete the labors of Rizal to
insure domestic tranquility for the masses of our people?
If we are to be true to our trust, if it is our purpose in drafting
our constitution to insure domestic tranquility and to provide for
the well-being of our people, we cannot, we must not fail to pro-
hibit the ownership of large estates, to make it the duty of the gov-
ernment to break up existing large estates, and to provide for their
acquisition by purchase or through expropriation and sale to their
occupants, as has been provided in the Constitution of Mexico and
Yugoslavia.
No amendment was offered and no debate ensued. The resolution
was readily and totally approved by the Convention. Delegate Aruego.
in his authoritative account of the Convention debates, has offered the
interpretation that the purpose of Cuaderno's recommendation was to
"remove all doubts as to the power of the government to expropriate thc
then existing landed estates to be distributed at cost to the tenant-dwell-
ers thereof in the event that in the future it would deem such expropria-
tion necessary to the solution of agrarian problems therein [sic]."r:a'
The resolution of the doubt mentioned by Aruego and alludcd to
by Laurel hinged on an understanding of the concept of "public usc."
Strangely enough, however, almost nothing was said about the conccpt
in the abstract. The statement was made that "public use" was an elastic
concept that could mean "public utility" or "public necessity." It wus
also said that an elaborate irrigation system undertaken by the govcnt.
ment to benefit large tracts of arid private land would still satisly tlre
flexible requirement of "public use."r227 Beyond this, nothing clsc wuri
said on the concept. And, certainly, there was no direct attempt lo link
expropriation and resale of land with the concept of "public usc."
The most interesting eminent domain decisions unclcr thc l()15
Constitution were those dealing with expropriation undcr Articlc: Xlll.
Section 4. The flrst significant decision which put the articlc to usc wnl
12262
Anurco 6l L
r,2r3 JOURNAI. lOt35
Sec.9 Sec.9 ART. III _ BILL OF RICHTS
Guido v. Rural Progress Administration;228 Under authority of this con-
stitutional provision the National Assembly had passed Commonwealth
Act No. 539. Sections I and 2 of the statute read'r22e
Section l. The President of the Philippines is authorized to
acquire private lands or any interest therein, through purchase or
expropriation, and to subdivide the same into home lots or small
farms for resale at reasonable prices and under such conditions as
he may fix to their bonafide tenants or occupants or to private indi-
viduals who will work the lands themselves and who are qualified
to acquire and own lands in the Philippines.
Section 2. The President may designate any department, bu-
reau, office or instrumentality of the National Government, or he
may organize a new agency to carry out the objectives of this Act.
For this purpose, the agency so created or designated shall be con-
sidered a public corporation.
Defendant Rural Progress Administration was the administrative
agency charged with implementing the law. The law was now being in-
voked to justify the purchase of two adjoining lots belonging to plaintiff
and having a combined area of 22555 squiue meters. The Court was
faced with a fundamental question: What "lands" did Article XIII, Sec-
tion 4 have in view? The Court ruminated fi1tr5'tz:o
There are indeed powerful considerations, aside from the
intrinsic meaning of section 4 of Article XIII of the Constitution,
for interpreting Act No. 539 in a restrictive sense. Carried to ex-
tremes,thisAct wouldbe subversive of the Philippine political and
social structure. It would be in derogation of individual rights and
the time-honored constitutional guarantee that no private property
shall be taken for private use without due process of law' ...
Hand in hand with the announced principle, herein invoked,
that "the promotion of social justice to insure the well-being and
economic security of all the people should be the concern of the
stote,"rzl is a declaration, with which the former should be rec-
onciled, that "the Philippines is a Republican state"l2r2 created to
12884 Phil. 847 (1949).
t2nld. {849.
r2xr/d. at tl50-52.
I
rr'rArticle II, Section 5, 1935 Philippinc Conslitution
rrrrArticlc ll. Scction l. 1935 Philippirre (irrtlilitution
,&
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
secure to the Filipino people "the blessings of independence under
a regime of justice, liberty and democracy."'"' Democracy, as a
way of life enshrined in the Constitution, embraces as its necessary
components freedom of conscience, freedom of expression, and
freedom in the pursuit of happiness. Along with these freedoms
are included economic freedom and freedom of enterprise within
reasonable bounds and under proper control. In paving the way
for the breaking up of existing large estates, trusts in perpetuity,
feudalism, and their concomitant evils, the Constitution did not
propose to destroy or undermine property rights, or to advocate
equal distribution of wealth, or to authorize the taking of what is
in excess of one's personal needs and the giving of it to another.
Evincing much concern for the protection of property, the Consti-
tution distinctly recognizes the preferred position which real estate
has occupied in law for ages. ...
The promotion of social justice ordained by the Constitution
does not supply paramount basis for untrammeled expropriation
of private land by the Rural Progress Administration or any other
government insffumentality. Social justice does not champion di-
vision of property or equality of economic status; what it and the
Constitution do guarantee are equality of opportunity, equality of
political rights, equality before the law, equality between values
given and received, and equitable sharing of the social and mate-
rial goods on the basis of efforts exerted in their production. ...
What then must be the guiding principle in interpreting Article
XIII, Section a (1935)? Or, to use the language of the Court, what is its
"intrinsic meaning"? It is that the constitutional provision adds nothing
beyond a clarification of the scope of the inherent power of eminent
dggl4i1.rz:a
In reality, section 4 of Article XIII of the Constitution is in
harmony with the Bill of Rights. Without that provision the right
of eminent domain, inherent in the government, may be exercised
to acquire large tracts of lands as a means reasonably calculated to
solve serious economic and social problem [sic]. As Mr. Aruego
says, "the primary reason" for Mr. Cuaderno's recommendation
was "to remove all doubts as to the power of the government to
expropriate the then existing landed estates to be distributed at
'23'Preamblc, 1935 Philippinc Constitution.
rrr''ll4 I'hil. rrt ll52- I.
Qrrolrlion lronr Artrtitxr is lrom 2 Altrttxr6ll
Sec.9 Sec.9 ART. III - BILL OF RIGHTS 42r
cost to the tenant-dwellers thereof in the event that in the future it
would deem such expropriation necessary to the solution of agrar-
ian problems therein."
Hence, the size of the land expropriated, the large number of peo-
ple benefited, and the extent of the social and economic reform secured
by the condemnation must be such as to clothe the expropriation with
the character of public interest and public use. Such requirement is sat-
isfied when the lands expropriated are "large estates, trusts in perpetu-
ity, and land that embraces a whole town or city."tzts Thus, the Court
concluded:'23u
The condemnation of a small property in behalf of 10, 20
or 50 persons and their families does not inure to the benefit of
the public to a degree sufficient to give the use public character.
The expropriation proceedings at bar have been instituted for the
economic relief of a few families devoid of any consideration of
public health, public peace and order, or other public advantage.
What is proposed to be done is to take plaintiff's property, which,
for all we know she acquired by sweat and sacrifice for her fam-
ily's security, and sell it at cost to a few lessees who refuse to pay
the stipulated rent or leave the premises.
The Guido ruling was adhered to closely by the cases that im-
mediately followed.r'?r Urban Estates, Inc. v. Montesa summed up the
doctrine thus'1238
In brief, the Constitution contemplates large-scale purchases
or condemnation of lands with a view to agrarian reforms and the
alleviation of acute housing shortage. These are vast social prob-
lems with which the Nation is vitally concerned and the solution
of which redound to the common weal. Condemnation of private
lands in a makeshift or piecemeal fashion, random taking of a
small lot here and a small lot there to accommodate a few tenants
or squatters is a different thing. This is true, be the land urban or
agricultural. The first sacrifices the rights and interests ofone or a
r2r384
Phil. at 853.
r2r6ld. rt 854.
r2rrCbmnronwealth v. f)c Bor.ja,85 Phil.5l (1949): City of Manila v.Arellano Law Col-
lcges. 85 Phil. 663 ( 1950); Ruml I'rogress Atlnrinistrntion v. Guzman, 87 Phil. I 76 ( I 950); Pang-
ilinrn v. l)ef,r, l{9 Phil. 1 22 ( 1 95 1 ): Repuhlic v. Stnriu, S9 Phil. 4li3 ( 195 1 ).
u tiSll
l,hil. l4lt. 352 ( 1 95 I ).
 THE 1987 CONSTITT-ITION
OF THE REPUBLIC OF THE PHILIPPINES
few for the good of all; the second is deprivation of a citizen of his
property for the convenience of another citizen or a few other citi-
zens without perceptible benefit to the public. The first carries the
connotation of public use; the last follows along the lines of a faith
or ideology alien to the institution of property and the economic
and social systems consecrated in the Constitution and embraced
by the great majority of the Filipino people.
Clearly, then, the Guido and subsequent rulings equated "public
use" with "public welfare." But does this enlarged concept of "public
use," when applied to expropriation of land, require as a constant factor
that the land be immense in size, or is it possible for "public welfare" to
be served by the expropriation of a small tract of land?
The answer to this question given by Rural Progress Administra-
tion v. Reyesl23e was that the size of the land need not be a constant fac-
tor. Involved in this case was a mere two hectare lot, of which more than
a half were fishponds. The lot formed a part of a bigger area occupied
from time immemorial by various individuals. The expropriation was
made in favor of four families. Justice Pablo penned the decision; two
other Justices concurred; and two more concurred in the result. The
thrust of Justice Pablo's opinion was away from the land-size norm set
by Guido. Although the small lot was considered by the Court to be part
of a bigger area of friar land, the emphasis was not on the size of the
land but on the requirements of social amelioration.
Within two years, however, the Reyes decision was rejected in
Republic v. Baylosis;'oo At issue was the expropriation of 67 hectares
of agricultural land consisting of several smaller lots belonging to vari-
ous owners. The land had formerly formed part of a huge estate. The
tenants and occupants of the land for whom expropriation proceedings
had been instituted had been, by themselves and by their ancestors, oc-
cupying, clearing and cultivating the land for many years. It was also
claimed that the situation was far from peaceful because of misundcr-
standings between landlords and tenants. The Supreme Court, reversing
a lower court ruling in favor of expropriation, returned to the Guido rulc
that "Section 4, Article XIII of the Constitution had referencc only lo
r23el-14703, October 8, 1953. Unpublishcd but sumrnurizcd itr ().t I'hil
Tnnn Yrtn or Cot'tsrrnn,routt. Ltw, 29 Pllll,., 1,..J. I , 5 I ( 19.54).
rr{'96
Phil.46l ( 1955).
Sec.9 ART. III - BILL OF RIGHTS
Sec.9
large estates, trusts in perpetuity, and lands that embrace a whole town
or a large portion of a town or city."rzrt It rejected the argument that
"as long as any land formerly formed part of a landed or large estate,
itmay, regardless of its present area, be still subject to expropriation
under Section 4, Articls [lll."rz+z Finally, the Court made explicit its
abandonment of the Reyes decision and its return to the Guido ruling''2a3
In a well-reasoned dissent, Justice J.B.L. Reyes, after criticizing
the reasoning of the majority as an unwananted entry into the area of
"wisdom" of expropriation policies, accused the Court of misconstru-
ing the real meaning of Article XIII, Section 4. The majority, he said,
made two erroneous assumptions: (1) that "Section 4, Article XIII, is
an end in itself, when actually it is but one of the means chosen by
the framers of the Constitution to attain social justice, amelioration and
tranquility"; (2) "that the constitutional policy is attained by the break-
ing up of landed estates into smaller portions, entirely disregarding the
constitutional direction that the lands condemned are to be 'subdivided
into small lots and conveyed at cost to individuals.' i.e.,the tenants and
occupants."rz44 From the premises that expropriation, subdivision and
resale to tenants and occupants were inseparable components of the
constitutional scheme and that the constitutional provision obviously
had reference only to large estates in existence at the time of the adop-
tion of the Constitution in 1935, Justice J.B.L. Reyes concluded that
any landed estate in existence in 1935 "became liable to condemnation
for the benefit of the tenants, and any subsequent acquirer of these lands
took them subject to that burden or infirmity."tzas
After the Baylosis case, decisions closely followed the lines drawn
in Guido.'rou ln National Resettlement and Rehabilitation Administra-
tion [NARRA] v. Francisco,rz+z *O*RA appealed to the statement in
City of Manila v. Chinese Community of Manila'2a8 to the effect that,
t2atld. at 479.
1242
Id.
'zarld. at480.
t?M
I tl . trt 502 .
r2a5/r/. at 502-3.
lra"l:.8.. Republic v. Prieto, L-17946,
April 30, 1963; Republic v. Caro' L-18042' April
30, May 13, 1963; Bulacan v. B-8. San Diego' Inc-, L-15946'
196.1I RcPublic v. Sitnrirt, t.- l 7569,
licbrrurry 2l{1 l9(r4; Rr.Public v. Mlnotok Rcalty, Inc., L-2O2/M,July 21, 1964; Gabriel v. Reyes,
II l(r; lr1'PPaP1",,4 l. 22.1O5, Aplil .lO, lt)6(t.
r'!/ lOt) I'hil.'/6,1. 7611 ( l(Xi)).
rrrx.l0 I'lril. l,l(), Xr4 (r5 ( l()l()).
 THE 1987 CONSTITUTION
OF TT{E REPUBLIC OF THE PHILIPPINES
where the legislature itself has determined the necessity of the expro-
priation, the Court has no power to interfere. The Court, however, gave
the cryptic reply that "the doctrine thus invoked [was] entirely inappro-
priate, for the question now before the Court is not the necessity of the
expropriation but the power or authority to expropriate under Article
XIII, Section 4 of the Constitution. The validity of the statute directing
the expropriation is certainly a judicial euestiol."tz+e
This quotation from NARRA in effect excluded all consideration
of questions of necessity whenever the "area test" prescribed in Guido
had not been followed. Thus, Justice J.B.L. Reyes was correct when he
said in Baylosis that Article XIII, Section 4 (1935) had become an end
in itself for the Court. The provision had become a symbol of what the
Guido case called the "preferred position" of land. While "public use"
might indeed be equated with "public welfare," the expropriation of
smaller areas of land was, by Guido's interpretation of the Constitution,
conclusively not for the public welfare. Thus, what had originally been
intended as a clarification of the concept of "public use" received an
interpretation which "froze" the concept when applied to land. It was
an interpretation which did a disservice to the flexibility of the concept
of "public use."
On the eve of thebirth of the 1973 Constitution, J.M.Tuason and
C o ., I nc . v. Land Te nure Admini s tr at i o nt 2s0 attempted to restore fl exibility
to the 1935 constitutional provision.It revived the neglected argument
of Justice J.B .L. Reyes found in his dissent in Baylosis and rejected the
"undue stress on property rights" found in Justice Montemayor's argu-
ment in Guido. Emphasis was placed on the fact that the Constitution
speaks of "lands" and not "landed estates". The "area test" was rejectcd
in favor of the state's "quest for social justice and peace."txt Jss[igg
Barredo, in fact, in his concurring opinion espoused a broader powcr
for Congress: "I take it that the constitutional provision itself declarcs
the public objective, purpose or use of the expropriation contemplatc(|,
which is the amelioration of the long standing socio-agrarian conclitions
endangering the very ideology on which our government and way ol'
life rest, hence, it should follow that as long as a congressional lcgislir
tion declares that condemnation of a particular land is firr thc spccilic
r24'109 Phil.768-9.
rra,3l scRA4t3(t970).
|)'tId.irt427-t4,qlolirr6 liornlht'tlisscttlol .l.ll.l ,.Rcyesirt lhtvlrt.tit
Sec.9 Sec.9 ART. III - BILL OF RIGHTS
purpose stated in the Constitution, it is not for the judiciary to enquire as
to whether or not the taking of such land is for public use.r2s2
Unfortunately, however, the majority opinion in J-M. Tuason
penned by Justice Fernando cannot be considered a definitive rejection
of the main thrust of Guido.In the first place, what was in issue in Gui-
do wasthe scope of the expropriatory powers delegatedto the President
by statute, whereas, in J.M. Tuason, the challenge was addressed to the
validity of a statute specifically made applicable to a particular piece
of land. Secondly, in effect, only four Justices concurred in Fernando's
opinion; the seven others either dissented or for procedural reasons,
concurred merely in the result.
After the 1973 Constitution took effect, what was the force of the
Guido-Baylosis rule? It is submitted that the Fernando-Barredo opinion
set out in J JuI. Tuason became the controlling doctrine. The insistence
of the Guido-Baylosis line of decisions on making the size of the land to
be expropriated the controlling factor for legitimating expropriation for
resale could not be justifled in the light of new provisions found in the
1973 Constitution.In relation to Article II, Section 6 (1973),the power
of eminent domain must be recognized as the most effective instru-
..equitably diffuse property ownership" and in relation to Ar-
ment to
ticle XIV, Section 12 (1973), the power of eminent domain could most
effectively serve to "implement an agrarian reform program aimed at
emancipating the tenant from the bondage of the soil." And the problem
of inequitable distribution of land in the Philippines under the 1973
Constitution did not consist merely in the existence of single tracts of
land that, to paraphrase Guido,'253 embraced whole towns or cities and
belonged to one owner. The problem also consisted in extensive land
holdings by single owners, although these land holdings might not be
all in one piece. Hence, although Guido might have been correct in say-
ing that this latter type of extensive land holdings was not the "lands"
contemplated by the 1935 Constitution, this type of land holdings came
within the ambit of the 1973 Constitution. By then there were very few,
if indeed there still were at all single owner land holdings that embraced
whole towns and cities.
tt') Itl . ii 442-.1 .
r"'ll4 l'hil.ll ll5 I
 THE 1987 CONSTITUTION Sec.9 Sec.9 ART. III _ BILL OF RIGHTS 427

OF THE REPUBLIC OF THE PHILIPPINES

When expropriation for resale to farmers was discussed in the the fact that the power of eminent domain is lodged with the
legislative
constitutional commission of 1986, nobody even adverted to the Gui- and executive departments. That the courts can review the report
of
pow-
do-Baylosis rule. It was then taken for granted that expropriation for commissioners is now established doctrine. since, however, the
resale for the purpose of alleviating the condition of landless farmers is ers given to the commissioners are discretionary, their task is
not the
a state duty in social justice.rrsa ..melre
mechanical work of taking down the evidence presented before
"palpa-
them," and their valuation can not be reversed by courts unless
7. Judicial review. bly excessive or inadequ ate."t256 Moreover, trial by commissioners is a
substantive right which a judge may not dispense with''''
The many cases decided by the Supreme Court involving the va-
lidity of acts of expropriation clearly attest to the fact that the exercise A subtler question that has come up is whether the court can re-
of the power of eminent domain is subject to judicial review. The fol- view a legislative or administrative judgment that a particular "use" to
lowing aspects of the exercise of the power have been subjected to ju- which the property will be put is a public use or a public necessity.
In
dicial scrutiny: (1) the adequacy of the compensation, (2) the necessity an obiter iirtu* in City of Manila v. Chinese Community,
the Supreme
of the taking, and (3) the "public use" character of the purpose of the court made this statement'r2ss "It cannot be denied, if the legislature
taking. under proper authority should grant the expropriation of a certain or

The propriety ofjudicial review of the valuation of the property partfcilai parcel of land for some specified public purpose' that the
purpose of the
made by property assessors has never been seriously questioned. And, courts would be without jurisdiction to inquire into the
contradicted by
as already discussed above, even when there is a statutory determina- legislation." This statement, however, was immediately
of Traction Co.
tion of the just compensation due, the courts may still review the ad- a f,uotation made by the Court from the American case
equacy of even such determination. v. Mining Co.'t2se

The procedure in expropriation cases set down in the Code of Civ- ItiserroneoustosupposethatthelegislatureoftheUnited
States is beyond the control of courts in exercising the
power of
il Procedure, which has since been superseded by the Rules of court,
provided for the judicial appointment of three commissioners to view eminentdomain,eitherastothenatureoftheuseorthenecessity
to the use of any particular property'For if the use be not
public or
the premises and assess the damages to be paid for the condemnation. the
no necessity for taking exists, the legislature cannot authorize
The commissioners made their report to the court, and Section 245 of notwith-
taking of private property against the will of the owner'
the code expressly declared that "none of their proceedings shall be
standing compensation may be required'
effectual to bind the property or the parties until the court shall have ac-
cepted their report and rendered judgment in accordance with their rec- What then is the controlling doctrine?
ommendations." Thus, in the language of City of Manil.a v. Estrada,t2ss
"There is ample authority in the statute to authorize the courts to change
when expropriation is done not directly by the legislative althori-
or modify the report of the commissioners by increasing or decreasing tybutbyanothergovernmentagencyorbyamunicipalcorporationand
purpose of
in virtue of an authorizing statute which neither specifies the
the amount of the award, if the facts of the case will justify such change no doubt but that
the taking nor the property to be taken, there should be
or modifications." And while this statement of the Court is merely an the provision
affirmation of the statutory authority to review the valuation made by the courts must come in to perform its duty of enforcing
assessors, it is nonetheless constitutionally significant as an affirmation
of the Constitution. The Court can look into the necessity of the taking,
that judicial review of administrative valuation is not incompatible with
r{r'l'hilippinc Railway Co. v. Campbell, l3 Phil 34' 37' 38 (1917)'
rIryunllu Blcctric (ir. v. Pinedrr.206 SCRA 196' 204 (1992)'
r25aMore
on this will be said in thc discussion ol'Articlc XIll, St:ctiorr 4 il1N40 t'hil. 149, 164_65 ( l9l9).
rrt125 Phil. 2o8,242 ( t9l.t)_
i r rre l (X) [ , .S. 2 l() ( l(X)4 ), Ar,lftl in 40 I'ltil. ilt J62.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
as it did in the Manila Chinese Community case and again in Republic
v. I-a Orden de PP. Benedictinos de FilipinoJ.r260 Both cases involved
expropriation that was clearly for a public pulpose, the construction
of a public road. The former was an attempt by the City of Manila to
expropriate in virtue of a general authorization in its charter, and the
latter was an attempt by the Philippine Government by authority of the
President pursuant to the general authority given by Section 64(b) of
the Revised Administrative Code. In the Chinese Community case the
Supreme Court disallowed the expropriation arguing in part:'ru' "In the
present case, even granting a necessity exists for the opening of the
street in question, the record contains no proof of the necessity of open-
ing the same through the cemetery. The record shows that adjoining and
adjacent lands have been offered to the city free of charge, which will
answer every purpose of the plaintiff." And in the PP. Benedictino,s case
the Court ruled.'262
It is the rule in this jurisdiction that private property may be
expropriated for public use and upon payment ofjust compensa-
tion; that condemnation of private property is justified only if it
is for the public good and there is a genuine necessity therefor
of a public character. Consequently, the courts have the power to
inquire into the legality of the exercise of the right of eminent do-
main and to determine whether or not there is a genuine necessity
therefor.
The necessity of the taking, according to the Court, was a question
of fact which must be established by proper evidence.1263 The need frrr
judicial review is even more were the legislative act was authored nol
by a legislative body but by a President exercising legislative authori
ty;'*
This principle was put in doubt in Arce v. Genatot265 but wls orrce
again forcefully recognized in De Knecht v. Bautistat26n when tlrc ('ourt
rr01 scRA 646 (1961).
'26140 Phil. at 371.
'2621 SCRA at.649.
t263Id.
r2sManotok v. National Housing Authority, l-50 S(lRA lt9 ( l9tl7).
'26s69 SCRA 544
(February 21 ,1916).
'?6100 SCRA 660, 666 (( )cloher 30, I 911()). Lalt:r, lrowtrvcr, ru ogrrizing t'lurrrgn I r tr r nlr
r
stances,theC<lurtupheltl thevaliclityol llnwrcvivingtlrcRcintrxl rltlllrnplrur. ltcprrhltr
Knecht, (i.R. No. ll7.].15, lit.hrurrry 12, 199O.
Sec.9 Sec.9 ART. III - BILL OF RIGHTS 429
ruled that there was no real necessity for Epifanio de los Santos to be
extended to Roxas Boulevard through Rein and del Pan streets instead
of through Cuneta Avenue. And as Municipality of Meycauayan v. In-
termediate Court of Appealst'z6T put it: "As early as City of Manila v'
Chinese Community of Manila (40 Phil. 349), this Court has held that
the foundation of the right to exercise the power of eminent domain is
genuine necessity and that necessity must be of a public character. Con-
demnation of private property is justified only if it is for the public good
and there is a genuine necessity of a public character. Consequently, the
courts have the power to inquire into the legality of the exercise of the
right of eminent domain and to determine whether there is a genuine
necessity therefore."
Likewise, the courts can look into the public character of the pur-
pose of the taking by government agencies other than the legislature'
The series of cases involving expropriation of land for resale were for
the most part a discussion of whether the taking, exercised by agencies
like the Rural Progress Administration or the Land Tenure Administra-
tion, satisfied the requirement of public use.
When, however, the legislature itself specifies the purpose of the
taking and singles out the property to be taken, can the Courts review the
judgment made by the legislature? As already seen above, the Chinese
Community case, in two obiter dicta, gave two contradictory answers
to the question. Similarly, in American jurisprudence, there is evidence
of an ambivalent judicial attitude to the question. The more commonly
accepted American rule is that the issue of public use is a judicial ques-
tion. But in the 1946 case of United States v.Welch,"u'there was a clear
implication of the finality of legislative judgment when Justice Black
said'r26e "We think that it is the function of Congress to decide what type
of taking is for public use and that the agency authorized to do the tak-
ing may do so to the full extent of its statutory authority."
In Philippine jurisprudence, the authority of the courts to review
the legislative judgment has never been seriously questioned except in
the area of expropriation of land for resale. One such attempt was dealt
rr't 157 s('RA (r40,647
l()ttti)
(
rrn{.127 I
v llc l.s. 546 ( l()46).
ll
rro')/r/. 551 2.
g,
430 THE 1987 CONSTITUTION Sec.9
OF THE REPUBLIC OF THE PHILIPPINES
with in N/RRA v. Franciscot,T' involving Republic Act No. 1266 which
specifically authorized the National Resettlement and Rehabilitation
Administration to expropriate Hacienda del Rosario situated at Valde-
fuente, Cabanatuan City, for subdivision and resale to the occupants.
When the expropriation was challenged on the ground that the size of
the land did not satisfy the Guido rule, NARRA appealed to the obiter
dictum in Chinese Community stating that "where the legislature has
directly determined the necessity of appropriating private property for
a particular public improvement at a specified location, the utility, ne-
cessity and the expediency of the improvement and the suitableness of
the location are questions for the legislature to determine and the courts
have no power to interfere and substitute their own discretion."r2zr The
Court did not accept the argument. It is noteworthy, however, that in re-
jecting the argument the Court did not categorically reject the principle
stated. Rather the Court said that the principle involved was "entirely
inappropriate, for the question now before the Court is not the neces-
sity of the expropriation but the power or authority to expropriate under
Article XIII, Section 4, of the [1935] Constirution. The validity of the
statute directing the expropriation is certainly a judicial euestion."r:rz
The implication is that if the issue had been the necessity of the expro-
priation, the Court might have upheld the argument. The Court, how-
ever, could not even begin to consider the question ofnecessity because
it felt constrained by the mechanistic land-size Guido test for "public
use" which, as the Court was careful to note, "while not unanimous,
still [stood] unreversed."r273
If it had been disposed to, the Court in NARRA might have side-
stepped the Guido rule by distinguishing the statutes involved in the
two cases. The statute involved in Guido did not pick out the specific
property to be expropriated; the statute in NARRA did. The NARRA
Court, however, did not even advert to the distinction. Perhaps, Jus-
tice J.B.L. Reyes, who wrote the opinion in NARRA, did not yet dccnr
it opportune to revive the arguments raised in his dissentin Bayktsi.t,
arguments which ten years later would not only be revived but also
r2ro109 Phil. 764 (1960).
t27
ld . at'l 68 .
t
t2121d.769-9.
t211ld.'768.
Sec.9 ART. III - BILL OF RIGHTS
elaborated on in the main opinion in J .M . Tuason & Co. v. Innd Tenure
Administration.t2la
Like the statute in NARRA, Republic Act No. 2616 picked out the
property to be expropriated for resale, the Tatalon Estate in Quezon
City jointly owned by J.M. Tuason & Co., Gregorio Araneta & Co.,
Florencio Deudor and others. While Justice Fernando, who wrote the
main opinion, was less than accurate when he said that "this is the first
time the judiciary is confronted with such a challenge addressed to the
validity of a statute specifically made applicable to a particular piece
of land,"rzrs it was indeed the first time for a main opinion to meet the
challenge head on. NARRA as already seen had earlier side-stepped the
challenge.
Fernando, appealing to the language of the constitutional grant of
power to Congress, argued:1276
It does not admit of doubt that the congressional power thus
conferred is far from limited. It is left to the legislative will to de-
termine what lands may be expropriated so that they could be sub-
divided for resale to those in need of them. Nor can it be doubted
either that as to when such authority may be exercised is purely
for Congress to decide. Its discretion on the matter is not to be in-
terfered with. The language employed is not swathed in obscurity-
The recognition of the broad congressional power is undeniable.
The judiciary in the discharge of its task to enforce constitutional
commands and prohibitions is denied the prerogative of curtailing
its well-nigh all embracing sweep.
In his concurring opinion, Justice Barredo re-enforced the Fer-
nando argument thus''2'
I take it that the constitutional provision itself declares the
public objective, purpose or use of the expropriation contem-
plated, which is the amelioration of long standing socio-agrarian
conditions endangering the very ideology on which our govern-
ment and way of life rest, hence, it should follow that as long as
a congressional legislation declares that the condemnation of a
particular land is for the specific purpose stated in the Constitu-
r/'l3t s('RA413 (1970)
rr/'/r/.al4ltl.
t!r,|il..nl 42t.
t)u hl. tt ,l4 ) |
 THE 1987 CONSTITUTION Sec.9 Sec.9 ART. III - BILL OF RIGHTS
OF THE REPUBLIC OF THE PHILIPPINES

tion, it is not for the judiciary to enquire as to whether or not the 9. Regulation versus taking'
taking of such land is for public use. The Constitution itself which
is supposed to be the supreme law on privatlr property rights de-
Both police power and the power of eminent domain have the
general weftare for their object. The former achieves its object
by regu-
clares it to be so, and leaves it to Congress, not to the judiciary' to
by
make the choice of the lands to be taken to attain the objective the iation while the latter by "taking." When property right is impaired
regulation, compensation is not required; whereas, when
property is
constituent assembly aimed to achieve. The scope and the limit of
the power of the judiciary in this regard is only to determine the just compensation' Hence' a sharp
taken, the Constitution prescribes
existence of enabling legislation, to see to it that the facts are as distinction must be made between regulation and taking'
contemplated in such enabling act and to provide the vehicle for
compliance with procedural due process in the implementation of When title to property is transferred to the expropriating authority,
the congressional act. there is a clear case of compensable taking' However' as
will be seen'
it is a settled rule that neither acquisition of title nor total destruction
can thus be seen from the reasoning of Fernando and Barredo
It with the
of value is essential to taking. It is in cases where title remains
that their argument for the non-reviewable character of the judgment of
private owner that inquiry must be made whether the impairment
made by the legislature is premised on a textual commitment of dis- amounts to compensable
property right is merely regulation or already
cretion on the subject to the legislature. Theirs is not an argument for
taking.
general non-reviewability of direct legislative exercise of the power of
eminent domain. Moreover, as already pointed out earlier, the view ex- An analysis of existing jurisprudence yields the rule that when a
property inteiest is appropriated and applied to some public
purpose'
pressed in Fernando's main opinion and Barredo's concurring opinion
a property interest is
reflects the opinion of at most five Justices. This writer will hazard the ift"i" it compensabl" 1uf.ing. Where, however,
opinion that the Fernando-Barredo view will eventually become the ac- merely restricted because continued unrestricted use would
be injuri-
cepted rule. oustopublicwelfareorwherepropertyisdestroyedbecausecontinued
there is
existence of the property would be injurious to public interest,
8. Does "res judicata" aPPIY? no compensable taking.
When once the right to expropriate has been denied the state in a Thedistinctionbetweenpolicepowerregulationandtakingunder
specific case, it does not mean that the state may not come back to the eminent domain was established early. The cases are fairly simple.
Thus ,
same properly. "The very nature of the eminent domain, as an inher- in 1915, a statute regulating the slaughter ofcarabao for the purpose of
ent power of the State, dictates that the right to exercise the power be legiti-
conserving an adequate supply of draft animals was upheld
as a
absolute and unfettered by a prior judgment or res iudicata. The scope under eminent
mate exercise of police power and not a form of taking
of eminent domain is plenary and, like police power, can 'reach every doctrine on zoning or-
domain as to require compensation.r2Te Ameri'can
form of property which the State might need for public use."' However, the
tlinances was likewise adopted. Following Murphy v' California'l'z8o
the impropriety of res judicata "does apply to specific issues decided in (ltrurt said, in Seng Kee & Co. v. Earnshaw,t2Et that an ordinance divid-
a previous case. For example, a final judgment dismissing an expropria-
irlgacityintoindustrialandresidentialareaswasalegitimateregu-
tion suit on the ground that there was no prior offer precluded another
l.iion and not a taking of property without just compensation. Again,
suit raising the same issue; it cannot, however, bar the State or its agent prohibiting the
irr I'cople v. de Guzrnan,t282 when a zoning ordinance
from thereafter complying with this requirement, as prescribed by law'
and subsequently exercising its power of eminent domain over thc samc
property."t"*
s/"1 I.S. v. Ttrribio, I 5 Phil. 85' 92 ( l9l0)
r)*,'225 tJ.S. 623 ( l9l I ).
rrTsMrrrricipllilyol l'lrr:rilulrre v.V.M.l{r':rlly(irrPrrirliort,(i.R.No. llTl|2O,Jrtly2O, l()()tt, rr"r5() I'hil. 2114, 21{ 1 l()-} I ).
rr{rx) lrhil. I I }. I
l().)li('l{A67tt.(})lr'ititt,tiNrrtirlrirl l'orvcr(irlxrr:rliorrv (iuttlol Aglx'rrls,,ll'lSi('ltAJ77(l')(X)) }(r ( l()51).
 434 THE 1987 CONSTITUTION Sec.9
OFTHE REPUBLIC OFTHE PHILIPPINES
operation of a lumber yard within certain areas was challenged as con-
fiscatory, the Court upheld it as a valid exercise of police power.
What is common among the above cases is that while the regula-
tions in question affected the right of ownership, none of the property
interests in the bundle of rights which constitute ownership was appro-
priated for use by or for the benefit of the public. Use of the property
by the owner was limited, but no aspect of the property was used by or
for the public.
The deprivation of use can in fact be total and it will not consti-
tute compensable taking if nobody else acquires use of the property or
any property interest therein. For instance, if in order to check further
spread of Kadang-Kadang a law were to be passed authorizing the de-
struction of coconut trees infected with Kadang-Kadang, coconut tree
owners whose trees are ordered cut down could not complain of unlaw-
ful deprivation of property without just compensation. There would be
destruction but no compensable taking.r283
The case of People v. Fajardot28a illustrates compensable tak-
ing that does not involve transfer of title. The municipal mayor on the
strength of an authorization given by a municipal ordinance, had re-
fused Fajardo permission to put up a house on his land on the ground
that the proposed structure would "destroy the view or beauty of the
public plaza."'z' It is true that the ordinance upon which denial had
been based was also declared fatally defective for being an invalid del-
egation of legislative authority. The Court, however, considering the
ordinance, arguendo, as a valid delegation of authority to issue zoning
regulations, said''2{16
Even thus interpreted, the ordinance is unreasonable and op-
pressive in that it operates to perrnanently deprive appellants of
the right to use their own property; hence, it oversteps the bounds
of police power, and amounts to taking of appellant's property
without just compensation. ... The appellants would, in effect, be
constrained to let their land remain idle and unused for the obvious
r283See
Miller v. Schoene,276 U.5.212 (1928\.This casc involvcs r stirtutc tuthoriz.irrg tlrc
destruction of red cedar trees infected with rust.
rA4l04 Phil.,t43 ( 1958).
1285Id.
itt 445.
t28"ld. rl 44J ll.
ART, III BILL OF RIGHTS 435
Sec.9 -
purpose for which it is best suited, being urban in character. To
legally achieve that result, the municipality must give appellants
just compensation and an opportunity to be heard.
Does this decision mean that it is the permanence and the total-
ity of the deprivation which constitute compensable taking? As already
seen, total destruction without utilization is not appropriation but is
merely regulation by police power. One must therefore look beyond the
deprivation and ask for the ultimate purpose. In this case, the purpose
was to preserve "the view or beauty of the public plza'" Thus, in effect,
what the municipality wanted was to impose an easement on the prop-
erty of Fajardo, which was a form of utilization of Fajardo's property
for public benefit.'"
That the establishment of an easement is a form of compensable
taking is illustrated in a number of American cases, all of which rest
upon the owner's right not only over the surface of the land but also
to a reasonable height of the airspace above it. Thus, the repeated fir-
ing of guns over a piece of land was considered a compensable tak-
ing."" Similarly, the flight of planes from a nearby military airport over
plaintiff's property below the navigable airspace resulting in the ruin of
plaintiff's chicken farm was considered compensable taking.'2Ee So also
were low landing and take-off flights which made the nearby residential
area unlivable."'n
easement that the owner of the land in
It was also on the basis of
National Power Corporation v. Spouses Misericordia Gutienezt2er was
awarded full compensation against the NPC's argument that the owners
were not totally deprived of the use of the land and could still plant the
same crops as long as they did not come into contact with the wires. The
Court said: "The right of way easement perpetually deprives defendants
of their proprietary rights as manifested by the imposition by the plain-
tiff upon defendants that below said transmission lines no plant higher
than 3 meters is allowed. Furthermore, because of the high{ension cur-
- *"fh. It thus distinguishable from the destruction of billboards ln Churchill v. RaJ-
",rre (1915), which had tbr its purpose the general object ofpreventing structures
lrrr.v, J2 l,hil. 5tJ0
olli'rrsivc lo lhc sig,ht.
rrrsltrrtsrnouth l'larbor l,lntl & llotcl (ir. v. United States,260 U'5.327 (1922).
rrs"lJttilcrl Slitlcs v. ('rtttshy, 12tt I l.S. 256 ( 1946)'
r/,,'(iriFgs v.Allcgltr.ly ('lurrty, l(r() tl.S. tt4 (1962).
'"'r(i.R No. (t(X)7/..ltrrtltltrY ll(, lt)()1.
 THE 1987 CONSTITUTION
OF TTIE REPUBLIC OF THE PHILIPPINES
rent conveyed through said transmission lines, danger to life and limbs
that may be caused beneath said wires cannot altogether be discounted,
and to cap it all, plaintiff only pays the fee to defendants once, while
the latter shall continually pay the taxes due on said affected portion of
their property."
A Philippine example of compensable taking which did not in-
volve transfer of title is Republic v. Philippine Long Distance Co.
(PLD71;,' The Bureau of Telecommunications, an instrumentality of
the government performing governmental functions, had contracted
with the PLDT for the use of the latter's lines in order to enable gov-
ernment offices serviced by the Bureau of Telecommunications to call
private parties. The Bureau of Telecommunications wanted to expand
its use of the PLDT lines in order to expand the services to government
offices. PLDT, however, and the Bureau of Telecommunications could
not reach agreement on the terms of the contract for the use of PLDT
facilities. The Court said'r2e3
While the Republic may not compel the PLDT to celebrate a
contract with it, the Republic may, in the exercise of the sovereign
power of eminent domain, require the telephone company to per-
mit interconnection of the government telephone system and that
of the PLDT, as the needs of the government service may require,
subject to the payment of just compensation to be determined by
the court. Normally, of course, the power of eminent domain re-
sults in the taking or appropriation of title to, and possession of,
the expropriated property; but no cogent reason appears why the
said power may not be availed of to impose only a burden upon the
owner of condemned property, without loss of title and possession.
It is unquestionable that real property may, through expropriation,
be subjected to an easement of right of way. The use of the PLDT's
lines and services to allow inter-service connection between both
telephone systems is not much different. In either case, private
property is subjected to a burden for public use and benefit. If,
under Section 6, Article XIII, of the [1935] Constitution, the State
may, in the interest of national welfare, transfer utilities to public
ownership upon payment of just compensation, there is no reason
why the State may not require a public utility to render selviccs in
r2e226 s('RA (r2O ( ltX;t)1
tle\ld. trl 62]1.
Sec.9 Sec.9 ART. trI - BILL OF RIGHTS 437
the general interest, provided just compensation is paid therefor.
Ultimately, the beneficiary of the interconnecting service would
be the users of both telephone systems, so that the condemnation
would be for public use.
Where, however, a lot owner was prejudiced by the closure of a
road in that his access to the national road had been limited, compensa-
tion was not allowed. "Petitioner is not entitled to damages because the
injury he has incurred, such as it is, is the price he and others like him
must pay for the welfare of the entire community. This is not a case
where his property has been expropriated and he is entitled to just com-
pensation. The construction of the new road was undertaken under the
general welfare clause," and thus was an exercise of police power''2e4
And in BeI Air Village Association v. Intermediate Court of Appeals,'2os
where the subdivision was ordered to open a gate to a road within the
subdivision, the order to open the road was ruled to be an exercise of
police power and not of eminent domain. It was found that the deed of
donation covering the road stipulated that the road would also be for the
general public. Hence, the order to open the gate was deemed an abate-
ment of a public nuisance.l2e6
Two other cases, which at first glance look like zoning cases which
should not require compensation, were in fact found to be confiscatory.
ln Hipolito v. City of Manila,'2e7 the Court said that to deny plaintiff a
building permit on the ground that the land on which he planned to build
would be used for widening the street and before such land is expropri-
ated is to take plaintiff's property without due process of law. Again
in Clemente v. Municipal Board of lloilo,'2es an ordinance which, look-
ing to eventual expropriation proceedings, prohibited property owners
along a portion of a street from erecting new buildings or repair old
ones, under penalty of fine, was also declared to be confiscatory. In both
cases, the intent to appropriate the property for public use was clear.
Anticipatory of any expropriation proceedings, however, there was an
attempt to deprive the owners of their dominical right under the guise of
r2ea(lnbrcru v. (klrrt of Appcals, (i.R. No. 7t1673, March IU, |991.
r2e1l76 q('RA 719 ( 1989).
r7eil76 s(,RA 719 ( l9tt9),
r)s,8'7 I'hil. ltto, lll.l ( 1950).
r)qil,116ll,April,r'l,ltl5\ llrrprrlrlislrcrllrttlsttttttttittizctlirr(tlll'lril.ll0l
 ART. III - BILL OF RIGHTS 439
THE 1987 CONSTITUTION Sec.9 Sec.9
OFTHE REPUBLIC OFTHE PHILIPPINES

regulation. As already seen, a mere declaration of an intention to expro- tions. In Penn Central Transportation Co. v. New YorkBB ruled that the
priate does not yet serve to curtail the dominical rights of the owner.r2ee landmark law which did not interfere with the Terminal's present uses
or prevent Penn Central from realizing a "reasonable return" on its in-
Recent decisions, in the context of determining as of what date the
vestment did not constitute taking but was merely an exefcise of police
value of the property must be fixed, have helped clarify the constitu-
power. In such cases, the standard of legitimacy is not compensation but
tional meaning of taking. since compensation is fixed as of the time the
the reasonableness of the regulation.
property is taken, it becomes important when the property is deemed to
have been taken, especially in situations where there is a transformation There have been more recent cases involving the meaning of tak-
in the nature of the govemment's holding of the property. In Republic v. ing. where the entry into private property is not just a simple righr
Vda. de Castellvi,'zoo where the government had initially held the land as of-way, which is ordinarily allowed under the provisions of the Civil
lessee, the Court said that the government became an expropriator only Code, but the entry is for purposes of conducting mining activities such
when it took steps that satisfied the elements of taking. These elements as exploration, extraction and processing of minerals, there already is
are "(1) that the entrance and occupation by the condemnor must be for compensable taking. All these will deflnitely oust the owners or oc-
a permanent, or indefinite period, and (2) that in devoting the property cupants of the affected areas the beneficial ownership of their lands.r3o4
for public use the owner was ousted from the property and deprived of
similarly, when the right of way enforced by the state results in
its beneficial use." For as long as the government was still paying rent
making adjoining property unusable, just compensation is due''3os So
there was no "taking" in the expropriatory sense. Similarly, for as long
also, where the nature and effect of the installation of the 230 KV
as the government was staying in the property only "by permission" of
Mexico-Limay transmission lines results in the imposition of limitation
the owner, there was as yet no taking.r:o' Moreover, if the expropriating
against the use of the land for an indefinite period, there is compensable
authority chooses not to take possession ofthe property until afterjudg-
taking.'306
ment is rendered, the moment of taking, for purposes of fixing com-
pensation, is not the date of filing the condemnation suit but the date of of municipal property.
10. Expropriation
judgment.'302
In a set of cases involving the National Waterworks and Sewerage
The issue of "taking" also becomes involved when a piece of pri-
Authority (NAWASA), the Court unmasked an attempt to expropriate
vate property is classified by the state as a "historical landmark.', When
under the guise of exercising police power. A law was passed autho-
does classification of property into a historical landmark resulting in a
rizing the transfer of municipal waterworks systems to the NAWASA.
limitation of its economic usefulness amount to compensable taking? NAWASAunderstood the law to mean that it could take the waterworks
Such an action is not far different from zoning regulations although
system of Baguio city under the claim of exercising police power. In
its economic impact on a piece of property might be more than that of
City of Baguio v. NAWASA,"0' after finding that the waterworks system
mere zoning regulation. In deterrmining whether the action amounts to
was not national property merely held in trust by the city for the benefit
taking or is in fact merely regulation the factors that must be considered
of the public but was private property held by the city in its proprietary
are (1) the economic impact of the regulation on the property; (2) the
capacity, the Court said that the act did not authorize the confiscation
extent to which the regulation might interfere with investment expecta-
nor appropriation of the property belonging to cities but merely directed
that the waterworks belonging to municipal corporations be transferred
r2eeFamilara v. J.M.Tirason
& Co.,49 SCRA 338,341 (1973).
'm58SCRA336,352(August 15,1974).
t
rsrGarcia v. Court of Appeals, 102
r3o2Municipality of Daet v.
SCRA 597 (January 3l , l98l ). -TIilINrreznr.
|{rl)itlipioIiarthSavcrs,ctrrl'v.Sccretary,G'R No'I57882,March30,2006'
Court of Appeals,93 SCRA 503 (October 18, 1979). Suit was
filed in 1962 and lower courtjudgment was rendcred in 1969 and uttirmetl by thc appcllatc court r{''Rcptthlic v. Arrtlayt,(i.R. No. lfi(Xr56, Junc 15, 2(D7'
I rx'Nl)( ! v. Satt I'ctltrr, ( i.R. No. I 7()()'15' Scltlctubcr 26' 2(X)6'
in 1972. It was only in 1972 that thc stntc t(x)k stcps to nlokc lhc rlcposit lntl tukc posscssirxr ol
thc property. r{"1(Xr l'ltil. l4'l ( 191())

&
 THE 1987 CONSTITUTION Sec.9
OF THE REPUBLIC OF THE PHILIPPINES
to the NAWASA with a view to more efficient management. But the
Act itself directed that the municipal corporation be paid with an equal
value of the assets of the NAWASA.
The same ruling requiring the NAWASA to pay for the value of
the waterworks system of municipal corporations was followed in sub-
sequent cases.r3o8
This series of NAWASA cases underscores the need for clarifying
the distinction between patrimonial property of a municipal corporation
and property which it holds for public use. As Province of hmboanga
del Norte v. City of Zamboanga noted:'3@
The principle itself is simple: If the property is owned by
the municipality (meaning municipal corporation) in its public and
governmental capacity, the property is public and Congress has
absolute contol over it. But if the property is owned in its private
or proprietary capacity then it is patrimonial and Congress has no
absolute control. The municipality cannot be deprived of it without
due process and payment ofjust compensation.
While the principle itself is simple, its application has been conr-
plicated by a certain degree of confusion in determining what propcrty
is held by a municipality in its public and governmental capacity anrl
what property is held in its private or proprietary capacity. One nonrr
for classiflcation of municipal property is found in the Civil Code which
says:
Art.423. The property of provinces, cities, and municipali-
ties is divided into property for public use and patrimonial prop-
erty.
{rt.424. Property for public use, in the provinces, cities, ancl
municipalities, consist of the provincial roads, city streets, ntunici-
pal streets, the squares, fountains, public waters, promenades, arxl
public works for public service paid for by said provinces, citit:s,
or municipalities.
t308E.9., City of Cebu v. NAWASA, L-12892,
April 30, l96O; Munie ipllity ol Lur llur v
NAWASA, L-15525, October ll, l96l; Municipality of Naguilian v. NAWASA, l, lll14(t, No
vember 29, 1963; Municipality of Compostela v. NAWASA, l.-2176.1,l)cecrrrlrr l /. ltXrtr, NA
WASA v. C'atolico, l.-2 l7t)5, April 2'l . lWt'l .
ro'") s('|RA 11.14. l14 I (l(Xrll).
Sec.9 ART. III - BILL OF RIGHTS 441
All other property possessed by any of them is patrimonial
and shall be governed by this Code, without prejudice to the
provi-
sions of special laws.
Interpreting this provision in the NAWASA cases, with reference
to municipal waterworks, the Supreme Court said''3'0
Thus, the term "public works for public service" must be
interpreted, following the principle of ejusdem generis,in the con-
ceptoftheprecedingwords,"provincialroads,citystreets'mu-
nicipal streets, squares, fountains, public waters and promenades"
whichareusedfteelybyatl,withoutdistinction'Hence,ifthepub-
lic works is not for wch f.ree public service, it is not within the
purview of the first paragraph, but the second paragraph ofArticle
424, and,consequently, patrimonial in character' And as already
held by this Court, a municipal water system designed to supply
watertotheinhabitanlsforprofitisacorporatefunctionofthe
municipality.
The hmboanga del Norte case,however, pointed to the existence
of another line of cases which classified property according to the use
to which it is devoted. According to this line of cases, if the property
is
edu-
devoted to governmental purposes like local administration, public
cation, public health, etc., the property is not patrimonial even if it is not
indiscriminately made open to the public.'3'r The court concluded:'3'2
We are more inclined to uphold this latter view' The con-
troversy here is more along the domains of the Law of Munici-
palCorporations-statevs'Province-thanalongthatofCivil
Law. Moreover. this court is not inclined to hold that municipal
property held and devoted to public service is in the same cat-
.g-y ut ordinary private property' The consequences are dire' As
oiOinury private properties, they can be levied upon and attached'
They can even be acquired through adverse possession - all these
tothedetrimentofthelocalcommunity.Lastly,theclassification
of properties other than those for public use in the municipalities
u, putii-oniul under Arr. 424 of the civil Code is "x x x without
pre-iudice to the provisions of special laws'" For purposes of this
(.ity v. NAWASA. 107 I'hil. I I 12, I 120 ( 1960). A/.vr city of Baguio v. NAWASA'
I
'ro(!(.hu
l(Xr l'hil. al I 5 I.
'1r-).) \(.llA rrt I l,l.! |
I
r rr.'1,y 111 | l.[(r
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
article, the principles obtaining under the Law of Municipal Cor_
porations can be considered as ..special laws." Hence, the classifi_
cation of municipal property devoted for distinctly governmental
purposes as public should prevail over the Civil Code classifica_
tion in this particular case.
Another type of municipal property is the legua comunal or com_
munal lands of a town. These came into existence upon the establish-
ment of a town or pueblo under Spain. The Spanish Law provided that
the usufruct of a portion of the public domain adjoining municipal ter-
ritory might be granted by the government for communal purposes. The
ultimate title, however, remained with the sovereign. salas v. Jaren-
cior3r3 involved such type of land. when R.A. No. 41lg converted the
land, which was situated in Manila, into alienable land of the state and
provided for its subdivision and resale to the occupants, the city of Ma-
nila objected to the statute as a deprivation of municipal property with-
out proper compensation. upholding the statute, the supreme court,
after a narration of the history of communal lands under spanish Law,
Concluded.'3'4
It may, therefore, be laid down as a general rule that regard_
less of the source or classification of land in the possession of a
municipality, excepting those acquired with its own funds in its
private or corporate capacity, such property is held in trust for the
State for the benefit of its inhabitants, whether it be
for govern_
mental or proprietary purposes. It holds such lands subject to the
paramount power of the legislature to dispose of the same, for after
all it owes its creation to it as an agent for the performance of a
part of its public work, the municipality being but a subdivision or
instrumentality thereof for purposes of local administration. Ac_
cordingly, the legal situation is the same as if the State itself holds
the property and puts it to a different use.
11. Expropriation by municipal government.
The power of eminent domain has been given to local govern_
ments by the Local Government code. The essential requisites are that
it must be exercised for public use and with just compensation and afier
a valid offer. In addition, it must be done on the strength df a legisla-
131346
SCRA 734 ( 1972).
1\takl. iraJ47. lttlics
arklcd.
Sec.9 ART. III - BILLOFRIGHTS
Sec.9
tive act of the local government, that is, an ordinance It cannot be done
merely on the strength of a resolution. A resolution is not a legislative
act. Iiis merely a declaration of the sentiment or opinion of a lawmak-
ing body on a sPecific matter.r3rs
Recent decisions have affirmed the limited expropriation powers
of local government. Thus has been held that expropriation by local
governments under Section 19 of the Local Government Code (R.A.
T1OO; must follow the following rules: (1) "An ordinance is enacted
by the local legislative council authorizing the local chief executive,
in behalf of the LGU. (2) "The power of eminent domain is exercised
for public use, purpose or welfare, or for the benefit ofthe poor and the
.;There is payment of just compensation. and (4) "A valid
landless.',; (3)
and definite offer has been previously made to the owner of the property
sought to be expropriated, but said offer was not accepted."r3r6 Thus, a
local government may not expropriate on the strength merely of a sang-
gunian resolution alone.1317
12. Eminent domain and contracts.
In one of the earlier cases decided during the commonwealth, the
Supreme Court had a chance to look into the relation of the power of
eminent domain to contractual obligation. The city of Manila, in an
attempt to back out of a contract of sale, started proceedings for the
expropriation of the pfoperty involved. The court, in Noble v. city of
Miniia, stopped the city short'r3r8 "Expropriation lies only when it is
made necessary by the opposition of the owner to the sale or by the lack
of any agreement as to price. There being in the present case a valid and
subsisting contract, between the owners of the building and the city,
there is no reason for the expropriation."
This is not to say, however, that the power of eminent domain can
be contracted away. Like police power, the power of eminent domain
cGuitanv.CityofMandaluyong,G.R.No.l35087,Marchl4,2000;Munici.
pality of Parafiaque v. V.M. Realty Corporation, G.R. No' |278?n,Iu|y 20,|998,292 scRA
678.
r'rnMunicipality of Paraffaque v. v.M. Realty corporation, G'R. No. 127820, July 20' 1998'
152230, August 9'
292 SCRA 67tJ, 6tttt; Jesus is l,ord Schrxrl v. Municipality of Pasig, c.R. No.
2(X)5.
,,r,llcirs 0l srrguitun v. ('ity 0l M[ntluluyong, G.R. No. I35087, March 14,200o; Munici-
(i.R. No. 127tt20, July 20, 1998,292 SCRA 678.
p0liry ol lhnril[(ilrc v. V,M. ltcfilty ('Oqxrrt|liorr.
r,ri(r7 l,htl. I , (r ( l() llt).
 TI{E 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
is inalienable. The Noble case simply says that the power of eminent
domain cannot be used to achieve an object when there is a subsisting
contract for the precise same object. But a contract right is property
and is itself subject to expropriation. Thus, in pennsylvania Hospital
v- Philadelphia,"'n in return for certain payments from the hospital and
for land supplied by the hospital for a public street, the state legislature
passed a statute forbidding the opening of any street through the hospi-
tal grounds. subsequently, by authority of the state, the city sought to
open a street through the hospital grounds. The united states supreme
court allowed the condemnation saying that since "there can be no right
to restrain by contract the power of eminent domain, it must also of
necessity follow that any contract by which it was sought to accomplish
that result would be inefficacious for want of powg1."r:zo
Src. 10. No llw TMpAIRING TrrE oBLrcATroN oF coNTRAcrs
SHALL BE PASSED.
1. The Contract Clause before the 1935 Constitution.
The contract clause came to the philippines after its significance
in constitutional jurisprudence had been pared down by the rise of sub-
stantive due process as a restraint on legislative action. The fact that
the contract clause did not appear in president McKinley's Instruction
to the second Philippine commission may be another indication of the
acuity of the architects of that Magna charta of philippine freedom. But
the contract clause did appear in both the philippine Bill and the Auton-
omy Act. Hence, the constitutional precept was transported to the phil-
ippines, but, as will be seen, only to be pared down some more by an
explicitly social welfare oriented and economically protectionist 1935
Constitution. Early Philippine constitutional history, however, was
simple process of transplantation of established American doctrine.
"The law relating to the obligation of contracts,', said the Supreme
court in a 1905 case,r32r "does not prohibit every change in existing
laws. To fall within the prohibition the change must impair the obli-
gation of the e*isting contract, and the impairment must.be substan-
f3le245
U.S. 20 (1917).
tl&Id. at23.
r12r(iasparv.Molinrr,5Phil. 197,2()20.1 (ltI)5),eirirrglt.S.Suprcnrc(,ourtdecisiorrs
Sec. 10 Sec. 10 ART. III - BILL OF RIGHTS
tial." what precisely such substantial impairment must be was stated in
Clemons v. N olting:l3'2
... [a] law which changes the terms of a legal contract be-
tween parties, either in the time or mode of performance, or im-
por., n"* conditions, or dispenses with those expressed, or autho-
ii"es for its satisfaction something different from that provided in
its terms, is law which impairs the obligation of a contract and is
therefore null and void. .. '
More briefly, U.S. v. Diaz CondeB2s said: "Any law which en-
larges, abridges, or in any manner changes the intention of the parties,
neJessarily impairs the contract itself." And even when the change in
the contract is done by indirection, there is impairment nonetheless.
dealt
Thus, in Goyernment of the Philippine Islands v. Frank,"'o which
with a situation where the terms of a statute had been made a part of the
sub-
contract between Frank and the Government, the Court said that a
sequent amendment of the statute could not have the effect of amending
the terms of the contract.
To come under the constitutional prohibition, however, the law
must effect a change on the rights of the parties with reference to each
other and not with reference to non-parties. Thus, an additional tax im-
posed upon goods already contracted to be sold does not impair the con-
tract beiween buyer and seller.r"s Moreover, what the prohibition envi-
sions are enactments passed by a governmental law-making body' A
change, therefore, in the catholic church's canon law which affects
the
contractual relation between parties with reference to internal affairs of
the church is not one covered by the constitutional prohibition.'3'?u
Some of the earliest cases on obligation of contracts arose out of
a the introduction into the country of new currency to displace the old'
During the period of transition from the old to the new, a statute was
pn*r"J prouiding that money judgments rendered in court should be
|itut.,l in terms of the new Philippine cuffency in an amount equivalent
r'?242 l)hil. 7o2,'7 17 (1922).
'r'42 l,hil. j66.'169 (1922).
I
rua 1.t Plril. 2J6, 2.19 ( 1909).
Ir'l .ir lrrsulirr v. Mirt.lrut.[ ( i0 'liruco. .lt) Phil. 567, 576 ( I 919). See alsol].s. v. Diaz
cOnde,
,.1.1 l,ltil. '/()(r ( |(),1,1) 0I llrr clli't t ol llrc Pirssitgt' ol it I lsttry L:lw on contracts
embodying rates that
ttrt'ttstttitttts ttttrlet llr tlt'w ltlw
I'r"( irrttzttlrs v ltrtttttttt ('ttlltulit Att lrlttslrrlr, 5 1 l'lril 4'10 ( l()2tl)
446 THE 198TCONSTITUTION Sec.10 Sec. 10 ART. III - BILL OF RIGHTS 447
OF THE REPUBLIC OF THE PHILIPPINES

to the value of the old. The law, when applied to contractual debts, was change. The unit of value fixed by the said Act of Congress for
challenged as an impairment of the obligation of contracts .In Gaspar the Philippine Islands was again fixed by section 1770 of Act No'
v. Molina,t327 the Court upheld the statute saying, "It did not require the 2657, which was carried forward and made Section 1612 of Act
debtor to pay more nor the creditor to receive less than they were re- No. 2711. The unit of monetary value in the Philippine Islands,
as defined by the Act of Congress of March 2, l9O3 , was carried
quired to pay or receive under the former law."
forward and adopted by the Philippine Legislature in the said Acts
Clemons v. Nolting,'328 however, told a different story. An attempt Nos. 2657, 2"7LL, and 2176. Act No. 2776' however, omitted the
by the government to satisfy an obligation to pay in U.S. dollars by the phrase which was found in the former legislation "unless other-
payment of Philippine pesos at the rate of two pesos to a dollar when wise specially provided by contract. '.'"
the commercial value of the U.S. dollar was much more, was deemed an
Did such an omission authorize the tender of Philippine silver
impairment of the contractual obligation. At issue in this case was the
pesos at the rate provided for in the defined unit of value, even if the
applicability of Section 16 1 3 of Act No. 27 1 1, as amended by Act No.
contract expressly provided for payment in the other specie, 1.e., in U.S.
2776,which said that "the Philippine silver pesos and the gold coins of
dollars? The Court said that to give the omission such an interpretation
the United States, at the rate of one dollar for two pesos, shall be a legal
would give to the law an unconstitutional meaning. Hence, another in-
tender in the Philippine Islands for all debts, public and private."r32e For
terpretation had to be found; and this the Court did''33'
a proper understanding of how the government's use of this legal pro-
vision amounted to an impairment of its contractual obligation, it will It is of utmost importance to note that neither in the cited
help to trace the history of the currency legislation in the Philippines up Act of Congress nor in section 1613 of the Administrative Code,
to that time''330 as amended, is any attempt made to determine the ratio at which
debts, expressed in terms of United States money and payable
... [A]s early as March 2,1903, the Congress of the United in the Philippine Islands, may be discharged by the tender and
States adopted an act establishing a unit of value for the money payment of Philippine silver pesos. Both the Act of Congress and
currency of the Philippine Islands. SaidAct provided, among other section 1613 of the Adminisffative Code provide that debts due in
things, "that the unit of value in the Philippine Islands shall be Phitippine silver pesos may be discharged by the payment of "gold
the gold peso, consisting of twelve and nine-tenths grains of gold, coins of the United States at the rate of one dollar for two pesos,"
nine-tenths fine, etc.; and the gold coins of the United States at but the converse proposition is nowhere to be found in the law. The
the rate of one dollar for two pesos. ... shall be legal tender fbr reason for this is very plain. Congress by its own act had so limited
all debts, public and private, in the Philippine Islands; that the sil- the maximum value of the gold peso that in no event could it be
ver Philippine peso, authorized by this Act, shall be legal tender worth more than half a United States gold dollar; but Congress had
in the Philippine Islands for all debts, public and pivate, unlcs,t not itself undertaken to maintain the parity of the Philippine peso
otherwise specially provided by contrect." Later, by an Act of thc at the theoretical ratio oftwo for one. Congress did not provide for
Philippine Legislature (Section l77l of Act No.2657) it was pro- the establishment of a gold standard fund, or prescribe any other
vided that "the Philippine silver peso shall be a legal tender for all method by which the artificial parity between the Philippine silver
debts, public and private, unless otherwise specially provided h.v peso and United States money should be maintained. It merely
the contract." That provision of Act No. 2657 was carried lorwlrcl authorized the Government of the Philippine Islands to " ' . . adopt
and made Section 1613 of Act No. 2711 as above quotcd, without such measures as it may deem proper, not inconsistent with said
Act of July I st, 1902 [the Philippine Bill], to maintain the value of
the silver Philippine Peso. ..."
13275
Phil. 197,202-03 (1905). Reiteratcd in Bohn, Mcyer & (ir. v. Rosltzirr. 5 l,hrl
(1906); Rogers v. Smith, Bell & Cb., l0 Phil..il9 (tg0tt).
132842
Phil. "lo2 (t922\.
'12''/d. at 701.l.
Ir"'/r/. r"r/r/. rrl '/ lo
lt TOll-7Ot).
 BILLOFRIGHTS 449
448 THE 1987 CONSTITUTION Sec. l0 ART.III -
Sec. 10
OF THE REPUBLIC OF THE PHILIPPINES

The rule established in the U.S. case of Fletcher v. peckB32 that the of contracts shall be enacted."r33e An amendment' presented by
-Delegate
reach of the contract clause is not limited to private contracts was nev- Jesus Perez sought the suppression of the provision as superfluous on
the ground that contracts-were already protected by the
due process
er questioned. Both Government v. FrankBs and Clernons v. Noltingt33a
of Perez and all
involved public contracts.. Moreover, the clause was applied several clauie. Other delegates, for reasons different from that
working man' particularly of
times to mining grants and corporation charters which were considered motivated by concern for the plight of the
public contracts. the sugar plantation workers in G south, likewise sought the suppression
oittt""p.otision. Delegate Locsin, strongly influenced by
Roosevelt's
Among the earliest cases on the subject was Casanovas v. Hord.,tis
New Deal Program anl expressing profound concern
for working men
This decision extended the constitutional protection to a tax exemption strongest advocate
bound to service by inequitable contracts, was the
embodied in a Spanish royal decree of May 14,1867, granting a min- principle that could tie
for elimination. He *u* in the contract clause a
to improve the
ing concession. The decree was considered a contract between plaintiff the hands of government in any effort it might make
jurisprudence
and the Spanish government and the law abolishing the tax exemption conditions of the working masses. He considered existing
the unequivocal tenor
was declared an unconstitutional impairment of the contract.r336 As to on fonc" power an inadequate counterbalance to
the effect of the change of sovereignty on the contract, the Court simply ,,qie peso tendria un enunciado abstracto suieto
of ihe contract clause:
un dictum tan
said''3? "The fact that this concession was made by the government of a pronunciamientos ,oit,odi'to'ios para contravenir
Spain, and not by the government of the United States is not important." inlquivocante constitucinnql?"nn He believed that a firmer step had

The same doctrine was also applied to tax exemptions granted by tobetakentomakethesecurityofcontractsyieldtothedemandsof
sentiments
progress.rr4r Delegates Confesorr3o2 and Lutero'343 expressed
the united States congress under railway charters. The court ruled that
with that of Locsin.
such charters were contracts and could be altered only "by consent of
all concerned, unless the right is expressly 1sssrysd."rrr8 Under the laws Thosewhoarguedfortheretentionoftheprovisionfellbackon
guarantee that the wel-
at the time, the right to alter charters had not been reserved in favor of the argument that police power was a sufficient
Del-
the Philippine Government. The reservation clauses in section 74 of the fare ol the working class would not be neglected'r3oa Moreover'
expressed the fear that the
Philippine Bill and Section 28 of the Autonomy Act were both in favor egates V. Lopez'345 and R. Nepomucenor3fi
and threaten the
of the United States Congress. Hence, the tax exemptions found in the eiimination of the provision would discourage business
charter were found to be beyond the reach of the Philippine Govern- stability of commerce and ruin the economy'
ment. The amendment was rejected'"t'

2. The Contract Clause at the 1935 Constitutional Conven- Afterthedefeatoftheadvocatesofelimination'anattemptwas

by a compromise
tion. made to tone down the unequivocal tenor of the clause

The provision proposed at the 1935 Constitutional Convention was OF THE PHILIPPINES
']393 JOURNAL OF T}IE CONSTITI.ITIONAL COT'IVENTION
an exact copy of the American model: "No law impairing the obligatiorr I174 (Francisco Ed.) [hereinafter cited as JOURNAL]'
t]4tld. at ll'19.
aprobar esta llamada a servir
t34t "
Nolotros dccimos, que si la Constitucion que hemos de
que siempre esta cambiando'de ser centrista' que lo
los imperatiwts del porvenir de este mundo
para que tenga carne viva de Jrescas
r3326
Cranch 87 (U.S. l8l0). ;;o p;* ,rr, inclinaciones hacia a la izquierda'
^anifcrtos
'1313 Phil. 236 (19{J9). realidades." ld.
tB442Phil 702
\1922). t t\a2ld. al ll'17 .

rxs8 Phil. 125 (ogn'). 8t | 179.

'.r4rrur.
t336ld. at 130, 133. r''4/r/. trt I 175-76.
t]37
Id. at 133. t'a\ltl. t{ ll'l'l -

lrrsManila R:rilroad Co. v. RutTcrty.4{l r'{nll rrl Illl0.

Mnnill Ruilnrurl (ir, v
!'hil.224,230 (1919). A/so
(irllcclorol ('ustorns,32Phil. 146(1915);l,hilippineRuilwrry(ir.v.Nolring,.l4 I'hil.4ol (l(1(,) tr.tlil.

45O THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
amendment which sought to make explicit the limitive force of both the
police power and the right of eminent domain. The amendment present-
ed by Delegate Francisco was in the form of an additive clause which
1s4d'r:* "Excepto mediante el ejercicio legitimo del poder de policia o
el poder eminente del Estado." The desire to render explicit the limitive
force of police power was occasioned by the recently promulgated 5-4
decision inthe Blaisdell case;3oe Francisco read this naffow margin as a
weak affirmation of the role of police power and he found the following
line from Sutherland's dissent persuasive: "The prohibition [of impair-
ment of contracts] contains no qualifications, and we have no judicial
authority to interpolate any. Our duty is simply to execute it."''o
Delegate Laurel opposed the explicitation of inherent governmen-
tal powers.rs" Delegate Briones reasoned that the specification of police
power as a limit to one constitutional guarantee could create the impres-
sion that only such guarantee was limited by police power. He argued
that the constitution must be left flexible and that allowance must be left
for the major role the Supreme Court would necessarily have to play in
the early development of the Constitution. Moreover, he said, the 5-4
vote in the Blaisdell decision did not make the decision any less binding
as a precedent.'352
The Francisco amendment was rejected and the draft as originally
proposed was approved.'*'The consideration of a final amendment to
read "... but all franchises, immunities or privileges granted by the gov-
ernment shall, for just cause, be subject to repeal, withdrawal, amend-
ment or modification," was postponed to the period reserved for the
discussion of the legislative power. To this amendment there apparently
was no objection from the sponsorship committee."so A slightly modi-
fied version of it, reproduced at the head ofthis chapter, was eventually
approved."'s Thus, for the first time, the Philippine government was to
have a reserved power to alter franchises.
t348ld.
'aeHome Building & Loan Association v. Blaisdell, 290 U.S. 398 1934).
(
r3eQuoted in III JOURNAL 1184-87.
'3s'1d. at l1g3_94.
t3s2ld. at 1187-89. Briones' motion to have thc Blaixlell tlecision mildc purt ol thc sccottrl
was approved.
rr53/d- at I 190.
r5a/r/.
I
at I I 83.
ltt'llAttnlxr,
l'ttt tx.tutt'tr;ttt lttt I'tttttruut (i,/v\,rrlltl(tN(t(rl1 (l()l/)
Sec. 10 ART. III - BILL OF RIGHTS 451
Sec. l0
3.
Jurisprudence on the Contract Clause under the 1935
Constitution.
The jurisprudence under the 1935 Constitution continued to apply
principles established or recognized in earlier cases. Thus, in Manila
Trading co.v. Reyes,r356 the court applied the nile that what the contract
prohibits is substantial impairment of contracts. A mere change there-
fore in procedural remedies which does not diminish substantive rights
or increase substantive obligations does not violate the guarantee. The
court said that "parties have no vested right in particular remedies or
modes of procedure, and the legislature may change existing remedies
or modes of procedure without impairing the obligation of contracts,
provided an efficacious remedy remains for enforcement."l357
The power of the legislature to change existing remedies and
modes of procedures rests on police power. Quoting Home Building
and Loan Assn. v. Blaisdell,tts'the Philippine Supreme Court said, in
Rutter v. Esteban,t3e that the enactment of moratory laws providing for
postponement of the fulfillment of obligations was "within the police
power of the state as that power was called into exercise by the public
economic emergency which the legislature had found to exist." At issue,
however, inthe Rutter case was not the initial validity of the moratory
law passed as an emergency measure after liberation in 1945, but its
continued operation and enforcement during the period of time set by
the legislature. On the basis of the Blaisdell ruling, the Court assumed
the initial validity of the statute; but it emphasized that the Blaisdell
doctrine was not without limitations. Quoting Worthenv. Kavanaugh,t36o
the Court said that "a different situation is presented when extensions
are so piled up as to make the remedy a shadow." When the exten-
sions are "upon unreasonable conditions," they infringe the constitu-
tional provision against the impairment of contracts.r36l The unreason-
able conditions found by the Court in the Rutter case were the length of
the extension (amounting to a total of twelve years when the eight year
relief provided for by the statute was added to the four-year duration
|v,62 Phil.461 ( l9l5).
r t"t
ll . ii 470.
r ru2()o U.s. ,19tt ( l9_14).
'1')().t l)hil. 6tt. 7.1 ( l()5.1).
r
Irr))()5 ll.s.5(,,62 ( l()15)
rr'r()l I'lril. [t "/(r,r'ilirrr{ lrirsl lirrst (ir. ol l.irttoltt v. Srllilh'27 NW 762'76()
452 THE 1987CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
of the war), the fact that the credits were unsecured, and the fact that
the debtor was not required to pay interest during the period of the op-
eration of the morator] la1ry.t:oz Thus, the Court ruled that the operation
of the statute "at the present time is unreasonable and oppressive, and
should not be prolonged a minute longer."t:e: This was in 1953, during
the eighth year after liberation.
It is also important to remember that the non-impairment clause is
a limit on the exercise of legislative power and not of judicial or quasi-
judicial power. The Supreme Court had occasion to emphasize this in
Lim v. Secretary of Agriculture:"*
For it is well-settled that a law within the meaning of this
constitutional provision has reference primarily to statutes and or-
dinances ofmunicipal corporations. Executive orders issued by the
President whether derived from his constitutional power or valid
statutes may likewise be considered as such. It does not cover,
therefore, the exercise of the quasi-judicial power of a department
head even if affirmed by the President. The administrative process
in such a case partakes more of an adjudicatory character. It is be-
reft ofany legislative significance. It falls outside the scope ofthe
non-impairment clause.
Sundry other cases recalled old principles.In Government v. Vi-
sayan Surety and Insurance Corp.,"u'answering a challenge to a statu-
tory requirement that all those entering into public works contracts must
execute a bond in favor of third persons who might have some claim
by reason of the materials and labor employed in the construction, the
Court stressed that what the contract clause prohibited was retrospec-
tive impairment and not prospective regulation of future contracts.rsn.
Reminiscent of Clemons v. Nolting was the statement in Florentintt
v. Philippine National Bankn6, that creditors could not be compelled
to accept backpay certificates as a "sort of promissory note at the rate
very much lower than the current or even the legal one." In People v.
t36293 Phil. al1a . ntctl a creditor-debtor relationship between the bank and the depositor.
t163ld.at82-3.OtherU.S.casesrelieduponwere,WorthenCo'v.fhomas,292
(1934) and l.ouisville Joint Stock Land Bank v. Radford,29-5 U.S. 5-55 ( 1935).
re34 scRA 751 ,764 (1970).
rs566 Phil. 326 ( 19.18).
rr*/d. at
33-5.
|
Phil. 95(). ()62 ( lt)56).
'67911
Sec l0 ART. III - BILL OF RIGI{TS 453
the ruling was made that to deprive a lawyer, by legislation, of
Zeta,t168
the agreed fee of 5Vo of the money value of the claim he had prosecuted
"would be arbitrary and unreasonable as destructive of the inviolability
of contracts, and therefore invalid as lacking in due process." And in
Manantan v. Municipality of Luna.r36e the applicability of the contract
clause to public contracts was presumed.
Of some interest also were the cases involving currency. Currency
adjustments necessitated by the complete devaluation of Japanese war
notes after World War II were discussed in Hilado v. de la Costa.B'oThe
Japanese war notes, made legal tender during the Japanese occupation
of the Phitippines, had no real value beyond the backing it had from an
order of the Japanese Military Government. Such value disappeared
completely with the defeat of the Imperial forces. The question pre-
sented before the Court was whether banks were bound to pay deposi-
tors for deposits of war notes made during the Japanese occupation. The
question was presented in the form of a challenge to Executive Order
No. 49, the pertinent portion of which read'r37r
All deposits made with banking institutions during enemy
occupation and all deposit liabilities incurred by banking institu-
tions during the same period are declared null and void, except as
provided in this section. All withdrawals made by a depositor, in-
cluding liquidating payments, during the enemy occupation from
balances outstanding as of the last date prior to enemy occupation
shall stand as valid, and banking institutions shall be liable only
for the lowest minimum balance remaining out of such balance to
the credit of a depositor on the last date prior to enemy occupation
and without interest beyond December 3l , 1941 . The term 'lowest
minimum balance' shall be understood to mean the lowest level
reached as ofthe close of any business day during the period ofthe
enemy occupation by a deposit account, or, if there be more than
one deposit account, by the consolidation of all deposit accounts
carried under the name of one depositor in the same bank.
The lower court had declared this Executive Order an impairment
ol' the obligation of contracts. The deposit, the lower court had said, cre-
lls '1).6
ildr98 I'hil. 143, I48 (I955)
,
l)hil. ti44 ( I 949).
'i6'82
,,u,Xt ;'1r,t.47 I (1949).
t"tlil. ul 476.
.*r
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
... If this is so it necessarily follows that the plaintiff became
creditor of the defendant bank for the amounts deposited by him
and credited to him by the bank. In so far therefore as said Execu-
tive Order No. 49 would deprive the plaintiff of his credit or could
reduce the same to the lowest minimum balance defined in said
order, it would seem undeniable that said law would be depriv-
ing him of his property and impairing the obligation of contract
between him and the defendant bank implied in said deposit.'372
The Supreme Court, however, posed the question differently: "In
view of the loss in value of the Japanese war notes after liberation,
the question for this Court to determine is whether it is the plaintiff or
the defendant bank that should suffer said loss. ..."1313 Then the Court
said that "the answer to that question depended upon the nature of the
contract out of which arose the relation of creditor and debtor between
thgm....,'1324
The contract, of course, was one of deposit. In working towards
the solution of the controversy the Court began by stating that
- stitutional guaranty of non-impairment ... is limited by the exercise of
[w]hen a deposit is made with a bank or a person of notes
made legal tender or currency by the military occupant of an en-
emy territory, and the occupation does not ripen into a conquest by
the occupant because the territory is liberated and reoccupied by
its legitimate government, the deposit must be considered as with
specification of currency, that is, as a deposit of money made legal
tender or currency by the occupant, without necessity of stating it
expressly, unless there is evidence to the contrary ... because it is
the only kind of money or legal currency in circulation after the
genuine money of the territory has disappeared from circulation
This precisely was the situation and the Court concluded that tlrc
minimum requirements ofjustice demanded that the deposits be consitl
ered as having been made with specification of currency, i.c., Jap:urcsc
war notes. From this, it was an easy matter for the Court to apply Articlc
307 of the Code of Commerce which provided that "when thc dcgxrsits
consist in cash with specification of the currency constituting thc slrrrc.
1372
Id . at 477 -7 I .
t373ld. 482.
at
1314
Id.
rrTrld. at 483-[i4.
Sec. lO Sec. l0 ART. III - BILL OF RIGHTS
... the increase or reduction in value suffered by the same shall be for
the account of the depositor.""76 Hence, the executive order contained
nothing that retrospectively impaired a contract.It merely applied pre-
viously existing law.
4. Police power and contracts.
The most significant decisions on the contract clause, however,
were those which emphasized the superiority of police power over the
sanctity of contracts. Justice Laurel, speaking for the Court in Panga-
sinan Transportation Co. v. Public Service Commission, said:'37? "[S]
tatutes enacted for the regulation of public utilities, being a proper exer-
cise by the state of police power, are applicable not only to those public
utilities coming into existence after its passage, but likewise to those
already established and in operation." Again in Abe v. Foster Wheeler
Corporation "" in upholding a statute granting to workers rights which
they did not have under existing contracts, the Court said that "the con-
the police power of the State, in the interest of public health, safety,
morals and general welfare." The same principle was again recently as-
serted in two 1968 cases. ln Philippine American Life Insurance Co' v'
Auditor General"'n the Margin Lawr380 was upheld as a valid exercise of
police power even against the contention that it impaired a pre-existing
reinsurance treaty. Alalayan v. National Power Corporation"8' upheld a
provision setting a ceiling to profits realizable by certairr types of public
utilities even when applied to existing contracts.
The impact of this doctrine on police power and contracts was
felt most in the field of agricultural tenancy contracts. The social prin-
at 484.To the argument that the bank should be liable because it had profited from
t376ld.
the deposit, the Court answered: "Although according to banking practice current account deposits
of legal currency made by depositors with a bank are, in normal times, used by the latter for paying
its obligations and investing them in loans to its clients, in the present case, taking into consider-
ation the progressive loss of value of properties which could be sold by the owner to obtain money
in Japanese war notes necessary to satisfy his prime necessities, relatively few persons obtained
loans or withdrew or collected their pre-war credits from banks, and large amounts of said money
were depositcd with them . . ." ld. at 486.
r'?70 [>hil. 221,232 (194(ll.
r'r8l.- I 47115. Novt:nrhcr 29, I 96O.
r'/"1, l()255, Jrtntrary I 11, l()(rll.
|'ilrR.A No. 2({)r).
('loritx'I,44 li('RA1O7(1972)'
"*rl.14 l(Xt..lrrlyJ1). 1()(rll ,\r'r'rrlro('crtlrrtl llrtrkv
&,

456 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
ciples of the 1935 Constitution, principally Section 5 of the Declara-
tion of Principles (Article II) and Section 6 of Article XIV, were used
to emphasize the pervasive influence of police power over contracts.
What may be considered a minor constitutional revolution began with
an obiter dictum in Tapang v. Court of Industrial Relations'3" justify-
ing the impairment of agricultural tenancy contracts which could have
resulted from Act No. 461 and Act No. 608. The statutes prohibited the
dismissal of tenants except for enumerated causes. Did such a prohibi-
tion unconstitutionally impair existing contracts? The Court said''383
[L]a misma Constitucion manda que se debe "promover
ta justicia social a fin de asegurar el bienestar y la estabilidad
economica de todo el pueblo," y que se debe proteger al mismo
tiempo "a todos los trabaiadores, especialmente a las mujeres;" y
no hay duda de que las dos mencionadas leyes tienden a dicho fin,
protegiendo al aparcero y al propietario por igual,y estableciendo
reglas que han de determinar las relaciones que deben existir en-
tre los dos, para su propio beneficio.
This obiter dictum was followed by a ruling in Ongsiako v. Gum'
boat384 in answer to a challenge to Republic Act No. 34 which changctl
the 50-50 share-cropping system in existing agricultural tenancy con-
tracts to 55-45 in favor of tenants. The Court prefaced its ruling with the
social background for the challenged legislation. It said:'r"
Unlike the indifferent attitude shown by the Spanish Gov-
ernment in the Philippines towards the fate of the laboring class
they were tillers of the land or earning their wages in a
- whether even prior to the adoption of our Constitution, the Phil-
factory
-
ippine Government, under the American regime, had, from tinrc
to time, shown its deep concern over the well-being of thc wirgc
earners. Our statute books are witness to that fact; they contaittctl
legislation enacted and intended to ameliorate the conditions ol'thc
laboring man. The administration, under the leadership ol'Manucl
L. Quezon, became social justice minded, and implemcntirtg his
strong advocacy of social justice, the framers of our Constiluliott.
in Section 5 of Article II of our fundamental law, adoptcd thc plirr
ciple that "the promotion of social justice to insure thc wt:ll-bcirrll
138272Phri.79 (1941)
1381
Jd . g'I
.
^t
118486 950)
Phil. 50 (
I
rtrr/r/. at 5.1.
l0 Sec. 10 ART, III - BILL OF RIGHTS 451
Sec.
and economic security of all the people should be the concern of
the State." Since then, the government has always been, by fast
the amelioration' the well-being
strides, drawing near its goal -
of the conditions of the working man.
Having said this, the court ruled that the contract clause did not
preclude remedial legislation in the interest of the general welfare.'386
Another strong endorsement of the social justice program of the
government was given by Primero v. Court of Agrarian Relationsl3s'
where the security of tenure guaranteed to an agricultural tenant by
a statute was challenged as impairing existing tenancy relations. The
Court again ruled that the law was "unquestionably a remedial legisla-
tion promulgated pursuant to the social justice precepts of the Constitu-
tion and in the exercise of the police power of the State to promote the
common wgal."1388
Finally, there followed the series of decisions involving challeng-
es to the constitutionality of Section 14 of Republic Act 1199 which
gave tenants the option of unilaterally converting existing contractual
relationships from "share tenancy to leasehold tenancy." The series be-
gan with Ramas v. Court of Agrarian Relations;38n The Court said:
The right granted to the tenant to change the contract from
share tenancy to that of leasehold tenancy can not be considered
unreasonable or oppressive, because by the landlord's giving up
57o of the harvest (the change from share to leasehold tenancy re-
duces the landlord's share from 307o to 257o),the tenant becomes
more responsible, more competent, and financially prepared to
comply with his obligations under the lease, to the ultimate benefit
of the landlord, with the consequent improvement of the lot of a
big segment of the population and thereby giving full meaning to
the social iustice directive contained in the Constitution'
This pronouncement was repeatedly emphasizedin the succeed-
ing series of cases involving the same statutory provision'rre.
I'8"/r/. at 54.
r,'/ l0 I l,hil. 1,75 r)57).
1I
1'8*l/. al 6l'lo.
|n'l , tt)555, Mlry .|), l(Xrl.
"'')Mrtr':tsitt'l v.
('()tlrl ol Agr;tri:ttt l'le l;tliolts. l' l()75o,.luly 17. l()(r;l; Ilichanco v. (iuticr-
('ttizott
M:ry ll. l()(rl, (iirrrrlrr;r v l';tlrtlr'lt, I ,.10,1O7. M;rnlr ll, l(Xr(r: Vtll. tle
n.z. 1,.)O5'/5 ().
v. ()rtrl. LtO()O\. Alrrrl l(1. l(X(r, llttsrtt to v ( All l..'Ot.l.l. M:ry l(r, lrXr(r1 lteycs v Srtttlrts
.
T

THE 1987 CONSTITUTION Sec.
OFTHE REPUBLIC OFTI{E PHILIPPINES
The role of police power in relation to labor contracts other than
agricultural tenancy contracts also received some attention. A Blue
Sunday Law, for instance, which in effect nullified existing contractual
provisions stipulating that either work or play would be provided on
Sundays, was upheld as a legitimate exercise of police power.r3erln an-
other case, the Court upheld a return to work order which in effect ter-
minated the contract which had been entered into with the replacements
for striking workers.r3e2 Labor contracts, the Court said, must yield to
the demands of the common goods.
The unsuccessful attempt to override an existing contract by the
exercise of the power of eminent domain has already been seen.r3e3
From this brief history of the contract clause in the Philippines,
it can safely be said that, indeed, as Delegate J.Perez contended at the
Constitutional Convention, the clause is a superfluity. It has accom-
plished nothing which the due process clause could not have accom-
plished and it has prevented nothing which the due process clause could
not have prevented. From Rutter v. Estebant3no which allowed impair-
ment of existing remedies for the enforcement of contracts, to the agri-
cultural tenancy cases, which allowed impairment to the very substance
of existing contracts, there has been a distinct acknowledgment of the
expansiveness of police power which the contract clause alone cannot
curtail.
Finally, it is often said that licenses and public contracts are mere
privileges and may be taken away any time. This may be true in cases
covered by a reservation clause as explained below. But in matters not
covered by a reservation clause licenses and privileges can evolve into
property protected by the due process clause. Thus for instance when a
holder of an export quota has been enjoying it for so long and has put
in substantial investment making the business the source of employ-
ment for thousands the export quota has acquired the characteristic of
L-19961, September 14, 19(:6; Diaz v. Molina, L-21550, Apfl 27, 1967; Genuino v. Cirurr ot'
Agrarian Relations,.L-25035,February 26,1968-del Rosario v. De los Santos, L-20539-9), Mlrch
2t,1968.
rrerAsia Bed Factory v. National
Bed and Kapok Industries Worker's Union, l(X) Phil, tl.t7,
840 (1957).
r3e2Feati
University v. Bautista, L-212'18, Decembcr 2'7,1966.
tlosSupra, under Secti<ln 9.
|
'q93 Phil. 6tt ( 1953).
ART- III - BILL OF RIGHTS 459
l0 Sec. l0
More recently, the court in said in Terminal Facilities and
property.l3e5
Services Corporation v. Philippine Ports AuthoriQ:
With such considerable amount of money spent in reliance
upon the promises of PPA under Resolution No' 7 and the terms
and condiiions thereof, the authorization for TEFASCO to build
and operate the specialized terminal complex with port facilities
urrorn"d the character of a truly binding contract between the
grantor and the grantee. It was a two-way advantage for both
iSFASCO and PPA, that is, the business opportunities for the
former and the decongestion of port traffic in Davao city for the
latter, which is also the cause of consideration for the existence
of the contract. The cases of Ramos v. centrql Bank of the Philip-
pines and Commissioner of Customs v' Auyong Hian ate deemed
precedents. ln Ramos,the central Bank (cB) committed itself to
ioppott the Overseas Bank of Manila (OBM) and avoid its liqui-
dation in exchange for the execution of a voting trust agreement
turningoverthemanagementofoBMtoCBandamortgageofits
prop"tti"ttoCBtocoverOBM'soverdraftbalance'Thisagree-
agency of
-"nt *a, reached in CB's capacity as theandregulatory
performed in good
banking operations. After OBM accepted
faith its obligations, we deemed as perfected contract the relation
between cB and oBM from which cB could not retreat and in the
end prejudice OBM and its depositors and creditors -
5. Reservation Clause.
As already seen, by the doctrine of Fletcher v. Peck,'''u the con-
tract clause also protects public contracts, including onerous franchises
a con-
and privileges granted by the State. The charter itself constitutes
traciwith the State. In his concurring opinionin Dartmouth College v.
woodward,,'e7 however, Justice story suggested that the law of the char-
ter, as contract, would be the terms of the charter itself and, hence, the
restrictive force of the contract clause could be avoided by a reservation
of the right to alter the charter in the legislative grant itself. Since, how-
may
ever, the law of the land is part of every contract, the reservation
be made in a general law which then becomes a part of every charter.
r,',.Arncricun lrrtt:r liashion ('orporittion v. Ol'licc ol'thc President, 197 SCRA 409 (1991)'
r $sS6 ( 'ruttclt
l{7 ( t l .li. l tt lO)
"u'4 Wltt'ttl 5ltl (ll.!i. lltl9).
 THE 1987 CONSTITUTION Sec.
OF THE REPUBLIC OF THE PHILIPPINES
The reservation was made in Article XIV, Section g, of the 1935
constitution and the same reservation was made inArticle XIV section
5, of the 1973 constitution which: "Neither shall any such franchise or
right be granted except under the condition that it shall be subject to
amendment, alteration, or repeal by the National Assembly when the
public interest so requires." This reservation also survives in Article
XII, Section 11, of the 1987 Constitution. Jurisprudence on the subject,
however, has been so far very limited. The earliest case that might have
occasioned a court pronouncement involved a corporation whose char-
ter included a tax exemption on all real and personal property. In lieu
of the tax, the corporation was required to pay two and a half per cent
of its gross receipts. The question presented to the court, however, was
whether dividends paid to stockholders could be legitimately subjected
to taxation. But since the tax was borne by the stockholders and not by
the corporation, the court simply said that the tax was not on the ex-
empt corporation but on stockholders.r3es
The language of a subsequent case has raised an interesting ques-
tion on the subject of reservation. The charter involved in philippine
Railway co. v. collector of Internal Revenuet3se had been granted in
1906 , i .e ., prior to the 1935 constitution which first gave to the philip-
pine government the right to alter franchises. It fixed a percentage tax
on earnings "in lieu of taxes of every name and nature."raoo The question
asked was whether the tax exemption in the franchise, a speciar raw,
was affected by a tax provision in a subsequent generallaw. The answer
given by the Court was negative; but in answering, obiter,whether a tax
provision in a subsequent special law, could have affected the franchise,
the court seems to have suggested the question, by its invocation of a
pre-constitution decision, whether the power of congress to alter char-
ters extends to charters obtained prior to the subsisting constitution.
The Court Said.,4or
[I]t is unnecessary to go into the controversy concerning the
power of the government to change the tax fixed in the plaintiff's
charter or to impose a new tax thereon or its other property. Never-
r3esManila
Gas corp. v. collector of Internal Revenue, zl phil. 513 ( l94r). rn Alnu,ndru.r
v. Ramos,9l Phil.23l,233 (195 1), the statement to the effect that a franchise cannot be exclusivc
because of the reservation clause in Article XIV, Section 8 ( 935), was made ,bil.r.
1
r3e9l Phil.35 (1952).
tMId. at 38.
r{tr/r/. at 3ll-39
l0 Sec. 10 ART. III - BILL OF RIGHTS
theless it may be of interest to note, by way of statement only, that
in Phitippine Railways Co.v. Nolting, 34 Phil' 401, the Court went
so far as to say that "the plaintiff had a right to believe, when it
accepted said contract, that it would be relieved of all the burdens
imposed by the Governmento when it promptly and fully paid the
amount imposed by Section 13 (No. 13 of Section 1)'"
The question, however, is perhaps partly academic, because in the
light of what has been said of the relation between police power and
contracts, the necessity of having an explicit reservation clause has it-
self become doubtful. With or without a reservation clause, franchises
are subject to alterations through a reasonable exercise of the police
powef. They are also subject to alteration by the power to tax which,
like police power, cannot be contracted away.
6. The contract clause under the 1973 and 1987 Constitu'
tions.
The L973 and 1987 provisions copied the original version and ju-
risprudence has not altered departed from established doctrine.ln Co
v. Philippine National Bank,'no' new regulations on loans making re-
demption of property sold on foreclosure more strict were not allowed
to apply retroactively . ortigas & co. v. FEATI Bankt4o3 reaffirmed that
limitations on the use of land imposed by contract yield to a reasonable
exercise of police power and, hence, zoning regulations are superior to
contractual restrictions on the use ofproperty. A separation pay law can
be given retroactive effect to apply to existing contracts.r4e The charter
of a bank, even if a contract, is no obstacle to liquidation done under
police power.r4o5 Contracts also yield to the requirements of freedom of
worship.'{6
An obiter dictum tn Gonzalo sy Trading v. central Bankr401 feaf-
firmed that "a license or a permit is not a contract between the sover-
r{Dl 14 SCRA 842 (June 29, 1982).
r4'r94 SCRA 533 (December 14, 19'1.9); Co v. Intermediate Appellate court, 162 SCRA
'19{),396.397(1988);Sangalangv.IntermediateCourtofAppeals,l68SCRA634(1988);Presley
v. llel-Air Village Association, 20 I SCRA I 3 ( l99l ).
raaAbclla v. Nutiontl l,abor Rclations C'ommission' 152 SCRA 140 (1987)'
r{'.PhilipPinc Vetcrans lhnk Ernployees (Jnion v. Philippine Veterans Bank, G.R. No.
(t7 15, Augttsl 24, l9q).
|...Vicltlrittntr v. Iilizrrltlc Rrlpc Workcrs,5g S(]RA 54' 77 (Septcnrher 12, 19.14\.
ri"'79 s(.RA 570,590 (April tO. l()'/6).
 462 TTIE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
eignty and the licensee or permittee, and is not a property in the con-
stitutional sense, as to which the constitutional prescription against the
impairment of contracts may extend." This is also affirmed in Oposa v.
Factoran,,/r.'a0E Timber licenses are not beyond the reach of police pow-
er. "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 granred by rhe
State to qualified entities, and do not vest in the latter a permanent or ir-
revocable 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."r4oe But the distinction between license and contract is really un-
necessary because even contracts yield to police power.
It is not police power alone which
can affect the terms of con-
tracts.It has been said that the power to tax, which is also a sovereign
power, can cause the alteration of a contract.r4ro This, however, must be
carefully understood: generally, the imposition of a tax does not alter
the relationship between the parties but only the relationship between
the parties and the state who may not be a party to the contract.
More recent cases deal with various subjects. Arehabilitation plan
approved by statute which merely suspends the actions for claims does
not violate the contract clause.r4rr ln China Banking Corporation v. ADU
Holding s, the Court elaborated: raD
The Court reiterates that the SEC's approval of the Reha-
bilitation Plan did not impair BPI's right to contract. As conectly
contended by private respondents, the non-impairment clause is a
limit on the exercise of legislative power and not of judicial or qua-
si-judicial power. The SEC, through the hearing panel that heard
the petition for approval of the Rehabilitation Plan, was acting as a
'{E224 SCRA 792 (1993).
'sC&MTimberCorporationv.Alcala,G.R.No. ll1088,June 13,lggl.,27.\i(,1{A.lO,'.
418 (quoting Felipe Ysmael, Jr. & co.,Inc. v. Deputy Executive Secretary, lt)0 S('RA 67.1, (rlt,l
tl9e0l).
ra'oCity of San Pablo v.
Judge Reyes and Meralco, C.R. No. I 2770tJ, March )5, lr)()r)
r4rrGSIS v. Kapisanan, G.R. No.
I 70 I 32, Decenrbcr 6, 2(XXr.
rorthina Banking Corpgnrtion v. ASt) Holdings,
ct ll., (i.R. No. l72l(),!, l)ct.t.rrrlx.r .rt,
2008.
Sec. l0 Sec. l0 ART. III - BILL OF RIGHTS
quasi-judicial body and, thus, its order approving the plan cannot
constitute an impairment of the right and the freedom to contract.
Besides, the mere fact that the Rehabilitation Plan proposes
a dacion en pago approach does not render it defective on the
ground of impairment of the right to contract' Dacion en pago
isaspecialmodeofpaymentwherethedebtoroffersanother
thing io the creditor who accepts it as equivalent of payment of
an outstanding debt. The undertaking really partakes in a sense
of the nature of sale, that is, the creditor is really buying the
thing or property of the debtor, the payment for which is to be
charged against the debtor's debt. As such, the essential elements
of a contract of sale, namely; consent, object certain, and cause
or consideration must be present. Being a form of contract, the
dacionenpagoagreementcannotbeperfectedwithouttheconsent
of the parties involved.
It is a different matter, however, if the amount of rental is changed.
The amount of rental is an essential condition of any lease contract.
Needless to state, the change of its rate in the Rehabilitation Plan
is not
justified as it impairs the stipulation between the parties''4'3
clause is a limit
It should also be noted that the non-impairment
on the exercise of legislative power and not of judicial or quasi-judicial
power. The approval of the Rehabilitation Plan by the Securities and
Lxchange Commission is an exercise of adjudicatory power by an ad-
ministrative agency and thus the non-impairment clause does not apply.
Neither does it impair the power to contract.'4'4
Laws prohibiting premature campaigning are intended to level the
playing field for candidates to public office, to equalize the situation
Letween popular or rich candidates, on one hand, and lesser-known or
poorer candidates, on the other, by preventing the former from enjoy-
ing undue advantage in exposure and publicity on account of their re-
sources and popularity. Such laws might affect advertising contracts,
the non-impairment clause of the Constitution must yield to the loftier
purposes targeted by the Government.'4'5
l(,1
(\rrporltion, G'R No' l66800, September 25' 2007'
'n"l,ccu Rc;tlty v. Matluclil
r{r4l}l'l v. Sl'l(', (;.R. No. 16464, l)cccnrhcr 27' 2(X)7'
r4r'('hnvt'z v. ('( )Mlil,l:(', ( i.l{ No l 62777, Arrgrrst'} l' 2(X)4'
 464 THE 1987 CONSTITUTION
Sec.11 ART. tII _ tsILL OF RIGHTS
OF THE REPUBLIC OF THE PHIT,PPINES

The issue of the retroactive effect of R.A. No. 7641, a retirement domestic ser-
pauperis.Those protected include low paid employees'
law, on prior existing employment contracts has long been settled. The so poor that they must
vants and laborers.ro" They need not be persons
early case of EnriqueT Security Services, Inc. v. Cabotaje,said:
besupportedatpublicexpense...Itsufficesthatplaintiffisindigent....
,paupers'and 'indigent'persons is that the
RA 7641 is undoubtedly a social legislation. The law has
And the difference betweln
of income sufficient
been enacted as a labor protection measure and as a curative stat- latter are 'persons who have no property or sources
ute that
- absent a retirement plan devised by, an agreement with, fortheirSupportasidefromtheirownlaborthoughself-supporting
Rule 41, Section
or a voluntary grant from, an employer when able to work and in employment'."rare Moreover,
- can respond, in part at in appellate courts' has
least, to the financial well-being of workers during their twilight 16, which denied the right tolitigate as paupers
years soon lbllowing their life of labor. There should be little doubt
beenamendedtomake-therightapplicableeventoappellatelitigation.
about the fact that the law can apply to labor contracts still existing
Thenewruleapplieseventolitigationpendingatthetimeofitsenact-
at the time the statute has taken effect, and that its benefits can be has been found to be
ment. The retroactive application of the new rule
reckoned not only from the date of the law,s enactment but retro_ III''o'
actively to the time said employment contracts have started. more in keeping with Section 11 of Article
provisions in
The significance of having an explicit "free access"
This doctrine has been repeatedly upheld and clarified in several rocky road which 'ofree ac-
the Constitution may be gathered from the
cases. Pursuant thereto, the court has imposed two (2) essential requi- jurisprudence' The American
cess" seems to have traveled in American
sites in order that R.A. No.764l may be given retroactive effect: (l)
constitutiondoesnothaveanexplicitfreeaccessprovisionand'hence'
from both the
the claimant for retirement benefits must still be in the employ of the
its free access doctrine has been developed as implicit
employer at the time the statute took effect; and (2) the claimant must prot""tion clause and the due process clause' Grffin v' Illinois'az'
"quut prisoner through
have complied with the requirements for eligibility for such retirement
."p,ouu."o the denial of effective review to an indigent
benefits under the statute.br6
theexactionoffeesasviolativeofequalprotectionand,ondueprocess
grounds, Boddie v. Connecticutt422 held that a state
may not deny indi-
Sec. ll. Fnre ,rccess ro rHE couRts because of their inability to pay filing
lents access to divorce courts
AND euAsr JUDIcIAL
BODIES AND ADEQUATE LEGAL ASSISTANCE SHALL NOT BE DENIED TO
fees. In 1973, howev et, (J nite d state s v. Kras,'az'
by a 5 -4 vote, upheld',
ANY PERSON BY REASON OF POVERTY.

v. Almeda Lopez,70 Phil' 443 (1940)'

1. Free access to courts,quasi-judicial bodies,and adequate -
'o'tgo6ungis
r4reAcar v. no.ur, l-ilzoj, March 18, 1967. "Not that the foregoing view stands
alone'

legal assistance. Thisconceptofpauperlitigarrthasbeenincorporatedinrecent(1969)legislation.InRepublicAct

No.6033, 'An Act Requirinf Coutts to Give Pieference
toCriTi"{:^?Where the^ParlY or Par-
The provision proposed at the 1935 constitutionar convcnti.rr Republic Act 6034, An Act Providing Transportation and other
ties Involved -" tnaig"ntr;luna
16, 1969. Congress.has delined the
Allowances for Indigent I_i ig"*r;,frn approved on August
read: "The State shall not deny to any citizen free access to thc corrrls .indigent, to refer to
jwho
has^no visible means of income or whose income is insuf-
rerm
by reason of poverty." A move to eliminate the provision on thc gnlrrrrl ";;; interest is a third statute, Republic Act 6035'
{icient for the ,ubrirt"n"" oihis family.' of particular
Att Stenographers to Give Free Tran-
also approved on August f i, f XS'
that its subject was already covered by the equal protection clausc wls R"qoiring
"n'itf"i'An
defeated by the desire to give constitutional stature to such spccilic scriptofNotestolndigentandLowlncomeLitigantsanrlProvidingaPenaltyfbrtheViolation
Pro .l.hereof,. This ref'ers to ttrei.ul.r.ript of stenographic notes of'a hearing before an investigating
tection for the poor.r4r7 liscal or trial judg" .r. t .o--ir.ion", nf"uny quasi-judicial body or administrative tribunal.'
"rri"g litigant', for the purpose of this statute (R.A. No. 6035) was given a
.in4ige"nt
lr.r, intleed, tho ternr .anyonc who has novisible means of support or whose income
This constitutional provision is the basis for the pr.visi.' .t'st.t. rrrorc cxpansive ru"uning ,., in"iuic
tion22,Rule 3 of the New Rules of court allowing litigltiort irt.fitt.rrttt rkrsntrlcxccctll)3(X)p,crtrltrnthrrrwh<rseinctlmeeveninexcessofP300permonthisinsufficient
30' 1970'
Irn.thc suhsistcnt:t: ol his llrnily." l')rragc v. Rattxrs, L-22109, January
rir"Mailitlez v. I'coplt',(i R No l l2tt52' Mlry ll'2(XX)'
r{l.l5l ll.:i. l2 ( l()5(r).
r{r"Univcrs;rl RohinirSrrg:rlv.('lrbirlctl:r.(i.R.No.
l5(r(r4.l,.lrrly.l8,.l(X)g. r4//4Ol ll s. 1.71 1 lr)'/l )
"".1 l()l lltNnl ()l; llll-(l(,t5)('()NSllllIl'l(lNAl.('()NVliN'l't()N,71 / r4rr4o() I 1.s.4 14 ( l(,/ t)
 THE 1987 CONSTITUTION Sec. l2 Sec. 12 ART. III - BILLOFRIGHTS
OF THE REPUBLIC OF THE PHILIPPINES

against both equal protection and due process arguments, the require- 1. Evolution of the Provision'
ment of a $50 filing fee as a precondition to a discharge in bankruptcy.
This provision on persons under investigation first
appeared as
The court's reading of Grffin and Boddie saw in them two require- Constitution.
the second sentence in Article IV, Section 20
of the 1973
ments for the success of a free access plea: first, the interest sought to be
"No person shall be compelled to be a witness
protected must be "fundamental"t424 and,second, it must be objectively The flrst sentence read:
"Any person under in-
impossible to protect the interest except in a court of law.r425 against himself. The second sentence then read:
have the right to
vlstigation for the commission of an offense shall
with the presence of an explicit and broadly worded provision ."*uin silent and to counsel, and to be informed of such right'"
in the Philippine constitution, Philippine jurisprudence is barred from right against
making the distinctions made in American jurisprudence. Moreover, the The 1987 Constitution has separated the traditional
1987 constitution has improved on the 1935 and 1973 texts by includ- self-incriminationandplaceditasSectionlT.Therightofpersonsun-
12 \n order to em-
ing a guarantee offree access to "quasi-judicial bodies and adequate le- der investigation was set apart and put in as Section
but also a
gal assistance." In adding the guarantee of free access to quasi-judicial phasize that it is not just a right against self-incrimination
'guu.unt""
bodies the 1986 constitutional commission principally, but not exclu- of the right to proper treatmext of those under investigation'
in order
sively, had in mind free access to labor courts.r426 ilIor"ou"r, the brief sentence in the 1973 version was expanded
from specifying that coun-
to clarify the scope of the right' Thus, aside
..competent anJ independent" and "preferably of [the de-
Snc. 12. (1) Axv pERSoN uNDER rNvEsrrcArroN FoR rHE sel must be
cannot af-
COMMISSION OF AN OTFENSE SHALL HAVE THE RIGHT TO BE INFORMED tainee's] own choice, the provision now adds: "If the person
with one. These rights
OF HIS RIGHT TO REMAIN SILENT AND TO HAVE COMPETENT AND ford the services of counsel, he must be provided
presence of counsel"'
INDEpENDENT couNSEL pREFERABLy oF l{rs owN cHoICE. Ir rnr cannot be waived except in writing and in the
PERSON CANNOT AFFORD THE SERVICES OF COUNSEL, HE MUST BE
as it does prin-
pRovIDED wrrH oNE. Tnpsr nrcnrs cANNor The provision is of American provenance coming
BE wArvED Excrpt IN
WR,ITING AND IN THE PRESENCE OF COUNSEL. cipallyfromtwoAmericanSupremeCourtdecisions:Escobed.ov'Illi-
n6;r,ou and Miranda v. Arizoni:4" Escobedo
spoke of the rights of per-
(2) No tontunn, FORCE, vIoLENcE, TTTREAT, INTIMIDATIoN ,.custodial investigations" and specified custodial investigation as
son in
OR AI{Y OTHER MEANS WHICH VITIATE THE FREE WILL SHALL BE USED
AGAINST HIM. STCNTT NNTBNTION PLACES, S OLIT Af,lY, INCOMMI] N ICADIO,
thetimewhen..theinvestigationisnolongerageneralinquiryintoan
OR OTHER SIMILAR FORMS OF DETENTION ARE PROHIBITED. unsolvedcrimebuthasbeguntofocusonaparticularsuspect'thesus-
carry out a process of
pect has been taken into pilice custody'the police
(3)
Axy coNressroN oR ADMrssroN oBTATNED tN vroLATroN 'interrogations
that lends itself to eliciting incriminating statements'"142e
OF THIS ON SNCTTOU I,7 NPNNOT SHALL BE INADMISSIBLE IN EVIDENCE available: (1) The
AGAINST HIM.
Mirandafor its part enumerated the rights that were
person in custody must be informed at the outset
in clear and unequivo-
(4) Tnr r,,qw sHAr,L pRovrDE FoR pf,NAL AND crvrl sANCTToNS caltermsthathehasarighttoremainsilent.(2)Afterbeingsoinformed,
FOR VIOLATIONS OF THIS SECTION AS WELL AS COMPENSATION 1,O AND
hemustbetoldthatanythinghesayscanandwillbeusedagainsthim
REHABILITATION OF VICTIMS OF TORTURE OR SIMILAR PRACTICES, AND has the right to consult
in court. (3) He must be cleaily informed that he
THEIR FAMILIES. the interrogation'
with a lawyer and to have the lu*y"t with him during
Hedoesnothavetoaskforalawyer.Theinvestigatorsshouldtellhim
(4) He should be warned
that hc has thc right to counsel at that point'

tazall. s1444-4,J.
rirr \78 [ ).s. 47tt ( l(X]4)
ta25ld.
at 443-4{. r{rx 184 [ l.\..1 t6 ( l(xr(r)
r4n'l RI.;('ORl) Ol; ll lli ('()NS'l t't't I t t( )NAt. (,( )MMtslit( )N ( tglt(r) (r7(r r.rl,,ltrrlrt.s ttIh.rl
 THE 1987 CONSTITT]TION Sec. 12 Sec. 12 ART. III _ BILL OF RIGHTS 469

OF THE REPUBLIC OF THE PHILIPPINES

that not only has he the right to consult with a lawyer but also that if he Tolentinot434 also said, commenting on Duero, that
"the Court not only
acts related
is indigent, a lawyer will be appointed to represent him. (5) Even if the abrogated the rule on presumption of regularity of official
interrogation but
person consents to answer questions without the assistance of counsel, to aC-missibility of statements taken during in-custody
Miranda
the moment he asks for a lawyer at any point in the investigation, the likewise dispelled [any] doubt as to the full adoption of the
interrogation must cease until an attorney is present. (6) If the foregoing the prosecution to prove during a
doctrine. It is now incumbent upon
protections and warnings are not demonstrated during the trial to have of his constitu-
trial that prior to questioning the confessant was warned
been observed by the prosecution, no evidence obtained as a result of tionally protected rights."
the interrogation can be used against him.
Meanwhile,however,theprocessofclarifyingtherightsthatare
The reason for the rule in Section 12(1) is not too difficult to find.
made available continue. Discussion of this provision
will first answer
It is merely a recognition of the fact that the psychological if not physi- (2) What
three questions: (1) When do the rights begin to be available?
cal atmosphere of custodial investigations, in the absence of proper
rightsaremadeavailable?(3)Whendotherightsceasetobeavailable?
safeguards, is inherently coercive.r43. For "coercion can be mental as
well as physical, and ... the blood of the accused is not the only hall- 2. "Any person under investigation ' ' '"
mark of an unconstitutional inquisition."r43r This is the reason upon
which the Miranda rule was founded. And the prophylactic effect of the Therightsunderthissectionareavailableto..anypersonunder
investigation for the commission of an offense." Investigation
in this
new provision is better secured if, following the total Mirandarule, the
as "investi-
prosecution is also made to prove compliance with the new safeguards. section was defined by the 1971 Constitutional convention
gation conducted by the police authorities which will include investiga-
By the time of the drafting of the 1987 Consrirution, philippine
Iions conducted by the municipal police, the PC and the NBI
and such
jurisprudence had already established that the whole range of Miranda cOnversation
other police agencies in our government."r435 This includes
rights had been adopted. Moreover, there already were decisions which
withabarangaycaptainthatispartofanongoingcustodialinvestiga-
clearly indicated that the presumption of regularity no longer applied
tion, Section 12(1) aPPlies.'036
to the behavior of police or prosecuti on. People v. Duerot432 said: "Inas-
much as the prosecution in this case failed to prove that before Duero But at what precise point in the inquiry do the rights become
made his alleged oral confession he was informed of his rights to re- available? what the 1971 Constitutional convention had
in mind were
main silent and to have counsel and because there is no proof that he ..custodial investigations" in the sense of Escobedo. Hence, these rights
were seen as beginning to be available only when "the
knowingly and intelligently waived those rights, his confession is inad- investigation
crime but has begun to
missible in evidence." Again in People v.Inguito,ta33 the Court invali- is no longer a general inquiry into an unsolved
dated an extra-judicial confession when the state failed to dispute the focusonaparticularSuspect,thesuspecthasbeentakenintopolicecus-
claim of the accused that he had been compelled to sign his confession tody,|hepoti"""u.ryootaprocessofinterrogationsthatlendsitselfto
1973 Con-
and that he was not given counsel nor apprised of his rights . people v. eticiting incriminating statements."la3? As formulated in the
stitution, the provision changed the rule adopted in People v'
Jose't438

rasMiranda v. Arizona, 3S4

Josehadsaidthattherightsoftheaccusedonlybeganuponarraign-
U.S. at 448-58.
ra3rBlackburn v. Alabama,
361 U.S. 199,206 (1960).
1432104
SCRA 379, 385-6 (May 13, 1981).
r1r4l45 SCRA 597,607 (November 24, 1986)'
'433G.R. 53497, october 18, 1982. But in a case between Duero and Inguito, {irr pur.poscs
of a hearing on bail, Abad Santos, writing for the Court that the claim of violation of Sectiou 20 ,.is rarlsession of Ntlvember 25, 1972'
a matter best considered when it is [the accused's] turn to present evidence. At this st&ge, thc cx- r'l.Pettplcv. l-lernxrso,G.R.No l305{)'Octoberlll'2000;Peoplev Morado'G'R No
trajudicial confession must be presumed voluntury and rcgular until the contnrry is provcd grrtl this 129723, MaY 199e.
Court is not the proper ftrrurn t., pnrvc thc c()ntrrry.'I'hc Jrrrrpcr lirnrrn is thc t,li1l c,urrr.', 16lungr r"llsc0bccftr v. lltiruris, lTlt tJ.S. 47tl ( 1964). ltIlics adtlcd.
v. Judgc clc lu ('ruz, (i.R. No. 5ftli05, Augrrsr 2 l, l()8',1, Irr17 \(.RA 450, 412 ( lt)l I l.
 47o THE 198TCONSTITUTION Sec. 12 Sec. 12 ART. III - BILLOFRIGHTS
OFTHE REPUBLIC OFTHE PHILIPPINES

ment. The 1973 rule said that the rights began the moment a person had 'If however, he voluntarily admits the killing and it was precisely
become the focus of investigation and had been taken into custody. becausehesurrenderedtoadmitthekilling(sic),theconstitutional
and to coun-
safeguards (sic) to be informed ofthe rights to silence
clearly, therefore, the rights enumerated are not available before
sel maY not be invoked.
government investigators become involved. Thus admissions made
in
an administrative investigation conducted by offlcials of the philippine Itisnowestablishedthatconstitutionalproceduresoncustodi-
Airlines do not come under section l2.t43s rt does not apply when the alinvestigationdonotapplytoaspontaneousstatement'notelicited
an ordinary manner
confession or admission is made to a private individual.,io Gither does through qirestioning by the authorities, but given in
it apply to a person undergoing audit because an audit examiner is not wherJby the u""or"d orally admits having committed the
crime.'46
a law enforcement 6ffiss1.r++r Nor does it apply to a verbal admission
made to a radio announcer who was not part of the investigation.ra2 The accepted constitutional rule, moreover' following Escobedo
when the person
Even an admission made to a mayor who is approached not as mayor and Miranda. is that the rule covers only situations
but as confidante is not covered.'a3 similarly an interview recorded on isalreadyincustody,forwhichfeasonEscobedohadreferredtothem
..under custodial investigation.,'144? Significantly, however, the
video and in the presence of newsmen is not covered. However, because as rights
The Court
of the inherent danger in the use of television as a medium for admitting Court, in Galman v. Pamaran'r448 departed from this rule'
sustained the contention of General ver that the
provision covered even
one's guilt, and the recurrence of this phenomenon in several cases, the
court has warned that it is prudent that trial courts are reminded that personsnotyetincustodybutalreadyunderinvestigation.TheCourt
extreme caution must be taken in further admitting similar confessions. said:
The court recognized the possibility of connivance with the police.'a Thefactthattheframersofour[1973]Constitutiondidnot
Nor for that matter does section 12(1) apply to a situation where choosetousetheterm..custodial''byhavingitinsertedbetween
..under'' and ..investigation,' as in fact the sentence
a person presents himself to the police and in the process makes his the words
opens with the phrase "any person" goes to
prove that they did not
admissions. As the court said in People v. Thylaran!,us Miranda doctrine'
adopt in toto th,e entire fabric of the

The applicability of the foregoing provision does not seem phrase "per-
to contemplate cases like the present where no written confession The text of the 1987 Constitution has preserved the
Moreover, the
is sought to be presented in evidence as a result ofthe formal cus_ son under investigation" without the word "custodial."
commission mani-
todial investigation. what was testified to was only what appellant discussions on the floor of the 1986 Constitutional
told the police why he is (sic) surrendering to them. It is bui natural festanintent,inthelightofexperiencesduringmartiallaw'toexpand
, for one who surrenders to the police to give reason or explanation thecoverageoftherighttosituationswhenapersonunderinvestigation
question of
for his act of surrendering. It can hardly be said that under such is not yet in custody. The discussion was triggered by the
circumstanca, the surrenderee is arready 'under investigation', CommissionerAquinowhethertheguaranteecoveredbothcustodial
the question
within the meaning of the constitutional provision. As the Sorici-
investigation and "tactical investigation"' Responding to
tor General correctly observes on the circumstances of this case: colayco explained that' in-
of commissioner Aquino, commissioner
deed, the intention to extend the guarantee beyond mere strict cus-
*u,
ra3ePeople
v. JudgeAyson, G.R. No. g5215, July 7, 19g9. todial investigation of the Escobedo variety to "the time immediately
r*People v. Tawat,
G.R. No. 62g71, May 25, r9g5; Kimpo v. santriganbayan. 2J2 sc,RA afterthecommissionofanyoffense,whetherthepolicemanortheper-
s3 (1994).
fafNavallo v. Sandiganbayan,
234 SCRA 175 (1994).
i{2People v. Ordono,
G.R. No. I 32 l -54, Jun e 29, 2ONl.
fa3People v.Zuela, lasPctrple v. Baloloy, G-R. No. 14074o, Aprll l2'2o02'
G.R. No. I I 2l 77, January 21i, 2(XX).
I$Pcople v. Endin6, C.R. r'{'Peoplc v. (laguitxr,95 S(lRA 2' 9 ( l9tt0)'
No. 13302(r, Ircbruary 20, 2(X) I .
r4s
loll s('RA 37'1, lTlt_9 ( 198 I ). r&*1'111 st'RA 2r;4..ltg (Arrgust 30, l9tt5).
 472 THE I987 CONSTITUTION ART. III - BILL OF RIGHTS
Sec. 12 Sec. I 2
OFTHE REPUBLIC OFTHE PHILIPPINES

son making the investigation [had] any suspect under custody.,,

or, as There are, moreover, other investigatory situations where Section
commissioner Aquino summed it up, the right shourd extend to the
12(1) does not apply. Subjection to paraffin test is one because it is
period of "custodial interrogation, temporary detention and preliminary
not communicative action or testimonial compulsion.'ls3 Similarly, one
technical custody."r+r Thus, if one puts the Galman case together
with placed in a police line-up does not enjoy Section 12(1) rights, unless
the 1986 deliberations, the conclusion that comes out is that the rights
there is a move on the part of investigators to elicit admissions or con-
are available if a person is already in custody as a suspect, or if
the per- fessions.,o,a But a person already under custodial investigation who is
son is the suspect, even if he is not yet deprived in any significant
way placed in a police line-up is entitled to Section 12 rights'""
of his liberty.
Finally, however, it is important for the defense to remember that
Jurisprudence under the 1987 constitution, however, has consis-
rights under section 12 can be lost by neglect. where the defense fails
tently held, following Escobedo, the stricter view, that the rights begin
to raise objections to the admissibility of evidence immediately, as re-
to be available only when the person is already in custody. As Justice
quired by Rule 132, $36, the accused is deemed to have waived his right
Regalado emphasized in People y. l/[s7.7s.t+so
to object to admissibility.'o'This an indication that the fate of a person
Custodial investigation involves any questioning initiated by sometimes depends on the quality of counsel he or she can afford.
law enforcement officers after a person has been takin into custo-
dy or otherwise deprived of his freedom of action in any signifcant 3. Rights of a person under investigation.
way.lt is only after the investigation ceases to be a generai inquiry
Three rights are made available by Section l2(1): (1) the right to
into an unsolved crime and begins to focus on a particular rurp""i,
the suspect is taken into custody, and the police carries out a^pro-
remain silent; (2) the right to counsel; (3) the right to be informed of
cess of interrogatiotts that rends itserf to ericiting incriminiting such rights.
statements that the rule begins to operate.
The right to remain silent.
In an obiter dictum and writing for a divisi on in people v. under the right against self-incrimination in section 17, only an
Maqueda,'as' Justice Davide, who, like Justice Regalado, was a mem_ accused has the absolute right to remain silent. A person who is not an
ber of the 1986 constitutional commission, adverted to the view in accused may assume the stance of silence only when asked an incrimi-
the constitutional commission that the rights are available even
to onc nating question. Under Section 12, however, a person under investiga-
who is not yet in custody. tion has the right to refuse to answer any question. His silence, more-
It should be noted, however, that although the scope of over, may not be used against him.'457
the cort-
stitutional right is limited to the situationin Escobedo and. Marra.R.A. The right to counsel.
No. 7438 has extended the guarantee to situations in which an intri-
vidual has not been formally arrested but has merely been ..invited" The 1987 Constitution now specifies that the counsel made avail-
lirr
questioning.'452 There is therefore a statutory guarantee lble to the person under investigation must be "competent and indepen-
broader than thc
constitutional.

rl"Pot4rlc v. Gamboa, G.R. No' 91374, February 25,1991'

|,1,Il)cttplc v. lirltgtt. 232 IiCRA 653 (1994); People v. Dimaano, G.R. No. 95231, June l5'
(1992);
raaesee f
()()J. I'eolrlc v. Iliruorr. 2lO S('RA l, l4-16 (1992); People v. Casinillo, 213 SCRA777
Bnnu.qs, Tue rNtevr ot"'run r9g6 CousrrrttttoN wRnr.Rl r94-r9(r ( (iilrrrlxrilv..lrulgc('rrrz, I(r2S('RA642(lgtttl),butseedissentof Chief JusticeYapandJustice
ra5{)People
r()()5).
v. Marra, 236 SCIRA 56-5, 573 ( l9r_)4). lttlics irr origirurl.
105'G.R. Srrr rrrie ttlo.
No. ll29tl3. March 22. 1995. 'l'rr,1tlt' v. Mitt;tltt. I ltl li('RA 5((r ( 1994)'
rr']l'cr4rlcv. l)orrralllly,(i.lt.No.
l106l2,Miry ll,l99(). ltrrPlcv.,lirl,(i.l{.No
"
.l'i'lrrttirty ll/i., 1.
r,,,1,r..,1. v ( i'rrzirlt.s. ( i.l{ 1., l{.r() lJ, May 2t), 2(X)2.
ll.l()()ll; I't.o;rlcv l,tiIt.i1r.,(i.l( No ltS8i,.r,Mrrv.l..'(Xt.' 1|.,|,t'rrlllt.v Alr.1itr. ltlll (irrtrl.rttttllrr.t),1 S(.l.lA l()(,, lll.l(NrrvcnlltrT' 1979)'
 THE 1987 CONSTITUTION
474 Sec. l2
OF THE REPUBLIC OF THE PHILIPPINES
dent" and "preferably of [the detainee's] own choice." This detail was
added upon the insistence of human rights lawyers in the 1986 Con-
stitutional Commission who pointed to cases where, again during the
martial law period, the lawyers made available to detainees were some-
times those appointed by the military and therefore beholden to the
military.'ass Under the present provision, where a former judge showed
up and said to the detainee: "I am here because I have been summoned
to assist you and I am going to assist you," the offer of assistance was
found inadequate to meet the constitutional requirement.r45e But if the
accused never raises an objection to counsel given to him, he is deemed
to have been properly counseled.'o'
The phrase "preferably of his own choice" does not mean that
the choice of a lawyer by a person under investigation is exclusive as
to preclude other equally competent and independent attorneys from
handling the defense.'46'
Examples of those who are not impartial counsel are (l) Special
counsel, public or private prosecutor, counsel of the police, or a mu-
nicipal attorney whose interest is adverse to that of the accused; (2) a
mayor, unless the accused approaches him as counselor or adviser (3)
a barangay captain: (4) any other whose interest may be adverse to that
of the accused.'nut
The specification of the duty of the state to furnish the detainee
with counsel, in spite of the fact that this is already implicit from the
right to have counsel, was specified by the Commission in order to put
emphasis on the duty of the state.r463 Jurisprudence on this subject, how-
ever, has been on the side of being erratic. Thus, for instance, where an
extrajudicial confession was made in the absence of counsel but wherc
at the closing stage of the interrogation counsel arrived and had the
opportunity to read the statement and discuss it with the client who
subsequently signed it, the Court said that there had been substantial
r458I
RECORD 731-34. Commissioner Sarmiento gave the example of the app,ointcd lrrwycr
for Karl Gaspar.
rasePeople v. Jimenez,
G.R. No. 82604, December 10, 1991.
rffiPeople v. Jerez, G.R. No. I14385, January 29,
I998,285 SCRA 393,,1{)t, citing pcrryle
v.Suarez,267 SCRA ll9 (1997).
r6rPeople v. Mojellg, C.R. No. 145566, Mlrch 9.2(X)4.
ra62Pcoplc v.'hrrnaquin, (i.R. No. l33llitt. July 2.1, 2(X)4.
l{'rl Rli(()Rl) hl.ut7.11 .'141.
ART. III - BILL OF RIGHTS 4'75
Sec. l2
compliance.1464 ThiS, however, and a similar case,1465 waS corrected in
f eopte v. LLtcerotouu where in the middle of the investigation the lawyer
had left to attend a wake, came back when the accused had already
signed his statement and afflrmed that he did it voluntarily. The
Court
ruled that the right to counsel was a right to effective counsel from the
first moment of questioning and all throughout'
Moreover, the Court has eloquently said that even in times of
emergency,andespecial/yintimesofemergency,therighttocounsel
must-be rlspected. This was in the case of Diokno v. Enrile146l where,
after repeatedly being refused permission to see Diokno, counsel filed
the
a mandamus petition. Diokno was released in September,l974'but
supreme court decision affirming his right to counsel was made only
on December 19. 1981.
The right to be informed of his rights '
Therightguaranteedhereismorethanwhatisshownintelevision
shows where the police routinely reads out the rights from a note card.
As People v. Rofsi46s Put it:
WhentheConstitutionrequiresapersonunderinvestigation
.tobeinformed'ofhisrighttoremainSilentandtocounsel,it
mustbepresumedtocontemplatethetfansmissionofameaningful
informationratherthanjusttheceremonialandperfunctoryrecita-
tionofanabstractconstitutionalprinciple'Asarule'therefore'
itwouldnotbesufficientforapoliceofficerjusttorepeattothe
personunderinvestigationtheprovisionsoftheConstitution.He
is not only duty-bound to tell the person the rights to which the lat-
terisentitled;hemustalsoexplaintheireffectsinpracticalterms.
.to be
In other words, the right of a person under investigation
informed' implies a correlative obligation on the part of the police in-
vestigator to explain, and contemplates an effective communication
that results in understanding what is conveyed. Short of this, there is
railEstacio v. Sandiganbayan, G.R. No' 75362' March 6, 1990'
la65Peoplc v. Rous'(1.R. Nos. l03tt03-04, March 27' 1995'
r(ir(i.f{.No.97()36'M4y29.1995.,4/soPeoplev'deJesus'GR'91535'September2'1992
No'129295'August15'
tundI,coplcv. llantlula,Z.tU Si'nn5(r(r(l()94);l'eoplev.Morial,G'R
2(X)I; I'utplc v. Strcla.(i.l{ Nos. l } t570 7l,'ltrntrary I5' 2(X)2'
r'r"/(i.l{. No..l(r'}15, I)ctcttttrt'r' l()' l()tlI
r{il1,1'/ s('l{A l()() (l()ll'7)..S/r'rrl,rrr l\ilPle v. ltittlrts, l2-). S('l{A ll2: l)coPlc v ('aguioa'
()5 S('l{A .)
4'76 THE 1987 CONSTITUTION Sec. l2 ART. III - BILL OF RIGHTS
OFTHE REPUBLIC OFTHE PHILIPPINES

a denial of the right, as it cannot then truly be said that the person
been'informed' of his rights.'o0e
4. When Section 12(1) rights end.
The criminal process includes the investigation prior to the filing
of charges, the preliminary examination and investigation after charges
are filed, and the period of trial. The Miranda rights or the Section 12(1)
rights were conceived for the first of these three phases, that is, when
the enquiry is under the control of police officers. It is in this situation
that the psychological if not physical atmosphere of custodial investi-
gations, in the absence of proper safeguards, is inherently coercive.r4?o
Outside of this situation, Section 12(1) no longer applies. But Sections
l4 and 17 come into play instead.
This was already adverted to during the deliberations of the l97l
Constitutional Convention when, upon inquiry by Delegate Sambola-
wan, Delegate R. Ortiz, who was sponsoring the provision, said that
"investigation" here did not inc}ude judicial and quasi-judicial investi-
gations such as those conducted by the fiscal or by the judge.'o'' Justice
Narvasa was referring to the same matter when he said that Section
12(1) does not apply to persons under preliminary investigation or al-
ready charged in court for a crime and therefore already under the pro-
tection of the court:'472
It seems quite evident that a defendant on trial or under pre-
liminary investigation is not under custodial interrogation. His in-
terrogation by the police, if any there had been would already have
been ended at the time for the filing of the criminal case in court
(or in the public prosecutor's office). Hence, with respect to the de-
fendant in a criminal case already pending in court (or the prosecu-
tor's office) there is no occasion to speak of his right while under
"custodial interrogation" laid down by the second and subsequent
sentences of Section 20, Article IV of the 1973 Constitution [now
has Section the obvious reason that he is no longer under
lz(I)l,for
"custodial interrogation."
But unquestionably, the accused in court (or undergoing pre-
liminary investigation before the public prosecutor)' in common
withallotherpersons,possessestherightagainstself-incrimina-
tionsetoutinthefirstsentenceofSection20,ArticlelVofthe
lgT3Constitution[nowSectionlT,ArticleIII],i'e''therightto
refuse to answer a specific incriminatory question at the time
it is
put to him.
conceivably, however, even after chafges are filed, the police
might still attempt to extfact confessions or admissions from the ac-
cu;d outside ofludicial supervision. In such situation, Section 12(1)
would still apply. But outside of such situation, the applicable provisions
are Section 14 and Section 17. It is for this reason that an extrajudicial
confession sworn to before a judge enjoys the mark of voluntariness'r473
5. Waiver of the rights.
The early jurisprudential rule prior to the new constitution was
,.The defendant may waive effectuation of those rights, provided
this:
the waiver is made voluntarily, knowingly and intelligently. If,
how-
process that
ever, he indicates in any manner and at any stage of the
be no
he wishes to consult with an attorney before speaking, there can
questioning. Likewise, if the individual is alone and indicates in any
not
manner that he does not wish to be interrogated, the police may
questionhim.ThemerefactthathemayhaveansweredSomeques-
him
tions or volunteered some statements on his own does not deprive
of the right to refrain from answering any further inquiries until he has
consulted with an attorney and thefeafter consents to be questioned'"r474
EvenpriortolgST,however,Peoplev'Galit'o"andMoralesv'
it up
Enrilet4\6 already enunciated strict rules on waiver. Galit summed
in the context of the court's reading of the 1973 provision thus'14?7

ra6ePeople v.Nicandro, 141 SCRA 289; People v. Pinlac, 165

SCRA 674 (1988); Pcople v.
501 (1993); People v' Baello' 224 SCll 218 (1993);
Mahinay, G.R. No. 122485,February 1,1999. '*People "jamon,2l'7 SCRA
147 SCRA 204 (1987)
People v. Paraiinog, 203 SCRA 673 ( 1993) People v Marcos'
laT0Miranda v. Arizona, 384 U.S. at 448-58.
raTrSession of November 25, 1972. ' v. C:aguioa,9.5 S(:ltA 2' l0 (1,-3t1975' January 17, 1980),quoting Miranda v'
'top"up|"
raT2People v. Ayson, l7-5
SCRA 216,232 (l9tl9). ln l)eople v. Muquedu, C.R. No. ll29tt3, Arizontt. .llt4 (lS 436,444-5
March 22, 1995, arrother diyision consitlcrcrl tlrc vicw trxr rcstrictivc tntl. relyirrg on thc gcncn,us r.tll ]5 s(.R/\465 (Mur.c:h 20, l9tt5)
lulc in l\urutr<ur trrul Mrtrttlr.t v. l'.nrilr (l2l S('llA nt 554) slitl thlt lhc right cxists ut uny titrrc r.'dl2l (('RA5.lH(Apr.il l(r, l()tll).,4/rol)trrPlcv.Sisott. l4:lS('l<A2l()(.lurrc5'l9tJ6)'
lrlirn';rririllrrrrerrl.'l'lrr. Mrrt;trcrlir lfllulncnlllion,lrowr.ver. ir rrol pctrttrrsivc. r'r' I ll \('l{A rrt ,l i,).
 478 THE 1987 CONSTIT{JTION Sec. 12
OF THE REPUBLIC OF THE PHILIPPINES
At the time a person is arrested, it shall be the duty of the
arresting officer to inform him of the reason for the arrest and he
must be shown the warrant of arrest, if ahy. He shall be informed
of his constitutional rights to remain silent and to counsel, and
that any statement he might make could be used against him. The
person arrested shall have the right to communicate with his law-
yer, a relative, or anyone he chooses by the most expedient means
by telephone if possible or by letter or messenger. It shall be
-the responsibility ofthe arresting
- officer to see to it that this is ac-
complished. No custodial investigation shall be conducted unless
it be in the presence of counsel engaged by the person arrested, by
any person on his behalf, or appointed by the court upon petition
ofeither the detainee himselfor by anyone on his behalf.The right
to counsel may be waived but the waiver shall not be valid unless
made with the assistance of counsel. Any statement obtained in vi-
olation of the procedure herein laid down, whether exculpatory or
inculpatory, in whole or in part, shall be inadmissible in evidence.
But it has also been held that the rule enunciated in Galit has no
application to confessions made before the date of Galit's pronounce-
ment on March 20,1985.1478
Nevertheless,as People v. Jarata1e said:.
Whenever a protection given by the Constitution is waived
by the person entitled to that protection, the presumption is always
against the waiver. Consequently, the prosecution must prove with
strongly convincing evidence that indeed the accused willingly
and voluntarily submitted their confessions and knowingly and
deliberately manifested that they were not interested in having a
lawyer to assist them during the taking of the confession.
Following these leads, the 1987 Constitution now says: "Thesc
rights cannot be waived except in writing and in the presence of coun-
raT8People
v. Ponce, 197 SCRA 746 (1991). The rule on the date of effectivity ol thc (;r/i/
rule is a linle murky.ln People v. Nabauna, 142 5CRA446,455-6 (1986), the Courr sai(l lhat rhc
doctrine in Morales should not be applied to confessions made prior to April 26, l9ti3, thc <lurc
of the Morales decision. Yut in feiple v. Dacuycuy, C.R. No. 71662,May lJ, 1992. rhc (irrrrr
said otherwise saying that cases after Morales, e.g., People v. Gatit, 135 SCRA 4(r5, 472 ( l9lt5)
had applied it to confessions occurring before April 26,1983. Again in Pu)pl( t,. Luvrntlino. )ll
SCRA 36 (1992), non-retroactivity was stated but obiter. lniltrctl Mor:rlcs coultl rrot hlvc irrvcrrtul
the doctrine. See also the gontrovcrsy on rctr()ndivity of the Milrrnrlrr tkrlrirrc ()n rclroitclivily iil
Magtoto, in/id.
r4r'144 (i('ltA 5l(),5\l (ScPtcrrrlx.r' t0,
l')lt(r).
Sec. l2 ART. III _ BILL OF RIGHTS 479
sel." The implication of this rule is that, in localities where there are
no lawyers, the state must bring the individual to a place where there
is one or bring counsel to the place where the person is held.'"o And,
needless to say, the waiver must be in language which clearly manifests
the desire to waive the right.'4" Where an appellants'contention that
he was not apprised of his constitutional rights upon his arrest is raised
only after a valid information has been filed, the accused arraigned, trial
commenced and completed, and a judgment of conviction rendered, the
contention comes too late.'482
6. Coercedconfessions.
The rule on coerced confessions found in section l2(2) is nothing
new. writing for the Supreme court in chambers v. Florida,t83 Justice
Black said:
The testimony of centuries, in governments of varying kinds
over populations of different races and beliefs, stood as proof that
physical and mental torture and coercion had brought about the
tragically unjust sacrifices of some who were the noblest and most
useful of their generations. The rack, the thumbscrew, the wheel,
solitary confinement, protracted questioning and cross question-
ing, and other ingenious forms of entrapment of the helpless or
unpopular had left their wake of mutilated bodies and shattered
minds along the way to the cross, the guillotine, the stake and the
hangman's noose. And they who have suffered most from secret
and dictatorial proceedings have almost always been the poor, the
ignorant, the numerically weak, the friendless, and the powerless'
The constitutional privilege against self-incrimination, also treat-
ed separately as Section 17, has developed and has been interpreted so
as to cover a wide range of forms of self-accusation. But as an 1897
r&I RECORD 682.
astAfter being informed of his rights the accused was asked: " Matapos mong mabasa at
I
mabatid itong mga karapatun mo ikaw ba ay htsang loob na magbibigay ng isang salaysay at
sasagot ng buong katotohanan lamang sa lahat ng itatanong sa iyo sa inbestigasyon na ito?"
The accused briefly answered: "Opo magsasabi lamang po ako ng pawang katutuharnn lamang."
Does this satisfy the requirements of Section 1 2? The Court said that it does not because there was
no clear reply that he was waiving his right to counsel. People v. Broquesa, G.R. L-62467, October
3l , 1983. See ulso People v. Calit, I 35 SCRA 465 (March 20, 1985), where the question was very
involved but askctl lirr a monosyllahic answcr'
rr*2!)eoplc v. (itnccpiotr,(i.R No. ITllt'176' Junc 2?' 2(X)ll'
r4x' (x) ll.s ?)7 . ) 17 tt ( l(),lo)
 Sec. 12 ART. III _ BILLOFRIGHTS
480 THE 1987 CONSTITI"ITION Sec. 12
OF THE REPUBLIC OF THE PHILIPPINES

compelledtostatesomethingfalse.Andinanobiterdictum\nPeople
decision has put it, its "generic language" is "but a crystallization of
y. Garcia,,on, the court said that if the involuntary confessions were con-
the doctrine as to confessions."t484 To re-emphasize this fundamental in conse-
firmed on material points by facts subsequently discovered
prohibition of coerced confessions , the 1973 Constitution added: "No
quenceoftheconfession,thewholeconfessionshouldbereceivedin
force, violence, threat, intimidation, or any other means which vitiates
evidence.
the free will shall be used against him." To this the 1987 Constitution
has added: "secret detention places, solitary, incommunicado, or othet AsalreadyseenunderSection2,theMoncadodoctrinewasfirst
the rule in de
similar forms of detention are prohibited." "Secret detention places" rejected by stinehill v. Diokno.L4e Logically, therefore,
should also be reject-
has special reference to "safe-houses" and, like "solitary" and incom- tis Santoi which had been built upon Moncado
municado detention, were phenor.nena during the authoritarian regime ed. This in fact was done, without specifically saying
so,in People v'
of Mr. Marcos.1485 Bagasalaron, where the accused was convicted
on the basis of evidence
indicating that the confes-
oth"er than the involuntary confession, thus
7. for being
Exclusionary rule. sion was true. The confeision itself, however, was rejected
the confession
Very much a part of the subject of self-incrimination and of the involuntary. The Court said: "Certainly, however' where
or induced by fear or intimi-
broader Miranda doctrine is the question of the admissibility of invol-
is involuniary, being due to maltreatment
provision. Any form
untary confessions. In earlier stages of Philippine jurisprudence, under dation, there is a violation of [the] constitutional
Section 4 of Act 619, it was a condition to the admissibility of extra- ofcoercionwhetherphysical,mental,oremotionalthusstampsitwith
from
judicial confessions that the prosecution show that the confession had inadmissibility. Whai is essential for its validity is that it Proceeds
provi-
the free will of the person confessing"'ux [nd' finally' the 1973
been freely made.r486 With the repeal of Act 619, by the Administra- custodial in-
tive Code, a presumption of voluntariness shifted the burden of prov- sion, which combined the rule on self-incrimination and
obtained
ing involuntariness to the accused.'o'But the repeal of Act 619 did not vestigation, settled the question definitively: "Any confession
impair the general rule that a confession improperly obtained was not in violation of this section shall be inadmissible in evidence."
competent evidence.'os8 Then came Moncado v. People's Courtt4se which Underthelg87BillofRights,whereself-incriminationistreated
in Sec-
introduced the principle that the illegality of the means with which evi- in section 17 and custodial investigation and forced confessions
confession or
dence was obtained did not affect its admissibility. People v. de los San- tion 12, the rule is reiterated in Section 12(3) thus: "Any
shall be
/osr4eo applied the Moncado principle to confessions and ruled that the admission obtained in violation of this or section 17 hereof
admissibility of affidavits and confessions obtained throdgh violence or inadmissible in evidence against him'"
intimidation depended not on the supposed illegal manner in which it
It should be noted, however, that the exclusionary rule laid down
had been obtained but on the truth or falsity of the admissions. Confes-
bythenewprovisionisbroaderthantheexclusionmerelyofblatantly
sions, the court said, may be rejected only when the affiant had been
coercedconfessions.Itcoverseveryformofevidenceobtainedinvio-
tainted
lation of Section 12 and section !7 , every form of confession
the law
r44Brarn v. United States, 168 U.S.532,543 (1897). with involuntariness.It is a manifestation of the care with which
was already
wishes to insure the voluntariness of confessions. This
,45J RECORD 737_39. care
tas6U.S. v. Pascual,2 Phil. a5? (1903); U.S. v. Caballeros,4 Phil. 350 (1905); U.S. v. Alnt-
eda,8 Phil. 266 (1907)..
ra8?People v. Singh,45 Phil. 676 (1924); People v. Santos,53 Phil' 863 ( 1929).
f4s8u.S. v. Zara,42 Phi1.308,316 (1921); People v. Nishima' 57 Phil.26 (1932); Peoplc r40r99 Phil. 381,386 (1956).
9, 196?. Also' lster and more sweepingly' by Article IV Section
v. Tipay,74 Phil.6l5 (19214); People v. Turtal, 74Phi|.667 (l9zl4); People v. Chuu Huey. tl7 25ti r4q)l
4(2)'
?- 19550, Junc I
( l9s0). 0l' rhc l()73 (bnstitution.
r4s,80Phil. l(194t9. raor.19 s(,1{A 216 ( 197 I ).
r4x\)l l)hil. tl3 (1951), ftrllowcrl in I'coplc v. Villunucvtt,9tl Phil.327,3.15 (1956): lh4rlc ta,ahl. il 24l 2.
v lrrr:rs,l, I l'/67,.lttly lO, l9({).

482 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
evident even under the 1935 Constitution.In People v. Maisug,'on'te-
jecting the English translation of the confession of an illiterate farmer,
the Court said: "Such a multiple process of reading and translating the
questions and translating and typing the answers and reading and trans-
lating again the said answers is naturally pregnant with possibilities of
human, if unintentional, inadequacies and incompleteness which tender
the said confession unsafe as basis of conviction for a capital offense,
unless sufficiently corroborated."r4e6 This care also appears in a number
of recent cases where the Supreme Court has insisted that a plea of
guilty should be accepted only after the trial court has taken pains to
assure itself that the accused was well aware of the consequences and
full import of his plea.'oe7 Or, as one decision eloquently put it, "Even if
the confession of an accused is gospel truth, if it was made without the
assistance of counsel, it is inadmissible in evidence regardless of the
absence of coercion or even if it had been voluntarily given- The same
would necessarily apply to a waiver of the right to counsel not made in
the presence of counsel."r4e8
Moreover, although the word "confession" was used in the last
sentence of Section 20 of the lgT3Billof Rights, the protection covered
not only "confessions" but also "admissions."l4ee This is now explicit
in the 1987 text. The difference between confession and admission is
found in Rule I 30 of the Rules of Court. Admission is the "act, declara-
tion or omission of party as to a relevant fact" (Rule 130, Section 26)
whereas confession is the "declaration of an accused acknowledging
his guilt of the offense charged, or of any offense necessarily included
therein." (Rule 130, Section 33).
Confessions or admissions covered by the provision, however,
need not be explicit; they can be merely implicit in any evidence that is
communicative in nature. Clearly, for instance, it applies to participa-
tion in a re-enactment of the crime.lsoo Nor are photos of a reenactment
admissible.'s0r Similal'ly, the signature of an accused on a receipt ftrr
(1969).
'4527 SCRA742
t4%ld.
at753. .
taq
E.g.,people v. Apduhan,24 SCRA 798 (1968); People v. Valera,43 SCRA 207 ( I 972).
raesPeople v. Penillos,205 SCRA 546,562 (1992); People v. Rodrigueza, 205 S(lRA 791
(r9e2).
raeSession of November 25, I 972.
rn)People v. Olr,fs, 154 SCRA 525'526 ( l9lt7).
't"'Pe6plc v. Jurrgco, ltt6 S('RA 7 1.1 ( l99O).
Sec. 12 ART. III - BILLOFRIGHTS 483
seized property'5o'zor marijuana cigarettes where the accused wrote his
narnets03 is not admissible. A signature in the Booking Sheet and Arrest
Report, however, is not an admission of guilt but only of the fact of
booking and arrest.'5*
Against whom are illegal confessions and admissions inadmis-
sible? The text makes them inadmissible "against him," that is, against
the source of the confession or admission. And it is he alone who can
ask for exclusion.'50'They are, however, admissible against the person
violating the constitutional prohibition,',ou to the extent that admissibil-
ity is allowed by the ordinary rules on evidence.'50'
It should also be noted that the exclusionary rule found in Section
12 is not couched in the same language as the exclusionary rule in Sec-
tion 3. Section 3 makes evidence illegally obtained "inadmissible for
any purpose in any proceeding." Section 12 says that confessions made
in violation of the section and of Section 17 "shall be inadmissible in
evidence against him." It might be asked whether the text of Section 12
could be open to the narrowing process which the Miranda rule seems
to have undergone inAmerican jurisprudence. For instance, in Harris v.
New York,u''the Burger Court held that Miranda merely bars prosecu-
tion from using illicitly obtained admission as direct proof of guilt but
does not bar the use of such evidence to impeach the credibility of the
accused. It is submitted, that the narrowing process allowed in Harris
should not be accepted. The text ofSection 12 is general enough to al-
low a strict construction against government. Moreover, considering
that involuntary testimonial evidence is a more serious affront to hu-
man dignity than illegally obtained real evidence, the absolute inadmis-
sibility provided for in Section 3 should also be read into Section 12,
and with greater reason, since involuntary confessions also affront the
's"rPeople v. Morico, G.R. No. 92660,luly 14, 1994; People v. de Guzman, G.R. No.
86172. March 4, 1991; People v. De las Marinas, G.R. No. 87215, April 30, 1991; People v. Ban-
din, September 10, 1993.
'50'People v. Enriquez, Jr., C.R. No. 90738, December 8, 1991 . But where an accused is not
being prosecutetl for posscssion of marked bills, there is no self-incrimination if the marked bills
are prescntcd. Peoplc v. Linsangan,C.R. No.8tl589,April I6, 1991.
''"'rl'coplc v. Iltntlin, Scptcnrbcr 10, 1993.
''"'l'coplc v. llulistclos,217 S('l{A 499 ( 1994).
''""Scssion ol Nove ttttrct 2-1 ,I9'l2.
In'/l Rli('( )ltl ) (r1t5"6. 7.t4-(r.
Inx'l(ll ll.S..l,l.l 11t1'7 1,
 THE 19STCONSTITUTION
484
OFTHE REPUBLIC OFTHE PHILIPPINES
right of privacy protected by Section 2.In fact, in Aballe v. People,t50e
a bloodstained knife which had been found as a consequence of an un-
counseled extrajudicial confession was barred from admission.
8. Retroactivityorprospectivity?
After the Escobedo-Miranda rule was promulgated, the United
States Supreme Court was faced with the question whether the rule
should be given retroactive affect or prospective effect only. ln Johnson
v. New Jersey,"'o after an analysis of cases, some of which gave retro-
active effect and others merely prospective effect to newly formulated
rules of criminal procedure, the Supreme Court arrived at the conclu-
sion that the Escobedo-Miranda rule should be applied only prospec-
tively. Hence, it was made applicable only to trials begun after the rule
was announced. It was not made applicable to cases tried before the
Escobedo-Miranda decision even though these cases might still be on
appeal at the time of the Miranda-Escobedo decisions.
Section 20 of the 1973 Constitution, to the extent that
the Escobedo-Miranda rule, also posed the question of retroactivity or
prospectivity. But before answering the question, a prior question must
be answered: How much of Section 20, now Section 12(1), is really
new?
The generic prohibition of self-incrimination implicit in the rule is
not new. Neither is the inadmissibility of coerced extra-judicial confes-
sions a new rule.rslr The inadmissibility of confessions whose involun-
tariness arises from the defendant's failure to appreciate the full import
of his admission is not a new rule either."" The only portion of the rule
which certainly presented the problem of retroactivity under the 1973
text was the second sentence of Section 20: "Any person under inves-
tigation for the commission of an offense shall have the right to remain
silent and to counsel, and to be informed of such right."
This sentence of Section 20, adopting the Escobedo-Miranda rule,
rejected People v. Jose.It was thus a new rule. It should be noted, how-
ever, that it was new not in the same sense that the Escobedo-Mirandu
r50qC.R. No. 64086. March 1.5. 1990.
riroll4 [I.s. 7 I9{ I966).
r\rrltcolllc v. llirgirsrrlrr,.rayrrrr, tulg 5(r irttrl itctrrrttpitttyinll tlist ttssion,
''".\il/,1,1, lt(ll('s \() iriltl lill, irrttl ik ( ()iltl)lIyinl'. l('rl
ART, III - BILL OF RIGHTS
Sec.12 Sec. 12
rulewasnewtoAmericanjurisprudence.onthepremisethatthejudi-
ciarycannotmakenewconstitutionalrulesbecauseithasnoauthority
can only be
to amend the constitution, the Escobedo-Miranda decision
readasanaffirmationbytheSupremeCourtofaconstitutionalrule
thathadallalongbeenimbeddedinthebroadgeneralityoftheFifth
Amendmentguaranteeagainstself-incrimination.Thus,theEscobedo-
Mirandadecisionswereanafflrmationthatpriordecisionsmadenot
tainted with
in conformity with the Escobedo-Miranda rule had been
constitutional error. The question thus was whether
to disturb these
decisionswhich,thoughtaintedwithconstitutionalerror,hadalready
become final.
ThenewnessoftheEscobedo-MirandaruleintheformerSec-
Court
tion 20, however, was different'By People v' Jose' the Supreme
hadalreadyestablishedthattheEscobedo-Mirandarulewasnevera
partofthePhilippineConstitutionallawunderthelg35Constitution.
and not
H"n"", the second sentence of Section 20 was a truly new rule
it adopted just the activation of a constitutional rule that had been there all along'
which did
therefore, philippine decisions under the 1935 Constitution
notapplytheEscobedo.Mirandarulewerecorrectdecisionsandshould
not be disturbed.
The question of retroactivity was settled in the first
important Su-
premeCourtdecisiononthenewlgT3provisiononcustodialinves.
that the new
iigation, Magtoto v. Manguera.tsr' It established the rule
piovision should only opeiate prospectively from the date of effectivity
tf th" n"* Constitutiron, Juno-y 17 ,lg73.The dissents of Justices Cas-
tro,Teehankee,andFernandoarguingforretroactivityoftheruleare
the Court now
persuasive; but the issue is now regarded as closed and
applies Magtoto where necessary as a matter of course'rslo
g.Penalandcivilsanctions,compensationandrehabilita'
tion.
Sectionl2(4)says:..Thelawshallprovideforpenalandcivil
to and
sanctions for violations of this section as well as compensation
and their fami-
rehabilitation of victims of torture or similar practices,
rrrrlrl s(.RA4 (Mnrch 3. lt)'75).
''r'lj.g., Itcoplc v. Jitttctrcz.(i l{' No 4(xr'/'/'
Mly }I' I()7(r
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
lies." The provision came about as an outgrowth from the conviction
that, in law and most of the time, the victim is the forgotten orphan.'s's
Civil sanction in the form of damages is, strictly speaking, already cov-
ered by the Civil Code provision on actionable violations of constitu-
tional rights. Penal sanctions are meant to be a deterrent against viola-
tions. And the compensation and rehabilitation provided for are social
welfare measures. The way the provision is worded, however, it will
need implementing legislation. And against the argument that the provi-
sion has no place in a Constitution, it was pointed out that these matters
are intimately connected with the rights guaranteed by the Constitution
and should see articulation in the Bill of Rights itself which guarantees
the inviolability of the rights.'''u
Src. 13. Alr, pnRSoNs, ExcEpr rHosE cITARGED wITIr oFFENSES
PUNISHABLE BY RECLUSION PERPETAA WHEN EVIDENCE OF GUILT IS
STRONG, SHALL, BEFORE CONVICTION, BE BAILABLE
SURETIES, OR BE RELEASED ON RECOGNIZANCE AS MAY BE PROVIDED
By LAw. TnB nrcnr ro BAIL sHALL Nor BE IMpAIRED EvEN wHEN THE
pRIvILEGE oF THE wRrr oF HABEAS coRpus N suspENDED. ExcBssrvp
BAIL SHALL NOT BE REQUIRED.
1. Right to bail.
The right to bail, which is a corollary to the right to be presumed
innocent, is, like the privilege of the writ of habeas corpus, another
means of immediately obtaining liberty. It also enables the accused to
prepare his defense. Bail is a "mode short of confinement which would,
with reasonable certainty, insure the attendance of the accused."rs'? If
capital offenses or offenses punishable by reclusion perpetua are not
made bailable, it is because frequently nothing short of confinement
can insure the attendance of one who expects to receive such sentenc-
es. "Where, however, the right to bail exists, it should not be rendered
nugatory by requiring a sum that is excessive. So the Constitution
corrllrlandq."tsls
'5t5I RECORD 701-2.
t516
I d. at.l o4_6,'1 37 _7, 7 40.
rsrTDe la Camarlv. Enagc. 4 I S('RA l, (r-7 | l9l I ) t i t i t t t! ('t r rt.trv.
r5r8/r,/. at 8. The hail in lhc cirsc wirs lixctl hy thc krwcr corrtl irl llrc ()lrlrng('()us irn()unl
ol- I' | .l ()5.2(X).(X).
Sec. 13 ART. III - BILL OF RIGHTS 487
Because of the importance of the right to bail both for the accused
and for the prosecution, certain duties are imposed upon the judge. Bas-
co v. Rapatalotste reiterates them thus:
(1) Notify the prosecutor of the hearing of the application
for bail or require him to submit his recommendation (Section 18,
Rule 114 of the Rules of Court as amended);
(2) Conduct a hearing of the application for bail regard-
less of whether or not the prosecution refuses to present evidence
to show that the guilt of the accused is strong for the purpose of
enabling the court to exercise its sound discretion (Sections 7 and
8, supra);
(3) Decide whether the evidence of guilt of the accused is
strong based on the summary of evidence of the prosecution;
(4) If the guilt of the accused is not strong, discharge the
BY SUFFICIENT
accused upon the approval of the bailbond. (Section 19, supra).
Otherwise, petition should be denied.
Particularly in cases where the accused is charged with a capital
offense, ahearing,mandatory in nature and which shouldbe summary or
otherwise in the discretion of the court, is required with the participation
ofboth the defense and a duly notified representative ofthe prosecution
for the purpose of ascertaining whether or not the evidence of guilt
is strong. The burden of proof is on the prosecution to show that the
evidence meets the required quantum. The prosecution must be given
an opportunity to present, within a reasonable time, all the evidence that
it may want to introduce before the court may resolve the application,
since it is equally entitled as the accused to due process. Likewise, the
petitioner has the right to cross-examine the witnesses and present his
own evidence in rebuttal. When, eventually, the court issues an order
either granting or refusing bail, the same should contain a summary
of the evidence for the prosecution, followed by its conclusion as to
whether or not the evidence of guilt is strong. The court, though, cannot
rely on mere affidavits or recitals of their contents, if timely objected to,
for these represent only hearsay evidence, and thus are insufficient to
establish the quantum of evidence that the law requires.'s2o
llr('l r5reA.M. No. RTJ-96-1335, Msrch 5, 1997.
r'IrMurzan-(ichcirt v. l"lores, A.M. No. KIJ-99- l48tl, Junc 20,2(XX)
 THE 1987 CONSTITUTION Sec. l3 ART. III - BILL OF RIGHTS 489
488
OF THE REPUBLIC OF THE PHILIPPINES

The quantum ofevidence needed in order to deny an

accused the murder. But she had no power to reduce or change the crime charged in
"strong evidence," This order to justify the grant of bail to the accused."rs24
right to tait i. described by the text simply as
hasbeenconstruedtomean"proofevident"or"presumptiongreat'" has also been held that a court cannot require a strictly cash
It
"Proofevident"or"evidentproof'inthisconnectionmeansclear' bond. The Court said in Almeda v. Villaluz:"2'
Strongevidencewhichleadsawell-guardeddispassionatejudgmentto
as charged' that [T]he condition that the accused may have provisional lib-
the clnclusion that the offense has been committed
probably be punished capi- erty only upon his posting of a cash bond is abhorrent to the nature
accused is the guilty agent, and that he will
of bail and transgresses our law on the matter. The sole purpose of
tallyifthelawisadministered...Presumptiongreat,'existswhenthe bail is to insure the attendance ofthe accused when required by the
circumstances testified to are such that the inference
of guilt naturally
court, and there should be no suggestion ofpenalty on the part of
to an unbiased
to be drawn therefrom is strong, clear, and convincing the accused nor revenue on the part of government. The allowance
judgmentandexcludesallreasonableprobabilityofanyotherconclu- of a cash bond in lieu of sureties is authorized in this jurisdiction
p,u"n though there is a reasonable doubt as to the guilt of accused'
,ioi. only because our rules expressly provide for it. Were this not the
that
if on an examination of the entire record the presumption is great case, the posting of bail bond by depositing cash with the court
cannot be countenanced because, strictly speaking, the very nature
accusedisguiltyofacapitaloffense,bailshouldberefused.Inother
of bail presupposes the attendance of sureties to whom the body
words,thetestisnotwhethertheevidenceestablishesguiltbeyondrea- of the prisoner can be delivered. And even where cash bail is al-
guilt or a great pre-
sonable doubt but rather whether it shows evident lowed, the option to deposit cash in lieu of a surety bond primarily
sumptionofguilt.Therefore,thecourtisministeriallyboundtodecide belongs to the accused.
show evident
which circumstances and factors are present which would
guilt or presumption of guilt as defined above'r52' If' moreover' the pros- In Herras Teehankee v. Rovira, it was established that since bail
ecution does not pr"r"nt evidence, the court may
ask the prosecution is constitutionally available to "all persons," it must be available to one
such questions as would ascertain the stfength
of the state's evidence or who is detained even before formal charges are filed'''u
judge the adequacy of the amount of bail'"'2 ... Ulndeed, if, as admitted on all sides, the precept protects
bail those already charged under a formal complaint or information,
The factors which must be considered in determining
are:
by law' char- there seems no legal orjust reason for denying its benefits to one
ability to post bail, nature of the offense, penalty imposed as against whom the proper authorities may not even yet conclude
of the accused' strength ol'
acter and reputation of the accused, health that there exists no sufficient evidence of guilt. To place the former
the evidence, probability of appearing for trial,
prior forfeiture of bonds'
in a more favored position than the latter would be, to say the least,
justice when arrested, whcthcr.
whether the accused *^ u fugitive from anomalous and absurd. If there is a presumption of innocence in
has no authority ltr favor of one already formally charged with criminal offenses . " a
under bond in other cases.r523 The judge, however'
changethecharacterizationoftheoffense,forinstance'frommurdcrlrr fortiori, this presumption should be indulged in favor of one not
investigation ilrttl yet so charged although already arrested or detained.
homicide...The case was before her for preliminary
admissionoftheaccusedtobail.Heronlyauthoritywastodctcrtttittt. But, of course, the person claiming the right must be under actual
whethertherewasprobablecauseagainsttheaccusedand,ifstl,wltcllt cletention or custody of the law.r527 One is under the custody of the law
that the chitrgc wrts lot
er the evidence of guilt was strong, considering

''ral)epanraylo v. ts()tarlo' A.M. No. M'l'J-92-7-31, November

29' 1996'
I'r'({r S('RA -}t{.43 (August (r, 1975).
No l3l{x)' I:obruary ltt' 1999' ''.','75 l)hi1. 6.14. 640. l ( l9,rt5 ).'l hc tlclay irr thc liling ol
lirlrD:rl chargcs wrs due lo thc largc
C R'
"t'p"oo1e v. Judge cabral,
nurnlx'r ol tlclitittt'es itwitiling invcslitrl:tliott irlicr lilrt'r:rlion.
- 'trLr1"n116yv.Judge('tmanao,Jr.,A.M.No.R'l'J'(x)-1522.'l:ttttritryl()'l(xx)
r'?'sttngit v. Jrrtlgc S:rlrrl, lo() S('RA 251(Novcltthct l()' l98l)
'l'lte h:ril lxrtttl rkr lirrr''l r.,/Mirrri;1btrsv.l.rrrur.()lll'hil.,l(r(r(l(l,l(r)lli'liciirrurv.l'ltsitrtl:ttt,l, l'1657,.lrrly ll.l()(rl:
Mcttrlrrit v ('otttl ol littsl lttslittttr', \l S('liA l(l) ( l()/ l)
illcglrlhcrcwrrsl'lttlXX),lilrttttrll'li.ttscllrrrrislrirhlcwilhlrrrcrl||'5lXX)lrrl'l()IXl(}.

490 THE I98TCONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
either when he has been arrested or has surrendered himself to the ju-
risdiction of the court, as in the case where through counsel petitioner
for bail who was confined in a hospital communicated his submission
to the jurisdiction of the couft.r'8 And if granted bail, the accused does
not necessarily have the right to leave the country. As a necessary con-
sequence of the bail bond, which is intended to make a person available
any time he is needed by the court, a court may prevent a person admit-
ted to bail from leaving the country.''eAnd when a person who is out on
bail is convicted, the bondsman must surrender him.'30
It is a general rule, too, that the constitutional right to bail is avail-
able only in criminal proceedings. Thus, it has been repeatedly held
that respondents in deportation proceedings, which are administrative
in nature, do not enjoy the right.rs:r The case of the White Russian,
Mejoff,''' however, presented a peculiar situation. More than two years
had elapsed since the order of deportation became final and Mejoff was
still under detention because no country would accept him. On ahabeas
corpus petition, Mejoff was ordered released under a bond. The Court
declared that the "protection against deprivation of liberty without due
process of law" was not limited to citizens of the Philippines.Appealing
to Article II, Section 3 of the 1935 Constitution whereby the Philippines
"adopts the generally accepted principles of international law as part of
the law of the nation," the Court thought it proper to apply principles
of freedom found in the Universal Declaration of Human Rights ap-
proved by the General Assembly of the United Nations on December
10, 1948.'',
Comendador v. De Villats34 also held that the right to bail has tra-
ditionally not been recognized and is not available in the military, for
which reason the right to speedy trial is given more emphasis. The deci-
sion was made in the context of the rash of coup attempts which plagued
r528Paderanga v. Court
ofAppeals, G.R. 1 15u107, August 28, 1995.
r52\4anotoc, Jr. v. Court ofAppeals, 142 SCRA 149, 153-154 (1986).
rssPeople v. Reyes, G.R. Nos. l0l127-31, AugustT
,1992.
t53rE.g., Tiu Chun Hai v. Deporlation Board,99 Phil. 1028 (1956)i Ong Hee Sang v. Com-
missioner of Immigration, L-97ffi, February 28, 1962: Republic v. Ckrribel, L-20458, October
3t,1963.
r53zMejoff v. Director of Prisons,90 Phil. 70 ( 195l).
l l2 ( l94tt). 'l'hc
t5t3ld. at'TS44. The Court relicd on Staniszewski v. Wutkins, ll0 l;. Srrpp.
samcrulingwasmadcinBorovskyv.(irrnnrissiont:rol lnrrrrigrutiorr,tXll'lril, lO7(1951).
11h2(X)
S('R A ll0 ( 199 I ).
ART. III - BILL OF RIGHTS 491
Sec. 13 Sec. 13
the Aquino government. The rationale for this rule was expressed
by the
Solicitor General thus' 1535
The unique structure of the military should be enough reason
to exempt military men from the constitutional coverage on the
right to bail.
Aside from structural peculiarity, it is vital to note that muti-
noussoldiersoperatewithintheframeworkofdemocraticsystem,
are allowed the fiduciary use of firearms by the government for
the discharge of their duties and responsibilities and are paid out
of the revenues collected from the people. All other insurgent ele-
ments carry out their activities outside of and against the existing
political system.
National security considerations should also impress upon
this Honorable court that release on bail ofrespondents constitutes
adamagingprecedent.Imagineascenarioofsayl,000putschists
roaming the streets of the Metropolis on bail' " ' The sheer number
aloneisalreadydiscomforting.But,thetrulydisquietingthought
is that they could freely resume their heinous activity which could
verywellresultintheoverthrowofdulyconstitutedauthorities,
inciuding this Honorable Court, and replace the same with a sys-
justice'
tem consonant with their own concept of government and
has also been held that the right to bail may be waived even
It
implicitly in an irrecoverable manner. Thus People v. Donato|s36 held
ttrat ttre accused waived his right when he agreed "to remain in legal
custody during the pendency of the trial of his criminal case." One
won-
ders, however, if the fact that the elusive Kumander salas of the New
People's Army was the accused influenced the decision'
But the grant of new trial does not negate strong evidence of guilt
aSfoundbythelowercourt.Norishumanitariangroundonthemere
claim of illness or old age is a ground for discretionary grant of bail.
This is specially so were there is a finding on record that the accused
may repeat the offense (pedophilia)."3?
at g6_ Justicc sarmiento dissented saying that the right belongs to'rall
r113ft.1. persons.
r1\1.R. No.79269, Junc 5' 1991.
rrul)c()plc v. t;itzgcnrkl, (i.R. No. l4()723' ()ctohcr 27' 2fi)6'
 THE 1987 CONSTITUTION Sec.
OF THE REPUBLIC OF THE PHILIPPINES
It has also been asked whether the "conviction" which terminates
the constitutional right to bail must necessarily be a final conviction.
Both People v. Follantesrs3s and Reyes v. Court of Appealsts3e answered
the question in the negative. The former reflected the Code of Civil
Procedure and the latter the Rules of Court, successor to the Code. A
contrary opinion was expressed by Perfecto in dissent;r540 and, in Ching
v. Ysip J'o' involving the right to bail after an appeal by a minor upon be-
ing sentenced to detention in a reform institution, the Court said: "There
is no reason why a minor should be excluded from the benefits of the
constitutional and legal provisions on bail." Justice Tuason, concurring,
added that "one cannot de denied the constitutional right to file a bail
bond before a final conviction simply because the place of incarceration
is called a school. . . .)' ts42 These statements, however, were made obiter
because, in fact, bail had been granted and it was the harassed father of
the minor who was contesting the right to bail. The better doctrine is
that after conviction by the trial court, when presumption of innocence
terminates, the constitutional right to bail should also terminate. More-
over, in the case ofone punishable by death or reclusion perpetua,the
conviction by the trial court is indication that the evidence of guilt is
strong.r543 Thereafter, the grant of bail should be left to judicial discre-
tion.
The question of how the constitutional right to bail operated [un-
der the 1935 Constitutionl was the subject of the resolution in Montano
v. Ocampo.ls( The Court said that three elements must be satisfied in
order to come under this exception: (1) the offense charged must be
capital [now punishable by at least reclusion perpetua]a (2) the evi-
dence of guilt must be strong; (3) "it must appear that in case of convic-
tion the defendant's criminal liability would probably call for capital
punishment."'a5
n3863 Phit. 47 4, 475 (I 936).
r$,83 Phil.658 (1949).
tsqld. at 662.
154177
Phil. 848,849 (t947).
tsa2ld.
at 851 .
''o3Peofle v. Divina, 221 SCRA 209 ( 1993)
I5{49 O.G. 1855 (t953).
ts45ld.
l3 Sec. 13 ART, III - BILL OF RIGHTS 493
A later case, howevet, Magno v. Abbas,"a6 made no mention of
the third requisite found in Montano. This requisite, it should be noted,
does not explicitly appeaf in the constitution. considering, moreover,
that the summary hearing for the grant of bail cannot be thorough, the
Magno omission is a reasonable modification. Thus, for the purpose
of determining whether an offenses punishable by reclusion perpetua,
what is determinative is the penalty provided by law regardless of the
attendant circumstances. To require more than that would practically
entail a full dress trial thereby defeating the purpose of bail which is to
enable the accused to obtain liberty pending trial.r54?
A distinction must be made between the penalty of "life impris-
onment" and reclusion perpetua. (1) Life imprisonment is a penalty in
special laws while reclusion perpetua is imposed by the Revised Penal
Code; (2) life imprisonment does not carry accessory penalties, where-
as reclusion perpetua does; (3) life imprisonment is indefinite, whereas
reclusion perpetua is for 30 years after which the convict is eligible for
pardon. The distinction is important because under the 1985 Rules on
Criminal Procedure a person charged with an offense punishable by
.,life imprisonment" was entitled to bail as a matter of right. However,
effective October I,l994,Rule 114 was amended placing "life impris-
onment" on the same level as death and reclusion perpetua.ts4s
Since the right to bail partly depends on the quantum of evidence
of guilt, Marcos v. Cruztsae established the rule that the prosecution has
the burden of proving the non-existence of the right to bail. The Anglo-
Saxon rule that presentment of indictment raises presumption of guilt
and destroys presumption of innocence was adjudged inapplicable in
the Philippines where the accused does not enjoy the benefit of a grand
jury hearing.r5sO The prosecution must show that there is strong evidence
of guilt of a capital offense [now of an offense punishable by at least
re c e t ua. Evidence char acteized merely as " suffi cient" does
lus i o n p e r p
not satisfy the constitutional requirement.rssrAnd if the charge is murder
and the evidence only indicates homicide, which is not a capital of-
'56t3 SCRA 233 (1965).
rra?Peoplc v. Intermediatc (burt of Appeals, 147 SCRA 219 (1987)'
rso'Cardines v. Rosete,242 S(lRA 557,562 (1995).
r14e67 l)hil. 83 ( 1939).
I
r'.,'/r/. tt ll9.'l'hc luling hclc on brrrrh:rr ol ptool is otnhxlitxl in Rulc I 14, Scction 5, Rules
I
ol ( ilrrl ,
j
r"r litrrgc v. Wutrlctt ttl l )ttvtttt ('rry, ti) l'lril. 2 l, 2tt 2() ( l ()4tt).
I
i
I
 494 THE I9STCONSTITUTION Sec. 13 Sec. 13 ART, III - BILL OF RIGHTS 495
OFTHE REPUBLIC OFTHE PHILIPPINES

fense, the right to bail is not lost.'552 The word "strong,,' however, does or
a protracted trial which gave no indication of early terminationr563
not mean that the prosecution must present proof beyond reasonable be"aure of the health of ihe accused which necessitated special
hospi-
doubt.rs53
talization.l5s
The constitutional right to bail necessarily includes the right to a
Bail in extradition
hearing.r$4 When bail is denied without a hearing, a fundamental right
is violated.'ssr Hence, the presentation of evidence for the prosecution In extradition case of United States v' Judge Puruganan' the Court
the poten-
in private inquiry, in the absence of the detainee, and the subsequent held that since a bail proceeding was not criminal in nature,
issuance of an order on the basis of the private inquiry, cannot be al- tial extraditee was not entitled to bail'
lowed.1556 The hearing, however, need not be separate and distinct from
Later,however,inRodrigueTv'Judge,''65thecourtsaidthatafter
the trial itself."" And it need only be summary.r558 The right to a prompt not a flight risk,
his arrest and if the trial court finds that an extraditee is
hearing is waived by agreeing to postponements.ri5e
thecourtmayhimbail.Inthiscasethegrantofbailpresupposedthat
It should be added, however, that parallel to the accused,s right to a co-petitioner, the wife, had already presented evidence
to prove her
a hearing is the prosecution's right to present evidence. If the prosecu- rightio be on bail, that she was no flight risk, and the trial court had
determined that
tion is denied such right, the grant of bail is void.,56o aireaAy exercised its sound discretion and had already
to
Although the judge is under legal obligation, upon proper applica-
underihe Constitution and laws in force, co-petitionff was entitled
tion, to receive evidence with a view to determining the right to bail in
provisionalrelease.TheCourtemphasizedthatbailmaybegrantedto
a possible extraditee only uponconvincing showing (1) that
a clear and
the appropriate cases, the determination of the weight of the evidence and (2) that
he will not be a flight risk or a danger to the community'
is discretionary with him and its outcome cannot be compelledby man-
there exist special, humanitarian and compelling circumstances'
clamus.ts6t The discretion of the judge, however, is "neither absolute
nor beyond control." It must take into consideration "the purposes of In a later case the court said that it could not ignore the following
pertinent constitutional and statutory provisions and the rules of the trends in international law: (1) the growing importance
of the individual
20th century' has gradu-
Supreme Court, all supplemented by the principles of equity and jus- person in public international law who, in the
being given
tice, that are deemed to be part of the law of the land."rs62 Thus, even in ally attained global recognition; (2) the higher value now
a case where evidence of guilt in capital offenses hacl been found to be to iuman rights in the iniernational sphere;
(3) the corresponding duty
strong, the court nevertheless found itself justified in ordering releases of countries to observe these universal human rights in fulfilling their
the rights of
on bail either because the prisoner had been confined very long during treaty obligations; and (4) the duty of the court to balance
and the law on
the individual under our fundamental law, on one hand'
deportation
extradition, on the other.It added, "If bail can be granted in
r552Bernardez v.
9l I (1962).
Valera, 4 SCRA
Is5rPareja v.
Gomez,5 SCRA 830,833 (1962).
casesnweseenojustificationwhyitshouldnotalsobeallowedinex-
where the
,ss67 Phil. 83,87 (1939). tradition cases. After all, both are administrative proceedings
innocence or guilt of the person detained is not in issue'"r566
rs5sPeralta
contraRamos,TlPhil.2'71,273 09aD; Ocampo v. Bernabe,77 phil.55,5lt
(1946); Beltran v.Diaz,1'| Phil. 484,490 (1946).
The decision modifies the earlier case of Judge Puruganan'
rs$Herras Teehankee v.
Director of Prisons, 76 phil. 756, 780-3 ( I 946).
r55TGerardo v.
Judge of CFI of Ilocos No(e, g6 phit. 504, 506 ( 1950).
IsssOcampo v.
Bemabe,77 Phil.55,62 (1946).
rsseivlufloz v.
Rilloraza, 83 Phil. 609, 6 I I ( I 949).
rsoBorinaga v. Tamin, 226
SCRA 2O6 (1993); People v. Burgos, C.R. 92739, Auliusr .1,
1991. People v. San Diego,26 scRA 522 (1968): Mendoza v. courr of Firsr Instancc..5l li('RA t16\ll.
369 (19?3). ' r'"rl)c lu Rittrtt v. I)coplc's (\rurt' 77 Phil 46l ( 1946)
rs6rPayao v.
l,csaca,63 Phil.2lO,2l4 5 ( l9t(r). r"''Rrxlrigttcz v. Jrrrlgc' ( i l{ No l57()77' lrchrttary 21 '20116'
r$2Pcoplc v. Alano, tll lrhil. 19. 2l (l94tl).
'"'( iov'l'ol l Lrttlr.hott[ v ( tlrrlirr, ( i l{ No l 5 l(r'l5' April l9' ?(X)7'
 497
Sec. 14
ART. III - BILL OF RIGHTS
THE I987 CONSTITUTION Sec. 13
OF THE REPUBLIC OF THE PHILIPPINES
bail. They include ability of
2. The 1987 provision. which must be considered in determining
the offense' the penalty imposed
the accused to post bail, the nature of
accused' the health of the
The abolition of the death penalty by the l9B7 provision necessi- by law, the characte, unO '"putution of the
the probability of the accused's
tated a modification of the provision on the right to trail. The old provi- accused, the strength of the evidence'
accused was a fugi-
sion which allowed for non-bailable capital offenses has been replaced for triallthe forfeiture of bonds' whether
"pp*ti"g the accused is under bond in
by one which makes offenses punishable by reclusion perpetua non- tive from justice when arrested, whether
bailable when the evidence is strong And now that the death penalty othef cases.tsT2
has been restored, offenses punishable by at least reclusion perpetua
PERSoN sHALL BE IIELD ro ANSwER
FoR A
remain non-bailable when the evidence of guilt is strong. Snc. 14. (1) No
CRIMINAL OFFENSE WITHOUT DUE PROCESS OF LAW'
All other requisites for non-bailability
under the old provision sHALL
have been preserved. The understanding, moreover, was that, should (2) cRIMINAL PRosEcurIoNSt THE ACCUSED
Ix l.r-r'
BE PRESUMED INNOCENT UNTIL
TIIE CONTRARY IS PROVED' AND SHALI'
Congress revive the death penalty, capital offenses would also be non-
ENJOY THE RIGIIT TO BE HEARD
BY HIMSELF AND COUNSEL' TO BE
bailable.'s'
CAUSE OF THE ACCUSATION AGAINST
INFORMED OF THE NATURE AND
AND PUBLIC '[RIAL' TO MEET
The other innovation introduced by the 1987 Constitution is the HIM' TO HAVE A SPEEDY' IMPARTIAL'
FACET AND TO HAVE COMPULSORY PROCESS
rule that the suspension of the privilege of the writ of habeas corpus TIIE WITNESSFS FACE TO
AND THE PRODUCTION OF'
does not suspend the right to bail. This rejects a martial law ruling of TO SECURE TITE ATTENDANCE OF WITNESSES
AFTER ARRAIGNMENTT TRIAL
the Supreme Coult.r568 EVIDENCE IN HIS BEI{ALF. Hownvnnr
THE ABSENCE OF THE ACCUSED
MAY PROCEED NOTWITHSTANDING
Finally, aside from bail, the 1987 Constitution also recognizes..re- DULY NOTIFIED AND HIS FAILURE TO
PROVIDED THAT T{E HAS BEEN
cognizance as may be provided by law" as another instrument for ob- APPEAR IS UNJUSTIFIABLE.
taining release from detention. Recognizance is an obligation of record
entered into before a court guaranteeing the appearance of the accused
1. Due Process in criminal cases'
for trial. It is in the nature of a contract between the surety and the
state.r56e The details on how recognizance can be obtained or when it is Theadvisabilityofretainingthedueprocessclausein.paragraph
Constitutional Commis-
applicable is left to legislation.lsTo (1) came up for Uriei di'cussionly the 1986
was already adequately covered
sion.It was pointed out that the subject
3. however' was preferred
Excessive bail. by Section 1. The ,"i"ntion of the provision'
of the provision. commissioner
The right to bail can be rendered useless by a bail bond set at an for reasons extraneous to the substance
to delete this now because we
exorbitant amount. Hence, the Constitution prohibits "excessive bail." Bernas noted: "I do not think it is timely
very little respect for due
Thus, bail fixed by a lower court at Pl,195,200.00 was found to render i""":t" experienced a period when there was to delete this might give
For us now
the right nugatory.rsir But whether or not bail is excessive is relative ;;;;;t. in criminal proceedings' reducing their rights'"r5?r How-
to various factors. The court has had occasion to set down the factors the message to the people thai we are
stand alone' it was put together
ever, instead of letting'the provision
was Section 19 of the 1973
with the present ,""oid purug'uptr which
RECORD
.7
65_.7 69.
Constitution.
's67I
r56sGarcia-Padilla v. Enrile,
G.R. Nos. 60349-62, December 29, 1983.
r56ePeople v. Abner,
87 Phil. 569.
Albano v. Villasefior'
*-:;;-"J".18c S.lutl, l0() s(.RA 253 (N.vcmber lg, lgg l), r'iring
r57ol
RECORD at 675.
'5TrDe la Cfunar" u. Enagc.4l SCRA l ( 197 l). sirnilarly,t bail bontl ol l,ltllXX) lirrln ol' 2l S('l{A.ll2 (Scptctrtbcr' 2(), l()(r7)
lcnsc punishahlc rvilh yl'i,rirlr ntovr tt' u litrc ol l'5IXX) to I'IOIXX) or bollt wrrs lixrnrl cxt.cssivc rr/il Rl'(,( )l{l ) 7(r4.
Sttttg,;t v..ltrtlge Srrlurl, l(l() S('RA 25 I 1 1r)i1 L
 498 THE 1987 CONSTITUTION Sec. t4 Sec. 14
ART. III - BILL OF RIGHTS
OF THE REPUBLIC OF THE PHILIPPINES

A simple statement of the requirements of due process was made that a person has a
process, meant nothing more than the requirement
in U.S. v. Ocampo:rs?a rules of criminal
right to be tried by a cJurt bound by the constitutional
As the Court recently said in Nufiez v' Sandiganbayan't5,e
The requirement that no person shall be held to answer for a ;il"dt*
'Jo" .,informed as to why he is pro-
criminal offense without "due process of law', simply requires that pro""r, is satisfied if the accused is
against and what charge he has to meet'
with his conviction
the procedure established by law be followed. If that procedure
fully protects life, liberty, and property of the citizens in the state,
"""d"d
beingmadetorestonevidencethatisnottaintedwithfalsityafterfull
being imposed in ac-
then it will be held to be due process of the law. oppJrtunity for him to rebut it and the sentence
cordance with a valid law' It is assumed'
of course' that the court that
It will jurisdiction'"
be noted that due process in this passage is procedural due rendered the judgment is one of competent
process. Even U.S. v. Grant,t575 which spoke of giving a ..comprehensive rights of the ac-
interpretation" to the clause, limited the concept to procedure.rsT6 Not easily subsumable under the more speciflc
In Cruz v' Salva"sto the
cused is the right against trial by publicity'
the publicity and sensation-
The phrase "due process of law," used in the philippine Bill, Court, "greatly disturbed and annoyed" by
limited itself.to a censure
should receive a comprehensive interpretation, and no procedure alism eriploy"A Uy the Fiscal of Pasay City'
fi1s precise argument
should be treated as unconstitutional which makes due provision of the erring offlcer. ln Martelino v' Alejandro'rser
for the trial of the criminal before a court of competent jurisdic- publicity was raised by the ac-
of denial oia fair trial through adverse
tion, for bringing the party against whom the proceeding is had case was an off-shoot of what
cused in a court martial proc-eeding' The
into court, and notifying him of the case he is required to meet, .corregidor Massacls."tst: The court'
had come to be referred io as the
for giving him an opportunity to be heard in his defense, for the saying:'s83
deliberation andjudgment of the court, and for an appeal from that however, rejected the contention of the accused
judgment to the highest tribunal of the state for hearing and judg- case before us did not focus
[T]he spate of publicity in this
ment there.
on the guilt oi the petitionerrbut rather on the responsibility of the
to be a "massacre" of Muslim
Government tor *f'at was claimed
It may be concluded, from the narrowed concept of Ocampo and by newspaper" at all' it was not of
ffainees. If there was a "trial
Grant,that the criminal due process clause of the Bill of Rights presup- Absent here is a showing
the petitioners but of the Government'
poses that the penal law being applied satisfies the substantive require- protect the accused from massive
of failure of the court-martial to
ments of due process. As to procedural due process, it may be noted connected with the conduct of the
publicity encouraged by those
the release of information or to
that, while the right to appeal is statutory, once it is granted by law, its trial either Uy a fiilure to control
or to postpone it until the deluge
suppression is a violation of due process.r577 remove the trial to another venue
we cannot say
ofprejudicial publicity shall have subsided' Indeed'
It will also be noted from the passages in Ocampo and Grant that that the trial of the p"iition"tt was being held under circumstances
the rights enumerated there and subsumed under due process can just imperative decencies
which did no, p"t-i"h" observation of those
as validly be subsumed under one or other of the specific procedural with due process'
of procedure *t i"h hane come to be identified
guarantees given by the constitution. Even the refusal of the court.
in Scoty's Department Store v. Micaller,rsts to allow an administrativc
body to impose a penalty, on the ground that to do so would violatc duc
3,452-453 (Januarv 30, 1982)' citingYen v'
People' 31 scRA 1llJll
ffiAR;43
(FebruarY 18, 1970).
rsu)106 Phil. I l5l (1959).
r5?418 Phil. 1,41 (1910). rrtr12 e(ftA t09 ( l97O).
President
rt518 Phil. 122(1910). r."rllccausc .rt ,"p.rrt".t killing,s ol'conrmanclo trainees on Corregidor Island,
ts16ld.
at l!4. M"t"lt 22' 1968' directcd the creation of a court-martial
M;trcos ortlcrcrl a,r invc'tigltitxt ontl"t'n
'"tTan v. Peoplc, C.R. No.
r57t99
14t3194, April t2, 2002 l() lry wlxnlls(rver rrril"lrl lx: rcslxrnsiblc lirr thc killings'
I'hil. 762 ( 1956). rrxr 12 \1.1{A 111 I 15.
 TI{E 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
As the Court would say in a later case, ,,to wiurant a finding of
prejudicial publicity there must be allegation and proof that the judges
have been unduly influenced, not simply that they might be, by the bar-
rage of publicity." "Petitioners cannot just rely on the subliminal ef-
fects of publicity ... because these are basically unbeknown and beyond
knowing."ts8a The Court added:
Be that as it may, we recognize that pervasive and prejudi-
cial publicity under certain circumstances can deprive an accused
of his due process right to fair trial. Thus, in Martelino, et al. vs.
Alejandro, et al., we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have
been unduly influenced, not simply that they might be, by the bar_
rage of publicity. In the case at bar, we find nothing in the records
that will prove that the tone and content of the publicity that ar
tended the investigation of petitioners fatally infected the fairness
and impartiality of the DOJ panel. petitioners cannot just rely on
the subliminal effects of publicity on the sense of fairness of the
DOJ Panel, for these are basically unbeknown and beyond know_
ing. To be sure, the DOJ Panel is composed of an Assistant Chief
State Prosecutor and Senior State prosecutors. Their long experi_
ence in criminal investigation is a factor to consider in determining
whether they can easily be blinded by the klieg lights of publicity.
Indeed, their 26-page Resolution carries no indubitable indicia of
bias for it does not appear that they considered any extra_record
evidence except evidence properly adduced by the parties. The
length of time' the investigation was conducted despite its sum_
mary nature and the generosity with which they accommodated
the discovery motions of petitioners speak well of their fairness.
At no instance, we note, did petitioners seek the disqualification of
any member of the DOJ Panel on the ground of bias resulting from
their bombardment of prejudicial publicity.
Moreover, the effect of publicity on judges cannot be presumed
especially since, unlike jurors, judges are trained professionals.'5s,
The subject came up again in the trial of former president Joseph
Estrada.'s6 Estrada asked the court to enjoin the trial on the ground of
prejudicial publicity. The court began its discussion by citing two dif-
r5saWebb
vde Leon, G.R. No. 121234, August 23, 1995.
r5E5People
v. Teehankee, Jr., C.R. Nos. ll l206{)tt, Octobcr 6. 1995
r5E6Estrada
v. l)csierkr, ct :r1., ( i.R. Nos. I 4(r7 lO I 5, Mureh ?, ..1(X)2
Sec. 14 Sec. 14 ART. III - BILL OF RIGHTS 501
ferent approaches to adverse publicity: the British approach which pre-
sumes that publicity will prejudice a jury, and the American approach
which looks with skepticism on the potential effect of publicity on the
right to a fair trial and which requires "substantial probability of irrepa-
rable harm, strong likelihood, clear and present danger, etc'"
The court next followed with a review of Philippine decisions
indicating adherence to the American approach. Then it concluded
that there is not enough evidence to warrant this Court to enjoin
the preliminary investigation of the petitioner by the respondent
ombudsman. Petitioner needs to offer more than hostile headlines
to discharge his burden of proof. He needs to show more weighty
social science evidence to successfully prove the impaired capac-
ity of a judge to render a bias free decision. Well to note, the cases
against the petitioner are still undergoing preliminary investigation
by a special panel of prosecutors in the office of the respondent
Ombudsman. No allegation whatsoever has been made by the pe-
titioner that the minds of the members of this special panel have
already been infected by bias because of the pervasive prejudicial
publicity against him. Indeed, the special panel has yet to come
out with its findings and the Court cannot second guess whether its
recommendation will be unfavorable to the petitioner'
The records show that petitioner has instead charged respon-
dent Ombudsman himself with bias. To quote petitioner's submis-
sion, the respondent Ombudsman "has been influenced by the bar-
rage of slanted news reports, and he has buckled to the threats and
pressures directed at him by the mobs." News reports have also
been quoted to establish that the respondent Ombudsman has al-
ready prejudged the cases of the petitioner and it is postulated that
the prosecutors investigating the petitioner will be influenced by
this bias of their suPerior.
Again, we hold that the evidence proffered by the petitioner
is insubstantial. The accuracy of the news reports referred to by
the petitioner cannot be the subject ofjudicial notice by this Court
especially in light of the denials of the respondent Ombudsman as
to his alleged prejudice and the presumption of good faith and reg-
ularity in the perfbrmance of official duty to which he is entitled'
Nor can we adopt the theory of derivative prejudice of petitioner,
i.e., that thc pre.iudice of rcsptlndent Ombudsman flows to his
suhorclinatcs. ln truth, our Rcvisctl Rules of Criminal Pr<rceclure
givc irrvcsligutirrg llnrscr:rrtors tltc itttlt:pcntlcttcc ttt ttlitkc tltcit'rlwtt
 THE 1987 CONSTITLTTION
OF THE REPUBLIC OF THE PHILIPPINES
findings and recommendations albeit they are reyiewable by their
superiors. They can be reversed but they can not be compelled to
change their recommendations nor can they be compelled to pros-
ecute cases which they believe deserve dismissal. In other words,
investigating prosecutors should not be treated like unthinking slot
machines. Moreover, if the respondent Ombudsman resolves to
file the cases against the petitioner and the latter believes that the
finding of probable cause against him is the result of bias, he still
has the remedy of assailing it before the proper court.
Another aspect of due process, so frequently emphasized, is the
right to be tried by an impartial judge. "All suitors, we must say, are en-
titled to nothing short of the cold neutrality of an independent, wholly-
free, disinterested and impartial tribunal.",s87 The principle is applicable
to all types of cases. Its application to criminal prosecution was em-
phasized in Mateo, Jr. v. Villaluz.t5tt One of the accused in the case had
made an extra-judicial statement, which he subsequently subscribed be-
fore the judge, implicating his co-accused. Later, however, the same ac-
cused repudiated his statement claiming that he had made it as a result
of a threat by a government agent.rsae ffte co-accused then sought the
disqualification of the judge claiming that the repudiation of the state-
ment would not sit well with the judge before whom it had been sub-
scribed.':s The Court, noting "the imperative character of the safeguard
of due process connoting, at the very least, an impartial tribunal,"rser
disqualified the judge. And in Ignncio v. Villaluz,tse2 where, when the
judge convicted the petitioner of arson, he attributed the act to the de-
sire of petitioner to destroy evidence of malversation, the judge was
disqualified from subsequently trying the petitioner for malversation.
More recently, People v. Opida,tses saw clear bias in the way the judge,
through his line of questioning, showed his hostility against the accused
who was a notorious criminal.
rs87l-uque v.
Kayanan,2g SCRA 165, 178 (1969).
'58850 scRA t8 (1972\.
t58eld. at20.
ts%Jd-
tset
Id . at 23 .
t5q90 SCRA 16 (May
5,1979). But expression of revulsion at the monstrosity of the
fense written by the judge into his decision was not by itself accepted as proof of bias, people
v. Regala, G.R. 23683, Apnl 27,1982. Nor is a judge who finds probable cause at prcliminary
investigation disqualified from trying the case. People v. Sendaydiego,8l scRA l2o (January
20, 1978).
rerl42 SCRA 295 (Junc 13, l9tl6).
Sec. 14 Sec. 14 ART. III - BILLOFRIGHTS 503
It should be noted that Section 14(2) specifically guarantees the
right to an "impartial trial." Nonetheless, it is necessary to discuss im-
partiality more generally under the due process clause because of the
way some portions of Section I4(2) have been interpreted. According
to People v. Jose,tssa the rights therein gualanteed are rights in all "crim-
inal prosecutions" and prosecution starts only upon arraignment. The
implication, therefore, is that the rights enumerated in Section l4(2),
including the right to impartiality, are protected only during the trial.
Impartiality, however, is an imperative need even in the investigations
that precede the trial and also in the decision making process that fol-
lows the trial.
Finally, it may be asked whether a judge who inherits a case from
another judge may decide a case fairly since he did not hear all the wit-
nesses presented. The practical answer to the question must be in the
affirmative. As the court has said'rses "This rule is rooted in practical
considerations. Sometimes it is an impossibility for the judge who tried
the case to be the same judicial officer to decide it. The judge who tried
the case may die, resign or retire from the bench, before he could render
judgment thereon. We flnd no legal impediment to his successor's con-
tinuing with the trial or rendering judgment on the basis of the evidence
submitted if the trial has been terminated. It is sufficient that in such
circumstances the judge, in deciding the case, must base it completely
on the cold record before him, in the same manner as appellate courts
when they review the evidence of the case raised to them on appeal."
2. Due process and military tribunals.
The primary rationale for the existence of military tribunals dis-
tinct from Article VIII courts is that, since "it is the primary business of
armies and navies to fight or be ready to fight wars should the occasion
ofise,"rsso the military is "a specialized society distinct from civilian."""
For this reason, military justice has traditionally been characterized by
f'eatures which emphasize "summary procedures, speedy convictions
and stern penalties with a view to maintaining obedience and fighting
of-
'',,.3? S'C.-RA45 0,412 (lgl t).
rre'l)coplc v- Narirjos, 149 S('RA 99, 105 ( l9{17), quoting from Villanueva v. Estenzo,64
S('RA,1O?-
r"*l,nilc(l Sttttcs t'r l'l. 1'trllt v. Qttrtrlcs' l5O' t,.S. I I' l7 ( 1955)'
l'url\rrlct v. l,cvy.'ll'7 tl S 7tt,14i (1914\.
504 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
fitness in the ranks."rses To the civilian used to the procedure of civil-
ian courts, the quality of military justice might appear rough and rudi-
mentary. As one wag has put it, military justice is to justice as military
rnusic is to music. Because of the nature and purpose of military courts,
American jurisprudence from Ex parte MilligaT2"ro has held that mili-
tary courts cannot have jurisdiction over civilians when civilian courts
are open and ftrnctioning. In the words of Duncan v. Kahanamoku,rooo
the imposition of martial law is "not intended to authorize the supplant-
ing of courts by military tribunals."
All of this did not sit well with the Philippine Supreme Courr
in Aquino, Jr. v. Military Commission.t6}l Aquino was on trial before
a military commission on charges of rebellion. Upon the imposition
of martial law the President had stripped civilian courts of jurisdiction
over rebellion cases and had placed these under the exclusive jurisdic-
tion of military courts. Aquino contended that due process required that
a civilian be tried by a civilian court. With not so much as even a single
reference to Milligan or to Duncarz and unmindful of the purposes and
proclivities of military judges, but with generous references to other
American authorities cited out of context, Justice Antonio, writing for
the Court, kept hammering at the generic undebated principle that due
process is not necessarily judicial process and that, when "absolutely
imperative for public safety,legal process can be superseded and mili-
tary tribunals authorized to exercise the jurisdiction normally vested in
courts."1602 But nary a hint was given as to what the Americans meant by
this because both Milligan and Duncan were discreetly ignored. And,
yielding perhaps to the prompting that intellectual honesty was being
roughed up, Antonio threw the blame on the people for sanating presi-
dential acts through their generosity in ratifying Article XVII, Section
3(2) of the 1973 Constitution.,60, To top it all, the reader was invited
to see how generous Presidential Decree No. 39 was to the poor slobs
summoned by military tribunals.'604
r5e8Reid
v. Covert,354 U.S.683,694 (1969)
rsee4
Wall Z 1tSOO.1.
'jnru327U.S. 304,324 (1946).
rilr63
SCRA 546 (May 9, 1975).
t&zld. at 51 5
. (
tn3ld. at 5J6.
r(r){/r1. at 57t|.
Scc. 14 ART. III - BILLOFRIGHTS
But Aquino had another quarrel yet. How could he get a fair deal
I'rom tribunal members whose commander-in-chief on whom they de-
1rcnded for improvement in salary and rank had already convicted him
in the public forum of PlazaMiranda? Nothing daunted,Antonio equiv-
alcntly dismissed the objection with a perish-the-thought: "We cannot
... indulge in unjustified assumptions. Prejudice cannot be presumed,
cspecially ifweighed against the great confidence and trust reposed by
thc people upon the President and the latter's legal obligation under his
oath to 'do justice to every man.' Nor is it justifiable to conceive, much
lcss presume, that the members of the military commission ... would all
bc insensitive to the great principles of justice and violate their respec-
tive obligations to act fairly and impartially in the premises."'605 Never
rnind that the same Court, exhausting the resources of Roget's Thesau-
lus, had earlier said that all suitors "are entitled to nothing short ofthe
cokl neutrality of an independent, wholly free, disinterested and im-
parlial tribunal."1606 And one would have hoped that Justice Fernando,
with his vast knowledge of American jurisprudence, would come out
clrarging; but instead he comes out tripping the light fantastic' He had
his reservations. But in the end he concluded: "The notion of law in flux
carries it far indeed from a fixed mooring in certainty. There must be, it
clnnot be denied, greater sensitivity to the shifts in approach called for
by the troubled present."r6o7
The position of civilians before military tribunals under the Mar-
eos Court became worse yet in the facile statement made by Justice
Aquino in his main opinion in Buscayno v. Military Commission:'*"
Ordinarily, this Court cannot review the rulings and pro-
ccedings of the military commission. The National Security Code,
Prcsidential Decree No. 1498, which was issued on June 11, 1978
('74 O.G. I 1066), provides in its sections 86(0 and 87(e) that what
th is C<lurt can review are the decisions of the Court of Military Ap-
pcals in cases appealed to it from the military commission.
Gcnerally, this Court does not exercise over military com-
rnissions the supervisory jurisdiction which it possesses over civil
Ilill courts whose interlocutory rulings and decisions may be re-
",,. hl . tl 5 It) .
r""'l.trrlrrc v. K:tyittt:ttt,
^)() S('1.(A I(,5, I7tl l(Xr(.))
'l{ A :rl (r l ( 1.
"'"(r I S(
rr,ilO() \('l{A .'/ l. .}l{(r (Nrtvt'tttlx't lt). l9ttl )
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
viewed by this Court (Kuroda vs. Jalandoni, 83 Phil. l7l; Mar-
telino vs. Alejandro, L-30894, Mqrch 25, 1970,32 SCRA 106).
But as Justice Teehankee pointed out, this statement did not carry
the affirmance of a majority of the Court. Only Justices Barredo, Fer-
nandez, Guerrero and De Castro affirmed. In his partial dissent, Justice
Fernando pointed out why it should not be accepted as doctrine. Under
Philippine jurisprudence, the Court can always review issues of juris-
diction'60e and that denial of constitutional rights can oust a tribunal of
jurisdiction.l6r. Thus, the rights of the accused before military tribunals
categorically affirmed in the earlier Aquino, Jr.v. Military Commission
must be seen as pertinent.
But should the jurisdiction of the Court be limited to issues of
jurisdiction, howsoever these may arise? The cases cited in support of
such delimitation were decided in the context of military tribunals ex-
ercising jurisdiction over military personnel. In American law, these
cases have a textual foundation. Article l, Section 8(14), of the Federal
Constitution authorizes Congress to "make rules for the Government
and regulation of the land and naval forces." Hence, Dynes v. Hoovert6t
early recognizedthatthis provision empowers Congress "to provide for
the trial and punishment of military and naval officers in the manner
then and now practiced by civilized nation; ... the power to do so is
given without any connection between it and the 3rd article of the Con-
stitution defining the judicial power of the United States." Philippine
jurisprudence on the subject, moreover, follows American precedents
rooted on textual foundations not found in the Philippine Constitution.
No similar provision is found in the Philippine Constitution. The de-
limited role of the Supreme Court with respect to military personnel
comes from "generally accepted principles of international law" which
the Philippine Constitution recognizes as part of the law of the land. But
this delimited role in international law has reference to military person-
nel; it should not be extended to cases involving civilians.
Jurisdiction of military courts over civilians ended with the lifting
of martial law on January I7 ,1981by Proclamation2045. But not com-
tffiIn re Car,1 Phil. 513; Payomo v. Floyd, 42 Phil. 788; Cabiling v. Prison Ofliccr, 75
Phil. 1. Fernaildo had earlier expounded this position in Go v. Olivas, 74 SCRA 230, 234-5 (No-
vember 29,1976\.
r6106l U.S. (20 How.) 65, 79 ( I tl5tl).
Inr16l I j.S. (20 llow.) 65.79 ( ltt5tt).
ART. III - BILL OF RIGI{TS 507
pletely. Military commissions were given a grace period to determine
1."u."* pending therein which may not be transferred to the civil courts
without irreparable prejudice to the state in view of the rules on double
jeopardy, or other circumstances which render further prosecution of
the case difficult, if not impossi$ls."totz
Thus stood Philippine jurisprudence on the subject when the 1987
Constitution was being formulated. The problem was solved by cutting
the Gordian knot. Article vII, Section 18, now says: "A state of martial
law does not . . . authorize the conferment of jurisdiction on military
courts and agencies over civilians where civil courts are able to function
. . ." But the solution does not explain what will be done with civilian
cases still pending with military courts "which may not be transferred to
the civil courts without irreparable prejudice to the state."
Among the early cases to be decided after the ouster of Presi-
dent Marcos was olaguer v. Military Commission No. 34.t6t3 Olaguer,
a civilian, had been convicted by a military tribunal during the Marcos
regime. Reversing Aquino, Jr. v. Military Commission, the court said
that "a military commission or tribunal cannot try and exercise
jurisdic-
law, over civilians for offenses
tion, even during the period of martial
allegedly committed by them as long as the civil courts are open and
functioning, and that any judgment rendered by such body relating to a
civilian is null and void for lack of jurisdiction on the part of the mili-
tary tribunal concerned."'u'o
Following Olaguer, Cruz v- Enriler6l5 nullified the proceedings
against a group of petitioners who had been convicted by military tribu-
nals and were serving sentence. CruZ v. Enrile, however, did not order
their release but directed the Department of justice to file appropriate
charges in the proper civil courts against them. This was followed by
Tan v. Barrip5.roro fnn had not been among the petitionets\n CruZv. En-
rile because he was free, having been acquitted earlier by the military
tribunal. Acting on the basis of Cruzv. Enrile, however, the Fiscal filed
information against Tan for the crime for which he had previously been
acquitted by a military tribunal. Was this double jeopardy?
rr'r?()carttlxr v. Militlry ('txrtltrission' l(D S(lRA22 (November6, l98l)'
16rrl59 s(,RA 144 ( 1987).
r"r'/r/. rt l(r5.
rdr;111 s(,1{A'/(xt ( l9tt7).
""'{i.l{. Nos. lt\4ttl 11,'.()t lolx'r lll. l()(X)
 THE 1987 CONSTITUTION
ART. III - BILL OF RIGHTS

OF THE REPUBLIC OF THE PHILIPPINES

jeopardy 3. "In all criminal prosecutions . . ."

In constitutional logic, it would not have been double
because the first jeopardy under a military tribunal was
invalid; in hard
The present provision is a reproduction of the provision in the
place'
fact, however, it was and a solution had to be found' In the first 1935 Constitution,t6rE except for the last sentence and the guarantee of
Enrile, the order to the fiscal
since Tan had not been a party in cruz v. an impartial trial, which both come from the 1973 Constitution. The
contained in it could not include Tan. The court, moreover'
added:
provision enumerates some of the basic rights of the accused: the right
to be presumed innocent, to be heard by himself and counsel, to be
There is, however, a perceptible lack of consistency in the
informed of the nature and cause of the charge, to have a speedy, im-
application of the Olaguer doctrine to Cruz v' Enrile which needs
partial, and public trial, the right of confrontation, and the right to have
to be rectified. For, although the Court nullified the proceedings
compulsory process.
against the civilians-petitioners who were still serving their
sen-

tences after conviction by the military courts and commissions'

When do these rights become available to a person? There are
and we directed the Secretary ofJustice to file the necessary
infor-
three significant cases that have touched on the subject. ln United States
mations against them in the proper civil courts, we did not nullify
v. Beecham,r6'e at issue was the extent of the statutory right to be present
the court martial proceedings against the other civilians-petitioners
granted at the trial, which is a corollary of the right to be heard. The Supreme
who: (1) hatl finished serving their sentences; (2) had been
by the military courts' We did Court held that "the right to be present 'in all criminal prosecutions'
amnesty; or (3) had been acquitted
resentencing by the proper must be understood as securing to him merely the right to be present
not order their prosecution, retrial, and
civil courts. We set them free. during every step in the trial in the Court of First Instance; and that ...
the phrase 'at the trial'is to be taken 'to include everything that is done
In effect, the Court applied one rule for those civilians who in the course of the trial, from the arraignment until the sentence is
were convicted by the military courts and were still serving their
announced."'1620 This seems logical enough, for one cannot very well be
sentences, and another rule for those who were acquitted, or
par-
present at a trial which either has not yet started or has already ended.
doned, or had flnished service of their sentences' The Court
ap-
(whom the Subsequently, in Dequito v. Arellano,162t it was held that the right of
plied a rule of retroactive invalidity to the first group
Court ordered to be prosecuted before the proper civil courts)
and confrontation is not available during the preliminary examination under
another of prospective invalidity for the others whom the Court Rule 112, Section 1, of the former Revised Rules of Court. This and
ordered to be released from custody' related cases are examined in their proper place. Finally, in People v.
Jose,t622 the Supreme Court held that the right to counsel is available
To remedy this imbalan ce,Tan v. Batios ordered that the
olaguer
only after arraignment because it is a right "in all criminal prosecu-
or not
doctrine be applied only "to future cases and cases still ongoing tions" which by Beecham had been interpreted to mean the period from
yet final *tren ttrat decision was promulgated" saying that the
"trial arraignment to rendition of judgment.r623 But, as already seen, Beecham
Lf thousands of civilians for common crimes before military tribunals was dealing merely with the right to be present at the trial. Moreover,
and commissions during the ten-year period of martial rule
... is an if the logic of the Jose Court were to be followed, one would also have
ex-
operative fact that may not be justly ignored." The court thereby to conclude that the right to be informed begins only upon arraignment.
panded the application of the "operative fact" principle of Municipality However, as already seen, Section 12(1) covers situations not covered
of Malabang v. Benito.t6t' by Section 14.

""*Article Ill, Section I ( l7).

toto23 Phil. 25tt ( l9 l2).
t t
"2tt ld . ut 265, r'iting I l.S. v. Karclsen, .\ Pht. 223
ru)rlll ['hil. l 2tt ( l94tl ).
;rfsrItAn'1. (itrticrrer itl ()rtl tttt 17 s1'f{A,l5ll, 41 ) (19"1 l\.
ln s. suyirrg tlrt.(irurr utltptr:rl thc tlisscnt ol Jttsticc tn)'hl ul 4l).
y l;nrilt
 Sec. 14
510 TI{E 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
4. PresumPtion of innocence.
The right to be presumed innocent was not guaranteed by any of
the organic acts prior to the 1935 Constitution. The principle, however,
has always been a part of criminal procedural law as guaranteed first
by statutory law (General Orders No.58) and now by the Constitution.
The constitution mandates that an accused shall be presumed in-
nocent until the contrary is proven beyond reasonable doubt. The pros-
ecution has the burden to overcome such presumption of innocence by
presenting the quantum of evidence required. In addition, the prosecu-
iion mustrest on its own merits and must not rely on the weakness of
the defense. In fact, if the prosecution fails to meet the required quan-
tum of evidence, the defense may logically not even present evidence
on its own behalf. In which case, the presumption of innocence shall
prevail and hence, the accused shall be acquitted.
How is the presumption of innocence is overcome? The presump-
tion is overcome only by proof beyond reasonable doubt. For as long
as the defense is able to present evidence enough to create reasonable
doubt, the presumption remains. Reasonable doubt is that doubt en-
gendered by an investigation of the whole proof and an inability after
such investigation to let the mind rest upon the certainty of guilt. Abso-
lute certainty of guilt is not demanded by the law to convict a criminal
charge, but moral certainty is required as to every proposition of proof
requisite to constitute the offense.'624
Two instances of the use of the presumption were U'S' v' Car-
donat625 and U.S. v. Pagaduan
1626
In these two cases, considering that
the criminal action was instituted many years after the crime and con-
sidering the questionable motives of the complainant, what saved the
u""ur"d, in spite of the fact that he could not shake the witnesses for the
prosecution, was the shield of presumption of innocence.In Valdepeftas
i. People,'u" however, the presumption seems to have been improperly
applied to the complainant in a seduction case. On the argument that
prisumption of innocence includes that of morality and decency and
chastity, the complainant was presumed to be a virgin'
r62aMupas v. PeoPle, G.R. No 172834, February 6,2008.
'62536 Phit.
438, 441 ( l9l7).
r6?6j7 Phit. 90, 92 ( I 917).
rr.'r1fi s(.RA 872 ?l (l(x{r).
Sec. 14 ART. III - BILL OF RIGHTS
Recently, the supreme court invalidated a provision of Batas
Pambansa Blg. 52 which said: "the filing of charges for the commis-
sion of such crimes before a court or military tribunal after prelimi-
nary investigation shall be pr ima fac ie evidence of ' disqualifi cation as
a candidate for political offlce. The court said that although the filing
of charges is only prima facie evidence and may be rebutted, the prox-
imity of elections and the consequent risk of not having time to rebut
the evidence already in effect make the accused suffer as though guilty
even before trial.r62s Moreover, the presumption that official duty has
been regularly performed must yield to the constitutional presumption
of innocence of an agssgsd.rezr
Dumlao should be compared with Marquel, Jr. v. Commission on
Elections;ezo where a candidate for provincial governor was disqualified
on the basis of section 40 of the Local Government code disqualify-
ing "(e) Fugitive from justice in criminal or non-political cases h"r" o,
abroad." The court said that it could apply to one who had not yet been
convicted of any offense but was merely fleeing from trial. This deci-
sion was defended against the suggestion that it violates presumption
of innocence on the argument that the disqualification is not a penalty
and that congress is allowed to prescribe reasonable qualifications for
local candidates both by Article v, section 1 and Article X, Section 3.
considering the importance of the right of suffrage, however, the dis-
qualification smacks of a bill of attainder. (But the court remanded the
case to the lower court for determination of the fact of being a ..fugitive
from justice.")
Under the principle of presumption of innocence, U.S. v. Luling,'ul
taught that the state is merely required to establish a prima
facie case,
after which the burden of proof shifts to the accused. The court said:
In some of the States, as well as in England, there exist what
are known as common law offenses. In the philippine Islands no
act is a crime unless it is made so by statute. The State having the
right to declare what acts are criminal, within certain well defined
limitations, has a right to specify what act or acts shall constitute a
l'"'31)unrlao v. ('()Mlil.l,l(',95 S('RA 392 (January 22,lgg}).
r"rul'crrrlt' v. licrrr.rrrk r,
I 4.5 si('R A I 5 I (( )ct.bcr 24, l9116); pr:ople v. Melosantos, G.R. No.
I l5.lO4..luly '1, 1995.
r"r('(i.R. No. II.t8lt(),Aln.il
Ill, I995.
rr'rr 14
l'hil.'/.11, /.)tl ( l()16)
5t2 THE 1987 CONSTITLIION
OF THE REPUBLIC OF THE PHILIPPINES
crime, as well as what proof shall constitute prima facie evidence
of guilt, and then to put upon the defendant the burden of showing
that such act or acts are innocent and are not committed with any
criminal intent or intention.
This, however, must be understood to simply mean that if the ac-
cused fails to present evidence creating reasonable doubt, there would
be enough ground for conviction. It is the conviction that can termi-
nate the presumption. But if the initial conviction is appealed, the pre-
sumption remains. Thus Mangubatv. Sandiganbayan,t632 said where the
conviction by a lower court was still on appeal, it had not yet reached
finality and the accused still enjoyed the constitutional presumption of
innocence. The Court added that must be remembered that the existence
of a presumption indicating the guilt of the accused does not in itself de-
stroy the constitutional presumption of innocence unless the inculpating
presumption, together with all the evidence, or the lack of any evidence
or explanation, proves the accused's guilt beyond a reasonable doubt.
Until the accused's guilt is shown in this manner, the presumption of
innocence continues. For this reason, the Court held that respondent
Sandiganbayan did not act with grave abuse of discretion, correctible
by certiorari, when it ruled that despite her conviction, the accused still
enjoyed presumption of innocence.
The teaching on the subject was reiterated in People v. Ming'
fltingrctt where the Court enumerated the elements that the prosecution
must do before there can be a conviction:
First,the accused enjoys the constitutional presumption of
innocence until final conviction; conviction requires no less than
evidence sufficient to arrive at a moral certainty of guilt, not only
with respect to the existence of a crime, but, more importantly, of
the identity of the accused as the author of the crime.
Second,the prosecution's case must rise and fall on its own
merits and cannot draw its strength from the weakness of the
defense.
should also be noted that presumption of innocence does not
It
preclude statutory provisions of presumption of guilt in certain situa-
r632Re
Judgc Angcles, A.M. No. O6 t)'545.R'l'(', Jtnurlry I I , 2(X)tt
Inr'(i.R. No. 174195, l)cu:ntlrr lo, 200tt.
Sec. 14
Sec. 14 ART. III _ BILLOFRIGHTS 513
tions. Thus, unexplained possession of stolen property creates the pre-
sumption of larceny. The Court justified this thus''634
According to the modern view, however, convictions in cas-
es of this kind are not sustained upon a presumption of law as to
the guilt of the accused. The conviction rests wholly upon an infer-
ence of fact as to the guilt of the accused. If as a matter of prob-
ability and reasoning based on the fact of possession of the stolen
goods, taken in connection with the other evidence, it may fairly
be concluded beyond a reasonable doubt that the accused is guilty
of the theft, judgment of conviction may properly be entered. The
conviction rests upon the evidence introduced by the prosecution
not upon the refusal or failure ofthe accused to testify.
-
Again, in People v. Mingoa, Article 217 of the Revised Penal
Code, which says that failure of an accountable officer to produce the
money in his charge upon demand shall be prima facie evidence of
malversation, was justified. The Court said''635
Clearly, the fact presumed is but a natural inference from
the fact proved [failure to produce], so that it cannot be said that
there is no rational connection between the two. Furthermore, the
statute establishes only aprimafacie presumption, thus giving the
accused an opportunity to present evidence to rebut it . .
But again this is only primafacie and rebuttable presumption of
guilt which does not overcome the constitutional presumption of in-
nocence.
v. Sandiganbayan,t636 the former President challenged
ln Estrada
the following provision of the Plunder Law as a violation of presump-
tion of innocence:
SEC. 4. Rule of Evidence. For purposes of establishing
-
the crime of plunder, it shall not be necessary to prove each and ev-
ery criminal act done by the accused in furtherance of the scheme
or conspiracy to amass, accumulate or acquire ill-gotten wealth, it
being sufficient to establish beyond reasonable doubt a pattern of
'nulJ.S. v. Catimbug,35 Phil.367,371 (1916).
16'\)2 Phil. 1t57. tt59 (lt)53). Scc also Bunares v. Court of Appeals, G.R. No. 55992' 14
I.bbrulry I 99 I i Lcury v. I Inittxl Slules,,l95 t l.S. 6 ( I 969).
In'n(;.R. N(). l4l'156{}, Novcrtllrr l(), 2(X)l
 III BILLOFRIGHTS
Sec. 14
ART. -
5t4 THE 1987 CONSTITI-ITION Sec. l4
OF THE REPUBLIC OF THE PHILIPPINES
testify in one's
evidence includes the right to
overt or criminal acts indicative of the overall unlawful scheme or The right to present t""uii *iinesses'rdr lf accused
favor'ffi and the tigt'tio u" fiven time for
conspiracy. case' and it is error
**
of two offenses, h" i'
;;;;fi to a trial :{ him in
eviaence adduced against
*TtJ"t"1n"
The Court, however, ruled, on the basis of the record of the delib- the court to consider even after a mo-
It also in"too", tt right to present evidence
erations in Congress, that the argument was based on a misunderstand- another.rs2 " o] evidence for the defense'
ing of the law. The law means that the prosecution need not prove "each tion to dismiss, *uo"'ilto'" i'Z'"ntution
accused should not
be
"Tn":';;';;ti"l nlli'^':i*"
and every criminal act" alleged but must prove enough to satisfy the has been denied' to have him promptly
**io"*tt
requirements of the law. impaired because of t'i' counsel's
acquitted."'*' pro-
Finally, related to presumption of innocence is what is called thc general rubric of due
frequently litig.ated
"equipoise" rule which says that where the evidence of the parties in One right Y"g:l T"
a criminal case is evenly balanced, the constitutional presumption ol' cessbutwhich*"'""'i"iin"i[vPPlii:*:";#":irTtTlft:tlS
innocence should tilt the scales in favor of the accused. Clearly, how- ,rrn, . ,*" o"r' "l,n'?fl#fl.j;r;;ii,I3
oiceneral orders N
a"o,,. rn peopte v.
made, the
ilil;
;;t*" J..prop"rly
ever, there is no equipoise if the evidence is not evenly balanced. Thc
equipoise rule cannot be invoked where the evidence of the prosecutiotr
is overwhelrning.torr
i:****'xf *:T:*"'J"'ffiil;"'"'#a;"stitutionand
undertheRulesofdo"'-'t'"Valtecaset'u't""nfollowed'K'Ithas from this rule is not re-
been held, no*"n"t''Jiilt'*"r"tt'departure" refusal to grant such
5. Right to be heard.
versible error.rtr whil;
o'ot"'iu"9'.-o.'."ou"t'is
for it''*'
The concept of the "right to be heard," applied to criminal procc. ;il";;;"' the defendant must ask
dure, embodies in shorthand form a very fundamental and multifacctctl
tttnt by saying that' besides
Arnault v. Pecson'&sreinforced Fi: i""ot"d must also be given
right of the accused. In a very broad sense, it can be understood to mcurr being allow"o ti*""i1'frep;;'^for;ur't;"
the totality of the rights embodied in an adequate criminal proccdurnl
system. More precisely, however, it can be viewed as expressing hrlh
{iffi
to this guarantee''
r'e:*;:illfi ,t*}l*ir;"":iT j?'iT"?""'"'J:ff
his evidence;
ffi
opponunitv to pt"put"
the qualities of the "hearer" and the manner of the hearing. the senate; h" h"i;;;';ui*' *"i" oo"u*Lnt' io b" selected
from a
much of ttre euioJncJ 'i""o"o according to his
The qualities demanded of the hearer are fairness and impartinl
large volume "f ;;;il;;' and the "r.ne,
"iJo.;; documents' Under these
ity. Thus, it is demanded that the judge may not play the doublc rolt ol t"'iii"'nv' t'uo 1t"1' ;;;* given the six
prosecutor and judge in one and the same case. He must mainlrrilr rrrr
uncontradict"o
t;;;;;'*id thu"h" ;;; should be
circumstanc"t' he had requested''se
hours of fre"ao*' u'Y#;il;;"urun""'*ttich
attitude of neutrality in regard to the prosecution and the itccus(:(1.'o''
Influence on the judge, even if unconscious, which prevents a cllrrr urrrl
careful review of the evidence can nullify his decision.'n,',
The more active role of the accused in expressing thc riglrt to lx.
ffi
'@'z's"
'*'6
v'Ttiitol,'ll
u'r' v." Lao
o.. u.S. -'";' i -L.,
*" chueco- r' 1:',2''.J
, ,. 117-8
pt'it' tto' lgo2).
I l7_R ((1902)'
;i,:"
ro:g.g., v. Tanjuan
U.S.
heard includes three specific rights: the right to present cvidcrrr:c lrrrl to
''';;;; ; M"d:9:l',ll:).,T;t'i11,'?il-1. e,.euano. se
phit. 434 ( I es I )'
be present at the trial, the right to be assisted by counsel, anrl thc ripilrt tr r Phil'eo7'e''t'0,j.'t;,'i'iii".ri".iirt
'|s43
Meja
nto). _ ^ ^^ -_^;-- qnhierrrs
Schields v. Mc-
rM5E.s., People v.
compulsory process to compel the attendance of witnesscs irr his lx.lrnll nti' ibiil' zrs u's' ee' reversing
,M^McMickins
Micking, ti
". "n'il"'tit'lijtl
pnJi s'o ttn'3]'rn,,. v. Kagui Malasugui' 63
Phil' 221'229
Cruz. )C 24,21a (1929).,peopte
'd/Pcoplc v.
" "''
( 193(t).
'637Malana v. People,G.R. No. 173612. March 26,2(X)tl ,","g7 phil. 4 l l{, 422 ( l95O)
r6lEPeople v. Castafictla, (r.l I,hil.4tl0,,lltl{ (
ror'rPeople v. Anclretu, (r(r I'lril. 6 tlt, ('.1,1 5 (
l(,).}6). r*tp n11)) l.
l9 llt).
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
An important facet of the right to be heard is the right to be pres-
ent at the trial. "In all criminal prosecutions the accused has an absolute
right to be personally present during the entire proceedings from ar-
raignment to sentence if he so desires."r650 The extent of this right was
explained in U.S. v. Beecham:t6sl
... on principle and authority these various provisions secur-
ing to an accused the right to be present "in all criminal prosecu-
tions" must be understood as securing to him merely the right to be
present during every step in the trial in the Court ofFirst Instance;
and that ... the phrase "at the trial" is to be taken "to include ev-
erything that is done in the course of the trial, from the arraign-
ment until the sentence is announce," which clearly refers to the
proceedings had in the nisi prius court. A careful examination of
the language and the context ofeach ofthe statutory provisions ...
satisfies us that it was not the intention of the legislature to extend
the right to be present beyond the limits just indicated, and we
are confirmed in our conclusions in this regard by a review of the
decisions of the various courts of last resort in the United States ...
And while it has frequently been held that the right to be pres-
ent may not be waived at certain stages of the trial and under certain
circumstances,tosz i, seems clear that the prohibition of waiver arises
not from the Constitution but from statutory provisions.r653 It has in fact
been held that, because of the new provision allowing trial in absentia,
the right of the accused to be present may be waived totally except
when his presence is needed for purposes of identification.r6s4
6. Right to counsel in Section 14(2).
The right to be heard can be a meaningless farce if it does not
include the right to counsel. Justice Sutherland's well known observa-
tions in Powell v. Alabama'u" deserve to be quoted:
t6t0U.S. v. Karelsen, 3 Phil. 223, 231 (1904).
165123
Phil. 259,265-6 (r9t2).
t6s2SeeDiaz v. U.S.,223 U.S.442, 454 (1912); People v. Francisco,46 Phil. z()3 (1924):
U.S. v. Karelsen,3Phll:223,231-2 (1904); U.S. v. Beecham,23 Phil. 526 (1912).
r653Sea
General Orders No. 58, Section l5(1) and 41(l) Rules of Court, Rule I 16, Sccliott
I and Rule 120, Section 6.
65aAquino, Jr. v. Military Commission,63 SCRA 546 (April24,l9'14),
f rnlnli.lltjt.t.ljR,'!'u, Stxttt AMt.:utyt.ur 20 2l ( 19.51. ,dtul
r6s5287 U.S.45,69 ( 1932). lntcrcstingly oul Couil has said thirt tltt: right is lo itn "t:llbt'tivc"
andnotneoessarilytoan"irrtclligcnt"corrrrscM'rrrplcv. l.iwilrrug,(i.R.Nrt, l2046tl,Attgrst 11,
2(X) I
Sec. 14 ART. III - BILL OF RIGHTS
Even the intelligent and educated layman has small and
sometimes no skill in the science of law. If charged with crime,
he is incapable, generally, of determining for himself whether the
indictment is good or bad. He is unfamiliar with the rules of evi_
dence. Left without the aid of counsel he may be put on trial with_
out a proper charge, and convicted upon incompetent evidence,
or evidence irrelevant to the issue or otherwise inadmissible. He
lacks both the skill and knowledge adequately to prepare his de_
fense, even though he has a perfect one. He requires the guiding
t hand of counsel at every step in the proceedings against him. With_
out it, though he be not guilty, he faces the danger of conviction
because he does not know how to establish his innocence.
Early in the eighteenth century the American system of judicial
administration adopted the institution of a public prosecutor. Thus the
familiarity of the ordinary layman with court procedures was com-
pounded by the fact that he was made to face "a government official
whose specific function was to prosecute, and who was incompara-
bly more familiar than the accused with the problems of procedure,
the idiosyncrasies ofjuries, and, last but not least, the personnel of the
court."r656 The guarantee of the right to counsel serves to minimize the
imbalance in the adversary system. In the words of Justice Black.16'
It embodies a realistic recognition of the obvious truth that
the average defendant does not have the professional skill to pro_
tect himself when brought before a tribunal with power to take his
life or liberty, wherein the prosecution is presented by an experi_
enced and learned counsel.
The basic elements of the constitutional right to counsel, as first
implemented in Philippine law in section l7 of General orders No.5g,
was interpreted thus in u.s. v. Gimeno,,uss the earliest case on the sub-
ject: "[I]f the defendant appears without counsel he must be informed
by the court that he has a right to have counsel before being arraigned,
and must be asked if he desires the aid of counsel. If he desires and
is unable to employ counsel, the court must assign counsel to defend
him. This is a right which the defendant should not be deprived of, and
it tjnited Stiltes v. Ash,413 U.S
3(x), i7 l. lil. 2rl 6l(),626 ( le7.l).
In'/.lrlutson v. Trlhsl, 104 j.S.45lt.4().1 (l()18).
l t
r"al I'hil.2t(r,.lt(r7(l(I)l): r/roll.S.v.
llrlrsrx.,.l l,hil.,l(1.7(l{X)5).
518 THE 1987 CONSTITUTION Sec. 14
OF THE REPUBLIC OF THE PHILIPPINES
the failure of the court to assign counsel or, after counsel has been as-
signed, require him to perform this duty by appearing and defending
the accused would be sufficient cause for the reversal of the case." In
this case, counsel was appointed, but he did not appear for the trial; the
Supreme Court remanded the case for a new trial.r65e
The decision was not unanimous, and, in dissent, one Justice said
that the trial court "had recognized the right of the defendant to have
counsel by appointing such counsel. It is not credible that the next day
he would have ignored the right of the defendant to this protection. For
the purpose of reversing the judgment we ought not to presume that the
court neglected his duty which he must then have had in mind;we ought
rather to presume that the defendant consented to proceed without the
presence of his lawyer; his conduct shows this."1660
Twelve years later, this dissent was given an even broader accep-
tance by the majority. In U.S. v. Labial,'uu'the record from the lower
court failed to disclose affirmatively that the trial judge advised the ac-
cused of their right to have counsel. Yet, while the court said that "in all
cases wherein the accused is not defended by counsel the record should
be made to show affirmatively that the trial judge has complied with
the provisions of the statute," the court ruled, nevertheless, that, in the
absence of an affirmative showing that the trial court failed to advise the
accused of their rights, "the court below must be presumed in matters of
this kind to have complied with the provisions of law."r662
A similar concern for making a record of compliance with the law
was shown in U.,S. v. Custan:t63
[We] deem it of utmost importance that criminal trials should
proceed, at every step, in strict accord with the prescribed rules of
procedure, and that care should be taken to make the record af-
firmatively disclose the various incidents of the trial in such form
r6Tn U.S. v. Seradoy,26 Phil. 616,618 (1914), the Court said that the right was not vio-
lated although the appointed counsel arrived only after two witnesses had testified. Counsel had an
oppornrnity to cross-€xamine both witnesses. But where an accused was not duly represented by a
member of the Philippine Bar during trial, the judgment should be set aside and the case remanded
tothetria?courtforanewtrial.Peoplev.Santocildes,Jr.,G.R.No. l09l49,December2l,1999.
Iffil Phil. a|237.Italics added.
16'27 Phil.82 (1914).
t62ld. at84.
r'6'28 Phil. 19,22,1 (11)141.
Scc. l4 ART. III BILL OF RIGHTS
-
as to leave no room for doubt or question as to what actually oc-
curred. ...
It is in the highest degree incumbent upon the courts and
their officers, including the judges, fiscals, clerks and attorneys,
to see that the record sets forth a full and complete report of all
the incidents of the trial, so far as that is humanly possible, and to
take care, also that there is no relaxation in that strict compliance
with all the prescribed formalities of procedure which experience
has shown to be necessary to the due administration of justice in
criminal cases."
But, in a subsequent case, the court again ruled:1664 "The failure of
the record to disclose affirmatively that the trial judge advised the ac-
cused of his right to have counsel . . . is not sufficient ground to reverse
the judgment of conviction. ... The doctrine [is] omnia praesumuntur
rite et solemniter esse acta donec probetur in contrarium. ..."
This doctrine of presumption has been followed unswervingly un-
til the present,'56s except in two almost forgotten decisions penned by
Mr. Justice Diaz in 194I.t666 Recalling but not citing, the stern instruc-
tions of earlier decisions, Diaz wrote in Pueblo contra Cacherot66T that
the provisions of the law must be strictly followed and a record to the
cffect that the law was followed must be kept. Not finding such record,
I)iaz remanded the case for a new trial. No authorities were cited in
the decision, and history seems to have paid him in kind: subsequent
r6U.S. v. Escalante, 36Phi1.743,746-7 (1917). Malcolm dissented pointing
out that the
tkrtrine was merely in the dissent inthe Gimeno case.
l6sPeople v. Abuyen, 52 Phil. 722 (1929);
People v. del Rosario, 56 phil. jg6 (lg3l);
l)cople v. del Rosario, 62Phil.97l (1936); People v. Ocbina,63 phil.528 (1936); people v. Car-
iaga, 64 Phil. 390, 393 ( 1937); People v. Javier, 64 phil.4l3,4t6 (1937); Velasco vda. de Tatavera
v. Superintendent,6T Phil. 538,542 (t939); People v. Miranda, ZS Phil.4l8 (1947); people v.
l'rieto,80 Phil. 138 (1948); People v. Nang Kay,88 Phil.515,517 (1951); Amar v. Moscoso,98
t,hit. I t,5, I l8 (1955).
rdrPueblo contra Domenden, 73 Phil.
349 (1941);Pueblo contra Cachero, 73 phil.426
0 e4l).
tu'1 "
Unu y muchas veces declaro ya este Tribunal, mucho antes surgir esta causa y la de
I)rtttr<'trdtn, que sc cumplu cl intli<:ado tramite y que se hagar constar en autos a.demas, que se ha
r'unpli&t cl nisnut .y 11s7 4l I arlldo hu renunciad.o, si tal fuese el case, a su derecho de ser asistido
l<' urt uhogtuht. l'l.s nr< cs,vtrio que asi sc huga porque b demanda el mismo interes de Ia justicia,
v strvirirt, lror orru Jrilrk', pant di.ripor kxltt dudu n'specb a si el a<'usado renunt'ip a su derecho,
v ri tslnwt plrrutnn'nl( (rtl.'nufut, unles de pur su il)nl(stucion, dc lus consecuencias de la mismu.
( ),ttixi(,n(,\ .-(nn., Iu drl .lu:guht u qutt,.liu'x'n wilunktrius
o inrnlunktriu.t, deben ser, ntt solum7ntr
rrnsunulo: v lrxtpnilnuhn sino tunhit'n etnulrnuhtt. I,)t &' tsptntr qut d<' fr an tulrhuir, rl
.lu.tlyuht u qtut.utl\tt tiltrrrt ctnmt *, b tht rt urtrruh'r qut tlrr yt nutlilt dr lt 1trr.srntr."
 I98TCONSTITUTION
52O THE Sec.14
OF THE REPUBLIC OF THE PHILIPPINES
decisions have followed the doctrine of presumption without so much
as a mention of the two Diaz decisions. Even Mr. Justice Perfecto, dis-
senting in People v. Miranda'66s failed to mention them. Thus, the rule
of presumptive regularity remains: omnia praesumuntur rite et solem-
niter esse acta donec probetur in contrariurn. However, trial courts are
admonished to have their compliance with pre-arraignment duties put
on record.tuun
In sum, the basic elements of the right to counsel as it is enforced
now are the following: (l) The court is duty bound to inform the defen-
dant that he has a right to an attorney before he is arraigned; (2) The
court must ask him if he desires the service of counsel; (3) If he does,
and is unable to get one, the court must assign counsel de fficio; (4)
Or, if the accused wishes to procure private counsel, the court must
give him time to obtain one.r670 Where the appointed counsel could have
acted "in a double capacity," that is, if his actual interests were divided
between the prosecution and the defense, his appointment constitutes
reversible error;r67r (5) Where duly authorized "members of the bar are
not available, the court may appoint any person resident of the province
and of good repute for probity and ability."16?2 As Section 6 of Rule
116 of the Rules of Court puts it, the judge has four pre-arraignmenl
duties: "(1) to inform the accused that he has the right to have his own
counsel before being arraigned; (2) after giving such information, to
ask accused whether he desires the aid of counsel; (3) if he so desircs
to procure the services of counsel, the court must grant him reasonablc
time to do so; and (a) if he so desires to have counsel but is unablc to
employ one, the court must assign counsel de oficio to defend ftip."t't
'trE78 Phil. 418,423-4 (L947).*h is settled that the failure of the record to disclosc lllir
matively that the trial judge advised the accused of his right to counsel is not suf'licicnt grourrrl to
reverse conviction. The reason being that the trial court must be presumed to havc corrrpliul with
the procedure prescribed by law for the hearing and trial ofcases, and such a presurnl)t i()n t'irrr orrly
be overcome by an affirmative showing to the contrary." People v. Agbayrni, (i.R. No. l.lll77o.
January 16,1998.
t6ePeople v. Agbayani, G.R. No. l2277O,Iantary 16, 1998.
r6T0People v. Holgado, 85 Phil. 753,756 (1950).
167rU.S. v.
Laranja,2l Phil.500,510 (1912).
r672U.S.v.Bacarrisas,6Phil.539,539-50(1906);(New)Rulesol (irurt,Rulc ll(r.Srtltrrtt
l;Paarv.Borromeo,79Phil.344 (1947),wheretherulewasnotapplictl bccauscoI llrcccrllrrr
availability of authorized members of the bar in Manila.
r"?rPeoplev.Aghaynni,(l.R.No. 12277(),.llnutry l(r, l()()tl..1ll4S('ltA ll5. tli((rlnrp
I'n4ilt t,. llolsultt,ll5 l'hi1. 752, 756 I l()5ol).
Sec. l4 ART. III - BILL OF RIGHTS 52r
It should be noted that under present jurisprudence the counsel de
fficio must be a qualified lawyer.'674 But there are limits to the court's
duty to furnish counsel de fficio. "The duty of the court to appoint
a counsel de fficio when the accused has no counsel of choice and
desires to employ the services of one is mandatory only at the time of
arraignment [Rule 116, Section 6, Revised Rules of Court.] This is no
longer so where the accused has proceeded with the arraignment and
the trial with a counsel of his choice but when the time for the presen-
tation of evidence for the defense has arrived, he appears by himself
alone and the absence of his counsel was inexcusable."r6T5 As another
decisions said: "We do not believe that the fact that a particular counsel
de fficio did not or could not consistently appear in all the hearings
of the case, is effectively a denial of the right to counsel, especially so
where, as in the instant case, there is no showing that the several ap-
pointed counsel de fficio in any way neglected to perform their duties
to the appellant and to the trial court and that the defense had suffered in
any substantial sense therefrom."'676 Moreover, unlike the right to coun-
sel under Section 12(1), counsel need not be one who is the choice of
the accused "An examination of related provisions in the Constitution
concerning the right to counsel, will show that the 'preference in the
choice of counsel' pertains more aptly and specifically to a person under
investigation [Art. III, $12(1)] rather than one who is the accused in a
criminal prosecution [Art.III, $141271."'u" But, an accused who wishes
to withdraw his appeal to the Supreme Court on the ground that he
could not afford counsel should be given counsel de fficio instead.'u^
However, there is no denial of the right to counsel where a
counsel de fficio was appointed during the absence of the accused's
counsel de parte pursuant to the court's desire to finish the case as
early as practicable under the continuous trial system.'67e And where
the petitioner was represented by counsel de parte at the arraignment
and trial, the trial court could not be deemed duty-bound to appoint a
counsel de fficio for the continuation of his cross-examination. Here,
after his initial cross-examination, the trial court already granted the
r"7al)clgado v. Court ol Appcals, 145 SCRA 357 (l9tl6).
r"tlSayson v. I'coplc, l(16 S('RA 6110
( lglltl).
r"/"1'coplc v. Mart:tlo, l4li S('RAqtl. l{Xr-107 (l9tl7).
l"r/Arrriort v. .lrulgc ('hiortgstxt, A.M.
No. R'l.l-()7 l.lT l, Jarrrrirry 22, 1')99
()O.)r),l, St'plt'tttlrr't .1.1, ()q l,
"'/*l'trrplt' v. R io, ( i.lt. No. 1
r''l"1'r'oplt' v. l,rrrltltliir, rl rrl , ( i.l(. Nos. I lllll'/,1 '/5. li'hlrrrrry l, ,)(X)'1.
 THE 1987 CONSTITUTION Sec. 14 Sec. 14 ART. III - BILL OF RIGHTS
OF THE REPUBLIC OF THE PHILIPPINES

petitioner's motion to postpone, giving him sufficient time to engage always against the waiver. consequently, the prosecution must prove
the services of another counsel. The failure of the newly hired lawyer with strongly convincing evidence to the satisfaction of this Court that
to appear at the subsequent hearings without reason was sufficient legal indeed the accused willingly and voluntarily submitted his confession
basis for the trial court to order the striking from the records of direct and knowingly and deliberately manifested that he was not interested in
testimony, and thereafter render judgment upon the evidence already having a lawyer assist him during the taking of that confession."r685 At
presented. At the most, the appointment of a counsel de fficio in a what point in the criminal proceeding is the accused entitled to counsel?
situation like the present case would be discretionary with the triar As alieady pointed out above, the rights enumerated in Section 14(2)
court, which discretion will not be interfered with in the absence of are rights "in all criminal pfosecutions" and "criminal prosecution" ac-
grave abuse.'6so
cording to the 1971 case of People v. Jose'686 covers the period from ar-
Moreover,like other personal rights, the right to counsel may be raignment to rendition of judgment. Hence, according to the same case,
waived. In one case, where the defendant, on being asked whether he ttre rigtrt to counsel exists only during that period. It has been shown,
could afford to employ a lawyer, replied in the affirmative but said that however, that under the circumstances of Section l2(l) a right to coun-
he had been unable to come to an agreement with any one as to the sel also exists before arraignment.
amount he should pay for the services and thereupon entered into trial
conducting his own defense, he was deemed to have waived his righl.rorr 7. Right to be informed.
Again, where the defendant announced that he could not afford counsel The heart of the constitutional guarantee - its purpose and its
and that he would conduct his own defense and thereupon entered into
requirements - was explained in U.S. v. Karelsen"t6s'
trial, he likewise was deemed to have waived his right.'u'z The clearest
case of waiver of the right is exemplifi ed by People v. Sim B en.t683 The The object of this written accusations was First' To fur-
with such description of the charge
-
against him
accused in this case was informed by the judge of his right to counsel nish the accused a
as will enable him to make his defense; and second, to avail him-
and he was asked if he desired one. He answered that he did not. He
self of his conviction or acquittal for protection against a further
was then asked if he agreed to have the information read to him even
prosecution for the same cause; and third, to inform the court of the
without counsel. He agreed. Thereupon, the information was read and
iacts alleged, so that it may decide whether they are sufficient in
translated for him. He pleaded guilty. He was then asked whether he re- this
law to support a conviction, if one should be had. In order that
alized that because of his plea of guilt the punishment provided by law
requirement may be satisfied, facts must be Stated, not conclusions
would be imposed on him. He answered that he did. He was deemed to
of law. Every crime is made up of certain acts and intent; these
have validly waived his right.
must be set forth in the complaint with reasonable particularity of
In another case, People v. Holgado,r684 the following interchangc time,place,names(plaintiffanddefendant),andcircumstances'
transpired in court: Court "Do you have an attorney or are you going Inshort,thecomplaintmustcontainaspecificallegationofevery
to plead guilty?" Accused: "I have no lawyer and I will plead guilty." fact and circumstance necessary to constitute the crime charged.
Whereupon he was arraigned. The Supreme Court ruled that the accuscd
Thus, the cardinal requisite is that the accused be informed of
was denied the right to counsel. waiver was not effective. As the court
facts that are imputed to him. To satisfy this requisite, the information
said in another case, "'Whenever a protection given by the Constitution
must describe the act with sufficient particularity. If personal property
is waived by the person entitled to that protection, the presumptiorr is
is the subject of the offense, the descriptive terms used must be "suf-
rffiLibuit v. People, G.R. No. 154363, September 13,20O5.
rnrU.S. v. Go-Leng,2l PhiI.426,427-9 (19t2). r,,s.pcoplc v. Jara, 144 SCRA 516,5.ll ( l9tt6).
rn2U.S. v. Kilayko, 3l Phil. 371, r6&,.t7 s(,RA 4sO ( 197 I ).
372-3 (t915).
r6m98 Phil. 138, v. Jobson, (rtl S('RA 456 (Dcccmber 29, 1975);
^Srr a/,rd Ml|tiklt:
139 ( 19.55). r.,t, I I'hil. 22 l, 22(| ( l(I)4).
InuPcoplc v. Holgldo, tls ()tl Si('RA 7lO."/47 (.lrrly ]4. lt)RO).
Phil. 75.1,756 ( l95O). I'coplc v l.ulr|trkr.
524 THE 1987 CONSTITI]TION Sec. 14
OF THE REPUBLIC OF THE PHILIPPINES
ficient in their common and ordinary acceptation to show with certainty
to the common understanding of intelligent men what the property was
and to fully identify it."r688 If the value of the property is material, it
must be stated.'68e If an offense has a qualifying circumstance, such as
relationship in statutory rape, the relationship must be alleged.'uno But,
although generally an accused cannot be convicted of an offense that
is not clearly charged in the complaint or information, this rule is not
without exception. The right to assail the sufficiency of the information
or the admission of evidence may be waived by the accused if he fails
to object to its sufflciency during the trial and the deficiency is cured by
competent evidence presented therein.'6e'
Moreover, the allegation "should, if possible, be sufficiently ex-
plicit and certain
as to time . . .Unless the accused is informed of the
day, or about the day, he may be, to an extent, deprived of the opportu-
nity to defend himself."'6e2 However, the information need not allege the
precise time of the commission of an offense, unless time is an essential
element of the crime charged. The date, for instance, is not an essential
element of rape, its gravamen being carnal knowledge of a woman. "In-
deed, the determinative factor in the resolution of the question involv-
ing a variance between allegation and proof in respect of the date of the
crime is the element of surprise on the part of the accused and his cor-
ollary inability to defend himself properly."'un3 Thus, Section 11, Rule
110 of the Rules of Court requires that the time of the commission of
the offense must be alleged as near to the actual date as the information
or complaint will permit. Otherwise, his right to be informed would be
violated. But the accused must raise the issue of defective information
in a motion to quash or in a motion for a bill of particulars.r6e4
t$$ld. a|227.
t68eld. at226.
rffiPeople v. Yaoto, G.R. Nos. 136317-18, November 22,2001; People v.
Dante, G.R. No.
l27652,December 5,2001; People v. Tagud, Sr., G.R. No. 140733,Jantary 30,2W2.
'6erPeople v. Palarca, G.R. No. 146020. May 29,2002.
rs2U.S. v. Javier Diacho, 27 Phil.421,422 (1914). According to gg 6 and
8 of Rule ll0
of the Rules of Court, it inust state the following: (1) the name of the accused; (2) the designatiorr
given to the offense by the statute; (3) a statement of the acts or omissions so complaincd ol us
constituting the offense; (4) the name of the offended party; (5) the approxirnate timc and lirtc ol
the commission of the offense; and (6) the place where the offbnsc hatl bcen conrmittc<l. l)u4rlc v.
I
Quitlong, G.R. No. I2l-562, July 10, l9t)t1,292 S('RA .160.
r6elPeople v. Bugayong, G.R.
No. I265Itl, I)cr:t rrrhcr 2, I()qlt,
rql'er4x v, Ruzorrthlt, (i.l{. Nos. llll0S5 ft7, Aln'il l:1, ,l(XX).
I
I
Sec. 14 ART. III - BILL OF RIGHTS
What is essential therefore is that the accused be informed of the
facts alleged against him; he need not be informed of the characteiza-
tion of the crime, which is a conclusion of law. Hence, provided the
facts afe found in the body of the information, an incolrect caption is
not a fatal defect.r6s However, if the accused is charged with two infor-
mation containing two sets of facts, while trial of the two cases may be
joint, there should be two separate verdicts for the two information. The
facts in the two information cannot be combined to allow a conviction
for a complex crime consisting of the allegations in the two informa-
tion. To do so would violate his right to be informed of the accusation
against him.r6e6 Moreover, where conspiracy is not alleged in the Infor-
mation, it is imperative that the prosecution prove direct participation
in the killing of the victim.'@'
The details on the sufficiency of the information are dealt with in
the Rules of Court, and much of the litigation on the subject deals with
the validity of the information. The defect, however, may also be in the
law itself. Due process requires not only that the accused be informed
of the offense he is charged with but also that he must be able to under-
stand what the law cornmands or prohibits. Hence, if a law is so vague
that its meaning cannot be understood, it is "void for vagueness."'oe8
Notably, however, the right to sufficient information is a right in
criminal proceedings and not in administrative proceedings which only
requires that the respondent be given the opportunity to be heard.'u'
Moreover, the court has emphasized the limitations on the use of the
void for vagueness princiPle:"*
The void-for-vagueness doctrine holds that a law is facially
invalid if men of common intelligence must necessarily guess at its
meaning and differ as to its application. However, this Court has
imposed certain limitations by which a criminal statute, as in the
challenged law at bar, may be scrutinized. This Court has declared
that facial invalidation or an "on-its-face" invalidation of criminal
tneillnrile v. Judge Salazar, G.R. No. 92163, June 5, 1990; U.S. v. Lim san, 17 Phil. 273
(I()lo).
'"'People v. Ramirez, G.R. No.92167-68, July l4' 1995'
'nurPeope v. Calvez, G.R. No. 157221,
March20'2007 '
hqlvoitl tbr vagucness is discussed untier Section I with the requirement ofpublication. See
l,crUlc v. Nnzurio, 165 SCRA I tl6, 195- 196 ( lglltl); l-anzetta v. New Jersey, 306 U.S. 451 (1939)'
fs'Vtlcrtt v. ( )nrhttrlsnrnn, ( i.R. No. I 6727tt' I relrruary 21, zOOt]'
I'rrrl{rxrurullczv ('()Mlil .li(',(i.l{ No l(r7(}ll,l)t'tcltrlrt'r ll,2(X)ll.
 526 THE 1987 CONSTITUTION Sec. 14 Sec. 14 ART. III _ BILL OF RIGHTS 521

OFTHE REPUBLIC OFTHE PHILIPPINES

suffer a similar
statutes is not appropriate. We have so enunciated in no uncertain
Similarly, the accused's own witnesses can disappear or
terms in Romualdezv. Sandiganbayan, thus:
dimming of memory. Hence, the concept of speedy trial is necessar-
In sum, the doctrines of strict scrutiny, overbreadth, and ily relat-ive and determination of whether the right has been violated
vagueness are analytical tools developed for testing ..on their fac- must be based on the balancing of various factors. Lrngth
of delay is
must also be considered
es" statutes in free speech cases or, as they are called in American certainly a factor to consider; but other factors
law, First Amendment cases. They cannot be made to do service to assert his
such as the reason for the delay, the effort of the defendant
when what is involved is a criminal statute. With respect to such
right, and the prejudice caused the defendant''70'
statute, the established rule is that 'one to whom application of a
conde v. Riveratlo3 is the leading case on the subject of
speedy
statute is constitutional will not be heard to attack the statute on
the ground that impliedly it might also be taken as applying to trial.AfterrecitingthepitifulplightofpetitionerConde,JusticeMal.
other persons or other situations in which its application might be colm concluded'1704
unconstitutional.'As has been pointed out, .vagueness challenges
in the First Amendment context, like overbreadth challenges typi- We lay down the legal proposition that, where a prosecuting
the trial of
cally produce facial invalidation, while statutes found vague as a officer, without good cause, secures postponements of
matter of due process typically are invalidated [only] .as applied' his protest beyond a reasonable period of time'
a defendant against
a particular defendant."' for more than a year, the accused is entitled to
as in this instance
relief by a proceeding in mandamus to compel a dismissal of the
corpus
8. Speedy, impartial, and public trial. information, or if he be restrained of his liberty,by habeas
to obtain freedom.
While the 1935 Constitution guaranteed the right to a..speedy and
rela-
public trial," the 1987 Constitution, as did the 1973, now guarantees the Speedy trial, as already stated, like fair trial, is necessarily
right to have a "speedy, impartial, and public trial.,'As already seen, ,.It is consistent with delays and depends upon circumstances. It
tive.
however, the right to impartial treatment is already an aspect of the secures rights to the defendant. It does not preclude
the rights of pub-
guarantee of due process. It should be noted, however, that the right to delays'
lic justicel"To5 \ /rhat the Constitution prohibits are unreasonable
an impartial trial is not a bar to a judge's intervention in cross-exami- papers from the
Thus, a delay of four days in the transmission of appeal
nation. As the court has said'r7'r "we have had occasion to hold that it peace to ihe Court of First Instance was not considered
Justice of the
is not only the right but oft-times the duty of a trial judge to examinc aviolationoftheright.''*Atyphooncouldjustifydelay.lToTSocould
witnesses when it appears necessary for the elucidation of the record.
circumstances of war and liberation''7o8
under the system of legal procedure in vogue in this jurisdiction, wherc
the trial court is judge of both the law and the facts, it is oft-times ex-
Barker v. Wings,407 U'S' 514 (1972)'
r?ozSee
pedient or necessary in the due and faithful administration of justice for Phil. 650 (1924).
170345

the presiding judge ... to re-examine a witness in order that his juclg- t1MId. at652. When the right has been violated, the "accused ... is entitled to ask for his

release, if he is restrained of his li6erty, or for the final

dismissal of the case pending against him."
ment when rendered may rest upon a full and clear understanding ol' 480' 486' 493 (1936):
the facts."
i"i;* ; Apostol, oa pt it. esj' ess itsrz); People v' castaffeda' 63 Phil'
phil. (tsls); people v. Abano,97 Phil.28,30-1 (1955); Baesa
ergu"ru la costa,66 tr+, trs
".b"
v. irovincial Fiscal of Camarines Sur, 37 SCRA 437'
443 (1971)'
Speedy trial, for its part, is a two-edged sword. It can work against S'ec"DoubleJeopardy,"inVa,tortheeffectofthedismissalonthepossibilityofsubse-
or to the advantage of the accused. since the prosecution has the burclcrr quent Prosecution'
'7"lMorcarlo v. Santos' 66 Phil.
215,235 (1938), citing Beavers v' Haubert' 198 U'S' 86
of proof, delay in the trial occasioning disappearance of witncsscs :rrrtl
( reOs).
the dimming of memories can actually lessen the chances ol'convictiorr. r/'hPcoplc v. Vizcontle' 75 Phil' 520 ( 1945)'
't"/l'trrPlc v. Alipao, 96 l'hil 2O' 22
( 1954)
v' Zabala. 86
t |.,*(
ittnttlr v. l )irccl(lr rll. l,t.istltls, 77 l'hil' 993 ' 995 ( l 947)' See also People
r7'rrPcoplc v. Munalo.
l4lt S(lRA 9ll, l()4-lOS ( lt)t{7), quoting t).S v. Lrrrr'l'irr. ll (l')50): Mtnrrlnrl v. l\rrvitteittl Wttrrlctt'()4 l'hil 44 (1951)l Pcople v'Jtramilla'97 Phil'
l'lrrl I'hil.25l
504.506 ( lt)1J1. r{lto ( 1955).
 528 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
While it is the duty of the prosecution "to see to it that crimi-
nal cases are tried without unfounded delays,"rzor the accused himself
"cannot sleep on said right but must see to it that his case be tried at
any early date ... [He] cannot agree to the repeated postponement of
the trial of his case and then, when he finds the government absent or
unable to go to trial on any of the dates of hearing, take advantage of
said absence and ask for the dismissal of his case."r7r. Much less may
he be allowed to connive in the hiding of witnesses in order to delay
trial. "The constitutional privilege was never intended as furnishing a
technical means for escaping trial."r7rl Moreover, if an accused races the
defense ofdenial of a speedy trial only on appeal, he is deemed to have
already waived his defense.rTr,
The right, moreover, may be waived. But waiver is not to be in-
ferred from mere failure of the accused to urge the trial of the case. such
waiver or abandonment may be presumed only when the postponement
of the trial has been sought and obtained by the accused himself or by
his attorney.rT'3 The presumption, in fact, is always against the waiver of
constitutionally protected rights,.'''.
Two 1947 cases had occasion to ask whether the right of speedy
trial also included a right to a prompt rendition of judgment. Justice
Perfecto, dissenting in Velasquel v. Director of Prisonst|,' expressed an
affirmative answer to the question'1716
. . . The word trial as used by the Constitution includes hear-
ing, reception ofevidence, and other processes, such as decision in
the first instance, appeal, and final and executory decision in last
rTDKalaw v.
Apostol,64 Phil. 852, 859 (1937); Mercado v. Santos,66 phil. 215,21l
(re38).
f TroPeople v.
Jabajab, 100 Phil. 307, 310 (1956); Medina v. Orozco, J r.,L-267 li.Dcccnrhcr
22,1966.
rTrrEsguerra v. court of First Instance,95 Phil. ffi9,611-z (1954). cf. Rustiu v. Jtxrquirr,
7t Phit.22 (1940).
rTr2People v. Mendoza,
G.R.No. 180501, December 24.2O08.
fTrrKalaw v. Apostot,64
Phil. at
8 59.\n Esguerra v. court of First Inston(:(, supru,norc lg2
at 613, the Court also added,citing2C.J.5.725,that the accused is not entitled kr his rlischnrge
if the delay is caused by continuances made by the court on its own motion. ln l\ttplt, v. ()pluht.
L-20146, September 30, 1964, it was said that where one of two co-accused can bc trictl scplr.rrtcly,
the absence of the other does not justify delay of the trial of the accuscd who is prcst nr
rTraPeople v.
Jara, 145 SCRA 516 (Scptember 30, l9tt6).
r71577
Phil.983 ( 1947).
r7r''/r/. :rl ()llll.
Sec. 14 ART. III - BILL OF RIGHTS
instance. To exclude the final decision is to make of the constitu-
tional guarantee a mocking nonsense. The guaranty will absolutely
serve no purpose if tribunals could keep criminal cases pending
for years and decades by failing to render final decision, whether
because of laziness or lack of sense of duty or for fraudulent or
criminal neglect.
while this position was definitively rejected in Talabonv. Iloilo
Provincial Warden,"" it has been given life by the 1973 and 1987 Con-
stitutions. Section 16, Article III, now says: "All persons shall have the
right to a speedy disposition of their cases before all judicial, quasi-
judicial, or administrative bodies."
The remedy an accused has for violation of his right to speedy trial
is dismissal of the case and, if he is under detention, release by habeas
corpus.Moreover, dismissal for violation of the right to speedy trial is
equivalent to acquittal and is therefore a bar to subsequent prosecution
for the same offense.
Decisions under the 1973 Constitution on the whole followed tra-
ditional principles.rTrs But the martial law regime did take its toll. On
more than one occasion the Supreme Court said that "with the procla-
mation of martial law and the concomitant suspension of the privilege
of the writ of habeas corpus, at least as a rule, claims of denial of a
speedy trial are unavailing, what with the recognized authority of the
government or the administrator of martial law to detain persons only
for preventive purposes." rTre
While the right to a speedy trial has received considerable atten-
tion from the Supreme Court, it was only in the 1973 case of Garcia v.
Domingo',2o that the meaning of the right to a public trial was dealt with.
4
The issue was whether the trial held in the judge's chambers without,
L-l7427,July 31, 1962,and
'"t?8 Phtljr,,ffig (1g47).Affirmed in Acosta v. People,
Cabarroguis v. San Diego, L- I 95 I 7, November 3O' 1962 -
people, G.R. 46576, November 6, 19?8; Bermisa v. Court of Appeals, G.R.
'i,'Ventura v.
32506, July 30, 19'19.
rTreluneta v. special Military commission, 102 scRA 56, 65 (January 16, 1981); Ocampo
v. Military Commission, lO9 SCRA 22 (November 6, 1981); Nepomuceno v. Secretary of National
Def'ense. lOtl SCRA 65tl (October 30, l98l ). In the Nep omuceno case,Fernando, Teehankee, Bar-
. re<Jo, anrl Aht<l Suntos disscnlctl prclcrring to keep the speedy trial issue open'
t/r'1...|ol04,.luly 25. Ir)7.t. Jrr d/so l)coplc v. Tampus,96 SCRA 624 (March 28, 1980)'
wlrcrc thc ('prtrt rlitl rrol lrt crl tlrc rutrrsctl's oltjt'cti()tt to his scntoncing in thc Bilibid Prison instead
ol itt r'ottrl,
 III - BILL OF RIGHTS 531
530 THE 1987 CONSTITUTION Sec. l4 ART.
OF THE REPUBLIC OF THE PHILIPPINES

however, any evidence of an attempt to exclude the public was violative cil meeting are not admissible in evidence.r726 A doctor who executes
Nor
of the constitutional command. Answering the question in the negative, the medical certificate must be presented for cross-examination.'72?
Fernando said that a trial is public "when anyone interested in observ- is evidence in another case, where the accused was not a party and in
ing the manner a judge conducts the proceedings in his courtroom may which he was not heard, admissible against him'r?28 "at the trial" means
do so. There is to be no ban on such attendance. His being a stranger ,,athis ttial."]l2s But a police informant who is not presented as a witness

to the litigants is of no moment. No relationship to the parties need be does not have to be cross-examined.
shown." True, a recognized exception is that the general public may be
Agreementsbetweenprosecutionandthedefensetotheeffectthat
excluded when the evidence to be presented in the proceeding may be deprive
certain iuitn"rr"r, if presented, would testify to certain facts can
characteized as "offensive to decency or public morals."r72r But even review
the defendant of the right of confrontation (besides preventing
in such instances the constitution demands that the accused should be The practice, however, of
of the evidence by the appellate court).r73o
allowed at least to "have his friends, relatives and counsel present, no disallowed. It has
admitting such agreements has not been completely
matter with what offense he may be charged."tzz right
been allowed when there has equivalently been a waiver of the
The purpose of this guarantee is to serve "as a safeguard against of confrontation and when the agreement is such that it is based on
any attempt to employ our courts as instruments of persecution. The previously obtained evidence which can be reviewed by the appellate
knowledge that every criminal trial is subject to contemporaneous re- court.rT3r
view in the forum of public opinion is an effective restraint on possible
A corollary of the right of confrontation is that testimony not
abuse of judicial power."tzz: It was on this justification that the guar-
subjected to cross-examination must be excluded from consideration.
antee, already contained in the earliest Philippine organic acts, gained of
However, if cross-examination actually commenced, but, for lack
acceptance at the 1935 Constitutional Convention.'ir4 witness in the meantime died
material time, was not completed, and the
The right to an impartial trial is treated above under Section l4( I ). before cross-examination could be resumed, so much of the testimony
as had already been covered by cross-examination is admissible''73'
9. Right of confrontation.
A notable exception to the requisite of confrontation is a "dying
Closely connected with and equally essential as the right to be declaration." Justifying such an exception, u.s. v. Gil'113 appealed both
heard is the right "to meet the witnesses face to face," or, as Rule I 15, to the American source of the constitutional guarantee and to Roman
Section 1(f) of the (New) Rules of Court expresses it, "to confront and Civil Law:
cross-examine the witness against him at the trial." The right has a twt>
fold purpose: (l) primarily, to afford the accused an opportunity to tcst TheAmericanauthorsofthePhilippineBillandofGeneral
the testimony of the witness by cross-examination, and (2) secondarily, Orders, No. 58, must be presumed to have borrowed the provi-
to allow the judge to observe the deportment of the witness.'','Thus, rc-
sionsoftheConstitutionoftheUnitedStatessecuringtoaccused
persons the right of confrontation and cross-examination of the
marks about the accused found in the proceedings of a municipal courr-
r726U.S. v. Tanjuanco, I Phil. 3'14'3"15 (1902)'
r72r(New) Rules of Court, Rule 119, Section 13. r?2?f].S. v. Lorenzana, 12 Phil. 64' 70 (1908)'
t722ln re Oliver,333 U.5.257,272 (1948). t?28U.S. v. Bello, 1l Phil. 526, 527-8 (1908)'
t723ld. at 27O.' r72eU.S. v. Remigio, 35Phil.'l19'727 (1916)'
rT2aGarcia v. Domingo, L-30104, July 25,19'13. (1907)'
See also People v.'lirnrpus, 96 S('ltA ar24 '7'('U.S. v. Donato,9 Phil.701
(1908); U'S v' Alabanza' 11 Phil' 475 (1908); U'S' v' Manli-
(March 28, 1980), where the Court did not heed the accused's objcction kr his scrrtcncirrg irr tlrr '7rrU.S. v. Pobre, ll Phil' 5l
Bilibid Prison instead of in court. nxrs, I I Phil. 54? (Ig0ti); U.S. v. l-aranja,2I Phil' -500
(I912)'
r725U.S. v. Anastacio.6 Phil.4l3,4l6 ( l9O6).
ll.S. Rnymuntkr, l4 Phil. 416,.{.llt ( l(X)t)), r7''rl'coplc v. Scncris. ()9 S('RA 92 (Auttust 6' l9tt0)'
U.S. v. Javicr. 37 Phil.449,4.52 (19ltl). ll hns nlso her:n ht:kl thrt thc rigltt is tvuillhlc orrly lrr |/..1:} l,hil. 5]()' 549 ( l(X)()), (.iliui M,tst'nHtl' Dt': I'nunl. Crt.vcl,. 1080, U.S. v. Montes,6
crimintl pnrccdings.('lturr(krv.(irlk'tkr ol ('rrslorrrs,5()l'lrrl 1,t1,5,t/ tl(l'rl'l) I'hil.'l.l t ( ItXXt).
 532 THE 1987 CONSTITLITION
OF THE REPUBLIC OF THE PHILIPPINES
witnesses against them, subject to the well-established exceptions
which have always been recognized under the rule as laid down
by the Constitution of the United States, and it is clear that these
provisions were not intended to render inadmissible dying decla-
rations in criminal cases touching the circumstances leading up to
the death for which the prosecution is instituted, for such declara-
tions have always been regarded as an exception to the general rule
rejecting hearsay evidence, on the general principle, as laid down
by Lord Baron Eyre, "That they are declarations made in extrem-
ity, when the party is at the point of death, and when every hope of
this world is gone; when every motive to falsehood is silenced and
the mind is induced by the most powerful considerations to speak
the truth. A situation so solemn and so awful as to be considered
by the law as creating an obligation equal to that which is imposed
by a positive oath in a court ofjustice." The rule is the same as the
rule of the Roman Civil Law, "Morti proximum, sive moribundum,
non praesumendum est mentiri, nec esse immemorem salutis, ae-
ternae; licet non praesumatur semper dicere verum.',
An interesting question on the right of confrontation which arose
under the 1935 constitution was whether the right is available during
the period of preliminary investigation. The cases of Dequito v. Arel-
lenot734 and Bustos v. Luceroti3s both answered the question in the nega-
tive. "As a matter of fact," Justice Tuason wrote for the Court,..prelimi-
nary investigation may be done away with entirely without infringing
the constitutional right of an accused under the due process clause to a
fair trial."'*6 Indeed, on the basis of the meaning of "criminal prosecu-
tions" as expounded in People v. Josen3i it is difficult to support a con-
trary view. Moreover, the 1987 constitution can be read as supportinS
Justice Tuason's view because Section 12(1), in its enumeration of thc
rights that are constitutionally guaranteed during investigation, does not
include the right of confrontation.
Later decisions have adhered to this doctrine, although a statutory
right of confrontation is recognized during preliminary investigutittrt
proper but not during preliminary examination As the court saitl irr
Marinas v. Siochili38
r7381 Phil. 128 (1948).
t13sld. at 640.
t736
Id . at 649 .
r73737
SCRA 450 ( 197 I ).
l?frl04S('ltA 4'),1,4.11 I (Muy 14. l()tl l)
Sec. 14 Sec. 14 ART. III - BILL OF RIGHTS 533
From Section 5 of Rule 112 it is clear that, unlike in the pre-
liminary investigation proper, an accused is not entitled as a matter
of right to be present during the preliminary examination nor to
cross-examine the witnesses presented against him before his ar-
rest, the purpose of said examination being merely to determine
whether or not there is sufficient reason to issue a warrant of arrest.
(The provision) commanding the determination of probable cause
prior to the issuance of a warrant of arrest, requires no notice to an
accused. A preliminary examination is generally a proceeding e'r
parte inwhich the person charged has no right to participate or be
present.
10. CompulsorYProcess.
Equally important as the right to counsel is the right to compul-
sory process for the attendance of witnesses.r?3e The accused, however,
may not invoke this right on appeal if he made no effort during the trial
to avail himself 6f i1.rrm Moreover, to establish the right to continuance
by reason of the absence of witnesses the accused must show: (a) that
the witness is really material; (b) that he is guilty of no neglect in pre-
viously obtaining attendance of said witness; (c) that the witness will
be available at the time desired; (d) that no similar evidence could be
obtained."o' The court also said in a capital case that the judge acted
precipitously in not having a witness brought to court by ordering her
arrest instead of leaving the appearance of the witness to the persuasive
power of the accused.'"'
The 1935 Constitution guaranteed the right "to have compulsory
process to secure the attendance of witnesses in his behalf." The 1973
provision, and now the 1987, has modified the guarantee slightly by
adding the right to have compulsory process to secure "the production
of evidence in his behalf." As already seen, however, this is already
implicit in the right to be heard. The Court recently recognized the tex-
tual difference between the 1935 and the 1973 provisions but has as
yet refrained from making "a definite pronouncement on the scope of
rTreThe constitutional guarantee is in favor of the accused. But see People v. Montejo'
1--24154, October 3 l. 1967.
|/a"[l.S. v. (itrt i;t, Io l'lril. 3t{4 ( It)Ott).
Itartl.S.v. l{l|ilrircz.]t)l,hil.7Jt1 (l()l()); Nillivi(ltrdv.Malqtrez,38Phil.608(1918);People
v, Snntlll.54 l'hil.l{tl | ( l9lo).
()tl0)'
r ra'l'eoltlc
v. llttt tltt;c, i)t) li('lt A llll'1,'lO,t'l ( Alllillsl'l()' l
 I9STCONSTITUTION
534 THE
OF THE REPUBLIC OF THE PHILIPPINES
the expanded concept of the constitutional right to secure not only the
attendance of witnesses but also the production of evidenss."rt+t But in
Webb v. de Leon, the Court ruled that, since a preliminary investigation
can result in arrest, the accused should not be denied access to evidence
favorable to him.r7*
11. Tlial in absentia.
In the discussion of the right to be heard it was stated that the right
includes the right to be present at every stage of the trial from arraign-
ment to rendition of judgment. There is thus a constitutional proscrip-
tion of trial in absentia. A 1970 American decision said that this is not
an absolute rule. In lllinois v. AIIen,"o'the accused, during the trial,
engaged in speech and conduct which was so noisy, disorderly, and dis-
ruptive that it was impossible for the trial to proceed. After repeated
warnings, the trial judge ordered the accused removed from court and
told him that the trial would continue in his absence until he promised
to conduct himself in a manner befltting a court-room. On appeal, the
Supreme Court held that by his behavior the accused had forfeited his
right to be present throughout the trial.
The 1987 Constitution, as also the 1973 Constitution, now pro-
vides for allowable trial in absentia.Article III, Section l4(2), has this
added sentence: "However, after anaignment, trial may proceed not-
withstanding the absence of the accused provided that he has been duly
notified and his failure to appear is unjustifiable." The evident purpose
of this change is to prevent unnecessary delays of the trial.'?a6 The rights
of the accused are amply protected because trial in absentia can be had
only ifthree conditions concur: (1) accused has been arraigned; (2) no-
tice of the trial was duly served to him and properly returned; (3) his
failure to appear is unjustified.r?47 The Court has ruled that the presence
of the accused at afraignment is an absolute requisite for any trial to
proceed, the reason being that it is at arraignment that the accused is
informed of the nature and cause of the accusation against him and it is
rTa3Fajardo v-Garcia,98 SCRA 514,520 (July 2' 1980).
r744webb v. de Leon, G.R. 121234, August 23' 1995.
U.S.955 (1970).
'u5396
rTa6People v. Salas, 143 SCRA 163 ( l9tt6).
t?a7Sae Meeting ol' l6GMan Spccial (irnrnillcc, Novcnthcr 16, 1972: llttlttltt v. Vcttcrtt-
cion, A.M. No. ll'li.rxr l.]5J. M:rrch ll. 1997, .l('() s('llA l'/1, l7(r (t'itrrrtrl l\r1rlc v. silhrs, 1,1.1
S('ltA l{r} |l')l{61;
Sec. 15 ART, III _ BILL OF RIGHTS
Sec' 14
then that the trial court acquires jurisdiction over the person.'?n8 It has
also been ruled that the new provision allowing trial in absentia does
not "lend itself to a latitudinarian construction" that would preclude
forfeiture of bail for one who jumps bail.'74e Moreover, there is a statu-
tory rule which requires the presence of the accused at promulgation of
judgment.'7so
Tial in absentiacan also take place when the accused voluntarily
waives his right to be present. There are, however, restrictive conditions
for allowing waiver. The right may be waived "provided that after ar-
raignment he may be compelled to appear for the purpose of identifica-
tion by the witnesses of the prosecution, or provided he unqualifiedly
admits in open court after his arraignment that he is the person named
as the defendant in the case on trial. Reason for requiring the presence
of the accused, despite his waiver, is, if allowed to be absent in all the
stages of the proceeding without giving the People's witnesses the op-
portunity to identify him in court, he may in his defense say that he was
never identified as the person charged in the information and, therefore,
is entitled to acquittal."rTsr Thus, for an accused to be excused from at-
tending trial, it is not enough that he vaguely agrees to be identified by
witnesses in his absence. He must unqualifiedly admit that every time
a witness mentions a name by which he is known, the witness is to be
understood as referring to him.r?52
Src.15. Tur pRTvILEGE oF THE wRIT oF rrABEAs coRPUs sHALL
NOT BE SUSPENDED EXCEPT IN CASES OF INVASION OR REBELLION WHEN
THE PUBLIC SAFETY REQUIRES IT.
1. Suspension of the privilege: seat and limits of the power
under the 1935 and 1973 Constitutions.
The constitutional guarantee protecting personal liberty would be
a worthless thing if its violation were not immediately remediable in
law. The writ of habeas corpus functions as the most important and
Ita*Borja v. Mendoza,77 SCRA 420 (Iwe 29,1977).
rTa"People v. Judge Prieto, Jr., G.R. No. 46542, July 21,1978.
r"')See I RECORD 716.
l71rl)coplc v. Prcsiding Judge, (i.R. L-e131 , October 26, 1983; Aquino, Jr. v. Military
Chrrnnrissiort No. 2, L-.17364, April 24, 1975.
't'r(irrrtrkr v. Itcoplc, (i.R. No. 77542, Mlrch 19, l9q), citing Peoplc v. Presiding Judge,
125 S('laA 2(r() 1 1t13 1,.
 THE 1987 CONSTITUTION Sec. 15 ART. III - BILL OF RIGI{TS
s36
OF THE REPUBLIC OF THE PHILIPPINES

to
most immediately available safeguard of that liberty under Anglo-Sax- No. 70, the power to set at liberty any person arrested in pursuance
on Law. Its essential object and purpose "is to inquire into all manner military orders was denied to all courts of the Islands'"'e
of involuntary restraint as distinguished from voluntary, and to relieve The first constitutional guarantee of the availability of the writ
a person therefrom if such restraint is illegal.""s'
found in the Philippine Bill both guaranteed the right to the writ
and
leading case under this provision is
Itwas "devised and exists as a speedy and effectual remedy ttl set the limit to its availability. The
Barcelon v. Baker.l,* This was a petition for the issuance of the writ of
relieve persons from unlawful restraint, and as the best and only suf'-
habeas corpus in favor of Felix Barcelon against two constabulary
offi-
ficient defense of personal freedom. Any further rights of the parties are
left untouched by decision of the writ, whose principal purpose is to set cers. The former was being detained in Batangas where the privilege of
the individual at liberty."r754 It is defined as a writ directed to the person the writ of habeas corpus had been suspended by the Governor-General
predi-
detaining anothet, commanding him to produce the body of the prisoner by authority of the Philippine commission. The suspension was
in cavite and Batangas. The
at a designated time and place, with the day and cause of his caption on the existence of open insurrection
"ut"d The
and detention, to do, submit to, and receive whatever the court or judgc existence of such disorder, however, was denied by the petitioner.
awarding the writ shall consider in that behalf.'^' Supreme court, in denying the petition, declared that
"the conclusion
order, as to the fact
sefforth in the said resolution and the said executive
From the very nature of the writ, a prime requisite for its availabil- insurrec-
that there existed in the Province of Cavite and Batangas open
ity is actual deprivation of personal liberty."'u Liberty, however, may bc within
lost not by physical compulsion alone'1757 tion against the constituted authorities, was a conclusion entirely
the discretion of the legislative and executive branches of the Govern-
Freedom may be lost due to external moral compulsion, to ment, after an investigation of the facts" and that "one branch
of the
founded or groundless fear, to erroneous belief in the existence of united States Government in the Philippine Islands had no right to in-
an imaginary power of an impostor to cause harm if not blindly terfere or inquire into, for the purpose of nullifying the same,
the discre-
obeyed, to any other psychological element that may curtail the tionary acts tf another independent department of the Govelnment'"r76r
mental faculty of choice or the unhampered exercise of the will.
If the actual effect of such psychological spell is to place a per- be noted that the authority of the Govemor-General,
It should
son at the mercy of another, the victim is entitled to the protection jointly with the Philippine commission, to suspend the writ of habeas
"rorpi,
of courts of justice as much as the individual who is illegally de- was not in issue at all. By the provision of the Philippine Bill
prived of liberty by duress or physical coercion. of t'goz,the United States Congress had obviated the controversy oc-
casioned by the Federal constitution's failure to specify the seat
of the
The constitutional guarantee for the availability of the writ ilt ground for suspen-
power to suspend the writ. Nor was the theoretical
the Philippines was first made in the Philippine Bill of 19O2. Prittr ltt joint ex-
sion in issue. What was in issue was the reviewability of the
the Philippine Bill, therefore, the legislative branch of the Philippinc situa-
ecutive-legislative decision regarding the existence ofthe factual
govemment enjoyed absolute power over the suspension of the wril."" strictly the doctrine of
tion which would warrant suspension. Following
Thus, under General Orders, No. 58, as amended by General Ortlcrs. with the
separation of powers, the Supreme Court refused to interfere
action of the political departments'
r?s3Villavicencio v. Lukban. 39 Phil. 778, 790 ( I 9 l9).
t15ald. at788:9.
r755BLAcK's L.q,w DrcuoNMv 837 ( 195 I
). --ffiI|,*ay, I phil. I l, l2 ( l90l). This situation did not change until after the pas-
r756Tan Me Nio v. Collector ol'('ustonrs, .1,1 I'hil. ()44, ().17 ( l() I 6): ZaE:rlir v. llrrslrc, 4tl I'htl
282,283 (1925); Caunca v. Salazrtr, tl2 I'hil 1t5l (l\)11)l.unrcpttrnl. sagcrrf.AclNtr.l.l(linrclati.rlrwithAclNtl-l()().i'aytrnitrv.Irloyd,42Phi|.788,192(1922).
tt'?Caunca v. Sirltrz:rr, ttl l'hil. tJ5l. Nolt'lh:rl luilxtt.r utrput in this t:tsc wtts ttstrl llpnttfil /t'5 I'lril. tl7 (l9o5).
|/,,r/r/:rl ()li, lolkrwcrl rilrtlerllrt. I()l5('()nsliluli()ttittMonlcnegrttv.('astafrcda.9I I)hil'
a privatc prsrxt.
l"*Willltrtl../..,/i.\,\t'ttlnt!: ttt llitttt'lotr v llitkt't. \ I'htl lt/. I lt{ ( Itl(l\} Itll-) ( l()5.r)

tl
538 THE 1987 CONSTITT]TION Sec. 15 ART. III - BILLOFRIGHTS
OF THE REPUBLIC OF THE PHILIPPINES

the Fxecu-
With the passage of the Philippine Autonomy Act, a change was vided for in the proposed grant of power of suspension to
the two
made. The Governor-General was given authority to suspend the writ tive and that, therefore, the amendment would only harmonize
without the joint action of the legislature and, conversely, the legisla- provisions on habeas corpus.|761 He added that the abuses
envisioned
the early American rule.
ture was deprived of its role in the suspension of the writ. Thus, the law Ly Delegate orense were-those found under
-confidence, future Philippine
stood until the adoption of the Constitution of 1935. Greater he said, should be placed in the
There were two provisions on the suspension of the wnt of ha- government.Theamendment,however,wasdefeated''ogalthoughthe
beas corpus in that Constitution, one in the Bill of Rights, the other in iu*" groond was approved under the Executive Department'
arose as
the article on the Executive Department. The Bill of Rights provision Thus it was that under the 1935 Constitution the question
privilege should
guaranteed the availability of the writ and set the grounds for suspen- to which enumeration of grounds for suspension of the
sion. The provision under the Executive Department, besides setting thc prevail - the r-",ution under the Bill of Rights or that under the
grounds for suspension, also specified the seat of the power to suspend. ".t
articleontheExecutiveDepartment.rloe{Jndglthelg73Constitution,
At the 1935 Constitutional Convention, the original proposed pro- however,thequestionbecameacademicbecausetheBillofRightswas
said in part: "In
harmonized *ith A.ti"l" IX, Section 12 (1973),which
vision under the Bill of Rights read'r?62 or imminent danger thereof'
case of invasion, insurrection, or rebellion,
may suspend the
The privilege ofthe writ of habeas corpus shall not be sus- when public safety requires it, fthe Prime Minister]
pended, unless when in case ofrebellion, insurrection, or invasion privilege of the writ of habeas corpus ' "
the public safety may require it, in either of which events the same "'
may be suspended whenever during such period the necessity for
Itisthusclearthatsincethepowertosuspendtheprivilegebe-
at least initially
such suspension shall exist. longs to the Executive, it is the Executive who must
question which
decide whether the grounds for suspension exist. The
Various amendments were proposed to make this provision say thennextarosewaswhethertheactiontakenbytheExecutive'ifhe
specified by the
that the suspension shall be "by the President." These amendments does suspend the privilege on the basis of the grounds
already seen, in
were withdrawn when it was pointed out that the seat of the powcr Constitution, should be iubject to judicial review. As
Barcelon v. Baker,,,,u the Supreme Court held that the
validity of the
to suspend the writ would be dealt with under the Executive Deparl-
political question not sub-
ment.1763 An amendment was also proposed by Delegate Francisco to action taken by the Governoi General was a
ject judiciaireview. when the question once again was raised after
make "imminent danger" of the enumerated conditions (invasion, in- to
"president the Supreme court
surrection, rebellion) a ground for suspending the writ; but, in spitc Quirino suspended the privilege in 1950,
v' B ake r' reiterated
\n Mont e nig ro v. C asiafie da,111 relying on B ar c e lo n
1
of its initial approval by the Convention,ris upon reconsideration on
the rule that the question was political' Eventually'
however' Lansang
motion of Delegate Orense, the amendment was rejectg6l.''u, Delcgatc
Orense objected to the ambiguity and broadness of the term "immincnl v.Garcia|T12ovemrledtheprincipleadheredtoinBarcelonandMonte-
danger" and the consequent danger of such ambiguous power in thc neqro.
priv.ilege by
hands of an executive possessing dictatorial tendencies.rTno Francisco. The Lansang case arose out of the suspension of the
however, pointed out that, in any case, such ground was already pro- President Marcos in 1971. Analyzing the constitutional provisions, the

17o1ld. at 1215-16.
'7624 JOURNAL OF THE CONSTITUTIONAI- (]()NVIINTION OII'I'I IIi I'I III,II'I'INIiS t168ld. al 1216.
l214 (Francisco Ed., 1964) hereinaf-rer circd as JO(JRNAl.. t7t'eScr'[ltlRN,ts,AHtsttntctttt'tts'lttRtot<'ttstLtnvorruEPutttppNeBtttot'Rrcms258-260
t763ld.
(le7l).
tlqld. r/n,5 l,hil. 6/ 1 l()05).
t1"'ld. irt 12l,6. r"'t)l I'lril 88,t ( l95l).
| /(''lr/.
at I I 5.
-l 1"r.1 I \(',1{A,l,lx (l()'/l).
 54O THE 1987 CONSTITUTION Sec. 15 Scc. l5 ART. III BILL OF RIGHTS 541
OF THE REPUBLIC OF THE PHILIPPINES -
Supreme court said that for the validity of the suspension of the privi-
merely whether he has gone beyond the constitutional limits of his ju-
lege two conditions must concur: (1) that there is invasion, insurrection,
risdiction, not to exercise the power vested in him or to determine the
rebellion, or imminent danger thereof; (2) that public safety requires
wisdom of his act."'7so More specifically, the Court said that its power
the suspension. The Presidential proclamation stated that there was an
was not "even comparable with its power over civil or criminal cases
actual state of rebellion and that "public safety requires that immediate
elevated thereto by appeal ... in which cases the appellate court has all
and effective action be taken in order to maintain peace and order, se-
the powers of the court of origin,"tzs' nor to its power over quasi-judicial
cure the safety of the people and preserve the authority sf 1fus g141g."rnr
administrative decisions where the Court is limited to asking whether
Was this finding made by the President subject to judicial review?
"there is some evidentiary basis" for the administrative finding.'782 In-
The Court was "unanimous in the conviction that it [had] the au_ stead, the Court accepted the Solicitor General's suggestion that it "go
thority to inquire into the existence of said factual bases in order to de- no further than to satisfy [itselfl not that the President's decision is cor-
termine the constitutional sufficiency thereof."r774 The court ovemrled rect and that public safety was endangered by the rebellion and justified
Barcelon v. Baker arguing that Barcelon had relied chiefly on Martin the suspension of the writ, but that in suspending the writ, the President
v. Mottt,Ts which involved not the power to suspend the privilege but did not act arbitrarily."
the much broader power to call the militia.l'76 Moreover, according to
Ultimately, therefore, the Supreme Court's dance in Lansang v.
the court, the suspension in Barcelon was the act of "the American
Garcia, choreographed by the Solicitor General, consisted of one step
Governor-General, whose act, as representative of the sovereign, af-
forward, ovemrling Barcelon.and Montenegro, and one step backward,
fecting the freedom of its subjects, can hardly be equated with that of
reducing its newly assumed power to nullify. Having thus immobilized
the President of the Philippines dealing with the freedom of the Filipino
itself, its inevitable conclusion was to uphold the validity of the suspen-
people, in whom sovereignty resides, and from whom all government
sion. For good measure the Court also threw in a bonus: "We enter-
authority emanates."t777 Having thus disposed of Barceloz, the Court
tain ... no doubts about the existence of a sizable group of men who
also added that it had thereby disposed of Montenegro v. castafieda
have publicly risen in arms to overthrow the government and have thus
which "was based mainly upon the Barcelon case, and, hence, cannot
been and still are engaged in rebellion against the Government of the
have more weight than the sn.ng."rzza And finally, the court said that
Philippines."tzt:
since the power to suspend the privilege was surrounded by constitu-
tional limitations "like the limitations and restrictions imposed by the With such a thin line dividing justiciability from non-justiciabili-
Fundamental Law upon the legislative department, adherence thereto ty, it came as no surprise that at the next opportunity the Supreme Court
and compliance therewith may, within proper bounds, be inquired into had to examine the doctrine and under circumstances less hospitable to
by courts of justiss."tns judicial activism, it should cross over back to Barcelon. This the Court
did in Padilla-Garcia v. EnriletlEa and Morales v. Enrile .t78s The result in
What, however, are these "proper bounds" on the power of the
courts? The court first gave the general answer that its power was Padilla-Garcia is all the less surprising when one reflects on the various
'omerely to check types of "political questions."
not to supplant the Executive, or to ascertain
- -
t713ld. at4'11.
.

t77ald.
at 473. r?$/d. at 480.
177512
Wheat. 19 (1827). tlrt
t77642 Id.
SCRAat 472-3. t1t2
I.l .
1177
Id. 17*'ftl. nt 4711.
t118ld.
rTia(I.R. No. 61.|lllt, April 20. lgtt.]
ttl')hl . il 4J4.
I fi'(i.R. No. 6l{)l(r, April 26, lgtt-l
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
There are six faces of the political question doctrine enumerated
in the case of Baker v. Carr,t7s6 but these can be reduced to three, each
of them representing a way of approaching constitutional law problems.
There is the textual approach which asks the question: What does the
letter of the constitution say? There is the functional approach which
asks the question: Are we capable of resolving the problem posed? And
there is the prudential or political approach which asks whether there
are overriding considerations which prevent the Court from entering the
thicket. The earlier Barcelon v. Baker, in arriving at a "political ques-
tion" conclusion, had done so on a combination of all three approaches.
Textual'. when the law grants discretionary authority to a person to be
exercised upon his opinion of certain facts, he alone is judge of the
existence of those facts. Functional: the executive and legislative de-
partments have the machinery for verifying the existence of those facts
whereas the courts do not. Prudential: interference by the courts in the
decision can result in tying the hands of those charged with maintaining
order. Montenegro v. Castafieda is not doctrinally significant because it
merely accepted and then applied the doctrine of Barcelon.I'ansang,in
reversing Barcelon,also took the textual approach but arrived at an op-
posite conclusion: Lansang concluded that discretion indeed had been
granted to the Executive, but not absolute discretion. However, aware
of the inconveniences that a narrow textual approach cotlJd entail, Inn-
sang limited the review function of the Court to a very prudentially
nzurow test of arbitrariness . Padilla played the dance all over again and
found Barcelon's textual conclusion preferable and judged the test of
arbitrariness in Lctnsang both functionally and prudentially naive.
There admittedly are certain factors which make Padilla's textual
approach to the question stronger than the Barcelon arguments. First,
the 1973 Constitution had a textually broader source of constitutional
power in that it made "imminent danger" of invasion, insurrection, or
rebellion sufficient ground for suspension of the privilege, whereas the
rT86"Prominent on the surface of any case held to involve a political question is lbund: (t)
a textually demonsirable constitutional commitment to a coordinate political departrncnt; (b) a
lack ofjudicially discoverable and manageable standards for resolving it: (c) the inrpossihility ol'
deciding without an initial policy determination ofa kind clearly lirr non-iutlicill rliscrclion: (d)
the impossibility of a court's undertaking indcpcndent rcsolrrtion wilhottt cxlrtcssing l;rck ol lln'
respect due coordinatc branches ol'Sovcrnrncnl. (c) irn unusu:rl n('('(l li)r ttttt;ttt'sliottittg rrlltctcttcc
to a political tlccision tlrc:uly nratlc; (l) tlrc lxrtcrrtialily ()l cnrhlrnlrssntcnl lr()nr nntllilittiotts pro
ll()Unccnt('nls lry viiliorrs (lcl)irrlilr('nls orr orrt'rlucsliorr " l6t) [l.S llt(r, ]l / ( lr)(r2)
Sec. 15 Sec. 15 ART. III * BILL OF RIGHTS 543
Philippine Bill of 1902 did not use the phrase "imminent danger." Sec-
ondly,Barceloninvolvedthe power delegated to a colonial government
inferior in status to the power of a duly elected President of an indepen-
dent Republic. Nevertheless, not even these conclusively demonstrate a
textual grant of absolute discretion.
Justice de Castro, in his main opinion in Padilla, also said that the
Constitutional Convention of 1935 had the opportunity to modify the
Barcelon doctrine or to at least place a legislative check on the Presi-
dent's power but that, even after debate, it did not. De Castro thus con-
cludedthat the constitutional text represented "the distilled wisdom of
the Constitutional Convention."
That may be so. But it is not clear that De Castro's interpretation
of the text faithfully represented that distilled wisdom. In the instances
where the Constitutional Convention of I97l disagreed with doctrines
previously established by the Supreme Court, the Constitutional Con-
vention introduced textual modifications that reversed the doctrine.
Thus, since the Convention was not in agreement with the Filipiniza-
tion of management of public utilities represented by King v. Hernaez'181
and Luzon Sievedoring v. Anti-Dummy Board,"'8 the 1971 Convention,
through the last sentence of Article XIV Section 5 (1973) allowed par-
ticipation of foreigners in management. Thus, too, since the interests of
American private citizens in private lands erroneously acquired under
the Parity Amendment were threatened by the combined effect of Re-
pubtic v. Quasha",, and Philippine Banking corporation v. Lui she,'7n
the I97l Convention took pains to protect these interests through Ar-
ticle XVII, Section Il (I973).The 1971 Convention, if it did not agree
with the doctrine of Innsang,could also have reversed it;but it did not'
..distilled wisdom" remained bottled for consumption?
Hence, which
De Castro also sought to bolster his textual approach by appeal to
the discretion bestowed on the President by the grant of extra-ordinary
legislative power found in Amendment 6 of 1976. This was cause for
."riou. was De Castro now suggesting that the President's
"on""*.
exercise of his legislative power under Amendment 6 was not subject
to judicial review?
r/B/4 s(.RA 192(1962\.
rrm41, s(.f{A 4j,l (19'12)
rAo41, s(,RA 52 (l()?l).
rrr'.) | \(,l{A 5,r ( lrxr/)

THE 1987 CONSTITUTION Sec. 15
OFTHE REPUBLIC OFTHE PHILIPPINES
On the whole, therefore, the textual argument for a,,political ques-
tion" conclusion hang limp. It was in fact noteworthy that the concur-
ring opinions in Morales supporting a political question conclusion all
relied not on textual arguments but on functional ones. (There were no
written concurrencesin Padilla supporting reversal of Lansang) Justice
Makasiar argued that "only the Chief Executive [was] well-equipped
with the intelligence services as commander-in-chief to secure the de-
sired information as to the existence of the requirements for the procla-
mation of martial law or for the suspension of the privilege of the writ
of habeas corpus." Justice Gutierrez added that .,the question of the
sufficiency of factual bases for the suspension of the privilege of the
writ or the proclamation of martial law would involve an appraisal of
a great variety of relevant conditions involving national security which
can hardly be said to be within the appropriate range of evidence re-
ceivable in a court of justice and as to which it would be an extravagant
extension of judicial authority to assert judicial notice." Justice Abad
santos was more blunt: "The lttnsang doctrine is based on naivet6;
it demonstrates a lack of contact with reality." How so? "The answer
is obvious. [The court] must rely on the Executive Branch which has
the appropriate civil and military machinery for the facts. This was the
method which had to be used in Innsang. This court relied heavily on
classified information supplied by the military ... It was a case of the
defendantjudging the suit ..."
The prudential approach expressed in terms of faith in the presi-
dent had only Justice de castro for ardent sponsor. None of the other
Justices came close to his warmth of devotion.In padilrahe said: "on
these occasions [of crisis], the President takes absolute command, for
the very life of the Nation and its government ... is in great peril. In so
doing, the President is answerable only to his conscience, the people
and to God. For their part, in giving him the supreme mandate as their
President, the people can only thrust and pray that, giving him their own
loyalty with utmost patriotism, the President will not fail them.', Then
he appealed to the Brethren in the court: "In times of war or national
emergency, the legislature may surrender a part of its power of legisla-
tion to the President. would it not be as proper and wholly acceptable to
lay down the principle that during such crises, the judiciary shourd be
less jealous of its power and more trusting of thc Executivc in rhc cxcr-
cise of its emergency powcrs in rccognition o[ thc sirnrc ncccssity'1" lrr
Mttralcs Justicc dc C-itslnl cvcrt lrrirnilcslctl qrrlinl c()nccnl lirr lhc selr
ART.III BILL OF RIGHTS
Sec. 15 -
discriminated
sitivities of the President by complaining that lnnsang
againstthePresidentinthattheCourtdidnotreview..similarproclama-
ti-onsofformerChiefsExecutive,GovernorGeneralWrightandPresi-
dentQuirino.IfthisiSso,asitcanbesafelysurmisedthattheincum-
the pronouncement
bent President cannot but feel discriminated against
oftheLansangdoctrine,rectificationiscalledfor.,'onecouldsuppose
incumbent President was appreciative of the
"rectification"; one
that the
"macho"President by
wonders however what effect was produced on a
thesolicitousandtouchingconcernabout..discrimination.''
Whatalloftheseaddeduptowasthat,evenifonthetextualap-
proachthepositionforjudicialinterventionwasstrong,itdidnotnec-
The Court still would
essarily foliow that the Court should intervene.
and the prudential ap-
have two kinds of escape hatches: the functional
these hatches'
proaches. The Padilla-GarciaCourt slipped through
2.Effectofthesuspensionoftheprivilegeunderthe1935
and 1973 Constitutions.
It should be emphasized that what is suspended by the Executive
isnotthewritbuttheprivilegeofthewrit.Thewritalwaysissuesasa
matterofcourseandtheofficertowhomitisdirectedisboundtohonor
it.If,however,apersonisdetainedonreasonablebeliefofparticipa-
tioninacrimecoveredbythesuspensionoftheprivilege,theofficer
states such fact in his "Answer and Return"
and asks the court to pro-
and answer' however'
ceed no further. What happens after such retum
argument or au-
is hazy. ln l-ansang v. Garcia,the Court said' without
court appointed com-
thority, that the next step is for the court or for a
belief't7er The
missioner to receive evidence on such stated reasonable
the meantime' formal
Court, however, did not take this step since' in
detained and the
criminal complaints had been filed against the persons
to let
preliminary examination had already begun' The Court preferred
,.be completed, so that petitioner's release
ihe preliminary examination
couldbeorderedbythecourtoffirstinstance,shoulditfindthatthere
isnoprobablecauseagainstthem,orawarrantfortheirarrestcouldbe
issued,shouldaprobablecausebeestablishedagainstthem.''1792
r rur4r s( 'l{ A trl ,19?
I rurr./, 'lt 4() I
 Sec. 15 ART. III - BILL OF RIGHTS
THE 1987 CONSTITUTION Sec. l5
OF THE REPUBLIC OF THE PHILIPPINES

offense they
While this writer's own libertarian prejudice is warmed by the liberty in the absence of a warrant of arrest for whatever
Court's affirmation of power to receive evidence to establish "reason- may be held to answer.""n'
able belief' or "probable cause" of complicity in the crime alleged, Whatthusappearsfromthisdiscussionsofaristhat'eveninthe
this same writer nevertheless fails to see the logic of the approach. The
face of unanimoui-affirmation of the validity
of the suspension' there
function of the writ of habeas corpus is to achieve immediate determi- i. u _uttipronged effort of the court itself to wriggle out of tf9
the con-
form
nation of the legality of a detention. The effect of the suspension of the ,"qo"n"", of G suspension. The effort to wriggle out takes
privilege of the writ is to prevent courts, temporarily, from enquiring of "reasonable belief," or
of assumption of power to receive evidence
into the legality of the detention. The Court's approach assumes unin- theory of ex-
oi fo*"t ,o grantiail, or of Fernando's more expansive
temrpted power of enquiry. Thus, in this writer's view, the approach judicial sentiment
ecutive sunender. In other words, there is a strong
the privilege' This
renders the suspension meaningless. against the existence of executive power to suspend
Another problem posed by the suspension of the privilege is sJntiment was articulated by Justice Fernando thus''7e6
whether or not a person accused of an offense covered by the suspen-
It would appear to me that if there is really a resolve to
mai-n-
sion is entitled to release on bail. The subject was discussed without so for
tain inviolate constitutional rights for all, more especially
conclusive result in Nava v. Gatmaitan.t'e3 Justice Tuason, one of the those inclined and disposed to differ and to be
vocal' perhaps even
should be given
five Justices who held the view that the suspension does not affect the intemperate, in their criticism, serious thought
his power to
right to bail argued thus'r7e4 to the desirability of removing from the President
as well as the
suspend the privilege of the writ of habeas corpus
be lack-
All persons detained for investigation by the executive de- power to declare --uttiut law' Nor would the government
partment are under executive control.It is here where the Constitu- ing in authority to cope with the crisis of invasion' insurrection'
tion tells the court to keep their hands off-unless the cause of the oir"b"llion or lawless violence, as the President as commander-
the dan-
detention be for an offense other than rebellion or insurrection in-chief can summon the aid of the armed forces to meet
which is another matter. ger posed to public safety' If the privilege of the writ cannot be

iuspendeO and martial law [is] beyond the power

of the President
By the same token, if and when formal complaint is pre- likelihood as far as the rights of the
to declare, there is a greater
sented, the court steps in and the executive steps out. The deten- at all times
individual ar".on""rn"d, of the constitution remaining
tion ceases to be an executive and becomes a judicial concern. or in war or
supreme, as it ought to be, whether it be in
peace
Thereupon, the corresponding court assumes its role and the judi- as such a presi-
unier other crisis conditions. As long, however,
cial process takes its course to the exclusion ofthe executive or the for the courts
dential prerogative exists, it would not be proper
legislative departments. Henceforward, the accused is entitled to
nottoaccordrecognitiontoitsexercise'iftherebeobservanceof
demand all the constitutional safeguards and privileges essential the most' they can
the limitations imfosed by the Constitution' At
to due process. amount to an uncon-
only through construction nullify what would
to my way
In his dissentin lnnsang v. Garcia,Justice Fernando revived Tua- stitutionalipplication. How desirable it would be then'
ofthinking,iftheConstitutionwouldstripthePresidentofsuch
son's argument. For Fernando, the moment the executive places those of
power. That would be constitutionalism triumphant' In terms-
detained under the jurisdiction of a court by filing formal charges, they Lincoln's memorable dilemma, the government would
be neither
leave the hands of the executive and are thenceforth "entitled to treat- too strong for the liberties of the people nor too weak to maintain
ment no different from that accorded any other individual facing pos- addressed to the
its existence' This is a matter though appropriately
sible criminal charges" and "ought not to be further deprived of thcir Constitutional Convention'

r?qrgoPhil. 172(1951) rr;r,1 I q1,fl1, irl 5()()

rr"'1,y x1 11.) lI
t1'ahl. il 204.
 THE 1987 CONSTITUTION Sec.15
OFTHE REPUBLIC OFTHE PHILIPPINES
The 1971 Convention, however, did not listen to Fernando.It pre-
served the 1935 text, retaining even the colonial term "insurrection."rTeT
The Court once more had the opportunity to look into the ques-
tion of bail in the already cited cases'7ot of Padilla and Morales. Both
cases clearly teach that, in a situation where the privilege of the writ is
suspended, bail should not be granted, for otherwise the purpose of the
suspension of the writ would be frustrated. The doctrine is a temporary
acceptance of a military decision of the commander-in-chief embodied
in the suspension of the privilege. As the main opinion in Padilla puts
it: "The suspension of the privilege of the writ of habeas corpus must,
indeed, carry with it the suspension of the right to bail, if the govern-
ment's campaign to suppress the rebellion is to be enhanced and ren-
dered effective." Or, as the main opinion in Morales says:
Normally, rebellion being a non-capital offense is bailable.
But because the privilege of the writ of habeas corpus remains
suspended "with respect to persons at present detained as well as
others who may hereafter be similarly detained for the crimes of
insurrection or rebellion, subversion, conspiracy or proposal to
commit such crimes, and for all other crimes and offenses commit-
ted by them in furtherance of or on the occasion thereof, or inci-
dent thereto, or in connection therewith," the natural consequence
is that the right to bail for the commission of anyone of the said of-
fenses is also suspended. To hold otherwise would defeat the very
purpose of the suspension. Therefore, where the offense for which
the detainee was arrested is anyone of the said offenses he has no
right to bail even after the charges are filed in court.
It may be noted that the emphasis of PadiIIa and Morales is on
the functional or practical reasons for making bail unavailable. The
prevailing minority in Nava v. Gatmaitan''e similarly emphasized thc
functional arguments. But in Nava lustices Pablo and Bautista Angelo
also attempted to set up the theoretical underpinnings of the argument
for denial of bail by attempting to clarify the theoretical link between
rTqMeeting of the 166-Men Special Committee, November 16, 19'12.
l1e"Supra, notes 32 and 33. The same pronouncement had already been madc eurlier, hut
without thorough discussion, in Buscayno v. Military Commission, l09 SCRA 273 (Novcnrlrr
19, l98l).
r?s90Phil. t72il95t).
Sec- l5 ART. III - BILL OF RIGHTS 549
the privilege of the writ and the right to bail.1800 Briefly, their argument
rested on the major premise that habeas corpus is the ultimate remedy
fbr one who is being illegally deprived of his liberty and that certiorari
and mandamus ate derivative remedies from a habeas corpus action.
Hence, when the privilege of the writ is suspended, access to freedom
through the derivative remedies is also closed. In other words, a pro-
gram may indeed be on computer file; but if the code is not made avail-
able, access to the program is not possible. Which may indeed be true
if habeas corpus on the one hand and certiorari and mandamus on the
other are as code to computer program. But that is not at all clear. Cer-
tiorari and mandamzs issue against a court; a writ of habeas corpus is
issued by a court but not against a court.
The Nava argument, however, can be restated by bringing into the
picture the executive officer who has custody of the detainee and who
has to carry out an order for the release on bail. If bail must be granted,
it can only be granted after hearing for the purpose of examining the
weight of the evidence justifying detention. But that precisely is the
heart of the suspension of the privilege to freeze temporarily inquiry
justification
-
into the of the detention. How then is the court to determine
whether bail is due as of right if the officer in custody of the detainee is
not legally bound, because of the suspension of the privilege, to present
evidence in support of the detention?
The argument is convincing. But precisely because it is convinc-
ing, it also convincingly follows that once formal charges are filed bail
becomes available. Why? Because the filing of formal charges entails
executive waiver of the effects of the suspension of the privilege. This
is necessarily so because the essential effect of the suspension of the
privilege is to withhold inquiry into the legalities of the detention,
whereas the necessary effect of the filing of formal charges is to open
up inquiry into the legalities of the detention. Hence, the moment the
executive arm files the case in court it submits the legalities of the case
to the jurisdiction of the court and thereby waives, at least as to the case
filed, the essential effect of the executive suspension of the privilege
which is to withhold inquiry into the legalities of the confinement. It
is in thc light of this implied and ad hoc waiver by the executive that
thc argumcnt of Justice Tuason in Novct v. Gatmaitarz, heavily relied
rilr'/r/. rtl I ll0 I lts. .' I | :l I 5
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
upon by Fernando, Teehankee, and Abad Santos, must be read. Justice
TuaSOn Said.18o1
... if and when formal complaint is presented, the court
steps in and the executive steps out. The detention ceases to be
an executive and becomes ajudicial concern. Thereupon the cor-
responding court assumes its role and the judicial process takes its
course to the exclusion of the executive or the legislative depart-
ments. Henceforward the accused is entitled to demand all the con-
stitutional safeguards and privileges essential to due process. ...
This is not just ritualistic rigodon. This is the conclusion arising
by ineluctable logic from the nature of the suspension of the privilege
and from the dynamics of criminal process.
It is interesting to note that President Marcos himself accepted this
argument based on waiver. As Justices Teehankee andAbad Santos not-
edin Morales, the metropolitan newspapers of April 20,1983,reported
the President as saying "that [Mayor] Pimentel has been charged with
rebellion before the regional trial court of Cebu City and is therefore
under the jurisdiction of the civil court and not only under the jurisdic-
tion of the military by virtue of the PCO." Moreover, in a telegram to
Archbishop Cronin of Cagayan de Oro City the President said that "thc
disposal of the body of the accused, as any lawyer will inform you, is
now within the powers of the regional trial court of Cebu and not within
the powers of the President." Which prompted Justice Abad Santos to
say that he was "happy to be counted among the 'any lawyer' mcn-
tioned by the President."
The pronouncement of President Marcos regarding Mayor Pinrcrr-
tel applies mutatis mutandis to Padilla and Morales. The signilic:rnt:r:
of the President's acceptance of the Tuason argument and o1' tlrc ap-
plication he made of it to the Pimentel case is not only therlrctical hut
also functional and practical. Equivalently, he made the judgmcnt tlrlt
release on bail of one who has been charged in court woultl ntll hc rr
threat to national security. Thus, the insistence of the Court thnt srrc.lr
release would frustrate the objects of the suspension of thc privilcgc is
tsotld. at204.The waiver by the state operatcs as a rcvcrsc
analoguc ol thc pl irreiplc crtuh
lished by the Court that when a dctaincr.: posls h:ril hc lhcrcby wlivcs his liglrl to t'lurlk.ngr.rrry
irrcgularity in his arrcst. ('ulllnt:r v. Villarrrrt.vrr, TT S('ltA 177 (.lrrtrc lO, 1977).
Sec. l5 ART. III - BILL OF RIGHTS
a case of being more Catholic than the Pope. Moreover, as the majority
in Nava and the dissents in Padilla and Morales correctly said, release
on bail may be necessary for the preparation of a proper defense' By
refusing to grant bail in the face of the executive judgment authorizing
inquiry into the legalities of the detention, the Court, not the Executive
becomes the obstacle to due process.
There may indeed be substance to the apprehension that the Court
may be faced with a situation of defiance if upon the grant of bail the
executive in fact obstructs release. But then the Court will have placed
responsibility where it should be and can then repeat what the aging
Chief Justice Taney said when defied by President Lincoln: "I have
exercised all the power which the constitution and laws confer upon
me, but that power has been resisted by a force too strong for me to
overcomg."r802
A supplementary argument in support of the subsistence of the
right to bail is the dictum that the suspension of the privilege suspends
only one constitutional right and leaves all others unaffected. Reliance
is had on the pronouncement in Ex parte Milligants,3 cited in Nava,
Padilla,and Morales to the effect that the framers of the American con-
stitution "limited the suspension to one great right, and left the rest to
remain forever inviolable." But this quotation must be read in context.
An earlier sentence in the same paragraph says that the suspension of
the privilege deprives a citizen of the right to be set at large but that it
does not mean "that he shall be tried otherwise than by the course of
common law." If one considers that the right to bail was at common
/aw considered a matter of discretion for the court and not of absolute
right,"* one can see that the context of Milligan does not readily yield
the reading that the right to bail is included among "the rest" that must
"remain forever inviolable." Moreover, the use of this argument con-
currently with the waiver theory in Tuason involves an inconsistency:
the Milligan dictum is read as holding that the right to bail is never
suspended, whereas the Tuason argument presupposes its suspension
and argues fbr its impli cit ad hoc restoration upon the filing of a formal
charge.
t{r;lt\ l\il1.' Mt'tryrtt:ttt. lT lrctl.('lts. l'l'1, l5l (l).M(l ltt6l).
'*"',1 W:rll. .'. L) I (ltt66)
'Hr\(rl lWAl{17.ll'lllrl{l(;ll'lS()lr'l'lll1l'l1RS()N7'1,ittttl citscstitul
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Another supplementary argument used is that the loss of the right
to bail implicit in the suspension of the privilege must yield to the
guarantee of the right to bail explicit in Section 18 of the 1973 Bill of
Rights. But one could also look at the problem not as conflict between
implicit and explicit but between general and special. Section 18 spoke
of physical liberty in general, that is, in normal and abnormal times
and in connection with any kind of offense; whereas, the suspension
of the privilege deals with physical liberty under special circumstances
of emergency and in relation to specific offenses connected with the
emergency. When there is conflict between a general and a special pro-
vision, the special stands as an exception to the general. But again this
conclusion allows for the waiver argument of Justice Tuason: when thc
executive files formal charges he opens inquiry into the legalities of thc
case and, as to the specific case, renders the suspension ofthe privilegc
without a soul. Moreover, the public order objectives of the suspension
of the privilege is protected because the effects of the suspension rc-
main with respect to other cases not covered by a waiver.
3. Changes made by the 1987 Constitution.
The doctrine on the power to suspend the privilege of the writ ol'
habeas corpus, on the grounds for suspension, on the termination ol'
the suspension, onjudicial review ofthe suspension, and on the scopc
and effects of the suspension has undergone radical changes under thc:
1987 Constitution. The Constitutional Commission, drawing from thc
experience under the authoritarian rule of President Marcos, built into
the system new safeguards intended to give greater protection to libcrly.
The power to suspend the privilege has ceased to be an alrnosl
exclusively executive affair. The President may suspend to privilcgc
for a period of not exceeding sixty days. Congress is given the powcr to
revoke the suspension and the President may not set aside such rcvocir
tion. Congress, upon the initiative of the President, may also cxtclrtl thc
suspension. This interplay between the President and Congrcss will lr
discussed more underArticle VII, Section 18.
The Supreme Court, upon the initiative of any citiz.cn, ntly r(.
view the "sufficiency of the factual basis" of the suspcnsion irnrl "rrrrrst
promulgate its decision thereon within thirty days fionr its lilirrg.",*'.
re''Arliclc VII. Scr:tion lll
Sec. 15 ART. Iil - BILL OF RIGHTS 553
Note that the only requisite for standing to challenge the validity of the
suspension is that the challenger be a citizen. He need not even be a
taxpayer.
What is the scope of this review power of the Supreme Court. It
will be recalled that in Lhnsang v. Garcia, the court accepted the so-
licitor General's suggestion that the Court "go no fiitther than to satisfy
[itselfl not that the President's decision is correct and that public safety
was endangered by the rebellion and justified the suspension of the writ,
but that in suspending the writ, the President did not act arbitrarily."tao0
Is this all that the 1987 provision means?
The new provision quite obviously means more than just the em-
powerment found inLansang.The new text gives to the Supreme Court
the power not just to determine executive arbitrariness in the manner
of arriving at the suspension but also the power to determine "the suf-
ficiency of the factual basis" of the suspension. Hence, the Court is
empowered to determine whether in fact actual invasion and rebellion
exists and whether public safety requires the suspension. Thus, quite
obviously too, since the Court will have to rely on the fact-finding ca-
pabilities of the executive department, the executive department, if the
President wants his suspension sustained, will have to open whatev-
er findings the department might have to the scrutiny of the Supreme
court. It is submitted that the Supreme court's task of verifying the
sufficiency of the factual basis for the suspension will not be as difficult
as under the old system because the 1987 Constitution has radically nar-
rowed the basis for suspension.
Under both the 1935 and 1973 Constitutions, the President could
suspend the privilege of the writ in "case of invasion, insurrection,
or rebellion, or imminent danger thereof, when public safety requires
it."r80? The 1987 Constitution drops "insurrection" as a ground for sus-
pension. This change did not occasion any debate. "Insurrection" in
the 1935 Constitution was an anachronistic term carried over from the
spanish and American campaigns against the Filipino insurrectos.The
debate centered rather on the elimination of "imminent danger" of inva-
sion or rebellion as grounds for the suspension'
|*.,'4] S('RA tt| 4tl().
lx"/ArtitlcVll.Ser'trrr l()(.))(l(, 15): ArtrtlcVll,sct'liorr()(l()/l) lhtlusuhlrl
 THE 1987 CONSTITUTION Sec. 15 ART. III - BILL OF RIGHTS
OF THE REPUBLIC OF THE PHILIPPINES

The historical explanation for the provision on "imminent dan- butCommissionerRegaladopointedoutthattherearecrimesthatarise

the Revised Penal
ger" was supplied by Commissioner and former Chief Justice Roberto during invasion. ThesJare found in Title I, Book II of
Conception. The phrase had originally appeared in the philippine Bill the law of nations'
Code, such as crimes against national security and
of 1902 and the Jones Law of 1916, the organic acts through which includingtreason,espionage,communicationinwartimewiththehos-
American sovereignty was exercised over the Philippines. The Ameri- tile country, and giving information to the hostile country''8r,
can Govemor General was given the power to impose martial law or by the sus-
suspend the privilege of the writ in case of o'imminent danger,' of inva- Moreover, it is not enough that the crimes covered
sion or rebellion. Concepcion recalled that, at the time when the 1935 pensionbethosecomingundertheconstitutionalenumeration.Fora
p"rron to lose the privilJge of the writ he must be 'Judicially
charged."
constitutional convention was being formulated, the then president
Quezon argued that the Filipino President under the new constitution
Itisthereforenot"nooghthatacomplaintisunderinvestigationbya
should not have less power than the American Governor General.,ro' fiscalorthatachargehasbeenfiledbeforethefiscal'soffice;itisnec-
essary that the criminal charge has been filed
in court'tsl'Thus' Section
The phrase "imminent danger," it was pointed out a number of ..During the suspension of the privilege of the writ, any person
1g ids:
times during the commission deliberations, was fraught with possibili-
thusarrestedordetainedshallbejudiciallychargedwithinthreedays,
ties of abuse. It gave the President an easy handle for claiming that clas-
otherwise he shall be released'"
sified intelligence reports pointed to an impending invasion or rebel-
of requiring
lion, with little possibility for anybody to contradict him. Moreover, it Commissioner Padilla explained the general purpose
situation similar
a judicial charge thus: "The purpose "'
is to prevent a
was not as if, deprived of the broader powers of previous constitutions,
detained and
the President would be helpless in case there should be threat of inva- t ,fr" pu*r r"g1-" when innocent pefsons were arrested'
or even more'
sion or rebellion. Arlicle VII, Section 18, also says that the "president confinid in prison sometimes for one month' one year'
shall be the commander-in-chief of all armed forces of the philippines withoutuny",i*inulchargeflledagainstthemwhooftentimesdidnot
and whenever it becomes necessary, he may call such armed forces even undeistand why tt nua been arrested or detaine6l."rarz Q61npi5-
"y clarified the reason: "I wish to make it clear
to prevent or suppress lawless violence, invasion or rebellion.,' This sioner concepcion furthei
power was thought to be sufficient for handling threats of invasion or that the porptr" of this paragraph is to require
all those detained to
Therefore, the
of rebellion. Thus, after much debate, the Commission voted to limit be immediately turned over to the judicial authofities.
the grounds for suspension ofthe privilege to actual invasion or actuur suspension of ihe privilege will not apply to them
until they are placed
the first impor-
rebellion "when the public safety requires i1."nor in tire custody of a judiciul offi."r, the reason being that
detained person'"""
tant thing to consider is to preserve the life of the
The scope of the suspension of the privilege has also been sc- has been arrested on the
Moreover, even if the person under detention
verely limited by Article VII, Section 18, which says: "The suspcnsiolr judicially charged, he
strength of a valid waffant of arrest, if he is not
of the privilege of the writ shall apply only to persons judicialry chargcxr is not a ques-
-urt b" released. As Commissioner Bernas explained,"It
for rebellion or offenses inherent in or directly connectecl with inv:r,
sion." The President is not at liberty to specify the offenses covcrctl hy tionofwhetherornotawarrantofarrestcanbeissued...'[T]hepur-
the suspension. The suspension can only validly affect "persons .iutli, poseofthesuspensionoftheprivilegeofthewritofhabeascorpusisto
an invasion or a rebel-
enable the government to deal with a situation of
cially charged for rebellion or offenses inherent in or directly conncclcrl
with invasion." It should be noted that invasion itself is not a crirrrc. lionandthegovernmentmustchargejudiciallythosewhoareinvolved

rEroll RFC'ORD at 397-ll

'808I RECORD 773-4-The phrase "imntincnt dangcr" coukl ulso hc lirurrtl in lhc orgrurrc rrt t
for Hawaii although no such phrasc cirn ht' linrntl in rhc Arrt'ricirr ('.rrsrirrrti.rr. t{r Id . .t 42'7 ,4'l | .
l80ql RECORI)
197: ll ltl'l('()ltl) 'lll I l. 'l6t)'tll..l7l 75. ,179 ll0. A Plolxrsul t() nnlr rsrrlr/. rtl 5l l
"publictlistrrtlcr"ils:ttt()llt('rl'.rnttul rlrrl rrrl llililrsIl)lx)tl :rrll PrtrrrrPtlylrzrltrl orrl. ttl.nt,ll]l,.lll rNr'/r/. rtl5ll.
 THE 1987 CONSTITUTION Sec. l6 Sec. 16 ART. III - BILLOFRIGHTS
OF THE REPUBLIC OF THE PHILIPPINES

in the rebellion or invasion. Those who are not charged are

('r8r4 [deemed to administrative cases. As the Court has put it, "the constitutional right
be] not involved. ...
to a 'speedy disposition of cases' is not limited to the accused in crimi-
The original proposal was to allow government a period of five nal proceedings but extends to all parties in all cases, including civil
working days within which to file a case in court; but iommissioner and administrative cases, and in all proceedings, including judicial and
Sarmiento argued that five days was too long. He said: .,our experience quasi-judicial hearings." Hence, under the Constitution, any party to a
during martial law was that torture and other human rights vfolations Cu." -uydemand expeditious action on all officials who are tasked with
happened immediately after the arrest, on the way to the safe the administration of justice.r8r8
houses or
to Camp Aguinaldo, Fort Bonifacio or Camp Crame."rsrs
The concept of "speedy disposition of cases," like "speedy trial,"
Moreover, as already discussed under the provision on the right is a relative term and must necessarily be a flexible concept. It is consis-
to bail, the suspension of the privilege of the wrii does not suspend tent with reasonable delay.'*'n In the determination of whether or not the
the
right to bail. right has been violated, the factors that may be considered and balanced
are length of delay, reason for the delay, assertion of the right or failure
Finally, habeas corpus is not the proper mode to question condi-
to assert it, and prejudice caused by the delay.'eo "The desideratum of a
tions of confinement. The fact that the restrictions inherent in detention
speedy disposition of cases should not, if possible, result in the precipi-
intrude into the detainees'desire to live comfortably does not
convert tate loss of a party's right to present evidence and either in plaintiff's
those restrictions into punishment. Moreover, a basic rule is
that once being non-suited or the defendant's being pronounced liable under an
charges have been filed in court,habeas corpusis no longer
2ynllsfols.rrro ex parte judgmg11."rtu'
Src.16. Ar,r, psnsoNs sHALL HAvE rHE RrcHT To A spEEDy But what is beneficial speed for one could be harmful speed for
DISPOSITION OF THEIR CASES BEFORE ALL JUDICIAL, QUASI-JUDICIAL another. So the accused found in Magat v. Court of Appeals )822 The ac-
OR ADMIMSTRATIVE BODIES. cused was charged at 4:30 p.m. and by 11:35 the next morning he had
already had his due process and a conviction! Under a martial law
1. Speedy disposition ofcases.
-
decree, crimes against tourists had to be disposed of by the courts with-
It is a truism that justice delayed can mean justice denied. The in twenty-four hours. The Supreme Court commended the lower court
present provision was first introduced as Section 16, Article and said that it was enough that the accused had ample opportunity to
IV of the confer with counsel during cross-examination and after the prosecution
1973 constitution and is one of three provisions designated
to assure had rested its case the night before.
speedier justice.

It should Finally, as in the case of violation of the right to a speedy trial,

be noted that the provision guarantees the right gen-
erally to "a speedy disposition of their cases." It covers therefore the remedy for violation of the right to a speedy disposition of a case is
periods before, during, and after trial. In this respect it gives
the dismissal obtained through mandamus ;"'
broadcr
protection than Section 14(2) which guarantees merely ihe
right to a
speedy trial.'8,? It is also broader than the protection given
Uyi411"1"
VIII, Section 15, which covers merely the period aftei the suLmissi'n r*r'[,opez, Jr. v. Ombudsman, G.R. No. 140529, September 6,2001'
of a case. Moreover, the present provision applies to civil, criminar. and (1987)'
'*r'Caballero v. Alfirnso, Jr., 153 SCRA 153
r{r".Sac llarker v. Wings,407 U.S.5l4 (1972).
rsrrl)tulttt v. liricta, l6l SC]RA4513 (l9lllt).
tstald. at
513. rrrr(i.R. No. 5590 I , Atrgusl l0' I qtt2.
tBt5Jd. ('arillo,
r*r'Rrrtlrrc v. ()rnhurlsrnan, (i.R. No. l2()()7|t, M:ry 12, l()()(). N()7/i: Ilut in et al.
r8r61n
re Major Aquino, C.R. No. 1749()4, August 2l , .-l(X)7
r8r7^SrcTirlnhonv. t,.Ontbutlsnntn,(i.R.No. l092'/l,Mrrrclr 1,1,1(XX),tlrc(ilurlr'('c()Ettizc(l lhill"thccvcritrcrcitsitrg
lloikrlrnrvincirrl Wrnlcrr,TgI'lril i9().fi)()11r;7,1y t'rrsclrrrl gl r,txrrls lrrrs rrllct lcrl llrc slrccrly rlislxrsiliott ol titscs 1x'rttlittg lrlirn'llx'Sttrlligttnhtryittl."
558 THE 1987 CONSTITI-I'TION
OF THE REPUBLIC OF THE PHILIPPINES
Src.17. No pnnsoN sHALL BE coMpELLED To BE A wrrNESs
AGAINST HIMSELF.
1. Self-incrimination.
Whether or not Spanish law in the Philippines allowed self-in-
crimination was inconclusively discussed in U.S. v. Navarro, the major-
ity thought that it did, while Justice Mapa maintained that it did not.re4
If, indeed, the Spanish procedural system allowed an inquisitorial in-
vestigation offensive to the guarantee against self-incrimination, such a
system was "forever swept away by the extension to these Islands of the
constitutional barrier against an inquisitorial investigation of crime."rs2s
Such extension was made first in McKinley's Instruction, and next in
the Philippine Bill of 1902 and the Autonomy Act of 1916. The 1935
Constitution preserved the exact same provision of earlier laws. The
1973 Constitution used it to preface the provision on custodial investi-
gation in its Article IV Section 20. The 1987 Constitution separated the
provision from the rules on custodial investigation. But Section l2(3)
places violations of the self-incrimination clause under the "exclusion-
ary rule" discussed earlier.
The justification for the guarantee was stated by the Court thus:'n2n
"It was established on the grounds of public policy and humanity: Of
policy, because, if the party were required to testify, it would place thc
witness under the strongest temptation to commit perjury; and of hu-
manity, because it would prevent the extorting of confessions by du-
ress." Another decision said'r82? "The main purpose of the provision
... is to prohibit compulsory oral examination of prisoners before thc
trial, or upon trial, for the purpose of extorting unwilling confessiorrs
or declarations implicating them in the commission of a crime." (Thc
provision on duress, however, has been placed together with the rulcs
on custodial investigation in Section 12.)
Established early in Philippine jurisprudence was the principlc
that, under the right against self-incrimination, the accused may not hc
lu43 Phil. 143, t48-50, t51-11 (t9O4).
r8251d.
at 15 | .
tE2('ld. at 1411.
rilr/tJ.S. v.'liur'l'cng,2.l l'lril. 145. l5l (1912)
Sec. 17 Sec. 17 ART. III - BILL OF RIGHTS
compelled to take the witness stand."" A mere witness who is not an ac-
cused, in order to avail himself of his right, must await the incriminating
question; the accused, however, may refuse to be a witness altogether.
Recent jurisprudence, moreover, has extended this right of the accused
to respondents in administrative investigations partaking of the nature
of a criminal proceeding or analogous to a criminal proceeding. Thus,
in cabal v. Kapunan, Jr.,182s the proceeding for the forfeiture of property
under the Anti-Graft Law was deemed criminal and the respondent was
accorded the right to refuse to take the witness stand, and in Pascual, Jr'
v. Board of Medical Examiners,'so the respondent in an administrative
investigation for immorality and malpractice was accorded a similar
right since the revocation of his license as a medical practitioner could
even be a more serious deprivation than forfeiture of property'
Although the guarantee has proscribed an inquisitorial system of
investigation, it does not prohibit every form of preliminary investiga-
tion. Preliminary investigation "is often the only means of discover-
ing the persons who may be reasonably charged with a crime so as to
enable the fiscal to prepare his complaint or information. In one form
or another, similar investigations are permitted under all systems of
procedure."rs3r Nor does the guarantee prohibit a party litigant from us-
ing his adversary as a witness when the case is not a criminal case where
the intended witness is the accused himself.'*" And the time to raise the
privilege (for persons other than the accused) is when an incriminating
question is asked.""
r828united States v. Junio, 1 Phil.50 (1910). Gently chiding ajudge who violated this obvi-
ous principle, castro, J. said in a concurring opinion, "Today, perhaps becaule of long separation
from our iast, we need what Holmes called'education in the obvious, more than investigation of
have been
the obscuie. The past may have receded so far into the distance that our perspective may
altered and our vision blurred.' chavez v. court of Appeals, L-29 169, August 1 9, 1 968.
r82el--
1 9052, Dec ember 29, 7962.
rs0l-2501 8, Mray 26,1969. The Court, quoting with approval from spevack v. Klein, 385
U.S.5ll (1967),saidthattheconstitutionalprovision"extendsitsprotectiontolawyersaswellas
to other individuals, and that it should not be watered down by imposing the dishonor of disbar-
ment and the deprivation of a livelihood as a price for asserting it." Moreover, the Court. citing
Griswold v. connecticut,38l u.s. 4':.9 o965) and Miranda v. Arizona,384 U.S. 436 (1966),
placed
- emphasis on the right to privacy.
But sce Evangclistd v. Jarencio,68 SCRA 99 (November 29,1975), where the rule was
not applicd to a lacr-linding hear.ing prior to Iiling of charges, and Bagadiong v. Gonzales,94
SCRA 9()6 (l)cccnrbcr 2lt, 1979), whcrc thc rulc was not applied to a trial for the annulment of a
provincial btrtlgcl.
r*'rI'coPlc v. ltltlilllr,4tt I'hil. 7Itl.7.1I ( I()26).
'"'r(ionzirlrs v St'r't't'lltty ol l.:rlrot,()'l l'llil.
l.l5' ll6(l()5'1).
'*t'/,/
 THE 1987 CONSTITUTION Sec.
OF THE REPUBLIC OF THE PHILIPPINES
To violate the right, it is not necessary that a categorical admission
of a specific offense be sought. "Chief Justice Marshall explained that
usually a crime or a criminal act may contain two or more elements and
that a question would have a tendency to incriminate, even if it tends to
elicit only one of said elements."r8i4 The right thus includes a "right to
refuse to testify to a fact which would be a necessary link in a chain of
evidence to prove the commission of a crime b! a witns55."":s
It was held early in Philippine jurisprudence that what is prohib-
ited by the constitutional guarantee is the use of physical or moral com-
pulsion to extort communication from the witness, not an inclusion of
his body in evidence, when it may be material. Thus, substance emitting
from the body of the defendant was received as evidence in a prosecu-
tion for acts of lasciviousness.r83u Subjection to ultra-violet examination
is allowed.r83' So is paraffin test.1838 Morphine forced out of the mouth
of the accused was received.'83e An order by the judge for the witness
to put on a pair of pants for size was allowed.'84o The taking of an ac-
cused person's picture does not incriminate him.r841 Neither does thc
admission of his wallet, its contents and a bunch of keys.r8a2 And since,
according to the Court, the "kernel of the privilege" was the prohibition
of "testimonial compulsion,"tan: the Court was even willing to compel
a woman accused of adultery to submit to the indignity of being tested
for pregnancy. This harsh rule, so contrary to the humane purpose of the
law, was justified by Justice Malcolm by the statement that "[N]o rulc
is intended to be so rigid as to embarrass the administration of justicc
in its endeavor to ascertain the truth."rs The Court added.r8li "Fully
conscious that we are resolving a most extreme case ... which on lirst
impression is a shock to one's sensibilities, we must nevertheless en-
rsslsabela Sugar Co. v. Macadaeg, 98 Phil.
995, 1000 (1953), citing 8 Wrcvonr oN /.yr
onr'tcr 355.
f835Fernando v.
Maglanoc , 95 Phil . 431 , 434 (1954) .
rE$U.S. v. Tan Teng,23
Phil. 145, 150 (1912), relying on Holt v. U.S.,2 t 8, U.S. 24:' ( t9l0)
r83TPeople
v. Tranca,235 SCRA 455 (1994).
r83sPeople v. Gamboa,
G.R. No. 91374, February 25, 1991.
E3eU.S. v.
f
Ong Siu Hong,36 Phil.735 (1917).
rmPeople v. Otadora,86 Phil.244 (1950).
l&rPeople v. Gallarde, G.R. No. 133025, February
17,200O.
r8a2People v. Malimit, G.R. No.
109775, November 14, 1996.
re3Villaflor v. Summers,4l Phil. 62,68 (1920).
twld. at69.
tEa5ld.
at'10.
l7 ART. III _ BILL OF RIGHTS 561
force the constitutional provision ... undeterred by merely sentimental
influences." The only proviso imposed was that "torture or force should
be avoided."'t46
The rule on the permissibility of requiring a witness to write in or-
der to furnish a sample of his handwriting was settled in Beltran v. Sam-
son.t847It was held that, since witnesses in a preliminary investigation
are protected by the prohibition, they may not be compelled to take a
dictation in order to compare their handwriting with that found in a sup-
posedly falsified document. In support of this ruling, the Court said''84t
... [w]riting is something more than moving the body, or
the hand, or the fingers; writing is not a purely mechanical act, be-
cause it requires the application of the intelligence and attention . . .
We say that, for the pulpose of the constitutional privilege,
I there is a similarity between one who is compelled to produce a
I document, and one who is compelled to furnish a specimen of his
handwriting, for in both cases, the witness is required to furnish
I
I evidence against himself .
I
I, And we say that the present case is more serious . . . because
t
t here the witness is compelled to write and create, by means of the
I act of writing, evidence which does not exist. .
ii
Beltran,however, was distinguished from Marcelo v. Sandigan-
ll bayant4e where the accused were asked to affix their signatures on the
H
envelopes of the letters which constituted the corpus delicti in a mail
IN
pilferage case. The Court said: "To be sure, the use of specimen hand-
it writing in Beltran is different form the use of petitioner's signature in
ii this case. In that case, the purpose was to show that the specimen hand-
writing matched the handwriting in the document alleged to have been
falsified and thereby show that the accused was the author of the crime
rKId. J. Carson, concurring, added that explicit instruction should be given that no instru-
ment or physical force should be used. The opinion of the majority seemed to allow something
beyond mere ocular inspection.
The following, too, were considered not violative of the right: failure to notify the witness
of such right, Pendleton v. U.S., 40 Phil. 1033, lo34 (l9l}), afirming u.S. v. Pendleton, 7 Phil.
457 (l9l)7)., admission in evidence of otl'ers to compromise, provided that the offeror is allowed to
show that oftbr was not mude under consciousness of guilt. U.s. v. Magui, 2'l Phtl.97,99 (1914).
rs? i.l phit. 57O ( 1929).
ts'rft/. ul 576 7. Reitcrutctl in llcrtnurlcz v. (hstillo,64 Phil. 4tt3' 41t5-6 ( 1937)'
'u\i.R. No. 1o9242, Jrlrrrrtry 26, l9()()
562 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
(falsification) while in this case the purpose for securing the signature
of petitioner on the envelopes was merely to authenticate the envelopes
as the one seized from him and [his] co-accused." This is hard to under-
stand because the accused is then being asked to admit his possession
of pilfered items, a fact which would create the presumption that he
pilfered them.
When a person, however, voluntarily answers an incriminating
question, he is deemed to have waived his right. Moreover, after the
accused has pleaded guilty, for the purpose of ascertaining the proper
penalty to be imposed or for any other legal purposes, the court may
properly ask such questions as are necessary to that end. By this plea of
guilty, he is deemed to have waived his right "to the extent, at least of
not allowing him subsequently to claim error by reason of such ques-
tions or answers thereto . . . " 1850 If the witness has insisted that the trans-
action which is the subject of investigation was completely legal, there
is no basis upon which to sustain the claim that to reveal the name of
a party to the transaction might be incriminating.ls' Besides, it is the
courts which determine whether or not a question is in fact incriminat-
ing."" But an invariable answer of "I do not remember" is equivalent to
refusal to answer and does not constitute waiver.'8s3
ln Bermudezv. Castillo,r854 it was contended that since the witness
had denied that the documents in question were in her handwriting, she
should be deemed to have waived her right by such denial and could
therefore be required to produce a sample of her handwriting.'855 The
majority, however, believed that mere denial which discloses nothing
does not constitute waiver. Laurel, in his concurrence, added that since
there was authority to support both positionsr856
- prevent the production of corporate papefs on the ground that they may
As between two possible and equally rational constructions,
that should prevail which is more in consonance with the purpose
intended to be carried out by the Constitution. The provisions, as
doubtless it was designed, should be construed with utmost liberal-
ity in favor ofthe right ofthe individual intended to be secured.
l8s0U.S. v.
Binayoh,35 Phi1.23,26 (1916); People v.Aquino,85 Phil. 604,608 (1950).
r8srArnault v. Nazareno, 87 Phil.29,65 (1950).
t8s2ld.
al65-66.
r853lsabe1a Sugar
Co. v. Macadaeg, 93 Phil. 995, I 00 I ( I 953).
t'5aSupra,note 23.
I855Abud Sanlos, r/isscrttirg, i(/. ilt 4911.
rx\"/r/. itt ,1()1.
Sec. 17 Sec. l7 ART. III _ BILL OF RIGHTS s63
The privilege against self-incrimination can be rendered meaning-
less if the silence of a witness may be used against him. Hence, the rule
has been established that refusal of an accused to be a witness or of a
witness to answer should in no manner be used against them.t8" This
rule, however, does not prohibit an unfavorable inference from failure
of one party to produce evidence that is in his control''8s'
2, Documents and records.
It will be recalled that Philippine jurisprudence prior to Stonehill
v. Diokno'ssn had linked the inadmissibility of illegally obtained evi-
dence with the self-incrimination clause.rE6o Jurisprudence on the sub-
ject was founded on Boyd v. [Jnited States which had declared "that a
compulsory production of the private books and papers of the owner .
. . is compelling him to be a witness against himself, within the mean-
ing of the FifthAmendment."r86l Both Stonehill andArticle III, Section
3(i), have since divorced the exclusionary rule in the search and sei-
zure clause from self-incrimination. Nevertheless, the rule established
in Boyd still remains that the self-incrimination clause covers docu-
mentary evidence. This rule is also implicit in the handwriting cases of
r mude 2."u3
B e ltr ant862 and B e
It should also be noted that, unlike the search and seizure clause,
which protects both natural persons and corporations,r86o the privilege
against self-incrimination "is a personal one, applying only to natural
individuals."r86s Thus, a corporation may be compelled to submit to the
visitorial powers of the state even if this results in disclosure of crimi-
nal acts of the corporation.le6 Moreover, a corporate officer may not
incriminate him personally,"u'for in such a situation it would not be a
rssTSee U.S. v. Lim Buanco, 14Phil' 472'478-9 (1909).
rs5sU.S. v. Sarikala,37 Phil.486,489 (1918).
r85eL-19550, June 19, 1967.
rs$Alvarez v. Court of First Instance' 64 Phil. 33' 46 (1937)'
rs' I l6 u.s. 616.634-5 (1886).
t"o2Supra, nole 22-
tE"''Supru, note 23.
r*"{lJlcltc & Co. v. Rtriz. l7 S('RA tt23 (1971).
r*nrl trrilctl sturcs v, whitt:. 122 t l.s. 694. 69lt ( 1944).
r*,,,llulcv. llcrrkcl,2Ol ll.S.4.t(l()(Xr): Wilsonv.tJrritcdStalcs,22l 1;.5. j61 1lt)ll)
lN,,,Wilsoilv. llrrilrrl Slrrlcs.,),)ltlS rll(r()(); ,\rtrilt,tslotlclrill v l)ioktxt.rr/rrr'ttole ll
 564 THE 1987 CONSTITUTION
OF THE REPI.]BLIC OF THE PHILIPPINES
Sec. 17 Sec. 18 ART. III - BILLOFRIGHTS 56s

case of the officer incriminating himself but the corporation incriminat_ Snc. 18. (1) No pnnsoN sHALL BE DETATNED SoLELY BY REASoN
ing him. OF HIS POLITICAL BELIEFS AND ASPIRATIONS.

That the self-incrimination clause protects the private papers of (2) No INYoLUNTARY SERVITUDE IN ANY FoRM sHALL Exlsr
a natural individual, however, is not without exception. The case of EXCEPT AS A PUNISHMENT FOR A CRIME WHEREOF THE PARTY SHALL
shapiro v. united stalesr86s illustrates this exception. The case arose out HAVE BEEN DULY CONVICTED.

of a prosecution for violation of regulations made under the Emergency

Price control Act of 1942. when defendant's records, which he was
required to keep by the offlce of price Administration, were ordered
produced, defendant claimed protection by the constitutional privilege.
The high tribunal ruled that "the privilege which exists as io private
papers, cannot be maintained in relation to 'records required by law
to
be kept in order that there may be suitable information of transactions
which are the appropriate subjects of governmental regulation and the
enforcement of restrictions validly established."'186e similar.ly,in (Inited
states v. sullivan,'8?0 the court rejected a taxpayer's claim ihat the re-
quirement of an income tax return was incriminating because the com-
pleted return would show his criminal gains and a blank return would
invite the curiosity of investigators. And in Kimpo v. sandiganbeyan,t8il
the court accepted in official forms which an accountable public officer
was required to keep.
In more recent cases, however, the united states Supreme court
has struck down certain registration requirements that presented real
and appreciable risk of self-incrimination. These involved statutes di-
rected at inherently suspect groups in areas permeated by criminal stat-
utes, a circumstance which laid the subjects open to real risk of self-
incrimination.lsT,
r868335
U.S. t (1948).
t86eld.
at 33, quoting Davis v. United States, 32g U.S. 5g2, 590 ( 1946).
t87o27
4 U.S. 259 (1927).
r87t232
scRA 53 (1994). the person in this case, however, was not yet ..under investiga-
tion" in the criminal sense.
r8T2Albertson
v. Subversive Activities control Board, 3g2 u.s. 70 ( I 96-5) (..comnunists");
Marchetti v. united srares,390 u.s.39 (r96g) ("gamblers"); crosso v. r-rnitccr
Stares,3go r.1.s.
62 (1968) ("gamblers"); Hayncs v. LJnired stares,3go tJ.s. tt.5 (r96li) (..illeg.l
rircurnrs,,): r.cury
v. United states' 395 tl.s.6 (r969) ('trugs"). I\t.rer ('ttri.liryttitt t,. Iryers,4o2
u.s. 424 rrlr,l
("hit-fl nd-rurr stitlIlc" ).
1. Freedom of Political belief.
Section 18(1), authored by Commissioner Jose Nolledo' comes
from a provision of the French Constitution which says: "No man is to
be inteifered with because of his opinions, provided his avowal of them
does not disturb public order or established law." The guarantee does
not add anything substantive to the due process clause, nor to the guar-
antee of freedom of speech, press, and expression in Section 4 which
traditionally has stood as a bulwark against any attempt to curtail robust
debate on every conceivable issue.r873
2. Involuntaryservitude.
An interesting note of wounded dignity came to the surface during
the debates on involuntary servitude at the Constitutional Convention
of l934.The proposed provision read: "Involuntary servitude shall not
exist in the Philippines except as a punishment for crime whereof the
party shall have been duly convicted."r8?4 The word "slavery," which
appeared in McKinley's Instruction, in the Philippine Bill, and in the
Autonomy Act, was deliberately omitted' This omission, it seems, was
a protest continuing the earlier Philippine opposition to the inclusion
of ,'slavery" in the Autonomy Act. It was brought up in the course of
the debates at the Convention that "slavery" had been included in the
Autonomy Act because some Americans, on the word of Secretary of
War Worcester, believed that slavery existed in the Islands as an institu-
tion. Hence, Delegates Laurel and Orense argued against any mention
of slavery. Slavery, they said, was "devoid of historical significance
in our country" and to mention it in the Constitution would give the
impression that it existed as a problem.r875 Laurel added that the prohi-
bition of involuntary servitude was broad insurance enough against its
ever becoming an institution in the future.'876
n7'l RI.l('1()Rl) 769 70.
nat.l()URNAl, l0 15 ( 19.14)
rr/'/r/. ll 10.14, Il,li;1.
r*"'/r/ ttl Il,)4.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The provision was approved as proposed.'8?? It was also retained in
the 1973 Constitution and now remains in the 1987 text.
The affirmation made at the Convention about slavery in Philip-
pine history is a safe assertion if understood as certainly applying only
to the segments of Philippine society reached by the influence of Spain.
This much was already affirmed in U.S. v. Cabanag:'"1"
... tlln the Kingdom of the Spanish Peninsula, even in re-
mote times, slavery appears to have taken but a surface root and to
have been speedily cast out, the institution not having been known
therein for centuries. It is only in relation to Spain's possessions in
the American Indies that we find regulations in respect to slavery.
In general they do not apply in their terms to the Philippine Islands
where the ownership of man by his fellow-man, wherever it ex-
isted, steadily disappeared as Christianity advanced. Among the
savage tribes in remote parts, such customs as flourished were not
the subject of legislation but were left to be dealt with by religious
and civilizing influences. Such of the Spanish laws as touched the
subject were ever humane and radical. In defining slavery, law 1,
title 2l of the fourth Partida, calls it "a thing against the law of
nature;" and rule 2,title 34 of the seventh Partida says: "It is a
thing which all men naturally abhor." These were the sentiments
of the thirteenth century.
The nature of the institution prohibited by the Constitution was
described in Rubi v. Provincial Boardtsle thus: "Slavery and involuntary
servitude, together with their corollary, peonage, all denote 'a condi-
tion of enforced, compulsory service of one to another."$o The term of
broadest scope is possibly involuntary servitude. It has been applied to
any servitude in fact involuntary, no matter under what form such ser-
vitude may have been disguised."r88r
The first case on involuntary servitude involved an American sol-
dier who had been given an absolute discharge from the Army and who
subsequently entered into a work contract with the Army. Refusing to
perform the service promised, he was detained for deportation. Upon
1877
Id. at 1125 .
r8?88
Phil. 64, 69 (1907).
've39 Phil. 660,708 (19t9).
r88(rHoclgcs v. tl.S.2O3 tl.S. I ( 190(r).
r**rl|:rilry v Allrfirrrr1r,.)ll) Il.S ]l(, (l(rlO)
Sec. 18 ART. III - BILL OF RIGHTS 56'7
petition for release on a writ of habeas corpus, the Supreme Court
Said'1882
... [I]nasmuch private person who contracts obligations
as a
of this sort toward the Army can not, by any law that we know
of, €ither civil or military be compelled to fulfill them by impris-
onment and deportation from his place of residence, we deem it
wholly improper to sustain such means of compulsion which are
not justified either by the law or by the contract'
The next case was u.s. v. cabanag,tss3 already cited above for its
historical contribution .In Cabanag the Court said that while the consti-
tutional prohibition operated to nullify agreements violative of it, sup-
pletory llgislation was required to give the prohibition penal effect''884
Another case relevant to this discussi on, de Io s Reyes v. Aloiado,tss'
made only passing allusion to the constitutional prohibition. The
Court
Said.r886..Domestic services are always to be remunerated, and no agree-
ment may subsist in law in which it is stipulated that any domestic ser-
vice shail be absolutely gratuitous, unless it be admitted that slavery
may be established in this country through a covenant entered into be-
tween interested parties." This case is significant if only to show the
historical pertinence of the prohibition of involuntary servitude even
when disguised in subtle forms.
With the arrival of more sophisticated labor legislation under the
Commonwealth Government, the constitutional prohibition was put to
novel use. Section 19 0f commonwealth Act 103, which authorized a
judicial return-to-work order in labor disputes, was challenged as being
-in
contravention of the Constitution. The Court rebuffed the challenge
and argued:'*8'
An employee entering into a contract of employment after
saidlawwentintoeffect,voluntarilyaccepts,amongothercon-
ditions, those prescribed in said Section 19, among which is the
*/, t' lt"-il.t, I Phil.55'5(r (1901)'
r88r.Slltrtl' notc (r.
r88r/</. itl (rfl ()'
ri8.l(r l,hil.49() ( l()10).
rrx,,/r/.:rl 5O.l l.
r**,Ktrisirlriril v. (iol:rrilto s:rrvrrrills. t{0 I'lril.5.11.51() (19'l1t); I'hiliPpitte l{clirriltll (ir
Wrxkct's I lrlrott v l'ltilrPptltt' l{r'lttttttl' ('o ll0 I'lril 5 t t' 5 tl{
t) ( l()'18)
568 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
implied condition that when any dispute between the employer or
landlord and the employee, tenant or laborer has been submitted to
the Court of Industrial Relations for settlement or arbitration, ...
he shall forthwith return to it [work], upon order of the court. . .
The voluntariness of the employee's entering into it or not with
such implied condition, negatives the possibility of involuntary
servitude ensuing. ...
But the question which this statement raises is whether employ-
ees who entered into contracts prior to Commonwealth Act 103 could
have been made subject to return-to-work orders. If it had been faced
with such a question, would the Supreme Court have merely moved its
time markers and said that everyone who enters into a contract of labor
voluntarily agrees to whatever police power may reasonably demand in
the future? At any rate,a person who refuses to follow a return to work
order, while he can be dismissed from his job,'*' cannot be imprisoned
for so doing.
Finally, of some interest is the conclusion reached by the Court
in Aclaracion v. Gatmaitantsse that a former court stenographer may be
compelled under pain of contempt to transcribe stenographic notes he
had failed to attend to while still in service. The Court said that such
compulsion is not the "condition of enforced, compulsory service" re-
ferred to by the Constitution. And the former stenographer did reluc-
tantly agree to do the transcription during his spare time. But as Jus-
tice Fernando noted in his conculrence, the matter could become tricky
should a stenographer stubbornly refuse to obey and the court insist
on keeping him in jail. The detention could then become punitive and
could give rise to the issue of involuntary servitude."ro
Src. 19. (1) Excnsslvn
FrNES sHALL
CRUEL, DEGRADING oR INHUMAN PUNIsHMENT INFLICTED. NpnuTn
SHALL DEATH PENALTY BE IMPOSED, UNLESS, FOR COMPEI,I,ING
REASoNS INvoLvrNG HEINous cRrMES, rno Coxcnnss HEREAFTER
pRovIDES FoR rr. Axy nBaru pENALTy ALREADy IMpiosED sHAr,t, Bri
REDUCED TO RECLUSION PERPETUA.
rs88Sarmiento v. Tuico, 162 S('RA (r7(r, (rtt5 ( l()t{l{)
r88e64 s('RA l3 l, l.l5 (M;ry 26. lt)'i1).
rN'''Ir/. itl I l()
Sec. 19 ART. III - BILLOFRIGHTS ' s69
(2) PITYSTcALt PSYCHoLoGICALt oR
Tnn nlrpr,ovMENT oF
DETAINEE' OR
DEGRADING PUNISHMENT AGAINST AI{Y PRISONER OR
FACILITIES UNDER
TIIE USE OF SUBSTANDARD OR INADEQUATE PENAL
BY LAW'
SUBHUMAN CONDITIONS SHALL BE DEALT WITH
- 1. Cruel, degrading or inhuman punishmentl excessive
fines.
shall
The 1935 counterpartofsection 19(1) read: "Excessive fines
notbeimposed,norcruelandunusualpunishmentinflicted,Comment-
speak-
ing on the American counterpart of this provision, Mr' Livermore'
ini in ttre United States Congress, raised the following objections:'8el
The clause seems to express a great deal of humanity' on
which account I have no objection to it; but, as it seems to have
by the
no meaning in it, I do not think it necessary' What is meant
terms..excessivebail?''Whoaretobethejudges?Whatisunder-
stoodby..excessivefines?''Itlayswiththecourttodetermine.No
cruel and unusual punishment is to be inflicted; it is sometimes
and per-
necessary to hang u -un, villains often deserve whipping'
haps having their ears cut off; but are we, in the future' to be pre-
vented from inflicting these punishments because they are cruel?
If a more lenient mode of correcting vice and deterring others from
the commission of it could be invented, it would be
very prudent in
it; but until we have some security that this
the legislature to adopt
will be done, we ought not to be restrained from making necessary
laws by any declaration of this kind'
Buttheconsecratedphrases,borrowedfromanActoftheBritish
of 1866, werg. adopted, and, from the United States' they
Parliament
acts from
came to the Philippines unaltered through the various organic
the Instruction of President McKinley to the 1935
Constitution' Hence,
Nor BE rMposED, by Mr'
Philippine jurisprudence became heir to the questions raised
NoR
Livermore.
In the 1973 Constitution the phrase became "cruel or unusual
punishment." The Bill of Rights committee of the 1986 Constitutional
"unusual" pun-
commission read the 1973 modification as prohibiting
ishmcnt cvcn if n6t "cruel." It was thus seen as an obstacle to
experi-
the Committee reported out the
rncntation in pcnology. C<tnscquently,
tt"t()ut't.1!ttt Wccttts v lt.S.,,'l / l' S l'l(), l()() (l(X)())
 THE 1987 CONSTITUTION Sec. 19
OF THE REPUBLIC OF THE PHILIPPINES
present text which prohibits "cruel, degrading or inhuman punishment"
as more consonant with the meaning desired and with jurisprudence on
the subject.'8e2
In Legarda v. Valdez,'"n'it was clearly established that the phrase
"cruel and unusual" embodied an inseparable pair: "To be prohibited
by this provision the punishment must not only be unusual but it must
also be cruel. There is no reason why unusual punishments which were
not cruel should have been prohibited. If that had been done it would
have been impossible to change the punishments that existed when the
Constitution was adopted. A law which changes a penalty so as to make
it less severe would be unconstitutional if the new penalty were an un-
usual one." But what did the phrase mean? The examples taken from
Blackstone's Commentary included burning at the stake, crucifixion,
and breaking on the wheel. "Punishments are cruel when they involve
torture or a lingering death; but the punishment of death is not cruel,
within the meaning of that word as used in the Constitution. It implies
there something inhuman and barbarous, something more than the mere
extinguishment of life."r8e4 The impression thus left by Legarda v. Val-
dez is that the constitutional limit must be reckoned on the basis of the
nature and mode of punishment measured in terms of physical pain.
Weems v. United Statestses represented the next step in the under-
standing of the phrase. Weems was convicted of falsification of an of-
ficial and public document and was sentenced to fifteen years of cadena
temporal together with the accessory penalties of civil interdiction, per-
petual absolute disqualification, and subjection to surveillance during
life. Cadena, in the Supreme Court's translation of the Spanish Code,
meant: "... labor for the benefit of the state. They shall always cafiy a
chain at the ankle, hanging from the wrist; they shall be employed at
hard and painful labor, and shall receive no assistance whatsoever from
without the institution."r8e6 The penalty, the Court said, "has no fellow
in American legislation. Let us remember that it has come to us from a
government of a different form and genius from ours. It is cruel in its
excess of imprisonment and that which accompanies and follows im-
'8rrl RECORD 707-8.
r8e31
Phil. 146(t9o2).
tseald. at 149.
r8q5Sa2rc, note l.
t*,'t,hl. il
7(>4.
Sec. 19 ART. III - BILLOFRIGHTS
prisonment. It is unusual in its character. Its punishments come under
the condemnation of the Bill of Rights, both on account of their degree
and kind . . .', t!e1
The above quotations from Weems clearly indicate that what the
United States Supreme Court found to be constitutionally objection-
able was the nature of cadena temporal itself. This conclusion of the
American Court seems to have arisen from a misconception of the real
nature of cadena temporal as it was actually in effect under the Spanish
Penal Code. The misconception apparently was caused by faulty trans-
lation of Spanish sources. Thus, for instance, the English phrase "hard
and painful labors" carried a much harsher meaning than the Spanish
"trabajos duros y penosos."'"nt Subsequent Philippine decisions, how-
ever, rather than fault the Weems opinion for having been misled by
inaccurate translation, chose to interpret Weems not as a condemnation
of cadena temporal itself but merely of the disproportion between the
penalty of cadena and the crime of falsification of documents. In U.,S.
v. Pico,the Court said'r8ee
[T]here is nothing in the decision in that case which would
justify the inference that the court was of the opinion that imprison-
ment, with or without hard labor, for life or for a long term of years
followed by the life surveillance of the discharged convict, is to
be regarded as cruel and unusual punishment when prescribed for
such crimes as treason, parricide, assassination, and other heinous
offenses, or even for less grave offenses when they are marked
by attendant circumstances which, in the sound discretion of the
legislature, justify and necessitate the imposition of extraordinary
harsh penalties to secure their repression.
While such an interpretation of Weems saved the Philippine Court
the inconvenience of open departure from an American ruling, it also
succeeded in suggesting that the American Court was guilty of yet an-
other error. For, if indeed Weems did not condemn cadena itself, why
tr"] Id. at JJJ .
r'"'ti.S. v. Pico, ltl Phil.3ti6,390-l (l9ll).
l8''/r/. rrntl [I.S. v- Bornrmeo, 23 Phil. 2'79,286 (1912). Justice White, dissenting in Weems,
tlso suitl ihnt thc court "intcrprcted the inhibition against cruel and unusual punishment as impos-
ing ulxrrr (ixrgrcss thc thrty ol plr4rorliorring punishrncnt according to the nature of the crime, and
cus( ulxilt lhc jurliciary tlrc rluty ol tlclcrrniniltg whrthcr punishrncnts hrvc bccn propcrly rppor-
tiorrcrl irrrrpurlrrtlurslululc,lrn(l il nol,lorlctlittckrcnlirt'cr'it."2l7tl.S.ttt.ll'15.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
did not the American Court apply Article 2 (now 5) of the Penal Code
which says:
The court shall submit to the Chief Executive, through the
Department of Justice, such statement as may be deemed proper,
without suspending the execution of the sentence, when a strict
enforcement of the provisions of this Code would result in the im-
position of a clearly excessive penalty, taking into consideration
the degree of malice and the injury caused by the offense.
Either the American Court was unaware of this provision or it
condemned cadena itself. The language of Weems suggests the latter
alternative.
The question, perhaps, may even be asked whether the constitu-
tional prohibition looks only to the nature of the penalty and not at all
to the proportion between the penalty and the crime. The decisions after
Weems, in their attempt to save Weems, clearly answered this question
in the negative. These decisions even suggest that it is possible for a
penalty to be declared a violation of the constitutional prohibition on
the basis solely of a glaring disproportion between the punishment and
the crime. Is such a suggestion tenable, considering that the Supreme
Court still makes use of Article 5 of the Penal Code? Article 5 allows
the imposition of a punishment that is disproportionate to the crime.
Should not such a law be declared unconstitutional in the light of the
post-We ems decisions?tnoo
The answer to the above question may be gathered from Justice
Tuason's pronouncement in People v. Estoistareor where an "excessive"
penalty was upheld as constitutional and was imposed but with recom-
mendation for executive clemency. Tuason said'1e02
... [I]f imprisonment from 5 to 10 years is out of proportion
to the present case in view of certain circumstances, the law is
not to be declared unconstitutional for this reason. The constitu-
tionality of an act of the legislature is not to be judged in the light
of exceptional cases. Small transgressors for which the heavy net
twln People v. de Ia Cruz,90 Phil.907,909 (1953), Justice J. Bengzon alreacly askctl,
without giving his answer, whether the Constitutional Convention intended to stop thc pnlcticc
authorized by article 5 ofthe Penal Code.
r*rr93 Phil. 647 ( tg.sl).
t''L'
Id . ,tl (t54.
Sec. l9 ART. III _ BILL OF RIGHTS
was not spread are, like small fishes, bound to be caught, and it is
to meet such a situation as this that courts are advised to make a
recommendation to the Chief Executive for clemency or reduction
of the penalty . ...
In other words, "cruel and unusual," as these words are found in
the Constitution, do not have the same meaning as "cleady excessive"
found in Article 5 of the Penal Code. In the words of the Court''eo3
It takes more than merely being harsh, excessive, out of pro-
portion, or severe for a penalty to be obnoxious to the Constitution.
"The fact that the punishment authorized by the statute is severe
does not make it cruel and unusual." Expressed in other terms, it
has been held that to come under the ban, the punishment must be
"flagrantly and plainly oppressive," "wholly disproportionate to
the nature of the offense as to shock the moral sense of the com-
munity."
Thus, to be "cruel and unusual" or "excessive" within the mean-
ing of the constitution, the penalty must be flagrantly disproportionate
to the offense no matter under what circumstances the offense may be
committed; but to be "clearly excessive" under Article 5, it need only
be disproportionate to the circumstances of the offense and of the of-
fender. In the former, the punishment imposed by the Legislature has
exceeded the limits of its discretionary power, and the Court steps in
to apply the constitutional brake; in the latter, the Legislature has acted
within the limits of its power, but an unforeseen situation occurs which
calls for clemency and the court can merely recommend clemency be-
cause in the constitutional scheme it has power only to apply the law.
Thus, some use is made of a theory of proportions. What degree of
disproportion the Court will tolerate, however, still remains to be seen,
because, aside from the Weems case, whose teaching is obscured by
the American court's misconception of the Philippine penal system, no
decision has as yet struck down a penalty for being "cruel and unusual"
6J "gyggggiyg."trol
lq'r/d. at 655, citing 24 C.J.S. 1 187-8.
lqutJ.S. v. Pacheco, lti Phil.399 (l9l l) merely appliedWeems.
A 3(X) peso line was held not excessive for violation ofthe Opium, Law "considering the
nuture ol'lhc violttion of the law lirl which it is prescribed." U.S. v. Valera Ang,26 Phil. 598, 599
(lt)I41,liilhuvtl in tl.S. v. Jrur l.i Sing, .37 I'hil. 2ll ,217 (1917). ('udc'trct ternlxtrtrl wus upheld
lirr lltc httt-nittg ol tt lltthlic hrrikling "trrking into consirlt'rulitrr ihtr Srlvily ol tlre crinrc." lteoplc v.
574 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
2. Abolition of death penalty.
When cruel and unusual punishment was discussed in the 1971
Convention, the U.S. Supreme Court had already come out with Fur-
man v. Georgia,teos which had ruled that the death penalty as it existed
in Georgia was unconstitutional. Hence, it was asked whether the cruel
and unusual punishment clause of the Philippine Constitution should
be understood as banning capital punishment. In response, it was made
clear that there was no intention to pass judgment on capital punish-
ment as cruel and unusual. The matter should be left to legislative dis-
cretion. It was in fact pointed out that the automatic review of capital
cases found in Article X, Section 5(2) of the 1973 Constitution was an
implicit affirmation that capital punishment wasnotper se constitution-
ally objectionable.le.6 Thus, when lethal injection was challenged as a
cruel and unusual punishment disallowed by the Constitution, the Court
easily dismissed the contention appealing to well-settled jurisprudence
that the death penalty per se is not a cruel, degrading or inhuman pun-
ishment. Punishment is so if it involves torture or a lingering death;
but the punishment of death is not cruel, within the meaning of that
word as used in the constitution. Unconstitutional punishment implies
something inhuman and barbarous, something more than the mere ex-
tinguishment of life.reo?
The Furman case itself is not authority for saying that capital pun-
ishment is per se cruel and unusual. Furman was a 5-4 decision and the
Constantino,46 Phil.145,14l (1923), following U.S. v. Pico, 18 Phil.386 (l9ll). Prision mawtr
was held not unusual for misappropriation, considering that the penalty included that for falsifica-
tion of public document. People v. Araneta, 48 Phil. 650, 654 (1926), followed in Velasco vdr.
de Talavera v. Superintendent, 67 Phil. 538,542 (1939). A fine of 3,430 pesos for malvcrsation
of 6,860 pesos was not excessive "considering the nature of the offense committed." Peoplc v.
Pacana,90 Phil. 860,862 (1952).
It was also on the theory ofproportioning penalty to the crime that the additional pcnal'
ties for habitual delinquents and recidivists were justified in the face of constitutional ob.jct tiorrs
of excess or cruelty. 8.9., People v. Medrano, 53 Phil. 860 (1928), Pueblo colrlra Evangclistu, 6t)
Phil. s83 (r940).
Since, however, the constitutional provision prohibits "excessive" lines, may articlc 5 ol
the Penal Code be applied to fines found to be "clearly excessive" or must the casc bc rlisrnisscrl
for want of a valid penalty?
In Veniegas v. People, 115 SCRA 790 (1984), the accused claimed that a pcnrlty ol ()J
years imposable on him upon conviction on twelve counts was cruel and unusual. llul uutlcr Ar
ticle 70(4), R.P.C. he would not have to serve more than three times the most scvcrc pcnllly.
1s5408 U.S. 238 (1972).
Is6Meeting of 166-Man Special Committee, Novernbcr 16,l9l2, untl Scssiorr ol Novr:rrt
ber 25 , 19'72.
rql?Pcoplc v. Mcrcatkr,(i.R. No. II(r2.1(), Novcrttbcr l()..l(XX).
Sec. l9 ART. III - BILL OF RIGHTS 575
majority was not supported by a unifying reasoning. The net result of
all the opinions written was that the death penalty, as imposed within
the discretion of state juries, violated the cruel and unusual punishment
prohibition not because it was inherently intolerable but because it was
applied so rarely, "so wantonly and freakishly," that it served no valid
purpose and hence constituted cruel and unusual punishment.
Only Justices Brennan and Marshall considered the death penalty
unconstitutional per se. Brennan arrived at this conclusion by measur-
ing capital punishment against what he considered four basic principles
for judging severe punishment. These principles are: (1) A punishment
must not be so severe as to be degrading to the dignity of human beings.
(2) It must not be applied arbitrarily. (3) It must not be unacceptable to
contemporary society. (4) It must not be excessive, i.e., it must serve a
penal purpose more effectively than a less severe punishment would.
In arriving at the conclusion that capital punishment was cruel
and unusual in the constitutional sense, Justice Marshall followed stan-
dards similar to Brennan's. He said that a punishment may be deemed
cruel and unusual for any one of four reasons. (l) There are certain
punishments which inherently involve so much pain and suffering that
civilized people cannot tolerate them, e.g., the rack, the thumbscrew, or
other means of torture. (2) There are unusual punishments in the sense
of being previously unknown for a given offense. (3) A penalty may
be cruel and unusual because it is excessive and serves no legislative
purpose. (4) Finally, a punishment that is not excessive and possessing
a legislative purpose may nevertheless be invalid if popular sentiment
abhors it.
These standards formulated by Brennan and Marshall should be
useful for determining whether specific forms of punishment suffer
from the vice of being cruel, inhuman, and degrading.
The 1986 Constitutional Commission took a posture different from
what had hitherto been accepted. Rather than wait for legislative discre-
ti<ln to abolish the death penalty, the Commission went ahead to abolish
it but left the matter open fbr Congress to revive capital punishment at
ils discrction "f<lr compe lling reasons involving heinous crimes."
'l'hc clchatcs on tlrc suh.jcct took up the major portion of two session
rkrys.'u"' lrr prcscrrtirrg llrc pnlvisirln to lhc firxrr, Commissioner Bernas
 THE 1987 CONSTITUTION
576
OF THE REPUBLIC OF THE PHILIPPINES
summed up the reasons which persuaded the Bill of Rights Committee
to propose the abolition of capital punishment: (l) capital punishment is
inhuman because its imposition, even if not carried out, traumatizes not
only the convict but also the members of his family; (2) there is no solid
evidence to show that the death penalty has served as effective deter-
rent against the commission of serious offenses; hence, life must not be
destroyed just on the mere hope that extinguishing life will save other
lives; (3) assuming mastery over the life of another man is just too pre-
sumptuous for any human; (4) the fact that the death penalty is an old
institution should not be allowed to become an obstacle to reviewing it
because human life is more valuable than institutions designed to save
human life.'eoe In addition, after Commissioner Regalado, arguing for
capital punishment, detailed the almost scrupulous steps taken by the
law before the death penalty is executed, it was pointed out that these
very same scrupulous steps are themselves manifestations of Philippine
society's reluctance to take human life. It was argued therefore that this
reluctance must be translated into a constitutional prohibition.'e'o
By a show of hands the abolitibn of the death penalty was ap-
proved, 19-18. On motion of Commissioner Rodrigo nominal voting
was called and the outcome was still for abolition,22-17 ;'u
The constitutional abolition of the death penalty, which immedi-
ately took effect upon ratification of this Constitution, does not pre-
vent the legislature from reimposing it at some future time. An amend-
ment authored by Commissioner Christian Monsod adds that it may
be reimposed if "for compelling reasons involving heinous crimes, the
Congress hereafter provides for it." Supponing the provision, Commis-
sioner Romulo argued that the people should have the final say on the
subject, and at some future time the people might want to restore the
death penalty through initiative and referendum. Monsod added: "[W]e
cannot presume to have the wisdom of the ages. Therefore, it is entirely
possible in the future that circumstances may arise which we should not
preclude today. We know that this is a very difficult question. The fact
that the arguments yesterday were quite impassioned and meritorious
merely tells us that this is far from a well-settled issue."rer2
twld.at676.
tetold. at 745-746.
tettld. at 246-247 .
t,,t )
I L trt.I 42..1 4.\.
Sec. 19 Scc. 19 ART. III - BILL OF RIGHTS
The Monsod amendment was readily approved but there was no
attempt to give a theoretical definition of "heinous crimes." Some ex-
amples, however, were given: organized syndication of dope distribu-
tion or smuggling, organized murder, rape with murder.'er3 Needless to
say, moreover, should Congress fail to pass any law reimposing the
death penalty, then such penalty will remain out of the books. But
should Congress eventually pass such law, it can only have prospective
application.'e'n
But what of death penalty already imposed before the ratification
of the new provision? Commissioner Bernas answered: "The intention
of the provision here is that, upon ratification of this Constitution, death
already imposed is automatically - without need for any action of
the President - commuted." But since "commutation" is technically
an executive prerogative, the Commission, in order to make the effect
automatic without having to wait for presidential action, deliberately
avoided the use of the word "commuted" and, on the suggestion of
Commissioner Regalado, used instead "reduced."'t's Thus the provision
reads:
..Any death penalty already imposed shall be reduced to reclu-
sion perpetua.,, T\e phrase "shall be reduced" is not a description of
some future act but a command that is immediately effective. (Never-
theless, President Aquino issued an Executive Order, perhaps ad cau-
telam,commuting death sentences already imposed.)
Finally, when the death penalty cannot be imposed because of the
constitutional ban, what becomes of the three grades into which a pen-
alty is divided where the maximumpenalty is death?The Constitutional
judi-
Commission deliberately left the resolution of this problem to the
the problem saying
Ciary.'sro ln People v. Gavarra,ter? the Court resolved
that the penalty is reduced to two grades only.
tetrld.
tqtald. at748.
tets
ld.
rcrog pFCoRD at j49-7 50.
fel? I 55 SCRA 327 ( I 9tl7). Thc court however departed from this in People v. Masangkay,
l5:ts(:RA lllandPeoplev.Ateru.io,l56SCRA242,andPeoplev.Intintt,c.R.No.69934'Sep-
to
tcmhcr 26, lgtllt. which tlividetl the rcnttining two 8rldes into thrce ncw grades, but rcturned
thc origin[l rlccirion in l,cople v. Mutut.,
(i.R. Nos. 3tt96lt 70,l"cbruury 9, l9lt9.
 578 THE 1987 CONSTITUTION ART. III - BILLOFRIGHTS
Sec. 19 Sec. 19
OF'I'HE REPUBLIC OF THE PHILIPPINES

3. by Congress has as yet been

Capital punishment restored, reviewed, stopped. To date, no crime considered heinous
is it conceivable that congress might
Congress revived capital punishment in 1993 through R.A. No. declared not so by the court. But it is
heinous when in fact by its nature
7659.te18 People v. Echegarayrere upheld the validity of the law and ruled consider a specific .il; ;; be should
that, if such an eventuality
not? It is conceivabr.. ii1"r"u-itted law
on some disputed points about the death penalty. power of the Court to invalidate the
happen, it would U" *itt'in tt'" VIII' Sec-
Article
Echegaray ruled that the import of the grant of power to congress as a "grave abuse of di,"'"tioni as understood under
to restore the death penalty requires "(l) that congress define or de- tion 1.
scribe what is meant by heinous crimes; (2) that congress specify and in1g63fi6nal law was cited by
the de-
ln People v- Mercado,Lrzo
penalize by death, only crimes that qualify as heinous in accordance punishment' Article 6 of the Cov-
fense as un urr.r-"ni"!"it" capital right to
with the definition or description set in the death penalty bill and/or des-
enant on Civil and Pfi;; nigtrts ensh'i""s the individual's
Covenant explicitly recognizes
life. Neverth"t"r., eii"t" 6(2) of the
ignate crimes punishable by reclusion perpetua to death in which latter
case, death can only be imposed upon the attendance of circumstances limitation on the right to life'
that capital ponirt-"nii, un uilo*uule crimes''
duly proven in court that characterize the crime to be heinous in ac-
subject to the limitati* it be imposed for the 'most serious
cordance with the definition or description set in the death penalty bill; 't'u' Covenant' a Human Rights Committee was
Pursuant toArti"f" Ziofltt"
and (3) that congress, in enacting this death penalty bill be singularly
establishedanaonOe'etticle40oftheCovenant'StatesPartiestothe on
motivated by 'compelling reasons involving heinous crimes.,,, More_ Covenant *" r"quiJl submit an initial report to the Committee
over, the court said that there is nothing in Section 19(1) which requires the measures they trave adopted
which give effect to the rights recog-
that "that for a death penalty bill to be valid, a positive manifestation on the progress made^on the:lj:yment
nized within the Covenant and
its entryinto force for the State Paty
in the form of higher incidence of crime should first be perceived and of those rights within one year of Human
statistically proven following the suspension of the death penalty. Nei- concerned and thereafte', uft"'
five years' On July 27 '1982'the
Comment No' 6 interpreting Article
ther does the said provision require that the death penalty be resorted to Rights Committee issued General 6(2) to
as a last recourse when all other criminal reforms have failed to abate 6 of the covenant ,;;G that..(while) it follows from Article
to abolish the death penalty totally'
criminality in society." (6) that State parties'"t" i"t obliged for other
and' in particular' to abolish it
R.A. No.7659,the Death penalty Law; provides that crimes are they are obliged to limit its use Proto-
than the 'most serious crimes'" Moreover' the Second oglignal
heinous "for being grievous, odious, and hateful offenses and which, by
coltothetnt".nutionatCove,,antonCivilandPoliticalRightsaiming
reason of their inherent or manifest wickedness, viciousness, atrocity was adopted by th9 General As-
at the Abolition of the Death Penalty that
and perversity are repugnant and outrageous to the common standards The Court' however' pointed out
sembly on D"""mb"' tS' tq8g'
and norms of decency and morality in a just, civilized and ordered so- said document'
irr" pnif ippines neither signed nor ratified
ciety." The court found this definition or description "to be a sufficient
been used against the death
criterion of what is to be considered a heinous crime.,' The equal protection clause has also poor'
penalty on the u'gu'n"n'that it is most often used only against the
Such argument has been found
too sweeping to merit serious consid-
imbalances in the imposition of
rer8Article crarion. while th";;;;; Le perceiued the law'
6(6) of the Covenant on Civil and Political Rights, of which rhe philipprncs is
pcnaltics, there are- safeguards in the Constitution'
a party, says: "Nothing in this article shall be invoked to delay or prevenr the abolirign <il clpitrrl
punishment by any State Party to the present Covenant." [n lact, in thc Sccond Opti()rral
"G""t"
rulcs to ensure due process and equal
protection of the
to the Covenant which was signed on Deccrnber 15, l9li9, bLrr which has not yct i6nrc inl. l.rt.c,
l)rrtor.ol :r'tl prrrcctlural
Article I says: "(1) No one within the.jurisrliction of a State l)arly to thc prcst:nt l)rolrxrrl slrlll lrt.
executed. (2) Each State Parly shall takc all necess:rry ln(:irsures to;rlxrlish tlx. rlt:irllr
;l1.rrrrlly willrirr
its.jurisdiction."'I'hc Ithilippirrcs is lrol l)irrty to llrt'Sctorrtl l'rrrtrxrrl irrrtl is rrot lilclv t9 5c
r"r''(;.1{. N(). I l7.l'l-1. 'rrc.
li'lrnr:rrv /. l{)()/
580 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
law.le2r Nevertheless, becauseof the irreversibility of the penalty when
carried out, when an accused pleads guilty to a capital offense the judge
must look into the evidence to see if death is the proper penalty.'e22
Review of death sentences first by the Court of Appeals and next
by the Supreme is now automatic and mandatory. It may not be waived
by the court nor by the accused.re23
But Rep. Act No. 9346 now disallows imposition of the death pen-
?,ltY.tezt
4. Custodial cruelties and inadequate penal facilities.
The first sentence of Section 19(1) speaks of punishments which,
if embodied in a penal law, render the entire law invalid. Section 19(2)
concerns itself not with the validity of a penal law but with the manner
of treating prisoners in detention. The provision embodies the concern
expressed by Commissioners Natividad, Ople, de los Reyes and Maam-
bong. Elaborating on this concern Commissioner Maambong said:tszs
Confinement itself within a given institution may amount
to cruel and unusual punishment prohibited by the Constitution
where the confinement is characterized by conditions and practices
that are so bad as to be shocking to the conscience of reasonably
civilized people. It must be understood that the life, safety and
health of human beings, to say nothing of their dignity, are at stake.
Although inmates are not entitled to country club existence, they
should be treated in a fair manner.
Unt"r, facilities of the penitentiary are brought up to
level of constitutional tolerability, they should not be used for the
confinement of prisoners at all. Courts in other jurisdictions have
ordered the closure of substandard and outmoded penal institutions.
All these require judicial orders in the absence of implementing
laws to provide direct measures to correct violations of human
rights or institute alterations in the operations and facilities of
penal institutions. ...
teztId.
re22People v. Vinuya, G.R. No. 125925,
January 28, 1999.
re23People v. Lagua, G.R. No. 170-565,
January 31,2006; Peoplc
170565, January 3 1.2006.
ro2aPeople v. Bon, G.R. No. 166401 ()ctohtrr.l0,2006.
, l().)J.:rs ir l(x)lr()l(' l() (;ittt:lw;ty v. (.)rrillcn,'lll l'hil. UO5, ttO() ( 1922).
r"?rl RII('()Rl) at 77tt.
Sec. 19 Sec.20 ART. III - BILL OF RIGHTS
As finally approved, the provision reads: "The employment of
physical, psychological, or degrading punishment against any prisoner
or detainee, or the use of substandard or inadequate facilities under sub-
human conditions shall be dealt with by law."
As worded, the provision already embodies constitutional autho-
rization for the Commission on Human Rights to take action in accor-
dance with Article XIII, Section 18. Moreover, and parallel with Article
III, Section 12(4), there is a command addressed to Congress to pass
whatever civil or penal legislation might be required for the subject.re26
Src.20. No pBnson sHALL BE IMPRISoNED FoR DEBT oR NoN-
PAYMENT OF A POLL TAX.
1. Imprisonment for debt.
The historical background of various constitutional provisions
prohibiting imprisonment for debt was given by Justice Johnson in Tan
Cong v. Stewart.ts2l The passage is worth quoting:'e28
These constitutional provisions of the various States have
been the result of many years of gradual growth. They marked the
change which had taken place from the days of the feudal system
and before, when a debtor who was unable to pay his debt was
either sent to prison or became the personal slave of the creditor.
These constitutional provisions are of the greatest importance to
the citizen. The right to personal liberty is one of the most valuable
and most cherished rights appertaining to men in society and one
of which he cannot be deprived, except by the judgment of the
a
courts, or by the law of the land. In the barbaric age of the law, an
unfortunate debtor could be deprived of this inestimable right if
he failed to pay an honest debt. His creditor could keep him in his
own custody or send him to jail for the simple misfortune of being
poor. This was so in all the States of the Union whose organic
laws had been established prior to the year 1818, except in the one
State of Tennessee. In that year the constitution of this State was
adopted, which contained, as one of its fundamental principles -
alike bene{icent and just this provision:
-
v. F'lorcs, (i.R. No. r,r,ltl .tt.lJt) .
rr,.)/.S.,.,4.ll'lril.ll0()(l(X)7).Alth()ughtlccitlctl in l(X)T,thisdccisionwasnotpublishcduntil
"'rxlr/. ttl l1 I \ I (r. l(xrllxrlr
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
"No person shall be imprisoned for debt, unless on refusal
to deliver up his estate for the benefit of his creditors in such man-
ner as may be described by law, or in cases where there is strong
presumption of fraud."
Since this beneficent provision in the constitution ofTennes-
see, all of the States of the Union have adopted provisions prohib-
iting imprisonment for debt, so that to-day in none of the States
of the Union may a man be imprisoned for debt, unless such debt
grew out of some fraud. ...
This constitutional prohibition was first extended to the Philip-
pines, without the exemption of fraud, by the Philippine Bill of 1902.
A key concept for the understanding of the prohibition is the concept of
debt. Tan Cong v. Stewart is again helpful:''e
... lw]hat is debt? In Webster's International Dictionary
"debt" is defined "that which is due from one person to another,
as
whether money, goods, or services; that which one person is bound
to pay to another, or to perform for his benefit; thing owed; obliga-
tion; liability." In law, it is "an action to recover a certain specific
sum of money alleged to be due." Bouvnn, in his law dictionary,
defines it as "a term used in bookkeeping to express the left-hand
page of the ledger or of an account to which are carried all of
the articles supplied or amounts paid on the subject of an account
or which are charged to that account; the balance of an account
where it shows that something remains due to the party keeping
the account." Blecr, in his law dictionary, defines debt as "a sum
of money due by a certain and express agreement" or as "a sum
of money due by a contract." EscnrcHs, in his "Diccionario de
Legislacion y Jurisprudencia," defines a debt as "la obligacion
que alguno tiene de paga4 satisfacer o reintegrar a otro alguna
cose." Valbuena, in his "Novisimo Diccionario, " defines a debt as
follows: "Obligacion de pagar, de satisfacer a otro."
The Supreme Court of Illinois . . . in defining the meaning of
the word "debt" as used in the constitution, said:
"That any liability to pay money growing out of a contract,
express or irnplied, constitute a debt within the meaning of this
provision of the constitution."
r"ru/r/. irt tl I 6. I 7. lixrtnott:.
Sec.20 Sec.20 ART. III - BILL OF RIGHTS 583
The first case which may be classed as one on imprisonment for
debt,In re Prautch,le3' actually pre-dated the Philippine Bill. The ab-
sence of a constitutional prohibition of imprisonment for debt at the
time this case was decided possibly explains the strained form of rea-
soning it employed. At issue was the application of Article 412 of the
Code of Civil Procedure to a contractual litigation. Article 412 autho-
rized the arrest of a defendant in certain types of civil cases. The article
was challenged, however, not as authorizing imprisonment for debt but
as authorizing impairment of the obligation of a contract. Hence, the
Court answered're3r
a part of the con-
... The right to imprison for debt is not
tract....
If the right to imprison for debt is not a part of the con-
tract, the converse of the proposition is also true, that the right to
exemption from imprisonment for debt does not form part of the
contract....
The Court, however, did not stop there. The quoted paragraph
continued with what might as well be an answer to a challenge based
on the prohibition of imprisonment for debt.'er2
... Such statutes are regarded as penal rather than remedial.
They are enacted to prevent fraud in the making of contracts, or to
prevent the subsequent fraudulent conduct of parties with refer-
ence to their obligation, and are properly invoked as punishment
for dishonesty.
be seen from the discussion in the subsequent paragraph
It will
that the decision in Prautch could not have been allowed under the pro-
hibition soon to be made in the Philippine Bill of 1902.
The case of Ramirez v. de Orozcore33 serves as an illustration of
what the provision does not prohibit. Ramirez had requested Santos to
pay the municipal treasurer the sum of 16 pesos owed by him for unpaid
cerlulas (poll tax certificates) on the promise to render personal service
to Santos in payment for the sum. Once in possession of his cedulas,
'uu'l I'hil. I 12 ( l9O2).
r''rr/r/ :tl I l,l.
r,,,t,l I'hil ,l l,r { l()l(r}

584 THE 198TCONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
however, Ramirez refused to render the promised service. Prosecuted
under Section 1 of Act No. 2098 of the Philippine Legislature, which
described a certain form of estafa fembezzlementl, Ramirez was con-
victed and imprisoned. Upon a demand for release on a habeas corpus
petition, the Court answered that the incarceration was neither impris-
onment for debt nor involuntary servitude but merely a penalty for the
crime of estafa.te34
The transaction in In re Thmbororer5 was a different one. The na-
ture of the transaction can be fully seen by examining the receipt issued
for money the recovery of which was being sought:'o'u
hereby certify that the mercantile firm Quian Sieng & Co.
I tion of a debt or as a means of compelling satisfaction; but a person may
has received from Justina Plaza, widow of Tamboco, in her capac-
ity of guardian of the persons and property of the minor children of
said Tamboco, the sum of two thousand two hundred and forty-one
pesos and thirty-two centavos owing to the said estate, of which
sum said firm will render an account to the interested party as soon
as she so requires.
The obligation thus incurred by the debtor was to pay an ordinary
contractual obligation. The guardianship proceeding, moreover, was
civil in nature. The Court did not allow enforcement of the civil obliga-
tion by an order of imprisonment.
The case of Freeman v. (/.S.,'e37 again presented a different set of
facts. Freeman, having been convicted of embezzlement, was ordered
to refund the amount embezzledor suffer subsidiary imprisonment-An-
swering the objection that such subsidiary imprisonment amounted to
prohibited imprisonment for debt, the Court said''e38
Statutes relieving from imprisonment for debt were not in-
tended to take away the right to enforce criminal statutes and pun-
ish wrongful embezzlement or conversions of money. It was not
the purpose of this class of legislation to interfere with the enforce-
ment of such penal statutes, although it provides for the payment
of money as a penalty for the commission of an offense. Such laws
teYld. at 416.
re3536 Phil. 939 (t917).
tet6ld. at939-40.
rer?40 Phil. 1039 (1910),rrlfnnirrs () Phil. l6tt 11t117,.
r"'8/r/. itt lO44 45.
ART. III - BILL OF RIGHTS
Sec.2O
are rather intended to prevent the commitment of debtors to prison
for liabilities arising upon their contracts.
... The sentence of the Supreme Court of the Philippine Is-
lands, including the imprisonment in lieu of the sum found due,
was because of the conviction for the violation of this statute; in
other words, the money payment was part of the punishment, and
was not imposed as an imprisonment for nonpayment of the debt,
regardless of the criminal offense committed. ...
The cases so far seen reveal that the constitutional prohibition,
stated in full, means this: No person may be imprisoned for debt in vir-
tue of an order in a civil proceeding,'e3e either as a substitute for satisfac-
be imprisoned as a penalty for a crime arising from a contractual debt
and imposed in a proper criminal proceeding. Thus, the conversion of a
criminal fine into a prison term does not violate the provision because in
such a case imprisonment is imposed for a monetary obligation arising
not ex contractubut ex delicto.te40
The next case, Ganaway v. Quillen,,no, is important because it
answers the question whether the constitutional prohibition applies to
fraudulent debts. The case was again a civil case and at issue once more
was Article 412 of the Code of Civil Procedure already litigated and
upheld in In re Prautch.Article 4l2reads thus're42
A defendant may be arrested in the following cases:
(1) In an action for the recovery of money or damages on
a cause of action arising upon contract. express or implied, when
the defendant is about to depart from the Philippine Islands with
intent to defraud his creditors.
(2)
In an action for money or property embezzled in the
course of his employment or for willfully violating his duty.
(3) In an action to recover the possession of personal
property unjustly detained, when the property or any part thereof
has bccn concealed, removed, or disposed of to prevent its being
found or takcn by the officer.
r"r"Mttt lt lt'ss will (lclcntion bc allowcd whttn it is inrposcd without any judicial process
at
lll. Mitkapirgll v. S;rnt;rrrr;rri:r, 55 l'hil. 4lll,4?I ( l()10).
''''u'Aicn,r v..lrrlge lnserto, 7l S('RA 166 (Mily ll. l()76).
r'ilr,1.) l'lill llo5 ( ltt,).r)
r!r !/// ,rt l( | ()

586 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
(4) When the defendant has been guilry of fraud in con-
tracting a debt or incurring the obligation upon which the action
is brought; or in concealing or disposing of the property for the
taking, detention, or conversion of which the action is brought.
(5)When the defendant has removed or disposed of his
property or is about to do so, with intent to defraud his creditors.
Two important observations were made by the Supreme Court:
( I ) The Code of Civil Procedure took effect on October 1 1901 that is,
, ,
prior to the enactment of the Philippine Bill of 1902;'*' (2) "The Con-
stitution of the Philippine Islands, unlike some States in the American
Union, makes no exception in cases of fraud. The prohibition in the
Philippine Bill, reproduced in the Jones Law [Autonomy Act], is .that
no person shall be imprisoned for debt."'rq
The Court made capital of this absolute prohibition found in the
Philippine constitution and proceeded to make its own the observations
made by Justice McClellan of the Alabama Supreme Court in a case
involving a similar absolute prohibition: reo'
The elimination of the exception as to frauds was a pregnant
omission, which left the guaranty of immunity from imprisonment
to the debtor to apply to all cases of debt, whether they involved
fraud or not. So that the statute we are considering can derive no
aid from the idea that the receipt of a deposit by a banker under
the circumstances stated is a fraud, and hence that the transaction
would constitute "a case of fraud," since even in such cases there
can be no imprisonment for debt.
The "imprisonment for debt" which the framers of constitu-
tions embodying this provision doubtless had most prominently
in mind was imprisonment upon process issuing in civil actions
the object and sole purpose of which were the collection of debts.
It was to remove the evils incident to the system of taking thc
debtor's person upon a capias ad satisfaciendum that this organ-
ic inhibition came primarily to be ordained. But the effect of its
ordination has been to establish a public policy much broader in
its influence upon legislation and operation uponjudiciat proccctl-
ings than wbuld have sufficed for the eradication of the ills which
rq31d. at 808.
at 806.
'sld.
'q5/d. at 807.
III BILL OF RIGHTS s87
Sec.20 Sec.20 ART.
-
attended upon the recovery' or attempted recovery, of debts by re-
straint of the debtor's person. This policy is inimical alike to the
incarceration of a debtor as a means of coercing payment, and to
his punishment by imprisonment for a failure to pay, at least when
such failure results from inability.
Everything thus far said in Ganaway about fraudulent debts was,
indeed, pertinent to the constitutional provision. The discussion,
how-
ever, w;s largely obiter, because ftaud in contractu was not alleged'
This circumstance may explain the reluctance of the court to declare
Article 4I2 of the Code of Civil Procedure unconstitutional. The Court
simply said that the decision "need not be taken as going to the extent of
finding Chapter XVII of the Code of Civil Procedure invalid and should
be understood as limited to the facts before us and as circumscribed
by
the various exceptions to the constitutional prohibition""eou
At the Constitutional Convention of 1935, a provision identical
with the absolute prohibition found in the Philippine Bill was pro-
ju-
posed.rp+r Delegate Araneta proposed to alter the course of Philippine
risprudence on the subject by the following addition: "unless the same
has been contracted by fraud."'*' In defense of this addition, Delegate
sanchez argued that the qualification proposed by Araneta should
help
to promote honesty among citizens and should cover frauds not touched
bacriminal law.re4e Delegate Laurel, however, insisted on the retention
oi tt. existing absolute prohibition as explained in Ganaway v. Quil-
len.tsso The Araneta proposal was rejected.le5'
The jurisprudence on imprisonment for debt under the 1935 Con-
stitution made no progress beyond the principles aheady set before
'%/d. at 815-816.
'q?3 JOURNAL 1149.
te48ld. at 1162.
teaeld. at 1163.
resDelegate Araneta replied that since existing jurisprudence, relied upon by Laurel, al-
amendment would merely
ready allowed imprisonment as a penalty for fraud, approval of the
of his
clariiy the nature of the constitutional prohibition. 1d. Araneta failed to see that approval
prop(Lrul would have resulted not just in clarification but also in a dilution of the plotection by al-
io*ing in-,prir.,nnrenr lbr a fiau6ulent 4ebt through an order in a civil proceeding. He failed to see
in deprivation ofliberty'
that ttic ilbsolutc pnrhibition, a oorollary to the requirement ofdue process
mcant t6nt intprii,rurncnt tilr dcbt s*tisly the requirements of criminal due process and not
'ust
civil
.iusl tluc proccss tts tlctttitntlctl rn llrrrccctlings
trrt ll.
 588 THE 1987 CONSTITUTION Sec.20 Sec.21 ART, III - BILL OF RIGHTS
OF THE REPUBLIC OF THE PHILIPPINES

1935;,s2 The 1973 Constitution copied the 1935 provision. So has the In American law, moreover, a poll-tax can also mean a tax which
is a pre-requisite for the exercise of the right to vote. In Breedlove
1987 Constitution. And jurisprudence on the subject has not changed. v.
validity of a poll
Suttles,,rg tire United States Supreme Court upheld the
2. Non-payment of poll tax. tax in that sense. But Article V, Section 1 of the Philippine Constitution
Closely related to imprisonment for debt is imprisonment for non- when it prohibits the imposition of "literacy, propefty, or other substan-
tive requirement,, on the exercise of the right of suffrage can be
read
payment of poll tax. A poll-tax or a cedula tax is a capitation tax im-
This
posed on all persons of a certain age. At present it is the tax one pays u, u prohibltion of a poll tax imposed as a pferequisite for voting.
for his or her residence certificate which generally serves as a personal proh-ibition first appeared in Article IV Section 1, of the 1973 Constitu-
identification instrument. At the Constitutional Convention, Delegate iion and has been carried into the 1987 Constitution'
J.Perez characteized poll tax as "not progressive" and "antiquated," pnnsoN sHALL BE TwICE PUT IN JEoPARDY oF
and a provision prohibiting imprisonment for non-payment of poll tax
Src.21. No
puNISITMENT FoR THr SAME OFFENSE' In m lcr ts PUNISHED BY A LAw
was approved.'n'It was the one amendment touching on taxes and in- EITHER SHALL
AND AN ORDINANCE' CONVICTION OR ACQUITTAL UNDER
tended for the protection of the poor which was approved by the 1935 coNsTITUTEABARToANOTI{ERPROSECI-TTIONFoRTIIESAMEACT.
Convention.teto

Prior to the 1935 Constitution, imprisonment for nonpayment of 1. Double jeoPardY.

poll tax was authorized under Section 1439, in connection with Sec-
tion 27 18, of the Revised Administrative Code. P e op le v. Lins an g an,tsss
the only case on poll tax so far, held that under the 1935 Constitution,
no conviction could be based on such provision of the Administrative
Code.
A further amendment prohibiting poll taxes themselves was re-
jected by the 1935 Constitutional Convention.tes6 Alexander Hamilton
himself, writing as Punuus in Federalist Paper No. 36 , said: "As to poll
taxes, I, without scruple, confess my disapprobation of them." Nev-
ertheless he added: "There may exist certain critical and tempestuous
conjectures of the State, in which a poll tax may become an inestimable
resource. And as I know nothing to exempt this portion of the globe
from common calamities that have befallen other parts of it, I acknowl-
edge my aversion to every project that is calculated to disarm the gov-
ernment of a single weapon, which in any possible contingency might
be usefully employed for the general defense and security."
res2See
People v. Reyes, 67 Phil. 187 (1939); People v. Merilo, L-3489, June 28, l9-5 I , in 2
Tewnno ,lro Cennnox, Potrrcer Lew or rae Pnupnnx 252 (1962).
re533
JOURNAL 1160-2.
teeld. at ll5l.
Phil.646 (1935).
'e5562
te$^ Ningun lev se
promulgaril sohre impu.'st(t o trihutrt p<,rxtnul prr tttpittt ."
The subject of double jeopardy, which became a matter of con-
troversy in thl early days of the American regime, also received con-
siderable attention at the 1934 Constitutional Convention' Delegate
Barrion,desiringtoplacetheoffendedpartyonanequalfootingwith
jeopardy
the offender, proposed that "No person shall be twice put in
of punishment rot un offense upon which the final iudgment hasbeen
rendered." This proposal was rejectedrn" but Delegate Francisco
came
upwithanother:-..Thestatemayappealfromajudgmentofacquittalin
ciiminal cases." Francisco's avowed intention was to reject the ruling
in Kepner y. [/.s.,,n,n which transplanted the American doctrine to the
Philippines,asbeinginconsistentwithajudicialSystemwhichplaced
the fate of an accused not in the hands of ajury of his peers but
in the
hands of one judge. He added, too, that a right of appeal
given to the
state would necessarily make judges mofe careful in their decisions.
But Francisco's proposal was also rejected'reuo
Failing in his first attempt, Francisco proposed another amend-
ment:..AnappealshallbeallowedthePeopleofthePhilippinelslands
,n questionr if tu*, provided that a verdict in favor of the defendant
,e'1102
u.s. 22'l .283-284 (193'7).
'q{4 JOURNAL 1257-8.
rurul I l)hr1.669 (19O4).
t'n'4
ll . [t I l'lZ. ;1 11lt{NAL I 25tt, 1264-5.
 THE 1987 CONSTITUTION Sec.2l
OF THE REPUBLIC OF THE PHILIPPINES
shall not be set aside by reason thereof." Francisco's declared purpose
was to provide rulings "for future guidance." But his efforts were again
rebuffed.t,6'
Francisco's final effort, however, was successful. He proposed the
following: "If an act is punished both by a general law and by a mu-
nicipal ordinance, acquittal or conviction under one shall be a bar to
prosecution under the other."re62 The amendment, designed to reverse
the ruling in U.S. v. Chan-Cun-Chay,'*, was carefully worded. It pro-
hibited a second prosecution for "an act" violative of both a statute and
an ordinance even if
such act constituted two offenses. For this reason,
it was objected that the provision could be an instrument for the fiscal
to treat favorites leniently by prosecuting them under the lighter penal
law. On the other hand, it was pointed out that a vindictive fiscal could
alrvays, under Chan-Cun-Chay, harass an enemy by double prosecu-
tion. Francisco won approval for his amendment,'K and the provision
has stayed on even in the 1987 Constitution.
If one in search of the Spanish law on double jeopardy were to
look merely at fragmentary statements made in codes and in commen-
taries, he might arrive at the conclusion that the doctrine brought to the
Philippines by American law was no different from that in existence
under Spanish law. The Fuero Real (A.D.1255), for instance, ssid:,er:r
"After a man, accused of any crime, has been acquitted by the court,
no one can afterwards accuse him of the same offense." Or, again, the
Siete Partidas said' 'e66 "If a man is acquitted by a valid judgment of any
offense of which he has been accused, no other person can afterwards
accuse him of the offense ..." Commenting on Spanish law in 1884,
Don Lorenzo Arrazola said're67 "It is another of the general exceptions
that a person cannot be accused who has formerly been accused and
adjudged of the same crime, since the most essential effect of all judi-
cial decisions upon which execution can issue is to constitute unalter-
able law." These fragments, however, did not clearly prohibit appeal
te6tId. 1265.
tea" Si un acto esta penado
tanto por w,a ley general como por und ordinanut muni<:ipal
la absolucion o condena bajo la una sera obice para un procesamiento bajo la otra." I(1. l2j l.
'e635Phil. 385, 389 (1905).
'es4 JOURNAL l27l-5.
r%sKepner v. U.S., 1l Phil. 669,689 (1904),
195 U.S. 100.
te6ld.
te67Id.
Sec.21 ART. III _ BILL OF RIGHTS
by the prosecution when the judgment was one of acquittal, or, to put it
more exactly, there was no final acquittal until the judgment of a lower
court had been reviewed. After a study of the Spanish law on
jeopardy,
Kepner v. (J.S.,the decision which definitively transplanted the Ameri-
can system to the Philippines, concluded:'s8
Under that system of law it seems that a person was not re-
gardedasbeinginjeopardyinthelegalsenseuntiltherehadbeen
a final judgment in the court of last resort. The lower courts were
deemed examining courts, having preliminary jurisdiction, and
the accused was not finally convicted or acquitted until the case
had been passed upon in the Audiencia, or Supreme Court, whose
judgment was subject to review in the Supreme Court at Madrid
for errors of law, with power to grant a new trial'
The prosecution thus could "appeal" an acquittal'
Whether or not this conclusion of Kepner was an accurate state-
ment of Spanish law is now of merely academic importance. Academic
now too is the question whether, for a judicial system which places the
fate of the accused in the hands of one judge, the Anglo-Saxon system
is the best. Kepner v. U.S. definitively lsledrres that it was the intention
of President McKinley's Instruction to transplant to Philippine soil the
Anglo-Saxon concept of double jeopardy and that it was the intention
-ongress in the Philippine Bill of t902to follow the intention of the
of
Instruction.Hence, Kepner ruled that the government may not appeal
a judgment of acquittal.reTo As already pointed out, the Constitutional
Convention of 1935 chose to follow this ruling. Thus, Justice Moran,
writing in 1941, could say:re7r"Being thus a mere recognition of the
maxim of the common law, and adopted from the Constitution of the
United States, the principle of double jeopardy followed in this juris-
diction the same no niurower or wider line of development as in
- -
Anglo-Saxon jurisPrudence."
, ffiheoneremnantoftheSpanishproceduralsystemondoublejeopardywhich
pusscd on to the 1935 Constitution was that a penalty of death imposed by a lower court
could
(1910). See
nor be final until rcviewed by the Supreme Court. U.S. v. Laguna, 17 Phil' 532' 538-9
Arriclc vllt, section 2. Philippine constitution, now Article VIII, Section 5(2)d.
rNll Phil. at 692.
tu^'ltl. trl7112.
re'rl'coplc v. 'lirrok, 7l Phil. 26{)' 275 ( I 94 I )'
 THE I 987 CONSTITI,-ITION ART, III - BILL OF RIGHTS
OF THE REPUBLIC OF THE PHILIPPINES Sec.21

Whether or not Philippine jurisdiction on double jeopardy has in requi-

on the attachment of jeopardy have revolved around the first four
fact followed a line of development "no nalrower or wider" than that
sites enumerated in Ballentine.
found in American jurisprudence will be seen from a study of the de-
velopments after Kepner. It was already pointed out, in the discussion SectionT,Rulell7,NewRulesofCourt,saysthattheremust
of the Convention debates, that some of the provisions presently found be a,,valid complaint or information ot other formal charge sufficient
in form and substance to sustain a conviction." IJnder such de,
in the Constitution were inserted precisely with a view to modifying it has
existing jurisprudence.It will also be seen that the role which the Rules been uniformly held that if the charge is fatally defective in
form, as in
of Court has played in the development of the doctrine on double jeop- a charge of rape where the complaint is signed not by the complainant
the
ardy has made it very difficult to determine what aspect of the develop- but b/the police chief, jeopardy does not attach're?7 Thus, too' when
mentbelongs to "constitutional double jeopardy" and what to "statutory substance or tn" information does not allege sufficient facts
to consti-
double jeopardy." tute an offense, jeopardy does not attach.'e?8 under these and similarly
convicted and, hence,
defective informations, the accused can never be
2. When jeopardy attaches. he cannot be said to have been in jeopardy of conviction''e?e

the court that takes cognizance of the case is without

ju-
Under present law, to raise the defense of double or second jeop- when
ardy, three requisites must be shown: (1) a first jeopardy must have at- risdiction, either because the crime charged is outside the ambit of the
tached prior to the second; (2) the first jeopardy must have terminated; court's powers or because the crime was committed outside the ter-
(3) the second jeopardy must be for the same offense as that in the first. ritorial jurisdiction of the court, all proceedings in such court are void
does not
These three requisites provide a convenient division for the discussion and the accused cannot be convicted. Hence, again,jeopardy
of the subject. attach.reso Conviction by a court that is without
jurisdiction is a nullity
and, at most, has the effect of a preliminary investigation.'e8' In a pre-
Ballentine ,'n?2 enumerating the requisites for the attachment
U .S . v.
in jeopardy
ofjeopardy in 1905, said thatjeopardy attaches: (a) upon a good in- liminary investigation, however, the accused is not placed
.,has no purpose except that of determining whether a crime
because it
dictment, (b) before a competent court, (c) after arraignment, (d) after believe the
has been committed and whether there is probable cause to
plea, and (e) after the trial of the case has actually commenced by the
accused guilty thereof ."'t"
questioning of at least one witness. The fifth requisite, however, was an
obiter dictum,reT3 because there had as yet been no arraignment and plea; It has been held, however, that when one is prosecuted in a mili-
but it became doctrine in U.S. v. Gemora,te,4 and for twenty-five years, tarycourtandisconvictedbyit,suchconvictionisabartoprosecu-
five requisites were demanded by the courts. ln People v. Ylagan,tnis tion for the same offense in a civil court.In the cases affecting military
however, the fifth requisite established in Gemora was categorically jurisdiction, decided in the early days of American rule, the Supreme
rejected. Writing for the Court, Justice Abad Santos said're?6 "[I]ssue is court declined to apply American cases allowing prosecution under
properly joined after the accused has entered a plea of not guilty. Thc both state and Fedeial courts. The reason was that, in the Philippines,
mere calling of a witness will not add a particle to the danger, annoy-
ance, and vexation suffered by the accused." Since Ylagan, problelns
''??People v. Manaba' 58 Phil.
665' 668 (1933)'
r"?"Purple v. Austria, 94 Phil. 895' 901 (1954)'
r,,/,,People v. Nargatan,43 Phil. 470 (1922); People v. Mirasol' 43 Phil. 860 (1922); People

v. l.opcz, Z.) piit. 6Stt ( ig+Z);

peopte v. Capistrano, L-14363, August 3l 1960; People v' Cuevo'
te724
Phit. 67 3, 679 (1905). '
reT3Reiterated also obiter inU.S.v. Montiel,
l{)4 li('RA ll2,]20 (May 7, l98l).
T Phtl.272 (1907) and U.S. v. Yam Tung Wty, ruurl;.s., I l.S. v. Alnrazan, 2O Phll.225,23O-l ( l9l I ); U.S' v' Jayme, 24 Phil' 90' 93 (1913);
21 Phil.67 (1911).
Ruhit, 2tl l'hil. 631' 614 ( l9l4); l'cople v' Arquel, L- 12629' December 9'
1959'
re748 t LS. v.
Phil. l9 (1907). r"*rl'trr4rlc v. Rontuuldo. (X) Phil T-]9' 743-4 ( 1952)'
rq7s58 Phil. 851 (1933). r*r,/.*'.U,\.v.Yu'l\rieO,.14 I'hil.2o9.2lo(1916)lPcoplev'Mcdied,6ttPhil 48-5'489
re76/d. at 853.
( f() v | )ttco, I It )l ), Nrtvt'tttlx't l{), l(Xr?'
t()), l\.ol)le
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
both the civil and the military courts were creations of one sovereign-
ty.''83 (Strangely, however, under the Republic, this doctrine was applied
in Crisologo v. People,',e although the court martial prosecution was
under the United States Army and the civil prosecution under the Phil-
ippine Government.)
Although arraignment and plea have always been considered es-
sential requisites for the cornmencement of jeopardy,'n'5 it was not until
People v. Ylagantes6 that it was established that arraignment and plea
constitute the final steps in the commencement of jeopardy. It is at ar-
raignment and plea that issues are joined. This rule has been uniformly
followed since the Ylagan decision.'nE, So rigid, moreover, is the rule
that a new arraignment and plea must be made when appeal is made
from the municipal court to the Court of First Instance which, by law,
must take cognizance of the case de novo.lesE People v. Balisacantese
is another example of the rigidity of this rule. Balisacan, after having
pleaded guilty, was allowed to present evidence in mitigation. The evi-
dence presented, however, amounted to a complete defense and, on this
basis, the trial court acquitted him. The Supreme Court ruled that the
nature of Balisacan's evidence amounted to a withdrawal of his plea of
guilty and, since no new plea was entered, there was no jeopardy which
the "acquittal" could terminate.'q
3. Terminationofjeopardy.
Once jeopardy has attached, may double jeopardy be raised as a
defense even before the termination of the first jeopardy? The question
'e83U.S. v. Colley, 3 Phil. 58 (1903); U.S. v. Tubig, 3 Phil.244 (1904); Grafton v. U.S. 206
U.S. 333 (1907), I I Phil.776, reversing U.S. v. Grafton, 6 Phil. 55 (1906).
t%194Phil.477 (1954). Compare with People v. Acierto,
92 Phil. 534 (1953) and see Mar-
cos v. Chief of Staff, 89 Phil. 246 (1951).
See also Olaguer v. Military Commission, 150 SCRA 144 (1987), Cruz v. Enrile, t6O
SCRA700 (1987), and Tan v. Barrios,G.R.85481-82, October 18, 1990 which arc discussed under
Article III, Section 14,supra.
feEsE.g.,
U.S. v. Perez, I Phil. 203,204-7 (19u2): Peopte v. Tirrla,50 Phil. l00t (192?).
t%6Supra,note ll.
rq7E6., Valenzuela v. People,67 Phil.490 (1939); Conjurado v.
Ramolete,99 Phil. 145,
149 (1956); People v. Quimsiaf, L-19860, Decem&r 23,196/'.
ressPeople v. Malayao,
L-13103, February 28,1961.
t%L-2631 6, August 3 l, 1966.
twCompare wirl People v. Pademal, L-26734, September 5, 1967. Sec also Jimcnez v.
Military Commission, 102 SCRA 39 (January 15, l98l), wherc a merc written munitbslution ol'
not guilty filed while the military court wos not in session wus not cunsidcrett u plcu sutlicicnt lirr'
jeopandy to attlch.
Sec.2l Sec.21 ART. III _ BILL OF RIGHTS
pro-
is interesting because of the peculiar language of the constitutional
vision. Justice Roberto Concepcion,inYap v' Lutero,teel wrote:
(2) kinds of double jeop-
lOlur Bill of Rights deals with two
ardy.Thefirstsentenceofclause20,sectionl,Articlelllofthe
[1935]Constitutionordainsthat..nopersonshallbetwiceputin
jeoparay of punishment for the same offense'" The second sen-
that
..if al act is punishable by a
i"n"" ol said clause provides
law and an ordinanci, conviction or acquittal under either shall
constitute bar to another prosecution for the same acf'" Thus'
a
thefirstSentenceprohibitsdoublejeopardyofpunishmentforthe
jeopardy
same offense, whereas the second contemplates double
may
of punishment for the same act. Under the first sentence ' one
be twice put in jeopardy of punishment of the snme act' provided
that he is charged with dffirent offenses,or the offense charged
in
one case is not included in, or does not include, the crime charged
in the other case. The second sentence applies, even if the offenses
charged arc not the same, owing to the fact that one constitutes
a
violationofanordinanceandtheotherviolationofastatute.If
thetwochargesarebasedononeandthesameact,convictionor
acquittal under either the law or the ordinance shall bar aptosecu-
tion under the other.
Then concepcion added: "Incidentally, such conviction or acquit-
jeopardy for the same
tal is not indispensable to sustain a plea of double
offense. so long as jeopardy has attached under one of the informations
of in the other case
charging said offense, the defense may be availed
invoiving the same offense, even if there has been neither conviction
nor acquittal."
Earlier and subsequent decisions do not sustain Justice concep-
cion's obiter dictum- Thus, in People v' Dagatan,ree2 in a new infor-
mation for murder that was a reconstitution of a case submitted
to the
lower court before the second world war, the court said: "It is very
clear that there can be no double jeopardy where there has been no
conviction, acquittal, dismissal or termination in a former case for the
same offense.';Again, in a recent case,ree3 two informations
were filed
{-lr66trArril 30, 1959.
"l.p]9()I)hi|.2g4.296(|951\:rcttflirnu,dinPetlplcv.f)agatan,anappealofthesamecaseon
rht nrcrils, L-lOlt5 | , Atrgtrsl 2l{, l()5().
r'"llttlttong v l\'t4rlt" l' l()l44,Jrrly ')7' l(xr(r
 THE 1987 CONSTITUTION Sec.2l Sec.2l ART, III _ BILL OF RIGHTS 597
OF THE REPUBLIC OF THE PHILIPPINES

on the same day against the same accused, one in the cFI of Laguna In rejecting this defense, the Court made an important doctrinal
..ac.
for rebellion underArticle 134 of the Revised penal code and the other pr.ono.,,,""*"nt, the core of which lies in the distinction between
in the cFI of Manila for subversion under the Anti-subversion Act. on and
..dismissal." There is acquittal when the case is terminated
appeal of the Laguna case to the Supreme court, the accused raised
iuittaf' pronouncement that the
the upon the merits of the issue, as when there is a
defense of double jeopardy on the ground that rebellion under Article
134 of the Revised Penal code was but a lesser cognate offense to that jeopardy' when
"uid"n."doesnotshowtheguiltoftheaccusedbeyondareasonable
doubt. There is dismissal, in the sense of the rule on
defined in the Anti-Subversion Act under which he had a case pending thereof, as when
the case is terminated otherwise than upon the merits
in the cFI of Manila. The court rejebted this defense because neither has no jurisdic-
the dismissal is based on the allegation that the court
of the two cases had as yet been terminated. In a footnote, the court on any other
tion either over the subject matter or over the tenitory, or
whether the ac-
added: "Appellant should direct his plea to the cFI of Manila, for his
fi- ground that does not de;ide the merits of the issue as to
nal conviction in the case at bar would preclude his further prosecution The only case, the court
rused is or is not guilty of the offense charged.
there, assuming that the charge therein is indeed for a lesier cognate but not correctly
remarked, in which the word "dismissal" is commonly
offense to that alleged in the pending case therein."rq similarly, where ..acquittal,'' is when, after the prosecu.
used instead of the proper term
neither the case in a civil court nor that before a military commission
tion has presented utt it, evidence, the defendant moves
for the dis-
had as yet been terminated, the defense of double jeopardy was deemed
missalandthecourtdismissesthecaseonthegroundthattheevidence
is guilty; for
fails to show beyond a reasonable doubt that the defendant
improper.tee5
acquittal because the case is
Termination of jeopardy by final conviction or acquittal has not in such case, the dismissal is in reality an
been a problem for the courts. These are the clearest ways of termi- decided on the merits.'nn'
nating jeopardy. But terminating by "dismissal" has occasloned many in
In the Salico case' according to the Court' there was dismissal
and conflicting opinions. The confusion has centered around the clause jeopardy because the termination
the proper sense of the rule on double
"dismissed or otherwise terminated without the defendant,s express was not based on the merits but on a jurisdictional issue' By the appeal'
consent" found in section 7, Rule 117, New Rules of court. The confu- in second jeopardy' The only is-
therefore, the accused was not placed
sion may be said to begin with the decision in people v. salico.tse6 the appellate
sue raised on appeal was one of jurisdiction. The
most that
could do was to remand the case to the court of origin'
In such an
rn salico, after the presentation of evidence by the prosecution, court
and upon motion of the defendant, the case was dismissed on the event,therewouldbenonewtrialbutmerelyacontinuationofthefirst.
ground, alleged by the defense, that the prosecution failed to prove that Thedismissal,obtainedwiththeexpressconsentoftheaccused'in-
deed, upon his instance, "constituted a waiver of
his constitutional right
the crime had been committed within the territorial jurisdiction of the
the court from
trial court. The fact, however, was that the crime had been committed or privilege, for the reason that he thereby prevented
judgment of con-
within the territorial jurisdiction of the court. The prosecution appealed proce"aini to the trial on the merits and rendering a

and the defense argued that to allow such appeal would constitute dou- ui.,ion against him."reee The heart of the teaching in salico, therefore
the consent of the
ble jeopardy.'re7 was: Dismissal that is not on the merits and without
accused is a bar to subsequent prosecution. Implicitly, too,salico taught
called dis-
that termination based on the merits, even when improperly
rryBut see the dissentofJustice missal,andwithorwithouttheconsentoftheaccused,isabartofurther
Regalado in people v. pineda,2lg scRA l, r5 (1993)
where he contends that the filing of an information is already a bar to another p.osecuti.rn pmsecution, because such termination is, in fact' an acquittal'
eu"n
before the termination of the first.
ressilvestre v. Military
commission, G.R. No. 46366, March g, l97g; Buscayno v. Militru.y
Commission, 109 SCRA 273 (November 19, t98 I ).
l%84 Phit. 722 rsr/r/.
tntl
\1949). tt 73.].
ld. nt 7?.4 t"'ltl. il 7'26.
 THE 1987 CONSTITUTION Sec.2l ART. III _ BILL OF RIGHTS 599

OF THE REPUBLIC OF THE PHILIPPINES

demurrer to evidence on
A similar ruling was made in the case of People v. Acierto.2m Aci- recently, in the case of People v' VelascolM
erto, prosecuted in a military court, assailed the jurisdiction of the court n"g'."'aofinsufficiencyofevidencewasconsidereddismissalon
by the prosecution'
martial. His contention was sustained on review by the Commanding the merits and a bar to a motion for reconsideration
General. Subsequently prosecuted for the same offense in a civil court, of dismissal-acquittal has occasioned some con-
But another form
he raised the defense of double jeopardy, asserting that the court martial
fusion.Thisisthecaseofdismissalonthegroundofdenialoftheright
had jurisdiction to try him. The Court held'200'
to a speedY trial.
after a con-
Irrespective of the correctness of the views of the Military ln People v' Marapao]'' upon resumption of thetrial
authorities, the defendant was estopped from demurring to the On motion of the defense' the
tinuance, the prosecution failed to appear'
Philippine court's jurisdiction and pleading double jeopardy on a few momelts later'
case was dismissed. The prosecution, appearing
the strength of his trial by the court martial. A party will not be
allowed to make a mockery of justice by taking inconsistent po-
filedanewinformation.Answeringtheallegationofdoublejeopardy'
sitions which if allowed would result in brazen deception. It is theCourtruled..thattheappelleewasneitherconvictednoracquitted
case was dismissed upon
trifling with the courts, contrary to the elementary principles of of the previous charge ugui;t him " ' f9r-that
asked for dis-
right dealing and good faith, for an accused to tell one court that it iirr"qo"* before triar Joura be finished. Having himself
or acquittal could have been
lacks authority to try him and, after he has succeeded in his effort, missat, before a judgment of conviction
the defense of double
to tell the court to which he has been turned over that the first has rendered, the appelJe is not entitled to invoke
no
above copied'"2006In another case;oo? when
committed error in yielding to his plea. ieoparOy unaeiitre rule the case with-
on" upp"*"d for the prosecution, the court dismissed
The rules enunciated in Salico and Acierto already lay down the appeared' and' upon
out pieSuAice. Four minutes later, the prosecution
basic elements necessary toward a solution of the problems arising prop", he was allowed to reinstate the case' The defense
from termination of jeopardy by "dismissal." Properly understood and "^ptanation, a postponement and' on the day set for
the trial'
immediately asked for
applied, they can prevent the miscarriages of justice abetted by previous ground of dou-
asked for a reconsideration oi the reinstatement on the
decisions.2m'?But the uneven pattern followed by subsequent decisions
blejeopardy.TheCourtruledthatforadismissaltoconstituteabarto
makes closer analysis of dismissals necessary. The Salico doctrine has
furtherprosecutionitmustbeafinaldismissal.Thedismissalinthis
particularly affected the weave of things and one wonders if the oft-re-
case was provisional. "If the accused should deem such conditional or
peated rejection of Salico by the Supreme Court really means rejection to him because he has
provisional dismissal to be unjust and prejudicial
for instance where the
or merely modiflcation or even clarification.
ieen deprived of his right to a speedy trial' as
The statement was made in Salico that a dismissal based on insuf- casehasdraggedonfo".uno*"u'onablylongtimewithouthisfault'
ficiency of evidence or on failure to prove the crime charged is really hecouldandshouldobjecttosuchdismissalandinsistthatthecasebe
objection and insistence
an acquittal and is therefore a bar to another prosecution for the same heard and decided on ih" merits. upon such
offense. This is an old rule which has been uniformly followed.r,, Only oftheaccused,iftheprosecutiondoesnotpfesentitsevidenceandif
for
dismiss the case
its failure to do so is unjustified, the court should
under the purview of
failure to prosecute. Suctr dismissal would come
m92 Phit. 534 (1953).
2ffitld. at
Section 9. Rule 113."200't
54I-2.
'?m2Notably U.S. v. Regala, 28 Phil. 57 ( I 9 14) and U.S. v. Tan Tung Way, 2 I Phil. 67 ( I 9 I I ).
zml}r:eblo contraCadero,69 Phil. 327 (1940); Catilo v. Abaya,94 Phil. 1014 (1954);
xrn'G.R. No. l4{)633, February 4,2002'
People v. Opemia,98 Phil.698 (1956); People v. Cabarles, 102 Phil.926 (1958); People v. Bao,
1"r3s Phil. 832 ( t950).
L-12102, September 29,1959..9ee Julia v. Sotto, 2 Phil.247 ,253-4 (1903). Another form of dis-
rfssccti<rng.Rulell3oftheoldRules'nowsectionT'RulellT'id'at834'
missal which bars subsequent prosecution but which operates independently of the rules on doublc
jeopardy is the discharge of a statc witness untlcr Ruls I l(). Scction t)..\i'r, l'coplc v. Mendiolt,ll2
r',/Jrult v. l]lnnco,86 Phil.452 ( 1950).
)'"r/r/,ul 455..fr'r'rr/srr(krrionv-Jutlgcllurgos'(i'R No'l02l3l'August3l'1992'
Phil. 740 ( t949).

THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Subsequently, however, tn Gandicela v. Luterolooe the Court said
that even if the dismissal is definite, if made with the consent of the
accused, it would not be a bar to subsequent prosecution. The author-
ity of Salico was cited. Upon reconsideration, howevet, the Court said
that the words "provisional" and "definite" in a dismissal are a sur-
plusage: what determines the effect of a dismissal is its nature, not its
label.to'o The Court, nevertheless, refused to uphold the defense because
it failed to follow the procedure laid down previously, namely, that if
the defense wants to exercise the constitutional right to a speedy trial,
it should not ask for dismissal outright but for immediate trial. If the
court grants immediate trial and the prosecution is not prepared, then
the court must dismiss the case. Such dismissal would amount to an
acquittal.'0" But, again, in People v. Romeroior2 where dismissal was
granted on the ground of denial of the right to a speedy trial, the Court,
quoting at length from Gandicela v. Lutero, refused to uphold the de-
fense of double jeopardy on the ground that the dismissal was with the
consent of the accused.
The confusion begins to clear with People v. Diaz3o" Here, the
prosecution twice failed to appear. On motion of the defense, the case
was dismissed for failure to prosecute. In upholding the defense of
double jeopardy upon motion of the accused, the court said'20'4 "The
dismissal ... is even a stronger case than the example considered in the
case of Gandicela. ... Here the prosecution was not even present on the
day of trial so as to be in a position to proceed with the presentation of
to prove the guilt of the accused. The case was set for hear-
"nid"n""
ing twice and the prosecution, without asking for postponement or giv-
ing any explanation, just failed to appear. So the dismissal of the case,
though at the instance of the defendant Diaz, according to what we said
in the Gandicela case, was an acquittal." Subsequently, this rule was
followed in People v. Robleslots and in People v. Tacnengloto 1ryhs1s ths
Court also said that the Salico and Romero rulings had been abandoned
or modified.
,me88 Phil. 299 0951).
2otDld. at3O5-6, citing Francisco v. Borja, 88 Phil. 83 ( I 95 I
ntld. atSo'7 .
r),r89 Phil. 6'72.6'76 (1951).
,0894Phil.7l4(1954).
tr,ta
ld . ttl 7 l'7
.
ri'r'1. I 27(rl..lrttx' ,lt). li)5i).
ll). l')5().
",,n1, l.\)H.t. Agrrrl
Sec.21 ART. III - BILL OF RIGHTS
The case of People v. Cloribel,'0'7 perhaps, best summarizes the
present thinking of the Supreme Couft on the effect of dismissal on the
ground of denial of the right to a speedy trial. After a series of post-
ponements, mostly mutually agreed upon and extending over a period
of more than three years, the prosecution did not show up. The judge
waited an hour, and when the prosecution still failed to appear' the
judge dismissed the case provisionally. When the prosecution finally
arrived, the judge advised them to file a motion for reconsideration.
Dissatisfied with the prosecution's explanation, the judge entered a final
order of dismissal. In holding that the dismissal was a bar to reinstate-
ment of the action, the Supreme Court said: "In asserting that [the case]
may still be reinstated, the petitioners adopt the ruling once followed
by this court to the effect that a dismissal upon the defendant's own
motion is a dismissal consented to by him and, consequently, 'will not
be a bar to another prosecution for the same offense, because his action
in having the case dismissed constituted a waiver of his constitutional
right or privilege, for the reason that he thereby prevents the court from
proceeding to the trial on the merits and rendering a judgment of con-
viction against him'.20rs But, this authority lsalico] has long been aban-
doned and the ruling therein expressly repudiated'" However, realizing,
perhaps, that the facts of th:e Salico case presented a different problem,
the Court added that the rule in Salico, even if still valid, was not ap-
plicable to a case where the dismissal was predicated on the right to a
speedy trial.20rq As to the fact that the first dismissal was provisional, the
Court, borrowing the language of Gandicela v. Lutero, said: "Courts
have no discretion to determine or characterize the legal effects of their
orders or decisions, unless expressly authorized by law to do so as pro-
vided fbr in Rule 30 0f the Rules of court. The addition of such words
as 'without prejudice,' 'provisionally,' or 'definitely' to their order or
tlccision would be mere surplusage if the legal effect under the law is
othcrwise, bccause courts cannot amend the law. So it is not for the
court to statc in the order or decision that the case is dismissed either
tlcli nitcly or without prejudice."
)'
'1 . .lO l l ,l, Arrtrltrsl .l l , l()(rl.
'"1
'"rnl\'oplc v. S;tlrto. li'l l'hil. 7ll ( l9'19).
',r'( rlirrg ll.rrlrlt' v. llrctre rrg,.rrry,zr, rr0lc 57. Sr. tlte nt0ro recctlt cascs of Salcedo v. Men-
rkrzir.l{l( S( RA tilI (lit.lrrrrirl,v .,tt. l()/())i llsrrrtrril v, l\rgoy, l0J S('RA tl6l. ti(r(r-7 (lichrtrlry 20,
l(,8 1) Motrrc'('lll\'.( rrlrh'tott ll;tt1'rtsl l{t1'tottrtl lii;rl ('rlrrl,()tloltr l()5 l.
 THE 1987 CONSTITUTION Sec.2l
OFTHE REPUBLIC OFTHE PHILIPPINES
To this observation of the Court, however, must be added a clari-
fying distinction, because "provisional dismissals" are not altogether
meaningless. Thus, it seems, that even in a situation where a provisional
dismissal should really be final, when the accused consents to the dis-
missal precisely as provisional, then it stays provisional because his
consent is equivalent to a waiver of his constitutional right.'o'o
Finally, why, one may ask, should a dismissal on the ground of
denial of the right to a speedy trial be considered an acquittal? The
answer which the Court has given is that failure to prosecute, which
is what happens when the accused is not given a speedy trial, means
failure of the prosecution to prove the case. Hence, dismissal on such
grounds is a dismissal on the merits. Can such an equation be applied
to a case where the prosecution fails to prove territorial itrisdiction, as
was the case in Salico?
v. I-abatetel'2r which contained the first formal aban-
ln People
donment of it can be shown that the aban-
the Salico doctrine (although
donment was really obiter dictum\,we have the statement made by the
Court to the effect that "the judgment of the trial court (in the Salico
case) was in fact an acquittal because of failure on the part of the fis-
cal to prove that the crime was committed within the jurisdiction of
the court." This, apparently, was said in justification of an earlier case,
People v. Ferrer,2D2 where, with attendant facts the same as those in
Salico, the Court reached a conclusion different ftom Salico.ln Fer-
rer, as in Salico, the case was dismissed for failure of the prosecution
to prove territorial jurisdiction although, in fact, as the Supreme Court
found, it was within the territorial jurisdiction of the trial court; unlike
in Salico,however, the Court said that while this was a "miscarriage of
justice," appeal by the prosecution could not be allowed without violat-
ing the right of the accused against double jeopardy. The Court said that
the accused "was practically acquitted without considering the merits
of the case."2oB ln a later case,2o2o the Court gave this explanation of the
mrsee Pendatun v. Aragon,93, Phil.798 (1953); Co Te Hue v. Encarnacion,94 Phil' 258
(1954); People v. Togle, L-13709, January 30, 1959; People v. Hinaut, L-l l3 I 5, March I 8, I 959;
Andres v. Judge Cacdic, ll3 SCRA 216 (March 29, 1982)'
N2tL-12917 April27 , 19ffi.
,
m22100 Phil. r24 (1956\.
m3ld. at 127 .
maPeople v. Desalisa, L-15516, Decembe r 17, 1966; People v. City ol' Manila, I 54 SCRA
l7-5 ( 1987)l reiterating People v. Desalisa, ct al., 125 Phil. 27 ( 1966); Pcoplc v. Judgc Villulon,
( i.R. No. 43659, Dcccmhcr
2I , l9t)(1.
ART. III - BILL OF RIGHTS
Ferrer case: "The case, far from being an abandonment of the Salico
case, furnishes instead an application of the rulings therein established.
The dismissal here was on the merits, as it was predicated on the sup-
posed failure of the fiscal to prove the location of the house where the
offense was committed. It was therefore a dismissal on the supposed
insufficiency of evidence and hence, a dismissal on the merits amount-
ing to an acquittal."
An analogous situation can also arise in cases where dismissal is
for want of jurisdiction over the offense itself (as opposed to jurisdic-
tion over the territory). Prior to Salico, where dismissal was for want
of jurisdiction and where, upon review, the Supreme Court found that
the trial court in fact had no jurisdiction, the defense of double jeop-
ardy was rejected.2o2s This rejection is logical, because the accused in
these cases were never in jeopardy of conviction. Where, however, the
Supreme Court found that the trial court had jurisdiction, in one case,
People v. Ponce de Leon,2a6 the Supreme Court rejected the defense
of double jeopardy, and in other cases People v. Fajardo,2o2l U.S. v.
Regalan2s and People v. Borja2|2e
- Court sustained the defense.
the
-
After Salico, People v. Pinuela2030 followed Ponce de Leon and all the
others2o3r followed Fajardo, Regala and Borja. The logic of this latter
group of cases seems to be that in all of them the accused had already
been once in jeopardy. Granted that, however, was there in all of them
a termination of the case on the merits?
Following the reasoning in Desalisa,2'32 it seems that the answer
to the above question canbe in the affirmative. In all those cases, the
trial court reached the erroneous conclusion of want ofjurisdiction after
the presentation of some of the prosecution's evidence, although, per-
haps, not necessarily after the consideration of such evidence. (This too
seems to be the burden of the dissent of Malcolm in Ponce de Leon and
2o2rU.S. v.
Arceo, I I Phil. 530 ( 1908); Cristobal v. People, 84 Phil. 473 (1949).
n'2656Phil. 3E6 ( 193 I ).
xD?49 Phil. 206
\1926).
rD82ll Phil. 5.10 ( t9l4).
nDe4.l Phil. 6t 8 ( t922).
mx,9l Phil.93 (19.52).
rrrrrPcoplc v. llernnndez, 94 Phil. 49 ( I 953); People v. Ferrer, 100 Phll. 124 ( I 956); People
v.f;lorcs,l03Phil.ll20(l95tt);Pcoplcv.Pimila,l03Phil.992(1958);Peoplev.Duran,L-13334,
April 29, 1960.
tt"!Supnt,notc (t5,
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
of Paras in Salico and Pinuela.)2033 Thus, if it is conect to say that the
erroneous dismissal for want of jurisdiction, when made after the pros-
ecution has presented some evidence, is a dismissal on the merits, then,
in such dismissals, the consent or want of consent of the accused be-
comes immaterial. For, what accused will not consent to a dismissal on
the merits, that is, to an acquitfs,l'tzoza Admittedly, however, the conclu-
sion here that the dismissal was on the merits is a forced one. The con-
clusion also runs in the face of the salutary rule on estoppel in Acierto.
Another question which must be answered is: What happens when
dismissal is on the ground of insufficiency of information, sufficiency
of information being another element necessary for jeopardy to attach?
The pattern here seemed fairly simple until it was disturbed by the
decision in People v. Labatete.2'- Where the dismissal was without
the consent of the accused and where the Supreme Court found that in
fact the information was sufficient, the defense of double jeopardy was
upheld;'036 but where the dismissal was upon the instance of the accused
and the Supreme Court found that the information was sufficient,
the defense of double jeopardy was not allowed.2o37 This latter ruling
was an application of the doctrine on estoppel. But with the case of
Labatete, the pattern blurs. Here, the dismissal was upon the instance
of the accused and on the ground that the information was not sufficient
to sustain a conviction. The Supreme Court, upholding the defense
of double jeopardy, said: "Going now to the case at bar, we find that
the trial court found that the accused could not be found guilty of any
offense under the information. The judgment entered was not one of
dismissal but one of acquittal, and whether the judgment is correct or
incorrect, the same constitutes a bar to the presentation of the amended
information sought to be introduced by the fiscal."
Was the correctness or incorrectness of the judgment of the lower
court really immaterial? If the judgment was correct in saying that the
information was not sufficient to sustain a conviction, then there could
be no question of double jeopardy because the accused in such event
was never in jeopardy in the first case. And what has happened to the
2033See
also People v. Hernandez,, supra,note'12.
203aSee
People v. Labatete, L- 12917, April 2'1 , 1960.
2035
Id.
2oroTolentinov.tlcla(irsta,(r(rlthil.l()7(l()ll{), l,lsgucrlrv.rlt.l:r('ostir,(16 l'llil. I}4(l()llt)
ror/l'crtplcv.('rtlttttg.(),11'lril.l5./(l()5,1):11''rl)l('v l{r'y(s,()l{l'lril.(r,1(r(lr)5tr)
Sec.2l ART. III - BILL OF RIGHTS
estoppel doctrine established in Acierto? In order to raise the defense
of double jeopardy in the Supreme Court, Labatete necessarily had to
make a complete turnabout and maintain that the original information
was sufficient. The Labatete ruling allowed this "mockery of justice."
In a later case, howev€r,zora in a closely reasoned opinion, Justice
Concepcion made the following summation:
The issue eventually boils down, therefore, to whether the
rule of estoppel applied in the Acierto case should be confirmed
or revoked. Upon mature consideration, we are of the opinion that
said rule should be maintained, because:
1. It is basically and fundamentally sound and just.
2.It is in conformity with the principles of legal ethics,
which demand good faith of the highest order in the practice of
law.
3. It is well settled that parties to a judicial proceeding
may not, on appeal, adopt a theory inconsistent with that which
they sustained in the lower court.
4. The operation ofthe principle of estoppel on the ques-
tion of jurisdiction seemingly depends upon whether the lower
court actually had jurisdiction or not. If it had zo jurisdiction, but
the case was tried and decided upon the theory that it had iurisdic'
tion, the parties are not barred on appeal, from assailing suchjuris-
diction, for the same "must exist a s a matter of law, and may not be
conferred by consent of the parties or by estoppel." However, if the
lower court had jurisdiction, and the case was heard and decided
upon a given theory, such, for instance, as that the court had no
jurisdiction, the party who induced it to adopt such theory will not
be permitted, on appeal, to assume an inconsistent position
- that
the lower court had juisdiction. Hence, the principle of estoppel
applies. The rule that jurisdiction is conferred by law, and does not
depend upon the will of the parties, has no bearing thereon.
Justice Concepcion's summation is not inconsistent with the more
recent summation in People v. Desalisa:2l3e
x)rEPeople v. Casiano, 1,-15309, February 16, 1961. Reiterated in People v. Archilla,
L-15632, Fcbrunry 2tl, 1961.
)tt'uSu1tnt, notc 65. 'l'hc (irurt has also suid that a chargc of homicide to which the accused
hus plendod rnuy not hc tlisrnisscd in ordcr to urncnd it t<r rnurdcr. The new chnrge would constitutc
ttoublc jcr4lurly. l)iorrultkr v, l)ntttyt:try, lOtl S('RA 7.16 (Octttbcr 10, l9lll ).
ffi6 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
As a general rule, the dismissal or termination of a case after
arraignment and plea of the defendant to a valid information, shall
be a bar to another prosecution for the offense charged, or for any
attempt or frustration thereof, or any offense which necessarily in-
cludes or is necessarily included in the complaint or information
(Sec. 9, Rule 113 [now Sec. 7, Rule 117]). However, an appeal by
the prosecution from the order of dismissal by the trial court shall
not constitute double jeopardy if (1) the dismissal is made upon
motion, or with the express consent, of the defendant, and (2) the
dismissal is not an acquittal or based upon consideration of the
evidence or of the merits of the case; and (3) the question to be
passed upon by the appellate court is purely legal so that should the
dismissal be found incorrect, the case would have to be remanded
to the court of origin for further proceedings, to determine the guilt
or innocence of the defendant.
To this must also be added that for a dismissal to terminate a case,
it must be final. A mere verbal dismissal is not final until written
signed by the judge.'zM
Finally, a post-script from the martial law era. After the prosecu-
tion had presented evidence for estafa before a military commission and
on the day defense was scheduled to present evidence, one of the co-
accused presented a memorandum of the Secretary of National Defense
directing the withdrawal of the case from the Military Commission
pursuant to P.D. No. 39. The directive of the Secretary was apparently
made so he could study the case. After study, the Secretary withdrew
his previous order and directed the Commission to proceed with the
case. Accused contended that the previous withdrawal amounted to ter-
mination of the case and hence the reinstatement of the case constituted
double jeopardy. In rejecting the plea the Court said that under military
law, a decision of a military tribunal, be it of acquittal or of conviction,
or dismissal, is merely recommendatory and subject to review by the
review boards and the reviewing authority. A military commission acts
merely as a commissioner who takes the evidence and reports thereon
with his recommendation. Hence, the Court said that the action taken
by the Secretary Was merely a continuation of the proceeding before the
Commission and did not terminate the case.204r
2rHoRivt:rn, Jr. v. People, G.R No. 93219, August
30, lr)(X)
'u'rrl'llt'* v lirrrilc, (i.ll. No lltt440, .luly 20, l9ll2,
Sec.2l Sec.21 ART. III - BILL OF RIGHTS ffi1
4. The same offense.
The Constitutional provision on double jeopardy reads: "No per-
son shall be twice put in jeopardy of punishment for the same offense.
Ifan act is punished by a law and an ordinance, conviction or acquittal
under either shall constitute a bar to another prosecution for the same
act." As already noted by Justice Concepcion in Yap v. LuterolA2 the
first clause speaks of prosecution for the same offense and the second
clause speaks of prosecution for the same act.The Rules of Court fur-
ther provide that conviction, acquittal, dismissal or termination of the
case without the consent of the accused "shall be a bar to another pros-
ecution for the offense charged, or for any attempt to commit the same
or frustration thereof, or for any offense which necessarily includes or
is necessarily included in the offense charged in the former complaint
or informatisn."zoe: These provisions have played a role in the determi-
nation of the question: What is meant by the same offense?
and
In order to determine whether the two charges are identical, one
test used is what is sometimes referred to as "the same evidence test":
whether the evidence needed in the one case will support a conviction
in the other.2@ Commentators note that this test was found to be correct
only in a general sense and, hence, the Rules of Court have spelled it
out more in detail in Section 7 of Rule II7 .2045 The test now is whether
one offense is identical with the other or whether it is an attempt or
frustration of the other or whether one offense necessarily includes or
is necessarily included in the other. What this test shows is that identity
of offenses does not require one-to-one correspondence between the
facts and law involved in the two charges.It is necessary, however, that
one offense is completely included in the other. Thus, while physical
injury is not identical with attempted homicide, for purposes of double
jeopardy physical injury is "the same" as attempted homicide (which
e2G.R. No. 12669,Apfl 30, 1959. Needless to say, the offense must be criminal in nature.
Hence, civil contempt (where there is failure to do something ordered by the court for the benefit
of a party) cannot be a basis for second jeopardy. But criminal contempt (where the purpose is to
vindicate the authority of the court and protect its outraged dignity) could be a different matter.
Converse Rubber Corporation v. Jacinto Rubber,97 SCRA 158, 182-3 (April 28' 1980).
ntrrScction 7, Rulc ll7.
r(x'lr-.1g., I I.S. v.'litn ( )co, .14 l'hil.'7'7 2, 7tt3 ( I 9 I 6).
rrtrt4 Mon,rN, ('(rMMtiNts oN tttt': Rutt.s ()t. ('ottRt 1ltXr.l); lrnnNt rs<'tt,'l'tu; nrwsut RIILT':s ol
trnr*t: ('tttutt't,tt.l'tutrttttnl 5(r.l(l(Xr|),rliscttssittgSt'tlioltt),Rrrlt:ll7.

608 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
alleges inflicted injury) because physical injury is necessarily included
in such attempted homicide.
The last clause of Rule 117, Section 7 contemplates two situa-
tions: (1) when the hrst charge necessarily includes the second; (2)
when the second charge necessarily includes the first. The first situation
is clearly an old test for "sameness"2046 and was explicitly stated in Sec-
tion26 of General Orders No. 58. The rule is clearly justifiable because
even under the first charge the accused would already be in jeopardy of
conviction of the second. The second situation makes its explicit ap-
pearance as a "statutory" rule in Section 9, Rule 113 of the old Rules of
Court promulgated on July I,1940. Strictly speaking, this should not
be a case of double jeopardy because when the first charge constitutes
only a part, albeit an essential part, of the second charge, the accused
would not yet, under the first charge, be in jeopardy of conviction of the
second. Is the second situation then a liberalization of the rule? Justice
Tuason, writing for the majority in People v. Elkanish?047 said that it is.
It seems, however, that the position of Justice Moran, that the alleged
"new rule" in Section 9 of Rule 113 is merely an explicitation of a rule
borrowed from Anglo-Saxon jurisprudence on double jeopardy and al-
ready in use even prior to the promulgation of the Rules of Court, is the
better position.2.4s It was used, for instance, in 1930 in People v- Marti-
nez..'*n Moreover, the "new rule" seems included in the old "same evi-
dence test," which is frequently expressed in reversible terms: whether
the evidence required to support conviction in one will support convic-
tion in the other.2oso Thus, the "same evidence" test is, perhaps, after all,
the best "shorthand" expression of all useful tests.
5. Same Offense: Ordinance and Statute.
was pointed out earlier that the second clause of the Constitu-
It
tional provision on double jeopardy providing that "[I]f an act is pun-
2MuSee e.g., U.S. v. Lim Suco,22 Phil.484,488 (1908).
201790 Phil. 53,56-7 (1951). J. Feria dissented saying that it could not be a liberaliziltion
"because the defense ofjeopardy is a substantive right, which this Supreme Court r:annol chattgc
or modify in the exercise of the power conferred upon it by the Philippine Constitution to prtttttttl
gate 'rules concerning pleadings, practice, and procedure in all courts'which 'shall not rlirnirtisll.
increase, or rnodify substantive rights.' " Id. at6O.
20a8Dissent in People v. Tarok,73 Phil. 260,271 (1941\.
2oe55 Phil. 6 ( I 930); but scr' (1.S. v. l,ctlcstttit. 29 lhil 4 I I 1 I t) I 5 I
'""'/r..r.J..tl.S.v. lirtt()to, 14 l'hil.'/i2(l()l(r): ll.S.v. l.irrr'lilllicrr' lol'lril .',),)(l('15)
ART. III - BILL OF RIGHTS
Sec.2l
ished by a law and an ordinance, conviction or acquittal under either
shall constitute a bar to another prosecution for the same act" was an
amendment intended to reverse the probable effect of the Supreme
Court statement in U.,S. v. Chan-Cun-Chay.'o" This decision had said:'z0s'z
When the same act constitutes an offense against two politi-
cal entities he may be punished by each. Under these circumstanc-
es the fact that he has been punished by one cannot be pleaded as a
defense to an action brought by the other on the ground of second
jeopardy. When a criminal act violates the laws of two political en-
tities, each exercising rights of sovereignty over the same territory,
such act may be punished by each political entity.
It will also be recalled that the debate at the Convention was be-
tween Francisco, the proponent, and Laurel, the opponent. It would
seem that in this debate, although Francisco's amendment was ap-
proved, Laurel had the last word. ln People v. Garcia,2l'. a decision
penned by Justice Laurel, the accused had been prosecuted and convict-
ed for breach ofpeace under a municipal ordinance by his act ofboxing
the complainant. Subsequently, he was prosecuted for the same act for
lesiones menos graves under the Revised Penal Code. Laurel said that,
if possible, the Court would have extended the benefit of the new Con-
stitution to convictions which took place before the Constitution;'oso 6rr,
here, it was not possible. Laurel continued:2O55
We do not have before us copy of the municipal ordinance
under which the accused was convicted. Neither is said ordinance
mentioned in the decision, Exhibit 5, of the justice of the peace.
Nevertheless. it is clear that when the accused was convicted of
violation of the municipal ordinance, he was convicted of an act
distinct from the act penalized under the general law. Breach of the
peace is not lesiones menos graves. Not is breach ofthe peace es-
sential in the crime of lesiones menos graves. Upon the other hand,
r,1r-5 Phil. 385 ( 1905).
r(''r/r/. at 3119. Also ll.S. v. Flemister, 5 Phil. 650, 654 (19O6),
ffirmed in Flemister v. U.S.,
ll I'hil. tt03 (1907); tl.S. v. Ganieres, l0 Phil. 694.698 (1908). According to U.S. v. Joson,26
l'hil. 1,62(lt)1.1),thc:qucstionwhethcronemaybeprosecutedunderanordinanceandastatute
trrvcling tlrc s;rrnc ol'li'rsc was stluarely raiscd in Il-5.t.'..lose, G.R. No. 1228,which, however, is
l Drcl)( )rl(rl.
r
"'''(' I I'llll Jt)(r ( l() l(r)
"r'r/r/. irl J()(). r'llir.q, l't'oplt' v. l,ins:rrrgirr,6:l Irlril. (r.16 ( l().15).
r'r"(rl l,lril rrt.lrf() l(x)
610 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
there are many acts which constitute under the Revised Penal Code
grave offenses and which may be said to involve at the same time
infractions ofmunicipal ordinances. It is apparent that the ends of
justice could easily be frustrated by an accused pleading guilty to
the violation of a municipal ordinance and thereby avoiding sub-
sequent prosecution under a general law. This result was certainly
not intended by the framers of the Constitution. Upon the facts of
the present case we are satisfied that the provision of the Constitu-
tion relied upon in this instance is not applicable . ...
It may indeed be true that this frustration of justice was not in-
tended by the framers of the Constitution; but it seems that it was an evil
which the framers were willing to tolerate in order to avoid a greater
evil persecution by a vindictive fiscal.
- We are confident that that portion of the Philippine Bill em-
Subsequent decisions have succeeded in implementing the intent
of the Francisco amendment. Thus, in People v. Jovelolo'u the accused
was prosecuted in the Justice of the Peace Court for violation of an
ordinance prohibiting the carrying of deadly weapons. The case was
dismissed over the objections of the accused. Subsequently, he was
prosecuted for the same act under Section 26 of Act No. 1780 for hav-
ing carried in his possession a deadly weapon while attending a meeting
of the board of canvassers. The Supreme Court upheld the lower court
ruling that the second prosecution would place the accused in double
jeopardy. Under an analogous set of facts, the Supreme Court made a
similar rulin g in Yap v. Lutero2osT and Justice Concepcion, writing for the
majority, said that under the second clause of the jeopardy provision,
there is double jeopardy "even if the offenses charged are not the same.
... If the two charges are based on one and the same act, conviction or
acquittal under either the law or the ordinance shall bar a prosecution
under the other." By the phrase "one act," Concepcion here meant one
physical act; Laurel, on the other hand, while he also spoke of "one act"
in Garcia, clearly meant one juridical act, that is, one offense.
The situation is different when one act violates two different stat-
utes or two different provisions of a statute. The rule in such a case is
that if the one act results in two distinct offenses, prosecution under
one is a bar to prosecution under the other. The test "is not whether the
Phil. l2l3 ( 1957), unreported.
'?056101
1"t'Supnt, nolc ll3. Mon'11:ccttlly, l'coplt: v. Rckrvrr,
1,18 S('RA 292 ( l9ll7).
Sec.2l ART. III - BILL OF RIGHTS 611
defendant has already been tried for the same act, but whether he has
been put in jeopardy for the same offenss."2os8 In spite of some loose
statements in some decided cases which give the impression that an
act violative of two different statutes necessarily constitutes two dif-
ferent offensesfose the determinative factor is not that two statutes were
violated but that two offenses were committed. Thus, in a case2060 where
it was alleged that the rebellion provision in the Revised Penal Code
created but a "lesser cognate offense" of the prohibition in the Anti-
Subversion Act, the Court suggested that, if this be true, conviction un-
der one would be a bar to prosecution under the other. Moreover, if the
single criminal act is impelled by a single criminal intent, the resultant
harm cannot be split into different offenses. The Court said'206r
bodying the principle that no person shall be twice put in jeopardy
of punishment for the same offense should, in accordance with its
letter and spirit, be made to cover as nearly as possible every result
which flows from a single criminal act impelled by a single crimi-
nal intent. The fact should not be lost sight of that it is the injury
to the public which a criminal action seeks to redress, and by such
redress to prevent its repetition, and not the injury to individuals.
In so far as a single criminal act, impelled by a single criminal
intent, in other words, one volition, is divided into separate crimes
and punished accordingly,just so far are the spirit ofthe Philippine
Bill and the provisions of Article 89 of the Penal Code violated.
A later case illustrates the absurdity of a contrary rule'2062
While the rule against double jeopardy prohibits prosecution
for the same offense, it seems elementary that an accused should
be shielded against being prosecuted for several offenses made out
of the same act. Otherwise, an unlawful act of omission may give
rise to several prosecutions depending upon the ability of the pros-
ecuting officer to imagine or concoct as many offenses as can be
justified by said act or omission, by simply adding or subtracting
2os8People v. Cabrera,43 Phil.82,9'7 (1922).
'u"t.g.,'... the alleged crime ofthe second complaint was an offense against a different
statutc and therefore a different offense." U.S. v. Capurro, T Phil.24,36 (1906).
S:rc also L.l.S. v. Kelly, 35 Phil. 419, 587 ( l9l6).
2'""Buluong v. People, G.R. 19344, July 27,1966.
IhrI l.S. v. (iustilo, l9 Phil. 20t1. 2 I 2 ( I 9l I ).
r''"'lteoPlc v. tlt'l (itrtncn,ltt'l I'hil. 5l ( l()51).
612 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
essential elements. Under the theory of appellant, the crime of rape
may be converted into a crime of coercion, by merely alleging that
by force and intimidation the accused prevented the offended girl
from remaining a virgin.
A still different situation is presented when there are several phys-
ical acts involved.In such a case, the determinative factor is the unity or
multiplicity of the criminal intent or of the transactions.2ft3
6. Same offense: 'ssupervening Fact."
The subject of sameness of offense is also affected by the rule that
one is not in jeopardy for an offense which is not in existence at the
time of the filing of the charge. The situation is illustrated by the early
case of U.5. v. Diaz.2o64 Diaz was convicted of misdemeanor for physi
cally maltreating another. Subsequent to the conviction, the victim died.
Prosecuted for homicide,Diaz raised the defense of double jeopardy.
The Philippine Supreme Court rejected this defense saying that Diaz
had not been previously in jeopardy of conviction for homicide because
the Justice of the Peace Court which tried him for misdemeanor had no
jurisdiction over the crime of homicide.2065 On appeal, the U.S. Supreme
Court sustained the Philippine decision saying:2.tr "The death of the in-
jured person was the principal element of the homicide, but was no part
of the assault and battery. At the time of the trial for the latter, the death
had not ensued, and not until it did ensue was the homicide committed.
Then, and not before, was it possible to put the accused in jeopardy for
that offense."
After the former Rules of Court were promulgated on July 1,
1940, the case of People v. Throlew' arose. Tarok had hacked his wife
with a bolo.He pleaded guilty to a charge of serious physical injuries.
263See,e.g., Ada v. Judge Virola, G.R. Nos.82346-47,Apnl l7 ,1989. U.S. v. Lim Buanco,
l4 Phil.484 (1909); U.S. v. Look Chaw, 19 Phil.343 (1911); People v. Sacramento,53 Phil.639
(1929); People v. Segovia,54 Phil.75 (1929); People v. Magampo,99 Phil. 967 (1956). See also
the cases where the charge ofrebellion or treason is deemed to absorb the other crimes alleged.
People v. Labra,8l Phil. 377 (1948); People v. Hernandez,99 Phil.515 (1956); People v. Rogado,
L-13032, December 29, 1959; People v. Rodriguez, L- 1 3981,April 25,1960; People v. Camerino,
L-13484, May 20,19ffi.
2Kl5 Phil. t23 (t910).
Msld. at 129.
2ffiDiaz v. U.5.223U.5.442(1912). See U.S. v. kdesma,29 Phil.43l (1915); People v.
Martinez, 55 Phil. 6 ( I 930); Pueblo contra Espino, 69 Phil. 47 I ( I 940).
ffi773 Phil. 260 ( l94l ).
ART. III BILLOF RIGHTS
While Tarok was serving sentence, his wife died of meningitis caused
by an infection of the wound on her forehead inflicted by the bolo.
Subsequently charged with panicide, Tarok pleaded double jeopardy.
Justice Laurel, writing for the majority, said that the facts fitted exactly
into the situation contemplated by the Rules of Court: the second of-
fense necessarily included the first. He said'r068
To our mind, the principle embodied in the New Rules of
Court is a clear expression of selection of rule amidst conflicting
theories. We take the position that when we amended section 26 of
General Orders No. 58 by providing that the conviction or acquit-
tal of the defendant or the dismissal of the case shall be a bar to
another prosecution for any offense not only necessarily therein
included but which necessarily includes the offense charged in
the former complaint or information, we meant what we have, in
plain language, stated. We certainly did not mean to engage in the
simple play of words. That we are correct in this assertion is borne
by the fact that soon after we approved the Rules, doubt arose as to
the wisdom of the amendment, and suggestion was made to revert
to the old rule but no agreement was reached.
Laurel dismissed the Diaz and subsequent cases206e as inapplicable
because the prosecution of the first offense in the earlier cases was be-
fore a court which had no jurisdiction over the second charge. He point-
edto People v. Martinez2o'o where the accused, first chargedwith lesio-
nes menos graves and later prosecuted for lesiones graves in the same
court, successfully raised the defense of double jeopardy with the Su-
preme Court saying that "not only was the first case an ingredient of the
second case but the allegations in the second information would also,
if proven, have been sufficient to support the former infomation."2o7l
Justice Moran dissented vigorously:2o72 "I see no such departure
nor do I think the present rule to be a selection of rule amidst conflicting
theories, because no such conflicting theories existed at all before the
adoption of the new Rules of Court." It is true, Moran continued, that
Scction 26 of General Orders No. 58 made no mention of an offense
'""'/r/. irt 2(r5-6.
)"""Supnt,ltolc lO-5
ro/r7 I l'hil. rrt 2(r4.
.'"t)lrl |1'-tll
 Sec.21
614 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
which may necessarily include that with which an accused had previ-
ously been charged. But said Section 26 of General orders No. 58
was
,.manifestly not expressive of the whole scope of the principle of double
jeopardy as we know it in the established jurisprudence of the united
Stut"r and, indeed, our own jurisprudence has not been canalizedwithin
gave ex-
the narrow limits of this statutory ruIe." The new Rules only
pression to a rule already known even at the time the Diaz case was
decided. He concluded:2o?3
Finally, practical consideration of public interest argY
strongly uguinti the majority view' Under it, if the prosecuting of-
n"et actt promptty in cases of this character, the anomalous situ-
ation may arise, as it did arise here, whereby the accused may be
penalizei lightly for what may turn out latter to be a shockingly
offense. . . If, on the other hand, he stands by and watch-
"nor-ou,
es the development of the case, as suggested by the majority'
we
punish the accused in advance by keeping him in a state of con-
stant anxiety, with the fear of prosecution weighing upon him
at
everyhourofwaiting,notknowingwhenheshallstandtrialfor
his offense and for what offense he shall be tried. Even worse still,
themajorityrule...widensthechancesofcollusionbetweenthe
prorecotingofficerandtheaccusedtothegravedetrimentofpub-
ii" int"t".t. All these cannot happen under the Diaz ruling'
Ifthe rule established in the Rules of Court and as interpreted by
Laurel in People v. Tarok is, indeed, a departure from the old rule, one
may legitimately ask whether it was within the power of the Supreme
Court, by its rule making power, to make the change' The power as
granted uy ttre constitution is subject to the limitation that it shall not
,,diminish, increase, or modify substantive right."zorr How-
6e used to
ever, the question has become academic because the rule \n Tarok
was
This time Chief Justice Moran
expressly;verruled in Melo v. People.2015
wiote for the majority. He said that the rule for the determination of
not
identity of offenses "did not apply . . . when the second offense was
in existence at the time of the first prosecution, for the simple reason
the first
that in such a case there is no possibility for the accused, during
ffin"TarokrulingwasreiteratedbyLaurelinPeoplev.Figueroa,73Phil.473
(1941), with Moran and Diaz dissenting.
TTaSection 13, Article VII,./. Feria brought this up in his disscnt in People v. F)lkunish.
supra,note78.
2.rr8s phir. 766 ( l95o).
Sec.2l ART. III _ BILL OF RIGIITS
prosecution, to be convicted for an offense that was then inexistent."2o?6
"[W]here after the first prosecution a new fact supervenes for which the
defendant is responsible, which changes the character of the offense
and together with the facts existing at the time, constitutes a new and
distinct offense, the accused cannot be said to be in second jeopardy if
indicted for the new offense."2017 PeoDle v. Buling,,o,8 however, added
the qualification that where the exact nature of the injury could have
been discovered, but was not, because of the incompetence of the physi-
cian, the subsequent discovery of the real extent of the injury would not
be a supervening fact which could warrant the application of the Melo
doctrine.
7. Appeals.
The protection against second jeopardy not only means that an ac-
cused cannot be prosecuted a second time for the same offense but also
that the prosecution cannot appeal a judgment of acquittal. This prin-
ciple was first recognized as applicable in the Philippines in Kepner v.
United States.2o?e Repeated attempts by the state to undermine this prin-
ciple have failed.'o*o A judgment of acquittal rendered within a court's
jurisdiction, even if erroneous, ends the case finally.2ot' Provided, that
the judge considered the evidence, even if his appreciation of the evi-
dence leading to acquittal is erroneous, an appeal or motion for recon-
sideration by the prosecution will not be allowed.''"
n16ld. al769.Bengznn, in a separate concurence, wanted the reversal to be applied pro-
spectively. Id. al7'72.
n17ld. at 769-7O, citing 15 AM. JUR. 66. Reiterated in People v. Manolong,85 Phil. 829
( 1950) and, strangely, Bengzon again asked for prospective application. ld. at 831. Also People v.
City Court, G.R. No. 36342, April2T,1983.
'?078l- I 33 I 5, April 27, 1960. The Court said: "The course
(not the length) of the healing of
an injury may not be determined before hand; it can only be definitely known after the period of
healing has ended." In Manolong, what was not known at the time of the first prosecution was the
"c<rurse" of the healing, i.e ., thal it would result in deformity; in Buling, what was not foreseen
was the length of the healing, and this, because the examining physician did not make an X-ray
cxamination.
Whcrc a scar and deformity of the face developed after conviction for physical injuries, a
rrrorc scrirrus chargc rnay be filed. People v. Adil,76 SCRA 462 (Apil25,1977).
IrulI lrhil.669(1904).
)"arl)coplc v. llringas, 70 Phil.
-52U ( 1 940); People v. Hernandez, 94 Phil. 49 ( 1953); People
v. Mrxrlt:ncgro. 26 S('RA 6tl7 ( 1969).
"'t'l'ct4lltr v. llcrrurntkr, lOlt S('RA l2l (Octobcr9, l98l).
"'i'l'co;rlc v. .lrrlgc Vclusco, ( i.R . No. I 27444, Scptcmbcr I 3, 2il)0.

616 THE 1987 CONSTITTITION
OF THE REPUBLIC OF THE PHILIPPINES
Nor will the prosecution be allowed to appeal a judgment of con-
viction in order to obtain a modification of a penalty when the penalty
imposed is lighter than what is legally demandable. "No error, however,
flagrant, committed by the court against the state, can be reserved by it
for decision by the Supreme Court when the def-endant has once been
placed in jeopardy and discharged even though the discharge was the
result of the error committed."'o* A judgment in a criminal case once
final cannot be reopened. A judgment of acquittal is immediately final.
But it should be recalled that for a dismissal to tetminate a case, it must
be final. A mere verbal dismissal is not final until written and signed
by the judge.'z08o A judgment of conviction is final when the period for
appeal has lapsed or when the sentence has been totally or paftially sat-
isfied or served or when the defendant has expressly waived in writing
his right to appeal or when he has applied for probation.2oss The rule on
double jeopardy is thus "a rule of finality. A single prosecution for any
offense is all the law allows. It protects an accused from harassment,
enables him to treat what had transpired as a closed chapter in his life,
either to exult in his freedom or to be resigned to whatever penalty is
imposed, and is a bar to unnecessary litigation, in itself time consuming
and expense-producing for the state as we11."2086
Itshould be noted, however, that when a judgment of acquittal
or dismissal on the merits is void for lack of jurisdiction, the judgment
cannot be a base for a plea of double jeopardy.r0s? Moreover, ouster fiont
jurisdiction can come about through a judge's abuse of constitutionitl
rights such as to deny prosecution a day in court.20ss This principle wits
the foundation for the reopening of the case against the soldiers ac:-
cused of the murder of Benigno Aquino, Jr. The reopening rested on thc
premise that the proceedings inthe Sandiganbayan were characterizctl
by grave abuse of discretion amounting to loss of jurisdiction. Hcncc.
the proceedings were invalid and the "acquittal" did not really irctltril
and therefore did not terminate the case.20so Moreover, even thc ol'l'cntlctl
2083State v. Rook,49 L.R.A. 186, 61 Kan 382, 59 Pac. 653, quotetl in Pt:r4rlc v. Arttrl
Kio, 95 Phil. 4':. 5, 480 (1954). See also People v. Pomeroy, 97 Phil 927 ( I 955 )
208aRivera, Jr. v. People, G.R. No.932l9,August 30' 1990'
2085Section7.Rule120,NewRulesofCourl: Bustamantev.Maceren,.4lls('ltA
as6Republic v. Agoncillo, 40 SCRA 579' 585 ( I 97 I )
2087people v. Court of Appeals, l0l SCRA 45(),467 (Novcrnbcr 21.t. l9t{0).
2088People v. Pabl6.9l3 SCRA 30l (.lunc 25. l9tt0).
1('*"(ialtnitn v. Sitntligirrthity;rlr, l'1'1 S('l{A '[ ] (St'plt'tltll't l '). l()l'l(r)
ART. III * BILL OF RIGHTS
party may raise the dismissal on certiorarl on the ground of denial of
due process.2oeo
The special civil action for certiorari, it should be noted, is in-
tended for the correction of errors ofjurisdiction only or grave abuse
of discretion amounting to lack or excess of jurisdiction. Its principal
office is only to keep the inferior court within the parameters of its ju-
risdiction or to prevent it from committing such a grave abuse of discre-
tion amounting to lack or excess of jurisdiction. It is not a remedy for
errors of judgment.2oer
Finally, when an accused is convicted for a lesser offense on a plea
of guilty to that lower offense, the conviction is not a bar to a second
prosecution if the plea to a lesser offense was made without the consent
of the Fiscal.'on'
When an accused appeals a conviction, may the reviewing court
impose on him a penalty higher than that imposed in the decision
appealed by him? The rule in the Philippines, since Trono v. United
States,2oe3 is that when an accused appeals his conviction he waives his
right to the plea of double jeopardy. What, however, is the extent of that
waiver? InTrono,the accused had been prosecuted for a higher offense
but was convicted for a lower offense. Hence, equivalently, he had been
acquitted of the higher offense. Was his appeal a waiver of this acquit-
tal? The Court answered in the affirmative and ruled that a penalty
higher than that of the original conviction could be imposed on him.20e4
The discharge of an accused in order to make him a state wit-
ness, even if it is erroneous for failure to comply with all the require-
ments of Section 9 of Rule 119, is equivalent to an acquittal and is a
bar to reinstatement of the case against him. However, if "the accused
zosMartinez v. Court of Appeals,237 SCRA 575.
2m'People v. CA. G.R. No. 142051. February 24,2OO4.
?''2People v. Villarama, Jr., G.R. No. 99287 Jwe 23,1992.
,
nDrt I Phil. 126 (1905).
2rpaThe
American doctrine on the subject is Green v. Unitetl States,355 U.S., 184 (1957).
('hr 'l'hc Court said that the waiver theory does not mean that the accused, by appealing, foregoes his
rlclcnsc of firrmerjeopardy on greater charge in order to secure a reversal ofan erroneous convic-
lion ol'a lcsscr ot'fcnsc. "Conditioning an appeal of one offense on a coerced surrender of a valid
155(l()/.r) plcl ol lornrcr.jeopartly on another offense exacts a forleiture in plain conflict with the constitu-
tirrnirl lrirr rrglinsl tloublcjcopaniy." ld. trt l9f-4.
'Ilx' grrirrcrplc wls rcccrrlly rcilcnrtctl in Krt llu Litt r,. ('trurt ol Apputls, G.R. No. 57170,
Novr'tttlx'r l() l()ll.)

618 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
so discharged fails or refuses to testify against his co-defendant, ..- the
defense of double jeopardy is withdrawn from him and becomes un-
available to him."2oes
Finally, when an accused avails of an amnesty proclamation for
rebels, he may no longer be charged for the rebellion committed before
the amnesty even if he later resumes his rebellious activities. Needless
to say, he can be charged for the new act ofrebellion.
Snc.22. No rx-rosr FACTq LLw oR BILL oF ATTAINDER SITALL
BE ENACTED.
ttEx post factot'laws.
l.
An ex post facto law has been defined as one
- randum Order No. 61 cannot be characterized as ex post facto laws.2100
(a) Which makes an action done before the passing of the
law and which was innocent when done criminal, and punishes
such action; or
(b) Which aggravates a crime or makes it
when it was committed; or
(c) Which changes the punishment and inflicts a greater
punishment than the law annexed to the crime when it was com-
mitted;
(d)Which alters the legal rules of evidence and receives
less or different testimony than the law required at the time of the
commission of the offense in order to convict the defendant'20e6
This is the definition of ex post facto laws formulated by Chief
Justice Chase in the early case of Calder v- Bull.20e7 In re Kay Villegas
Kami2oss adds two other characterizations to the original list: "(e) as-
sumes to regulate civil rights and remedies only but in effect imposes
a penalty or deprivation of a right which when done was lawful; (0 de-
prives a person accused of a crime of some lawful protection to which
he has become entitled, such as the protection of a former conviction or
acquittal, or a proclamation of amnesty."
2ssBogo-Medellin Milling Co. v. Son,209 SCRA 329 (1992).
20e6Mekin v. wolfe,2 Phil.'14,7'1-8 (1903),quoting Ble.cr's CoNsrnunoNtt,I-aw 595; U.S.
v. Diaz Conde, 42 Phil. 7 66, 7 7 O (1922).
20e73
Dall.386,390 (U.S. t79tt).
ae83s sCRA 429.43 I (Octobcr 22, l97o).
Sec.22
ART. III - BILL OF RIGHTS 6t9
While earlier commentators had understood ex post facto laws to
"embrace all retrospective laws ... whether ... of a civil or criminal
rature,"zoes Calder v. BulI definitively limited the scope of the concept to
penal and criminal statutes. The constitutional doctrine that outlaws an
ex postfacto law prohibits the retrospectivity of penal laws. Penal laws
are those acts of the legislature which prohibit certain acts and establish
penalties for their violations; or those that define crimes, treat of their
nature, and provide for their punishment. The Administrative Order No.
13 creating the Presidential Ad Hoc Fact-Finding Committee on Behest
Loans, and providing for its composition and functions does not mete
out penalty for the act of granting behest loans. Memorandum Order
No. 61 merely provides a frame of reference for determining behest
loans. Not being penal laws, Administrative Order No. 13 and Memo-
This condemnation of retroactive penal legislation dates back to
the Code of Justinian and is embodied in the words: Nulla poena sine
lege.The same principle is also embodied in Article 21 of the Revised
greater than Penal Code: "No crime or misdemeanor shall be punished by a penalty
which was not established by law prior to its commission."
Applying the constitutional principle, the Philippine Supreme
Court has held that the prohibition applies only to criminal legislation
which affects the substantial rights of the accused."o' It also applies to
criminal procedural law prejudicial to the accused.''o'But it is improper
to apply the prohibition to an executive proclamation suspending the
privilege of the writ of habeas corpus.2t03
The retroactive application of the following has been found to vio-
late the constitutional prohibition: change in the manner of execution
from "garrote" to hanging,"oa anincrease in the penalty2'o5 or the imposi-
*E.g,,2
Srony, Co,wr,vre-arrs, Sec. 1345.
?lmsalvador v. Mapa, Jr., et a1., G.R. No. 135080, Novembet 28,2O07; Presidential Ad Hoc
Fact Finding v. Desierto, G.R. No. 145184, March 14, 2008.
2rorE.g., Mekin v. Wolfe,2 Phil.74,78 (1903); U.S. v. Jueves,23 Phil. 100, 105 (1912); Ro-
man Cath. Bishop of Lipa v. Municipality of Taal,38 Phil. 367 (1918); Province of Camarines Sur
v. Director ofLands,64 Phil.600 (1937); Ongsiako v. Gamboa,86 Phil.50,54 (1950); Tolentino v.
Angeles, gg Phil. 309,31 8 ( 1956); Phil. National Bank v. Ruperto,L-13177 ,June 30, 1960; Santos
v. Secretary of Public Works and Communications, L-16049, March 18, 1967.
2"'?U.S. v. Gomez, l2 Phil.2l9,282-283 (1908).
2tr[Montenegro v. Castafl eda, 9 l Phi l. ltti2, lJ8-5 ( 1 952).
rr'trLl.S. v. Mcrin,2 Phil. tttt,92-93 (1903).
rr"rU.S.v.AngKrrrKo,6Phil..-176,.1tt0(19(Xr):(l.S.v.Mucasaet, llPhil.447,450(l90tt);
tl.S. v. llungnoil, 14 l'lril. t{.}5, lt.1() ( l()16).
 THE 1987 CONSTITUTION Sec.22 Sec.22 ART. III - BILL OF RIGHTS

OF THE REPUBLIC OF THE PHILIPPINES

tion of a penalty on a previously unpenalized act.21o6 A procedural law
which authorizes fiscals to commence prosecution for adultery could
not be given effect with reference to acts committed when adultery
could be prosecuted only upon the complaint of the offended partyi2'o'
a law shortening the prescriptive period for a crime.2ro8 Analagous to an
ex post facto law and covered by the same prohibition would be an of-
ficial interpretation of a penal law given by the Department of Justice
law. The contention that the new law diluted the right of the accused
to a two-tiered appeal is incorrect because "the right to appeal is not a
natural right but statutory in nature that can be regulated by law. The
mode of procedure provided for in the statutory right of appeal is not
included in the prohibition against ex post facto laws. R.A. No. 8249
pertains only to matters of procedure, and being merely an amendatory
statute it does not partake the nature of an ex post facto law."2rr5

which is changed to the prejudice of one who had relied on the earlier ln an obiter dictum, it was said that a law fixing an allowable fee
interpretation.2'oe or rate of interest may be applied to punish collection of an amount
The retroactive application of the following was found not viola- exceeding the allowable fee or rate of interest after the passage of the
tive of the prohibition: a law allowing appeal in habeas corpus proceed- law even if the fee or interest was agreed upon prior to the passage of
ings2ilo or expanding the territorial jurisdiction of a court2rrl or extend- the law.2tt6
ing the allowable period of detention of persons under investigation.2"'z The Supreme Court was sharply divided on the question whether
Likewise, the higher penalty imposed on habitual delinquents was not the Judiciary Act of 1948 which required the affirmative vote of eight
considered punishment for previously unpunished acts.2rr3 A law defin- justices to impose the death penalty could be applied to an act com-
ing unfair labor practices may be given retroactive effect as a basis for mitted at the time when the death penalty could be imposed only by a
an order of reinstatement since the order of reinstatement is not a pen- unanimous vote.2rr7
dlty.ztu The transfer of jurisdiction over a pending case from the Sandi-
ganbayan to the Regional Trial Court is not a prohibited ex post facto
From the definition of Calder v. Bull and from the cases that have
so far been decided, two questions arise: (1) When is a law penal in na-
ture? (2) When may procedural law be considered retrospective penal
2|6U.S. v. Diaz Conde. 42Phi|.766,77o (|922); Tolentino v. Angeles,99 Phil' 309' 318
law?
(19s6).
2t07u.s.v. Gomez, 12Phit.27g,282(1908).Thisisobiter,itseemsbecausethelawdid
The first question emerges from the first three types of ex post
not say it was fetroactive.
2rosPeople v. Sandiganbayan, G.R. No. 1ol724,Iuly 3,1992' .facto law s enumerated by C alder v. Bull all of which have the common
2r@Co v. Court ofAppeals, October 28, 1993. clement of applying a criminal penalty. Thus, the question reduces itself
2rr0Mekin v. Wolfe,2 Phil.74 (1903)'
2rrrU.S. v. Jueves,23 Phil. 100, 105 (1912).
to asking whether what the law imposes is a criminal penalty or not.
2rrzMacAfihur's proclamation on october 23,1944, restoring the laws of the common- When the law in question has to be enforced through criminal prosecu-
wealth Govemment was subject to the reservation to hold active collaborationists in restraint
for tion, there is little problem in identifying the nature of a statute. But
could
the duration of the war. The challenged law continued this reservation. The Legislature when the proceeding required for the application of the statute is civil
have repealed A rticle 125 of the Penal Code altogether instead of merely suspending
its operation
refativetocollaborationists."Therefore, afortiori,hemaynotcomplain,if,insteadof repealing in form, it becomes necessary to determine whether in fact the proceed-
that section, our law-making body merely suspended its operation for a definite period
ol time'
ing results in the imposition of a criminal penalty. Thus, in Cummings v.
Should he counter that such repeal or suspension must be general to be valid, he will be
rel'ened t<r
Missouri2tt' and Ex parte Garland,2"n deprivation of the right to follow
... consideration regarding claisification and the equal protection of the laws." Laurel v. Misa.
76

Phil.372,378-79 Qga1;People v. Carlos,78 Phil' 535,5'14 (1947)' one's profession, enforced through a civil proceeding, was nonetheless
2rr3People v. Salinas, 54 Phil. 39 (1929); People v. Montera, 55 Phil. 933 ( I 93 I ); People v
[,aw' dis-
Soriano,56 Phil.95 (1931); Peopte v. Sy Chay,64 Phil.900 (1937). The Retail Trade
cussed in Chapter II, sapra, was also challenged as ex postfacto legislation. The
Court pointod oul
plssage ol thc lttw'
rr[,ncson v. F]xecutive Secretary, G.R. No. 12tt096, January 20, 1999.
that it was noi."unt to p"nalize the act of engaging in retail trade prior to the rllnl'ctrplc v. 7.cra,98 Phil. 143 ( l9-55); tl.S. v. Diaz (bnde,42Phil.'766 (1922').
People v. Yu Bao, 103 Phil. 271,276-'l (1958); People v. ong Tin, 103 Phil. 476' 4tto-l ( l()5t{)l
rrr'l'coplc v. Vilo, tl2 l'hil. 524 ( 1949).
Universal Corn Products v. Rice and Corn Board. l--21013, Augusl l7 ' lL)67 '
rraTolenrinov.Angeles.ggPhil.3(D,316(1956): also()ngsinkov.(iartrhtxt'116 l'hil 5o.
rrr*.1 Wnll,277 (ll.S. l1167).
rrr',.1 W[ll, III(ll.S. Ili(r7).
54 ( I e50).

622 THE 1987 CONSTITUTION Sec. 22
OF THE REPUBLIC OF THE PHILIPPINES
considered a penalty covered by the ex postfacto provision. Philippine
law, likewise, although not in connection with ex post facto legislation,
has recognized that deprivation ofthe right to practice one's profession,
although achieved through an administrative proceeding, is criminal in
nature.2r20
The second question - When may procedural law be considered
retrospective penal law? - is answered by the fourth category in the
enumeration of Calder v. Bull: when the law "alters the legal rules of
evidence and receives less or different testimony than the law required
at the time of the commission of the offense in order to convict the
defendant."'r2r However, as an American decision has emphasized, "it is
now well settled that statutory changes in the mode of trial or the rules
of evidence, which do not deprive the accused of a defense and which
operate only in a limited and unsubstantial manner to his disadvantage,
are not prohibited."2r22 This in substance was the position taken by the
Supreme Court in Nufiez v. sandiganbayan.2t23 Presidential Decree No.
1486 creating the Sandiganbayan was challenged as ex post facto ptin-
cipally because the procedure prescribed, as distinct from the procedure
in other courts before the passage of the law, did not provide for appeal
to the Court of Appeals. In upholding the decree the Court, quoting
from Thompson v. (Jtah,"'o said that the test in procedural matters is
'owhether particular statutes by their operation take from an accused any
right that was regarded, at the time of the adoption of the Constitution,
as vital for the protection of life and liberty, and which he enjoyed at
the time of the commission of the offense charged against him." Thc
Court said that the decree did no such thing, pointing out that not only
did the decree require a unanimous vote of three in order to convict but
also preserved the accused's right to appeal to the Supreme Court ttr
review questions of law. To the contention that the decree removed itn
intermediate review of facts, the Court said that the Supreme Court "in
2r20Pascual v. Board of Medical Examiners,28 SCRA 344 (1909). See also cabal v. Krtpu'
nan,6 SCRA 1059 (1912). But see Harisiades v. Shaughnessy,342 U.S.580 (1952) (deportsti()tr)
2t2tSupra,note I.
ztz2Beazell v.Ohio,269 U.S. 167, 17O (1925).
(January 30, 1982).
'zrrl11 SCRA433,449,45O
p.D. 885 revising the Anti-subversion Law avoided the ex post.f^t\tt problcnr by spct'ih
cally providing that acts committed before P.D. 885 shall be prosecutcd in accortlitncc wilh tltc okl
law. Buscayno v. Military commission, 109 scRA 273 (Novcnthcr 19, l9tt l). P.l). No. l{l'll lrls
since been rcpealed.
?url70 (1.s. 1.1.1..t52 ( 18911).
Sec.22 ART. III - BILL OF RIGHTS 623
determining whether or not to give due course to the petition for review
must be convinced that the constitutional presumption of innocence has
been overcome."
It should be noted, however, that the amendment of a law under
which a person is being prosecuted can be applied retroactively to him
if the amendment is favorable to him. Thus, among the amendments
introduced by R.A. No. 8294 to P.D. No. 1866 which codified the laws
on illegal possession of firearms was a provision which said that if ho-
micide or murder is committed with the use of an unlicensed firearm,
such use shall be considered as a special aggravating circumstance. The
amendment meant: first, that the use of an unlicensed firearm in the
commission of homicide or murder shall not be treated as a separate
offense, but as a special aggravating circumstance; second, that since
a single crime is committed (1.e., homicide or murder with the aggra-
vating circumstance of illegal possession of firearm), only one penalty
shall be imposed on the accused. Being favorable to him, the law can
be applied to an accused.''"
2. Bills of attainder.
"A bill of attainder," according to Cummings v. Missouri,zrze "'t
judicial trial. If the
a legislative act which inflicts punishment without
punishment be less than death, the act is termed a bill of pains and
penalties." The same case, however, also affirmed that, "Within the
meaning of the Constitution, bills of attainder include bills of pains and
P€flalties."ztzr
From this deflnition it is clear that the test for determining whether
a law is a bill of attainder is whether it "inflicts punishment without
judicial trial." The provision prevents the legislature from assuming
"judicial magistracy."2r28 It is thus a "general safeguard against leg-
islative exercise of the judicial function, or more simply trial by
legislature."'''n
-
The bill of attainder clause first attracted the attention of the
American Supreme Court during the post-Civil War period. Cummings
rrrll'urplt: v. ('asingal, (i.R. No. l322l4,Augttst l, 2fi)0.
rlr"4 W:rll, 211 , lZl ( I 1.S.. I ti67).
)trt Itl .
rrr"l Jrrrlul Slirlt's v llrowrt. ltll tl.S,1 17.4'1,1 ( l()65).
 THE 1987 CONSTITTITION Sec.22
OF THE REPUBLIC OF THE PHILIPPINES
v. Missouri2''o involved a state law which required an oath affirming
past loyalty to the United States as a prerequisite for continuing in the
practice of one's profession. The case involved a priest who failed to
take the oath but nonetheless continued to preach. He was convicted
and made to pay the fine prescribed by the law. The law, as already seen,
was declared to be an ex post facto law.It was also declared to be a bill
of attainder. And the same result was reached in Ex parte Garlan&ttt
which involved an act of Congress which prescribed a similar oath as a
prerequisite for practicing before the high tribunal.
It should be noted that what made the law a bill of attainder was
not that Cummings was made to pay a fine (for the fine was imposed
after conviction by a court for preaching without having taken the oath)
but rather that he was disqualified without judicial trial from his profes-
sion of preacher. The law thus operated as if the legislature had found
him guilty of one or other of the acts of disloyalty which he was sup-
posed to deny under oath and had as a consequence imposed on him
the penalty of disqualification. Moreover, it should also be noted that
Cummings was not mentioned by name in the law itself; he was merely
a member of a class. As the Supreme Court was to say later in United
States v. Lovett,2r32 Cummings and Garland "stand for the proposition
that legislative acts, no matter what their form, that apply either to
named individuals, or to easily ascertainable members of a group in
such a way as to inflict punishment on them without a judicial trial are
bills of attainder prohibited by the Constitution." The I'ovett case itself,
however, involved a rider inthe 1943 appropriation law which forbade
the use of money appropriated in the statute to pay the salary of certain
named individuals who in the judgment of Congress were guilty of dis-
loyalty. It was declared to be a bill of attainder.
More recently,in United States v. Brown,2t33 the United States Su-
preme Court once more grappled with the bill of attainder clause. At
issue was a federal statute which made it a crime for a member of the
Communist Party to serve as an officer or an employee of a labor union'
The Court held it to be a bill of attainder because "it designates in no
uncertain terms the persons who possess the feared characteristics and
2tn4 Wall, 27 7 (U.S., I 867).
?t3tSupra, note 20.4 Wall,333 (U.S. 1867).
,'32328 U.S. 302,315 (1946).
,'r381 U.S.437 (1965).
Sec.22 ART. III * BILL OF RIGHTS
therefore cannot hold union office without incurring criminal liability
members of the Communist Party.'zt:+
-
It was against this American background that the Philippine Su-
preme Court was made to face a bill of attainder case in People v. Fer-
rer.zt3s At issue here was the former Anti-Subversion Act,2'36 the perti-
nent provisions of which read'2t37
SECTION 2. The Congress hereby declares the Communist
Party of the Philippines to be an organized conspiracy to over-
throw the Government of the Republic of the Philippines for the
purpose of establishing in the Philippines a totalitarian regime and
place the Government under the control and domination of an alien
power. The said party and any other organization having the same
purpose and their successors are hereby declared illegal and out-
lawed.
SECTION 3. As used in this Act, the term, 'Communist
Party of the Philippines' shall mean and include the organizations
now known as the Communist Party of the Philippines and its mili-
tary arm, the Hukbong Mapagpalaya ng Bayan, formerly known
as HUKBALAHAPS, and any successors of such organizations.
SECTION 4. After the approval of this Act, whoever know-
ingly, willfully and by overt acts affiliates himself with, becomes
or remains a member of the Communist Party of the Philippines
and./or its successor or of any subversive association as defined in
section two hereof shall be punished.
SECTION 8. Within thirty days after the approval of this
Act, any person who is a member of the Communist Party of the
Philippines or of any such association or conspiracy, who desires
to renounce such membership may do so in writing and under oath
before a municipal or city mayor, a provincial governor, or a per-
son authorized by law to administer oaths. Such renunciation shall
exempt such person or persons from the penal sanction of this Act,
but the same shall in no way exempt him from liability for criminal
acts or for any violation of the existing laws of the Republic of the
Philippines committed before this Act takes effect.
rr'{/r/. itl 450.
i r"48 S('RA |t{2 (l()71)
)rtnR.A. No. l'l(X).
/r"4llS('RAll I)1.
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Sec.22
626 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The lower court declared the law a bill of attainder because "it
.tars and feathers'the Communist Party of the Philippines" and thereby
..usurped 'the powers of the judge,' and assumed 'judicial
congress
magistracy by pronouncing the guilt of the cPP without any of the
forms or safeguards of judicial tt'ral."'2t3s As far as individuals accused
o'the
under the law were concerned, aCcording to the lOwer court, law is
still a bill of attainder because it has expressly created a presumption of
organizational guilt which the accused can never hope to overthrow."z"o
The law was upheld by the Supreme Court with the sole dissent
of Justice Fernando. Writing for the majority, Justice Castro concluded
that the act "does not specify the Communist Party of the Philippines or
the members thereof for the purpose of punishment."2r4o
There are two parts to this statement of Justice castro: (1) The act
does not specify the Communist Party for the purpose of punishment,
and (2) The act does not specify the members of the Communist Party
for the purpose of punishment. It became necessary to make this dis-
tinction because the lower court had read the statute as a bill of attainder
both in relation to the CPP and to its members. And, as a matter of fact,
they present two distinct problems.
The conclusion of castro with respect to the communist Party
should be analyzed. Castro says that the term Communist Party "is
used solely for definitional purposes."2r4r The clear language of Section
2, however, is not one merely of definition but of condemnation. The
Communist Party is, in categorical language described as subversive
and, in the second sentence, it is condemned as "illegal and outlawed."
To read such language merely as definitional guide is to save the law by
amending it.I4, The language of the law condemns the association and
deprives it of the right to be an association.
In spite of this, however, this writer cannot conclude that thcrc-
fore with reference to the cPP the law is a bill of attainder. In the lirst
Sec.22 ART. III - BILL OF RIGHTS 627
place, the historical background of the attainder clause indicates that
it is a protection for the sanctity of the individual person and not of
associations as such. This may be gathered from the requirement that
punishment be visited upon "individuals or [upon] easily ascertainable
members of a group."2'03 Secondly, while denial of an association's right
to be an association is indeed a burden, it does not constitute "punish-
ment" in the sense of either the ex post facto or bill of attainder clauses
as these have been interpreted in earlier cases. At the most therefore the
law is a limitation on the right of association and must be tested against
the guarantee of the right of association.
Castro's conclusion that the Anti-Subversion Act does not specify
members of the Communist Party for punishment should also be ex-
amined in a similar way as the specification of the Party itself. If, as
indicated above, the statute specified the Communist Party, then it fol-
lows that the members themselves, to the extent that they have been
made ascertainable, have also been specified. Have they, however, been
specified "for the purpose of punishment" by the legislature? This, after
all, is the heart of a bill of attainder. But as Castro points out, "the un-
deniable fact is that their guilt still has to be judicially established."''*
Fernando's retort to this need for conviction by a court was that in
Cummings there was criminal prosecution of the priest who refused to
take the oath and in Brown there was indictment of the labor leader and,
in both cases, the statutes involved were nonetheless declared to be bills
of attainder.2r45 But Fernando seems to have missed the point of these
two cases. In both cases, the attainder element in the law was the impo-
sition of disqualification independently of judicial criminal action. The
disqualification was the punishment imposed by the legislature without
trial. And it was a disqualification imposed for past acts which in the
legislative judgment had made the persons involved unworthy of the
office. The need forjudicial action arose only in the prosecution for de-
fiance of the disqualification imposed by the legislature. These are two
distinct steps. The disqualification would have "stuck" with or without
conviction by a court.

2tlEld. at 398.
2tte Id
-
2r{)/r1. at 398.
'' ".fr7rlrr, ttolt' .12.
)trt 1il. ir'r''.lt{ S('llA lt .1O I
rrr.'111*1it,t. Mlrltolrrr nrirtlc it sirrrilrrr virlirtttl cllirtl lo sttvt'rt sl/tllllr ill Ytt ('rng l')t1i v litnt
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rlru!,.llll|il tl(l (l().t5)ottlykrlx'tcvctsctl bytlx'llS Sttptetttt'(irtrtl,,)/lllS 5(X)(l(fl(r)

 THE 1987 CONSTITUTION Sec.22
OF THE REPUBLIC OF THE PHILIPPINES

The same is not true under the Anti-Subversion Act. True, with or
without criminal prosecution, the prohibition against joining the Com-
munist Party would stick. But it would take utmost straining to under-
stand such a prohibition as a punishment. It is, at the most, an inhibition
on the right of association and its validity must be tested against the
Anrrcr,E IV
guarantee of the right of association.2'o6
CrctznNSHrP

SrcrroN L. rnr ror,r,owlNc ARE crrrzENs oF THE Pnrr,rpprNss:

(1) TuosB wHo ARE crrrzENs oF THE Pnrr,rpprnns AT THE
TrME oF THE ADoprroN oF THrs CoxsrrrurroNl
(2) Tnosn wnosE FATHERs oR MornERS ARE crrrzENs oF
run Pnrr,rrrrNnsl
(3)Tnosr BoRN BEFoRE J.lNunny 17r 1973, or FnrprNo
MorHERs, wno ELEcr Pnrllppnn crrIzENsHIp upoN REACHING THE
AGE OF MAJORITY; AND

(4) THosr wHo ARE NATURALTzED rN ACcoRDANcE wrrH

LAW.

1. Citizenship.
Citizenship is personal and more or less permanent membership
in a political community. It denotes possession within that particular
political community of full civil and political rights subject to special
disqualifications such as minority. Reciprocally, it imposes the duty of
allegiance to the political community.

Modern law recognizes three distinct modes of acquiring citizen-

ship: (1) jus sanguinis
- acquisition of citizenship on the basis of
blood relationship; (2) jus soli
- acquisition of citizenship on the basis
of place of birth; (3) naturalization the legal act of adopting an alien
-
and clothing him with the privilege of a native born-citizen. Basic Phil-
ippine law follows the rule of jus sanguinis.
The core of citizenship is the capacity to enjoy political rights,
that is, the right to participate in government principally through the
right to votc, thc right to hold public office, and the right to petition the

i
'radSctr rf iscussiotr,supru, tltt(lcr Sccltoll ll
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
government for redress of grievances. It is with reference to these rights
that Chief Justice Warren says: "Citizenship is man's basic right for it
is nothing less than the right to have rights. Remove this priceless pos-
session and there remains a stateless person, disgraced and degraded in
the eyes of his countrymen."'
2.
Citizens of the Philippines at the time of the adoption of
the 1973 Constitution.
Article IY
Section 1(1) refers to Article III, Section
1973 Constitution which read:
Section l. The following are citizens of the Philippines:
(l)
Those who are citizens of the Philippines at the time
the adoption of this Constitution.
(2) Those whose fathers or mothers are citizens
Philippines.
(3)
Those who elect Philippine citizenship pursuant to the
provisions of the Constitution of nineteen hundred and thirty-five.
(4) Those who are naturalized in accordance with law.
Article III, Section 1(1) of the 1973 Constitution in turn referred
to those who were citizens under Article IV of the 1935 Constitution
which contained the following basic provisions on citizenship:
Section 1. The following are citizens of the Philippines:
(1)
Those who are citizens of the Philippine Islands at the
time of the adoption of this Constitution.'?
lDissenting inPercz v. Brownell,356 U.S. 4454 (1958).
'zThe 1935 Constitution of the Philippines was adopted on November 15, 1935. Who wcrc
citizens of the Philippines then?
1. "... fall inhabitants of the Philippine Islands continuing to reside therein, who wr'rc
Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine, and thcn re:sidrd
in said Islands..." (Section 4, Philippine Bill of 1902), provided they had not yet lost their citizcn
ship on November 15., 1935.
This provision of the Philippine Bill is an act of na ss naturalizatktn. It implemcnts Articlc
IX ofthe Treaty of Paris. For the first time, it creates the category of Filipino citizcn. Prior to thc
Philippine Bill there were only Spanish subjects.
The provision includcs (r) pcrsons born in thc I'hilippincs, (b) pcrsons lrorrt irt Slxrirr uttrl
(c) all other inhabitants ol'lhc Philippincs provirlctl lhrl thcy wcrc srrbjt'cls ol Sprrirr rtnrl tcsitlcnlr
ol'thc Philippirrcs on April I I , I t{()(), llrt' rl:rlt' ol lltc t'xt ltirntrqc ol trtlilit rtlion ol llx"l'r('lly ol ltrrris.
I'll:urtit v. l{t'Prrhlir', ltO l'hil. 5'lll ( lr)4lt).
Sec. I ART. IV - CIIZENSHIP 631
(2) Those born in the Philippine Islands offoreign parents
who, before adoption of this Constitution, had been elected to pub-
lic office in the Philippine Islands.3
(3) Those whose fathers are citizens of the Philippines;
(4)
Those whose mothers are citizens of the Philippines
and, upon reaching the age of majority, elect Philippine citizen-
ship;
l(l) of the (5) Those who are naturalized in accordance with law.
Article IV Section 1, however, should not be read as having the
effect of curing any defect in the acquisition of citizenship under the
1935 or 1973 Constitutions. If a person's citizenship was subject to ju-
of
dicial challenge under the old law, it remains subject to challenge under
of the
Not included, however, were those who had "elected to preserve their allegiance to the
crown of Spain in accordance with the Treaty of Peace between the United States and Spain..."
(Sec.4, Philippine Bill). The Treaty of Paris allowed Peninsular Spaniards residing in the Philip-
pines to "preserve their allegiance to the Crown of Spain by making, before a court of record,
within a year from the date of the exchange of ratification of this treaty [April 11, 1899], by a
declaration of their decision to preserve such allegiance. . . " .
2. The children ofthose who became Filipino citizens under the Philippine Bill (Sec.4,
Philippine Bill), provided they had not lost their citizenship prior to November 15, 1935.
3. Those who became Filipino citizens under the Naturalization Law enacted on March
26, 1920, provided they had not yet lost their citizenship by November 15' 1935.
4. Children who were minors at the time of the naturalization of their parents under (3),
if dwelling in the Philippines, and children born in the Philippines subsequent to the naturalization
of their parents [Act 32148 (1928)], provided they had not lost their citizenship by November 15,
1935-
5. Foreign women married to citizens of the Philippines who may have acquired Phil-
ippine citizenship under Act 3448, provided they had not lost their citizenship by November 15,
1935.
6. Those who were citizens of the Philippines by the principle of res iudicata, that is,
those who were individually declared to be citizens of the Philippines by a final court decision
even if on the mistaken application of the principle ofjas soll. Tan Chong v. Secretary of Labor, 79
Phil. 249 ( 1 947); Rodriguez Tio Tiam v. Republic, 10 I Phil' 1 95 ( I 957).
rThere are two things noteworthy about this provision: (1) it is a stop-gap provision; (2) an
understanding of its stop-gap nature clarifies the misleading phraseology.
The provision was tailor-made for one of the delegates to the constitutional convention,
Delegate Fermin Caram. Caram had been born in the Philippines by Syrian parents and, although
he had never been naturalized, prior to the constitutional convention he had been elected provin-
cial bgartl rnember of lloilo. To erase all doubts as to the citizenship of Caram, this provision was
inserted. I Arul<;o, 'l'n*: FntutNr; ot. IHt.: PHII.tPPINE (1936) 2O4-2O5. Hence, too, the antecedent of
thc pnxxlrn "wlxi'is not "parcnts" but "those born in the Philippine Islands offoreign parents.
'l'lrc Srrplcnrc ('ourt lr:rs ulso hckl thal ir rtrirxlr child ol'one in the same position as Caram
1r'tlrilul l;ilipirxr t itizerrshilr tlrlrrrgh tlrt' lllhcr, thrrs re'iecting thc claim that the grant of citizen-
slrip wrrs strir.tly ;x.rsrrrirl to tlre oru'wlro lrirrl lrt't'rt t'lt't'lcrl lrt ptrhlic ollicc. ('hi<xtghian v. tlc l,con,
l{2 I'lrrl.'/'/ I ( l().1(l)
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
the new whether or not the judicial challenge had been commenced
-
prior to the effectivity of the new Constitution.4
3. Children of Filipino fathers or mothers.
The 1935 Constitution adopted the principle of jus sanguinis as an
absolute rule. The child of a Filipino father, whether born in the Philip-
pines or abroad, was a Filipino citizen from the moment of birth. At the
1935 Constitutional Convention, an attempt was made to make citizen-
ship by birth "subject to such limitations as may be prescribed by the
National Assembly." The attempt failed.s
The 1973 Constitution preserved the principle of jus sanguinis
as the basic foundation of citizenship and expanded its application by
placing the Filipino woman on the same level as the male in matters
of citizenship.u Those whose mothers are citizens of the Philippines,
even if the father is an alien, are Filipino citizens. To come under this
expanded rule, however, it is essential that the mother must be Filipina
at the time of the birth of the child. Moreover, the new provision is
not retroactive. It applies only to those born of a Filipina mother on or
after the effectivity of the 1973 Constitution.T Hence, it is important to
remember that the 1973 Constitution took effect on January 17 ,1973.
This 1973 innovation came under assault during the deliberations
of the 1986 Constitutional Commission from two venerable members,
Commissioners Roberto Concepcion and Ambrosio Padilla. Concep-
cion, looking at it from a nationalist perspective, saw it as a dangerous
facilitation of the acquisition of citizenship which could open up the
exploitation of natural resources to "half-breeds."'IJnstated in his argu-
ment, howevero was the chauvinistic fact that he would not object ttr
citizenship of "half-breeds" provided that the Filipino half of the child
came from the father. Padilla more explicitly looked on the 1973 rulc
aConvention Session of November 2"1 ,1972, said this about Section I ( I ) of the I 97.1 provi
sion. It is also true of the present provision.
The limitation was proposed by Delegate Jose P. Laurel. I Anueco, THr Fn,q,utut; ttt rttt.
P nup prNr CoNsrnunou (1936) 2O5 -208.
For a discussion of cases incorrectly applying the principle of ius soli in the Philippincs.
see I T,cNeoa eNo CennrON, Pouncet Ltw or rur Pnupptuts 147-9 and Tan Chong v. Sccrctary ol
Labor, 79 Phil. 249 (194'l).
6Convention Session ol' Novcnrber 25, 1972.
/Convcnlion Scssiott ttl Nttvcttrbcr ')7 , 191)..
il l{l('()l{l),\)l .)Ol, l5(1, l5 l.(irtttt'1r'tottslxrhcttl lilc/llk'tt;'.lltrrrlllt'stth;r'r'1.
ART. IV - CITIZENSHIP 633
as the fruit of the feminist movement which, he said, ignored real dif-
ferences between children of a Filipino father and those of a Filipina
mother. The latter most often must leave her country with her foreign
husband to raise her child abroad.n Commissioner Felicitas Aquino saw
the arguments of Padilla as "blandishments of purism" and "monumen-
tal hypocrisy."'o In the end, only three voted to return to the male chau-
vinist 1935 rule.
It is also a settled rule that the principle of ius sanguinis applies
only to natural filiation and not to filiation by adoption." Likewise, it
is a settled rule that only legitimate children follow the citizenship of
the father and that "illegitimate children are under the parental author-
ity of the mother and follow her nationality, not that of the illegitimate
father."'' This rule, based on parental authority, remains unchanged by
the new Constitution.
Moreover, an illegitimate child of a Filipino father and an alien
mother is Filipino, if paternity is clear. Jus sanguims makes no distinc-
tion between legitimate and illegitimate children. This was the case of
Fernando Poe, Jr.'3 Needless to say, the child might also have the citi-
zenship of the mother, in which case the child might have dual citizen-
ship.
Finally, while the principle of jus sanguinis is the basic rule in
Philippine law, there is nothing either in the 1935 or in the 1973 ot 1987
Constitution to prevent the legislature from adopting the principle of
jus soli or any of its features as supplementary law on citizenship. The
legislature is endowed with broad powers to pass naturalization laws.
4. Citizens by election.
For a proper understanding of Section 1(3), which is a reformu-
lation of Section 1(3) of Article III of the 1973 Constitution, two ques-
tiuns must be considered: (1) What is the scope of the right of election
given by the 1935 Constitution? (2) What is the relation between the
"Id.ar)td,4.111
r"/r/. :rl l'1tl .l'1(),
rr('lrinli l.crrg v.(i:rl:rrrg,l, ll().]1,()clohcr lO, lt)5tl.unreported.
r,/r/.:Sr.r'r1 v. l{cprrblie ,1. ,l22l,Mly 12. l()52,unrc1xrt'tcd;ZamboangaTransportalion(ir-
v. l.rrrr.l()5 1'frif ll.)l \lt)5tll,unn,1rnrrtl; lkrlrrlol lrtttttigraliottv.(iallano,25S('RAll(X)(19(rtt).
,,,lirsorr v (,()Mlil .li('.(il{ N0. l(rl,ll,l,Milrch l,.l(X)4.
 ART. IV - CITIZENSHIP 635
Sec. I
THE 1987 CONSTITUTION Sec. I
OF THE REPUBLIC OF THE PHILIPPINES

right of election given by the 1973 and 1987 consritutions and the right
of election given by the 1935 Constitution?
By Article IV, section I (4) of the 1935 constitution, counted as
Philippine citizens were: "Those whose mothers are citizens of the phil-
ippines and, upon reaching the age of majority, elect philippine citizen-
ship." This provision was supplemented by Commonwealth Act No.
625'o which prescribes the procedure for making the election.
For a child to benefit from the 1935 provision, when must the
mother be a citizen of the philippines? At the time of the birth of
the child? or at the time of the election? There is a hint, obiter and
oblique and very likely unintended, in vilahermoso y. commissioner
of Immigration,ts that the mother must be Filipina at the time of the
election by the child. Such a suggestion, however, would render the
provision nugatory because the rule, rejected by philippine law only in
1973, used to be that the woman loses her citizenship upon marriage to
a foreigner if she acquires the citizenship of her husband. Thus, the bet-
ter interpretation seems to be that, to benefit from the right of election
under the 1935 Constitution, it is sufficient that the mother be a Filipino
citizen, either by birth or by naturalization, at the time of her marriage.
Assuming that the mother lost her philippine citizenship by mar_
riage but subsequently reacquired it during the minority of the child,
does the minor child automatically acquire the citizenship of her mothcr
or must he still elect Philippine citizenship? The same villahermotio
case ruled that it is still necessary for the child to make the election if hcr
wishes to become a Filipino citizen.r6
Section I of Commonwealth Act 625, enacted on June 7, lg4l,
provides that the election must be expressed in a statement sworn bc-
fore any officer authorized to administer oaths and filed with the ncarcsr
civil registry and accompanied by an oath of allegiance to the philip-
pine constitution. Before June 1, 1947 ,there was no fixed procedurc lor
election. For purposes of proof of election before such date, thc cburr
has accepted such acts as participating in elections and campaigning lirr.
a candidate as an adequate form of election.'7
How soon after reaching majority must the child make the elec-
tion? In Dy Cuenco v. Secretary of Justice,lE the Supreme Court cited
with approval the ruling of the Secretary of Justice to the effect that
three years is the reasonable period within which the child must
make
justifiable cir-
the election. After such period, the right is lost. However,
cumstances, such as when the person concerned has always considered
himself a Filipino citizen, may justify the extension of the three-year
period.''
Another twist to the election rules is found tn Co v' Electoral Tri-
bunal of the House of Representatives'2o Jose Co, born a Chinese
na-
tional, married a Filipina in l932.In 1955, when their son Jose, Jr.
was
nine years old, Jose, sr. was naturalized and took his oath of allegiance.
In 1987 Jose, Jr. was elected to the House of Representatives. when his
nev-
citizenship qualification was challenged on the ground that he had
er electedPhilippine citizenship, the court said that it would be
ridicu-
lous to require him to elect citizenship when, by the naturalization of
his father,ire too had become a Filipino citizen even while still a minor'
elec-
The court also appeale dto In re Mallare" as recognizing informal
tion under speciaf circumstances. ln Mallare the Court had recognized
participation in the election process on the belief that one was a citizen
as a valid informal election of citizenship'
with the adoption of the 1973 Constitution which by Article III,
her origi-
Section 2, allowed the Filipina who marries an alien to retain
nal citizenship and which by Section 1(2) allowed the child to follow
1973 Con-
the citizenship of his Filipino mother, a child born under the
stitution of a Filipino *oth.t would not have to make the election in
order to acquire enmppine citizenship. He is already a Filipino
citi-
zenby birth. Howeu"iiin"" the new provision allowing the legitimate
childio follow the citizenship of the Filipino mother is not retroactive,
provision had to be made for legitimate children born of Filipino moth-
had not yet
ers under the 1935 Constitution who by reason of minority
exercised their option when the 1973 Constitution took effect.
Can the right to elect Philippine citizenship still be available to
is
children born after the 1973 Constitution took effect? This question

r85 SCRA tOn. I l0 ( 1962).

'45 PAL, Title 18, ss. 32-5. t"ll. , tiltilrr.
r580 Phit.
54t, 544 t94tt).
(
told. r,r(i.R. Nos.()21()l 92,July lo, 1991.
r //rt
,r5{) s('RA 45 ( l()74).
k' l rkrtcrX io Mrrllrrlc, 5(r S('l{4 45, 5.1 (Scptclrrlrr.r l,). lr)7,1 )
636 THE 1987 CONSTITUTION Sec. I
OFTHE REPUBLIC OFTHE PHILIPPINES
asked with reference to children of Filipino mothers who lost their orig-
inal citizenship by marriage under the 1935 Constitution or who after
marriage to an alien under the 1973 Constitution lost their Philippine
citizenship by voluntary act or omission. It is submitted that there is no
right of election for children born under the 1973 Constitution. It is very
clear from the convention deliberations2z that Section 1(3) is intended
to be in the nature of a transitory provision applicable to children born
under the 1935 Constitution who had not yet reached majority when
the 1973 Constitution took effect. Moreover, if it had been the intention
of the Convention to preserve the 1935 provision as a permanent part
of the 1973 Constitution, the Convention would not have worded the
new provision the way it did: "Those who elect Philippine citizenship
pursuant to the provisions of the Constitution of nineteen hundred and
thirty-five." The clear implication of such language is that the right of
election referred to by the new provision can only be one which was
acquired under the 1935 Constitution. The 1973 Constitution does not
grant but merely preserves a right already acquired. However, there is
nothing in the new Constitution to prevent the Congress from granting
a statutory right of election identical with the right formerly given by
the 1935 Constitution. Should such a statute be enacted, however, will
a child who elects under such statute be a natural-born citizen under
Section 2? It is submitted that he would not because the election would
not be in virtue of Section 1(3).
It is clear that the right of election provided for in the 1973 Con-
stitution is in the nature of a transitory provision whose usefulness will
expire once all those who acquired the right to elect under the 1935
Constitution have either elected or forfeited their right to elect. And
since that time will not come until some time after 1994,or twenty-onc
years after 1973 , the right of election in the 1973 Constitution has becn
carried into the 1987 Constitution. The formulation of the 1987 provi-
sion, moreover, spelled out the meaning of Section 1(3) of the 1973
Constitution, that is, that it has reference to those born before January
17 ,1973, the date of effectivity of the 1973 Constitution.
Sec. I ART. IV _ CITIZENSHIP 637
5. Naturalization,judicial and administrative.
Naturalization is the legal act of adopting an alien and clothing
him with the rights that belong to a natural born citizen." Naturaliza-
tion may be obtained through a general law of naturalization applied
through ajudicial process. Such is the process prescribed in the existing
Revised Naturalization Law, C.A.473,June 17, 1939. Named individu-
als may also acquire citizenship through a special act passed by the leg-
islature (or by the President in the exercise of special legislative power
if granted by the Constitution.) Of historical interest is the Philippine
Bill of 1902 which was a mass naturalization law making Filipino citi-
zens of "all inhabitants of the Philippine Islands continuing to reside in
them who were Spanish subjects" on 11 April 1899 "and then resided
in said islands."
The accepted rule on admission to citizenship is positivist.
"[Over] no conceivable subject is the legislative power of Congress
more complete than it is over" admission to citizenship.'o Naturalization
is considered "not a matter of right, but one of privilege of the most
discriminating, as well as delicate and exacting nature, affecting as it
does, public interest of the highest order, and [it] may be enjoyed only
under the precise conditions prescribed by law therefor."" The right to
determine rules on admission to citizenship is considered an aspect of
sovereignty. Every independent nation has the inherent and indepen-
dent right to determine for itself what classes of people shall be entitled
to its citizenship.'u
Letter of Instruction No. 270, in effect for a limited period from
its promulgation by President Marcos on April ll, I975, is sometimes
erroneously referred to as a statute which granted naturalization. In fact,
however, it merely provided for an administratlve screening process
preparatory to the grant of citizenship by presidential decree. Commis-
sioner Ople explained that this provision was a measure to counteract
2lNaturalization is treated in greater detail in Bewes, THt 1973 PaupprNB CoNsrtrunoN:
Nott:s ,tNo Ctscs Part II.
zaOceanic Navigation Company v. Stranahan,214 U.S. 320,339 (1909).
2sCuaki Tan Si v. Republic,6 SCRA 545, 546 (1962).
r6tlnited States v. Wong Kirn Aok, 169 U.S.649,668 (1898). It may be doubted therefore
whcthcr an cxpress c(trrstitutional grant ofnaturalization power is at all necessary. "As a govern-
nrcnt, lthc Philippinesl is investcd with tll thc tttrihutes ol'sovereignty. As it has the character of
rrrrlionulily it hrrs thc powcr ol ntlionulity, sspcciirlly tlxrsc which conccln ils rclutions rrnd inter-
totrlsc witlt ollrcr coutrltics " Mrrekcnric v. llirtc.,) t() U.li..)r)(). lll ( l9l5).
638 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
the potential national security threat posed by a vast number of Chinese
nationals residing in the Philippines at the time when the country was in
the process of establishing diplomatic relations with Peking in the mid-
seventies. Ople recalled that "the decision was that it would be helpful
to the national security, if the laws were changed so that there would be
greater simplification and liberalization of the naturalization law."r'Pre-
cisely because ofthis historical background, citizenship obtained under
this liberalized process came under scrutiny by the 1986 Constitutional
Commission.
The first proposal arising from this scrutiny was a provision
absolutely disallowing authorization for any President to grant nat-
uralization. On the general principle that questions on naturalization
should be left to the legislature, the amendment was readily rejected.,*
More serious, however, was a proposal to subject all naturalizations
granted by President Marcos to judicial scrutiny and confirmation. De-
fending the proposition, Commissioner de los Reyes argued that, prior
to the grant of citizenship under the liberalized system, there were "no
searching inquiries on the motives of the applicants and their past ac-
tivities to show their sincere desire to become Filipinos" nor were the
applicants subjected to the "usual period of probation under ordinary
naturalization procedure."'n In opposing the proposal, which Com-
missioner Davide had concretized into an amendment of Section 1(4),
Commissioner Bernas appealed to the presumptive regularity of official
action, to the principle of not distinguishing between natural-born and
naturalized citizens except in those instances where the Constitution
itself makes the distinction, and to the need to protect those who truly
deserved the citizenship already granted. But Bernas granted that citi-
zenship problems could be reopened on a case to case basis. "After all,
it is also a principle embodied in our jurisprudence that the grant of
citizenship is never res judicata. It can always be reopened for valid
reasons. But let us not reopen them en masse. Let us reopen only those
cases where there is perceived evidence or grounds for reopening." Ber-
nas preferred that "remedial measures be left to ordinary legislation
within the limits of the Constitution."'o
,I RECORD I90.I9I,
28
Id. at 352.
2tommissioner de los Reyes proposed the following: "Naturalization obtained hy exocu-
tive decree shall be subject tojudicial confirmation in the manner and within thc timc prcscrihctl
by law. Failure to obtain said confinnation shall be a grountl lirr rcvoctliorr." I Rli({)Rl) 142.
ro/r/. lt 343.
Sec. 1 ART. IV - CITIZENSHIP 639
Another proposal, also immediately but not exclusively occa-
sioned by the experience with naturalization by decree and vigorously
supported by Commissioner Concepcion, was to limit naturalization to
judicial naturalization only but "without prejudice to legislative grants
of honorary citizenship, without the rights of naturalized citizens."
Concepcion argued that comrption in the judicial grant of naturaliza-
tion was bad enough; legislative grants would compound the comrption
and further erode the nationalistic intent of the provisions on the ex-
ploitation of natural resources.3r Again Commissioner Bernas opposed
the proposal on the general principle that naturalization should be left
to ordinary legislation. He added: "The [immediate] background of the
proposed amendment is the situation of the Marcos regime when leg-
islation was in the hands of one man. ... If we insure that legislative
power will not be exercised by one person, then the abuses which re-
sulted from the possession of legislative power will be avoided.""
The power of the legislature includes control over processes
through which citizenship is acquired or lost, determination of substan-
tive criteria for admission to citizenship, and fixing the consequences
of the grant of citizenship on the wife or minor children of the grantee.
In general, the prevailing policy, reflected in the Revised Naturaliza-
tion Law, has been to make the acquisition of citizenship not only a
slow but also an arduous and cumbersome process. Briefly, Section 2 of
C.A. No. 473 prescribes requirements of age, residence, moral charac-
ter and political belief, real property or lucrative occupation, language,
and education of children. The procedural requirements include the fol-
lowing steps: declaration of intention, filing of petition, hearing and
initial judgment, period of probation, rehearing and final judgment. The
applicant is allowed to take the oath of citizenship only after satisfying
the court that he has passed the probation requirements.
The grant of citizenship to a parent also extends citizenship to
minor children under parental authority.'The rule on the citizenship of
thc wife upon the naturalization of the husband is a little more involved.
'r/r/. al I llll-9.
rr/r/,irl lzl5(r.'llrcl)lrvitle irrrrcrrtlrrrcnt n:atl: "'fhosewhotte.iudiciall.ynaturalizedinac-
t olrl:rrrct' willt l:rw."
"('.n.N().,l7 l,Stt.s. l5. l(r. llrt.rr'P:rlrilrliorr ol :r rrrollretitlsotttlillcsltcrsotlto:ttlccla-
rrrtiorr tltrrt lrr. is errtrtk.rl to l'hilrp;rrrH' ( llil('rslril) llcprlhlir' v .lrrtlll"lirttrlityitg, (i.l(. No. .12()99,
()rlrrlrt I\. ltll]'.t,tr'tlnrtltrt1; lrtlttlrr v Ily,tl.r1'tttt.5,)(|t)5,))

THE 1987 CONSTITUTION Sec.2
OF THE REPUBLIC OF THE PHILIPPINES
The law says that she is "deemed a citizen" of the Philippines. This has
been interpreted to mean that she becomes a Filipino citizen, provided
she shows, in an administrative procedure for the cancellation of her
alien certificate of registration, that she has none of the disqualifications
found in C.A. No. 473, i.e., even if she does not have all the qualifica-
tions found in C.A. No.473, Sec. 2.'o
Aside from judicial naturalization there is now administrative
naturalization. The matter is handled through the Special Committee
on Naturalization chaired by the Solicitor General and is governed by
Sections 3,4,5 and 6 of R.A. No.9139.
Src.2. NmURAL-BoRN crrrznNs ARE THosE wrro ARE crrrzENs
oF TrrE Pnrr,rpprNns FRoM BIRTH wITHour HAVING To pERFORM ANy
ACT To AceuIRE oR pERFECT rnrrn PnnrppINE crrlzENsnrp. Tnosn
wno ei,ncr Pnrr-rpprNn CITIzENSITIp IN ACcoRDANCE wITH pARAGRAPH
(3), Srcrrox 1 nrnror sHALL BE DEEMED NATURAL-BoRN cITIzENs.
1. Natural-borncitizen.
The first sentence of Section 2 first appeared as Section 4 of the
1973 Constitution. It gives the basic definition of a natural-born Fil-
ipino citizen. Under the definition, and without the second sentence
which was added only by the 1987 Constitution, one who elects Phil-
ippine citizenship by virtue of Section 1(3) would definitely not be a
natural-born Filipino.
Under the 1935 Constitution it was never definitively settled
whether a child of a Filipina mother who elected Philippine citizenship
upon reaching majority was a natural-born Filipino. The strict view,
which defined a natural-born Filipino in the tenor of the first sentence
of Section 2,held that he was not. A liberal view, however, held that he
was. This view was anchored on the argument that the election retroacts
to the moment of birth since it was birth which gave the child the poten-
tial to make the election. This liberal view was in fact followed by the
1971 Constitutional Convention when it acted as judge of the citizen-
ship qualiflcation of Delegate Ernesto Ong. It was a practical solution
to a hitherto unsettled question.
rrllrrrtl v. l{eprrblit, 5l S('RA 24tl (.lrrrrc 15, l9/l)
Sec.2 ART. IV _ CITIZENSHIP 641
The addition of the second sentence by the 1987 Constitution de-
finitively settled the issue. The purpose of this addition is to equalize the
status of those born of Filipina parents before January I7,1973,with
those born of Filipina parents on or after January 17 , 1973:' (Strictly
speaking, however, the children might not be equally situated because,
as already explained, to have the right of election under the 1935 Con-
stitution, it is enough that the mother was Filipina at the time of mar-
riage even if she no longer was one at the time of the birth of the child;
whereas under Section I(2) the mother must be Filipina at the time of
the birth of the child.) To the objection that one who is only "half ' Fili-
pino might become President on the basis of this provision, the answer
given on the floor was that the appropriate place to discuss the qualifi-
cations of a President, if it is desired that a President should be "pure"
Filipino, will be in the article on the executive department.36
Would the second sentence of Section 2 apply only to those who
elect citizenship after the effectivity of the 1987 Constitution? The an-
swer of Commissioner Bernas to this question was: "It would apply to
anybody who elected Philippine citizenship by virtue of the proviso of
the 1935 Constitution, whether the election was done before or after
January I7,1973.""
If a natural-born Filipino citizen loses his citizenship
by renun-
recognized by law, would he still be con-
ciation or by any other mode
sidered natural-born ifhe subsequently reacquires citizenship? It is sub-
mitted that, whether under the 1973 or 1987 provision, such a person
would not be a natural-born Filipino."
The distinction between natural-born citizens and naturalized citi-
zens is significant because the Constitution has reserved certain consti-
tutional offices for natural born citizens, and, underArticle XII, Section
8, allows natural-born citizens who have lost their Philippine citizen-
ship to be transferees of private lands. Other than for these purposes,
however, the Supreme Court has taken the position that the distinction
is without significance and "that a naturalized citizen is entitled to simi-
lar treatment as a native-born citizen except where the Charter itself
xl RECORD 189,206,356.
s/d. at 355, 369. The article on the President makes no provision for any distinction.
t1ld. ttt 228.
'*The sumc onswcr to thc queslion was given in Meeting of the 166-Man Special Commit-
tcc. Nrrvcmhcr 16. 1912.
 642 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
provides otherwise. If it were not so, there would be an infringement
of the equal protection guarantee."3, The 1986 Constitutional Commis-
sion took such a position when it rejected as unnecessary a propos-
al which said: "Both natwalized and natural-born citizens shall have
equal rights."oo On this basis, can cancellation of naturalization based
on grounds occurring after final grant of citizenship, such as permanent
residence in the country of origin, as prescribed in Section 18 of Com-
monwealth Act 473, be challenged as violative of equal protection? A
similar provision in the United States was struck down as violative of
the equal protection clause.4r It is submitted, however, that the new Sec-
tion 5, infra,which deals with "dual allegiance," should make the ratio-
nale of the American decision inapplicable in this jurisdiction.
Snc.3. PnIlrpprNl crrrzENsHrp
MAy BE Losr oR REACeuIRED
IN TIIE MANNER PROVIDED BY LAW.
1. Loss of citizenship.
There are two laws on loss of citizenship. The first, Commonwealth
Act No. 63, applies to both natural-born and naturalized citizenship.
Section 1 provides, subject to stated exceptions, that citizenship is lost
by naturalization in a foreign country, by express renunciation of citi-
zenship, by oath of allegiance to a foreign country, by rendering service
in the armed forces of a foreign country, and by being a deserter of the
armed forces. The second, Commonwealth Act 473, applies to natural-
ized citizenship. Section l8 provides that a certificate of naturalization
may be canceled when found to have been fraudulently or illegally ob-
tained, or by permanent residence in the country of origin within five
years from naturalization, or when the petition is found to have been
made on an invalid declaration of intent, or upon failure to comply with
the requirements for the education of minor children, or if the person
allows himself to be a "dummy" for aliens.
The case of Emilio Osmefra, who would later run for Vice-pres-
ident with Fidel Ramos, comes under the first law. Osmefra, a son of
a Filipino father (and a grandson of President Osmefra) was a holder
of a valid subsisting passport and a continuous resident of the philip-
3eChan Teck Lao
v. Republic,55 SCRA 1,6 (January 4, lgj4).
{I RECORD 369.
arSchneider v. Rusk,377
tJ.S. 163 ( 1964).
Sec.3
ART. IV CITIZENSHIP 643
Sec.3 -
pines and a registered voter since 1965. He was, however, also a holder
of an alien registration certificate. His right to hold public office was
challenged on the ground that he was an alien. Deciding in his favor,
the Court said that by virtue of his being a son of a Filipino father, the
presumption was that he was Filipino and remained Filipino until proof
iould be shown that he had renounced or lost his Philippine citizenship.
There was no proof that he had been naturalized in a foreign country,
or had expressly renounced Philippine citizenship, or had sworn alle-
giance to a foreign country. The Court said that possession of an alien
registration certificate unaccompanied by proof of performance of acts
whereby Philippine citizenship had been lost was not adequate proof
of loss of citizenship.o, The Court has consistently followed this rule
saying that in order that citizenship may be lost by renunciation, such
renunciation must be express. The mere application or possession of an
alien certificate of registration does not amount to renunciation.43
It is interesting to compare this with Willie Yu. Yu had been issued
a Portuguese passport in t97L He was given naturalization as Filipino
citizen in 1978. In 1980, however, he still declared his citizenship as
Portuguese in commercial documents and in 1981 he still obtained a
Portuguese passport which expired in 1986. The Court held that his
actions constituted renunciation of Philippine citizenship. "While nor-
mally the question of whether or not a person has renounced his Philip-
pine citizenship should be heard before a trial court of law in adversary
proceedings, this has become unnecessary as this Court, no less, upon
insistence of petitioner, had to look into the facts and satisfy itself on
whether or not petitioner's claim to continued Philippine citizenship is
meritorious."oo
Much clearer were the cases of Ramon Labo, Jr. and Juan Fri-
valdo. Labo had taken the oath of allegiance to Australia. His claim
that his acquisition of Australian citizenship was invalid was not seen
as negating the fact that he had taken an oath of allegiance.o' Frivaldo,
lirr his part, had taken American citizenship. The Court did not accept
,rrAznar
v. CoMELEC and osmefra, 185 SCRA 703 (1990). But see the sepafate dissents
ol .lustices MelencioHcrrera, Cruz and Padilla.
a,Mcrcatkr vs. Manzano and COMELEC, G.R. No. 135083, M ay 26,1999;Yalles v. coM-
I tl,l :(1, ( ;.R. No. 1.17(XX), Aug,ust 9, 2(XX).
''''Wrllic Yu v. l)clcnsor-santrago,(i.R. No. tlJtltl2,January 24, l9lt9'
'"l.ithr..ll v. ('()Mlil,li('. l7(! li('RA I (l9tl9).
 645
644 ART. IV - CITIZENSHIP
THE 198TCONSTITUTION Scc. I Sec.3
OFTHE REPUBLIC OFTHE PHILIPPINES
the nenyUtillla
the oath of allegiance to
the explanation that he had taken it involuntarily as a protection againnt is accomplished by taking in the Bureau of Immtgra-
and
Mr. Marcos.a6 registering in tf," p'op"t Ef"iiRegistry Committee on
tion. Processing of upfil*'lon'
il Oone by the Special an IJn-
The decisions on cancellation of naturalization exhibit both posi,
Naturalization
i"r"uor General as Chairman' Intel-
tivistic and individualistic characteristics. The positivistic trait, a con.
dersecretarv
"on'itffii'rt"
F"'"i;;"A;u;';;;1h" Director of the
National
tinuation of the positivistic character of admission to citizenship, lr "f
reflected in the ruling that "unlike final decisions in actions and othcr ligence Coordinating AgencY's'
by
2630' those who lost citizenship
proceedings in court, a decision or order granting citizenship to the np- Under R'A' Nos' 965 and of repatriation
Armed Forces' could avail
plicant does not really become executory, and a naturalization procectl serving in the United-states and registertng
ing not being a judicial adversary proceeding, the decision rendcrctr simply by taking un ou'h
of allegiance to the Republic
wlgre^one or where one last
therein is not res judicata as to any of the reasons or matters which the same in the local Ciuif n"gi'tty '"'id"t
Act No. 8171only (1) women
would support a judgment canceling the certificate of naturalization lirr resided.,, However,,ri*'""J",.nepublic for
illegal or fraudulent procurement."4i More individualistic is the aflirnru who lost citizenship;;;;;unO
tzl those who lost citizenship
tion not only that the burden of proof is shifted to the government in n oolitical o,
iray be repatriated may be repatriated''3
"conomi" in Section 2 of R'A' No' 8171:
cancellation proceeding but also that citizenship acquired through nultr il':';"'#a;i' i*'o""u'on'
ralization is not second class citizenship and, hence, it may be cancclerl by-taking the necessary oath
Repatriation shall be effected
only upon evidence that is "clear,unequivocal and convincing" antl rrol t1" itritipplnes *q]:91'i"1"'
of allegiance tJthileJriri" "t The
merely preponderant.a8 Moreover, only rules for denaturalization irr or. in the Bureau of Immigration'
in the proper
istence at the time a person's application was heard and favorabry acled "#;;il;-a14.
Bureau of Immigratilon s-hail
thereupon cancel the
pertinent alien

on can be used against anattralized citizen. i;;"" il".certificate of identification

certificate
"t '";i;;;;';;;
as Filipino citizen to the
repatriated crtrzen'
There are no cases which deal with the validity of substnrrrivc
statutory grounds for loss of citizenship.oe element's4
Registration is an essential
and not
2. reacquisition of lost citizenship
Reacquisition of citizenship. Since repatriation is the regains the
the acquisition of a new
citizenship' one who is repatriated
citizenship once lost may be reacquired either by naturalizuriorr or Fili-
If he w-as previously a natural-born
by repatriation or by a direct grant by level of his to'm"' "itl'enship' her natural born
he or she iegains his or
pino citizen, upon t"ptit*i*
law.50

,.,ittt cotit in Bengzon v' cruz;5 The

For women who have lost their citizenship through marringr kr citizenship. Thi' #;; "i*"two kinds of citizenship - natu-
only
aliens, and for natural born Filipinos, including their minor clrilth,arr, court reason"o tt ut tt "re are is not
as well as persons who have lost their citizenship on accoulll ol clo and naturalized' Since' howevet' one who is repatriated
ral born Court put it:
nomic or political necessity, and who are not disqualiliccl, r'cl)irllurlrorl naturalized, h"
nutu'ut-uo'n citizen'As the
"t;;; citizens under
of who are
It is apparent from the enumeration of citizens:
there are only two classes
6Frivaldo v. COMELEC, 174 SCRA 245 (1989). the present Con'titution that who are naturalized
(2) those
aTRepublic v. Guy, 115
SCRA 244, 254 (July 20,lgg1),rTrroring Rcpuhlit. v, ( io ltur I ep (l) those *;';;;;;;;i-;'* and
11r Phil.805.
a8Republic v. Cokeng,
23 SCRA 559, 578 ( I 963) and 34 S(.R A 668 ( | r)'/1 ) I
Angat v. Republic' G R No' 132244'September 14' 1999'
aeof interest arc Afroyim
v. Rusk,38'l U.S. 253, 262 (1961\ upholtlirrg rr luw witlrrhrwtrrl ilffiFri toiiioi,lt, y 1 ,2$\l;R.A. Nos.965
and 2630'
Americancitizenshipfrompersonsvotinginl'rrrcignclcctions,u\l*'hnt,illtr r'.ft,,r1, r//lrl .rtlcrrgz., v. (.ruz, (i.R. *,,
163 (1964) declaring unconstitutional it litw willrtlr:rwirrg t:itizcrrslrip lronr nrtlnrlr/r(l r t1rr1r *lt1 .':1,1ras1 v. ('A, Atrgtrsl 29,2(XXr'
i ' liil;,;' t' tt' N" l(rJ25(r' N.vcrnbcr l0' 2(x)4
resided continuously for three yottrs in lltcir corrrrtry ol origirr. llrrl,:rgrrirr,.ra. Sc(.tto1 l, trt/t,, ".'ii""ri'r'rn"
5o(lomlnonwcirllh Act No. l. Sct.tions ll.
(r 1..1. i

I

THE I9STCONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
in accordance with law. A citizen who is not a naturalized Filipino,
i.e ., did not have to undergo the process of naturalization to obtain
Philippine citizenship, necessarily is a natural-born Filipino. Note-
worthy is the absence in said enumeration of a separate category
for persons who, after losing Philippine citizenship, subsequently
reacquire it. The reason therefor is clear: as to such persons, they
would either be natural-born or naturalized depending on the rea-
sons for the loss of their citizenship and the mode prescribed by the
applicable law for the reacquisition thereof. As respondent Cruz
was not required by law to go through naturalization proceedings
in order to reacquire his citizenship, he is perforce a natural-born
Filipino. As such, he possessed all the necessary qualifications to
be elected as member of the House of Representatives.
Justice Melo, however, filed a vigorous dissent:
Repatriation is the resumption or recovery of the original
nationality upon the fulfillment of certain conditions. While an ap-
plicant need not have to undergo the tedious and time consuming
process required by the Revised Naturalization Law (CA 473, as
amended), he, nevertheless, would still have to make an express
and unequivocal act of formally rejecting his adopted state and
reaffirming his total and exclusive allegiance and loyalty to the Re-
public of the Philippines. It bears emphasis that, ro be considered a
natural-born citizen under the first part of section 2, Article IV of
the 1987 Constitution, one should not have to perform any act at all
or go through any process, judicial or administrative, to enable him
to reacquire his citizenship. Willoughby opines that a natural-born
citizen is one who is able to claim citizenship without any prior
declaration on his part of a desire to obtain such status. Under this
view, the term 'natural born'citizens could also cover those who
have been collectively deemed citizens by reason of the Treaty of
Paris and the Philippine Bill of 1902 andthose who have been ac-
corded by the 1935 Constitution to be Filipino cirizens (those born
in the Philippines of alien parents who, before the adoption of the
1935 Constitution had been elected to public office.
What is the effective date of a grant of repatriation? A plurality
opinion in Lee v. Commission on Elections & Frivaldo,'u ruled that the
effective date is the date of application for repatriation not the date
when repatriation is approved.
56G.R.
No. 120295, June 28, 1996.
Sec.4 ART. IV - CITIZENSHIP
Sec.3
What may be gathered from Bengzon and Frivaldo is that juris-
prudence values natural born citizenship highly and will facilitate giv-
ing it back to its former possessor as to a prodigal son if it was once lost.
Hence, Section 5(2) of Republic Act No. 9225 compels natural-
born Filipinos, who have been naturalized as citizens of a foreign coun-
try, but who reacquired or retained their Philippine citizenship (l) to
take the oath of allegiance under Section 3 of Republic Act No. 9225,
and (2) for those seeking elective public offices in the Philippines, to
additionally execute a personal and sworn renunciation of any and all
foreign citizenship before an authorized public officer prior or simulta-
neous to the filing of their certificates of candidacy, to qualify as candi-
dates in Philippine elections.5T
Snc. 4. CrrrzBNs of,'THE Ptttl-pprxrs wHo MARRY ALIENS
SHALL RETAIN THEIR CITIZENSHIP, UNLESS BY THEIR ACT OR OMISSION
THEY ARE DEEMED, UNDER THE LAW, TO HAVE RENOUNCED IT.
1. Marriage to an alien spouse.
The 1973 Constitution's version of this provision read: "A female
citizen of the Philippines who marries an alien shall retain her Philip-
pine citizenship, unless by her act or omission she is deemed, under the
law, to have renounced her citizenship." The 1987 provision makes no
reference to sex thus making the rule applicable to botir males and fe-
males on the chance that some country might have a law which divests
a foreign husband of his citizenship."
Commonwealth Act No. 63, Section 1(7), provided that a Filipino
woman lost her Philippine citizenship "upon her marriage to a foreigner
if, by virtue of the laws in force in her husband's country, she acquires
his nationality." The 1973 constitutional provision repealed the above
statutory rule. The fact alone of marriage to an alien cannot strip a Fili-
pino woman of her Philippine citizenship. Only acts and omissions,
which under Article III, Section 4, Congress may prescribe, constitute
cxplicit or implicit renunciation of citizenship.5' The 1973 provision,
".lircol v. l)irl, (i.l{ No. l7()ll4tl. Novcnher 26, 2(X)ll
'31 l{l('()l{l) 229.
''',\r r'irl. rrl ,) lO l.l
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
therefore, like Section 1(2), placed the Filipino woman on the same
level as the Filipino male.uo
The provision, however, is prospective. It does not serve to restore
citizenship already lost by marriage under the old law.
Src. 5. Dur, lI r,pcrANcE oF crrrzlNs rs rNrMrcAL ro rHE
NATIONAL INTEREST AND SHALL BE DEALT WITH BY LAW.
1. Dual citizenship.
Section 5, a new provision, deals with a new concept, dual alle-
giance. But it will be helpful to treat dual citizenship first, a closely
related topic.
Since the universal rule is that the child follows the citizenship of
the father, and since under Section I(2) the child also follows the citi-
zenship of the Filipino mother, and since under Section 4 the Filipino
woman does not lose Philippine citizenship by marriage to an alien hus-
band, it is clear that the Constitution allows for the possibility of dual
citizenship. It is, after all, a condition which arises from the fact that
Philippine law cannot control international law and the laws of other
countries on citizenship.6'
If, however, Philippine citizenship is acquired by naturalization
and not by operation of the Constitution, it is well within the power of
Philippine law to require prior renunciation of foreign nationality as a
condition.6'zLikewise, by Section 3, it is well within the power of thc
legislature to make acquisition of foreign nationality a cause of loss of
Philippine citizenship, provided that the acquisition of a new citizen-
ship is not through marriage.
The 1986 Constitutional Commission preferred to leave the mat-
ter of dual citizenship to ordinary legislation.63
@When Delegate Astilla proposed that a female citizen should lose her citizcnship ulxrrr
marriage to an alien, Delegate Lilia de Lima countered with a proposal that a male citizcn whr
marries an alien should also lose his citizenship. Whereupon, Astilla said: "Mr. President, so I h:rr rl
may not be said that knighthood is no longer in flower in this session hall, I suncndcr to thc wishcs
of the gentle female delegates and I withdraw in the meantime." Session of Novcnrhcr' 21 ,197).
The self-dubbed knight was not heard from again on the same sub.iect.
6rConvention Sessions of November 25 and 27 1972.
, ,
62See
Oh Hek Hew v. Republic,29 SCRA 94 ( 1969).
63IRECORD lq)-191.233.
Sec.5 ART. IV - CITIZENSHIP 649
2. Dual allegiance.
This provision originated from the concern expressed by a num-
ber of Commissioners, notably Commissioners Concepcion and Ople,
about the impact of liberalized naturalization procedures on the policy
on the exploitation of natural resources and on national security.* Ople
distinguished dual allegiance from dual citizenship saying that dual
allegiance "is larger and more threatening than that of mere double
citizenship which is seldom intentional and, perhaps, never insidious.
fDual citizenship] is often a function of the accident of marriage or of
birth on foreign soil." He said that dual allegiance referred to that "un-
settled kind of allegiance of ... [persons] who are already Filipinos but
who, by their acts, may be said to be bound by a second allegiance ei-
ther to Peking or Taiwan." He added that dual allegiance could "siphon
scarce national capital to Taiwan, Singapore, China or Malaysia, and
this is already happening."6'
Ople's formulation, however, as approved by the Commission
merely recognizes the problem and leaves concrete ways of dealing
with it to Congress.
Citizenship, of course, involves allegiance to the country of citi-
zenship. Congress has dealt with dual allegiance by allowing dual citi-
zenship. R.A. No. 9225, entitled "An Act Making the Citizenship of
Philippine Citizens who Acquire Foreign Citzenship Permanent," has
the following key provision:
Sec. 3. Retention of Philippine Citizenship. Any provi-
sion of law to the contrary notwithstanding, natural-born citizen-
-
ship by reason of their naturalization as citizens of a foreign coun-
try are hereby deemed to have re-acquired Philippine citizenship
upon taking the following oath of allegiance to the Republic:
"I , solemnly swear (or affirm) that I
will support and defend the Constitution of the Republic of the Phil-
iBpincs and obey the laws and legal orders promulgated by the duly
constitutcd authorities of the Philippines; and I hereby declare that I
lccognize and accept the supreme authority of the Philippines and will
ruaintain truc taith and allegiance thereto; and that I imposed this obli-
"tltl.;rt )ll I .) 10, I It
o1,7 t(r I
650 THE 1987 CONSTITUTION Sec.5
OF THE REPUBLIC OF THE PHILIPPINES

gation upon myself voluntarily without mental reservation or purpose

of evasion."
Natural-born citizens of the Philippines who, after the effec-
tivity of this Act, become citizens of a foreign country shall retain
their Philippine citizenship upon taking the aforesaid oath.
Anrrcr,B V
Although their civil and political rights are restored, there are re-
sffictions:
SUFFRAGE
Section 5. Civil and Political Rights and Liabilities.
Those who retain or re-acquire Philippine citizenship under this
-
SncrroN L. Surrn,q,cn MAY BE EXERCISED BY ALL cITIzENS oF
Act shall enjoy full civil and political rights and be subject to all rnn Prur,rpprNns Nor orI{ERwISE DISQUALIFIED BY LAwr wlro ARE AT
attendant liabilities and responsibilities under existing laws of the
LEAST EIGHTEEN YEARS OF AGE' AND WIIO SHALL HAVE RESIDED IN
Philippines and the following conditions:
rnsPHrLrpprNEs FoR AT LEAsr oNE YEAR AND IN THE PLACE WITEREIN
(I) Those intending to exercise their right of suffrage must THEY PROPOSE TO VOTE FOR AT LEAST SIX MONTHS IMMEDIATELY
Meet the requirements under Section l, Article V of the Constitu- PRECEDING THE ELECTION. NO LITERACY' PROPERTY' OR OTHER
tion, Republic Act No. 9189, otherwise known as "The Overseas SUBSTANTIVE REQUIREMENT SHALL BE IMPOSED ON THE EXERCISE OF
Absentee Voting Act of 2003" and other existing laws; SUFFRAGE.

(2) Those seeking elective public in the Philippines shall
meet the qualification for holding such public office as required
by the Constitution and existing laws and, at the time of the filing
of the certificate of candidacy, make a personal and sworn renun-
ciation of any and all foreign citizenship before any public officer
authorized to administer an oath;
(3) Those appointed to any public office shall subscribe
and swear to an oath of allegiance to the Republic of the Philip-
pines and its duly constituted authorities prior to their assumption
ofoffice: Provided,That they renounce their oath ofallegiance to
the country where they took that oath;
(4) Those intending to practice their profession in the
Philippines shall apply with the proper authority for a license or
permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any
public office in the Philippines cannot be exercised by, or extended
to, those who:
(a) are candidates for or are occupying any public of-
fice in the country of which they are naturalized citizens;
and/or (b) are in active service as commissioned or non-
commissioned officers in the armed forces of the country
which they are naturalized citizens.
Src. 2. Tsn Concnrss snALL PRovIDE A sYsrEM FoR sEcuRrNG
THE SECRECY AND SANCTITY OF THE BALLOT AS WELL AS A SYSTEM
FoR ABSENTEE vorING BY QUALIFIED Frr-rprNos ABRoAD.
Txp Coxcnnss sHALL ALso DESIGN A PRocEDURE FoR TIrE
DISABLED AND THE ILLITERATES TO VOTE WITIIOUT TI{E ASSISTANCE
oF orHER IERSoNS. UNttt turN, THEY SHALL BE ALL0wED To
vorE UNDER ExrsrING LAws AND sucH RULES As rIrE Couutssrox
ON ELECTIONS MAY PROMULGATE TO PROTECT THE SECRECY OF THE
BALLOT.
1. Suffrage as right and dutY.
The concept of suffrage, traditionally understood as the right to
vote, developed in two parallel and complementary lines in Philippine
law. Along one line, suffrage started as a statutory right, evolved into a
constitutional right, and, in the 1973 Constitution, took the form of an
obligation. The obligation has been removed by the 1987 Constitution.
Along another line, it started as a right belonging only to the male
ilustratb,then it was given to the literate woman, and finally became a
right evcn of the unlettered eighteen year old. Attempts in the 1986 Con-
()5 I
 652 THE 1987 CONSTITUTION Secs. l_2
OF THE REPUBLIC OF THE PHILIPPINES
stitutional Commission, notably by Commissioner Napoleon Rama,r to
disenfranchise the illiterates failed.
Under Spanish rule, the right of suffrage did not exist. The arrival
of the Americans eventually brought about the enfranchisement of a
portion of the Philippine population: the first general elections were
held in 1907. The enfranchisement of the Filipino, however, was merely
by a grant made by the Philippine Legislature and thus subject to the
control of the Legislature. The underlying philosophy of this grant was
stated in People v. corral:"'The modern conception of suffrage is that
voting is a function of government. The right to vote is not a natural
right but it is a right created by law. Suffrage is a privilege granted by
the state to such persons or classes as are most likely to exercise it for
the public good."
With the 1935 Constitution suffrage became a right granted by the
sovereign people to a definite portion of the population possessing cer-
tain qualifications. It became a constitutional right. The right was still
subject to regulation by the legislature but only in accordance with the
terms of the constitution. congress could no longer grant or withhold
the right at will.
The 1973 Constitution added a new legal dimension to suffrage.
Article V, Section 4, imposed the obligation on ..every citizen quali-
fied to vote to register and vote." The imposition of the duty to register
and vote was actually part of the scheme to broaden the electoral mass
base and thereby make democracy more of a reality through increased
popular participation in government. It was thought that the broadening
of the voting base by the lowering of the voting age and the abolition ol'
the literacy requirement could remain merely theoretical unless somc
way were devised for actually bringing the enfranchised citizens to thc
polls.
The opposition to this novel move took on various forms. First,
there were repeated attempts to reject the entire concept of sufliagc
as a duty. These were defeated.' Then followed the defeat of attempts
to narrow the obligation. Defeated was the move to exempt illitcratcs
III RECORD 8-12,27.
,62 Phil. 94-5, 94tt ( t936).
rMirrulcs ol
Mrrrch 2, l()7.2 rrntl Mrrrelr l{. l()71
Secs. 1-2 ART. V _ SUFFRAGE
from the obligation.o There was an attempt to limit the obligation to
voting only and not to registration also: but the proponents argued that
the obligation to register and to vote must go together. The attempt also
failed.'Likewise, the contrary attempt to limit the obligation to voting
alone, leaving registration voluntary, also failed. Hence, the twin du-
ties of registering and voting imposed on all qualified voters were ap-
proved: "It shall be the obligation of all qualified citizens to register as
voters and to cast their votes."
The original t973 draft proposed by the committee on Suffrage
and Electoral Reforms provided for implementation of the obligation
by the commission on Elections. on motion by Delegate Jose E. Su-
arez andon the argument that imposition of sanctions and the creation
of exemptions are more properly legislative functions, the convention
decreed that "sanctions and justifiable causes for failure to comply with
this obligation shall be prescribed by law."6 This did not appeaf explic-
itly in the final 1973 version but it remained implied since the provision
was not self-executory. Examples of justifiable causes given were i11-
ness, natural calamities and other cases of force majeure] The penalty
imposed could be fine.'
During the effectivity of the 1973 constitution, the obligation
to vote was put into a presidential decree making failure to register
and vote without justifiable reason a punishable offense. The decree,
however, was enforced without much conviction and remained largely
a dead letter. The public perception was that attempts by the Marcos
regime to wave the penal law at potential protestors during election
time was, more than anything else, an attempt to cloth farcical elections
with legitimacy and to prevent the use of election boycott from becom-
ing an effective instrument of political protest. But it was precisely the
recognition of electoral boycott as a legitimate form of protest which
motivated the 1986 Constitutional commission to do away with the
constitutional obligation to vote. As the provision now has it, "Suffrage
may be exercised. ..."n
aMinutes of March 8,19'72.
5Minutes of February 29,1972.
"Supra, nole 3.
TMinutes ol' March 2, 1972.
Akl.
',ll Rt('ORl) 15.'l'hc l9?l (\rnstituti0n snitl "Sul'fiilge s/rrl/ he excrcised ..." and further
irrrposctl llrc ohligllion in ils Altie lc V
 TTTE 1987 CONSTITUTION Secs.
OF THE REPUBLIC OF THE PHILIPPINES
2. The broadening of the mass base.
The first Philippine Election Law,Act No. 1582, which took effect
on January 1.5,1907 , provided for a highly elitist and, by the standards
of the seventies, male-chauvinistic electorate. Section 14 of the act read:
Every male person twenty three years of age or over who has
had a legal residence for a period of six months immediately pre-
ceding the election in the municipality in which he exercises the
suffrage, and who is not a citizen or subject of any foreign power,
and who is comprised within one of the following three classes
-
a.
Those who, prior to the thirteenth of August, eigh-
teen hundred and ninety-eight, held the office of municipal cap-
tain, governo^dorcillo, qlcalde, lieutenant, cabeza de barangay,or
member of any ayuntamiento:
b. those who own real property to the value of five hun-
dred pesos, or who annually pay thirty pesos or more of the es-
tablished taxes;
c. those, who speak, read, and write English or Spanish,
shall be entitled to vote at all elections: PROVIDED, That officers,
soldiers, sailors, or mariners of the Army or Navy of the United
States shall not be considered as having acquired legal residence
within the meaning of this section by reason of their having been
stationed in the municipalities for the required six months.
These requirements remained undisturbed until the 1935 Consti-
tutional Convention. Here, the debates primarily centered on women's
suffrage and on suffrage as a duty.'o The Convention finally approved
and the people ratified the following provision which became Article V
Section 1:
Suffrage may be exercised by male citizens of the Philip-
pines not otherwise disqualified by law, who are twenty-one years
of age or over and are able to read and write, and who shall have
resided in the Philippines for one year and in the municipality
wherein they propose to vote at least six months preceding the
election. The National Assembly shall extend the right of suffrage
to women, if in a plebiscite which shqll be held for that purpose
within nrto years after the adoption of this Constitution, not less
rol
AntrRco 215-228 ( 1936).
l-2 Secs. 1-2 ART. V - SUFFRAGE 6s5
than three hundred thousand women possessing the necessary
qualifications shali vote ffirmatively on the question.tl
The plebiscite was held on April 30, 1937, pursuant to Common-
wealth Act No. 34, and more than three hundred thousand women voted
for woman suffrage.'2
The debates at the 1971 Constitutional Convention centered
around three issues: (1) the lowering of the voting age from 21 to 18;
(2) The removal of the literacy requirement; (3) the legalization of ab-
sentee voting. Section 1 of Report No. 03 of the Committee on Suffrage
and Electoral Reforms read in part thus:
Suffrage shall be ... exercised by citizens ofthe Philippines
not otherwise disqualified by law, who are eighteen years of age
or over and who shall have resided in the Philippines for one year
and in the municipality wherein they propose to vote for at least
six months preceding the election. No literacy, property or other
substantive requirement shall be imposed on the exercise of suf-
frage. . . Registered voters within the Philippines but temporarily
absent from their voting residence and qualified voters temporarily
abroad shall exercise suffrage in the election ofnational officials in
accordance with procedures to be determined by the Commission
on Elections.
The 1971 Convention approved the lowering of the voting age
from twenty-one to eighteen and removed the literacy requirement, but
it retained the other qualifications. The final provision read, in part:
"Suffrage ... shall be exercised by citizens of the Philippines not oth-
erwise disqualified by law, who are eighteen years of age or over and
who shall have resided in the Philippines for at least one year and in the
place wherein they propose to vote for at least six months preceding the
election. No literacy, property or other substantive requirement shall be
imposed on the exercise of suffrage ..."
Thus, suffrage, both as a right and as a duty, was given to those
who possessed the following qualifications: (1) Philippine citizenship;
(2) age of eighteen years or over; (3) residence in the Philippines for at
||
Undcrscoring ucldcd.
(lode, C.A. No. 357 (1938)' thc Revised
'r'l'hc ncw luw wus inc<x'poratctl in thc Elcction
l'llcctiorr (ixlc. R.A. No. lttO ( l()47). ttxl llK' l()71 I'llcction (ixle' R.A. No.63lttl.
 THE 1987 CONSTITUTION Secs. l-2
OFTHE REPUBLIC OFTHE PHILIPPINES
least one year preceding the election; (4) residence in the place wherein
they propose to vote for at least six months preceding the election; (5)
freedom from any disqualification prescribed by law. The 1987 Con-
stitution has retained these qualifications and has added a provision for
absentee voting.
3. Citizenshipqualification.
Suffrage as an attribute of citizenship dates back to the Anglo-
American origins of Philippine political law. The classic 1703 case of
Ashby v. White', said: "The right of voting is a thing of the highest im-
portance, and so greataprivilege that it is a great injury to deprive the
plaintiffof it. ... It is denying him his English right. ... It is agreat
privilege to choose such persons, as are to bind a man's life and prop-
erty by the laws they make."
The Philippine constitutional provision, however, is not just an
assertion of a citizen's right to vote; it is primarily an exclusion of non-
citizens from suffrage. Aliens are denied participation in government.
Citizenship is made the essential foundation of the right of suffrage.
4. Age qualification.
To be a qualified voter, one must be eighteen years of age. When
is a person eighteen years of age? By the civil law method of reckoning,
one is eighteen on one's eighteenth birthday.'o
The lowering of the voting age in the 1973 Constitution from
twenty-one to eighteen was the result of the joint effort of four com-
mittees: the Committees on Suffrage and Electoral Reforms, on Youth,
on Civil and Political Rights, and on Plebiscite and Ratification.,5 The
arguments presented in support of the proposal were an admixture
drawn from political sociology and psychology. Speaking on the prime
object of the proposal, the broadening of the electoral base, Delegate
Magtanggol Gunigundo said:
r32 Ld. Raym.938 (1703).
raThe common law rule is that one is eighteen
on the day before the eighteenth anniversary
of his birth. See I 8 AM. JUR., Elections, Sec. 53.
r5The Committee on Plebiscite and Ratification played
a role becausc of thc plan to proJxlsc
theamendmentforratificationintheelectionsof Novcrnber l97l inonlertocnuhlcthcyrxrngto
participate in the ratification of thc cntire (ixrstitution.'l'hc Jricccrlcal proJxrsll lirr rttilicltiorr,
however, was declarcd uttconstilutional in'lbltntimr y. (\nnnissittrt tn lilu'titnn,4l S('RA 702
(197r).
ART. V SUFFRAGE 657
Secs. 1-2 -
From the latest statistics available from the Bureau of
Census and Statistics appear that the Philippines has a
it would
population, as of May 197 O, of 36,684 A86. Of the said population,
only 6,682,965 constitute the voting population of this country,
equivalent to roughly 18.21 per cent of the total population. What
is the significance of these figures? It means that we are entrust-
ing the political fate and destiny of this nation of 36,684'486 into
the hands of 6,682,965. For the purpose, therefore, Your Honor,
of widening the political base of democracy, we submit that we
should lower the voting age.'6
For a touch of psychology, Delegate Raul Manglapus read the
conclusion of a paper from the National Coordinating Center for the
Study and Development of Filipino Children and Youth. The report was
entitled "A Brief Report on the Political Maturity of Filipino Youth,
Ages 18 to 21 Years." It read in part:
The urban Filipino youths of 18 to 2l yeats did not differ in
their political maturity. The 18, 19, and 20 years old were just as
politically mature as the 21 years old Filipino youth.
Now, with regard to the rural youth, at 18 to 21 years the
rural Filipino youth, those living in the towns and in the barrios,
did not differ at all in their political maturity. Those who were 18
to 20 years were just as mature politically as those who were 2l
years of age.r7
These psychological findings, Delegate Gunigundo pointed out,
found confirmation in important aspects of Philippine law:
Eighteen year-olds can make a will, can be issued a driver's
license, can be emancipated by concession, can marry ... Eighteen
year-olds can be required to kill and be killed in war; they are
required to pay taxes, to file income tax returns. If under our law
we have entrusted these substantial rights and obligations to 18
year-olds, by what logic, under what tender [?] shall we deny these
eighteen year-olds the right to participate in the decision making
processes of our government, which affect not only our lives and
liberties, but more so the lives and liberties of the 18 year-olds.'8
lnscssion ol Scplcmbcr 22, l9'l I
r ld.
trll.

658 Tm 198TCONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The overwhelming vote of the Convention was in favor of the
lowering of the voting age to eighteen. The right to vote begins, as
pointed out above, on a citizen's eighteenth birthday. The right to reg-
ister as a voter, however, exists even before one's eighteenth birthday,
provided one will be eighteen on the day of voting.'e
5. Residencequalification.
The Constitution requires residence "in the Philippines for at least
one year and in the place wherein they propose to vote for at least six
months immediately preceding the election"'
The key concept in the provisionis residence.What does it mean?
The meaning of the word was established even prior to the 1935 Con-
stitution as perrnanent residence or domicile.'z0 This was the meaning
adopted by the 1935 Constitution.2r Gallego v.Verraz2 elaborated on the
concept thus:
The only question presented is whether or not Pedro Gallego
had been a resident ofAbuyog for at least one yeil prior to De-
cember 10, 1940. The question may be approached from either of
two angles: Did he lose his domicile in Abuyog by the mere fact
that he worked in Malaybalay as a government employee, regis-
tered himself as a voter and voted there in the election for assem-
blymen in December, 1938, and secured his residence certificate
there for the year 1940; and assuming that he did' had he reac-
quired his domicile of origin at least one year prior to his election
as mayor of Abuyog on December 10, 1940?
The term "residence" as used in the election law is syn-
onymous with "domicile," which imports not only intention to re-
side in a fixed place but also personal presence in that place, cou-
pled with conduct indicative of such intention.23 In order to acquire
a domicile by choice, there must concur (1) residence or bodily
presence in the new locality, (2) an intention to remain there, and
reSec. 100, l97l Election Code.
*,The term ;residence'as so used is synonymous with 'domicile' which imports not only
intention to reside in a fixed place, but also personal presence in that place, coupled with conduct
indicative of such intention." Nuval v. Guray,52 Phil.645,65l (1928), quoting People v. Bender,
l/t4 N.Y. S. 145.
,rvl CoNSTITUTIONAL CONVENTION RECORD 537 ( 1934); I Anurrco 226 ( 1936).
227
3 Phil. 453,455-6 ( I 94 I ).
2lNuval v. CiurtY,52 Phil. (r45.
Secs. l-2 ART. V - SI]FFRAGE 659
Secs' l-2
(3) an intention to abandon the old domicile. In other words, there
must be an animus non revertendi and an animus manendi'Tlte
purpose to remain in or at the domicile of choice must be for an
indefinite period of time. The acts of the person must conform with
his purpose. The change of residence must be voluntary; the resi-
dence at the place chosen for the domicile must be actual; and to
the fact of residence there must be added the animus manendi.2a
In the light of these principles, we are persuaded that the
facts of this case weigh heavily against the theory that the peti-
tioner had lost his residence or domicile in Abuyog.
Again in Faypon v. Quirino ?'the Court said:
A citizen may leave the place of his birth to look for "green-
er pastures," as the saying goes, to improve his lot, and that, of
course, includes study in other places, practice of his avocation, or
engaging in business. When an election is to be held, the citizen
who left his birthplace to improve his lot may desire to return to
his native town to cast his ballot but for professional or business
reasons, or for any other reason, he may not absent himself from
the place ofhis professional or business activities; so there he reg-
isters as voter as he has the qualifications to be one and is not
willing to give up or lose the opportunity to choose the officials
who are to run the government especially in national elections.
Despite such registration, the animus revertendi to his home, to his
domicile or residence of origin, has not forsaken him. This may
be the explanation why the registration of a voter in a place other
than his residence of origin has not been deemed sufficient to con-
stitute abandonment or loss of such residence. It finds justification
in the natural desire and longing of every person to return to the
place of his birth. This strong feeling of attachment to the place of
one's birth must be overcome by positive proof of abandonment
for another.26
There is thus the strong presumption that one's domicile of origin
remains his voting domicile until clearly abandoned for another.
The manifest intent of the law in imposing a residence qualifi-
cation is "to exclude a stranger and a newcomer, unacquainted with
r''17 Am. Jur., Scction 16, pp.599-6{)1.
rltXr I'hil. 294,299'3(X) ( 1954).
rn{}.'l'rursceo v. Artc(.hc,57 l,hil.227 ( l()}2) trrtl Nuval v. Guray,52 Phil.(}45 (l92tt).
 Secs.
THE 1987 CONSTITT.ITION
OF THE REPUBLIC OF THE PHILIPPINES
the conditions and needs of the community and not identified with the
latter."2'One who votes in a national election must be acquainted with
the conditions and needs of the nation, and one who votes in a local
election must be acquainted with the conditions and needs of the local-
ity.
It should be noted that the 1935 Constitution did not make a dis-
tinction between the residence qualification for local elections and
the residence qualification for national elections' The text simply re-
quired residence "in the Philippines for one year and in the municipal'
lry wherein they propose to vote for at least six months preceding the
election." Under such a text, must one domiciled in the Philippines be
also domiciled in the municipality where he wishes to vote in order to
be qualified to vote in a national election? Faypon v- Quirino2s seems to
suggest that one could register as a voter away from his municipal do-
micile of origin "as he has the qualifications to be one and is not willing
to give up or lose the opportunity to choose the officials who are to run
the government especially in national elections." The 1973 and 1987
texts can also be read as Faypon read the 1935 text.
What this all comes down to therefore is that the residence quali-
fication for purposes of suffrage has two sets of meaning. In the phrase
"shall have resided in the Philippines for at least one year," residence
means domicile. A Filipino citizen who is domiciled in the United
States, for instance, who stays in the Philippines for one year but does
not abandon his United States domicile is not qualified to vote in Phil-
ippine elections. But in the phrase "shall have resided in ... the place
wherein they propose to vote for at least six months," residence means
either domicile or temporary residence of at least six months. Thus,
one domiciled in a municipality in Camarines Sur but is assigned by
his company to Quezon City has a choice of either voting in Camarines
Sur or in Quezon City if he has been "residing" in Quezon City for at
least six months. This certainly is the doctrine that can be dawn from
Faypon. Faypon makes no suggestion at all that his registration away
from his domicile was invalid.
It should be pointed out that the cases discussed above and other
cases interpreting the residence requirement in election laws deal with
2TCallego v. Verra, 73 Phil. 453, 459 ( I 94 I )
rt,Su7rrc, notc 25.
l-2 Secs. 1-2 ART.V _ SUFFRAGE
residence as a qualification for candidacy and as a qualification for vot-
ing. The reasons underlying the residence requirement for both purpos-
es are identical, namely the need for familiarity with the contemporary
conditions and needs of the locality. This same meaning was also ac-
cepted by the 1986 Constitutional Commission.2e Thus, it was applied to
the case of Philip Romualdez when he returned from the United States
where he had sought asylum after the EDSA Revolution and attempted
to register as a voter in Tolosa, Leyte. His residence in Tolosa, Leyte,
established in the early 1980's, was recognized as never having been
abandoned in the absence of evidence to the contrary.30
6. Absentee voting.
The residence requirement of previous constitutions was formu-
lated prior to what Commissioner Ople described as "the Filipino labor
force explosion overseas." Ople pointed to government data reporting
some 600000 contract workers and employees overseas effectively de-
prived of the right of suffrage by the Constitution's residence require-
ment.3r This phenomenon occasioned the proposal by Commissioner
Regalado of a provision which read: "The National Assembly shall pre-
scribe a system which will enable qualified citizens temporarily absent
from the Philippines or place where they are registered to cast their
votes."'2 This eventually evolved into the present first paragraph of Sec-
tion 2 which reads: "The Congress shall provide ... a system for absen-
tee voting by qualified Filipinos abroad."
The details of the mechanics for absentee voting have been left
to Congress. But one question posed by the provision is whether it au-
thorizes Congress to allow absentee voting for those who are absent
from the place where they are validly registered but are within the
Philippines. It will be noted that the original proposal was to liberal-
ize residence requirements for "citizens temporarily absent from the
Philippines or the place where they are registered to cast their votes."
Explaining his proposal, Regalado said: "I am referring to overseas Fili-
pinos and to those who, at the time of the election, may not be in the
Nil RI.]('ORl) r I- 12.
'('Rornuuldcz v. Rcgirnal 'I'rial Clourt.226 SCRA 408,415 ( 1993)
'ril Rl('()lil) ll.
\)
ll . tt .12.
 THE 1987 CONSTITUTION Secs.
OF THE REPUBLIC OF THE PHILIPPINES
place where they are registered. Regalado was evidently referring to
two sets of absentees: those absent from the country and those remain-
ing in the country but absent from their voting places. Has Regalado's
meaning been preserved in the shorter formula "absentee voting by Fili-
pinos abroad?"
An affirmative answer to the question is given by the floor ex-
change between Commissioners Regalado and Monsod:
MR. REGALADO. Before I act on [the Monsod et al.
amendmentl, may I inquire from Commissioner Monsod if the
term 'oabsentee voting" also includes transient voting; meaning,
those who are, let us say, studying in Manila need not go back to
their places of registration, for instance, in Mindanao to cast their
votes.
MR. MONSOD.I think our provision is for absentee voting
by Filipinos abroad.
MR. REGALADO. How about those people who cannot go
back to the places where they are registered?
MR. MONSOD. Under the Election Code, there are pro-
visions for allowing students and military people who are tem-
porarily in another place to register and vote. I believe that those
situations can be covered by the Omnibus Election Code. The rea-
son we want absentee voting to be in the Constitution as a man-
date to the legislature is that there could be inconsistency on the
residence rule if it is just a question of legislation by Congress. So,
by allowing it and saying that this is possible, then legislation can
take care of the rest.
THE PRESIDENT.Is that accepted?
MR. REGALADO. Since it covers the purpose of the amend-
ment, I accept the amendment to my amendments. This capsulizes
my amendment and shortens what is expressed in my amendment.
[My] amendment . . .. states: "The NATIONALASSEMBLY
shall PRESCRIBE a system WHICH WILL ENABLE QUALI-
FIED CITIZENS TEMPORARILYABSENT FROM THE PHIL-
IPPINES OR THE PLACE WHERE THEY ARE REGISTERED
TO CASTTHEIR VOTES. ...''
l-2 l-2 ART. V SUFFRAGE
Secs. -
Since Commissioner Monsod says that is already consid-
ered as the correct interpretation in his amendment to my proposed
amendment with respect to "absentee voting," I will accept the
amendment to my amendment.
THE PRESIDENT. What does the Committee say?
FR. BERNAS. Is there no distinction between national and
local elections? Do we leave that to the legislature?
MR. MONSOD. Yes, we leave it to the legislature.
FR. BERNAS. Since this is a very novel thing in our system
and since the Committee has not had the opportunity to discuss
this matter, I would leave it to the body rather than simply accept
it.
The Commission voted to accept it with no dissent.33 Thus, ab-
sentee voting applies to persons who have all the qualifications of a
voter but who happen to be temporarily abroad, and to qualified voters
who are in the Philippines but are temporarily absent from their voting
places. This meaning of absentee voting, aside from being reflected in
the Commission deliberations, can also be justified by taking a liberal
attitude to residence requirements in order to fulfill the constitutional
intent to broaden the mass electoral base. The details for carrying out
absentee voting, such as designating the type of domestic absences
which justify absentee voting and prescribing a system of registration
for absentee voters, are left to ordinary legislation.3o
What has legislation done? R.A. No. 9189 now allows citizens
residing abroad to vote even if they are recognized as immigrants by the
country of their residence. But they are required to file an affidavit "pre-
pared for the purpose by the Commission [on Elections] declaring that
he/she shall resume actual physical permanent residence in the Philip-
pines not later than three (3) years from approval of his/her registration
under this Act."
The affidavit is meant to be a statement the he or she never intend-
ed to abandon his or her domicile in the Philippines. If no affidavit is
"/r/. tt l.l'5.
r'lrl ut .14 l(r
664 THE 1987 CONSTITUTION Secs. L| Secs. 1-2
ART. V
OFTHE REPUBLIC OFTHE PHILIPPINES - SUFFRAGE

filed, the person is deemed disqualified. But if after filing such affidrvit Under the colonial rule of
the person does not reestablish physical residence within three ycurl, section 14 of Act No. 15g2 (19O7),
foreign language test was required a
the person is likewise disqualified. for suffrage: to be qualified
one had ro have a sneafn-g,,""di";;;; to vote
or Spanish'
*.i,lng knowledge of English
Section lof Article V
prescribes residency requirement as a gcn Articre v of the rqgs Eonriitution
a""otoniarized the ruIe
eral eligibility factor for the right to vote. On the other hand, Sectiorr J merely a minimal li,";;;;;ification,
authorizes Congress to devise a system wherein an absentee may vole, llolnl,':l"* the ability to read
implying, the Court said, that a non-resident may, as an exception lo The 1973 Constitution endrely
the residency prescription in the Section 1, be allowed to vote.'l'he abolished the riteracy requirement.
The reason for the change
Court noted there is no provision in the dual citizenship law was expressed in the Explanatory
No. 9225
- R.A
requiring "duals" to actually establish residence and physi
Resolution No' 03 0f the committee
on suHug" and Electoral
Note of
-
cally stay in the Philippines first before they can exercise their right to
Reforms:
In keeping with.the trend for
the broadening of the electoral
vote. On the contrary, R.A. No. 9225,in implicit acknowledgment llrnl base already begun withrh" ro*"ri"f#it" uoting
"duals" are most likely non-residents, grants under its Section 5( I ) tlrr in keeping furrher with the age to tg and
alienation and exclusion of "o.','-i-,.&;;;sire ro discontinue the
same right of suffrage as that granted an absentee voter under R.A. No. miffions of
system and from participation from the political
9189. The Court added that it cannot be overemphasized that R.A. No, "iiir"n,
in the political
the requirement of literacl life in the country.
9189 aims, in essence, to enfranchise as much as possible all ovcrsc.rrrr tr o."n eriminated. It is
Filipinos who, save for the residency requirements exacted of an urtll-
nored rhat rhere are very ""ii"jiu,
few countriei f"iiin ,fr" world
eracy remains a condition where lit_
nary voter under ordinary conditions, are qualified to vote.35 This rule lr for voting. There is no Southeast
country rhat imposes this requirem"it. Asian
reiterated inVelasco v. COMELEC36 but with the reminder that it applier Court only a few month, ujo
fn. Unit"a Sr"* i"i.#
only to national elections. a""f*Juiconstitutional any state
law that would continu" ro
i'_por" ,rrir*.Jqur.rnent for voting.
The Court seems to have recognized a novel way of anrcnrlirtg Although there were more resolutions
the Constitution, that is, by silence! Because the new citizens ulrtler submitted
proposing
the increase ofeducational,"qui."_"ni, io.
R.A. No. 9225 are not specifically required to establish residencc irr llto uorrng than those ad_
vocating the elimination
of the lit.ru.f ,iqulrement, the
Philippines, the conclusion is drawn that residence is not requilctl.'lir tee felt that favoring.the commit_
elimination of ,h.'..quirement
bolster the conclusion the Court assimilates the new citizens to ahscrrlec more in keeping with its objective would be
una tnui or the constitutional
voters under R.A. No.9189. Convention encouraging.poputar
privileges and rights oi tt. ili;;;;" and equalizing rhe
p.opr". ilil;';: noted that a, those
7. Prohibited qualifications: Literacy test. who testified before the committee
ra**in" erimination of the
literacy requiremenr. Ir musr
It is a generally accepted rule that a constitutional enunrcrlliolr rtf sented all levels of society,
b" il;l;; th"r" ,"itn"rres repre_
the classes of citizens who shall enjoy suffrage is final and cxcluslv$ Montemayor, presidenr of the
namely, tuUo. t"J"r, such as Jeremias
of all other classes. Congress can neither add to nor subtracl lionr lltr Feierati; ;f;r"" Farmers, Ramon
Jabar, Vice president of
rhe Federati;;-;;;;"
qualifications prescribed by the Constitution." The PhiIippinc (irrrslIItt liciano Belmonte, president Workers, Amy. Fe_
of tf," fraunifu iur"""r,
Fr. Tantoco,
tion makes this rule explicit when it says: "No litcracy, pn)pcrly ol olher representing the Knights
of Columbus, Vtiss Cnarito planas,
substantive requirement shall be imposed on the cxcrcisc ol sul.li'rrgr, CNEA, Mrs. Charo Moran ana of the
Uta]ose Mr. Luis
Alcuaz, of the youth organization "riOrO*,
KASApiand finally none other
than fbrmer Sccrerarv olEducation
irdv.c.rctt
;;6;.;"rpuz
who strongly
rsNicolas-Lewis v. rhc ctirninlri.rr .l rhe ;i";;;;;;..menr
COMlll.li(', (i.R. No. l(127.5(), Augrrst 4, 2(XXr srressing rhe
]"C.R. No. luck ol'rrrclnirrglirl rclirtionship be twcr:i
I I, I )ct crlhcr,l.l. .)O( )t'1.
tl(X)5
'/lll Arrr..lrr'. "lilcttiorrs." Scr' 5l tltc c.:rp:rcil.y lirr. irrlclligcrrt
volirrg. "f"lri"n,ury ctlucation and

666 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
According to the Bureau of Census and Statistics, the pro_
jection for the population of the philippines over lg years old for
1970 is 17,659,000. Of this, 12,384,000 are considered literates.
However, the same Bureau admitted that there is no real scientific
literacy test in counting literates. All that is done is to ask each
member of the Population the question whether he is able to read
and write and to take his answer at its face value.
These circumstances plus the well-known practice in all
elections in which political leaders spend their time in the bar-
rios showing the prospective voters how to write the name of
the candidates instead of explaining the political issues to them,
strengthened the conviction of the committee that the present lit_
eracy requirement is more of a joke, and, worse, a deterrent to
intelligent discussions of the issues. Finally. the committee took
note of the convincing argument that the requirement to read and
write was written into our constitution at a time when the only
medium of information was the printed word and even the public
meetings were not as large and successful because of the absence
of amplifying equipment. It is a fact that roday the vast majority
of the population learn about national matters much more from
the audio-visual media, namely, radio and television, and public
meetings have become much more effective since the advent of
amplifying equipmenr.
With the abolition of the literacy requirement, the Convention
was faced with the practical problem of implementation. As a first step
towards coping with the problem and in order to face up with the pos-
sibility that the non-literates might demand immediate enfrdnchisement
even before a feasible system could be devised, Delegates Mercedes Te-
odoro and Margarito Teves proposed the following proviso: "provided
that the right to vote of those unable to read and write shall be exercised
upon certification by the commission on Elections that it had devised
a workable system for this purpose." The proposal was accepted by the
sponsoring committee. Although the sponsoring committee had already
presented a sample ballot, it was felt that an affirmative act by the com-
mission on Elections was needed to certify the existence of a system
that would include all the different stages of the electoral process.,. A
further amendment by Delegate Jose R. Nuguid suppried the standanl
rsMinulcs ol M;rrclr
.1. l()72
V 667
Secs. l_2 Secs. 1-2 ART.
- SUFFRAGE
tobefollowedbytheCommissiononElections:to..Securethesecrecy
and sanctity of the vote."3n
Another step towards coping with the problem of implementa-
T. Molina and
tion was the amendment propoied by Delegates Manuel
i'Thut the right to vote of those unable to
Emilio Macias which ."udr
immediately
read and write shall be exercised on the second election
as originally
following the ratification of this constitution. . . ."oo Hence,
proviso rea!: "Provided that the right to
upp.ou"J on third reading, the
be exercised on the second
utt" of those unable to read and write shall
election immediately following the ratification of this
Constitution' and
providedfurtherthatthereisacertificationbytheCommissiononElec-
purpose which will
iions that it has devised a workable system for this
proviso' however' did
secure the secrecy and sanctity of the vote'" This
not appear in the final 1973 text'
S.Votingbyilliteratesanddisabledinthel.gSTConstitu.
tion.
Inthelg36ConstitutionalCommission,theprincipaladvocatefor
Napoleon Rama'4'
restoring the literacy requirement was Commissioner
needed was not
He arguld that for a strong electoral system what was
numbersbuttheintelligenceofvoters.Headdedthattherewasastrong
correlation between uultity to read and write and the
ability to make
judgment on electoral issues. Moreover, he pointed to the experience
lna"r the 1973 Constitution which indicated that the illiterates were
used for the per-
exploited by unscrupulous politicians. Illiterates were
phrase "to
peiratio' oi various types of election fraud thus making the
*io"n the political base" nothing more than "a sonorous incantation of
principles that are not in touch with reality'".'
G,Manglapus,MinutesofMarch8'lg,l2.De1egateFranciscoSumulongpro-
posed:.'Congres,,bym"an.ofanenablingact,shallcertifythattheCommissiononElectionshas
opposed the amendment onthe ground
devised a workable system for this purpol'" Manglapus
ir would allow legislative interference with a conventio; decision. He added that decisions of
that
the coMEt_ECt *.r" upp"ototi. to the Supreme
Courr. (Minutes of March 8,1972) Did Mangla-
by the COMELEC was. also.subject to judicial review?
Another state-
f u.s imply that ccrtificaii.n
un M"r.'h 1. lg.lz,also carried the implication that cOMELEC
certifications
rrrcnt .1. M.nglalrur,
wottltl bc strbicct to.iutliciirl rcvicw'
'r"Apptovctl tttt Mitrch '1 ,1912
l0'
'rll Rli('()l{l)tt ll,l(' l7'27
1:ltl. il t)
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The Commission's answer, articulated by several Commission-
ers, notably Nolledo, Monsod, Bennagen, Tan, and Tadeo, reiterated
the argument that reading and writing were lrot the only vehicles for
acquiring information, and that so precious a right as suffrage should
not be held back from those who are so unfortunate as to be unable to
read and write.o' commissioner Bernas summed up the position of the
Committee thus:44
First of all, intelligence is not measured by the ability to read
and write, and the capacity to be informed is not necessarily lim-
ited by lack of ability to read and write.
If we look
at ... the communication situation in the philip-
pines now, the means of communication that has the farthest reach
is AM radio. People get their information not from reading news-
papers but from AM radio farmers while plowing, and vendors
while selling things listen -to the radio. Without knowing how to
read and write, they are adequately informed about many things
happening in the country.
Second, illiteracy shows government neglect of education,
and if
we disenfranchise the illiterates, it will only aggravate the
situation of the illiterates because their voices will not be heard
then.
The representative quality of a government is determined by
the voting base. ... Therefore, as many as possible should be al-
lowed to choose their representatives so that those who profess to
be representatives can say that "yes, we are representing even the
illiterates" because they have been chosen by the illiterates.
I am very disturbed very disturbed
dency of narrowing the mass - base. I think it is- a by the elitist ten-
retrogressive act,
and it will do a disservice to the efforts of the nation to promote
social justice and to uplift the condition of the masses. . . .
9, Secrecy and sanctity of the ballot.
One major concern of those who sought to disenfranchise illiter-
ates was the experience under the L973 constitution when illiterates
were seen as easy prey to politicians who would not hesitate to manipu-
alld. at9-10,14,19-21
aaltl. trt 16.
Secs. 1-2 ART.V SUFFRAGE 669
Secs. 1-2 -
late the votes of those who could neither read nor write.45 Manipula-
tion usually took place through the instrumentality of those who were
allowed to help the illiterate voter in the polling booth. As Commis-
sioner Rama pointed out, "it has been the largest fact of life here that the
manner of voting by the illiterate through an assistor is one of the main
sources of cheating. It also violates the first requirement of a demo-
cratic voting which is secrecy of the ballot."o6 The Committee proposed
to prevent such manipulation by a command to Congress to "design a
procedure for the disabled and illiterates to vote without the assistance
of other persons."
the constitutional provision had stopped with the above clause,
If
the effect could have been to disenfranchise the disabled and the illiter-
ates until Congress could devise a proper mechanism. Thus, in order
not to deprive the disabled and the illiterate of the right of suffrage even
during that period of waiting for an implementing statute, the last sen-
tence of Section 2 was added: "Until then, they shall be allowed to vote
under existing laws and such rules as the Commission on Elections may
promulgate to protect the secrecy of the ballot.""
10. Prohibited qualifications: property.
The requirement of property qualification for voting is not a
stranger to Philippine law. Following the practice of many American
states, Act No. 1582 (1907), Section 14, prescribed that to qualify as a
voter one had to own real property to the value of five hundred pesos
or annually pay thirty pesos or more of the established taxes. Under
American law, property qualification, when not specifically prohibited
by constitutional provision, was not considered unconstitutional'48
Philippine property qualification as a requisite for suffrage disap-
peared upon the approval of the 1935 Constitution. It can also be said
that under present Philippine constitutional doctrine on republicanism
and social justice any property qualification for the exercise of civil or
political rights would be unconstitutional. This much can be gathered
from the decision of the Supreme Court in Maquera v. Borra when it
said that:
a'1,.g., Rama, irl. at 9-10.
a"/r/. tt 30.
4tld.f0 12.
{i I ll Arrr. .lur. "lilcctirxrs," Scc. 70.
670 THE 1987 CONSTITUTION Secs.
OFTHE REPUBLIC OFTHE PHILIPPINES
[p]roperty qualifications are inconsistent with the nature and es-
sence of the Republican system ordained in our constitution and
the principle of social justice underlying the same, for said politi-
cal system is premised upon the tenet that sovereignty resides in
the people and all government authority emanates from them, and
this, in turn, implies necessarily that the right to vote and to be
voted for shall not be dependent upon the wealth of the individual
concerned, whereas social justice presupposes equal opportunity
for all, rich and poor alike, and that, accordingly, no person shall,
by reason of poverty, be denied the chance to be elected to public
office.ae
11. Prohibited qualifications: other substantive require'
ments.
American law and jurisprudence are replete with examples of sub-
stantive qualifications which, at one time or other, were required for the
exercise of suffrage. Aside from citizenship, age, and residence, various
laws have imposed qualifications based on varying degrees of literacy,
on ownership of real estate, on payment of tax, and on sex, race or
color.5. By express provision of the Constitution, the legislature is now
forever banned from imposing any substantive qualification similar in
nature to literacy or ownership of property.
What is prohibited by the Constitution, it should be noted, is the
imposition of additional substantive requirements. These are to be dis-
tinguished fromproceduralrcquirements in the nature of implementing
regulations designed to ensure the purity of the electoral process. Thus,
while it has always been recognized that registration of voters may be
imposed as a pre-condition for the exercise of suffrage, one who pos-
sesses all the qualifications and none of the disqualifications provided
by law is considered a qualified voter even if he is not registered.5l Reg-
istration is merely a process whereby qualifications are verified.
The first case to arise under the provision, which was first in-
troduced by the 1973 Constitution, was Ceniza v. COMELECS2 where
petitioners claimed that to prohibit voters in a highly urbanized city
4115
SCRA 7,9 (1965).
e18 Am Jur. Elections, Sections 49-77.
5rYra v. Abano. 52 Phil. 380, 383. ( 1928)
tx)5 SCRA'161,7'12 (Jtnuirry 2ll, l9tt0).
l-2 Secs. l-2 ART. V SUFFRAGE
- 671
from voting for elective provincial officials would impose an additional
substantial requirement on the right of suffrage and would thus violate
the constitutional prohibition.In rejecting the contention, the court said
that the prohibition contemplated in the constitution had reference to
such requirements as the already invalidated virginia poll tax or the
similarly invalidated New York requirement that to be eligible to vote
in a school district one must be a parent of a child enrolled in a local
public school, "which impose burdens on the right of suffrage without
achieving permissible estate [sic] objectives." Here, however, the resi-
dents of the city had full suffrage rights in the city of their residence.
Their exclusion from suffrage in provincial elections was based on the
provision of Article xl (1973) which placed highly urbanized cities, as
distinct from component cities, outside the jurisdiction of the govern-
ment of provinces.
12. Disqualifications: forfeiture of the right.
The prescribed qualifications must likewise be distinguished from
the disqualifications which the legislature might prescribe. The consti-
tution says that suffrage may be exercised by citizens "not otherwise dis-
qualified by law." while the enumeration of the qualifications is made
exclusive by the constitution itself, the legislature is at the same time
given the power to prescribe disqualifications. Clearly, therefore, the
disqualifications should not be in the form of additional qualifications.
In other words, the nature of disqualifications must be distinguishable
from qualifications. What then is the nature of disqualifications?
Disqualifications must be understood as grounds for the forfeiture
of the right of suffrage. Suffrage, like any other civil or political right,
or even like citizenship itself, may be lost. Thus, under Section 15 of
Act No. 1582 (1907) one could be disqualified through delinquency
in the payment of taxes, through sentence of deprivation by a court of
competent jurisdiction, and through various acts of disloyalty to the
United States. secrion 94 of c.A. No. 357 (193s) and Section 99 of
R.A. No. 180 (1947) prescribed idenrical disqualifications:
The following persons shall not be qualified to vote:
a. Any person who has been sentenced by finaljudgment
to suffer one year or morc of imprisonment, such disability not
Iurving bccn rclnovcd by plcnlry pardon;
 THE 1987 CONSTITUTION
Secs.
OF THE REPUBLIC OF THE PHILIPPINES
b. Any person who has been declared by finaljudgment
guilty of any crime against property;
c. Any person who has violated his allegiance to the
Republic of the Philippines;
d. Insane, or feeble-minded persons;
e. Persons who can not prepare their ballots themselves.
These were amended to conform to the 1973 Constitution by Sec-
tion 75 of the 1978 Election Code, P.D . 1296, and subsequently by B.P.
Blg. 881 to read:
The following shall be disqualified from voting:
f. Any person who hasbeen sentencedby finaljudgment
to suffer imprisonment of not less than one year, such disability
not having been removed by plenary pardon: Provided, however,
That any person disqualified to vote under this paragraph shall au-
tomatically reacquire the right to vote upon expiration of flve years
after service of sentence;
g. Any person who has been adjudged by finaljudgment
by competent court or tribunal of having committed any crime
involving disloyalty to the duly constituted government, such as
rebellion, sedition, violation of the anti-subversion and firearms
laws, or any crime against national security, unless restored to his
full civil and political rights in accordance with law: Provided,
That he shall regain his right to vote automatically upon expiration
of five years after service of sentence.
h. Insane or incompetent persons as declared by compe-
tent authority.
Finally, it is perhaps significant as reflecting the trend toward di-
vorcing suffrage from the right of property that the l97l Election Code
eliminated the disqualification of "any person who has been declared by
final judgment guilty of any crime against property."
The rationale for the disqualification of the insane or feeble-
minded is clear: the act of voting is an act of choice, an intelligent act.
Hence, it must be exercised only by those who are capable of an intelli-
gent act.
The rationale for excluding persons who cannot prepare their bal-
krts thcnrsclvcs is rootcd in the thcory that thc prescrvation ofthe sanc-
l-2 Secs. l-2 ART.V SUFFRT{GE
-
tity of the electoral process demands secrecy of the ballots. Thus, even
in the enfranchisement of the illiterate, the Constitution commands
Congress to devise a system for "securing the secrecy of the vote" and
one that will enable the illiterate and disabled "to vote without the as-
sistance of other persons."
Conviction for crime has always been recognized as a ground for
divestment of political rights. As applied to suffrage, this rule was ex-
plained in People v. Corral" thus:
The right of the State to deprive persons of the right of suf-
frage by reason of their having been convicted of crime, is be-
yond question. "The manifest purpose of such restrictions upon
this right is to preserve the purity of elections. The presumption
is that one rendered infamous by conviction of felony, or other
base offense indicative of moral turpitude, is unfit to exercise the
privilege of suffrage or to hold office. The exclusion must for this
reason be adjudged a mere disqualification, imposed for protection
and not for punishment, the withholding of a privilege and not a
denial of a personal right."
The nature of the restriction consequent upon conviction has been
bluned somewhat by jurisprudence on the pardoning power of the Pres-
ident.Corral says that the exclusion is in the nature of "a mere disquali-
fication, imposed for protection and not for punishment, the withhold-
ing of a privilege and not a denial of a personal right." Yet statutes have
placed the disqualification within the reach of the pardoning power
of the Executive, a power which has the erasure of punishment for its
object. Following the lead of the statutes, and also of some American
decisions, the Philippine Supreme Court has consistently held that the
disqualification may be erased by executive pardon.54 Hence, all three
departments of the government are one in considering the disqualifica-
tion part of the criminal penalty."
5162 Phi|.945,948 (1936), citing 9 R.C.L. 1042.
stCristobal v. Labrador, 7l Phil. 38 (1940): Pelobello v. Palatino, 72 Phrl. 441 (1941);
Pendon v. Diasnes, 9 I Phil. 849 ( 1952).
lrOnc writcrexplains the disqualification as "a relic ofthe rigorous common-law concept
of civil death. At cornmon law, civil death fbllowed as a general consequence of a conviction for
I'ckrny. This mclns that thc individual conccrncd was irelted, lor all lcgal purposes, as though hc
hntl rlictl." Srrrw,rrrz, 'l'ttt' Rrttrs ot rttt l't:Rsop ll, tl(X) ( l96tt). llndcr this thcory thcrclirlc, thc
ptnhrning ;xrwcr is the lxrwcr lo rcslrtrc lo lile.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
13. The requirement of registration.
Although suffrage is a right protected by the fundamental law, it
has always been recognized that certain procedural requirements must
be complied with before the right can be exercised. Among these is
the legal obligation to register. The obligation comes under the provi-
sions of Republic Act No. 8189, otherwise known as the "voter's Reg-
istration Act of 1996." While R.A. No. 8189 provides for a system of
continuing registration, it also says: "No registration shall, however,
be conducted during the period starting one hundred twenty (120) days
before a regular electibn and ninety (90) days before a special elec-
tion." This provision was challenged as an unconstitutional limitation
on suffrage. In upholding its validity, the Court said that the State, in
the exercise of its inherent police power, may enact laws to safeguard
and regulate the act of voter's registration for the ultimate purpose of
conducting honest, orderly and peaceful election, to the incidental yet
generally important end, that pre-election activities can be performed
by the duly constituted authorities in a realistic and orderly manner.56
lnAkhuyitn, cl ll. v. ('( )Mlil.li(', ( i R No. l't7O66, Murch ;l(r'
Secs. l-2
AnrrclE VI
Tnn LBcrsr,ATrvE Dnpl,nrMENT
Srcrron 1. Tur LEGTSLATTvE powgR sHALL BE vEsrED rN TrrE
Concnnss oF THE Pnrr,rpprxps wnrcu SHALL coNsIST oF A Snxlrp
l,trto.l, Housr or Rnpnnsnr*nrlvEsrExcEpr ro rHE ExTENT RESERvEI)
TO THE PEOPLE BY THE PROVISION ON IMTIATIVE AND REFERENDUM.
1. Abicameral body.
Bicameralism is not a stranger to Philippine constitutionalism.
The Jones Law provided for a bicameral legislature. The 1935 Con-
stitution initially departed from the bicameral model of the Jones Law
and adopted a unicameral body, the National Assembly. By subsequent
amendment, however, the National Assembly gave way to a bicameral
Congress consisting of a Senate, elected by the nation at large, and a
House of Representatives elected by district.
The original 1973 Constitution reverted to unicameralism by
providing for a National Assembly. But before the National Assembly
could be activated, the Constitution was amended in 1976 principally
to provide for a unicameral interim Batasang Pambansa which con-
vened in 1978. A subsequent constitutional revision in 1981 created the
Batasang Pambansa, still a unicameral body. The Batasang Pambansa
was overtaken by the February 1986 Revolution and was abolished by
PresidentAquino's Proclamation No.3 of March 25,1986.
The supposed advantages of unicameralism were simplicity of or-
ganization resulting in economy and efficiency, facility in pinpointing
responsibility for legislation, avoidance of duplication, and strengthen-
ing of the legislature in relation to the executive. It was also hoped that
a unicameral assembly would be a more effective training ground for
2(X) l 6'15
676 THE 1987 CONSTITUTION Sec' 1 Sec. I ART. VI - THE LEGISLATIVE DEPARTMENT 6"77
OF THE REPUBLIC OF THE PHILIPPINES

national leaders. These were the arguments which persuaded the I97I
Constitutional Convention to adopt a unicameral legislative body.r
The debate over unicameralism and bicameralism resurfaced dur-
as set down in Section 32.
ing the deliberations of the 1986 Constitutional Commission. A free-
wheeling debate on the subject opened the deliberations on the article As corollary to this plenary grant of legislative power, it follows
on the legislative department and no other matter was taken up until that the C-oneress alone can mak nd @
the subject of bicameralism or unicameralism was settled. The argu- its law making power.This is thglrtld@-
ments for bicameralism were the traditional ones which say that (1) an tgrygjgygt.Its various ramifications will be examined at length later.
upper house is a body that looks at problems from the national perspec-
Another corollary is that C."g*.. p"..
tive and thus serves as a check on the parochial tendency of a body """".,
Judge Cooley explained the logic of this corollary thus:'
elected by districts, (2) bicameralism allows for a more careful study
of legislation, and (3) bicameralism is Le;Srutna1e$e to attempts of the To say that the legislature may pass , is to
executive to control the legislatur('gni"urn"tutir) was defended on say that it may alter the very constitution from which it derives
the traditional grounds of simpliei ilonomy, and, drawing from its authorily; since, in so far as one legislature could bind a sub-
the recent experience wit( "people powef' on the ground of greater sequent one by its enactments, it could in the same degree reduce
responsiveness to the needs mas-ses because representatives, un- the legislative power of its successors; and the process might be
fixed are forced to interact more repeated, until, one by one, the subject of legislation would be ex-
like senators without a constituency,
cluded altogether from their conffol, and the constitutional provi-
intensely with their limited and clearly identifiable constituencies. But
sion that the legislative power shall be vested in two houses would
the end result was a vote of 23-22 in favor of a bicameral Congress.'
be to a greater or less degree rendered ineffectual.

t N4lure of legislative power. 3. Separationofpowers.

legislative powe)is the authority to make laws and to-glter and
piqgt ttrem.Ts vestea by the Constitution in Cong^.reEE tlg4{lerira-
tive and delegated power. "The Agt$i!U&! is theQglb(qillbf the
, and the gthg!-of
the creature.
authority, and it within which it must
Unlike the Constitution of the United States which contains only
"qnyl2q\ryer-dee-Ined to be legislative by usage and tradition, is,nec-
In the presidential syster.n introduced by the 1935 Constitution
which allocated the three great powers of goyernment
- leg5lalivg,
eleculive, and-Ddistd
- @ts, one basic
principt"
. This
"p--
ated as an implicit limitation on legislative power as on the two other
powers. Under the parliamentary system of the 1973 Constitution the
principle remained applicable as between the judiciary on the one hand
and the legislature and the executive department on the other; how-
ever, as Ustween the legislaturp and the ggggutiyg Sqpartmglt, coop-
gl4[on and_not separation was the operative principle. When the 1973
Constitution was revised in 1981 to revert to the presidential system,
separation of powers as between the legislature and the executive was
not restored largely because Amendment 6 of 1976, which gave full

rConstitutional Convention Session of July 12,1972. {Vcrir v. Avelino,77 Phil. 192,212 (1946).
2The debates may be firuntl in II RIICORI) 47-6().
tl ('ONSi'fl'l\lTl()NAl . I,IMITAI'IONS 246-7. cittd in I TeNirun & Cnprriox. Iltt.nx tt
'Vrnhornc's l,esst'c v. I)0rrltttct'.2 l)rrll..1O4, lO8 (l l.li. l7t)5) t.Aw (il ttt! l'tm trunt: )4? I 1 1t)1r'.r1
 6'78 THE 1987 CONSTITUTION Sec.1 ART.VI THELEGISLATIVEDEPARTMENT
OF THE REPUBLIC OF THE PHILIPPINES

legislative power to the President,6 was retained and thereby gave to the Someone has said that the powers of the legisla
@, like the boundaries of the ocean, AIe]ln-
President dominance over the Batasang Pambansa. The_1_287 Constitu-
t ion has restored sgpargllg!_qlpewe$. ll-m-t!sd. In c@, however, as well as gov-
:- ernments acting under delegated authority. lhe powers of each of
In essence, separation of powers mqans that lggiSlAliSn-bglo4plg the deoartments of the same ilre limited and confined within the
-+- e, settlement of le s four *atts of ttte cons r, and e-aqh lqpqrtmgnt
judiciary. Each is prevented from invading the domain of the oth-
the can only exercise.su as are€Iplgsgly-glvell and sgqlt
,to
ers. But the senaration is not total. otbgryl)$t+a€ are necessarily imolied from the given powers'
Th(Constitution)is the shore of legislative authority against which
.balances" the net effect of which being that, in general, +o one depa(-
-r_-
,-__-/

the waieioflEgislative enactmen!. mav dash. Ugq lygf-whlahj!-

ment is able to act without the cooperation of at least one of the other
c3!!9!l9aP
ep4$qg4!. Thus, for instance,l.egislatign geeds the final approval of
tE Pryqdglt; the President cannot act s Although the original 1973 Constitution adopted a parliamentary
and must obtain the concurrence of Consress to comolete certain sis- form of government, it did not adopt the English principle of parlia-
can be
=onlv
bv authoritv mentary sovereignty under which "Parliament can do everything but
of Consres,s fnasgggAe qgrt can declare acts of Congrc make a woman a man, and a man a woman."'Neither did the revision
President unconstitutional. ff of 1981 nor the 1987 Constitution. Thus, legislative power remains a
z' The plrpose of separation or s and "gheck!._aqd !a!4nees" limited power after the manner of the American constitutional system
ilto prevent concentration of powers in one department and thereby embodied in the 1935 Constitution. It is subiect to sub e limita-

.to avoid tyranny. But the price paid for the insurance against tyranny tions which circumscribe both the eiercise of the poweli$elf and ttre
is the risk of a degree of inefficiency and even the danger of gridlock. allowable subjects of legislation. The $ubstantive limitatiolrs are chiefly
As Justice Brandeis put it, "t @ And legislative power is subject to proce-
w,N
gdapted ... not to promote efficiency but to oreclude the exercisc ol'- dural limitations prescribing the manner of passing bills and the form
they should take.
-arbitrary power. The purpose was not to avoid friction, but, by means ol'
the inevitable friction incident tot he distribution of governmental pow-
ers among the three departments, @9I."'
5. The ,holders of legislative powe,rt SgtgrySi people
President in emergency.
The danger of tyranny arising from the corypnt+esoqrf powcrs
nstitutional theory, the original leeislati
in one man was realized during the dark days o{lnanial lail. Bul tht:
danger of inefflciency and gridlock can also be intense whei=thc holdcrs
who, t@, cglfel-deriya(tye
legislative powFon tllxlggEEllle. But the gfant of national legislative
of power are driven by self-interest-
--
po1ygilo ggngless under the 1987 Constitution is,4g!€xcluq15' Section
4. Limits on legislative power. *! ?',"1t,"'^(tl t /t^;/^d- t
I says thut l"-gitlutiu" po*.. s "pxcept to the extent
reserved to the people bv the provision on iq!{ative an!!-ie lendun''"
Speaking of the powers of the t girw{d#r#;i";.i;:;it This new provision derives from the lesson drawn fto- pgq!
"Ip9g9!"-"
ments under the American flag, an early case decided by thc l)hilippirrc whereqy-lh€l-people-have realized that legis gannol al-
Supreme Court said:8 ways
w4vJ ug trusted
be ttuJtgu to do what
lv uv wllqt is best
lr uvof for the people(Henci
l/vvPrv'v rvrrvv, lrrv people
the
have reserved to themselves the authority to correct legislative m
6For a discussion of legislative powcr under
Anrcntlnrcnl (r u ltrle l I ltc I ()7.l ( '( )nsl I lultr )1, .t,,,
Bsnr'IA.s, Ptfflrpl'r,vr C o N sun rn r s N t t. I.aw ( | 9114') 540-543.
,,1)l
TMyers v. [Jnited Stotcs,272 (1.S. 52,29.1 ( l()26). l,or.vl.'lrrr.('ttnsrtttrrntN ot llrutntn lo2 (ll.t53), r'llcr1 in Sctt,rwnrt,,Tun Powcns ot,
3(iovernntcnl v. Springcr,50 I'lril. ,)5(). ()t) 1t,,r'7, (]rtvtxN*rtr.,tt lll'l ( l()(r I).
1
 680 THE 1987 CONSTITUTION Sec. I ART.VI - THELEGISLATIVEDEPARTMENT 681
OF THE REPUBLIC OF THE PHILIPPINES

or to supplement legislative inadequacies @ and it will not remain simply beautiful words in this Constitution, but
: level of los4-!-leCrd4liea. Section 32 elaborates on this saying: will become meaningful to them."'o The phrase was approved by a vote
"The Congress shall, as early as possible, grovide for a system of initia- of 18 to 11.
tive and referendum. and the Other matters of detail were also left to Congress. As Commis-
;@eandeng sioner Davide pirt it, "We ... believe that ... the law itself, which will be
or part thereof Con
enacted by the [Congress], will provide for everything in respect to the
registration of a petitio{r therefor signed bv at least Jen p9llgtllurn of full implementation of the two concepts."" Everything, that is, except
the total number of registered voters, o@t
those which have been fixed by the Constitution itself. Thus, Section 2
qg!!-be-regcse!!9d !1at least three per cenrzn of the registered vot- prescribes that the is':!gnUg{
" The implementing legislation is BgpUbliS 441!q,-q235 cenlaru of the total number of registered voters" throughout the nation
-\:l-
IXN erititJed "An Act Providing for a System of Initiative and Referendum arygltnree per centum ot tne reg e " of every legislative dis-
tlrct throughout the lan4 Both percentage requirements in proportid
to the number of voters found in registration lists should be satisfied.
It should also be noted that, whereas the legislative power of Con-
gress is plenary, the scope of the legislative power which the people may
Through Section l, in connection with Section 32,the people have, in initiative and
addition to their constituent
give to the President veto power over laws passed through initiative and
referendum? This question was actually raised on the floor by Com-
missioner Suarez. Commissioner Davide, Chairman of the sponsoring
committee, replied, as quoted above, that Congress would "provide for
everything in respect to the full implementation of the two concepts."
by the Constitution to Congress. Although in the initial discussion ol' What this means is that the President can have a role in "initiative and
the subject, the sponsors carefully avoided describing the command ttr referenduml' gnly if trgjqglygn g role !y_law.
Congress as merely directory,'' the command in fact leaves to Congress The will be dis-
the determination of the proper time for implementation. A series of rcc- cussed later.
ommendations to compel Congress to pass an implementing law, lirst'
"within ninety days after its initial session," and then, "immediatcly," 6. The Once and Former Legislative power of President
eventually took the present shape of "as early as possiblg."'' ExplainiltS, Marcos and President Aquino.
the meaning of the phrase Commissioner Gascon said: "I would likc all
the Commissioners to seriously consider this because the wholc point During the period from1972 to 1987 Philippine law did recognize
here is that we should assure the people that this section providing lirr' lcgislative power lodged in the presidency. The 1987 Constitution has
initiative and referendum will be [implemented] as soon as possihlc' not disturbed this fact and recognizes legitimate exercise of such power
as productive of laws whose effectivity continue until repealed or until
lirund to be inconsistent with the Constitution.
rofhe first case to come under this implementing law involvetl krcal "iniliirlivc rtttrl tclt'tctt
dum" was Garcia v. Commission on Elections,237 SCRA 219 (19941.
IIII RECORD 45.
rr/r/. ()l{
;tl
''?ld. at 80.
I
r'/r/ ;tl ()l
I r/r/. al I ()(r I ()ll.
6E2 THE I9STCONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Shortly after the imposition of martial law and the birth of the
1973 Constitution, the Supreme Court, in Aquino, Jr. v' COMELEC,''
did recognize legislative power in the President as flowing from his
martial law powers and from Article xvII, section 3(2) of the 1973
Constitution. This was recognized as extraordinary legislative power
given to the President to enable him to cope with an extraordinary situ-
ation especially at a time when there was no operating legislative body.
ln !97 6 ,this extraordinary power of the President was brought to clear-
er relief by Amendment No. 6 which read:
Whenever in the judgment of the President (Prime Minister),
there gxists a grave emergencv or a threat 9r ilqrn[4ence-thel9qf, or
wtrernver ttre interim Batasang Pambansa or the regular National
Assembly fails or is unable to act adequately on any matter for any
reason that in hiljudgment requires immediate actio-n, lre may, in
order to meet the exigenpy, igsue the necessary decrees, orclerQ or
tgeS$-4Ct*Stlan, which shall form part of the law of the land'
After the revision of 1981 was ratified, the continuing effectivity
of Amendment 6 was challenged in Legaspi v. Minister of Finance" on
the arguments, first, that the 1981 revision had vested legislative power
solely in the Batasang Pambansa, and, second, that the powers granted
by Amendment 6 had not been reconfirmed in Article VII on the presi-
dency, and third, that the powers mentioned in Amendment 6 had been
given to a "President (Prime Minister)" which the President after the
1981 revision no longer was.
The argument from the hybrid term "President (Prime Minister)"
was easily answered by alluding to the historical circumstance undcr
which the amendment was formulated. The Court, speaking through
Justice Barredo, said that the obvious intent of Amendment 6 was lrr
grant legislative power to the person in whom was vested the totality ol'
the executive power. Barredo said:"
As to the parenthetical mention therein of the Prime Minis-
ter, We are of the considered view that it was necessary to do srr
because under the governmental system then, which was markcdly
Prime Ministerial, the substantive executive powers wcrc vcslctl
t662SCRA275(January3l,l975):[lt,rrurs,Prrrt.tt't'rwr;('tNsurtttnntr'l,rw(l()ll4)5ll
r?ll5 SCRA4lt't (JrrlY 24, l9tl2),
t^l<l. tl 441 '2.
Sec' I Sec. I ART.VI
-THELEGISLATIVEDEPARTMENT 683
in the Prime Minister, the President being merely the symbolical
and ceremonial head of state, and the two positions were being
held by one and the same person. In other words, the power was
contemplated to be conferred upon whomsoever was vested the
executive power, and that is as it should be, for, to reiterate, from
the very nature of the power itself, the authority to legislate should
be allowed, if at all, to be shared only with one in the political
department directly deriving power from the vote of the people.
When the Legaspi case arose in 1982, the operative legislative
body was still the interim Batasang Pambansa created in 1976. But the
President also possessed legislative power by virtue of Amendment 6
of the 1973 Constitution. (The 1981 revisions, while already operative,
had decreed that the elections for the regular Batasang Pambansa would
be in 1984.) It was obvious, therefore, that the legislative power given
by Amendment 6, as the text itself said, was concurrent with that of the
interim Batasang Pambansa.'n Was it also meant to be concurrent with
the legislative power of the regular Batasang Pambansa?
The Court affirmed that it was. Justice Barredo developed his
argument from the intent to create an adequate instrument for coping
with emergency situations. He pointed out that the President could cope
with emergency either by means of emergency powers delegated by
the legislature under Article VIII, Section 15 (1973), or by his power
as Commander-in-Chief of the armed forces, principally by his martial
law powers, given in Article VII, Section 9 (1973). Both of these, how-
ever, had been thought to be inadequate: the first, because it needed to
be activated by prior legislative action, and the second, because martial
law was generally unwelcome anywhere in the world. Hence, Amend-
ment 6, Barredo argued, was frormulated t@
caprylty to respond to emergenc ppeal to the legis-
lature and '
Barredo also added, to satisfy doubting Thomases, that the intent
<lf Amendment 6 was not to set up a dictatorship: "Any tinge or tint of
authoritarianism in it is not there for the sake of the ideology of dicta-
torship or authoritarian itself. Such hue of a one-man authoritarianism it
somehow connotes is there o.nly bec-se tt ls s
111
ru/r/. ut 4.12.
xrlr/.rtt4ll 7
 THE 1987 CONSTITT]TION
OFTHE REPUBLIC OFTHE PHILIPPINES
considerations that are needed in order to safeguard the very existelrce
Qnd integrity of the nation and all that it stands for."'?'
Shakespeare might remark that the Justice did protest too much!
But it was perhaps understandable that Barredo should, because he
spoke as one who was privy to "the events and deliberations" that cul-
minated in the 1976 amendments.2z For this reason, although what he
said about the relation of Amendment 6 to the regular Batasang Pam-
bansa was obiter dictum, his view on the matter carried great weight.
The view also gained added weight from the concurring opinion of Jus-
tice Abad Santos who as Secretary of Justice had participated in the
drafting of the 1976 amendments.23
It is thus clear that the 1973 Constitution provided for two
con-
current legislative agencies: the Batasang Pambansa and the President.
The legislative power of the Batasan was ordinary, while the legislative
power of the President was extraordinary. The extraordinariness of the
President's power, howevet, did not lie solely in that it was a tool for
coping with emergency; it also lay in the distinct advantage it gave to
the President over the legislature. It not only enabled him to supply
for the legislature when the latter, in the judgment of the President'
"fail[ed] or [was] unable to act on any matter" that may need immedi-
ate action, but it also enabled the President to undo what the legislaturc
might have done not to his satisfaction. Moreover, he could legislate,
or repeal or amend old legislation unhampered by any need for debatc
or three readings or by the other formal limitations that are imposed on
the legislative body.
,/.
I Immediately after the February 1986 revolution, Presiden-t-Qora-
Zgg!-Aquinq assumed revolutionary legislative power and, on March
25, 1986,issued Proclamation No. 3, the Provisional Freedom Const i tu -
tion, whose Article I, Section 3, abolished the Batasang Pambansa antl
whose Article II, Section 1, vested legislative power in the Prcsitlt:nl
"[u]ntil a legislature is elected and convened under a new Constitution."
section 6 of the 1987 Transitory Provisions in turn said: "The incur]t
bent President [Corazon Aquino] shall continue to exercise lcgislirtivc
2tld. at 433.
zzSee also his concurring opinion in Sanidad v. ('OMIil.Fl(',7.1 S('RA.l
t2,1976).
?11
l5 SCRA at 4.14.
ART.VI - THELEGISLATIVEDEPARTMENT 685
powers until the first Congress is convened." Thus, the only difference
between the scope of the legislative powers of President Aquino and
that of President Marcos was that, whereas Mr. Marcos exercised the
power concurrently first with the interim Batasang Pambansa and sub-
sequently with the regular Batasang Pambansa, President Aquino exer-
cised it alone. She lost it on July 26,1987. But she lost it with a bang
signing a batch of forty-two legislative acts on the eve of the convening
of the First Congress..
7. Non-delegability of legislative power.
In his commentary on the Constitution of the United States, Cor-
win wrote thus:24
At least three distinct ideas have contributed to the develop-
ryent of ttr" p .
,1,9n is the doctrine of separati.,r, nf pnrv.rs: Why go to the trouble
%f separutinJtt ,t,r"" powers of governqg4gilthey can straight-
way remerge on" their own motion? Th{sffind, is the concept of
due process of law, which precl+des the transfer of
-..--.--.-6j- ry reg
functions to private pe s. Lasffithere is the maxim of agency
"n,elegata potestas ," which John Locke bor-
rowed and formulated as a dogma of political science. ... Chief
Justice Taft offered the following explanation of the origin and
limitations of this idea as a postulate of constitutional law: "The
well-known maxim 'delegata potestas non potest delegari,' ap-
plicable to the law of agency in the general common law, is well
understood and has had wider application in the consffuction of
our Federal and State Constitutions than it has in private law. ...
The Federal Constitution and State Constitutions of this country
divide the governmental power into three branches. ... In carrying
out that constitutional division ... it is a breach of the National
fundamental law if Congress gives up its legislative power and
transfers it to the President, or to the Judicial branch, or ifby law it
attempts to invest itself or its members with either executive power
or judicial power. This is not to say that the three branches are not
co-ordinate parts of one government and that each in the field of
its duties may not invoke the action of the two other branches in so
far as the action invoked shall not be an assumption of the constitu-
tional lield of action of another branch. In determining what it may
i0,4lO (()t.tolrr
r4(lxwrl. ('rNstttrrttrt'v rtt tttt,. Iluttt.tt Stttt.s rt Aunat a,95 ( 1964).
 686 orrr#Jriiil,3'#ffiH?Ji'.'^,"'
Sec r ART.VI - THELEGISLATIVEDEPARTMENT 687

is worse to unmake it, by adopting measures inconsistent with

do in seeking assistance from another branch, the extent and char- -
the end sought to be attained by the Act of Congress
acter of that assistance must be fixed according to common sense .2?

and the inherent necessities of the governmental coordination."

In spite of the principle of non-delegability of legislative pow-
er, it is common knowledge that numerous statutes have been passed
creating administrative agencies and authorizing them to exercise vast
regulatory powers. The rules and regulations they issue have the force
-qf law. This phenomenon has been justified by two different theories.
(y'ne.nrstneory is that a lron-legislative body may be authorized to "tll
-uo the details" of a statute. Chief Justice Marshall wrote in 1825: "It
will not be contended, that C-ongress can delegre& ol-lo
gryltbeilUbg!4l, Pgwers which are strictly and exclusively legislative.
But Congress may certainly delegate to others powers which the leg-
islature may rightfully exercise itself. ... The line has not been exactly
-
drawn which separate those important subjects, which must be entirely
regulated by the legislature itself, from those of less interesJ, in which a
general provision may be made, and power given to tno;ffipare to act
under such general provisions, to fill up the details/TtKither theory,
also enunciated by Marshall, is that
jslation, that is, legislation which leaves to anothqr body thg _businqs-llf
ur""ttuining th" futtt :'
the above theories, the lon by the
order
Til*Y is not law-makins9
Provided the above requirementt
.of standards are satisfied, the regulations passed by an administrative
body pursuant to the delegation made by the statute are just as bind-
ing as if the regulation had been written in the original statute itself. If,
however, these requirements are not satisfied, the regulation will not be
allowed to affect private rights.
,//m" rationale behind allowing administrative agencies to promul-
g@was well expressed in Philippine Internation-
al Trading Corporation v. Angeles:28 "[@-
plexity of the modern society, it has bgcome necessary to create more
ulation of its ramified
to them, the
Compaftia General de Tabacos v. Board of Public Utility,' is an
instance of early iurisprudence on the subjeqt. Relying onAct No. 2307
the Board of Public Utility Commissioners issued the following order:
"The respondent is heretofore ordered to present annually on or before
March first of each year a detailed report of finances and operations of
such vessels as are operated by it as a common carrier within the Phil-
ippine Islands, in the form and containing the -utiot indicated in the

b} model of annual repolt."30 The Board relied on the following provision

of Act No. 2307:

g (a) .be complete in itsel{ - if-*g$_qgL&4tt1bgt"!t-th"

policy to be carried ouLqr implemented by the {g!gg4!-e ... and (b)
fixastandard-t
Section 16. The Board shall have power, after hearing, upon
notice, by order in writing, to require every public utility as herein

- to wttictt tne Aetegate m

determinable ptrfor- defined:
mance of his functions. . .. Indeed, without a statutory declaration
of policy, the delegate would in effect, make or formulate such
policy, which is the essence of every law; and, without the aforc-
(b)
To furnish annually a detailed report of finances and
operations, in such form and containing such matters as the Board
mentioned standard, there would be no means to determine, with
may from time to time prescribe.
reasonable certainty, whether the delegate has acted within <lr bc-
yond the scope of his authority. Hence, he could thereby arrogato
and this 2'Pelaez v. Autlitor Ccneral, l5 SCRA 569, 5'76-7 (1965).
upon himself the power not only to make law, but, also, - ls(i.R. No, l0ll4(r I , ()ctobcr 2I , 1996, 263 SCRA 421 , 444-45 citing Solid Homes Inc
Plyrrwtl, 177 S('RA 72 ( l9tt9).
t''-14 l)lril. I 16 ( l()l()).
2sWayman v. Southwtrd. lO Whctl I ,42 ( ltt25).
r"fhc lirig Auroru, 7 ('r. 1lt2 ( I lt Ll). "'/r/.:rt I l(r 17.

t
688 THE 1987 CONSTITUTION Sec. I ART. VI THE LEGISLATIVE DEPARTMENT 689
OF THE REPUBLIC OF THE PHILIPPINES -

tfr(taiul)o b"
Declaring u@slative ofState, for any cause resulting in an extraordinary rise in the price
th" Qlpr"*" tou4jeid,.' of palay, rice or corn, to issue and promulgate temporary rules and
-p9!Uer,
emergency measures for carrying out the purposes of the Act. Ry
As is apparent at a glance the provision conferring authority
its very terms, the promulgation of temporary rules and emergency
on the board is very general. It is also very comprehensive. It calls
measures is left to the discretion of the Governor-General. The
for a detailed report of the finances and operations of the petition-
legislature does not undertake to specify or define under what con-
ing steamship company. That, it would seem, covers substantially
ditions or for what reasons the Governor-General shall issue the
everything; for there is very little to a steamship company but its
proclamation, but says that it may be issued "Ior any cause," and
finances and operations. It would have been practically the same
leaves the question as to what is "any cause" to the discretion of
if the statute had given the Board of Public Utility Commissioners
the Governor-General. The Act also says: "For any cause, condi-
power "to require every public utility to furnish annually a de-
tions arise resulting in an extraordinary rise in the price of palay,
tailed report." Such provision would have been but little broader
rice or corn." The legislature does not specify or defne-ruhat is
and little less general than the present provision. It is clear that a
"an extraordinary risg." That is also left to the discretion of the
statute which authorizes a Board of Public Utility Commissioners
Govenror-General. The Act also says that the Governor-General,
to require detailed reports from public utilities, leaving the nature
"with the consent of the Council of State," is authorized to issue
of the report, the contents thereof, the general lines which it shall
and promulgate "temporary rules and emergency measures for car-
follow, the principle upon which it shall proceed, indeed, all other
rying out the purposes of this Act." It does not specify or define
matters whatsoever, to the exclusive discretion of the board, is not
what is a temporary rule or an emergency measure, or how long
expressing its own will or the will of the State with respect to the
such temporary rules or emergency measures shall remain in force
public utilities to which it refers. Such a provision does not de-
and effect, or when they shall take effect. That is to say, the Leg-
clare, or set out, or indicate what information the State rcqtires,
islature itself has not in any manner specified or defined any basis
what is valuable to ir, what i/ needs in order to impose correct and
for the order, but has left it to the sole judgment and discretion of
just taxation, supervision or control, or the facts which the Slcte
the Governor-General to say what is or what is not "aa4gqs::' and
must have in order to deal justly and equitably with such public
what is or what is not " ;'
utilities and to require them to deal justly and equitably with rhe
and as to what is a temiorary rule or an emergency measure for the
State. The Legislature seems simply to have authorized the Board
carrying out of the purposes of the Act. Under this state of facts,
of Public Utility Commissioners to require what information the
if the law is valid and the Governor-General issues a proclama-
board wants. It would seem that the Legislature, by the provision
tion fixing the minimum price at which rice should be sold, any
in question, delegated to the Board of Public Utility Commission-
dealer who, with or without notice, sells rice at a higher price, is
ers all of its powers over a given subject-matter in a manner almost
a criminal. There may not have been cause, and the price may not
absolute, and without laying down a rule or even making a sugges-
have been extraordinary, and there may not have been an emergen-
tion by which that power is to be directed, guided or applied.
cy, but, if the Governor-General found the existence of such facts
and issued a proclamation, and rice is sold at any higher price, the
Similarly, in declaring a price control act unconstitutional in 1919,
seller commits a crime.
the Supreme Court analyzedthe statute thus:r2
In People v. Rosenthal," following the more generous view taken
The question here involves an analysis and construction of'
Act No. 2868, in so far as it authorizes the Governor-Gencral kr fix
in Schecter Corporation v. United States,34 the Supreme Court found
the price at which rice should be sold. It will be notcd that sccrion I the broad standard o(Rublic interest'j sufficient guide for the Insular
authorizes the Governor-General, with the conscnl ol'thc (iluncil Treasurer in determining-ifieaence ation of a permit to engage in the

,)'/r./. at I 3tl. It(rll I'hil. .l2lt 1 1t, 191

' 'rt)nilcrl Sttlcs v. Arrg'lirrrg lftr,,l t l'lrrl 1,5 6 ( l()ll)
'4..2()5 ll S 4()1 ( l()tlt
 THE 1987 CONSTTTUTION ART.VI - THELEGISLATIVEDEPARTMENT 691

OF THE REPUBLIC OF THE PHILIPPINES

sale of speculative securities. However, the standard of "public interest" which designated limits will constitute such exercise as undue delega-
was not viewed standing alone. It was found sufficient only in the con- tion, if not an outright intrusion or assumption, of legislative Power."rr
text of the purpose of the law, which was to protect the public against
speculative schemes having "no more basis than so many feet of blue 8. Developments in jurisprudence.
sky," and in the context of the other requirements which the act itself On the eve of the Constitutional Convention of I97I, the doctrine
imposed." The standard therefore could be found in the totality of the on non-delegability was already well established and the trend was to-
tenor of law. Acknowledging the difficulty of finding the limits within wards a liberal recognition of the phenomenon of "subordinate legisla-
which administrative agencies may be allowed to operate, the Court
said that "the safest is to decide each case according to its peculiar envi-
ronment, having in mind the wholesome legislative purpose intended to
be achieved."36 Thus, in Araneta v. Gatmaitan 3? the Supreme Court had
no difficulty in upholding, in the context of the entire law, the prohibi
tion of the use of trawls in San Miguel Bay pursuant to a statute which
authorized the Secretary of Agriculture to impose restrictions "on the
use of any fishing net or fishing device for the protection of fish fry or
fish eggs."
****,k

Since rules and regulations promulgated by 4!qi46g4!iyg_a€gr-

To avoid the taint of unlawful delegation, there must be a
, rnqy standard, which implies at the very least that the legislature itself
TneI rnly. Jurispru- determines matters of principle and lays down fundamental policy.

an administfative resulation to have the force of penal law it is Th" t@or-imPlie.d ... from the

v7 safy (Uthat sugh violation

r$91f," (?f that the be
policy and purpose ofthe act considered as a whole.

The doctrine did not change under the 1973 Constitution. Thus,
that the resulation be alizins electro-
a resulation oassed of Asri
, a law which prescribed a penalty "in the discretion of nce glectro-fishing was not one
the court" was declared invalid. "It is not for the courts to fix t}te term
of the forms of fishing punishable under the Fisheries Act under which
of imprisonment where no points of reference have been provided by
the legislature. What valid delegation presupposes and sanctions is an
tne@ fact, a later Presidential Decree add-
ed eGctro-fishing to the list of punishable forms of fishing, acknowl-
exercise of discretion to fix the length of service which must be served
edging thereby that it was not punishable under prior existing law.
within specific or designated limits provided by law, the absence of
Moreover, the doctrine on non-delegatioq was applied to legislation by
the President. Thus, it was applied(n-,a guttin.J4$which upheld a
3568
traffic regulation requiring the use df%arly-warning devices" and in
Phil.34i-43.
%ld. at343.

'101 Phil.328 (1957). 'rrl'coplc v. l)acuycuy, 173 SCRA 90 ( 19119).

38United States v. Grimaud, 220 tJ.S. -506 ( l9l I
).
leSteuart & Bro. v. Bowlcs, J22 I l.S. 39tt, ,lI)4 (19441. Su 4135 S('RA 4t{ I,49(r-7 (Octobcr 24, l9'7O1.
ulxr I Initcd Stttcs v. llurrils, II
'r'l'copk' v. Mitecrctt. 7() :i('RA 450 (()tloht'r lt3' 1977)
Phil. 327 ( l(I)tt); Llnite(l Stntcs v. l)rrnlrlio, 2tt l'hil. 60lt ( I() |4 ).
{)Pct4rlt: v. 4'lll( S('RA l()5 (liclnnury l, 1979).
Qttc l)o l.ty, ()4 l'ltil. (vlg. (r'12 ( l()5'l).
692 THE 1987 CONSTITUTION Sec. I
OF THE REPUBLIC OF THE PHILIPPINES
Free Telephone Workers (Jnion v, Minister of Labor and Employmenfs
which upheld the power given to the Minister of Labor to certify a labor
dispute to the National Labor Relations Commission for compulsory
arbitration. Of interest in Free Telephone Workers is a statement of Jus-
tice Fernando which augured even greater liberalization of the rules on
delegation under the 1973 Constitution. Fernando said that the semi-
parliamentary features of the 1973 Constitution would lead to "an ap-
preciable measure of concord and harmony between the policy making
branches of the government, executive and legislative" and that while
"conceptually, there still exists a distinction between enactment of leg-
islation and its execution, between formulation and implementation, the
fundamental principle of separation of powers of which non-delegation
is a logical corollary becomes even more flexible and malleable."ou In
the context of the Marcos regime, that was putting it very mildly!
Jurisprudence under the 1987 Constitution has not departed from
earlier established doctrine. In Eastern Shipping Lines v. POEA,^T the
standard "fair and equitable employment practices" was found suffi-
cient basis for a regulation prescribing a model contract for overseas
workers. Likewise, the power of expert commissions to fix wages under
strict standards set by the legislature was recognized in Employers Con-
federation v. National Wages and Productivity Commissionas as neces-
sary in a world of specialized activities.
Decisions have emphasized that the standard need not be explicit
or formulated in precise declaratory language. It can be drawn from
the declared policy of the law and from the totality of the delegating
statute. Thus, as in zae the authority
of the Board of Medical Education to set rules for the closure of medi-
cal schools was drawn from the general standard of "standardization
and regulation of medical education" taken together with other pro-
visions of the delegating statute. Similarly, in Osmefia v. Orbos,so the
authority of the Energy Regulatory Board to fix the domestic prices
of petroleum products was found to be sufficiently specified "by the
45108 SCRA 757 (October 30, 198 1).
$Id. at'17l.
nr66 scRA 533,545 (1988).
4201 SCRA 759,'766 (199t).
4152 SCRA 730 ( l9tt7).
4,220 s('RA 70:1,7l l 7l3 ( l99l).
Sec. I ART.VI
- THELEGISLAIIVEDEPARTMENT 693
general policy of the law to protect local consumers by stabilizing and
subsidizing domestic pump rates," by the authority given to impose ad-
ditional amounts "to augment the resources of the [Oil Price Stabiliza-
tionl Fund." More liberally still, the standard may be embodied in other
statutes on the same subject as that of the challenged law.s'
The firm rule, moreover, remains that a4ministrative agenc
not issue regulations Jhat contravene law.s, Thus, a regulation passed
by the Metro Manila Authority authorizing the confiscation of license
plate\and driver's license for certain traffic violations was declared
@lpfor Qeing contrary to Presidential Decree No. 1605.53 InTatad v.
Secretary of the Department of Enerffiated Execu-
tive Order No. 392 because, in effecting the full deregulation of the oil
industry, President Ramos added a standard which did not appear in the
delegating law, R.A. No. 8180. The standards set by the law for oil de-
regulation were (1) the time when the price of crude oil and petroleum
products in the world market were declining; and (2) the time when the
exchange rate of the peso in relation to the US dollar was stable. E.O.
No. 392 considered the depletion of the OPSF fund as a third factor for
ordering the early implementation of full oil deregulation. The Court
said: "We therefore hold that the Executive department failed to follow
faithfully the standards set by R.A. No. 8180 when it considered the
extraneous factor of depletion of the OPSF fund." Such consideration
amounts to a rewriting of the standards set forth in R.A. No.8180. "On
the basis of the text of E.O. No. 392, it is impossible to determine the
weight given by the Executive department to the depletion of the OPSF
fund. ... In light of this uncertainty, we rule that the early deregulation
under E.O. No. 392 constitutes a misapplication of R.A. No. 8180."
The Supreme Court has continued to apply the same principles
that have been developed in the past. Thus the standby authority given
to the President to increase the value added tax rate in the VAT Law,
R.A. No. 9337, was upheld as an example of contingent legislation
1r(ihiongbian v. Orbos, G.R. No. 96754, June 22,1995.
"Solicitor (ieneral v. Metropolitan Manila Authority,204 SCRA 837 (1991); Cebu Oxygen
v. Sccretury l)rikrn, 176 S(lRA 24 ( l9ti9).
lrSolicitor (it:ncrnl v. Mctropolitan Manila Authority. G.R. No. 102782, December ll,
l9el.
'a( i .lt . Nor. l ,l4 l(r{ } rrrrtl l .!7ll()'/. Novr:nthcr 5. l ()97 .
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
where the effectivity of the law is made to depend on the verification by
the executive of the existence of certain conditions.55
ln Gerochi v. DENR,56 the power delegated to the Energy Regula-
tor Board to fix and impose a universal charge on electricity end-users
was challenged as an undue delegation of the power to tax. The Court,
however, said that, since the purpose of the law was not revenue genera-
tion but energy regulation, the power involved was more police power
than the power to tax. Moreover the Court added that the power to tal(
could be used for regulation. As to the validity of the delegation to an
executive agency, the Court was satisfied that the delegating law was
complete in itself and the amount to be charged was made certain by the
parameters set by the law itself.
R.A. No. 9335, the Attrition Act of 1995, authorized the BIR and
BOC to give awards to those who surpass the BIR targets and to impose
sanctions on those who fall short. The awards were to be taken from
the excess over target as set up by a Board. The validity of the law was
challenged on the ground that the delegation to the President of the
power to set targets was invalid.
However, the law was found to be complete and to have standards
for the President to follow. Revenue targets were based on the original
estimated revenue collection expected respectively of the BIR and the
BOC for a given fiscal year as approved by the DBCC and stated in the
BESF submitted by the President to Congress. Thus, the determination
of revenue targets did not rest solely on the President as it also under-
went scrutiny by the DBCC. On the other hand, Section 7 specified
the limits of the Board's authority and identified the conditions under
which officials and employees whose revenue collection fell short of
the target by at least 7 .5Vo may be removed from the service.5'
The Attrition Act was also challenged on the argument that the
oversight function of Congress was unconstitutional. But in this case,
the oversight had already been done and was functus fficio. Hence,
there was no need to pass on validity. However, for the future, the Court
set down the following guidelines to maintain separation of powers:
ssAbakada Guru Party List Officers v. Executive Secretary, G.R. No
2005. Reconsidered October I 8. 2005.
56G.R. No. l59796.July ll
,2.X)1
r?Abakutlu ( iunr v. l!urisirrrrr, ( i.R. No. l 6(f7 l 5, Arrgust 4. 2(X)ll.
1
Sec. I ART.VI _ THELEGISLATIVEDEPARTMENT 695
Any post-enactment congressional measure should be limited to
scrutiny and investigation. In particular, congressional oversight must
be confined to the following:
(l) Scrutiny based primarily on Congress' power of ap-
propriation and the budget hearings conducted in connection with
it, its power to ask heads of departments to appear before and be
heard by either of its Houses on any matter pertaining to their de-
partments and its power of confirmation; and
(2) Investigation and monitoring of the implementation of
laws pursuant to the power of Congress to conduct inquiries in aid
of legislation.
Any action or step beyond these will undermine the separation of
powers guaranteed by the Constitution. Legislative vetoes fall in this
class.5E
9. Exceptionstonon-delegability.
One recognized exception to the rule on non-delegabilitJ o.t-!eg-
islative power is that lpcal governments may be allowed to legislate on
pgryly_lgcat rnglqrs.se This is an exception which according to Rubi v.
Provincial Boarffi is "sanctioned by immemorial practiqe." Since what
is given to local legislative bodies is true legislative power and not just
the power to promulgate rules and regulations, it is,not necessary that
the delegating statutq follow the rules for valid delegati.on applicable
to the s. It is sufficieqt that the
"
stat@ over which the local law-making
mav lesislate.
asencvL>+
-ts
It should be noted, moreover, that on the local level the
of=separation-of+ewers does not applY strictlY between the executive
and thslAw:making-bq4y. This was true under the 1935 and 1973 Con-
stitutions and this remains true under the 1987 Constitution. Hence, a
local law-making agency may be given executive function.s.When what
r*Abakada Ounr v. Purisima, G.R. No. 166715, August 14,2008.
1el,rrcal govcrnrncnts undcr the 1973 possessed very limited legislative power derived di-
I (111056, Scptcnrhcr I, rcctly lrotn thc ('onstitution. lJnrlcr thc l9tl7 (irrrstitution, local legislative power has been ex-
ptnrJcd.'l'hiswill trcsturlir:tl urllcrArticlcX.l'riorkrlhc l9T3Constitution,however, legislative
lltnr (irngrcss.
lxlwcr ol lrrtl govcnttttt'nls wrts ottly tlrlcgllctl lxrwcr ctxtting
il lr) I'lril. o(il), '/().1 ( I() I ())
 THE LEGISLATIVE DEPARTMENT 69'l
THE 1987 CONSTITUTION Sec.2 ART. VI -
OF THE REPUBLIC OF THE PHILIPPINES

i, gru"n to u lo"ul l.gt t@16iq, the rules ap- Jyu' and that a uurnbe!-higtlgr
olicable to the emoowerment of administrative asen€i#ecomes th"" tlgly f"u--ouldlend to dilute the quality of the Senate'*
a Thut,6.!!!!4Wrd'th" But can the number ? On the

basis of Davide's argument jultifying the s@

Supreme Court declared unconstitutional a statute which left the acti- basis

of the grammatical positionof theph'u'@

vation of a probation system to the discretion of the Provincial Board.
Among the defects which the Court found in the statute was invalid only by con-
in Section 2,itcanbe said that the number can be changed
delegation of legislative power. The Court ruled that the principles for
delegation to administrative agencies had not been satisfied. But this,
only because the Court said that for the purpose of the statute involved
to the number of Senators.
"the provincial boards may be regarded as administrative bodies."o'
The Senators are elgcted at large, that is, senatorial candidates
The Constitution itself, of course, may create 'other exceptio This man-
submit themselves to a vote of the entire national electorate.
to the rule on qan-dglggabilily. Thus, for instance, Article VI, Section constitutiolal amend-
5
qgglgs s, in1lilqeg
n&'[1E""ti"g Senators can only be changed bv
(2), authorizgs d:uar
and oJbgr Ugtionals4qgrgg n - Lerum that
ment. In tbct, an amendment proposed by Commissioner
23 C
to-giyelglheP-rcsidenj "powers necessary 4ndlroper to carrv out a
5 fiil ou, of the twenty-four should be elected as may be provided by
declared national policy.'.'and again, Section 28(2) autho t law..torepresentthesectors',wasdefeated.AsCommissionerRodrigo
t import and export quqtu. ton-
pointed out, the reason for requiring thal Senators be elecled
at larqe
nage and wharfageiuqs,and oltrelgutis!_qnd imposts. t J*-t uuhLh , ruu. th"-rr*g[o Sgltsrylhqdesire that the Senate look on
problems f{oq

2 u"{t n O .'^Lu. r@*o"hlul;".r-."tin".*Similarly,aproposalof

spc. 2. TuE Srnerr SHALL BE coMposE))o{ rwnNry-Foul, "through a party-
Co--]!--rioner Gascon to have the Senators elected
*-*. Mlo,;,l
Snx^rrons wHo sHALL BE ELECTED .lr u,ncr'By rHE eUALIFIED
list system" was defeated.uu
vorERsoFrHEp"*r"..* f)''/u'",'
"ffi;.-" hntra,:il'
1. -- -fo^e
Composition and election of Senate.
','"ii,r'nl t
ti
i

Snc. 3. No pnnsoN sHALL BE 'r SrNlron UNLESS HE

THE DAY OF
Is A
THE
NATURAL-BORN CITIZEN Or rnn PHII-TPPINEST ANDt
ON
W,p^,.{WJ V-ay,(vt ABLE TO READ AND
Following the 1935 Constitution, the 19&7-q#-nstitution ffls ELECTION' IS AT LEAST THIRTY'FIVE YEARS OF AGE'
oF THE Pmr'rpprNns
pegged the total membership of the Senate a(lwenty wRlrE, A REGISTERED vorERt AND A RESIDENT
PRECEDING THE DAY OF
I.'OR NOT LESS THAN TWO YEARS IMMEDIATELY
basis for flxing the number at twenty-four? In response to this qucstion, .I'HI' ELECTION.
Commissioner Davide, Chairman of the Committee on the Legislaturc,
answered that the number was decided upon disregarding thc firctor ol'
an the ever growing population. Davide said that the Committcc ltxrkctl
l. Qualification of Senators'
he is a natu-
rather on the slim vote favoring bicameralism, in spite of a cornlnillcc Scction 3 says: "No person shall be a Senator unless
day of the election' is at
report embodying unicameralism, as a signal of the desire to rctrlnr lo rll-born citizen of ttre ttrliippines, and, on the
voter'
lcirst thirty-live years of age, able to read and write' a
the small Senate of the 1935 Constitution. He recalled that llrc pro registered
years immediately
ponents of bicameralism had argued that bicameralism cuuld tchicvt' anrl a rcsiclcnt of the Philippines for not less than two
provision re-
quality
L-:!-+ legislation and therefore the Committee thought it wisc lor llris pr.ccctling thc day of the Jection." Deliberations on this
pfroile to provide Davide in fact suggcstcd thirt tlrt'
@t@.
'''ll ttl('()Rl) 146
"rrrl. itl 5()'l
r'r(r5 "'lrl.;rl 5(),1 (r.
l'hil.56 ( l().17).
.,,1,1 .,1 \r)(r /.
"!ltl.ul ll(t.
i,
 THE 1987 CONSTITUTION VI THE LEGISLAIIVE DEPARTMENT 699
OF THE REPUBLIC OF THE PHILIPPINES
Sec.4 Sec.5 ART. -

veal (1) thar the iron. i(doii"ilin with one immediate re-election, (3) a six-year term without immediate
the Philippines ne re-election, and (4) a six-year term without limit on the possible number
lhe lwo;veal period, and (2xhat the age quarification musibe gossessed of re-elections. Twenty-two voted for the second alternative which is
s fixed bv law and not on the day ofproc- now the second paragraph of section 4. Moreover, "[v]oluntary renun-
blqAlisq.'Moreover, a proposal of Commissioner Tingson to raise the ciation of the office for any length of time shall not be considered as an
age requirement to forty was withdrawn after some young and not so intemrption in the continuity of his service for the full term for which
young Commissioners ganged up onrfrim.u8 he was elected."

Src.4. THn rBnu$r

b Wv fut'
oFFrcE oF THE Srnarons sHALL BE srx
YEARS AND SHALL COMMENCE, UNLDSS OTHERWISE PROVIDED By
LAW,
AT NooN oN THE THIRTTETTT DAy oF Juxn xrxr FoLLowrNG THErR
ELECTION.
No Srxaron sHALL sERyE FoR MoRE.THAN Two coNSECrrrrvE
TERMS.Vor,uNra,ny R-ENUNCIATTON oF THE oFrrcE f,,oR ANy LENGTH
OF TIME SHALL NOT BE CONSIDERED AS AN INTERRTJPTION IN TIIE
CONTINUITY OF HIS SERVICE FOR THE FULL TERM FOR WI{ICH HE WAS
ELECTED.
1. The term of Senators; staggering of terms.
The term of office of Senators is six years and, unless otherwise
provided by law, commences at noon on the thirtieth day of June next
following their election. The six-year term follows the model of the
senate under the 1935 constitution. The innovation introduced by the
1987 constitution is the constraint that no senator shall serve for..more
than two consecutive terms."
Does the limitation on number of elections mean that a Senator
who has served two consecutive terms must wait for six years before
he can run again for the Senate? The answer given to this question was
that a Senator could run again three years after the expiration of his
second term.To
Although section 4 provides for a six-year term, those elected in
the May 1981 elections had a term of five years because Section 2 of
the Transitory Provisions said: "The Senators, Members of the House of
Representatives, and the local offlcials first elected under this Constitu-
tion shall serve until noon of June30,1992." Moreover, from 1992 the
staggering of the terms started. Section 2 of the Transitory Provisions
said: "Of the Senators elected in the election in 1992, the first twelve
obtaining the highest number of votes shall serve for six years and the
remaining twelve for three years." Thereafter, senatorial elections take
place every three years and all are elected for a six-year term'
Snc.5. (l) Tm @
,ptr* sHALL BE

coMPoSEDoFNoTMORETHANTwoHUNDREDANDFIFTYMEMBERS'
The six-year term was arrived at after a lengthy discussion which UNLESSoTHERwIsEFIXEDBYLAw'wHoSHALLBEELECTEDFRoM
involved a joint consideration of the terms of the president, vice-pres- LEGTSLATIVEDISTRICTSAPPORTIoNEDAMoNGTHEPROVINCES'cITIEs'
ident, senators, and members of the House of Representatives.o, The AND THE Mrrnopor,rmx M.lxrr,l AREA lN AccoRDANcE WITH THE
term of the Senators came out as part of a total package which could fa- NUMBER OF TIIEIR RESPECTIVE INHABITANTS' AND ON THE BASIS OF
cilitate synchronization of elections A UNIFORM AND PROGRESSTVE RATIOT AND THOSE WIrOr AS PROVIDED
- six years for the president, Vicc-
President, and senators, and three years for members of the House. BY LAW' SHALL BE ELECTED THROUGH A PARTY'LIST SYSTEM OF'
REGISTERED NATIONALT REGIONALT AND SECTORAL PARTIES OR
on the possibility of re-election of senators, the constitutirnal ORGANIZATIONS.
commission voted to choose from among four alternatives: ( l) a six- nBpnnsnx
(2) Tnn panrv'r-Isr sIrALL coNsrrrurn
year term with an.absolute bar against re-election, (2) a six-year tenn or RrpnnsnnrarlvEs
ryqNrl-!8rylylv-oF rHE TSIA! NgNIEp4
INT]I,UDIN(; THOSE UNDER THE PARTY T-TST. FON THREE CONSECUTIVE
.[r,]RMS At,t,trR THD Rd(flFICATION OF rUrs coxsuruTloN' ONE-HALF
67
Id. at 87 .
68/r/.
at I 5.1 I 5(r
""/r/. al 2()7 I 15 "'/r/. ttt 5(X)
 THE 1987 CONSTITUTION
- THELEGISLATIVEDEPARTMENT
Sec.5 ART.VI 701
Sec.5
OFTHE REPUBLIC OFTHE PHILIPPINES

OF THE SEATS ALLOCATED TO PARTY LIST I'EPRF'.Sf,,NTATIVF'S SHALL

BE however, as a result of the increase of the numbef of legislative dis-
FILLED, AS PROVIDED By LAW, By SELECTION OR ELECTION FROM THE
LABOR, PEASANT, URBAN POOR, INDIGENOUS CUITTURAL COMMUNITTES, tricts, either because of the creation of a new plovince or of a new city,
woMEN, YOUTH, AND SUCH OTHER SECTORS AS MAy BE PROVIDED By an imbalance results in the remaining legislative districts of the mother
LAW, EXCEPT TIIE RELIGIOUS SECTOR. province, the commission on Elections has no authority to correct the
(3) imbalance by the transfer of municipalities from one district to another'
E.l,cn r,rcrslATrvE DtsrRrcr sHALL coMpRrsE, As
correction of the imbalance must await the enactment of a reapportion-
FAR
AS PRACTICABLE, CONTIGUOUS, COMPACT AND ADJACENT TERRITORY.
E.lcn crry wITH A popuLATIoN oF AT LEAsr rwo HUNDRED ment 1aw.73

Section 5(1) provides for two kinds of represen : listrict

FII"fy THousAND, OR EACH pRovINcE, SHALL HAVE AT LEAST ONE
REPRESENTATIVE.
representatives electerl by districts and p-4zry-rcplglgflt4tlyes elected
(4) Wtrnrx rHREE yEARs FoLLowrNG THE RETURN oF, ttnoygb tfre oarty-tist systerlt. Section 5(2) adds a third kind: {ectoral
EvERy cENSUs, tnr CoxcnEss SHALL MAKE A REArroRTToNMENT oF. rep-relgltatiYgs. However, sgtoral representatign in the house of Rep-
LEGISLATIVE DISTRICTS BASED ON THE STANDARDS PROVIDED IN
TI{IS resentatives will last only for "three consecutive terms after the ratifi-
SECTION.
cation of this Constitution." After the lapse of such period, there will
remain only district and party rcpresentatives.
1. Composition of the House of Representatives.
Section 5(1) fixes of the 2. Districtrepresentatives.
tives at lu,o hundred and fifty. The initial total membetrhip *il*u.,in"d
Section 5(1) prescribes that district representativep "shall be elect-
at taking into consideration a gities,
.7r How_ ed from legislative districts apportioned among the provinc.es,
ever, the total membership of the House may be raised from time to time
and the @ in accordance with the nu f
by statute because section I says that the total is 250 ..unless otherwise basis of a unifo -
their re.spe,4iyejnhahiranrs, and on-the
Sxed blz law.." This can be done through@ sive r@1." The underlying principle behind this rule for apportionment
the creation of new districts or through the creation of new provinces,
iiih"6n."p, o@hich is a basic principle
since each province is entitled to at least on district, or through the cre-
ation of cities meriting one legislative district under section s1ry. n"-
oj4pUb!lg4l1tm.';dne;an's vote should carry as much weight as the
apportionment of legislative districts, according to section 5(4), must
not"-or *"ry other man. In a representative system, this equality is
ensured by requiring that the representatives represent as much as pos-
be done by congress within three years following the return of every
census in order to ensure that proportional representation is preserved.
sible an equal number of constituents. This can be achieved either by
making representatives represent districts of equal sizes in terms of in-
When
94\ofuhe_lsuinipalfties of a gonqressional district is con- habitants or by requiring that larger representative districts should be
I"Tgd
into (city)arge enough ro , ,n. entitled to more representatives. The 1973 Constitution followed the
iqgtdgl13l_9!tr( is ttre splitting of the Oistrict into t,ryo.TfrelrrciUen- second method since the country was then divided not into representa-
tal arising of a new district in this manner need not be preceded by a tive districts of approximately equal sizes but into regions of unequal
census. Moreover, this incidental effect is deemed implicitly containctl sizes. Section 5(1) reverts to the rule under the 1935 Constitution ac-
in the title announcing the creation of the new city thus satisrying the cording to which the country was divided into representative districts of
requirement that the content of the bill be announced in the title.', ll'. more or less equal sizes represented by one representative'

7tId. at 44.
T2Tobias
v. Abalos' 239 S('RA lo6 ( I994); Murinno, Jr'. v. (irrnnrissiun orr lilcctior*, ( l.R /'Morrlcio v. (irtntnissiott on l'llcctiorrs' (i.lt. No I ltt702. March 16. 1995.
No. lltt627, March 7. 1995. /iMrrtius v.('()Mlil,li('. l S('RA 1,7 tl (l()Ol).
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Sec.5 ART.VI - THELEGISLATIVEDEPARTMENT 7O3

For the pulpose of the first elections under the 19g7 constitution,
two hundred fifty thousand;o If a city is smaller than the minimum size
an ordinance appended to the constitution divided the country into 200 required, it will simply be represented as a part of one of the districts
Iepresentative distriqts.Ts on the basis of a.15 million populationlthc within the province. A province, however, is entitled to one representa-
result achieved was roughly _one representative for more or less ev_e_ry
tive no matter what its population size. This, in effect, is an exception to
250,000. Since 1986, however, the number of representative districts
-IaslnGased the rule on proportional representation because a number of provinces,
beyond the original fifty.
such as Batanes, have a population size much smaller than that required
for a district or for a city.'o
3. Apportionment. //
The rules for dividing provinces and cities and the Metropolitarr
,:fne fourth rule, found in Section 5(4) says: "X4!h!q threeJetqs
followingihe return of every censu.s, the Congress shall make a reap-
Manila area as well as other metropolitan ayz/ whichmight be creatcd
in the future are set down in Secrion 5. ThdqgDqqiq nfl%found in Sec_
t-hitqrcligq." This provision is intended to allow for correction of im-
tion 5(1), is that the lggUleliye_diqgigts shail be ,,appO4iOned among O.,
balances in representation due to rise and movements of population.
provinces, g{qs, and the l4gqgpgli@f4qrylu qtq.14 accordance wirlr
The frequency of reapportionment will depend partly on the frequency
the , and on the basis ofa unitirrnr
of censuses. But what happens if Congress does not do what is pre-
ald prqglgsltq!!qio."
scribed by Section 5(4)?
Zan" second rule, stated in Section 5(3), is that ..EacA
Contrary to early American jurisprudence, it is now established in
a:tt{rgt_ltrgll respulg, as& :q llgg!&gble, cp}ti act untl this jurisdiction that observance of the constitutional mandate regarding
adiqsg4_tes4qry." This *@-ln6riif,)cor- appqtlonment of representative districts is a iusticiable question qqg-
rymandering means the c-reation of representat of sgpg-
nizable by the courts. Decisions in this tenor were promulgated by the
rate portions of territorv in order to favor a candidatg. This was ulso
court under the 1935 Constitution.'' Likewise Tobias v. Abalo.s82 decid-
prohibited under the 1935 constitution.T6It should be noted, howcvcr,
ed a case involving the creation of a new representative district under
that the requirement that @hould consist of ..crur the 1987 Constitution. The case involved the division of San Juan and
!g!cus, "o*pu.t_und udj hrasc ..'r. Mandaluyong into two representative districts. Originally the two had
far as practicable." rn Felwa v. salas,li construing an identical provisiorr
formed one representative district. But with the elqyelion gt!444441uy-
in the 1935 constitution, there was a suggestion that ethnic or trihnl
ong from municipality into a highly urbanized city' bath f4a444bygng
considerations might justify departure from the rule.
and San Juan were recognized bv R.A.No-2625 as distftiet repr€s=enta-
a A,thud-nilz also found in Section 5(3) is that.,Each ciry with ilffi-r ,6@ia
a popul*ion of at leas fty_fhSUgald, orp4qh pr6virrec, not mentibn any census indicating that San Juan and Mandaluyong had
shall have at least one representative."" It should be notcd lh:rl lirr rr the minimal requirement of 250000 inhabitants needed to constitute a
city to merit one representative it should have a population ul'at lenrt district. Neither did the challengers, however, give any evidence that
the respective populations of each of the two political units were less

TsRather
than pass on the task of apportioning the nation to thc lrrcsidcrrt ol to ( '( )M I ll I i( ?eAn amendment to allow cities entitled to more than one representative to elect their rep-
for the purpose of the first elections under this Constitution, thc Conrnrissiorr tlcr'irkrl to rlo tl|F
resentatives at large was rejected. Il RECORD 176'593-4.
apportioning. V RECORD 669-700. ('Thcrc is a bit ol discussitln on this' id. at I36-I38.
T6Article VI,
Section 2 (1935\. slMaciirs v. ('()MIil,ti(', sil/rf(,, n()tc 55: trelwa v. Salas, supra;Gonzales v. COMELEC,
7718
scRA 606, 6t5 ( I966).
TEThc 2l scRA174(1e67\-
<lriginal minimum tppnrvetl was u pr4rulltion ol lwo lrrrrrrlrcrl llrorrrurrrl h1l llrlr wti rr2tU S('RA l06 (l()()4) Mlrilrro,.lr. v. (irrnruissirxr on filcctions, (i.R. No. 118627,
litlcr ruisctl to two hrrnrlrctl liliy tlrousurrtl. V R I i('( )R I 06()
Mnlch 7. l()()5.
'
,l

THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
than the number required. Hence the Court presumed that Congress had
made due consideration of the minimum requirement.E3
However, although it is the c.onstitutional duty
to euune-proportionQ!-f+feseilatiqn, it is submitted that there iQ-ry1'
power which can compel Congress Jo m3ke a reapportionment
when, through the growth and rnovement of populations. the existing
abportionment has in fact become inequitable. In fact, Philippine
-jurisprudence
suggests that what the Constitution y
in apportionment if the inequality is cregted by law and lot when the
ion. This
much may be gathered f hich upheld the
validity of existing represeniative districts in spite of admitted gross
disproportion in population distribution. However, the result in the
Gonzales decision was anchored on a 1935 provision which said: "Until
such apportionment shall have been made, the House of Representatives
shall have the same number of Members as that fixed by law for the
National Assembly, who shall be elected by the qualified electors from
the present Assembly districts." The provision legalized whatever
inequity there may have been in the existing apportionment. No similar
provision is found in the present Constitution. A factual inequitable
situation, therefore, would already be an unconstitutional situation. But
if Congress refuses to remedy the situation by a new apportionment, as
mandated by Section 5(4), can any power compel Congress to make
the reapportionment, or can anybody else do the reapportioning? Can
the Courts or the Commission on Elections do it? These are questions
which Philippine jurisprudence has not yet answered."
Moreover, SS-g:.COAEAQ6 ruled that nEw legislative disficts
fnay be created only hy law. Section 19, Article VI of R.A. No. 9054,
insofar as it granted to the ARMM Regional Assembly the power to cre-
ate provinces and cities, which could in effect result in the creation of
legislative districts, was invalidated. "Only Congress can create prov-
inces and cities because the creation ofprovinces and cities necessarily
includes the creation of legislative districts, a power only Congress can
831d. at lll .
841d.
8sOn this matter, see ld., Reynolds v. Sims, 377 tJ.S. 533 ( I 964); Wcsbcrry v. Sanders, 376
r.t.S. I (t964).
3"St'rrrl v. ('( )Ml il.l (', ( ;.11. N{). | 775()7, .lttly
ART.VI 705
Sec.5
Sec.5 -THELEGISLATIVEDEPARTMENT
exercise under Section 5, Article VI of the Constitution and Section 3
of the Ordinance appended to the Constitution. The ARMM Regional
Assembly cannot create a province without a legislative district because
the Constitution mandates that every province shall have a legislative
district."
Itp-hould also be noted that the of a tep*t. -
"t"ution
trict ( ni! t&-SqtLe as the creation of a new political subdivisio.n' In
Bagabuyo v. Commission on Elections,s' the constitutionality of the di-
vision of Cagayan de Oro City into two legislative distriqts was chal-
lenged on the ground that no plebiscite had been held to approve it.
The petitioner was under the erroneous impression that thgfrgadon-of
@y involves the creation of anew political
subdivision for which a plebiscite is required by Article X, Section 10.
But what happened here was a reapportionment under Article VI, Sec-
tion 5 which do". nol *qotl9-Adgbisctte. No new political subdivision
was created t""aose Cigayan de Oro remained as one city.
4. Sectoral representation and party'list representation.
There are two related but distinct concepts found in Section 5:
sectoral representation and party-list or proportional representation.
Both are important for a full understanding of the provision.
Sectoral representation, was explained by Commissioner Villa-
corta thus:88
The idea of giving meaningful representation, particular-
ly to the farmers and the workers, would be our Commission's
humble gesture of extending protection to the interests of these
groups which are not adequately attended to in normal legislative
deliberations. Sectoral representation is a necessity, especially in
these times when the people are giving the democratic process
another chance, if not its last chance. Providing for mechanisms
which would enhance the chances of marginalized sectors in elect-
ing their Representatives to the National Assembly will keep their
hopes alive in the principle of peaceful change. This imperative
becomes more urgent when this Commission recently adopted a
bicameral system of legislature. We have heard apprehensions that
ir(i.R. No. 176()70, lX:cctttlx'r lt,2(X)tl
It/r/. ut li4 tl5, l40- 147.
I (r, 12{X)tt.
706 THE 1987 CONSTITUTION Sec.5
OF THE REPUBLIC OF THE PHILIPPINES
the Upper House might be monopolized by the moneyed sectors
and might protect vested property interests.
PartyJist representation was elucidated by Commissioner Mon-
sod, its main sponsor:'n
Iwould like to make a distinction from the beginning that
the proposal for the party list system is not synonymous with that
of the sectoral representation. Precisely, the party list system seeks
to avoid the dilemma of choice of sectors and who constitute the
members of the sectors. In making the proposal on the party list
system, we were made aware of the problems precisely cited by
Commissioner Bacani of which sectors will have reserved seats.
Under the party list system, there are no reserved seats for
sectors. Let us say, laborers and farmers can form a sectoral party
or a sectoral organization that will then register and present candi-
dates of their party. How do the mechanics go?
Essentially, under the_part)r !!! rJg!94, every voter has two
votes, so there is no discrimination. First, he will vote for the rep-
resentative of his legislative district, That ffi
b;not,Te wiIITe asked: What partY or organization or c
will be
attached a
here
been resi
.that lisq. This can be a r,egional party, a sectoral party, a national
party, UIDO*Vt"gt"t"t" *gi"t. ndanao. O-ne
"t "
n""d not be a farfrer to say that he wants thE-farmers'party to be
represented in the Assembly. Any citizen can vote for any party. At
the end of the day, the COMELEC will then tabulate the votes that
had been garnered by each party or each organization - one does
not have to be a political party and register in order to participate
there derive the percent-
as a party
- and count the votescastandin from
favor of a party, organization
age of the votes that had been
or coalition.
Much of the discussion on the party-list system revolved around
the question of how sectors, that is, especially disadvantaged sectors
of society, should be represented. One view was that sectoral parties or
organizations should be assured reserved seats in the House; another
8e/d. at 85-86
Sec.5 ART.VI _ THELEGISLATIVEDEPARTMENT 7O7
view was that they should compete in the party-list system just like any
other party or organization.eo The desire to give them reserved seats was
born of the recognition of the inability of the disadvantaged sectors to
compete in the political process.e' In the end the Commission approved
a compromise: "For three consecutive terms after the ratification of this
Constitution, one-half of the seats allocated to party-list representa-
tives" will be reserved for sectoral representatives who will be chosen
"as provided by law."
This compromise recognizes the handicap under which disadvan-
taged sectors operate but at the same time it is meant to motivate them
to strengthen their organizations so that they will eventually be able to
compete in the regular party-list system three consecutive terms after
the operation of the party-list system commences.e2 In the concrete this
would mean that by the elections of 1998 the sectors would have to
compete in the party-list system of the electoral process.e3
The original list of sectors to be represented included only labor,
peasant, urban poor, and youth sectors. There was a recognition. how-
ever, that these sectors could further be subdivided by law into sub-sec-
cultural communities
tors.e4 Eventually, two other sectors
- indigenous
and women
- were added,es and also "such other sectors as may be
provided by law."eo And Commissioner Rigos added: "Q{gsg! thejell
gious sector.l'n'But, upon question by Commissioner Villacorta, Rigos
explained that a member of the religious sector may become a sectoral
representative but not as representing the religious sector.e8
Originally, the manner of choosing the sectoral representatives
during the transition period was to be left to ordinary legislation.nn
Eventually, however, the Constitutional Commission added a supple-
mental alternative which became Article XVIII, Section 7: "Until a law
is passed, the President may fill by appointment from a list of nominees
qt
Id. at 252-259 ; 560-583.
etld. at 561-56'l .
e2
I d. at 567 -57 O, 577 -582.
"//. at 58-5-586.
'4 ld. 5'13.
"ld.574
"t'hl. at 5t17 .
,t
Il,
"rftl. rrl 5t19.
"'Articlc Vl, Scctron 5(2).
708 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
by the respective sectors the seats reserved for sectoral representation
in paragraph (2), Section 5 of Article VI of this Constitution."l'' Should
the President appoint such sectoral representatives, their term would be
that found in the Constitution. A subsequent law passed by Congress
would not oust those appointed by the President.t.'
It should be noted, howeverrthat.the text says l'may fill by ap-
Jgrntgglt" The use of the word(may) which is permissive, was de-
liberate in order to give to the Prebiden't ample leeway.'o2 However, the
President was not free to choose any one he pleases. He or she must
choose from "a list of nominees bv the respective sectors;]' but if the
President oio nffishe could ask for another list
or may decide not to appoint anyone.'.3
Must the sectoral representative appointed by the President be con-
firmed by the Commission on Appointments? This was not discussed in
the Constitutional Commission because sectoral representation was ap-
proved before the commission had done its work on the Commission
on Appointments. When later the matter went to the Supreme Court,
the Court ruled in Quintos-Deles v. Commission on Appointmentst,4 that
confirmation was needed. The Court reasoned that, since the sectoral
representative would be, under Article XVIII. Section 7, appointed by
the President, he came under Article VII, Section 16 which includes
among those needing confirmation "
are vested in him in this Constitution."
In sum, therefore, Section 5 p.ouid.@
reeime of sectoral reoresentation for three consecutive terms
- first implemented in 1998, the major political parties, according to the
porary sectoral representation regime was an answer to the recognized
disadvantage of the marginalized sectors. At the same time it was a
signal to these sectors that within a period of three congressional terms
they should prepare to compete with other organizations and traditional
political parties in a system of proportional representation that would
treat parties and organization on the same level.
'mv RECORD 328-338.
totld.332.
to2ld. at333-336.
to1ld. 338 .
r04l77 scRA 259 (1989)
Sec. 5 ART. VI _ THE LEGISLATIVE DEPARTMENT 709
Those qualified to participate in the party-list system are "regis-
tered national, regional, and sectoral parties or organizations" in the
manner explained by Commissioner Monsod. The party-list represen-
tatives will constitute "twenty per centum of the total number of rep-
resentatives including those under the party list." Thus, under a total
membership of 250,a fully operative party-list system would mean 200
district representatives and 50 party-list representatives.'05
Although the Constitution does not set down the mechanics for
the operation of the system but leaves these to ordinary legislation,
the 1986 Constitutional Commission had a clear understanding of the
rough outlines of how the system should operate.'tr Parties or organiza-
tions desiring to participate in the party-list system register themselves
together with a list of the party's or organization's list of nominees for
party-list representatives. The maximum number will be prescribed by
law and the nominees will be arranged by the party or organization
according to an o4lerQlhrriorities. In every ele4nn for the House of
Representatives,,Q$jgiet casjr 1rvq ]e!gs: aft for the 4istrict reprq-
sgqlative of hi. orfe{ choiq arid another for the.party or organization
oi()e. The votes cast for the parties and organizations are
tbtaled nationwide. The number of partyJist seats a party or organiza-
tion will get will depend on the number of votes it receives in propor-
tion to the total number of votes cast nationwide.'0'
5. Jurisprudence on the party-list system.
The current party-list law i@publtg4"t No.z1Dilhen it was
- and
terms of the statute, were excluded from participation.
An early case on the party-list system under R.A. No. 7941 settled
two questions. First, how many votes must an organization receive in
order to qualify for a seat in the House? R.A. No. 7941 required par-
ties, organizations and coalitions participating in the system to obtain at
least two percent of the total votes cast for the party-list system in order
to be entitled to a party-list seat. Those garnering more than this per-
rrrv REC]ORI) 664-666.
tt*l'hc (-'ornrnission was ulso quite uwarc of the practical difficulties which the system
t:rrrltl cncounlcr. l').14., su ll RIi()RD 57 I -572.
n,/r/. trt 25.1 254.

"]IO Sec.5
THE 1987 CONSTITT]TION
OF THE REPUBLIC OF THE PHILIPPINES
centage may have "additional seats in proportion to their total number
of votes." Furthermore, no winning party, organization or coalition may
have more than three seats in the House of Representatives.
This two percent threshold requirement and the three-seat limit
provided in Section 11 were challenged as unconstitutional.lnVeterans
Federation Party, et al. v. COMELEC,'o' the Court said that a simple
reading of Section 5, Article VI, of the Constitution, easily conveyed
the equally simple message that Congress was vested with the broad
power to define and prescribe the mechanics of the party-list system of
representation. The Constitution explicitly set down only the percent-
age of the total membership in the House of Representatives reserved
for partyJist representatives.
A related question was whether the allocated twenty percent of
the total House membership set a mandatory number that must be filled
or whether it merely set a ceiling. The Court said that in imposing a
two percent threshold for parties to qualify for representation, Congress
wanted to ensure that only those parties, organizations and coalitions
having a sufficient number of constituents deserving of representation
were actually represented in Congress. The Court said that this intent
could be gleaned from the deliberations on the proposed bill. Thus the
Court additionally ruled in Veterans that the twenty percent prescrip-
tion of the Constitution was merely a maximum limit to the number of
partyJist representatives but the maximum need not be filled.
A more serious controversy, however, was the question of which
parties and organizations qualified to be voted for in partyJist elec-
tions. The issue was threshed outin Ang Bagong Bayani, et al.v. COM-
ELEC.'@ A divided Supreme court made the ruling that the intent of the
Constitutional Commission and of the implementing statute, R.A. No.
794l,was not to allow all associations to participate indiscriminately
in the system but to limit participation to parties or organizations repre-
senting the "marginalized and underprivileggd." The Court said: "The
party-list system is a social justice tool designed not only to give more
law to the great masses of our people who have less in life, but also to
enable them to become veritable lawmakers themselves, empowered to
r08G.R. No. 136781, October 6, 2000. Partido v. COMEI,EC reiterated thc prevailing lirr-
mula for the computation of additional seats for party-list winners as originally stated in thc ltnd-
mark case of U?tertns -
ro'(i.R. No. 1475t19. Junc 26.2(X)1.
.7II
Sec.5 ART. VI - THE LEGISLATIVE DEPARTMENT
participate directly in the enactment of laws designed to benefit them."
For this purpose, the Court laid down guidelines for the COMELEC to
apply in deciding which organizations qualified. Among the guidelines
was the requirement that the parties or organizations must represent the
marginalized and underrepresented sector. The court said that even po-
litical parties must comply with this requirement. Moreover, the nomi-
nees themselves must comply with the qualitative requirement.
What is clear from the decision is that the Court, speaking through
Justice Panganiban, sees the party-list system not as a proportional sys-
tem ofrepresentation designed to strengthen democracy but as "sectoral
j4f-srntatlotr- meant to promote social justice. The deliberations of the
-Constitutional
Commission were clearly to the contrary. In the course
of the drafting of the provision, commissioner Villacorta proposed that
3OVo of the seats in the House of Representatives be allocated equally
between sectors and representatives of parties and organizations. The
thrust of the proposal was that 307o of the partyJist seats should be
permanently reserved for marginalized sectors. There was much debate
on this on July 25,I986,but the session adjoumed without a solution.
When session resumed on August 1 , a group of 22 Commissioners
got together to propose a compromise provision saying that during the
first two terms of the House of Representatives 25 of the party-list seats
should be reserved for marginalized sectors. commissioner Tadeo of
the farm sector and Commissioner Lerum of the labor sector were not
happy with the compromise. They wanted permanent reserved seats to
insure that these seats would not be gobbled up by political parties. An
amendment, therefore, was proposed for permanent reserved seats for
the underprivileged. The long and the short of it, however, was that, af-
ter more debate, the idea of permanently reserved seats was rejected by
a vote of 22 against and 19 in favor. What was approved was that "for
the first three terms after the ratification of this Constitution twenty-
five of the seats allocated to party list representatives shall be filled, as
provided by law, by election or selection from" from the marginalized
sectors. In other words, twenty-five seats would be reserved but only for
three consecutive terms.
In the face of all this, nevertheless, Justice Panganiban concluded
in Ang Bul4ong, Iluyuni that all the fifty seats, and not just twenty-five,
i
arc rosorvcd lor thc lnarginalizcd sccttlrs, and notjust for three consecu-
i tivc tcntts httt lilrcvcr.
712 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
when the dissenting opinion of Justice Mendoza pointed to what
the Record of the Constitutional Commission showed, Panganiban re-
torted that Commission records should be consulted only when the
text of the Constitution is not clear. For him, the text - in spite of the
specific three term and fifty percent limitation - was clearly not for
twenty-five only but for fifty seats, and not for three terms only but
forever. Effectively, he deleted the phrase "For three consecutive terms
after the ratification of this Constitution one-half of the seats." Indeed,
after such amputation, and only after such amputation, the text becomes
clearly on his side.
That is not all. The majority also ruled that party-list nominees
..must represent marginalized and underrepresented sectors'" This
means that nominees who do not have this ideological quality (which
incidentally is not easily proved or disproved), they are not qualified
to be members of the House of Representatives as party-list represen-
tatives. But this is another departure from the constitutional text; this
time, however, not by amputation but by grafting. No such ideological
requirement is found in Section 6 of Article VI which enumerates the
qualifications of a member of the House of Representatives' According
to Section 6, the only difference in qualifications between district rep-
resentatives and party-list representatives is that a party-list representa-
tive does not represent a district and therefore need not have resided in
a single district for at least one year immediately preceding the election.
In fact, neither does R.A. No. 7941 prescribe an ideological qualifica-
tion:
SECTION 9. Qualifications of Parry-List Nominees' - No
person shall be nominated as partylist representative unless he
is a natural-born citizen of the Philippines, a registered voter, a
residentofthePhilippinesforaperiodofnotlessthanone(l)year
immediately preceding the day of the election, able to read and
write, a bona fide member of the party or organization which he
seeks to represent for at least ninety (90) days preceding the day
of the election, and is at least twenty-five (25) years of age on thc
day of the election.
In case of a nominee of the youth sector, hc nrusl itl lcitst bc
twenty-five (25) but not more than thirty (30) ycars ol'itgc ott tltc
day of the election. Any youth sectoral reprcsctrtitlivc wlto itllltitts
the age of thirty (30) tluring his tcrrrt shilll bc itlktwctl lo t'ottlittttc
in ol'licr: rrntil thc cxltil'ittiott ol llis lct'ttt.
Sec.5 Sec.6 ART.VI - THELEGISLATIVEDEPARTMENT 713
Src.6. No prnsox sHALL BE l Mnnmpn oF rHE Housn or
RepnnsrNuuvEs UNLESS HE rs A NATURAL-BoRN crrrznN oF THE
PHtlrpplNns AND, oN THE DAy oF THE ELECTION,
IS AT LEAsr rwENTy-
FIVE YEARS OF AGE, ABLE TO READ AND WRITE, AND, EXCEPI THE
PARTY.LIST REPRESENTATIVES, A REGISTERED VOTER IN THE DISTRICT
IN WHICH HE SHALL BE ELECTED, AND A RESIDENT THEREOF FOR A
PERIOD OF NOT LESS THAN ONE YEAR IMMEDIATELY PRECEDING TIIE
DAY OF THE ELECTION.
1. Qualifications of district and party-list Representatives.
A4istrictrepresentative must be a glDfalbOfUettizefr of the Phil-
ippines, a registered voter in the district in which he shall be elected,
and a resident of that district for a period of not less than one year im-
mediately preceding the day of the election. The qualifications must be
possessed on the day of the election.l'.
The qualifications of a sgctoral representati
discu ssed by the Commiss ion. S i nce, howe ver.d-ec to ra I rer.resen,Itug
were, for a limited period, meant to take th" pli.e of pirti-tEir"pr"-
sentatives and were a prelude to full implementation of the party-list
system, they should have the same qualifications as party-list repre-
sentatives. possess the same qualifica-
@ust
tions except for the exemption from the requirement of being a resident
of a district for at least one year immediately preceding the election.
This is because a party-list representative does not represent a district.
It is understood, moreover, that implicit in this requirement is that a
party-list representative must be a registered voter and a resident of the
Philippines. However, as noted above, Ang Bagong Bayani seems to
have amended the Constitution by adding the requirement that party-list
nominees "must represent marginalized and underrepresented sectors."
The citizenship qualification is that a representative must be a
naturalborn citizen of the Philippines. "Natural-born citizens," accord-
ing kr the Constitution, "are those who are citizens of the Philippines
lhrrn birth without having to perform any act to acquire or perfect their
Philippinc citizcnship. Those who elect Philippine citizenship in accor-
tttt('.t,nlrtt,t'wilh lrspirrosir v. Arlrrirrr,.lr'., S('nirl(' lilcckrrirl l'ribrrnirl, I;,lcclolrrl ('irsc No. ()
llrrurrry 15. l(Xrr)

Sec.6
714 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
dance with paragraph (3), Section 1 [of Article IV] shall be deemed
natural-born citizens.""'
when the second sentence of section 4, Article IV, was being dis-
cussed by the Constitutional Commission, one objection to it was that
it would allow citizens by election to qualify for constitutional posi-
tions reserved for natural-born citizens. The new provision was none-
theless accepted on the understanding that, if desired, the distinction
between different kinds of natural-born citizens could be made for
purposes of qualifying for constitutional offices when qualification for
lheie offices come up for discussion.", When these offices, however,
were discussed, no distinction was made. Hence, even citizens by elec-
tion who are deemed to be natural-born citizens satisfy the citizenship
qualification for representatives (as well as for Senators, President, and
Vice-President).u3 Moreover, the 2001 case of Bengzon v' Cruztto ruled
that a natural born citizenwho loses his citizenship by naturalization in
another country but later is repatriated recovers his status ofbeing a nat-
ural-born citizenand therefore is qualified to be a member of Congress.
The age qualification is the same as the age qualification for repre-
sentatives under the 1935 Constitution and for Batasan members under
the 1973 Constitution twenty-five years.
- residence qualification is to exclude a stranger or newcomer, un-
A representative must not only be a qualified elector,but he must
actually be"a registered votet."
As to the residence requirement, the meaning of residence as
found in the election law under the 1935 Constitution has been retained.
Gallego v. Verratts summed it up thus:
The term "residence" as used in the election law is synony-
mous with "domicile," which imports not only intention to reside
in a fixed place but also personal presence in that place coupled
with conduct indicative of such intention (Nuval vs' Guray, 52
ilrArticle IV, sec tion2. see dissent discussed under Article IV, Section 3, supra.
"rI RECORD 355,369.
rr3This expanded meaning of natural-born citizenship is not a novel idea. The 197 I Consti-
tutional Convention, which first formulated the definition of a natural born citizen
as one who is it
ncting ts
citizen from birth without having to perform any act to acquire or perfect his citiz.cnship,
l)clcgrl(c
the solejudge ofthe qualifications ofthe delegates to the Convcntion, votctl lo ctnsi<lcr
citizen and thcreforc qualilictl kr hc n rlclcgtrtc in spitc ()l'lhc ftlct
Emertob. Rng, a natural-born
(irnstitutiotl.
that Delegate Ang was a citizcn by elcction ltn(lcr lhc l9J5
IraG.R. No. l42tt4o, Muy ?,2(X)l
rr.7 I l,lril 45 t.455 () ( l(),1 I ).
ART.VI _ THELEGISLATIVEDEPARTMENT 715
Phil.645).In order to acquire a domicile by choice, there must
concur (1) residence or bodily presence in the new locality, (2)
an intention to remain there, and (3) an intention to abandon the
old domicile. In other words, there must be an animus non rever-
tendi and, an animus manendi. The purpose to remain in or at the
domicile of choice must be for an indefinite period of time. The
acts of the person must conform with this purpose. The change of
residence must be voluntary; the residence at the place chosen for
the domicile must be actual; and to the fact of residence there must
be added the animus manendi.
Such residence, accordingto Fayponv. Quirino,tt6 is not necessar-
ily lost even through prolonged absence:
A citizen may leave the place of his birth to look for "greener
pastures," as the saying goes, to improve his lot, and that, of course
includes study in other places, practice ofhis avocation, or engag-
ing in business.
The reason for the residence requirement was expressedby Gal-
lego thus:tt1
We might add that the manifest intent of the law in fixing a
acquainted with the conditions and needs of a community and not
identified with the latter, from an elective office to serve that com-
munity; and when the evidence on the alleged lack of residence
qualification is weak or inconclusive and it clearly appears, as in
the instant case, that the purpose of the law would not be thwart-
ed by upholding the right to the office, the will of the electorate
should be respected.
The definition of residence when written by the Court in Gallego
had reference to the residence qualification of a Mayor and in Faypon,
with reference to residence as a requirement for suffrage. The same
concept was used for residence as a qualification for representatives in
the 1935 Constitution and in the 1973 Constitution. A proposal to make
actual physical residence a requirement was rejected by the 1971 Con-
stitutional Convention.r r*
,,n96 I'hil. 294,299 (19541.
rr'7.1 Phil.
tt 45t).
rlrScssirrns ol July 2J, 1972 urrtl Octoht:r 12,1972;' ll RECIORI) tl7 (l9tl6).
7t6 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
When the decisions say that "residence" as requirement for Repre-
sentatives means "domicile," does it mean that a person must be domi-
ciled in the district which he wishes to represent and that he must have
been domiciled there for one year immediately preceding his election?
Or does it mean that one who has been a temporary resident of a place
for a year but has retained his domicile elsewhere may be elected repre-
sentative of his temporary residence?
It should be noted that the Constitution does not use the word
"domiciled." It uses the word "resident." There is a legally recognized
difference between residence and domicile. Residence means a place
of abode, whether permanent or temporary; domicile means permanent
residence to which one, when absent, has the intention to return. Resi-
dence, in other words, is not necessarily domicile; but domicile is nec-
essarily residence.
Keeping that distinction in mind, when the Constitution prescribes
a residence qualification, does it mean either residence or domicile, or
does it mean domicile only? What did the 1935 Constitution, from
which this requirement was copied, mean?
The debates about residence during the 1934-1935 Constitutional
Convention show that there was a group of delegates led by Delegatc
Ricardo Nepomuceno, Sr. who favored doing away with any local resi-
dence requirement altogether. Nepomuceno argued that it would be "to
the interest of the district and to the interest of the Filipino people kr
choose from as many good Filipinos as may be possible."tre f[i5 p6ci-
tion lost (although later it would win for Senators).
The next debatable point was whether the Constitution should rc
quire actual physical residence. The first draft of the provision, follow
ing the example of the Jones law, provided for actual residence. lJul
Delegate Alejandro de Guzman argued against this. He pointed out thrtl
residence has two meanings. It can mean either actual or constructivr'
residence (domicile). He argued against narrowing the meaning to only
one half of the word. He said that to narrow it thus would dcprivc thc
provinces of individuals who, even if absent from the provincer;, "l(tnltt
rrelv PROCEEDINGS OF' THI] ( 1 934) PHILI I'PlNli ('ONS'rl'I'L l'l'lONA
TION 404 (l,nrrnrt. Ed.).
Sec.6 Sec.6 ART.VI _ THELEGISLATIVEDEPARTMENT 717
quiereny aman a la provinciay aI distrito, mucho tnas que los que vren
o residen actualment en la provincia."l20
De Guzman won the vote. The adjective "actual" was dropped.
The full meaning of residence
was restored. But even as late as 1995
the meaning was not yet clear and it became the subject of Romualdez-
Marcos v. Commission on Electionst2t and Aquino v. Commission on
Elections.t22
The first case involved the candidacy of Imelda Marcos in her na-
tive Leyte. The decision did not contain an opinion which commanded
the concurrence of a majority even though the Court did rule that Mrs.
Marcos had satisfied the residence requirement. Briefly, there were three
approaches to this one conclusion. The first was that Leyte had been her
domicile of origin and that in all her life she never lost it. Hence, she
was qualified to run. The second was that she did lose her domicile of
origin because when she married Ferdinand Marcos she acquired the
domicile of her husband; but when Ferdinand Marcos died, she auto-
matically reacquired her domicile of origin, and this, early enough to
satisfy the one year residence in her reacquired domicile. The third was
that, when Ferdinand Marcos died, she was left free to establish her
domicile anywhere and she chose to establish it in Leyte early enough
to satisfy the one year residence.
From these three approaches, two conclusions may be drawn.
First, if a person retains his domicile of origin, for purposes of the resi-
dence requirement for representatives the one year period is irrelevant
because, by legal fiction, wherever he may be, he is a resident of his
domicile of origin. Second, if a person re-establishes a previously aban-
doned domicile or acquire a new one, the one year requirement must be
satisfied.'21
The case of Agapito Aquino was the reverse of that of Imelda
Marcos. Aquino's domicile of origin was Tarlac. The Court ruled that
tzttld. at 4lO-412.
r2rG.R. No. I19976, September 18, 1995.
r2G.R. No. 120265, September 18, 1995.
r2:'Ttvo doctrinal points were raised by dissenting justices. The first point
made was that
neithcr thc Supremc Court nor the Commission on Elections had jurisdiction to pass judgment on
qualilicltions becuusc such jurisdiction bclongs cxclusively to the Electoral Tribunal. The second
l ('( )NVtiN point, conccrling thnt the (irnrnrission on [ilections could passjudgment on qualification, said that
lhc Srrprcrnc (ilrrt cotrltl only rcvcrst'lhc (irnrnrission on the basis ol'grrve ahuse ofdiscretion.
l.
718 THE 1987 CONSTITUTION Sec.6
OFTHE REPUBLIC OFTHE PHILIPPINES Sec.7 ART.VI
- THELEGISLATIVEDEPARTMENT 719

Aquino had not abandoned his Tarlac domicile and that, even if he had,
found that the lease contract did not engender the kind of permanency
he had not been in Makati, the district where he had chosen to run, one
required to prove abandonment of one's original domicile. Moreover,
year immediately preceding the election. Justice Padilla, in addition,
he was found to have registered as a voter in one of the precincts of his
made the suggestion that, even if he had not abandoned Tarlac as his do-
former barangay in Quezon City.
micile but had established residence in Makati for one year immediately
preceding the election, he would be qualified. In other words, Padilla's The enumeration of qualifications in Section 6 is exclusive. Con-
view was that either domicile or residence would suffice provided that gress may not add anything to it. Thus, the requirement in Republic
the one year physical presence is satisfied. No justice contradicted this Act No. (RA) 9165, otherwise known as the Comprehensive Danger-
view but none affirmed it either. ous Drugs Act of 2002,that candidates for public office should undergo
mandatory random drug testing was declared unconstitutional for can-
The residence requirement was further clarified in Domino v.
didates for national office in Social Justice Society v. Dangerous Drugs
COMELEC.'24 Records showed that petitioner's domicile of origin was
Board."'
Candon, Ilocos Sur and that sometime in 1991, he acquired a new do-
micile of choice at24Bonlfacio St. Ayala Heights, Old Balara, Quezon
City, as shown by his certificate of candidacy for the position of rep- Ssc.7. Tnr Meunrns oF TIrE Housp or RnpnesnNTATIvES

resentative of the 3rd District of Quezon City in the May 1995 elec-
tion. Petitioner subsequently claimed that he had effectively abandoned
his "residence" in Quezon City and had established a new "domicile"
of choice in the Province of Sarangani. He contended that his actual
physical presence in Alabel, Sarangani since December 1996 was suf-
ficiently established by the lease of a house and lot located therein in
January 1997 andby the affidavits and certifications under oath of thc
residents of that place that they had seen him and his family residing in
their locality.
This, however, was found to be insufficient to establish a ncw
domicile. To establish a new domicile of choice, personal presencc itt
the place must be coupled with conduct indicative of that intention. ll
requires a declared and probable intent to make it one's fixed and pcr
manent place of abode, one's home. To successfully effect a changc ol'
domicile one must demonstrate an actual removal or an actual ch:tttgc
of domicile; a bona fide intention of abandoning the former pllcc ol
residence and establishing a new one and definite acts which corrc
spond with the purpose. In other words, there must basically I>c urritrut.r
manendi coupled with animus non revertendi.The purposc ttt rcrttttitt
in or at the domicile of choice must be for an indefinite peritxl ol litrtc:
the change of residence must be voluntary; and the rcsidcncc ttl lltc
place chosen for the new domicile must be actual. The Court. httwcvct,
SHALL BE ELECTED FOR A TERM OF THREE YEARS WHICH SHALL BEGIN'
UNLESS OTHERWISE PROVIDED BY LAW, AT NOON ON TI{E THIRTIETH
DAy oF Jutn NBxt FoLLowrNG THEIR ELEcrIoN.
No MeN{nnn oF TrrE Housn or RrpnnsrxrATlvEs sItALL
sERvE FoR MoRE THAN THREE coNSEcurIvE TERMS. Vor,uumnv
RENUNCIATION OF THE OFFICE FOR ANY LENGTH OF TIME STIALL NOT BE
CONSIDERED AS AN INTERRUPTION IN THE CONTINUITY OF HIS SER,VICE
FOR THE FULL TERM f,'OR WIIICH HE WAS ELECTED.
1. Term ofRepresentatives.
The Constitution has fixed the term of Representatives at three
years to be counted from noon on the thirtieth day of June next follow-
ing their election. The starting date, however, may be changed by law.
The date of election, unless otherwise provided by law, is the sec-
ond Monday of May preceding the start of a new term. The same rule
applies to the Senate.
The three-year term for Representatives was arrived at to facilitate
synchronization with the six-year term of the President, Vice-President
and the Senators. The term of Representatives first elected under the
1987 Constitution, however, began on June 30, 1987 and,like the term
of the Senators electcd at the same time, did not end until noon of June

'2aC.R. No. 134015. July 19, 1999.

'j'(;.R. No. l5/ll7o. Novilrrll'1 1..)(X)ll

li
.120 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PTIILPPINES
30 , 1992:'6This expiry date, which in effect gave a term of five years to
the Members of Congress first elected under the 1987 Constitution, was
also arrived at in order to facilitate synchronization of congressional
election with the next presidential election.
Aside from fixing the term, the 1987 Constitution has also set a
limit on the number of consecutive terms a person may serve as Repre-
sentative. "No Member of the House of Representatives shall serve for
more than three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an intemrption in the
continuity of his service for the full term for which he was elected." If
one is elected Representative to serve the unexpired term of another,
that unexpired term, no matter how short, will be considered one term
for the pufpose of computing the number of successive terms allowed.'"
The three year term set by the Constitution may not be changed
by Congress. May Congress, however, pass a law which can have the
effect of shortening a Representative's tenure? The case of Dimaporo
v. Mitra,Jr.'" involved Section 6T,Article IX, of the Omnibus Election
Code, BP Blg. 881, which said that any "elective official whether na-
tional or local running for any office other than the one he is holding in
a permanent capacity except for the President and Vice-President shall
be considered ipso facto resigned from his office upon the filing of his
certificate of candidacy." After Congressman Dimaporo flled his candi-
dacy for Governor of the Autonomous Region of Muslim Mindanao, he
was excluded from the Roll of Members of the House of Representa-
tives. Dimaporo challenged the law as an unconstitutional shortening of
his term. He argued thatArticle VI specifies the conditions under which
a member of Congress may lose his seat: voluntary renunciation under
Section 7; forfeiture under Section l3; expulsion under Section 16, and
disqualiflcation under Section 17.'"
In upholding the validity of the law the Court said:'r0
. [r]ather than cut short the term of offi ce of elective public
..
officials, this statutory provision seeks to ensure that such officials
r26Article
XVIII, Section 2.
',7II RECORD 592.
r,8202 SCRA 779 (1991).
t2,tld "7114.
. itt
r"'/r/. ;tl 7(X)
Sec.7 Secs.8-9 ART. VI - THE LEGISLATIVE DEPARTMENT '121
serve out their entire term of office by discouraging them from
running for another public office and thereby cutting short their
tenure by making it clear that should they fail in their candidacy,
they cannot go back to their former position. This is consonant
with the constitutional edict that all public officials must serve
the people with the utmost loyalty and not trifle with the mandate
which they have received from their constituents." This does not
shorten the constitutional term of office. What happens is that the
tenure is shortened through voluntary resignation.
Correctly the Court said that the law did not shorten Dimaporo's
term; it merely shortened his tenure. Nonetheless the question may be
raised whether Congress may, in spite of the rule that inclusio unius est
exclusio alterius, add to the modes of terminating tenure in Article VI
as enumerated by Dimaporo. In point of fact earlier statutes prescribing
termination of tenure upon filing of a certificate of candidacy were ap-
plicable only to local officials."'
There is thus an important distinction between the term and the
tenure of an elective official. The term is the period of time allotted to
the office by law whereas tenure is the period during which the official
actually holds office. The rule now, moreover, affirmed in Farifias, et
al. v. Executive Secretary,'32 is that a national elective official does not
terminate his tenure by the mere fact of having filed for candidacy to
a position different from what he is holding. This new rule was estab-
lished by the Fair Election Law which repealed a contrary rule in the
Dimaporo case involving the Omnibus Election Code, BP Blg. 881 .
Snc. 8. Uxr,rss oTHERwISE pRovIDED By LAw, THE REGULAR
ELECTIoN oF THE SrN.qrons AND THE Mnvrnnns oF THE Housn or
RrpnnsnumrlvEs sHALL BE HELD oN THE sECoND Moxoav or M^qv.
Src.9. In cass oF vACANCy rN rns STNATE oR IN rnr Housn
on RBpnBsnnrATIVEs, A srECIAL ELECTIoN MAy BE CALLED To FILL
sucH vACANCv rN THE MANNER IRESCRIBED By LAw, BUT Tnn SnN.lron
on MBnnsnn oF THE Housn or RrpnnsnwuuvEs THUS ELECTED
SHALL SERVE ONLY FOR THE UNEXPIRED TERM.
r'r.Sll tlisst'ttl. ( ittticrrcz, .,1.
Itrlirrrirl:rs,et :rl.v. l'lxt'trrtivcSccrct;rry,(i.l{.No. 147 lt{7,1)eccntltrlO,2(X).1.'l'hccurrcnt
ntl(' tfluilts l() wlrrl ll rvrrs ttrrlt't llk' lr) l1 ('oil\lilltlt()tt
722 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Secs. 8-9
1. Filling vacancies.
"In case of vacancy in the Senate or in the House of Representa-
tives, a special election may be called to fill such vacancy in the manner
prescribed by law, but the Senator or Member of the House of Repre-
sentatives thus elected shall serve only for the unexpired term." And, as
already noted, service of the unexpired term will be counted as one term
for purposes of counting the number of allowable successive terms.
Note, moreover, that the holding of special elections has not been made
mandatory; and, if held, no set date is prescribed for it. In the case of
Senators, for instance, the special election for a vacant seat could wait
until the next triennial election for Senators.r33
In 2001, a vacancy was created in the Senate when Senator Guin-
gona was made Vice-President to fill a vacancy in the vice-presidency
when Vice President Gloria Macapagal-Arroyo was raised to the presi-
dency. The Senate thereupon called on COMELEC to fill the vacancy
through a special election to be held simultaneously with the regular
elections on 14 May 2001. In that election twelve Senators, with a
6-year term each, were due to be elected. When the COMELEC is-
sued a resolution providing that the "Senatorial candidate garnering the
13th highest number of votes shall serve only for the unexpired term of
former Senator Teofisto T. Guingona, Jr.," the validity of the resolution
was challenged on the ground that the COMELEC had failed to notify
the electorate of the position to be filled in the special election as re-
quired under Section2 of Republic Act No. 6645 to require senatorial
candidates to indicate in their certificates of candidacy whether they
were seeking election under the special or regular elections as allegedly
required under Section 73 of Batas Pambansa Blg. 881. In ignoring this
objection the Court ruled that the right and duty to hold special elec-
tion emanates from the statute and not from a call for the election by
some authority like the COMELEC. The law itself charges voters witlr
knowledge of the time and place of the election. This is so becausc rr
statute that expressly provides that an election to fill a vacancy shtll
be held at the next general elections fixes the date at which thc spccill
election is to be held and operates as the call for that elcction. (ilrsc
quently, an election held at the time thus prescribed is not ilrvalirlnterl
I'r/r/. rtt (l I
I
.123
Sec. 10 ART. VI - THE LEGISLAIIVE DEPARTMENT
by the fact that the body charged by law with the duty of calling the
election failed to do so.r34
Ssc. 10. Tns sllenres op srulrons lxn MTMSERS oF rHE
HousE, orRnpnesnnrATwEs sHALL BE DETERMINED nv uw' No
INCREASE IN SAID COMPENSATION SHALL TAKE EFFECT UNTIL
AFTER
THE ExPIRATIoN oF THE FULL TERM oF ALL rnn MnMBsRs
oF TIIE
SnxlrnANDTHEHousnorRnpnssnxTATIvESAPPROVINGSUCH
INCR-EASE.
1. Salary ofSenators and Representatives'
The annual salary of the members of Congress has been initially
fixed by Article xvIII, Section 17 at two hundred four thousand pesos,
and that of President of the Senate and of the Speaker at two hundred
forty thousand pesos. These are subject to change by law' Howevero
,'No increase in said compensation shall take effect until after the expi-
ration of the full term of all the Members of the Senate and the House
of Representatives approving such increase." This limitation is a carry
ou", f-- the 1935 Constitution as well as from the 1973 Constitution'
Its purpose is to place a "legal bar to the legislators yielding to the natu-
raliemptation to increase their salaries. Not that the power to provide
for higher compensation is lacking, but with the length of time that has
fac-
to elafse before an increase becomes effective, there is a deterrent
tor to any such measure unless the need for it is clearly felt."135
Itshouldbenotedthatanincreaseinsalarydoesnottakeeffect
..until after the expiration of the full term of aII the Members of the
Senate and of the House of Representatives approving such increase."
Although the term of Representatives is only three years, the term of
Senatois is six years. It is only after the expiration of the six-year
te11n
of senators who approved the increase that the increase in salary be-
legislator must
comes effective.r36 Moreover, the retirement benefits of a
be based on the salary in effect during his term and not on the increased
salary of the subsequent term.'3?
ltr'Iirlcntino v. ('OMIll,ll(1. C.R. No. 14tt334, Jawl,ary 2l ,2OO4
l'.2 'flNnDn & ljrinn,rNrx r, (i )Ns'r't'nrlloN ot, tlHn Putt-tppltlFs 867 , quoted in PHILCONSA V'
Mathny, tl S('l{A r(X),.107 ( 1966).
I
Itr'{r'r' l'llll.( \ )NSA v. Mltlruy, lll S('RA (X)' 307 ( 1966)'
r',l.ip.t v M1t11y. 1(r S('l{A lt.t I, t(,t/ lt ( l()'/.1).
 725
THE 1987 CONSTITUTION Sec.11 ART.VI _THELEGISLATIVEDEPARTMENT
Sec. l0
OF THE REPUBLIC OF THE PHILIPPINES

The 1935 Constitution provided that the fixed annual compensa- Explaining the deletion of the limitation
from the draft' Delegate de
tion of legislators already included "per diems and other emoluments Guzman said''40
or allowances" and excluded only "traveling expenses to and from their Assem-
It does not mean that the members of the National
respective districts in the case of Members of the House of Representa- for travel'
bly shall not be entitled or shall not enjoy expenditures your
tives and to and from their places of residence in the case of Senators, supplies, personnel or technical services'
It simply means'
incorporate it herg
when attending sessions of the Congress." Hence, a grant of "per diems Honor, that it is not necessary that we should
is internal matter which
because the Committee feels that this
an
and other emoluments or allowances" constituted an increase which
Assembly'
could take effect only after the expiration of the full term of the Sena- could very well be taken up by the National
tors and Members of the House approving such per diems and other
Delegate Yancha explained further:'4r
emoluments or allowances. Thus, it was that the immediate effectivity
legislative.pow-
of a law allowing retirement gratuity and commutation of vacation and The National Assembly is granted general
power of the Assembly to
sick leave to Senators and Representatives was disallowed in PHIL- ers, particularly in appropriuiion"' The
provisions in the Con-
CONSAv. Gimenez.t38 No similar provision on per diems, emoluments, uppropriations^is onty titnit"A by the
"nu"i for the operational
and allowances appeared in the 1973 provision, nor does one now ap- stitution; and we feel that appropriating funds
expenses and the maint"n*i" of the
National Assembly should
pear in the 1987 provision. The prohibition of immediate increase in the because the Na-
not be spelled out anymore in the Constitution
1987 text refers only to "salaries," the fixed annual amount.r3e
tional Assembly can appropriate those funds'

2. Allowances. Thelg36ConstitutionalCommissionchosenottobemorestrict
The 1935 Constitution allowed for traveling expenses of legisla- thanthelg7lConstitutionalConvention'Doesthismeanthereforethat
may appropriate? There is no
there is no limit to the amount Congress
tors but it said nothing about office expenses for supplies and personnel. the realization
It is common knowledge, however, that the old Congress was generous i"gJ ri-ir. The limii will only be moral' arising fromaccount of Con-
that, according to Section 20, ihe records and books of
in providing for office expenses. As a gesture to the clamor for reform,
gressshallbeopentothepublicinaccordancewithlawandthatsuch
the move in the 1971 Convention to set a limit to allowable travel, ol'- on Audit which shall publish
books shall be audited uy tir" commission
fice and personnel expenses gained ground and found a place in thc member'
annually the itemized expenditures for each
earlier drafts. The 1971 Convention eventually withdrew the gesturc.
Src. 11. A SsI'{Aron on Mnlrnrn oF rHE Housr or
oFrENsEs PUNIsHABLE BY Nor MoRE
RnpnrsrNurlvEs srrALLt IN ALL
'TPHILCONSA v. Gimenez, 15 SCRA 479 (1965). PRIVILEGED FROM ARREST WHILE
r3elt
should be pointed out that the 1935 provision did not use the term "salary," which ir n
THAN SIX YEARS IMPRISONMENT' BE
BE QUESTIoNED
fixed amount; rather, it used the broader term "compensation" and then went on to spcily thrrt thir rns Coxcnnss Is IN sESsIoN' No MsMBnn sHALL
PLACE T'OR ANY SPEECH OR DEBATE
included various variables, such as "per diems and other [variable] emoluments an<l allowuncel" NOR BE HELD LIABLE IN ANY OTHER
and excluded only "traveling expenses to and from their respective districts in the case ol Mcrrrlxrl THEREoF'
rx rnn CoxcnESS oR IN ANY cOMMITTEE
of the House of Representatives and to and from their places of residence, in the case ol'scnutor r,
when attending sessions of the Congress." [Article VI, Section 14 (1935)l The fact rhot tnrvol
ing expenses were singled out for exclusion is extremely significant. Traveling cxpenscs. strictly
speaking, are not part of compensation but are more in the nature of rcimburscrncnt lot u('trhtl
1. Privilege from arrest'
15' Article VI of the
expenses incident to the discharge of one's duties. They do not theref<)re constitute utklitirrntl nrrrr The privilege from arrest found in Section
pensation.Peraltav.Mathay,38SCRA256,260-61 (1971).Thattravelingoxlrcnseswcrcsirrglerl immunity from arrest
out for exclusion from the constitutional prohibition implied, becausc of thc principle fur'lr.r/l lg35 Constitution was the same parliamentary
unius, exclusio a/teriu.s, that other f<rrms of "reimbursenrenl" wcre not sirniltrly cxclurlctl. lrr otlrr.r
words, the 1935 provision showcd "lxrwjcitlous wclc the rrrcrnbcrs ol rhc ll9.t5l (i)nfltituttoull (iu.rnirtct:, N.vcnrbcr 16,1972.
Cttnvcntion itt gutnling rtgttinst thc tenrl)trliort lrrl trrerrrbcrs ol ('ortgrcss l() incrcltxc llrctr snllr rcr " thc l6(r Mnn Spcci.l
tatll
l)llll.('()NSn v. (iintctrcr. l5 S('ltA lt ;ltt(|. -;M."t"ll{.,, '

li
 727
ART.VI - THELEGISLATIVEDEPARTMENT
726 THE 1987 CONSTITUTION Sec. I I
OF THE REPUBLIC OF THE PHILIPPINES

1971 Constitutional Convention' Section 9

of Article VIII of the 1973
enjoyed by the members of the Parliament of England and by mem-
constitution made an assemblyman immune
from arrest arising from
bers of the United States Congress. As authoritatively interpreted by years imprisonment." The
ull off"nr". punishable by nothore than six
the Philippine Supreme Court in Martinezv. Morfe,ta2 a case involving a
lg86ConstitutionalCommissionchosetofollowwhatthel9TlCon.
delegate to the 1971 Constitutional Convention, contrary to the conten- moreover, the-immunity
stitutional Convention did.r* Needless to say,
tion of Delegate Martinez,the privilege did not include immunity from
appliesforaslongasCongressisinsession,whetherornotthelegisla-
arrest arising from an act or omission punishable by law.It covered only
toi involved is actually attending it''o'
immunity from civil arrests. The Court explained the rationale of the however' it is
immunity thus'r43 In the light of the reasoning in the Martinez case'
submitted that the oflne immunity made by the 1973 and
' The above conclusion reached by this Court is bolstered and 1987 Constitutions
"*pun,ion
cannot be further expanded by ordinary legislation'
fortified by policy considerations. There is, to be sure, a full recog- Infact,anattemptintheConstitutionalCommissionitselftoextendthe
nition of the necessity to have members of Congress, and likewise was rejected''46
fror".iion to immunity from searches
delegates to the Constitutional Convention, entitled to tle utmost does not
freedom to enable them to discharge their vital responsibilities, It should also be added that one who has been convicted
who has been con-
bowing to no other except the dictates of their conscience. Neces- enjoy immunity from arrest' Thus a Congressman
he should be freed
sarily the utmost latitude in free speech should be accorded them. ;;;;d of rape and is in detention cannot claim that constituents to be
When it comes to freedom from arrest, however, it would amount because of popular sovereignty and the need of his
Members of Congress are
to the creation of a privileged class, without justification in rea- i"pr"."nt"a. People v. Jalosios*' ruled that
son, if notwithstanding their liability for a criminal offense, they even when
noi from detention for crime' They may be arrested'
would be considered immune during their attendance in Congress "*"-p,
the House is in session, for crimes punishalle
by a penalty of more than
and in going to and returning from the same. There is likely to be treating him or her differ-
six months. There is no basis whatioever for
no dissent from the proposition that a legislator or a delegate can
perform his functions efficiently and well, without the need for ently from other convicts'
any transgression of the criminal law. Should such an unfortunate
event come to pass, he is to be treated like any other citizen con-
2. Parliamentary freedom of speech and debate'
sidering that there is a strong public interest in seeing to it that Sectionl5,Articlevl,ofthelg35Constitutionprovidedthat"for
and Members of the
crime should not go unpunished. To the fear that may be expressed any speech or debate" in Congress, the Senators
that the prosecuting arm of the government might unjustly go af'- ..shall not be questioned in any other place."
House of Representatives
ter legislators belonging to the minority, it suffices to answer that
Pendatuntas explained the import of this
provision thus:
Osmefta, Jr. v.
precisely all the safeguards tlrown around an accused by the Con-
which
stitution, solicitous of the rights of an individual, would constitutc Our Constitution enshrines parliamentary immunity
legislative assem-
an obstacle to such an attempt at abuse of power. The presumption is a fundamental privilege cherished in every
of course is that the judiciary would remain independent. It is tritc *otta' As old as the English Parliament' its
bly of the democratic
to say that in each and every manifestation ofjudiciary endcavor,
such a virtue is ofthe essence.
r{The lg?3 provision also said that "the Batasang Pambansa-shall surylder the Member
recess or its
twenty-four houis after its adjoumment for a
involved to the curtoay of tt iu* within
The rationale of limiting the immunity to civil arrests, as cxprcsserl "
:iu"i-pJuil"g" ,i"il cease upon its failure to do so." The new constitution
nexr s€ssion, oth".rui*" of its memb€rs'
by the Supreme Coun and reflecting parliamentary exporiclrcc goirrtrq has rlroppe. rhis .n the *"."'"i"g ,f;-" Congress is not the bondsman or custodian
back to the mother of parliaments, did not appeal to thc wistlorrr ol'llrc ll Rll(loRD l7tt.
rr'/r/. atlt(2-ltl4, 195'
'lt lTll-lll5.
r46r(r.
rar(i-R. Nos ll2l{75 76' I;cbrulry :l' 2(XX)
r4r44 SCTRA 22 (19721 railO() ()() ( l()({))
I'lril. tt(rl, lt6tt
r"/r,1. tt .|7.ti.

i

THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
public
purpose "is to enable and encourage a representative ofthe
io discharge his public trust with firmness and success" for "it is
indispensablynecessarythatheshouldenjoythefullestlibertyof
,p"""h, andihat he should be protected from the resentment of
"u"ryon",howeverpowerful,towhomtheexerciseofthatliberty
mayoccasionoffense.''lagsuchimmunityhascometothiscountry
from the practices of Parliament as construed and applied by the
Congress of the United States. Its extent and application
remain
question before us'
no lJnger in doubt in so far as related to the
with-
It guar:antees the legislator complete freedom of expression
ooi f"u. of being made responsible in criminal actions before the
courts or any other forum outside of the Congressional Hall'
But
it does not protect him from responsibility before the legislative
body itself *h"n"u". his words and conduct are considered by
the
latter disorderly or unbecoming a member thereof'
Thelg35provisionwasacopyofthespeechanddebateclauseof
Article I, Section 6, of the United states constitution. The 1987 text, as
also the 1973 text,is a slight modification of the traditional
phraseology
but it has preserved the traditional limit and scope of the immunity.
In
the first plrace, it is a guarantee of immunity from answerability
before
an outside forum but not from answerability to the disciplinary author-
ity of Congress itself. In the second place, to come under the guarantee
th"..,p"""hordebate,,mustbeonemade..intheCongressorinany
thereof.,'This requirement, however, does not refer merely
"o-*itt""
to the localeof the "speech or debate" but, more importantly, also to its
nature. As Jimenez v. Cabangba,4S put it:'s'
Said expression refers to utterances made by Congressmen
in the performance of their official functions, such as speeches de-
livered, statements made, or votes cast in the halls of congress,
while the same is in session, as well as bills introduced in congress,
whether the same is in session or not, and other acts performed by
housing
Congressmen, either in Congress or outside the premises
its offices. in the official discharge of their duties as members of
Congress and of Congressional Committees duly authorizcd to
petfJtm its functions as such, at the time of the performance of thc
acts in question.r5'
tatTenney v. Brandhove' 14l tJ li' 167'
trt17 s(-RA 1t76. t't7t'l ( l()(r(r)'
li'ttttt'y v ll:rrxlhrvc' l'11
r'rVcrr v. Avt'litxr' 77 l'lril l')'ll
Mass l.S('('itls()Attltrttittov.Vitk'ttti:t'5/S('l(A /(ltMly J/' lt)/'l)
.729
Sec. 12 ART. VI - THE LEGISLATIVE DEPARTMENT
Two American cases shed further light on the nature of the legisla-
tive acts protected by the speech and debate clause. Gravel v. f./.^s''s2 em-
phasizedthat although the speech and debate clause has been extended
Leyond pure speech and debate, the essential requirement for its ap-
plicabiliiy has always been that the action involved must be legislative
action. Legislative action refers to the "deliberative and communicative
pfocess" by which members participate in committee and House pro-
ieedings in the consideration of proposed legislation or of other matters
that the Constitution places within the jurisdiction of the legislature'
When legislative action is involved, the testimonial privilege protects
even the agents and aides of the members of the legislature. In the light
of this, the Supreme Court found that Senator Mike Gravel's alleged
arrangement for private publication of the Pentagon Papers was not an
integial part of the deliberative and communicative process of legisla-
tive activity protected by the speech and debate clause. The vote how-
evef was 5 to 4.
In Brewster v. f/.s.,"3 the Supreme court held that a united states
Senator was not protected by the speech and debate clause for solici-
tation and acceptance of a bribe in return for his vote on a legislative
question. Again the decision revolved around the nature of a legislative
act: "A legislative act has consistently been defined as an act gener-
ally done in congress in relation to the business before it. In sum, the
Splech and Debate clause prohibits inquiry only into those things gen-
eially said or done in the House in the performance of official duties and
the motivation of those acts." A prosecution for taking a bribe does not
require such inquiry. Distinguishing the case from U'S' v' Johnson"5a
ttre Ctrief Justice said that the Johnson case involved questioning about
action
the speech, who wrote it, and its factual basis. when however an
by
is merely related to legislative responsibilities, it is not covered the
of the
clause. The purpose of the clause is merely to protect the integrity
legislative process. But again the vote was divided 6 to 3'
Snc. 12. ALL MsNmBns oF THE Spx'lrn AND rHE Housn or
Rt;pnr:snn.mtlvEs SHALL, UrON ASSUMPIION OF OFFICE, MAKE A FULL
t)ls(.t.()sLtRti ()r' THDIR I.INANCIAL AND BUSINESS rXrnnBsts. Tgnv
llS l(r/. (irllrrt v. (irllrrl.'l
li
73O THE 198TCONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
SHALL NOTIFY THE HOUSE CONCERNED OF A POTENTIAL CONFLICT
OF INTEREST THAT MAY ARISE FROM THE FILING OF A PROPOSED
LEGISLATION OF WHICH THEY ARE AUTHORS.
1. Financial and business interests.
The first sentence of Section 12 sets down a policy of full dis-
closure of the financial and business affairs of a legislator. The second
sentence requires him to put the House on notice about any "potential
conflict of interest that may arise from the filing of a proposed legisla-
tion of which they are authors." However, it does not prevent the legis-
lator from filing the proposed legislation.It merely enables the House
to examine the arguments he might present with a sharper eye and in
the context of his personal interest. The advance disclosure would cre-
ate a presumption in favor of the legislator concerned should he later be
charged by his colleagues with conflict of interest.r5s
Ssc. 13. No Snnaron on Mnunen
RnpnnsnxtrtrvEs MAy HOLD ANy orHER oFFrcE oR
IN THE GOVERNMENT, OR ANy SUBDTVISION, AGENCY, OR
INSTRUMENTALITY THEREOF, INCLUDING GOVERNMENT-OWNED OR
CONTROLLED CORPORATIONS OR THEIR SUBSIDIARIES, DURING IIIS TERM
wITHour FORFETTINc Hrs sEAT. Nrrrnnn sHALL rrE BE App.orNTED To
ANY OFFICE WHICH MAY HAVE BEEN CREATED OR TIIE EMOLUMENTS
THEREOF INCREASED DURING THE TERM FOR WHICH HE WAS ELECTED.
1. Disqualifications.
A member of Congress may not hold, during his tenure as mem-
ber, any other office in the government or in any of its instrumentali-
ties, including government-owned or controlled corporations or their
subsidiaries. The prohibited offices include membership in the board of
regents, board of trustees, or board of directors of state universities and
colleges.''u Since the prohibition is only during his tenure, a legislator is
not prevented from accepting an appointment. However, if he chooses
to accept another office, he automatically forfeits his seat in Congress.,.'
'$II RECORD 165-168.
t56ld. at 89.
t57
Id. al 62-J. Comparc this with a sinrillr pnrlribit ion
1 irr
Sec. 13
Sec. 14 ART. VI - THE LEGISLATIVE DEPARTMENT
The disqualification in the second sentence, however, applies for
the duration of the six year term even if he resigns from Congress be-
fore the end of his term. Under the 1935 and 1973 Constitutions, to
come under this disqualification, two conditions must concur: (1) the
offlce must be civil; and (2) such office must have been created or its
emoluments increased "while he was a member" of the legislature. Un-
der the 1987 provision, the office need not be a civil one; it could be a
military office.158
Snc. 14. No Snxlron on Mnunrn oF TrrE Housn or
RnpnnsnxrauvEs MAy pERSoNALLy AppEAR AS couNSEL BEFoRE
ANy couRT oF JUSTICE oR BEFoRE run Er-ncronu, TnrnuNll-s,
oR euAsI-JUDICIAL AND orHER ADMINIsTRATIvE BODIES. Ntrrnnn
SHALL HE, DIRECTLY OR INDIRECTLY, BE INTERESTED FINANCIALLY IN
ANY CONTRACT WITH, OR IN AI{Y FRANCHISE OR SPECIAL PRIYILEGE
GRANTED By rHE GovlnNlrnNr, oR ANy suBDrvIsIoN, AGENCYT oR
INSTRUMENTALITY THEREOF, INCLUDING ANY GOVERNMENT-OWNED
oF TrrE Housr or
OR CONTROLLED CORPORATION, OR ITS SUBSIDIARY' DURING HIS TERM
EMpLoyMENT
oF oFFrcE. HB sH.lr-l Nor INTERvENE IN ANY MATTER BEFORE ANY
oFFtcE oF THE GovrnNlrnNr FoR HIS pEcuNIARy BENEFIT oR wHERE
HE MAY BE CALLED UPON TO ACT ON ACCOUNT OF HIS OFT'ICE.
1. Prohibitions;lawyerlegislators.
The prohibitions found in Section 14 are intended to prevent
members of Congress from taking advantage, pecuniary or otherwise,
of their position in their dealings with the courts, or in their business
operations, or in their dealings with any government agency or corpora-
tion.
The prohibition imposed on lawyer-legislators is a much strict-
er one than its counterpart in the 1935 or 1973 Constitution neither
of which had a blanket prohibition of appearances in coult.rse Under
the 1987 provision, a lawyer legislator may not "personally appear as
counsel before any court of justice." This prohibition cannot be circum-
vented under the guise of appearing "in intervention" in one's behalf.
Puyat v. de Guz.mant'' dealt with an Assemblyman who bought a nomi-
I'x/r/. irl ,15 (t.
Arlielc I X, ll, SceIion 7
r'"Sec Articlc V l, St't lion 1.7 ( 1 9 15) rrtttl Arliclc Vlll, Scelion l l ( 1 97.1)
ratll I S('l{A ll, l/ 1l\.'t;1s111.)\. lr)l{.))
 732 THE 1987 CONSTITUTION ART.VI _ THELEGISLATIVEDEPARTMENT 733
OFTHE REPUBLIC OFTHE PHILIPPINES

nal amount of shares in a corporation which was party to a suit before finger or not. There is always that fear in the mind of the member
the Securities and Exchange commission and then proceeded to appear of the collegiate court that sometime in the future he may need
"in intervention" purportedly to protect his own interest. The court saw the help of the legislative member appearing before him, although
through the ruse and said: unsolicited.

A ruling upholding the "intervention" would make the con- Colayco's argument was followed by an interpellation by Com-
stitutional provision ineffective. All an Assemblyman need do, if missioner Suarez which went thus:'s
he wants to influence an administrative body is to acquire a mini-
mal participation in the "interest" of a client and then ..intervene" MR. SUAREZ.Thete is a phrase here which reads: "shall
in the proceedings. That which the Constitution directly prohibits appear as counsel." I suppose the proponent is referring to a per-
may not be done by indirection. sonal appearance as counsel.
MR. COLAYCO. That is correct.
One may infer from this conclusion of the Court that a legislator
may appear in person if in fact he is a genuine party in the case. MR. SUAREZ. It would not preclude, for example, the law
firm to which this Senator or Member of the House would be con-
The extent of the prohibition imposed on lawyer legislators was nected from appearing before any court?
extensively discussed by the 1986 constitutional commission. The
MR. COLAYCO.I would include that in my prohibition'
original proposal submitted by the Committee did not prohibit appear-
ance before collegiate courts. The final version, principally because ol. MR. SUAREZ. In other words, the proponent would pro-
the advocacy of commissioner colayco, prohibits appearance beforc hibit even the law firm to which he or she may be a partner from
appearing before any court ofjustice.
any court;'6' however, it is not a blanket prohibition of the practice of
laW.r62 MR. COLAYCO. That is correct, Madam President.

When Commissioner Colayco, himself a judge of fifteen years After this exchange, there were more spirited arguments from
experience, argued for an absolute prohibition of appearances befbrc both sides. But just before the vote, colayco intervened again and pref-
any court, the proposal he was espousing read thus: ,.No Senator or aced his remarks by saying: "I would like to say a few words before
Member of the House of Representatives may appear as counsel beforc submitting my proposals to the body for a vote. . . . I am afraid I did not
any court." Arguing against allowing Senators and Representatives to know that my proposal will be so unpopular especially with the lawyers
appear even before collegiate courts, he said:r63 who are Members of the legislature."'ur Thereafter, he offered to read
his proposal:'66
It may be argued that insofar as the Supreme Court is con-
cerned the danger may be minimal because they have nothing MR. COLAYCO. . . .I would like to clarify that my proposal
more to expect as far as promotion is concerned. But what about covers only the personal appearance of the Members of the House
those below the Supreme Court? For instance, the members <ll' of Representatives and of the Senate.
the Intermediate Appellate Courts and the Sandiganbayan always
hope that they will be promoted. And like good men, they do not THE PRESIDENT' So, how would the proposed amendment
want to have any negative factor that may be an obstacle to thcir be?
promotion. Legislators are influential people whether thcy lili rr MR. COLAYCO.IT will read: "No Senator or Member of the
House of Representatives MAY PERSONALLY appear as counsel
l6rII RECORD 123-12'1 .
r6'?1d.
at 105,6. rM/r/. ut 125
t"tlrl at l2l-4. ('olityco wits slrottgly sul)lx,r'tc(l by
l{ornrrhr, irl, l.l,l, ruxl rlrorrgly oplrrrcrl t"1
Id. tl l2'l
lry l';rrlillir, irl l)5 1.t 1. trr,ll.
 Sec. 16 ART.VI _THELEGISLATIVEDEPARTMENT 735
734 THE 1987 CONSTITUTION Sec. 15
OF THE REPUBLIC OF THE PHILIPPINES

before any court OF JUSTICE." With this prohibition, the subse-
quent lines will be covered already.
Put to a vote immediately thereafter, the proposal was approved
25 ro 10.
Did colayco modify his answer to commissioner suarez relative
to the appearance of law firms? It would seem so. He modified his origi-
nal proposal and added "personally." It is quite clear that the personality
of a law partnership is distinct from that of its partners.
2. Prohibitions: conflict of interests.
Legislators are also prohibited from being','directly or indirectly .
. . interested financially in any contract with, or in any franchise or spc-
cial privilege granted by the Government, or any subdivision, agency,
or instrumentality thereof, including any government-owned or con-
trolled corporation, or its subsidiary, during his term of office." Thus,
they cannot be members of the board of corporations with contract with
the government. Such would be at least indirect financial interest.r6?
like that in the 1973 Constitution, may last for as long as Congress
wishes but only "until thirty days before the opening of its next regular
session, exclusive of Saturdays, Sundays, and legal holidays'" How-
ever, the President may call Congress to a special session at any time.
And again unlike the special session under the 1935 Constitution which
was limited to thirty days, the special session under Section 15,like that
in the 1973 Constitution, has no fixed limit. It can last for as long as the
Congress wants.
May the President limit the subjects which may be considered
during a special session called by him? Under the 1935 Constitution,
the President could, because Section 9, Article VI, said that the Presi-
dent could call a special session "to consider general legislation or only
such subjects as he may designate." The language of the 1987 Constitu-
tion is different: "The President may call a special session any time."
The language is not exclusive. The President is given the power to call
a session and to specify subjects he wants considered, but it does not
empower him to prohibit consideration of other subjects. After all, Con-
gress, if it so wishes, may stay in regular session almost all year round.

Neither may a legislator "intervene in any matter before any oflicc rrs Pnnsrnrxr rIrE
Src. 16. (1) Tnn SrN.lrr sHALL ELEcr AND
of the Government for his pecuniary benefit or where he may be cailctl Housr or RrrnrsrxrATIYES lts Stnnrn, BY A MAJORITY vorE oF
upon to act on account of his office." The prohibited pecuniary bcnclit ALL ITS REsPEcTIYE Mnl'Isrns.
could be direct or indirect and thus would cover pecuniary benelit lor IT MAY
E^q.cg Housn sHALL cgoosE sucH orHER oFFICERS AS
relativeq.t68
DEEM NECESSARY.

SBc.15. Tne Coucnnss sHALL coNvENE oNcE EvERy yEAR (2) A u,uomrv oF EACH Housn sHALL coNSTITUTE A
QUORUM TO IX) BUSINESS' BUT A SMALLER NUMBER MAY ADJOURN
oN THE FOURTH MoNnay or July FoR ITs REGULAR sESsroN, uNlt;ss
FROM DAY TO DAY AND MAY COMPEL THE ATTENDANCE OF ABSENT
A DIFFERENT DATE IS FrXED By LAW, AND SHALL CONTINUE T'() Btr tN
Mrnsuns IN sucH MANNERT AND UNDER sucH PENALTIEST As sucH
SESSION FOR SUCH NTJMBER OF DAYS AS IT MAY DETERMINI.] TIN'I'II,
THIRTY DAYS BEFORE THE OPENING OF ITS NEXT REGULAR S[SSI0N, Housn MAY PROvIDE.

ExcLUSIvE or Sarunnlys, Suxnlys, AND LEGAL nolruays.'l'ln: (3) Elcu Housn MAY DETERMINE THE RULES or ITS
PnnsrorNr MAy CALL A SpECIAL sEssIoN AT ANy rrME. rROCEEDINGST PUNIsH rrs Mnmnnns FoR DISORDERLY BEHAvIoRt
AND wITH THE coNCURRENCE oF Two'THrRDs oF ALL ns Mrurrns,
1. SessionsofCongress. suspEND oR ExPEL a Mnunnn. A pnNlt,rv oF susPENsIoNr wHEN
IMPOSED, SHALL NOT EXCEED SIXTY DAYS.
Unlike the regular session under the 1935 Constitution, whir.h
(4) Encn Housn snlll xrnp.{ JoURNAL oF ITS PRocEEDINGSt
lasted for only one hundred days, the regular session untlcr st:cri.rr I 1.
AND FROM TIME TO TIME PUBLISH THE SAME' EXCEPTING SUCH PARTS
AS MAY,lN lTs Jl-iI)(;Mll,N'l', Al"l"ilcr NATIONAL SECURITY; AND THE vEAS
ANI)Nnv,!()NANYQLl]ls'll()NsllAl l.'AT'r'tll'.lREQUI'ISTOl-ONE-FIFTHOF
t('7|d.
irt lO6-7. rtll: Mt,:tru:ns PRI'lsl';N'l lll': l'lN'l'l')Rl':l) ln l'ltl': .ltlttnNnt"
r"*/r/. rrl l2ll. '
736 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
E.l,cn HousB sHALL ALso KEEp A RECoRD oF rrs pRocEEDINGs.
(5) Nnrrnrn HousE DURTNG THE sEssroNs oF THE CoNcREss
SHALL, WTTHOUT THE CONSENT OF THE OTtrER, ADJOURN FOR MORE
THAN THREE DAYS, NOR TO ANY OTHER PLACE TIIAN THAT IN WHICH
THE TWO HOUSSS SHALL BE SITTING.
1. Officers of Congress.
Congress becomes properly organized once the officers have been
chosen. The only officers prescribed by the Constitution are the Presi-
dent of the Senate and the Speaker of the House of Representatives,
both of whom are elected by a majority vote of all the Members of their
respective Houses. Each House, however, may decide to have other of-
ficers. How these other officers are chosen is something that is within
the control of each House. Thus, when Senator Tatad challenged the
validity of the election of Guingona as minority leader claiming that he
should be the minority leader, the Court said in Santiago v. Guingonato
that "in the absence of constitutional or statutory guidelines or specific
rules, this Court is devoid of any basis upon which to determine the
legality of the acts of the Senate relative thereto. On grounds of respect
for the basic concept of separation of powers, courts may not intervene
in the internal affairs of the legislature; it is not within the province of
courts to direct Congress how to do its work."
An interesting question which arose under the 1935 Constitution
was whether the judiciary could look into the legality of the election of
a Senate President. For the answer, one can look to the Supreme Court's
handling of the matter in Avelino v. Cuenco.tT0
During the Senate session of February 21,1949, Senate President
Avelino walked out of the session hall followed by nine other senators.
This left only twelve senators in the session hall. (Of the twenty-four
senators, one was in the United States and another in a local hospital.)
The Senate President Pro-Tempore then took over and, by a resolution
approved by the twelve remaining senators. the position of Senate Pres-
ident was declared vacant, and Senator Cuenco was designated Acting
Senate President. Avelino brought the case to court asking whether the
r6eSantiago v. Guingona, G.R No. 134577, November 18, 1998,
17"83 l'hil. l7 ( 1949).
Sec. 16 Sec. 16 ART. VI _ THE LEGISLATIVE DEPARTMENT
twelve senators who had designated Cuenco Senate President consti-
tuted a quorum.
By a vote of 6-4, the Court refused to assume jurisdiction. It de-
clared that the controversy was political in nature and that the constitu-
tional grant to the Senate of the power to elect its own president should
not be taken over by the judiciary. The choice of a Senate President
"affects only the Senators themselves who are at liberty at any time
to choose their officers, change or reinstate them."r7r Furthermore, the
Court said:''2
The Court will not sally into the legitimate domain of the
Senate on the plea that our refusal to intercede might lead into a
crisis, even a revolution. No state of things has been proved that
might change the temper of the Filipino people as a [slc] peaceful
and law-abiding citizens. And we should not allow ourselves to be
stampeded into a rash action inconsistent with the calm that should
characterize judicial deliberations.
Chief Justice Moran, Justices Tuason, Perfecto and Briones ar-
gued for assuming jurisdiction.
Moran argued that the question of quorum was a constitutional
issue which could be decided by neither of the two conflicting Sen-
ate factions. With the conflict remaining unsettled, the laws passed by
the Senate would be open to doubt. He warned against the "general
situation of uncertainty, pregnant with grave dangers" which was "de-
veloping into confusion and chaos with severe harm to the nation." He
therefore advocated intervention by the Court, the guardian of the Con-
stitution, through the exercise of "the utmost judicial temper and judi-
cial statesmzflship."tz:
Justice Tuason's reasoning ran thus:l?4
Here the process sought is to be issued against an appointee
of a Senate, that, it is alleged, was not validly constituted to do
business because . . . there was no quorum. The Court is not asked
to interfere with an action of a coordinate branch of the govern-
tlt Id. trt 2l-2. But.jurisdiction or not, cight Justiccs voted 4-4 on thc question
i)ld.
tt'ld. trl25 6.
tt'li trl66'l

THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
ment, so much as to test the legality of the appointment of the
respondent.
Although this Court has no control of either branch of the
.. .
Congress, it does have the power to ascertain, whether or not one
who pretends to be its officer is holding his office according to law
or the Constitution. Political questions as a bar to jurisdiction can
only be raised by the supreme power, by the legislature, and not by
one of its creatures.
Justice Perfecto conceded that the Senate was the only body that
could determine from time to time "who is and shall be its President."rTs
But, he added:''u
[I]n making such changes of leadership, the Senate and the
Senators are bound to follow the orderly processes set and outlined
by the Constitution and the rules adopted by the Senate as autho-
rized by the fundamental law. Any step beyond said legal bounds
may create a legal hiatus which, once submitted to the proper
courts of justice, the latter cannot simply wash their hands and
ignore the issue upon the pretext oflack ofjurisdiction . . .
Justice Briones was for assuming jurisdiction because the heart
of the controversy was the business of legislation, one of the essentials
of a republic. Moreover,"el conflicto surgido . . . ha cobrado las pro-
porciones de una tremenda crisis nacional, prenada de graves peligros
para la estabilidad de nuestras instituciones politicas, para el orden
publico y para la integridad de la existencia de la nacion "'' Finally, he
agreed with Werts v. Rogers that, besides justiciability, another ground
for courts to take cognizance of a case is "extrema necesidad."ns
But six Justices remained unconvinced.
In the case of Alejandrino v. Quezon, Justice Ostrand had said: "It
is usually when courts fail in these respects [performance of duties],
and thus prove unfaithful to their trust, that their orders are disregarded
and trouble snsss5."t;e Whether or not the 6-4 vote in the original reso-
tlsld. at38.
t76ld. at 52.
t11Id. at58.
t18ld. at 69 .
r?el6 Phil. 142-3 (l9lo).
Sec. 16 ART. VI - THE LEGISLATIVE DEPARTMENT '739
Sec. 16
lution of the Court in Avelino v. Cuenco meant a failure in judicial du-
ties will forever be a subject of debate. But trouble did ensue.
Following the constitutional provision that in the absence of a
quorum "a number may adjourn from day to day and may compel the
attendance of absent Members," the Cuenco group issued orders for the
arrest of absenting Senators. But the orders were ignored.
Originally, the Court had said that no circumstances had been
proved which could change the pacific and law-abiding temper of Fili-
pinos. Now there were indications that the Filipino temper was being
taxed severely. Chief Justice Moran and Justice Briones had already
spoken of a situation pregnant with grave dangers. Thus it was that, in
the reconsideration of the case, the Court, by a vote of 7 -4, decided to
assume jurisdiction "in the light of subsequent events which justify its
intervention."'80
The language of Justice Pablo was solemn and sacrificial:'8'
Es un sano estadismo judicial evitarlo ffatales consecuen-
ciasl y, si es necesario, impedirlo ... Como magistrado, no deben
importarme las consecuencias de mi opinion, emitida despues de
un estudio concienzudo; pero conxo ciudadano, me duele ver una
lucha enconada entre dos grupos en el senado sinfin practico . ' ' Si
insisto en mi opinion anterior,fracasara todo esfuerzo de reajuste
de nuestras opiniones para dar fin a la crisis en el Senado.
Justice Feria, however, was more radical. He was for establish-
ing "in this country, judicial supremacy, with the Supreme Court as
the final arbiter, to see that no one branch or agency of the government
transcends the Constitution, not only in justiciable but political ques-
tions as well."182
Justice Feria's reasoning had been the decisive factor in the re-
If
consideration, this case would constitute a radical change in the Court's
attitude to political questions. But what caused the reversal of the
Court's original resolution were the peculiar circumstances that had de-
veloped in the political scene. The Court Resolution on reconsideration
Itoll.l l'hil. 6tt ( 1949).
t(t lil. trt 'l 4.5 .
'^! ltl. tl 7 l. ltrrlit's ttltlcrl
7q THE 1987 CONSTITUTION Sec. 16 Sec. 16 ART.VI - THELEGISLATIVEDEPARTMENT 741
OF THE REPUBLIC OF THE PHILIPPINES

spoke of "subsequent events" which justified its intervention."3 Justice beyond the coercive power of the Senate,rs? although this manner of
Pablo, in reversing his stand, admittedly yielded only to a citizen's de- approaching the subject can lead to the ridiculous should the majority
sire for the settlement of the Senate crisis. Thus, when two years later, of the legislative body be abroad and beyond the coercive power of the
in 1951, the case of Avelino v. Cuenco was invoked in the case of Cabili body.
v. Francisco as authority for the Supreme Court to intervene in the al-
legedly unconstitutional reorganization of the Commission on Appoint- 3. Internal rules and disciPline.
ments, the Court ruled that the conditions which impelled the Court to
Inherent in any legislative body is its power of internal regula-
assume jurisdiction in the Avelino case did not presently obtain.'"
tion and discipline. As Justice Story said, "If the power did not exist,
it would be utterly impracticable to transact the business of the nation,
2, "A quorum to do business." either at all, or at least with decency, deliberation, and order' The hum-
For a long time the accepted practice in the House of Representa- blest assembly of men is understood to possess this power; and it would
tives of the United States, operating under a provision on quorum iden- be absurd to deprive the councils of the nation of a like authority."rss
tical with the one found in Section 16(2),was that only members voting
Article VI, Section 10(3) of the 1935 Constitution said: "Each
on a proposition were counted for the purposes of determining a quo-
house may determine the rules of its proceedings, punish its members
rum. In 1890, however, Speaker Reed ruled that all members present,
for disorderly behavior, and, with the consent of two-thirds of all its
whether voting or not voting, should be counted. This ruling eventually
Members, expel a member." The 1973 counterpart modified the above
became Rule XV of the House and the U.S. Supreme Court upheld the
rule by prescribing the number of votes needed to impose a suspension
rule saying that, since the Constitution did not prescribe the method for
and by limiting suspension to sixty days. The 1987 provision follows
determining the presence of a majority, the House was competent "to
that of 1973.lnother respects, the 1935 provision has been preserved;
prescribe any method which shall be reasonably certain to ascertain the
hence, jurisprudence prior to 1973,mutatis mutandis, still applies.
fact."r85
What stands out from the jurisprudence on the subject is that, ex-
The base for computing the majority of the legislative body for
cept for some limitations of detail found in the Constitution itself, there
the purpose of determining the existence of a quorum should normally
is a clear recognition of the overall autonomy of the legislative body
be the total membership of the body. It will be noted, however, that
both in the formulation and in the application of its rules' "The power to
in the case of Avelino v. Cuencots' the base used was twenty-three, al-
make rules is not one which once exercised is exhausted. It is a continu-
though the total membership of the Senate was twenty-four. Apparently
ous power, always subject to be exercised by the House, and within the
this was because the twenty-fourth senator was abroad and therefore
limitations suggested, absolute and beyond the challenge of any other
body or tribunal."rse
t83ld. at 68. The well-nigh absolute control which the legislature has over its
eG.R. No.4638, May 8, 1951. 16 L.L302,303.The facts of the case were as follows: As
rules is well illustrated by the celebrated case of Osmefia, Jr. v. Penda-
f

a result of a new party alignment that divided the Senate into two factions, the Little Senate ancl
the Democratic Group, the latter commanding a majority, a reshuffle was made of the membership tun.teo Disciplinary proceedings were initiated by the House of Repre-
in the Commission on Appointments. The Senators composing the so-called Little Senate filctl u sentatives against Congressman Sergio Osmefla, Jr' for a speech he had
petition with the Supreme Court seeking to annul the reorganization of the Commission on Ap
pointments.
delivered on the floor of Congress. In a petition filed with the Supreme
while not assumiirgjurisdiction over the case, the Court discussed the legality of thc rcshul
fle. Four Justices held that membership in the Commission on Appointments should al all lirrrcs
reflect party alignment. Four others held that the constitution contemplated stability ol tcnurc li)t
r87/z/.
at (r8.
the members, irrespective of subsequent change in party alignment.
lssS
rrrrv. ('ouurnt txrr':s tt35 ( I lt33).
r85united States v. Ballin, 144 U.S. I , 5-6 ( l8q2). r*''tlnitetl litrtcs v. llallin. 144 tJ.S. I,5 ( 11t92)
18683
Phit. l7 (1949). rqrl(X) l,hil.1t0.1 1 1t;1t11,.
742 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Court for declaratory relief and certiorari and prohibition Osmefra al-
leged, among others, (1) that his speech did not constitute disorderly
behaviour and (2) that, by House Rule XVII, Section V, he could not
be censured for his speech since other business had transpired before
Congress decided to take action.
On the question whether Osmefra's speech constituted disorderly
behavior, the Supreme Court simply said "that the House is the judge of
what constitutes disorderly behavior, not only because the Constitution
has conferred jurisdiction upon it, but also because the matter depends
mainly on factual circumstances of which the House knows best but
which can not be depicted in black and white for presentation to, and
adjudication by the Courts. ... The theory of separation of powers, fas-
tidiously observed by this Court, demands in such situation a prudent
refusal to interfere."rer On the question of the binding force of Rule
XVII, Section V, the Court said''e2
lC]ourts have declared that "the rules adopted by delibera-
tive bodies are subject to revocation, modification or waiver at
the pleasure of the body adopting them."rer And it has been said
that "Parliamentary rules are merely procedural, and with their
observance, the courts have no concern. They may be waived or
disregarded by the legislative body." Consequently, "mere failure
to conform to parliamentary usage will not invalidate the action
(taken by a deliberative body) when the requisite number of mem-
bers have agreed to a particular measure."re4
It is thus clear that on matters affecting only the internal opera-
tion of the legislature, the legislature's formulation and implementation
of its rules is beyond the reach of the courts. In these matters, what is
referred to as the "expanded jurisdiction" of the Supreme Court found
in the second sentence of Article VIII, Section 1 does not apply. When,
however, the legislative rule affects private rights, the courts cannot
altogether be excluded. When the construction to be given to a rule af-
fects persons other than the members of the legislature, "the question
presented is of necessity a judicial one."res
tetld. at 871-2.
1e2ld.
at 870-l .
te367
CJ.S. 870.
reaSouth Georgia Power v. Bauman, I 69 Ga. 649: I 59 S.W. 5 I 5.
resUnited States v. Smith,286 U.S.6 (1932). Sce alx, Vcrl v. Avclino. TT Phil. l()2.20(r
(l 946).
Sec. 16
Sec. 16 ART.VI -THELEGISLATIVEDEPARTMENT 743
The case of Paredes, Jr. v. Sandiganbayante6 presented a novel
question. Congressman Ceferino Paredes was charged with violations
of the Anti-Graft Law allegedly committed while still a provincial gov-
ernor. The Sandiganbayan took action on the case while Paredes was
already in his second term as a member of the House of Representa-
tives. Relying on the provision of the Anti-Graft Law which prescribes
a mandatory preventive suspension on all those charged the law, the
Sandiganbayan suspended him from the House of Representatives.
Claiming that under Section 16(3) of Article VI only the House could
suspend him, Paredes went to the Supreme Court on certiorari. On the
argument that the suspension imposed by the graft court was not based
on grounds found in Section 16(3), the Supreme Court upheld the sus-
pension. Whereupon the House erupted in protest.
One thing which must have rubbed the members of the House of
Representatives the wrong way was that, all Paredes got from the Court
was a one page resolution containing a curt "Nyet." Moreover, in an
earlier decision the Court had ruled that no judge of inferior courts may
be proceeded against by investigating bodies without prior clearance
from the Supreme Court. The Court demanded observance of the pro-
cedure prescribed by the Constitution which places administrative su-
pervision of lower courts in the exclusive hands of the Supreme Court.
The Court could have accorded the same procedural courtesy to
the House of Representatives; but it did not. Alternatively, the Court
might have said that the preventive suspension referred to by the Anti-
Graft Law was meant to be from the office the official held when he
committed the wrong doing. But the Court chose to be literal. Hence,
when the House decided not to implement the suspension, the Court
could do nothing.
4.Journals, Record: publicity and probative valuel "en-
rolled bill" rule.
The duty to keep ajournal has a dual purpose: (l) "to insure pub-
licity to the proceedings of the legislature, and a correspondent respon-
sibility of the members to their respective constituents,"lei and (2) to
'-(;.R. lltl3M.August lO, 1995.
l"rl Strrrv.('(tMMtNt^Ru.\ tl40,r;rrotcrl willrlrpproval inl;it:ltl v.('lark, l4.ltl.S.(r49,(r70

144 THE I98TCONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
provide proof of what actually transpired in the legislature. Under the
1935 Constitution, Congress could impose secrecy at its discretion. The
1973 Constitution and the 1987 Constitution exempt from publication
only such matters "as may, [in each House's] judgment, affect national
security." This rule is an application of Section 7 of the Bill of Rights
which says:
The right of the people to information on matters of pub-
lic 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.
It still remains to be seen, however, how the rule can be enforced
and who can enforce it against Congress.
The interesting cases on legislative journals involve their proba-
tive value when measured against other forms of evidence .In United
States v. Pons,'eq the contention of the defendant was that the statute
under which he was being prosecuted was invalid for having been
passed after the last allowable day of legislative session. He claimed
that the legislature's clock had been stopped at midnight on the last
day of session and that it was in fact after midnight that the statute was
passed. The legislative journal, however, indicated that the statute was
passed before midnight when the legislature adjourned sine die. Could
the courts then look beyond the journal to determine the actual date of
adjournment?
The Court answered:ree
Counsel for the appellant, in order to establish his conten-
tion, must necessarily depend upon the memory or recollection of
witnesses, while the legislative journals are the acts of the Gov-
ernment or sovereign itself. From their very nature and object the
records of the Legislature are as important as those of the judiciary,
and to inquire into the veracity of the journals of the Philippinc
Legislature, when they are, as we have said, clear and explicit,
would be to violate both the letter and the spirit of thc orglnic
laws by which the Philippine Govemment was bnrught inlo cxis-
re834 Phil.129 (19t6\.
t,),,11 |n'l].1 \4
Sec. 16 ART. VI - THE LEGISLATIVE DEPARTMENT
Sec.16
tence, to invade a coordinate and independent department of the
Government, and to interfere with the legitimate powers and func-
tions of the lrgislature. But counsel in his argument says that the
public knows that the Assembly's clock was stopped on February
28,lgl4, at midnight and left so until the determination of the
discussion of all pending matters. Or, in other words, the hands of
the clock were stayed in order to enable the Assembly to effect an
adjournment apparently within the time fixed by the Govemor's
proclamation for the expiration ofthe special session in direct vio-
lation of the Act of Congress on July I,lg0z.If the clock was, in
fact, stopped, as here suggested, "the resultant evil might be slight
as compared with that of altering the probative force and character
of legislative records, and making the proof of legislative action
depend upon uncertain oral evidence, liable to loss by death or
absence, and so imperfect on account of the treachery of memory.
Long, long centuries ago, these considerations of public policy led
to the adoption of the rule giving verity and unimpeachability to
legislative records. If that character is to be taken away for one
purpose, it must be taken away for all, and the evidence of the laws
of the state must rest upon a foundation less certain and durable
than that afforded by the law to many contracts between private
individuals concerning comparatively trifling matters."
Thus, what gives conclusive weight to the journal, when balanced
side by side with extraneous evidence, is the fact that it is an offlcial act
of the legislature. What happens, however, when the journal conflicts
with another official act of the kgislature? ln Mabanag v. Lopez-Vito,2N
the Supreme Court discussed at length the correct resolution of a case
when the journal's content conflicts with what is found in an "enrolled
bill." The "enrolled bill" is a duly authenticated copy of a bill or resolu-
tion bearing the signature of the speaker and of the Senate President
and the certification of the secretaries of both Houses that such bill was
passed.2or The Court arrived at the conclusion, based likewise on the re-
spect due from the courts to a co-equal body, that "a duly authenticated
bill or resolution imports absolute verity and is binding on the coults."2o2
Although Mabanag was most emphatic in its acceptance of the
"enrolled bill ruIe," it cannot be regarded as establishing a definite doc-
,,,,711
l,hil. I (1947).
r"rArroyo v. l)c Vcnccil, (i.R. No. 127255, Junc 26' l91tll.
rrr'7ll Itlrrl rl I 2.
 THE 1987 CONSTITT]TION Sec. 16 Sec. 17 ART.VI _ THELEGISLAIIVEDEPARTMENT 747
OF THE REPUBLIC OF THE PHILIPPINES

trine because, in fact, there was no evidence of conflict between the
journal and the enrolled bill.r, Withal, however, subsequent cases have
also been most emphatic in their adherence to the enrolled bill rule. As
the Court said in Casco Philippine Chemical Co. v. Gimenez:zu *If there
has been any mistake in the printing of the bill before it was certified
by the officers of Congress and approved by the Executive, on which
we cannot speculate, without jeopardizing the principle of separation
of powers and undermining one of the cornerstones of our democratic
system, the remedy is by amendment or curative legislation, not by ju-
challenge to the bill came from an incumbent Senator and a former Sen-
ate President, the Court refused to go beyond the "enrolled bill."
In addition to a journal, each House is also supposed to keep a
Record.r'o The journal is usually an abbreviated account of the daily
proceedings; the Record contains a word for word transcript of the de-
liberations of Congress.
5. Recess.

dicial decree-" BothHousesmayholdsessionpracticallyallyearround.Theygo

on compulsory fecess thirty days before the opening of the next regular
The same principle was once more reiterated in Morales v. Subi-
session. Each House may also adjourn for a voluntary recess; but nei-
do20s which,however, added a cautionary note:
ther House may adjourn, without the consent of the other, for more than
By what we have essayed above we are not of course to be three days nor to any place than that in which the two Houses shall be
understood as holding that in all cases the journals must yield to sitting. ihis coordinative rule is necessary because the two houses form
the enrolled bill. To be sure there are certain matters which the only one legislative bodY.
d
Constitution26 expressly requires must be entered on the journal of 't
each house. To what extent the validity of a legislative act may be Snc. 17. Tnr Srxlrp AND THE Housn oF REPRF'sENrATIvEs
affected by a failure to have such matters entered on the journal, J T, TNTNINqI, WHICH SHALL BE
SHALL EACH IIAVE AN ET,NCTON.
is a question which we do not now decide.2o? All we hold is that { TIIESoLEJIJDGEoFALLCoNTESTSRELATINGToTHEELECIIoN'
with respect to matters not expressly required to be entered on the F RETURNsT AND QuALIFIcArroNs oF THEIR RESPEcTwE MBunnns'
journal, the enrolled bill prevails in the event of any discrepancy. i:
ri Elcn ElrcroRAL TRTB{iNAL SHALL BE COMPOSED OF NINE MBMBERST
l TITREE oF wHoM SHALL nr Jusrrcns oF THE Supnnun Count ro
rn
It should
be noted that what gives special probative weight to t DFsIGNATED BY THE Cmrr JusucEr AND THE REMAINING slx SITALL
an enrolled bill is the certification it receives from the officers of the nB Mnurnns oF THE srXlrn oR TrIE HOUSE Or RrpnesnxTATMSt
legislature. In the case of Congress under the 1935 Constitution, the *
AS THE CASE MAY BE' WHO SHALL BE CIIOSEN ON THE BASIS OF
signatures of the Speaker of the House of Representatives and of the PRoPoRTIoNALR'EPRESENTATIONFR.OMTIIEPOLITICALPARTIESAND
President of the Senate were what counted. Thus, when, as happened THEPARTIESoRoRGANIZATIoNSREGISTEREDUNDERTIIEPARTY.
in Astorga v.Vllegas2o' not only the Senate President but also the Presi- LIsr sYSTEM REPREsENTED THEREIN. Tnn srxron Jusrlcn IN THE

dent of the Philippines withdrew their signatures upon discovery of the t Er,rcronlr, TnrsuNAl sIrALL BE trs Cn.llnu'lt'l'
inaccuracies in the bill, the document was stripped of the character and
probative value of an enrolled bill and had to yield to the version found
E
It
1. ComPosition.
in the journal.ln Tblentino v. Secretary of Finance,zos even though the Section 17 sets down the composition of the two Electoral Tribu-
'!
t nals. Like the Electoral Tribunals of the 1935 Constitution, they are a
T3ld. at 18.
mixture of members of Congress and of the Supreme Court, "thus re-
ry7 SCRA 347,3s0 (1963). I flecting both the respect for parliamentary sovereignty and the need for
m527 SCRA l3l (1969).
I
ffiArt. VI, Secs. l0(4),20(1) and 21(l) (1935).
2o7Cf.
e.g.,Wikes Country Comm'rs v. Color, 180 U.S.506 (1900). E
rE56 SCRA 714,722-3 (Aprll 30,1974).
m235SCRA630,672(1994),affirmedonreconsiderationG.R.Nos. III206-0t1.Ocrobcr provl",urrn,lhc scconcl scntcnce of Section l6(4)' was a l8st minute sddition' v RE-
""rfi,r
6, 1995 ('()Rl) 702.
 TI{E 1987 CONSTITUTION Sec. 17 Sec. 17 ART.VI _THELEGISLATIVEDEPARTMENT 749

OFTHE REPUBLIC OFTHE PHILIPPINES

be the sole
legal impartial decisions."2' The legislative part of the mix, however, Tribunal a clear impairment of the Tribunals prerogative to
departs from the 1935 rule which gave three seats each to only the two judge of election contests.2's
political parties having the largest number of votes in each House. The
1987 formula of proportional party representation reflects the constitu- 2.Jurisdiction of the Electoral Tlibunals'
tion's desire to encourage the growth of a multi-party system. It should
what is the meaning and scope of the power of the Electoral Tri-
be noted, however, that representation in the Electoral rribunals is giv-
bunalstobejudgeofcongressionalelectioncontests?Toanswerthis
en to "political parties and the parties or organizations registered under its coun-
question, it is useru to tface the history of the provision from
the party-list system." There is no provision for the representation of various Philip-
terpart in the united states constitution and through the
sectors except in so far as they might be part of the party-list system.2r2
pine organic laws that preceded the present constitution. The original
Act of
The Supreme Court has had occasion to deal with problems aris- prouisiJn on this subjecl is found in Section 7 ,paragtaph 5 ' of the
ifr" Unit"d States Congress of July l, !902. The Act provided that
ing from the partisan element in the Electoral Tribunals. ln Abbas v. "the
senate Electoral rribunal, Abbas sought to disqualify all six Senator judge of the elections, returns, and qualifications
assembly shall be the
1 of
members of the Electoral Tribunal on the ground that they, together of its mimbers." The Ironi.ion was taken from Section 5, Article
with all the other senators, were respondents in the contest filed by the the Constitution of the United States providing that
"Each House shall
opposition party. He therefore wanted his case to be decided solely by be the Judge of the Elections, Returns, and Qualifications of its own
Members.,i The Act of the United States Congress of August
29 , 1916 ,
the three Supreme court justices in the Electoral rribunal. In rejecting
section 18, paragraph 1, modified the provision to read "That
such contention the Supreme Court said:2r3 the sen-
the sole judges
ate and House of Representatives, respectively, shall be
Where as here a situation is created which precludes the sub- members."
of the elections, returns, and qualifications of their elective
stitution of any Senator sitting in the Tribunal by any of his other character
The effect of this modification was to emphasize the exclusive
colleagues in the Senate without inviting the same objections to grant
the substitute's competence, the proposed mass disqualification if of the jurisdiction conferred upon each House."6 This exclusive
of jurisdiction at once effectively barred either House from interference
sanctioned and ordered would leave the Tribunal no alternative
the
but to abandon a duty that no other court or body can perform but with the judgment of the other House and also completely removed
that was
which it cannot lawfully discharge if shorn of the participation of subject *utt"t from the jurisdiction of the courts in language
its entire membership of Senators. "full, clear and comPlete."2"

The case of Bondoc v. Pineda2ta involved a blatant attempt of a The 1935 Constitution made a significant departure from earlier
provisions by providing in Article vI, Section 4, thus: "There shall
be
political party to manipulate the decision of the Tribunal by manipulat-
an Electoral commission composed of three Justices of
the supreme
ing its membership. on the eve of the promulgation of a decision of the chosen by
court designated by the chief Justice, and of six Members
Tribunal against a member of the Laban ng Demokratikong pilipino by the party
the National Assembly, three of whom shall be nominated
(LDP), the LDP expelled Camasura from the party on the ground of
disloyalty. Camasura, the LDP member of the Electoral Tribunal, had havingthelargestnumberofvotes,andthreebythepartyhavingthe
shall
confided to the LDP that he was voting against the party's candidate. .""on-d largest number of votes therein. The Electoral commission
be the sole judge of all contests relating to the election, returns, and
The Supreme Court considered the expulsion of Camasura from the power
qualifications oi all members of the National Assembly." Thus, a

,'III RECORD 45. ,[/./. the decision impairs the

ltt ll l0-ll I2. srr, disscnr of Padilla and sarmiento saying that
2t2ld. al 590. indcpcndcncc ol thc tkrttsc
,r3l 66 SCRA 65 t,655 ( I
988). rrnAngttrtt v. l'llcctornl (irmnrission,6l I'hil l39' 162 (l916)'
,lf20 l SCRA 792 (l99tl. ilrVckx., v. lloflft] ol ('unvnsscrs, l() I'lrrl. tltl(r,l'lttl{ ( l9l9).
 75O 'tlllt t9tt7 (t)Ns'l'f l'lj't'l()N
()l;1.1lli RIil,tilll,l(. olr.l.l lti t,l llt.il,lDlNlis
traditionally lodged in the legislative body itself was takcn away arrtl
given "to an independent, impartial and non-partisan tri[unnl."rrx'1'pr,.
innovation was in answer to "the long-felt need of determining lcgisll
tive contests devoid of partisan considerations."2'n
The effect of this provision, however, was not to divest the legisl.-
ture of all power relative to the election, returns, and qualifications of its
members and thus render it powerless to protect its own integrity. what
was transferred to the Electoral commission was merely the power t<r
be the "sole judge of all contests." The significance of this language was
explained inVera v. Avelino thus'220
The Convention did not intend to give it qll the functions
the Assembly on the subject of election and qualifications of its
members. The distinction is not without a difference. ..As used in
constitutional provisions," election contest ..relates only to statu_
tory contests in which the contestant seeks not only to oust the
intruder, but also to have himself inducted into office.,22r
where, therefore, no defeated candidate challenges the credentials
of a member in order not only to dislodge him but also to take his seat,
the legislative body itself, in the exercise of its inherent right of self-
preservation, may inquire into the credentials of the member and judge
his qualifications. when a member of the legislative body challenges
the qualification of another, an "election contest" does not thereby en-
sue, because the former does not seek to be substituted for the latter,
and, hence, it is the legislative body itself and not the Commission,
which has jurisdiction over the question raised.222
when the National Assembly of the 1935 constitution was abol-
ished by a 1940 amendment which created a bicameral congress, the
identical powers given to the Electoral commission of the National
Assembly were transferred to the respective Electoral rribunals of the
Senate and House of Representatives.
2'863 Phil. at 170.
zteld' at 175.Tbe
Constitutional Convention debates on tlte subject are dealt with at length
id. at l&-17O.
2n77 Phit. 192,
2O9 (1946).
22tLevrtst
on ELEcrrorys, Second Edition, p. 250; 20 CJ. 5g.
2221d.
at 2lO-211 .
Sct,. I / Sce l'l AR'l'Vl 'l'lll1l,l(illil.Al'lvl1 l)lil' l{lMliNl Tll
[Jndcr thc 1973 constitution, thesc powers, as delineated in vera
r,. Avelirut, wcre given to the Commission on Elections. There was
no
Ulcctoral 'lribunal under the 1973 Constitution. Similarly, the same
powcrs to judge qualifications retained by the National Assembly under
in" tq:S Constitution and by the Senate and House of Representatives
under the 1940 amendment were retained by the Batasang Pambansa
under the 1973 Constitution.
under the 1987 Constitution the GOMELEC decides who the
winner is in an election. A person holding office in the House must yield
his or her seat to the person declared by the COMELEC to be the win-
ner and the Speaker is duty bound to administer the oath.223 The Speaker
of should administer the oath on the winner.
But since the GoMELEC administers all election laws, when
does a controversy leave the coMELEC',s control? In election con-
tests, the jurisdiction of the COMELEC ends once a candidate has been
proclaimed and has taken his oath of office as a Member of Congress.
lurisdiction then passes to the Electoral Tribunal of either the House or
the Senate. This is true even if there is allegation that the proclamation
was invalid. The Tribunal will decide that too.224
But up to what point may the GoMELEC entertain protests before
proclamation? This was the question in sanchez v. GoMELEC25 and
Chavez v. COMELEC.226lnboth cases the candidates who were trailing
in the announced count wanted the COMELEC to withhold proclama-
tion until a recount could be made of the votes. In Sanchez, the conten-
tion of the candidate was that the name of another Sanchez who had
been disqualifled had not been removed from all the voting precincts.
He claimed that in the process of counting, a vote for Sanchez without
specification of given name had been considered an invalid vote. He
therefore wanted the ballot boxes reopened for purposes retrieving the
invalidated Sanchez votes. The situationin Chavez was similar'
In deciding against Sanchez the Court laid down the premise that
"the policy of the election law is that pre-proclamation controversies
%ffiG Venecia, G.R. No. 150605, December 10, 2002'
22aAggabao v. GoMELEC, G.R. No. l63756,January 26,2005; vinzons-chato v. coM-
ELEC, G.R. No. 172131, April 2, 2W7 .
,rs153 SCRA 67 (1987).
scRA 315 (1992).
"9ll
 THE 1987 CONSTITUTION Sec.
OFTHE REPUBLIC OFTHE PHILIPPINES
should be summarily decided, consistent with the law's desire that the
canvass and proclamation be delayed as little as possible.', Hence, un-
der the omnibus Election code in effect then, the scope of pre-procla-
mation controversy was limited to incomplete returns, or returns with
material defects, or retums which appeared to be tampered with, falsi-
fied or prepared under duress, or containing discrepancies in the votes
credited to any candidate the difference of which would affect the re-
sults. Any thing else outside of these should be brought before the Elec-
toral Tribunal.r,'
ln Chavez, the Court reached an identical result. The policy of
the law enunciated in sanchezwas by then embodied in R.A. No.7166
which prescribed that no pre-proclamation controversies were allowed
for the election of President, vice-President, Senators and Members of
the House of Representatives except in the case of "manifest error in the
certificate of canvass or election returns." Errors which cannot be veri-
fied except by the opening of the ballot boxes are not "manifest errors."
Hence, as in Sanchez, the proper remedy was recourse to the Electoral
Tribunal.228
Another question that need be answered is: What does to.Judge
qualifications" mean? In other words, can the Tribunal disqualify a
member on the basis of qualifications or disqualifications not found in
the constitution itself? or, put differently, can the legislature add to the
qualifications and disqualifications found in the Constitution?
Since a member of Congress must be a "registered voter"22e and
since congress may determine who are disqualified from voting,ao it is
evident that through its limited power over the right of suffrage con-
gress may in effect create disqualifications. The question of addition-
al "qualifications," however, is a different matter. From the care with
which the qualifications were formulated and from the absence of an
explicit grant of power to add'to the qualifications enumerated by the
constitution, it may be inferred that the enumeration is meant to be
exclusive. It will be noted that in the instance where the constitution
means to enumerate merely minimum qualifications, as in the case of
227153
SCRA at 75.
22821I SCRA at
321,f24.
z2eArticle
Vll, Sections 3 tntl 6.
2arArticlc V, Section I.
l7 _ THELEGISLAIIVEDEPARTMENT 753
Sec. l7 ART.VI
judges of lower courts, the Constitution explicitly says that Congress
may prescribe qualifications over and above the minimum which the
Consiitution prescribes.23r Moreover, it should also be recalled that Phil-
ippine legislative bodies are patterned after their American counterpart
anO ttrat therefore American doctrine on the subject is not without ap-
plication to the Philippine situation.
American jurisprudence on the subject points to the conclusion
that the Constitution leaves the legislature "without powef to exclude
any member-elect who meets all the Constitution's requirements for
membership."z:z J[i5 conclusion was arrived at by a historical analysis
of early English and American colonial exclusion precedents, of the
debates at the Philadelphia Convention, and of early post-ratification
precedents.2r The analysis concludes:
Had the intent of the Framers emerged from these materi-
als with less clarity, we would nevertheless have been compelled
to resolve any ambiguity in favor of a narrow construction of the
scope of Congress' power to exclude members-elect' A fundamen-
tal principle of our representative democracy is, in Hamilton's
words, "that the people should choose whom they please to govern
them."23a As Madison pointed out at the Convention, this principle
is undermined as much by limiting whom the people can select as
by limiting the franchise itself. In apparent agreement with this
basic philosophy, the Convention adopted his suggestion limiting
the power to expel. To allow essentially that same power to be
exercised under the guise ofjudging qualifications, would be to
ignore Madison's warning, borne out in the Wilkes case and some
of Congress'own post-Civil War exclusion cases, against "vesting
an improper and dangerous power in the Irgislature'"235 Moreover,
it would effectively nullify the convention's decision to require
a two-third vote for expulsion. Unquestionably, Congress has an
interest is preserving its institutional integrity, but in most cases
that interest can be sufficiently safeguarded by the exercise of its
power to punish its members for disorderly behavior and, in ex-
treme cases, to expel a member with the concurrence of two-thirds.
r'rArticle VlIl, Section 7(2).
rlrprrwcll v. Mc(.ormack,395 U.S. 456,547 (1969',1. See also Maquera v. Borra, l5 SCRA
? ( 1965), which <icals wilh un uttcmpt to add a property qualification'
t"ltl. ut 522-54-l .
r!2 lilliol's l)cblllcs 25?.
tF2 lhrrlnd 249.
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
traditionally lodged in the legislative body itself was taken away and
given "to an independent, impartial and non-partisan tribunal.,zr8 The
innovation was in answer to "the long-felt need of determining legisla-
tive contests devoid of partisan considerations."2re
The effect of this provision, however, was not to divest the legisla-
ture of all power relative to the election, returns, and qualifications of its
members and thus render it powerless to protect its own integrity. what
was transferred to the Electoral commission was merely the power to
be the "sole judge of all contests." The signiflcance of this language was
explained inVera v. Avelino thus'220
The Convention did not intend
to give it all the functions of
the Assembly on the subject of election and qualifications of its
members. The distinction is not without a difference. .,As used in
constitutional provisions," election contest ..relates only to statu_
tory contests in which the contestant seeks not only to oust the
intruder, but also to have himself inducted into office."22r
where, therefore, no defeated candidate challenges the credentials
of a member in order not only to dislodge him but also to take his seat,
the legislative body itself, in the exercise of its inherent right of self-
preservation, may inquire into the credentials of the member and judge
his qualifications. when a member of the legislative body challenges
the qualification of another, an "election contest" does not thereby en-
sue, because the former does not seek to be substituted for the latter,
and, hence, it is the legislative body itself and not the commission,
which has jurisdiction over the question raised.222
when the National Assembly of the 1935 constitution was abol-
ished by a 1940 amendment which created a bicameral congress, the
identical powers given to the Electoral commission of the National
Assembly were transfered to the respective Electoral rribunals of thc
Senate and House of Representatives.
"863 Phil. at 170.
2teld. at l'75.The Constitutional Convention debates on thc subjcct arc tlcalt with
id. at 164-170.
2177 Phit. 192, 2O9 (t946\.
2zrl.tuRr'). on EurrntNs,sccontl (.J.
lirlitirn, p. 25O; 20 5tt.
27zld.
ut 2lll 2ll . ,n2l I s(.RA \15
Sec. 17 ART.VI - THELEGISLATIVEDEPARTMENT 751
Under the 1973 Constitution, these powers, as delineatedinVera
v. Avelino, were given to the Commission on Elections. There was no
Electoral Tribunal under the 1973 Constitution. Similarly, the same
powers to judge qualifications retained by the National Assembly under
the 1935 Constitution and by the Senate and House of Representatives
under the 1940 amendment were retained by the Batasang Pambansa
under the 1973 Constitution.
Under the 1987 Constitution the COMELEC decides who the
winner is in an election. A person holding office in the House must yield
his or her seat to the person declared by the COMELEC to be the win-
ner and the speaker is duty bound to administer the oath.2" The Speaker
should administer the oath on the winner.
But since the COMELEC administers all election laws, when
does a controversy leave the COMELEC's control? In election con-
tests, the jurisdiction of the COMELEC ends once a candidate has been
proclaimed and has taken his oath of office as a Member of Congress.
Jurisdiction then passes to the Electoral Tribunal of either the House or
the Senate. This is true even if there is allegation that the proclamation
was invalid. The Tribunal will decide that too.224
But up to what point may the GoMELEC entertain protests before
proclamation? This was the question in Sanchez v' COMELEC" and
Chavez v. COMELEC.226ln both cases the candidates who were trailing
in the announced count wanted the COMELEC to withhold proclama-
tion until a recount could be made of the votes. ln Sanchez, the conten-
tion of the candidate was that the name of another Sanchez who had
been disqualified had not been removed from all the voting precincts.
He claimed that in the process of counting, a vote for sanchez without
specification of given name had been considered an invalid vote. He
therefore wanted the ballot boxes reopened for purposes retrieving the
invalidated Sanchez votes. The situationin Chavez was similar.
In deciding against Sanchez the Court laid down the premise that
..the policy of the election law is that pre-proclamation controversies
lt lc1gt6 tr'(iililla
v. dc Vcnc:cin, G.R. No , I 50605, Dccember 10, 2002.
r''rAggahao v. ('()Mlil.ll(" (i.R. No. 163756, January 26,2fi)5: Vinzons-Chato v. COM-
til.li(', (;.R. No. 172 l.l I. April 2, 2(X)7.
rrll5l
S('RA (r7 ( l9lt7).
(19().1).
752 THE 1987 CONSTITUTION
Sec.
OF THE REPUBLIC OF THE PHILIPPINES
should be summarily decided, consistent with the law's desire that the
canvass and proclamation be delayed as little as possible." Hence, un-
der the Omnibus Election Code in effect then, the scope of pre-procla-
mation controversy was limited to incomplete returns, or returns with
material defects, or returns which appeared to be tampered with, falsi-
fied or prepared under duress, or containing discrepancies in the votes
credited to any candidate the difference of which would affect the re-
sults. Any thing else outside of these should be brought before the Elec-
toral Tribunal.2"
ln Chavez, the Court reached an identical result. The policy of
the law enunciated in Sanchez was by then embodied in R.A. No. 7166
which prescribed that no pre-proclamation controversies were allowed
for the election of President, Vice-President, Senators and Members of
the House of Representatives except in the case of "manifest error in the
certificate of canvass or election returns." Errors which cannot be veri-
fied except by the opening of the ballot boxes are not "manifest errors."
Hence, as in Sanchez, the proper remedy was recourse to the Electoral
Tribunal."*
Another question that need be answered is: What does to 'Judge
qualifications" mean? In other words, can the Tribunal disqualify a
member on the basis of qualifications or disqualifications not found in
the Constitution itself? Or, put differently, can the legislature add to the
qualifications and disqualifications found in the Constitution?
Since a member of Congress must be a "registered voter"22e and
since Congress may determine who are disqualified from voting,ao it is
evident that through its limited power over the right of suffrage Con-
gress may in effect create disqualifications. The question of addition-
al "qualifications," however, is a different matter. From the care with
which the qualifications were formulated and from the absence of an
explicit grant of power to add.to the qualifications enumerated by the
Constitution, it may be inferred that the enumeration is meant to be
exclusive. It will be noted that in the instance where the Constitution
means to enumerate merely minimum qualifications, as in the case of
"7153 SCRA at 75.
"t211 SCRAat 321,324.
2'?eArticle VII, Sections 3 and 6.
2rArticle V, Section
l.
l7
S€c. l7 ART.VI _ THELEGISLATIVEDEPARTMENT 753
judges of lower courts, the Constitution explicitly says that Congress
may prescribe qualifications over and above the minimum which the
Constitution prescribes.23r Moreover, it should also be recalled that Phil-
ippine legislative bodies are patterned after their American counterpart
and that therefore American doctrine on the subject is not without ap-
plication to the Philippine situation.
American jurisprudence on the subject points to the conclusion
that the Constitution leaves the legislature "without power to exclude
any member-elect who meets all the Constitution's requirements for
membership."E2 This conclusion was arrived at by a historical analysis
of early English and American colonial exclusion precedents, of the
debates at the Philadelphia Convention, and of early post-ratification
precedents.233 The analysis concludes:
Had the intent of the Framers emerged from these materi-
als with less clarity, we would nevertheless have been compelled
to resolve any ambiguity in favor of a narrow construction of the
scope of Congress'power to exclude members-elect. Afundamen-
tal principle of our representative democracy is, in Hamilton's
words, "that the people should choose whom they please to govern
them."234 As Madison pointed out at the Convention, this principle
is undermined as much by limiting whom the people can select as
by limiting the franchise itself. In apparent agreement with this
basic philosophy, the Convention adopted his suggestion limiting
the power to expel. To allow essentially that same power to be
exercised under the guise ofjudging qualifications, would be to
ignore Madison's warning, borne out in the Wilkes case and some
of Congress' own post-Civil War exclusion cases, against "vesting
an improper and dangerous power in the lrgislature."23s Moreover,
it would effectively nullify the Convention's decision to require
a two-third vote for expulsion. Unquestionably, Congress has an
interest is preserving its institutional integrity, but in most cases
that interest can be sufficiently safeguarded by the exercise of its
power to punish its members for disorderly behavior and, in ex-
treme cases, to expel a member with the concurrence of two-thirds.
2rrArticle VIll, Section 7(2).
2r2Rrwell v. Mc(lrrmack,395 U.S. 486,547 (1969\. See also Maquera v. Borra, l5 SCRA
7 ( 196.5), which dcaln with un altempt to add a property qualification.
'\'ld. tt 522-547.
r"2 l,llliot's l)chutes 257.
Itr2 Fttrrnnrl 249.
t,

THE 1987 CONSTITTITION Sec. 17
OFTHE REPUBLIC OFTHE PHILIPPINES
In short, both the intention of the Framers, to the extent it can
be determined, and an examination of the basic principles of our
democratic system persuade us that the Constitution does not vest
in the Congress a discretionary power to deny membership by a
majority vote.
For these reasons, we have concluded that Art. I, Section 5,
is at most a "textually demonstrable commitment" to Congress to
judge only the qualifications expressly set forth in the Constitu-
tion. Therefore, the "textual commitment" formulation of the po-
litical question doctrine does not bar federal courts from adjudicat-
ing petitioners' claims.
Our Court, however, has decided not to follow the above Ameri-
can teaching. The right of Farifras to sit in the House of Representatives
was challenged on the ground that his certificate of candidacy was in-
valid. He had failed to satisfy the statutory requirements for certificate
of candidacy. Farifras had already been proclaimed winner and was ac-
tually holding office. Moreover, he had all the qualifications prescribed
by Section 17. Was this an issue which could be decided by the House
Electoral Tribunal? The Court ruled that it was:
. . . lA]rticle VI, Section 17 of the Constiturion cannot be
circumscribed lexically. The word "qualifications" cannot be read
as qualified by the term "constitutional." Ubi lex non distinguit
noc nos distinguire debemos. Basic is the rule in statutory con-
struction that where the law does not distinguish, the courts should
not distinguish. There should be no distinction in the application
of a law where none is indicated. For firstly, the drafters of the
fundamental law, in making no qualification in the use of a gen-
eral word or expression, must have intended no distinction at all.
Secondly, the courts could only distinguish where there are facts
or circumstances showing that the lawgiver intended a distinction
or qualification.In such a case, the courts would merely give effect
to the lawgiver's intent.
It is submitted, however, that, although the Court's conclusion is
corect, the issue here is not about qualifications. When the Constitu-
tion enumerates qualifications without a generic clause like "ancl such
other qualifications which may be provided by law," the rule is lhut
the qualifications are exclusive and may not be addcd to by Congress.
Farifras had all the qualilications prcscribcd by Scction (r. llis prob
lem, howevcr, was firilurc: to loll<lw lhrr rctluircltrclrls lrlr ir ct:rlilicrrlr.
- THELEGISLAIIVEDEPARTMENT
1ss
Sec.17 ART.VI
of candidacy. Thus, this is not a contest involving "qualification" but a
contest involving "election" over which the Electoral Tribunal also has
jurisdiction.
The case of Garcia v. HRET,23' also involved a procedural rule
promulgated by the Electoral Tribunal itself. Petitioners, seeking to
iisquaffy Harry Angping failed to make the cash deposit required by
the rules of the HRET. When the petition was dismissed, they claimed
grave abuse of discretion. The Court said that challenging the right of a
member of congress to hold offlce on the ground that he was not a natu-
ral born Filipino citizenwas a serious charge.In view of the delicate na-
ture and importance of this charge, the observance of the HRET Rules
of Procedure must be taken seriously if they are to attain their objective'
i.e.,thespeedy and orderly determination of the true will of the elector-
ate. Impeiative justice requires the proper observance of technicalities
preciseiy designed to ensure its proper and swift dispensation.
The court has also clarified the rule on who should assume the
position should the candidate who received the highest number of votes
is disqualified. The second in rank does not take his place. The reason
is simple: "It is of no moment that there is only a margin of 768 votes
between protestant and protestee. Whether the margin is ten or ten thou-
sand, it siill remains that protestant did not receive the mandate of the
majority during the elections. Thus, to proclaim him as the duly-elected
repiesentative in the stead of protestee would be anathema to the most
basic precepts of republicanism and democracy as enshrined within our
Constitution.""'
3. Independence ofthe Electoral TFibunals'
Although six members of the Electoral Tribunals are members of
Congress, thi Tribunals themselves are not part of either House of Con-
g."ri. Th"y are independent constitutional creations which have power
to create their own rules238 and are not under the supervision or control
of Congress }'o As Suanes v. Chief Accountant said:240
rr"(i.R. Ntt. l34792,August l2' 1999
rt/()currtptt v. tlRli'l', (i.R. No. l5tl466' June l5' 2004'
/'*il RIi(',()lil) tl7 lltt.
r'e/r/. ul I I2. Angtrtr v. l'lleclolnl l'rihrrnnl,(r3 Phil l39
ra"tll l'lrrl t,l llt, t'(') /,rH ( l')'ll{)
 756 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
considering then that the Erectoral rribunals are constitu-
tional creations, designed as bodies distinct from and independent
of the Congress, so that they may carry out their constitutional
mission with independence and impartiality, it follows that within
the precise sphere of their functions, they are as sovereign over
their internal affairs as are each of the other powers of government
over their respective domains. Consequently, the empl,oyees of an
Electoral rribunal are its own, and not of the Senate nor of the
House of Representatives nor of any other entity, and it stands to
reason that the appointment, the supervision and the control over
said employees rest wholly within the Tribunal itself. ...
The fact that the appropriation for the Senate Electoral Tri_
bunal is included in the budget corresponding to the Senate, does
not and cannot mean that the employees of the Electoral rribunal
are also employees of the Senate, for both institutions are separate
and independent of each other under the Constitution. ...
similarly, the Electoral rribunals are independent of the commis-
sion on Elections. Hence, cases before the Electoral rribunal are gov-
erned not by the rules of procedure for election controversies prescribed
by the commission on Elections but by the Tribunal's own rules.24rBut
since the jurisdiction of Electoral rribunals is over ..election contests"
in the statutory sense, they do not have jurisdiction over pre-proclama-
tion controversies which come under the jurisdiction of the-commis-
sion on Elections.ra2
Finally, since the constitution has constituted the Tribunals as
"sole judge" of legislative election contests, their decisions on such
controversies are not subject to appeal to the Supreme court.243 How-
ever, the supreme court is not totally excluded. under Article vIII,
section 1, judicial power includes the authority "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."2u on this basis, the supreme court has invalidated
a final vote tally made by the Electoral rribunal without supporting
gyidgngg.z+s
2atLazatin v.
Electoral Tribunal, 168 SCRA 391
(l9gg).
,4'IIRECORD I1I.
2a3ld.
at 113.
2aRobles v. House
Electoral liibunal, lgl scRA 7ti0 (199o)l c'v. Housc Electortl 'lii-
bunal, 199 SCRA 692 ( l99l ).
2a5l.erias v.
I-lousc Elcckrrtl 'I'ribunnl,202 S(.RA g08 (1991): Arnryo v. Hounc l.llectrx.ll
'Irihunal,(i.R. No, I1u597.July 14, l(,x)5.
Secs. 18-19 ART.VI _THELEGISLATIVEDEPARTMENT 757
Src. 18. Tlmnr SHALL BE I Couurssrox ot't ApporxrMENTs
coNsIsrlNc oF THE Pnrsmrnr oF THE Srmrn', As Ex'oFFIcIo
Crumlrur, TwELvE Srx.lrons AND TwELvE Mmrnrns oF TltE
Housr oN THE BAsIs
Housr or RrpnrsrNTAflvEsrELECTED BY EAcH
OF PROPORTIONAL REPRtrSENTATION FROM THE PiOLITICAL PARTIES
ANDPARTIESoRoRGANIZATIoNSREGISTEREDIJNDERTHEPARTY.LIST
SYSTEM REPRESENTED TTTNNNN{. THE CTTAINUIX OF TIIE COMATSSTOX
SHALL Nor vorEr ExcEPT IN cAsE oF A TIE. Tnn Cou*nssloN SHALL
AcToNALLAPFOINTMENTSSUBMITTEDToITWITHINTHIRTYSESSION
DAys oF rm Concnrss FRoM THEIR suBMlssIon. Tnr CounnrssroN
sHALL RULE BY A MAJoRITY vorE oF ALL rnr Mrunrns.
Src. 19. Tnn Elncronr,r, Tnrnuxn s AND TnE Couulssrox
on ApporxruENTs SITALL BE CoNSTITUTED WITHIN THIRTY DAYs
AFTER THE Snxlrr lxo rnr Housr or Rr'pnnspnmtlvEs sHALL HAvE
BEEN oRGANtzED wrrn THE ELEcTIoN oF TI{E Pnnsrpnrr AND THE
Spelxnn. Txn CouuIssloN oN ApporxtMsxts SITALL MEET oNLY
wHILE THE Coxcnrss Is IN sEssloNr AT TIIE cALL oF rrs Cn'l'rnulx
oR A MAJORTTY OF ALL ITS MEMBERST TO DISCHARGE SUCH POWERS
AND FUNCTIONS AS ARE HEREIN CONFERRED UPON IT.
1. Commission on Appointments: composition' nature'
functions.
The commission on Appointments consists of "the President of
the Senate, as ex-fficio Chairman, twelve Senators and twelve Mem-
bers of the House of Representatives, elected by each House on the
basis of proportional representation from the political parties and par-
ties or organizations registered under the party list system represented
therein." With the Chairman, therefore, the total complement is twenty-
five, thus making it easier to allow for representation of more parties.26
Like the composition of the Electoral Tribunals, the structure of
the Commission onAppointments departs from that of its counterpart in
the 1935 Constitution which gave preferential representation only to the
two largest political parties represented in each House. The 1987 Con-
stitution calls for proportional representation of all political parties and
parties and organizations registered under the party-list system. And, as
with the Electoral Tribunals, sectors will be represented only in so far
form part of the party-list system.
as they
,anA pnrJxncrl u[lcildnlcnl to rc(luce lhc t()tul tt) thirlcen wns not approvcd. ll RIICORI)
r t9 t4().

THE 1987 CONSTITUTION Secs.
OF THE REPUBLIC OF THE PHILIPPINES
The arithmetic involved in the formation of the commission on
Appointments has occasioned a number of controversies. The first of
these was coseteng v. Mitra,,/r.247 coseteng was the only member of
congress from the political party KAIBA. was she entitled to one of
the twelve seats in the commission? The answer was simple arithmetic.
since the total membership of the House of Representatives was 202, to
be entitled to a seat in the commission a party must have 16.g members
in the House or 8.4vo of the total membership. KAIBA was obviously
short of the required number even if she had the support of members not
belonging to her party.
The second case, Guingona, Jr.v. Gonzales,2as involved the Senate
contingent in the commission. The senatorial elections of lgg2yielded
15 LDP senators,5 NPC, 3 Lakas-NUCD, and 1 LP-PDP-LABAN. On
the basis of proportional representation, therefore, the commission on
Appointments could contain 7.5 LDp,2.5 NpC, 1.5 Lakas, and .5 Lp_
PDP-LABAN. The Senate, however, put in 8 LDp by rounding up 7.5,
2 NPC by ignoring .5, 1 LAKAS also by ignoring .5, and I Lp_pDp
by rounding out .5 ro 1. was this constitutional? The court ruled that
rounding out 7.5 to 8 and .5 to I was unconstitutional because it de-
prived Lakas and NPC of .5 each. Nor can the holders of .5 each, while
belonging to distinct parties, form a unity for purposes of obtaining a
seat in the commission. Thus, under the court's arithmetic, the result
would be a total of only 11 members. But the court ruled that a full
complementof 12 was not mandatory.
since the composition of the commission on Appointments is
proportional to the size of the political parties and organizations in
congress, periodic reorganization may be necessary in order to reflect
changes in the proportion within congress. This principle was em-
phasized in Daza v. singson.2ae However, to justify reorganization, the
changes in the political complexion of the House must be pennanent
and not temporary in character:2io
27187 SCRA
377 (1990).
'?4214 scRA 789 (1992). The case of Lorenzo Tafrada being given a seat in the commis-
sion on Appointments in the old Senate in spite of his being the only member of the Citizens party
was cited as justification for reconsidering the decision. The Court did not consider
thc case of the
older Taffada as precedent because the action of the Senate then was never challenged in court.
Guingona, Jr. v. Gonzales,2lg SCRA 326 (1993).
,4'180 scRA 496 (t989).
21)(-'ununun
v. Tan, 5 SCRA nr 4.
- THELEGISLATIVEDEPARTMENT
l8-19 Secs. l8-19 ART.VI 759
ln other words, a shifting of votes at a given time, even if
due'to arrangements of a more or less temporary nature ... does
not suffice to authorize a reorganization of the membership of the
Commission for said House. Otherwise, the Commission on Ap-
pointments may have to be reorganized as often as votes shift from
one side to another in the House. The framers of our Constitution
could not have intended to thus place a constitutional organ, like
the Commission on Appointments, at the mercy of each House of
Congress.
"In order that the members of the Commission could properly
discharge their duties as such, it is essential that their tenure therein
be provided with a certain measure of stability to insure the necessary
freedom of action."'5'
Although the Commission onAppointments is formed through the
instrumentality of the two Houses of Congress, the Commission itself,
once formed, is independent of Congress:2s2
The Commission on Appointments is a creature of the Con-
stitution. Although its membership is confined to members of Con-
gress, said Commission is independent of Congress. The powers of
the Commission do not come from Congress, but emanate directly
from the Constitution. Hence, it is not an agent of Congress. In
fact, the functions of the Commission are purely executive in na-
ture.
As an independent body, it can promulgate its own rules253 and the
Supreme Court cannot pass upon the correctness of the interpretation
placed by the Commission of its own rules.25o
Section 19 prescribes that the Electoral Tribunals and the Com-
mission on Appointments shall be constituted within thirty days after
the Senate and the House of Representatives shall have been organized
with the election of the President and Speaker. Thus, the two Commis-
sions are not coaetaneous with Congress. However, the Commission
2st
Id.
2s2Cunanan v. Tan, 5 SCRA l,3 (,l962).
11'll RECORD .at tl8.
2l{Advincula v. (irnrnrission On Appointments,7 SCRA I (January 12, 1963)' In the origi-
nal perition, 5 SCRA I I 79 ( I 962), the Court had saicl that it could not determine the correctness of
thc tllnrnrission's intcrptctuti(xr of its own rulcs "without violating thc tundamental principle of
scpurntion of grwcrs." .\r/ rrls() Quinrsing v. 'l'lr iunglangit, ( i .R. No. 199!l I , February 29, 1964 and
Altartlor* v. Mttkr, 25 li('RA 55O ( l()0lt).
 7ffi THE 1987 CONSTITUTION Secs.20-21
OF THE REPUBLIC OF THE PHILIPPINES
on Appointments may meet only while Congress is in session, at the
call of its Chairman or a majority of all its Members. "How often and
how long it shall meet is left entirely to the discretion of the Commis-
sion, as long as it is during the session of the Congress . ... Therefore,
if the Commission itself decides that its working days should be from
Monday through Friday of the week, excluding Saturday and Sunday,
it would be exercising its lawful authority and would not be infringing
any constitutional provisi6n."zss
Since the Commission can meet only when Congress in session,
Article VII, Section 16 makes provision for appointments made by the
President when Congress is not in session. More on this later on.
The function of the Commission on Appointments is to consent
to or confirm nominations or appointments submitted to it by the presi-
dent pursuant to Article VII, Section 16 which enumerates the appoint-
ments which need action by the Commission on Appointments. The
Commission is thus intended to serve as an administrative check on
the appointing authority of the President. The powers of the Commis-
sion, however, can be abused. Hence, in order to lessen the possibil-
ity that political vindictiveness might make the Commission freeze the
confirmation of unwanted nominees or allow one member to block the
confirmation of a nominee, the rule was added that the Commission
shall act on all appointments submitted to it within thirty session days
of Congress from their submission and that the Commission should rule
by majority vote.256
Src. 20. Trs nncoRDS AND BooKS oF AccouNTS oF TrrE
Coxcnrss sHALL BE pREsERvED AND BE opEN To rHE pIJBLrc IN
ACCORDANCE WITH LAW, AND SUCH BOOKS SHALL BE AUDITED By
rnr Cou*rrssroN oN Aunrr wnrcn SHALL pUBLISH ANNUALLy AN
ITEMIZED LIST OF AMOTJNTS PAID TO AND EXPENSES INCURRED FOR
rlcn Mpnnrpn.
Sec.21. Tnn Snx,crn oR TrrE Housr or RnpnnsrxrmvEs oR
ANY OF ITS RESPECTIVE COMMITTEES MAY CONDUCT INQUIRIES IN AID
OF LEGISLATION IN ACCORDANCE WITH ITS DULY PUBLISHED RULES OF
pRocEDURE. Tun nrcnrs oF pERSoNS AppEARTNG IN oR AFFECTED By
SUCH INQUIRIES SHALL BE RESPECTED.
2557
SCRA at 3.
zsuThe principal sponsor ol'lhis rulc was (\rrttrnissioncr rlc ( irslro who rclrrlcrl his own srul
tuleof cxpcrienceswithtlnprc nrlrtiul llw(irnnrissrtxronAl)lx)intnrcnts. ll Rli('()Rl) l4l 144.
ART. VI THE LEGISLATIVE DEPARTMENT
- 761
1. Legislativeinvestigations.
The foundation of the power of legislative investigation and the
means for enforcing it were stated by Justice Ozaeta thus in Arnault v.
Nalareno:2s1
Although there is no provision in the [1935] Constitution
expressly investing either House of Congress with power to make
investigations and exact testimony to the end that it may exercise
its legislative functions advisedly and effectively, such power is so
far incidental to the legislative function as to be implied. In other
words, the power of inquiry with process to enforce it is an
-
essential and appropriate auxiliary to the legislative function. A
-
legislative body cannot legislate wisely or effectively in the ab-
sence of information respecting the conditions which the legisla-
tion is intended to affect or change; and where the legislative body
does not itself possess the requisite information
frequently true
- which is not in-
recourse must be had to others who do possess it.
-
Experience has shown that mere requests for such information are
often unavailing, and also that information which is volunteered is
not always accurate or complete; so some means of compulsion is
essential to obtain what is needed.258 The fact that the Constitution
expressly gives to Congress the power to punish its Members for
disorderly behavior, does not by necessary implication exclude the
power to punish for contempt any other person.25e
What was implicit under the 1935 Constitution, as influenced by
American jurisprudence, became explicit under the 1973 Constitution
and under the 1987. Likewise, for the protection of the rights of wit-
nesses, Section 2l has made explicit the limitations on the power of
legislative investigation: (1) it must be "in aid of legislation"; (2) it
must be "in accordance with its duly published rules of procedure;" and
(3) "The rights of persons appearing in or affected by such inquiries
shall be respected."
No person can be punished for contumacy as a witness unless his
testimony is required in a matter into which the legislature or any of its
committecs has jurisdiction to inquire..0 The requirement that the inves-
''/lJ7 I'hil. .)(),,15 ( lt)50)
"3Mt ( ilrrirr v I )lrllltr'lty. .' / | I I.S., | 11. 7 I 1.. crl., 5tl0; 5O 4.1,.R., l.
"''Anrlctsorr v l)rrrrr. (r Wlrt.irlorr. .)(),1. \ | crl . .r,l.r
''rrl{/ I'hl rrl .l\
 THE 1987 CONSTITI.]"TION Sec.2l
OF THE REPUBLIC OF THE PHILIPPINES
tigation be "in aid of legislation" is an essential element for establish-
ing the jurisdiction of the legislative body. It is, however, a requirement
which is not difficult to satisfy because, unlike in the United States,
where legislative power is shared by the United States Congress and the
state legislatures, the totality of legislative power is possessed by the
Congress and its legislative field is well-nigh unlimited. "It would be
difficult to define any limits by which the subject matter of its inquiry
can be bounded."26' Moreover, it is not necessary that every question
propounded to a witness must be material to a proposed legislation-
"In other words, the materiality of the question must be determined by
its direct relation to the subject of the inquiry and not by its indirect
relation to any proposed or possible legislation. The reason is that the
necessity or lack of necessity for legislative action and the form and
character of the action itself are determined by the sum total of the
information to be gathered as a result of the investigation, and not by a
fraction of such information elicited from a single question."2u2
On the basis of this interpretation of what "in aid of legislation"
means, it can readily be seen that the phrase contributes practically
nothing towards protecting witnesses. Practically any investigation
can be in aid of the broad legislative power of Congress. The limita-
tion, therefore, cannot effectively prevent what Kilbourn v. Thomp-
son2$ characterized as "roving commissions" or what Watkins v. United
States2@ labeled as exposure for the sake ofexposure.
In spite of the broad scope of investigation "in aid of legislation,"
however, the Court found in Bengzon, Jr. v. Senate Blue Ribbon Com-
mittee26s that the committee had gone beyond what was allowable. The
case started with a speech by Senator Enrile suggesting the need to
determine the existence of violation of law in the alleged transfer of
some properties of "Kokoy" Romualdez to the Lopa Group of Compa-
nies. On this basis, the Senate Blue Ribbon Committee decided, pur-
portedly in aid of legislation, to investigate the transaction' Meanwhile,
too, the petitioners in this case had been charged criminally before the
Sandiganbayan in connection with the same transaction. When the Blue
z6t
Id. at 46.
2621d. at 48.
,63103 U.S. 168 (1881).
,s354 U.S. I 7ti, 2m ( 1957)
nn203 S('RA 767 ( l()() I ).
Sec.2l ART.VI _ THELEGISLATIVEDEPARTMENT 763
Ribbon Committee summoned the petitioners to appear, they asked the
court for a restraining order on the ground among others that the inves-
tigation was not in aid of legislation and that their appearance before
the investigating body could prejudice their case before the Sandigan-
bayan, thus violating due process, because it could result in the weaken-
ing of their case.
The Court ruled that the investigation was not in aid of legisla-
tion because "the speech of Senator Enrile contained no suggestion of
contemplated legislation" but merely pointed to the need to determine
whether "the relatives of President Aquino, particularly Mr. Ricardo
Lopa, had violated the 1aw."266
In effect, therefore, on the basis of the speech of one member of
the Senate, the Court second guessed the intention of the Blue Rib-
bon Committee.267 Having made this conclusion, the Court no longer
looked into the due process allegation of Bengzon. If it had done so,
it could have found a valid foundation for stopping the investigation
in the provision that the "rights of persons appearing in or affected by
such inquiries shall be respected." The general rule of fairness, which is
what due process is about, could havejustified exclusion ofrespondents
from appearance before the Committee. Which would not mean that the
Committee should not go ahead with the investigation making use of
other witnesses, if any there were. In other words, one must distinguish
between the jurisdiction of the Committee, which it had, and the limits
on that jurisdiction, which are prescribed by the Constitution.
ln Standard Charter v. Senate,268 when bank
officers who had been
summoned used the Bengzon argument as their defense, the Court said
that the factual milieu in Bengzon did not obtain in the case. Resolution
No. 166 calling for the hearing was explicit about the subject and nature
of the inquiry to be conducted by the respondent Committee. The Court
found that the hearing was clearly in aid of legislation.
It should also be noted that the Constitution explicitly recognizes
the power of investigation not just of Congress but also of ',any of its
committees." This is significant because it constitutes a direct conferral
of investigatory power upon the committees and it means that the means
16lr/. ut Tlll .
'^'.\'r'r, tlisscttls ol .luslrcr.s ( iltli('rrc/ rrrrl ('ruz
r6i( i.R.
No. I (r7 l'/ l, I )cr.etrrlrr',) /,,t(X) /
"164 THE 1987 CONSTITUTION Sec.2l
OF THE REPUBLIC OF THE PHILIPPINES
which the Houses can take in order to effectively perform its investiga-
tive function are also available to the committees. This is unlike the
situation under the 1935 Constitution where the investigatory powers
of committees were conferred by the legislature. Hence, for the purpose
of protecting witnesses against the improper use of the compulsory pro-
cess by committees, Watkins v. United States26e could require "that the
instructions to an investigating committee spell out that group's juris-
diction and purpose with sufficient particularity." This requirement of
particularity of purpose was intended to enable the witness to determine
ihe pertinence of the committee's questions. Now, however, that inves-
tigatory power has been directly conferred on committees, the com-
mittees themselves as far as subject matter jurisdiction is concemed,
are limited only by the broad requirement that their investigations be
..in aid of legislation" on subjects pertaining to the particular commit-
tees. Provided that the committees act within the broad legislative area
assigned to them by Congress, they would not exceed their investiga-
tory jurisdiction. The problem of affording witnesses the opportunity to
determine for themselves the pertinence of the questions can be solved
by clariflcatory statements by the committee itself."o And, it should be
recalled, the measure of pertinence is not the question's relation to a
specific legislation but merely to the general subject of the enquiry''?'
The significance of the second limitation on the investigatory
power that the inquiry be "in accordance with its duly published
-procedure" be appreciated by considering it
rules of - can, perhaps,
side by side with the control Congress has over its rules when they
affect merely matters internal to it. As already seen in Osmefia, Jr. v.
Pendatunjl, where Congress suspended the operation of a House rule
which could have protected Congressman Osmeffa, the Supreme Court
accepted the view that parliamentary rules "may be waived or disre-
garded by the legislative body.'tn This view can be accepted as appli-
cable when private rights are not affected. When, however, the private
rights of witnesses in an investigation are involved, Section 21 now
prescribes that Congress and its committees must follow the "duly pub-
26e354 U.S. at 201.
tl.li
?7oThis, in fact was the procedure accepted in Barenhlan v. Itnited.St(,l('r,36{)
(1959), a decision which came afler Watkins.
,7r97 Phil. at 48.
,?2109 Phil. 863 ( t96{)).
r/'I09 I'hil. nt ll7L
Sec.2l ART.VI - THELEGISLATIVEDEPARTMENT 765
lished rules of procedure." Moreover, Section 21 may also be read as
requiring that Congress must have "duly published rules of procedure',
for legislative investigations. Violation of these rules would be an of-
fense against due process.
The need for publication became a focus in the case of Neri v.
Senatez74 case where it was shown that the Senate currently conduct-
ing the investigation had not published its rules. The Court emphasized
that publication gives the notice that is required for due process since
investigations can affect the rights of non-members of Congress. More-
over, the Court through the concurring and dissenting opinion ofJustice
Antonio Carpio added:
The present Senate under the 1987 Constitution is no lon-
ger a continuing legislative body. The present Senate has twenty-
four members, twelve of whom are elected every three years for a
term of six years each. Thus, the term of twelve Senators expires
every three years, leaving less than a majority of Senators to
continue into the next Congress. The 1987 Constitution, like the
1935 Constitution, requires a majority of Senators to "constitute a
quorum to do business."Applying the same reasoning inArnaultv.
Nazareno, the Senate under the 1987 Constitution is not a continu-
ing body because less than majority of the Senators continue into
the next Congress. The consequence is that the Rules ofprocedure
must be republished by the Senate after every expiry of the term
of twelve Senators.
In a later Resolution on the same case the Court would elaborate
thus:
On the nature of the Senate as a "continuing body," this Court
seesfit to issue a clarification. Certainly, there is no debate that the
Senate as an institution is "continuing," as it is not dissolved as
an entity with each national election or change in the composition
of its members. However, in the conduct of its day-to-day business
the Senate of each Congress acts separately and independently of
the Senate of the Congress before it. The Rules of the Senate itself
confirms this when it states:
In clTcct, in thc abscnce of published rules, investigation cannot
lO()
procccd.
766 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The later case of Garcillano v. Senate,2Ts would reject the conten-
tion that previously published Senate Rules had never been changed.
The Court said:
The absence of any amendment to the rules cannot justify
the Senate's defiance of the clear and unambiguous language of
Section 21, Article VI of the Constitution. The organic law in-
structs, without more, that the Senate or its committees may con-
duct inquiries in aid of legislation only in accordance with duly
published rules of procedure, and does not make any distinction
whether or not these rules have undergone amendments or revi-
sion.Tlte constitutional mandate to publish the said rules prevails
over any custom, practice or tradition followed by the Senate.
Likewise the Court rejected the contention that the rules could
already be found published in the internet:
The invocation by the respondents of the provisions of R.A.
No. 8792, otherwise known as the Electronic Commerce Act of
2000, to support their claim of valid publication through the inter-
net is all the more incorrect. R.A. No. 8792 considers an electronic
data message or an electronic document as the functional equiva-
lent of a written document only for evidentiary purposes .In other
words, the law merely recognizes the admissibility in evidence
(for their being the original) of electronic data messages and/or
electronic documents. It does not make the internet a medium for
publishing laws, rules and regulations.
Finally, however, the Court was willing to concede that if the pre-
viously published rules had stated that their adoption shall remain in
force until they are amended or repealed, the rules would then subsist
beyond the Senate that adopted it.
The third limitation on legislative investigatory power is that "the
rights of persons appearing in or affected by such inquiries shall be
respected." This is just another way of saying that legislative investi-
gations must be "subject to the limitations placed by the Constitution
on governmental action.'2?6 And since all governmental action must be
exercised subject to constitutional limitations, principally found in the
275(i.R. No. I 70331i, l)cc:crnbcr 2tl, 2(X)ll.
rT"llurcrtblull v. llnilcrl Slrtlcs, l({) ll.S. r( ll
I lrlrrl.irt (rl.
Sec.21 ART.VI - THELEGISLATIVEDEPARTMENT 767
Bill of Rights, this third limitation really creates no new constitutional
right. But it emphasizes such fundamentals as the right against self-
incrimination and unreasonable searches and seizures and the right to
demand, under due process, that Congress observe its own rules.
In addition to the above express limitations on the power of Con-
gress is the implicit limitation that the power of congress to commit a
witness for contempt terminates when the legislative body ceases to ex-
ist upon its final adjournment. "This must be so, inasmuch as the basis
of the power to impose such a penalty is the right which the Legislature
has to self-preservation, and which right is enforceable during the exis-
tence of the legislativ€ body.":zz Thus, unlike the Senate which contin-
ues as an institution even after an election, the term of whose members
expire at different times and is therefore a continuing body,2?8 the life
of the House of Representatives terminates upon its final adjournment.
with the termination of its life, the power to punish for the purpose of
preserving that life must also end. However, there is legally nothing
to prevent the subsequent House of Representatives from continuing
the investigation and reincarcerating a witness who persists in being
contumacious.
Finally, it must be remembered that the exercise of this awesome
power of congress may be looked into by the Supreme court under its
expanded jurisdiction given by Article VIII, Section 1.
How Section 21 operates in relation to Section 22 is explained
under Section 22.
Snc.22. Tnn nnats oF DEpARTMENTs MAy upoN THEIR owN
INITTATIvE, wITH THE coNsENT oF THE pnrslueNt, oR upoN TI{E
REeuEsr oF EITHER Housr, AS THE RULES oF B,lcn House snu,r,
pRovIDE, AppEAR BEFORE AND BE ITEARD By sucn Housr
oN ANy
MATTER IERTAIMNG To rHErR DErARTMENTs. Wnrrrsx eItESTIoNS
sHALL BE suBMrrrED To rrrE Pnrsnpvr oF TrrE Srxmn oR THE
Spn,lxrn oF TrrE Housn or RnpnrsnNTATrvES AT LEAsr rHREE DAys
BEFoRE THEIR SCHEDULED APPEARaxcn. INTBnPELLATIoNS sHALL
NOT BE LIMITED TO WRITTEN QUASTIONS, BUT MAY COVER MATTERS
rTTAvunccilir,('../.,trrrrt'rrrTirrf inl.olrzv.rh. lrsRcycs,55 I'hil. l70, llJ6(1930)..!raViv0
i
v. ( iitnzort, 57 S( 'R A 25 5 Mly tl ()
( . l /,1 )
r/rAtlitlcXVlll.SeL'liort.r:Alrtrrrrlt v Nryltr.rrs.t{.,f
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
RELATED THERETO.WHEN THE SECURITY OF TIIE STATE OR,THE PUBLIC
INTEREST SO REQUIRES AND THE PNTSTPNNT SO STATES IN WRITING'
THE APPEARANCE SIIALL BE CONDUCTED IN EXECTITIVE SESSION'
1. Congress and Heads of Departments.
Section 21 deals with the llhelgllIguqr of legislative investi-
gation in aid of legislation for rvhich 99ngr9ss or its committeqsjlre
authglizef-_lggqon *y!tneq-s-9s. Because of separation of powers,
trowever, anO th- peculiar position which heads of departments hold
in relation to the President, the relationship of Congress to the official
family of the President is also delicate. Section 22 deals with this deli-
cate relationship.
The rule governing the subject has evolved over the years and it
remains not without points of unclarity. Before the 1935 Constitution,
the rule was found in the Administrative Code which said: "The Secre-
taries may be called, and shall be entitled to be heard, by either of the
two Houses of the Legislature, for the purpose of reporting on matters
pertaining to their Departments, unless the public interest shall require
otherwise and the Governor-General shall so state in writing." The ob-
vious purpose was to enable the department heads to be heard by the
legislature and thereby achieve cooperation between the executive and
legislative departments. The practice was for various legislative com-
-itt"", to request department secretaries either to appear before legisla-
tive committees or to furnish written information."e
In the drafting of the 1935 Constitution, the convention debated
whether the statutory provision should be elevated to the level of a con-
stitutional provision. Those who opposed incorporation of the rule in
the Constitution saw the administrative code provision as a feature of a
parliamentary system and therefore contrary to the system of separation
of powers. Moreover, the "initiative" given to Secretaries was seen as
opening the door to cabinet lobbying for pet items. But the provision
was adopted nonetheless in order to obviate any constitutional chal-
lenge to a department head communing with Congress and in order to
keep dealings between department heads and Congress in the open. on
the whole it was thought that information given by Secretaries would
)/)f ARlrli(x,. lttr !;n,tutltt;rn nt !'tnttn'llvt ('tnsnttnrw447 45O(l()l(r)
Sec.22
Ser,.22 ART.VI - THELEGISLATIVEDEPARTMENT 769
improve the quality of legislation. Thus the provision incorporated into
the 1935 Constitution read: "The heads of departments upon their own
initiative or upon the request of the National Assembly may appear be-
fore and be heard by the National Assembly on any matter pertaining to
their departments, unless the public interest shall require oiherwise and
the President shall so state in writing.'zso
The whole tenor of the provision was pennissive: the department
heads could appear but the legislature was not obliged to entertain them;
reciprocally the legislature could request their appearance but could not
oblige them especially if the president objected. Nobody adverted to
the possibility or need of enforcement through formal legislative sum-
monses or through the use of legislative contempt powers because ev-
erything would be a gentlemanly game between equals.
The rules radically changed with the adoption of the 1973 con-
stitution. The original1973 constitution adopted a parliamentary form
of government and, with it, the parliamentary devise of the ,,question
hour"2sr which was intended to serve not so much as an aid to legis-
lation but as an instrument for keeping administration in line. Since
in a parliamentary system administration is answerable to parliament,
the Prime Minister, the real executive, and cabinet Members could be
""required to appear and answer questions and interpellations" to give
an account of their stewardship. when in lggl the constitution was
revised to revert to the presidential system and thereby revert executive
power to the President, the "question hour" was retained with regard to
the Prime Minister and members of the cabinet but the president was
kept free from legislative summonses.
During the deliberations of the 1986 constitutional commission,
tlgjepos -o-f -the Legislative committee called for the adoption of the
"fu"!!9!_!gg{)Ouring which "the Members of the Cabinet and their
deputies may be required to appear and answer questions and interpel-
lations by Members of the National Assembly." The sponsorship argued
that the "procedure [would provide] the opposition with a means of
discovering the government's weak points and because of the publicity
ru'lv pR(x'r.:1,:l)rN(;s ()l;-r'lili I'ilil.il'r'rNli('()Ns'nru.fr()NAl,(.ONVliN l-roN 740
7.5O (l.uurcl erl.).
"rArliclc Vlll, scctrorr l,)( I ). l(r'l I ( irnstrtution
770 THE 1987 CONSTITUTION Sec.22
OF THE REPUBLIC OF THE PHILIPPINES
it generates, it has a salutary effect on the administration."282 The pro-
posal, however, was vigorously resisted as being essential to the parlia-
mentary system and therefore contrary to the essence of separation of
powen in a presidential system.x3 After much debate and after a series
of reformulations,2s4 and much against the wishes of the sponsorship be-
cause the appearance of department heads would not be mandatory.but
directory,'8' the present provision was unanimously2s6 approve{z/'The
heads of departments may upon their own initiative, with the consent of
the President, or upon the request of either House, as the rules of each
House shall provide, appeaf before and be heard by such House on any
matter pertaining to their departments. When the security of the State or
the public intefest so requires and the President so states in writing, the
uppi-un". shall be conducted in executive session." Should the depart-
ment head appear, however, whether on his own initiative or upon the
request of the House, the appearance will be done "as the rules of each
House will prescribe." The provision thus rejects the original proposal
patterned after the 1973 version and reflects instead its 1935 counter-
part. The tenor is once more permissive. The President may or may not
consent to the appearance of department heads; and even ifhe does, he
may require that the appearance be in executive session. Reciprocally,
Congress may refuse the initiative taken by the department secretary.
Even after all this discussion, and after the approval of the radi-
cally amended provision, commissioner Davide still insisted that heads
of departments could be compelled under pain of contempt to appear,
no longer, however, in virtue of Section 22but in virtue of the power
of legislative investigation in Section 21."' Such a position, however,
fails to take into consideration the fact that Section 22 was first incor-
porated into the 1935 Constitution in recognition of the tradition that
the inherent power of legislative investigation could run afoul with as-
sertion of executive privilege. American legislative tradition, whence
Philippine tradition originated, has generally regarded congressional
contempt power as an inappropriate device for regulating executive
xrII RECoRD 46, 92,
1O7, 132.
2E3ld. at 133.
2uId. at 133-134. 1 47-
1 5l .
2851d. 147 _148.
^t l5l.
286/d.at
287/r/.:rt l()() 2(X).
Sec.23 ART.VI - THELEGISLATIVEDEPARTMENT 771
claims of privilege.2s8 Hence, although the task of legislation demands
adequate information and although the Bill of Rights guarantees the
right of the people to information on matters of public concern,28e the
dynamics of legislative-executive relations would dictate that congress
find ways'of obtaining information from department heads other than
by compulsion. on the other hand, department heads should be aware
that information vital to legislation legitimately requested by congress
should not, for the welfare of the nation, be withheld.
Senate v. Ermita2e, specified who may and who may not be sum_
moned to section 2l hearings. Under this rule, even a Department Head
who is an alter ego of the President may be summoned. Thus, too, the
chairman and members of the Presidential commission on Good Gov-
ernment (PCGG) arglelgllqlqpt from summons in spite of the exemp_
tion given to them by President cory Aquino during her executive rule.
The court ruled that.qrryene, except the president and Justices of the
Supreme Court, may'be summoned.rn, Nor may a court prevent a wit-
ness from appearing in such hearing.re2
-
Section 22, for its part, establishes the rule for the exercise of
what is called the "oversight function" of congress. such function is
intended t9 eqqb,ldoxgess tq_detcl.n_dne hey_lev/s it has pqLssed_age
being impiqlqenled.In deference to separation of powers, ho*ev"r, anO
because Department Heads are alter egos of the president, they may
not appear without the permission of the president. This was explicitly
mentioned in the deliberations of the 1935 constitutional convention
where some Delegates had doubts about the propriety or constitutional-
ity of Department Heads appearing in Congress.
It should be noted, however, that the eAemption from s_Urllmons
applies only to Departgrgrr! Heads ald not to everyone who has cabinet
rank.
Snc. 23. (1) Txn Concnrss, By A vorr oF rwo-rHrRDS oF
norn Housns rN JoINT sESsIoN AsSEMBLED, vorING SEIARATELv,
r'*.1.r,, r,.g.,
Unirad Srutcs v. Nixtn,4l8 U.S.683 (1974), where the Supreme Court lent
Its blcssirtg on lhc cxccutivc right to withhold inf<lrrnation as llowing from separition ofpowers.
r"Articlc lll, Su.tiolr 7.
]il( i.R. No, l6()777. April
lO, 2(X)(r.
r"rSlhio v. (iolrklr,(i.R. No. |74 ||lt.(\.tolrr
I7,2(XXr.
r''rSt'ttttlt'lllttcRihlxrrr(irilnlrllccv lrrrllit'Mrrjrxluurn.(i.R.N0.
l.l(r7fi),Jrrly?(),:(X).1.
 THE 1987 CONSTITUTION Sec'23 ART.VI _ THELEGISLATIVEDEPARTMENT
772 173
OF THE REPUBLIC OF THE PHILIPPINES

SHALL HAVE THE SOLE POWER TO DECLARE THE EXISTENCE

OF A STATE holds the sword of war. The executive power, when necessary, may
OF WAR. make war even in the absence of a declaration of war.reT In the words of
the American supreme court, war being a question of actualities, ,.the
(2) IN rrMss oF wAR oR orHER NATIoNAL EMERGENCYT
President was bound to meet it in the shape it presented itself, without
THE CONGRESS MAY' BY LAW' AUTHORIZE THE PRFJIDENT'
FOR

A LIMITED PERIOD AND SUBJECT TO SUCH RESTRICTIONS AS IT

MAY waiting for congress to baptize it with a name; and no name given to it
PRESCRIBE' TO EXERCISE POWERS NECESSARY AND
PROPER TO CARRY by him or them could changs fls f4g1.'2rr
NATIONAL POLICY. UNT,BSS SOONER WITIIDRAWN BY
OUT A DECLARED
RESOLUTION OF THE coNcnrss, sucH POWERS SITALL CEASE UPON TIrE 2. Delegation of emergency powers.
NEXT ADJOTJRNMENT THEREOF.
Section 26, Article VI, of the 1935 Constitution said:

1. Declaration of the existence of a state of war' In times of war or other national emergency, the Congress
..armed hostilities between two states.,,2g3 The may by law authorize the president, for a limited period and sub-
War is defined aS ject to such restrictions as it may prescribe, to promulgate rules
'othe sole
1935 Constitution, in Article vI, Section 25, gave to congress and regulations to carq/ out a declared national policy.
present provision, following that of Article
Power to declare war;'' the joint
VIII, Section l4(2) of the t973 Constitution, gives to congress, in The pre-conditions for the grant of emergency powers found in
session assembled and voting separately, "the sole
power to declare the the 1935 constitution have been preserved in the present provision:
existence of a state of war." The difference between the
two phraseolo- "war or other national emergency." However, the nature of the power
gies is not substantial but merely in emphasis' which the legislature is allowed to delegate has been altered. The 1935
constitution allowed the delegation of the power ',to promulgate rules
The two phrases were interchangeable, even under the 1935
fact that the and regulations to carry out a declared national policy." In constitution-
constitution.r4 but the second phrase emphasizes more the
al law parlance, the power "to promulgate rules and regulations,, is not a
Philippines,accordingtoArticlell,section2,renouncesaggressive
power to make laws but a power merely to execute the law.2ee It is clear
war as an instrument of national policy''?n'
from the debates of the 1935 constitutional convention that it was not
Theprovisiondoesnotprohibitthewagingofadefensivewar that convention's intention to give legislative power t61hs plssidsnl.:oo
of the
even in the absence of a declaration of war or of a declaration This was affirmed by the supreme court in Araneta v. Dinglasan:3ol
Convention, Delegate
existence of a state of war. Thus, during the 1935 "The point is, under this framework of government, legislation is pre-
por
salvador Araneta asked.. " En caso de que Filipinas fuera invadida served for congress all the time, not excepting periods of crisis no mat-
que ac-
una nacion extraniera, no estando la legislatura en funciones; ter how serious."
cionpodriatomarelgobiernoentoncesparadefenderlainvasion?',
"Resistir Under the present provision, which follows the phraseology of the
Delelate Singson-Encarnacion's answer was unequivocal:
constitu- 1973 constitution which was more expansive in its grant of powers to
con todas sus fuerzas armadas."zsu In other words, while the
declare the existence of a statc the President, congress may authorize the president "to exeriise pow-
tion gives to the legislature the powef to
the actual powcr ers necessary and proper to carry out a declared national policy.,'It is
of war and to enact all measures to support the war'
a formula well suited to the looser separation of executive and legisla-
lomakewarislodgedelsewhere,thatis,intheexecutivepowerwhiclt

,e3II
r"7.Scc
l'rizc (irscs,2 R1.635 (tl.S. 1863).
RECORD 169. ()
,qx PRoCEEDINGS OFTHE 1935 CONSTITIITI()NAl, (\ )NVIIN'l'l( )N 46tt (l ',ntrrt't t"8
kl . trt 669 .

Ed.).
""'Str sultnt,on Non-tlelegrrhility ol l,egislntivc powcr.
,rsII
{x'X I'R(X'lilil)lN(iS rrt ()il (r.
REcoRD l6{i.
PROC'F,EI)lN(iS nl 942"1'
'r'rll.1 l'lril l(rt), ll{l ( lttltr)
'slv

714 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
tive powers in the 1973 system.302 Note that the nature of the delegated
po*", is not specified. It thus lends support to the conclusion that this
authorizes delegation of real legislative power. In fact, when the 1973
text was being formulated, the explanation was made on the floor of the
1971 Convention that emergency powers would include the power to
rule by "executive fiat."303 This meaning too can be read as carried into
the 1t87 text; but, since even a martial law situation does not allow the
President to supplant the legislature, the authority which can be given
by the legislature must necessarily be a very limited one and certainly
not amounting to the legislature's abdication of its power'3*
There are, moreover, two limits on the emergency powers. First,
it can be given only "for a limited period." If Congress does not set
a limit, the provision adds: "Unless sooner withdrawn by resolution
of the congress, such powers shall cease upon the next adjournment
thereof." It should thus be noted that the powers may be withdrawn by
,.resolution"; it is not necessary that the withdrawal be done through a
statute. The distinction is important because a resolution does not need
the approval of the President whereas a statute, to be effective, needs
the Piesident's approval. It should also be noted that the automatic ces-
sation of the President's emergency powers takes place upon the next
adjournment. In other words, ironically, when the congress is not in
session and therefore unable to act on emefgency situations, the Presi-
dent himself is stripped of his emergency powers'
Secondly, the emergency powers are subject to such restrictions
as the Congress may provide. Thus, the emergency powers can be as
nzurow or as broad as the Congress may make them'
Src. 24. Ar,r, .c.ppnopRrATloNr REVENUE oR TARTFF BILLSI
BILLS AUTHORIZING INCREASE OF TIIE PUBLIC DEBT' BILLS OF LOCAL
APPLICATI0N'AN'DPRIVATEBILLSSHALLORIGINATEEXCLUSIVELYIN
rnn Housn or RBpnnsnNTATIYEST BUT THE SnNlrn MAY PRoFosE oR
CONCUR WITH AMENDMENTS.
,{)2[n fzrcl, thc pfllvision was rcilrlcrctl uscless hy Amctldnlcnt 6 which under thc 197]
(itn
stilrrtitnr guvc to lhc l\.csitlcnl irll thc cnrcrgcttcy powcrs hc ncctlctl ttntl morc
Itrtl)clt'gitlc l. Vckrso' St'ssiotl ol .lrrly 21. l()72'
*tr| I l{ I i( '( )ll I ) ltl,l.
Sec.24 ART.VI
-THELEGISLATIVEDEPARTMENT 775
1. Origin of money bills, private bills and bills of local ap-
plication.
- An a-pplgplrgJioq bill is.one whose purpose is lq_qeleside a sum
of money for public use_. only appropriation bills in the strict sense of
the word are comprehended by the provision; bills for other purposes
which incidentally set aside money for that purpose are not included.
. . Similarly
revenue or tariff biUs are those which are gtriqq[f,or the
raqing of revenues; bills for other purposes which incidentally create
revenue are not comprehended.
Bills of local application are those whose reach is limited to spe-
cific localities, such for instance as the creation of a town. private bills
are those which affect private persons, such for instance as a bill grant-
ing citizenship to a specific foreigner.
I rhe theory behind the rule requiring that these originate in the)
Hqglg"pl_Lepfppfrtatives is that distrigt are cL,o;pt \o_/,
Re_pre_se_ntatives
the pubg dlh-e.Jqagle ltran sgaagq-;;;o
are thErefore in u u"tt", po-'{
sition to determine both the extent of the legal burden they are capable
of bearing and the benefits that they need. J
The meaning of origination from the House and the scope of the
Senate's power to introduce amendments were thoroughly discussed in
Tolentino v. secretary of Finance3o5 involving R.A. No. 7716, the value
Added rax (vAT) law. After the House version of the bill was senr to
the Senate, the senate introduced a gqlq_t1tutg bill which apparently it
had prepared in anticipation of the ni,use uil. Later the preiident certi-
fied to the urgency of passing the Senate version of the bill. After the
two versions had gone through a conference committee, the House ap-
proved the conference Committee report which for all practical purpos-
es was the Se-nate bii!. Was there a violarion of the rule on origjlllon?
The constitutional rule is that revenue bills must('orieinate
cxclusivbl!" from the House of Representatives. The court said that the
cxclusivity of the prerogative of the House of Representatives means
simply that the House alone can initiate the passage of a revenue bill,
such that, if the House does not initiate one, no revenue law will be
xtr2.t5S('RA(r.t0(lt)()4),tllirrrretl
onrct.onsirlcr:rtiorr(i.R.Nos. lll2(XrOl{,()t.lolrl.(r
 116 THE 19STCONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
passed. But once the House has approved a revenue bill and passed it
on to the Senate, the Senate can completely overhaul it, by amendment
of parts or by amendment by substitution, and come out with one
completely different from what the House approved.It does not matter
whether the Senate already anticipated a bill from the House and
formulated one to take the place of whatever the House might send. The
/Cotrtrejected the idea that the Senate is bound to retaiqlQe essence of
what the other House approved. Textually, it ry-tha ('bill" ryhich must
exclusively originate from the House; but the 0"9 itsetf which is the
product of the total bicameral legislative protsG originates lgt_lust
from the House but from both Senate and House.306
Src. 25. (1) TttB Coxcnnss MAY Nor INCREASE rHE
AppRopRrATroNS RECOMMENDED BY rrrs PnnsrnBNT FoR THE
OPERATION OF THE GOVNNNITPXT AS SPECIFIED IN THE BUDGET. TTTN
FORM, CONTENT' AND MANNER OF PREPARATION OF THE BUDGET SHALL
BE PRESCRIBED BY LAW.
(2) No pnolrsroN oR ENACTMENT sHALL
THEGENERALAPPROPRIATIONSBILLUNLESSITRELATESSPECIFICALLY
TO SOME PARTICULAR APPROPRIATION TTTNNNTN.ANY SUCH PROVISION
OR ENACTMENT SHALL BE LIMITED IN ITS OPERATION TO THE
APPROPRIATION TO WHICH IT RELATES.
(3) Tnr pnocnouRn IN APPRovING APPRoPRIATToNS
CONCNBSS SHALL STRICTLY FOLLOW THE PROCEDURE FOR APPROVING
APPROPRIATIONS FOR OTIIER DEPARTMENTS AN'D AGENCIES.
(4) A spncrnr- APPRoPRTATIoNS BILL sHALL SPEcIFY THE
PURPOSE FOR WHICH IT IS INTENDED' AND SHALL BE SUPPORTED
RY FUNDS ACTUALLY AVAILABLE AS CERTIFIED BY THE NITTONIT,
TRnasunnn, oR To BE RAISED BY A cORRESPONDING
PROPOSAL THEREIN.
(5) No t-.lw
sHALL BD PASSED AUTHoRIzING ANY TRANSI"I'IR
or,' AppRopRIATIoNS; HowEvER' THE PneslDnxt, rnn Pnnslol;Nt oH
'rHr: Snnltn, rnn SprlxBn oF THE Housu on RnprnsnxrATlvi)s'
lur: Cnu:n Jusrlcn oF THE Supnnuo Count, AND I'Hl, HllADs ol''
Constrruu<lNAr, Coul'ltssloNS MAYr llY LAwr llll
'l'()AtJ(;Ml.)Nl'rrNVl'rnn'llNTHl'l(;t'lNl'IRALAPPR()PRIA'It()NSl'Awl"l)R
,|.lll.)lR Rl'sPl.](..|'lvl.] ()Hl.'l(,|.)s l.R()M sAvlN(;s lN ()'rlll)R l'|'!.]Ms ()1,''l'tlI.:lR
lu,lsPt,)("l'lvl: APPR(tl',Rlal l(lNs.
"x'/r/. itl
(r(rl (r(r,r
Sec'25 Sec.25 ART.VI - THELEGISLATIVEDEPARTMENT 777
(6)
DrscnnrrounRy FUNDs ArrRoPRIATED FoR PARTIcULAR
OFFICIALS SIIALL BE DISBURSED ONLY FOR PUBLIC PURPOSES TO
BE SUPFORTED BY APPROPRIATE VOUCHERS AND SUBJECT TO SUCH
GT]IDELINES AS MAY BE PRESCRIBED BY LAW.
(7) Ir, nv run END oF ANY FIScAL YEART rHf, CoNcnnss
SHALL HAVE FAILED TO PASS THE GENDRAL APPROPRIATIONS BILL
FOR THE ENSUING FISCAL YEAR, THE GENERAL APPROPRIATIONS LAW
FOR THE PRECEDING FISCAL YEAR. SHALL BE DEEMED RE-ENACTED
AND SIIALL REMAIN IN FORCE AND EFFECT T]NTIL THE GENERAL
APPROPRIATIONS BILL IS PASSED BY TIIE CONGRESS.
1. Limits on power to appropriate.
The provision that "No money shall be paid out of the Treasury
except in pursuance of an appropriation made by 131ry":o: is a limit not on
the power of Congress but on the disbursing authority of the executive
department.3'8 This does not mean, however, that Congress is complete-
ly free to appropriate money in any manner and for whatever purpose it
BE EMBRACED IN
may choose. Article VI, Sections 24,25 and29, and Article VII, Section
22 contain a list of explicit restrictions on the power of Congress.
First, as already seen, "All appropriation, revenue or tariff bills,
bills authorizing increase of the public debt, bills of local application,
FoR THE and private bills shall originate exclusively in the House of Representa-
tives, but the Senate may propose or concur with amendments."3'e
Secondly, "The Congress may not increase the appropriations rec-
ommended by the President for the operation of the Government as
specified in the budget."3'o
REvENUn Thirdly, the Congress may not clutter the general appropriation
law with provisions not specifically related to some parlicular item of
appropriation, and every such provision shall be limited in its operation
to the appropriation item to which it relates.3"
AtJ'LlloRlzl'll)
rorArticle Vl, Section 29( l).
roE(.'incinnati Soap Co. v. United States,30l U.S.308 (1937). The restriction also applies
Io lrrul cxccutivcs in rclalion to l<rcal govcrnmcnt tunds. City ol Manila v. Posadas.48 Phil. 309
( r e25).
x!'Section 24.
'r"Stx lion 25( I ).
'rrSct'liott.)1(,))
 THE 1987 CONSTITUTION Sec.25
OFTHE REPUBLIC OFTHE PHILIPPINES
Fourth, Congress may not adopt a procedure for approving ap-
propriations for itself different from the procedure for other appropria-
tionS.3r2
Fifth, special appropriation bills must specify the purpose for
which they are intended and must be supported by funds certified as
available by the National Treasurer. If the funds are not actually avail-
able, the special appropriation bill must provide a corresponding rev-
enue proposal.'''
Sixth, Congress has limited discretion to authorize transfer of
f11nds.:tr
Seventh, "Discretionary funds appropriated for particular officials
shall be disbursed only for public purposes to be supported by appro-
priate vouchers and subject to such guidelines as may be prescribed by
law." This is a new provision intended to prevent abuse in the use of
discretionary funds.
Eighth, Congress cannot cripple the operation of govemment by
its failure or refusal to pass a general appropriations bill. Section 25(7)
provides for automatic re-enactment of the general appropriations law
of the preceding fiscal year. Such "reappropriation" remains in force
until the new general appropriations law is approved.
Ninth, Section 29(2) prohrbits the expenditure of public money
or property for religious purposes. The scope of this prohibition is dis-
cussed under the religion clause of the Bill of Rights.
Finally, the general appropriation law must be based on the budget
prepared by the President.3's This is discussed under Article VII.
Aside from the explicit limitations found in Sections 24,25 and
29,there is also the all important implicit limitation that public money
can be appropriated only for a public purpose. This limitation arises
from the relation between the power to spend and the power to tax.
"The right of the legislature to appropriate public funds is correlative
with its right to tax, and, under constitutional provisions against taxa-
3r?Section 25(3).
r'lSection 2-5(4).
lraSection 25(5).
'rlArticlc Vll, Scctiorr 22
Sec.25 AM.VI * THELEGISLATIVEDEPARTMENT 779
tion except for public purposes ... no appropriation of state funds can
be made for other than a public purpose."3r6
2. Prohibition of increase.
Article VI, Section 25(1) says: "The Congress may not increase
the appropriations recommended by the President for the operation of
the Government as specified in the budget." This text is different from
Article VI, Section 19(1) of the 1935 Constitution which said in part:
"The Congress may not increase the appropriations recommended by
the President for the operation of the Government as specified in the
Budget, except the appropriations for the Congress and the Judicial
Department " What is the significance of this difference? Does the
1987 text prohibit Congress from increasing the budget for Congress
and the Judicial Department?
This prohibition was not contained in the original draft of Article
VI of the new Constitution. Commissioner Natividad noted this and
said: "Is there no prohibition to increase the presidential budget? The
historic practice is that the presidential budget may be decreased but not
increased." He explained that this historic prohibition was intended to
prevent big budget deficits. For this reason, Commissioner Natividad
hinted that he would propose an amendment to incorporate the prohibi-
tion explicitly.3"
Eventually Natividad proposed the amendment which became the
present provision. In announcing the Committee's acceptance of the
Natividad amendment, Commissioner Davide simply said: "I do not
think this would require any explanation because this is in the 1935
Constitution."3rs In acceding to the amendment, therefore, Davide's in-
tention was to revert to the 1935 rule. In fact, too, Natividad's express
concern was only about the "presidential budget" and not about the
budget for Congress or for the judiciary.
3. Prohibition of "riders" in appropriation bills.
Provisions unrelated to the appropriation bill are considered pro-
hibited "riders." Thus, a provision on the reversion of reserved officers
'rdlll ('..1.S. p. 1147.
rilll Rl('()Rl) l07 tl
"rld. l(vl
 780 TI{E 1987 CONSTITUTION Sec.25
OF THE REPUBLIC OF THE PHILIPPINES
into active duty which was inserted in the Appropriation Act of 195d-
1957 was found to be unrelated to any provision in the appropriation
act and therefore unconstitutional.3'|e Even if this specific prohibition did
not exist, however, riders in appropriation bills would still be prohibited
under the general prohibition of riders in Section 26(l) to be discussed
below.
The rule on riders combined with the President's power of ,.item-
veto" and the with the doctrine on "inappropriate provisions" has given
to the President tremendous control over money legislation. This will
be treated below under Section 27.
4. Tbansferoffunds.
The rule on the transfer of funds says: "No law shall be passed
authorizing any transfer of appropriations; however, the President, the
President of the Senate, the Speaker of the House of Representatives,
the chief Justice of the supreme court, and the heads of constitutional
Commissions may, by law, be authorized to augment any item in the
general appropriations law for their respective offices from savings in
other items of their respective appropriations."
The list of those who may be authorized to transfer funds under
this provision is exclusive. Hence, the Chief of Staffof theArmed Forc-
es may not be given such authority.32o Likewise, individual members of
Congress may not be given such authority and must seek approval from
the speaker or the senate President ifthese latter have been authorized
by law.32r
An almost identical provision was contained in Article VIII, Sec-
tion 16(5) of the 1973 Constitution322 under which Demetria v. Alba323
was litigated. At issue in'Demetria was the first paragraph of Section 44
of Presidential Decree No. 1177 which said:
The President shall have the authority to transfer any fund,
appropriated for the different departments, bureaus, offices and
3reGarcia v.
Mata, 65 SCRA 517,521 (1975).
32oPhilippine Constitutional
Association v. Enriquez, 235 SCRA 506, 5 44 (lgg4).
32t
Id. at 528.
322The 19'73 provision differed from the 198? text only in thot in thc tbrmcr thc officcrs
who could be authorized to milke transfers werc the President, thc Prime Minister, thc Spcaker, thc
('hief Justice and the hcads of Constitutionul Commissions.
'?'(i.R. No. 71977, Februlry 21 ,l9tl7 .
Sec.25 ART.VI
- THELEGISLATIVEDEPARTMENT 781
agencies of the Executive Department, which are included in the
General Appropriations Act, to any program, project or activity of
any department, bureau, or office included in the General Appro-
priations Act or approved after its enactment.
Commenting on the constitutional text, the Court said that the
provision is intended "to afford the heads of the different branches of
the government and those of the constitutional commissions consider-
able flexibility in the use of public funds and resources" but that the
leeway granted was limited. "The purpose of augmenting an item and
such transfer may be made only if there are savings from another item
in the appropriation of the government branch or constitutional body."
Pointing out that P.D. No. 1177 empowered the President "to indiscrim-
inately transfer funds ... without regard as to whether or not the funds
to be transferred are actually savings in the item from which the same
are to be taken," the Court declared the law unconstitutional.
The defect of Section 44 of P.D. No. 1177 was later corrected by
R.A. No. 6670. The effectivity of this statute has survived through the
application of the doctrine on "inappropriate provisions" in Gonzales v-
Macaraig,,Ir. discussed below under Section 27.
5. Appropriations must be for a public purpose.
The power to appropriate is as broad as the power to tax. Public
funds "can never accomplish the objects for which they were collected,
unless the power to appropriate is as broad as the power to tax.'b'n If the
purpose of the appropriation is one for which a tax may be collected, the
appropriation is legitimate. Put differently, "The test of the constitution-
ality of a statute requiring the use of public funds is whether the statute
is designed to promote the public interest, as opposed to the furtherance
of the advantage of individuals, although such advantage to individuals
might incidentally serve the public."325
A case in point is Pascual v. Secretary of Public Works :26 The case
is interesting because it may have overtaxed the requirement of public
purpose. At issue was the appropriation of 85000 pesos for a projected
f'ceder road which ran through a private subdivision and over property
'raUnitcd Stutcs v. llutlcr,297 t.l.S. ut 65
r1'll I ('.J.S. p. I 147,
,,nt to I'hil. I ll ( l9(o),
 782 THE 1987 CONSTITI.ITION
OF THE REPUBLIC OF THE PHILIPPINES
owned by respondent operator Zrilueta. The Court invalidated the ap-
propriation saying that inasmuch "as the land on which the projected
feeder roads were to be constructed belonged to respondent Zulueta,
the result is that said appropriation sought a private purpose.";zz The
fact that some five months after the approval of appropriation the prop-
erty was donated to the government was found quite irrelevant to the
validity of the appropriation. "The validity of a statute depends upon
the powers of Congress at the time of its passage or approval, not upon
events occurring, or acts performed, subsequently thereto."328
One could very well question whether the private character of the
property conclusively established the private purpose of the appropria-
tion. A road, after all, even if it runs through a private subdivision, can
serve a very legitimate public purpose, especially if the subdivision
is populous. In the circumstances of the case, the more valid question
which should have been asked was not whether the projected feeder
roads would run on private property but whether the private property
was a proper object for expropriation for the construction of a feeder
road. If expropriation could have been done, the appropriation, even
without expropriation, would also have been for a public purpose albeit
with incidental pivate benefit.
Jurisprudence on social justice also has a bearing on this provi-
sion. Appropriations for the implementation of social justice programs,
even if directly they benefit mainly private individuals, must be consid-
ered to be for a public purpose.32e
Src. 26. (1) Evnnv BrLL pAssED By rHE CoNcnrss sn.q,LI,
EMBRACE ONLY ONE SUBJECT WHICH SHALL BE EXPRESSED IN THE
TITLE THEREOF.
(2)
No nl,r, pAssED By ETTHER Housn SHALL BEcoME A
LAW UNLESS IT HAS PASSED THR-EE READINGS ON SEPARATE DAYS, AND
PRINTED COPIES THEREOF IN ITS FINAL FORM HAVE BEEN DISTRIBUTED
ro rrs MnlrnERS THREE DAys BEFoRE rrs rASSAGE, ExcEpr wHEN
rnr, PnrsroBNT cERTrFrEs ro rHE NEcESsrry oF rrs TMMEDIATE
ENACTMENT To MEET A puBt-rc cALAMITy oR EMERGENcy. Upon
327
Id . at 334 .
32EId. at 341 .
r2eSlee
the discussion ol public pttrposc in crrrincnt tkrnririrr crrscs rrrrtlcr tlrc llill ol
:rrul undcr Articlc XlV, Scction Ll.
Sec.26 Sec.26 ART. VI _ THE LEGISLATIVE DEPARTMENT 783
TIIE LAST READING OF A BILL' NO AMENDMENT THERETO SHALL BE
ALLOWED, AI\D THE VOTE THEREON SIIALL BE TAKEN IMMEDIATELY
THEREAFIER, AND TIIE YEAS AND NAYS ENTERED IN THE JOURNAL.
1. Subject and title of bitls: general prohibition of "riders."
The requirement that'lE1ery,b!ll Sball em,brace onl{ one subject
which qhall !e expresged in the title thereof'(s mandato.ry and pO! di,-,
re-qlgry and compliance with it is ess-gtttial to the validity of !eg!sla-
tion.ro An early decision explained the purpose of this limitation on
legislative power thus'33'
The object sought to be accomplished and the mischief pro-
posed to be remedied by this provision are well known. Legisla-
tive assemblies, for the dispatch of business, often pass bills by
their titles only without requiring them to be read. A specious title
sometimes covers legislation which, if its real character had been
disclosed, would not have commanded assent' To prevent surprise
and fraud on the legislature is one of the purposes this provision
was intended to accomplish. Before the adoption of this provision
the title of a statute was often no indication of its subject or con-
tents.
An evil this constitutional requirements was intended to cor-
rect was the blending in one and the same statute of such things as
were diverse in their nature, and were connected only to combine
in favor of all the advocates of each, thus often securing the pas-
sage of several measures no one of which could have succeeded
on its own merits. Mr. Cooley thus sums up in his review of the
authorities defining the objects of this provision: "It may there-
fore be assumed as settled that the purpose of this provision was:
First, to prevent hodge-podge or log-rolling legislation; second, to
prevent surprise or fraud upon the legislature by means of provi-
sions in bills of which the titles gave no information, and which
might therefore be overlooked and carelessly and unintentionally
adopted; and, third, to fairly appraise the people, through such
publication of legislative proceedings as is usually made, of the
subjects of legislation that are being considered, in order that they
may have opportunity of being heard thereon by petition or other-
wise if they shall .o desire."332
r{r('cntrul ('upiz v- Rrrrttircz,4{) l'hil. tlli.l,lt9l (1920).
-12().
ltiglrts "l/r/. ttt l'l()1, qrutli,tN Wllker v. lilllc, 4() Altr'
ttr( ixl I'y's ('t wsn n r t il w tt l.tut t n n ws,
1t. l4 l.
 THE 1987 CONSTITTJTION
OF THE REPUBLIC OF THE PHILIPPINES
Although the requirement is mandatory, it should not be so con-
strued as to cripple or impede proper legislation. Numerous decisions
have dealt with this provision and the trend ever since Sumulong v.
Commission on Elections'3l has been, as noted by Justice Fernando,33a
towards giving the constitutional requirement a liberal interpretation.
As the Supreme Court said in Sumulone, the requirement "should be
given a practical rather than a technical construction. It should be suf-
ficient compliance with such requirement if the title expresses the gen-
eral subject and all the provisions of the statute are germane to that
general subjec1."::s Or, in the language of Justice Sanchez'3r "Of course,
the Constitution does not require Congress to employ in the title of an
enactment language of such precision as to mirror, fully index or cata-
logue all the contents and the minute details therein. It suffices if the
title should serve the purpose of the constitutional demand that it in-
form the legislators, the persons interested in the subject ofthe bill and
the public, of the nature, scope and consequences of the proposed law
and its operation. And this, to lead them to inquire into the body of the
bill, study and discuss the same, take appropriate action thereon, and,
thus, prevent surprise or fraud upon legislators." Thus, the title "An
Act Amending Certain Sections of Republic Act Numbered One Thou-
sand One Hundred Ninety-Nine, otherwise known as the Agricultural
Tenancy Act of the Philippines" was sufficient to include a provision
authorizing the Secretary of Justice, acting through a tenancy media-
tion division, to carry out a national enforcement program, including
the mediation of tenancy disputes.337 Similarly, the title "An Act to Fur-
ther Amend Commonwealth Act Numbered One Hundred Twenty, as
amended by Republic Act Numbered Twenty Six Hundred and Forty-
One" was found sufficiently expressive of the provision limiting the al-
lowable margin of profit for corporations receiving at least fifty percent
of its power from the National Power Corporation.33s The Court has also
ruled that the title "An Act Creating the Videogram Regulatory Board"
was sufficiently broad to cover a regulatory tax provision included in
x373 Phil.288 (1941).
IaAlalayan v. National Power Corporation, 24 SCRA 172,
rr573 Phil. at 29 I .
Iol-idasan v. Commission on lilcclions, L 2ltott9, ()ct.25, lrXrT; lrrsulal l,rrrnbcl ("1A,
104 SCRA 710-17 (May 29, l9tl I ).
"/(inlcro v. (':rhtrtrr;rnrlo, 6 S( 'RA 4 I tt ( l9() ) )
"*Al:rl:ry:rrr v. N:rliorr:tl llrrve r ('orlxrlirtrolr, .14 S('RA I /,1 I l()('t{}
Sec. 26 Sec.26 ART.VI - THELEGISLAIIVEDEPARTMENT 785
the Similarly, the title "An Act Creating the Philippine Postal Cor-
act.33e
poration, Defining Its Powers, Functions and Responsibilities, Provid-
ing for the Regulation of the Industry and for Other Purposes Connect-
ed Therewith" was found to be sufficiently broad to cover the removal
of the franking privileges of the judiciary.34 Similarly, the title "An Act
Converting the Municipality of Mandaluyong Into a Highly Urbanized
City of Mandaluyong" was deemed to include the resulting conversion
of such city into a congressional district in compliance with Article VI,
Section 5(3) of the Constitution.34l
Such liberality, however. has not prevented the Court from invali-
dating obvious violations. Thus, the title "An Act Amending Subsection
(c), Section Twelve of Commonwealth Act Numbered One Hundred
Eighty-Six, as amended by Republic Act Numbered Thirty Hundred
Ninety-Six," was not deemed to include a provision allowing retire-
ment gratuity and commutation of vacation and sick leave to members
of Congress because the acts mentioned in the title referred to members
of the Government Service Insurance System whereas Senators and
members of the House were not members of the System.342
Similarly, the title "An Act Creating the Municipality of Diana-
ton in the Province of Lanao del Norte" was not found sufficient to
cover a provision which in fact created the municipality of Dianaton
out of barrios some of which were outside the province of Lanao del
Norte.343 Under current laws on local governments, however, this is of
little importance. The Constitution now requires that the creation of
new municipalities must have the approval of the political subdivisions
to be affected.r44 Such political subdivisions would necessarily have to
be notified in a more effective way than through the title of a bill.
2. Three readings.
In order to ensure a more thorough study of the bills, Section
26(2), copying the text of Article VIII, Section I9(2) of the 1973 Con-
"'Tio v. Videogram Regulatory Board, G.R. No. 75697,June 18, 1987.
u'ol,hilippinc Judges Association v.Wado,227 SCRA 703 (1993). But the provision on the
li.unk ing privilcges of the judiciary was declared unconstitutional on equal protection grounds-
I tlO ( I 96tl). ''rrlobias v. Abalos, 239 SCRA 106, I l0- I I l (1994). Also Mariano, Jr. v. Commission on
l,llcctiorrs.(i.R. Iltl702, March 16, 1995-
v.
i'l'l l l l .( \ )NSn v. ( iintcnez, l 5 SCRA 479 ( 965). 4lro Garcia v. Mata, 6-5 SCRA 5 l 7' 522
1
(.luly .lO, f ()75 ). A/so'lirn v. tlcl Rosaritt, Jr., 2.l7 S(lRA 324 (1994) -
'r'l ,itlitsuttv.('()Mlil ,li('.21S('RA4()6(l()67):bttlsr?tlisscnlol lrctttlttttkr,./.
'rrAtltt lt' X, Sct liorr lO.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Sec.26
stitution, not only requires that there be three separate readings but also
that the separate readings be on "separate days" and that printed copies
of the bill in its final form should be distributed three days before its
passage. The only exception to the rule is when the President certifies to
the necessity of its immediate enactment. The effect of the certification
by the President is to dispense from the requirement that the readings
be on separate days and that the bill be printed in its final form and dis-
tributed three days before third reading.
The 1935 Constitution did not expressly require that bills undergo
three readings. However, on the basis of the 1935 Article VI, Section
21121'' which spoke of a "last reading," the rules of both Houses pre-
scribed three readings. What lies behind this rule is sad experience. The
1934 Constitutional Convention noted the tendency of legislators, on
the last day of the legislative year when legislators were eager to go
home, to rush bills through and to insert matters which would not oth-
erwise stand scrutiny in leisurely debate. The idea of the 1935 change
was to force legislators to take a deep breath before making the final
plunge of approval.,.u
ln Tolentino v. Secretary of Finance,.4? there was no dispute that
the VAT law bill had gone through second and third readings on the
same day. The petitioners contended that the Constitution had been
violated since certification by the President dispensed only from the
requirement of final printing and distribution three days before third
reading but not from the requirement of having the three readings on
separate days. The Court replied that "the 'unless'clause must be read
in relation to the 'except' clause, because the two are really coordinate
clauses of the same sentence."348 Hence, what the provision means is
that the President's certification effects a dispensation from all the re-
quirements.
The 1935 rule also allowed for certification by the President but
it did not specify grounds for certification. It simply said that the Presi-
v5"No bill shall be passed by either House unless it shall have been printed and copies
thereof in its final form furnished its Members at least three calendar days prior to its passage,
except when the President shall have certified to the necessity of its immediate enacrment."
346
MOURNAL OF THE [l935] CONSTITUTIONAL CONVENTION (l-nrrln. td.)
436-437,440-441.
v7235 SCRA 630 ( I 994), aftirmed on reconsideration ( i.R. Nos. I I | 206{)ll, ( )ctobcr
6,
1995.
\at Id.ttt664.
ART.VI - THELEGISLAIIVEDEPARTMENT 787
dent may certify "to the necessity of [the bill's] immediate enactment."
In the 1987 rule, however, the only ground for certification by the Presi-
dent is "to meet a public calamity or emergency." But what is the nature
of the "public calamity or emergency" which will justify certification
of a bill?
Again Tblentino, the VAI bill had been certified by the President
because of a "growing budget deficit." Those who challenged the bill
contended that a growing budget deficit, although a perennial problem,
was not a "public calamity or emergency." The Court replied that Sen-
ate itselfhad not seen fit to controvert the President's certification and
had accepted it. It further obseryed:34e
The sufficiency of the factual basis of the suspension of the
writ of habeas corpus or declaration of martial law under Art. VII,
$ 18, or the existence of a national emergency justifying the del-
egation of extraordinary powers to the President under Art. VI'
5 23(2), is subject to judicial review because basic rights of in-
dividuals may be athazard. But the factual basis of presidential
certification of bills, which involves doing away with procedural
requirements designed to insure that bills are duly considered by
members of Congress, certainly should elicit a different standard
of review.
But the Court did not say what that standard should be nor did it
in fact bother to review the factual basis. In effect it saw no significance
in the distinction between the 1935 text and the 1987 text.
It is, however, curious that Justice Mendoza, in quoting the appli-
cable text, abbreviated it by simply saying "except when the President
certifies to the necessity of its immediate enactment, etc." The "etc."
stood for the crucial phrase "to meet a public calamity or emergency."
Having omitted this crucial phrase, the decision went on to justify the
departure from the rule by citing a 1968 example when the House of
Representatives passed a bill on second and third readings on the same
day "after the bill had been certified by the President as urgent.":'o The
decision did not say that the basis for the 1968 action of the House of
Representatives was a different 1935 text.
(01.15
S('RA at 666. itllinttctl ott rcconsitlcralion (i.R. Nos Il l206-0ti. Octobcr 6, 1995
'ar/r/. rtt (r(r4 -(r(r5.
 THE 1987 CONSTITUTION Se*.27
OF THE REPUBLIC OF THE PHILIPPINES
Snc.27. (1) Evnnv BrLL pAssED By rHE Coucness sHALL,
BEFORE rT A LAW, BE PRESENTED TO TIIE PnrSrOnm. Ir
BECOMES
HE APPROVES THE SAME, HE SHALL SIGN IT; OTHERWISE, HE SHALL
vETo IT AND RETURN THE sAME wrrH HIs oBJECTIoNs ro rIrE Housr
WHERE IT ORIGINATED, WHICH SHALL ENTER THE OBJECTIONS AT
LARGE IN ITS JOURNAL AND PROCEED To RECoNsIDER IT. IF, AFTER
suctr REcoNSIDERATToN, Two-THTRDS oF ALL rnr Mrurrns oF sucx
HousT sHALL AGREE To PASS THE BILL, IT SHALL BE sENT, TOGETHER
wITIr rHE oBJrcrroNs, To rHE ornsn HousE By wItrcH IT sHALL
LIKEWTSE BE RECONSIDERED, AND IF APPROVED By TWO-THIRDS OF
ALL THE Mnunnns oF THAT Housr, IT SHALL BEC0ME I r,lw. fx
ALL sucu cAsEs, THE vorEs oF n,lcn Housn SHALL BE DETERMINED
By rEAs oR NArs, AND THE NAMES oF rnr Mnunrns vorING FoR
oR AGArNsr sHALL BE ENTERED rn rts JounN.c,L. TIIE Pnnsmnxr
sHALL coMMUNICATE HIs vETo oF ANy BILL To rnr Housn wITERE
ITORIGINATED WITIIIN THIRTY DAYS AT-IER THE DATE OF RECEIP/T
THEREOF; OTHERWISE, rT SHALL BECOME A LAW AS IF I{E HAD SIGNED
IT.
(2) THp PnnsmpNT sHALL HAvE THE powER To vETo ANy
PARTICULAR ITEM OR ITEMS IN AN APPROPRIATION, REVENUE, OR
TARIFF BILL, BUT THE VETO SHALL NOT AFFECT TI{E ITEM OR ITEMS TO
WHICH HE DOES NOT OBJECT.
//'1. passage of bills.
,/
Two steps are required befqle g li!_finally bepgursa_lawfirst,
.tj_qlgllbg approyg{ by b,oth Ho.uses of Congress. The legislative action
required of Congress is a positive act; there is no enactment of law by
legislative inaction.35r The votes of the members of Congress may be
obtained viva voce. However, there are instances when a roll call vote
is required and individual members must vote with a yea or a nay. Such
roll call vote is required (1) upon the last and third readings of a bill
[Art. VI, *26(2)]; (2) at the request of one-fifth of the Members present
[Art. VI, $16(a)]; and (3) in re-passing a bill over the veto of the Presi-
dent [Art. VI, $27(1)],3s2 2'17 SCRA 268. Second, it gqst be approved
F$E-Pt9sidelrt. Approval by the President may be by positive act or by
inaction. If the President does not act on the bill wittriU thirty days after
the recelpt oJJ_hg bilf , the bill automatically becomes law.
r5rMiller v. Mardo, 2 S(lRA 39tt,90tt-9 ( l()61).
"2Arroyo v. l)c Vcnccirr, (i.lt. No. l?7255, August 14, 1997
ART.VI _ THELEGISLAIIVEDEPARTMENT 789
In both the 1935 and 1973 Constitutions, there was no mechanism
which allowed verification of whether the President had acted on the
bill or not. Hence, if challenged, it was possible for the President to
say that he did act on the bill within the specified period even if in fact
he had sat on it. Under the new provision verification is now possible
because he is required to communicate his veto to the House where the
bill originated. "The President shall communicate his veto of any bill to
the House where it originated within thirty days after the date of receipt
thereof; otherwise, it shall become a law as if he had signed it." From
the discussions of this provision it is clear that "otherwise" means "if
the President fails to make such communication within the specified
period.'tt
The final approval of a bill, however, does not make it immediate-
ly effective. Taftada v.Tuvera3sa has made it very clear that lgIS b=e-come
gffectlvg only after ad€quate publication. Tafiada involved the inter-
pretation of Article 2 p! thp Civil Code which says: "Laws shall take
effect after fine;n days following the completion of their publication in
the Officiat Gazette,unless it is otherwise provided' ..." The Court said
that the phrase "unless it is otherwise provided" refers "tg the date of
effectiviiy and g9t to the requirement of publication itself, which can-
not in any event be omitted. This clause does not mean that the legisla-
ture may make the law effective immediately upon approval, or on any
other date, without its previous publication." Omission of publication
"would offend due process insofar as it would deny the public knowl-
edge of the laws that are supposed to govern it. ... Significantly, this is
not true only of penal laws as is commonly supposed. One can think of
many non-penal measures,like a law on prescription, which must also
be communicated to the persons they may affect before they can begin
to operate.'r$
( Z. Conference Committees.
In a bicameral system bills are independently processed by both
Houses of Congress. It is not unusual that the final version approved
by one House differs from what has been approved by the other. The
"conference committee," consisting of members nomin4te{ from both
$ril RECORD 134-136.
rs 146 SCRA 446 (l)ccembcr 29, l9116)
Itr/r/. ut 452-J.
 THE 1987 CONSTITUTION Sec.27
OF THE REPUBLIC OF THE PHILIPPINES
Houses, is an extra-constitutional creation of Congress whose fUlptioq
is qo- prqpgse to Coqgress ways of reconciling conflicting provisions
!9U"4 in the Senate yersio-n and in tle Hguqe version of a bill. It per-
forms a necessary function in a bicameral system. However, since con-
ference committees have merely delegated authority from Congress,
they should not perform functions that Congress itself may {q! do.
Moreover, ftg11-prgposals need confirmation by bolh Houses of Conl
gry$q.
.,/" mmryptino u. Secretary of Finance,3s6 the Court had the opportu-
nity to delve into the limits of what conference committees may do. The
petitioners contended that the consolidation of the House and Senate
bills made by the conference committee contained provisions which
neither the Senate bill nor the House bill had.In her dissenting opinion,
Justice Romero laid out in great detail the provisions that had been in-
serted by the conference committee. These provisions, according to the
petitioners, had been introduced "Uqepliti_olqly" during a closed door
meeting of the committee.
The Court's answer to this was that in United States practice con-
ference committees could be held in executive sessions and amend-
ments gennane to the purpose of the bili could be introduced lven if
itiese were lct in either original bill.is'But the Court did not botherlo
check whether perhaps the American practice was based on a constitu-
tional text different from that of the Philippine Constitution.
There are as a matter of fact significant differences in the degree
of freedomAmerican and Philippine legislators have. The only rule that
binds the Federal Congress is that it may formulate its own rules of
procedure. For this reason, the Federal Congress is master.of its own
procedures. It is different with the Philippine Congress.,6ur Congress
indeed is also authorized to formulate its own rules of procedure
but within limits not found in American law. For instance, there is the
- under the "enroled-!,i!" rule:ss which is treated under Section 16 above.
'i{ree leadiqgs on separate days" rule. Another important rule is that no
amendments may be introduced by either house during third reading.
These limitations were introduced by the 1935 and 1973 Constitutions
and confirmed by the 1987 Constitution as a defense against the in-
356235 SCRA at 666-672.
351[d.
at668, citing also its own decision in Philippinc Jutlgcs Assrrciation v. ltrntkr, 227
SCRA 703,709 (1993), allowing a tirreign inscrtion. But thc provision in Plndo wrrs irrvulirlttttl
on equal protection grounds.
Sec.27 ART.VI _ THELEGISLATIVEDEPARTMENT 791
ventiveness of the stealthy and the surreptitious. These, however, were
dlsregarded by the Court in Tblentino in favor of contrary American
practice.
This is not to say that conference committees should not be al-
lowed. But an effort should be made to-!3J -o,l-tgp-qc*9pe of what gonfer-
gnce coqrmittees may do according to the re-qufuem€nls and the reasons
of the Philippine Constitution and not according to the practice of the
American Congress. For instance, if the two Houses afe not allowed to
introduce and debate amendments on third reading, can they circum-
vent this rule by coursing new provisions through the instrumentality
of a conference committee created by Congress and meeting in secret?
The effect of the Court's uncritical embrace of the practice of the Amer-
ican Congress and its conference committees is to dismantle the no-
amendment rule.
As to the secret meeting of the conference committee, Justice
Mendoza had this gem: "Nor is there anything unusual or extraordinary
about the fact that the conference committee met in executive sessions.
Often the only way to reach agreement on conflicting provisions is to
meet behind closed doors, with only the conferees present. Otherwise,
no compromise is likely to be made.'r5s This view of the Court may con-
stitute a standard of behavior tolerable for board of trustees wanting to
protect the interests of majority stockholders. In the matter of behavior
of public officials, however, the Constitution has different standards.
It commands the state to adopt and carry out "qpoJicy of full public
disclosure of all its transactions involving public interest." Moreover,
the pill of \[_[q€Ua{antees the rigfu-o{ 4ll citizens to information on
ryallers of public concern.
Finally, however, the Court was willing tofapg! over everything
3. Veto power;'ttem veto."
In the veto power the Constitution has given to thb lresidenl an
instrument of control over legislation completed by Congress. But Con-
gress may override a presidential veto by a.vote of5,'/9-thgqs of all its
rir235 SCRA nt 667
""Il. trl 6'12.
 THE 1987 CONSTITUTION Sec.27
OF THE REPUBLIC OF THE PHILIPPINES
members. The Constitution says: "If [the President] approves the same,
he shall sign it; otherwise, he shall veto it and return the same with
his objections to the House where it originated, which shall enter the
objections at large in its Journal and proceed to reconsider it. If, after
such reconsideration, two-thirds of all the Members of such House shall
agree to pass the bill, it shall be sent, together with the objections, to the
other House by which it shall likewise be reconsidered, and if approved
by two-thirds of all the Members of that House, it shall become a law."
/ As a general rule, if the President disapproves of a provision in-a l,
bill approved by Congress, he should veto the entire bill. He is not al- !
lowed to veto separate parts of a bill while retaining others. It is only in
the case of appropriation, revenue, and tariff bills that he is authorized
to exercise item-veto.
The item veto in the 1987 Constitution is a carry over from the
1973 and 1935 provisions. The 1935 provision was the outcome of an
intense debate during the 1934-1935 Constitutional Convention. Much
of the objection to giving the power of item-veto to the President was
grounded on the fear of giving too much power to the executive and
thereby allowing him to mutilate an integral legislative act to the preju-
dice of the public welfare. The defenders of the provision, however,
looked on it more as a useful check on improvident use of public funds
and on oppressive revenue'measures.,.
For the purpose of this provision, an3pgrqpg4lgio3.blJ is under-
stood as one whose purpose is to set apart a certain sum from the public
revenue for a specified purpose.36r No set form of words is required
to make out an appropriation. Moreover, the appropriation bill that is
subject to item-veto is any appropriation bill and not just the general
appropriation bill.36,
Sgyq-lgfp bi.l.lp" are those intended to levy taxes in the strict sense
of the word and do not include bills for other purposes which inciden-
tally create revenue.363
r@MOURNAL OF THE
[1935] CONSTITUTIONAL CONVENTION (Laurel ed.) 756-
8r9.
36rBengzon v. Secretary of Justice, 62 Phil. 9 I 2, 9 I 6 ( I 936).
3621d.
at 919. But see Villa-Real, J., dissenting.
tt"l Snlty, ('ttuut:Nttntts, Scc. tlll0, < iler/ in (iltwrx, ('()NSutrttk)N ot, tilt: IJNrntt Sr:llr.s or.
Awnn t l341ltX/) cxplrrirrirrg llrt'plrrlse "hills lirl r:risirrtrl rtvcrrrrt."
Sec.2'7 ART. VI
- THE LEGISLATIVE DEPARTMENT 793
A Bllq_billis one which imposes duties or imposts whether for
revenue or for regulation.364
An item in a bill "is the particulars, the details, the distinct and
severable fiarts .lof the bill."'' It can be an entire section of a bill or a
severable portion of a section. Thus, in Commissioner of Internal Rev-
enue v. Court of Tax Appeals|66 where the President vetoed the portion
of Section 42 of R.A. 61 10 refening to 20Vo caterers tax on restaurants
operated by hotels, motels and rest houses but leaving the rest of the
section intact, the Court upheld the veto saying:
An "item" in a revenue bill does not refellq A[ enlire section
imposing i@lgular kind of t*
fUut tuttro tg !!e;ubje-ct of the
larK and ilFtax {4t9. In the portion of a revenue bill which actually
imposes a tax, a section identifies the tax and enumerates the per-
sons liable tler€fore with the corresponding tax rate. To construe
the wordl"item" as referring to the whole section would tie the
President's'hand in choosing either to approve the whole section at
the expense of also approving a provision therein which he deems
unacceptable or veto the entire section at the expense of foregoing
the collection of the kind of tax altogether. The evil which was
sought to be prevented in giving the president the power to disap-
prove items in a revenue bill would be perpetrated rendering that
power inutile.
In Beng-zo_n !.-D,-f4gry,,'u' however, the veto wa$ -dg-sl-Aled i4valid.
The case involved the General Appropriations Act of 1992. The law
appropriated 500,000,000 pesos "For general fund adjustment for op-
erational and special requirements as indicated hereunder." Among
the several authorized uses of the fund was the adjustment of pension
of justices as authorized by an earlier law. The !1q94sqL---v9lp-9d the
uqg of the fund fgl_th" adj-ust_ment of the pgnl1o'n q{ justices. In declar-
ing the vgqg_1qv_4lid, the Court said that ily-as Ugt the-y-eto of an item., l\jt''1.,'-r,
The item was the entire 500000,000 peso allocation out of which un- l
avoidable obligations not adequately funded in separate items could be,
met. What the President had vetoed, according to the Court, was th!-l
"
., i'
i.' .tt 1!; , ,t'!l)
|''"'',,''t; "'t<)ti i$
: ,;,',r, !-1,.
qt',r'llrt"t-"r & (ir. v. tJnired States,276 LJ.S. 3g4,4ll-12|trlZ}. f tr,, l
,i1' , ,f
,']i;,;i:;;i::;:,lli;l!'lillicc.62,',,i,i,re,6 t,,,,,i,,l
"/.)(|r{s(.r{Aril(r(rr).)) f, i/,, , ,,
 THE 1987 CONSTITUTION
Sec.27
OFTHE REPUBLIC OFTHE PHILIPPINES
method of meeting unavoidable obligations or the manner of using the
500,000,000 pesos.368
The 1935 Constitution had this additional sentence: "When a pro-
vision of an appropriation bill affects one or more items of the same,
the President cannot veto the provision without at the same time veto-
ing the particular item or items to which it relates."36e Thus,in.Bolinao
Electronics v. Valencia;'7' a veto of a condition in an appropriation bill
i,hiifr did n; infiroi a veto of the items ro which the condition related
was deemed invalid and without effect whatsoever.
This sentence in the 1935 Constitution did not appear in the 1973
version; neither does it appear in the 1987 Constitution. It is submitted
nonetheless that the rule is also applicable under the present Constitu-
tion because all that the sentence does is to emphqsize that an item
which,can be subjgct of a sep4:ate veto.must be a "distinct and sever-
4lg purt" of a bill.3?' This view was applied in Philippine Constitu-
tion Association v. Enrique7372 where the Court invalidated the veto of
a restriction on the use of funds for road maintenance and a restriction
on the use of funds for the purchase of medicines since the veto did not
include a veto of the appropriated funds themselves.
4. The new "doctrine of inappropriate provisions."
Gonzales v. Macaraig, Jr.,t" marks the Court's acceptance of what
eventually would be referred to as the "doctrine of inappropriate provi-
sions." What the doctrine says is that a'frovisjqn that is constitutionally
inappropriate for an 4pprop_qalion bill-ryay $9 gingled out for veto ev_en
if it is not_an appropriation or revenue "i!_eql."
Gonzales involved the 1989 and 1990 General Appropriation
Acts. The General Appropriations Act of 1989 contained the following
provision:
wld. at 144, This case, however, grew not so much out of a failure to understand item
veto as from some unfertunate historical misimpressions on the part both of Congress and of the
President. These are explained in the decision.
3aArticle VI, Section 20(2), 1935 Constitution.
3?oBolinao Electronics v. Valencia,
I I SCRA 486,492-93 ( 1964).
3?162
Phil. at 9l6.
371235 SCRA 506, 538-54 I ( t994).
r?1191 scRA 452 ( l9q)).
Sec.27 ART.VI 795
-THELEGISLATIVEDEPARTMENT
Section 55. Prohibition Against the Restoration or Increase
of Recommended Appropriations Disapproved andlor Reduced by
Congress. No item of appropriation recornmended by the Presi-
-
dent . . . which has been disapproved or reduced in this Act shall
be restored or increased by the use of appropriations authorized
for other purposes by augmentation. An item of appropriation for
any purpose recommended by the President in the Budget shall be
deemed to have been disapproved by Congress if no correspond-
ing appropriation for the specific purpose is provided in this act.
The General Appropriations Act for 1990 contained a similar one:
Sec. 16. Use of Savings.
- ... Provided, That no item of ap-
propriation recommended by the President in the Budget ... which
has been disapproved or reduced by Congress shall be restored or
increased by the use of appropriations authorized for other pur-
poses in this Act by augmentation. An item of appropriation for
any purpose shall be deemed to have been disapproved by Con-
gress if no corresponding appropriation for the specific purpose is
provided in this Act.
Exercising the power of "item veto" the President vetoed the simi-
lar provisions. Were the u"tofilectiins "items" of an appropriation
bill?
The Court said that they were not "items." Explaining the Court
s3id;:zr
The terms ilem and p!9li;ion..m-7udgetary legislation and
practice are concededly different. Al item in a bill refers to the par-
ticulars, the details, the distinct and sbverable parts x x x of the bill.
It is an indivisible sum of money dedicated to a stated purposes.
The United States Supreme Court ... declqe{that an 'item'of
an appropriation bill obviously means art item which in itself is
a specific appropriation of money, not sorie WneyLryg1iqiof Sf
law, which happens to be put into an appropriation bill.
Having said that the sections were not budgetary items, the Court
nevertheless said that the veto was an allowable veto of distinct and
severable provisions cm the basis of Article VI, Section 11(2) of the
1935 Constitution which said: "When a provision of an appropriation
"'/r/. nt 465
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
bill affects
one or more items of the same, the President cannot veto the
provision without at the same time vetoing the particular item or items
io which itrclates.",/
It is submitted, however, that, although the final conclusion is
defensible, this is a misapplication of the cited provision of the 1935
Constitution.The Bolinao Electronic.r case cited above involved a pro-
vision that was related to items of an appropriation bill. The veto of
the provision could be allowed but only if the items to which it was
related would also be vetoed. In effect, the cited 1935 provision was
a subsidiary rule to the rule that only items may be vetoed separately
in an appropriation bill. It was not a rule saying that separable provi-
sions which are not "items" could be vetoed separately from the entire
bill. The proper remedy in a case of a provision that has no relation to
,anyp{her in the appropriation bill is to consider it an unconstitutional
( "rider'f under Section25(2). Gonzales did in fact consider it a rider.3?5
ln Philippine Constitution Association v. Enriquez,'|9 tte'/ Court re-
iterated its view that the President possesses the power to veto a provi-
sion in an appropriation bill even if it is not an item. This time, however,
the Court argued not from the omitted 1935 provision on item veto
but from what it called "the doctrine of inappropriate provisions."' It
said',t
As the Constitution is explicit that the provision which
Congress can include in an appropriations bill must "relate
specifically to some particular appropriation therein" and "be
limited in its operation to the appropriation to which it relates," it
follows that any provision which does ryo! rel?te to any particular
item, or wftgh e4tends in its operation -bgyond an item of
gppropriation, is considered "an in_4ppropriate provision" which
can be ygloed separately from an item. Also to be included in
the category of "inappropriate provisions" are unconstitutional
provisions and provisions which are intended to amend other laws,
because qle4rly these kind oflaws have no place in an appropriation
bill. These are matters of general legislation more appropriately
dealt with in separate enactments.
\1sld. at467.
'6235 SCRA 506 ( 1994).
\71
Id. al 5J4.
Sec.27 Sec.27 ART. VI THE LEGISLATIVE DEPARTMENT
-
The intent behind this doctrine, which is not original but borrowed
by the Court from Henry v. Edwards,378 is to prevent the legislature from
forcing the President to veto an entire'appropriation law thereby para-
lyzine government. The Philippine Constitution's answer to this pos-
sibility is Section 25(7) which provides for the altomatic_re_-enactment
of the G,greral Appropriation Law of the p_revious year as a provisional
meatUrq to serve until qqew General Appropriations Law is approved.
The Court's answer, however, is an alternative one, namely the formu-
lation of the broad doctrine that an unconstitutional provision in an Ap-
propriation Law may be singled out for veto.
It should be noted that the Philippine Constitution Association
case goes beyond Bolinao Electronics and Gonzales.In Bolinao, the
vetoed condition had relation to an appropriation which was not vetoed;
the veto of the condition was not allowed .In Gonzales, the provisions
vetoed had no relation to any item of appropriation. It was thus rejected
as a "rider" in the sense of Section 25(2).ln Philippine Constitutional
Association the President vetoed conditions imposed on the use of ap-
propriations for the military equipment. The conditions therefore were
not riders. Following the Bolinao Electronic case, the Court should have
invalidated the veto of ttrlionOltions because the veto did not include
a veto of the appropriation. But the condition imposed by the bill was
that prior approval by Congress must be obtained for the release of such
funds and that such funds may not be used for the payment of planes al-
ready contracted for. The Court upheld the veto, on the ground that the
conditions were "inappropriate provisions." but allowed the funds to
stay in the budget. The condition requiring prior congressional approval
was considered "inappropriate" because: "Any provision blocking an
administrative action in implementing a law or requiring legislative ap-
proval of executive action must be incorporated in a separate and sub-
stantive bill." The prohibition of the use of the funds for the payment of
planes already contracted for was considered'lin_apppplgte" because it
would involve violation of the obligation of contracts.
What all this comes down to is that under the new doctrine of
"inappropriate provisions," any provision or condition in an appropria-
tion bill which in the judgment of the President violates the Constitu-
tion may be vetoed separately liom the entire bill without need to veto
"il,u., .14(r So., 2t1., I5.1 ( 1977)
 THE 1987 CONSTITUTION Sec.2'l Sec.28 ART. VI _ THE LEGISLAUVE DEPARTMENT 799
OF THE REPUBLIC OF THE PHILIPPINES

the appropriation to which they are attached. This is a judge-made rule We do not find anything in the language used in the chal-
which expands the "item veto" rule so much debated in 1935. It ex- lenged Special Provision that would imply that Congress intended
pands the power of the President because admittedly it is more expedi- to deny to the President the right to defer or reduce spending, much
less to deactivate 11000 CAFGU members all at once in 1994. But
tious than forcing the President to go to court to challenge the validity
even if such is the intention, the appropriation law is not the proper
of a provision in an appropriation bill.
vehicle for such purpose. Such intention must be embodied and
manifested in another law considering that it abrades the powers
5. Executive"impoundment."
of the Commander-in-Chief and there are existing laws on the cre-
Another way of exercising executive veto is through what is called ation of the CAFGU's to be amended. Again we state: a provision
"impoundment." Impoundment simply means refusal of the President in an appropriation act cannot be used to repeal or amend other
qo spend funds already allocated by Congress for a speiific purpose. laws, in this case, P.D. No. 1597 and R.A. No. 6758.
There is no provision in the Constitution on the subject. Impoundment
came up also in Philippine Constitution Association v. EnriqueT. To the Src.28. (1) Tur RULE oF rAxArroN sHALL BE UMFoRM AND
amount appropriated by Congress for the compensation and separation EeurrABLE. Tun Concnrss SHALL EvoLvE A pRocREssrvE sysrrM
OF TAXATION.
benefits of members of CAFGU was attached a provision that "it shall
be used for the compensation of CAFGU's including the payment of (2) THr CoNcRFss MAyrBy LAwrAUTrroRrzE THn Pnrsrnpxr
their separation beneflt not exceeding one (1) year subsistence allow- TO FIX WITHIN SPECIFIED LIMITS, AITD SUBJECT TO SUCH LIMITATIONS
ance for the 11O00 members who will be deactivated in 1994."'' The AND RESTRICTIONS AS IT MAY IMFOSE, TARItr'F RATES, IMPORT AND
President did not vpto the provision but said instead in his veto message EXPIORT QUOTAS, TONNAGE AIID WHARFAGE DUES, AND OTHER DUTIES
OR IMPOSTS WITITIN TTM FRAMEWORK OF TIIE NATIONAL DEVELOPMENT
that the irfiplementation of the provision would be subject to his prior
approval taking into consideration the peace and order situation in the PRocRAM oF THE GovpnNunnr.
affected localities. (3) Cnanrrerm INSTrrurtoNS, cHuRcrrr,s AND pARsoNAcEs
oR corwENTS APPURTENANT TIIERETO, MOSQUES, NON-PROFIT
Those who challenged the veto contended that the provision effec-
CEMETERIES, AND ALL LANDS, BUILDINGS, AND IMPROVEMENTS
tively required the deactivation of the CAFGU's and that the President ACTUALLY, DIRECTLY, AND EXCLUSMLY USED FOR RELIGIOUS,
had no choice but to implement the law. The President on the other CHARITABLE, OR EDUCATIONAL PURPOSES SHALL BE EXEMPT FROM
hand justified his impoundment of the provision on the basis of his TAXATION.
Commander-in-Chief powers and on the dangerous argument that the
-4uty (4) No r,,lw cRANTTNG ANy rAx ExEMprroN sHALL BE pAssED
tolqtpi"*ent thelaw includes the duty to desist from implement-
wITHou'T THE CONCUR.RENCE oF A MAJoRrry oF ALL rnr Mrurnns
!1g phen iqplgqE:.$ation would prejudice public interest. As Justice
it
oF THE Coxcnnss.
Roberto Concepcion pointed out in an earlier case, "after all we still live
under a rule of law."38o
1. Power oftaxation: scope and purpose.
The Court, however, found in the doctrine on inappropriate provi-
The power to tax, like police power and the power of eminent
sion a way out of having to decide whether impoundment was legal. It
domain, is an inherent power of government. "That the taxing power
said's'
is of vital importance; that it is essential to the existence of govern-
ment; are truths which it cannot be necessary to re-affirm."3s2 Hence,
37e235
SCRA at 544.
38oGonzalez v. Hechanova, G.R. No.
the power need not be granted by the Constitution. Section 28, in fact,
2l 897 (October 26, 1963). Thc Suprcntc Cotrrl, httw
ever, has heretofore refrained from passing.iudgment on the constitutiorrality ol "inrlxxnrrlrncrrl."
Sce supra under Article VI, Section 27,
'8r/r/. at 546.
j rirl'nrvitlcncc lllnk v. llillirrgs, 4 l'ot. 1 I 4, 5(r I ( t J.ti. I tl.l0)
 THE 1987 CONSTITUTION Sec.28 Sec.28 ART, VI THE LEGISLATIVE DEPARTMENT
OF THE REPUBLIC OF THE PHILIPPINES
- 801

is not a grant of power but an enumeration of limits on the inherent and power of taxation, the power to tax has been recognized as an instru-
otherwise almost unlimited power. ment of national economic and social policy. It has, for instance, been
used as an instrument for the extermination of undesirable activities
Before looking into the limits which the Constitution has imposed,
and enterprises. Justice Marshall even went to the extent of calling it
it is necessary to look into the vastness of the power which Section 28
the power to destroy,386 although Philippine jurisprudence frowns on the
seeks to limit. Since there is no provision in the Philippine Constitution
notion of the power to tax as the power to destroy because taxation must
which sets down the far-ranging scope of the power, one must look to-
wards the fountainhead of early Philippine constitutionalism. Article I,
not be oppressive.'8' Indyfr the notion of equitable taxation excludes
oppressiveness. And as'Tan v. del Rosario, Jr.3ss says, "Of course, where
Section 8, of the United States Constitution says: "The Congress shall
a tax measure becomes so unconscionable andgnjqs_t 4s to_A{nount to
have the power to lay and collect taxes, duties, imposts and excises, to
pay the debts and provide for the common defense and general welfare
confiscation of propertyicourts will not hesitate to strike it down, for,
despite g!! itq pleqitude, the pewgljg lax caqnoJ ovgrride constitutional
of the United States. ... " It is at least this same power which the Con-
gress of the 1935 Constitution had and which has been passed on to
ple!g4ptlQ!s."
both the Batasan of the 1973 Constitution and to the present Congress. The power to tax has also been used as a tool for regulation. For
the purpose of regulating property the state can choose to exercise ei-
The extent of the taxing power is as broad as the purpose for
ther its police power or its power to tax. "It is beyond serious question
which it is given. The power to tax is given in order for government to
that a tax does not cease to be valid merely because it regulates, dis-
be able "to pay the debts and provide for the common defense and gen-
courages, or even definitely deters the activities taxed. ... The principle
eral welfare. ... " When one considers the broad scope of "general wel-
applies even though the revenue obtained is obviously ndgligible ... or
fare," as it is understood in the jurisprudence on police power and the
the revenue purpose of the tax may be secondary ..."r*n
power of eminent domain, one can easily see the almost endless uses
to which the power to tax can be put by government. As the American Another aspect of the power to tax is what the United States Su-
Supreme Court has put it, the power "is exhaustive and embraces ev- preme Court has characteized as "the power to keep alive."3e. This is
ery conceivable power of taxation"383 and it "reaches every subject, and the foundation for the imposition of tariffs designed for the encour-
may be exercised at discretion."384 Nor may the limitation on the power agement and protection of locally produced goods against competition
of Congress be found in the comparative practice of other states. As the from imports. "The enactment and enforcement of a number of customs
Court put it, the Court "cannot subscribe to the theory that the tax rates revenue laws drawn with a motive of maintaining a system of protec-
of other countries should be used as a yardstick in determining what tion, since the revenue law of 1789,are matters of history ... whatever
may be the proper subjects of taxation in our own country. It should bc we may think of the wisdom of a protection policy.'tq
pointed out that the aforementioned taxes and duties, the State, acting
through the legislative and executive branches, is exercising its sover- 2. Limitations on the power to tax.
eign prerogative. It is inherent in the power to tax that the State be ficc
The power to tax exists for the general welfare. Hence, implicit in
to select the subjects of taxation, and it has been repeatedly held that
the power is the limitation that it should be exercised only for a public
'inequalities which result from a singling out of one particular class lirr
taxation, or exemption, infringe no constitutional limitat'on."'
lss

'""McCulloch v. Maryland,4 Wheat,316,431 (U.S. 1819). The Philippine Supreme Court

The obvious primary and specific purpose of the powcr ttt tax is lnrwrrs on lhc notion 0l'the power to tax as the power to destroy.
to raise revenue. However, from the earliest days of the history of thc '*lSrr. r.4.. ()hilkrs, .lr. v. Commissioner of Internal Revenue, 139 SCRA 436,439 (October
.t(). l9l{5}.
.124, .1.r2 ( 1994).
r8rBrushaber v. ljnion Pac. R.R.. 240 Ii.li. I, l2 (1916). ""1 lrrrtctl Slltcs v. Srrrclrcz,340 tj.S. 42,44 (1950\.
r*al,iccnsc'litx ('ascs, 5 Wtll. 4(r2,.17 I ( ltt(r7t.
''''Nrcol v. Anrt's. l7.l ll.S. 50(), 515 ( ltt99).
'tt('ornrrrissiottt't ol lrttcl'nrtl l{evctttte v. Srrrttos,(i,l{, No. l lt).t\,l,Arr11llsl lll, ltrt,/ "''ll:ttttpkrtrrutrl ('o.v llrritctl Strrtcs..l-l(rtlS. 194,,11/,(l92tl).
802 THE 19ETCONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
In the words of Inan Association v. Topeka,3ez "To lay, with
-lu_rp9J9.
'one
hanO, the power of the government on the property of the citizen,
and with the other to bestow it upon favored individuals to aid private
enterprises and build up private fortunes, is none the less alqbbefV be-
cause it is done under the forms of law and is called taxation."
It is one thing, however, to say that "there can be no lawful tax
which is not laid for a public purpose," and it is quite another thing
to determine whether a purpose specified by the legislature is public
or not. Yet, the determination of this question can be very crucial es-
pecially in dealing with revenue measures which accompany special
appropriations.3e3 The Loan Association case itself involved the tiliza-
tion of the taxing power to induce a bridge manufacturing company to
establish its plant in a city, and the United States Supreme Court invali-
dated the tax measure as not satisfying the public purpose test. But the
same Court later issued the warning that the Court's power to invalidate
a tax measure "must be exercised with the utmost extreme caution. ...
Otherwise, a state's powef to legislate for the public welfare might be
seriously curtailed, a power which is a primary reason for the existence
of states."3*
The need for this caution can easily be seen from the expand-
ing scope of legitimate governmental concerns. This is clearly reflected
in recent Philippine jurisprudence on police power especially as it has
been influenced by the social justice provisions of the Constitution. As
the United States Supreme Court said in a case involving unemploy-
ment compensation, "When public evils ensue from individual misfor-
tunes or needs, the legislature may strike at the evil at its source. If the
purpose is legitimate because public, it will not be defeated because the
execution of it involves payment to individuals.":ss 11ut, a special tax
for the support of the agrarian reform program or for urban or housing
reform can be justified as for public purpose even if the immediate ben-
eficiaries are private individuals.
ln Planters Products, Inc. (PPI) v. Fertiphil Corp.,'o'the Court
had occasion to review the validity of LOI 1465,a martial rule product,
3e220 Wall. 655, 664 (U.S. 1975).
3e3ArticleVI, Section 25(4).
3sEverson v. Board of F,ducation, 330 U.S. I 6 ( 1947).
'
(irke (1o..301 11.S 495, 5llt
'eiCarmichael v. Southcrn Ctxrl rntl
'*(l.R. No. l6(lX)6, Mnrt:h 14,2(X)lt.
Sec.28 Sec.28 ART.VI -THELEGISLAIIVEDEPARTMENT 803
which imposed a ten peso capital contribution for the sale of each bag
of fertilizer "until adequate capital is raised to make PPI viable." PPI
was a private corporation. Clearly, therefore, the imposition was for
private benefit and not for a public purpose and therefore invalid. The
Court also found that, even if seen as an exercise of police power, the
imposition would still be invalid for not being for a public Burpose.
Moreover, although the power to tax is legislative in nature, Sec-
tion 28(2) itself authorizes Congress to delegate it to the President. But
the President is bound by the conditions set by Congress.3eT This is one
exception to the rule of non-delegability of legislative power.
3. Specific limits on the taxing power: "uniform and equi-
table."
The 1935 Constitution simply said that the "rule of taxation shall
be uniform."3e8 The new Constitution, like the 1973 Constitution, now
says that it "shall be uniform and equitable." Are the two notions, uni-
formity and equitableness, distinct limitations on the power to tax?
The concept of uniformity of taxation is derived from Article
1, Section 8, of the United States Constitution which prescribes that
"all duties, imposts and excises shall be uniform throughout the Unit-
ed States." It will thus be seen that whereas the American provision
whence the Philippine rule derived has reference to "duties, imposts,
and excises," that is, to indirect taxes, the Philippine requirement of
uniformity applies to taxation in general. Philippine jurisprudence,
however, from its earliest days has interpreted "uniformity" in the Phil-
ippine Constitution in the same way as "uniformity" in the American
Constitution. In the words of Churchill v. Concepcion,3ss "tniformity"
in the Constitution does "not signify an intrinsic, but simply a geo-
graphical uniformity. ... A tax is uniform, within the Constitutional re-
quirement, when it operates with the same force and effect in every
place where the subject of it is found." Or, in the words of the American
Court, "the words 'uniform throughout the United States' do not relate
to the inherent character ofthe tax as respects the operation on individu-
als, but simply requires that whatever plan or method Congress adopts
"'TSouthcrn('nrssv. l'hilippinc('crrrcnt.(i.R.No. I511.54O,Julyti,2004
( 1937) "'sArliclc Vl. Sctlrorr ll( l)( l() t5).
()7(r '/ ( l()l(r).
"r).14 I'hil. tXr().
l.
804 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
for laying the tax in question, the same plan and the same method must
be made operative throughout the United States, and at the same rate."{o
Thus, since the uniformity rule requires merely geographical and
not intrinsic uniformity, a levy of a tax is not unconstitutional simply
because it is not intrinsically equal and uniform in its operation upon
individuals. In other words, the uniformity rule does not prohibit clas-
sification for purposes of taxation.a' The taxing power may be made to
fall more heavily upon some than upon others. When this happens, the
test of constitutionality is not just the uniformity rule, a rule that is easy
to obey, but also the equal protection clause and the notion of "progres-
sive system of taxation."
The requirements for valid classification under the equal protec-
tion clause are discussed under the Bill of Rights. The same require-
ments are applicable to classification for purposes of taxation: (1) the
classification must be based upon substantial distinctions which make
real differences; (2) it must be germane to the purpose of the law; (3) it
must apply not only to present conditions but also to future conditions
substantially identical to those of the present; (4) it must apply equally
to all those who belong to the same class'no2 Or, as Tan v. del Rosario*'
put it, uniformity of taxation simply means that 1) the standards that
are used threfor are substantial and not arbitrary, (2) the categorization
is germane to achieve the legislative purpose, (3) the law applies, all
things being equal, to both present and future conditions, and (4) the
classification applies equally well to all those belonging to the same
class.
It may thus be noted that the requirement of uniformity
sponds to the third and fourth requisites of the equal protection clause;
and that the first and second requirements of the equal protection clause
simply means that the statutory classification must bear some relation-
ship to the end sought to be attained. It bears emphasizing, however,
"that in the field of taxation, more than in other areas, the legislature
possesses the greatest freedom in classification. The reason for this is
nKnowlton v. Moore, 178 U.S.41,84 (1900).
{rSee Report No. 2, Appendix E, of the Committee on Taxation and Dcbt Mttnngcntcnl,
197 1 Constitutional Convention.
a2Pepsi cola Bottling co. v. oity of Butuan,24 S(IRA 7t19,79.5-9(r (196ll): 'ftrt v. l)el
Rosario, Jr., 237 SCRA 324 ( 1994).
{D237 S(IRA .124 ( 1994).
Sec.28 Sec.28 ART.VI _ THELEGISLATIVEDEPARTMENT 805
that traditionally, classification has been a device for fitting tax pro-
grams to local needs and usages in order to achieve an equitable distri-
bution of the tax burden."o* Court decisions would even go to the extent
of saying that reasonable relation between classification and legislative
purpose "has no application to a measure whose sole purpose is to raise
rgvgnug."oo,
Under the above approach to the constitutional precept on taxa-
tion, where does the word "equitable" of Section 28(1) fit in? While a
primary rule of constitutional construction is that every word must be
presumed to have a meaning that is all its own, this writer must none-
theless confess his inability to find any meaning which "equitable" can
add to the uniformity rule and to the equal protection clause except to
say that it is also another way of expressing "progressive system of
taxation."
4. Progressive system of taxation.
A tp4-19 pragressive when the rqtg i4crea, es as the _tax-bas9_!n-
q-reales. The second sentence of Section 28(1) commands Congress to
"evolve apr-egfessive system of taxation." This is not to say that, absent
this provision, the Congress cannot adopt a progressive system of taxa-
tion. The existing system of income taxation, in fact, is progressive and
there was nothing in the old law which could prevent the legislature
from adopting a progressive system of taxation.o6 The explicit men-
tion of progressive taxation in this provision reflects the wish of the
Convention that the legislature, following the social justice command,
should us_e the power of taxation as an instrument for a more equitable
colre-
distribution of wealth.
5. Delegated tax legislation.
As already seen, Congressmay qo-t_{elegqle-_igg law;mafti4g au-
thority. This rule, however, is Uo_t_ absqlute and one e4:-e-12tian to it is
that the power may be delegated in the instances where the Q__og,q_titugio4
itself specifically authorizes the delegation. One such instance of allow-
able delegation is what is provided for in Section2S(2): "The Congress
'oa(iorlcz v. Pukrrrurr.25 S('RA 1t27, tt 14 ( l96lt).
{''/r/. ttl 1l.l,l.
{hKnowllon v. Mrxrre, I 7lt tl.!i. 41. l{4 ( ItXX))
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
may, by law, authorizethe President to fix within specified limits, and
subject to such limitations and restrictions is it may impose, tariffrates,
import and export quotas, tonnage and wharfage dues, and other duties
or imposts within the framework of the national development program
of the Philippines." The provision is a substantial reproduction of Ar-
ticle VI, Section 22(2) of the 1935 Constitution which Marc Donnelly
and Associates v. Agregado&1 interpreted as allowing the delegation of
a specific legislative power. Moreover, Garcia v. Executive Secretarf8
said that the rule that revenue bills must originate from the House of
Representatives under Article VI, Section 24 does not prevent Con-
gress from exercising this delegating authority. Nor does it invalidate
the delegated authority even if it involves authority to create revenue
measures.
The phrase "Withinlhe tqnprv_ork qf qhe= 4qtio[ql development
pfqgg was added by the 1987 Constitution to ear-
"LtL"_P_tti!pp-!nes"
lier provisions. It is, however, a limit gglputt.g Pre-sldent but on the
lggis!4qr-relg qulhofily to_-impose-li4!1s_o4 w[4t it dele€ates. The phrase
was explained by Commissioner Monsod thus:@
The reason I am proposing this insertion is that an economic
program has to be internally consistent. While it is directory to the
and it says "within specified limits" there are situ-
President
- -
ations where the limits prescribed to the President might, in fact,
be distortive of the economic program.
If I may give an example: When you are setting tariff rates,
there must be a certain consistency among the tariffs for finished
goods, intermediate inputs, and basic materials. Once-you distort
this and put a low limit on the raw materials or intermediate goods,
then we encourage assembly at the end of the production cycle.
This we did in earlier years very high tariffs for finished prod-
what we got was
-
industry that was only engaged in as-
ucts and
-
sembly and packaging operations. On the other hand, an economic
program would naturally rationalize the system of tariffs in order
good industrial structure.
to make sure that we have a
We are not taking away any power from Congress. We are
just saying that as a frame of reference, the authority and the lim-
0795 Phil. 142(1954').
{E2l I SCRA 219, 223 (19921.
4pll RECORD t9l-t93,
Sec.28 Sec.28 ART.VI - THELECISLATIVEDEPARTMENT 807
its prescribed should be consistent with the economic program of
government which the legislature itself approves.
6. Tax exemptions.
Corollary to the power to tax is the power to exempt from tax.
Hence, the same general and specific limitations on the power to tax
also apply to the power to create exemptions. The.%gqqpliAnLltrpfq-
fore, mr1qt -be fo_r a public pqqlose, qnl&gn and equitable, and in con-
formity with the egra! gojecliqnplarlse. Moreover, the Constitution
itself may create exemptions. When it does, the constitutional exemp-
tion itself becomes a limit on the power to tax-
/....
Section 28(3) is one such exemptiod"Charitable institutions,
churches and parsonages or convents appurtenant thereto, mosques,
non-profit cemeteries, and all lands, buildings, and improvements: ac-
$ally, d-llgglly, and exclusively used for religiollq, ch'arrlable, or.educa-
tr_onal_purpqqesshallQgglepqp!|f s[q!a_x_41iqr]."
This provision was originally Article VI, Section 22(3) of the
1935 Constitution which read: "Cemeteries, churches, and parsonages
or convents appurtenant thereto, and all lands, buildings, and improve-
ments used exclusively for religious, charitable or educational purposes
shall be exempt from taxation."
The original proposal of the Committee on Taxation and Debt
Management of the l97l Constitutional Convention read thus: "Non-
profit cemeteries, and churches, chapels, mosques, synagogues, houses
of worship and parsonages and convents appurtenant thereto and all
lands, buildings, and improvements used actually and exclusively for
religious or charitable purposes shall be exempt from taxation."{o [1-
plaining the provision, the Committee said:
The changes sought by the foregoing amendment are: l)
to limit the exemption of burial grounds to non-profit cemeter-
ies. Under the proposed provision, memorial parks will no longer
be exempt; 2) to remove or withdraw the exemption of lands and
buildings uscd fbr educational purposes, since private educational
institutions arc conducted tbr profit or operated as business; 3) to
lirnit thc cxcmptions of lands and buildings owned by religious
{"(irttttttillcc Rclxttl No l,Aplrntlrx ll. l()/l ('onstitulionul(irnvcnliorr.
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
institutions to those actually and exclusively used for religious
purposes, so that lands and buildings and apartments for rent, fish
ponds, haciendas, and similar income producing real estate will
not be entitled to exemption even if owned or operated by a reli-
gious institution, and regardless of the destination or use to which
such income is devoted.
Hence, the 1973 Constitution did not include the word "educa-
tional" but the 1987 Constitution restored it. And the word applies to
both profit and non-profit educational institutions with respect to realty
tax.4rr In justifying the restoration of the exemption for educational in-
stitutions, Commissioner Guingona said that the focus was on the ben-
efits which would redound to students through such exemption.4l2
It must be pointed out, however, that the exemption created by the
constitutional provision is only for "taxes assessed ... as property taxes,
as contra-distinguished from excise taxes."4r3 The properties exempted
are "lands, buildings and improvements actually, directly, and exclu-
sively used for religious, charitable, or educational purposes."u'n
The policy on the law on tax exemptions is that, while they must
be applied ltrictly, they must also be applied fairly in a manner that will
achieve the intent for which the exemptions were created.4's Thus, it is
ryp-9499!lql93Un!1in4thattelqtr-e-4p!i9-nsiqrchart@ble-institutions
are glyen ,i1ro-1{91!q tutn:oc,e-..$-e- seryice they q19-c,qpable-of giving; tax
exemptions for religious property are given in grd.er tp _e1rgrlg leligious
Lr_bg4y;''' and tax exemptions for gduqa!-ionaf lpstitutions are given for
the sakq of_rpatrlg quel4y education a{o1dgblg to all.o'7
4r'II RECORD 90, 92-93, 2N-202.
at2
Id. at 45, 88-89, I 14.
ar3l-ladoc v. Commissioner of Internal Revenue, 14 SCRA 292,295 (1965). The exernp-
tion from property tax applies to YMCAbecause it is aghadlab-le:lBgqitution. But YMCA does nol
qualify for the income tax exemption in Article XIV, Section 4(3) because it is4ot an educational
institution. Commission of Internal Revenue v. Court of Appeals, G.R. No. 124043, October 14,
1998.
araThe rationale for the exemption of religious property, in relation to freedom of rcl igion
and non-establishment, has already been discussed in the discussion of Walz, t,. Titr (\tnntil:i,,n,
397 U.S.664 (1970), underArticle IV, Section 8. See also II RECORD 109, I l.l.
arsCatholic Church v. Hastings,5 Phil. TOl; Provincc ol'Ahrl v- llcnrutrkr, 107 li('Rn lo.l.
109 (r981).
416II RECORD 209.
at1
Id. irl l4l .
Sec.28 ART. VI THE LEGISLATIVE DEPARTMENT
-
In qualifying the use of the properties covered by the exemption,
it will be noted that under the 1935 Constitution the modifier was 'oex-
clusively" and under the present provision the modifiers are "aslualjJ,
4lryqtly, and glglusjvcly." The word "excl-usiY9ly" has been explai ned
thus:4'8
Moreover, the -e,1e_ryq!!_o_4ln
fav_or gfpqoperty U!q4 _eIgJusivq-
ly for cha4ablg or g{qcation al purpo se s i s'!q9t _!ryqt-e{to plope$y
therefor, but extends to facilities which are
-actually indispensable"
"incidBntal tq 4nd re-aso!4bly necessary for" the agcomplishment
of said purposes, such as, in the case of loqpitaLs, "a school for
training nurses, a nurses'home, property used to provide housing
facilities for interns, resident doctors, superintendents, and other
members of the hospital staff, and recreational facilities for student
nurses, interns and residents," such as "athletic fields," including
"a farm used for the inmates of the institution."
This meaning of exclusivity, which gyg{g qoJ jgst what is.iq_dis-
pensable but also what is 11c1_{9pQ! and lgqgg!,!y_le9eq-s4ry,4ffects
the meaning of the words "ac_tually and d-irectly." The 1986 Constitu-
tional Commission did not discuss this phrase as applied to realty tax.
But the same words are used in qualifying the tax-exempt revenues
and assets of non-profit educational institutions in Article XIV Section
4(3). The spirit in which the words are to be understood is shown by an
exchange between Commissioners Azcuna and Suarez:4'e
MR. AZCUNA."The proponent said that the revenues of
non-stock and nonprofit educational institutions must be 3-clqalry,
directly and_exclqsive-ly used for educational purposes. So, until
the revenues are plowed back to an educational purpose and are
just retained in the school for reserve, would the school have to
pay taxes on these revenues?
MR. SUAREZ.If the reserve will be used for educational
purposes, actually, directly and exclusively, the school will also
cnjoy the same exemption.
MR. AZCUNA. But the taxable year is reckoned from year
to ycar and the reserve may not be actually used until five years
fiom then; so is the tax postponed until such time as it is used?
'rr*llrrrt:1r v. ()rrczon ('ity llrtrrtl ol Asst'ssrrrcrls, I S('RA ll{6, 192 ( l(Xll), citing Crxrt.ttv
nrrtl ('JS.
4rqlV Rl;( r(
)ltl),ll)4
810 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
MR. SUAREZ.There is no postponement in the enjoyment
of the exemption because it could very well happen that there may
be reserved funds there but are intended for the purchase oflabora-
tory equipment, library books, et cetera.
MR.AZCUNA. How about "retained earnings," would they
have to pay taxes on retained earnings?
MR. SUAREZ. No, retained earnings would have to be con-
sidered in the form of reserve, in the same category.
MR. AZCUNA. So, there will be no tax on that.
MR. SUAREZ. No, there will be no tax.
Incidentally, it was-also in this spirit that the Court read the mean-
ing of '?gtuul ,{4lT.tluse of land for educational purposes in Cen-
tral Mindanao University v. Department of Agrarian Reform.ao The
Court's reading took into consideration the significant factor of growth
and expansion.
Illustrative of constitutional tax exemption is the case of the Lung
Center of the Philippines because a minimum of 60Vo of its hospital
beds are exclusively used for charity patients and the major thrust of its
hospital operation is to serve charity patients, the Center was deemed
to be an exempt charitable institution.r?5 determine whether an enter-
prise is a charitable institution/entity or not, the elements which should
be considered include the statute creating the entelprise, its c_grporate
pv?ose.s, its conql_itgliqn and by-laWs, the methods of administration,
the nature of the actual work performed, the character of the services
rendered, the indefiniteness of the beneficiaries, and the use and occu-
pation of the properties.42'
It was a different matter, however, for the property whose ben-
eficial use was given to a Computer College. The property itself was
not considered exempt because it was not ".4g!Uglly, dlrgc1ly and-exclu-
sively" being used either for religious, chiritable, or educationat pur-
poses.422
Section 28(4) is a provision which copies Section l7(4) of the
1973 Constitution. It says: "No law granting any tax exemption shall
4m215 SCRA 86, 96 ( 1992).
a2rLung Center v. (;.R. No. I44 I04, Jurrc
Quezon City, 2(), 2(X)4,
a22SystemsPlus(irmputcr(irllcgt v.('lltxx.rur('iry,(;.R.No. 146ltl2,Aulust7.?(X).t
Sec.28 Sec.29 ART.VI _THELEGISLATIVEDEPARTMENT 811
be passed without the concurrence of a majority of all the Members of
the Congress." This requirement of a qualified majority for the passage
of tax exemption laws is an added limitation on the power to tax. The
Committee believed that while the requirement of the concurrence of a
majority of all the members would impose a limitation on the legisla-
ture, the limitation itself would not be too constrictive as to prejudice
"worthwhile tax exemptions, especially those needed to support or pro-
mote industrial and economic development."o"
Exemptions granted, however whether by the Constitution or by
statute, should not be extended beyond what is covered. Thus, although
the former Camp John Hay was declared a special economic zone, that
fact did not by itself also give to John Hay the tax exemption given spe-
cifically to the Subic Special Economic Zone under R.A. No. 7227 -424
Sec.29. (1) No MoNEY sHALL BE PAID our oF THE Tnelsunv
EXCEPT IN PURSUANCE OF AN APPR,OPRIATION MADE BY LAW.
(2\ No punr,rc UoNEY oR PRoPERTY sHALL BE APPRoPRTATED,
APPLIED, PAID, OR EMPLOYED' DIRECTLY OR INDIRECTLY' FOR THE
usE, BENEFIT, OR SUPPORT OF ANY SECTr CHURCHT DENOMINATIONT
SECTARIAN INSTITUTION' OR SYSTEM OF RELIGION' OR OF ANY PRIEST'
PREACHER, MIMSTERT OR OTHER RELIGTOUS TEACITER OR DIGNTTARY
AS SUCH, EXCEPT WITEN SUCH PRIEST' PN,EACHER' MIMSTER' OR
DIGNITARY IS ASSIGNED TO THE ARMED FORCES' OR TO ANY PENAL
INSTITUTION, OR GOVERNMENT ORPHANAGE OR LEPROSARIUM.
(3) Au. uoxrv coLLEcrED oN ANY TAx LEvIED FoR A
SPECIAL PURPiOSE SHALL BE TR,EATED AS A SPECIAL FTJND AND PAID OUT
FoR sucH puRposE oNI-v. Ir rHE PURPOsE FoR wHIcH A SPECIAL FUND
WAS CREATED HAS BEEN FULFILLED OR ABANDONED' TIIE BALANCE'
IF ANY, SHALL BE TRANSFERR,ED TO THE GENERAL FUNDS OF THE
Govrnxurrtr.
1. Fiscal powers of Congress.
As already pointed out, Congress is the guardian of the public
treasury. It wields the tremendous power of the purse. "That the gov-
ernmental power of the purse is a gteat one is not now for the first
.r'Appcnrlix (i. Rclxrrr No. 5, (\rrurniltcc on'lrxation and Debt Management, l97l Con-
nlituti0nIl (\mveniitttt.
.r.Johnlllyl'er4rlcrAhclnutivc(irrtliltottv. l.irrt,(i.R.No. ll9775,Otrohcr24,2(X)3.
8t2 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
time announced. Every student of the history of government and eco-
nomics is aware of its magnitude and of its existence in every civilized
govemment."425
The power of the purse comprehends both the power to generate
money for the govemment by taxation and the power to spend it. Sec-
tions 24,25 and 29 together with Article VII, Section 22 contain the
limitations on the power to spend. section 29 contains the limitations
on the power to tax.
The spending power of Congress is stated in Section 29(1): ,.No
money shall be paid out of the TreasurygxggBt in pursuance of an ap-
propriation made by law." Congress aloneJan authorize the expendi-
ture of public funds through its power to appropriate. The power to
appropriate carries with it the power to specify not just the amount that
may be spent but also the pllpgte for which it may be spent.
GuinRona, Jr. y, Cg1qg.udru dealt with the controversy surrounding
automatic appropriation for foreign debt servicing. Petitioners sought to
declare the various Presidential Decrees authorizing automatic appro-
priation of amounts to be used for servicing foreign debts. The principal
contention of petitioners was that (t) appropriation bills under Section
24 must originate in the House of Representatives and (2) there must be
definiteness, certainty and exactness in an appropriation. Answering the
first argument the Court said'42?
... [C]ertainly, the framers of the Constitution did not con-
template that existing laws in the statute books including existing
presidential decrees appropriating public money are reduced to
mere "bills" that must again go through the legislative mill. The
only reasonable interyrctqlion of said provisions of the Constitu-
tion which refer to "bills') is that they me-Qlr appropriation mea-
sUtgg still t9 b_el4qsg4by Congress. If the intention of the framers
thereof were otherwise they should have expressed their decision
in a more direct or express manner.
Well-known is the rule that repeal or amendment by impli-
cation is frowned upon. Equally fundamental is the principle that
construction. of the Constitution and law is generally applied pro-
spectively and not retrospectively unless it is so clearly stated.
a2sUnited States v.
Butler,297 U.S. I. tlO ( l9.l(r), Storrc,./. rlisscnring.
4'6196 SCRA 22t (t99t).
Id.
421
trt 237-2.14.
Sec.29 Sec.29 ART. VI _ THE LEGISLATIVE DEPARTMENT
As to the second argument, the Court resolved it by applying the
principles on delegation:n28
The Court finds that in this case the questioned laws are
complete in all their essential terms and conditions and sufficient
standards are indicated therein.
The legislative intention in R.A. No.4860, as amended, Sec-
tion 3l of P.D. No. 1177 and P.D. No. 1967 is that tbc-aqolrnt
needed should be autgmaticaily sgt aside in order to enable the
-iepublic
of the PhiTippines to pay the principal, interest, taxe-s and
other normal banking charges on the loans, credits or indebtedness
incurred as guaranteed by it when they shall become due wlthout
the need to enact a separate law appropriating funds therefor as the
need arises. The purpose of these laws is to enable the government
to make prompt paymgnt and/or advances for all loans !!'-Protec-t
and maintain the credit standing of the country.
Although the subject presidential decrees dg4qlstate spelif-
i" gqrntr Q bg,paid, necgst4tedl,by the v-elry rralrrre of the prsb-
lem being addressed, ttry amounts,nevertheless are made qertain by
thel.eglsla,tive parameters prorrided in the decrees. The Executive
is not of unlimited djscretion as to the amounts to be disbursed
for debt servicing./re mandate is to pay only the principal, inter-
est, taxes and other normal banking charges on the loans, credits
or indebtedness, or on the bonds, debentures or security or other
evidences of indebtedness sold in international markets incurred
by virnre of the law, as and when they shall become due. No un-
certainty arises in executive implementation as the limit will be the
exact amounts as shown by the books of the Treasury.
After Congrg-ss has made the appropriation, it is the-executive that
actually spehds the fund.
The controversy over the Countrywide Development Fund of 1994,
which is the deodorized appellation of the traditional l'po.$.bag-e!'!'
was resolved by the Court in a manner which might be described as
tongue-in-cheek. The General Appropriation Act set aside an amount to
azEld.at234-235.
a2+Thc origin of thc namc may be traced to a degrading ritual to which slaves were subject-
c4. At n fixctl day antl hour, a barrel stuffed with pork would be rolled out and a multitude ofblack
slavcs. hertlcd k)gcthcr in r strutcgic corncr ol thc runch or plantation, would cast their famished
txxlics intl thc porcine lbust to ussuuge thcir hungcr with morscls coming fnrnr thc gcnerosity of
their wcll,letl rnnster. llrrtrNas, "!'mtu l\nx lllqttn. nt Ilrunt,r.('tsxr,ts," Tirrlav,.lttnttttry .1(1, 1994.

814 THE I9STCONSTMUTION
OF THE REPIJBLIC OF THE PHILIPPINES
be used for "infrastructure, purchase of ambulances and computers and
other priority projects and activities, and credit facilities to qualified
beneficiaries as,proposed and iderytified by fficials concerned." The
"officials concerned" were all Representatives, Senators and the Vice-
President who were each allocated an amount. The law was challenged
on the ground that the authority given to the enumerated officials to
propose and identify projects and activities was an encroachment into
legislalivqqower. In upholding rt" Elilly_q-f _Lhp law, the Court said
tha(CongresS itself had specified thg uses ofrhefund and that the power
qffici4ls was mer_e-ly lecgmmendatory to the
@{
$ggldsnt who could app1q_ygpl_djsgpptq_ve the recommendation. The
Court praised the scheme as "!-qggUU[1ve" and']innov_ative!"030
2. Special funds.
Section 29(3) is new. It says: "All money collected on any tax
levied for a special purpose shall be treated as a special fund and paid
out for such purpose only. If the puqpose for which a special fund was
created has been fulfilled or abandoned, the balance, if any, shall be
transferred to the general funds of the Government." This is intended to
prevent abuse in the disposition of special funds. As the Court said in
PCGG v. COCOFED:43I
The fundamental rule is that tax prgg_epds may o,aly-Le_uced
for a pu!li_c_purpoqg,
which may either be a general public purpose
to support the existence ofthe state or a special public purpose to
pursue certain legitimate objects of government in the exercise of
police power, and none other. As a measure to ensure the proper
utilization of money collected for a specified public purpose, the
1987 Constitution, restating another general principle, treats the
proceeds as a special fund to be paid out for such purpose. If, how-
ever, that purpose has been fulfilled or is no longer forthcoming,
the balance, if any, shall then be transferred to the general funds
of the government, which may thereafter be appropriated by Con-
gress and expended for any legitimate purpose within the scope of
the general fund. An entity, whether public or private, which holds
the tax money has no authority to disburse it or to pay any of it to
anyone, the power to dispose of such money being vested in the
asPhilippine Constitution Asscrcirtion v. Iinriqucz,
23.5 S(IRA 5O6. 521-,52.t ( 1994)
arlG.R. Nos. l47l162-1M, l)cccrnhcr 14. 2(X) 1.
- THELEGISLATIVEDEPARTMENT
Sec.29 ART.VI 8I5
legislature. Thus, the 1987 Constitution, like its counterparts in the
1935 and the 1973 Constitution, mandates that no money shall be
paid out of the national treasury except in pursuance of an appro-
priation made by law.
In Q:-9lgJ.9boto" part of the controversy was whether the
money that went into the Oil Price Stabilization Fund IOPSF] ryaS--EI
money levied for a special purpose. As set up by law, it was a ""!t!t!-t
fund" which derived funding from four sources: (J.|from increase in
the tax collection from ad valorem taxes on oil products; (?) from any
increase in the tax collection as aresult of the lifting of tax exemptions
of government corporations; (3J from additiona}mounts imposed by
the Board of Energy on petroleum products; (4f from peso savings re-
sulting from the fluctuation of the peso against currencies used for the
importation of crude oil and petroleum products. The question centered
on whether the additional amounts imposed by the Board of Energy was
a tax. The Court answered:433
What is here involved is.noj so much the power of taxa-
tion as pgl-tge+ower. Although the provision authorizing the ERB
to impose additional amounts could be construed to refer to the
power oftaxation, it cannot be overlooked that the overriding con-
sideration i. t1rg1_'11g_fei e !gv,e!ue butl to enable the delegate to
act with expediency in carrying out the objectives of the law [to
protect consumers from constant fluctuation of oil pricesl which
are embraced by the po,lice_ pow_e1o{the State.
Snc.30. No r-rw sHALL BE pAssED TNcREASING THE AppELLATE
JURrsDrcrroN oF THE Supnsl{n Counr AS PRovIDED IN TIrIs
CoxsrrrurroN wrrHour ITs ADVICE AND coNcuRRENcE.
l. Appellate jurisdiction of the Supreme Court.
Section 2 of Article VIII gives to Congress the power to apportion
the jurisdiction of courts. Thus, pgnglers-is free to add to or subtract
from the powers of the courts€xcept insofar as these have been fixed
by the Constitution. Section 30 is a response to the concern that the
Supreme Court might be swamped with jurisdictional concerns which
,t-
t"220 scRA 701 ( 199.1)
'!'/r/. nt 7l l-712.
 Sec. 32 ART. VI - THE LEGISLATIVE DEPARTMENT 8l'7
816 THE 1987 CONSTITUTION Secs.31-32
OF THE REPUBLIC OF THE PHILIPPINES

might inhibit it from an expeditious disposition of important cases. Sec- LAWS OR APPROVE OR REJECT ANY ACT OR I,AW OR PART THEREOF

tion 30 does not prohibit Congress from increasing the jurisdiction of PASSED BY THE cOXCnnSS OR LOCAL LEGISLATM BODY AFTER THE ,' ',
REGISIBAII9ILO_EA-PETIIION THIIREFOR SIGNED BY Ar LEASr TDN PEn
the Supreme Court but simply prescribes that any such increase should
CENTUM OF THE TOTAL NUMBER OF REGISTERED VOTERS' OF WHICH
be with the advice and concurrence of the Court. Thus, Art. 82 of the
EVERY LEGISLATIVE DISTRICT MUST BE REPRESENTED BY AT LEAST
Omnibus Investment Code of 1987 granting the right of appeal to the THREE PElt CENTT]M OF THE REGISTER-ED VOTERS THEREOF.
Supreme Court was invalidated because it was passed without the ad-
vice and concuffence of the Supreme Court.434
1. Initiative and referendum.
Snc.31. No ulw cRANTTNG A TrrLE oF RoyALry oR NoBrlrry This has been initially discussed under Section 1. When this sub-
SHALL BE ENACTED. ject was being considered by the 1986 Constitutional Commission, one
major objection to it was the matter of practicality and practicableness.
1. Titles of royalty or nobility. The Commission, however, felt that Congress could wrestle with the
problem of implementation.436
This provision has traditionally been a part of the Bill of Rights.
The 1986 Constitutional Commission decided to transfer it to Article The current implementing law is R.A. No. 6735 some of the de-
VI. tails of which are:

Speaking in support of a similar provision at the 1935 Constitu- Sec. 5. Requirements. (a) To exercise the power of ini-
-
tional Convention, Delegate Laurel said'43s tiative or referendum, at least ten per centum (lo7o) of the total
number of the registered voters, of which every legislative district
The Federalisl (No. 84), speaking of the importance of the is represented by at least three per centum (3Vo) of the registered
prohibition against titles of nobility in the Federal Constitution, voters thereof, shall sign a petition for the purpose and register the
says: "This may truly be denominated the cornerstone of republi- same with the Commission.
can government; for so long as they are excluded there can never
be serious danger that the government will be any other than that
of the people." ,", The3elitiol shall state the following:
The Filipinos have also suffered under the misguided rule 1.
contents or text of the proposed law sought to be
of monarchy and upon the first chance of drafting a constitution enacted, approved or rejected, amended or repealed, as the
of their own they provided that no Filipino could accept "honors, case may be;
decorations or orders or titles of honor and nobility from foreign
2. the proposition;
nations without authorization of the government." The govern-
ment was also forbidden from establishing or granting them to any 3. the reason or reasons therefor;
Filipino. (Malolos Constitution, Art. 32, Title IV.) 4. that it is not one of the exceptions provided here-
in;
Snc.32.Tnn CoNGRESS SHALL,AS EARLv AS possIBLE,pRovIDE
5. signatures of the petitioners or registered voters;
FOR A SYSTEM OF INITIATIYE AND REFERENDUM, AND THE EXCDPTIONS
and
THEREFROM, WHDREBY THE PEOPLE CAN DIRECTLY PROPOSE AND ENACT
6. an abstract or summary in not more than one hun-
clrcd ( l(X)) worcls which shall be legibly written or printed at
a3aFirst Lepanto
Ceramics v. ('ourt ol Appcals,237 SCRA -519 ( 1994): J:ahiirrr v. I)r.sicr.to, thc loll ol'cvcry pagc ol'thc pctition.
G.R. No. 129742, Septcrnhcr 16. l()()ll; Nitrtruhtr v. Ornhudsrrrarr,(i.R. Nos. l?4()65, ll4().ll unrl
I 24913, Octobcr 29. l99tt.
i"lll.l()t,RNnl,()lr'l'lllr(l()t5)('()NS'll't'tl'l'l()NAt.('()NVtiN'l'l()N rk'll ltlr('!()l{l) /t, lto
lOt5
 THE 1987 CONSTITUTION Sec.32 Sec.32 ART. VI - THE LEGISLATIVE DEPARTMENT 819
OF THE REPUBLIC OF THE PHILIPPINES

Sec. 10. Prohibited Measures. The following cannot be

-
the subject of an initiative or referendum petition:
Sec. 6. Special Registration.
- The Commission on Elec-
tion shall set a special registration day at least three (3) weeks be- (a) No petition embracing more than one (l) subject shall
fore a scheduled initiative or referendum. be submitted to the electorate; and

Sec. 7. Verification of Signatures.

- The Election Registrar (b) Statutes involving e,ry9gqrcl_Sr94gures, the enact-
shall verify the signatures on the basis of the registry list of voters, ment of which are spegiflcaly veste-d in Congress by the Constitu-
voters'affidavits and voters identification cards used in the imme- tion, cannot be subject to referendum until ninety (90) days after
diately preceding election. its effectivity.
Sec. 8. Conduct and Date of Initiative or Referendum.
-
The Commission shall call and supervise the conduct of initiative
or referendum.
Within a period of thirty (30) days from receipt of the peti-
tion, the Commission shall, upon determining the sufficiency of
the petition, publish the same in Filipino and English at least twice
in newspapers of general and local circulation and set the date of
the initiative or referendum which shall not be earlier than forty-
five (45) days but not later than ninety (90) days from the determi-
nation by the Commission of the sufficiency of the petition.

Sec. 9. EfJectivity of Initiative or Referendum Proposition.

(a) The Proposition of the enactment, approval, amendment or
-rejection of a national law shall be submitted to and approved by a
majority of the votes cast by all the registered voters of the Philip-
pines.

If, as certified to by the Commission, the proposition is ap-

proved by a y the Commission, the proposition to reject a national
law is approved by a majority of the votes cast, the said national
law shall be deemed repealed and the repeal shall become effective
fifteen (15) days following the completion of publication of the
proposition and the certification by the Commission in the Official
Gazette or in newspaper of general circulation in the Philippines.

However, if the majority vote is not obtained, the national

law sought to be rejected or amended shall remain in full force
and effect.

(c) A national or local initiative proposition approved by

majority of the votes cast in an election called for the purpose shall
become effective fifteen ( l5) days after certification and proclama-
tion by the Commission.

Anrrcr,r VII
ExBcurrvp DnpnnrMENT
SncrroN 1. Tnr ExncurrvE prowER sHALL BE vEsrED IN THE
PnrsrnpNr oF THE PnIr,rpprxns.
1. The executiye power.
The seat of executive power in Philippine constitutional law has
undergone a series of relocations. The 1935 Constitution vested ex-
ecutive power in the President. Under the original 1973 Constitution
executive power was for the Prime Minister to exercise and the presi-
dent was reduced to a mere "symbolic head of the State." The idea of
a merely ceremonial President, however, died even before it could be
tested. When the original 1973 Constitution took effect, President Mar-
cos, who was President under the 1935 Constitution, was allowed to
retain his 1935 powers and at the same time became ceremonial presi-
dent and Prime Minister. And he never was merely a ceremonial head.
In 1981 ,the 1973 Constitution was revised and the President was once
more made head of state and chief executive, while the Prime Minister
was reduced to being largely a ceremonial figure.
With the 1987 Constitution, the constitutional system returns to
the presidential model of the 1935 Constitution: executive power is
vested in the President. During the deliberations of the 1986 Constitu-
tional Commission there was no debate on the choice between a presi-
dential or a parliamentary system.
In vesting executive power in one person rather than in a plural
executive, the evident intention was to invest the power holder with
energy. And since, even as originally set down in the 1935 Constitution,
the powers themselves were couched in skeletal generalities, it is pos-
sible for a President to test the extent of those powers to the limit and
t{2o
ART. VII - EXECUTIVE DEPARTMENT
even overwhelm the two other theoretically coequal departments. The
conviction that permeated the 1986 Constitutional Commission was that
President Marcos had taxed executive power beyond allowable limits.
Hence, to the specific powers given to the President - to appoint, to
ensure that the laws are faithfully executed, to be Commander-in-Chief
of the armed forces, to grant clemency, and to contract foreign loans
there have been attached more explicit structural limitations than
-were provided in previous documents. Nonetheless, the presidency that
emerges from the 1987 text is still a potent institution largely because
the primary source of his political authority, election by the people at
large, is still there.
The broad sweep of executive power has been laid out generously
by the Supreme Court in Mgrcgs v. Manglapus.' In concluding that the
President had the authority to prevent the return of Mr. Marcos even in
the absence of a specific law granting her such authority, the Supreme
Court, speaking through Justice Irene Cortes,laid down the premise for
its conclusion asserting the existence of "residuql pgwgrq" not specifi-
cally mentioned in the Constitution:'
The inevitable question then arises: by enumerating certain
powers of the President did the framers of the Constitution intend
that the President shall exercise those specific powers and no oth-
er? Are these enumerated powers the breadth and scope of "ex-
ecutive poweC'? Petitioners advance the view that the President's
powers are limited to those specifically enumerated in the 1987
Constitution. Thus, they assert: "The President has enumerated
powers, and what is not enumerated is impliedly denied tohet. In-
clusio unius est exclusio alterius." [Memorandum for Petitioners,
p.4; Rollo p.233.1This argument brings to mind the institution of
the U.S. Presidency after which ours is legally patterned.3
Corwin, in his monumental volume on the President of the
United States grappled with the same problem' He said;
,177 SCRA668 (1989).
)ld. at 689-692.
rThe Philippinc presidency under the 1935 constitution was patterned in large measure
llicr rhc Amcrican prcsidency. lrut trt the outset, it rnust be pointed out that the Philippine govern-
lrcnt t:stablishcd un{er t[c c(rtstitLlti(nls ol l9.l5. l97i] and l9U7 is a unitary government with
gcrrcrnl pswcrs urrlikc tlurt gl thc tlrritcrl Stutcs whiclr is t lcdcral governntent with linrited and
crrgrrrcrulecl powcrs. liven so, llrt lxrwcts ol lhc pn'sitlcnl ol lhc tlrtitctl Stalcs hltvc throttgh the
yclrs growrr. rlevckrpcrl rtrul lrrkerr slrnp lrr slu(k'nls ()l lllnl l)rcsi(lctrey httvc tlt:tttollslrttlcll.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Article II is the most loosely drawn chapter of the
Constitution. To those who think that a constitution ought
to settle everything beforehand it should be a nightmare; by
the same token, to those who think that constitution makers
ought to leave considerable leeway for the future play ofpo-
litical forces, it should be a vision realized.
We encounter this characteristic of Article II in its
opening words: "The executive power shall be vested in a
President of the United States of America." xxx.[The Pres-
ident: Office and Powers, 1787-1957, pp. 3-4.1
Reviewing how the powers of the U.S. President were exer-
cised by the different persons who held the office from Washington
to the early 1900's, and the swing from the presidency by commis-
sion to Lincoln's dictatorship, he concluded that "what the presi-
dency is at any particular moment depends in important measure
on who is President." [At 30.]
This view is shared by Schlesinger, who wrote in The Impe-
rial Presidency:
For the American Presidency was a peculiarly personal
institution. It remained, of course, an agency of government
subject to unvarying demands and duties no matter who was
President. But, more than most agencies of government , it
changed shape, intensity and ethos according to the man in
charge. Each President's distinctive temperament and char-
acter, his values, standards, style, his habits, expectations, id-
iosyncrasies, compulsions, phobias recast the White House
and pervaded the entire government. The executive branch,
said Clark Clifford, was a chameleon, taking its color from
the character and personality of the President. The thrust of
the office, its impact on the constitutional order, therefore
altered from President to President. Above all, the way each
President understood it as his personal obligation to inform
and involve the Congress, to earn and hold the confidence of
the electorate and to render an accounting to the nation and
posterity determined whether he strengthened or weakened
the constitutional order. lAt 212-213.1
We do hot say that the presidency is what Mrs. Aquino says
it is or what she does but, rather, that the consideration of tradition
and the development of presidential power under the different con-
stitutions are essential for a completc understanding of thc extent
of and limitations to the Prcsidcnt's powcrs undcr thc l9tt7 (irn-
Sec. I ART. VII - EXECUTIVE DEPARTMENT
stitution. The 1935 Constitution created a strong President with
explicitly broader powers than the U.S. President. The 1973 Con-
stitution attempted to modify the system of government into the
parliamentary type, with the President as the mere figurehead, but
through numerous amendments, the President became even more
powerful, to the point that he was also the de facto Legislature. The
1987 Constitution, however, brought back the presidential system
of government and restored the separation of legislative, executive
and judicial powers by their actual distribution among the three
distinct branches of government with provision for checks and bal-
ances.
It would not be accurate, however, to state that "executive
power" is the power to enforce the laws, for the President is head
of state as well as head of government and whatever powers inhere
in such positions pertain to the office unless the Constitution itself
withholds it. Furthermore, the Constitution itself provides that the
execution of the laws is only one of the powers of the President. It
also grants the President other powers that do not involve the ex-
ecution of any provision of law, e.g., his power over the country's
foreign relations.
On these premises, we hold the view that alqhoUgh-qhp 1987
Co4strlgtion impases Lim{gtioqg qr_!!rg exercise of spe-ci6c powers
of the Pr_esident, it maintains intact what is traditionally considered
as within the scope of "executive poryer." Corollarily, the powers
of the President cannot be said to be limited only to the specific
powers enumerated in the Constitution. In other words, executive
power is more than the sum of specific powers so enumerated.
It has been advanced that whatgver pavaef inherent in the
government that is neither legislative lol jq4fqial h4q 1o be ex-
ecutive. Thus, in the landmark decision of Springe-ylt. Go1grymqnt
of the Philippine Islands,277 U.S.l89 (1928), on the issue of who
between the Q_overnor-General of the Philippines and the l-egis-
may vote the shares of stock held by the Government to
-lature
elect directors in the National Coal Company and the Philippine
National Bank, the U.S. Supreme Court, in upho]din_g$9ppwe1of
the Governor-General to do so said:
... lHlere the members of the legislature who consti-
tutc a rnajority of the "board" and "committee" respectively,
arc not chnrgcd with thc pcrf<trrnancc ol'any legislative func-
tions or with thc tkrirtg rtl'irnything which is in aid rf pcrfbr-
rnuttcc ol'ntty sttelt litttctirttts by thc lt:gislaturc. Putting usiclc
824 THE 1987 CONSTITLTTION
OFTHE REPUBLIC OFTHE PHILIPPINES
for the moment the question whether the duties devolved
upon these members are vested by the Organic Act in the
Governor-General, it is clear that they are qg1lgglslative in
character, and still more clear that they are nqJjq{rglal. ihA
I
fact that they do not fall within the authority of either of t.r
these two constitutes logical groundfor concluding that they '
do fall within that of the remaining one among which the
powers of government are divided. ... [At 202-203; italics
supplied.l
We are not unmindful of Justice.Hdimes, strong dissent.
But in his enduring words of dissent we find reinforcement for
the view that it would indeed be folly to construe the powers of a
branch of government to embrace only what are specifically men-
tioned in the Constitution:
The great ordinances of the Constitution do not estab-
lish and divide fields of black and white. Even the more spe-
cific of them are found to terminate in a penumbra shading
gradually from one extreme to the other. x x x.
It does not seem to need argument to show that how-
ever we may disguise it by veiling words we do not and
cannot carry out the distinction between legislative and ex-
ecutive action with mathematical precision and divide the
branches into watertight compartments, were it ever so de-
sirable to do so, which I am far from believing that it is, or
that the Constitution requires. [At2l}-Zll.]
Justice Isagani Cruz, however, was of a different view:a
In holding rhat the Presidenr of the philippines has residual
powers in addition to the specific powers granted by the Constitu-
tion, the Court is taking a great leap backward and reinstating the
discredited doctrine announced in Planas v. Gil (61phil. 62). This
does not square with the announced policy of the Constitutional
Commission, which was precisely to limit rather than expand pres-
idential powers, as a reaction to the excesses of the past dictator-
ship.
I can only repeat Justice Black's wry observation in the Sreel
Seizure Case (343 U.S. 579) that if it was true that the president
had been granted the totality of executive power, ..it is <Jillicult
4t77 S('RA'715-116
I ART. VII EXECUTIVE DEPARTMENT
Sec. -
to see why our forefathers bothered to add several specific items'
including some trifling ones, ... I cannot accept the view that this
clause is a grant in bulk of all conceivable executive power but
regard it as an allocation to the presidential office of the generic
powers thereafter stated."
But the Court was adamant. ln a per curiam resolution on recon-
sideration it said:'
3. Contrary to petitioners'view, it cannot be denied that
the President, upon whom executive power is vested, has 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 Con-
, stitutional Commission of 1986 to limit the powers of the Presi-
dent 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.
That fhe President has powers other than those expressly stat-
ed in the Constitution is nothing new. This is recognized under the
U.S. Constitution from which we have patterned the distribution of
governmental powers among three (3) separate branches.
Article II, [section] 1, provides that "The Executive
Power shall be vested in a President of the United States of
America." In Alexander Hamilton's widely accepted view,
this statement cannot be read as mere shorthand for the spe-
cific executive authorizations that follow it in [sections] 2
and 3. Hamilton stressed the difference between the sweep-
ing language of article II, section 1, and the conditional lan-
guage of article I, [section] l: "All legislative powers herein
granted shall be vested in a Congress of the United States
..." Hamilton submitted that "[t]he [article II] enumeration
Iin sections 2 and3] ought therefore to be considered, as in-
tended mcrely to specify the principal articles implied in the
dc:linition ol'cxccution power; leaving the rest to flow from
tlrc gcrrelal gllrtt ol' thilt power, interpreted in conformity
witlr ollrt'r llirrls ol tlrc ('onstitution ..."
1l /X Si('ltA l(il| 1(rt ,l(r1 { lq8t)}
826 THE 1987 CONSTITUTION
OF TI{E REPUBLIC OF THE PHILIPPINES
ln Myers v. United States, the Supreme Court ac-
cepted Hamilton's proposition, concluding that the fed-
eral executive, unlike the Congress, could exercise power
from sources not enumerated, so long as not forbidden by
the constitutional text: "The executive power was given in
general terms, strengthened by specific terms where empha-
sis was regarded as appropriate, and was limited by direct
expressions where limitation was needed ..." The language
of Chief Justice Taft in Myers makes clear that the constitu-
tional concept of inherent power is not a synonym for power
without limit; rather, the concept suggests only that not all
powers granted in the Constitution are themselves exhausted
by internal enumeration, so that, within a sphere properly re-
garded as one of "executive" power, authority is implied un-
less there or elsewhere expressly limited. ITRIBE, AMERI-
cAN CONSTTTUTTONAL LAW 158-159 (1978).1
And neither can we subscribe to the view that a recognition
of the President's implied or residual powers is tantamount to set-
ting the stage for another dictatorship. Despite petitioners'strained
analogy, the residual powers of the President under the Constitu-
tion should not be confused with the power of the President under
the 1973 Constitution to legislate pursuant to Amendment No. 6
which provides:
Whenever in the judgment of the President (Prime
Minister), there exists a grave emergency or a threat or im-
minence thereof, or whenever the interim Batasang Pam-
bansa or the regular National Assembly fails or is unable to
act adequately on any matter for any reason that in his judg-
ment requires immediate action, he may, in order to meet
the exigency, issue the necessary decrees, orders, or letters
of instruction, which shall form part of the law of the land.
There is no similarity between the residual powers of the
President under the 1987 Constitution and the power of the Pres-
ident under the 1973 Constitution pursuant to Amendment No. 6.
First of all, Amendment No. 6 refers to an express grant of power.
It is not implied. Then, Amendment No. 6 refers to a grant to the
President of the specific power of legistation.
The doctrine enunciated in these two resolutions will bc rcgrcttcd
when another Ferdinand Marcos emcrgcs as Prcsidcnt.
Sec. 1 ART. VII - EXECUTIVE DEPARTMENT 827
2. Ceremonialfunctions.
In the presidential system,moreover, the presidency includes
many other functions than just being chief executive. Writing about the
American President, Clinton Rossiter said:u
He remains today, as he has always been, the ceremonial
head of the government of the United States, and he must take part
with real or apparent enthusiasm in a range of activities that would
keep him running and posing from sunrise to bedtime if he were
not protected by a cold-blooded staff. Some of these activities are
solemn or even priestly in nature; others, through no fault of his
own, are flirtations with vulgarity. The long catalogue of public
duties that the Queen discharges in England, the President of the
Republic of France, and the Governor General of Canada is the
President's responsibility in this country, and the catalogue is even
longer because he is not a King, or even the agent of one, and is
therefore expected to go through some rather undignified paces
by a people who think of him as a combination of scoutmaster,
Delphic Oracle, hero of the silver screen, and father of multitude.
What Rossiter said of the American President can be said with
equal truth of the Philippine President. True enough, the First Lady, if
there happens to be one and depending on the Lady's inclinations, can
get a fair share of "flirtations with vulgarity." Imelda Marcos as First
Lady certainly did. But the President still retains the lion's share of the
glory.
3. Immunity from suit.
There is no provision in the Constitution clothing the President
with immunity from suit during his tenure. T\e 1973 Constitution had
a specific provision guaranteeing the President's immunity and that of
other executive officers.'
But the 1987 Constitution did not preserve this provision. When
Commissioner Suarez suggested that the President's immunity at least
should be preserved, Father Bernas replied that it was already under-
"rHtj AMljRt('AN PRljslt)EN('Y l4-5 ( 1962).
t"'l'hc l'rcsitlenl shull hc inrrnrrnc lirlrr suit during his tenure.'fherealler, no suit whatsrrever
shnll lic lirr ollicirl uets tkrrr hy hirrr or by (rthcrs 1rursuunt to his spccilic ordcrs." Articlc Vll, Scc-
tiorr IJ, 197.1 (irnltitutiorr.'l'lriscurrrcirrusunnrncnrlrncrrtin I9tlI.
828 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
stood in Philippine jurisprudence that the President may not be sued
during his tenure.8
The basis for this assertion was the case of Forbes, etc. v. Chuoco
Tiaco and Crossfield,n a suit against the Governor General. Speaking
through Justice Johnson the Court said:
The principle of non-liability, as herein enunciated, does not
mean that the judiciary has no authority to touch the acts of the
Governor-General; that he may, under cover of his office, do what
he will, unimpeded and unrestrained. Such a construction would
mean that tyranny, under the guise of the execution of the law,
could walk defiantly abroad, destroying rights of person and of
property, wholly free from interference of courts or legislatures.
This does not mean, either, that a person injured by the executive
authority by an act unjustifiable under the law has no remedy, but
must submit in silence. On the contrary, it means, simply, that the
Governor-General, like the judges of the courts and the members
of the Legislature, may not be personally mulcted in civil dam-
ages for the consequences of an act executed in the performance of
his official duties. The judiciary has full power to, and will, when
the matter is properly presented to it and the occasion justly war-
rants it, declare an act of the Governor-General illegal and void
and place as nearly as possible in status quo any person who has
been deprived his liberty or his property by such act. This remedy
is assured to every person, however humble or of whatever coun-
try, when his personal or property rights have been invaded, even
by the highest authority of the state. The thing which the judiciary
can not do is mulct the Governor-General personally in damages
which result from the performance of his official duty, any more
than it can a member of the Philippine Commission or the Philip-
pine Assembly. Public policy forbids it.
Neither does this principle of nonliability mean that the
chief executive may not be personally sued at all in relation to
acts which he claims to perform as such official. On the contrary,
it clearly appears from the discussion heretofore had, particular-
ly that portion which touched the liability of judges and drew an
analogy between such liability and that of the Governor-General,
that the lattei is liable when he acts in a case so plainly outside of
EII RECORD 423.
'q16 Phil. 534 ( r9l0)
ART. VII _ EXECUTIVE DEPARTMENT 829
his power and authority that he can not be said to have exercised
discretion in determining whether or not he had the right to act.
What is held here is that he will be protected from personal li-
ability for damages not only when he acts within his authority,
but also when he is without authority, provided he actually used
discretion and judgment, that is, the judicial faculty, in determin-
ing whether he had authority to act or not. In other words, he is
entitled to protection in determining the question of his authority.
If he decide wrongly, he is still protected provided the question of
his authority was one over which two men, reasonably qualified
for that position, might honestly differ; but he is not protected if
the lack of authority to act is so plain that two such men could not
honestly differ over its determination. In such case, he acts, not as
Governor-Ceneral but as a private individual, and, as such, must
answer for the consequences ofhis act."
The subsistence of this doctrine under the 1987 Constitution was
confirmed in Soliven v. Judge Makasiarto which assumed that indeed
the President enjoys immunity. The Court said:
The rationale for the grant to the President of the privilege of
immunity from suit is to assure the exercise of Presidential duties
and functions free from any hindrance or distraction, considering
that being the Chief Executive of the Government is a job that,
aside from requiring all of the office-holder's time, also demands
undivided attention.
But this privilege of immunity from suit, pertains to the
President by virtue of the office and may be invoked only by the
holder of the office; not by any other person in the President's be-
half. Thus, an accused in a criminal case in which the President is
complainant cannot raise the presidential privilege as a defense to
prevent the case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent
the President from waiving the privilege. Thus, if so minded the
President may shed the protection afforded by the privilege and
submit to the court's jurisdiction. The choice of whether to exer-
cise the privilege or to waive it is solely the President's preroga-
tive. It is a decision that cannot be assumed and imposed by any
other person.
to11t7 s('l{A tq l. l9', ( l9tltt)
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Immunity from suit came up again in the case of Estrada v. Desi-
erto.lt Estrada, prosecuted for plunder after having left the presidency,
pleaded presidential immunity from suit as his defense. Moreover, he
claimed that he could not be sued before the impeachment could be
terminated.
Before resolving the contention, the Court harked back to history.
First it recalled Forbes, already mentioned above. Next it noted that
the 1935 Constitution did not contain any provision on immunity, but
that the 1973 Constitution did in the following words in its Section 17,
Article VII:
The President shall be immune from suit during his tenure.
Thereafter, no suit whatsoever shall lie for official acts done by
him or by others pursuant to his specific orders during his tenure.
The immunities herein provided shall apply to the incum-
bent President referred to in Article XVII of this Constitution.
This provision came in as an amendment enacted in 1981. The
immunity granted by the first sentence while the President was in of-
fice was absolute. During the deliberations on this amendment by the
Interim Batasang Pambansa, there was this exchange between Assem-
blyman Arturo Tolentino and Minister Ricardo Puno
Mr. Tolentino: ... if we are starting from the assumption
or from the principle that the mnntle of immunity is not a sanction
for wrongdoing, then, so long as it is shown that a wrongful act, a
criminal act or an act in violation of law has been committed in the
performance or in the execution of a lawful order, then there will
be no mantel of protection at all.
Mr. Puno. Mr. Speaker, the allegation there seeks to negate
immunity.
Clearly, therefore, the intent was to give the President absolute
immunity even for wrongdoing committed during his tenure.'2
rrG.R. Nos. 146710-15 and 146738, March2,20Ol.
r2BenNes, Przrrp nNo CoNsrnunoN,u. L,rw (1984) 530-53 I . Pacif ico Agahirr lttilkcs
point in Vrcexre G. SrNco Profbssional Chair Lecturc cntitlc(|, "l'rcsirlcnliitl ltnntuttity Arrtl All 'l'hc
King's Men: The l-aw Ol'Privilcgr: As A l)cll.nsc'lir Actions lix l)irrnngcs" citcd lty tlrc Sttplctttc
(i)ltrt.
Sec. I ART. VII - EXECI,'TIVE DEPARTMENT
The second sentence, however, dealing with immunity after ten-
ure, was only for official acts.
The Court continued with its historical account thus:
The 1973 Constitution ceased to exist when President Mar-
cos was ousted from office by the People Power revolution in
1986. When the 1987 Constitution was crafted, its framers did not
reenact the executive immunity provision of the 1973 Constitu-
tion. The following explanation was given by delegate J. Bernas,
viz.:
Mr. Suarez. Thank you.
The last question is with reference to the Committee's
omitting in the draft proposal the immunity provision for the
President. I agree with Commissioner Nolledo that the Com-
mittee did very well in striking out this second sentence, at
the very least, of the original provision on immunity from
suit under the 1973 Constitution. But would the Committee
members not agree to a restoration of at least the first sen-
tence that the President shall be immune from suit during his
tenure, considering that if we do not provide him that kind
of an immunity, he might be spending all his time facing
litigations, as the President-in-exile in Hawaii is now facing
- litigations almost daily?
Fr. Bernas. The reason for the omission is that we con-
sider it understood in present jurisprudence that during his
tenure he is immune from suit.
Mr. Suarez. So there is no need to express it here.
Fr. Bernas. There is no need. It was that way before.
The only innovation made by the 1973 Constitution was to
make that explicit and to add other things.
Mr. Suarez. On that understanding, I will not press for
any more query, Madam President.
Finally the Court went on to resolve the issue:
We now come to the scope of immunity that can be claimed
by petitioncr as a non-sitting President. The cases filed against pe-
lltr sillllc titioner Estrada arc criminal in character. They involve plunder,
bribcry tnd gruli untl corruption. lly no strctch of the imagination
l crn thcsc crirrrcs. cspccinlly plrrrxlcr which carrics thc dctth pcn-
I
l"
 THE 1987 CONSTITI-ITION
OF THE REPUBLIC OF THE PHILIPPINES
alty, be covered by the alleged mantle of immunity of a non-sitting
president. Petitioner cannot cite any decision of this Court licens-
ing the President to commit criminal acts and wrapping him with
post-tenure immunity from liability. It will be anomalous to hold
that immunity is an inoculation from liability for unlawful acts and
omissions. The rule is that unlawful acts of public officials are not
acts of the State and the officer who acts illegally is not acting as
such but stands in the same footing as any other trespasser.
It should be noted that the language of the Court goes beyond
merely saying that a non-sitting President does not enjoy immunity
from suit. It suggests that even a sitting President, unlike under the 1973
Constitution, is not immune from suit for non-official acts or for wrong-
doing:
Indeed, a critical reading of current literature on execu-
tive immunity will reveal a judicial disinclination to expand the
privilege especially when it impedes the search for truth or im-
pairs the vindication of a right. ln the 1974 case of US v. Nixon,t'
US President Richard Nixon, a sitting President, was subpoenaed
to produce certain recordings and documents relating to his con-
versations with aides and advisers. Seven advisers of President
Nixon's associates were facing charges of conspiracy to obstruct
justice and other offenses which were committed in a burglary of
the Democratic National Headquarters in Washington's Watergate
Hotel during the 1972 presidential campaign. President Nixon
himself was named an unindicted co-conspirator. President Nixon
moved to quash the subpoena on the ground, among others, that
the President was not subject to judicial process and that he should
first be impeached and removed from office before he could be
made amenable to judicial proceedings. The claim was rejected
by the US Supreme Court. It concluded that "when the ground
for asserting privilege as to subpoenaed materials sought for use
in a criminal trial is based only on the generalized interest in con-
fidentiality, it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justicc."
In the 1982 case of Nixon v. Fitzgerald,ra the US Supreme Court
further held that the immunity of the President from civil clanr-
ages covers only "official acts." Recently, the US Suprcrnc (ltlurt
r14l{i ll.S. (rlill ( 197,1). Olltt't-lixrltrolt's otttillt'tl.
14457 US 7l l ( l()t{.1).
ART. VII - EXECUTIVE DEPARTMENT 833
had the occasion to reiterate this doctrine in the case of Clinton v.
Jonests where it held that the US President's immunity from suits
for money damages arising out of their official acts is inapplicable
to unofficial conduct.
There are more reasons not to be sympathetic to appeals to
stretch the scope of executive immunity in our jurisdiction. One
of the great themes of the 1987 Constitution is that a public of-
fice is a public tmst. It declared as a state policy that "(t)he State
shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and comrption." It
ordained that "(p)ublic officers and employees must at all times be
accountable to the people, serve them with utmost responsibility,
integrity, loyalty, and efficiency, act with patriotism and justice,
and lead modest lives." It set the rule that "(t)he right of the State
to recover properties unlawfully acquired by public officials or
employees, from them or from their nominees or transferees, shall
not be barred by prescription, laches or estoppel." It maintained
the Sandiganbayan as an anti-graft court. It created the office ofthe
Ombudsman and endowed it with enormous powers, among which
is to "(i)nvestigate on its own, or on complaint by any person, any
act or omission of any public official, employee, office or agency,
when such act or omission appears to be illegal, unjust, improper,
or inefficient." The Office of the Ombudsman was also given fis-
cal autonomy. These constitutional policies will be devalued if we
sustain petitioner's claim that a non-sitting president enjoys immu-
nity from suit for criminal acts committed during his incumbency.
As to the claim that the suit must await the termination of the im-
peachment proceeding the Court said:
We reject his argument that he cannot be prosecuted for the
reason that he must.first be convicted in the impeachment proceed-
ings. The impeachment trial of petitioner Estrada was aborted by
the walkout of the prosecutors and by the events that led to his
loss of the presidency. Indeed, on February 7,2001, the Senate
passed Senate Resolution No. 83 "Recognizing that the Impeach-
ment Court is Functus Officio." Since the Impeachment Court is
now .functus rfficio, jt is untenable for petitioner to demand that
hc should lirst bc inrpcachccl and then convicted before he can be
proscculctl. 'l'hc plcir il'grirrrlctl. worrl<l put a pcrpetual bar against
r'5.\) llS (rl{l ( lr)r)/)
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
his prosecution. Such a submission has nothing to commend itself
for it will place him in a better situation than a non-sitting Presi-
dent who has not been subjected to impeachment proceedings and
yet can be the object of a criminal prosecution. To be sure, the
debates in the Constitutional Commission make it clear that when
impeachment proceedings have become moot due to the resigna-
tion of the President, the proper criminal and civil cases may al-
ready be filed against him, vz.:
"xxx xxx
Ms. Aquino. On another point, if an impeachment pro-
ceeding has been filed against the President, for example,
and the President resigns before judgment of conviction has
been rendered by the impeachment court or by the body,
how does it affect the impeachment proceeding? Will it be
necessarily droPPed?
Mr. Romulo. If we decide the purpose of impeachment
to remove one from office, then his resignation would ren-
der the case moot and academic. However, as the provision
says, the criminal and civil aspects of it may continue in the
ordinary courts."
This is in accord with our ruling in In Re: Saturnino Ber-
mudezt6 that "incumbent Presidents are immune from suit or from
being brought to court during the period of their incumbency and
tenure" but not beyond. Considering the peculiar circumstance that
the impeachment process against the petitioner has been aborted
and thereafter he lost the presidency, petitioner Estrada cannot
demand as a condition sine qua non to his criminal prosecution
before the Ombudsman that he be convicted in the impeachment
proceedings. . . .
In sum, although the new Constitution has not reproduced the ex-
plicit guarantee of presidential immunity from suit under the 1973 Con-
ititution, presidential immunity during tenure remains part of the law.
What has been rejected by the new Constitution is the expansive notion
of immunity in the Marcos Constitution. Once out of office, however,
even before the end of the six year term, immunity for non-official acts
is lost.
16t45 S('RA 160 ( l9tt6)
Sec. I ART. VII - EXECUTIVE DEPARTMENT
4. Executiveprivilege.
Executive privilege was discussed extensively in Senate v. Ermi-
tatT which dealt with Executive Order 464 imposinga gagon executive
officials summoned to a Senate legislative investigation. In simplest
terms, executive privilege is the power of the President to withhold cer-
tain types of information from the courts, the Congress, and ultimately
the public.
The types of information include those which are of a nature that
disclosure would subvert military or diplomatic objectives, or informa-
tion about the identity of persons who furnish information of violations
of law, or information about internal deliberations comprising the pro-
cess by which government decisions are reached.
Section 2(a) of E.O. No. 464, upheld as valid by the Supreme
Court, enumerated the following which are taken from earlier decisions:
l. Conversations and correspondence between the President
and the public official covered by this executive order;
2. Military, diplomatic and other national security matters
which in the interest of national security should not be divulged;
3. Information between inter-government agencies prior to the
conclusion of treaties and executive agreements;
4. Discussion in close-door Cabinet meetings;
5. Matters affecting national security and public order.
Of these types of information perhaps the trickiest ones are those
about internal deliberations leading to a government decision. But the
decision itself, once reached, unless it is about confidential military or
diplomatic matters, can become a matter of public concern. Certainly,
for instance, if a decision reached is criminal, it cannot be privileged.
More to the point, Ermita said, "Executive privilege, as already
discussed, is recognized with respect to information the confidential
nature of which is crucial to the fulfillment of the unique role and
responsibilities of the executive branch, or in those instances where
exemption from disclosure is necessary to the discharge of highly im-
portant executive responsibilities. The doctrine of executive privilege is
 THE 1987 CONSTITUTION Sec.
OF THE REPUBLIC OF THE PHILIPPINES
thus premised on the fact that certain information must, as a matter of
necessity, be kept confidential in pursuit of the public interest. The priv-
ilege being, by definition, an exemption from the obligation to disclose
information, the necessity must be of such high degree as to outweigh
the public interest in enforcing that obligation in a particular case."
Put differently, the Court said that a claim of privilege may be
valid or not "depending on the ground invoked to justify it and the con-
text in which it is claimed. For in determining the validity of a claim
of privilege, the question that must be asked is not only whether the
requested information falls within one of the traditional privileges, but
also whether that privilege should be honored in a given procedural
setting." From this the Court concluded that it is not for one claiming
executive privilege "to unilaterally determine that respondents' duly-
issued Subpoena should be totally disregarded."
One must also see executive privilege vis-d-vis the power of Con-
gress to use compulsory process. "While the executive branch is a co-
equal branch of the legislature, it cannot frustrate the power of Congress
to legislate by refusing to comply with its demands for information. ...
Only one executive official may be exempted from this power
President."
- the
Another point which the Court emphasized in Ermita was that
a claim of privilege must be stated with sufficient particularity to en-
able Congress or the court to determine its legitimacy. "Absent then a
statement of the specific basis of a claim of executive privilege, there
is no way of determining whether it falls under one of the traditional
privileges, or whether, given the circumstances in which it is made, it
should be respected." The lack of specificity renders an assessment of
the potential harm resulting from disclosure impossible. However, Con-
gress must not require the executive to state the reasons for the claim
with such particularity as to compel disclosure of the information which
the privilege is meant to protect.
Senate v. Ermita was followedby Neri v. Senate.In a Senate hear-
ing involving a contract with a Chinese firm, Neri in his capacity as
Chairman of National Economic Development Authority (NEDA) was
asked three questions: (a) Whether the President followed up the (NBN)
project; (b) Whether the President directed him to prioritize the ZTE2
(c) Whether the President said to go ahead and approvc thc pro jcrct after
being told about the alleged bribe? Neri claimcd cxccutivc: privilcgc.
1 Sec. I ART.VII - EXECUTIVEDEPARTMENT 837
The type of executive privilege claimed here was "presidential
communication privilege." Presidential communication is presumptive-
ly privileged; but the presumption is subject to rebuttal. Thus, whoever
challenges it, must show good and valid reasons related to the public
welfare. The Court ruled that the Senate failed to controvert the pre-
sumption.'8
The Court could have asked for an in camera session for Neri to
explain his claim within the hearing of the Court alone. Such a proce-
dure, followed by American practice, could have enabled the Court to
sift what was privileged and what was not and then to allow the revela-
tion of what was not privileged. But the Court did not use the procedure,
and relied instead on presumption. Thus the Chief Justice commented
that executive privilege was established by guesswork.
The decision has the dangerous effect of blocking discovery of
wrongdoing by the mere claim of presumptive privilege.
A lesser anomaly in the decision is its rejection of the manner in
which the Senate approved its show cause order to Secretary Neri. The
Senate approved the order through the collection of a sufficient number
of signatures and not in a meeting. The Court found this to be an invalid
procedure. But it is not for the Court to tell the Senate what its vot-
ing procedure should be. As our own Court said in 1960, "Courts have
declared that 'the rules adopted by deliberative bodies are subject to
revocation, modification or waiver at the pleasure of the body adopting
them.'And it has been said that 'Parliamentary rules are merely proce-
dural, and with their observance, the courts have no concern. They may
be waived or disregarded by the legislative body."' Provided, of course,
private rights are not violated.
The Court too does modify or even dispense with its own rules.
What is good for the goose should be good for the gander.
5. The Cabinet.
Although the Constitution mentions the Cabinet a number of
times,'u the Cabinet itself as an institution is extra-constitutionally cre-
atcd. It essentially consists of the heads of depaftments who through
usagc have frlrmed a body of presidential advisers who meet regularly
ri( i.R. No. llt064.l, Mureh 25. 2(X)ll. Rcconsitlcrcrl Scptembcr 5,20011
r"/r.1'., Arlir'lc Vll, Sccliotts ,1, I l, nrul I t.
838 TI{E 1987 CONSTITUTION Sec.2 Sec.3 ART. VII EXECUTIVE DEPARTMENT
OF THE REPUBLIC OF THE PHILIPPINES
-

with the President. Although they are the principal officers through sessed "on the day of the election for President," that is, on the day set
whom the President executes the law, the President, through his power by law on which the votes are cast.
of control over them and his power to remove them at will, remains the
The residency requirement has the same meaning as "residence"
chief of administration. Cabinet members as individuals and the Cabi-
in election law. One is a resident of the Philippines if he is "domiciled"
net as institution possess no authority over the President. They serve at
there, that is, there must concur (1) bodily presence in the locality, (Z)
the behest and pleasure of the President.
an intention to remain there
- animus mnnendi, and (3) an intention
to abandon the old domicile, if he had one, or animus non revertendi.
Snc.2. No prnsoN MAy BE ELEcTED Pnrsmnnr uNLEss rrn rs
While, however, bodily presence in the locality is required, the residen-
A NATURAL-BoRN CITIZEN oF TIiE PHILrtnns, I REGISTERED vorER,
ABLE TO READ AIID WRITE, AT LEAST FORTY YEARS OF AGE ON TITE DAY
cy requirement allows for temporary physical absences provided that
oF TIIE ELEcrIoN, AND A RESIDENT oF THE Pmlrpprrrs FoR AT LEAsr the animus revertendi to the domicile is never abandoned.r It should
TEN YEARS IMMEDIATELY PRECEDING SUCH ELECTION. be noted that the residence requirement does not specify a province or
city or legislative district. It is enough that he has a domicile anywhere
1. in the Philippines.
Qualifications of the President.
To be elected President, a person must be a natural-born citizen of Snc.3. THERE sHALL sn e VIcB-PREsTDENT wlro SHALL HAvE
the Philippines, a registered voter, able to read and write, at least forty THE SAME QUALIFICATIONS AND TERM OF OFFICE AND BE ELECTED WITH
years of age on the day of election for President, and a resident of the AND rN THE sAME MANNER AS THE PnrsmeNr. Hn u,ly BE REMovED
Philippines for at least ten years immediately preceding such election. FRoM oFFrcE IN TI{E SAME MANNER As rHE PnrsrnnNr.
The applicable definition of a natural born citizen of the Philip- Tnr Vrcn-PnEsTDENT MAy BE ApplorNTED As I MsMnrn oF THE
pines is that found in Article IV, Section 2: "Natural-born citizens are CABTNET. Sucn lrporNrMENT REeuIREs No C0NFTRMATION.
those who are citizens of the Philippines from birth without having to
perform any act to acquire or perfect their Philippine citizenship. Those 1. The Vice-hesident.
who elect Philippine citizenship in accordance with paragraph (3), Sec-
The Vice-President is essentially a President in reserve. Attempts
tion I hereof shall be deemed natural-born citizens."
to give him a constitutional function other than just being Vice-pres-
An illegitimate child of an American mother and a Filipino father ident failed.22 Hence, he has the same qualifications as a President, is
is a natural born Filipino citizen if paternity is clearly proved. Hence elected with and to the same term as the President, and may be removed
such person would be qualified to run for President. This was the case from office in the same manner as the President; but, unless he is ap-
of Fernando Poe, Jr.2o pointed as a member of the Cabinet or is given some executive func-
The President must also have the qualifications of a voter pre- tion, as Vice-President Estrada was who was made Chairman of the
scribed in ArticleY Section 1. Beyond such qualifications he must also Presidential Anti-Crime Committee, he has no other function than to be
be a "registered voter." The literacy qualification has been specified prepared to assume the presidency should a vacancy in the office arise.
because under Article V literacy, unlike in the 1935 Constitution, is not In deference to his office, an appointment as department head ex-
required for the exercise of the right of suffrage. tended to him does not need the consent of the Commission on Ap-
The minimum age for President is forty years. Under the 1935 pointments. But the President is not obliged to give the Vice-President
Constitution it was also forty years. The age qualification must be pos-
llSrr'( iallcgo v. Vcru. 7.] Phil. 4-53, 4-55-6 ( l94l ); Faypon v. Quirino, 96 phll.Z94,2gg3}{)
( te54). il Rt,:('oRI))tr't'illt ('()Ns]'t't't.t't'loNAt. CoMMlssloN 3q) ( l9tt6).
(
tecson v. COMELEC, G.R. No. 161434, March 3, 2(XX rrll Rl('()Rl) 4l | 4.4 lt{,15.
 Sec.4 ART, VII - EXECUTIVE DEPARTMENT
840 THE 1987 CONSTITUTION Sec.4
OF THE REPUBLIC OF THE PHILIPPINES

Tnn SupnnuE CouRTr sITTING EN BANC, sHALL BE THE soLE

acabinet position because the President must be free to choose for his AND
JUDGE OF ALL CONTESTS RELATING TO THE ELECTION' RETURNS'
Cabinet people who are his trusted personal choices.23 OF THE PNTSTONIT OR VICE-PRESIDENT' AND MAY
QUALIFICATIONS
PR,OMULGATE ITS RULES FOR THE PURPOSE.
Src.4. TnB PnrsmnNT AND rnr Vrcn pnBsronNr sHALL BE
ELECTED BY DIRECT VOTE OF TIIE PEOPLE FOR A TERM OF SIX YEARS
wHrcH SITALL BEGrN AT NooN oN THE
1. Election of the President and Vice'President'
DAy oF JuNn Nnxr
TTTTRTIETH
FOLLOWING THE DAY OF THE ELECTION AND SIIALL END AT NOON OF The 1935 Constitution provided for a President elected by direct
THE sAME DATE slx Tnn pnpsrnnNT sHALL Nor
yEARs TITEREAr-TER. vote of the people. The original 1973 Constitution had wanted to ex-
BE ELTGTBLE FoR ANy REELECTToN. No ppnsox wrro HAs succEEDED periment not only with a ceremonial President elected by the legislature
ls Pnnsronr.rr AND HAs sERvED AS sucH FoR MoRE THAN FouR yEARS but also with a chief executive, the Prime Minister, similarly elected by
SIIALL BE QUALIFIED FOR ELECTION TO THE SAME OFFICE AT ANY TIME. the legislature. The 198 1 revision restored the concept of a chief execu-
No VIcn-PnESIDENT sHALL sERvE FoR MoRE THAN Two tive directly elected by the people as mofe consonant with Philippine
SUCCESSIVE TERMS. VOT,UNT,INY RENTJNCIATION OF THE OFFICE FOR experience. The 1987 Constitution has preserved that concept. In like
ANY LENGTII OF TIME SHALL NOT BE CONSIDERED AS AN INTERRUPTION *unn"r, the Vice-President is elected by direct vote of the people'
IN THE CONTINTIITY OF THE SERVICE FOR THE FULL TERM FOR WHICH
IIE WAS ELECTED. 2. Term of the President and Vice'President.
UNrrss ornnRwrsE pRovrDED By LAw, THE REGULAR ELECTIoNS The President is given a fixed term of six years to begin at noon on
pon PnnsmpNr lNn VIcB-PnESTDENT sHALL BE HELD oN THE sECoND June 30th following the day of the election and to end at noon also on
Moxnry or M.ly. June 30th "six years thereafter." It was argued that six years was long
oF EvERy ELEcrroN ron pnssrnrNrlxt Vrcn-
Tnr nnrunns enough for a good President to implement his programs and, rather op-
Pnrsronltr DULy cERTTFIED By rHEBoARD oF cANvASsERS oF EACH timistically, that with the constraints built around the presidency, a bad
pRovrNCE oR crry, sHALL BE TRANSMTTTED To rHE CoNcnnss, one would not succeed in accomplishing his evil designs''o
DTRECTED To rHE PnrsInBNr oF THE SBxlrr. UpoN npcrryt oF THE
The fixing of the exact time and date for the start and ending of
cERTTFICATES oF cANvASs, rnr PnnsrtnNT oF THE SnNarp srrALL,
the term excludes the right to "hold-over." At noon on June 30 six years
NOT LATER THAN THIRTY DAYS AFTER THE DAY OF THE ELECTION,
after the start of the term, either the newly elected President takes over
opEN ALL THE cERTTFICATES IN TrrE pRESENcE oF THE SnNlrn lNn
or the rule on filling of vacancies found in Section 7 becomes operative.
THE HousE or RBpnnsnNTATrvES IN JorNT puBLIC sESsIoN, AND THE
Concnrss, upoN DETERMINATToN oF THE AUTHENTrcrry AND DUE An innovation introduced by the 1986 Constitutional Commission
EXECUTION THEREOF IN THE MANNER PROVIDED BY LAW, CANVASS THE is the limit on the number of terms a President and Vice-President may
VOTES. serve. A President is not eligible for any re-election for that office, that
THs pnnsoN HAvING TrrE is, either immediately after his term or even after an interval of one or
HTGHEST NUMBER oF vorns sHAr.r.
BE PROCLAIMED ELECTED, BUT IN CASE TWO OR MORE SHALL HAVE more terms. It was thought that the elimination of the prospect of re-
AN EQUAL AND HIGHEST NTJMBER OF VOTES, ONE OF THEM SHALL election would make for a more independent President capable of mak-
FORTHWITH BE CHOSEN BY TIIE VOTE OF A MAJORITY OF ALL THE
ing correct even if unpopular decisions.,' The prohibition of re-election
Mnunrns oF BorH Housns oF THE CoNcnnss, vorING sErARATELv. applies to any person who has served as President.'u
Tnr CoNcnESS sHALL pROMULGATE rrs RULEs FoR .nHFl
211d. at2O'l .
CANVASSING OF THE CERTIFICATES.
25\d. at2O8.The whole exercise of trying to fix the term of the President, Vice-President'
Scrratrrrs. and Rcprcscntativcs is discussetl at grcat lcngth, id.204-438,548-554,passim'
r,,ln l()92, as l)rcsirlcnt Atluino was ah0rrt lo linish her term, there was some debate whether
thc nrlc w6rrltl apply to lrcr eonsitlcring thirt, Artitlc XVlll, Sution 7 (lcclarl:(l ltcr clcctetl under
'z3|d. at J9O.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
A less restrictive limitation is imposed on persons who serve as
Vice-President. They may not serve for more than two successjye terms.
But voluntary renunciation of the office for any length of time shall not
be considered as an intemrption in the continuity of a Vice-president's
service. Moreover, if the Vice-President succeeds to the presidency, if
he serves for less than four years, he may run for election as president
since in his case it would not be a re-election.
3. The Congress as national board ofcanvassers.
The fourth, fifth, and sixth paragraphs of Section 4 make the
Congress the national board of canvassers for presidential and vice-
presidential elections. The power of the present Congress, moreover,
is broader than that of the Congress under the 1935 Constitution. The
Congress of the 1935 Constitution was also, through Article VII, Sec-
tion 2, the board of canvassers for presidential election. Describing that
function, the Court said in Lopezv. Roxas:21 "Congress merely acts as a
national board of canvassers, charged with the ministerial and executive
duty to make said declaration, on the basis of the election returns duly
certified by provincial and city board of canvassers." The imposition on
Congress of such ministerial and executive duty did not give to Con-
gress the power "to determine whether or not said duly certified elec-
tion returns have been irregularly made or tampered with, or reflect the
true result of the elections in the areas covered by each, and, if not, to
recount the ballots cast, and, incidentally thereto, pass upon the valid-
ity of each ballot or determine whether the same shall be counted, and,
in the affirmative, in whose favor, which Congress has power to do."r"
The Batasan of the 1973 Constitution had powers similar to those
of the 1935 Congress. The 1987 Constitution has departed from the
old rule. The clear intent of the 1987 provision is to give to Congress
as a canvassing body more powers. Congress now is given authority
to make a "determination of the authenticity and due execution" of the
returns coming from provincial and city boards of canvassers in ac-
cordance with the manner to be provided by law, that is, by Congress
the 1973 Constitution. It was largely an academic debate because she herselfdisavowcd any dcsirc
to run for re-election.
'??17
SCRA756,769 (July 28, 1966).
28nd.
Sec.4 ART. VII _ EXECUTIVE DEPARTMENT
itself. What this means in the concrete is explained in the following
exchange:2n
MR. MAAMBONG. Madam President, the word "ministe-
rial" always been interpreted by the Supreme Court as applicable
to the canvass made by the NationalAssembly, and the reason why
we did not put the word "ministerial" in the Article is, it has been
understood in the case of Roxas vs. Lopez and in other cases. When
we used the words "authenticity" and "genuineness," the question
refers to the problem of whether or not the ministerial function
is already non-ministerial. The answer is, it is still ministerial
but when we say "authenticity and due execution," what it really
means is that the National Assembly will look at the certificates of
canvass and find out from the face of the document whether there
are flaws in the execution and authenticity of the document' That
is what it means.
MR. NOLLEDO. Madam President, in the event that the
legislature finds out that there are serious defects in the certificates
of canvass - as when the seals are broken, there are a lot of era-
sures and then many of them are unsigned and, therefore, authen-
ticity appears to be questionable what will happen? -
MR. MAAMBONG. The answer to that is in the phrase "in
the manner provided by law." The Committee had to insert the
phrase "in the manner provided by law" so that the legislature it-
self will find out and will make it very specific as to what flaws or
deficiencies in the certificates of canvass can be taken cognizance
of by the canvassing board of tellers, because as of now the guid-
ing regulations that govern the National Assembly, as I mentioned
in the Committee, are: the rules and regulations of the COMELEC'
the Omnibus Election Code, the jurisprudence from the decisions
of the Supreme Court. All these things taken together, the legisla-
ture is given a notice by using the phrase "in the manner provided
by law," so that it will make a determination now of what are the
points which the board of tellers can take cognizance of, because
it is not very clear right now under the laws and regulations, and
as a matter of fact, that was one of the controversies which arose
during the canvassing of the votes of President Aquino and former
President Marcos in the last Batasan.
lul l Rli('( )Rl ) tt l() 1, 4{) l . scc ttl xt irl. nt 4 l.}-4 l 5, tnd Appcntlix' ri. il 7'1 5 -77 6
 THE 1987 CONSTITT]TION Sec.4
OFTHE REPUBLIC OFTHE PHILIPPINES
It should be noted, however, that the extent to which Congress as a
canvassing body may determine "authenticity and due execution" must
only be "in the manner provided by law." congress will have to devise
the scope of its own power.
The responsibility for the canvassing of the votes in a presidential
and vice-presidential election and proclaiming the winners is given by
the constitution to both houses of congress in joint session and not to
the COMELEC.,.
The controversy that attended the election of Gloria Macapagal-
Arroyo gave the Court the opportunity to rule on the meaning of the
power of Congress. When Congress formed a Joint Committee perform
the task of a preliminary count of the votes, the authority of the Com-
mittee was challenged on the ground that canvassing belong to Con-
gress as a whole. The Court, however, ruled that the preliminary task
could be done by a smaller body whose work, however, must be submit-
ted to Congress as a whole for its review and approval.3'
When the time for final adjournment of Congress came, the can-
vassing had not yet been completed. could congress continue the can-
vass? The court pointed out that the final adjournment terminated the
law-making function of Congress but that the non-law making func-
tions, such as canvassing, could continue until the term of the members
ended.,z
4. Breaking a presidential or vice-presidential tie.
More than merely functioning as a board of canvassers, Congress
also has authority to break a tie in presidential and vice-presidential
elections. The fifth paragraph of section 4 provides the method for
breaking the tie in case "two or more shall have an equal and highest
number of votes." The tie is broken by "vote of a majority of all the
Members of both Houses of the Congress, voting separately.,'
5. Presidential and Vice-Presidential election controversies.
Neither the 1935 nor the 1973 Constitution had an explicit provi-
sion designating the body with jurisdiction to be judge of presidential
3oMacalintal v. COMELEC,
G.R. No. I 570 I 3. July I 0. 2(X)3.
3rLopez v. Senate and
House, G.R. No. l6.1556,.lune tl. 2(X)4
3zPimentel v. Joint Canvassing (bntnriilcc,.lunc
22, Z(X)4.
ART. VII EXECUTIVE DEPARTMENT
Sec.5 -
and vice-presidential election contests. When the question of jurisdic-
tion arose under the 1935 Constitution in Lopez v. Roxas,3'the Court
said that, since the Constitution was silent on the matter, and in the
absence of a statute empowering a judicial body to be judge of such
contests, any candidate for president or vice-president who believed
"that he was the candidate who obtained the largest number of votes for
either office, despite the proclamation by Congress of another candidate
as the president-elect or vice-president-elect, had no legal right to de-
mand by election protest a recount of the votes cast for the office con-
cerned, to establish his right thereto. As a consequence, controversies or
disputes on this matter were not justiciable." For this reason, Congress
passed Republic Act No. 1793 constituting the Supreme Court as the
electoral tribunal for presidential and vice-presidential contests.
The validity of this law was upheld in the already cited case of
Lopez v. Roxas. However, with the adoption of the 1973 Constitution,
R.A. 1793 was implicitly repealed for being incompatible with a par-
liamentary system and it was not restored under the reconstituted presi-
dential system of the 1973 Constitution. The last paragraph of Section
4 of Article VI now fills that void. What was statutory law in R.A. No.
1793 has now become a constitutional provision.
The Rule in presidential contests is that only two persons, the 2nd
and 3rd placers, may contest the election. The Rule effectively excludes
the widow of a losing candidate.3o
The power of the Court as Tribunal includes the power to correct
manifest effors on the statements of votes (SOV) and certificates of
canvass (COC)."
Snc. 5. Bsronn rHEy ENTER oN TrrE ExECUTIoN oF THEIR
oFFIcE, rnB PnnsmrNT, TIrE Vrcr,-PnrsronNT' oR rno AcrrNc
Pnnsrunxr SHALL TAKE THE FoLLowING 0ATH oR AFFIRMATToN:
ttl Do sor,nuNr-y swEAR (on unnn'r) rrur I
WILL FAITHFULLY AND CONSCIENTIOUSLY FULFILL MY
DUTTEs ls Pnnsrorxr (on VIcc-PnESIDENT on AcrrNc
PnEsmrrlr) oF THE PHtltrrtNrs, PRESERvE AND DEFDND
lrs CoNsrtrurloN, ExEcurE ITS LAws, Do JUSTICE To
"17 S(IRA at 761.
'altrnnnrlo Poc. Jr. v. Arnrytt, P.E.1'. C'ASl'l No.002, March 29,2(X)5
Itl.cgunln v. De Crstnr, p.ll.'f. ('ASli No. (X)1, Mrrtch 31,2(X)5.
 THE 1987 CONSTITUTION Secs.6-8 Secs.5-8 ART. VII _ EXECUTIVE DEPARTMENT 847
OF THE REPUBLIC OF THE PHILIPPINES

EVERY MAN, AND CONSECRATE MYSELF TO THE SERVICE THEN ACT AS PRESIDENT T]NTIL THE PNNSTNE TT ON VICB.PNNSIDENT
oF THE NrrroN. So nrr,r ME GoD.tt (IN clsr or SHALL HAVE BEEN ELECTED AND QUALIFIED.
AFFTRMATIoN, LAsr sENTENCE wrLL ln ourrrro) Tnn Concrrss sHALLT BY LAwr PRovIDE wHo SHALL sERvE
Snc.6. Tne pnpsrnnxr SHALL HAvE AN oFFrcrAL RESTDENcE. AS PRF,SIDENT IN CASE OF DEATH' PERMANENT DISABILITY' OR
Trr s.ql,Alms oF TrrE Pnrsrnrnr lND Vrcp-PREsTDENT SHALL BE RESIGNATION OF THE ACTING PRESIDENT. HT STT.IT,T, SERVE UNTIL TIIE
DETERMINED BY LAW AND SHALL NOT BE DECREASED DURING THEIR Pnrsrnnxr oR THE Vrcn-PrnsmrNT SITALL HAvE BEEN ELECTED AND
TENURE. No rNcnrlsn rN sArD coMpENsATroN sHALL TAKE ErFEcr QUALIFIED, AND BE SI]BJECT TO THE SAME RESTR,ICTIONS OF POWERS
UNTIL AFTER THE EXPIRATION OF TIIE TER,M OF THE INCUMBENT AND DISQUALIFICATIONS AS THE ACTING PRESIDENT.
DURING wHIcH sucrr INCREASE wAs AppRovED. Tnry snar,r, xor
RECEIVE DURING THEIR TENURE ANY OTIIER EMOLUMENT FROM THE
1. Filling a vacancy in the presidency.
GOVERNMENT OR ANY OTHER SOURCE.
There are two sets of rules for filling a vacancy in the presidency.
Src.7. Tnn PnnsrorNT-ELEcr AND THE Vrcr-PnBsrnpNr-
ELECT SHALL ASSUME OFFICE AT THE BEGINNING OF THEIR. TERMS.
One set of rules, Section 7, applies when the vacancy occurs at the start
of the term, and another set, Section 8, applies when a vacancy occurs
Ir rnn Pnnsronnr-nr,EcT FAILs ro euALIr"r, rnn Vrcn-
in mid-term.
PnrsropNt-rr,Ecr sHALL ACT As PnpsmnNr uNTrL THE PnrsmBxr-
ELECT SHALL HAVE QUALIFIED. As already adverted to earlier, a President has no right to "hold-
Ir l PnnsmBNT sHALL Nor rrAvE BEEN crrosnN, rnn Vrcr- over." When the designated date for the end of his term comes, at noon
Pnnsmpn'r-rr,EcT sHALL Acr AS Pnesrnrnr UNTIL A PnrsrnpNr of the thirtieth of June six years following his election, he must leave
SHALL HAVE BEEN CHOSEN AI\D QUALIFIED. office and the president-elect assumes office. Should it happen that on
Ir rr rnn BEGINNING oF THE TERM oF THE PRESIDEI{T, TIIE the appointed hour and day there is no president-elect, either because
PnBsrupNr-nr,Ecr sHALL HAvE DrED oR SHALL HAvE BEcoME the president-elect died or failed to qualify or because no winner has
rERMANENTLv DTsABLED, THE VIcn-PnnsnBNT-ELEcr SHALL BEcoME been proclaimed, then Section 7 becomes operative.
PnnsroBNr.
A vacancy can also occur when an incumbenr President dies, is
Wnrnn No PREsTDENTlND Vrcn-PnEsTDENT sHALL HAvE BEEN pennanently disabled, is removed from office, or resigns. In such even-
CHOSEN OR SHALL HAVE QUALIFIED, OR WHERE BOTH SHALL HAVE
tuality Section 8 applies.
DrED OR BECOME PERMANENTLY DTSABLED, rrm PnnsrorNT oF THE
SBNTTB oR, rN cAsE oF Hrs rNABILrry, THE Spnaxrn oF THE Housa The causes of vacancy enumerated in Section 8 are "death, perrna-
or RspnnsnNTATIvEs sHALL ACT .q,s PnrsronNr uNTIL A PnnsroeNr nent disability, removal from office, or resignation." Of the four causes,
on a Vrcn-PnnsIDENT sHALL HAvE BEEN cHosEN AND euALrFrED. permanent disability is perhaps the most shrouded in obscurity. The
Tup Coxcnrss sHALL, By LAw, pRovIDE FoR THE MANNER IN difficulty arises from two related questions: First what is "permanent
wHICH oNE wHo Is ro Acr .c.s PRBsroBr.tr SHALL BE SELECTED UNTIL disability" and, second, who decides whether the President is disabled.
A PREsIDENT oR A VICE Pnnsmoxr sHALL HAVE euALIFIED, IN cAsE Previous constitutions did not attempt to answer these questions. The
OF DEATH, PERMANENT DISABILITY, OR INABILITY OF THE OFFICIALS 1987 Constitution answers them in Section 11.
MENTIONED IN TIIE NEXT PRECEDING PARAGRAPH.

Src. 8. IN clsB oF DEATH, IERMANENT DrsABrlrry, REMoVAL
FRoM oFFrcE, oR RESIGNATToN oF rnr PrnstnrNt, tHn VrcR-
PnpsrnnNr siu,r, srcoMn rnr PnrsrnENT To sERvE THE uNExptR.nl)
TERM. IN CASE oF DEATH, IERMANENT DISARILITv, RnM()v t, t'n()M
OFFICE, oR RESIGNATION ot' lto'tH THI,I Ptt;stol.;u't' ,rnu Vtt'l:-
PnesIonNt, run Pnnslot:N'r ot' 't'tlta Sl:x,t'rl: oR, tN (.Asu ()]. lils
INAIur,l.ry,'rHl: Spt:rtxl:n ()t 't'nt) Hotrst: rln Rlt,nl;sunlxt'tvt,:s, suAt.t.
2. From Joseph Estrada to Gloria Arroyo
The succession provision in Section 8 became the center of the
controversy around the ascension of Gloria Macapagal Arroyo to the
presidency after Joseph Estrada. The proximate antecedents of the
cvcnt startcd with a House Resolution approving the impeachment trial
ol'Josoph llstrada lirr varitlus gravc crintes. With Chief Justice Hilario
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Davide, Jr. presiding, the impeachment trial proceeded until on January
16,2001, the Senate voted l1-10 to block the opening of an envelope
thought to contain the "smoking gun" against Estrada. The vote was fol-
lowed by the walkout of the prosecution panel. within hours a massive
gathering of people began to converge at the EDSA shrine clamoring
for the resignation of Estrada. on January 18, as the pressure continued
to mount, the entire military establishment led by secretary of National
Defense orlando Mercado and the chief of staff of the Armed Forces
Angelo Reyes abandoned their support for President Estrada. The phil-
ippine National Police followed later.
On January 20, at high noon, Chief Justice Davide administered
the oath of office to Gloria Macapagal Arroyo as president. Meanwhile,
in Malacafrang Palace, at 2:30 p.m. Joseph Estrada left the palace and
issued the following statement:
"20 January 2001
STAIEMENTFROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock noon today, Vice President Gloria Ma-
capagal-Arroyo took her oath as President of the Republic of the
Philippines. While along with many other legal minds of ourcoun-
try, I have strong and serious doubts about the legality and consti-
tutionality of her proclamation as President, I do not wish to be a
factor that will prevent the restoration of unity and order in our
civil society.
It is for this reason that I now leave Malacaflang palace, the
ofthe presidency ofthis country, for the sake ofpeace and in
seat
order to begin the healing process of our nation. I leave the palace
of our people with gratitude for the opportunities given to me for
service to our people. I will not shirk from any future challenges
that may come ahead in the same service of our country.
I call on all my supporters and followers to join me in the
promotion of a constructive national spirit of reconciliation and
solidarity.
May the Almighty bless our country and beloved people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO TJSI'RAI)A''
Secs.5-8
ART. VII EXECUTIVE DEPARTMENT
Secs.5-8 -
It also appears that on the same day Joseph Estrada signed the fol-
lowing letter addressed to the Speaker of the House of Representatives
and to the Senate President.
"Sir:
By virtue of the provisions of Section 11, Article VII of the
constitution, I am hereby transmitting this declaration that I am
unable to exercise the powers and duties of my office' By opera-
tion of law and the constitution, the vice-President shall be the
Acting President.
(Sed.) JOSEPH EJERCITO ESTRADA"
Thereafter, Arroyo proceeded to perform the functions of a Presi-
dent, and her government received the recognition of many states.
The contention of Joseph Estrada was that he was a President on
leave under the terms of Section 11 of Article VII and that Gloria Ma-
capagal-Arroyo was merely an acting President. Tlte Estradav. Arroyo'u
*ut filed by Estrada, together with the companion case of Estrada
"ur"
v. Desierto,3T to seek confirmation of his position.
The decision of the court was unanimous, with chief Justice Da-
vide and Justice Panganiban abstaining: Davide because he had sworn
in Arroyo and Panganiban to obviate any suspicion that he had pre-
judged the case. The decision was that Estrada was no longer President
and that Arroyo was. But there was no unanimity in aniving at this
conclusion.
ftG.R. 146738, March 2, 2001.
'G.R. I 46738, March 2, 2001 . Reconsidered April 3, 200 l'
Maca'
Another petition asking for a resolution of the controversy was Lozano, et al. v.
pogul-Arroyo,c.n. No. 146579, February 6,zffil.The petition was dismissed on the following
grirun.l.: L Petitions are essentially for declaratory relief over which the Supreme Court has no
r-rriginal jurisdiction; 2. as petitions for prohibition and mandamus they fail to allege'
much less
,tr<i*, tack or cxccss ofjurisdiction, or grave abuse ofjurisdiction on the part of "any tribunal'
func-
corporation, ho:rnl, ntticer or person whether exercising judicial, quasi-judicial or ministerial
tioris," which Rule 65 of the Rules of Court requires to be alleged and proven before the extra-or-
tlirr:u-y writ ol prohibitiorr rnty he issuctll .1. pcritioners have no legal standing;4. they
may not be
trcitl(l its ql() wilrranlo btcilusc a plca lirl quo warranto ntust bc contmenced: (a) by the solicitor
gcrrerrrt, th) by rr lxrhlie l)r()sccul()t, irrrtl (c) by "il l)rcl's(nl clainling to bc trntitlctl to a
publie ollicc
,u 1n,*iti,u, rrsrrrlx.l,,r rrrrlrrwlirlly lx.kl or t'xt'r'r'isetl by ;tnolltcr." Nollc ol lltt'1x'liliottcls qrrllily ilr
lrrw lo t ()tttttl('ll( e lltt' tt liott
850 THE 1987 CONSTITUTION Secs.5-8 Secs.5-8 ART. VII _ EXECUTIVE DEPARTMENT
OF THE REPUBLIC OF THE PHILIPPINES

The main opinion, written by Justice puno, gave resignation Justice Pardo likewise based his opinion on forced resignation:
from
office as the cause if the permanent vacancy. He anchoreJ his opinion
mainly on the letter of Estrada and on the diary of Executive secretary I concur in the result. In the above cases, the Court decided
Edgardo Angara which was published in the Inquirer.puno to dismiss the petitions. Consequently, the Court effectively de-
concluded
with what he called the result of a ..totality test,': clared that on January 20,2001, petitioner has resigned the of-
fice of the president. Thus, then Vice President Gloria Macapagal-
In sum, we hold that the resignation of the petitioner cannot Arroyo succeeded to the presidency in a manner prescribed in the
be doubted. It was confirmed by his leaving Maiacafang. In Constitution. She is a de jure president. I only wish to add that pe-
the
press release containing his final statement: (r)
he acknoivledged titioner was "constrained to resign" the office. It has been held that
the oath-taking of the respondent as president of the RepubliJal- "resignation is defined as the act of giving up or the act of an offi-
beit with reservation about its legality; (2) he emphasized he
was cer by which he declines his office and renounces the further right
leaving the Palace, the seat ofthe presidency, for tie sake
ofpeace to use it. To constitute a complete and operative act of resignation,
and in order to begin the healing process of our nation.
He OiO the officer or employee must show a clear intention to relinquish or
not say he was leaving the palace due to any kind of inability surrender his position accompanied by the act of relinquishment'"
and
th1 he was going to re-assume the presidency as soon as the dis_ Petitioner's act of "resignation," however, was done in light of the
ability disappears; (3) he expressed his gratitude to the people
for reality that he could no longer exercise the powers and duties of
the opportunity to serve them. Without doubt, he was the presidency and left "the seat of the presidency of this county,
,"f",,ing to
the past opportunity given him to serve the people as presidint; for the sake of peace and in order to begin the healing process of
(4) he assured that he will not shirk from uny iut*"
challenge thai our nation."
may come ahead in the same service of our country. petiti,oner's
reference is to a future challenge after occupying thl
office ofthe For his part, Justice Mendoza saw it as a case of permanent dis-
president which he has given up; and (5) he called
on this support_ ability:
ers to join him in the promotion of a constructive national
spirit of
reconciliation and solidarity. certainly, the national spirit ofrecon- Indeed, the people power movement did not just happen
ciliation and solidarity could nor be attained if he did not give
up at the call of some ambitious politicians, military men, business-
the presidency. The press release was petitioner,s valedict6ry,
his men and/or prelates. It came about because the people, rightly or
final act of farewell. His presidency is now in the past tense. ' wrongly, believed the allegations of graft and comrption made by
Luis "Chavit" Singson, Emma Lim, Edgardo Espiritu, and other
Justice Vitug concurred with the resignation theory: witnesses against petitioner. Their testimonies during the im-
peachment trial were all televised and heard by millions of people
Mr. Estrada imports that he did not resign from the presiden-
throughout the length and breadth of this archipelago. As a result'
cy because the word "resignation" has not once been embodied
in petitioner found himself on January 19 ,2001 deserted as most of
his letters or said in his statements. I am unable to oblige.
The con_ his cabinet members resigned, members of the Armed Forces of
temporary acts of Estrada during those four critical days
of Janu_ the Philippines and the Philippine National Police withdrew their
ary are evidentce of his intention to relinquish his office. Scarcity
support of the President, while civil society announced its loss of
of words may not easily cloak reality and hide true intentions. .
.. trust and confidence in him' Public office is a public trust' Peti-
tioner lost the public's trust and as a consequence remained Presi-
For Vitug, however, it was not resignation pure and simple:
dent only in name. Having lost the command of the armed forces
and the national police, he found himself vulnerable to threats of
Abandonment of office is a species of resignation, and it
connotes the giving up of the office although not attended mayhem.
by the
formalities normally observed in resignation. Abandonment may 'I'his is thc confbssitltr ol'one who is bcaten. After all, the
be effected by a positive act or can be thc rcsult of an
omission, pcrrrllnctll tlislrbility rtrlcrrctl lo in thc Ctlnstitutitln can bc physi-
cll. rrrcrrlirl. or rrurritl. r'ctttlt:rittg tltt: l)rcsidernl uttitblc ltl cxt:rt:isc
I
whether delibcratc clr not.

I
852 THE 1987 CONSTITLTTION
OF THE REPUBLIC OF THE PHILIPPINES
the powers and functions of his office. As his close adviser wrote
in his diary of the final hours ofpetitioner's presidency:
The President says: ,,pagod na pagod na ako. Ayoko
na masyado nang masakit. pagod na ako sa red tape, bu_
reaucracy, intriga." (I am very tired. I don't want any more
of this it's too painful. I'm tired of the red tape, the bu-
-
reaucracy, the intrigue.)
Angara himself shared this view of petitioner,s inability. He
wrote in his diary:
"Let us be realistic," I counter. ..The president does
not have the capability to organize a counter-attack. He does
not have the AFP or the Philippine National police on his
side. He is not only in a corner he is also down.,'
- Mme. Gloria Macapagal-Arroyo as the constitutional successor to
This is the clearest proof that petitioner was totally and per_
manently disabled at least as of 11 p.M. of Friday, January 19,
2001. Hence, the negotiations for the transfer of power to the re-
spondent Vice-President Gloria Macapagal-Arroyo. It belies peti_
tioner's claim that he was not permanently disabled but only tem-
porarily unable to discharge the powers and duties ofhis office and
therefore can only be temporarily replaced by respondent Gloria
Macapagal-Arroyo under Art. VII, g I 1.
Justice Bellosillo likewise anchored his concurrence on perma-
nent disability:
Clearly, permanent disability in the sense it is conceptual_
ized in the constitution cannot realistically be given a restrictive
and impractical interpretation as referring only to physical or men-
tal incapacity, but must likewise cover other forms of incapacities
of a permanent nature, e.g., functional disability. Indeed, the end
sought to be achieved in inserting Sec.8 of Art. VII in the Con_
stitution must not be rendered illusory by a strained intelpretation
fraught with constitutionally calamitous or absurd consequences.
The present scenario confronting the Republic had been wisely
foreseen and anticipated by the framers, for after all, the l9g7
Constitution was sired by People power I.
It may be asked: Was petitioner rendered permanently dis-
abled as President by the circumstances obtaining at the height of
People Power II as to justify the ascension of Mme. Cloria Maca-
pagal-Arroyo as the l4th de jure president of the Republic,/ So hc
was; hcltce, thc assumpti<ln ot'rcspondcnt trs prcsident.
Secs.5-8 Secs.5-8 ART. VII - EXECUTIVE DEPARTMENT
I view petitioner's permanent diSability from two (2) dit-
ferent perspectives: objectively and subjectively. From the objec-
tive approach, the following circumstances rendered inutile pe-
titioner's administration and powers as Chief Executive: (a) the
refusal of a huge sector of civil society to accept and obey him as
President; (b) the mass resignation ofkey cabinet officials thereby
incapacitating him from performing his duties to execute the laws
of the land and promote the general welfare, (c) the withdrawal of
support of the entire armed forces and the national police thus per-
manently paralyzing him from discharging his task of defending
the Constitution, maintaining peace and order and protecting the
whole Filipino people; (d) the spontaneous acknowledgment by
both Houses ofCongress - the Senate represented by the Senate
President, and the House ofRepresentatives by the Speaker - of
the Presidency; and, (e) the manifestation of support by the Papal
Nuncio, doyen of the diplomatic corps, and the recognition and ac-
ceptance by world governments of the Presidency of Mme. Gloria
Macapagal-Arroyo. By virtue hereof, petitioner has lost all moral
and legal authority to lead. Without the people, an effectively func-
tioning cabinet, the military and the police, with no recognition
from Congress and the international community, petitioner had
absolutely no support from and control of the bureaucracy from
within and from without. In fact he had no more functioning gov-
ernment to speak of. It is in this context that petitioner was deemed
to be absolutely unable to exercise or discharge the powers, duties
and prerogatives of the Presidency.
The irremediable nature of his disability cannot be doubted'
It is well-nigh inconceivable that there would be a reversal of all
the factors that disabled him. There was nothing in the withdrawal
of support from the various sectors which would suggest that it
was merely temporary or conditional. On the contrary, the with-
drawal of support was categorical and unqualified. Certainly, the
factual milieu of this case makes it all the more remote and very
unlikely that those who have withdrawn their support from peti-
tioner would suddenly have a change of heart, intone mea culpa,
and shift back their allegiance to him once again.
From the subjective approach, I am likewise convinced that
petitioner's contemporaneous acts and statements during and after
the critical episode are eloqucnt prrxrf's of his irnpliecl - but nev-
ertheless unequivocal -' acknttwlcdgrncnt of the pct'tnancnce of
his disubility.
854 THE 1987 CONSTITUTION
OFTHE REPUBLIC OF THE PHILIPPINES
In a separate opinion, Justice Kapunan disagreed with the resigna-
tion theory:
To constitute a complete operative resignation of a public of_
ficial, there must be: (1) the intention to relinquish putt oi th" t"r-
and (2) an act ofrelinquishment. Intent connotes voluntariness
and
freedom of choice. with the impassioned crowd marching towards
Malacaflang Palace and with the military and police no longer
obeying petitioner, he was reduced to abject powerlessness. In this
sense, he was virtually forced out of the presidency. If intention to
resign is a requirement sine qua non for a valid resignation, then
forced resignation or involuntary resignation, or resignation under
duress, is no resignation at all.
For this reason, Kapunan preferred to recognize the legitimacy
the Arroyo presidency simply as an irreversible fact:
However, I share my colleagues'opinion that respondentAr_
royo is now the recognized legitimate president. It is an irrevers_
ible fact. She has taken her oath as president before the chiefJus-
tice on 20 January 2001. Since then Ms. Arroyo has continuously
discharged the functions of the president. Her assumption into
power and subsequent exercise of the powers and performance
of
the duties attaching to the said position have been acquiesced in
by
the Legislative Branch of government.
The Senate president and the Speaker of the House of Rep_
resentatives executed a Joint Statement of Support and Recogni-
tion of respondent Arroyo as petitioner's constitutional succeslsor.
The senate and the House ofRepresentatives passed their respec-
tive Resolutions expressing support to the Arroyo administraiion.
Congress confirmed the nomination of Senator Teofisto Guingona,
Jr. as the new vice-president, thus acknowledging responderit Ar-
royo's assumption to the presidency in a permanent capacity. The
Impeachment Court has resolved that its existence has ceased by
becomingfunctus fficio in view of petitioner's relinquishment oi
the presidency.
As President, Ms. Arroyo has gained control over all the ex-
ecutive departments, bureaus and officers and is the acknowledged
commander-in-chief of all the armed forces of the philippines.
Her administration has, likewise, been recognized by nu-".ou,
members of the international community of nations, incruding
Japan, Australia, Canada, Spain, the United States, the ASEAN
countries, as well as 90 ma.ior poriticar parrics in rrurope, Nrlrrh
Secs.5-8 ART. VII EXECUTIVE DEPARTMENT 855
-
America, Asia and Africa. More importantly, a substantial number
of Filipinos have already acquiesced in her leadership. The Court
can do no less.
Justice Sandoval-Gutierrez was of a similar view:
It is a cardinal principle in Public Officers Law that a resig-
nation must be voluntary and willingly. It must also be express and
definite. A resignation even if clear and unequivocal, if made under
duress, is voidable and may be repudiated'
Nevertheless she concluded:
However, the legality or illegality of petitioner's so called
of resignation has been laid to rest by the results that have taken
place. Respondent Arroyo immediately took her oath as President
of the Republic of the Philippines before Chief Justice Hilario G.
Davide, Jr. On January 24,2001, the House of Representatives is-
sued House Resolution No. 175 expressing its full support to her
administration. Likewise, twelve members of the Senate signed a
Resolution recognizing and expressing support to the new govern-
ment and of President Arroyo. Moreover, the international com-
munity has likewise recognized the legitimacy of her government.
Under the circumstances, this Court has to declare as a fact
what in fact exists. Respondent Gloria Macapagal-Anoyo isthe de
jure President of the Republic of the Philippines.
Justice Ynares Santiago's separate opinion was mainly a warning
against the legitimation of "people power." In the end, however, she
concluded:
While I am against the resort to mob rule as a means of in-
troducing change in government, the peculiar circumstances in the
case at bar compel me to agree that respondent Arroyo rightfully
assumed the presidency as the constitutionally anointed successor
to the office vacated by petitioner. There was at that time an urgent
need for the immediate exercise of presidential functions, powers
and prerogatives. The vacancy in the highest office was created
when petitioner, succumbing to the overwhelming tumult in the
streets as wcll as the rapidly successive desertions and defections
ol' his cabinct secretaries and rnilitary officers, left Malacaflang
l'nllcc "lirr thc sakc of pcacc and in rlrder to begin the healing
pn)ccss ttl' our ttatitltt."
856 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
The Estrada camp filed a motion for reconsideration which was
decided on April 3,2ool. The justices maintained their respective posi-
tions but, on the matter of resignation, Justice Puno added:
We also reject the contention that petitioner's resignation
was due to duress and an involuntary resignation is no resignation
at all.
". . . t|t has been said that, in determining whether a
given resignation is voluntarily tendered, the element of vol-
untariness is vitiated only when the resignation is submitted
under duress brought on by government action. The three-
pafi test for such duress has been stated as involving the fol-
lowing elements: (l) whether one side involuntarily accept-
ed the other's terms; (2) whether circumstances permitted no
other alternative; and (3) whether such circumstances were
the result ofcoercive acts ofthe opposite side. The view has
also been expressed that a resignation may be found invol-
untary if on the totality of the circumstances it appears that
the employer's conduct in requesting resignation effectively
deprived the employer of free choice in the matter. Factors to
be considered, under this test, are: (l) whether the employee
was given some alternative to resignation; (2) whether the
employee understood the nature of the choice he or she was
given; (3) whether the employee was given a reasonable time
in which to choose; and (4) whether he or she was permitted
to select the effective date of resignation. In applying this
totality of the circumstances test, the assessment whether
real alternatives were offered must be gauged by an objec-
tive standard rather than by the employee's purely subjective
evaluation; that the employee may perceive his or her only
option to be resignation
about his or her reputation
- for example, because of concerns
- is irrelevant. Similarly, the
mere fact that the choice is between comparably unpleasant
alternative
charges
- for example, resignation or facing disciplinary
- does not ofitselfestablish that a resignation was
induced by duress or coercion, and was therefore involun-
tary. This is so even where the only alternative to resignation
is facing possible termination for cause, unless the employer
actually lacked good cause to believe that grounds for termi-
nation existed. In this regard it has also been said that a res-
ignation resulting fnrm a choice between resigning or facing
proceedings titr disrrrissal is not tantalnount t() dischargc hy
crrcrciolr wilhorrl prrrcrlrrlirl vit:w il lhc crrrploycc is givcn
Secs.5-8 ART. VII EXECUTIVE DEPARTMENT
Secs. 5-8 -
sufficient time and opportunity for deliberation of the choice
posed. Furthermore, a resignation by an officer charged
with misconduct is not given under duress, though the ap-
propriate authority has already determined that the officer's
alternative is termination, where such authority has the legal
authority to terminate the officer's employment under the
particular circumstances, since it is not duress to threaten to
do what one has the legal right to do, or to threaten to take
any measure authorized by law and the circumstances of the
case."38
In the cases at bar, petitioner had several options available
to him other than resignation. He proposed to the holding of snap
elections. He transmitted to the Congress a written declaration of
temporary inability. He could not claim he was forced to resign be-
cause immediately before he left Malacaflang, he asked Secretary
Angara: "Ed, aalis na ba ako7" which implies that he still has a
choice of whether or not to leave.
To be sure, pressure was exerted for the petitioner to resign.
But it is difficult to believe that the pressure completely vitiated
the voluntariness of the petitioner's resignation. The Malacaffang
ground was then fully protected by the Presidential Security Guard
armed with tanks and high-powered weapons. The then Chief of
Staff, General Angelo Reyes, and other military officers were in
Malacafrang to assure that no harm would befall the petitioner as
he left the Palace. Indeed, no harm, not even a scratch, was suf-
fered by the petitioner, the members of his family and his Cabinet
who stuck it out with him in his last hours. Petitioner's entourage
was even able to detour safely to the Municipal Hall of San Juan
and bade goodbye to his followers before finally going to his resi-
dence in Polk Street, Greenhills. The only incident before the pe-
titioner left the Palace was the stone throwing between a small
group of pro- and anti-Erap rallyists which resulted in minor inju-
ries to a few of them. Certainly, there were no tanks that rumbled
through the Palace, no attack planes that flew over the presiden-
tial residence, no shooting, no large scale violence, except verbal
violence, to .justify the conclusion that petitioner was coerced to
resign.
llr
surn, thrcc .iusliccs (Puno, Vitug and Pardo) accepted some
Iornr ol'rc:sigrtaliott; lwo.ittsliccs (Mcndoza and Bellosillo) saw perma-
,J '3{r t('Arr lru .trl l\rlrlrt ( )lltcctr rtttrl l'rttltllryrts. Sccliort I 5lJ
 THE 1987 CONSTITUTION Secs.9-10 Sec. ll ART.VII - EXECUTIVEDEPARTMENT 859
OF THE REPUBLIC OF THE PHILIPPINES

nent disability; three justices (Kapunan, Ynares-Santiago, and Sandoval rnrs CoxsrrrurloN AND sHALL BEcoME LAw upoN rrs AppRovAL oN
THIRr) READTNc By rHE Coxcnnss.AppRopRrATroNs FoR THE spECrAL
Gutierrez) accepted the presidency of Arroyo as an irreversible fact.
ELECTION SHALL BE CHARGED AGAINST ANY CIJRRENT APPROPRIATIONS
Five justices (Quisumbing, Melo, Buena, de Leon and Gonzaga-Reyes)
AND SHALL BE ExEMpr FRoM THE REeLITREMENTS or mRlcnlnn 4,
signed the decision without expressing any opinion. Davide and Pan-
Srcrron 25, Anrrcr,r VI or rrus Coxsrrrurrox. Tnn coNvENrNG
ganiban abstained. In the light of all this, it is not clear what doctrine oF THE Concnrss cANNor BE suspENDED NoR THE spEcrAL ELEcrroN
was established by the decision. FosrpoNED. No spncw, ELEcTIoN sHALL BE CALLED rF THE vAcANCy
OCCURS WITHIN EIGITTEEN MONTHS BEFORE TIIE DATE OF THE NEXT
Src.9. Wnrxrvrn rHERE IS A vAcANCy IN THE oFFICE oF rHE PRESIDENTIAL ELECTION.
Vrcn-PnrsmrNT DURTNG THE TERM FoR wHICH HE wAs ELECTED,
rnn PnpsmnNr sHALL NoMrN.rrr l VIcr-PREsTDENT FRoM AMoNG 1. Vacancy in both the presidency and vice-presidency.
rnn Mpunpns oF THE Snnrrr AND THE Housp or RnpnBsBNTATIvES
WIIO SHALL ASSI,JME OTTICE T'FON CONFIRMATION BY A MAJORITY Section l0 is another new rule. It deals with the rather rare prob-
vorE oF ALL Trm Mnnmnns oF BorH Housrs oF THE Coxcnnss, ability of having a vacancy in both the presidency and vice-presidency.
VOTING SEPARATELY.

Src. 11. WnrNnvrn rnr PnosmnNT TRANsMrrs ro rrm

1. Vacancy in the office of Vice-President. Pnrsruprvr oF TIrE Snx.lrn AfD To run Spn.lxrn oF TIIE Housn or
Section 9 is a new rule. The President is authorized to nominate a RrpnnseNTlrlvFs HIs wRrrrEN DECLARATIoN THAT IrE Is TJNABLE To
DISCHARGE TIIE POWERS AND DUTIES OF HIS OFFICE, AND UNTIL TIE
member of Congress from either the Senate or the House of Representa-
TRANSMITS T0 THEM AWRITTEN DECLARATION TO TIIE CONTRARY,
tives to fill a vacated office of the Vice-President. For the nomination to
sucH p'owERs AND DUTIES SITALL BE DISCHARGED sy tHE Vrcr-
be effective, it must be confirmed by a majority vote of all the members h,nsmnxr .ls Acrrnc PnrsrnpNr.
of both Houses voting separately. An attempt to limit the choice of the
President to members of the Senate, on the argument that Senators are Wnexnvnn A MAJoR-ITy oF ALL THE MEMBERS oF THE CABINET
ro rnr PnrsrorNr or ttre Srx^lrE AND To rHE Spplxrn or
TRANSMTT
elected at large, was defeated on the counter argument that the field
rns Housr or RrpnesnNTATIvES THEIR wRrrrEN DEcLARATToN TuAT
of choice should not be restricted to the twenty-four members of the rnr Pxnsmnnr Is UNABLE To DISCHARGE THE FowERs AND DIJTIES oF
Senate.3e HIs oFFICE, rnn Vrcr-PnEsIDENT SHALL IMMEDIATELv AssuME TIIE
powERs Al\rD DIJTIEs oF TIIE orFIcE s Acrnc Pnssmrxr.
Upon the ascension of Vice-President Gloria Macapagal-Arroyo
to the presidency, she nominated Senator Teofisto Guingona, Jr., as Tnrnurttn, wHEN THE Pnnsropxr rRANsMrrs ro rIIE
Vice-President, and Congress concurred. Pnrsrnrnr oF THE Spxmn AND To rnn Spn.lxnn oF THE Housr or
RepnrspnmrlvEs HIS WRITTEN DECLARATIoN THAT No INABILTTy
Src. 10. Tnr Coxcnrss sIrALL, AT TEN otcI,ocK IN rHE EXISTS, HE SHALL REASSUME TIiE FOWERS AND DTITIES OF HIS OFFICE.

MORMNG OF THE THIRD DAY AFTER, THE VACANCY IN THE OFFICES Mrlxwnu,r, rxr MrMsnRs oF THE
sHouLD A MAJoRITv oF ALL
oF TIIE krsroexr lxo Vrcn-PnEsIDENT occuRs, coNvENE IN Clslxrr TRANsMIT wrrrrlN rrvE DAys ro
rHE Pnrsronnr oF THE
ACCORDANCE WITH ITS R.ULES WITHOUT NEED OF A CALL AND WITHIN
Snrqlrr AND To rnr Sprnxnn oF THE Housn or Rrpnrsrrurrvns
THErR wR.ITTEN DECLARATToN THAT rnp Pnrsronnr rs LJNABLE To
SEYEN DAYS ENACT A LAW CALLING FOR A SPECIAL ELECTION TO ELDCT
DISCHARGE THE powERS AND DUTIES oF HIs oFtrcE, tlm Coxcnnss
l Pnrsmnnr lxn ^l VIcn-PnTsIDENT To BE HELD Nor EARLIER THAN
sHALL DECIDE THE Issun. Fon rn,lt puRFosE, nru Concnrss SHALL
FORTY.FTVE DAYS NOR LATER THAN SIXTY DAYS FROM THE TIME OI.'
coNvENE, tF IT tS NOT rN SESSION, WTTHIN FOnTY-EIGHT HOURS, IN
suclr CALL. Tnn nrr,r, cALLINc sucH spEcIAL ELECTIoN sHAt,l, nr':
AccoRDANCn wtrH trs Rut,lls lnu wITHour NEED oF cALL.
DEEMED CERTTFIED UNDER nARAGRArH 2, Sncrtox 26, Anlrt:l,c Vl ol'
lr rHn Crtncnnss, wtrHtN TnN DAys AlrnR RR(;Ett'r ()F THE
rell RECORD ut,t42 l,Att't' wRt'n'!:N t)t;(:t,ARAn()N, ()R, D,' N()'t tN SllSSt()N, WtTHtN TWr,:t,V!l
860 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
DAYS AFTER IT IS
REQUIRED TO ASSEMBLE, DETERMINES By A TWO-
THTRDS VOTE OF BOTH HOUSES, VOTING SEPARATELY, THAT THE
Pnrsmexr rs UNABLE To DISCHARGE THE FowERs AND DUTTEs oF r{Is
oFFICE, TI{E vrCn-PnnSmrNT SHALL ACT AS PnnSrOnNrl OTIIERWISE,
THE PR,ESIDENT SIIALL CoNTINUE EXERCIsING THE FowERs AND DUTIES
OF HIS OTFICE.
1. Incapacity of the President.
Section 11 deals with the thorny issue of deciding whether the
President is still able to perform his functions or not. If the President
is able to make the decision and is willing to declare himself disabled,
he certainly has the power to declare so. This power was recognized in
the agreement of March 1958 between President Eisenhower and Vice-
President Nixon which stated that "In the event of inability the presi-
dent would
- if possible - so inform the Vice President" who would
then exercise "the powers and duties until the inability had ended." But
if the President himself is unable to make the decision or, though able,
is unwilling to admit his incapacity, can somebody else decide for him?
There was no clear answer to this question in previous constitutions.
Section 11 attempts to supply the answer. It was tested in Esffada v. Ar-
royo already partly discussed above under Section 8.
It seems that after his press release quoted under Section 8, Es-
trada had an afterthough and wrote the following letter addressed to the
Speaker of the House of Representatives and to the Senate President.
"Sir:
By virtue of the provisions of Section 11, Article VII of the
Constitution, I am hereby transmitting this declaration that I am
unable to exercise the powers and duties of my office. By opera-
tion of law and the Constitution, the Vice-President shall be the
Acting President.
(Sgd.) JOSEPH EJERCITO ESTRADA"
Thus the question: Was his merely a case of temporary disability'l
In answering this question, the Court started with a recitation ol'
facts: (1) The letter was sent to Congress on January 29,2001; (2) Un-
aware of the letter, Arroyo took her oath as President; (3) Both Senatc
and House of Representatives passed resolutions supporting Arroyo as
President; (4) The Scnate ptssed a resolution dccluring the irnpcaclr-
Sec. I I Sec. l2 ART. VI] EXECUTIVE DEPARTMENT
- 86r
mentfunctus fficio;(5) The Senate also confirmed the nomination of
Teofisto Guingona, Jr. as Vice-President in place of Arroyo; (6) Both
Houses started sending bills to be signed by Arroyo as President. In the
light of all these the Court concluded:
What leaps to the eye from these irrefutable facts is that both
houses of Congress have recognized respondent Arroyo as the
President. Implicitly clear in that recognition is the premise that
the inability of petitioner Estrada is no longer temporary. Congress
has clearly rejected petitioner's claim of inability.
The question is whether this Court has jurisdiction to review
the claim of temporary inability of petitioner Estrada and there-
after revise the decision of both Houses of Congress recognizing
respondent Arroyo as President of the Philippines. Following Ta-
fiada v. Cuenco,a0 we hold that this Court cannot "exercise its judi-
cial power for this is an issue "in regard to which full discretionary
authority has been delegated to the Legislative ... branch of the
government." Or to use the language in Baker vs. Carr,at there is a
"textually demonstrable constitutional commitment of the issue to
a coordinate political department or a lack ofjudicially discover-
able and manageable standards for resolving it." Clearly, the Court
cannot pass upon petitioner's claim of inability to discharge the
powers and duties of the presidency. The question is political in
nature and addressed solely to Congress by constitutional fiat. It
is a political issue which cannot be decided by this Court without
transgressing the principle of separation of powers.
In fine, even if the petitioner can prove that he did not re-
sign, still, he cannot successfully claim that he is a President on
leave on the ground that he is merely unable to govern temporar-
ily. That claim has been laid to rest by Congress and the decision
that respondent Arroyo is the de jure President made by a co-equal
branch of government cannot be reviewed by this Court.
SBc. 12. Ix casn oF sERrous TLLNESS oF THE IRESTDENT,
THE puBt-lc sHALL BE TNFoRMED oF THE srATE oF Hts HsaLTH. THn
Mnlrnnns oF THE Clnrxnr rN cHARGE oF N.{IIoNAL sECURrry ANn
FoRErcN RELATIoNS AND THn Cutnn or Surr or.ruBAnunu Foncps
()r"rltn PutLtrtlnts, sHALL Nolutt ro rHE Pnnslonxt
DU,NII.;D ACCEss
DURING StJCtI II,I,NI'SS.
a('10.1
I'hil lO5 l.l(X,'/(lrr5/)
I 'rr l(r() I l.S I ll(r
t.
T&
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
1. Serious illness of the President.
Illness that results in incapacity to perform the functions of the
presidency is dealt with in Section 11. Section 12 presumably deals
with serious illness that is not incapacitating because access to him is
kept open for Cabinet members in charge of the national security and
foreign relations. The obvious purpose of such access is to allow the
President to make the important decisions in those areas of government;
which suggests that this contemplates a situation where the President is
still able.
The purpose of the first sentence is to guarantee the people's right
to know about the state of the President's health, contrary to secretive
practice in totalitarian governments.42
PnrsrooNr, Vrcr.PnnsIDENTr THE Mrunrns
Snc. 13. Tnp
oF THE ClnINrt, AND THEIR DEIUTIES oR ASSISTANTS sHALL Nort
uNLEss oTHERwISE pRovrDED IN THIS CoNsrrrurroNr HoLD ANY
orHER oFFICE oR EMpLoyMENT DURING TITEIR TENURE. Tnnv sn,lr-r,
NOT, DURING SAID TENURE, DIRECTLY OR INDIRECTLY PRACTICE ANY
OTHER PROFESSION, PARTICIPATE IN ANY BUSINESS' OR BE FINANCIALLY
INTERESTED IN ANY CONTRACT WITH, OR IN ANY FRANCHISE' OR SPECIAL
rRIvILEGE GRANTED By rHE GovpnNunrvr oR ANY suBDIvISIoN,
AGENCY, OR INSTRUMENTALITY TIIEREOF' INCLUDING GOVERNMENT-
OWNED OR CONTROLLED CORPORATIONS OR THEIR SUBSIDIARIES.
Tnnv srur-r- sTRICTLy AvorD coNFLIcr oF INTEREST rN THE coNDUcr
OF THEIR OFFICE.
Tup spousE AND RELATIvES BY coNSANGUINITY oR
AFFINITy wrrHIN THE FouRTH cIvL DEGREE oF THE Pnnsrnpnr
sHALL Nor DURTNG HIS TENURE BE APPOINTEn as Mnllsnns or
rnB CoNsrrrurIoNAL Covrurssrons, oR THE Orrrcn oF THE
Ounuosunx, on .c.s SncnnrARIES, UNnrnsrcnnmRlEsr cHAIRMEN
OR HEADS OF BUREAUS OR OFFICES' INCLUDING GOVERNMENT.OWNED
OR CONTROLLED CORPORATIONS AND THEIR SUBSIDIARIES.
1. Prohibition against holding another office or employ-
ment.
Section 13 prohibits the President, the Vice-President, the menr-
bers of the Cabinet and their deputies or assistants fmm holding any
a1
Il . at 457
Sec. 13 ART. VII EXECUTIVE DEPARTMENT
-
other office or employment during their tenure.a3 Commissioner Davide
sought to modify this absolute-sounding rule by adding "unless other-
wise provided in this Constitution." Davide said that he had specifically
in mind exceptions which might be made by the constitution itself such
as that in favor of the Vice-President who can be made a member of the
Cabinet. However, satisfied by the explanation that a particular excep-
tion made in favor of the vice-President would already be understood
as an exception to the general rule in Section 13, Davide did not insist
on his amendment.* Thus, it was that Section 13 was approved on sec-
ond and third reading without the phrase "unless otherwise provided in
this Constitution." The phrase crept into Section 13 when it was intro-
duced by Commissioner Azcuna without explanation or debate in the
course of making the report for the Committee on Style.os Conceivably,
absent any new discussion on the subject and since the Committee on
Style did not have the authority to alter the sense of previously ap-
proved provisions, the intent was to make explicit the original limited
intent of Commissioner Davide.
Interest in this prohibition was aroused by Executive Order No.
284, issued during the last days of enjoyment of legislative power by
President Aquino, which took the position that the phrase ,,unless oth-
erwise provided in this Constitution" encompassed not just exceptions
found in the Constitution itself but also the broad exception made for
appointive officials in general found in Article IX, B, Section 7. The
second paragraph of this provision says: "Unless otherwise allowed by
law or by the primary functions of his position, no appointive official
shall hold any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries." on this basis
Executive Order No. 284 said:
SECTION I . Even if allowed by law or by the ordinary func-
tions of his position, a member of the Cabinet, undersecretary or
assistant secretary or other appointive officials of the Executive
Department may, in addition to his primary position, hold not more
than two positions in the government and government corpora-
{''l'ltc (irttttttittcc prt4rrs:tl incltttltxl chiclls ol hurcarus or
ollices and their ilssistants, bul
consitlcrirrg lhcir lcvcl ol pay, this wts tilrntl too hursh. h!. tt 402-3,53j-4.
'r'r/r/. nl 542.
4'V lili('( )Rl) 7 ro

THE 1987 CONSTTTUTION
OF THE REPUBLIC OF THE PHILIPPINES
tions and receive the corresponding compensation therefor; Pro-
vided,That this limitation shall not apply to ad hoc bodies or com-
mittees, or to boards, councils or bodies of which the President is
the Chairman.
SECTION 2. If a member of the cabinet, undersecretary or
assistant secretary or other appointive official ofthe Executive De-
partment holds more positions than what is allowed in Section 1
hereof, they (sic) must relinquish the excess position in favor of
the subordinate official who is next in rank, but in no case shall
any official hold more than two positions other than his primary
position.
SECTION 3. In order to fully protect the interest of the gov-
ernment in government-owned or controlled corporations, at least
one-third (1/3) of the members of the boards of such corporation
should either be a secretary, or undersecretary, or assistant secre-
tary.
The Civil Service provision was discussed ahead of the article on
the executive department; but Commissioner Maambong already noted
that there was no symmetry between the Civil Service prohibitions,
originally found in the General Provisions, and the anticipated report on
the executive department. Commenting on such discrepancy, Commis-
sioner Foz said: "We actually have to be stricter with the President and
the members of the Cabinet because they exercise more powers and,
therefore, more checks and restraints on them are called for because
there is more possibility of abuse in their case."46
Executive Order 284 was challenged in Civil Liberties Union
v.
Executive Secretary.ai The Court ruled:4s
But what is indeed significant is the fact that although Sec-
tion 7, Article IX-B already contains a blanket prohibition againsr
the holding of multiple offices or employment in the government
subsuming both elective and appointive public officials, the Con-
stitutional Commission should see it fit to formulate another pro-
vision, Sec. 13, Article VII, specifically prohibiting the President,
Vice-President, members of the Cabinet, their deputies and assis-
tants from holding any other office or employment during their
tenure, unless otherwise provided in the Constitution itself.
4q RECORD 553. Morc will be said about this untlcr Arriclc lX, B, Sccrion 7.
sl94 SCRA 3t7 (teer).
asld il12'l l?8
I
ART. VII - EXECUTIVE DEPARTMENT 865
Evidently, from this move as well as in the different phrase-
ologies of the constitutional provisions in question, the intent of
the framers of the Constitution was to impose a stricter prohibi-
tion on the President and his official family in so far as holding
other offices or employment in the government or elsewhere is
concerned.
Moreover, such intent is underscored by a comparison of
Section 13 , Article VII with other provisions of the Constitution on
the disqualifications of certain public officials or employees from
holding other offices or employment. Under Section 13, Article
VI, "(N)o Senator or Member of the House of Representative may
hold any other office or employment in the Government.... " LJn-
der Section 5(4), Article XVI, "(N)o member of the armed forces
in the active service shall, at any time, be appointed in any capacity
to a civilian position in the Government, including government-
owned or controlled corporations or any of their subsidiaries."
Even Section 7 (2), Atticle IX-B , relied upon by respondents pro-
vides "(U)nless otherwise allowed by law or by the primary func-
tions of his position, no appointive official shall hold any other
office or employment in the Government."
It is quite notable that in all these provisions on disqualifica-
tions to hold other office or employment, the prohibition pertains
to an office or employment in the government and government-
owned or controlled corporations or their subsidiaries. In striking
contrast is the wording of Section 13, Article VII which states that
"(T)he President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not, unless otherwise provided in
this Constitution, hold any other office or employment during their
tenure." In the latter provision, the disqualification is absolute, not
being qualified by the phrase "in the Government." The prohibi-
tion imposed on the President and his official family is therefore
all-embracing and covers both public and private office or employ-
ment.
But the Court also added:4,
To reiterate, the prohibition under Section 13, Article VII
is not to be interpreted as covering positions held without addi-
tional compensation in ex-fficio capacities as provided by law and
as rcquircd by the primary functions of the concerned official's
'r"/r/. lt .l.l I
866 THE 1987 CONSTITIITION
OF THE REPUBLIC OF THE PHILIPPINES
office. The termex-fficio means "from office; by virtue of office."
It refers to an "authority derived from official character merely,
not expressly conferred upon the individual character, but rather
annexed to the off,cial position." Ex-fficio likewise denotes an
"act done in an official character, or as a consequence of office,
and without any other appointment or authority than that conferred
by the office."so An ex-fficio member of a board is one who is a
member by virtue of his title to a certain office, and without fur-
ther warrant or appointment.5' To illustrate, by express provision
of law, the Secretary of Transportation and Communications is the
ex-fficio Chairman of the Board of the Philippine Ports Authority,
and the Light Rail Transit Authority.s'?
In sum, therefore, except for the Vice-President who may be
appointed to the Cabinet, and the Secretary of Justice who is made
ex officio member of the Judicial and Bar Council, the officials
enumerated in Section 13 may not hold another office. But they may be
given additional functions which are intimately related to their primary
office. Such conferment of additional functions does not constitute a
new appointment. As the Court had earlier said in Rafael v. Embroidery
& Apparel Contol Board:$ " ... we do not think that, because additional
duties germane to the offices already held by them were devolved upon
them by the Act, it was necessary that they should again be appointed
by the President. ... It cannot be doubted, and it has frequently been the
case, that Congress may increase the power and duties of an existing
office without thereby rendering it necessary that the incumbent should
be again nominated and appointed."
Incidentally, when an Undersecretary sits for a Secretary in a func-
tion for which the Secretary may not receive additional compensation,
the prohibition on the Secretary also applies to the Undersecretary.54
It should also be noted that the stricter prohibition is imposed on
"members of the Cabinet." It therefore applies not just to department
secretaries, but to any one who is a member of the Cabinet even if he or
she is not a head of a department.
eBrecr's Ltw Drcnoxnr,p.516; l5AWords and Phrases, p. 392.
s'l5AWords and Phrases, p.392.
52Sec. l, E.O. No.2l0.
$21 SCRA336,342 (September 29,1961),quoting Shnemaker v. Unitc(l States, 147 [l.S
r70,185.
5aBitonio v. COA, G.R. No. 147392, March 12, 2(X)4
Sec. 13 Sec.13 ART,VII
- EXECUTIVEDEPARTMENT 867
The case of the appointment of Vice-President as Chairman of the
Presidential Anti-Crime Commission needs to be mentioned here. He
was not appointed to a Cabinet position nor to a position constituting an
intimate element of his duties as Vice-President. His only duty as Vice-
President is to be available to assume the presidency should a vacancy
arise. Clearly, therefore, it would seem to be covered by the prohibition
of Section 13. But the validity of his appointment was never challenged.
The only possible explanation for the tolerance of the situation must be
the assumption that the prohibition is meant to prevent the enhancement
of the powers of one who is already powerful or busy with other duties.
The Vice-President, by the nature of his office, is neither powerful nor
busy.
2. Other prohibitions.
The second and third sentences ofSection 13 say: "They shall not,
during said tenure, directly or indirectly practice any other profession,
participate in any business, or be financially interested in any contract
with, or in any franchise, or special privilege granted by the Govern-
ment or any subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries.
They shall strictly avoid conflict of interest in the conduct of their of-
flce." Prohibited participation in a contract with the government can
include being a member of family corporation which has dealings with
the government.55
There are two reasons for these prohibitions, reasons which also
apply to the first sentence: (1) to avoid conflict of interest and (2) to
force the officials to devote full time to their official duties.56
The second paragraph says: "The spouse and relatives by consan-
guinity or affinity within the fourth civil degree of the President shall
not during his tenure be appointed as Members of the Constitution-
al Commissions, or the Office of the Ombudsman, or as Secretaries,
Undersecretaries, chairmen or heads of bureaus or offices, including
government-owned or controlled corporations and their subsidiaries."
This is essentially an anti-nepotism provision which even in statutes
"l)orrxnul v. Suntlignrrbuyurr, 177 S('RA.t54 ( l9tt9)
'ill Rl('()l{l)4(}2 l
 THE 1987 CONSTITUTION Secs. 14-15 Sec. 16 ART. VII - EXECUTIVE DEPARTMENT
OF THE REPUBLIC OF THE PHILIPPINES

normally goes up to the fourth degree of consanguinity or affinity.' If SBc. 16. Trm PnnsrnBNT sHALL NoMTNATE AND, wrru TrrE
fourth degree relatives, however, are already in office when a President coNsENT oF TrrE ColvrlrrssroN oN ApporNruENTs, ApproINT THE
HEADS OF THE EXECUTM DEPARTMENTS, AMBASSADORS, OTHER
assumes office, the relatives are not thereby ousted from their positions.
PUBLIC MINISTERS AND CONSI]LS, OR OFFICERS OF THE ARMED FORCES
What is prohibited is appointment or reappointment and not uninter-
FROM THE RANK OF COLONEL OR NAVAL CAPTAINTAND OTHER OFFICERS
rupted continuance in office.'8
wHosn AppoINTMENTS ARE vEsrED IN HIM IN THIS CoNsrrrurron.
Beyond the constitutional prohibitions there also is the rule on Hr sn.lr,r, ALSo ApporNT ALL orHER oFFrcERs oF THE Govpnxurnt
incompatible offices. Thus, since the Chief Presidential Legal Counsel wHosE APPOINTMENTS ARE NOT OTHERWTSE PROVIDED FOR By LAW,
has the duty of giving independent and impartial legal advice on the ac- AND THosE wHoM IIE MAy BE AIJTHoRTZED By LAw ro,lpporNr. THn

tions of the heads of various executive departments and agencies and to CoNcnnss MAy, By LAw, vEsr rIrE ArroINTMENT oF orHER oFFIcERs
LowER IN RANK rN rnp PnrsroENT ALONE, IN THE couRTs, oR IN THE
review investigations involving other presidential appointees, he may
HEADS OF DEPARTMENTS, AGENCIES, COMMISSIONS, OR BOARDS.
not occupy a position in any of the offices whose performance he must
review. Such would involve occupying incompatible positions. Thus THr PnpsInsNr SHALL HAVE TIIE powERTo MAKEAppoINTMENTs
cannot be PCGG Chairman and at the same time head of the PCGG DURTNG THE REcEss oF TIIE Coxcnrss, wHETHER voLUNTARy oR
"he COMPULSORY, BUT SUCH APPOINTMENTS SITALL BE EFFECTIVE ONLY
since the PCGG answers to the President.se
UNTrL DISAppRovAL By rHE CouurssroN oN ApponruENTs oR uNTrL
AcrrNc PnnsrnrNr THE NExr ADJoURNMENT oF THE Concnrss.
SBc. 14. ApporNrlrpltts ExTENDED nv .LN

SHALL REMAIN EFFECTIVET uNLESS REVOKED BY THE nr,ncrno Pnr-

SIDENT WITHIN NINETY DAYS FROM HIS ASSUMPTION OR REASSUMPTION 1. Nature of the appointing power.
OF OFFICE.
An argument drawn from the animal-plant-mineral trilogy was
Snc. 15. Two noNrns IMMEDIATELY BEFoRE THE NExr used by the Supreme Court in classifying the nature of the power to
IRESIDENTIAL ELFtcTIoNS AND uP To rHE END oF IrIs rERMt.t Pnn' appoint. In Government v. Springer,62 the Supreme Court said that since
STDENT on Actltlc PnrsmRNt sHALL Nor MAKE APPOINTMENTSt
the power to appoint is neither legislative nor judicial, it must be execu-
EXCEPT TEMPORARY APPOINTMENTS TO EXECUTIVE POSITIONS WIIEN
tive.
CONTINIJED VACANCIES THEREIN WILL PREJUDICE PUBLIC SERVICE OR
ENDANGER PUBLIC SAFETY. While this approach may seem facetious, it is really one that is
made inevitable by the nature of a tripartite form of government. One
1. Midnightappointments. can fairly define legislative power as the power to make laws and judi-
cial power as the power to decide cases and controversies and thereby
The prohibition found in this section applies even to appointments
arrive at a fairly certain confinement of these two powers. But executive
to the judiciary. The provision in Article VIII which requires the Presi-
power, which includes the power to "take care that the laws be faith-
dent to make appointments to the judiciary within ninety days applies
fully executed"
only to the period not covered by Article VII, Section 15.00 - a phrase used in the 1935 Constitution63 and also in
Section lT,Article VII of the 1987 Constitution is not so easily cab-
should also be noted that this provision is a limitation on the
It
-
ined. Like charity, it can cover a multitude of sins. Hence, what Govern-
President's power of appointment. There is no similar ;limitation on the ment v. Springer really implies is that whatever power is not properly
power of appointment of local executives.u' legislative or judicial must be attributed to the executive. Thus could
Concepcion v. Paredesoo say that "Appointment to office is intrinsically
s7
Id. at 403 . 541 .
581d. at 538-540.
5ePublic Interest Group v. Elma, (i.R. No. I3tl()65, Jtrne 30' 2(X)6- I'hil, 259,281 ( 1927)
"t5()
sln rr,. Appointmcnl ol Vtlcnzttcllr, AM ()tt-0501 S(', Novcnrhcr (), l()98 6rArliclc Vll, Sccliorr l(X l lt drrl not rll)1rcr] ilt the l()73 (irnsriturion
).
r'rDe la Ranrit v. ('otrll ol Aplx'irls. ( i.l{. No. l \l l }(r. ltlrrtt:try 2l{,2(X)1. M42 I'hrl. 5()(r, fi l l ( 192 1
).
 THE 1987 CONSTITUTION Sec. 16
OFTHE REPUBLIC OFTHE PHILIPPINES
an executive act ..." Indeed, the filling up of an office created by law is
the implementation or execution of that law.
Since the power to appoint is an executive function, the clear im-
plication is that the legislature may not usurp such function. The legis-
lature may create an office and prescribe the qualifications of the person
who may hold the office, but it may neither specify the person who shall
be appointed to such office nor actually appoint him. The "appointing
power is the exclusive prerogative of the President, upon which no limi-
tations may be imposed by Congress except those resulting from the
need of securing the concurrence of the Commission on Appointments
and from the exercise of the limited legislative power to prescribe the
qualifications to a given appointive office."65 For this reason, even the
next-in-rank rule of the Civil Service Code cannot be read as binding
the appointing authority to choose the first in the order of rank when
two or more possess the requisite qualifications. Of essence to the ap-
pointing authority is the power to choose who among the various quali-
fied choices is the best suited.uu Similarly, the provision in the Revised
Administrative Code of 1987 (Book IV Title III, Chapter II, Section 9)
to the effect that "All provincial and city prosecutors and their assistants
shall be appointed by the President upon the recommendation of the
Secretary" cannot be read as requiring the President to seek the recom-
mendation of the Secretary of Justice. The power to appoint prosecutors
is given to the President. The Secretary of Justice is under the control
of the President. Hence, the law must be read simply as allowing the
Secretary of Justice to advice the hesident.6?
An attempt to curtail the appointing authority of the President
failed when the Court ruled that Congress, through a law, cannot im-
pose on the President the obligation to appoint automatically the under-
secretary as her temporary alter ego to fill a vacancy in the office of a
Department Secretary "An alter ego,whether temporary or permanent,
holds a position of great trust and confidence. Congress, in the guise of
prescribing qualifications to an office, cannot impose on the President
who her alter ego should be."et
6Manalang v.
Quitoriano, 94 Phil. 903, 9 1 1 ( 1 954).
6Pineda v. Claudio,23 SCRA 34,46-47 (May 30, 1969); Oliveros-Torrc v. lluyot,5ll
SCRA 272, 290-l (July 3l, 1974).
6TBermudez, et al. v. Secretary, G.R. No. I 31429, August 4, 1999.
dPimentel, Jr. v. Ermitn, G.R. No. 164971.l, ()ckrbcr 1.1,2(X)5.
Sec. 16 ART. VII _ EXECUTIVE DEPARTMENT 871
The appointing authority of the President, however, should not
be confused with the authority of the legislature to impose additional
duties on existing offices. Thus, as already seen, while it was clearly
the prerogative of the President to appoint the members of the Supreme
Court, Roxas v. Lopez6n upheld the authority of Congress to create a
Presidential Electoral rribunal consisting of the chief Justice and the
Justices of the Supreme court. The supreme court held that the act
did not create a new office nor specify who should hold the office but
merely imposed additional duties and powers upon the supreme court
and consequently upon whoever may be the incumbent chief Justice
and Associate Justices.T0 As already noted, this principle has implica-
tions for the interpretation of the prohibitions in Section 13.
2. Kinds of presidential appointments.
Sections 14,15, and 16 speak of four different kinds ofpresiden-
tial appointments. Section 14 deals with appointments made by an Act-
ing President. when the elected President assumes or reassumes office,
he is given ninety days within which to revoke appointments made by
the Acting-President. If he does not revoke them, they remain as if they
had been made by an elected President.
Section 15 deals with appointments made by a president within
two months before the next presidential elections and up to the end of
his term.In order not to tie the hands of the incoming president through
midnight appointments,z' appointments made during that period can
only be temporary and therefore revocable by the next president.
Section 16, which had a counterpart in the 1935 Constitution,
deals with regular presidential appointments, with or without confirma-
tion by the Commission on Appointments, and with '.recess,, or ..ad-
interim" appointments.
6qt7
s('RA 756 (t966).
tttld. trtT'lo. stc ulso Rafael v.
Embroidery and Apparel Control Board, L-1997g, Septem-
hcr' 29. I t)67 which dcalt with an act creating an Embroidery and Apparel Control and Inspection
Ilolrlrl.
cclcblrrctl clsc ()l'Ayr()na v. ('lstillo, 4 scRA I (1962). Macapagal was pro-
'',5'r'r' thtr
r'lititturl clt'tletl orr l)cccrrrbcr II, l9(rl. On l)cccrrrtrcr 29, I962,Garcia appointed Aytona Gover-
ttrl ol lltc('cttlrrrl llttttk.()tt l)t'tctttlrcr iO, l(Xrl,Mnctptgul ussumcdollicctnrl issucdtnutlmin-
isllrrlivt onlcr rctrrllirrg ltll oplxrintntcnts rrullc ulicr l)ccernhcr 13, l96l.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
3. Scope of the power of the Commission on Appointments.
The restoration of the Commission on Appointments restores an
executive limit on the appointing authority of the President removed
by the 1973 Constitution. Under the 1973 Constitution, no other en-
tity could check the President. The 1987 Constitution has restored the
Commission on Appointments as a check on the President's appointing
authority. As will be seen, however, the scope of the power of the 1987
Commission on Appointments is not as broad as that of the Commis-
sion in the 1935 Constitution.
Under the 1935 Constitution, the general rule was that all presi-
dential appointments needed the consent of the Commission on Ap-
pointments. This rule clearly comes out from the text of the 1935 Con-
stitution whose Article VlI, Section 9(3) said:
The President shall nominate and with the consent of the
Commission on Appointments, shall appoint the heads of the exec-
utive departments and bureaus, officers of the Army from the rank
of colonel, of the Navy and Air Forces from the rank of captain or
commander, and all other officers of the government whose ap-
pointments are not herein otherwise provided for, and those whom
he may be authorized by law to appoint; but the Congress may by
law vest the appointment of inferior officers in the President alone
in the courts, or in the heads of departments.
The text is all in one sentence, and the sentence expresses the rule
and the exception to the rule. The rule is encapsulated in the clauses that
end with a semi-colon and which yield the meaning that all presidential
appointments need the consent of the Commission onAppointment.Af-
ter the semi-colon comes the exception. Congress can create the excep-
tion by vesting in the President alone, in the courts, or in the heads of
departments the power to appoint "inferior officers."
The text originally proposed by the Committee on the Executive
of the 1986 Constitutional Commission was almost a literal copy of the
1935 text. It read:
The President shall nominate and, with the consent of the
Commission on Appointments shall appoint the hcads ol thc cx
ecutive departments ancl bureaus, ambassadors, othcr pr.rhlic nrin-
isters and consuls. <lr ol'ficct's ol'thc arrnctl lirrccs lkrrrr tlrc lurrk ol'
c<lltltrcl <lr navitl crrlllirirt rtntl irll ollrcr ol'liccls ol'llrt. ( iove rrrrrrt:rrl
Sec. l6
ART. VII - EXECUTIVE DEPARTMENT
whose appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The Congress
may by law vest the appointment of inferior officers, in the presi-
dent alone, in the courts, or in the heads of departments.
This proposed text yielded the same general rule and exception to
the general rule which the 1935 text had. But what was finalry approved
as Article vII, section 16 of the 1987 constitution was constructed dif-
ferently. It now says:
The President shall nominate and, with the consent of the
Commission on Appointments, appoint the heads of the executive
departments, ambassadors, other public ministers and consuls, or
officers ofthe armed forces from the rank ofcolonel or naval cap-
tain, and other officers whose appointments are vested in him in
this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for
by law, and those whom he may be authorized by law to appoint.
The Congress may, by law, vest the appointment of other officers
lower in rank in the President alone, in the courts, or in the heads
of departments, agencies, commissions, or boards.
There are now three sentences. The first sentence speaks of a three
step process: nomination, consent, and appointment. The second sen-
tence, beginning with the phrase "He shall also appoint .," speaks
only of appointment. what is the significance of the period between the
two sentences which was inserted as a deliberate amendment? commis-
sioner Regalado gives the answer in his acceptance of the amendment
proposed by Commissioner Foz to the original Committee proposal:',
MR. FOZ. Madam President . . . I propose to put a period (.)
after "captain" and . . . delete "and all" and substitute it with HE
SHALL ALSO APPOINT ANY.
MR. REGALADO. Madam President, the Committee ac-
cepts the proposed amendment because it makes it clear that those
olher offir'ers mentioned therein do not have to be confirnted by the
(' t tm m i r r i on ttn Appt ti nlmt'nl'.
Alicr Rcgalado ac:c:cptcd thc placing of a period fbr thc purpose
cxlllitittt:tl, l)itvitlcr ittltlctl lhc pltrirsc "lrrtl olhcr ol'liccrs wlr<tsc itpl'roilt-
' ll lil ( 1l.il ) 1.'t)
814 THE 1987 CONSTITUTION Sec. 16
OF THE REPUBLIC OF THE PHILIPPINES
ment are vested in him in this Constitution." Did that Davide addition
change the picture again? No, because Davide clearly explained that he
was referring to offices created by the Constitution such as Commission
on Elections, the Commission onAudit, and Civil Service Commission.
He was not referring to statutorily created offices.
It is also noteworthy that Regalado's acceptance also included
sought to delete "and
his acceptance of another Foz amendment which
bureaus" from the original Committee proposal. As Foz explained:
"It is still the President who will appoint them but their appointments
shall no longer be subject to confirmation by the Commission on
Appointments.""
The conclusion, therefore, is clear: whereas under the 1935 text
the general rule was that all presidential appointments needed the con-
sent of the Commission on Appointment, under the 1987 text only those
coming under the first sentence of Section 16 need the consent of the
Commission on Appointments. These are: "the heads of the executive
departments, ambassadors, other public ministers and consuls, or of-
ficers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this Con-
stitution." Following this rule, the Court ruled that the appointment of
the Customs Bureau DirectorT4 and of the Chairman of the Commis-
sion on Human Rights" do not need confirmation by the Commission
on Appointments because they are not mentioned in the first sentence
of Section 16; but the appointment of sectoral representatives needs
confirmation because they come under the clause "and other officers
whose appointments are vested in him in this Constitution." Appoint-
ment of sectoral representatives by the President is provided for in Ar-
ticle XVIII, Section 7.
Itshould be noted that not every officer of Cabinet rank come
under the three step appointment rule. Only heads of executive depart-
ments do. Moreover, if the Vice-President is appointed head of an ex-
ecutive department, his appointment does not need Commission con-
firmation.'6
131d.
at 516.
TaSarmiento v. Mison, 156 SCRA 549 ( 1987)
T5Bautista v. Salonga, 172 S('RA 160 ( l9tt9)
?"Articlc Vll. Scctiorr .1.
Sec. 16 ART. VII _ EXECUTIVE DEPARTMENT 875
It should also
be noted that the first Armed Forces rank needing
Commission confirmation is colonel. This is a departure from the 1973
rule, which started from the rank of brigadier general,r, and a return to
the 1935 rule.?s The return to the 1935 rule was arrived at after much
debate. To some extent the decision of the Commission was influenced
by the observation that coups are generally led by colonels.Te The provi-
sion, hopefully, will have the effect of strengthening civilian supremacy
over the military.so
Does the appointment of police generals need confirmation? The
answer must be in the negative because the officers referred to in Sec-
tion 16 are officers of the Armed Forces, that is, military officers . police
generals are civilian officers because of Article XVI, Section 6 which
characterizes the police force as civilian. Thus the court invalidated a
provision in the PNPLaw confirmation by the Commission onAppoint-
ments of the promotion of senior officers of the PNP.8r
Similarly appointments among the Philippine Coast Guard do not
need Commission confirmation. The paramount effect of the transfer
of the Philippine Coast Guard (PCG) from the Department of National
Defense to the Office of the President and eventually to the DOTC is
the transformation of the PCG into a non-military agency. Thus, the
PCG is already civilian in character.8z
The phrase "other officers whose appointments are vested in him
in this Constitution" refers to those specifically mentioned by the Con-
stitution as officers to be appointed by the President with the consent
of the Commission. They are the Chairmen and Commissioners of the
Civil Service Commission, Commission on Elections and Commission
on Audit,'r and the regular members of the Judicial and Bar Council,'o
that is, the representative of the Integrated Bar, a professor of law, a re-
tired member of the Supreme Court, and a representative of the private
sector.ss To these must be added sectoral representatives. As euintos-
TTArticle VII, Section l0 (1973).
TsArticleVII, Section l0(3), (1935).
}II RECORD 394.395.
8o/r/.
at 5 14-520.
srMrnakr v. Sistozn,ct tl.,C.R.
No. 107369.August I |, 1999.
srSoriano v. l.istt,447 Phil.
566 (2003).
I'Alticlc lX. ll,Scction I(2); (',Scction I(2),and D. Scction I(2)
*{Articlc Vlll. Scction t{(2).
NrArliclc Vlll, Scctiorr ll( l)
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Deles v. Commission on Appointmentss6 has pointed out, the Constitu-
tion provides for their appointment by the President in Article XVIII,
Section 7.
Although the power to appoint Justices and judges as well as the
appointment of the Ombudsman and his Deputies is vested in the Presi-
dent, such appointments do not need confirmation by the Commission
on Appointments. The check on the President's power to appoint these
officers is through the Judicial and Bar Council. The Constitution limits
the President's choice to those recommended by the Judicial and Bar
Council."
The offices of Chairman and of members of the Commission on
Human Rights are created by the Constitution;88 however, the Consti-
tution does not specify who should appoint them. Hence, they do not
come under the first sentence of Section 16 but under the phrase "all
other officers of the Government whose appointments are not otherwise
provided for by law" in the second sentence. Hence, their appointments
do not need confirmation by the Commission on Appointments.
The phrase "all other officers of the government whose appoint-
ments are not otherwise provided for by law" means that when a law
creating an office does not specify who shall appoint the officer, the
appointment must be made by the President.8'
4. Appointment of officers'6lower in rank."
The last sentence ofthe first paragraph of Section 16 says: "The
Congress may, by law, vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the heads of departments,
agencies, commissions or boards." This sentence, which is a relic from
the 1935 and 1973 Constitutions, has somewhat been bluned by the
narrowing of the scope of the review power of the Commission on Ap-
pointments.
Rufino v. Endrigaso interpreted the meaning of the power given to
heads of commissions and boards. When the authority is given to head
sr77 SCRA 259 ( 1989).
srArticle VIll, Section 9l Articlt: Xl, Section 9.
8sArticle Xlll, Scclion l7( I ) ttnd (2).
*"Nievc v, ('rxtrl ol lrirst lttslttttcc,54 S('RA 165' lTO l (197.1).
'x'( i.R. No, l l()5,54,.lltly 21, 2(XXr.
Sec. 16 ART. VII - EXECUTIVE DEPARTMENT
of collegial bodies, it is to the chairman that the authority is given and
not to the body. But he can appoint only officers ..lower in rank,', and
not officers equal in rank to him. Thus a chairman may not appoint a
fellow member of a Board.
under the 1935 constitution, the provision was: "but the congress
may by law vest the appointment of inferior officers in the president
alone, in the courts, or in the heads of departments." As already seen, it
meant that, while the general rule was that all presidential appointments
needed confirmation by the commission on Appointments, congress
could relax this rule by vesting the power to appoint "inferior officers,,
in "the President alone, in the courts, or in the heads of departments.,,
It also meant that while, generally, appointing authority belongs to the
President, congress could let others share in such authority. And the
word "inferior" was understood to mean not petty or unimportant but
lower in rank. The 1987 text, in order to eschew any pejorative con-
notation, avoids the phrase "inferior officers" and translates it instead
into "officers lower in rank," that is,lower in rank than the courts or the
heads of departments, agencies, commissions, or boards.
under the 1973 constitution, according to which the power of the
President to appoint was not limited by any other body, the provision
read: "However, the Batasang Pambansa may by law vest in members
of the cabinet, courts, heads of agencies, commissions, and boards
the power to appoint inferior officers in their respective offices."n, No
mention was made of the President. The premise was that the power to
appoint already belonged to the President; but the Batasan could dif-
fuse this authority by allowing it to be shared by officers other than the
President.
The 1987 provision also has the evident intent of allowing con-
gress to give to officers other than the president the authority to appoint.
what is the significance of the phrase "the president alone?" Does it
mean that congress has discretion to allow the president to appoint
without need of confirmation in the same way as in the 1935 Consti-
tution? such a reading would evidently contradict the obvious intent
of the framers to limit the confirmation authority of the commission
on Appointlnents to the list contained in the first sentence of Section
''rArlit'lc Vll. Section lO ( l()7 l)
878 THE I9STCONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
16. Yet this was the burden of the dissents in Sarmiento v. Misonn2 and
Bautista v. salonga.s3 But in the light of the evident intent of the fram-
ers to limit the scope of the authority of the Commission on Appoint-
ments, the phrase "the President alone" now has a different meaning.
Whereas under the 1935 Constitution "alone" meant to the exclusion of
the Commission on Appointments, under the 1987 Constitution "alone"
means to the exclusion the courts, the heads of departments, agencies,
commissions or boards. In other words, it emphasizes the authority of
Congress to decide whether the appointment of "officers lower in rank"
should be preserved for the "President alone" or may be shared with
courts, the heads of departments, agencies, commissions or boards.no
5. May Congress require other appointments to be con'
firmed by the Commission onAppointments?
Since the general rule now is that there is a limited number of
officials whose appointments under the Constitution require the con-
sent of the Commission on Appointments, may Congress pass a law
requiring that other appointments should pass through the Commission
on Appointments? There is no provision in the text of the Constitution
walranting an affirmative answer to the question. There is, however, a
passage in the Records of the 1986 Constitutional commission where,
in reply to two separate questions, the answer was given that Congress
may pass such a law. The exchange went this way:e5
MR. FOZ. Madam President ... I propose to put a period (')
"captain" and ... delete "and all" and substitute it with HE
after
SHALLALSO APPOINTANY.
MR. REGALADO. Madam President, the Committee
cepts the proposed amendment because it makes it clear that those
other officers mentioned therein do not have to be confirmed by
the Commission on APPointments.
MR. DAVIDE. Madam President.
THE PRESIDENT: Commissioner Davide is recognized'
q156
SCRA 549,576-581.
e3172 SCRA 160, 191-200.
eaMy earlier view on this, confirmcd hy Sarmit'nlo v. Mi.utn, was thal thc rctcnti()ll ol thc
phrase "the President alone" wtts an ovcrsighl.
*ll Rli('()Rl) 520 52 L
Sec' 16 Sec. l6 ART. VII - EXECUTIVE DEPARTMENT 879
MR. DAVIDE. I just would like to ger a clearer intention.
With the acceptance of that proposed amendment, would Con-
gress be prohibited from creating an office and vesting the author-
ity of appointing the officials therein on the President, with the
requirement that such appointments should bear the conformity
or consent of the Commission on Appointments? Under the pro-
posal, it would seem that all other such officials may be appointed
without the consent of the Commission on Appointments, prohib-
iting, therefore, the legislature to so create an office for which the
requirement of consent of the Commission on Appointments for
positions therein is stated in the law itself.
FR. BERNAS. Madam President, the constitutional list of
officers whose appointments need the confirmation of the Com-
mission on Appointments is not exclusive. If the Congress is so
minded, it may require other offlcers also to be confirmed by the
Commission on Appointments.
MR. DAVIDE. So would the proponent accept an amend-
ment to his amendment, so that after "captain" we insert the fol-
lowing words: AND OTHER OFFICERS WHOSE APPOINT:
MENTS ARE VESTED IN HIM IN THIS CONSTITUTION?
FR. BERNAS.It is a little vague.
MR. DAVIDE. In other words, there are positions provided
for in the Constitution whose appointments are vested in the Presi-
dent, as a matter of fact like those of the different constitutional
commissions.
FR. BERNAS. That is correct. The list of officials found in
Section 16 is not an exclusive list of those appointments which
constitutionally require confirmation by the Commission on Ap-
ac-
pointments.
MR. DAVIDE. That is the reason I seek the incorporation of
the words I proposed.
FR. BERNAS. Will Commissioner Davide restate his pro-
posed amendment?
MR. DAVIDE. After "caprain," add the following: AND
OTHER OFFICERS WHOSE APPOINTMENTS ARE VESTED
IN HIM IN THIS CONSTITUTION.
TIR. I]I]RNAS. [IrrW AhOUt: ..AND OTHER OFFICERS
WllOsli nl'l)OlN'l'MltN'fS RllQtllRIl ('ONITIRMAIION tlN-
l)lilr 't'l I ts ('( )NS'l't't't l't'l( )N"'l
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
MR. DAVIDE. Yes, Madam President, that is modified by
the Committee.
FR. BERNAS. That will clarify things.
THE PRESIDENT. Does the Committee accept?
MR. REGALADO. Just for the record, of course, that ex-
cludes those officers which the Constitution does not require con-
firmation by the Commission on Appointments, like the members
of the judiciary and the Ombudsman'
MR. DAVIDE. That is correct. That is very clear from the
modification made by Commissioner Bernas.
THE PRESIDENT. So we have now this proposed amend-
ment of Commissioners Foz and Davide.
MR. RODRIGO. Madam President, before we vote, may I
be clarifled. As worded now, other officers, aside from those enu-
merated here, may also be appointed by the President with the
confirmation of the Commission on Appointments, if it is so pro-
vided in this Constitution. I remember Commissioner Bernas say
that officers may also need the confirmation of the Commission on
Appointments if so provided by law, so that the approval of that
amendment which says "UNDER THIS CONSTITUTION" does
not exclude the power of the legislature to enact a law providing
that these officials shall need the confirmation of the Commission
on Appointments.
FR. BERNAS.It does not.
MR. RODRIGO. Thank You.
THE PRESIDENT. Is there any objection to this proposed
amendment of Commissioners Foz and Davide as accepted by the
Committee? (Silence) The Chair hears none; the amendment, as
amended, is approved.
The view expressed by Father Bernas, to which no one objected,
was an eversion of traditional constitutional theory. Traditionally the
power to appoint is essentially executive, and the legislature may not
interfere with the eiercise of executive power except in those instances
when the Constitution expressly allows it to interfere. As Manalang v-
Quitorianono said: "the appointing power is the exclusive prerogiltivc
,,,,rll Phil. (x)\.()l I
( l()5,1)
Sec. 16 Sec. 16 ART. VII * EXECUTIVE DEPARTMENT 881
of the President, upon which no limitations may be imposed by Con-
gress, except those resulting from the need of securing concurrence of
the Commission on Appointments and from the exercise of the limited
power to prescribe the qualifications to a given appointive office." That
is the reason why Commissioner Rodrigo, thoroughly reared in the tra-
dition of the 1935 Constitution, asked his question.
The fact, however, that the 1986 Constitutional Commission did
not object to this departure from traditional doctrine can be explained
by the other fact that the Constitutional Commission, while wanting to
restore the Commission on Appointments, radically narrowed the scope
of its constitutional power thus leaving the possibility that appointments
to some key statutory office might pass without adequate screening. For
instance, appointment to the powerful position of Governor of the Cen-
tral Bank is not covered by the need for Commission on Appointments
concurrence in Section 16. The thinking of Father Bernas, therefore,
was that the 1987 provision, after departing from the unlimited appoint-
ing authority under the 1973 Constitution, reverses the manner of de-
termining the scope of the authority of the Commission under the 1935
Constitution. Under the 1935 Constitution, Congress could contract the
rule requiring concurrence of the Commission on Appointments; under
the 1987 Constitution Congress should be able to expand the narrow
scope of the authority of the Commission. This view, however, is not
expressed in the text of Section 16. On this basis Calderon v. Caralee,
ruled, although still with some dissents, that Congress may not expand
the list.
Carale involved R.A. No. 6715 which required that the Chairman
and Commissioners of the National Labor Relations Commission be
appointed by the President with the confirmation of the Commission
on Appointments. The Court reiterated its ruling in Mison and Bautista
saying that the list in the first sentence of Section 16 of those whose
appointment require confirmation by the Commission on Appointments
is exclusive, adding that the list may no be expanded by statutory leg-
islation. The same doctrine was followed in Tarrosct v. Singsons with
ref'ercnce to the appointment of the Central Bank Governor.
"/.101{ li('l{4.154 1 19()r1 \rt rtl.rrr 2.1.) S('l{A 55 I ( |()().1)
q.l t.)
s(,1{A 55 t 1 1111,1'
882 THE 1987 CONSTITUTION Sec. 16
OF THE REPUBLIC OF THE PHILIPPINES
For those who still hope that this doctrine will be reversed, People
v. Gacott, Jr.ee might offer a piece of straw to latch on to. Going against
the text of the Constitution but relying on an unrecorded conversation
with former Chief Justice Roberto Concepcion who was the Chairman
of the Committee on the Judiciary of the 1986 Constitutional Commis-
sion, Regalado claimed that Concepcion had explained to him that the
provision on the discipline of judges did not require that all disciplinary
case be heard en banc by the Court. The text says to the contrary. But
the other Justices accepted Regalado's testimony, and en banc.lnthe
case of the Commission on Appointments, however, the record attests
to the intention of the Constitution Commission.
Finally, it should be remembered that, when the Commission on
Appointments checks the appointments made by the President, it is not
strictly a case of the legislative department interfering with the execu-
tive department. Although the Commission on Appointments is assem-
bled by Congress and can meet only when Congress is in session and,
therefore, can, to that extent, be immobilized when Congress decides to
adjourn,'' the Commission on Appointments is a creature of the Con-
stitution and not of Congress, and is not legislative but executive in na-
ture. As the Supreme Court said in Cunanan v. Tan, Jrr.'r0r "Although its
membership is confined to members of Congress, said Commission is
independent of Congress. . .. In fact, the functions of the Commissioner
are purely executive in nature."
6. tttemporary
"Recess" or'6ad-interim" appointments and
appointments."
The second paragraph of Article VII, Section 16 says: "The Presi-
dent shall have the power to make appointments during the recess of
the Congress, whether voluntary or compulsory, but such appointments
shall be effective only until disapproval by the Commission on Ap-
pointments or until the next adjournment of the Congress."
The Constitution does not define recess but it says that appoint-
ments can be made "during the recess of the Congress, whether volun-
tary or compulsory." This obviously refers to the period when Congress
is not in session either because it has voluntarily declared a recess under
ryG.R. No. ll6049,July 13, 1995.
r(x)Gucvara v. lnoccntcs, l6 S('RA 379.:ltt5 (Milrch 15, l9((r)
tttt5ri('RA l(l(Xlz).
Sec. l6 ART. VII - EXECUTIVE DEPARTMENT 883
Article VI, Section 16(5) ("voluntary recess") or because, although in
existence, it is not allowed by the Constitution to be in session ("com-
pulsory recess"). This compulsory recess can only refer to two situa-
tions: (1) the thirty day period between sessions during which Congress
may not meet, that is, thirty days before the fourth Monday of July,
according to Article VI, Section 15 or (2) the period between the begin-
ning of a new term (noon of June 30 next following an election) and the
beginning of a regular session (fourth Monday of July) referred to in
Article VI, Sections 7 and 15. Moreover, the voluntary recess starts the
moment one of the two Houses adjourns because Congress cannot be
considered in session when only one of them is meeting.'o2
For a recess or ad-interim appointment to be effective, it does not
have to wait for action by the Commission on Appointments. It be-
comes effective once it is delivered to and accepted by the appointee.'03
However, if they are of the type which require Commission concur-
rence, they are "effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress." There
are thus two modes of terminating ad-interim appointments: (l) disap-
proval by the Commission and (2) adjournment of Congress prior to
Commission action on the appointment. Are these two modes of termi-
nating an ad-interim appointment independent of each other?
But an ad interim appoinment is not a temporary appointment.
It is permanent. This was remphasized by the Court in Matibag v.
Benipayo:toa
More than half a century ago, this Court had already ruled
that an ad interim appointment is permanent in character. In Sum-
mers vs . Ozaeta jos decided on October 25 , 1948, we held that:
"... an ad interim appointment is one made in pursu-
ance of paragraph (4), Section 10, Article VII of the Con-
stitution, which provides that the 'President shall have the
r"'?|
6 SCRA at 386.
r{rrRosales v. Yenko, G.R. No. 20618,
May 25, 1965. The practice under the 1935 Constitu-
tion was fbr the President to submit "ad-interim" appointments for conflrmation only when the
Cornmission on Appointments was in session. That practice allows the President time to determine
which ol his:rppointntcnts havc bccn acccptod by thc appointees thereby avoiding the possibility
ol suhntitting appointlrrcnts which the oppointccs thcrrrsclvcs mny have rejected. Aytona v. Cas-
rilkr,4 S('RA I (1962).
r'!(i.R. No. l4tX).16. Aplil l, 2(X)2.
r,''l I'lril.754 1 1r1,11'
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
power to make appointments during the recess of the Con-
gress, but such appointments shall be effective only until
disapproval by the Commission on Appointments or until
the next adjournment of the Congress.' It is an appointment
permanent in nature, and the circumstance that it is subject
to confirmation by the Commission on Appointments does
not alter its permanent character. An ad interim appoint-
ment is disapproved certainly for a reason other than that
its provisional period has expired. Said appointment is of
course distinguishable from an'acting' appointment which
is merely temporary, good until another permanent appoint-
ment is issued."
The Constitution imposes no condition on the effectivity of
an ad interim appointment, and thus an ad interim appointment
takes effect immediately. The appointee can at once assume office
and exercise, as a de jure officer, all the powers pertaining to the of-
fice. In Pacete v. Secretary of the Commission on Appointments,to6
this Court elaborated on the nature of an ad interim appointment
as follows:
"A distinction is thus made between the exercise of such presi-
dential prerogative requiring confirmation by the Commission on Ap-
pointments when Congress is in session and when it is in recess.In the
former, the President nominates, and only upon the consent of the Com-
mission on Appointments may the person thus named assume office. It
is not so with reference to ad interim appointments. It takes effect at
once. The individual chosen may thus qualify and perform his function
without loss of time. His title to such office is complete. In the language
of the Constitution, the appointment is effective 'until disapproval by
the Commission on Appointments or until the next adjournment of the
Congress."'
An ad interim appointment cannot be withdrawn or revoked
the President's pleasure.It is permanent and can be terminated only by
disapproval by the Commission on Appointments or when bypassed by
Congress.'07
It should be noted, however, that ad interim appointments are dif-
ferent from temporary appointments. Ad interim appointments can be
10640 qcRA 58 ( 197 I
).
(i.lt
r0/M:tlib:rg v. llcrrip:ryo, No. l,l(l{)t(r,April il.2(X}.1
Sec. 16 Sec. l6 ART. VII _ EXECUTIVE DEPARTMENT 885
made only when congress is not in session. When, however, a vacancy
occurs in the office of a Department Secretary while Congress is in
session, a temporary appointment may be made by the President to fill
the vacant position. Section 17, Chapter 5, Title I, Book III of EO 292
states that "[t]he President may temporarily designate an officer already
in the government service or any other competent person to perform the
functions of an office in the executive branch." But the law may not tell
the hesident which person to appoint.'0s
ln Guevara v. Inocentes,ro the contention of the petitioner was
that termination through adjournment takes effect only if there has been
an opportunity for the Commission on Appointments to consider the
nomination. But since the Commission had not been organized before
the special session adjourned, he contended that adjournment could not
terminate his appointment because no Commission had as yet had the
opportunity to act on and much less disapprove the appointment. Re-
jecting such an interpretation, the Supreme Court said:
If the framers of the Constitution had intended to make the
operation of the second clause dependent upon the prior constitu-
tion of the Commission on Appointments, they should have stated
in clear terms considering that the first clause implies a positive
act of the Commission while the second an entirely separate and
independent act of Congress. Indeed, the theory of the petitioner,
if carried to its logical conclusion, may result into the anomaly
that, should Congress be controlled by a party not inclined to or-
ganize said Commission, or should there arise a group which for
reasons of its own indulges in obstructionism, the Commission on
Appointments contemplated in the Constitution is never organized
as a consequence of the action of either, any appointment made
during the recess of Congress would never run the test of legisla-
tive scrutiny and would thereby be always considered permanent
at . ... Thus, it becomes imperative that we avoid such absurd result.
The petitioner in Guevara also contended that the adjournment
referred to was not the adjournment of a special session but of a regular
session. The Court's answer was simple: "When the law does not dis-
tinguish we should not distinguish."rr0
roiPimcntcl. Jr. v. Ermita, C.R. No. I6497ti, ()ctobcr I 3, 2(X).5.
rrpl6 S('RA nt Jll9.
&
[o/r/. tl Jtl5.
886 THE 1987 CONSTITUTION Sec. 16
OF THE REPUBLIC OF THE PHILIPPINES
What happens, however, if a special session is called and that ses-
sion continues until the day before the start of the regular session? Do
appointments given prior to the start of the special session lapse upon
the end of the special session or may they continue into the regular
session. Guevara again says that there must be a "constructive recess"
between the sessions and thus appointments not acted upon during the
special session lapse before the start of the regular session.r''
What thus comes out from all this is that there are two entities
which can terminate a recess appointment: the Commission on Ap-
pointments, through disapproval, and Congress, through adjournment.
Ad-interim appointments must be distinguished from appoint-
ments in an acting capacity. Both of them are effective upon accep-
tance. But ad-interim appointments are extended only during a recess
of Congress, whereas acting appointments may be extended any time
there is a vacancy. Moreover ad-interim appointments are submitted to
the Commission on Appointments for confirmation or rejection; acting
appointments are not submitted to the Commission on Appointments.
Acting appointments are a way of temporarily filling important offices
but, if abused, they can also be a way of circumventing the need for
confirmation by the Commission on Appointments.
7. Aquino appointments made between February 2, 1987
and July 27,1987.
The 1987 Constitution took effect on February 2,19871' the term
of Congress started on June 30, 1987 , and Congress convened on July
2l ,1987 .Between February 2,1987 and July 27 ,1987 ,PresidentAqui-
no extended appointments which, under the first sentence of Section
16, needed Commission confirmation. What was the status of those ap-
pointments?
The answer to the question must be premised on the understand-
ing that the appointing authority of President Aquino from February 2,
1987 could only be what had been given to her by the 1987 Constitu-
tion. The President could appeal neither to the 1973 Constitution nor
to the Freedom Constitution because Article XVIII, Section 27 of the
1987 Constitution says that the 1987 Constitution, which took effect
upon its ratification, "supersedes all previous Constitutions."
rrt/d. at 387.
Sec. 16 ART. VII - EXECUTIVE DEPARTMENT
Neither could the President find appointing authority in Section
6, Article XVIII, because that Section speaks of "legislative powers"
and not "executive power," of which the power to appoint is a part.
The power to consent to appointments is given, as already seen, not to
Congress but to the Commission on Appointments. And it is executive
in nature. Thus, it is not covered by Section 6, Article XVIII which
speaks of "legislative powers." Consequently, the appointments must
find basis either in Sections 14, 15, or 16.
Quite clearly Article VII, Section 14 could not be used as basis
because President Aquino was not an Acting President when she issued
the appointments. Nor could the President rely on Section 15 because
her term extended until June 30,1992.11, Or, if Section 15 was used by
analogy, the appointees would only be temporary appointees. But what
of Section 16? Did the appointments extended by President Aquino
from February 2,1987 to July 26,1987 require consent of the Commis-
sion on Appointments?
The answer to this question should be that, if they were extended
from February 2,1987 to noon of June 30,1987, the officers holding
such appointments would be at worst de facto officers. They were not
appointed under Section 14 for the reason already explained. Nor were
they appointed under Section 16 because Section 16 presupposes the
existence of a Congress either in session or in recess. The first Congress
of the 1987 Constitution did not begin to exist until noon of June 30,
1987. They were appointed under mistaken "color of authority." Nor
again could they strictly be considered as appointments under Section
15. At best, and by analogy with the power given by Section 15, they
would be temporary appointees.
As to appointments delivered and accepted from noon of June 30,
1987 to July 26,1987, they would be "recess" or "ad-interim" appoint-
ments underArticle VII, Section 16, second paragraph. Congress was in
existence during that period, because the term of the Members began at
noon on June 30, 1987, but it was not allowed to convene by Article VI,
Section l5 until the fourth Monday of July or July 27,1987. Appoint-
ments during this period, therefore, come under Article VII, Section 16,
sccond paragraph. They werc "compulsory recess" appointments.
ruArlit lt' XVlll, Sct lron 5

888 THE I9Tt7 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
In the end, however, all of this is academic. No controversy arose
about the above appointments.
Src. 17. 'IHn PnBsronNr sHALL HAVE coNTRoL oF ALL THE
EXECUTIVE DEIARTMENTS, BUREAUS, AND OFFICES. Hn snlI,r, ENSURE
THAT THE LAWS BE FAITHFULLY EXECUTED.
1. Power of control.
The President is given control "of all the executive departments,
bureaus, and offices." His control is not just over the department head
but also over all the subordinate officers of the department. Section 17
has given to the President the same power of control found in Article
VII, Section 10(1) of the 1935 Constitution which said: "The President
shall have control of all executive departments, bureaus, or offices. ... "
Hence, the meaning of the power of control may be found in the juris-
prudence under the 1935 Constitution.
This awesome power of control has been defined as "the power
of an officer to alter or modify or nullify or set aside what a subordi-
nate officer had done in the perfonnance of his duties and to substitute
the judgment of the former for that of the latter."rrs It is such power
which has been given to the President over all executive officers from
Cabinet member to the lowliest clerk. It is at the heart of the meaning
of "Chief Executive". In the oft-quoted words of Justice Laurel in Vl-
lena v. Secretary of Interior,tt' in our presidential system the President
is "the Executive of the Government of the Philippines, and no other
[is]. The heads of the executive departments occupy political positions
and hold office in an advisory capacity, and, in the language of Thomas
Jefferson 'should be of the President's bosom confidence,' and, in the
language of Attorney General Cushing,'are subject to the direction of
the President."'
It has been held, moreover, that the express grant of the power
ofcontrol to the Presidentjustifies an executive action to carry out thc
reorganization of an executive office under a broad authority of law.'r'
rrsMondano v. Silvosa,9T Phil. 143, 148 (1955).
11167 Phil. 451,461 (1939). A/so Lacson-Magallanes Co., lnc. v. P:tfro, 2l S('Rn 8()5
(l 967).
rFAnak Mirrtlarlro v. lrxctrrtivt'St'c., (i.R. No. l(r({)5.r, Atrgttsl 2(),2(X)7: lirrukr Mctlicrrl
(i'rrlcr lirrrpkryt't's v. ('A. (i.l{. No. l(r/ l.).1,.lrrly I /. .tlX)/.
889
Sec.17 ART VII - EXECUTIVEDEPARTMENT
Reorganization can involve the reduction ofpersonnel, consolidation of
offices, or even abolition of positions by reason of economy or redun-
dancy of functions. While the power to abolish an office is generally
todged with the legislature, the authority of the President to reorganize
the executive branch, which may include such abolition, is permissible
under present laws.'16
Doctrine, however, must respond to reality; and, since the execu-
tive is a busy man, he is not expected to exercise the totality of his pow-
ers of control all the time. He is not expected to exercise all his powers
in person. He is expected to delegate some of them to men of his confi-
den"e, particularly to members of his Cabinet' Thus, out of this practi-
cal necessity has risen what has come to be referred to as the "doctrine
of qualified political agency." The doctrine, recognizing that the consti-
tuti,on has established a single and not a plural executive, postulates
that
..all executive and administrative organizations are adjuncts of the Ex-
ecutive Department, the heads of the various executive departments are
assistants and agents of the Chief Executive, and, except in cases
where
Constitution or law to act in per-
the Chief Executive is required by the
personally, the
son or the exigencies of the situation demand that he act
multifarious executive and administrative functions of the Chief Execu-
tive are performed by and through the executive departments, and the
acts of tie secretaries of such departments, performed and promulgated
in the regular course of business, are, unless disapproved or reprobated
by the chie|nxecutive,presumptively the acts of the chief Executive.)'rt7
Thus, a decision of a department secretary, when not reprobated by the
Executive, is the last step in the process of "exhausting administrative
remedies.""'Thus, too, the Executive Secretary, or even an Assistant
Executive Secretary, when acting "by authority of the President," may
reverse the decision of a department head."e
ThustheSecretaryofJusticemayreversethejudgmentofapros-
ecutor and direct him to withdraw an information already filed- Such
action is not directly reviewable by a court. one who disagrees, how-
""Mirlrrria lirrrpkryccs v. fixccttlivc Sccrctary' G.R
No' 160093, July 3I'2007 '
rr'(17 I'hil.45 I lntl 4(r.1.
l'"/r.r.. l)t'rrr:risip v. ( irttrl ol lhx Apln:tls' 106 I'hil. 231 (1959)' But ree Calo v' Fuentes' 5
(Xll ) irrtrl ( iitltoh v. l{itttltts' .) / S('RA I I 74 ( I 969)'
\('ltA .19 / ( |
rr"l ,irr.s91 Mirtritrll:r1t's v. l'itt!o,,rrr/trrl, tlolc 5r). Rtqttt'v. l)irccttlr ol l'alttls,72 SCRA I
1 l1sly | . lt) /(r)
 890 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Sec. 17 ART. VII - EXECUTIVE DEPARTMENT

ever, should appeal to the office of the president in

order to exhaust can curtail such power. An instance of such constitutional curtailment
administrative remedies prior to bringing i116 ssurt.rzo
was the subject of Ang-Angco v. Castillo.rr3 Ang-Angco was Collector
The doctrine on the power of control remained unchanged
in the of Customs. After an investigation conducted by the Office of the Presi-
jurisprudence under the 1973 constitution
. Free Tetephoni workers dent he was found "guilty of conduct prejudicial to the best interest of
union v. Minister of La,bort2t had occasion to reemphasize its
continu- the service" and was "considered resigned" effective from the date of
ing validity. Here, the power given to the Minister of Lubo,
to assume notice. Upon learning of the decision, Ang-Angco wrote a letter to the
jurisdiction over a labor dispute affecting the
national interest or to cer_ President calling attention to the fact that the decision deprived him
tify it for compulsory arbitration was challenged as an undue
delegation of the statutory Civil Service right to have his case originally decided
of a power which properly belonged to the president. All
that was need_
by the Commissioner of Civil Service and of his right of appeal to the
ed to settle the case was to hark back to the doctrine
long established in civil service Board of Appeals, thus violating section 4, Article XII
vllena that the heads of ministries are alter egos of the-president. of the 1935 Constitution which said that "No officer or employee in
the Service shall be removed except for cause as provided for by
civil
ln Blaquera, et ar. v- Arcara,rzz the controversy revolved around
law." The answer of the President's Office to such argument was that
Section 31 of the Administrative Code of r9g7 granting productivity
the provisions of the Civil Service Law applicable to employees in the
incentive benefits. Both presidentAquino and later president
Ramos is_ competitive service did not apply to the particular case of Ang-Angco
sued executive orders requiring prior approval by them
ofany incentive "since to hold otherwise would be to deprive the President of his power
award. The constitutionality of the orders was challenged
by employees of control over the officers and employees of the executive branch of
on the ground that they encroached upon the constitutional
authority of the government."'24
the civil Service commission to adopt measures to
strengthen the merit
and rewards system and to promulgate rules, regulations The Supreme Court was thus faced with the problem of reconcil-
and standards
governing the incentive awards system of the civil service. ing the President's power of control with the guarantee of security of
In rejecting
the contention of the petitioners the court said that tenure found in the constitutional provisions on the Civil Service. The
the presideniissued
the order "to regulate the grant of productivity incentive Court found itself unwilling to "entirely nullify and set at naught the
benefits and
to prevent discontentment, dissatisfaction and demoralization beneficent purpose of the whole civil service system ... which is to give
among
government personnel by committing limited resources stability to the tenure of office of those who belong to the classified
of government
for the equal payment of incentives and awards. The president service."r2s The court upheld Ang-Angco, but the President was not left
was only
exercising his power of control by modifying the acts completely empty-handed. In an obiter dictum, the Court offered this
of the respon- compromise:'2u
dents who granted incentive benefits to their employees
without appro-
priate clearance from the office of the president,
ihereby resulting in There is some point in the argument that the power of control
the uneven distribution of government resources.,' It of the President may extend to the power to investigate, suspend
added that fixing
the amount of the incentives was not the duty of the or remove officers and employees who belong to the executive
civil service com_
mission but belonged to the president. department if they are presidential appointees or do not belong to
the classified service for such can be justified under the principle
since the constitution has given the president the power
of con- that the power to remove is inherent in the power to appoint,'27 but
trol, with all its awesome implications, it is the Constitution
alone which not with regard to those officers or employees who belong to the

rmOrosa
v. Roa, G.R. No. lul047, July 14, 2006; DENR v. DENR
Employces, (i.R. N. r,.'9 scRA 619 ( I96j).
149724,August 19,2m3.
r2'108 scRA t')ald.ut625.
757 (october 30, rggr). see arso phirippinc Arnerican
Man.gcn*:nr (ir. v tt1ld. a|629.
Philippine American Management Employees Assrrciltion,.5l
r22G'R' N.s.
S(,RA 9lt f VuV Zl, f.rZii.' r16/r/. ut 6.10-.1I .
r09'm6, il0642, il r494, il2056'rrtr r rr)5()7, sc'rerrrb. r r.
r9()*, rrrl,ue son v. Rotttcro.lt4 Phil. 74O,754 ( 1949)

&
 THE l98Z CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
classified service for as to them tlat inherent power cannot be
ercised. This is in line with the provision of oui constitution which
ex_
says that "the Congress may by law vest the appointment
of the
inferior officers, in the president alone, in the courts, or in heads of
departments."r2E With regard to these officers whose appointments
are vested on heads of departments, Congress has provided
by law
for a procedure for their removal precisely in view of this consti_
tutional authority. one such law is the civil service Act of 1959.
We have no doubt that when Congress, by law, vests the ap_
pointment of inferior officers in the heads of departments
it may
limit and restrict power of removal as it seems best for the public
interest. The constitutional authority in congress to thus vest the
appointment implies authority to limit, restrict, and regulate the
removal by such laws as Congress may enact in relation to the
of_
ficers so appointed. The head of a department has no constitutional
prerogative of appointment of officers independently of legislation
ofCongress, and by such legislation he must be governed, not only
in making appointments but in all that is incident thereto.r2e
what was obiter dictum in Ang-Angco was eventualy accepted
and applied as doctrine in vllaluz v. hldivar .,jo villaluz u,
, ihi"f of th.
Motor vehicles office, was a presidential appointee occupying a non-
competitive position. The president's jurisdiction to investlgatJand
re_
move him was upheld. The court ruled "that the commissioner
of civil
service is without jurisdiction to hear and decide the administrative
charges filed against petitioner because the authority of said
commis-
sioner to pass upon questions of suspension, separation, or removal
can
only be exercised with reference to permanent officials and employ-
ees in the classified service to which classification petitioner
does not
belong.""'
From the cases thus far discussed, the following synthesis of the
of control may be made. As defined in Mondano v. silvosa,rtz i1
Power
is "the power of an officer to alter or modify or nullify or set aside
what
a subordinate officer had done in the perforrnance ofhis duties
and to
substitute the judgment of the former for that of the latter.', This power,
r2EArticle VII, Section l0(3), tl935l Constirution
r2eU.S. v.
Perkins, 116 U.S. 483.
rsl5 scRA 710 (1965).
t3t
Id. at 713.
rr297 Phit. t43, t48 ( t955).
Sec. 17 ART. VII EXECUTIVE DEPARTMENT
-
however, "merely applies to the exercise of control over the acts of the
subordinate in the performance of his duties. It only means that the
President may set aside the judgment or action taken by a subordinate
in the perfonnance of his duties."r33 The power of control, therefore, is
not the source of the Executive's disciplinary power over the person of
his subordinates. Rather, his disciplinary power flows from his power
to appoint: "the power to remove is inherent in the power to appoint."l'
Moreovet, this inherent disciplinary power has been made subject to
limitation by the legislature through the latter's power to provide for a
civil service system one of whose main features is security of tenure:
"No officer or employee of the Civil Service shall be removed or sus-
pended except for cause provided by lalry."t:s Hence, it can be said that
while the Executive has control over the 'Judgment" or "discretion"
of his subordinates, when it comes to the disposition and movement
of "persons," the President must obey legislative prescriptions on the
subject.
Another question which has arisen under the executive power of
control is whether it extends over government-owned corporations.
This was the question raised in NAMARCO v. Arca.l3u After proper
hearing, an executive of NAMARCO, a government-owned corpora-
tion, was dismissed by the General Manager and Board of Directors
of NAMARCO. On appeal to the President, the Executive Secretary,
presumably acting for the President and premising its action on the
presidential power of control, reversed the NAMARCO decision and
ordered the NAMARCO officer reinstated. Contesting the presidential
decision, NAMARCO contended that the presidential power of control
extended only over "offices" performing governmental functions and
possessing no juridical personality of their own. The word "offices,"
NAMARCO contended, must be read jointly with its companions in
the enumeration of entities over which the President had control: "all
tt
executive departments o bureaus, or offi ces."'
NAMARCO's argument, based on the principle of eiusdem gene'
ris, is not without force. The Court, however, held that the President's
rn9 SCRA (r19, 629 ( I 963).
r1a/r/. at (rllo.
trlArliclc IX, ll, Strction 2(3).
rv' () (i('RA ()48 (19()()).
rr//r/. ttl (r5,1.
Ir,
 894 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
action fell "within the constitutional power of the president over all
executive departments, bureaus and offices."rs Explaining its decision
the Court said.'3e
We hold that the President of the philippines'authority to re_
view and reverse the decision of the NAMARCO Board of Direc-
tors dismissing Juan T. Arive from his position in the NAMARCO
and to order his reinstatement falls within the constitutional power
of the President over all executive departments, bureaus, and of-
fices. Under our governmental sefup, corporations owned or con-
trolled by the government, such as the NAMARCO, partake of
the nature of government bureaus or offices, which are administra-
tively supervised by the Administrator of the Office of Economic
Coordination, "whose compensation and rank shall be that of a
head of an Executive Department" and who ..shall be responsible
to the President of the Philippines under whose control his func-
tions ... shall be exercised."
It will
thus be noted that, although the Court spoke of the presi_
dent's constitutionalpower of control, ultimately it had to base its deci-
sion on Executive Order No. 386 of December 22,1959,which in turn
was based on the Reorganization Act of 1950.140 It is submitted, there-
fore, that the Executive's power of control over government-owned
corporations, which in legal category are not on the same level as ex-
ecutive departments, bureaus, or offices, is not purely constitutional but
largely statutory. The legislature may place them under the control of
the Executive when their functions "partake of the nature of govern-
ment bureaus or offices."r4r Unlike executive departments, bureaus, or
offices, however, which by constitutional mandate must be under the
Executive's control, government-owned corporations may be removed
by the legislature from the Executive's control when the nature of their
functions is changed.
2. Faithful execution clause.
The second sentence of Section 17 says that the president "shall
ensure that the laws be faithfully executed." An early case on the faith-
t38ld.
t3eld. at652-53.
tqld. 653.
t4t
Id. ^t
Sec. 17 Sec. 18 ART. VII , EXECUTIVE DEPARTMENT
ful execution clause, In re Neagle,r42 illustrates the broad scope of this
power. Neagle was assigned by the Attorney General as bodyguard of
Justice Field. When Terry attacked Justice Field, Neagle shot and killed
Terry. There was no specific law authorizing the assignment of Neagle
to protect Justice Field the way he did. The American Supreme Court
appealed to Section 3 Article II of the American Constitution saying
that the President "shall take care that the laws be faithfully executed."
The Court said that this power of the President is not limited to the
enforcement of acts of Congress according to their express terms. The
President's power includes i'the rights and obligations growing out of
the Constitution itself, our international relations, and all the protec-
tion implied by the nature of the government under the Constitution."r43
Thus, it includes the power of the President "to take measures for the
protection of a judge of one of the courts of the UnitedStates."'* Neagle
saw as law that had to be faithfully executed not just formal acts of the
legislature but any duty or obligation inferable from the Constitution or
from statutes.'45
It will be recalled that the Philippine Supreme Court also appealed
to this provision in asserting executive "residual powers" in Marcos v.
Manglapus.la6
The reverse side of the power to execute the law is the duty to
carry it out. The President cannot refuse to carry out a law for the simple
reason that in his judgment it will not be beneficial to the people. As the
Supreme Court pointed out, "after all we still live under a rule of 1aw."147
Snc. 18. Tnr PnnsroENT sHALL BE TI{E Couulxonn'
nt-Cnrnr oF ALL TIIE ARMED FoRcES oF THE Pnrr,rpprNes lxn
WHFINEVER rT BECOMES NECESSARY, HE MAY CALL OUT SUCH ARMf,D
FORCES TO PREVENT OR SUPPRESS I,AWLESS YIOLENCE' INVASION OR
REBELLToN. In casn oF INvASION oR REBELLIoNT wHEN THE PUBLIC
SAFETY REQUIRES IT, HE MAY, FOR A PERIOD NOT EXCEEDING SIXTY
DAYS, SUSPEND THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS OR
,'135 t(1890).
LJ.S.
t't1ld. irt (A.
t ttld. xl 67 -
r'r'/r/. irl 59.
tr'177 s('l{A (r(rlt ( l9tl9). StL su|ru untlcr Scction l.
rr'(igrrzirlt:zv. llct'ltltxrva,(i.l{.No.2ltJ97(Octobcr2(r, 1963).TheSupretneCourt,how-
cvr'r, lr:rs ln'r't.lolirtl. l.li:rirrrl lirrrrr p:rssirrli ;rrrlgrrrt'ttl ()r llre colrsliltttiotutlily ol "itttpr)uttdlncllt."
,\rt' .rtr1tnt tttttk't Arlillt' VI, St't tiorr,)7.
A
 THE I98ZCONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
PLACE THE PTTTITPPTNNS OR ANY PART TIIEREOF UNDER MARTIAL LAW.
WrrnrN FoRTy-ErcHT HouRs FRoM THE pRocLAMATIoN oF MARTIAL
I,AW OR THE SUSPENSION OF THtr PRIVILEGE OF THE WRIT OF HABEAS
CORPUS, THE PRESIDENT SHALL SUBMIT A REPORT IN PERSON OR IN
WRITTNG TO THE GONCRBSS. THr CoNcnnss, voTrNG JOINTLY, By A
VOTE OF AT LEAST A MAJORITY OF ALL ITS MEMBERS IN REGULAR OR
SPECIAL SESSION, MAy REVOKE SUCH PROCLAMATION OR SUSPENSION,
wHICH REvocATIoN sHALL Nor BE sET ASIDD By rHE pnpsronNr.
Upox rnnTNITIATTvE oF THE Pnnsnrxt, tHE CoNGREss MAy, rN TrrE
SAME MANNER, EXTEND SUCH PROCLAMATTON OR SUSPENSION FOR A
PERIOD TO BE DETERMTNED By THE CONGRESS, IF THE II{VASION OR
R-EBELLION SHALL PERSIST AND PUBLIC SAFETY REQUIRES IT.
Tnp Collcnrss, rF Nor IN sESSION, slrALL, wITIrrN TwENTy-
FOUR HOURS FOLLOWTNG SUCH PROCLAMATION OR SUSPENSION,
CONVENE IN ACCORDANCE WITH ITS RULES WITHOUT I\IEED OF A CALL.
TnB Supnnur CouRT MAy REvIEw, IN AN AppRopRIATE
PROCEEDING FILED BY ANY CITIZEN, TIIE SUFFICIENCY OF THE FACTUAL
BASIS OF THE PROCLAMATION OF MARTIAL LAW OR THE SUSPENSION OF'
THE PRIVILEGE OF THE WRIT OR TIIE EXTENSION THEREOF, AND MUST
PROMULGATE ITS DECISION THEREON WITHIN THIRTY DAYS FROM ITS
FILING.
A surn oF MARTTAL LAw DoEs Nor suspEND THE opERATroN
oF THE CousrrrrnroN, NoR suppLANT THE FUNCTToNING oF THE
cryrl, coIlRTs oR LEGISLATM ASSEMBLIES, NOR AUTHORTZE THE
CONFERMENT OF JURISDICTION ON MILITARY COURTS AND AGENCIES
ovER crvILrANS WHERE CML COURTS ARE ABLE TO FUNCTION, NOR
AUTOMATICALLY SUSPEND TIIE PRIVILEGE OF THE WRIT.
Tnr susptnsroN oF THE pRrvrLEGE or rHE wRIT sHALL Apply
ONLY TO PERSONS JUDICIALLY CHARGED FOR REBELLION OR OFFENSES
INIIERENT IN OR DIRECTLY CONNECTED WITH INVASION.
DunrNc rHE susprNsloN oF TIIE rRIvILEGE oF THE wRrr, ANy
PERSON THUS ARRESTED OR DETAINED SIIALL BE JUDICIALLY CIIARGEI)
WITHIN THREE DAYS, OTHERWISE IIE SITALL BE RELEASED.
1. Commander-in-chiefship.
The commander-in-chiefship of the president raises two qucs_
tions: (1) Is the President thereby a member of the armed forces? (2)
What powers are embodied in his commander-in-chiefship?
The weight of authority favors the position that thc prcsidcnt is
not a mcmbcr of thc armccl lirrccs hut rcrnains u civiliarr. As olrc corn-
Sec. l8 ART. VII - EXECTITIVE DEPARTMENT
mentator has pointed out, "The President's duties as Commander-in-
Chief represent only a part of the organic duties imposed upon him.
All his other functions are clearly civil in nature. He is elected as the
highest civilian officer. His compensation is received for his services
rendered as President of the nation, not for the individual part of his
duties; no portion of it is paid from sums appropriated for the military
or naval forces. The President does not enlist in, nor is he inducted or
drafted into the forces; "he is not subject to court martial or other mili-
tary discipline."r48 This position, in fact, is the only one compatible with
Article II, Section 3, which says: "Civilian authority is, at all times,
supreme over the military."
The net effect thus of Article II, Section 3, when read with Ar-
ticle VII, Section 18, is that a civilian President holds supreme military
authority and is the ceremonial, legal, and administrative head of the
armed forces. The Constitution does not require that the President must
be possessed of military training and talents, but as commander-in-chief
he has the power to direct military operations and to determine military
strategy. Normally, he would be expected to delegate the actual com-
mand of the armed forces to military experts; but the ultimate power is
his. "As Commander-in-Chief, he is authorized to direct the movements
of the naval and military forces placed by law at his command, and to
employ them in the manner he may deem most effectual to harass and
conquer and subdue the enemy."'4e
As commander-in-chief, therefore, the President has control and
direction of the conduct of war, whether the war be declared or unde-
clared."o Article VII, Section 18, gives him the broad power to "call out
such armed forces to prevent or suppress lawless violence, invasion or
rebellion." It may be gathered from this broad grant of power that when
he calls out the armed forces for this purpose, unlike in his suspension
of the privilege of the writ of habeas corpus, his action is not subject to
judicial review. What was said by the American Supreme Cotrtin Mar'
tin v. Mott,t5' which Innsang v. Garciats'said was not applicable to the
suspension of the privilege of the writ of habeas corpus, must be con-
l'r8ll. Scrrwnrtz, T'ttt: l\twrnsot.tut Pn*:stttt:t'tt 2l5 (1963)
ra"lilcruing v. I'agc, 9 l low 603, (r l 5 (J.S. ( 1 8-50).
r'".\rl trrnrtttcrtl olt Alticlt: Vl. Scctiort 23( I).
r'rl2 Wlrcul l9ll.S. (ltl27).
t!,1r ((,RA,l4t{ ( lr)7 I ).
4
898 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
sidered applicable to the broad power to make use of the armed forces
"to prevent or suppress lawless violence, invasion, or rebellion." ..The
authority to decide whether the exigency has risen," declared the Amer-
ican Court, "belongs exclusively to the President, and ... his decision
is conclusive upon all other p€rson5."rs: It is conclusive on the courts;
to hold otherwise "is a guarantee of anarchy, and not of order."rs4 And it
is conclusive on the military, for "while subordinate officers or soldiers
are pausing to consider whether they ought to obey, or are scrupulously
weighing the evidence of the facts upon which the commander-in-chief
exercises the right to demand their services, the hostile enterprise may
be accomplished without the means of resistance."r55
Aside from the power to call out the armed forces, the philippine
Constitution, unlike its American counter part, has also explicitly given
to the President two other extraordinary powers: the power to suspend
the privilege of the writ of habeas corpus and the power to impose mar-
tial law. The power to suspend the privilege is discussed under Article
III, Section 15. It remains now to look into the President's power to
impose martial law.
2.
Three types of 66martial law."
Since the Philippine Constitution is traceable to American ori-
gins and was formulated by jurists reared in the tradition of American
constitutional law, it is legitimate to start the quest for a definition of
martial law in the constitution by looking back to the different nuances
which the term carries in American law. Chief Justice Chase, in Ex par-
te Milligan,'56 has this to say:
There are under the Constitution three kinds of military
jurisdiction: one to be exercised both in peace and war; another
to be exercised in time of foreign war without the boundaries of
the United States, or in time of rebellion and civil war within the
States or districts occupied by rebels treated as belligerents; and a
third to be exercised in time of invasion or insurrection within the
limits of the United States, or during rebellion within the limits ol'
States maintaining adhesion to the National Government, whcn t.lrc
15312
Wheat at 30.
,3oId.
tssld.
rs%Wall.2(ltt(r(r)
Sec. 18 Sec. 18 ART. VII - EXECUTIVE DEPARTMENT 899
public danger requires its exercise. The first of these may be called
jurisdiction under military law, and is found in acts of Congress
prescribing rules and articles of war, or otherwise providing for the
government of national forces; the second may be distinguished
as military government, superseding, as far as may be deemed ex-
pedient, the local law, and exercised by the military commander,
under the direction of the President, with the express or implied
sanction of Congress; while the third may be denominated martial
law proper, and is called into action by Congress, or temporarily,
when the action of Congress cannot be invited, in the case ofjus-
tifying or excusing peril, by the President, in times of insurrection
or invasion, or of civil or foreign war, within districts or localities
whose ordinary law no longer adequately secures public safety and
private rights.
WLr.oucnsv, in the 1929 edition of his commentary on the Con-
stitution of the United States, puts it more simply:
In the most comprehensive sense of the term, Martial Law
includes all law that has reference to, or is administered by, the
military forces of the State. Thus it includes (1) Military Law
Proper, that is, the body of administrative laws created by Con-
gress for the government of the army and navy as an organized
force; (2) the principles governing the conduct of military forces
in time of war, and in the government of occupied territory, and,
(3) Martial Law in sensu strictiore,or that law which has applica-
tion when the military arm does not supersede civil authority but is
called upon to aid it in the execution of its civil functions.'s7
To which of the above meanings does "martial law" in the Con-
stitution refer?
It can not refer to the first meaning bebause this first meaning re-
fers to a body of administrative laws which are operative all the time,
whereas martial law in the constitution can be operative only "in case
of invasion or rebellion, when the public safety requires it."
Can it refer to the second meaning, military government of oc-
cupied territory? Military government under the President over specific
areas may constitutionally exist with reference to foreign as well as to
<ltrmestic territorics. The law of military occupation of fttreign territory
r'rAr l5tl6
900 THE I987 CONSTITUTION
Sec. 18 ART. VII - EXECUTIVE DEPARTMENT
OF THE REPUBLIC OF THE PHILIPPINES

in time of war is that sanctioned by generai international law. Accord-

In the light of the above, martial law in the Constitution can mean
ing to international law, the power of the military commander
is legally military government over domestic territory. But martial law in this
supreme. This rule, in practically all respects, applies to the
military sense can come about only when an insurrection has assumed the status
occupation of a hostile domestic territory in time of civil war which
has of a public war and a territorial war. And it can be imposed only on the
assumed a public character.
belligerent territory.
In the case of New Orleans v. Steamship Co.ts| ... the court The distinction between the second type of martial law as mili-
said: "Although the city of New orleans was the part of the
united tary government and martial law in the third or proper sense, has been
states to put down an insurrection and restore the supremacy
of expressed thus: "A military government takes the place of a suspended
the National Government in the confederate States, thut gou"--
or destroyed sovereignty, while martial law, or, more properly, mar-
ment had the same power and rights in territory held by conquest
as if the territory had belonged to a foreign country and
tial rule, takes the place of certain governmental agencies which for
had been
subjugated in a foreign war. the time being are unable to cope with existing conditions in a locality
which remains subject to the sovereignty. The occasion of military gov-
The fact that the sovereign State continues to claim sover_ ernment is the expulsion of the sovereignty theretofore existing, which
eignty and to exercise powers as such does not prevent it from
is usually accomplished by a successful military invasion. The occasion
exercising at the same time all the rights of a belligirent. This was
of martial rule is simply public exigency which may rise in time of war
conclusively determined in the prize cases.rse In that case, as will
be remembered, it was held that there lies within the discretion or peace. A military government since it takes the place of a deposed
of the President as commander-in-chief of the anny, a discretion sovereignty, of necessity continues until a permanent sovereignty is
not reviewable by the courts, to determine when an insurrection again established in the territory. Martial rule ceases when the district
or civil war has assumed such proportions as to warrant him in is sufficiently tranquil to permit the ordinary agencies of government to
declaring it to be public war, and the insurrectionists to be bellig- cope with existing conditions."r62
erents. when this is done, the war becomes a territorial
on", urid Does martial law in the Constitution mean martial law in the third
all inhabitants of the revolting district become ipso pubric
facto and proper sense? Yes; however, a modification has to be made of Chief
enemies.
Justice Chase'definition in Milligan: Martial law in the Philippines ju-
In Mrs. Alexander,s Cotton,r60 the Court declared: ,.It is risdiction is imposed not by or through an authorization from Congress
said that though remaining in rebel territory, Mrs. Alexander has but by the Executive as specifically authorized and within the limits set
no personal sympathy with the rebel cause, and that her property
by the Constitution.
therefore cannot be regarded as enemy property; but the court
cannot inquire into the personal character and disposition of in_ The rest of these notes will deal only with martial law in this third
dividual inhabitants of enemy territory. We must be governed by and proper sense.
the principle of public law, so often announced by tttls Uench
as
applicable alike to civil and intemational wars, that all the people 3. Martial law proper is essentially police power.
of each State or district in insurrection against the united staies
must be regarded as enemies, until by the action of the legislature
What is the essence of martial law in the third and proper sense?
and the executive, or otherwise, that relation is thoroughly and per_ Willoughby answers the question thus''63
manently changed.'61
That which brings confusion between martial law, in the
strict sense of the tcrm, and military law or military government,
's20 Wall. 387.
rs2 Bl.635.
lnrMrtrtrxrN, Nrrtnls ttN tttt, Ltw tn (-tvlt.(;.tvERNMr:Nt tNT'r:nnnonu:s stJBJl:Q 'fo Mnmnv Ot--
rm2
Wall.404.
r('r
ll Wrt r.orrr;nrrv l57li ()
( ut^tt(rN, 12,ritai rn lll Wu t.rrrrtttrv l5()2 .1.
Inr/r/. nl I 5ll(t' /
 9O2 THE 198? CONSTITT_ITION
OFTHE REPUBLIC OFTHE PHILIPPINES
is the fact that military forces are, in most cases, employed in
times when martial law is said to be in force, and, usually, when
there exists a degree of necessity which justifies the exercise by
the authorities of the State of measures more drastic in character
than are ordinarily employed or justified for the protection of the
public against unlawful acts. These usual features, however, do
not change the essential character of the situation which exists, or
operate to transmute the civil measures which are taken, or which
may constitutionally be taken, into essentially military acts which
can be justified as such. In other words, as will appqu from the
exposition which is to follow, martial law, in its restricted sense, as
has been explained belongs in the field of civil rather than of mili-
tary law, and is, in fact, but a branch of the public law of the State,
and, as such, its exercise is, or should be, governed by the same
fundamental principles of constitutional right that apply when the
so-called Police Powers of the State are exercised under ordinary
conditions and without the employment for their enforcement of
the organized armed forces of the State.
That martial law is essentially police power is a conclusion also
borne out by the constitutional text which sets down,,public safety,'as
the object of the exercise of martial law. Public safety is the concern of
police power. What is peculiar, however, about martial law as police
power is that, whereas police power is normally a function of the legis-
lature executed by the civilian executive arm, under martial law, police
power is exercised by the executive with the aid of the military and in
place of "certain governmental agencies which for the time being are
unable to cope with existing conditions in a locality which remains sub-
ject to the sovereignty." In the language of Justice Black, it authorizes
"the military to act vigorously for the maintenance of an orderly civil
government."'* Or in the language of Chief Justice Stone, it is
the exercise of the power which resides in the executive branch
of the government to preserve order and insure the public safety
in times of emergency, when other branches of the government
are unable to function, or their functioning would itself threaten
the public safety. ... It is the law ofnecessity to be prescribed and
administered by the executive power. Its object, the preservation
of the public safety and good order, defines the scope, which will
vary with the circumstances and necessities of the case. The exer-
rsDuncan v. Kahanamoku,32?
U.S. 3(X, .12.1 ( 194(r)
Sec. l8 ART. VII
- EXECUTIVE DEPARTMENT 903
cise of the power may not extend beyond what is required by the
exigency which calls it forth' ... 165
What emerges from the above observations on martial law as po-
lice power as well as from the text of the Constitution is that martial law
is a flexible concept. Martial law depends on two factual bases: (1) the
existence of invasion or rebellion , and (2) the requirements of public
safety. Necessity cfeates the conditions for martial law and at the same
time limits the scope of martial law. Certainly, the necessities created by
a state of invasion would be different from those created by rebellion.
Necessarily, therefore, the degree and kind of vigorous executive action
needed to meet the varying kinds and degrees of emergency could not
be identical under all conditions. They can only be analogous.
When one speaks of analogy one must necessarily speak of a com-
mon denominator. What is the common denominator of varying degrees
and kinds of executive action which makes such actions and exercise
of martial law power? The question must be answered in the context of
the system of separation of powers. And the answer is this: the common
denominator of all exercise of martial law powers is the exercise by an
executive officer of the discretion and judgment normally exercised by
a legislative or judicial body. The variable in the various forms of mar-
tial law powers is the extent to which the executive assumes legislative
and judicial functions. This variable is determined by the necessities of
the moment. The extreme case is the investment of one man with the
power of life and death over citizen and soldier alike in a given area
of actual war. In this extreme case, the executive officer is fully law-
maker, judge, and executive all rolled into one'
4. The1972 Martial Law.
The changes made by the 1986 Constitutional Commission on the
martial law text of the Constitution were to a large extent a reaction
against the direction which the Supreme Court took during the regime
of President Marcos. To understand the new martial law text, therefore,
it will help to see where the jurisprudence on martial law stood when
thc l9tl7 Constitution was drafted.
r''r/1/.
111 l l5 (t
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES Sec. l8 ART. VII - EXECUTIVE DEPARTMENT 905

on september 2r, r972,president Ferdinand E. Marcos, by proc-

lamation No. 1081, placed the entire philippines under martial companying the order, and by General Order No. 3 which ordered all
law. The executive offices to "continue to function under their present officers
dispositive portion of the proclamation read:
and employees and in accordance with existing laws" and likewise the
NOW, THEREFORE, I, FERDINAND E. MARCOS, presi_ Judiciary to "continue to function in accordance with its present organi-
dent of the philippines by virtue of the powers vested upon zation and personnel" but removing from the jurisdiction of the courts
me by
Article VII, Section 10. paragraph (2) of the Il935l Constitution, the following cases:
do hereby place the entire philippines as defined in Article
I, Sec_
tion 1, of the Constitution under martial law and, in my capa"ity
as L. Those involving the validity, legality or constitutional-
their commander-in-chief, do hereby command the Armei Foices ity of any decree, order or acts issued, promulgated or performed
of the Philippines, to maintain law and order throughout the phil- by me or by my duly designated representative pursuant to Procla-
ippines, prevent or suppress all forms of lawless u[l"n"" as mation No. 108 1, dated September 21, 1912.
well
as any act of insurrection or rebellion and to enforce
obedience to
all the laws and decrees, orders and regulations promulgated by 2. Those involving the validity, legality or constitutional-
me personally or upon my direction. ity of any rules, orders or acts issued, promulgated or performed
by me or by my duly designated representative pursuant to Procla-
In addition, I do hereby order that all persons presently de_ mation No. 1081, dated September 2l,1972.
tained, as well as all others who may hereafteibe similarly
detained
for the crimes of insurrection or rebellion, and all other crimes
and
3. Those involving the crimes against national security
offenses committed in furtherance or on the occasion thereof, and the law of nations.
or
incident thereto, or in connection therewith, for crimes against
na- 4. Those involving crimes against the fundamental laws
tional security and the law of nations, crimes against pub"lic order,
of the State.
crimes involving,usurpation of authority, rank, title und i.prop".
use of names, uniforms and insignia, crimes committed
Uy puUtic
5. Those involving the crimes against public order.
officers, and for such other crimes as will be enumerated in
that I shall subsequently promulgate, as well as crimes as
orders 6. Those crimes involving usurpation of authority, rank,
a conse_ title, and improper use of names, uniforms, and insignia.
quence of any violation of any decree, order or regulation
promul_
gated by me personally orpromulgated upon my directionihall
be
7. Those involving crimes committed by public officers.
kept under detention until otherwise ordered released by me
or by
my duly designated representative. On September 24,I9lL,General Order No. 3-A added to the list
of those removed from the jurisdiction of the courts all cases "involv-
Immediately thereafter, on Septemb er 22, 1972,the president pro-
ing the validity,legality, or constitutionality of Proclamation No. 1081,
mulgated General Order No. I which said:
dated September 21, 1972, or of any decree, order or acts issued, pro-
NOW THEREFORE,I, Ferdinand E. Marcos, president of mulgated or performed by me or by my duly designated representative."
the Philippines, by virtue of the powers in me vested by Then followed numerous orders, instructions, and decrees which
the consti-
tution as commander-in-chief of the Armed Forces of tne rhitip-
amounted to the assumption by the President of extensive legislative
pines, do hereby proclaim that I shall govern the nation
and direct
the operation of the entire Government, including all its agencies
powers. Likewise, military tribunals were created to assume jurisdic-
and instrumentalities, in my capacity and shall exercis.-uil tion over the numerous types of cases which had been removed from
tr,"
powers and prerogatives appurtenant and incident to my position the.jurisdiction of the civilian courts. In subsequent months, in spite of
as commander-in-chief of all the armed forces of the
enirippincs. General Order No. 3-A, the Supreme Court had to face monumental
martial law cases. Most important of those were those which dealt with:
This was followed on the samc day by Gcncrar onrc:r N..2 wrricrr
( I ) thc validity of Prtrclantation No. l08l ; (2) the effbct of thc imposi-
ordcred the arrcst Of a ltlng list ol'intlivirlrrlls corrlirilrrtl irr
ir lisl rrt. tiorr ol'rrrarlial law on thc privilcgc rtl'lhc writ of hrtlnus (()rl)us', (3) thc
 906 THE I987 CONSTITUTTON Sec.18 ART.VII - EXECUTIVEDEPARTMENT
OFTHE REPUBLIC OFTHE PHILIPPINES

legislative powers of the president under martial law; (4) the creation One must, however, understand that this was not a martial law
of
military tribunals clothed with jurisdiction over civilians; (5) the power case pure and simple.In the first place, preliminarily the court was most
of the President to propose amendments to the constitution. agitated by the petition of Jose Diokno, one of the original petitioners,
to withdraw his petition for release. Diokno claimed that he had lost
5. 1d.,.Aquino,Jr. v. Enrile. faith in the capacity of the Supreme Court to render him justice. But be-
In spite of General order No. 3-A prohibiting judicial enquiry into fore the Court could decide Diokno's challenge, the President ordered
the validity of the imposition of martiar law, proclamation No. the release of Diokno, thus leaving the Court holding a bag of worns.
l0gr
was put to the test in Aquino, Jr.v. Enrile,166 a petition fot Secondly, most of the other petitioners had been released. Senator Be-
habeas corpus
filed by several detainees who were being heid by virtue of the nigno Aquino, Jr. remained in custody but against him charges had al-
martial
law decree. The case squarely faced key issues raised by the martiar ready been filed under the Anti-Subversion Law; and Aquino himself
raw
proclamation: the Supreme court's power ofjudicial enquiry, had filed a subsequent prohibition case in which the same constitutional
the valid-
ity of the martial law proclamation, and the effect of the proclamation issues could be ventilated. Hence, Teehankee took the position that a
on the privilege of the writ of habeas corpus. Unfortunately, decision on the habeas corpus case was unnecessary.r6e Moreover, after
howevcr,
the collegial document produced by the Court was not a the proclamation of martial law and the arrest of the petitioners, "/4-
decision in thc
traditional sense ofa consensus on both the conclusions and the vellana v. COMELECI?. had declared the 1973 Constitution operative.
reasons
for the conclusions- Justice Barredo had prepared an opinion running Article XVII, Section 3(2) of the 1973 Constitution said: "All procla-
into more than one hundred pages but, to his great disappointment,,", mations, orders, decrees, instructions, and acts promulgated, issued, or
the court declined to adopt his opinion and came out instlao done by the incumbent President shall be part of the law of the land.
only with
a summary of the voting on the issues. chief Justice Makalintal . ..." The individual opinions affirmed that this was at least a confir-
was
given the task of making the summary. He also explained mation of the proclamation of martial law and of the orders that had
why the court
could not produce a collegial opinion. He said thai they courd followed,", (although, as Justice Palma noted, they merely should have
not ag,cc
on what issues to take up nor on the manner the issues should the status of statutes and should therefore be subject to review by the
bc ap-
proached. They were, he said, very much conscious Court).r72 Finally, reference was also made to the sanating effect of the
of ..the future vcr_
dict of history."r6s Hence, separate opinions were unavoidable. referendum of February 27-28,1973 where to the question: "Under the
(1973) Constitution, the President, if he so desires, can continue in of-
Three key issues were faced by the court: justiciability ,f thc fice beyond 1973. Do you want President Marcos to continue beyond
martial law proclamation, validity of the proclamation, effect
of thc 1973 and finish the reforms he initiated under Martial Law?" the elec-
proclamation on the privilege of the writ of habeas corpus.
Aflcr arr torate had answered afflrmatively.''3
examination of the individual opinions of the justices which collcc
tively ran into more than four hundred pages - On justiciabiliry. Solely from the argument based on Article XVII,
one can agree with thc
judgment of Justice Barredo that indeed the - Section 3(2), (1935), one could already predict the outcome of the case.
court could have musrt:rcrl
a collective opinion: not perhaps in the prolix prose
of Justice Barrctrr.s
more than one hundred pages, but certainly less abstemiously t6eld. at316,321.
than rlrc
chief Justice's brief summary which bore the imprimatur of ihc rcsr 17050
SCRA 30 (March 3l , 1973).
l?r59 SCRA, Makalintal at 241; Castro at 278; Femando at 296; Barredo at432'434;
the Court. 'l Antonio at 491-8; Esguerra at 519-20; Femandez at 613-4- Makasiar and Aquino concuned with
f
Antoni().
I tttld. at 649. Thc point made by Palma is certainly valid about orders and decrees is-
XVll, Section 3(2), (I973). However, those issued before and
sued alicr thc cfl'cctivity ol Articlc
1659 SCRA
183 (Scprcnrbcr 17, I97.t) i thcrelirre "conlirnrcd" by thc poplc thrrxrgh Article XVll, should be beyond the reach of judicial
t61
Id . trt 322. scnttiny ttlthottgh within lltc rcitch ttl'ortlinttry lcgisllrtivc ltntcndatory pKrcess.
t68hl. irt 214. r"/r/.. Mttktrlinlttl rrl 2'12: l}rrlctkr rtl 4l(r 7

J
 THE 1987 CONSTITUTION ART. VII EXECUTIVE DEPARTMENT 909
OF THE REPUBLIC OF THE PHILIPPINES
Sec. 18 Sec. 18 -

The position taken by the Justices on the issue of justiciability

could Finally, none of the Justices was unduly daunted by the objec-
also only lead to the same conclusion. Five Justices Antonio, rurutu_
- tion drawn from General Order No. 3-A, which prohibited the Supreme
siar, Esguerra, Fernandez, and Aquino took the position that the
- Court from looking into the constitutionality of the proclamation and the
proclamation of martial law and the a:rest and detention orders
accom_ accompanying orders. They either ignored it or, apparently subscribing
panying the proclamation posed a "political question" beyond the juris-
to the view that every word of the President is law, they said that the
diction of the court. Justice Antonio, in a separate opinion concurred
in President himself had withdrawn General Order No. 3-A through his
by Makasiar, Fernandez, and Aquino, argued that the constitution had
book Nores on the New SocietY.'80
deliberately set up a strong presidency and had concentrated powers
in times of emergency in the hands of the president and had given him On the validity of Proclamation l09l - With five Justices hold-
broad authority and discretion which the court was bound to respect. ing that the issues were political and with the rest holding to a very
He made reference to the decisi on in Lansang v. Garciari4 but read nanow scope for judicial review, the outcome of the case was easily
it as
in effect upholding the "political question" position.rT5 Fernandez, in a predictable. Castro upheld the proclamation of martial law on the basis
separate opinion,"6 also argued that lnnsans, even understood of continuing rebellionrsr and Fernando concluded that the presidential
as giving
a narrow scope of review authority to the court, affirmed the proclamation could stand as the product of careful executive evaluation
impos-
sible task of "checking" the action taken by the president. Hence, of pertinent data.ls2 Barredo said that Proclamation 1081 had merely
he ad-
vocated a return to Barcelon v. Baker.vi similarly, Esguerra advocated placed the fundamental law "in a state of anesthesia, to the end that the
the abandonment of rnnsang and a return to Barceron And, although much needed surgery to save the nation's life might be undertaken."r83
Justices castro, Fernando, Mufroz palma, and, implicitly, Teehankee, Palma too saw martial law as justified by extensive rebellion.'8. As al-
lined up on the side of justiciability as enunciate d, ii Lansarng, it will ready seen, Teehankee suspended his judgment, while all the rest ac-
be
recalled that l-ansang had enunciated a consuelo de bobo doctrine cepted the president's evaluation as conclusive.
on
justiciability. The court had said that its power was ,.merely
to check On the relation between martial law and the privilege of the writ
not to supplant Executive,
- - the or ro ascertain merely whether he of habeas corpus, Castro summed up the argument for the automatic
has gone beyond the constitutional limits of his jurisdiction,
not to ex- suspension of the privilege thus:'85
ercise the power vested in him or to determine the wisdom of his
act."
The court in Lansang had accepted the Solicitor General's suggestion It is thus evident that suspension of the privilege of the wrjlt
that it "go no further than to satisfy [itself] not thatthe presideniis of habeas corpus is unavoidably subsumedin a declaration of mar-
deci-
sion is correct and that public safety is endangered by the rebellion tial law, since one basic objective of martial rule is to neutralize
and
effectively by arrest and continued detention (and possibly trial
justified the suspension of the writ, but that in rurp"nding
the writ, the -
at the proper and opportune time) those who are reasonably
President did not act arbitrarily."rir go'r"do, howiver, wanted
to have
-
believed to be in complicity or ate particeps criminis in the insur-
the best of both worlds and opted for the view that ,,political questions
rection or rebellion. That this is so and should be so is ineluctable;
are not per se beyond the court's jurisdiction ... but that as a
matter of to deny this postulate is to negate the very fundamental of mar-
policy implicit in the constitution itself the court should abstain from tial law: the preservation of society and the survival of the state.
interfering with the Executive's p1ssl4rnn1i6n.,' r rs To recognize the imperativeness and reality of martial law and at
the same time dissipate its efficacy by withdrawing from its ambit

'242 SCRA 448 (December lt, 19'71). t\ttld. itt277,377.

17559
SCRA at 462-80, 499. t*t
t76ld. I d. trt 21'l -ll. 25'l 67
at 566-7. til Il. rt 241 .

'775 Phil.87 (1905).

r7E42
SCRA at 480.
'r'ltl. al 47.\.
r7e59
SCRA at 2lt{-(), .t7lt-.120.
'^all.al l'14 44.
rx'/r/. rrl ,)75 (r

4
 910 THE 1987 CONSTITUTION
OFTHE REPUBLIC OF THE PHILIPPINES Sec. l8 ART. VII _ EXECUTIVE DEPARTMENT

the suspension of the privilege of the writ of habeas corpus, is a

proposition I regard as fatuous and therefore repudiate.
on the basis of the same argument, Barredo also taught that au-
tomatic suspension was obvious.re so did Fernandez.'" Antonio also
pointed out that in effect, through General order No. 2, the president
had suspended the privilege by ordering that the detainees ,,shall be
kept under detention until otherwise ordered released by me or by
my
duly designated representative."ns Fernando did not explicitly discuss
the effect of martial law on the privilege, but he did insist on ihe avail-
ability of the writ while at the same time maintaining that,,while the de-
tention of petitioners could have been validly ordered, as dictated by
the
very proclamation itself, if it continued for an unreasonable length
of
time, then his release may be sought in a habeas corpus proceeding."ree
Palma alone dissented saying that automati" rurp"nrion of ttre privitege
could be justified only by the total collapse of civil courts.,e
Fernando, too, did dissent. But his only point was to question,
howsoever mildly, the limitations on the freedom of movernent
of
those who had been released. Since they had been released, he said,
it
seemed "reasonable to assume that full, rather than restricted, freedom
was warranted." But he added: "The matter may be put forth more
cat-
egorically, but I refrain from doing so. The reason is practical. To insist
that it should be thus may curb what appears to be the commendable
tendency to put an end to the preventive detention of those in actual
g6nfi1g11gn1."tq
6. /d.; Aquino,Jr.v. COMELEC.
pulse of the nation regarding certain vital topics. They did not seek any
amendment to the Constitution; hence, constituent powers wefe not an
issue. But since an act of appropriation of funds legislative in nature was
involved, the principal question raised was whether the President could
legislate. The issue, moreover, was being raised at the time when no
legislative body was functioning. The old Congress had been abolished
by the new constitution and the date for the activation of the legislative
body created by the new Constitution had been left to the discretion of
the President, who was in no hurry to entertain legislative competition.
One of the referendum questions in fact was meant to verify whether
the people wanted the interimNationalAssembly to be convokedat all.
The answer of Justice Makasiar, writing the main opinion, was
unequivocal. He said:'e3
WE affirm the proposition that as Commander-in-Chief and
enforcer or administrator of martial law, the incumbent President
of the Philippines can promulgate proclamations, orders, and de-
crees during the period of Martial Law essential to the security
and preservation of the Republic, to the defense of the political
and social liberties of the people and to the institution of reforms
to prevent the resurgence of rebellion or insurrection or secession
or the threat thereof as well as to meet the impact of a worldwide
recession, inflation or economic crisis which presently threatens
all nations including highly developed countries (Rossnen, Co,v-
srIrurIoNAL Drcrtronsnr,l948 Ed., pp. 7, 303; see also Chief Jus-
tice Stone's concurring Opinion in Duncan vs. Kahanamoktt,32T
u.s.304).

The next major martial law case was Aquino, Jr. v. COMELEC,,oz Makasiar added that Article XVII, Section 3(2) ' (1935), expressly
which involved a petition for prohibition seeking the nullification of affirming all proclamations, orders, and decrees issued by the President
presidential decrees calling for a referendum on February 27 as "part of the law of the land" was "not a grant of authority to legislate,
,1975, and
appropriating funds for the pu{pose. The referendum topics were in the but a recognition of such power as already existing in favor of the in-
form of consultative questions whereby the president sought to feel the cumbent President during the period of Martial Law."'*
In this recognition of broad legislative power as flowing from
tE6ld. a|424. martial law Makasiar was supported by Justices Aquino, Barredo,
Antonio, and Fernandez. Justice Castro was satisfied to rely only on
tE1ld.
at 613.
rE8/d.
at 501.
t\eld. at 291 .
t"'ld. trt 646.
rer/r/.
at 30 I .

rqr(r2 ru'lr/. nl 2911.

S('RA 275 (.ltrurlry ll. l()75)
rq/r/. rtl 2()ll ().
 912 THE 1987 CONSTITUTION Sec.18 ART.VII - EXECUTIVEDEPARTMENT
OFTHE REPUBLIC OFTHE PHILIPPINES

Article xvII,
Section 3(2),(1973).,e5 Fernando limited himself to saying 7. /d.; Aquino, Jr. v. Military Commission No' 2; Military
that in the absence of a legislative body no one else but the president TFibunals.
could
"perform those essential and indispensable functions of dealing
with The next martial law case in essence again involved the lawmak-
the conduct of affairs" such as appropriating funds for a referendum.
He ing authority of President Marcos. Aquino, Jr. v. Military commission
declined to say whether this was executive or legislative, reserving
his No.2tss challenged the validity principally of General Order No. 8 (Sep-
opinion for another day.'ou Teehankee would limit the scope of martial
tember 27 ,1972) authorizing the Chief of Staff to create military tribu-
law legislative powers of the president to whatever is necessary
for the nals, General Order No. 12 (September 30,1972) vesting military tri-
"preservation of the state" but not to formulating permanent
solutions bunals with jurisdiction "exclusive of civil courts" over crimes related
to "worldwide recession, inflation or economis g;lsis.',ror palma too
to martial law, and of Presidential Decree No. 39 (November 7 ,1972)
would concede to the president limited legislative power needed
to fill providing for the "Rules Governing the Creation, Composition, Juris-
the vacuum during the transition period.'o'
diction, Procedure and Other Matters Relevant to Military Tribunals."
Indeed, it is difficult to see how the power to impose martial law
The simple answer of the Court was that this decree was within the
could be the source of an alr embracing legislative power. The
exercise ambit of the authorization given by Article XVII, Section (3)' (1973) to
of police power by the president under martial law has for its object
the President to "promulgate proclamations, order and decrees during
"public safety" and not the entire breadth of the concept of public
wel- the period of martial law." To the argument that jurisdiction of military
fare. But this is not how the majority of the supreme court saw
it. Later tribunals over civilians would violate due process, the Court answered
on, in a speech to the 8th world peace Through Law conference
held in that martial law creates an exception to the general rule of exclusive
Manila, Chief Justice Castro was to proclaim proudly:
subjection to civil jurisdiction when such exception is necessary for the
As to purpose, martial law is known in the west as the dras_ attainment of the objects of martial law. Any doubt as to this the Court
tic solution to a violent situation _to quell a riot, to suppress would sweep away by saying: "In any case, We cannot close our eyes
anarchy, to overcome rebellion. Here in the philippine., ttir p.i to the fact that the continued existence of these military tribunals and
mary purpose remains, but it has been enlarged to embrace also
the the exercise by them of jurisdiction over civilians during the period of
extirpation of the ills and conditions which spawned the riot. the martial law are within the contemplation and intendment of'Article
anarchy, and the rebellion. XVII, Section 3(21?'
And since the ills and conditions which spawned the riot, the an- The bare power of the President to create military tribunals is eas-
archy, and the rebellion form a long line that traces itself to
the garden ily enough subsumed under 1973's Article XVII, Section 3(2); but the
of Eden, the administrator of martial law was really, in the viewlf the sweeping grant of jurisdiction to such tribunals over civilians raised
Marcos Supreme Court, another Redeemer! serious due process issues which are discussed under the Bill of Rights.

At any rate, any doubt about the scope of the legislative power 8. 1d., Sanidad v. COMELEC; Constituent Powers.
of the President, in or out of martial law under the rgi3 constiiution,
was removed by Amendment No. 6 of 1976 which in effect under the original 1973 Constitution, in the absence of a National
set up the
President as a parallel legislative body to the legislature. Assembly, the body authorized to propose amendments to the Consti-
tution was the interim National Assembly or a constitutional conven-
ri0n callcd by the interim National Assembly. Moreover, it was only
re51d.
at 305
t%ltl. at 312
t"1
ld . irt 3 l'l
r',(, I li( 'R A 5.1() ( Mily (), l()75 )

t"Alrl.
al I'N7 ''''/r/. ;tl 57,1 (r.

,l
 THE 1987 CONSTITUTION Sec. l8 ART. VII EXECUTIVE DEPARTMENT 915
OF THE REPUBLIC OF THE PHILIPPINES Sec. 18 -
the interim National Assembly which could call for elections
for the
regular National Assembly. The date of the activation of the less in the face of crisis. Hence, the power to propose amendments must
interim
National Assembly, however, had been left by the Transitory be sought elsewhere. It did not take him long to find such power hidden
hovisions
to the discretion of president. Moreover, the supreme court in the folds of the presidential mantle of power. The President, after all,
ma held in
Aquino, Jr. v. coMELEC,2or that the president could not be possessed legislative power, and the power to propose amendments to
compelled
to convene the interim National Assembly and, in the consultative the constitution was, according to Martin, "but adjunct, although pecu-
ref_
erendum of 1975, the electorate had advised against the liar, to [his] gross legislative Power."zor
convening of
the interim National.Assembly. Thus, by septimber 1976, One would have wished that Martin had stopped there. But he
fuily four
years after the imposition of martial law and almost
four years after the was to add, inspired by Clinton Rossiter, that the "separation of execu-
new constitution had taken effect, the president had not yet tive and legislature ordained in the Constitution presents a distinct ob-
convened
the interim National Assembly and he alone was the active struction to efficient crisis government."'* Justice Barredo too rubbed
legislative
authority. salt to the wounds of Philippine constitutionalism by arguing that the
It was in that same month and in that constitutional morass that President had not proposed the amendments but had merely collated
the President by Presidential Decrees proposed a coordinated the amendments already proposed by the people in earlier referenda!'o'
series of
amendments the principal thrusts of which were (1) to
consign the in-
terimNational Assembly to oblivion, (2) to create an interimBatasang 9. Id.; Jurisprudential legacy of martial law.
Pambansa, and (3) to grant full and concurrent legislative
power to the With the decision in Sanidad, the main lineaments of pre-1987
President. This gave rise to sanidad v. coMELECIo' which Philippine martial law jurisprudence were drawn: (1) the martial law
decided the
question whether the President may propose amendments proclamation of 1972 was validly made on the basis of an existing re-
to the consti-
tution in the absence of a grant of such constituent power to bellion; (2) the imposition of martial law carried with it the suspension
the presi-
dent in the text of the constitution. The supreme court of the privilege of the writof habeas corpus; (3) the martial law admin-
held he could.
Justice Martin wrote the main opinion and only Justices Teehankee istrator could legislate on any matter related to the welfare of the nation;
and
Muffoz-Palma dissented. (a) he could create military tribunals and confer on them jurisdiction to
The opinion of Justice Martin is easily enough summarized. try civilians for crimes related to the purpose of martial rule; (5) in the
He
said that the extraordinary conditions of martial law and absence of any other operative constituent body he could even propose
of the gov- amendments to the constitution. All of the above, moreover, are con-
ernment under the Transitory hovisions gave to the president
legisla_
tive power. Legislative power does not normally include the firmed by the broad grant of power found inArticle XVII, Section 3(2),
constitu-
ent power to propose amendments to the constitution. of the 1973 Constitution which, as will be seen below, was itself rati-
However, Martin
said that since the normal repositories of constituent power fied in a most unique manner. The Supreme Court was to add later that,
were not
operative and since the people had voted in the referenaa under martial law, claims of denial of a speedy trial were unavailing,2*
or 1973 and and that the suspension of the privilege of the writ of habeas corpus
1975 against the convening of the interim National Assembly,
a stale-
mate had been created because only a constitutional amendment also suspends the right to bail.'o'
could
effectively remove the interimNational Assembly in order to give
way
to another legislative body. In the face of such stalemate MarJin
could
not see the constitution as having set up a government that ?"r/d. at 368.
was power- 2tBltl. '.rl 36'7 .
2"r/r/. at 3611.
x"Ocampo v. Military Commission No. 2-5, 109 SCRA 22 (November 6, l98l)'
,0162
SCRA 275. ,,,rlluscayn0 v_ Military (-0rnrnission Nos. 1,2,6 and 25, 109 scRA 273 (November 19,
nD73 y. lix. u suililnury 0l thc principal rnrrliill law rulings of the Supreme Courl,.rel Cumaua v.
SCRA 333 (October 12, tg76). 1t1111

lispino, ()6 li('RA 402.412-420 (lrchnrlry 29' lgli0).

 THE 1987 CONSTITUTION
OF THE REPI.IBLIC OF THE PHILIPPINES
on January 17 , r98r, on the eve of the visit of pope John paur II
to the Philippines (but not propter quod,it was said), martial law
was
lifted by proclamation No. 2045. But not really. If the heart of martial
law is the concentration of governmental powers in the hands of the
executive, the equivalent of martial law remained as part of normal
day
to day government. This was the effect of Amendment No. 6 of 1976
which granted full legislative power to the president. Justice Barredo,
in fact, writing for the Court in Legaspi v. Minister of Finance].8 said
just that Amendment 6 had been designed to perpeiuate
martial law
powers even after the lifting of martial law.
10. The new martial law doctrine: when, by whom, and how
imposed?
It was under the shadow of this jurisprudential legacy of the Mar-
cos regime that the 1986 constitutional commission went about
for_
mulating the martial law doctrine of the l9g7 constitution. In sum, the
1987 constitution (1) narrowed the grounds for the imposition
of mar-
tial law and suspension of the privilege of the writ of hibeas corpus,(z)
limited the discretion of the president and put it under review powers
of congress and of the supreme Court, and (3) rejected the bulk of the
martial law jurisprudence that had developed under president Marcos.
under both the 1935 and 1973 constitutions, the privilege of the
writ of habeas corpus could be suspended and martial law Jould be
imposed "in case of invasion, insurrection, or rebellion, or imminent
danger thereof, when the public safety requires it.,,ros The 19g7 consti-
tution has narrowed the grounds to "[actual] invasion or rebellion, when
the public safety requires it."
under the 1935 and 1973 constitutions, the president could sus-
pend the privilege and impose martial law for an indefinite
duration and
congress had no power to curtail him or to review his decision. under
the 1987 constitution, the initial suspension of the privilege and the
imposition of martial law is still for the president to decide but they
can
only be "for a period not exceeding sixty days." Thereafter the provi-
sion continues:
rEl l5 SCRA 4 I 8, 437-9 (July 24, tg82\.
'rDArliclt: VIl. Scction l0(2), ( l(,r35); Articlc Vll. Scction 9, (
ART. VII EXECUTIVE DEPARTMENT
Sec. 18 Sec. 18 -
Within forty-eight hours from the proclamation of martial
law or the suspension of the privilege of the writ of habeas corpus'
the President shall submit a report in person or in writing to the
Congress. The Congress, voting jointly, by a vote of at least a ma-
jority of all its Members in regular or special session' may revoke
such proclamation or suspension, which revocation shall not be
set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or
suspension for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety requires it.
The Congress, if not in session, shall, within twenty-four
hours following such proclamation or suspension, convene in ac-
cordance with its rules without need of a call.
Under the previous Constitutions, the role of the Supreme Court
was not specified and jurisprudence did not arrive at a definitive deci
sion on the subject. In the new Constitution the role of the Supreme
Court is set down in unequivocal terms: "The Supreme Court may re-
view, in an appropriate proceeding filed by any citizen, the sufficiency
of the factual basis of the proclamation of martial law or the suspension
of the privilege of the writ or the extension thereof, and must promul-
gate its decision thereon within thirty days from its filing."
The narrowing of the grounds for the suspension of the privilege
and for the imposition of martial law is discussed underArticle III, Sec-
tion 15 and will not be repeated here.
1,1. The new martial law doctrine: role of Congress and
Court.
The power to initially suspend the privilege of the writ or to im-
pose martial law has been left with the President, or with the Acting
President, since he too has all executive powers except those which the
Constitution has withheld from him.2'0 The 1987 Constitution, however,
has placed the power to determine the duration of the suspension of the
privilege and of the effectivity of martial law in the hands of Congress.
The original committee draft, very much influenced by the martial law
experience under President Marcos, had proposed that the extraordi-
nary ernergency powors of the President may not be exercised without
thc concurrcnce ttl'Oongrcss. This was opposed largely on the argument
lr)fll). r!rll klr('( )Rl),1(r(r ,l(r/
s
 918 THE 1987 CONSTITI.]'TION Sec. 18 ART. VII - EXECUTIVE DEPARTMENT
Sec. l8
OFTHE REPUBLIC OFTHE PHILIPPINES

that such limitation would hamper the president's capacity for quick exercise of martial law powers."2r4 And if Congress is not in session, it
response. After intense debate, which had to be settled by nominal
vote,
I is duty bound, within twenty-four hours following the proclamation or
the concurrence of congress was dispenssd \a/ifli.zrr gut the president suspension, to convene without need of waiting for a call for a special
must, within forty-eight hours from taking emergency action, session from the President.'?rs
submit a
report to congress either in person or in writing. ;rn" congress,
jointly, by a vote of at least a majority of all its Members
voting While martial law or the suspension of the privilege may be cut
In regular or short by Congress, it may also be extended by Congress, for a period to
special session, may revoke such proclamation or suspension
. 1..,, be determined by congress, by a joint vote of both Houses. The initia-
The rejection of the requirement of concurrence by congress tive for the extension, however, can only come from the President. Au-
prompted commissioner Bernas to propose that congrer, -b" thored by Commissioner Azcuna, what this requirement means is that
ered to revoke the action of the president by a joint vote of both "-po*- any extension of the emergency situation must have the concurrence of
Houses.
The obvious purpose of asking for joint vote was to facilitate decision both the President and Congress.'z'6
and avoid contrary decisions coming from the Senate and the
House Over and above the action which Congress may take, the role of
of Representatives. This was opposed by Commissioner Rodrigo who
the Supreme Court has also been clarified: "The Supreme Court may re-
said'2'2 "If the two Houses vote
Jointly,' it would mean mixin { the za view, in an appropriate proceeding filed by any citizen, the sufficiency
senators with 250 congressmen. This would result in the seiate
be- of the factual basis of the proclamation of martial law or the suspension
ing absorbed and controlled by the House. This violates the pulpose
of of the privilege of the writ or the extension thereof, and must promul-
having a senate." But Commissioner Bernas argued for having u po*".
that could balance the unilateral action which the president wai gate its decision thereon within thirty days from its filing." Any citizen
allowed is given standing to bring appropriate action to challenge the action
to take. He said:,l3
taken by the President. This can be done even before Congress acts, and
I quite rcalize that that is the practice and, precisely, in pro_ the decision of the Supreme Court would also bind Congress. But since
posing this, I am consciously proposing an e*"epiion to ihis prac_ the object of the supreme court's action would be the veriflcation of
tice because of the tremendous effect on the nation wtren the "the sufficiency of the factual basis of the proclamation of martial law
lege of the writ of habeas corpus is suspended and when martial
irivi-
or the suspension of the privilege," necessarily the Supreme Court's
law is imposed. Since we have allowed the president to impose
evaluation would be transitory if proven wrong by subsequent changes
martial law and suspend the privilege of the writ of habeas ,orpu,
unilaterally, we should make it a little more easy for congress to in the factual situation.2'7
reverse such actions for the sake of protecting the rights of
the
people. 12. The new martial law doctrine: effects of imposition.

Not content with allowing presidential action to be revoked by The effort of the 1986 Constitutional commission to establish
a joint vote of the two houses of congress, the constitutional safeguards around the emergency powers of the President went beyond
com- merely limiting the grounds for their use and beyond merely authoriz-
mission further added that the "revocation shall not be set aside
by the ing the Supreme Court and Congress to have a role in the exercise of the
President." The purpose of this additional rule, in the words of
com- powers. More importantly, the Commission recast the entire doctrine
missionerAquino, is "to put a cap on the presidential prerogatives in
the
that had been shaped for President Marcos by the Supreme Court of the
21|d.475496. martial law regime.
4g4' Rodrigo also said that he would prefer to let the House of Representatives
. -2t2ld'
rather than mix the senate with_the House. He saw such procedure
d. it
as "less insulting to the senatc..,
2t3lbid.Bernas ,'o
Ihid
added: "I quite realize that there is recourse to the Supreme-coun .
and therc )r'.Sr'r' rrl. 5O2-5(Xr
is a time limit, but at the same time because of the extraordinary
character of this event whcn n)ar, rr"/r/.ul5O'/
tial law is imposed, I would like t<r mlke ir crsicl lirr rhc rcprcscrrtirrivc 5ll.
very signilicant action tsken by thc prcsirlcnl ."
ol'thc pct4rlc t. rcvicw this tttlil . ttl
Il. ut 4t)4. 'ltl'l
 e2o .,,,#l?fTl,:""T'1,!il#?J**,, Sec 18 Sec.18 ART.VII EXECUTIVEDEPARTMENT
-
A state of martial law does not suspend the operation
of the The doctrine on the effect of martial law on the privilege of the
Constitution, nor supplant the functioning of the
.oua, o,
legislative assemblies, nor authorize the conferment "iuil writ and the scope of the suspension of the privilege are discussed un-
of jurisdiction
on military courts and agencies over civilians
where derArticle III, Section 15. Likewise, the effect of the suspension of the
are able to function, nor automatically suspend "inil "ourt, privilege on the right to bail is discussed underArticle III, Section 13.
the privilege of
the writ.

The suspension of the privilege of the writ shall 13. The May 2001 '6state of rebellion" or "state of emergen-
apply only
to persons judicially charged for rebellion or cy.tt
offenses intrerent in
or directly connected with invasion.
Since the effectvity of the 1987 Constitution. however, no Presi-
During the.suspension of the privilege of the writ, dent has made use of the martial law powers or of the power to suspend
any per_
son rhus arrested or derained shall be judicially the privilege of the writ of habeas corpus. What Presidents have done
;niihin
three days, otherwise, he shall be released. "f,_g"J instead has been merely to make use of the third Section 18 power, that
is, to call on the Armed Forces to help the police maintain order. But
The first clause states the general principre that
martial law does this does not give her additional powers.22, Certainly, for instance, it
not suspend the operation of the constitution
and therefore does not does not authorize warrantless arrests.22r A President can claim emer-
suppress the powers of the various branches
of government. gency powers only when these are granted to her by Congress under
The statement that martial law does not "supplant Article VI, Section 23.
the functioning
of ... legislative assemblies" means that ordinary iegislation
continues On May l,20OI, President Macapagal-Arroyo, faced by an "an-
to belong to the legislative bodies even during
mariiat law. Does this gry and violent mob armed with explosives, firearms, bladed weapons,
mean therefore that the martial law administrator
is without power to clubs, stones and other deadly weapons" assaulting and attempting to
legislate? The answer to this question is that
in the actuar theater of break into Malacafrang, issued Proclamation No. 38 declaring that there
war the martial law administrator's word is law,
within the limits of was a state of rebellion in the National Capital Region. She likewise
the Bill of Rights. But outside the theater of
war, the operative law is issued General Order No. I directing the Armed Forces of the philip-
ordinary law. To this extent, the r9g7 provision
rejects' Aqutin-a, Jr. v. pines and the Philippine National Police to suppress the rebellion in the
coMELEC'1'' which gave prenary legislative power
to the president as National Capital Region. Warrantless arrests of several alleged leaders
martial law administrator.
and promoters of the "rebellion" were thereafter effected.
The rule that civil courts cannot be supplanted
by military courts Both the declaration of the state of rebellion and the authorization
adopts the "open court" rule in Duncan v.
Kahanamik * unirejects for warrantless arrests were challenged in Lacson, et al. v. Secretary
the contrary rule first enunciated in Aquino,
Jr. v. Mititary commission Perez.zza Warrantless arrests will be taken up under Article III, Section
No ' 2 .22o Moreover, the specific constiiutionar
provision unti"ipateo tt e 2. Suffice it here to say that, if indeed there was rebellion, identifiable
decision of the court in oraguer v. Military
c ommission wo. io which, rebels can be arrested without warrant because rebellion is a continuing
although dealing with events which took piace
under the 1973 constitu_ offense. The matter of "state of rebellion," however, should be seen un-
tion, also adopted the ,.open court,, rule ihereby
also rejectin g Aquino, der the power of the President to call on the Armed Forces to suppress
Jr. v. Military Commission No.2. :

lawless violence, insurrection or rebellion under Section 18.

;ffi;(January 3t,ts7s.).
,ro327 rrrl.les.!t v. Scerctary Pcrez, (i.R. No. 1477110, May
U.S. 3O4. 324 ':|946). 10, 2001; Sanlakas v. Executive Sec-
2063 SCRA
546 (May 9, 1975). nlilry. (i.lt. No. I 5(Iltl5, lrchrrrtrry .1, 2(X)4
2?rG.R. rIl):rvirl v lirrrrit;r,(i.R No. l7l4O(),Miry 1,2(XXr.
No. 54-5-58, May 22,1987.
''r( i.ll No l.l / /ll0. M:ry l(). l(Xll.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The scope of the power of the president to call on the Armed Forc-
es under section 18 was already dealt with in the earlier case of Inte-
grated Bar of the Philippines v. Hon. kmora225 when president Estrada,
in the wake of the increased incidence of violent crimes,, ordered the
deployment of members of the Armed Forces to supplement the peace-
keeping capabilities of the police. In that case, the Court said:
The factual necessity of calling out the armed forces is not
easily quantifiable and cannot be objectively established since
matters considered for satisfying the same is a combination of sev-
eral factors which are not always accessible to the courts. Besides
the absence of textual standards that the court may use to judge
necessity, information necessary to arrive at such judgment might
also prove unmanageable for the courts. Certain pertinent infor-
mation might be difficult to verify, or wholly unavailable to the
courts. In many instances, the evidence upon which the president
might decide that there is a need to call out the armed forces may
be of a nature not constituting technical proof.
On the other hand, the president as Commander_in_Chief has
a vast intelligence network to gather information, some of which
may be classified as highly confidential or affecting the security of
the state. In the exercise of the power to call, on-the-spot decisions
may be imperatively necessary in emergency situations to avert
great loss of human lives and mass destruction of property. . .
The Court further stated the limit of the president,s power:
When the President calls the armed forces to prevent or sup_
press lawless violence, invasion or rebellion, he necessarily exer_
cises a discretionary power solely vested in his wisdom. This is
clear from the intent of the framers and from the text of the Con_
stitution itself. The Court, thus, cannot be called upon to ovemrle
the President's wisdom or substitute its own. However, this does
not prevent an examination of whether such power was exercised
within permissible constitutional limits or whether it was exer_
cised in a manner constituting grave abuse of discretion. In view
of the constitutional intent to give the president full discretionary
power to determine the necessity of calling out the armed forces, it
is incumbent upon the petitioner to show that the president's dcci-
sion is totally bereft of factual basis. The present petition ftrils t<r
discharge such heavy burden as there is no evidence to support thc
225G.R.
No. l4l284,August 15, 2(XX)
Sec. 18
Sec. l8 ART. VII _ EXECUTIVE DEPARTMENT 923
assertion that there exist no justification for calling out the armed
forces. There is, likewise, no evidence to support the proposition
that grave abuse was committed because the power to call was
exercised in such a manner as to violate the constitutional provi-
sion on civilian supremacy over the military. In the performance
of this Court's duty of purposeful hesitation" before declaring an
act of another branch as unconstitutional, only where such grave
abuse of discretion is clearly shown shall the Court interfere with
the hesident's judgment. To doubt is to sustain.
David v. Ermita226 involved a declaration of a state of emergency.
The Court has clarified that when the President declares a state of emer-
gency or a state of rebellion her action is merely a description of the
situation as she sees it but it does not give her new powers. However,
under Section 18 such a situation already authorizes her to make use of
her Commander-in-Chief powers if she chooses to.
PresidentArroyo's use of the phrase "state of rebellion" may have
been unfortunate. But the case clearly came under the President's power
to call on the Armed Forces. Indeed, the Court could look into the fac-
tual basis of the declaration to determine if it was done with grave abuse
of discretion amounting to lack of jurisdiction. But before this could
happen, President Arroyo lifted her declaration.
Finally, since the President is commander-in-chief of the Armed
Forces she can demand obedience from military officers. Military of-
ficers who disobey or ignore her command can be subjected to court
martial proceeding. Thus, for instance, the President as Commander in
Chief may prevent a member of the armed forces from testifying before
a legislative inquiry. A military officer who disobeys the President's di-
rective may be made to answer before a court martial. Since, however,
Congress has the power to conduct legislative hearings, Congress may
make use of remedies under the law to compel attendance. Any military
official whom Congress summons to testify before it may be compelled
to do so by the President. If the President is not so inclined, the Presi-
dent may be commanded by judicial order to compel the attendance of
the military officer. Final judicial orders have the force of the law of the
land which the President has the duty to faithfully execute.227
'r(i.R. No. l7l4{)(), Mry 3.2(X)6.
t'f( iurhtni v. Scrtgl, ( i,R. No, I 7O 105, Aplil I 5, 2(X)6.
 THE 1987 CONSTITT]TION
OFTHE REPUBLIC OFTHE PHILIPPINES
Ssc. 19. Excrpr rN cAsES oF TMrEACHMENT, oR As orr{ERwrsE
pRovIDED IN THIs CoxsrrrurroN, THE Pnnsrnrxr MAy cRANT
REPRTEVES, COMMUTATIONS, AND PARDONS, AND REMrT FINES AND
FORFEITURES, AFTER CONVICTION BY FINAL JUDGMENT.
HAvE THE pownR To GRANT AMNESTy wITH
Hn sn.lr,r, ALso
THE coNCURRENCE oF A MAJoRITy oF ALL rnn Mntvrspns oF THE
Concnrss.
1. Purpose of executive clemency.
That Section 19 gives to the President the power of executive
clemency is a tacit admission that human institutions are imperfect and
that there are infirmities in the administration of justice. The power
therefore exists as an instrument for correcting these infirmities and for
mitigating whatever harshness might be generated by a too strict appli-
cation of the law. In recent years, it has also been used as a bargaining
chip in the efforts to unify various political forces.
Clemency is not a function of the judiciary; it is an executive func-
tion. Thus, it is that Article 5 of the Revised Penal Code provides that
whenever a strict application of the provisions of the law will result in
undue harshness to the offender, the duty of the judge is to impose the
proper penalty, however harsh it may be, but he is enjoined to recom-
mend to the President the exercise of executive clemency.
The power of executive clemency is a non-delegable power and
must be exercised by the President personally.rr8 The case of Llamas
v. Orbos,zze discussed below, may give the impression that it was the
Executive Secretary who issued the pardon. The tenor of the decision,
however, treated the matter as if the Executive Secretary had merely
acted as a conduit for the President.
2. Constitutional limits on executive clemency.
Section 19 sets down three limitations on the power of execu-
tive clemency: (1) it cannot be exercised over cases of impeachment;
(2) reprieves, commutations, and pardons, and remission of fines and
22EVillena v. Secretary ofthe Interi
or,67 Phil.45l ,463 ( I 939). The power to rernit crlrriri,r
trative fines may be delegated by statute to subordinate administrative officers. Rovinr v. Arrrlluro,
9l Phil.228 (r952).
n,202 S('RA 1t4.1 ( l99l).
3L
Sec. 19 ART. VII _ EXECUTIVE DEPARTMENT 92s
forfeitures can be given only "after conviction Dy final judgment;"23l
and (3) a grant of amnesty must be with the concurrence of "a majority
of all the Members of Congress." In addition, Article IX, C, Section 5
says: "No pardon, amnesty, parole, or suspension of sentence for vio-
lation of election laws, rules, and regulations shall be granted by the
President without the favorable recommendation of the Commission
[on Elections].":rt
The case of Llamas v. Orbos232 presented the novel question of
whether executive clemency can also be extended to administrative
penalties. The Supreme Court could have avoided treating the matter
as a constitutional issue, because Section 43 of P.D. No. 807 authorizes
the President to remove administrative penalties, but the Court chose to
treat the constitutional issue nonetheless. It said that since the Consti-
tution did not make a distinction between criminal and administrative
penalties, there was no cause for the Court to make a distinction. The
Court considered clemency for administrative penalties as included in
clemency for more serious criminal penalties. It also cited the intent of
the 1986 Constitutional Commission not to impose limits on the power
of executive clemency beyond those explicitly provided for in the Con-
stitution.233
3. Pardon: nature and legal effects.
Chief Justice Marshall's delineation of the nature and legal effect
of pardon in United States v. Wilson23a has influenced Philippine juris-
prudence from its earliest days. Marshall said.rj
A pardon is an act of grace, proceeding from the power en-
trusted with the execution of the laws, which exempts the individ-
2rolhe requirement that reprieves, commutations, pardons, and remission of fines and for-
feitures can be given only after conviction is a rctum to the 1935 and l98l rules which was
amended in I 98 I to allow the President to give pardon even before conviction. The 198 I provision
allowed the President to save friends from prosecution. II RECORD 389,395.
2rrA provision in the original committee report
which would allow Congress to limit the
exercise of the power of executive clemency in cases of violations of comrpt practices laws was
relected. The proposal was originally intended to prevent the President from protecting his cronies.
'l-hc (lonrntission prel'erred k) trusl in Presidents and refrained from putting additional
limitations
tut his clcrrrt:ncy powcrs. Il RIICORD l92,4ltl-419,524-525.
,'1202 S(:RA 844 (1991).
r"/r/. ut ll5ll ll.59.und citing II Rli(IORD 392,41lt-419, 524-525.
!r''/ l'cl. 150 ( ltl.l.l).
rr1/r/. lt l({) I
 THE 1987 CONSTITUTION Sec. l9 Sec. 19 ART. VII _ EXECUTIVE DEPARTMENT 927
OF THE REPUBLIC OF THE PHILIPPINES

ual on whom it is bestowed, from the punishment the law inflicts Moreover, although Burdick v. United States2q strictly followed Mar-
for a crime he has committed. It is the private, though official act shall's postulate on the need of acceptance, a more recent case, Biddle
of the executive magistrate, delivered to the individual for whose v. Perovich2ar did not consider Marshall's statement applicable to every
benefit it is intended, and not communicated officially to the Court. form of proffer of clemency. As the Court said: "When we come to the
. . . A pardon is a deed, to the validity of which delivery is essential,
commutation of death to imprisonment for life it is hard to see how
and delivery is not complete without acceptance. It may then be
consent has any[thing] to do with it."242 Hence, the better rule is t]at ac-
rejected by the person to whom it is tendered; and if it be rejected,
ceptance by the condemned is required only when the offer of clemency
we have discovered no power in a court to force it on him.
is not without encumbrance.
Because pardon is an act of grace, no legal power can compel the
When a conditional pardon is extended and accepted and the con-
executive to give it. It is an act ofpure generosity ofthe executive and
dition is that the recipient of the pardon should not violate any of the
it is his to give or to withdraw before it is completed.B6 An important penal laws, who determines whether penal laws have been violated?
question thus is when an act of pardon is completed. By categorizing
In other words, must the recipient of the pardon undergo trial and be
pardon as a deed, Marshall equated it with a private instrument between
convicted for the new offenses before he can be considered as having
two individuals. Hence, according to him, to its validity "delivery is
violated the terms of his pardon. The rule that is followed is that the ac-
essential, and delivery is not complete without acceptance."23i The rea-
ceptance of the conditions of the pardon imports the acceptance of the
son for requiring acceptance, according to Justice McKenna, is that the
condition that the President will also determine whether the condition
"grace of pardon may be only a pretense ... involving consequences of
has been violated.243
even greater disgrace than those from which it purports to relieve."238

The reason therefore for requiring acceptance of a pardon is the 4. Amnesty.

need for protecting the welfare of its recipient. But is such reasoning
Under American jurisprudence, the power to grant amnesty is
equally applicable to both absolute and conditional pardon? While Mar-
considered merely an aspect of the pardoning power. "Pardon includes
shall's discussion did not distinguish between the two types of pardon,
amnesty," was the American Court's ruling in United States v. Klein.2a
early Philippine jurisprudence did not seem to understand the need for
Later, the Court further added in Knote v. United States24s that the dis-
acceptance as applicable to absolute pardon. As the Supreme Court said
tinction between pardon and amnesty was "one rather of philological
in Cabantag v. Wolfelv "a conditional pardon has no force until ac-
interest than of legal importance."
cepted by the condemned. The reason is obvious. The condition may bc
less acceptable to him than the original punishment, and may in fact bc In Philippine law, however, the distinction between pardon and
more onerous. He has a right to choose whether to accept or to rejccl amnesty is of legal importance because of the existing constitutional
it on the terms tendered. In this respect, it differs from a commutation. text. Under the Constitution, amnesty may be given only with the con-
which is a mere reduction of the penalty, or from a pardon which is its currence of a majority of all the members of Congress. How, then, does
total remission. It is not altogether apparent that in the exercise of his one tell whether the act of clemency is one of pardon or of amnesty?
constitutional power to remit or decrease sentences by granting par-
dons, committed to him by the Constitution, the President of the Unitctl
States is not free to act without the concurrence of the condemncd."
,4236 U.S.79 (1915).
21t274
U.S. 48O (t927).
2a2ld. at 41J7.
236De
Leon v. Director of Prisons, 3 I Phil. 60, 63 ( I 9 I 5) 2{uTorrcs v.
23?7
Pet. at 160-1.
Gonzules, 1 52 SCRA 272 ( 1 98?).
238Burdick v. Unitcd States. 236 U.S 79, 90 (1915).
!al3 Wull. l2tl. l4tt (U.S. ltl72).
,r!95 tl.s_ 149, 15.1 (1877).
1u'(r Phif . 273,2'1ll (1906).

]dL
928 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
ln Barrioquinto v. Fernandez,246 the Supreme Court had occasion
to enumerate the differences between pardon and amnesty. The Court
said:
Pardon is granted by the Chief Executive and as such it is a
private act which must be pleaded and proved by the person par-
doned, because the courts take no notice thereof; while amnesty
by Proclamation of the Chief Executive with the concurrence of
Congress, is a public act of which the courts should take judicial
notice. Pardon is granted to one after conviction; while amnesty
is granted to classes of person or communities who may be guilty
of political offenses, generally before or after the institution of
the criminal prosecution and sometimes after conviction. Pardon
looks forward and relieves the offender from the consequences of
an offense of which he has been convicted, that is, it abolishes or
forgives the punishment, and for that reason it does "not work the
restoration of the rights to hold public office, or the right of suf-
frage, unless such rights be expressly restored by the terms of the
pardon," and it "in no case exempts the culprit from the payment
of the civil indemnity imposed upon him by the sentence" (Ar-
ticle36,Revised Penal Code). While amnesty looks backward and
abolishes and puts into oblivion the offense itself, it so overlooks
and obliterates the offense with which he is charged that the person
released by amnesty stands before the law precisely as though he
had committed no offense.2a?
These differences, it should be noted, are mainly drawn from the
constitutional text rather than from the nature of the two forms of ex-
ecutive clemency. When Barrioquinto says that pardon is a private ex-
ecutive act whereas amnesty is a public executive proclamation which
must be concurred in by the legislature, it does not answer the question
whether what is given by a proclamation concurred in by Congress may
also be given through a private act of the executive. Similarly, that par-
don can be given only after conviction must be looked upon as a limit
on the power of executive clemency and not as a constitutive elemcltl
of pardon; for, pardon, in the jurisprudence from which ours devclolrctl,
may be granted any time after an offense is committed.'o* Nor docs lltc
,682 Phil. 642 (1949).
2aTState v. Blaylock,6l N.C.,242,247: /n re Briggs, 135 N.Cl. I ll't: 47 S.ll., zl{).1', lir
law, 35 Ga. 285,296: State ex rcl Anheusor-Busch Brcwing Ass'n. v. ljby, l7O Mo., 4()7: 7 I
52,6l; llurdick v. IInitetl Srorcs, N.Y.,3.5 S. ('t. 267 271:.236 tl.S.79; 5() Luw. ctl.,4'16.
r't$l')r ytrtt' (ilrlantl, 4 Wtll. I 1.1, ltl0 ((1.S. l(X).1),
Sec. 19
Sec. l9 ART. VII - EXECUTIVE DEPARTMENT
number of recipients of executive clemency by itself adequately distin-
guish pardon from amnesty; for, while an individual pardon is given to
one, a general pardon may be given to a class.24e Hence, it is submitted
that what distinguish the two forms of executive clemency are both the
number of recipients of the acts of clemency and the nature of the of-
fense which is their object. As an early Philippine case noted, amnesty
"commonly denotes the 'general pardon to rebels for their treason and
other high political offenses,' or the forgiveness which one sovereign
grants to the subjects of another, who have offended by some breach of
the law of nations."2so
Amnesty may thus be defined as the grant of general pardon to
a class of political offenders either after conviction or even before the
charges are filed. It is this form of executive clemency which under the
Constitution may be granted by the executive only with the concurrence
of the legislature. This is not to say, however, that political offenders
cannot be reached by pardon; they can, but by individual pardon, which
does not need legislative concurrence but which can be granted only
after conviction.x'
Tax amnesty is another matter. In answer to the question whether
a tax amnesty, such as that granted by Presidential Decree No. 1840,
needed the concurrence of the then Batasang Pambansa, the Court, in
Legaspi v. Minister of Finance,25, said that such tax amnesty was not an
act of executive clemency but a legislative act which the President had
the power to do under Amendment 6 of the 1973 Constitution. This,
however, was said at the time when the President had legislative author-
ity under the 1973 Constitution. But as a later case said, a tax amnesty is
a "general pardon or intentional overlooking of its authority to impose
'?aeVilla v. Allen, 2 Phil. 436, 44 (1903).
2nld. at 439, cltr'zg I Bish Cu. L.,
sec. 898. "The term ,amnesty'belongs to international
law, and is applied to rebellions which by their magnitude are property within international law,
but has no technical meaning in the common law. It is a synonym of oblivion, which in the English
law is the synonym of pardon." Id. at 44O, citing BouvrER, "Amnesty."
rslDuring the period of martial law under
the 1973 Constitution, before the interimBata-
sang ltambansa was organized and while the President was the sole operative legislative authority,
the qucstion was also informally raised whether the grants ofamnesty given by the President alone
ytt rt lo violalors ol'thc Anti-Subvcrsion Law werc constitutional. Such unilateral grants of amnesty
corr ltl casily hc .iustilicd by thc tlccisions, discusscd under Section I ll above, recognizing lirll leg,
li W ,
islalivc rrtrthorily itt lltc llcsirlcnl cilhcr hccausc ol his rntrtial ltw powcrs or bct:inrsc ol Articlc
XVll,Sceliorr.|(2).
I'rl t5 S('RA 41t|.44.) (.lrrly,:,1. ;t)g,r;
J
 THE 1987 CONSTITUTION Sec.
OF THE REPUBLIC OF TTIE PHILIPPINES
penalties on persons otherwise guilty of evasion or violation of revenue
or tax law, [and as such] partakes of an absolute forgiveness or waiver
by the Government of its right to collect what otherwise would be due
it ... "253 Which is it then? If it is amnesty as act of clemency, it should
need concurrence of the legislature; if pardon, it can be granted only
after conviction. But as a matter of fact it is granted before conviction.
The better view therefore is that tax amnesty can be a delegated admin-
istrative act when authorized by law.
In its treatment of amnesty, Vlla v. Allen made this additional ob-
servation: "Where the pardoning power is vested in the legislature and
is exercised by legislative grant, and is in the nature of a general am-
nesty for strictly political offenses, it has been considered in the nature
of a public law, thus having the same effect on the case as if the general
law punishing the offense had been repealed or annulled."'* The pres-
ent jurisprudence on amnesty, however, does not go to the extent of
saying that amnesty repeals an existing law. After all, it is essentially
an executive and not a legislative act. Amnesty, however, "so overlooks
and obliterates the offense with which he is charged that the person
released by amnesty stands before the law precisely as though he had
committed no offense."255
The above statement on the purifying effect of amnesty must
not be understood to imply that pardon does not have a similar effect.
although such in fact is the implication in Barrioquinto. This implica-
tion, besides being obiter, is not borne out by jurisprudence. In Ex parte
Garland, Justice Field said:"u "A pardon reaches both the punishment
prescribed for the offense and the guilt of the offender; and when thc
pardon is full, it releases the punishment and blots out of existence the
guilt, so that in the eye of the law the offender is as innocent as if he hud
never committed the offense ... it makes him, as it were, a new mnn.
and gives him a new credit and capacity." This broad view of the pur-
doning power was followed by Justice Malcolm in In re Inntok2tl and
25rRepublic v. Intermediate Appellate Court, G.R. No. 693214,
April 26, 1991, quoting
Commission of Internal Revenue v. Botelho Corp., 20 SCRA 487.
2s2 Phil. at44O,citing United St&lcs v. Wilson,T Petcrs 163.
2ssBanioquinto v. Fcrnuntlcz. ll2 lthil.lt 647.
ItdWull. 333, 3tl0- | (ll.S. 11167).
r1'41 [,hi1.29],2()6 ( l(r:l?).
l9
Sec. 19 ART.VII - EXECUTMDEPARTMENT 931
by Justice Laurel in Cristobal v. LabradoPs" and Pelobello v. Palatino.25e
The pardoning power was thus affirmed as reaching even residual dis-
qualifications which may have been imposed by the legislature as part
of the penalty. In opting for this more liberal view, Laurel said that "the
better view in the light of the constitutional grant in this jurisdiction is
not to unnecessarily restrict or impair the power of the Chief Executive
who, after enquiry into the environmental facts, should be at liberty to
atone the rigidity of the law to the extent of relieving completely the
party or parties concerned from the accessory and resultant disabilities
of criminal conviction."2'
This more liberal view was also followed in Monsanto v. Fac-
toran, Jr.,26t blJt with an added refinement. Monsanto does not consid-
er a person who has been pardoned as innocent. While pardon indeed
erases the penalty and the legal disabilities consequent on the penalty,
where, upon a valid conviction, a person was dismissed from office, the
pardon does not entitle the person to reinstatement by right. He may,
however, be reappointed.262 Where, however, a person was pardoned
because he been acquitted on grounds that he had not committed the
crime, reinstatement and back wages are due by right.*'
Finally, how does one avail of the defense of amnesty? Must an
accused confess guilt of the crime charged in order to be able to avail of
amnesty as a defense? ln Barrioquinto v. Fernandez, the Court said:26a
There is no necessity for an accused to admit his responsibil-
ity for the commission of a criminal act before a court or Amnesty
Commission may investigate and extend or not to him the benefits
of amnesty. The fact that he pleads not guilty or that he has not
committed the act with which he is charged, does not necessarily
prove that he is not guilty thereof. Notwithstanding his denial, the
evidence for the prosecution or complainant may show the con-
trary, as it is generally the case in criminal proceedings, and what
should in such a case be determined is whether or not the offense
committed is of political character. The plea of not having com-
b87l Phil. 34, 38 (194O).
25u72
Phit. 441, 442-3 (t94t).
2iltld . at 443 .
n'r 170 scRA t90 ( l9tt9).
rr'1lr/. rrt 199-2(X).
)n'('iur.ciu v. (\rnrrnission 0rr Autlit.226 S('RA 35(r ( 1993)
nntl2 I'lril. rt (r4()-(r50.
932 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
mitted the offense made by an accused simply means that he can
not be convicted of the offense charged because he is not guilty
thereof, and, even if the evidence would show that he is, because
he has committed it in furtherance of the resistance to the enemy
or against persons aiding in the war efforts of the enemy, and not
for purely political motives.
This was followed by an obiter dictum in an opinion penned by
Justice Tuason in People v. Llaneta saying:265
The writer of this decision maintained in previous decisions,
conffary to the view of the majority of the Court, that it is rank in-
consistency for one tojustify an act, or seek forgiveness for an act,
which according to him, he has not committed; that amnesty pre-
supposes the commission of a crime and that when an accused says
he has not committed a crime he cannot have any use for amnesty;
that where an amnesty proclamation imposes certain conditions,
as in this case, it is incumbent upon the accused to prove the exis-
tence of such conditions; that a petition for amnesty is in the nature
of a plea of confession and avoidance, under which principle the
pleader has to confess the allegations against him before he can be
allowed to set out matters which, if true, would defeat the action.
This was reiterated, againas obiter dictumin People v. Guillermo,,^n
a case which according to the opinion revealed an "almost unbelievablc
orgy of bloody executions, reminiscent of the French Revolution."r,
Finally, however, inVerav. People,26s Justice Tuason's obiter in Llanetu
was definitively recognized as having superseded Barrioquinto.
It
has also been held that when a detained convict claims to hc
covered by a general amnesty, his proper remedy is not a habeas crr.
pzs petition. Instead, he should submit his case to the proper amncsty
boar.d.26e
5. Other forms of executive clemency.
Aside from pardon and amnesty, the President may also gr:rnt rt
prieves, commutations, and remission of fines and forfeiturcs. 'l'hcsc
26586
Phil. 2t9,243-2M (1950\.
,686 Phit. 395, 399 (t950).
261
Id. al 396,
'1687 SCRA 1.52, 1.56 1963). A/so I'coplc v. Plsilnn, l4 SCIRA 694 ( 1965)
( r/'(r7 l)hil. 451, 46.] ( l().19).
In0[)c Vcrr v.
Judgc Anirrrnr, ll4 S('RA 5()4 (August 14. l97tt).
Sec. 19 ART. VII EXECUTIVE DEPARTMENT
-
forms of executive clemency are, like amnesty, already implicit in the
pardoning power: but they have been made explicit by the Constitution.
A reprieve "postpones the execution of an offense to a day certain"2io
and a commutation "is a remission of a pafi of the punishment; a substi-
tution of a less penalty for the one originally imposed."27r Commutation
does not have to be in any specific form. Thus, the fact that a convict
was released after six years and placed under house arrest, which is
not a penalty, already leads to the conclusion that the penalty had been
shortened.272 Remission of fines and forfeitures is a self-explanatory
term. However, it should be noted that remission of fines and forfeitures
merely prevents the collection of fines or the confiscation of forfeited
property; it cannot have the effect of returning property which has been
vested in third parties or money already in the public treasury. More-
over, although, as already noted inVillena v. Secretary of InteriorlB the
grant of executive clemency must be personally done by the Chief Ex-
ecutive, the constitutionality of statutes delegating the power to remit
fines and forfeitures to subordinate executive officers has never been
challenged."n
Src. 20. Tnn PnnsnnNT MAy coNTRACT oR GUARANTEE
FoREIGN LoANs oN BEHALF oF THE Rnpurr,rc oF THE Pnrr,rpprups
wITH THE pRroR coNcuRRENcE oF THE MoNruny Bolnn, mn
suBJEcr ro sucH LIMITATIoNS AS MAy BE pRovIDED ny r,,lw. Tnn,
MoNnuny Bolnn SHALL, wITHIN THIR.Tv DAys FRoM THE END oF
EvERy eUARTER oF THE cALENDAR vEAR, sUBMIT To rHE CoNcnoss
A COMPLETE R,EPORT OF ITS DECISIONS ON APPLICATIONS FOR LOANS
To BE coNTRAcTED oR GUARANTEED By rHE, GovnRNMENT oR
GOVERNMENT-OWNED AND CONTROLLED CORPORATIONS WHICH
WOULD HAVE THE EFFECT OF INCREASING THE FOREIGN DEBT, AND
CONTAINING OTHER MATTERS AS MAY BE PROVIDED BY LAW.
1. Power to contract or guarantee foreign loans.
The power given to the President to "contract and guarantee for-
eign . . .loans" under the 1973 Constitution was merely made "subject
l7{'People v. Vera,65 Phil.56, I l0 (1937).
r/rftl.at lll.
//rl)rilon v. (i)urt ol'Appeals, 202 S(IRA 37tt ( l99l ).
r/f(irrlrls, l tn: l'tttt.tt't'txt' l"tt'.stttt.:nt
y 2()2. n()lc ll I0 ( 196(r)
J'
 THE 1987 CONSTITUTION Sec. 20
OF THE REPUBLIC OF THE PHILIPPTNES Sec.2l ART.VII
- EXECUTIVEDEPARTMENT

to such limitations as may be provided by law."zzs with Amendment

6, however, which authorized the President to make law, the limita-
tion was meaningless. And having learned from the experience under
Mr. Marcos who practically enslaved the Filipinos to foreign banks, the
constitutional commission provided for a more effective way of check-
ing the President. He can no longer contract or guarantee foreign loans
without the concurrence of the Monetary Boar'a[.2?6 In addition, both the
President and the Monetary Board themselves are subject to such limi-
tations as may be provided by law. Finally,Article XII, section 2l says:
"Foreign loans may only be incurred in accordance with law and the
regulation of the monetary authority. Information on foreign loans ob-
tained or guaranteed by the Government shall be made available to the
public." The monetary authority referred to is that which Article XII,
Section 20 commands Congress to establish.rT?
ln Spouses Constantino v. Cuisia,2l' the Financing hogram for
foreign loans instituted by the President with proper authorization ex-
tinguished portions of the country's pre-existing loans through either
debt buyback or bond-conversion. when this was challenged the court
found the launching of the Program to be justified by the constitutional
power of the President to contract and guarantee foreign loans saying
that the plain, clear and unambiguous language of the constitution
should be construed in a sense that will allow the full exercise of the
power provided therein.
It should be noted that these strict rules are made applicable by the
constitution to foreign loans. ordinary legislation may also make them
applicable to domestic loans.
"'Article VII, Section lZ(1973).
r/"A proposal to
make such actions subject to the prior concurrence ofCongrcss wrn rc
jectcd. ll
RECORD 526-530.
277
"The Congress shall establish an independent central monetary authority, the mcnrhc1;
of whose governing board must be nanrral-born Filipino citizens, of known probity, integrity,
rnrl
patriotism, the majority of whom shall come from the private s€ctor. They shall bc subjcfr
tg ruch
other qualifications and disabilities as may be prescribed by law. The authlrity shall pnividc prllt.y
direction in the areas of money, banking, and credit. It shall have supervision o"", ih" opcrntlnrr
ofbanks and exercise such regulatory powers as may be provided by law over thc opcrirti.,nr 6f
finance companies and other institutions performing similar functions.
"until the congress otherwise provides, the central Bank of thc philippinor, onarnlnr
under existing laws, shall function as the central monetary authority."
2T8Spouses
Constantino v. Cuisia, G.R. No. I 06064, ()ctobcr I 3, 2(X).t.
Snc. 21. No rnury
oR TNTERNATToNAL AGREEMENT srrALL
BE VALID AND EFFECTIVE UNLESS CONCURRED IN BY AT LEAST TWO.
THIRDS oF ALL tnr Mnunpns oF THE SBN.lrn.
1. Senate concurrence in international agreements.
Whereas under the 1935 and 1973 Constitutions,e legislative con-
currence was needed only in treaties, the 1987 Constitution now re-
quires Senate concuffence in treaties and "international agreements."
It thus becomes necessary to ask what type of international agreements
require Senate concurrence.
Treaties of any kind, whether bilateral or multilateral, require
Senate concurence. Treaties, however, are not the only forms of in-
ternational agreements into which the Chief Executive may enter. The
authority of the Executive to enter into executive agreemenrs without
concurrence of the legislature has traditionally been recognized in phil-
ippine jurisprudence. "The concuffence of [the legislature] is required
by our fundamental law in the making of 'treaties', which are, however,
distinct and different from'executive agreements', which may be val-
idly entered into without such concurrenss."zso However, as Francis B.
Sayre, former U.S. High Commissioner to the Philippines noted: "The
point where ordinary correspondence between this and other govern-
ments ends and agreements whether denominated executive agree-
-
ments or exchange of notes or otherwise begin, may sometimes be
-
difficult of ready ascertainment."2sr The practice in fact was that agree-
ments which were deemed to require concurrence were embodied in
treaties whereas those which were deemed as not requiring concurrence
were embodied in executive agreements. The following is an attempt,
under the old Constitution, to delineate what may be covered by execu-
tive agreements and what must be covered by treaties.282
... [t]he right of the Executive to enter into binding agree-
ments without the necessity of subsequent Congressional approval
2TeArticle
Vll, Section l0(1935); Article VIII, Section 14(l), (1973).
r8)('ornmissioner of Customs v. Easrem Sea Trading,3
SCRA 351,355-6 (1961).
r*rSnyxr,, "'l'ttr ('oNsrrnrrtoN^r.tt'y ot' Tnun. Acnrr:urlrs
Acrs" 39 COLUMBIA L.R- 651,
755.qrutrtl in .1 S('RA;rt .157.
tvkl., qutied in .l SCRA 356. For a classilication of executive agreements, sea
USAFFE
VclcritnsAssot'iittion,lnc.v.'licasurcrof thcl'hil., l05 l'hil. 1030, l03tt(1959).Onrhclcgal lorcc
ttl't'xct'ttlivt'rlllrc('ttlcttls itt Iclitliott lo slirlul('s, vr riltitrr iitlun in (itn;lilt'.r r'. Ilaluutnrt,\)
s('RA I lO, ?4 r ( le6 r)
936 THE 1987 CONSTITUTION Sec.2t
OF THE REPUBLIC OF THE PHILIPPINES
has been confirmed by long usage. From the earliest days of our
history we have entered into executive agreements covering such
subjects as commercial and consular relations, most-favored-na-
tion rights, patent rights, trademark and copyright protection, post-
al and navigation arrangements and the settlement of claims. irlre
validity ofthese has never been seriously questioned by our courts.
xxx
Agreements with respect to the registration of trademarks
have been concluded by the Executive with various countries un-
der the Act of Congress of March 3, 1881 (21 Stat. 502). Postal
conventions regulating the reciprocal treatment of mail matters,
money orders, parcel post, etc., have been concluded by the Post-
master General with various countries under authorization by Con-
gress beginning with the Act of February 20,1192 (l Stat.232,
239.) Ten executive agreements were concluded by the President
pursuant to the McKinley Tariff Act of 1890 (26 Stat. 567 , 612),
and nine such agreements were entered into under the Dingley
TariffAct of 1897 (30 Stat. 151,203,214.) A very much larger
number of agreements, along the lines of the one with Rumania
previously referred to, providing for most-favored-nation treat-
ment in customs and related matters have been entered into since
the passage of the Tariff Act of 1922, not by direction of the Act
but in harmony with it.
xxx
International agreements involving political issues or chang-
es of national policy and those involving international arrange-
ments of a permanent character usually take the form of treaties.
But international agreements embodying adjustments of detail
carrying out well-established national policies and traditions and
those involving .urangements of a more or less temporarl nature
usually take the form of executive agreements.
What is notable about the examples enumerated in this citatiorr
is that executive agreements covering trademarks, postal regulatiorrs,
tariffs and most favored treatment in customs and related mattcrs wcr-c
undertaken by the executive pursuant to an act of Congress. For tlrirl
reason there was no need for subsequent congressional ratiticatiorr. ( )r,
as the last paragraph of the above quotation puts it, executivc agrcc
ments and other international agreemcnts which arc in thc nululc ol
original agreements of a pcrmanclll n:rlurc or which crstahlish lrirtiorurl
policy rct;uirc concrtrrcnc:(:. Srrclr itrlrccllcnls, wlurlt'vcr llrt. rrirrrrc givcrr
Sec.21 ART.VII - EXECI.ITIVE DEPARTMENT
to them, are in fact treaties. But executive agreements which are merely
implementation of treaties or of statutes or of well established policy or
are of a transitory effectivity do not require concurrence.
More recently, but before the effectivity of the 1987 Constitution,
in a case involving the World Health Organization, which is an arm of
the United Nations of which the Philippines is an active member and
original signatory, the Supreme Court said:'z83
While treaties are required to be ratified by the Senate un-
der the Constitution, less formal types of international agreements
may be entered into by the Chief Executive and become binding
without the conculrence of the legislative body.'z8a The Host Agree-
ment comes within the latter category; it is a valid and binding
international agreement even without the concurrence of the Phil-
ippine Senate. The privileges and immunities granted to the WHO
under the Host Agreement have been recognizedby this Court as
legally binding on Philippine authorities.
Has the doctrine enunciated here been changed by the 1987 Con-
stitution?
What comes out from the discussion in the 1986 Constitutional
Commission is substantially the same doctrine as that followed under
the 1935 Constitution.2" Thus, after the effectivity of the 1987 Consti-
tution, when the time came for a new review of the Philippine-United
States Bases Agreement, the modifications were merely contained in
the Manglapus-Shultz Agreement which was not presented for con-
currence by the Senate. The Senate itself agreed that concurrence was
not necessary. And if one must look for a specific constitutional justi-
fication for such practice, it is submitted that through such executive
agreements the President merely carries out his duty to "ensure that the
laws be faithfully executed."286 What the President does in such situa-
tions would not be unlike the formulation of administrative regulations
by administrative agencies pursuant to a delegating law. Administra-
tive regulations do not need confirmation by Congress but draw their
strength from the delegating law.
2s.world Hcalth organization vs. Hon. Benjamin Aquino,48 SCRA 242; Commissioner of
lntcrnrl Revenue v. John Gotamco and Sons' 148 SCRA 36' 39-40 (1987)'
rsat)sallb vcterans Association, lnc. v.'freasurer of the Philippines. l05 Phil. 1030.
tN'ilRli('oRl ) 544-546.
rr"Arliclt' Vll, Scclion 7.
1
 THE 1987 CONSTITUTION ART. VII EXECUTIVE DEPARTMENT 939
OFTHE REPUBLIC OFTHE PHILIPPINES
Seo. 2 I Sec.21 -

Treaty making involves two distinct phases: negotiation The oppositors, however, insisted that, since Article XVI[, Sec-
and the
actual making of the treaty. In the negotiation phase,ihe
power of the tion 25 said that the treaty must be recognized as such by the United
President excludes the legislature. As Justice Sutherland put
it:^, ..He States, it would be effective only if given the advice and consent of the
alone negotiates.Into the field of negotiation, the Senate
cannot intrude; United States Senate. The Court answered the objection thus:
and congress itself is powerless to invade it." However,
the fruit of the
executive's negotiation cannot bind as law unless it has This Court is of the firm view that the phrase "recognized
the concurrence
of the Senate. as a treaty" means that the other contracting party accepts or ac-
knowledges the agreement as a treaty. To require the other con-
Ratification, as in the 1935 constitution,28s is given by at least
two- tracting state, the United States of America in this case, to submit
thirds of all the members of the Senate.2se
the VFA to the United States Senate for concurrence pursuant to its
But if the President does not present a treaty to the senate, the Constitution, is to accord strict meaning to the phrase.
sen-
ate has nothing to ratify. Thus, prior to his ouster from Well-entrenched is the principle that the words used in the
the presidency
President Estrada had signed the Treaty on the International Constitution are to be given their ordinary meaning except where
criminal
court but he did not submit it to the senate for concurrence. Neither technical terms are employed, in which case the significance thus
did
PresidentArroyo. Efforts to compel the Executive Department attached to them prevails. Its language should be understood in the
by man-
damus to submit the document to the Senate was rebuffed sense they have in common use.
by the court.
The court said that the decision to enter or not to enter into it is inconsequential whether the United States
a treaty is a Moreover,
prerogative solely of the President. Thus, unless the president treats the VFA only as an executive agreement because, under in-
submits a
treaty to the Senate there is nothing for the senate [6 sslsul ternational law, an executive agreement is as binding as a treaty. To
in.zeo
be sure, as long as the VFApossesses the elements of an agreement
2. The Visiting Forces Agreement. under international law, the said agreement is to be taken equally
as a treaty.
Bayan v. Executive Secretaryrn' was a chalrenge to the constitu-
tionality of the visiting Forces Agreement between the philippines A treaty, as defined by the Vienna Convention on the Law
and
the united States. The Agreement had been ratified by the of Treaties, is "an international instrument concluded between
senate and
on June r,7999, it officially entered into force after an States in written form and governed by international law, whether
Exchange of
Notes between Secretary of Foreign Affairs siazon and embodied in a single instrument or in two or more related instru-
united States ments, and whatever its particular designation." There are many
Ambassador Hubbard.
other terms used for a fteaty or international agreement, some
The first question that had to be answered was whether
the Agree- of which are: act, protocol, agreement, compromis d' arbitrage,
ment was governed by Articre vII, section 2r orby Arricle
XVIII, Sec- concordat, convention, declaration, exchange of notes, pact, stat-
tion 2-5. The court said that the Agreement came under both ute, charter and modus vivendi. All writers, from Hugo Grotius
provisions.
Because the Agreement involved presence of uS armed onward, have pointed out that the names or titles of international
troops, it had to
come under the Article xvIII requiring a formal treaty. Because agreements included under the general term treaty have little or no
it was a legal significance. Certain terms are useful, but they furnish little
treaty, the manner of its approval had to follow Article
vII, section 2r .
more than mere description.

sv. Curris-wrisht Corp.,299 U.S.304,319 (1936). Article 2(2) of the Vienna Convention provides that "the
:::U
zs8ArricleVII, Section 10(7). provisions of paragraph I regarding the use of terms in the present
28eunder
the 1973 constitution, Article VIII, section r4( l concurrencc
), of nra.j6riry or. ,1 Convention aro without prc.iudicc kl the use of those terms, or to
the members of the Batasan was required. see a/so Arricre
2sPimentel v.
XIV, Secrion r6 ( 1973). thr: rncranings which may bc givcn kl thetn in the internal law of
Ermita, G.R. No. l5tt088,.lrrly 6, 2005.
2erC.R. No. thc Stiltr!."
l3tl-570, Oclohcr 10,2(XX).
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Thus, in international law, there is no difference between
treaties and executive agreements in their binding effect upon
states concerned, as long as the negotiating functionaries have re-
mained within their powers. International law continues to make
no distinction between treaties and executive agreements: they are
equally binding obligations upon nations.
xxxx
"Furthermore, the United States Supreme Court has express_
ly recognized the validity and constitutionality ofexecutive agree-
ments entered into without Senate approval. ...
The deliberations of the Constitutional Commission which
drafted the 1987 Constitution is enlightening and highly_insrruc_
tive:
"MR. MAAMBONG. Of course it goes without saying
that as far as ratification of the other state is concemed. that is
entirely their concern under their own laws.
FR. BERNAS.Yes, but we will accept whatever they say. If
they say that we have done everything to make it a treaty, then as
far as we are concerned, we will accept it as a treaty."
3. Termination of treaty.
The termination of the life of a treaty may be arrived at by formal
agreement of the parties. The treaty itself might contain the manner
of
terminating its life. Likewise international law recognizes the right of
one party to terminate atreaty for breach by the other party or when
the
fundamental circumstances for which the treaty was entered into have
changed. This latter is the principre of rebus sic stantibus. But when
the
time for terminating atreaty arrives, who does it? The president alone?
The President with the senate? congress? The constitution is silent
on
the subject.
Since congress has legislative power and since statutes and trea-
ties are of the same rank, congress can pass a law effectively negating
the terms of a treaty. But since a statute is only municipal law *ilerea*
treaties are international law, under the theory of ,.clualism" the c<ln-
gressional act would only affect the domestic force of the treaty.
The united states Supreme court recently had occasion t, dcul
with a unilateral act of termination of a treaty ma<Ie by presidcnt (.irrtcr..
It involved the Mutual Dct'ensc Trcaty with ririwan wlric:h c:gntirinr:tl irrr
Sec.21 ART. VII * EXECUTIVE DEPARTMENT
explicit provision on termination by either parly on one year's notice.
When President Carter terminated it on his own, Senator Goldwater
challenged it on the ground that the President could not terminate the
treaty without Senate participation. The district court upheld Goldwater
arguing that the treaty was "law of the land" and the product of shared
powem and may therefore not be undone by one of the powers act-
ing alone.2e2 The Court of Appeals reversed with reliance on the broad
foreign affairs powers of the President.'ze3 When finally it went to the
Supreme Court, the Court remanded it to the district court with instruc-
tion that the complaint be dismissed. Four justices considered the is-
sue a "political question," one said that the question was not "ripe" for
adjudication, one believed the issue needed more discussion, another
concurred in the result, and one affirmed the power of the President."4
4. Other foreign affairs powers.
In trying to find other foreign relations powers of the President it
is necessary to go through provisions ofboth the 1935 and 1973 Con-
stitutions.
Article VII, Section 10(7) of the 1935 Constitution said:
The President shall have the power, with the concurrence of
two-thirds of all the Members of the Senate, to make treaties, and
with the consent of the Commission on Appointments, he shall
appoint ambassadors, other public ministers, and consuls. He shall
receive ambassadors and other public ministers duly accredited to
the Government of the Philippines.
There are three distinct foreign affairs powers in this article: (1)
the power to make treaties; (2) the power to appoint ambassadors, other
public ministers, and consuls; (3) the power to receive ambassadors
and other public ministers duly accredited to the Philippines. The first
is now found in Article VII, Section 2l and the second is covered by
Article VII, Section 16. The third, however, is now part of statutory law.
It became part of statutory law via Article VII, Section 16 of the 1973
Constitution which vested in the 1 973 Executive all powers of the 1935
President not provided for in the 1973 Constitution and which also said
ror(ioltlwalcr v. ('artcr, 4tll Ir. Supp. 949 (l).1).('. 1979)
r'''617 lr.2rl 697 (l).('. ('irc. l()7()).
rx,l.l,l U.( ()()7 (l()'/(r).
 THE 1987 CONSTITUTION Sec.2l Sec.22 ART. VII _ EXECUTIVE DEPARTMENT
OF THE REPUBLIC OF THE PHILIPPINES

that such powers would remain with the president unless the legislature
prior investigation, conducted by said Executive or his authorized
provided otherwise.2'5 It may even be said that constitutionally it be-
agent, of the ground upon which such action is contemplated' In
longs to the President as the primary organ of foreign relations. such case the person concerned shall be informed of the charge
While the receiving of ambassadors may appear merely as a cer- or charges against him and he shall be allowed not less than three
days for the preparation of his defense. He shall also have the right
emonial function and not a power, it does entail the significant preroga-
to be heard by himself or counsel, to produce witnesses in his own
tive to decide whether a prospective ambassador from a foreign country
behalf, and to cross-examine the opposing witnesses'
is acceptable.It also includes the prerogative to decide that a diplomatic
officer who has become persona non grata be recalled. In fact it also The legislature may also limit the substantive grounds for deporta-
includes the power to recognize governments and to withdraw recogni- tion to causes enumerated by law, "as it would be undemocratic to hold
tion. that an alien may be deported upon an unstated or undefined ground de-
Another foreign relations power which has become a subject of pending merely on the unlimited discretion of the Chief Executive."2e8
occasional litigation is the deportation power. Tan Tbng v. Depo)rtation Beyond all these, of course, is the fact that by jurisprudence and
Boar&ou spoke of this power thus: in very general terms the President is the "sole organ" of the state for
foreign relations.2e He also draws power to make war in defense of the
The power to deport aliens is lodged in the president of the
Republic of the Philippines. As an act of state, it is vested in the state from his position as Commander-in-Chief.3m And since the general
Executive by virtue of his office, subject only to the regulations principles of international law are part of the law of the land3o' and the
prescribed in Section 69 of the Revised Administrative Code or to President has the duty to "ensure that the laws are faithfully executed,"'o'
such future legislation as may be promulgated on the subject. (1n re he must of necessity impact on foreign relations. Moreover, Congress
McCulloch Dick,38 Phil.4l.) There is no provision in the Consti- may delegate to him the power to make rules and regulations on matters
tution nor act of the legislature defining the power, as it is evident touching foreign relationsso3 and even to legislate on matters touching
that it is the intention of the law to grant to the chief Executive full trade relations with other countries.3s
discretion to determine whether an alien's residence in the country
,
is so undesirable as to affect or injure the security, welfare or inter-
est of the state. The adjudication of facts upon which deportation
I Snc.22. Tnr PnnsmrNr sHALL suBMrr ro rrrr CoNcness
WITIIIN THIRTY DAYS FROM TIIE OPENING OF EVERY REGULAR SESSIONT
is predicated also devolves on the Chief Executive whose decision
AS THE BASIS OF THE GENERAL APPROPRIATIONS BILL' A BUDGET OF
is final and executory. (In Re McCulloch Dick, supra.)
i AND ExpENDrruREs AND souRcns oF FINANcINGTINcLUDING
"EcErpars
: NECEIPTS FROM EXISTING AND PROPOSED REVENUE MEASURES.
Section 69 of the old Administrative CodeDT prescribed the pro-
cedure which the executive must follow in deportation cases. It reads:
:

I 1. TheBudget.
SEC. 69. Deportation of subject of foreign power. A sub-
- The budget, which becomes the basis of the general appropria-
ject of a foreign power residing in the philippines shall not be de-
tions bill, is prepared by the President and submitted to Congress within
ported, expelled, or excluded from said Islands or repatriated to
his own country by the President of the philippines except upon
2esQua Chee Gan v. Deportation Board,9 SCRA 27,33 (1963).
2sUnited States v. Curtis-Wright,299 U.S. 304,319 (1936)' citrng Marshall'
2e5See
Sessions of September I 3 and 14, 1972, 197 I Constitutional Convention. See also ]*'Article VlI, Section 18.
BenNns, CoNsnrwtottet SrnucruRt: AND Powt*s or Govenxutnr 1 60- l 6 l ( 974).
1 xrrArticle ll, Section 2.
,,696 Phil. 934, 936 (
t 95.5). u'rArticlc Vll, Section 17.
zuTThis is the
Adnrinistr.tivc (\xlc.l l9l7 which wrs repeuled by p.D. No. 1587 (1928)
'Articlc Vl, Scction l; ll lltrr.rns, 'lttr: CoNstttUTroN or"nlE Ru'unuc oF'IHt: Pltil'rPP/fJt:s
whichinturnwasdisrcgrrrtlctl hyli.() No. l(rtl(Mly5, l9tl7)forbcingununpublishc<t1nrl rhcn:- 'tf

lirr incfti:ctivc dccrcc. 7t nI (t91il( lil.).

"'rArlir'lc Vl, Sct'lion 2ll
 THE 1987 CONSTITUTION Sec.22 Sec.23 ART. VII - EXECUTIVE DEPARTMENT
OFTHE REPUBLIC OFTHE PHILIPPINES

thirty days from the opening of every regular session. As already seen
under Article VI, Section 25(1), Congress may not increase the appro-
priation recommended by the President for the operation of the Govern-
ment as specified in the budget. The phrase "sources of financing,' has
reference to sources other than taxation foreign aid.305
4. Budget accountability. The fourth phase refers to the
evaluation of actual performance and initially approved work tar-
gets, obligations incurred, personnel hired and work accomplished
are compared with the targets set at time the agency budgets were
approved.

The complete Government budgetary process has been graphi- Src.23. Tnn Pnrsmnnr sHALL ADDREss rrrg Coxcnnss lr
cally described as consisting of four major phases:3* THE opENING oF ITs REGULAR srssrox. Hn MAY ALso APPEAR BEFoRE
IT AT ANY OTIIER TIME.
l. Budget preparation.The first step is essentially tasked
upon the Executive Branch and covers the estimation of govern-
ment reyenues, the determination of budgetary priorities and ac-
tivities within the constraints imposed by available revenues and
by borrowing limits, and the translation of desired priorities and
activities into expenditure levels.

Budget preparation starts with the budget call issued by the

Department of Budget and Management. Each agency is required
to submit agency budget estimates in line with the requirements
consistent with the general ceilings set by the Development Bud-
get Coordinating Council (DBCC).

2. Icgislntive authorization At this stage, Congress en-

ters the picture and deliberates or acts on the budget proposals of
the President, and Congress in the exercise of its own judgment
and wisdom formulates an appropriation act precisely following
the process established by the Constitution, which specifies that no
money may be paid from the Treasury except in accordance with
an appropriation made by law.

3. Budget Execution. Tasked on the Executive, the third

phase of the budget process covers the various operational asp,cts
of budgeting. The establishment of obligation authority ceilings,
the evaluation of work and financial plans for individual activities,
the continuing review of government fiscal position, the regulation
of fund releases, the implementation of cash payment schedules,
and other relatgd activities comprise this phase of the budget cycle.

xrll RECORD 163-164.

x\iuingonl, Jr. v. ('lruguc, l9(r S('RA 221,215-2il6 ( l99l )

Anrrcr,n VIII
Juorcrnr, DnpIRTMENT
Spcrron 1. Tnr JUDTcTAL powrR sHALL BE vEsrED rN oNE
Supnnup Counr aun rx sucn LowER couRTS As MAy BE ESTABLISHED
BY LAW.
Junrcnr, FowER TNCLLJDES THE DUTy oF THE couRTs oF
JUSTICE TO SETTLE ACTUAL CONTROVERSIF,S INVOLVING RIGHTS WIIICH
ARE LEGALLY DEMANDABLE AND ENFORCEABLE, AND TO DETERMINE
WHETIIER OR NOT THERE HAS BEEN A GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION ON THE PART OF
ANy BRANCH oR INSTRUMENTALTTy oF THE Govrnuurnr.
1. Judicial power.
In a society which looks to the judiciary as the last bulwark of
constitutional rights and liberties, one can be spared the agony ofdisap-
pointment over the silence of the judiciary about critical public issues if
one takes the trouble to find out what the role of the judiciary is in the
constitutional scheme. courts are given "judicial power," nothing more.
Judicial power, therefore, is the measure of the allowable scope ofjudi-
cial action. Hence, a proper understanding of the concept is essential to
the understanding of the role of the judiciary.
Judicial power has been defined in jurisprudence as "the right
to determine actual controversies arising between adverse litigants,
duly instituted in courts of proper jurisdiction."r It is "the authority to
settle justiciable controversies or disputes involving rights that are en-
forceable and demandable before the courts of justice or the redress of
wrongs for violation of such rights.'t rhus, there can be no occasion for
'Muskrat v. United States,2lg U.S.346 (l9ll).
zl.opez.v. Roxas, l7
SCRAT-56,76t (1966).
.l
_
Sec. I ART. VIII - JUDICIAL DEPARTMENT
the exercise of judicial power unless real parties come to court for the
settlement of an actual controversy and unless the controversy is such
that it can be settled in a manner that binds the parties by the application
of existing laws.
The exercise of judicial power, however, goes beyond the mere
promulgation of final decisions. ln Echegaray v. The Secretary of
Justice,3 where the sentence of death had become final and executory,
the Supreme Court issued a temporary restraining order delaying the
execution of the sentence. Against the contention that the Court had
violated the rule on finality of judgment and even encroached on the
hesident's power of executive clemency, the Court replied that the
power to control the execution of its decision is an essential aspect of
jurisdiction. It cannot be the subject of substantial subtraction because
the Constitution vests the entirety of judicial power in one Supreme
Court and in such lower courts as may be established by law. The Court
added that the most important part of litigation, whether civil or crimi-
nal, is the process of evaluation of decisions where supervening events
may change the circumstance of the parties and compel courts to in-
tervene and adjust the rights of the litigants to prevent unfairness. Re-
garding Echegaray, what persuaded the Court to delay execution was
movement in Congress to amend the law on capital punishment. The
Court decided to await the outcome of this movement.
As to the claim that the action was an intrusion into the Presidents'
power of executive clemency, the Court replied thatArticle VII, Section
19 "cannot be interpreted as denying the power of the courts to control
the enforcement of their decisions after their finality. In truth, an ac-
cused who has been convicted by final judgment still possesses collater-
al rights and these rights can be claimed in the appropriate courts [e.9.,
a death convict who becomes insane after his final conviction cannot be
executed while in a state of insanityl. ... The suspension of such a death
sentence is undisputably an exercise ofjudicial power. It is not a usur-
pation of the presidential power of reprieve though its effect is the same
the temporary suspension of the execution of the death convict."
-
The Court compared this power to the power of Congress to
amend the death penalty: "The powers of the Executive, the Legislative
'(i.R. No. l32fr{)1,Ilrtunry 19, 1999
 948 THE 198TCONSTITUTION Sec. I ART. VIII JUDICIAL DEPARTMENT
OFTHE REPUBLIC OFTHE PHILIPPINES -
and the Judiciary to save the life of a death convict do not
exclude each not to fall within the jurisdiction granted the Supreme Court. Even
other for the simple reason that there is no higher right than
the right to conceding that it does, it would presuppose the right to bring the
life." To contend that "only the Executive can protect the right matter in dispute before the courts, for any other construction
of life
to an accused after his final conviction is to violate the princfle would tend to oust the courts of jurisdiction and render the award a
of co_
equal and coordinate powers of the three branches of oui govJrnmen1.,,. nullity. But if this be the proper construction, we would then have
the anomaly of a decision by the members of the Supreme Court,
2. Intrinsic limit on judicial power. sitting as a board of arbitrators, taken therefrom to the courts and
eventually coming before the Supreme Court, where the Supreme
Because all that is given to rhe judiciary is judicial power,
by the Court would review the decision of its members acting as arbi-
principle of separation of powers courts may neither attempt
to assume trators. Or in the second case, if the functions performed by the
nor be compelled to perform non-judicial functions. An early members of the Supreme Court, sitting as a board of arbitrators,
case
which dealt with an attempt to impose non-judicial functions be considered as administrative or quasi judicial in nature, that
upon the
supreme court was Manila Erectric co. v. pasay Transportation would result in the performance of duties which the members of
co.,
It dealt with a statute granting a franchise to an erectric company. sec- the Supreme Court could not lawfully take it upon themselves to
tion 11 of the statute said: "whenever any franchise or righi of way perform. The present petition also furnishes an apt illustration of
is
granted to any other person or corporation, now or hereafter another anomaly, for we find the Supreme Court as a court asked to
in exis-
tence, over portions of the lines and tracks of the grantee determine if the members of the court may be constituted a board
herein, the
terms on which said other person or corporation shail use of arbitrators, which is not a court at all.
such right
of way, and the compensation to be paid to the grantee herein by such The Supreme Court of the Philippine Islands represents one
other person or corporation for said use, shall be fixed by
the members of the three divisions of power in our government. It is judicial
of the supreme court, sitting as a board or arbitrators, the decision power and judicial power only which is exercised by the Supreme
of a
majority of whom shall be final.,' Court. Just as the Supreme Court, as the guardian of constitutional
rights, should not sanction usurpations by any other department of
In declaring Section 1r unconstitutional, the supreme court the government, so should it as strictly confine its own sphere of
point-
ed to three defects of the statute, two of them closelyielated influence to the powers expressly or by implication conferred on
and having
to do with the nature of judicial power. "Examiningthe statutory it by the Organic Act. The Supreme Court and its members should
provi-
sion which is here involved, it is first noted that p-orv", is attempted not and cannot be required to exercise any power or to perform any
to
be granted to the members of the Supreme Court sitting trust or to assume any duty not pertaining to or connected with the
as a board of
arbitrators and not to the Supreme court as an entity.It is administering of judicial functions.
next seen that
the decision of a majority of the members of the Supreme
court is made The principle enunciated in Manila Electric found application in
final."u The court then proceeded to analyzethis situation
as represent-
ing two horns of a dilemma:7 Noblejas v. Teehankee.' Noblejas, a member of the executive depart-
ment as Commissioner of Land Registration, was under investigation
Either the members of the Supreme Court, sitting as a board by the Secretary of Justice. By the terms of Section 2 of Republic Act
of arbitrators, exercise judicial functions, or the members of the No. 1151 , the Commissioner of Land Registration was "entitled to the
Supreme court, sitting as a board of arbitrators, exercise
admin- same compensation, emoluments and privileges as those of a Judge of
istrative or quasi-judicial functions. The first case would appear the Court of First Instance." Among the "privileges" claimed by Noble-
jas was that of being suspended and investigated only by the Supreme
4Id. Clourt, thcse being privilcgcs grantctl to .ludges o1'the Court of First In-
'57 Phit. 6(X) ( I e32)
"ld. 6(12:.1.
^t (r0,1
//r/. irl 5
i:l I S( 'l{ A ,l( 11 ( I (Xrl( )
 950 THE 198TCONSTITUTION ART. VIT ruDICIALDEPARTMENT 9sl
OF THE REPUBLIC OF THE PHILIPPINES
Sec. I -

stance by Section 67 of the JudiciaryAct, or Republic the courts can come in when agencies violate constitutional rights or
Act No. 296, and
Rule 140 of the Revised Rules of court. The supreme court commit grave abuse of discretion or acts in excess of their jurisdiction.'3
answered
this argument thus:,
Moreover, the general rule is that judicial power is not exercised
But the more fundamental objection to the stand of peti_ to address moot questions. "A moot case is one that ceases to present a
tioner Noblejas is that, if the Legislature had reaily intended justiciable controversy by virtue of supervening events, so that a decla-
to
include in the generar grant of "privileges" or ,.rank and privileges ration thereon would be of no practical use or value. Generally, courts
of Judges of the court of First Insrance" the right to ue inveiti- decline jurisdiction over such case or dismiss it on ground of mootness.
gated by the Supreme Court, and to be suspended
or removed only However, Courts will decide cases, otherwise moot and academic, if:
upon recommendation of that Court, then such grant
of privileges first, there is a grave violation of the Constitution; second, the excep-
would be unconstitutionar, since it would violate the funaameritat
tional character of the situation and the paramount public interest is in-
doctrine of separation of powers, by charging this court with
the volved; third, when the constitutional issue raised requires formulation
administrative function of supervisory control over executive
of- of controlling principles to guide the bench, the bar, and the public; and
ficials, and simultaneously reducing pro tanto the control
of the fourth, the case is capable of repetition yet evading review ... "14
Chief Executive over such officials.
An unusual case, however, is the decision of the Court on the
The court then added that there is "no inherent power in
the Ex- validity of the draft Memorandum of Agreement between the govern-
ecutive or Legislature to charge the judiciary with administrative
func_ ment and the Mindanao Islamic Liberation Front (MILF); Although the
tions except when reasonably incidental to the fulfillment of judicial
agreement had been withdrawn by the government and the government
duties."to
had taken decisive steps not to sign it, the Court nevertheless took pains
correlative with the duty of congress not to charge courts with to declare its contents unconstitutional. For all practical purposes, the
non-judicial power is the duty not to emasculate judicLl power. decision was an advisory opinion telling the President how to make
But
this does not prevent congress from offering alternative .od". peace agreements.r5
of set-
tling disputes which do not prevent ultimate recourse to courts.
when
a law, for instance, says that disputes between government
departments
3. Grave abuse of discretion.
or agencies, excluding constitutional bodies, shall be settled The 1987 Constitution now adds: "Judicial power includes the
adminis_
tratively and the administrative decision shall have the same duty of the courts of justice to settle actual controversies involving
effect as
final decisions of courts of justice, this must be read to mean rights which are legally demandable and enforceable, and to determine
that re-
course to the courts is premature before the exhaustion whether or not there has been a grave abuse of discretion amounting to
of administra_
tive remedies.' similarry, when a law prohibits courts from lack or excess of jurisdiction on the part of any branch or instrumental-
issuing in-
junctions in cases invorving infrastruciure projects ity of the Government." The use of the word "includes" connotes that
of the government,
such prohibition can only refer to administrative acts in
controversies the provision is not intended to be an exhaustive list of what judicial
involving facts or the exercise of discretion in technical cases. power is. But the more significant addition is the clause "to determine
outside
of this dimension and on issues involving questions of law, the whether or not there has been a grave abuse of discretion amounting to
courts
cannot be prevented from exercising their power.r2 Moreover, lack or excess of jurisdiction on the part of any branch or instrumental-
even in
the exercise of their administrative powers by administrative ity of the Government."
agencies,

e
Id . at 408-9 . rMantrust Systcnts, Inc. v. ( \rttrt ol' Appcals, ( i .R. Nos. t16540-4 I , Novomber 6, 1989.
I
told. at 409. r'Quiz1lrr v. ('()Mljl,lj(-. (i.R. No. 177927, lrcbrrrary 15,2(X)ttl Mattcl, lnc. v. f]rancisctt,
I TPHIVIDEC
v. Velez, C.R. tt429.5, July I 8, I 99 I . (i.R. No. l((rtlll(r, Jttly lO,2(X)lt.
r2Malaga v. FNorlh(itlrtlntlo,t'l rtl.v. ltcprrhlit,(i.l{ No. ltllJ()1,()t'lolrtr l'1,2(X)lt
Penachos, Jr., ( i.R . No. g{r{rt)5, ScJrlcrrrlrt,r .l | ()()2
.

i&
 952 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
But, although this addition was introduced because of the fre-
quency with which the Supreme court had appealed to the ..political
question" doctrine during the period of martiai law,r6 it is not
meant to
do away with the political questions doctrine itself.In reply
to a pointed
question, Comrnissioner Roberto Concepcion said: ,.It definitely
does
not eliminate the fact that truly political questions are beyond
the pale
of judicial review."" For instance, among the truly political questions
are matters which have been textually committed by the
constitution
to the political departments. such for instance is the internal
discipline
within congress when acts of congress do not involve impairment of
private rights. outside of these, the courts have a .,duty" to
decide and
to redress violations of rights."
Not every abuse of discretion, however, can be the occasion for
the court to come in by virtue of the second sentence of Section
l. It
must be "grave abuse of discretion amounting to lack or excess
ofjuris-
diction." As Sinon v. Civil Service Commissionput it:,e
By grave abuse of discretion is meant such capricious and
whimsical exercise of judgment as is equivalent to laci of jurisdic-
tion. The abuse of discretion must be patent and gross as toamount
to an evasion ofpositive duty or a virtual refusal to perform a duty
enjoined by law, or to act at all in contemplation of lurv, as where
the power is exercised in an arbitrary and despotic manner
by rea_
son of passion or hostility.
ln PCGG v, COCOFED, et al., the Court found it grave abuse
of discretion for the sandiganbayan to contravene earlier decisions of
the Supreme court "thereby unlawfully, capriciously and
arbitrarily de-
priving the government of its right to vote sequestered shares purchased
with coconut levy funds which are prima
facie public funds. Indeed,
grave abuse of discretion may arise when a lower court or
tribunal vio-
lates or contravenes the constitution, the law or existing jurisprudence.,,
A broad definition of grave abuse of discretion is found in Info-
tech Foundation, et al. v. G)MELEC which says that there ..grave
is
16I
RECORD oF THE 1986 CONSTITUTIONAL coMMISSIoN 434,
hereinaJ.ter re-
ferred to as RECORD.
t7Id. at 443.
r8An explicit
mention of the reclress of wrongs firr the violations of rights was
neccssary. Id.at475.
dccmctl un
,,2t.5 S('RA 4t0,4t6_
t7 ( t9q2).
Sec. I ART. VIII - JUDICIAL DEPARTMENT
abuse of discretion (1) when an act is done contrary to the Constitu-
tion, the law or jurisprudence; or (2) when it is executed whimsically,
capriciously or arbitrarily out of malice, ill will or personal bias. In the
present case, the Commission on Elections awarded the subject contract
not only in clear violation of law and jurisprudence, but also in reckless
disregard of its own bidding rules and procedure.'z.
The abuse of discretion must be grave, as where the power is ex-
ercised in an arbitrary or despotic manner by reason of passion or per-
sonal hostility and must be so patent and gross as to amount to an eva-
sion of positive duty or to a virtual refusal to perform the duty enjoined
by or to act at all in contemplation of law. The word "capricious," usu-
ally used in tandem with the term "arbitrary," conveys the notion of
willful and unreasoning action. Thus, when seeking the corrective hand
of certiorari, a clear showing of caprice and arbitrariness in the exercise
of discretion is imperative.2'
The Court has used this authority to check even independent bod-
ies such as the Electoral Tribunal," political parties and the House of
Representativesr and administrative agencies.'a Similarly, it is "well
within the power and jurisdiction of the Court to inquire whether the
Senate or its officials committed a violation of the Constitution or
gravely abused their discretion in the exercise of their functions and
prerogatives."" For as the constitutional text says, the Court can check
the actuation of "any branch or instrumentality of the Government."
On this basis the Court has suggested that even the act of the President
calling on the Armed Forces under Article VII, Section 18 can be re-
viewed to check whether there has been grave abuse of discretion.'u The
principle, however, must sometimes yield to separation of powers or, as
already seen, to the doctrine on "political questions" or to the "enrolled
bill" ru1e.27 In fact, it is difficult to see a clear pattern of the times when
the Court will check a co-equal department or not. In every instance
r"lnftrtech Foundation, et al. v. COMELEC, G.R. No. 159139, January 13
'2004.
rr
Balangauan v. CA, G.R. No. 1 74350, August I 3, 2008.
rrlt-.1;., l.crias v. House El. Trib., G.R. No. 97105, October 15, 1991.
|liorrtkr v. I'inctl:t, Scptcnrhcr 26, 1991. (El T); Villarosa v. HRET, G.R. No. 1214129.
Scplt'ntlx'r 14, 2(XX).
r'tl'...q., Sittrrr v. ('ivil Sclvicc ( irtttrtrissirxt, 2 I 5 SCRA 4lO' 416- l7 ( 1992).
"Srrnltitllr v. (itritt1.lotttt.(i.l{, No. I t4577, Novctrttrcr ltt, l99tl.
"'1,;tr rrttt v lt'tcr.(i.l(. No. l'l//l't0. Mty lO,2(X)l
'r,\r'r'r'1; 'lirlettlitto v Settclttty ol l;tttttttr't', I t5 S('l{A (tlO ( l9()'1)
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
where the Court has asserted its right to check co-equals for abuse of
discretion, it has found no reason to exercise its new found prerogative.
4. Advisory opinions.
The nature of judicial power is also the foundation of the prin-
ciple, as old as the American republic, that it is not the function of the
judiciary to give advisory opinions. When in 1793 President Washing-
ton, through Secretary of State Jefferson, sought the advice of the Su-
preme Court on some critical international law questions arising from
the French Revolution, Chief Justice Jay's courteous but firm reply
was that it was beyond the competence of the Court to give the advice
sought." Or, as Justice Cardoso put it:2e
The function of the courts is to determine controversies be-
tween litigants. * x x They do not give advisory opinions. The giv-
ing of such opinions is not the exercise of the judicial function. x
* x It is true that in England the custom of the Constitution makes
the judges of the high court the assistants of the Lords, and re-
quires them, upon the demand of the Lords, to give 'consultative'
opinions. But that custom is a survival of the days when the judges
were members of the great council of the realm. In the United
States no such duty attaches to thejudicial office in the absence of
express provision of the Constitution.
The practical pitfalls that can lie along the road ofjudicial attempts
to give advisory opinions were explained by Justice Fernando thus:3o
Moreover, I would assume that those of us entrusted with
judicial responsibility could not be unaware that we may be laying
ourselves open to the charge of presumptuousness. Considering
that the exercise of judicial authority does not embrace the alien
role of a presidential adviser, an indictment of officiousness may
be hard to repel. It is indefinitely [sic] worse if the advice thus
gratuitously offered is ignored or disregarded. The loss ofjudicial
prestige may be incalculable. Thereafter, there may be less than
full respect for court decisions. It would impair the confidence in
its ability to live up to its trust not only on the part of immediate
parties to the litigation but of the general public as well. Even if
28Youngstown Sheet & Tube Co. v. Sawyer,343 U.S. 579,614 (1952).
2eln ra Wrrrkmen's Compensation [\rnrl, I l9 NE 1027 (l9lti), r'ilcrl in l)ircctor ol llisons
v. Ang ('ho Kio,33 S('RA 494,509 ( lt)7O),lrcrttlndo,./., corrcrrlring.
ro/r/. :rl
5 lO.
Sec. I ART. VIII _ ruDICIALDEPARTMENT
the teaching of decided cases both here and in the philippines is
not as clear therefore, there should be, to say the least, the utmost
reluctance on the part of any court to arrogate for itself such a pre-
rogative, the exercise of which is fraught with possibilities of such
undesirable character.
The above observation of Fernando should also be brought to bear
on Article 5 of the Revised Penal Code which says:3r
Whenever a court has knowledge of any act which it may
deem proper to repress and which is not punishable by law, it shall
render the proper decision, and shall report to the chiefExecutive,
through the Department of Justice, the reasons which induce the
court to believe that said act should be made the subject of penal
legislation.
In the same way the court shall submit to the Chief Execu_
tive, through the Department of Justice such statement as may be
deemed proper, without suspending the execution of the sentence,
when a strict enforcement of the provisions of this code would
result in the imposition of a clearly excessive penalty, taking into
consideration the degree of malice and the injury caused by the
offense.
In People v. de la Cru1,32 Justice Cesar Bengzon already had occa_
sion to ask, but not answer, whetherArticle 5 was unconstitutional. But
Director of Prisons v. Ang cho Kio'' said obiter that the "recommenda-
tory power of the courts in this jurisdiction are [sic] limited to those
expressly provided in the law and such law is the provision of section
5 of the Revised Penal Code . ... "
The Ang cho Kio case arose out of a petition for a writ of habeas
corpus which was dismissed by a special division of five justices of the
court of Appeals. The dismissal, however, contained the recommenda-
tion that Ang Cho Kio:3.
... [b]e sent out at once from this country and that he be allowed
to leave Muntinlupa Prisons under guard only when he has been
booked for outward flight at the Manila International Airport so as
to avoid the possibility of any further violation of his conditional
".t.t s('RA.50.1 ( 1970).
trt)2 I'hil. ()(Xr, ()(X) (
l()5.i)
' '.1.1 li( 'R A 4()4 ( I ()',/0 ).
'rlr/. rt 1(X) 50l ( l(r/()).
956 THE 198TCONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
pardon. At any rate it would be to the best interest of the security
and peace of this country to have the petitioner expatriated from
the Philippines, instead of being recommitted for a long duration
of time to prison where his presence may constitute a constant
menace to our country's welfare and bring about some sinister in-
fluence among the people with whom he will associate or come in
contact.
Two justices of the division dissented from the above portion of
the decision and eventually the Solicitor General appealed to the Su-
preme Court by certiorari asking for the deletion of the recommenda-
tion. Five Justices were for granting the certiorarl prayed for:35
It may be said that the recommendation embodied in the
majority opinion of the special division of the Court of Appeals
simply represents the private opinion of the three justices, and
judges should be left free to express even their private opinions
in judicial decisions. We believe, however, that the better practice
should be that the decision of a court should contain only opinion
that is relevant to the question that is before the court for decision.
After all, courts are not concerned with the wisdom or morality of
laws, but only in the interpretation and application of the law. We
believe thatjudges should refrain from expressing irrelevant opin-
ions in their decisions which may only reflect unfavorably upon
their competence and the propriety of their judicial actuation.
The vote for granting the writ, however, was one less than the ma-
jority of the court because two justices dissented and three did not take
part. In his dissent Makalintal said:36
This recommendation is admittedly not a part of the judg-
ment of the said Court; it was not within the issue presented for its
resolution; and the fact that it was made at all is a non-prejudicial
matter which does not rise to the category of reversible error. I
would not begrudge the three Justices who took the liberty to do
so, nor consider their act as an undue trespass upon presidential
prerogative. What is involved is, to me, no more than a question of
taste, or punctilious observance of certain proprieties concerning
which well-meaning men may honestly differ; and I am not pre-
pared to say that there has been such a blatant disregard ofeither as
to call for the interposition of this Court's power of review merely
for the purpose of ordering the deletion of the matter ob.jected to.
'r/r/. itt 504
It'l(/. rrl 5l I
Sec. I ART. VIII _ JUDICIAL DEPARTMENT
As noted above, regarding the decision of the court on the validity
of the draft Memorandum of Agreement between the government and
the Mindanao Islamic Liberation Front (MILF), in effect the court's
decision amounted to no more than an advisory opinion.
5. Declaratory relief.
Not to be confused with advisory opinions is what is known as a
declaratory relief or judgment. section 1, Rule 64 of the Revised Rules
of court defines an action for declaratory relief as an action by any per-
son interested under a deed, will, contract or other written instrument,
or whose rights are affected by a statute, ordinance, executive order or
regulation to determine any question of construction or validity arising
under the instrument, executive order or regulation or statute and for
a determination of his rights or duties thereunder. As time and again
reiterated by the Supreme court, a petition for declaratory relief must
be predicated on the following requisites: (r) there must be a justiciable
controversy; (2) the controversy must be between persons whose in-
terests are adverse; (3) the party seeking declaratory relief must have
a legal interest in the controversy; and (4) the issue involved must be
ripe for judicial determination.3? However, the supreme court does not
entertain original petitions for declaratory relief.
what thus distinguishes a declaratory iudgment from an advisory
opinion is that the former involves real parties with real conflicting le-
gal interests whereas an advisory opinion is a response to a legal issue
posed in the abstract in advance of any actual case in which it may be
presented. As a consequence of this distinction, an advisory opinion
binds no one whereas a declaratory iudgment is a final one and is for-
ever binding on the parties. The former is thus not a judicial act but the
latter is.
Src. 2. Txr
Concness sHALL rrAvE THE powER To DEFINE,
PRESCRIBE' AND APPORTION THEJURISDICTION OFTHE VARIOUS COURTS
BUT MAy Nor DEpRIvE rnn Supnnun Counr oF ITS JURTSDICTION
ovER cAsES ENUMERATED Ix SnctIol,t 5 grnnor.
N<l l,lw sHAt,L BE pAssED REOR(;ANIzINc tnr Juucrany wHnx
IT UNDtitaMtNus't'HU sr:cutatTy ()t .tnNuRti] or ms MsMnrns.
'///-.11., l)rlrrrrrcrr v l{e1xrhlir., ()4 I'hil, ?lt7,2tttt ( 1954).
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
1. Role of the legislature.
Although judicial power is vested in the judiciary, the proper cx_
ercise of such power requires prior legislative action (l) defining such
enforceable and demandable rights and prescribing remedies for violu-
ticrns of such rights; and (2) determining the court with jurisdiction to
hear and decide controversies or disputes arising from legal rights.,'
Since judicial power involves the application of law to actual
c.n-
troversies, its exercise presupposes the existence of an applicable ltw,
unless there is an applicable law, courts are without power to settle con-
troversies. Thus in channie Thn v. Republic,3s the court ruled that it hud
no authority to entertain an action forjudicial declaration of citizenship
because there was no law authorizing the institution of such proccctl=
ing. It is also for this reason that prior to the enactment of Republic Act
No. 1793 no defeated presidential or vice-presidential candidate undcr
the i935 constitution had a legal right to demand by election protcit
a recount of the votes cast in order to establish his right to the oflice,
Controversies and disputes on this matter were not justiciable for wnnl
of an applicable law.oo similarly, an award of honors to a student by n
board of teachers may not be reversed by a court where the awarcls urt
governed by no applicable law.', Nor may courts reverse the awarrJ ol'n
board of judges in an oratorical contest.42 As the Court said:ol
Like the ancient tournaments of the Sword, these tournn.
ments of the Word apply the highest tenets of sportsmanship: li_
nality of the referee's verdict. No alibis, no mufinurs of pnrtcst,
The participants are supposed to join the competition to contriburt:
to its success by striving their utmost: the prizes are secondary.
No rights to the prizes may be asserted by the contestlnts,
because theirs was merely the privilege to competc for thc pr.izc.
and that privilege did not ripen into a demandable right unlcss rrrrrl
until they were proclaimed winners of the competition by tht: np
pointed arbiters or referees orjudges.
38lopez v. Roxas, 17 SCRA
at 761.
3e107 Phil. 632, 634 (t96O).
aoLopez v.Roxas,
l? SCRA at 761.
arSantiago, Jr. v.
Bautista, 32 SCRA I g8, I 99 ( I 970).
a2Felipe
v. Leuterio, gl Phil.4tt2 ( t952).
atld. ll 4tl1 .
Scc. 2 Sec.2 ART. VIII _ JUDICIAL DEPARTMENT
Aside from creating judicially demandable rights, the congress
also creates courts and determines which court or courts shall have
jurisdiction over various types of controversies. Section 2 says: ..The
congress shall have the power to define, prescribe, and apportion the
jurisdiction of the various courts, but may not deprive the Supreme
court of its jurisdiction over cases enumerated in Section 5 hereof."
sections I and 2 set down three distinct processes: (1) the vest-
ing of judicial power, (2) the creation of courts, (3) the definition, pre_
scription, and apportionment of jurisdiction. Judicial power, as already
defined above, is vested in the courts by the constitution itself. courts,
other than the Supreme court established by the constitution, are creat-
ed by congress. Jurisdiction must be distinguished from judicial power.
"Jurisdiction is the authority of a court to exercise judicial power in a
specific case and is, of course, a prerequisite of judicial power, which
is the totality of powers a court exercises when it assumes jurisdiction
and hears and decides a case."* The jurisdiction of courts, other than
the irreducible jurisdiction of the supreme court prescribed in section
5, is determined by Congress. The 1987 Constitution, however, now
prescribes that: "No law shall be passed increasing the appellate juris-
diction of the supreme court as provided in this constitution without
its advice and concurrence."or It has also been suggested that the power
to determine probable cause for the issuance of warrants may not be
taken away from judges by the legislature since such power has been
conferred by Article III, Section 2.o6ln general, however, these three
processes, except for the conferment of additional jurisdiction upon an
already existing court, occur simultaneously. when congress creates
a court it also concomitantly determines the jurisdiction of that court,
and simultaneously, too, by operation of the constitution, that court
becomes one of the repositories of judicial power.
The authority of congress to create courts of varying jurisdictions
is subject only to the limitations that it may not reduce the jurisdiction
of the supreme court as prescribed in section 5 and also to the implicit
limitation that it may not create a court equal in authority or superior
to the Supreme Court. There can only be ,,one Supreme Court,'; all
'ra(inwrr.r, I'ttt. ('rtnsuttnunt ot. tttt, llMn.o S'l'tttls ot,.Aut.nra
546 ( 1964).
4'Artir'lc Vl, Sccliorr tO.
{"(i)llc('l()r'ol ('ust()llsv..lrrrlgcVilllltrr,Tls('l{A 156,
l7(). ll0(Jurrc lll. lr)76)
 960 TI{E 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
others are "lower courts."4? However, one must be careful to distinguish
between an attempt to create a second supreme court and conferment
of additional jurisdiction upon the one existing supreme court. This
distinction was the hub of the decision in l-opez v. Roxqs.aB
Lopez v. Roxas dealt with Section 1 of Republic Act No. 1793
which provided that: "There shall be an independent presidential rri-
bunal ... which shall be the sole judge of all contests relating to the
election, returns, and qualifications of the president-elect and the vice-
president-elect of the Philippines" and that the presidential Electoral
Tribunal "shall be composed of the chief Justice and the other ten
Members of the Supreme court."oo In answer to the objection that the
Act in effect created a separate court and at the same time appointed the
incumbent chief Justice and members of the supreme court to this new
court, the Supreme Court replied: "Republic Act No. 1793 has not cre-
ated a new or separate court. It has merely conferred upon the Supreme
Court the functions of a Presidential Electoral Tribunal.,"o
The result was different in Vargas v. Rillorazasr where, as a result
of disqualifications imposed by a statute, a majority of the members
of the supreme court were temporarily replaced, pursuant to the same
statute, by judges of courts of first instance. The Supreme Court, dis-
approving, said: "It is distinctly another supreme court in addition to
this. And the Constitution provides for only one Supreme Court.,",
Implicit in the conferment of power on congress to create courts
and to determine their jurisdiction is the denial of the same power to
other departments. Thus, in U .5.7. v. B oard of Tax App eal s,s3 the Execu -
tive order which not only created a Board of rax Appeals pursuant to t
delegating statute but also went "as far as depriving the courts of Firsl
Instance oftheirjurisdiction to act on internal revenue cases" was dc-
clared unconstitutional to the extent that it attempted to impair the juris-
diction of courts of First Instance. "This the chief Executive cannot tkr,
nor can that power be delegated by congress, for under our constitu-
tion, Congress alone has 'the power to define, prescribe, and apportion
a/Article
VIII, Section 1.
4t 7 scRA 756 (1966).
aeld.
at762.
sold.
5180
Phil. 297 (1948).
521d.
at 318.
5193
Phit.376 (t953).
Sec.2
Sec.3 ART. VIII - JUDICIAL DEPARTMENT
thejurisdiction of the various courts.""o A similar result was reached in
Corominas v. Labor Standards Commissionss where a Reorganization
Commission was found to have overstepped its authority when it at-
tempted to divest judicial courts of their jurisdiction over money claims
in order to transfer such jurisdiction to the Regional Offices of the De-
partment of Labor.56
The authority to create courts also includes the authority to abol-
ish courts, Courts, however, may not use the power to abolish courts as
a subterfuge for removing unwanted judges. Hence, a new provision
has been added: "No law shall be passed reorganizing the Judiciary
when it undermines the security of tenure of its Members." While the
provision is new, the doctrine itself is not. And ultimately whether a
contemplatedreorganization violates security of tenure or not is a mat-
ter that will have to be decided in every case by the Court. The provi-
sion is not intended to be a blanket prohibition of reorganization.s? It
should be noted, however, the Supreme Court is beyond the power of
Congress to reorganize even if only as a temporary measure.5s
SBc. 3. Tnr JunrcrlRy srrALL ENJoy rrscAr- AUToNoMy.
AppnopnrrrroNs FoR rnr Juorcr,lny MAy Nor BE REDUCED By rHE
LEGISLATURE BELOW THE AMOUNT APPROPRIATED FOR THE PREVIOUS
YEAR AND, AFIER APPROVAL, SIIALL BE AUTOMATICALLY AND
REGTJLARLY RELEASED.
1. Fiscal autonomy.
The basic aim of granting fiscal autonomy to the judiciary is to
assure its independence. The meaning of fiscal autonomy is expressed
in the second sentence of Section 3: "Appropriations for the Judiciary
may not be reduced by the legislature below the amount appropriated
Yld. at 382. Article VIII, Section 2, 1935 Constitution.
s52
SCRA 721 (1961).
56lt should be noted,
however, that Amendment 6 of 1976 recognized legislative power in
the President. Hence, the creation of courts and the apportionment ofjurisdiction were also within
the competence of then President Marcos. Prior to Amendment 6, the President could also rely
<rn thc lcgislativc power granted to him by Article XVII, section 3(2) ll9'731, for the creation of
military cornnrissions with.lurisdiction over civilians. Aquino, Jr. v. Military Commission No. 2,
63 S('RA -54(r (May 9, 1975).
'/l Rl('()Rl) 442 441,512 5ll. Sec rliscussiorr ol sccurity ol'tcnuro undcr Scction ll,
inlitt.
'*Scc Vrttl4ls v Rilkrltrl,lt0 I'hil ,l()'7 ( l(l4l,l).
;&
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
for the previous year and, after approval, shall be automatically and
regularly released."
The original Committee proposal had read: 'oAn amount equiva-
lent to not less than two percent of the national budget shall be auto-
matically appropriated and regularly released for the judiciary."s'q But
Delegate Monsod argued that pegging the budget of the judiciary at
an arbitrary amount could result in wastage.6o Thereafter, Monsod pro-
posed what is now Section 3. He said that the judiciary "should not be
exempt from the budgetary process of submitting and justifying its bud-
get, except that upon approval, it should be automatically and regularly
released."
Src.4. (1) Tsn Supnnnan Counr sHALL BE coMposED oF A
Cnrpr Jusncr AND FouRTrnu Assocrrrp Jusrrcrs. Ir nary sm r,lr
aANC OR rN ITS DISCRETION, IN DMSIONS OF THREE, FM, OR SEYEN
Mr*nens. ANy vl,c,lNcy sHALL BE FILLED WITHIN NINETy DAys
FROM THE OCCURRENCE THEREOF.
(2)
Ar,r, c,q,srs rNvoLvrNG THE coNsTrrurroNAlrry oF
A TREATY, INTERNATIONAL OR EXECTTM AGREEMENT, OR LAW,
wITICH sHALL BE HEARD By rnn Supnnun Counr EN raNc, ANI)
ALL orHER cASEs wHIcH UNDER TrrE Rur,ns or Coutr lnr
REQUIR"ED TO BE HEARD EN BAI]C,INCLTJDING THOSE INYOLYING THE
CoNSTITUTTONALTTY, APPLICATION, OR OPERATION OF PRESIDENTIAL
DECREES, PROCLAMATIONS, ORDERS, INSTRUCTIONS, ORDINANCES, AND
oTHER REGULATIONS, SHALL BE DECIDED WITH THE CONCURRENCE
OF A MAJORITY OF THE MEMBERS WHO ACTUALLY TOOK PART IN THE
DELIBERATIONS ON THE ISST]ES IN THE CASE AND VOTED THER.EON.
(3) Cxrs on MATTERS HEARD By A DrvrsroN SHALL Br,l
DECIDED OR RESOLVED WITH THE CONCURRENCE OF A MAJORITY OF
rnr Mpunpns wHo AcruALLy rooK pART IN TrrE DELTBERATToNS
ON THE ISSUES IN THE CASE AND VOTED THEREON, AND IN NO CASl.l,
wrrHour rHE coNCURRENCE oF AT LEAST THREE oF sucn Mnunnns.
Wnnx rnn REeUIRED NIJMBER Is Nor oBTAINED, THE CASE SHALL Brt
DEcIDED EN BANCi Pnovmnn, THAT No DoCTRINE oR pRrNCrpLE or'
LAW LAID DOWN BY TIIE CO{JRT IN A DECISION RENDERED EN AANC OII
IN DIVISION MAY BE MODIFIED OR REVERSED EXCEPT RY THE (:OIIR'T
SIMING EN BANC.
5e
Id. at 434.
iltld. trt 454-455
Sec.4 ART. VIII - JUDICIAL DEPARTMENT
l. Composition and sessions.
The Supreme Court shall be composed of a Chief Justice and
fourteen Associate Justices.6r Moreover, a new provision adds: "Any
vacancy shall be filled within ninety days from the occurrence thereof."
Whatever may have been the proper interpretation of the coun-
terpart provision in the 1935 Constitution relative to the authority of
the legislature to increase or diminish the composition of the Supreme
Court,62 there can be no doubt that under the present provision (as also
under the 1973 provision) the composition of the Supreme Court may
not be changed by ordinary legislation.
As to the manner of conducting business, the Supreme Court may
siten banc or, in its discretion, in divisions of three, five, or seven mem-
bers. That the divisions can be ofdifferent sizes is supposed to reflect
the relative importance of cases.6. There can thus be as many as five
divisions in the Supreme Court thereby allowing for a more speedy
disposition of cases before the Supreme Court. Except for those cases
which by command of the Constitution must be heard by the Supreme
Court en banc , cases may be heard either en banc or by a division as the
Rules of Court may provide.
What cases must be heard en banc? By command of the Consti-
tution the following cases have to be heard and decided en banc: (I)
all cases involving the constitutionality of a treaty, international64 or
executive agreement, or law; (2) cases involving the constitutionality,
application, or operation of presidential decrees, proclamations, orders,
instructions, ordinances, and other regulations;65 (3) cases heard by a
division when the required majority in the division is not obtained;66
6rThe Committee Report proposed
a Supreme Court consisting of a Chief Justice and ten
associatejustices. Efforts to raise the total complement to fifteen, as in the 1973 Constitution, were
successfully resisred. Id. at 480-48 I . Eventually, however, what was originally approved had to be
reopened in order to raise the total membership to fifteen and thereby enable the Court to cope with
the anticipated number ofcases. V RECORD 632-634.
62,Sae
I TeNnoe & CrnnEon, Porncer Lew op rnt PntupptNrs3T4-375 (1961); National City
Bank v. Cu Unjieng, L-41927-29,December 18, 1937, unpublished; Vargas v. Rilloroza, 80 phil.
297,32O (1948).
8V RECORD 636.
eThis refers to agreements, such as the Hague
Convention, which are neither treaties in the
formal sense nor merely executive agreements. I RECORD 440.
6rThe purposc in separating
these presidential issuances fiom laws, that is, acts of C6n-
grcss,ist()removcanydoubtastothclacnhstthcsc.cspcciallyundcrthe 197.1 ()on51i1x1i1yn,1,,,u"
thc lirrcc ol luw und rrc trcutcd lls ltrw. /d. 0t 4tt2-4t1.1,519.
*'Articlc VIll, Scctiolr 4(.1). ll lhc cuse is trrt clccitlccl by
a tlivisiou. it gocs lo l[c (\rrr11 11
Drrrr rrntl nol l() lt lurgct (ltvisrotr. V Rli('()Rl) 6.15.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
(4) cases where the supreme court modifies or reverses a doctrine or
principle of law previously laid down either en banc or in division;.' (5)
administrative cases where the vote is for the dismissal of a judge of
a lower court or otherwise to discipline such a one;68 and, (6) election
contests for President or Vice-President.6,
All other cases may be decided either en banc or in division as the
Rules of Court may provide.
When the Supreme Court sits en banc, cases are decided by the
concurrence "of a majority of the Members who actually took part in
the deliberations on the issues in the case and voted thereon." This re-
flects a two-fold desire of the commission: (1) not to allow the absence
of some members of the supreme court or their non-participation in
deliberations to delay decisions,'o and(2) to require that only those thor-
oughly familiar with the case participate in the decision. commissioner
Roberto concepcion emphasized that to have participated means not
just to have studied the briefs and listened to oral arguments but also
to have taken part in the deliberations among the Justices.'' This rulc
applies to all types of cases decided en banc, even cases involving con-
stitutionality. This is thus a radical departure from the rule under thr:
1935 and 1973 Constitutions.?2 The effect of the new rule is that a law
or a presidential decree with the force of law can be declared unconsti-
tutional by as few as five votes because a quorum of the court en bunc
is eight, a majority of which is only five.'3
67ld. A decision in violation of this provision would be in excess ofjurisdiction and thcrr
fore invalid and may be reopened any time. V RECORD 522.
trArticle VIII, Section 11.
oArticle VII, Section 4.
70I
RECORD 477.
7tld. at 478.
T2Under the old
Constitution, the vote of at least eight members was needed to dccr(lc n
question en banc, except when a treaty, executive agreement, or law is declared unconstilrrt iorurl
, 'resolved'. Otherwise put, The word 'decided' must refer to .cas-
inwhichcasestheconcurrenceof atleasttenJusticeswasrcquircd.ArticleX,section z(z\,lqll
Constitution. Moreover, it was then suggested that the concurrence of less than eight in u 4ecirrlur
en banc, while it might result in a "decision" of the Court, did not establish thc basis ol thc rler i
sion as "doctrine." National Federation of Sugar workers v. ovejera, I 14 scRA 354, 37 I (Mry
3l , 1982), reversing Mariopper v. Ople, lO5 SCRA 75 (June I I , 198 I ), an earlicr inrcrprctnt iorr cI
the meaning of the I3th month pay for employees mandated by law.
TrThe initial confusion
found in I RECORD 519-521 and arising fronr the or.iginnl (irrrr
rnittce Report, which treatcd "luws" und "prcsidential decrees" in two tlitlercrrt suhstt.ti61r. lr
cltrified in V RECORD 634 nnd ntlcr thc lwo suhsccti()ns werejoinod ns rxrc. i.r,. into snr.1o1
4(2).'t'hrt is, "laws" und "presitlerrlinl rlet.rccs" &re trentcd in llrc snme nrrrnncr.
Sec.4 ART. VIII * JUDICIALDEPARTMENT
When the Court sits in division, cases can be decided by as few as
a minimum of three votes. The rule says: "Cases or matters heard by a
division shall be decided or resolved with the concurrence of a majority
of the Members who actually took part in the deliberations on the issues
in the case and voted thereon, and in no case, without the concurrence
of at least three of such Members. When the required number is not ob-
tained, the case shall be decided en banc: Provided,That no doctrine or
principle of law laid down by the court in a decision rendered en banc
or in division may be modified or reversed except by the court sitting
en banc."
Decisions or resolutions of a division of the court are not inferior
to an en banc decision. When concurred in by a majority of its members
who actually took part in the deliberations on the issues in a case, the
decision of a division is a decision or resolution of the Supreme Court
itself. "The Supreme Court sitting en banc is not an appellate court
vis-ti-vis its Divisions, and it exercises no appellate jurisdiction over
the latter. Each division of the Court is considered not a body inferior
to the Court en banc, and sits veritably as the Court en banc itself. The
only constraint is that any doctrine or principle of law laid down by
the Court, either rendered en banc or in division, may be overturned or
reversed only by the Court sitting en banc."ro
A decision of a division is not appealable to the Court en banc.
When, however, the required number of votes is not obtained in a Divi-
sion, "the case shall be decided en banc" The meaning of this provision
was explained in Fortich v. Corona.75 The Court said that the rule ap-
plies to the initial decision of a case and not to a reconsideration of the
initial decision:
A careful reading of the above constitutional provision
reveals the intention of the framers to draw a distinction between
cases, on the one hand, and matters, on the other hand, such that
cases rue 'decided' while matters, which include motions, are
es'; while the word 'resolved' must refer to 'matters', applying
the rule of reddendo singula singulis . This is true not only in the
interpretation of the above-quoted Article VIII, Section 4(3), but
also ol'the other provisions of the Constitution where these words
appear. ISee Article VIII, Section l-5; Article XVIII. Section l2 to
/41;itt'skruc('enrrrricsv.(irrrrt oI Appcrrls.(i.lt.No.
I272.15,.lunc2tl,2(XX)
/'(;.R. No. lll45/,Arrflrrsl 19, l(X)',,
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
14.1 With the aforesaid rule of construction in mind. it is clear that
only cases are referred to the Court en banc for decision whenever
the required number of votes is not obtained. Conversely, the rule
does not apply where, as in this case, the required three votes is not
obtained in the resolution of a motion for reconsideration. Hence,
the second sentence of the afore-quoted provision speaks only of
'case' and not 'matter'. The reason is simple. The above-quoted
Article VIII, Section 4(3) pertains to the disposition of cases by
a division. If there is a tie in the voting, there is no decision. The
only way to dispose of the case then is to refer it to the Cotxt en
banc. On the other hand, if a case has already been decided by the
division and the losing party files a motion for reconsideration, the
failure of the division to resolve the motion because of a tie in the
voting does not leave the case undecided. There is still the deci-
sion which must stand in view of the failure of the members of the
division to muster the necessary vote for its reconsideration. euite
plainly, if the voting results in a tie, the motion for reconsideration
is lost. The assailed decision is not reconsidered and must there-
fore be deemed affirmed.
SBc. 5. Tnn Supnnuu Counr sHALL HAvE Tr{E FoLLowrNG
POWERS:
(1) Exrncrsr oRrcrNAL JURrsDrcrroN ovER cASEs
AFFECTING AMBASSADORS, OTIIER PUBLIC MINISTERS AND CONSULS,
AND OVER. PETITIONS FOn CERTTOn+ru, PROHIBITION, MANDAMIIS, QI\O
WARRANTO, AND TABEAS CORPU S.
(2) RnvInw, REvIsE, REvERSE, MoDIFy, oR AFFIRM oN
AppEAL oR cERTIoRART As rIrE LAw oR. rnp Rur,Bs oF CouRT MAy
PROVIDE, FINAL JIIDGMENTS AND ORDERS OF LOWER COURTS IN:
(l) Ar,r, c.lsns rN wurcH rHE coNsrrrurroNAlrry
OR VALIDITY OF ANY TREATY, INTERNATIONAL OR EXECUTIVE
AGREEMENT, LAW, PRESIDENTIAL DECREE, PROCLAMATION,
ORDER, INSTRUCTION, ORDINANCE, OR REGULATION IS IN
QTJESTION.
(B) Ar,r, clsrs rNvoLvrNG THE LEGALTTv oF ANy rAx,
IMPOST, ASSESSMENT, OR TOLL, OR ANy PENALTY TMPOSED IN
RELATION THER,ETO.
(C) Ar,l c^lsps tN wurcH rHE JURrsDrcrroN oF ANy
LOWER COURT IS IN ISSUE.
(D) Ar,r, cnrurx.ll cAsES rN wHrcH 'nr,) pt:Nlrjry
IMPOSED IS RECLUSION PERPETUA OR HI(;HI.:R.
Sec.5
Sec.5 ART. VIII - JUDICIAL DEPARTMENT
(E) Ar,r, c.lsns rN wHrcH oNLy AN ERRoR oR euESTroN
OF LAW IS INVOLVED.
(3) AssrcN TEMIoRARTLv JUDGES oF LowER couRTs ro
orHER srATIoNs As pL'BLIc INTEREsT MAy nreurnr. SucH TEMpoRARy
ASSIGNMENT SHALL NOT EXCEED SIX MONTHS WITHOUT THE CONSENT
OF THE JUDGE CONCERI\IED.
(4) Onnnn cHANGE oF vENUE oR pLAcE oF TRrAL To AvorD
^c.
A MISCARRIAGE OF JUSTICE.
(5)
Pnolrur,clrn RULES coNcERNTNG THE pRorECTroN AND
ENFORCEMENT OF CONSTITUTIONAL RIGITTS, PLEADING, PRACTICE,
AND PROCEDURE IN ALL COURTS, THE ADMISSION TO THE PRACTICE
oF LAw, rrm INrrcn-lrnn Bln, AND LEGAL AssrsrANCE To rHE
uNDERpRIvILEcro. Sucn RULES SHALL pRovIDE A sIMpLIFIED AND
TNEXPENSM PROCEDURE FOR THE SpEEDy DTSPOSITTON OF CASES,
SHALL BE T]NIFORM FOR ALL COURTS OF THE SAME GRADE, AND SHALL
Nor DTMINISH, INCREASE, oR MoDIFy SUBSTANTTvE RIGHTs. Rur,ns or
PROCEDURE OF SPECIAL COURTS AND QUASI.JTJDICIAL BODIES SHALL
REMAIN EFFECTIVE uNLEss DIsAppRovED By rHE Supnrlru Counr.
(6) Apporxr ALL oFFrcrALs AND EMpLoyEES oF TrrE,
JUDTcIARy rN ACcoRDANcE wITH rnr CIvrr, Srnvrcn L,lw.
1. Powers of the Supreme Court.
Sections 5 and 6 provide for the powers of the Supreme Court.
These powers may be classified into (l) the irreducible jurisdiction of
the Supreme Court and (2) the auxiliary administrative powers.
Section 2 gives to Congress the power to define, prescribe and
apportion the jurisdiction of the various courts, but it denies to Con-
gress the power to deprive the Supreme court ofjurisdiction over cases
enumerated in Section 5. Actually, only paragraphs (1) and (2) speak of
the jurisdiction over cases. Jurisdiction over these cases represent the
ineducible jurisdiction of the Supreme court. They includ e originar ju-
risdiction over cases affecting diplomatic representatives and over peti-
tions for certiorari, prohibition, mandamus, quo warranto, and habeas
corpus, and appellnle jurisdiction over enumerated types of cases.76
/"ll will bc noted that the minimurn appellate.jurisdiction
of the Supreme Court on factual
lllilllcl's is linritt:tl to capital or lilL'cascs. As.lusticc Laurel had occasion to note with ref'erence to
thc crxrnlcrparl provisitlr in thc 19.15 (ixlslitution, "lhc pnrvision atk4rlctl was in thc naturrr ol a
cotltllrotnisc bclwcclt lltc vicw ol lhc lirsl ('lririnrirrr ol thc Jutlici:rry (i)nllnittec, lirrntcl..lusticc
Norlrt'rlo ltotttttttklcr,lltctt rk'lt';i:rlc lrorrr l.cylc, whr atlvtrrtlcrl lltitl lltr. liulnl.nt(. ( irrrrl slrgrrltl hc
 968 THE 1987 CONSTITUTION
OFTHE REPUBLIC OF THE PHILIPPINES
Section 5, paragraphs (3) to (6) and Secrion 6 provide for auxiliary
administrative powers. They include the powers to issue temporary as-
signments of judges, to order change of venue, to promulgate rules of
procedure and enforcement of constitutional rights, integration of the
bar, legal assistance and admission to the practice of law, to appoint its
employees, and to have administrative supervision over all courts.
2.
Judicial review.
The power of judicial review is the Supreme Court,s power to
declare a treaty, international or executive agreement, law, presiden-
tial decree, proclamation, order, instruction, ordinance, or regulation
unconstitutional. Notably, it also includes the power to declare uncon-
stitutional the "application, or operation ofpresidential decrees, procla-
mations, orders, instructions, ordinances, and other regulations,, even if
the legal basis for the action is itself constitutional."
Judicial review is a power alien to English tradition. It is an inven-
tion of theAmerican system whence the Philippine system came.And it
was in relation to this power that one writer was inspired to say:7s
One among the many paradoxes presented by the Supreme
Court of the United States is that while it is assuredly the most in-
teresting institution American law and politics have developed, it
stubbornly resists discussion as an institution. Indeed one suspects
that discussion of it in such terms, despite helpful recent commen-
tary, admits by and large of half-truths correcting each other, or
better, of exaggeration of important truths, as Robert Maclver once
observed of the theories of Karl Marx.
The reason underlying this difficulty is all too well known:
the Supreme Court is not simply a court; it is an important part
of the American political process. Because the key phrases of the
a real cour de cassation,and the opposite view, likewise firmly held, that it should continue to be
an ordinary appellate court of error as was then the practice." Fernando, J., concuning in Chemp-
lcx Philippines, Inc. v. Judge Pamatian, L-37427 , June 25,1974.
People v. Petalcorin,180 scRA 685, 690 (1989), makes an observation which seems to
anonsequitur.Itsays:"Asthedeathpenaltymaynolongerbeimposedunderthe lggTconstitu-
tion there is no more automatic review hence this case is now considered to be brought hy orrlinary
appeal interposed by the accused."
TTSection 4(2).
TEHenny
Kelven, Jn., Trln Supnll.rl Corrrr. l97O'lIlRM l;orcwonl: "l.lvr.n Wlrt
tion is at War," 85 HARV. L.R. 3,4 ( t97 t).
Sec. 5
Sec. 5 ART. VIII - JUDICIAL DEPARTMENT
Constitution have such grand ambiguities, the Court has wide dis-
cretion in passing on matters with a constitutional dimension, and
because such matters are likely to concern and affect the larger
issues of American life, the court, in passing on them, exercises
great political power.
The Court thus has a hybrid role; and the arresting thing is
that were its role to be purified in either direction - by having it
become more simply a court and nothing more, or by having it
become, bluntly, a political agency and nothing more - it would
lose its power and its purpose. The special burden of the Court,
then, is to exercise great political powers while still acting like
a court, or if we prefer, to exercise judicial powers over a wide
domain while remaining, realistic, and alert as to the political sig-
nificance of what it is doing.
Notwithstanding the fact that the power of judicial review leaves
a deep political imprint on the life of the state, it is important to keep in
mind that the power is not political but judicial. The American Consti-
tution does not contain an express grant of the power ofjudicial review.
The existence of this power, however, is firmly established and the ba-
sic theory which supports the existence of the power, first articulated
by Marshall in Marbury v. Madison,'n is rooted in the grant of judicial
power to the Court. Judicial power, in essence, is the power of a court
to settle actual controversies between real conflicting parties through
the application of a law. It therefore necessarily involves a search for an
applicable law. And if the applicable law is either a statute or a constitu-
tional precept, and the two are irreconcilably in conflict, the court must
choose between the two. But since the Constitution is superior to any
act of the legislature, it being an enactment of the sovereign people, the
Constitution must govern the case. As Marshall put it: "So if a law be in
opposition to the Constitution; if both the law and the Constitution ap-
ply to a particular case, so that the court must either decide the case con-
formably to the law, disregarding the Constitution; or conformably to
the Constitution, disregarding the law; the court must determine which
of these conflicting rules governs the case. This is of the very essence
be
of judicial duty."'o It is not therefore an abstract "revisory power over
rr n Nrr "rl ('rnnt'h 137 (l8Ol)
{'hl. trt l7'I '1t4.
,&
 97O THE t9U7 CONSTITLTTION Sec.5
OF THE REPUBLIC OF THE PHILIPPINES
the action of congress."sr In the words of Justice Laurel: ,.And when
the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments; it does not in reality
nullify or invalidate an act of the legislature, but only asserts the solemn
and sacred obligation assigned to it by the constitution to determine
conflicting claims of authority under the Constitution and to establish
for the parties in an actual controversy the rights which that instrument
secures and guarantees to them."82
The superiority of the constitution to any official act of govern-
ment is rooted in the very essence of modern constitutionalism. Modern
constitutionalism separates government from sovereignty. Sovereignty
belongs to the people and the constitution is the written instrument
through which the people entrust to government a measure of its own
sovereignty and no more. what is thus entrusted to government is lim-
ited power. Hence, every act of government must conform to the terms
of the empowerment.
3. Requisites for the exercise of judiciat review: 6.actual
casett and ttripeness.tt
The power of judicial review is just an aspect of judicial power.
This may be seen from the constitutional text conferring on the su-
preme court the power of judicial review. It speaks of the power to
"review, revise, reverse, modify, or affirm on appeal or certiorari ...
final judgments and orders of lower courts in (a) All involving
- executivecases
the constitutionality of a treaty, international or agreement, or
law, ... including those involving the constitutionality, application, or
operation of presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations ..."
The first requisite, therefore, for the court to be able to exercise
the power of judicial review is that there must be before it an actual
case calling for the exercise of judicial power. This is a manifestation
of the commitment to the adversarial system. Hence, the court has no
authority to pass upon issues of constitutionality through advisory opin-
ions*3 and it has no authority to resolve hypothetical or feigned constitu-
srMuskrat v. United
States, 219 U.S. 346, 361 (l9l l).
82Angara v. Electoral
Comrnission, 63 phil. 139, l5lJ ( 1936)
srSapra, Scction
I . rrntlcr "Advisory ()pirriorrs."
Sec.5 ART. VIII - JUDICIAL DEPARTMENT 97t
tional problems84 or friendly suits collusively arranged between parties
without real adverse interests.ss Nor will the Court normally entertain
a petition touching on an issue that has already become moot because
then there would no longer be a "flesh and blood" case for the Court to
resolve.
Closely related to the requirement of an "actual case" is the cog-
nate requirement that the question must be "ripe" for adjudication. A
constitutional question is ripe for adjudication when the governmental
act being challenged has had a direct adverse effect on the individual
challenging it. Thus, in PACU v. Secretary of Educations6 where peti-
tioner PACU challenged the validity of Section 3 of Act No. 2706 which
provided that before a private school may be opened to the public it must
first obtain a permit from the Secretary of Education, the Supreme Court
declined to pass judgment on the question because all of the petitioning
schools had permits to operate and were actually operating and none of
them claimed that the Secretary had threatened to revoke their permit.
An even clearer case of lack of "ripeness" was the question raised in
Tan v. Macapagal.r'While the l97I Constitutional Convention was in
the midst of its deliberations, petitioners sought to have the Supreme
Court declare that the Convention was "without power, under Section
1, Article XV of the Constitution and Republic Act 6132, to consider,
discuss and adopt proposals which seek to revise the present Constitu-
tion through the adoption of a form of government other than the form
now outlined in the present Constitution [the Convention being] merely
empowered to propose improvements to the present Constitution with-
out altering the general plan laid down therein." At the time of the suit,
the Convention had not yet finalized any resolution that would radically
alter the 1935 Constitution. The Court declined to take action. "The
doctrine of separation of powers calls for the other department being
left alone to discharge their duties as they see fit. ... It is a prerequisite
that something had by then been accomplished or performed by either
branch before a court may come into the picture."" Similarly, the chal-
lenge to the constitutionality of the creation of Makati into a city on the
raMuskrrt v. United Stntcs,219 U.S. 346,362 (l9ll).
rtAshwnntlcr
v. 'I'enncssec Vallcy Authority, 297 tJ.S. 2tttl, 346 ( I 936).
1697
l'hil. lto6, 8 to ( t955 ).
r'4.l s('RA 678 11r,1721.
ir/r/ nl 6ll I
 972 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Sec. 5
ground that it would allow the Mayor and the Representative to
run for
more than three consecutive terms was deemed premature considering
that elections would not be until three years later.se
This, however, is not a hard and fast rule. It is a procedural rule
and, like all procedural rules, it tolerates exception. Thus, for instance,
the Court will come in when lack of clarity about a law may be creating
confusion, as in the case of solicitor General v. Metropilitan Manila
Authorityeo involving the authority of traffic officers to confiscate li-
cense plates and driver's licenses oftraffic violators.
4. Requisites for the exercise of judicial review: ,,stand-
ingtt.;
Another important requisite is locus standi which is an aspect of
the "case or controversy" requirement. Even after an act of a govern-
mental agency and after that something has begun to take its toll on the
rights of individuals, the court will not yet exercise judicial review un-
less the constitutional question is brought before it by a party having
the
requisite "standing" to challenge it.Aperson has standing io challenge
the governmental act only if he has "a personal and subsiantial interest
in the case such that he has sustained, or will sustain, direct injury as
a result of its enforcement."nr The elements of standing, therefore,
are:
first, the petitioner must have suffered injury in fact which can be legal,
economic, or environmental; second, the injury must be traceable to the
governmental act challenged; third, the injury must be redressable by
the remedy being sought by petitioner.ez
These three elements represent the rigorous view on standing. A
simple example of this is Joya v. pCGG), where art lovers seeking to
enjoin the auction sale of European artworks and silverware, part of
the objects recovered by the government after the ouster of president
Marcos, on the ground that these formed part of the Filipino cultural
seMariano,
Jr. v. commission on Elecrions, G.R. Nos. I1g577 and 11g627, Marc h 7
, rggs.
sG.R. No. 102782, December
ll, 1991.
erPeople v. phil.
vera,65 56, 89 (r93?); Macasiano v. Nationar Housing Atthority,224
scRA 236 (1993).
e2Telecommunications
and Broadcast Attorneys of the philippines, Inc. v. commission on
Elections, G.R. No. 132922, Apil 2r, 1998,289 scRA lll,l+3- (ci'ng Lawyers t-"ugu" ro, u
Better Philippines v. Aquino, G.R. Nos. 73748,73972 and739x),May zi,
tss6; rn re Birmudez.,
145 SCRA 160 [1986]; Tatad v. Garcia, Jr.,243 SCRA 436,473
,122.5 tl99.5l).
SCRA 56tt (1993).
ART, VIII JUDICIAL DEPARTMENT 973
-
heritage. Plaintiffs were deemed without standing to sue because they
neither owned the properties involved nor had they been purchased
with public funds. Earlier, in the above PACU case, the statute in ques-
tion could have been properly challenged by a school whose permit to
operate had been revoked or by a party who had been denied a permit to
operate. Very recently, in Lozano, et al. v. Macapagal-Arroyo,nu where
Lozano, a private lawyer, asked for a declaration of the legality or il-
legality of Macapagal-Arroyo's presidency, among the reasons for dis-
missing the petition was the finding that the petitioner lacked standing.
The challenger's interest in the suit must be personal and not one
based on a desire to vindicate the constitutional right of some third and
unrelated party. The requirement of a personal stake in the outcome
of a controversy is an aspect of the adversarial system which assures
adverseness and sharpens the presentation of issues. However, the rule
on standing does not prevent an association from asserting the right of
its members where the rights of the association and of the members
are so intertwined that to vindicate one is really to vindicate also the
other. Thus, in NACCP v. Alabamaes the association was recognized as
possessing standing to assert the rights of its rank and file members to
challenge the constitutionality of a statute requiring the revelation of
the names of the members. Revelation of the names of the members
would have defeated the very purpose of their joining the association
whose aim was to protect them against racial discrimination. "If peti-
tioner's rank-and-file members are constitutionally entitled to withhold
their connection with the Association despite the production order, it is
manifest that this right is properly assertable by the Association."n6
In the Philippine Supreme Court, Justice Mendoza has been an
advocate of the rigorous requirement of standing. In recent years, how-
ever, the Court has been following a liberal approach on standing in
high profile issues.
An early case Dumlao v. COMELEC.'? This involved a suit chal-
lenging the constitutionality of provisions of Batas Pambansa Bilang 52
disqualifying from political candidacy certain types of public officials
and those against whom charges for subversion had been filed. Against
',,'( i.R. No. 14657(), litrhrrurr.y 6,2(X)1.
,' t57 t I .S. 4.1e ( t95n).
u"/r/. rtl ,15r).
t
ai
S('llA lt),t..1(!4 ( l/ulluy ,t,). lt)tl(l)
& '/()5
 THE 1987 CONSTITT.]-TION
Sec.5
OF THE REPUBLIC OF THE PHILIPPINES
none of the petitioners, however, had any challenge to their qualifica-
tion been raised, but they claimed to be suing as taxpayers. while hold-
ing that the suit presented merely a hypothetical case and that it was
not properly a taxpayer's suit because the petitioners were not against
the holding of elections with consequent expenditure of public funds,
the Court nevertheless ruled on the substantive issues raised because of
"paramount public interest" due to the proximity of the election date
and the need to clear the air of confusing doubts.
Another forerunner of things to come was De Guia v. COME_
LEC.ee The Court said:
The Court observes that petitioner does not allege that he is
running for reelection, much less, that he is prejudiced by the elec-
tion, by district, in Parafraque. As such, he does not appear to have
a locus standi, a standing in law, a personal or substantial interest.
He does not also allege any legal right that has been violated by
respondent. Iffor this alone, petitioner does not appear to have any
cause of action. However, considering the importance of the issue
involved, concerning as it does the political exercise of qualified
voters affected by the apportionment, and petitioner alleging abuse
of discretion and violation of the Constitution by respondent, We
resolve to brush aside the question of procedural infirmity . .
The following year came Oposa v. Factoran,,Ir.,nn which affirmed
the standing of minors, represented by their parents, to challenge the
validity of logging concessions on the basis of the concept of inter-
generational responsibility for and right to a balanced and healthful
ecology guaranteed by Article II, Section 16. oposa was followed by
Kilosbayanv. Guingona, ,/r. which affirmed, 'l to 6,the right of petition-
ers to challenge the validity of the lotto contract of the philippine char-
ity sweepstakes on the argument that the case was of transcendental
importance. The court recited a long list of recent cases following what
it called a liberal policy of allowing suits.,oo
In line with the liberal policy of this Court on locus standi,
ordinary taxpayers, members ofCongress, and even association of
planters, and non-profit civic organizations were allowed to initi_
ate and prosecute actions before this Court to question the consti_
eEG.R.
No. 1O41l2,May 6,t992.
s224 SCRA 792 (1993).
ru'232
tiCRA I to, t37- nt{ ( t99.1)
Sec.5 ART. VIII - JUDICIAL DEPARTMENT
tutionality or validity of laws, acts, decisions, rulings, or orders
of various government agencies or instrumentalities. Among such
cases were those assailing the constitutionality of: (a) R.A. No'
3836 insofar as it allows retirement gratuity and commutation of
vacation and sick leave to Senators and Representatives and to
elective officials of both Houses of Congress; (b) Executive Or-
der No. 284, issued by President Corazon C. Aquino on 25 July
1987, which allowed members of the cabinet, their undersecretar-
ies, and assistant secretaries to hold other government offices or
positions; (c) the automatic appropriation for debt service in the
General Appropriations Act; (d) R.A. No. 7056 on the holding of
desynchronized elections; (e) R.A. No. 1869 (the charter of the
Philippine Amusement and Gaming Corporation) on the ground
that it is contrary to morals, public policy, and order; and (0 R.A.
No.6975, establishing the Philippine National Police.
Other cases where we have followed a liberal policy regard-
ing locus standi include those attacking the validity or legality of
(a) an order allowing the importation of rice in the light of the
prohibition imposed by R.A. No. 3452; (b) P.D. Nos. 991 and
1033 insofar as they proposed amendments to the Constitution and
P.D. No. 1031 insofar as it directed the COMELEC to supervise,
control, hold, and conduct the referendum-plebiscite on 16 Octo-
ber 1976; (c) the bidding for the sale of the 3,179 square meters
of land at Roppongi, Minato-ku, Tokyo, Japan; (d) the approval
without hearing by the Board of Investments of the amended ap-
plication of the Bataan Petrochemical Corporation to ffansfer the
site of its plant from Bataan to Batangas and the validity of such
transfer and the shift of feedstock from naphtha only to naphtha
and/or liquefied petroleum gas; (e) the decisions, orders, rulings,
and resolutions of the Executive Secretary, Secretary of Finance,
Commissioner of Internal Revenue, Commissioner of Customs,
and the Fiscal Incentives Review Board exempting the National
Power Corporation from indirect tax and duties; (f) the orders of
the Energy Regulatory Board of 5 and 6 December 1990 on the
ground that the hearings conducted on the second provisional in-
crease in oil prices did not allow the petitioner substantial cross-
examination; (g) Executive Order No. 478 which levied a special
duty of P0.95 per liter or Pl5l.05 per barrel of imported crude
oil and P1.00 per liter of imported oil products; (h) resolutions of
the Commission on Elections concerning the apportionment, by
district, of the number of elective members of Sanggunians; and
(i) mcmorandum ordcrs issued by a Mayor aff'ecting the Chief of
Policc ol'Pusay Cily.
 976 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES Sec. 5 ART. VIII - JIJDICIAL DEPARTMENT

In the 1975 case of Aquino vs. Commission on Elections, this

court, despite its unequivocal ruling that the petitioners therein the real issue in this case is not whether the petitionershave locus
had no personality to file the petition, resolved nevertheless
to pass standibut whether they are the real parties-in-interest. This propo-
upon the issues raised because of the far-reaching implications
of sition is a bold move to set up a bar to taxpayer's suits or cases
the petition. ... invested with public interest by requiring strict compliance with
the rule on real-party-in-interest in ordinary civil action, thereby
The decision in Kilosbaya,? was a narrowly divided 7-6 vote. effectively subordinating to that rule the doctrine of locus standi.
In
the second Kilosbayan case, coming barely fouimonths later
and still I am not prepared to be a party to that proposition. First. Frien-
about the authority of the philippines charity sweepstakes to denthal, et al., whose book is cited in the majority opinion in its
operare
lotto, the court reversed 8-5.r0r As the ponente, Justice Mendoza, discussion of the rule on real party in interest and the doctrine of
ob-
served, considering the narrowness of the vote in the locus standi, admits that there is a difference between the two,
earlier case and
the replacement of two Justices who had retired by two new and that the former is not strictly applicable in public law cases.
ones, one Second. The attempt to use the real-party-in-interest rule is to res-
of them Mendoza, it should be no surprise if the earlier decision
shourd urrect the abandoned restrictive application of locus standi,This
bc reversed.r''? Eight justices chose to follow the view that locus
stan- Court, speaking through the constitutionalist nonpareil, Justice and
di,broader than the rule on "rear party in interest," can be used
only later ChiefJustice Enrique Fernando, has already declaredinTan
when constitutional issues are involved in the litigation.r,3In
the second vs. Macapagal that as far as a taxpayer's suit is concerned, this
Kilosbayan case, they,saw the validity of a contract as the
only issue Court is not devoid of discretion as to whether or not it should be
since the constitutionality of the law under which the philippin"
cr,*- entertained. Third. Such attempt directly or indirectly restricts the
ity Sweepstakes depended for authority to enter into the u"t *u, exercise of the judicial authority of this Court in an original action
"ontno locus
not being challenged. But having said that the petitioners had
standi, Mendoza nevertheless proceeded to present a fullsome
- and there had been many in the past - to determine whether or
essay not there has been grave abuse of discretion amounting to lack or
justifying the validity of the contract. excess of jurisdiction on the part of any branch or instrumentality
of the Government. Only a very limited few may qualify, under
The reversal of the liberalization trend was onry temporary. Ar- the real-party-in-interest rule, to bring actions to question acts or
ready rationale behind the liberal view was strongly put forward contracts tainted with such vice. Where, because of fear of repri-
in a
dissent in the second Kilosbayan case presented in terms sal, undue pressure, or even connivance with the parties benefited
of the distinc-
tion between "real party in interest,, uid ,,loru, standi,': by the contracts or transactions, the so-called real-party-in-interest
chooses not to sue, the patently unconstitutional and illegal con-
In public law the rule of real party-in-interest is subordinated tracts or transactions will be placed beyond the scrutiny of this
to the doctrine of rocus standi. The majority opinion declares
that Court, to the irreparable damage of the Government, and prejudice
to public interest and the general welfare.
rorKilosbayan v.
Morato, G.R- No. I lg9l0, July l.l ,lgg5.
ro2Mendoza
already anticipated this p onencia in his dissent three months In an earlier edition of this book, it was pointed out that in the light
-
Garcia, Jr., G.R. No. 11422, Apnl 6, lgg5.
earlier in Zrarl y.
r03Under of the two Kilosbayan cases, one could anticipate that the last word on
Rule 3, Section 2 of the Rules of court, a rear party in interest
is the party wh' locus standi had not yet been said. Indeed, more has been said since
stands to be benefited or injured by the judgment in
the suit, or thi party entitled to the avails of rhc
suit' "lnterest" within the meaning ofthe rule means material
interest, an interest in issue and trr the second Kilosbayan case. Thus, when President Estrada, in the wake
be affected by the decree, as distinguished from mere interest
incidental interest. The interest of the party must also be personal
in the question involved, or a nrcrc of rising number of kidnappings, deployed the Marines to assist in the
and not one based on a desirc t0
vindicate the constitutional right of some third and ,n.aLt"d party. maintenance of order, the Court said that the lntegrated Bar of the Phil-
Rear interest means il prcscnr
substantial interest, as distinguished from a mere expectancy
or a future, contingent, sub.nlirr'rc, ippincs had no standing to challenge the action. Nevertheless, the Court
or consequential interest. Thus, one who has a mere expectancy
cancelled and the property is reverted to the State, he wiuld pro,bahly
that, ifthe quJstioned rirrcs irrc wcnt on (tl cntcrtain the case saying:r"o
or possi'hty hc givcrr prclt r
cntiill treatment as qualified buyer or lesscc ol'the propcrty untlcr
the Friar l-antls Act is n't :r r.r.rrl
Itirrty-in-inlcrcsl.
r'trllll' v Zirrtturr,(i.R. No. l.ll.)lt4,Attxttsl I 5,.1(XX)
 THE I9SZCONSTITUTTON Sec.5
Sec. -5 ART. VIII - JUDICIAL DEPARTMENT 979
OF THE REPUBLIC OF THE PHILIPPINES

Having stated the foregoing, it must be emphasized

that this zens and taxpayers, to raise constitutional issues that affect them.
Court has the discretion to take cognizance of a suit
which does not This Court thus did so in a case that involves the conservation of
ltisfythe requirement of legal standing when paramount
interest our forests for ecological needs. Until an exact balance is struck,
is involved. In not a few cases, the Court has adopted
a liberal at_ the Court must accept an eclectic notion that can free itself from
titude on the locus standi of a petitioner where the petitioner the bondage of legal nicety and hold trenchant technicalities sub-
is able
to craft an issue oftranscendental significance ordinate to what may be considered to be of overriding concern.
to the people. Thus,
when the issues raised are of paramount importance
to the public,
the Court may brush aside technicalities of From these it may be concluded that, although he rule on stand-
irocedure. In ttris case,
a reading of the petition shows that the lBp has
advanced consti- ing is rooted in the nature of judicial power and is an aspect of judicial
tutional issues which deserve the attention of this self-restraint required by separation of powers, what now appears is that
court in view
of their seriousness, novelty and weight as precedents. whenever a majority of the members of the Court agree that a matter is
Moreover,
because peace and order are under constant threat
and lawless vio- of paramount importance, the Court will entertain a suit even if strict
lence occurs in increasing tempo, undoubtedly
aggravated by the locus standi.
Mindanao insurgency problem, the legal ou"..y raised in the
petition almost certainly will not go u*uy. "ont
It will stare us in the Locus standi finds place in constitutional litigation. What could be
face again. It, therefore, behooves the Court to relax
the rules on
behind the liberal attitude of the Philippine Court is that it more easily
standing and to resolve the issue now, ratler than
later. finds constitutional issues in a controversy than would the American
Court. This may be a function of the language of the current Constitu-
Again, when the varidity of the visiting Forces Agreement
was tion. The current Constitution is often criticized for being verbose. But
challenged, although the court found the petiti,oners
to be lack iig rocus this is partly because, unlike the American constitution, Philippine con-
standi, it went on to pronounce judgement:ros
stitutionalism has not been satisfied with limiting itself to the assertion
Notwithstanding,
of strict rights. For that reason it has incorporated into the text of the
in view of the paramount importance and
the constitutional significance ofthe issues raised constitution a litany of what can best be described as "social demands"
in ihe petitions,
this Court, in the exercise of its sound discretion, on the government. These are now found principally in the Declaration
brushes aside
the procedural barrier and takes cognizance of of Principles and State Policies and in the articles on Social Justice and
the petitions, as we
have done in the early Emergency powers Cases,
where we had Human Rights, on Education and on the Family. These are provisions
occasion to rule: alien to the text of the American constitution. One does not find this
litany of "social demands" in the American text.
similarly, the challenge to the Barikatan military training exer-
cises, although posed by petitioners without standing, The majority opinion in the second Kilosbayan said that for these
was enteiained
by the court on the ground of transcendentar importaice.,* provisions to be operative they must first be fleshed out by enabling
so too in the legislation. This is true if what one is looking for is affirmative action
case where the validity of rndigenous people's
Rights Act by persons
who had not direct interest in the outco-" of th" of government or positive protection from government. But the "social
Th" coun'said.r07 demands" themselves, even without waiting for government action, al-
"ur".
Nevertheless, where a most compelling reason exists, ready implicitly contain the command that government must not act in
such
as when the matter is of transcendental importance
and paramount a manner that will contradict the ideals set down in these "social de-
interest to the native Court must take the liberal mands." Thus, governmental action perceived as contrary to the ideals
approach that rec_
ognizes the legal standing ofnon-traditional plainiiffs, sct forth in these social demands are constitutional issues in the Philip-
such as citi-
pinc sensc cvcn if thcy might not be in the American sense.
ro5Bayan
r(bl-im v.
v. Zamora, G.R. No. 13g570, October 10,2000. 'lhis wirs what tltc Kiktshuyunlr suit was about. Kiktsbayan was
Arroyo, C.R. No. I 5 I 445, April t I, Z<n2..
"'7Cruz v. Secrctary of DENR, (i.R . Nir. I 35385. Deccrnbcr 6, 2fiX)
cllirnirrg lhitl tltrr cotrlritcl, itsitlc lirrttt bcing invalid, threatcncd values

A
980 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Sec.5 Sec.5 ART.VIII - JUDICIALDEPARTMENT 981

which the constitution advocates. In fact in the

first Kilosbayan case SEC. 15. The State shall protect and promote the
the Court had said that the issues raised by
Kitosbayan wereif ,.pn.o- right to health of the people and instill health consciousness
mount public interest" because lotto, as claimed among them.
by-Kilosbayan, wourd
"immeasurably affect the sociar, economic, and
moral welr-being of thc While the right to a balanced and healthful ecology is to be
people even in the remotest barangays of the
country und th" ,ount".- found under the Declaration of Principles and State Policies and
productive and retrogressive effects of the
envisioned on-line lottery not under the Bill of Rights, it does not follow that it is less im-
system is as staggering as the billions it is expected portant than any of the civil and political rights enumerated, in the
to raise.,,ro8
latter. Such a right belongs to a different category of rights alto-
In this respect oposa v. Factoran, Jr.had,a more accurate
reading gether for it concerns nothing less than self-preservation and self-
of "social demands" as constitutional issues when,
speaking of the eco_ perpetuation aptly and fittingly stressed by the petitioners the ad-
logical and hearth "demands" of Article II, Sections
is unolo, it said:,,, vancement of which may even be said to predate all governments
and constitutions. As a matter of fact, these basic rights need not
... Petitioners minors
assert that they represent their genera_ even be written in the Constitution for they are assumed to exist
tion as well as generations
yet unborn. We,find no aifncuttfin rut_ from the inception of humankind. If they are now explicitly men-
ing that they can, for themselves, for others of
their generaiion and tioned in the fundamental charter, it is because of the well-founded
for the succeeding generations, file a class suit. Their
personality fear of its framers that unless the rights to a balanced and healthful
to sue in behalfofthe succeeding generations
can only be basedon ecology and to health are mandated as state policies by the Consti-
the concept of intergenerational responsibility
insotar u, ,f," Jgn, tution itself, thereby highlighting their continuing importance and
to a balanced and healthful ecology is concerned.
Such a Cght,"as imposing upon the state a solemn obligation to preserve the first
hereinafter expounded, considers the ,.rhythm and
harmonyif nu and protect and advance the second, the day would not be too far
ture." Nature means the created world in its entirety. when all else would be lost not only for the present generation, but
Su"fr.frytn,,'
and harmony indispensably include, inter alia,
tt" 3uai"iou, Oir_ also for those to come generations which stand to inherit nothing
position, utilization, management, renewal and
conservation of the but parched earth incapable of sustaining life.
country's forest, mineral, land, waters, fi sheries,
wildlife, off- shore
areas and other natural resources to the end The right to a balanced and healthful ecology carries with it
that their exploration,
development and utilization be equitably accessible the correlative duty to refrain from impairing the environment. ...
to the present
as well as future generations. ...
In sum it may be said that the concept of locus standi as it exists in
. The complaint focuses on one specific fundamental legal
right the right to a balanced and healthful ecology
Philippine jurisprudence now has departed from the rigorous American
which, for ifre concept. Whether it will stay that way still remains to be seen.
first time in our nation's constitutional history, is
solemnly incor-
porated in the fundamental raw. section 16,
Constitution explicitly provides:
Article II of the 1gg7 5. Standing oflegislators, taxpayers and citizens
What may be seen as an early departure from the rigorous view of
SEC..16. The State shall protect and advance
the right standing are the standing accorded to members of the Senate and of the
of the people to a balanced and healthful ecology in u".JrA
with the rhythm and harmony of nature. House of Representatives and also to taxpayers. That members of Con-
gress, as a body, have standing to challenge an unconstitutional act has
This right unites with the right to health which is provided been recognized. The legal standing of the Senate, as an institution, was
for in the preceding section of the iame article:
recognized in Gonzales v. Macaraig, "/r.rr0 In said case, Here, twenty-
three Senators, comprising the entire membership of the Upper House
of Congress, filed a petition to nullify the presidential veto of Section
r('82.12
S('llA ar I I)
r(D.ltl,l
li('l(A 7(r:'.80;l llt)5 1;r1r1 1,. rrol9l S('llA 452 ( l9(x))

3
 982 THE I 987 CONSTITT]'TION
Sec.5
OF THE REPUBLIC OF THE PHILIPPINES
Sec.5 ART. VIII - JUDICIAL DEPARTMENT 983

55 of the GAA of 19g9. The petirion had

the authorizarion of a Senate
Resolution. But even when members of congress For as long as the ruling in Kilosbayan on locus standi is not
do not acias a body,
the court has recognized their standing to
challenge a presidential veto reversed, we have no choice but to follow it and uphold the legal
or other acts of the Executive-which "injures standing ofpetitioners as taxpayers to institute the present action.
institution of congress to which they belong.In
them-in tt p"r*n o, tt The effort of respondents to question the locus standi of petition-
"i, case,the "
the ratter acts ers must also fall on barren ground. In language too lucid to be
cause derivative but nonetheless substantiaiinjury
which.un L" qu"r- misunderstood, this Court has bright-lined its liberal stance on a
tioned by members of Congress."rrr
petitioner's locus standi where the petitioner is able to craft an is-
pAGCOR,,2 operation
ln Sandoval v. sue oftranscendental significance to the people.
ofjai_alai without a congres_
sional franchise, the court put it thus: "To
thJ extent that th; fo*"., or Objections to taxpayers' suit for lack of sufficient personal-
congress are impaired, so is the power of each
member th".ior, ,in"" ity, standing or interest are, however, in the main procedural mat-
his office confers a rigrrJ to participate in the
exercise or trr" fo*"., or ters. Considering the importance to the public of the cases at bar,
that institution, so petitioners contend. The and in keeping with the Court's duty, under the 1987 Constitu-
contention commands our
concurence for it is now settred that a member tion, to determine whether or not the other branches of government
of the House of Repre_
sentatives has standing to maintain inviolate have kept themselves within the limits of the Constitution and the
the prerogatives, powers
and privileges vested by the constitution laws and that they have not abused the discretion given to them,
in his office.,,
the Court has brushed aside technicalities of procedure and has
An early case allowing a taxpayer's suit was pascuar taken cognizance of these petitions."
v. secre-
tary of Public works,'r3 which ruled that in
cases involving expenditure
of public funds, a taxpayer has standing to sue if In taxpayer's suits, however, two things must be kept in mind. First,
it can be sirown 11)
"that he has a sufficient interest in preveiting in Thn v. Macapagal,"u and Sanidad v. C O MELEC,T 17 it was stressed that
the illegal or
he will sustain ""p*oitur
money raised by taxation"; and, (2),,that as regards taxpayers' suits, this Court enjoys that open discretion to
u dir""t injury
as a result of the enforcement of the questioned entertain the same or not.rrs Secondly, what is required is that the action
v. Alba,tv the court said: "Again, it
statute.,, o"*rrrio ti
is well-settred that the validity of a being challenged must be the exercise of the spending or taxing power
statute may be contested only by one
who wil sustain u air.iin;u.y in of Congress. Thus, where the President, out of the funds placed at the
consequence of its enforcement. yet, there disposal of his office, sets aside an amount to finance a study of possible
are many decisions nulrify_
ing at the instance of taxpayers,laws providing constitutional amendments, there is neither appropriation nor taxation
for the disbursement of
public funds, upon the that the expenditure of public funds by an
feory by Congress. As the Court said in Gonzales v. Narvasa:tte
officer of the state for the pu{pose of administering an un"onrtitutionul
act constitute a misapprication of such funds' In the final analysis, it must be stressed that the Court retains
whici -uy b" ;;t;ineo at
the request of a taxpayer.', the power to decide whether or not it will entertain a taxpayer's
suit. In the case at bar, there being no exercise by Congress of its
speaking, therefore, this still comes under taxing or spending power, petitioner cannot be allowed to question
-strictly strict /ocns
yandi rule. However, the doctrine has also been overtaken the creation of the PCCR in his capacity as a taxpayer, but rather,
iy-iiu".ur-
ization. As the Court has s4id.rrs he must establish that he has a "personal and substantial interest
in the case and that he has sustained or will sustain direct injury as
a result of its enfbrcement." In other words, petitioner must show
|| TPHILOCONSA
v. Enriquez, G.R. No. I 1 3 105, August 19, 1994.
ll2G.R.
No. 1389g2, November 29,2000.
r3ll0Phil.331 (1960).
rrn43 s(--Rn 677
llaG.R.
No. 71977,February Zj,lgg7. r'/7.1 s('RA -t11,
rrtratad v'
Garcia, Jr., G R. No. n4222, Aprir 6, r995; Irrgatsing (irrnrlittcc rrsl)r:nrctril v. Alhl. (i.lt. No. 7l()77. lit'bltlitly )'l . lt)t\7, M;tcasi:ttxt v. NllA, (l.tt. No
zation, G.R. No. tl2399,Juty t4,lgg5. v. ,' rrr.ivuli
107()21, July l, l()() l.
'r"(i.R. No. l40tl 15, Arrlirrsl l,l. .)(XX)
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF TI{E PHILIPPINES
that he is a real party in interest that he will
- stand to be benefited
or injured by the judgment or that he will be entitled to the avails
of the suit.
The 1987 constitution has also relaxed the rule on standing when
in Article vII, section 18 says that the sufficiency of the factual basis
of the imposition of martial law or the suspension of the privilege of the
writ may be judicially challenged by "any citizen.,'
Similarly, the right to information on matters of public concern
and the right of access to public documents has been recognized as ac-
cruing to mere citizenship.'2' Hence, the mere fact that acitizenhas sat-
isfied the requirement of personal interest in the information suit, gives
him standing to demand access to the information. Access to public
documents and records is a public right, and the real parties in interest
are the people themselves.t2r
However, workers do not have standing to challenge the validity
of an Executive order placing the NLRC under the supervision of the
secretary of Labor. The Eo simply establishes a relation between two
offices both under the control of the President. The rights of petitioner
workers are unaffected.'r2
6. Other requisites for judicial review.
In addition to the essential requisites of "actual case" and "stand-
ing", jurisprudence has also evolved other auxiliary rules. Thus, it was
pointed out in People v. Vera,t23 that "as a general rule, the question of
constitutionality must be raised at the earliest opportunity, so that if not
raised by the pleadings, ordinarily it may not be raised at the trial, and if
not raised in the trial court, it will not be considered on appeal. ... But
we must state that the general rule admits of exceptions. courts, in the
exercise of sound discretion, may determine the time when a question
affecting constitutionality of a statute should be presented."r24 Another
rule is that the court will not touch the issue of unconstitutionality un-
r{Legaspi v. civil Service commission, 150 scRA 530 (19g7); Tafrada, et al. v. Tbvera,
136 SCRA 27 (1985).
t2t
Chayez v. PCGG, G.R. No. I 307 I 6, December 9, I 99g.
r22Automotive Industry workers
v. Executive Secretary, G.R. No.
2005.
In65 Phil. 56 (1937).
r2ald. at [i8.
Sec.5 Sec.5 ART. VIII JUDICIAL DEPARTMENT 985
-
less it really is unavoidable or is the very lis mota."It is a well-estab-
lished rule that a court should not pass upon a constitutional question
and decide a law to be unconstitutional or invalid, unless such question
is raised by the parties and that when it is raised, if the record also pres-
ents some other ground upon which the court may raise its judgment,
that course will be adopted and the constitutional question will be left
for consideration until such question will be unavoidable."r25
7. Politicalquestions.'26
When the question is the legality of a political act of government,
the Court derives its power to adjudicate from the constitutional grant
of judicial power and from the explicit grant of the power of judicial
review found in Article VIII, Section 5(2Xa). But the Court does not al-
ways assume jurisdiction over every actual constitutional case brought
before it even in instances that are ripe for resolution. One class of cases
which the Court generally refuses to touch are "political questions."
The "political questions" doctrine then constitutes another limitation on
the power of judicial review.
It is easy enough to deflne political questions in the abstract. As
Justice Concepcion said in Tafiada v. Cltenco,t2'political questions are
"those questions which, under the Constitution, are to be decided by the
people in their sovereign capacity, or in regard to which full discretion-
ary authority has been delegated to the legislative or executive branch
of the government." But the difficult question which the Court is fre-
quently called upon to answer is whether a question is one "in regard
to which full discretionary authority has been delegated to the legisla-
tive or executive branch of the government." Lengthily argued majority
opinions, concurrences and dissents characterize the cases where the
political questions doctrine has been invoked.
Baker v. Carrt2s has attempted to formulate some guidelines for
determining whether a question is political or not:
rr5Sotto v. Commission on Elections, 76 Phil. 5 1 6, 522 ( 1 946). See, however, the decisions
ol Justicc licrnando whcre constitutional questions lrequently have a way of creeping in.
lrt'Srrr lllxruns, " SilnqnntN ot powtns: 'l'ut Supnrur: (lotnt ,tNt> t tn: Potrncl,t Dr:p'tRTMF:M:;"
157.509, January rg,
xt At'tiNl() 1.. J. 8 29 ( l96l).
r'''lOl l'hil l()5 I. lO67 (l(Xr5).t'itirrg l6(',.1.1i.41.].
r''x l(l() I I S lt{(r 1 lrxr,i;
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Prominent on the surface of any case held to involve a politi-
cal question is found a textually demonstrable constitutionai"o--
mitment of the issue to a political department; or a lack ofjudicial-
ly discoverable and manageable standards for resolving it; or the
impossibility of deciding without an inirial policy determination
of a kind clearly for non-judicial discretion; or the impossibility of
a court's undertaking independent resolution without
lack of the respect due coordinate branches of government;"^pr"rring
o, un
unusual need for unquestioning adherence to a political decision
already made; or the potentiality of embarrassment from murtifari-
ous pronouncements by various departments on one question.r2e
The various kinds of political questions described here may be
classified into three kinds. First is the textual kind: where there ..is
found a textually demonstrable commitment of the issue to a politi-
cal department." Next is the functional type: where there is ..a lack of
judicially discoverable and manageable standards for resolving
it; or
the impossibility of deciding without an initial policy determinaltion of
a kind clearly for non-judicial discretion." The third is the prudential
type: where there is "the impossibility of a court's undertaking indepen-
dent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adher-
ence to a political decision already. made; or the potentiality of embar-
rassment from multifarious pronouncements by various departments
on
one question."
under the 1935 constitution, one area of the ..political thicket"
into which the Supreme court consistently refused to enter belonged to
the textual kind: the matter of the disciplinary power of the legislature
over its own members. In the early case of Alejandrino v.
euezin,tio the
Supreme court refused to interfere in the suspension of Alejandrino
although the court agreed with the Senator that the suspension-was un-
constitutional. Justice Malcolm, writing for the court said: ,,Mandamus
will not lie against the legislative body, its members, or its officers, to
compel the performance of duties purely legislative in their character
which therefore pertain to their legislative functions and over which
they have exclusive control."r3r Similarly, the Supreme court ref'used
tnld. at 217. For an analysis
of different kinds of "politicar questions,', see r
Coxsttrunou or rne Repuauc op ruE putrtnnnrs 4O4-40g (19g7).
In,46 Phit.
tt3 (1924).
Itr/r/. :rt tltl
Sec.
Sec.5 ART. VM _ JUDICIAL DEPARTMENT
-5
to interpose itself in the matter of the suspension of Osmeffa, Jr. for a
speech he had delivered on the floor of Congress.r32
The Supreme Court decision in the case of Osmeffa, Jr. revolved
around the interpretation of the meaning of "disorderly behavior" and
the legislature's power to suspend a member. The Constitution of 1935
did not define "disorderly behavior" nor did it specify the procedure
for the imposition of the penalty of suspension. The matter, therefore,
was something in regard to which full discretionary authority had been
given to the legislature.
The emergency period of the 70's brought on a number of cases
which raised the political questions issue. Among them was Hidalgo
v. Marcos,t33 where the Supreme Court was asked to compel the Presi-
dent to convene the interim National Assembly mandated by the 1973
Constitution. By that time, however, the interim body had already been
abolished by the 1976 amendments. In any event, the Court said that
the 1973 Constitution had left the time of the convening of the interim
body to the discretion of the President and he could not be compelled to
perform a discretionary act. Similarly, when the Court was asked in De
la Llana v. COMELEC'34 to stop the President from calling a referen-
dum where the question to be posed was whether the President should
continue as President and Prime Minister even after the organization
of the interim Batasang Pambansa, the Court said that this was not a
question of legality but of wisdom and therefore was a political ques-
tion. But when the President decided to propose amendments to the
1973 Constitution, following Tblentino v. COMELEC,T3s the Court said
in Sanidad v. COMELEC,',6 that the validity of the manner of propos-
ing amendments and the question whether the President could propose
amendments were justiciable and not political questions. Thereupon,
however, the Court proceeded to uphold the President's power.
In this category of textually committed power also is Arroyo v. de
Veneciat3, where the issue was whether the Court could intervene in a
case where the House of Representatives was said to have disregarded
'r2Osmefia, Jr. v. Pendatun, 109 Phil. 863 (1960).
rrr80 SCRA 538 (December 9, 1977).
r{tl0 SCRA 525 (December 9, 1977).
BpjRN^s, 7?r.
! !r4l
scRA 7O2 (19'11\.
h73 S('RA 333 (Octubcr 12, 1916\.
'
r'/(i.R. No. l27255,August 14. 1997.
 THE 1987 CONSTITUTION Sec.5
OF THE REPUBLIC OF THE PHILIPPINES Sec.5 ART. VIII - JUDICIAL DEPARTMENT

its own rule. The court said that it could not because the matter
of for- was not absolute but limited to acts performed in an official capacity
mulating rules and imprementing those rules have been textually
con-
ferred by the constitution on congress itself. Hence, provided and could not cover the commission of a crime such as slander or oral
that no
violation of a constitutional provision or injury to private rights defamation in the name of official duty.
was in_
volved, the court was without authority to intervene. Another The second category of political questions in the scheme of Baker
example
of this was the election of minor congress officials who would v.Carr covers those where there is "a lack ofjudicially discoverable and
occupy
positions created not by the constitution but by congressional manageable standards for resolving it; or the impossibility of deciding
rules.
Thus the court refused to intervene in santiagi ,. citngonatrE without an initial policy determination of a kind clearly for non-judicial
where
the dispute involved the selection of a senate minority lea-der. discretion." The inverse of this is that the question is not political when
similar to the textual type of political questions are some maners the Court can flnd legal standards for resolving the issue. This was the
involving foreign relations traditionally placed in the hands case of Jffiey Liang.
of the ex-
ecutive. An example of this is the recognition of diplomatic The firm direction now, in fact, in quite a number of decisions of
immunity.
ln International catholic Migration commission v.-Hon. calleja,t3e the Supreme Court is towards assumption of jurisdiction whenever the
the
Court said: Court finds constitutionally imposed limits on powers or functions con-
ferred upon political bodies. This direction will affect even those which
It is a recognized principle of international law and under
our system of separation of powers that diplomatic immunity
in the past were seen as beyond judicial reach such as disciplinary ac-
is tion over members of Congress. It can be seen, for instance, that under
essentially a political question and courts should refuse to look
be-
yond a determination by the executive branch of the government, the 1973 Constitution legislative discretion in regard to suspension was
and where the plea of diplomatic immunity is recognlzed and limited by the requirement that suspension may be imposed only with
af_
firmed by the executive branch of the government as in the case the concurrence of two-thirds of all the members of the Assembly and
at bar, it is then the duty of courts to accept the claim
of immunity only for a maximum period of sixty days.'0, A similar limitation is im-
upon appropriate suggestion by the principal law officer of posed by the 1987 Constitution.r42 This aspect of the disciplinary pro-
the
government ... or other officer acting under his direction. cess, therefore, is now a justiciable and not a political question.'43
Hence,
in adherence to the seftled principle that courts may not so exercise
theirjurisdiction .'. as to embarrass the executivqarm ofthe gov- There are in fact examples of this direction coming earlier than
ernment in conducting foreign relations, it is accepted doctrine-that 1973.ln the extra-ordinary t949 case of Avelino v. Cuenco,,* after much
in such cases the judicial department of (this) gou"--"nt follows hesitation, the Court eventually acted to determine whether the election
the action of the political branch and will not embarrass of Cuenco as Senate President was attended by a quorum. Rejecting
the latter
by assuming an antagonistic jurisdiction. earlierAmerican decisions, the Supreme Court has also held that appor-
tionment of representative districts is not a political question because
The absolute sweep of this pronouncement, however, was
toned there are constitutional rules governing apportionment.'4s In Thftada v.
down in Jeffrey Liang (Hue Feng) v. peopre.tao The case involved
a
criminal complaint against Jeffrey Liang, an Asian Development
Bank
official, for grave oral defamation. Appeal was made to it poriticar
"
character of Jeffrey Liang as an agent of international organization.
la I
Article VIll, Section 7 (3), I 97 3 Constitution.
The ra2Arliole Vl, Section l6(3).
court ruled that the immunity granted to officers and staff of the ADR ta'Sae ul.so Powell v. McCormack,395 U.S.486 (1969).
14483
llhil. t7 (t949).
''r'Macias v. (lOMlil,ECl,3 SCRA I (1961); Felwa v. Salas, l8 SCRA606 (1966). Recent
r38G.R.
No. 134577, November l g, l99g rlt't isiorrs urrtlcl lhc l9ll7 (\rrrstitution havc likcwisc considercd apportionment ajusticiable issue:
r3eG.R.
No. 85750, September 28, 1990. 'lirbi:rs v. Alrlkrs,2lt) S('I{A l(Xr (1994); Mlrilno, Jr. v. (bmmission on Elcctions, C.R. No.
r$C.R. No. 125865, IItl62'7,Mruclt7. lt)()5:'lirhiusv.Ahttkrs,2119S('RAl0(r(I994):Maritno,.lr'.v.(brnrrissionorr
Mtrch 26,2|/.\. ./.
llltr'l iotrs, ( I l{ . No. I I ll(r.l /, Mur r'lr l()(r5.

,i&
 THE 1987 CONSTITUTION Sec- -5
OF THE REPUBLIC OF THE PHILIPPINES Sec.5 ART. VIII _ JUDICIAL DEPARTMENT 99t

Macapagal,r* the supreme court took cognizance of a dispute involv-

ing the formation of the Senate Electoral rribunar. rn cunanan v. Tan,
Jr., " 1yt" court passed judgment on whether congress had formed the
commission on Appointments in accordance with the dictates of the
constitution.rn lttnsang v. Garcia,la8 reversing the earlier decisions of
Barcelon v. Bakertas and Montenegro v. castafteda,tso the court held that
the suspension of the privilege of the writ of habeas corpus was not a
political question because the constitution had set limits to executive
discretion on the matter. rn Gonzales v. coMELEcrsr and rolentino v.
COMELEC,TS2 reversing Mabanag v. Lopez Vlo,"' the Court held that
whether or not congress or a constitutional convention has properly
proposed amendments to the constitution is a justiciable and not a po-
litical question.
More recent examples are Daza v. Singson,tsa Coseteng v.
and Guingona, Jr. v. Gonzales where the Court intervened in the man_
,156
ner of forming the commissin on Appointmenls. In Bondoc v. pineda,t'j
the court invalidated the expulsion of a member of the House Electoral
Tribunal. All these were done by the court because it found applicablc
legal standards.
position and the other half preferring the very limited justiciable posi-
tion of Innsang v. Garcia.tse
The third type of political questions in the Baker spectrum is the
prudential type: when there is "the impossibility of a court's undertak-
ing independent resolution without expressing lack of the respect due
coordinate branches ofgovernment; or an unusual need for unquestion-
ing adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various depart-
ments on one question."
The frequency with which the Court appealed to the political
questions doctrine during the Marcos years motivated Commissioner
Roberto Concepcion to work for the insertion of the second paragraph
Mitra,tj, of Section I of Article VIII which imposes on the Court the duty to
determine whether or not there has been grave abuse of discretion
amounting to lack of jurisdiction.te For all practical purposes, this has
eliminated the prudential type of political questions from Philippine ju-
risprudence. The Court already said as much as early as 1989 in Marcos
v. Manglapus:'6'

with the effectivity of the 1973 constitution together with the ex- The framers of the Constitution believed that the free use of
tensive powers given by its Transitory provisions to the president, it the political question doctrine allowed the Court during the Mar-
was predictable that the supreme court should uphold the validity ol' cos years to fall back on prudence, institutional difficulties, com-
the imposition of martial law. This the supreme court did in Aquirut, plexity of issues, momentousness of consequences or a fear that
Jr. v. Enrile.rss However, on whether the validity of the imposition ol' it was extravagantly extending judicial power in the cases where
martial law was a political or justiciable question, the supreme court it refused to examine and strike down an exercise of authoritarian
was almost evenly divided, with one half holding to a political questiorr power. Parenthetically, at least two of the respondents and their
counsel were among the most vigorous critics of Mr. Marcos (the
main petitioner) and his use of the political question doctrine. The
'"'C.R. No. 10520, February 28,1965. Constitution was accordingly amended. We are now precluded by
lr.5 SCRA I (1962\.
its mandate from refusing to invalidate a political use of power
'|n 2 SCRA 448 (1971). through a convenient resort to the political question doctrine. We
,f,-5 l)hil.
u7 (1905).
la,9t Phil. 882 (1952). are compelled to decide what would have been non-justiceable un-
r5r2l scRA 774 (1967). der our decisions interpreting earlier fundamental charters.
15,41
scRA 702 (1971).
'5178 Phil. I (1947).
r5aG.R.
No. 86344, December 21 , 1989.
155187
SCRA 377 (1990).
r56G.R. No.
10697 I, Ocrober 20, 1992.
r57G.R. No.
977 10, Septemb er 26, 199 l. r5'02SCRA448(1971).Formoreonthis,saaunderArticlelll,Section l5inlBrnurs,np.
r$9 scRA 183 (septembcr
l7 , lg73). For more on this, sce un<Jcr Articlc VII, Sccri'rr I x, <.it

't'.!,r, ('orrccpirnt's slxlrrsrrrship spcch, I RIi(l()RD 434-435.

r''r
Mlrn:or v. Mtutgllllrts, ( i.R. No. lltl2 I I , Scptcnrtrc.r I 5, l9lt9.
992 THE 1987 CONSTITUTION
OFTHE REPUBLIC OF THE PHILIPPINES
By 1993 the Court could already say in Oposa v. Factoran, Jr.:t62
It must, nonetheless, be emphasized that the political ques_
tion doctrine is no longer the insurmountable obstacle to the ex-
ercise of judicial power or the impenetrable shield that protects
executive and legislative actions from judicial inquiry or review.
The second paragraph of section l, Article VIII of the Constitu_
tion states that: "Judicial power includes the duty of the courts
ofjustice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or
not there has been a grave abuse ofdiscretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality
of the Government."
The rationale behind this development was reiterated in Tblentino
v. Secretary of Finance:163
As a result of the unedifying experience of the past where
the court had the propensity to steer clear or questions it perceived
to be "political" in nature, the present Constitution, in contract,
has explicitly expanded judicial power to include the duty of the
courts, especially the Supreme Court, ,.to determine whether or
not there has been a grave abuse ofdiscretion amounting to lack of
excess of jurisdiction on the part of any branch or instrumentality
of the Government." I submit that under this explicit mandate, the
Court is empowered to rule upon acts of other Government entitles
for the purpose of determining whether there may have been, in
fact, irregularities committed tantamount to violation of the con-
stitution, which case would clearly constitute a grave abuse of dis-
cretion on their part.
In the words of the sponsor of the above_quoted Article of
the constitution on the Judiciary, the former Chief Justice Roberto
R. Concepcion, "the judiciary is the final arbiter on the question of
whether or not a branch of government or any of its officials has
lcted withoutjurisdiction or in excess ofjurisdiction, or so capri_
ci'usly as to constitute an abuse of discretion amounting to excess
.l'.iurisdiction or lack of jurisdiction. This is not only a judicial
powcr but a duty to pass judgment on matters of this nature.
'62G.R. No. 101083, July 30, 1993.
,6235 SCRA 630 (1994).
Sec.5
Sec. 5 ART. Vru - JUDICIAL DEPARTMENT 99J
This is the background of paragraph 2 of Section 1, which
means that the courts cannot hereafter exhibit its wonted reticence
by claiming that such matters constitute a political question."
The expanded scope of the Court's jurisdiction even reaches the
President's exercise of his Commander in Chief powers when he calls
on the Armed Forces to suppress lawless violence. This the Court af-
firmed in Integrated Bar v. hmora:t&
When the President calls the armed forces to prevent or sup-
press lawless violence, invasion or rebellion, he necessarily exer-
cises a discretionary power solely vested in his wisdom. This is
clear from the intent of the framers and from the text of the Con-
stitution itself. The Court, thus, cannot be called upon to ovemrle
the President's wisdom or substitute its own. However, this does
not prevent an examination of whether such power was exercised
within permissible constitutional limits or whether it was exer-
cised in a manner constituting grave abuse of discretion.
It is here when the Court must have to depart from the broad
principle of separation of powers that disallows an intrusion by it
in respect to the purely political decisions of its independent and
coordinate agencies of government.
Nevertheless the Court commends caution:
In view of the constitutional intent to give the President full
discretionary power to determine the necessity of calling out the
armed forces, it is incumbent upon the petitioner to show that the
President's decision is totally bereft of factual basis. The present
petition fails to discharge such heavy burden as there is no evi-
dence to support the assertion that there exist no justification for
calling out the armed forces. There is, likewise, no evidence to
support the proposition that grave abuse was committed because
the power to call was exercised in such a manner as to violate the
constitutional provision on civilian supremacy over the military.
In the performance of this Court's duty of purposeful hesitation
before declaring an act of another branch as unconstitutional, only
where such grave abuse of discretion is clearly shown shall the
Court interfere with the President's judgment. To doubt is to sus-
tain.
rilrrlt'grrrlcrl llru v. Zrrrrrrxrr. ( i.lt. No l 4 l 2ll4, Arrgrrsl 1 5, 2(XX)
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Finally, a discussion of political questions cannot omit mention of
three significant transitions in Phiklippine political history all of which
profoundly altered the Philippine political picture. ln Javellana v. Ex-
ecutive secretary,t6s while a majority of the supreme court held that
whether or not the 1973 constitution had been ratified in accordance
with the 1935 constitution was a justiciable question, a majority also
held that whether or not the 1973 constitution was already in effiect,
with or without constitutional ratification, was a political question.rft
The court accepted the glaring fact simply stating its cryptic conclusion
that "there is no further judicial obstacle to the new constitution being
considered in force and effect."r67
In 1986 the Marcos era ended and Corazon Aquino became presi-
dent after a bloodless revolution. No judicially discoverable standard
can be found in the constitution to justify the defiance of the 1973 con-
stitution.
Lastly, in 2001, Vice-President Gloria Macapagal-Arroyo took
over from President Estrada. The court upheld the legitimacy of her
takeover;but, as already seen underArticle VII, Section g, none of the
conflicting justifications given by the justices commanded a majority.
8. Effect of declaration of unconstitutionality.
The accepted view in Philippine jurisprudence on the effect of n
declaration of unconstitutionality was fully explained by Justice Fer-
nando in his concurring opinion in Fernandez v. Cuerva:t6s
Where the assailed legislative or executive act is found by
the judiciary to be contrary to the Constitution, it is null and void.
As the new Civil Code puts it: ,.When the courts declare a law to
be inconsistent with the Constitution, the former shall be void and
the latter shall govern. Administrative or executive acts, orders and
regulations shall be valid only when they are not contrary to the
laws or the Constitution."r6e The above provision of the Civil Codc
reflects the orthodox view that an unconstitutional act, whether
,6550
scRA 30 (1973).
IftThis subject is discussed at length
under Article XVI, 1973 Constitution, in tJrnrnn,
P n nL rn u t C ousrtrunoNtt Lew 803-8 I 8 ( I 984).
rdTJavellana v.
Executive Secretary,50 SCRA 30, l4l (1923).
rs2t scRA t095. I t06 (t967).
r6eArt.7.
Scc..5
Sec. 5 ART. VIII _ JUDICIAL DEPARTMENT 995
legislative or executive, is not a law, confers no rights, imposes
no duties, and affords no protection.rTo This doctrine admits of
qualifications, however. As the American Supreme Court stated:
"The actual existence of a statute prior to such a determination [of
constitutionalityl, is an operative fact and may have consequenc-
es which cannot always be erased by a new judicial declaration.
The effect of the subsequent ruling as to invalidity may have to be
considered in various aspects,
- with respect to particular regula-
tions, individual and corporate, and particular conduct, private and
official."r7r
The orthodox view finds support in the well-settled doctrine
that the Constitution is supreme and provides the measure for the
validity of legislative or executive acts. Clearly then, neither the
legislative nor the executive branch, and for that matter much less,
this Court, has power under the Constitution to act contrary to its
terms. Any attempted exercise of power in violation of its provi-
sions is to that extent unwarranted and null.
The growing awareness of the role of the judiciary as the
governmental organ which has the final say on whether or not a
legislative or executive measure is valid leads to a more appre-
ciative attitude of the emerging concept that a declaration of nul-
lity may have legal consequences which the more orthodox view
would deny. That for a period of time such a statute, treaty, execu-
tive order, or ordinance was in "actual existence" appears to be
indisputable. What is more appropriate and logical then than to
consider it as "an operative fact?"
This recognition of an unconstitutional statute as an "operative
fact" before it is declared unconstitutional was applied in De Agbayani
v. Philippine National Benk,"'where the period before a moratorium
law was declared unconstitutional was not allowed to toll the prescrip-
tive period of the right to foreclose a mortgage.
9. Judicial review by inferior courts.
Since the power of judicial review flows from judicial power and
since inferior courts are possessed of judicial power, it may fairly be
inferred that the power of judicial review is not an exclusive power of
r7r'.\'r'r,
Norkrn v. Shclhy Q)unty, ( llttl6) I lll tJ.S. 42.5.
r/r('hicol (ilunty l)nrinugc l)ist. v. l}txtcrSlatcs lllnk,(l().10) ()lt tl.S. 17L
| ,,.t8 s( 'l{ A 4',.1() ( I ()7 I ).
 THE 1987 CONSTITT]TION
OF THE REPUBLIC OF THE PHILIPPINES
the Supreme Court. This same conclusion may be inferred from Article
VIII, Section 5(2), which confers on the Supreme Cotrt appellate jwis-
diction over judgments and decrees of lower courts in all cases in which
the constitutionality or validity of any treaty, international or executive
agreement, law, presidential decree, proclamation, order, instruction,
ordinance, or regulation is in question. As the Court said in J .M . Tuason
and Co. v. Court of Appeals!', "Plainly the Constitution contemplates
that the inferior courts should have jurisdiction in cases involving con-
stitutionality of any treaty or law, for it speaks of appellate review of
final judgments of inferior courts in cases where such constitutionality
happens to be in issue."
Considering, however, that a majority vote of the members of the
Supreme Court sitting en banc is required to declare a law unconstitu-
tional,lower courts must keep in mind "thatabecoming modesty of in-
ferior courts demands conscious realization of the position they occupy
in the interrelation and operation of the integrated judicial system of the
nation."r?4 Moreover, while a declaration of unconstitutionality made
by the Supreme Court constitutes a precedent binding on all, a similar
decision of an inferior court binds only the parties in the case.
10. Modalities of constitutional interpretation.
The Supreme Court is a very interesting institution, but it defies
description. As one political writer has put it, describing the Supreme
Court is like discussing the theories of Karl Marx one has to in-
- the meaning of the famous phrase "due process of law." As Lawrence
dulge in half-truths correcting each other and exaggerations of impor-
tant truths. The Supreme Court is not just a coufl. It is also a political
institution. Because the key provisions of the Constitution are couched
in grand ambiguities and because the key provisions concern the larger
issues of our life, of our liberties, and of our happiness, the Supremc
Court, by the exercise of judicial review, wields tremendous political
power. Hence, each Justice bears a special burden that of exercising
- if you prefer, that
great political power and still acting as a court, or,
of exercising judicial power while remaining concerned, realistic, antl
alert to the political and social and even economic significance of whal
it is doing.
'733SCRA696,703-704 (1961);Ynotv. Intermetliate(lourto[Appcals, l4li S('ltAarli)
(l 987).
lTaPcople v.Vcra,(r5Phil.5(r(lt).\1\,(irH! irr Vrrlv.Art.l,,)!lS('RA 15l.l{rl .l(lrXr(t)
Sec.5 ART. VIII JUDICIAL DEPARTMENT
-
For this reason, there is necessarily a certain fluidity in the choice
of approaches to a constitutional problem. And the final conclusion may
depend on the approach which a justice chooses to follow. This, it is
submitted, partly explains the differences that appear in concurrences
and dissents. And these are what enrich jurisprudence.
One can count six possible ways in which an individual justice
might approach a constitutional problem.rTs One justice might take a
historical approach by analyzing the intention of the framers of the
Constitution and the circumstances of its ratification. Much of what is
contained in the Bill of Rights, for instance, is traceable to ideological
assertions prevalent in America, Great Britain and Europe at the time
of American Revolution. The original meaning of expressions can be
traced to historical events or ideological positions. It is in this modal-
ity that the records of the Constitutional Convention of 1934 and of
the Constitutional Commission of 1986 play an important role. But a
historical approach or appeal to the intent of the framers may not be
resorted to when it is contrary to the plain meaning of the text.
Another justice might simply choose the textual approach by read-
ing the language of the Constitution as the man on the street would
understand it. After all, it is the man on the street who in the ultimate
analysis is the author of the Constitution because it was he who rati-
fied it. However, a word or phrase found in the text does not always
yield a "plain menaing." For example, so much has been written about
Tribe has remarked, "To take text as primary, and as ultimately authori-
tative whenever it speaks to a proposition, is not necessarily to take
text as exclusive, and as filling up the available space for constitutional
authoritY."tzo
Another justice might follow a structural approach by drawing in-
ferences from the architecture of the three-cornered power relationships
that are found in the constitutional arrangement. Structure is what the
text shows but does not say. An easy example is "separation of powers."
The text does not say it, but the actual distribution of power to three
departments shows it. Similarly, the need for the two houses of Con-
l/lSct: l'nu.l' Bonttt, (ilvsltltrnr>tttt. Iutt,N'ntllrlolv, Br.xrxwur-t., l99l: l-ewnlru<:r:'fntgu,
Aut.nrm ('ttpslutrrkN,tt. /"rw, Vll. l, .lnl lid., lixtrttlalion Prcss 2(XX).
|'nlr/. At t5.
 THE 1987 CONSTITUTION ART. VIII - JUDICIAL DEPARTMENT
Sec.5
OF THE REPUBLIC OF THE PHILIPPINES

gress to vote separately is not always stated, but the not the same. In case the sentence is death, there is automatic revrew
bicameral structure
shows it. by the Court of Appeals and ultimately by the Supreme Court. This is
mandatory and neither the accused nor the courts may waive the right
Still another might prefer to be doctrinal and rely on established
precedents. The growing volume of supreme court decisions of appeal. In the case of the sentence of reclusion perpetua or life im-
are in a prisonment, however, although the Supreme Court has jurisdiction to
sense a second set of constitutional texts. The direction
of decisions review them, the review is not mandatory. Therefore, review in this
sometimes change. But these can be seen as growth in the understand-
later cases may be waived and appeal may be withdrawn."8
ing of the constitution brought about by the sharpening of issues
under
the pressure of actual controversies.
12. Temporary assignment ofjudges.
Then there is also the ethicar approach which seeks to interpret
Under Article VIII, Section 7, of the 1935 Constitution, no judge
the Filipino moral commitments that are embedded in the
constitutional appointed to a particular district could be designated or transferred to
document. The constitution, after all, as the preamble says,
is meant to another district without approval of the Supreme Court. By interposing
be an embodiment of "our ideals and aspirations." Among
these may be the Supreme Court between judges and the appointing authority, this
our innate religiosity, respect for human dignity, and the-celebration
of provision further strengthened the independence of the judiciary from
cultural and ethnic diversity.
the political departments.
Finally, because constitutional rules are not arways written in
Under the 1973 Constitution, the Supreme Court alone could ef-
clear black and white, a justice could exercise the prudential
approach fect the temporary transfer of judges. However, temporary transfers
by weighing and comparing the costs and benefits that might ue
rouno could last no longer than six months without the consent of the judge
in conflicting rules.
concerned. The same rule has been kept in the 1987 Constitution. More-
Allthese approaches, singly or in various combinations, come
into over, it should be noted that the text uses the expression "other sta-
play in the work of the court and, as would normally be expected, tions." The rule applies even when the temporary transfer is to a branch
-
with varying degrees of success, or, in varying degrees ofcontroversiar- within the same region because appointments are made to a particular
ity. But this is what makes constitutional law uno tt supreme courr branch of a given region. A judge who has good housing facilities in a
both fascinating and sometimes exasperating. " particular branch or station might be threatened by a prclonged transfer
to one with poorer housing facilities."n
11. Review of death sentences.
It should be noted that, unlike the 1935 Constitution, the 1987
section 5 authorizes the supreme court to review cases wherc Constitution,like its 1973 counterpart, is silent about permanent trans-
the penalty imposed is recrusion perpetua,life imprisonment, fer. Who then can effect a permanent transfer? The reasons which weigh
or deuth.
However, the constitution has not proscribed an intermediate heavily against prolonged temporary transfer can apply more to a per-
revicw.
To ensure utmost circumspection before the penalty of death, rccru manent transfer. Since transfer imports removal from one office and
sion perpetua or life imprisonment is imposed, the Rule now since a judge enjoys security of tenure, it cannot be effected without the
is tl'rr
such cases must be reviewed by the court of Appeals before consent of the judge concerned.
thcy urc
elevated to the Supreme Court.rzT
It should also be noted that while Section 7, Article VIII, of the
Note, however, that the rule for the review of decisions of krwer 1935 Clonstitution authorized Congress to determine the residence of
courts imposing death or re.lusion perpetua or life imprisonmcnr
,rt
rTTPerplcv ;tttrl ltrrrttor, ( i.R No. l7 17(17, Arrgust 3l,
Mure.,(i.R.N-s. r4767lr'*7,Jury7,2(xx;pcoprcv.Laguu,(i.R.N.. r7,J6t, ''"lt'r4tk' v. llrx ltit 2(X)7.
Jnnutry3l,2(X)6. rDl llli('()|il),1,1 I
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
judges of inferior courts, the 1987 constitution,like its 1973
counter-
part, is silent on the subject.It is submitted nonetheless that the power
to determine by law the residence of judges still belongs to the legis-
lature as part of its authority to determine additional qualifications of
judges of lower courts.
13. Changeofvenue.
There was no provision in the 1935 constitution authorizing the
Supreme court to order a change of venue or place of trial in order to
avoid a miscarriage of justice. In People v. Gutierrez,rso however, the
supreme court held that it had the inherent power to do so. The court
rs'
said.
We must thus reject the idea that our courts, faced by an
impasse of the kind now before us, are to confess themselves im_
potent to further the cause of justice. The constitution has vested
the Judicial Power in the Supreme Court and such inferior courts
as may be esrablished by law (Arricle VIII, Section l), and such
judicial power connotes certain incidental and inherent attributes
reasonably necessary for an effective administration of justice.
The courts "can by appropriate means do all things necessary to
preserve and maintain every quality needful to make the judiciary
an effective institution of government. (Borromeo v. Mariano, 4l
Phil.322.)
one of these incidentar and inherent powers of courts is that
oftransferring the trial ofcases from one court to another ofequal
rank in a neighboring site, whenever the imperative of securing a
fair and impartial trial, or of preventing a miscarriage of justice,lo
demands. This authority was earry recognized in England as inher-
ing in the courts ofjustice even prior to the eighteenth century. The
opinion in Crocker v. Justices of the Superior Court,2Og Mass.
162,21Ann. Cases 1067, has shown how the eminent Lord Chief
Justice Mansfield, in Rex v. Cowle (Eng.) 2 Bun g34, decided in
I 759, said that, in this respect, ..the law is clear
and uniform as far
back as it can be traced."
And in Reg. v. Conway, j Jr. CJ.507, the question was fully
discussed, and all thejudges appear to have ugr""d as to the power
of the court, Crampton, Jr., saying at page 525:
18036
SCRA t72 (1970\
r8r/d.
at I 80- 182.
Sec. 5 Sec.5 ART. VIII - JUDICIAL DEPARTMENT 1001
"There is another common-law right, equally open to
defendants and prosecutors, ... that where it appears that
either party cannot obtain a fair and impartial trial in the
proper county, then this court ... has jurisdiction to take the
case out of the proper county, as it is called, and to bring
it into an indifferent county. ... This jurisdiction to change
the venue ... has been exercised by this court from a very
early period. We have reported cases, where the doctrine is
laid down in emphatic language; we have the practice of the
Court of Queen's Bench in England independently of any
practice ofourown court. ... The generaljurisdiction ofthe
court, in a proper case, to change the venue from one county
to any other, cannot be the subject of doubt."
This power to transfer trial of criminal cases in furtherance
ofjustice, exercised through writs of certiorari, has, according to
the weight of authority, passed to the State Supreme Courts of the
American Union.r82 ln Cochecho R. Co. v. Farrington, 26 N.H.
428,atpage 436,it was held that the power to transfer the place of
holding trials
-
"became thoroughly engrafted upon the common law, long
before the independence of this country; and from that time
forth, not only has the practice prevailed in the courts of
England, but the power is now exercised by the Courts of
very many if not all of our states, either by force of express
statute or the adoption of the common law in the jurispru-
dence of the same."
That such inherent powers are likewise possessed by the
Philippine Courts admits of no doubt, because they were organized
on the American pattem with the enactment of the first judicial
organic law, Act 136, on I I June 1901, by the Philippine Commis-
sion, then composed by a majority of able American lawyers, fully
familiar with the institution and traditions of the common law.
14. Rules concerning protection and enforcement of consti-
tutional rights, pleading, practice, and procedure, and admission to
the Bar.
The 1987 Constitution has given to the Supreme Court author-
ity to promulgate rules concerning the protection and enforcement of
rE256Am. Jur. (Vcnue), pngcs 47-41t, 5(). For an exhaustivc revicw of precedents, see
C'rgckcrv.Justicesol'thcsupcri<lrCourts,20ll Mass. 162,21 Ann.('as. l0(r7: Illrry v.Truax,99
NW 76e.65 l.RA. 762.
 1002 THE I987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
constitutional rights. This is auxiliary to its broad judicial power. This
includes an inherent power to suspend its own rules in particular cases
in order to do justice.r* And this is the basis for the Rule creating the
Wt''tof Amparo.
The authority to promulgate rules concerning pleading, practice
and procedure and admission to the practice of law is a traditional pow-
er of the Supreme court. The grant of this authority, coupled with its
authority to integrate the Bar, to have administrative supervision over
all courts'84 and to discipline judges of lower courts,r8s in effect places in
the hands of the Supreme court the totality of the administration ofjus-
tice and thus makes for a more independent judiciary. It also enhances
the court's capacity to render justice, especially since, as the supreme
court has had occasion to say, it includes the inherent authority to sus-
pend the rules when the requirements of justice demand.rs6 Moreover,
since it is to the Supreme court that rule making authority has been
given, rules promulgated by special courts and quasi-judicial bodies are
effective "unless disapproved by the Supreme Coult."r87
The same grant of authority, however, lays down certain limita-
tions and guidelines: (1) they "shall provide a simplified and inexpen-
sive procedure for the speedy disposition of cases;" (2) they.,shall be
uniform for all courts of the same grade;" and (3) they ,.shall not dimin-
ish, increase, or modify substantive rights." The court has also had oc-
casion to say that the "power to admit attorneys to the Bar is not ... an
arbitrary and despotic one, to be exercised at the pleasure ofthe court,
or from passion, prejudice or personal hostility, but it is the duty of the
court to exercise and regulate it by a sound and judicial diss1s1l6n."ras
since the Supreme court is not allowed to promulgate rules that
can alter "substantive rights," it becomes necessary to understand what
substantive rights are and how they are distinguished from procedural
r83l-im, et al. v.
CA, G.R. No. 149749, November 16,20O6.
reArticle VIII, Section
6.
r85Article VIII,
Section 11.
t86Bafiez
v. Republic, 94 SCRA 756,760 (December lg, l9g0).
r87The
old rule was that nrlcs ttl'lorvcr courts are subject to approval by tho
Supremc Court.
De Cuzman v. People. G.R. No. .54281.l, l)t.ccnrber I 5. 1982_
rssAndrcs v. ('uhrcr:r.
127 S('Rn 802 (lrchruary 29, l9tt4), whcru: rtslxrnrlcnt wits ltllowc(l
lo lirkc lris oirlh ol ollitt'irs :r lrrrvyr.r irlrt'r srrlrrnissiorr ol t,vitk,rrt.r.ol rt.lir.nr.
Sec.5
Sec. 5 ART. VIII - JUDICIAL DEPARTMENT
or remedial rights. Bustos v. Lltcerolse had occasion to explain the con-
cepts thus:'eo
Substantive law creates substantive rights and the two terms
in this respect may be said to be synonymous. Substantive rights
is a term which includes those rights which one enjoys under the
legal system prior to the disturbance of normal relations. (60 C.J.,
980.) Substantive law is that part of the law which creates, defines
and regulates rights, or which regulates the rights and duties which
give rise to a cause of action; that part of the law which courts are
established to administer; as opposed to adjective or remedial law,
which prescribes the method of enforcing rights or obtains redress
for their invasion.rer
As applied to criminal law, substantive law is that which
declares what acts are crimes and prescribes the punishment for
committing them, as distinguished from the procedural law which
provides or regulates the steps by which one who commits a crime
is to be punished.'e2
Having said that, however, the Court added:
The distinction between "remedy" and "substantive right" is
incapable of exact definition. The difference is somewhat a ques-
tion of degree.'e3 It is difficult to draw a line in any particular case
beyond which legislative power over remedy and procedure can
pass without touching upon the substantive rights of parties affect-
ed, as it is impossible to fix that boundary by general condition.rea
This being so, it is inevitable that the Supreme Court in making
rules should step on substantive rights, and the Constitution must
be presumed to tolerate if not to expect such incursion as does not
affect the accused in a harsh and arbitrary manner or deprive him
of a defense, but operates only in a limited and substantial manner
to his disadvantage. For the Court's power is not merely to com-
pile, revise or codify the rules of procedure existing at the time of
the Constitution's approval. This power is "to promulgate rules
concerning pleading, practice, and procedure in all courts," which
,8"tr
I Phit. 640 ( 19413).
r'"/r/. at 649-650, (r.52. on roconsidcration (1949).
rqr16 ('..1. 27: 52 ('..1.S.. 1026.
r"r22 ('..1.S...19.
r"rl )cxtt'r v. lihrrrrrrtls. llt) lr.,,l(r7, lleirzcll v. ( )lrio, 2(t() tl.S. I 67
r"'rStrrte v l';rvclicI,.)7t) l'.. Ilo;1.
c
 l0O4 TFIE 1982 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
is a power to adopt general, complete and comprehensive rules
without regard to their source and discarding old ones.
Another attempt to clarify the matter was made in Fabian
Pssisyl6'.rss
[T]he test is whether the rule really regulates procedure, that
is the judicial process for enforcing rights and duties recognized
by substantive law and for justly administering remedy and redress
for a disregard or infraction of them.If the rule takes away a vested
right, it is not procedural.If the rule creates a right such as the right
to appeal, it may be classified as a substantive matter; but if it op_
erates as e meqns of implementing an existing right then the rule
deals merely with procedure."
The occasion for formulating the above test was the transfer of
pending cases involving a review of decisions of the office of the om-
budsman in administrative actions to the court of Appeals. The court
said that what was done was merely procedural "because it is not the
right to appeal of an aggrieved party which is affected by the law. The
righthas been preserved. only the procedure by which the appeal is to
be made or decided has been changed. The rationale for this is that no
litigant has a vested right in a particular remedy, which may be changed
by substitution without impairing vested rights, hence he can have none
in rules of procedure which relate to the remedy."'nu
In Abellana v. Judge Morave,tsT Justice Fernando said that the
right given by Article 33 of the civil code to bring a civil action for
damages separate and distinct from the criminal action is a "substantive
right" and hence sections I and2 of Rule 111 on independent civil ac-
tions should not be read too literally as to impair this substantive right.
Admission to the Bar is under the supervision of the court. Thus
in 2003, the court nullified the results of the exams on commercial
Law when it was discovered that the Bar questions had been leaked.'',
resG.R No. 129742,september 16, 1998, p. 22-23 (citing 32 Am. Jur. 2d, Federar praoice
and Procedure, 9505, p. 936; people v. Smith,205 p.2d 444).
t%ld.
re7c.R. 27760, May
2t), lt)74.
r"rllal Mirnt:r' No. 1222, lir.bl,rrrrry
4, :!004
Sec.5 Sec.5 ART. VIII - JUDICIAL DEPARTMENT
15. Congress and the Rules of Court.
Both the 1935 and the 1973 Constitutions provided that rules of
v. court promulgated by the Supreme Court may be "repealed, altered, or
supplemented" by the legislature.'en No similar provision appears in the
1987 Constitution. Are Rules of Court therefore beyond the reach of
Congress?
The original Committee Report contained a provision which said
that such rules could be repealed, altered, or supplemented by the legis-
lature only "with the advice and concurrence of the Supreme Court."200
This was a reflection of Commissioner Roberto Conception's strong
feeling that the legislature cannot know more about court dynamics
than the Supreme Court does.'o' Commissioner Rodrigo's reaction to
this was that it would be more honorable not to mention a grant of
power if the grant would be no grant at all. Rodrigo therefore was for
deleting the provision altogether.2o2 In the end, Commissioner Aquino
struck a compromise which omitted any mention of the power of the
legislature, but with the understanding that the silence of the text would
nevertheless be recognition of the inherent power of the Court to make
rules and of the equally inherent power of the legislature to legislate on
matters of court procedure. This, she argued, would be consonant with
the principle of checks and balances. That is how the matter was left.'o'
The end result of the debate therefore is that the matter stays as if the
1935 and 1973 provisions had been re-enacted. Hence,1935 and 1973
jurisprudence on the subject is not without relevance. However, in an
obiter dictum in the case of Echegaray v. The Secretary of Justicel*
Justice Puno said, but without discussion, that Congress no longer has
the power to amend Rules of Court.
The matter came up again in relation to Rule 67 of Court. This rule
says that entry into expropriated property may be made even before full
payment is made provided a deposit is made of an amount fixed by the
court. R.A. No. 8974, however, creates an exception in expropriation
cases involving public works and requires full payment before entry
rv'Article VIII, Section 13, 1935 Constitution; Article X, Section 5(5), 1973 Constitution.
U}I RECORD 433,
tt't
ll. irl 445 .
)"!
lbitl.
)tttltl. nl tlt)l 4tl')..
rrur(i.li. No. I 126()l,.lrrrrrrrrry l(), l(l()t).
4
 THE 1987 CONSTITUTION
Sec.5
OFTHE REPUBLIC OFTHE PHILIPPINES
in public works projects. In answering the question whether congress
may amend Rules of court, the court said that since expropriation in-
volves both procedural and substantive matters, the substantive aspect
is always subject to legislation.ros
The revisory authority given by the 1935 constitution to the leg-
islature over rules of pleading, practice and procedure and admission to
the practice of law was explained by the Supreme court2ffi in the case
involving the celebrated Bar Flunkers Act of 1953, or Republic Act No.
972. Section 1 of the bill read:
SECTION 1. Notwithstanding the provisions
of section
fourteen, Rule numbered one hundred twenty-seven of the Rules
of Court, any bar candidate who obtained a general average of
seventy percent in any bar examinations after July fourth, nine_
teen hundred and forty-six up to the August nineteen hundred and
fifty-one bar examinations; seventy-two percent in the nineteen
hundred and fifty-three bar examinations; seventy-three percent in
the nineteen hundred and fifty-four bar examinations; sevinty-four
percent in the nineteen hundred and fifty-five bar examinations
without a candidate obtaining a grade below fifty per cent in any
subject, shall be allowed to take and subscribe the corresponding
oath of office as member of the philippin eBar: provided, iowever,
That for the purpose of this Act, any exact one_half or more of a
fraction, shall be considered as one and included as part ofthe next
whole number.
The bill had for its object to admit to the Bar those candidates who
suffered from insufficiency of reading materials and inadequate prepa-
ration during the immediate postwar years. After the appioval of the
bill, many unsuccessful postwar candidates filed petitionJ for admission
to the bar invoking the Bar Flunkers Act. But was the Act valid?
In answering this question, the supreme court distinguished be-
tween the authority to promulgate rules concerning admission to the
practice of law and the actual admission to practice through the applica-
tion of these rules. The first is legislative or quasi-legislative una in it
the legislature had been given a revisory role subordinate to the role of
the Supreme court. The second
- application of the rules promulgates
r"5Rcpublic v. Gingoyon,
C.R. No. 16642S, Fcbruury 1,2fi)6
r'"'/rr rt Cunanan,94
Phil.534 (1954).
t
Sec.5 ART. VIII - JUDICIAL DEPARTMENT
is by tradition a judicial function and the legislature exercises no
-
revisory role. The Supreme Court said:207
In the judicial system from which ours has been evolved, the
admission, suspension, disbarment and reinstatement of attorneys
at law in the practice of the profession and their supervision have
been indisputably a judicial function and responsibility. Because
of this attribute, its continuous and zealous possession and exer-
cise by the judicial power have been demonstrated during more
than six centuries, which certainly "constitutes the most solid of
titles." Even considering the power granted to Congress by our
Constitution to repeal, alter and supplement the rules promulgated
by this Court regarding the admission to the practice of law, to our
judgment the proposition that the admission, suspension, disbar-
ment and reinstatement of attorneys at law is a legislative function,
properly belonging to Congress, is unacceptable. The function re-
quires (1) previously established rules and principles, (2) concrete
facts, whether past or present, affecting determinate individuals,
and (3) decision as to whether these facts are governed by the rules
and principles; in effect, ajudicial function of the highest degree.
And it becomes more indisputably judicial, and not legislative, if
previous judicial resolutions on the petitions of these same indi-
viduals are attempted to be revoked or modified.
And this was what the Bar Flunkers'Act attempted. Summarizing,
the Court concluded:2o*
Because it is, in effect, a judgment revoking the resolution
of this Court on the petitions of these 810 candidates, without hav-
ing examined their respective examination papers, and although
it is admitted that this Tribunal may reconsider said resolution at
any time for justifiable reasons, only this Court and no other may
revise and alter them. In attempting to do it directly Republic Act
No.972 violated the Constitution.
By the disputed law, Congress has exceeded its legislative
power to repeal, alter and supplement the rules on admission to
the Bar. Such additional or amendatory rules are, as they ought to
be, intended to regulate acts subsequent to its promulgation and
should tend to improve and elevate the practice of law, and this
)ttthl . trt 544-45
r('*/r/. ttl 5(r.i.
 1008 THE 1987 CONSTITUTION Sec.5
OF THE REPUBLIC oF THE PHILIPPINES Sec.5 ART. VIII - JUDICIAL DEPARTMENT

Tribunal shall consider these rules as minimum norms towards that

end in the admission, suspension, disbarment and reinstatement
of lawyers to the Bar, inasmuch as a good bar assists immensely
in the daily performance of judicial functions and is essential to
a worthy administration of justice. It is therefore the primary and
inherent prerogative of the Supreme court to render the urtimate
decision on who may be admitted and may continue in the practice
of law according to existing rules.
The authority of the court to regulate admission to the Bar and the
practice of law must be distinguished from the authority of congress
to regulate the behavior of public officers. The two can co-exist. Thus,
section 90 of the Local Government code of 1991 which prohibits
lawyers who are members of a local legislative body to practice-law was
upheld against the challenge that it was an infringement of the power
of the court to provide rules for pleading, practici, and procedure and
the practice of law. The law must be seen not as a rule on the practice
of
law but as a rule on the conduct of officials intended to prevent conflict
of interest.'z'e Moreover, even if it were a rule on the practice of law,
as already seen, it would be within the inherent legislative power
of
Congress to promulgate.
16. Integration of the Bar.
The specific authority given to the Supreme court to promulgate
rules governing the Integrated Bar renders academic all constitutional
arguments both against the authority of the supreme court to integrate
the Bar and against the concept of integration itself.z'o The supreme
court has explained the meaning and purpose of Bar integration j5us.r',
Integration of the philippine Bar means the official uni_
fication of the entire lawyer population of the philippines. This
requires members hip and, financ ial support (inreasonable amount)
of every attorney as conditions sine qua non to the practice of
law and the retention of his name in the Roll of Attorneys of the
Supreme Court.
mJavellana v. Department
of Interior and Local Government, G.R. No. r02549, August
to,1992.
2roThe arguments
are disposed of by the Supreme Court in In re Integration gf thc
llar.l
the Philippines,49 SCRA 22, 2't-33 (1973).
lttld' at25-27'quoting Report ol thc (irrnrrrissiorr
on ll:rr Intcgration, pp. 3--5, Ngvcrrhcr
.t0.1972.
A
The term "Bar" refers to the collectivity of all persons whose
names appear in the Roll of Attorneys. An Integrated Bar (or Uni-
fied Bar) perforce must include all lawyers.
Complete unification is not possible unless it is decreed by
an entity with power to do so: the State. Bar integration, therefore,
signifies the setting up by Government authority of a national or-
ganization of the legal profession based on the recognition of the
lawyer as an officer ofthe court.
Designed to improve the position of the Bar as an instrumen-
tality of justice and the Rule of Law, integration fosters cohesion
among lawyers, and ensures, through their own organized action
and participation, the promotion of the objectives of the legal pro-
, fession, pursuant to the principle of maximum Bar autonomy with
minimum supervision and regulation by the Supreme Court.
The purposes of an integrated Bar, in general, are:
(1) Assist in the administration of justice;
r
(2) Foster and maintain on the part of its members high
ideals of integrity, learning, professional competence, public ser-
vice and conduct;
(3) Safeguard the professional interests of its members;
(4) Cultivate among its members a spirit of cordiality and
brotherhood;
(5) Provide a forum for the discussion of law, jurispru-
dence, law reform, pleading, practice and procedure, and the rela-
r
tions of the Bar to the Bench and to the public, and publish infor-
mation relating thereto;
(6) Encourage and foster legal education;
(7) Promote a continuing program of legal research in
substantive and adjective law, and make reports and recommenda-
tions thereon; and
(8) Enable the Bar to discharge its public responsibility
effectively.
Integration of the Bar will, among other things, make it pos-
sible for the legal profession to:
(l) Render more effective assistance in maintaining the
Rulc of Law;
(2) l)rotccl lawycrs antl litigtnts against thc ahuscs tll'ty-
ritnnicitl jtulgcs ittttl prosccttlittg ol'lice:rs;
 IOIO THE 198? CONSTITUTION
Sec.5
OF THE REPUBLIC OF THE PHILIPPINES
(3) Discharge, fully and properly, its responsibility in the
disciplining and/or removal of incompetent and unworthy judges
and prosecuting officers;
(4) Shield the judiciary, which traditionally cannot defend
itself except within its own forum, from the urtuult, that politics
and self-interest may level at it, and assist it to maintain its
integ-
rity, impartiality and independence;
(5)
Have an effective voice in the selection of judges and
prosecuting officers;
(6) Prevent the unauthorized practice oflaw, and break up
any monopoly of local practice maintained through influence oi
position;
(7) Establish welfare funds for families of disabled and
deceased lawyers;
(8) Provide placement services, and establish legal aid of_
fices and set up lawyer reference services throughout the country
so that the poor may not lack competent legal service;
(9) Distribute educationar and informational material that
are difficult to obtain in many of our provinces;
(10) Devise and maintain a program of continuing legal
education for practicing attomeys in order to elevate the stanaaras
of the profession throughout the country;
(ll) Enforce rigid ethical standards, and promulgate mini_
mum fees schedules;
(12) Create law centers and establish law libraries for legal
research;
(13) Conduct campaigns to educate the people on their le_
gal rights and obligations, on the importance of pieventive
legal
advice, and on the functions and duties of the Filipino lawyer;
id
(14) Generate and maintain pervasive and meaningful
country-wide involvement of the lawyer population in the soluiion
of the multifarious problems that afflict the nation.
ln In re Atty. Marcial Edillon,ztz while the petitioner conceded the
propriety and necessity of bar integration, he nonetheless objected
to
particular features of the rules of integration. He particularly objected
to
2r'?tl4
S(IRA,554 (August 3, l<)78)
A
Sec.5 ART. VIII _ JUDICIAL DEPARTMENT l01l
the requirement of membership in the Integrated Bar as a pre-condition
for the practice of law. This gave the Court the opportunity to ventilate
some basic notions underlying bar integration. The Court said that it "is
essentially a process by which every member of the Bar is afforded an
opportunity to do his share in carrying out the objectives of the Bar as
well as obliged to bear his portion of its responsibilities.'2'' Integration
rests on an important principle:''o "The practice of law is not a vested
right but a privilege, a privilege moreover clothed with public inter-
est because a lawyer owes substantial duties not only to his client, but
also to his brethren in the profession, to the courts, and to the nation,
and takes part in one of the most important functions of the State -
the administration of justice as an officer of the court.o' The Court
-
concluded:2r5
Thus, when the respondent Edillon entered upon the legal
profession, his practice of law and his exercise of the said profes-
sion, which affect the society at large, were (and are) subject to the
power of the body politic to require him to conform to such regu-
lations as might be established by the proper authorities for the
common good, even to the extent of interfering with some of his
liberties. If he did not wish to submit himself to such reasonable
interference and regulation, he should not haYe clothed the public
with an interest in his concerns.
The Court also added:2'6
Bar integration does not compel the lawyer to associate with
anyone. He is free to attend or not attend the meetings of his Inte-
grated Bar Chapter or vote or refuse to vote in its elections as he
chooses. The only compulsion to which he is subjected is the pay-
ment of annual dues. The Supreme Court, in order to further the
State's legitimate interest in elevating the quality of professional
legal services, may require that the cost of improving the profes-
sion in this fashion be shared by the subjects and beneficiaries of
the regulatory program the lawyers.
-
Assuming that the questioned provision does in a sense com-
pel a lawyer to be a member of the Integrated Bar, such compul-
sion is justified as an exercise of the police power of the State.
lttltl.. tt
562.
']raftl. ut 562-3.
rrr/r/. nt 565.
rrn//. tl 5(r(r.
 t012 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
17. Appointment of court officials and employees.
The authority of the Supreme court to appoint its own officials
and employees is another measure intended to safeguard the indepen-
dence of the judiciary. However, the court's appointing authority must
be exercised "in accordance with the Civil Service Law.,'
It
should also be recalled that courts may be given authority by
Congress "to appoint officers lower in yarrlr. .,,2n
Src. 6. Tne Supnnup Counr sHALL HAvE ADMTMsTRATTvE
SUPERVISION OVER ALL COURTS AND THE PERSONNEL THEREOF.
1. Administrative supervision of inferior courts.
Section 6, which first appeared in the 1973 Constitution, pro_
vides for administrative supervision by the Supreme court over all
lower courts and their personnel. It is a significant innovation towards
strengthening the independence of the judiciary. Hitherto, there was no
constitutional provision on the subject and administrative supervision
over the lower courts and their personnel was exercised by the sec-
retary of Justice, an executive officer. The situation was of doubtful
constitutionality and it occasioned some uncomfortable moments in ex-
ecutive-judicial relations.,rs The I 973 constitution transferred admin i s-
trative supervision to the supreme court and attempts in the 19g6 con-
stitutional commission to return it to the Department of Justice failed.,,,
The power of administrative supervision of the Supreme Courr
includes, according to section 11, "the power [sitting en banclto disci-
pline judges of lower courts, or order their dismissal by a vote of a ma-
jority of the Members who actually took part in the deliberations on tlrc
issues in the case and voted thereon."22' The exclusivity of this powcr is
jealously guarded by the court. rn Maceda v. vasquez, the court rulcrl
'?'TArticle VII, Section 16.
2r8,see
People v. Gutienez, 36 sCRA 106 (1970); Garcia v. Macaraig, 39
Osmefra v. Secretary ofJustice,4l SCRA 199 (1971).
,lel RECORD 456-458,
468_469, 494_495.
"0This provision was seen as more necessary forprotecting the inclepen6encc 6l tlc jrrrlr
ciary, "especially so at present [under the 1973 (bnstitutionl, whire to all intents urrtl
there is a fusion between the cxecutivc lnrl lt:gislllrvc hranchcs." Forlun v. l,absng. lit4 lit'ltA
607, 6l 5 (M:ry 27, l9tt I ).
ART. VM JUDICIAL DEPARTMENT
Sec. 6 Sec.6 -
that the Ombudsman may not investigate a judge independently of any
administrative action of the Supreme Court:22'
Article VIII, Section 6 of the 1987 Constitution exclusively
vests in the Supreme Court administrative supervision over all
courts and court personnel, from the Presiding Justice of the Court
of Appeals down to the lowest municipal trial court clerk. By vir-
tue of this power, it is only the Supreme Court that can oversee the
judges' and court personnel's compliance with all laws, and take
the proper administrative action against them if they commit any
violation thereof. No other branch of government may intrude into
this power, without running afoul of the doctrine of separation of
powers.
ln Judge Fuentes v. Office of the Ombudsman,222 the issue was
whether the Ombudsman may conduct an investigation of acts of a
judge in the exercise of his official functions alleged to be in violation
of the Anti-Graft and Comrpt Practices Act, in the absence of an admin-
istrative charge for the same acts before the Supreme Court. The ruling
reiterated Maceda:
Article VIII, Section 6 of the Constitution exclusively vests
in the Supreme Court administrative supervision over all courts
and court personnel, from the Presiding Justice ofthe Court ofAp-
peals to the lowest municipal trial court clerk.
Hence, it is the Supreme Court that is tasked to oversee the
judges and court personnel and take the proper administrative ac-
tion against them if they commit any violation of the laws of the
land. No other branch of government may intrude into this power,
without running afoul of the independence of the judiciary and the
doctrine of separation of powers.
Petitioner's questioned order directing the attachment of
government property and issuing a writ of execution were done in
relation to his office, well within his official functions. The order
may be erroneous or void for lack or excess of jurisdiction. How-
ever, whether or not such order of execution was valid under the
scRA 199 ( r97 r ),
given circumstances, must be inquired into in the course of the
judicial action only by the Supreme Court that is tasked to super-
Jlrrlxrrer,
rrrMocc(kr v. Vustlttcz, 22 I S('RA 464 ( l99l).
"r(;.1{. No. I 242()5, ( )r'tobcr' 21, 2(X) I.
1014 THE 1987 CONSTITUTION Scc.7
OF THE REPUBLIC OF THE PHILIPPINES Sec.7 ART. VIII - JUDICIAL DEPARTMENT 1015

vise the courts. "No other entity or official of the Government,

not the prosecution or investigation service of any other branch, HAVE BEEN FOR FIFTEEN YEARS OR MORE A JUDGE OF A LOWER COURT
not any functionary thereof, has competence to review a judicial oR ENcAGED rN THE pRAcTICE oF LAw rx rnr Pnu-ppINBs.
order or decision
- whether final and executory or not _ and
pronounce it erroneous so as to lay the basis for a criminal or
(2) TnB Coxcnnss sHALL pREscRIBE rHE eUALIFICATIoNS
ad- OF JUI)GES OF LOWER COI]RTS, BUT NO PERSON MAY BE APPOINTED
ministrative complaint for rendering an unjust judgment or order.
JUDGE TttDREoF UNLESs HE IS A cITIzEN oF THE Pnrlrpprxps lxo I
That prerogative belongs to the courts alone.,'
MEMBER oF rHE Pnrr,rpprxe Bnn.

The same ruling was reached in Judge Caoibes v. Ombudsman,,,. (3) A lmunrn oF rHE Junrcllnv MUSr BE A PERSoN oF
which involved two members of the judiciary who were entangled PROVEN COMPETENCE, INTEGRITY, PROBITY, AND INDEPENDENCE.
in a
fight within court premises over a piece of office furniture.
1. Qualifications of Members of the Judiciary.
Under Section 6, Article VIII of the Constitution, it is the
supreme court which is vested with exclusive administrative su- The Constitution prescribes distinct qualifications for Members
pervision over all courts and its personnel. prescinding from of the Supreme Court, for Members of collegiate courts lower than the
this
premise, the Ombudsman cannot determine for itself and Supreme Court, and for judges of single-member lower courts.
by itself
whether a criminal complaint against a judge, or court
involves an administrative matter. The ombudsman is outy "-iloy"", The qualiflcations of members of the Supreme Court are pre-
uouni
to have all cases against judges and court personnel filed before scribed by Section 7(1) and (3). They must be natural-born citizens of
it, referred to the Supreme Court for determination as to whether the Philippines, at least forty years of age, must have been for fifteen
an administrative aspect is involved therein. This rule should years or more a judge of a lower court or engaged in the practice of law
hold
true regardless of whether an administrative case based on the in the Philippines, and of proven competence, integrity, probity, and
act
subject of the complaint before the ombudsman is already pend-
independence. These may not be altered by Congress. The requirement
ing with the court. For, aside from the fact that the ombudsman
that they be natural-born citizens parallels the required qualifications
would not know of this matter unless he is informed of it, he should
give due respect for and recognition of the administrative author- for those of the President and of the members of Congress.224
ity of the Court, because in determining whether an administrative The requirement that members of the Supreme Court and lower
matter is involved, the Court passes upon not only administrative
collegiate courts must have been "engaged in the practice of law" for
liabilities but also other administrative concerns, as is clearly con-
a certain period has not been discussed in any decision. This require-
veyed in the case of Macedav.Vasquez.
ment, however, is also prescribed for the Chairman of the Commission
The Ombudsman cannot dictate to, and bind the Court, to its on Elections and received extensive ifnot very conclusive discussion in
findings that a case before it does or does not have administrative
Cayetano v. Monsod."'
implications. To do so is to deprive the Court of the exercise of
its administrative prerogatives and to arrogate unto itself a power The qualifications of members of collegiate courts lower than the
not constitutionally sanctioned. This is a dangerous policy which Supreme Court are scattered through the three paragraphs of Section 7.
impinges, as it does, on judicial independence. They must be natural-born citizens of the Philippines, a Member of the
Philippine Bar, of proven competence, integrity, probity, and indepen-
Ssc.7. (f) No pERSoN sHALL BE ApporNrED Mrnanrn o[ rH!]
dence, and possessing such other qualifications as may be prescribed
Supnntrn Counr oR ANy LowER coLLEGIATE couRT uNLEss rrE rs
A NATURAL.BORN CITIZEN OF THE PTTTITPPINNS. A NANITNNN OF 'TIIII by Congress.
Supnrprn Counr MUST BE AT LEAST FoRTy yEARs oF AGt ANt) Must.
,
rlrl Rl;({)Rl) 4tl4,4lJ6 4tt9. (irnrnrissiorrt'r'Rtxh igo's spiritetl tlclcrrsc li)r thc rotclrtion of
rr'(1.R. Nrr. l.l2l77.J;|ry lht: nrlc ol lltt'('ottuttissiott ott Aplxrittltttcnls lrtilt'tl.
19. 2(X)t
'r'2O l li('R A .' lo ( 9(r l ), rrrxk'r' Art r|[ l X,
1
(', Sceliorr I, rrliir.

.-4-
 l0l7
1016 THE 1987 CONSTITUTION Sec.8 Sec.8 ART. Vil - JTJDICIAL DEPARTMENT
OF THE REPUBLIC OF THE PHILIPPINES

The qualifications of judges of single-member courts are set down oF THE INrncn'lrno Ban' I
oFFICIoMnMnnns, A REPRESENTATIvE Counrt
in section 7(2) and (3).It should be noted that they can be either MsNrnBn oF THE Supnrlrs
natu- PRoFESSoR oF LAwt A RETIRED
ral-born or naturalized citizens. The intent of this provision is to OF THE PRIVATE SECTOR'
AND A REPRF-SENTATIVE
open SITALL BE
up courts lower than collegiate courts to naturalized citizens and the MEMBERs oF rHE Couxcr-
(2) TnB nn'cur-lR
tenor of the debate on this subject was that congress cannot require FoR A TERM oF rouR YEARS
wrn THE
that APPoTNTED BY THE PnrsrnnNr
judges of courts lower than collegiate courts be ox ApporNrwxrs' Or rHE MEMBERS
natural-bo- coNSENT oF THE ColrurssroN
"iiir"nr.,,u APPoINTEDT THE REPRESENTATTvE
lxrrcnATno oF rne
FrRsr
Qualifications of judges incrudes the duty of every prospective THE PRoFEssoR oF LAw FoR
Bm sn.lr-r, sERvE FoR FouR YEARST AND THE
appointee to the judiciary to apprise the appointing auttroriiy
oi TTTREE YEARsT TIrE RETIREu
JusrrcB FoR Two YEARS,
matter bearing on his fitness for judicial office, including ,o"h "n"ry ONE YEAR'
PRIYATE SECTOR FOR
REPRESENTATIVE OF THE
stances as may reflect on his integrity and probity. Thus, the "ir.u,n- sHALL BE rIrE
fact that a (3) THs CLEnr oF rIrE Supnnw Counr KEEP A RECoRD
prospective judge failed to disclose that he had been administratively AND sHALL
SBcnsrlnv Ex'oFFICIooF THE Councu-
charged and dismissed from the service for grave misconduct
by a for- OF ITS PROCEEDINGS.
mer President of the Philippines was used against him. It did noimatter Tnn Councrr' sHALL RECETvE
(4) Tun' nncuu'n MEMBERS oF
that he had resigned from office and that the administrative case
against BE DETERMINED BY THE
Supnnw Counr'
sucu EM0LUMENTS As MAY
him had become moot and 4ssdsrnis.z:r PRovIDE IN ITS ANNUAL BIJDGET THE
THn SurnrMs Counr sHALL
similarly, before one who is offered an appointment to the su- APPRoPRTATIoNS FoR rnn Councrr"
PRINCIPAL FUNCTIoN oF
preme court can accept it, he must correct the entry in his
birth certifi- Tnn CouNcn sHALL HAvE THE
(5)
cate saying that he is an alien.,28 This was the case of Justice RECoMMENDING APPoINTEES
To TrrE Juorcrlnv' Ir vrlv ExERcrsE
Gregory AS THE Supnpun Counr
u'lv
ong of the sandiganbayan who was offered an appointment to the Su- sucH orHER FUNCTIONs AND DUTIES
preme court. Eventually ong declined to accept the appointment ASSIGN TO IT.
but
he remained in the Sandiganbayan. But since a justice olihe
sandigan-
bayan must also be a natural born Filipin o citizen,his removal
from the 1. The Judicial and Bar Council'
sandiganbayan was sought by a private individuar who had no claim by the 1986 Consti*t:"-1?t
A significant innovation introduced
to the office. The court, however, ruled that a quo waranra proceeding of tn" Judicial and larlouliit -Tllll""t
Commission i, tt'"
may be commenced only by the solicitor General or a public prosecu- ""utbn to the President appointees
pal function of tfre Corincif i'
to
tor, as the case may be, or by any person claiming to be entitled '""o'ntend
to the totheJudiciury.nrotu-ongthenomineesthePresidentappointsjudg-
public office or position usurped or unlawfully held or exercised by a commission on Appointments'
by es without need for lawyers
4pp1fu91.zze to the suggestion of "practicing
"onnrrriution
This innovation is a response judges had to be
upon the ground that in it'"
pu" [when appointment of
Snc. 8. (1) A JuucHr, .q,ND Bln Couxcrr, rs HEREBy cREATED Appointmentsl judges had to
kowtow
confirmed by the Co-,ni"On
on
at least to
body to get an appointment or
T'NDERTHE SUPERVISION OF THE SUPNNUP COUNT COMFOSED OF
rnr Cnrrr Jusrtcn AS EX-oFFrcro Cxamttlu, rnn Srcnrr,lny to members of the legislative and
on the ludiciary in Congress
or Jusrtct, AND A REIREsENTATIvE oF rnn Coxcnnss As rx- see the Chairman ofii" Co-mittee idea is
of their appointment' The
request support fo' tt'" "onnrmation politics'"".
ir-p".ritr" the influence of partisan
to forestall u, ,rru"h a very
t'o*"n"'' under the new rule has not been
2261d.
at 513-518.
In re IBC v. Judge euitain, JBC No.
2-27
0 I 3, August ZZ, 2OO7 .
Current experience,
228Kilosbayanv.Ermita,c.R.No.
rTTT2I,Juryr,zooz.rnirwasthecaseof Jusricecrcp. happY one.
ory ong of the Sandiganbayanwho was being promoted to the supreme
court. ontr, howcver,
remains in thc Sandiganbayan.
rl''Iirpleio v. .tusticc Ong, cr/(/. itl l/
G.R. No. I 7()ll()5, l X.ccrnbcr I ll, 2(X)ll. '
,1

.',.j
 1018 THE 1987 CONSTITUTION Sec.9 Sec. 10 ART. VIII - JUDICIAL DEPARTMENT 1019
OFTHE REPUBLIC OFTHE PHILIPPINES

The council functions under the supervision of the Supreme
court with the clerk of the supreme court as ex-fficio Secretary. The
council is composed of three ex-fficio members (the chief Justice, as
ex-fficio chairman, the Secretary of Justice, and a representative of
congress) and four regurar members. The regular
-"-b"r, are a rep-
resentative of the Integrated Bar, a professor of raw, a retired
Member
of the Supreme court, and a representative of the private sector. The
regular members are appointed by the president for a term of
four years
with the consent of the commission on Appointments. The four year
term allows for the staggering of appointments for purposes of continu-
ity."' The requirement that the regular members be appointed with the
consent of the commission on Appointments allows a political
check
on the President's appointing authority which otherwisi would be
the
sole political influence on judicial appointments.,3,
least three names. The President may not appoint anybody who is not in
the list. If the President is not satisfied with the names in the list, he may
ask for another list.233 But once the appointment is issued by the Presi-
dent and accepted by the nominee, it needs no further confirmation. For
the lower courts, the President is given ninety days from submission of
the list within which to issue the appointment.
It should be noted that what the Constitution authorizes the Presi-
dent to do is to appoint Justices and judges and not the authority merely
to designate a non-member of the Supreme Court temporarily to sit as
Justice of the Supreme Court. As the Supreme Court said in Vargas v.
Rilloraza:23a "There can be no doubt that the Chief Justice andAssociate
Justices required by Section 4 of Article VIII of the [1935] Constitu-
tion to compose the Supreme Court are regular members of the Court

when the provision on composition of the Judiciar and Bar coun- - indeed, a 'temporary member' thereof would be a misnomer, imply-
ing a position not contemplated by the Constitution." For this reason
cil was approved, the assumption was that the legislature would be a the Supreme Court invalidated Section 14 of the People's Court Act
unicameral body. Hence, only one member of such body was placed
in which authorized the President to designate any Judge of First Instance,
the council. whence then should the legislative membei
fro,n Judge-at-large of First Instance or Cadastral Judge temporarily to act
"o-" - found
the senate or from the House of Representatives? The solution
as member of the Supreme Court. "We find absolutely nothing in the
for this question as practiced now is that a member each comes from
context which may soundly be construed as authorizing, merely by leg-
both Houses but they each have only half a vote.
islation, any change in the constitutional composition of the Supreme
Court, or the performance of its functions by any but its constitutional
Snc. 9. Tnn Mrlrnpns oF THE Supnrvm Counr AND JuDGES
members."235
oF LowER couRTs SHALL BE ApporNTED By rHE pnpsrorNr FRoM
A
Lrsr oF AT LEAsr rHREE NoMTNEES IRErARED By rHE
nm Juorcrar, Sec. 10. Tnn s.c.I-lnv oF THE Crnnr JusrrcE AND oF THE
B.ln CouNcrL FoR EvERy vACANcy. SucH lpporNTMENTs NEED No
CONFIRMATION.
Assocllrn Jusrrcns oF TrrE Supnenan Count, AND oF JUDGEs or
LowER couRTS SHALL BE FDGD By r,lw. DunrNc rHEIR CONTINUANCE
Fon tttl LowER couRTs, rrtr pnnsronNT sHALL rssuE THE IN OFFICE, THEIR SALARY SHALL NOT BE DECREASED.
APPOINTMENTS WITHIN NINETY DAYS FROM THE SUBMISSION
OF THE
LIST.
1. Diminution of salary.
1. Appointment ofjustices and judges. The prohibition of the diminution of the salary of Justices and
judges during their continuance in office is intended as a protection
As already pointed out, the principal function of the Judiciar and
Bar council is to form a list of nominees to the judiciary out
of which rll
the President chooses appointees as Justices andjudges. For RECORD 444-445.
every vu- r,480 Phil. 297,321 (t948).
cancy the Judicial and Bar Council submits to the president 2t5ld. trt 122. 'l'hc Court was divided on the continuing validity of the act of the United
a list ol.nt
Statcs ( 'orrgrcss tlatcd Iicbruary 6, I 905, which authorized the Governor General to designate tem-
porirry jrrrlgcs ol llre Suprcrrrc (\rurt in cuscs of "temporary disability . .. or vacancies occurring."
)'tld. at 44t4. Sorrc rnlinlirirrt.rl tlrc tontirlrintrl cllcctivity of thc pnrvision becauso ol'Aniclc XVl. Sectittn 2 of
I'r/r/. at 490-4t) I thc l() l5 ( irnstitrrti0|l.
 lo20 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
for the independence of the judiciary. Does this, however, prohibit the
imposition of a tax on the salary of Justices and judges.
Under the 1935 Constitution, the Supreme Court had held in per-
fecto v. Meer236 and Endencia v. Davi&37 that a tax on the salary was
a prohibited diminution. Because of this decision the 1973 Constitu-
tion, in Article XV, Section 6, provided that "No salary or any form of
emolument of any public officer or employee, including constitutional
officers, shall be exempt from payment of income tax." No similar pro-
vision appears in the 1987 Constitution. However, the records of the
Constitutional Commission reveal that the provision on the salary of
justices and judges was approved on the understanding that a provision
similar to that inthe 1973 constitution would be inserted or at least that
the doctrine in Perfecto and Endencn would no longer apply.r38 Thus,
in Nitafan, et al. v. Commissioner of Internal Revenue,23e the Supreme
court held that "the true intent of the framers of the 1987 constitution
... was to make the salaries of the members of the Judiciary taxable."
Src. 11. Tnr Mrunrns oF rHE Supnnun Counr
AND JTJDGEs
OF LOWER COURTS SHALL HOLD OFT'ICE DURING GOOD BEHAVIOR UNTIL
THEY REACH THE AGE OF SEVENTY YEARS OR BECOME INCAPACITATED
To DIScHARGE THE DIlrIEs oF THEIR oFFICE. Tnn Supnrun Counr
EN BANC SHALL HAVE THE POWER TO DISCPLINE JUDGES OF LOWER
couRTs, oR ORDER THEIR DISMISSAL By A VOTE OF A MAJORITY OF
rns MpMsnns wrro ACTUALLy rooK pART rN TrrE DELIBERATIoNs oN
THE ISSUES IN THE CASE AND VOTED THf,,REON.
1. Security of tenure in the judiciary.
Security of tenure is essential to an independent judiciary. Sec-
tion11 assures such security of tenure: "The Members of the Suprenrc
Court and judges of lower courts shall hold office during good behavior
until they reach the age of seventy years or become incapacitatetl to
discharge the duties of their 6ffiss."z+o
1685 Phil.552 (1950).
r?93 Phil.696 (1953).
I8I RECORD 504-506.
2reG.R. No.
78780, Juiy 23,1987.
2a(T'he
original 1973 Constitution lowcred thc rctirernent age fiom thc 1935 (i)nstituti()1'n
scvcnty years to sixty-livc.'lir tttkcr cttrc ol tlrc lrirnsitiorr lirrrrr the: old to thc ncw relircllcll ltgc
Atticlc XVll, Scctiorr l(1. lttrrvirlt'tl: "'l'hc itrttrrrlx'rrt Mt.rrrlx.rs ol thc.lrrrlicirrr.y rrriry t.orrtirrrrc 1r
ART. VIII - ruDICIAL DEPARTMENT
Since members of the Supreme Court are
removable only by
impeachment,24t they can be said to have failed to satisfy the require-
ment of "good behavior" only if they are guilty of the offenses which
are constitutional grounds for impeachment.2a2 The Constitution, how-
ever, does not say when judges of lower courts may be said to have
failed to satisfy the requirement of "good behavior." It is submitted that
the Supreme Court alone can determine this since the Supreme Court
alone can order their dismissal. The Supreme Court's power to deter-
mine what "good behavior" means is exclusive just as the power of
Congress to determine "disorderly behavior" of its members is exclu-
The Supreme Court's decision to dismiss him is reached en banc
sive.243
"by a vote of a majority of the Members who actually took part in the
deliberations on the issues in the case and voted thereon."
What about disciplinary action short of dismissal? As the text is
constructed, the requirement is that the Supreme Court sits en banc in
al disciplinary cases. People v. Gacott, Jr.,2aa ruled that a decision en
banc is needed only when the penalty to be imposed is dismissal of a
judge, disbarment of a lawyer, suspension of either for more than one
year, or a fine exceeding 10,000 pesos. In justifying this ruling, Justice
Regalado, with the approval of the Court, relied on his recollection of
a conversation with former Chief Justice Roberto Concepcion who was
the Chairman of the Committee on the Judiciary of the 1986 Constitu-
tional Commission of which Ragalado was also a member. Regalado
admitted that there were no records to support his recollection. He said,
however, that to require more would contravene the desire of the Con-
stitution for a speedy disposition of cases, which is one of the purposes
for allowing the Court to rule in divisions.
Incapacity to discharge the duties of their office is not defined
by the Constitution either. Neither does the Constitution specify who
should decide whether a judge or Justice has become incapacitated.
The power to determine incapacity is part of the overall administra-
office until they reach the age of seventy years, unless sooner replaced in accordance with the
precerling section hereof." This provision is discussed under Article XVII in Bpnr.ras, Pnrupnnn
('or,tsrt nrnoNtt. L,rw 826-828 ( 1984). A 1980 anrendment restored the seventy year retirement age.
rarArticlo Xl, Soction 2.
)illhid.
ta'AtliclcVl,Sct'liotrl((l); ()srrrcrit,.lr.v. l't'rxlltttrt, l(X)l'hil.lt6l(l()6O).
r'r'r(i.l{. No. Il(rO4(),.luly I t, l()()5
 1022 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
tive power which the Supreme court has over its members and over all
members of the judiciary. The practice in fact is for the Supreme court
to create a panel of doctors who can assist the supreme court in making
the proper decision.245
The power of the supreme Court to discipline judges of inferi-
or courts or to order their dismissal is exclusive. It may not be vested
in any other body. Nor may congress pass a law that judges of lower
courts are removable only by impeachment.246
security of tenure can sometimes be circumvented by indirection.
Abolition of office is one ploy for removing an otherwise irremovable
officer. undoubtedly, implicit in the authority of congress to create
courts and apportion their jurisdiction is also the authority to abolish
courts. Necessarily the abolition of a court results in the termination of
the tenure of whoever may be occupying the offices abolished. Aboli-
tion, however, in order to be valid must not be used as a ploy for cir-
cumventing the guarantee of security of tenure. The Supreme court, in
Zandueta v. De la Q6s1sztz and Ocampo v. Secretary of Justice
,2a8 applied
to abolition of courts the principle used relative to the abolition of civil
service positions. Abolition of office is valid when done in good faith
and not for political or personal reasons. In such a situation, properly
and logically speaking there is no removal from office because a re-
moval implies that the office exists after the ouster.
This same principle was used by the court in De ra Lrana v. Alba24s
when it upheld the validity of Batas pambansa Bilang I2g,theJudicial
Reorganization Act of I 980. The Act mandated that Justices and judges
of inferior courts from the court of Appeals to municipal courts, Lxcept
the sandiganbayan and the court of rax Appeals, unless appointed to
inferior courts established by such act, would be considered separated
from the judiciary upon the completion of the reorganization. ihe act
had been passed in response to the crying need for reform of the judi-
ciary. The court said:". "Nothing is better settled in our law than that
2asCommissioner
Roberto Concepcion, former Chief Justice, explained the matter in I RE.
coRD 495-496
26See Article XI, Section 2.
z?66 Phil.6l5 (1938).
24850
o.c. t47 (t955).
4'q112
SCRA 294 (March t2,lg82).
zsold.
at 321 .
Sec. I I
Sec. I I ART. VIII _ JUDICIAL DEPARTMENT lo23
the abolition of office within the competence of a legitimate body if
done in good faith suffers from no infirmity."
The Ocampo case on which the Court principally relied was a
highly controversial decision. It involved Section 3 of Republic Act
1186 which abolished the positions of 18 judges-at-large and 15
cadastral judges. In magnitude therefore it could not compare with the
ReorganizationAct of 1980 which affected literally hundreds ofjudicial
positions and incumbent judges. But seven Justices (Pablo, Cesat
Bengzon, Montemayor, Jugo, Bautista, Roberto Concepcion, and J.B.L.
Reyes), one short ofthe required eight to declare a law unconstitutional,
voted against it. Only four of the eleven (Chief Justice Paras, Padilla,
Alex Reyes, and Labrador) voted to uphold the law. In De la Llana.
however, only Teehankee voted against the constitutionality of the Act.
Teehankee's dissent was anchored principally on two arguments:
(1) that the express guarantee of security of tenure in Section 7 of the
1973 Constitution (strengthened in the same Section by the exclusive
right of the Supreme Court to remove judges) should prevail over the
implied authority to abolish courts,2sr and (2) that the Reorganization
Act did not change the basic structure of the existing courts but in effect
merely changed their names.2s2
Chief Justice Fernando clearly had fears that the Reorganizatiort
Act could threaten the independence of the judiciary especially as, un-
der the 1973 Constitution, "the strongest ties bind the executive and
legislative departments."253 He himself had said earlier in Fortun v.
Labang,2sa that there was greater need "to preserve unimpaired the inde-
pendence of the judiciary, especially so [under the 1973 Constitutionl,
where to all intents and purposes, there [was] a fusion between the ex-
ecutive and legislative branches." But he chose not to dissent and in-
stead suggested that in the implementation of the reorganization,"as far
as incumbent Justices and judges are concerned, this Court be consulted
and that its view be accorded the fullest consideration."zss But other
Justices preferred to be consistent. As Justice Abad Santos succinctly
said: "It has already been ruled that the statute does not suffer from any
)rr/r/. at 3tlll-392.
t\ ll. al .lt)2 J.
r''/r/. rrl .12().
r! lO,l S( 'l{ A (r07, (r l 5 ( Mly 27 , l1)t't I )
r'1llJS('l{A:rl lll
 t024 THE 1987 CONSTITUTION
Sec. I
OF TFIE REPUBLIC OF THE PHILIPPINES
constitutional infirmity because the abolition of certain judicial offices
was done in good faith. This being the case,I believe thai the
Executive
is entitled to exercise its constitutional power to fill the newly created
judicial positions without any obligation to consult with
this court and
to accord its views the fullest consideration.,'256
But does the doctrine in de la Lrema still stand considering that
section 2 says: "No law shall be passed reorganizing the Judiciary
when it undermines the security of tenure of its Members?,' The
doc-
trine itself must still stand because de la Llana precisely says that
the
reorganization was done in a manner that did no violence to security
of
tenure. And, as pointed out in the comments on section 2, the
new pro-
vision is not an outright prohibition of any reorganization. However,
the
outcome of any similar litigation could be dift'erent because the l9g7
constitution now, as already seen, has a more liberal rule for declaring
laws unconstitutional.
ln Vargas v. Rilloraza,2si the Supreme Court also held that the
guarantee of security of tenure is a guarantee not just against ..actual
removal" but also of "unintemrpted continuity in tenure."258 The casc
arose out of Section 14 of the people's court Act, already discussed
above, which disqualified Justices of the Supreme court who had
held
any office or position under the Japanese sponsored philippine Execu-
tive commission or under the similarly Japanese sponsored philippirrc
Republic from sitting and voting in any case under Section 13 of thrr
Act in which the accused had also held any office or position under thc
Japanese sponsored governments. The question po*"d before the
crurr
was whether congress could create other grounds for disqualificati.rrs
in addition to already existing grounds.25e
At the time of the enactment of the people's court Act, the gr.unds
for disqualification of Justices of the supreme court were to be f:ountl
irr
Rule 126 of the old Rules of court. They had been taken fiom Scctiorrs
8 and 608 of the former code of civil procedure which by Arriclc
vlll.
section 13, of the 1935 constitution had been transfbrmed irrr, rulcs
of court. Hence, there could be no question of the continuing vulitlity
r\t'ld. 362.
^t 297
r"/80 l,hil.
( t94tt)
t'*/r/. :rl .l l.l.
''"/,/ ;rt ll I ""h rr, .lrrrlg' M;urzirrrr, l6(r S('RA ?46 ( l()tlll).
Secs. l2-13 ART. VIII - JUDICIAL DEPARTMENT
I
of these disqualifications.260 But as to the new disqualifications created
by the People's Court Act, the Supreme Court said that they could not
stand. "What matters here is not only that the Justice affected continue
to be a member of the Court and to enjoy the emoluments as well as to
exercise the other powers and fulfill the other duties of his office, but
that he be left unhampered to exercise all the powers and fulfill all the
responsibilities of said office in all cases properly coming before his
Court under the constitution, again without prejudice to proper cases of
disqualification under Rule 126. Any statute enacted by the legislature
which would impede him in this regard, in the words of this Court in 1n
re Guarifta, simply 'can not become law."'26r
Snc. 12. Tnn, NlnNlsnRs oF THE Supnnun Counr AND oF
OTHER COURTS ESTABLISHED BY LAW SHALL NOT BN DESIGNATED
TO ANY AGENCY PERFORMING QUASI.JUDICIAL OR ADMINISTRAI'TVE
FUNCTIONS.
1. Non-judicialassignrnents.
The provision merely makes explicit an application of the principle
of separation of powers. Thus, where a judge was designated member
of the Ilocos Norte Provincial Committee on Justice by the Provincial
Governor where the function of the Committee was to receive com-
plaints and make recommendations towards the speedy disposition of
cases of detainees, the designation was invalidated. The Court said that
the functions "[involved] the regulation and control over the conduct
and affairs of individuals for their own welfare and the promulgation of
rules and regulations to better carry out the policy of the legislature or
such as [were] devolved upon the administrative agency by the organic
law of its existence." The functions were deemed covered by the prohi-
bition under Section 12.zuz
Snc. 13. TnB coNcr-usroNs oF rnB SupnBuB Counr rN
ANY CASE SUBMITTED TO IT FOR DECISION EN BANC OR IN DIVISION
SIIAI,L RE REACHED IN CONSULTATION BEFORE THE CASE IS ASSIGNED
)'n'ltl . at 3l I -312.
)"1|il. at 314-15. Some of the Justices, however, were willing to concede that the rules
slxrrrltl lrc prrrnrrlgalctl htftrr thc cv(rnt happcns or litigation arises. "To promulgate them ufter,
wrxrkl errrlrlt' tlrc ( irrrgrt'ss in slxrcilic siltrirtions" to tlisqullily spccilic Judgcs "antl llrus dccisivcly
irrllrrt'rrtc tltt'rlt't isiorr, lirr rn ;rg:rirrsl or('l):rrly litig;rrrt." /r/. al lltl.
 1026 THE I98TCONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
To A MEMBER FoR THE WRITING oF THE OPINION oF THE CounT. A
CERTITICATION TO THIS EFFECT SIGNED BY THE CUMT
JUSTTCE SHALL
BE ISSUED AND A COPY THEREOF ATTACHED TO THE RECORD OF THE
CASE AND SERVED UPON THE PARTIES. AUY MBUNOR WHO TOOK
NO
PART' oR DISSENTEDT oR ABSTAINED FROM A DEcIsIoN oR
RESOLUTION
MUST STATE THE REASON THEREFOR. THE SAME REQUIREMENTS
SHALL
BE OBSERVED BY ALL LOWER COLLEGIATE COURTS.
1. Process of decision making.
At the time this provision was inserted in the 1935 constitution,
there was a widespread belief that many of the decisions of the Su-
p:".-" court were really the decisions of only one Justice. This pro-
vision obliges all Justices of the supreme court to study every case
to be decided en banc or by the division to which they belong.263 ..Its
purpose is to ensure the implementation of the constitutional iequire-
ment that decisions of the supreme court and lower collegiate courts,
such as the court ofAppeals, sandiganbayan and court ofiax Appeals,
are reached after consultation with the members of the court sitting
en
banc or in division before the case is assigned to a member thereof for
{eci s ion - wr iting." zce
The 1987 constitution has added: "A certification to this effect
shall be issued and a copy thereof attached to the record of the casc
and served upon the parties." what is the effect of the absence of ccr-
tification? It "would not necessarily mean that the case submitted frrr
decision had not been reached in consultation before being assigncd
to one member for the writing of the opinion of the court since thc
legular performance of duty is presumed.zes ffis lack of certificnti.rr
at the end of the decision would only serve as evidence of failurc r,
observe certification requirement and may be basis for holding thc ol'
ficial responsible for the omission to account therefor.266 Such ahsc,lrr.e
of certification would not have the effect of invalidating the dsgiril;sl.'.r,
This requirement applies also to intermediate appellate courr*.
The certification will be as to the fact of having had consultatirxr rurrl
26rl
Anucc<t, Tnt F'ntwut; ot. twr: pnutrnnt; CoNST-tr.ur-toN 510.
2sConsing v. Court ot'
Appclls, ( i.R . No. 711272, August 29, I 9tJ9
r('5Scc.
5(m) of Rulc l3l, Rrrlcs ol (lrrrrt.
r"'l R[.;('oRl) 4(,o
"'/('orrsirrg v.(irrrr.t ol Aplx.rrlr.(i l{. No.'lll?72,Arrgrrst 29, l9lt9
Sec. t3
Sec. 14 ART. VIII _ JUDICIAL DEPARTMENT
of having assigned the writing of the outcome of the consultation to a
Justice, although, in order to protect the independence of the Justice as-
signed, his name is not identified in the certification.268
The requirement that each dissenting Justice must state the rea-
sons for his dissent also ensures personal study by each Justice and at
the same time is a recognition of the fact that dissenting opinions some-
times eventually become the majority opinion.2u'In addition to requir-
ing the reason for dissents, the 1987 Constitution also requires justices
who took no part or abstained from a decision to give an explanation for
their inaction. And this is mandatory.27o This rule too applies to Justices
of intermediate collegiate courts.
Sec. 14. No nnctsroN sHALL BE RENDERED By ANy couRT
WITHOUT EXPRESSING THEREIN CLEARLY AND DISTINCTLY THE FACTS
AND THE LAW ON WHICH IT IS BASED.
No prrrrrox
FoR REvrEw oR MorroN FoR REcoNSTDERATIoN
OF A DECISION OF THE COURT SHALL BE REFUSED DUE COURSE OR
DENIED WITHOUT STATING THE LEGAL BASIS THEREFOR.
1. Contents of decisions of courts.
The first paragraph of this section refers to "decisions," that is, the
final determination made by a court of the substantive issues brought
for resolution. This happens after a case is given due course and af-
ter the filing of Briefs or Memoranda and all other pleadings. It does
not apply to a resolution refusing due course, which is treated in the
second paragraph, or to disposition of incidental matters.2?' As early as
Soncuya v. National Investment Co."2 and Bacolod Murcia Milling Co.
v. Henares,273 it was already established that the requirement of clear
statement of facts and of law had reference to a decision rendered after
previous presentation of proof in an ordinary civil or criminal case. As
Commissioner Roberto Concepcion said: "The Committee realizes that
681
RECORD 498-500; V RECORD 643-645.
26eI
Anueco at 510.
'ol RECORD at 501; V RECORD 642.
2TrNunan v. Commission on Audit, 169 SCRA 356,362 (1989); Borromeo v. Court of Ap-
pcals, (i.R. No. 82273, Junc I , 1990.
1169 Phil. fl)2 ( 194{)).
2t'107 l'hil.5fi) (lgf,O). A/so Mcrxkrzu v. (\xrrl rrf F'ilst lnsttrrcc,5l S('RA.l(rt) (Junc 27
l()-/ l): Aviln v. Aurlitor (icrrcnrl,.5lt S('RA'/ (July ltt. 1974).
T
 1028 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Sec. 14 ART.VIII - JUDICIALDEPARTMENT

there are some routine court matters in all courts of justice which do
not require a statement of reasons, like petitions for postponement or
extension of time and the like, in which case, minute resolutions should
be allowed to expedite the administration of justiss.'rz+
Court has overlooked such testimony or such item of evidence.282
At any rate, the legal presumptions are that official duty has been
regularly performed, and that all the matters within an issue in a
case were laid before the court and passed upon by it.283

The import of the first paragraph of this provision was explained

in Air France v. Carrasco{o thus.27s
A decision with absolutely nothing to support it is a nul_
lity. It is open to direct attack.276 The law, however, solely insists
that a decision state the "essential ultimate facts" upon r-hi"h th"
court's conclusion is drawn.277 A court of justice is not hidebound
to write in its decision every bit and piece of evidence2T8 presented
by one party and the other upon the issues raised. Neither is it to
be burdened with the obligation "to specify in the sentence the
facts" which a party "considered as provecl,,'2i, This is but a part
of the mental process from which the court draws the
"rr"ntiul
ultimate facts. A decision is not to be so clogged with details such
that prolixity, if not confusion, may resurt. So long as the decision
of the Court of Appears contains the necessary facts to warrant
its conclusions, it is no error for said court to withhold therefrom
"any specific finding of facts with respect to the evidence for the
defense." Because, as this Court well observed,..There is no law
that so requires."28. Indeed, "the mere failure to specify (in the de-
cision) the contentions ofthe appeilant and the reisons for refusing
to believe them is not sufficient to hold the same contrary to the
requirements of the provisions of law and the constitution.', It is
in this setting that in Manique, it was held that the mere fact that
finding "were based entirely on the evidence for the prosecution
without taking into consideration or even mentioning the appel_
l.nt's side in the controversy as shown by his own testimony,,,
w.uld not vitiate the judgment.2sr If the court did not recite in ihe
dcc'ision the testimony of each witness for, or each item of evi-
dencc presented by, the defeated party, it does not mean that the
Moreover, in Vda. de Espiritu v. Court of First Instance,2sa the
Supreme Court said that there is substantial compliance with this provi-
sion when an order adopts by reference the reasons alleged in the mo-
tion to dismiss if they already include the facts and the law in support of
the order. The Court also added, however, that "mere general reference
should be avoided, since anyway it would not be difficult to quote tex-
tually the subject of the reference."2ss
But the rule remains that the constitutional mandate saying that
"no decision shall be rendered by any court without expressing therein
clearly and distinctly the facts and the law on which it is based," does
not preclude the validity of "memorandum decisions," which adopt
by reference the findings of fact and conclusions of law contained in
the decisions of inferior tribunals. This rule has been justified on the
grounds of expediency, practicality, convenience and the crowded sta-
tus of court dockets.286
The rule on contents of decision is applicable to all courts .287 Fail-
ure of a lower court judge to follow it would subject him to disciplinary
action and failure of a member of the Supreme Court would subject him
to impeachment.288It has been held, however, that a military commission
is not a court within the meaning of the provision; hence, the fact that a
proceeding in a military commission terminates simply with a guilty or
not guilty verdict is not a violation. Moreover, the Court said'28e "It may
be stated further that the records of the proceedings are available to the
reviewing authorities. Hence any imputation of arbitrariness sought to
be avoided by the above provision would not be warranted." Likewise,

-4ffiir,SCRA 27518
2?6Edwards
+qz-+qs.
t5.5, 157_8 (1966).
28zBadger, et al. v.
Boyd, 65 S.W. (2d), pp. 601-610.
28rSection 5, (m) and (o) Rule 131, Rules of Court.
v. Mccoy, 22 phir. 59g; 601; yangco v. court of First Instance of Manir.,
.--
al.,29
cr ,E447 SCRA 354,367 (1972).
Phil. 183, t9t. 285[d.
277Bragav.
Millora, 3 phil. 45g, 465. 2N6Solid
218Jd. Homes v. l-aserna, G.R. No. 16605 I , April 8, 2008.
z?eAringo v.
Iti()riginally the rule applied only to courts of record. But Republic Act No. 6031, ap-
Arena, I 4 phll. 263 ; 266 (italics suppl ied ).
28oReyes prrvcrl orr Arrgust I, l9(r9, convcrted all city and nrunicipal coufls into courts of record. Teehan-
v. People, 71 phil. 599, 600.
28rPeople I kr:t:, ./. cortctttting itr Vallc v. .ltulgc lisrqttcrra, Arlm. No. 6O-MJ, May 2'l , 197 4.
v. Manique, 35 o.G. No. 94, pp. r6tt2, r6x |, r'rrrr1; scr.rrorr r il
('ivil.. ,
-..
l)rocedure and Section I 2, Art. VIll, (irnstituti()n lr) l5l, ,vtyrrr.
1r rhc ( ixrc .r r88l Rl('( )l{l ) ,l()lt.
I
'*"llrrsr';ryrrrt v lirrrile, l0.t S('RA /. l() ,tO (.liuruirry 15, l9tJl).
 1030 THE 1987 CONSTITUTION Sec. 15
Sec. 15 ART.VIII - JUDICIALDEPARTMENT 1031
OF THE REPUBLIC OF THE PHILTPPINES

it
has been held that the commission on Elections, not being a
court,
(4) Dnsrnr rHE ExprRATroN oF THE AppLTcABLE MANDAToRv
does not come under the provision.2eo PERIOD, THE COURT, WITHOUT PREJUDICE TO SUCH RESPONSIBILITY
AS MAY HAVE BEEN INCURRED IN CONSEQUENCE THEREOF, SHALL

2- Petitions for review and motions for reconsideration. DECIDE OR RESOLVE THE CASE OR MATTER SUBMITTED THERETO FOR
DETERMINATION, WITHOUT FURTHER DELAY.
The second paragraph deals with the manner of disposing of peti-
tions for review and of motions for reconsideration. For theselthe
rule 1. Period for making decisions.
does not require a statement of facts and an accompanying reasoning
The basic rule setting down within what period decisions must
out of the applicable law but merely a statement of th" ..i"gal basis',
for be rendered is found in the first paragraph of Section 15: twenty-four
denying due course. As the supreme court has noted: "Tlie practice
of months for the Supreme Court, and, "unless reduced by the Supreme
the supreme court in disposing of petitions for review by iismissing
Court," twelve months for lower collegiate courts and three months for
them for lack of merit in minute resolutions is a practice that has
been all other lower courts. The period begins to toll "from date of submis-
patterned after the United states Supreme court wherein petitions
for sion," which means, according to the second paragraph, "upon the fil-
review are often merely ordered 'dismissed'; it has helpedihe court
in ing of the last pleading, brief, or memorandum required by the Rules
alleviating its heavy 6lsske1.":0, The need to state the legal basis arises
of Court or by the Court itself."2e3 For the purpose of this provision,
from the fact that a denial of review or reconsideration, unlike minute
the Sandiganbayan, being a trial court, has the same period for making
resolutions resolving incidental matters, "affects the subject matter
of decisions as other trial courts three months.2e4
-
the merits of the case."2e2
The respective periods are mandatory2es and failure to comply can
Snc. 15. (1) fu,1 cAsES oR MATTERS FrLED AFrER rHE subject a Supreme Court Justice to impeachment for culpable violation
EFFECTryITY OF TIIIS COXSTTTUTTON MUST BE DECIDED OR of the Constitution and a lower court justice or judge to disciplinary
RESOLVED
WITHIN TWENTY.FOUR MONTHS FROM DATE OF SUBMISSION FOR action.2e6 But the provision is prospective, that is, it applies only to cases
THE
Supnnup Count, AND, uNLEss REDUCED By rHE Surnrlm Counr, filed after the effectivity of this Constitution.2e'
TWELVE MONTHS FOR ALL LOWER COLLEGIATE COURTS,
AND THREE To facilitate determination whether the prescribed period has been
MONTHS FOR, ALL OTHER LOWER COURTS.
complied with, the third paragraph requires certification to that effect
@ A c.lsr oR MATTER sHALL BE DEEMED suBMrrrED r.oR from the Chief Justice or from the presiding judge.'on The certification
DECISION O*
RESOLUTION TJPON THE FILING OF THE LAST PLEADIN(;T is attached to the record of the case and is served upon the parties with
BRTEF, oR MEMoRANDUM REer.rrRED By rHE Rur,ns
or Counr on By an explanation for the failure, if failure there was. The fourth paragraph
THE COURT ITSELF.
moreover adds that failure to decide the case within the reglamentary
(3) Urox rsr ExprRATroN oF THE coRRESpoNDTNG pERroD, period does not decide the case either way.'nn These rules found in para-
A CERTTFICATToN To rlrrs EFFEcT srcNED By rHE Cnrnr Jusrrcl: graph (3) and (4) also apply to cases filed before the ratification of this
OR THE PRESIDING JUDGE SHALL FORTHWITH BE ISSUED AND Constitution if the applicable period lapses after the ratification.
A COPY
THEREOF ATTACHED TO THE RECORD OF THE CASE
OR MATTER, ANI)
SERvED upoN THE pARTIEs. Tne cnnrrrrcATloN SHALL
srATE wHy A 2elSee
DECISION OR RESOLUTION HAS NOT BEEN RENDERED OR ISSUED id. at 5O8.
WI,TIIIN 2')aRe.' Problem of Delays in Cases before the Sandiganbayan, A.M. No. 00-8-05-SC, No-
SAID PERIOD.
vembcr 28, 200 I .
?')5ltl
. at 441 .453
r""/r/. at 506..Sae lJentulan v. Dumatol,233 SCRA 168 (1994); Bongcaron v. Eisma,237
2q)Mangca v. s('RA 7e3 ( te94).
COMELEC, l!2 SCRA 2jf ,27j (February 25,lgBZ\.
2')rComrnercial r"//r/. al 455 45(r.
tJnion Asstrrttncc (ixrrplny v. l,cpanto (]onsolitlatctl. 116 s(.Rn /9, Hll
(()clobcr 30, l97tt). ',t r"*/r/.:rt.l(r{).
rerl RIi('oRl) 497 -498. ''''v Rli('( )lll) 6.17.
 to32 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
There is now a growing number of cases where the Court has
disciplined judges of lower courts for their failure to comply with the
prescribed deadlines. The code of Judicial conduct requires judges to
decide cases and matters pending before them within the period fixed
by law. Their failure to do so is considered gross inefficiency and war-
rants administrative sanctions. A heavy case load and a poor health may
partially excuse such lapses, but only if the judges concerned request
reasonable extensions.3m
It should be emphasized that even when there is delay and no de-
cision or resolution is made within the prescribed period, there is no
automatic affirmance of the appealed decision. This is different from
the rule under Article X, section 11(2) of the 1973 constitution which
said that, in case of delay, the decision appealed from was deemed af-
fiImed.3o'
2. Period for decisions under the 1973 Constitution.
The 1973 Constitution, in Article X, Section 11, prescribed the
period within which decisions must be rendered and set down the effect
on the case should the court fail to arrive at a decision within the dead-
line. There was, however, no clear decision on whether the reglamen-
tary period for making the decision was mandatory or discretionary. As
far as its applicability to the Supreme Court was concerned, opposing
views on the matter were expressed by Justices Castro and Aquino in
Malacora v. Court of Appeals)02 Castro considered the rule mandatory
and thus bewailed the fact that the supreme court had not made use of
the provision, while Aquino considered it directory and impossible of
application because of the crowded court docket. Moreover, in Corpus
v. Court of Appeals, a judge was declared in contempt for presuming
to apply Section ll(2) by issuing a writ of execution for a case pentl-
ing before the Supreme court without awaiting the court's certification
and authoritative interpretation of the meaning of the provision.',,, ln
Flora v. Pajarillaga,3s however, the Court said that, in the spirit of'Scc-
tion ll(2), "should there be any uncertainty in the mind of the Court
"xr(irurt Adminish'at()r v. Quifitnola. A.M. No. MTJ-99- I 2I6. ()ctobcr 20. I999
"'rSt'shrt'rio v. ('A, ( i.lt. No. l(rl i(X), April 16,2(X)tl.
rrr'(i.R. Nrt. 51O42.
Scptcrrrhcl lO, lt)ll.).
f't()tl li('Rn 4)4.44,1(.lul(' lO.
l()ll0)
"!()5 S('RA l(X), l()1 l.llrrrurrv ,t.t. lgll{l).
Sec. I 5 ART, VIII JUDICIAL DEPARTMENT 1033
-
for more than eighteen months after an appeal is submitted to it for
decision, ... the decision of the trial court should be affirmed, without
even the need of reasoning out such affirmance, as an exception to the
general requirements of Section 9 ..." The Court was moved by the
additional motive that the appellee was a laborer fighting for his wages
and the case had been pending for fifteen years!
With respect to lower courts, however, the Supreme Court seemed
to look on the prescribed period as mandatory. Thus, the Court, after
ruling that the period "should be reckoned with [sic] from the date said
case is submitted for decision," took a judge to task for failing to act
within the prescribed period.'o'
In the face of this uncertainty and with no clear decision as to the
effect of failure to meet the mandatory period, the 1986 Constitutional
Commission decided to leave definitive decision on the matter to the
Supreme Court by providing in the Transitory Provisions thus:
Sec. 12. The Supreme Court shall, within one year after the
ratification of this Constitution, adopt a systematic plan to expe-
dite the decision or resolution of cases or matters pending in the
Supreme Court or the lower courts prior to the effectivity of this
Constitution. A similar plan shall be adopted for all special courts
and quasi-judicial bodies.
Sec. 13. The legal effect ofthe lapse, before the ratification
of this Constitution, of the applicable period for the decision or
resolution of the cases or matters submitted for adjudication by
the courts, shall be determined by the Supreme Court as soon as
practicable.
The 1987 Constitution, in Article XVIII, Section 12, also
asks the Supreme Court to find a way of dealing with the mountain
of backlog cases overtaken by this Constitution.
Sec. 16. The Supreme Court shall, within thirty days from
the opening of each regular session of the Congress, submit to the
President and the Congress an annual report on the operations and
activities of the Judiciary.
n''l,llwtlr v. Molclt, 9O S('RA 579, 5l{5 (Junc 19, 1979)
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES

3. Report to the President and to Congress.

Section 16 was substituted for a provision in the Committee
Report which would allow the Chief Justice to address Congress at the
opening of each regular session. The purpose of this provision is not to
subject the Court to the President and to Congress but simply to enable
AnrrclE IX
the judiciary to inform government about its needs.36
CoxsururroNar, CouMrssroNs

A. Common Provisions

SncrroN 1. TnB CoNsrrrurron.ll, CouurssroNs, wHrcu

sHALL BE INDEIENDENT, ARE THE CIvn Snnvlcr CouurssroN, THE
Coulrlssrou oN Er,rcrroNs, AND THE Con,rtrrrssroN or.t Aultr.

1. The Constitutional Commissions.

The Civil Service Commission, Commission on Audit, and the
Commission on Elections, perform key functions in the government.
The first is the personnel office of government, the second the auditing
office, and the third is charged with the administration of the all impor-
tant electoral process. In order to protect their integrity, they have been
made independent constitutional bodies.

The Commission on Civil Service was first made a constitutional

body by the 1973 Constitution. Under the 1935 Constitution both the
Commission on Elections and the Auditing Office were constitutional
bodies; but the Auditing Office was a one-man office. The 1973 Consti-
tution expanded the membership of these bodies. The 1987 provision is
based on the 1973 version.

l
SBc. 2. No Mnnrnnn op ConsururroNAl Coulrrssron
SHAI,L, DURING HIS TENURE, HOLD ANY OTHER OFFICE OR
RMPI,OYMENT. Nulunn SHALL HE ENGAGE IN THE PRAcTIcE oF ANY
PROF'ESSION OR IN THE ACTIVE MANAGEMENT OR CONTROL OF ANY
IIUSINESS WHICH IN ANY WAY MAY BE AFFECTED BY THE FUNCTIONS
()F HtS OFt'tCE, NOR SHALL HE BE FINANCIALLY INTERESTED, DIRECTLY
oR INDrRr,l(:Tr.y, rN ANy CONTRACT WITH, OR IN ANy FRANCHISE OR
PR|Vil.t,r(;r,r GRAN'r'r,)) BY ]'lltr (;OV|)RNMI]NT, ANY Ot' tTS SIJRD|VIS|ONS,

xbl RECORD .5 l0-5 I 2

I
 1036 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
AGENCIES, OR INSTRUMENTALITIES, INCLUDING GOVERNMENT.OWNED
OR CONTROLLED CORPORATIONS OR TIIEIR SUBSIDIARIES.
Src. 3.Tur saLARy oF THE CHATRMAN AND THE CoMMrssroNERs
SHALL BE FIXED BY LAW AND SIIALL NOT BE DECREASED DURING THEIR
TENURE.
Snc. 4. Tnr CoNsrrrurroNAr, CouurssroNs
THEIR OFFICIALS AND EMPI,OYEES IN ACCORDANCE WITH LAW.
1. Appointing power.
The Constitutional Commissions are offices specifically autho-
rized by the constitution to appoint their officials. This does not mean,
however, that appointments made by them are not subject to civil Ser-
vice Law and Rules. If this were the case, these independent bodies
would arrogate upon themselves a power that properly belongs to the
civil service commission. Had the intention of the framers of the con-
stitution been to isolate and grant full independence to constitutional
commissions in the matter of appointments, it would have so provided.
But that is not the case.1
Snc. 5. Tnn CouurssroN sHALL ENJoy FrscAL AUroNoMy.
Tuun lppnovgD ANNUAL AppRopRIATIoNs sHALL BE AUToMATICALLy
AND REGULARLY RELEASED.
1. Automatic release of funds.
The obligation of the Department of the Budget Department to
automatically release amounts appropriated for offices with fiscal au-
tonomy means that the DBM may not retain a portion of the amount nor
may it program release. The "no report, no release,' policy of the Com-
mission on Audit may not be validly enforced against offices vested
with fiscal autonomy for whom, according to the Constitution, appro-
priations must be automatically released.,
Snc. 6. Elcn Couurssron a,,g BANC MAy pRoMULGATE
RULES CONCERNING PLEADINGS AND PRACTICE BEFORE
ANy oF rrs oFFIcEs. Sucn nwns HowEvER SHALL Nor DIMINTsH,
TNCREASE, oR MoDIFy suBsrANTIvE RrcHTs.
'Ombudsman v. Civil Service Commission, C.R. No. l5t)g40,lrchrrurry 16, 2(X)5.
2civil Service Commission v. I)epartnrenr ol llurlgct, (i.R.
No. l5879l..luly .lll, ?(x)t;
Civil Service Commission v [)(-partrncnt ol llrrrlpct , ( i .R . N0. l 5ll7()
Secs. 3-6 Sec.6 ART. IX - CONSTITUTIONAL COMMISSIONS
Common Provisions
1. Independence of the Commissions.
Because these commissions perform vital functions of govern-
ment, it is essential that they be protected against outside influences
and political pressures. These protective measures are found in various
provisions.
sHALL ApporNT
Section 2 imposes on these Commissions a list of prohibitions
against engaging in activities which can distract them from their re-
sponsibilities or subject them to pressures and temptations. The clause
which says that a Commissioner shall not "engage in the practice of
any profession or in the active management or control of any business
which in any way may be affected by the functions of his office" was
the subject of prolonged discussion. It was made clear that "practice
of a profession," at least for the purpose of this prohibition, does not
include teaching. Thus, a lawyer who teaches law does not thereby, for
the purpose of this provision, violate the prohibition of practice of a
profession.' The prohibition of "active management" of a business does
not prohibit a Commissioner from owning a business but it prohibits
him from being a managing officer or a member of the governing board
of a business "which in any way may be affected by the functions of his
office," a qualifying phrase which does not apply to the prohibition of
practice of a profession.a The prohibition of financial interest in govern-
ment contracts or franchises applies also to contracts with "subsidiar-
ies" of government corporations, that is, corporations formed not by
special law but by mother corporations through the general corporation
law.5
Section 3 protects their salary from diminution during their con-
tinuance in office.' Section 4 gives them independent powers of ap-
pointment but in accordance with law.
Section 5 gives them fiscal autonomy, that is, their approved an-
nual appropriations shall be automatically and regularly released and
rrs owN shall not be subject to pre-audit.'
IT OR BEFORE
rt RECORD 554-555, 558-559.
a
Id. aa 552-559.
'/r,/. ut 559.
r"l'hc stalting salnry of Conrmissioners unrlcr this (irnstitution is fixcrl in Article XVIII
St:t't iort I 7. 'l'hc prolribiliorr is of tlintinution, nol of increasc.
l , lielrrr rl|l.y 10, ,1( X )6 /l ltli('()Rl) 56O 561:Articlc lX.l). Sr:r'liort 2( l).
s
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OF THE PHILIPPINES
Section 6 gives them authority, sitting en banc ,to promulgate rules
of procedure. In case of conflict between a rule of procedure promul-
gated by a Commission and a Rule of Court, the rule of the Commis-
sion should prevail if the proceeding is before a Commission; but if the
proceeding is before a court, the Rules of Court prevail.'The Supreme
Court has no power to disapprove Commission rules except through
the exercise of the power of 'Judicial review" when such Commission
rules violate the Constitution. These rules "shall not diminish, increase,
or modify substantive rights."o Neither may Congress assume power to
review the rules promulgated by the Commission for the implementa-
tion of The Overseas Absentee Voting Act of 2003 or of any law for that
matter.ro
It should also be noted that Section 5(5), Article VIII. of the Con-
stitution provides in part that "[r]ules ofprocedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the
Supreme Court." If, however, the rules promulgated by a Commission
are inconsistent with a statute, the statute prevails."
Finally, the Commissioners are, given a fixed termr2 and are re-
movable only by impeachment.'3
Snc.7. E.c,cH CouurssroN sHALL DEcTDE By A MAJoRrry vorE
oF ALL rrs Mnnanrns ANy CASE oR MATTER BRoucHT BEFORE rr
WITHIN SIXTY DAYS FROM THE DATE OF ITS SUBMISSION FOR DECISION
oR RESoLUTIoN. A clsr oR MATTER Is DEEMED SuBMIT.TED FoR
DECISION OR RESOLUTION UPON THE FILING OF THE LAST PLEADING,
BRTEFToR MEMoRANDUMREeUTRED By rHE Rur,ss or rHs CoMMrssIoN
oR By rHE ComlrssroN rrsELF. UNLsss orHERwrsE pRovrDED By
rnrs ConsrrrurloN oR By LAw, ANy DEcrsIoN, oRDER, oR RULING
oF EAcH CouurssroN MAy BE BRoucHT To rHE Supnrlru Counr
ON CERTIORANI BY TIIE AGGRIEVED PARTY WITHIN THIRTY DAYS FROM
RECEIPT OF A COPY THEREOF.
EAruelo, Jr. v. Court ofAppeals,
October 20, 1993.
This limitive clause is discussed , supra,under Article VIII, Section 5(5).
roMacalintal v. COMELEC, G.R. No. 157013, July 10,2003
I rAntonio
v. COMELEC, G.R. No. I 35869, September 22, 1999.
r2Article IX, B, Section I (2); C, Scction I (2); C, Soction l(2).
rrArticlc XI, Scction 2.
Sec.7 Sec.7 ART. IX * CONSTITUTIONAL COMMISSIONS 1039
Common Provisions
1. Decisions of the Commissions.
Since the Commissions are collegial bodies, the decisions are
made by the body and not by individual members. No individual mem-
ber may make a decision for the Commission. Much less may cases be
decided by subordinates of the Commission.r4 Not even the Commis-
sion's legal counsel may make a decision for the Commission.'5
Decisions are reached by a majority vote of the Commission. A
majority vote suffices to establish a decision of a Commission and the
Commissions may not promulgate a rule which requires unanimity.
This applies whether a Commission is sitting en banc or in division.'6
(Article IX, B, Section 3 allows the Commission on Elections to make
decisions in divisions.) In the Commission on Elections, there is a full
Commission to form en banc if there are four Commissioners left. Thus,
where two Commissioners who participated in the consideration of the
case retired before the promulgation of the COMELEC decision, the
remaining four Commissioners constituted the total membership and
constituted a quorum. The vote of 3 would be a majority vote of all.t7
How many votes are needed for the Commission en banc to reach
a decision? Section 7 says: "Each Commission shall decide by a major-
ity vote of all its members any case or matter brought before it within
sixty days from the date of its submission for decision or resolution."
The provision is clear that it should be the majority vote of "all its mem-
bers" and not only of those who participated and took part in the delib-
erations.'s
A resolution or decision of the COMELEC is considered com-
plete and validly rendered or issued when there is concurrence by the
required majority of the Commissioners. There is nothing in the Con-
stitution nor in the COMELEC Rules of Procedure that requires the
submission of a dissenting opinion before a decision can be considered
validly rendered and complete.re
raMison v. Commission on Audit, G.R. No. 91429, July l3, 1990.
r5Orocio v. Commission on Audit, G.R. No.75959,August 31, 1992; Bustamante v. Com-
mission on Audit,2l6 SCRA 134 (1992).
l('('ua v. Conrmission on Elections, 1 56 SCRA 5tt2 (198'7).
rl)unrayas. Jr. v. ('OMl;.l.lr(1, (i.l{. Nos. l 4 l t)52-53, April 20, 2(n
r
l.
lnl,]strclla v. ('( )M I il.l i(', ( i.R. No. I 6(]465, M'dy 27, 2004.
r''lirn v. ('( )Mlil .li('. Nov<:rttbcr 2O. 2(X)6.
}&
 1040 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
There is no decision until the draft is signed and promulgated.
Hence, if a Commissioner signs a decision but retires before the de-
cision is promulgated, his vote does not count even if it was he who
penned the decision.ro
Section 7 sets down a mandatory period within which decisions of
the commissions must be reached. These are similar to those imposed
on the courts under Article VIII, Section 15. Thus, if a decision is not
reached within the reglamentary period, such failure does not affect the
merits of the case. The case must still be decided at the earliest time
possible.
In the case of the COMELEC, however, the Court had this to say:
"Considering the tribunal's manpower and logistic limitations, it is
sensible to treat the procedural requirements on deadlines realistically.
overly strict adherence to deadlines might induce the commission to
resolve election contests hurriedly by reason of lack of material time. In
our view this is not what the framers of the code had intended since a
very strict construction might allow procedural flaws to subvert the will
of the electorate and would amount to disenfranchisement of voters.2r
2. Review of decisions.
Decisions of the Commissions may be brought to the Supreme
Court on certiorari. This was clarified by Commissioner Regalado in
the following exchange:,,
FR. BERNAS. Just a few clarificatory questions, Madam
President. Section 5,line23 of the Common provision says: ., ...
any decision, order, or ruling of each Commission may be brought
to the Supreme Court on certiorari by the aggrieved party ... .,, Do
we mean by this that the only ground for bringing it to the Supreme
Court is grave abuse of discretion? I say this because the phrase
"may be brought to the Supreme Court" is exactly the same as the
phrase in the old Constitution, particularly in the provisions on
the Commission on Elections, and our Supreme Court has already
held:
'?0Ambil, Jr v. COMELEC, G.R. No. 143398, October 25,2C/JIO; Dumayas, Jr. v. (.()M-
ELEC, G.R. Nos. 141952-53,April 20,2001.
2rAlvarez v. COMELEC. G.R.
No. 142527, March 1.2(Dl.
r?l RIIC()RI) at 53tl-539.
Sec.7
Sec. 7 ART. IX - CONSTITUTIONAL COMMISSIONS
Common Provisions
We hold, therefore, that under this provision the cer-
tiorari jtisdiction of the Supreme Court over orders, rulings
and decisions of the COMELEC in this instance should be
confined to instances of grave abuse of discretion amounting
to patent and substantial denial of due process.
MR. FOZ. May we request Commissioner Regalado to re-
spond to the question?
MR. REGALADO. Yes, that case cited by Commissioner
Bernas was the wording of Justice Barredo with respect to the de-
cisions or orders of the COMELEC. But this provision here con-
templates a petition for review by certiorari under Rule XLV [sic.
Should be DUI of the Rules of Court that includes as grounds
grave abuse of discretion, lack ofjurisdiction and excess ofjuris-
diction.
FR. BERNAS. The decision I cited was precisely an inter-
pretation of the clause in the provisions on the COMELEC which
says: "Any decision, order, or ruling of the Commission may be
brought to the Supreme Court on certiorari..." In interpreting that
provision in the case of Aratuc, the Supreme Court said:
We hold, therefore, that under the existing constitu-
tional and statutory provisions, the certiorarljurisdiction of
the Court over orders, rulings and decisions of the COM-
ELEC is not as broad as it used to be and should be confined
to instances of grave abuse of discretion amounting to patent
and substantial denial ofdue process.
i
Does that express the sense of the Committee?
MR. REGALADO. That was the view of Justice Barredo in
the Aratuc case while he was the ponente, but I do not have the
citations at hand. In subsequent decisions wherein Chief Justice
Teehankee concurred, he believed that the mode of review on cer-
tiorari under Rule XLV [sic. Should be D(Vf is to be understood
as including acts of the Constitutional Commissions, without juris-
diction or acting in excess ofjurisdiction.
FR. BERNAS. This seems to me the same thing.If it is with-
out jurisdiction or in excess ofjurisdiction, there is grave abuse of
discretion.
MR. REGALADO. No, Commissioner. Grave abuse of dis-
crction rnty bc cquivalclrt kr luc:k <lf .jurisdicrtion, if it wls done in
l capricious ot' wltitttsic:ll ntilllltcr. llttl t:xccss rtl'.irrristlit'lion is l
A
 lo42 THE 1987 CONSTITT]TION
OFTHE REPUBLIC OFTTIE PHILIPPINES
little different, meaning, that the Supreme Court had jurisdiction
but it overstepped the bounds ofjurisdiction in the exercise there-
of. That is what Justice Teehankee also pointed out. Grave abuse of
discretion, I agree, results in lack ofjurisdiction, but excess ofju_
risdiction presupposes that the Court, while with jurisdiction, just
overstepped the permissible bounds in the exercise thereof.
FR. BERNAS. So, for purposes of the record now, what is
tle intention of the committee? what are the grounds for certio-
rari?
MR. REGALADO. The Committee which refers specifi_
cally to a technical term of review by certiorari would be rilying
on the provisions of Rule XLV [slc. Should be IXV] of the Rules
Court that laid down the three grounds.
That what is referred to is a special civil action for certiorari
under Rule 65, as ruled in Aratuc v. commission on Erections,23 and
not review under Rule 45 was affirmed under the l9g7 constitution in
Dario v. Mison.2a commissioner Regalado himself, this time as Justice
of the supreme court, said as much in his concurring opinion in Rivera
v- commission on Elections.2s Moreover, since the certiorari referred
to is that in Rule 65, $l which requires that a petitioner must first file
a motion for reconsideration, a case may be brought to the Supreme
court only after reconsideration. Rule 65, g 1 says that certiorari may be
resorted to when there is no other plain, speedy and adequate remedy.
But reconsideration is a speedy and adequate remedy. Thus, in excep-
tional circumstances, the supreme court may dispense with the need
for reconsideration.26
In the case of the commission on Elections, the prerequisite re-
consideration is by the GoMELEC en banc, sinceArticle IX, c, 3 says
that motions for reconsideration of decisions shail be decided by the
Commission en banc.2z
Prior to June I ,1995, decisions could be reviewed only by the
Supreme Court by certiorari underRule 65. Now, however, judgments
,r88 SCRA 251, 270 (1979).
24176 SCRA84, lll (1989).
5199 SCRA 178, 191 (1991).
26ln
ABS-GBN v. C1MELEC,323 scRA 6l l, the Supreme court dispensed with thc nccd
for reconsideration since elections were already very close and there was no more time lqr angthcr
speedy remedy. The case was about,.exit polls."
2'Reyes v. Rcgional
Trial Court, G.R. No. 10888(r, May 5, lr)r).5.
Sec.7 Sec. I ART. IX _ CONSTITUTIONALCOMMISSIONS IO43
The Civil Service Commission
or final orders of quasi-judicial agencies may be appealed to the Court
ofAppeals within fifteen days from notice thereof. The change is pursu-
ant to Section 7 which says "Unless otherwise provided by this Consti-
tution orby law. ..."'o
The certiorari jurisdiction of the Supreme Court, moreover, is
limited to decisions rendered in actions or proceedings taken cogni-
zance of by the Commissions in the exercise of their adjudicatory or
quasi-judicial powers. It does not refer to purely executive powers such
as those which relate to the COMELEC's appointing power.'?e Hence,
questions arising from the award of a contract for the construction of
of voting booths can be brought before a trial court.3o Similarly, actions
taken by the Commission on Elections as prosecutor come under the
jurisdiction of the trial court which has acquired jurisdiction over the
criminal case.3l
Src. 8. El,cH Col{MrssroN sHALL pERFoRM sucH orHER
FUNCTIONS AS MAY BE PROVIDED BY LAW.
B. The Civil Service Commission
Srcrrox 1. (1) TnB crvlr, sERvrcE sHALL BE ADMINIsTERED
By rHE Crvrr- Senvrcr CoivrurssroN coMposrD or e Cnarnunr
AND Two CotuutssroNnRs wHo SHALL BE NATURAL-BoRN cITIzENs
oF TIrE Pnrlrrprnns AND, AT THE TIME oF THEIR ArnoINTMENT, AT
LEAST THIRTY.FIVE YEARS OF AGE, WITH PROVEN CAPACITY FOR
PUBLIC ADMINISTRATION, AND MUST NOT HAVE BEEN CANDIDATES FOR
ANY ELECTIVE POSITION IN THE ELECTIONS IMMEDIATELY PRECEDING
THEIR APFOINTMENT.
(2) Tnr Cnumrnx ArvD rHE CouurssloNpns sHALL
BE ApFoTNTED By rHE PnnsrnnNr wITH THE coNsENT oF THE
Counarssron on ApporNruENTS FoR A TERM oF SEVEN yEARs
wITHour REAIroINTMENT. Or rHosE FrRST AppoINTED, THE
CHltnu,ltl sHALL HoLD oFFICE FoR sEvEN yEARs, l CouurssroNpn
roR FIvE yEARs, AND ANoTHER CounrsstoxnR FoR THREE yEARs,
2rRevised Administrative Circular No. l-95, June 1995, pursuant to R.A. No.7902; Mateo
v.Courtof Appeals,G.R.No. II3219,August 14, 19951 Mathay,Jr.v.CommissiononCivilSer-
vice, G.R. No. I 30214. August 9, 1999.
?"Crrces v. Court of Appctls, G.lt. No. 14795. July 17, 1996: Ambil, Jr. v. COMEI-IlC,
C.R. No. 143391t, Octobcr 2.5,2(XX).
{'[rilipirurs l,ingint'crirrp. & Mttlrirrc Shop v. l;cnt'r, 135 li('RA 25 (lrchnrlry ?lt, l()tt5).
'72,) ( l9(X)).
"l'cr4tlt' v. l)cl11urlo, It{() li('Rn 111,1l(l
 lO44 THE 1987 CONSTITUTION Sec.
OF THE REPUBLIC OF THE PHILIPPINES
WITHOUT REAPPOINTMENT.APPOINTMENT TO AITY VACANCY SHALL BE
ONLY FOR THE UNEXPIRED TERM OF THE PREDECESSOR. IX T.IO CIST
SHALL ANY MNUNNN BE APPOINTED OR DESIGNATED IN A TEMPORARY
OR ACTING CAPACITY.
1.
Purpose and History of the System.
The origin of the term civil service dates back to 1g54 when sir
charles Trevelyan borrowed it from the British administration in India
and applied it to English conditions.In a very broad sense it..included
simply the professional body of officials employed by the state in non-
military and non-judicial services.",r lt is in this sense that the term was
introduced into Philippine public law by early American administra-
tots.33
Unlike the 1935 constitution, which merely set down the under-
lying principles of a civil service system and commanded that a civil
service system be created by law, the 1973 constitution itself created
the system complete with basic structure, powers and prohibitions. Ex-
plaining the change, Delegate Gunigundo said that a constitutionally
created system was necessary
- naturalized citizens.36 Thus, implicit in this requirement is 1971 Con-
[b]ecause we believe that the Civil Service created by law has not
been able to eradicate the ills and the evils envisioned by the fram-
ers of the 1935 constitution; because we believe that the civil Ser-
vice created by law is beholden to the creators of that law and is
therefore not politics-free, not graft-free and not comrption_free;
because we believe that as long as the law is the reflection of the
will of the ruling class, the Civil service that will be created and
recreated by the law will not serve the interest of the people but
only the personal interest of the few and the enhancement of fam_
ily power, advancement and prestige.3a
The 1987 constitution continues the search for the perfect civil
Service system.
3'3 ENCyct_opEDrA oF THE SOCIAL SCIENCES 515 (1959).
33The
earliest civil Service Law was Acr No. 5 (1900) of the philippine commission. l,arcr
this was incorporated into the Administrative Code. Article XII of the 1935 Constitution
latcr
pnrvided for a constitutionally mandated service. C.A. No. 177 (1936) purged
the Aclministrativc
Code of undesirable Civil Service provisions. The Civil Service Law aithe time of the enaqrncnt
of the 1973 constitution was R.A. No.2260 as amended by R.A. No.60zo. The civil
servicc l,uw
enacted by President Marcos was pD. No. 807, October 6, 1975.
raSpeech, Session
of Febru ary 18, 1972.
1 Sec. I ART, IX _ CONSTITUTIONAL COMMISSIONS IO45
The Civil Service Commission
The general objective of a civil service system is to establish and
promote professionalism and efficiency in public service. This too is the
object of the Civil Service system under the Constitution.
2. Organization of the Commission.
The Civil Service system is administered by a Civil Service Com-
mission composed of a Chairman and two Commissioners appointed
by the President with the consent of the Commission on Appointments.
The Chairman and Commissioners must be (1) natural-born citi-
zens, (2) at the time of their appointment, at least thirty-five years of
age, (3) "with proven capacity for public administration," and (4) "must
not have been candidates for any elective position in the elections im-
mediately preceding their appointment."35
The requirement that a Commissioner must be a natural born
citizen is a reflection of the strong nationalistic trend in the 197 1 Con-
vention. The original l97I draft had recommended merely Philippine
citizenship, not natural-born citizenship. The Convention, however,
thought that the Commission was too powerful a body to entrust to
vention distrust of naturalized citizens and Convention relegation of
naturalized citizens to the category of second class Filipinos.
The requirement that they "must not have been candidates for any
elective position in the elections immediately preceding their appoint-
ment" effectively excludes political lame-ducks and repeats the general
rule found in Section 6.
The term of Commissioners is set at seven years and they may
not be reappointed.rz The prohibition of reappointment applies even if
the Commissioner has served for less than seven years.3s Of the first
Commissioners appointed, however, the Chairman shall have a term
of seven years, another of five years, and the third of three years. The
intent in staggering the terms of the first appointees is to achieve conti-
r5'fhe I 987 Constitution removed the I 973 requirement that they must be holders of a col-
lege degree. Administrativc ability was considered more important than academic degrees. /d. at
590-59 I .
ol Mlrch 10, 1972, I97I (\)nstilutional (irnvcntion.
"'Scssion
't ld.
r{l Rli('( )Rl) 5lt().
 t046 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Sec.2 ART. IX -TheCONSTITUTIONALCOMMISSIONS
Civil Service Commission
rcN

nuity by not allowing the term of all commissioners to expire all at one
time. Every two years, the term of one commissioner expires leaving
always two veteran Commissioners behind.
For the smooth functioning of the staggered rotational system,
there are two requirements. First, appointment to any vacancy shall be
only for the unexpired portion of the term of the predecessor.3e Second,
as explained in Gaminde v. commission on Audit 40 the starting point of
all the first appointments was February z,lg87 ,when the constitution
took effect, and the term of all subsequent appointees start on a Febru-
ary 2 even if they actually assume office later than February 2. what-
ever hiatus there may be between February z andthe actual assumption
of office affects only the tenure but not the term.
the Commission on Elections.In fact, it should apply to any law which
provides for a staggering of appointees.
A new provision in Article IX is the rule that "In no case shall any
Member be appointed or designated in a temporary or acting capacity."
An identical provision is repeated for all three Constitutional Commis-
sions. This is evidence of the desire to plug ways of avoiding the seven
year maximum term.4' Under this rule, should there be a vacancy in
the office of Chairman, the vacancy may not be filled by the President
by designating one of the Commissioners a temporary Chairman. The
Commission itself must choose the temporary Chairman.o'
Snc.2. (1) Tun cnrI, sERvrcE EMBRACES ALL BRANcITES,

when the 1987 constitution was enacted, there was an existing

SUBDMSIONS, INSTRUMENTALITIES, AND AGENCIES OF THE
Govnnnurxr, INCLUDING GovERNMENT-OWNED oR coNTRoLLED
civil Service commission but the term of the incumbents was not clear
CORPORATIONS WITH ORIGINAL CHARTERS.
to the 1986 constitutional commission. Hence the Commission ap-
proved the following provision which is found in Article XVIII, Sec- (2) Apporxrunms rN THE crvrr, sERvrcE sHALL BE MADE
oltl,Y AccoRDING TO MERIT AND FTTNESS TO BE DETERMINED, AS FAR
tion 15:
AS PRACTICABLE, AND, EXCEFT TO POSITIONS WHICH ARE FOLICY-
The incumbent Members of the Civil Service Commission, DETERMINTNG PRIMARILY CONFIDENTIAL, OR HIGHLY TECHMCAL, BY

the Commission on Elections, and the Commission on Audit shall COMPETITIVE EXAMINATION.

continue in office for one year after the ratification of this consti- (3) No omrcnn oR EMpLoyEE oF TIIE crvrr- sERvrcE sHALL
tution, unless they are sooner removed for cause or become inca_ BE REMOVED OR SUSPENDED EXCEPT FOR CAUSE PROVIDED BY LAW.
pacitated to discharge the duties of their office or appointed to a
new term thereunder. In no case shall any Member serve longer (4) No orrrcrn oR EMpLoyEE rN THE crvrr, sERvrcE sHALL
than seven years including service before the ratification of this ENGAGE, DIRECTLY OR INDIRECTLY, IN ANT ELECTIONEERING OR

Constitution. PARTISAN FOLITICAL CAMPAIGN.

(5) Tnr nrcnr ro sELF-oRGAMzATroN sHALL Nor BE DENTED

Notwithstanding this provision, however, the Court in Gaminde TO GOVERNMENT EMPLOYEES.
explained that the term of the first appointees under the 19g7 constitu-
tion started on February 2,1987. The extension of the term of the old
(6) Truponlnv EMpLoyEEs oF TrrE GovrR,uvrBNT sHALL BE
GIVEN SUCH PROTECTION AS MAY BE PROVIDED BY LAW.
commissioners simply meant that that the old commissioners used up
a portion of the tenure to which the new appointees were entitled.
1. Scope of the System.
Although Gaminde was a decision involving the commission on
Section 2(1) says that the "Civil Service embraces all branches,
Audit, the doctrine also applies to the commission on civil service and
subdivisions, instrumentalities, and agencies of the Government, in-
cluding government-owned or controlled corporations with original
3EThe system charters."
when enacted by the 1973 Constitution was modeled after that ofthc (lxn
mission on Elections ofthe 1935 Constitution as interpreted by the Supreme Court in Visurnt r,.
Mirafor,8 SCRA I (1963). .,1
a('Gaminde v. Rt.l('oRt) 546.
Coimmission on Audit, (i.l{. No. l.lO.t 15, l)ct.crnlrt r Ll, 2(XX). ()ll1(r7, )cccrrtbcr l tl, l 99o
'r.lac llrilltrrtcs, Jr. v. Vrrlr', ( i.R. No. 1

r*a&
 THE 1987 CONSTITUTION Sec.2 IX CONSTITUTIONALCOMMISSIONS 1049
ART.
OF THE REPUBLIC OF THE PHILIPPINES
Sec.2 -The Civil Service Commission

The first in the list are "all branches, subdivisions, instrumentali-

pointed out that the capital of these corporations belongs to the gov-
ties, and agencies of the Government" none of which can
escape the ernment and that government money is pumped into them whenever
reach of the civil service Law. Thus the Court rejected
the claim of the they are on the brink of disaster and they should therefore come under
Economic Intelligence and Investigation Bureau (EIIB) of the
Depart- the strict surveillance of the civil service system.46 Convention spokes-
ment of Finance that it was exempt from the scope of the
civil Service men for labor, however, feared that this expanded coverage of the sys-
because of the primarily confidential nature of its operation.
The status tem would result in the loss of collective bargaining rights of labor in
of being primarily confidential merely exempts an office from the
rules government owned corporations. Hence, there were repeated attempts
on appointment but not from other rules. Hence, the court
ordered the to limit the coverage to government corporations performing govern-
EIIB to make availabre to the ombudsman documents relating to per-
sonal services and salary vouchers of EIIB employees.43 mental functions. On the explanation, however, that the Committee on
Labor was reporting out a proposal which would give collective bar-
The Civil Service system mandated under Article XII, section gaining rights to all government employees, the attempts failed.'And
l,
of the 1935 constitution embraced, "all branches and subdivisions when in National Housing Corporation (NHA) v. Juco,as the question
of
the Government." strictly speaking, therefore, the former was raised whether the NHA, a government-owned corporation incor-
constitutional
command covered only those entities which were included porated under Executive Order No. 339,0n the Uniform Charter of Gov-
in the term
"Government of the Republic of the philippines" which, ernment Corporations, was covered by the Civil Service system and not
according to
section 2 of the RevisedAdministrative code (1917),.refers to by labor laws, the Court answered that it came under the civil service
the cor-
porate governmental entity through which the functions
of the govern_ system. The Court said that the intent of the Constitution to cover all
ment are exercised ... whether pertaining to the central government-owned corporation could not be circumvented through the
Governirent or
to the provincial or municipal branches or other forms of local
govern- incorporation under a general law such as the Corporation Code.'o
ment." construing this provision, the supreme court said in
Bacani
v. NACoco44 that government-owned or government-controlled The 1987 Constitution has modified the rule. The Civil Service
cor-
porations, even if performing functions of government, now covers not all government-owned or controlled corporations but
did not form
part of the entity called Government of the Republic only those "with original charters," that is, those corporations which
of the philippines.
Strictly speaking, therefore, the 1935 constitutional command, have been created by special law and not through the general corpora-
since
it embraced only "all branches and subdivisions of the Government,,, tion law. Thus the test for determining whether officers and employees
did not include government-owned or controlled corporations. of a government owned corporation comes under the Civil Service Sys-
How-
ever, the statute which implemented the constitution;l command tem is the manner of creation of the corporation to which they belong."
ex_
tended the coverage of the system to "government-owned Moreover, even if the case arose under the 1973 Constitution but is
or controlled
colporations."45

under the 1973 constitution, the mandatory coverage of the a6Speech of Ismael Veloso, Session of March 9,1972; Speech of Restor, id.; Speech of
sys-
tem was extended to corporations owned or controlleo Romualdc, Session of March I, 1972.
uy ttre govern- a?Oca-Marino amendment defeated March 1,l9l2 and Baradi motion for reconsideration,
ment. During the debates, government owned corporation;
cam-e under defeated Session of March9,1972.
attack as milking cows of a privileged few enjoying salaries 48134 SCRA 172 (January 17, 1985).
far higher
aelssued January 5, I 95 l .
than their counterparts in the various branches of
Itlovernment. was a'
I 34 SCRA at I 82- I 83. Reiterated in Metropolitan Waterworks and Sewerage System v.
Hcrnanrlez, 143 SCRA6O2 (August 19, l9tl6).
a3Economic 'rl'hilippinr:-Nutional Oil (\rmpany-Ilnergy Development Corporation v. l-eogardo,
(i.R.
Intelligence and Investigation Bureau v. court of Appears,
G.R. No. r29r33, No. 5ll.194,.luly .5, lgtl().'l'hus lrxr,'l'urray Watcr l)istrict, crcalcrl hy PI). l9tt, ctxttcs ttntlcr thc
November 25, 1998.
4100 Phil. 468,471 (1956\. ('ivil Scrviu..'liuruyWatcrI)istrictv.(iahatorr.(i.R.No.(r-17,12,April I7, l()lt()l .l,tttttitnlitv.Na
a5Section lirnral l,irhor Rr:ltrtiorrs (irrrrrrrissiorr urrrl lirxxl'lcttttirritl lrrc., (i.R. No. l{2lll(r, li'lrttt:tty 1{, l()l{();
3. R.A. No.2260 as anrendcd by R.A. No. fl)40.
( ilrrxrgtrtto v PN( X' Shtpprrrli. ( i.lt. No. l'l l'/O./. Mly'/, 2(X).1.
 THE 1987 CONSTTruTION
OF THE REPUBLIC OF THE PHILIPPINES
decided under the 1987 constitution, the applicable rule is that of the
1987 constitution.s2 The moment, however, that a corporation ceases to
be government controlled, for instance, if it is privatized, it ceases to
fall under the Civil Service.
In terms of personnel, the system includes both "officers and em-
ployees." The distinction between these two types of government per-
sonnel is expressed by section 2 of the old Revised Administrative
Code (1917) thus:
Employee, when generally used in reference to persons in
the public service, includes any person in the service of the Gov_
ernment or any branch thereof of whatever grade or class. Officer,
as distinguished from clerk or employee, refers to those officials
whose duties, not being of a clerical or manual nature, may be
considered to involve the exercise ofdiscretion in the performance
of the functions of government, whether such duties are precisely
defined by law or not. Officer, when used with reference to a per_
son having authority to do a particular act or perform a particular
function in the exercise of governmental power, shall include any
Government employee, agent, or body having authority to do the
act or exercise the function in question.
It is in
these senses that the terms "officers and employees" are
used in the constitution and it is this sense which should also be ap-
plied, mutatis mutandis, to officers and employees of government-
owned or controlled corporations with original charter.
It should be noted, however, that entities under the civil service
system are not completely beyond the reach of the Department of Labor
or labor laws. when a government entity that is under the civil service
enters into a contract, e .g ., with a security agency or a janitorial agency,
it becomes a indirect employer of the security guards or the janitors. In
such a situation, under the Labor code, the liabilities for wages are joint
and solidary with the contractor. The law on wages in the Labor code
specifically provides that "employer" includes any person acting direct-
ly or indirectly in the interest of an employer in relation to employees.sl
5'zPNOC
Energy Development Corporation v. NLRC,20l SCRA 4g7 (1991).
srPhilippine Fisheries
Development Authority v. NLRC & o<lin sccurity Agcncy, (i.R.
()4t125,
Scptt nrhcr 4. 1992.
Sec.2 Sec.2 ART, IX -TheCONSTITUTIONALCOMMISSIONS
Civil Service Commisslon
1O5I
2. Classification and appointments.
Section 2 is the basis for classifying positions in the civil service
into the sqrnpetitive and non-competitive positions. The non-competi-
tive positions are those which by their nature are policy-determining,
primarily confidential, or highly technical.5o
Early jurisprudence on this subject established that it is the nature
and not just the label of the position which makes it non-competitive.
Thus ,,much more than ordinary confidence is reposed in the occupant
of a position that is primarily confidential. The latter phrase denotes not
only confidence in the aptitude of the appointee for the duties of the of-
fice but prirnarily close intimacy which insures freedom of intercourse
without srnfarrassment or freedom from misgivings or betrayals of per-
sonal trust on confidential matters of state."s'A policy-detennining po-
sition is e1e charged with the duty to "formulate a method of action for
the governrnent or any of its subdivisions."'uAposition is highly techni-
cal ifthe occupant is required "to possess a technical skill or training in
the supreme or suPerior degree.'t'
The initial classification of the office may be made by the author-
ity creating the office. Ultimately, however, whether a position is poli-
cy-determining, primarily confidential or highly technical is a judicial
question. It is in this light that one must read the statement in Sala-
zar v. Mathayss to the effect that positions are "primarily confidential"
(1) when the President, upon the recommendation of the Civil Service
Commission, has declared the position to be primarily confidential, and
(2) when the position, by its nature, is primarily confidential. In other
words, the classification made by the executive, while to be accorded
the weight it deserves, is not definitively determinative of the nature
of the position. This much is clear from the extended discussion in the
above-cited case of De los Santos v. Mallare.And this remains the firm
ruling sf *le Court.se
thiswasreaflirmedbythe l986ConstitutionalCommission. Id.570-572.
5oAll of
5'l)c 6s Santos v. Mallare,8T Phil. 289,298 (1950); Civil Service Commission v. Salas,
(i.R. N.. 12'171y3, June 19,1997.
'' ld.
rr7 1s1 ,NA275,279 (Scptcrrtbcr'.10, 197(r); Luurel Vv.(livil Scrvicc('rxtrnrission,(i.ll.
N.. l(rlx'l Jll, l()(')1
frl11 / | 5(r,r. ( )(
r)(,tvtl s(.tvr(('(irrriltrssirrtv Srrlrts,(i.lt.No. IIl70tt,.ltttx'l(). l()()7.
 THE 1987 CONSTITUTION Sec.2
OF THE REPUBLIC OF THE PHILIPPINES
The principal significance of the classification is in relation to the
appointing process. The primary purpose of the classification into pol-
icy-determining, primarily confidential or highly technical positions is
"to exempt these categories from competitive examination as a means
for determining merit and fitness."60 Appointment to a competitive po-
sition must be made according to merit and fitness as determined, as
far as practicable, by competitive examinations. Appointments to non-
competitive positions are also appointed according to merit and fitness;
but in their regard merit and fitness are not determined by competitive
examinations but by other modes which may be prescribed by law. For
instance, the law might prescribe a certain level of academic degree as
a requirement for fitness.
The competitive and non-competitive positions roughly cor-
Civil Service Code, p.D. No. 807
respond to the classification, in the
(now embodied in Book Y Chapter 2, of the Revised Administrative
code of 1987) into career service and Non-career service. section 5
of the Code says: "The Career Service shall be characteized by: (l) en-
trance based on merit and fitness to be determined as far as practicable
by competitive examinations, or based on highly technical qualifica-
tions; (2) opportunity for advancement to higher career positions; and
(3) security of tenure." Section 6 says: "The Non-Career Service shall
be characterizedby (1) entrance on bases other than those of the usual
tests of merit and fitness utilized for the career service; and (2) tenure
which is limited to a period specified by law, or which is coterminous
with that of the appointing authority or subject to his pleasure, or which
is limited to the duration of a particular project for which purpose em-
ployment was made."
3. Role of the Civil Service Commission in appointments.
The role of the Civil Service Commission in the appointing pro-
cess is limited to the determination of the qualifications of the cantJi-
dates for appointment. It plays no role in the choice of the person to hc
appointed. Thus, when more than one person is qualified for a positiorr
and the appointing authority chooses the one who is less qualified, thc
civil Service commission may not revoke such appointment in ordcr
to place one who is better qualified. That the civil service comrrris
ART. IX CONSTITUTIONALCOMMISSIONS 1053
Sec.2 -The Civil Service Commissron
sion cannot substitute its judgment for that the appointing authority has
been reiterated by the Supreme Court very many times .I'apinid v. Civil
Service Commission 6r not only sets down a list of authoritative cases
on this subject but also made the unusual move of threatening the Civil
Service Commission with contempt should it still insist on departing
from this doctrine even after the May 14,1991, the date of the Inpinid
decision. The most that the Commission can do is certify to the qualifi-
cation of those being considered for appointment.
It is a different matter, however, when, after having extended an
appointment that is immediately accepted, the appointing authority
withdraws the same and extends it to someone else.In such a situation
the Civil Service is within its authority when it orders the reinstate-
ment of the first appointee. The withdrawal of an appointment already
accepted would be tantamount to removal and would violate security
of tenure. "While it is true that the appointing authority has a wide lati-
tude of discretion in making his choice. ... We cannot, however, give a
stamp of approval to such a procedural irregularity ... to the prejudice
of the right to security of tenure of the incumbent to the position'".'
A "next-in-rank" rule might be prescribed by law' But such rule
cannot be read to compel the appointing authority to appointment the
person next in rank if others, even if lower in rank, are qualified for the
post. As already seen under Article VII, the appointing authority is not
bound to adhere strictly to such rule because the legislature may not
impair the free choice of the appointing power.63
4. Security oftenure.
The efficiency of a civil service system depends largely on the
morale of the officers and employees in the service. Morale, in turn, can
be fatally undermined when the security of officers in the possession
of their office is unprotected against the arbitrary action of superior of-
ficers. I{ence, basic in a healthy civil service system is a guarantee of
security of tenure, a guarantee against arbitrary impairment, whether
total or partial, of the right to continue in the position held.
nrl97S('RA l0(r, lll(1991).Thelatestinthissericsol'rebukesisCuiebv.Civil Servictr
( irrrrrrrissiort, llchruary 9, 1994.
"lAt;ttitto v. ('ivil Sclvicc (\rntntission.
(i.R. No.9240.1, Aprtl'2'2,199'2
6r()liv('r()s'lirltc v. lltyol,5tt S('l{A 272,29() 2 (July .ll, 1974); I'ittulit v. ('llrrlio,2t4
S('RA 14 (Mry .lO, l(r('(r).
 THE I987 CONSTITI]TION
OF THE REPUBLIC OF THE PHILIPPINES
Section 2(3) guarantees that suspension or dismissal can be made
only "for cause provided by law." Dismissal here includes demotion or
transfer which involves reduction of pay or rank. This is a guarantee
of both procedural and substantive due process. Basically, procedural
due process would require that suspension or dismissal come only after
notice and hearing. Substantive due process would require that suspen-
sion or dismissal be "for cause." The phrase "for cause" has acquired a
well-defined meaning in Philippine jurisprudence:
It means for reasons which the law and sound public policy
recognize as sufficient warrant for removal, that is, legal cause,
and not merely causes which the appointing power in the exercise
of discretion may deem sufficient. It is implied that officers may
not be removed at the mere will of those vested with the power of
removal, or without cause. Moreover, the cause must relate to and
affect the administration of the office, and must be restricted to
something of a substantial nature directly affecting the rights and
interests of the public.6a
It should be noted that the provision says "provided by law" and
not "as may be provided by law." This means that the law must already
be in existence when the act for which a person is being subjected to
disciplinary action was committed.65 Moreover, procedural due process
must be observed,In disciplinary proceedings, a respondent is entitled
to be informed of the charges against him and he may not be convicted
for an offense for which he was not charged.ou
R.A. No. 9335, the Attrition Act of 1995, authorized the BIR antl
BOC to give awards to those who surpass the BIR targets and to imposc
sanctions on those who fall short. Ihe arvards are taken from the excess
over target as set up by a Board. The Rules for implenrentation arc
subject to review by an Oversight Committee of Congress. The validity
of the law was challenged on the ground among others that it violatecl
security of tenure. But security of tenure was not violated because dis-
missal is only after procedure and for cause provided by the Act..'
The Civil Service Code, P.D. No. 80'7, in Sections 36 to 43,dctails
both the substantive grounds and the procedure for disciplinary actiolt.
MDe los Santos v. Mallale ll'/ l)lril.
, irt 2()1.
t'5This was ntadc ck'ur hy ('onrrlissioncr
l'lrrlill;r. I Ill('()l{l) 571 57
rr'(l'ivil Scrvier: ('onunissiorr v. Lrrr':rs, ( i.lt No l-l7l{ lti. lltlt
lly .) I .
''lAbirklrrl;r(itrrrr v. l'rrrrrilrr;r,(ili No l(r(r/l1.Alt'r\t 1.1..'(){ll^i
Sec.2 ART. IX CONSTITUTIONAL COMMISSIONS IO55
Sec.2 -The Civil Service Commission
Of special constitutional interest is the summary procedure, without
need for hearing, provided for in Section 40 to take care of certain
categories of offenders, including those described by that dangerously
all-embracing phrase of "notoriously undesirable" coined under martial
law.
Early jurisprudence on security of tenure tended to indicate that
the constitutional guarantee of security oftenure did not extend to posi-
tions which were policy-determining, primarily confidential or highly
technical. Thus, for instance, De los Santos v. Mallareu" said that these
positions were not covered by the merit system and that dismissal at
pleasure of offlcers and employees appointed to such offices was al-
lowed by the Constitution. Subsequent decisions, however, corrected
this impression. For, indeed, if these positions did not belong to the Civ-
il Service over which the Constitution had extended a mantle of protec-
tion, the Constitution itself would not have specifically mentioned them
as exceptions to the general rule that all appointments must be made
on the basis of merit and fitness to be determined by competitive ex-
aminations. Thus, Corpus v. Cuaderno6o in categorical language would
say that the constitutional enumeration of policy-determining, primar-
ily confidential, and highly technical positions merely exempted such
positions from the requirement of appointments through competitive
examinations but not from the operation of the principle emphatically
enunciated in Section 2(3) that"no officer or employee in the Civil Ser-
vice shall be suspended or dismissed except for cause provided by law."
During the deliberations of the 1986 Constitutional Commission on the
subject, this decision was recalled and emphasized and reaffirmed.7.
It is therefore not correct to say that officers or employees occupy-
ing policy-making or highly technical positions or primarily confiden-
tial positions do not enjoy security of tenure. They do, since all of thenr
are removable only for cause as provided by law. However, officials
and employees holding primarily confidential positions are a special
case. Their term is deemed to be coterminous with the confidence. They
"continue only for so long as confidence in them endures' The termina-
tion of their official relation can be justified on the ground of loss of
confidencc bccausc in that case their cessation from office involves no
t "*ltl. nl ?.')7 .
@l I
lr)(X) S(,lt^ 5(, | . 5()5 ( l(X)5 ).
/"Sr'r' r'xt lrtttg's ttt I l{l'.( ( )lll ) 1/O 1/,'

1056 THE 1987 CONSTITUTION Sec.2
OF THE REPUBLIC OFTHE PHILIPPINES
removal but the expiration of the term of office
- two different causes
for the termination of official relations recognized in the Law of public
Officers."t'
Nor may the requirement of security of tenure be circumvented
by resort to abolition of office. While abolition of office does not imply
removal of the incumbent officer, this is true only where the abolition
of office is done in good faith and not merely as a cover for a removal
otherwise not allowed by the constitution.?2 Thus, for abolition of office
to escape the taint of unconstitutionality, it must be made (1) in good
faith, (2) not for personal or political reasons, and (3) not in violation
of the law.?3 Even abolition of office arising from reorganization must
be justified by good faith and public need.'o Moreover, abolition of an
office created by law can only be done also by law.75
ln Buklod ng Kawaning EIIB v. Executive Secretary,i6 the deacti-
vation of EIIB and the transfer of its functions to Task Force Aduana
was challenged as an abolition of office in bad faith. The deactivation
was done through an Executive Order pursuant to the authority of the
President under the Administrative code of 1987 to reorganize execu-
tive offices. In deactivating the EIIB, the President sought to achievc
economy. Good faith was found in the manner of the reorganization: no
new personnel were hired but additional duties were merely devolved
on existing personnel; the transfer of the functions to military personncl
was meant to give to the President direct supervision and control ovcr
the anti-smuggling campaign; the budget needed for the operation was
significantly less than what was needed to sustain the EIIB; the Task
Force was given power to effect searches and seizures and to investi-
gate cases involving ill gotten wealth which EIIB could not do.
ln Canonizado, et al . v. Aguirre ,ii petitioners were members of thc
National Police commission. They were separated from office by virtuc
TrHernandez v. Mllegas,
14 SCRA 5,14, 548 (1965).
?2Briones v. Osmeffa, 104
Phil.588,592 (1958).
TrRoque v. Ericta,.52 (19i3),and
SCRA 156, 162-3 cases cited-The grountls and rhc pnr
cedurc fbr disciplinary action arc now found in Presidential Decree No. 6.
TaAbrogar v. Carrucho.
Jr., G.R. No. 95773, August 6, l99l; Blaqucra v. (.ivil Scr.vit.c
(irrtrtttissitrtt.ScptcrnbcllO, l()()llAltlovinov.Alun:rnlll,230SC]RAtl2.5(1994); .lavicrv.(i1rr.l
ol APPcllr',232 li('Rn 67.t ( 19()4)i lrcrrrtrulez v. sro.'hrrras,(i.R. No. ll6l4l8, Marclr 7, lr9l.
/'littgerriov.('ivilscrvrtr'(irrrrrrrissiotr,(i.ll.No. ll5tl(r.l,Mirrclr.ll,l()95.
h( i.l{ Nos l,l.tl,l(}l t{O,,..lltlV
l(}. .'(Xtl
"(; lt Nr, I lll l.r..lrrrrrrllv,,\.,to(l()
Sec.2 ART. IX - CONSTITUTIONAL COMMISSIONS 1057
The Civil Service Commission
of Republic Act No. 8551 , otherwise known as the "Philippine National
Police Reform and Reorganization Act of 1998." They challenged the
law as a violation of their security of tenure. Public respondents, how-
ever, insisted that the express declaration in Section 8 of R.A. No. 8551
that the terms of petitioners' offices were deemed expired disclosed the
legislative intent to impliedly abolish the NAPOLCOM created under
R.A. No. 6975 pursuant to a bona fide rcorganization. In support of
their theory, public respondents cited the various changes introduced by
R.A. No. 8551 in the functions, composition and character of the NA-
POLCOM as proof of Congress' intention to abolish the body created
under R.A. No. 6975 in order to replace it with a new NAPOLCOM
supposedly more civilian in nature, in compliance with the constitution-
al mandate that the National Police should be civilian in character. The
Court, however, pointed out that R.A. No. 8551 effected a reorganiza-
tion of the Philippine National Police, not of the NAPOLCOM which
had supervisory authority over the National Police. The Court saw in
R.A. No. 8551 no change in the basic structure of the NAPOLCOM nor
in its lines of control, authority and responsibility. Neither was there a
reduction in its membership, nor a consolidation or abolition of the of-
fices constituting the organization . No bona fide reotganization of the
NAPOLCOM having been mandated by Congress, R.A. No' 8551, in-
sofar as it declared the terms of office of the petitioners as expired was
struck down for being constitutionally infirm.
It will also be recalled that in Vllaluzv. hldivar," decided under
the 1935 Constitution, the Court held that the removal of presidential
appointees occupying non-competitive positions was under the juris-
diction of the President and not of the Civil Service Commission. The
Court ruled "that the Commissioner of Civil Service is without jurisdic-
tion to hear and decide the administrative charges filed against petition-
er because the authority of said Commissioner to pass upon questions
of suspension, separation, or removal can only be exercised with refer-
ence to permanent officials and employees in the classified service to
which classification petitioner did not belong."'n The reasoning behind
this ruling had been earlier expressed in an obiter dictum in Ang-Angco
v. Custilkt which said:*"
/Nl5 S('llA 7l() ( l()(r5).
t"
ll . al-l l \.
N'{) S( 'lt A (r l (). (r lO (r l l ( l (Xr l )
 1058 TTIE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
There is some point in the argument that the power of control
of the President may extend to the power to investigate, suspend
or remove officers and employees who belong to the executive
department if they are presidential appointees or do not belong to
the classified service for such can be justified under the principle
that the power to remove is inherent in the power to appoint,Er but
not with regard to those officers or employees who belong to the
classified service for as to them that inherent power cannot be ex-
ercised. This is in line with the provision of our Constitution which
says that "the Congress may by law vest the appointment of the
inferior officers, in the President alone, in the courts, or in heads of
departments."8, With regard to these officers whose appointments
are vested on heads ofdepartments, Congress has provided by law
for a procedure for their removal precisely in view of this consti-
tutional authority. One such law is the Civil Service Act of 1959.
This reasoning does not mean that presidential appointees of the
nature described above do not enjoy security of tenure. It only means
that in their case the procedure is administered by the president and
not by the civil service commission. The president has the power to
discipline them because the power to appoint includes the power to re-
lnove. However, this power is limited. Specifically, Section 36 of p.D.
No. 807, as amended, otherwise known as Civil Service Decree of the
Philippines, is emphatic that career service officers and employees who
enjoy security of tenure may be removed only for any of the causes
enumerated in said law. In other words, the fact that petitioner is a presi-
dential appointee does not give the appointing authority the license to
remove him at will or at his pleasure for it is an admitted fact that he
is likewise a career service officer who under the law is the recipient
of tenurial protection, thus, may only be removed for cause and in ac-
cordance with procedural due process."r: However, in the case of somc
of them, they might be holding positions that are primarily confidential.
or they may have accepted an appointment that was co-terminous with
the term of the President.
It is in this light that the somewhat loose language used in Astru-
quillo, et al. v. Manglapus'4 must be understood. The Court's languagc
tlLacs<rn v. Rrrmero,84
Phn.74A,"754 (1949).
uArticlc Vll, Section l0(3),
ll935l Consrirurion.
I'l-urin v. Iixccutivc Sccrctlry, 2tl0 S('RA
7 I l.
r{ lq) si('RA 280. 2(I) ( l9(I)).
Sec.2 Sec.2 ART.IX CONSTITUTIONALCOMMISSIONS 1059
f he Civii Servicc Commission
equated being under the Non-Career Service with ipso facto nothav-
ing security of tenure. In the case of three Ambassadors Extraordinary
who were removed from office the Court said: "Their appointments to
the Foreign Service were made on 'bases other than those of the usual
test of merit and fitness utilized for the careet service;' their entrance
was not'based on merit and fitness ... determined ... by competitive
examinations, or based on highly technical qualifications.'This being
so, their 'tenure ... [was] coterminous with that of the appointing au-
thority or swbject to his pleasure. . '." B]ut Corpus v. Cuadernoss already
decided in 1965 that security of tenure is not based on the manner of
determining merit and fitness but on the nature either of the office or
of the appointment that has been extended. And indeed, in the case of
Ambassadors holding chief of mission posts abroad, termir.'ation at the
pleasure of the President can be justified on the reasoning that such po-
sition is primarily confidential and therefore an ambassador's posting in
Alternatively,
a particulaf spot expires when confidence has been lost.8u
it may be said of the three Ambassadors in the case that none of them
could be extended permanent appointments because none of them had
the Foreign Service qualifi cations.
It is to be understood as held in a long line of cases, that the guar-
antee of security of tenure is enjoyed only by permanent appointees.
Temporary appointees are removable any time even without cause.oT It
is, however, not anybody who can remove him but only the appointing
authority." Moreover, Section 2(6) now provides: "Temporary employ-
ees of the Govemment shall be given such protection as may be pro-
vided by law."
The guarantee of security of tenure, it should also be noted, cov-
ers not just removal or other disciplinary actions but also transfers. The
transfer of a permanent employee to another permanent position with-
out the consent of the employee violates security of tenure. Moreover,
while "a temporary transfer or assignment of personnel is permissibie
even with<lut the employee's prior consent, it cannot be done when the
85l] SCRA 591.5()5 ( 1965).
(i.It. No. t)4070, April 10, 1992, thc lxr\i
^nln irt riltittr it l)t I'Lrio,\.,rt(,.! r,. M(k.(u(til:,
tion ol lrcrnlrrrurl Ilcprt.serrtirlivc lo tlrc Urtilctl Nu(iotts ilt (icncva was cottsitlclcd a prirtt;rtilt
conlitlcrtliltl ;xrsitiort.
*//iS.,Mcrttliolltv. lrtttr'ttlto r'ts('l'(A(r(r(l()/t)'ittttl t:itst'seilctl'
r"l )r'r'trtrt v I rltt. i)rl S('ltA'l l(1,'l l (' ( /\rrIrr\l .tt1. lt)110).
 THE 1987 CONSTITT]TION
OF THE REPUBLIC OF THE PHILIPPINES
transfer is a preliminary step toward his removal, or is a scheme to lure
him away from his permanent position, or designed to indirectly termi-
nate his service, or force his resignation."'n
Security of tenure, however, is enjoyed only by those who pos-
sess a permanent appointment. But one does not become a permanent
appointee unless qualified for the position, and this, even if the appoint-
ment extended is mistakenly designated as permanent. The appointment
of one who is not qualified can only be temporary and it is understood
from the outset that it is without fixity but enduring only at the plea-
sure of the appointing authority.e0 For an appointment to be permanent,
moreover, it must be a real appointment by the appointing authority and
not just a designation by one who does not have the appointing author-
ity. Thus, where the law says that the officer is to be appointed by the
President, designation by the department secretary does not result in a
permanent appointment.e'
Moreover, even one who has an appointment to a position which
is subsequently converted to a career position must yield the position
to one who has it if he or she does not possess career eligibility. As the
Court put itin Dimayugav. Benedicto II:s2
The mere fact that a position belongs to the Career Service
does not automatically confer security of tenure on its occupant
even ifhe does not possess the required qualifications. Such right
will have to depend on the nature of his appointment, which in turn
depend on his eligibility or lack of it. A person who does not have
the requisite qualifications for the position cannot be appointed
to it in the first place or, only as an exception to the rule, may be
appointed to it merely in an acting capacity in the absence of ap-
propriate eligibles. The appointment extended to him cannot be
regarded as permanent even if it may be so designated.
Finally, a person lacking the necessary qualifications who is given
a temporary appointment does not automatically become a permanent
appointee when he or she acquires the required qualification. The status
of an appointee, whether permanent or temporary, also depends on tlrc
seGloria v.
Court of Appeals, G.R. No. I l9903,August 15,2000
q)Achacoso
v. Macaraig, 195 SCRA 235,240 (1991).
"rBinamira v. Gamrcho, 188 SCRA 154 (1990.
"r(i.R. No. 144153, Januury 16, 2(X)2.
Sec.2 Sec.2 ART. IX _ CONSTITUTIONALCOMMISSIONS 106I
The Civil Service Commission
tenor of the appointment that has been extended. For a temporary ap-
pointee to become permanent, he must receive a new commission, that
is, a permanent appointment if he is to be considered permanent.
A unique dispute on security of tenure was Mathay, Jr. v. Court of
Appeals.n3 P.D. No. 51 created certain offices and they were promptly
filled. After martial law, Mayor Simon of QC also filled them by ap-
pointment. In 1990, however, P.D. No. 51 was declared never to have
been published and therefore was not law. To save the workers therein,
the sanggunian passed an ordinance declaring the "personnel" absorbed
in the department of public order and safety. But since there were not
enough positions to accommodate all, Simon made them contractual
employees. When Mathay became Mayor, he also renewed the con-
tracts once but refused to renew them thereafter. The Commission on
Civil Service ordered Mathay to take them saying that their reappoint-
ment was automatic pursuant to the ordinance. The Court, however,
ruled that the ordinance was invalid, because it equivalently was an
exercise of the appointing power by the sanggunian, a power which the
sanggunian did not have.
A losing candidate who is under a one-year suspension is disquali-
fied from being appointed during that one year period even if he or
she has the other qualifications. Legal disqualification in Article 244
of the Revised Penal Code simply means disqualification under the
law. Clearly, Section 6,Article IX of the 1987 Constitution and Section
94(b) of the Local Government Code of 1991 prohibits losing candi-
dates within one year after such election to be appointed to any office
in the government or any government-owned or controlled corporations
or in any of their subsidiaries.no
5. Electioneering or partisan political activity.
Section 2(4) is intended to keep the Civil Service free of the
deleterious effects of political partisanship. Partisan political activity
includes every form of "solicitation of the elector's vote in favor ofl'
a specific candidate.n' It includes contribution of money for election
purposes and distribution of handbills.'6 "Electioneering" well describes
"'(i.R. No. 124174, t)cccmbcr 15, 1999.
"''l'coplc v. Stutrlignnhrtyan, (i.R. N<t. 164185, July 23,2008.
"'tt'oplt' v. rlc Vcttct itt, l4 S('RA l'164, 1167 ( 1965).
'alr/ rtl ll(ilr
1062 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
the prohibited activity. However, the provision does not "prevent any
offlcer or employee from expressing his views on current political
problems or issues, or from mentioning the names of candidates for
public office whom he supports."n'Nor does it prohibit a person from
voting or from joining civic organizations that are non-partisan in
chalacter.e8
The rule, however, does not apply to members of the Cabinet.nn
Their positions are essentially political and they may engage in partisan
political activity.
6. The right to self-organization.
Section 2(5) is a new provision. Although the right to form orga-
nizations is guaranteed in other provisions of the Constitution,'* it was
thought nonetheless that this central right should also be specifically
placed in the Article which deals with government officers and employ-
ees.r0rAs Commissioner Ople pointed out:'o'?
As a rule, the majority of the world's countries now enter-
tain public service unions. What they really add up to is that the
employees of the government form their own associations. Gener-
ally, they do not bargain for wages because these are fixed in the
budget but they do acquire a forum where, among other things,
professional and self-development is promoted and encouraged.
They also act as watchdogs of their own bosses so that when graft
and comrption is committed, generally, it is the unions who are
no longer afraid by virtue of the armor of self-organization that
become the public's own allies for detecting graft and comrption
and for exposing it.
Does the right to self-organization also include the right to strike '/
Commissioner Lerum answered the question thus:'03
When we proposed this amendment providing for self-orga-
nization of government employees, it does not rnean that bccausc
eTSection 29,
R.A. No.2260; Section 45, P.D. No.807.
q\
RECORD 544-545,573.
eSre Santos v. Yatco, 106 Phil. 2l ( I959).
rn'Article IIl, Section tit Articlc Xlll. Scction 3.
rorl RECORD 565-,566.
ttrld. ttl 5(t'7.
ro'/r/. itt 569.
Sec.2 Sec.3 ART. IX CONSTITUTIONAL COMMISSIONS
-The 1063
Civil Service Commission
they have the right to organize, they also have the right to strike.
That is a different matter. We are only talking about organizing,
uniting as a union. With regard to the right to strike, everyone will
remember that in the Bill of Rights there is a provision that the
right to form associations or societies whose purpose is not con-
trary to law shall not be abridged. Now then, if the purpose of
the state is to prohibit strikes coming from employees performing
government functions, that could be done because the moment that
is prohibited, then the union which will go on strike will be an il-
legal union.
In this light, the Court has definitively ruled that employees of the
Social Security System'@ and public school teachersr's do not have a
constitutional right to strike.r06 This does not mean, however, that they
may not be given the right to strike by statute.
Snc. 3. TnB CwIr, Srnvrcs CotuurssroN, AS THE cENTRAL
pERsoNNEL AGnNcv or ttm GoVERNMENTT sITALL ESTABLISH A cAREER
SERVICE AND ADOPr MEASURES TO PROMOTE MORALE, EFFICIENCYT
INTEGRITY, RESPONSIVENESS, PROGR,ESSIVENESS, AIYD COURTESY IN
THE clvtt- sERvrcE. Ir snu,r, STRENGTHEN THE MERIT AND REwARDS
SYSTEM, INTEGRATE ALL HUMAN RESOURCES DEVELOPMENT PROGRAMS
FOR ALL LEVELS AND RANKS, AND INSTITUTIONALIZE A MANAGEMENT
CLTMATE coNDUCIvE To puBLIC ACcouNTABILITy. Ir sHALL sUBMIT
To rHE Pnr,sronvr AND THE CoNcnBss AN AI\NUAL REPoRT oN ITS
PERSONNEL PROGRAMS.
1. Powers of the Commission.
The Commission is an administrative agency, nothing more. As
such, it can only perform and can only be given powers proper to an
administrative agency. It can perform executive powers, quasi-judicial
powers, and quasi-legislative or rule-making powers. Section 3, which
designates the Civil Service Commission as "the central personnel
agency of the government," enumerates the key functions of the Com-
rosocial Security System v. the Court of Appeals, G.R. No. 85279, July 28, 1989.
rr)sManila Public School Teachers Association v. Secretary of Education, G.R. No. 95'145,
August 6. 1991. The dissenting justices argued that the right to strike could be deduced from
liccdorn ol sllccch.
[i'Sr'r, Rcprrblic v. ( iurlt ol'Ap1^-lls, (j.R. No. 117676, December 20, 1989, which says that
g()vcnlll(.nt crrrpkryu's tkr rrot lurve thc riglrt lo strikc bccausc "thcre is as yct nrl law permitting
thcnr lo slrikc."
 THE 1987 CONSTTTUTION Secs.4-5
OFTHE REPUBLIC OFTHE PHILIPPINES
mission. Subsumed under the section is the power to "promulgate and
enforce policies on personnel actions, classify positions, prescribe con-
ditions of employment except as to compensation and other monetary
benefits which shall be provided by la\ry."tou
As central personnel agency of the government, the Civii Service
Commission may revoke a certificate of eligibility motu proprio.The
power to issue a certificate of eligibility carries with it the power to
revoke one that has been given. Whether or not hearing is required for
revocation depends on the circumstances of a case. Thus, where the
case "simply involves the rechecking of examination papers and noth-
ing more than a re-evaluation of documents already in the records of the
CSC according to a standard answer key previously set by it, notice and
hearing is not required. Instead, what [would apply in such a case is] the
rule of res ipsa loquityy."rot
Snc.4. Ar,r, punlrc oFFrcER.s AND EMpLoyEEs sHALL TAKE AN
oATH oR AFFTRMATToN To upHoLD AND DEFEND rnrs CoNsrrrurloN.
1. Oath to defend this Constitution.
The counterpart of this provision in the 1973 Constitution was
in Section 4 of Article XV the General Provisions. [t read: "All public
officers and employees and members of the armed forces shall take an
oath to support and defend the Constitution." And it was also in the
course of the deliberations on the 1987 General Provisions that Section
4 was approved. This provision is meant to cover all civilian public
officers, whether elective or appointive.r0e But a similar provision for
members of the armed forces remains in the General Provisions, Article
XVI, Section 5(l).
SBc. 5. Tnn CoNcnnss sHALL pRovrDE FoR THE sTANDARD-
IZATION OF COMPENSATION OF GOVERNMENT OFFICIALS AND
EMPLOYEES, INCLUDING THOSf, IN GOVERNMENT-OWNED OR CON-
TROLLED CORPORATIONS WITII ORIGINAL CHARTERS, TAKING INTO
ACCOUNT THE NATURE OF THE RESPONSIBILITIES PER,TAINING TO, AND
THE QUALIFICATIONS REQUIRED FOR THEIR POSITIONS.
IoTI RECORD at592-593.
r08l-azo v. Civil Servicc (irmnrissiru, ?-16 S('RA 469.,172 ( l9(),1)
rpV RI;.('()Rl) 29(r
ART. IX - CONSTITUTIONAL COMMISSIONS 1065
Secs.6-7
The Civil Service Commissron
1. Standardizationofcompensation.
This provision has been taken from the 1973 Constitution."O And
the rationalization for this provision may be found in the Justification
and Supporting Tables which accompanied the Integrated Reorganiza-
tion Plan of 1972. Part III, Chapter II, Article II, said:
Article II - Re-examination of the WAPCO Plans
After thirteen years in operation, the WAPCO Plans have
been undermined by the increasing number of exemptions from
its coverage through special legislation. Moreover, through court
decisions and the opinions ofthe Secretary ofJustice, the so-called
proprietary corporations are no longer subject to the Plans. Through
collective bargaining, employees of government corporations have
been able to secure not only higher salaries but liberal fringe ben-
efits as well. As revealed by the 1970 Presidential Committee to
Study Corporate Salary Scales, the average compensation in some
of these corporations, using the average compensation of positions
by the WAPCO Plans as base (100%), is a follows: DBP-2O3Vo,
CB -l96vo, GSIS- 1 477o, SSS- 1 507o, and NWSA- I 1 I 7o'
Snc. 6. No clNornlrE wHo HAs Losr rN ANY ELECTIoN
SHALL, WITHIN ONE YEAR ATTER SUCH ELECTION' BE APPOINTED TO
ANY OFFICE IN TITE GOVTNNITENT OR ANY GOVERNMENT-OWNED OR
CONTROLLED CORPORATIONS OR IN ANY OF THEIR SUBSIDIARIES.
1. Political lame ducks.
Section 6 prohibits the appointment of defeated candidates within
one year following their defeat to "any office in the Government or in
any government-owned or controlled corporations or in any of their
subsidiaries." This, together with Section 7, is intended to help eradi-
cate the "spoils system."
Spc. 7. No nr-rcttvn oFFICIAL sHALL BE ELIGIBLE FoR
APPOINTMENT OR DESIGNATION IN ANY CAPACITY TO ANY PUBLIC
OSFICT] OR POSITION DURING HIS TENURE.
UNLEss orHERwtslt Al,l,owED BY LAw oR RY THE PRIMARY
t'trN(i'l'loNs ()l' Hls Poslt'loN' N() APPOINTM ()1"1'l(llAl, sHAl,l, HOLD
rr"Artie lc Xll,ll, Scclion (r ( l(r7 l)
 1066 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Sec_ 7 sec.8 ARr.Ix
#J:XffiSifrTorvIMISsIoNs
to67

ANY OTHER OFFICE OR EMPLOYMENT IN THE GOVERNMENT

OR ANY ing supervisory functions over such companies would not be consistent
SUBDIVISION, AGENCY OR INSTRUMENTALITY THEREOF,
INCLUDING with putting a responsibility on that Minister for the proper functioning
GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS
OR THEIR or performance of these companies."rr3 Monsod also pointed out that the
SUBSIDIARIES.
current law recognized and required ex fficio membership of certain
high-ranking executive officials in other offices and corporations.rr4
l. Political opportunism and spoils.

_ The first paragraph governs elective officials. unlike the provision Snc. 8. No nr,rcrrve oR APPoINTIvE PUBLIc oFFIcER oR
for members of congress in Article vI, section 13 which does EMPLOYEE, SHALL RECEM ADDITIONALT DOUBLET OR II\DIRECT
not pro-
hibit acceptance of an appointment but merely causes the forfeiture CoMPENSATION, LJNLESS SPECIFICALLY AUTITORIZEDBY LAW' NOR
of Accnpr wITHour TIIE coNsENT oF TIrE Coxcnrss, AllY PRESENT,
the congressional seat if the holder accepts an appointment,
the present
provision prohibits elective officials other than members EMOLUMENT' OFFICE' OR TTTLE OF ANY KIND FROM ANY FOREIGN
of congress GOVERNMENT.
from accepting appointment during their tenure. If the elective
official
accepts an appointment without first resigning his elective
position, the Prxsroxs oR cRATUmtrs sHALL Nor BE coNSIDERED AS
appointment is invalid. Neither, however, does he thereby forfeit ADDMONAL, DOUBLE' OR INDIRECT COMPENSATION.
his
elective seat. This was the court's ruling in Flores, et al. i. Drilon
and
Gordon.tn Moreover, unlike in the case of appointive officers
in the fol- 1. Additional or double compensation.
lowing paragraph, Congress may not create an exception to this
rule. The first paragraph of Section 8 reproduces Section 5 of the Gen-
The second paragraph deals with appointive officers. They
may
eral Provisions of the 1973 Constitution with the insertion of "indi-
not "hold any other office or employment in the Government
or any rect" compensation. The second paragraph, which is new, specifically
subdivision, agency or instrumentarity thereof, incruding government- adds that "Pensions or gratuities shall not be considered as additional,
owned or controlled corporations or their subsidiaries.; it.
prohibi_ double, or indirect compensation." This has reference to compensation
tion, however, is not absolute: they may hold another office, if ,.alrowed already earned, for instance, by a retiree. A retiree receiving pension or
by law or by the primary functions of [their] position."rrz As
noted ear-
gatuity after retirement can continue to receive such pension or gratu-
lier, however, this is different from the more strict rule for officials
enu-
ity even if he accepts another government position to which another
merated in Article VII, Section 13. compensation is attached."s
It should also be noted that performing a function covered by the The prohibition against additional or double compensation except
"primary functions" of an office does not necessarily mean appointment when specifically authorizedby law is another constitutional curb on
to a different office. It could simply mean that new functions
have been the spending power of the government. The purpose of the prohibition
added to the one office. As explained by commissioner
Monsod during was expressed thus in Peralta v. Mathay:tt6
the deliberations of the constitutional commission,,.[T]here
are certuin This is to manifest a commitment to the fundamental prin-
appointive officials who, by reason of the function of their
office, h'vc ciple that a public office is a public trust. It is expected of a gov-
to occupy other positions. Example: The Minister of
rrade and Indust'y ernment official or employee that he keeps uppermost in mind the
has a responsibility for the performance of the NDC and
the companien demands of public welfare. He is there to render public service.
under it. To prohibit the Minister of Trade and Industry He is of course entitled to be rewarded for the performance of the
from exercis-

rrlG.R. No.
ro4732, June 22, r99r. ()nc may rhercfirre ask whethcr thc apgrinrnrc'r IIIV RECORD I6I.
Vicc-Prcsidcnt Estracla as Chairmrtn ol llrt' l\'t sirlcntial
,r
Anti-('rirnc: ('rxnrrrission wls v'lirl. rr4/r/. ut 165.
rrrWhc(hcr or r[ft/.
noi lhis cx(:cl)tiorr ttlso rrpplics lo ('ahinct olliciuls lntl gllrcr lt l(il-164.
high rnntrnl
cxccutivc ollicr:rs is rlcrrlt willr rrrrrlcr Artrr.lc Vll. Scclion lJ. rrr.1g s(.llA 256,25ll ( 1967)
 1068 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Sec.8
functions entrusted to him, but that should not be the overriding
consideration. The intrusion of the thought of private gain should
be unwelcome. The temptation to further personal ends, public
employment as a means for the acquisition of wealth, is to be re_
sisted. That at least is the ideal. There is then to be an awareness
on the part of an officer or employee of the government that he is
to receive only such compensation as may be fixed by law. With
such a realization, he is expected not to avail himself of devious
or circuitous means to increase the remuneration attached to his
position.
while the terms "additional" and "double" compensation are used
interchangeably, it is, perhaps, best to draw a distinction between the
two. There is additional compensation when for one and the same office
for which a compensation has been fixed there is added to such fixed
compensation an extra reward in the form, for instance, of a bonus.
This is not allowed in the absence of a law specifically authorizing such
extra reward. Thus, where an officer's pay provided by law was a fixed
per diem, the Supreme court disallowed additional compensation in
the form of cost of living allowance as well as incentive and christmas
bonuses.r'7 The court, however, was careful to point out that when aper
diem or an allowance is given as reimbursement for expenses incident
to the discharge of an officer's duties, it is not an additional compensa-
tion prohibited by the Constitution.,,8
Double compensation more properly refers to two sets of compen-
sations for two different offices held concurrently by one officer. There
is no general prohibition against holding two offices which are not in-
compatible; but when an officer accepts a second office, he can draw
the salary attached to such second office only when he is specifically
authorized by law to receive double compensation.ue
The meaning of the phrase "specifically authorized by law,, was
explained by the Court in Sadueste v. Municipality of Surigao.tzl The
last paragraph of Section 1916 of the Revised Administrative Code.
which was in effect prior to the constitutional prohibition of additional
or double compensation, provided:
n7ld.
ttsld. at26O-262.
IreSee
Quimson v. Ozaeta, gll Phil. 705 ( lrts(r)
ra)72 Phil. 4t{5 (
t94 I ).
sec.8 ART.IX
;..TfftJy#3ik:or\IMISSIoNS
Upon designation of the Director of Public Works, a district
engineer may be allowed additional compensation with the ap-
proval of the provincial board not to exceed sixty pesos per month
to be paid from the income of the waterworks systems supervised
by him for services rendered in his capacity as sanitary and water-
works engineer.
On the basis of this provision, Sadueste, a district engineer duly
designated as sanitary and waterworks engineer, tried to collect the
compensation due to the second office. Denying Sadueste's petition,
the Supreme Court explained''2r
The authority granted in the last paragraph of section 1916
of the Revised Administrative Code is a general authority given to
all district engineers. The authority required by the Constitution to
receive double or additional compensation is a specific authority
given to a particular employee or officer of the Government be-
cause ofpeculiar or exceptional reasons warranting the payment of
extra or additional compensation. The purpose of the Constitution
is to prohibit generally payment for additional or double compen-
sation except in individual instances where the payment of such
additional compensation appears to be not only just but necessary.
The above interpretation of the constitutional provision seems to
be too strict.It seems in effect to require a special law for every instance
of additional or double compensation. An obiter dictum in the later case
of Quimson v. Ozaetar" approves of a more liberal and perhaps admin-
istratively more rational approach. The Court said'''
According to law, under certain circumstances, the Presi-
dent may authorize double compensation in some cases, such as
government officials acting as members with compensation in
government examining boards like the bar examinations, or de-
partment secretaries acting as members of Board of Directors of
government corporations, and in such cases the prohibition against
double compensation is not observed. This undoubtedly, was
the reason why the appointment of Quimson had to be coursed
through different offices like the Department of Finance, the Civil
r7rlr,/. at 4ll7-4118.
ur98 l'hil. 705 ( 956)
1
r/'/r/.
ll 709 7 lO.
 THE 1987 CONSTITUTION Sec.8 ART. IX - CONSTITUTIONAL COMMISSIONS
OF THE REPUBLIC OF THE PHILIPPINES
The Commission on Elections

service commission, and the office of the Auditor General to the

President for approval. If the president approves the double com_
pensation, well and good. The appointee whose appointment may
tlen be regarded as valid from the beginning could receive extra
compensation. If it is disapproved, then the appointment will have
to be withdrawn or canceled, unless of course, the appointee was
willing to serve without compensation, in which case there could
be no valid objection.
An interesting case of prohibited double compensation was san-
tos v. court of Appeals,'2. upon optional retirement from the judiciary
on I April 1992, santos received full payment of his retirement gratuity
under R.A. No. 910, as amended. For five years, thereafter he contin-
ued receiving a monthly pension. Thereafter he was appointed Director
III of the defunct Metro Manila Authority (MMA). The first question
was whether as Director III he could continue to receive his pension
while receiving salary as Director. The court ruled that he could. The
compensation would be for two different services. The second question
was whether upon separation as Director the computation of his sepa-
ration under R.A. No.7294 should include his years of service in the
tution from Section 1(9) of the 1935 Bill of Rights. Section 1 of Com-
monwealth Act 153'' is the only official comment on this provision:
Any person holding an office of profit or trust in the govern-
ment of the Philippines who, without the consent of the Congress
accepts any present, emolument, office or title from a foreign state,
except however, honors or titles of a religious, academic or scien-
tific nature, shall upon conviction be punished with imprisonment,
not to exceed one ye{u, and disqualification to hold any public of-
fice for a period of not less than three years nor more than ten
years.
C. The Commission on Elections
Ss,crroN 1. (1) Tnnns SHALL BE I CouurssroN oN Er,ncrrons
coMposED or I CnrnuAN AND srx CouurssIoNERS wHo SHALL BE
NATURAL-BoRN cITIzENS oF THE Pnrr,rpprNrs AND' ar rHE TIME oF
THEIR APPOINTMENT, AT LEAST THIRTY.FIVE YEARS OF AGE' HOLDERS
OF A COLLEGE DEGREE' AND MUST NOT HAVE BEEN CANDIDATES FOR
ANY ELECTIVE POSITION IN THE IMMEDIATELY PRECEDING ELECTIONS.

judiciary. To this question the curt said no because it would amount to Hownvnn, A MAIoRITY THEREoFt TNCLUDING rnr Cnunnamt, SHALL
BE MEMBERs oF THE Pnrr,rpprxr B,q.n wno HAvE BEEN ENcAGED IN
double compensation for the same service in the judiciary for which he
THE PRACTICE OF LAW FOR AT LEAST TEN YEARS.
had already been paid. R.A. No. 7924 does not specifically authorize
payment of additional compensation for years of government service (2) Tnr Cn.c.rnl{.al.t AND TIrE Coulrrssronrns sHALL

outside of the MMA. BE AppoINTED By rHE PnpsmBxr wITH THE coNSENT oF THE
Couurssrox oN ApporutuENTs FoR A TERM oF sEvEN YEARS
Bonuses given to one whose compensation under the law is mere- WITHOUT REAPPOINTMENT. ON TIIOSE FIRST APPOINTED, THREE
ly a per diem violate the rule against additional compensation.,2s Mrunpns sHALL HoLD OFFICE FoR sEvEN vnlns, two MEMBERS FoR
FIvE vEARS, AND THE r,.c.sr MB[.{snRS FoR THREE YEARST wITHour
Moreover, when a law says that money generated by a school may REApporNTMENr.ApporNrunNT To ANY vACANCY SITALL BE 0NLY FoR
be used for "other programs/projects of the university or college," such THE UNEXPIRED TERM OF THE PREDECESSOR. IN UO CASE SHALL ANY
a law is not authorization for giving additional or double compensa- MnunBN BE APPOINTED OR DESIGNATED IN A TEMPORARY OR ACTING
tion.r26 CAPACITY.

2. Present, emolument, office or tifle from a foreign state. 1. Composition, qualifications, appointment, term.
The provision prohibiting the acceptance of any present, emolu_ The composition of the Commission on Elections has been re-
ment, office, or title from any state was first taken by the 1973 consti- duced to a total complement of seven a Chairman and six Com-
missioners. The complement of nine
-
under the 1973 Constitution was
l2aG.R. thought to bc too cuntbersome.
No. 139792. November 22.2000.
r2sCabili v.
CSC. G.R. No. l565Ol, Juntr 22.20O6.
r26Benguct (illtiltg,(;.1{. No. l(r(Xrl7,.lurrc t{,l(X)7
Stutc Univcrsity v. 'tttttttttttlwt'lrltlr l5 ( l() l(r)
'r'.) l'ttltlic l.ttws ol lltt' (
 1072 THE 1987 CONSTITUTION I ART. IX CONSTITUTIONAL COMMISSIONS IO'73
OF THE REPUBLIC OF THE PHILIPPINES
Sec. Sec. 1
- The Commission on Elections

The chairman and the commissioners must be (l) natural-born The first question is not new. Hence the court disposed of it thus:
citizens of the Philippines, (2) at the time of rr,.rir appointment, at least
thirty-five years of age, (3) holders of a college degree, but a majority, More than half a century ago, this Court had already ruled
including the chairman, must be members of the philippine Bar who that an ad interim appointment is permanent in character' In Sum-
mers vs . Ozaeta,t32 decided on October 25 , 1948, we held that:
have been engaged in the practice of law for at least ten years, and (4)
must not have been candidates for any elective position in the immed! [a]n ad interim appointment is one made in pursu-
"...
ance of paragraph (4), Section 10, Article VII of the Con-
ately preceding elections.rr8
stitution, which provides that the 'President shall have the
The commissioners are appointed by the president with the con- power to make appointments during the recess of the Con-
sent of the commission on Appointments for a term of seven years gress, but such appointments shall be effective only until
"without reappointment." The first appointees are given staggered disapproval by the Commission on Appointments or until
the next adjournment of the Congress.'It is an appointment
terms of seven, five, and three years, also "without reappointment."r2e
permanent in nature, and the circumstance that it is subject
By prescribing that the term of each commissioner shall be seven years io confirmation by the Commission on Appointments does
but that of the commissioners first appointed, three shall hold office for not alter its permanent character' An ad interim appoint-
seven years, three for five years, and the last three for three years, the ment is disapproved certainly for a reason other than that
result achieved is that at any one time only three Commissioners retire its provisionil period has expired. Said appointment is of
together. Continuity in the body is thus achieved. Moreover, it makes it distinguishable from an 'acting' appointment which
"ouit"
is merely temporary, good until another permanent appoint-
unlikely that all the commissioners at any one time are appointees of
ment is issued."
the same President. (The long reign of president Marcos frustrated this
devout wish under the 1973 Constitution.) The Constitution imposes no condition on the effectivity of
an ad interim appointment, and thus an ad interim appointment
Since appointment to any vacancy is only for the unexpired por_ takes effect immediately. The appointee can at once assume office
tion of the term of the predecessor, the regularity of the staggered ro- and exercise, as ade jure officer, all the powers pertaining to the of-
tational system remains undisturbed even by vacancies occurring in fice. In Pacete v. Secretary of the Commission on Appointments,t33
mid-term.'3' Moreover, as pointed out in Gaminde, supre,,in order to this Court elaborated on the nature of an ad interim appointment
as follows:
preserve the symmetry of the staggered system, the terms of all ap_
pointees have a fixed starting time, that is, on a February 2,evenif they "A distinction is thus made between the exercise of
assume office after February. such presidential prerogative requiring confirmation by the
Commission on Appointments when Congress is in session
The case of Matibag v. Benipayor3r posed two questions, one old and when it is in recess. In the former, the President nomi-
and one new. First, is an ad interim appointment of a commissioner a nates, and only upon the consent of the Commission on Ap-
prohibited temporary appointment? Second, if it is not, is a second ad pointments may the person thus named assume office' It is
not so with reference to ad interim appointments' It takes
interim appointment a prohibited reappointment?
effect at once. The individual chosen may thus qualify and
perform his function without loss of time. His title to such
office is complete. In the language of the Constitution, the
r28Anamendment to the effect that a third of the Commission shall be appointed from a list appointment is effective 'until disapproval by the Commis-
nominated by opposition parties was rejected as contrary to the non-partisun nitu.e of the Com- ,ion on Appointments or until the next adjournment of the
mission.I RECORD 639. Congress."'
r2eFor
the term of the incumbents when this Constitution was ratified, see Article XVIII,
Section 15.
rroSee
Vizcara v. Miraflor, 8 SCRA I ( 196{)). I ult I phil. 754 1 tr)48).
l'r(i.R. No. l4()036, Apr.il 2,Zll/IZ. r rr41; e(.[A 5g 1 lt)71 )

{
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
Sec.
The court's answer to the first question made the answer to the
second more difficult in the face of the prohibition of reappointment.
In justifying the second ad interim appointment, the court made a dis-
tinction between a pennanent appointment that has been confirmed by
the commission on Appointments and a permanent appointment that
has not been so conflrmed, as is the case of an ad interim appointment:
"The ad interim appointments and subsequent renewals of appoint-
ments of Benipayo, Borra and ruason do not violate the prohibition
on reappointments because there were no previous appointments that
were confirmed by the commission on Appointments." This, however,
is a distinction not found in the constitution. Article vII, section 16
simply says that the President may make appointments during recess.
Thus, a second ad interim appointment can only be a reappointment.
But then the court argued that, on the basis of the convention record,
the purpose of the dual prohibition of temporary appointment and of re-
appointment was to prevent any body from serving beyond seven years:
The same ad interim appointments and renewals of appoint_
ments will also not breach the seven-year term limit because all the
appointments and renewals of appointments of Benipayo, Borra
and Tuason are for a fixed term expiring on February 2,2OOg. Any
delay in their confirmation will not extend the expiry date of their
terms of office. Consequently, there is no danger whatsoever that
the renewal of the ad interim appointments of these three respon_
dents will result in any of the evils intended to be exorcised by the
twin prohibitions in the constitution. The continuing renewal of
the ad interim appointment of these three respondents, for so long
as their terms of office expire on February Z,2OO} does not violate
the prohibition on reappoinrments in Section 1(2), Article IX_C of
the Constitution.
In sum, therefore, in the judgment of the Court the prohibition of
reappointment is only of one who has been confirmed by the commis-
sion on Appointments.
The meaning of engaging in the practice of law as a requisite for
a majority of the members including the chairman was given a broad
interpretation by the Supreme Court in cayetano v. Monsod as simply
meaning engaging in "any activity, in or out of court, which requires
the application of law, legal knowledge, training ancl experience. 'To
engage in the practice of liiw is to pcrfirnn thosc acts which arc char-
acteristics of thc pnrl'cssion. (icrrcr':rlly, to prirc:ticc lirw is lo givc rroticc
I Sec.2 ART.IX -f""S#y,H:it.:oI4MISsIoNs r07s
or render any kind of service, which device or service requires the use
in any degree of legal knowledge or skill."'r34 Justice cruz found such
definition "too Sweeping" as to render the constitutional requirement
,'practically toothless."r35 But the majority opinion, penned by Justice
Paras, consoled itself with the thought that the judgment of the Com-
mission on Appointments which confirmed the appointment was not
attended by "grave abuse of discretion" and therefore was beyond'Ju-
dicial interference."l36 Indeed, if the constitutional requirements are
minimal, it would not be difficult for the Commission on Appointments
to find evidence that the minimal requirements have been satisfied!'"
The prohibition of temporary appointments or appointments in
an acting capacity was the subject of Brillantes, Jr. v. Yorac.t3E In the
absence of a Chairman and of a statutory rule on the subject, President
Aquino designated Commissioner Yorac Acting Chairman. The Solici-
tor General argued that the designation was justifled by "administrative
expediency.'o However, emphasizing the importance of the Commis-
sion's constitutionally guaranteed independence, the Court said that the
choice of a temporary Chairman is an internal matter which comes un-
der the discretion of the Commission as a body and that such discretion
cannot be exercised for the Commission by anybody else.'3e
Snc.2. Tns CoN{N{rssroN oN Er-ncrroxs sHALL ExERcISE TIIE
FOLLOWING POWERS AND FUNCTIONS:
(1) ENroncn AND ADMINISTER ALL LAws AND REGULATToNS
RELATIVE TO THE CONDUCT OF AN ELECTION' PLEBISCITE' INITIATIVE'
REFERENDUM' AND RECALL.
(2) Exnncrsn DxcLUSIvE oRIGINAL JURISDIcTIoN ovER ALL
CONTESTS RELATING TO THE ELECTIONS' RETURNS' AND QUALIFICATIONS
oF ALL ELECTM REGIONALT PROVINCIALT AND CITY OTTTCIALST AND
APPELLATE JURISDICTION OVER ALL CONTESTS INVOLVING ELECTIVE
BY TRIAL COURTS OF GENERAL
MUNICIPAL OFFICIALS DECIDED
JURISDICTION'oRINvoLvINGELECTIVEBARANGAY0FFICIALSDECIDED
BY TRIAI, COURTS OF LIMITED JURISDICTION.
rr420l SCRA 210,214 (1991) citing lll ALR 23.
t"ll..tt234. Sce ulso other dissents.
t"'ld.,tt22l\.
r'/Whcn all is saitl irntl donc, howevcr, thc record of Monsod as Chairman of the Constitu-
(
liorr:rl irntnrissiott lurltcd out lo bc vcry ctlttttttcnrlablc.
|tt()? s('ltA ]5tl ( 1990).
r!')/r/.:rt l(il) l(rL
1076 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
Dnclsloxs, rrNAL oRDERs, oR RULINGS oF THE Covmrssrox oN
ELECTION CONTESTS INVOLVING ELECTIVE MUNICIPAL AND BARANGAY
OFFICES SHALL BE FTNAL, EXECUTORY, AND NOT APPEALABLE.
(3) Dncmt, ExcEpr rHosE
rNvoLvrNG THE RrcHT To vorE,
ALL QUESTIONS AFFECTING ELECTIONS, INCLUDING DETERMINATION OF
THE NUMBER AND LOCATION OF POLLING PLACES, APPiOINTMENT OF
ELECTION OFFTCIALS AND INSPECTORS, AND REGISTRATION OF VOTERS.
(4) Dnrurzr, wrrH TrrE coNcuRRENCE
oF TrrE
LAW ENFORCEMENT AGENCIES AND INSTRUMENTALITIES OF TIIE
GovnnNunNr, TNCLUDTNG rnn Arursn Fonces oF THE pmlnptnrs,
FOR THE EXCLUSTVE PURPOSE OF ENSURING FREE, ORDERLY, HONEST,
PEACEFUL, AND CREDIBLE ELECTIONS.
(5) Recrsrnn, AFTER suFFrcrENT puBLrcATroN, por,rrrcAt,
PARTIES, ORGANIZATIONS, OR COALITIONS WHICH, IN ADDITION TO
OTHER REQUIREMENTS, MUST PRESENT THEIR PLATFORM OR PROGRAM
oF GovERNMENT; AND ACCREDIT cITIzENst aRMS oF THE
ox Er,rcrroxs. RELIGIous DENoMINATIoNS AND sECTS SHALL
REGIsTERED. Tnosn wHIcH sEEK To ACITIEvE THEIR GoALs rHRoucH
VIOLENCE OR UNLAWFUL MEANS, OR REFUSE TO UPHOLD AND ADTTERE
TO THIS cONSrrrurroN, oR WHICH ARE SUppoRTED By ANy
GOVERNMENT SHALL LIKEWISE BE REFUSED REGISTRATION.
FrN.lNcr.aL CONTRrBUTIoNS FROM FoRErcN GovERNMENTS ANn
THEIR AGENCIES TO POLTTICAL PARTIES, ORGANIZATIONS, COALITIONS,
OR CANDIDATES RELATED TO ELECTIONS CONSTITUTE INTERFERENCE IN
NATIONAL AFFAIRS, AND, WHEN ACCEFTED, SHALL BE AN ADDITIONAL
GROUND FOR THE CANCELLATION OF THEIR REGISTRATION WITH
nrn CouurssroN, rN ADDTTIoN To orrrnR pENAtrIEs rHAT MAy BE
PRESCRIBED BY LAW.
(6)
Fu,r, uroN A vERTFTED coMpLArNr, oR oN rrs owN
IMTIATM, PETITIONS IN COURT FOR INCLUSION OR EXCLUSION OF
voTERS; INVESTTGATE AND, WHERE APPROPRIATE, PROSECUTE CASES
oF VToLATTONS OF ELECTION LAWS, INCLUDING ACTS OR OMISSIONS
CoNSTITUTING ELECTTON FRAIJIIS, OFFENSES, AND MALPRACTICES.
(7)
RncovrucNn ro rHE Coxcnnss EFFECTTvE MEAsuREs
TO MINIMIZE ELECTION SPENDING, INCLUDING LIMITATION OF
PLACES WIIERE PROPAGANDA MATERIALS SHALL BE POSTED, AND TO
PREVENT AND PENALIZE ALL FORMS OF ELECTION FRAUDS, OFFENSES,
MALPRACTICES, AND NUISANCE CANDIDACIES.
(8) Rncourrlnuo ro rHE PnBsrnnx'r rHE REMovAr. oF ANV
ot't'I(:tilt ()R t:Mpt,()yttn I'1. HAS l)t,)ptrlt7,t,:l), ()t{ 'l.lt1: tMt,{)st.t,l()N ot,,ANy
Sec.2 Sec.2 ART. IX - CONSTITUTIONAL COMMISSIONS lO77
The Commission on Elections
OTHER DISCPLINARY ACTION, FOR VIOLATION OR DISREGARD OFr OR
DISOBEDIENCE TO ITS DIRECTIVE' ORDER, OR DECISION.
(9) Sunurr ro rHE PnBsronnr AND rIrE Coxcnrss I
CoMPREHENSM REPORT ON THE CONDUCT OF EACH ELECTIONT
PLEBISCITE, INITIATIVE' REFERENDUM' OR RECALL.
pnrsmrxr,
1. Nature of the powers of the Commission.
Like the Civil Service Commission, the Commission on Elections
is an administrative agency. As such, therefore, the powers it possesses
are executive, quasi-judicial, and quasi-legislative. By exception, how-
ever, it has been given judicial power as "sole judge of all contests
relating to the elections, returns, and qualifications of all elective" local
officials. Judicial power, however, is given to the Commission only in
a limited way. Thus, although there may be authorities in other juris-
CotuvlssroN dictions which maintain that the authority to issue writs of certiorari,
Nor BE prohibition and mandamus is inherent in the power of appellate courts,
it must be remembered that the Commission on Elections is not a court
but an administrative agency. Hence, it cannot claim so called inherent
FOREIGN
powers of courts. Moreover, earlier decision held that the Commission
did not have statutory power to issue such writs and that neither may the
power be implied from the power to promulgate rules and regulations.'ao
However, later decisions, have acknowledged that the Commission has
limited powers to issue writs of certiorari, prohibition and mandamus
granted by Section 50, B.P. Blg.697 but only in connection with its
appellate jurisdiction under Article IX, Section 2(2). This point was
settled in the case of Relampagos v. Cumba.rar This means that its juris-
diction over the matter is concurrent with that of the Supreme Court.142
The COMELEC has the power to review decisions of municipal
courts on municipal election contests. And when it does so, the entire
case is not opened as happens in appeals of criminal cases'r43
In cases where the COMELEC has appellate jurisdiction, what is
the period for making the appeal? Section 6, Article IX-A of the 1987
Constitution grants and authorizes the COMELEC to promulgate its
r*r(iarcia and O'Hara v. De Jesus and COMELE(-', 206 SCRA 779 ( 1992).
'al(i.R. No. t ltttt6l, April 27, 1995
rat('urlos v, Jtttlgc Arrgclt:s, ( i.R. No. 42()07, Novt:tttbcr 29' 2(XX).
1
ra'Muttzultt v. ('( )Ml'll.l i(', ( i.lt. No. l'/(t,l I l, Mly lt,,l(X)7
&

THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
own rules of procedure. The 1993 coMELEc Rules of procedure have
provided a uniform five (5)-day period for taking an appeal. Signifi-
cantly, Section 5(5), Article VIII of the Constitution provides in part
that "[r]ules of procedure of special courts and quasi-judicial bodies
shall remain effective unless disapproved by the Supreme Court.','*
While the Commission may punish for contempt, such power may
not be exercised in connection with its purely executive or ministerial
functions but only in furtherance of its quasi-judicial, and now also ju-
dicial, functions.'45
Among its quasi-legislative powers is the power to issue rules and
regulations to implement election laws. such power is deemed implicit
in the power to implement regulations.r46 Moreover, should there
conflict between a rule of procedure promulgated by the commission
and a Rule of Court, if the proceeding is before the Commission, the
Commission rule should prevail; but if the proceeding is in court, the
Rules of Court should prevail.r4T
2. Historical development of Commission's administrative
powers: 1935-1987.
Under the 1935 Constitution, the determination of questions aris-
ing from the application of election laws could come under either the
commission on Elections, or the respective Electorar rribunals of the
senate and of the House of Representatives, or the courts. Early juris-
prudence therefore engaged the Supreme Court in the process of set-
ting down the demarcation lines between these several agencies.In the
process, the picture that emerged, from the leading case of Nacional-
ista Party v. commission on Electionsta8 to [Jsman v. commission on
Elections,tae was a gradual recognition of an expansive role of the com-
mission in the electoral process.
raAntonio v. COMELEC, G.R. No. I 35869,
Septe mber 22, 1999.
rasGuevara v. COMELEC,
(1962).
104 Phil. 268 (1958); Masangcay v. COMELEC,6 SCRA 27
r*Gallardo v. Tabamo, Jr.,2l8 SCRA 253,263-ZU (1993).
Cru2,.I., dissents saying thur
the commission's constitutional authority is only to implement regulations. Id. at27o.
ra?Aruelo, Jr. v. Court
of Appeals, October 20, 1993.
r.N85 Phit.
t49 (t949).
'.%2 SCRA 667 ( t97 t).
Sec.2 ART. IX CONSTITUTIONAL COMMISSIONS IO79
Sec.2 -The Commission on Elections
The case of Nacionalista Party v. Commission on Electisnsrso in-
volved a petition for mandamus to compel the Commission to exclude
the votes cast for senators in the provinces of Negros Occidental and
Lanao during the 1949 elections. The Supreme Court formulated the
question in issue and answered it thus:"'
What are the implications of the power vested in the Com-
mission to enforce and administer all laws relative to the conduct
of elections and to insure free, orderly, and honest elections? Does
it include the power to annul an election which may not have been
free, orderly, and honest?
It seems clear from the context of the constitutional provi-
sion in question as well as from other provisions already quoted
be above that such power is preventive only and not curative also;
that is to say, it is intended to prevent any and all forms of election
fraud or violation of the Election Law, but if it fails to accomplish
that purpose, it is not the Commission on Elections that is charged
with the duty to cure or remedy the resulting evil but some other
agencies of the Government. We note from the text that the power
to decide questions involving the right to vote is expressly with-
held from the Commission although the right to vote is provided in
the Election Law, the enforcement and administration of which is
placed in the exclusive charge of the Commission. Parallel to the
withholding of such power from the Commission is the vesting in
other agencies of the more inclusive power to decide all contests,
relating to the election, returns, and qualifications of the members
of Congress, namely, the Electoral Tribunal of the Senate in the
case of the senators and the Electoral Tribunal of the House of
Representatives in the case of the members of the latter. Election
contests involving provincial and municipal officials are entrusted
to the courts. (Sections 172 et seq., Revised Election Code.) The
power to decide election contests necessarily includes the power to
determine the validity or nullity of the votes questioned by either
of the contestants.
Ututalam v. Commission on Electisnsrsz summed it all up by say-
ing that the "functions of the Commission under the Constitution are
essentially executive ('enforcement') and administrative ('adminis-
rxr85 Phil. 149 ( t949).
Itr/r/. ul I 55-6.
Itr l5 S('RA 465,46() ( l(Xr5)
 THE 1987 CONSTITUTION Sec.2
OF THE REPUBLIC OF THE PHILIPPINES
tration') in nature." Abes v. commission on Electionsrs3 could say that
there "has been neither deviation nor retreat" from this doctrine.
subsequent decisions, however, showed that the characterization
of the coMELEC's power by the Nacionalista party case as being
"preventive only and not curative also" was, perhaps, less than accurate.
The Supreme Court, in acknowledging the broad sweep of the COME_
LEC's constitutional power to insure free, orderly and honest elections,
recognized in the commission a power which already partook of the
"curative" power to nullify improperly made canvass. Thus, a divided
court in Ingumbay v. coMELECrsa upheld the commission's author-
ity to exclude what the court characterized as statistically improbable
returns. ln Antonio, Jr. v. COMELEC,'ss the Court upheld the power of
the GoMELEC to exclude returns which were the product of coercion
even if they be clean on their face. Finally, (Jsman v. commission on
Electionsls6 upheld the authority of the CoMELEC to entertain the tes-
timony of handwriting experts as proof of the falsity of the returns.
As already noted, at the core of these cases and other similar cas-
es, was the problem of determining where the jurisdiction of the com-
mission ended and where the authority of the Electoral rribunals and
the courts begun. Under the 1973 Constitution, this aspect of the prob-
lem largely disappeared because, aside from its administrative power of
deciding all cases relative to the conduct of election, the commission
was given the judicial power of being "the sole judge of all contests re-
lating to the elections, returns, and qualifications of all members of the
Batasang Pambansa and elective provincial and city officials.,"'The
problem of conflict of jurisdiction arose only in the election of munici-
pal and other minor elective officials.
The power of the commission to declare failure to elect also
underwent change. ln Antonio, Jr. v. COMELEC,T'8 one of the candi-
dates took the position that since the total number of votes recorded
represented only 28vo of the total registered voters, the proper course
of the COMELEC should have been to certify to a failure of election.
r53G.R. No.
L-28348, December 15, 1967
'5416 scRA 175 (1966).
15532
SCRA 319 (t970).
rs642
SCRA 667 ( 197 l).
r5TArticle XIl, C, Scctiorr
2(2) ( 197 l).
r5832
S('RA I l9 ( l97O).
Sec.2 ART. IX - CONSTITUTIONALCOMMISSIONS IOSI
The Commission on Electrons
In rejecting this position, the Court said that a declaration of a failure
to elect involved more than merely the exercise of administrative pow-
ers but already partook of the power to decide election contests which
belonged not to the Commission but to the courts and proper Electoral
Tribunals."'Since, however, jurisdiction over election contests had al-
ready been given to the COMELEC, what was said in Antonio must
have to be modified.t60 Biliwang v. COMELEC,T6' in fact, recognized
the power of the COMELEC to annul an entire municipal election on
the ground of post-election tenoism, not, however, specifically on the
ground of its expanded jurisdiction over election contests (understand-
ably so because this was a pre-proclamation controversy which more-
over dealt with municipal offlcials) but on the broader ground of its
expanded powers. The Court said that while it may be true that there
was no specific provision vesting such authority in the COMELEC'
there was no doubt as to the COMELEC's extensive powers under the
1973 Constitution, at least under the general rubric of its authority to
"enforce and administer all laws relative to the conduct of elections."
As the Court stated:'62
In other words, in line with the plenitude of its powers and
its function to protect the integrity of elections, the COMELEC
must be deemed possessed of authority to annul elections where
the will of the voters has been defeated and the purity of the elec-
tions sullied. It would be unreasonable to state that the COMELEC
has a legal duty to perform and at the same time deny it the where-
withal to fulfill that task.
On statutory grounds the Court also said that Section 185 of the
1978 Election Code accorded the Commission exclusive charge of the
enforcement and administration of all laws relative to the conduct of
elections for the purpose of insuring free, orderly and honest elections.
Election returns which are coerced returns are no returns at all and the
COMELEC has the power to reject them.
r'"1rl. at 334-35.
'"'Jcr also the tlisscnt of Justice Fernando in the aforementioned Antonio case.
this
'", 1 4 s1'R A ,15.1 (Jurrc | 9, | 9tl2). Earlier decisions under the 1935 Constitution denied
1
('()MELEC,2l SCRA 1252 (1967). The Court in Biliwang
lxlwcr lo lhc ('( )Mltl .l('. /:.3., Aht's v.
lorrrxt llrlt it wrrs irrtlxrssiblc kr tlislirrguish tlrc illcgal fiom the valid returns.
ru'l l,l li('ltA ll .l(r.)
IO82 THE 1987 CONSTITUTION
OFTHE REPUBLIC OF THE PHILIPPINES
Having recognized the authority of the COMELEC to annul the
election returns, it next had to deal with the question whether the COM-
ELEC had authority to call a special election. The Court said, in the
companion case of Sanchez v. COMELEC, that it could. The COM-
ELEC had already decided that it could not. But under Section 5 of B.P.
Blg.52,when the election "results in a failure to elect," the COMELEC
may call for the "holding or continuation of the election as soon as
practicable." The Court said''63 "We construe this to include the calling
of a special election in the event of a failure to elect in order to make
the COMELEC truly effective in the discharge of its functions." Again
the Court relied on the broad powers of the COMELEC to ensure free,
orderly and honest elections:'e
It would be to circumscribe the power of the COMELEC to
ensure free, orderly and honest elections if we were to hold that
the COMELEC authority ... is applicable only when the causes
therefor occurred before the elections: in other words, that the
grounds for the calling of special elections do not include post-
election terrorism. That interpretation would not only hamper the
effectiveness of the COMELEC ... but it would also ... delay the
opportunity of the voters to cast their votes at the earliest possible
time. ... After all the casting of ballots is not the only act constitu-
tive of elections. An election is not complete until proclamation
has been made.
These extensive administrative powers must be deemed pos-
sessed also by the COMELEC under the 1987 Constitution because of
the broad language of Section 2(1) granting authority to "[e]nforce and
administer all laws and regulations relative to the conduct of an elec-
tion, plebiscite, initiative, referendum, and recall" and of Section 2(3)
granting authority to "[d]ecide, except those involving the right to vote,
all questions affecting elections, including determination of the number
and location of polling places, appointment of election officials and in-
spectors, and registration of voters."
This is not explicitly mentioned but the COMELEC has jurisdic-
tion over cases involving plebiscites. Thus, where the question was
t$ld. at 466.
t&ld. at 468-9 .That Uturalam v. COMEI,EC , I 5 SCRA 465 ( 1965), had dcnicd this
Jxrwcr
to the COMELEC was explained by suying thnt lJtutolnm was rlccitlcd untlcr thc 1935 (i)nstitullon
antl lbrmcr f;,lccti<xt (ixlc.
Sec.2
Sec.2 ART. IX _ CONSTITUTIONALCOMMISSIONS IO83
The Commission on Elections
whether the electorate of raguig voted in favor of, or against the con-
version of the municipality of raguig into a highly urbanized city in the
plebiscite conducted for the purpose, the COMELEC correctly assumed
jurisdiction. The problem was not for regular courts. It was not a case
calling for the exercise of judicial power since it did not involve the
violation of any legally demandable right and its enforcement. There
was no plaintiff or defendant in the case. It merely involved the ascer-
tainment of the vote of the electorate of Taguig.r6i
Similarly the "the ascertainment of the identity of [a] political par-
ty and its legitimate officers" is a matter that is well within its authority.
The source of this authority is no other than the fundamental law itself,
which vests upon the GoMELEC the power and function to enforce and
administer all laws and regulations relative to the conduct of an elec-
tion. To resolve this simple issue, the COMELEC need only to tum to
the Party Constitution.'tr
3. Section 2(2)z Election contests.
Aside from the broad powers stated in Section 2(1), more specific
powers are enumerated by the Constitution. Among the more impor-
tant powers is the power to be judge of election contests. Such power
normally belongs to courts because it involves judicial power.r67 But
the commission has been given by the constitution "exclusive original
jurisdiction over all contests relating to the elections, returns, and quali-
fications of all elective regional, provincial, and city officials, and ap-
pellate jurisdiction over all contests involving elective municipal offi-
cials decided by trial courts ofgeneraljurisdiction, or involving elective
barangay officials decided by trial courts of limited jurisdiction.',r6t As
already noted, the appellate jurisdiction includes, by virtue of section
50 of B.P. 819.967, the power to issue writs of certiorari,prohibition
gnd milldnmgg.tor
l6rBuac and Bautista v.
COMELEC, G.R. No. 155855, January 26,2ffi4.
r6LDP V. COMELEC, G.R. No. 161265.
February 24,2004: Liberal party (Drilon) v.
COMELEC, G.R. No. 174992, Apt'.l 17, 2Cf7.
tflLoryz v. Roxas, l7 SCRA 756 (July 28,
1966).
tt'Eln l;lores v.
COMELEC,ls4 scRA484 (1990), the court found as unconstirutional
Scction 9 of R.A. No. 6679 which made decisions of municipal trial courts on questions of fact in
burangay elcctions unuppcalublc.
'*Rclunrpugos v. (\rmhu, (i.R. No. Iltl116l, April 2'l ,1995 Edding v. gonrmission 9n
*l lllcctiors,(i.R. No. I l2O6O, JulV l /, l(,X)5.
1084 THE 1987 CONSTITUTION Sec.2
OF THE REPUBLIC OF THE PHILIPPINES
The general rule is that the proclamation of a congressional candi-
date divests COMELEC of jurisdiction in favor of the proper Electoral
Tribunal."o This is true even if the validity itself of the proclamation is
questioned.
It should be noted, however, that in the case of local elected of-
ficials, even after proclamation the COMELEC retains power to de-
cide controversies like correction of manifest enors. The COMELEC
is empowered by the Constitution to enforce and administer all laws
and regulations relative to the conduct of an election. It exercises ex-
clusive original jurisdiction over all contests relating to the elections,
returns, and qualifications of all elective regional, provincial, and city
officials.'''
The enumeration of COMELEC powers excludes jurisdiction
over elections for the Sangguniang Kabataan. Jurisdiction over these is
given to the Department of Local Government.rT2
"Decisions, final orders, or rulings of the Commission on elec-
tion contests involving elective municipal and barangay offices shall be
final, executory, and not appealable." But the non-appealable character
refers only to questions of fact and not of law.'B Moteover, such deci-
sions remain subject to the jurisdiction of the Supreme Court through
the special civil action of certiorari under Rule 65 in accordance with
Article IX, A, Section 7.'70 This implies that other decisions are not im-
mediately executory.'7s
Clearly, too, the Commission, because of Sections 2(1) and (3),
has the power to decide all administrative cases up to and including the
proclamation, "save those involving the right to vote." Jurisdictional
conflicts, therefore, can arise between the Commission on the one hand
in the exercise of its administrative authority, and the Electoral Tribu-
nals and the courts on the other in the exercise oftheirjurisdiction over
r?oPlanas vCOMELEC, G.R. No. 167594, March 10,2006.
r?rAbainza v. Arellano, G.R. No. 1816,14, December 8,2008'
r?2Alunan III v. Mirasol,G.R. No. 108399,July 31, 1997.
173184 SCRA at 490.
'zI RECORD 562. Galido v. COMEI-EC, 193 SCRA 78 (1991). Allirnred in Rivcrl v.
Commission on Elections, 199 SCRA 178 (1991). Sec Regalado's answer. at l9l, to Nttrvrtst'n
dissent, at 1 85.
rilI RECORI) 562.
;"{
Sec.2 ART. IX CONSTITUTIONALCOMMISSIONS
-The 1085
Commission on Elections
contests involving the presidency, vice-presidency, seats in Congress,
and elective municipal and barangay offices.
Before proclamation, any problem should be resolved in a ,,pre-
proclamation" proceeding by the Commission because of its powers
under Section2(l) and (3). The only questions that may not be touched
by the Commission are "those involving the right to vote." Hence, the
COMELEC has the authority to decide whether a person has the con-
stitutional qualifications needed to be voted for even on the national
level.r76
After proclamation, when the controversy should already be a
"contest" in the technical sense (i.e., a defeated candidate seeks to oust
the proclaimed winner and claims the seat), the neat rule should be that
the Tribunals and the courts should have jurisdiction. This in fact was
the pattern that emerged from a large number of cases involving similar
conflicts under the 1973 Constitution.,u
While this may be the neat rule, the Supreme Court under the
1973 Constitution did not always follow a straight path when it came to
dealing with conflicts involving municipal offices. In a series of cases,
both the supreme court and the commission followed an erratic course
in this matter by sometimes recognizing continuing Commission juris-
diction over municipal cases even after proclamation.rT8 However, in
cases where the court had actually assumed jurisdiction, the Supreme
Court invariably,i.e., at least twice, excluded the COMELEC.',
One might ask whether there is a theoretical source for what Jus-
tices Abad Santos and Teehankee characterized as the flip-flopping
of both COMELEC and Supreme Court decisions on the matter. The
r76See
dissenting view of Narvasa, CJ. and Mendoza,,/. in Romualdez-Marcos v. Commis-
sion on Elections, G.R. No. 1 19976, September 18, 1995.
rTTVenezuela
v. COMELEC, 98 SCRA 790 (July 25, 1980); Villegas v. COMELEC, 99
SCRA 582 (September 4, 1980); Porencion v. COMELEC, 99 SCRA 595 (September 4, 1980);
Arcenas v. COMELEC, 101 SCRA 437 (November 28, 1980); Aguinaldo v. COMELEC, 102
SCRA I (January 5, l98l); Mitmug v. COMELEC, 103 SCRA455 (March 24, 1981); paderanga
v. COMELEC, 105 SCRA 123 (June 26, l98l).
rTsSingco v.
COMELEC, l0l
SCRA 420 (November 28, 1980); Gonzales v. COMELEC,
l0l SCRA 7-52 (December 19, l9tt0); Ornar v. COMELEC, t02 SCRA 6l I (February 3, tggl);
Olfatov.COMELEC, 103S(IRA74I (Mlr.ch3I, tgttI):Santosv.COMEI.EC. 103SCRA628
(Mtlch.ll, l9lll): Stntlnkr v. ('()Mlil.li(', 107 S('RA 132 (August 31, l98l).
ItuMogucin v. ('()Mlil ,li(', 104 s('Rn
576 (Mly 26, l98l); scvilll.ie v. loMtjl-l.i(', l97
li('RA l4l (Auguxl ll, l9Hl ).
1086 THE 1987 CONSTITUTION Sec. 2
OF THE REPUBLIC OF THE PHILIPPINES
source, it is submitted, may be found principally in the grant of broad
administrative powers to the Commission. The business of proclaiming
candidates, which normally should be the dividing line between a pre-
proclamation controversy and a contest, is itself subject to election laws
which the COMELEC is bound to administer. Hence, the power of the
COMELEC to examine the validity of proclamations and to nullify or
approve them according to its flndings has been recognized. The broad
discretion of the COMELEC, moreover, is subject to a review power
of the Supreme Court which has been narrowed within the limits of
review by certiorari under Rule 65. Thus, when the COMELEC nul-
lifies a proclamation, the subsisting controversy is reverted to a "pre-
proclamation" status coming under Section2(l) and (3).
Ultimately, therefore, if what is desired is clear consistency, con-
sistency can only be achieved if the moment of proclamation, under
any circumstance, is recognized as the absolute dividing line between
contests and pre-proclamation controversies. Whether, however, such
consistency will serve the purposes of free, orderly and honest elections
is another question.r8o The pattern being followed by the Court in more
recent cases in fact is not to allow undue delay in proclamation.
Illustrative of the policy of not delaying proclamation are Sanchez
v. COMELECT', and Chavez v. COMELEC.'& In both cases the candi-
dates who were trailing in the announced count wanted the COMELEC
to withhold proclamation until a recount could be made of the votes.
In deciding against Sanchez the Court laid down the premise that "the
policy of the election law is that pre-proclamation controversies should
be summarily decided, consistent with the law's desire that the can-
vass and proclamation be delayed as little as possible."'" This policy
is embodied in Section 15 of Republic Act 7166: "For purposes of the
elections for President, Vice-President, Senator and Member of the
House of Representatives, no pre-proclamation case shall be allowed
on mattem relating to the preparation, transmission, receipt, custody
and appreciation of the election returns or the certificate of canvass' as
'mSee Disini v. COMELEC, G.R. No. 52502, December 30, 1982, which lollows thc Vt'rrt'-
zuelaline of cases, but which Teehankee and Abad Santos consider a misapplicationol l ltc Vrlr';tt-
ela rule in that the COMELEC's order excluding certain precincts lionr thc ( illlvitss w.ts itrbitrat y.
rEr
I 53 SCRA 67 ( I 987).
ruil scRA3l5(1992).
rrt.\r'r'rliscttssitttt ol'lltcst'cttst's tttltlt't Articlc Vl, Sr'r'ltott l'l, rrlTrrtl
Sec.2 ART. IX - CONSTITUTIONALCOMMISSIONS IO87
The Commission on Elections
the case may be. However, this does not preclude the authority of the
appropriate canvassing body to correct manifest errors in the certificate
of canvass or election returns before it."
One might ask what the difference there is between the jurisdic-
tion of the GoMELEC before proclamation and its jurisdiction after
proclamation. Or, put differently, what is the difference between the
jurisdiction of the coMELEc over a pre-proclamation controversy and
its jurisdiction over a "contest"? The difference lies in the due process
implications. The coMELEC's jurisdiction over a pre-proclamation
controversy is administrative or quasi-judicial and is governed by less
stringent requirements of administrative due process (although the su-
preme court has insisted that questions on "qualifications" should be
decided only after a full-dress hearing) whereas its jurisdiction over
"contests" is judicial and should be governed by the requirements of
judicial due process. Hence, even in cases over which the commission
has both administrative and judicial power, it does make a difference
whether the commission will treat it as a pre-proclamation controversy
or as a contest.
4. Section 2(3): Powers not given.
There are certain powers which even under the new constitution
still clearly do not belong to the commission. Thus, under section 2(3)
it is not empowered to decide questions "involving the right to vote.,'rE4
The power to determine whether or not a person can exercise or is pre-
cluded from exercising the right is a judicial question,8s and the power
to resolve such question has been excluded from the commission's
powers. section 2(6) places cases involving "inclusion or exclusion of
voters" under the jurisdiction of courts.
Neither does the Commission have the power to transfer
municipalities from one congressional district to another for the
purpose of preserving proportionality. This is not one of the broad
powers granted by Section 2(2). Neither is it what is referred to by the
ordinance Appended to the Constitution, Sections 2 and3,authorizing
the commission to make "minor adjustments." The deliberations of the
I
rN'rAt'tit:lt' X l l, (', Sct liotr 2(.1 ), ()7.1: Articlt: l X, (', Scction 2(3), l 9tl7.
1
l8'l'ttngttltttt v. Abttltttkttr, 4 I S( 'l{ A I , l 2 (1912\. But ser, 'lbvcs v. (irrrrrnission on I jlcc
i liorrs, (X) Ithil. l/O ( l()i I )
1088 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PIIILPPINES
Constitutional Commission on the subject clearly excluded the power
to transfer whole municipalities.'8'
Election cases must first be decided in division. Hence, the coM-
ELEC en banc may not decide an election case still pending before a
division."'
A decision, resolution or ruling of a division is elevated to
COMELEC en banc. However, while a motion to reconsider an inter-
locutory order of a division should be resolved by the division which
issued the interlocutory order, it may be referred to the COMELEC en
banc If all the members of the division agree''88
If a case which should go to the COMELEC en banc is erroneous-
ly filed with a division, it may automatically be elevated to the COM-
ELEC en banc. This is not provided for in the CoMELEC Rules of
Procedure, but such action is not prohibited.''n
However, it is only in the exercise of its adjudicatory or quasi-
judicial powers that the COMELEC is mandated to hear and decide
tases first by division and then, upon motion for reconsideration, by the
COMELEC en banc.The conduct of a preliminary investigation before
the filing of an information in court does not involve the exercise of
adjudicatory function.leo
5. Section 2(4): Deputizing law enforcement agencies'
Section 2(4) says that the Commission may "[d]eputize, with
the concurrence of the President, law enforcement agencies and in-
strumentalities of the Government, including the Armed Forces of thc
Philippines, for the exclusive purpose of ensuring free, orderly, honest,
peacei.rl, and credible elections." It is noteworthy that the power of thc
bommission to deputize law enforcement agencies for the purpose ol'
ensuring free, orderly and honest elections is less than the one givctt
under the 1935 Constitution, which was independent of the Executivc,
The present power can be exercised only "with the concurrence ol'tlto
r86Montejo v. Commission on Elections' 242 SCRA415 (1995)'
r87Muff oz v. COMELEC, G.R. No. 170678, July I 7' 2t[6'
r88Soriano, et al. v. COMELEC, G.R. Nos. 164496-505' Aptil2,2llll7 '
t8eMutilan v. COMELEC, G.R. No. 1712468' April 2' 2(X)7'
rqtBaytan v. C()MFll,t.l(l, (i.R. No. I53945, l.tbrulry 4, 2(X)3: llnlintkrrrg v.
(i.l{. Nos. 15.}()()l ()2,()elolrt:r l(r, 12(X)}.
Sec.2 Sec.2 ART. IX _ CONSTITUTIONALCOMMISSIONS IO8g
The Commission on Elections
President." This is in recognition of the fact that the officers who can be
dr:1-rutized belong to the executive department and are under the juris-
diction of the President as Commander-in-Chief.rer Thus, too, the Com-
mission has no disciplinary powers over the officers it may deputize.
According to Section 2(8), all the Commission can do is recommend
disciplinary action to the President.
the
6. Section 2(5): Registration of parties and organizations.
Section 2(5) authorizes the Commission to register political par-
ties and organizations. Under the 1973 Constitution, a proper under-
standing of the meaning of political parties was important since legal
effects depended on the distinction between a political party and orga-
nizations which were not parties. It was, for instance, important for pur-
poses of determining whether there was a violation of the law on party-
switching or "turn-coatism" and for purposes of "accreditation."re2 The
1987 Constitution, however, has de-emphasized political parties and,
wherever political parties are mentioned, they are lumped together with
"other organizations."re3 It has also done away with the constitutional
concept of accreditation of political parties.rea Thus, in the matter of
registration in section 2(5),organizations other than political parties are
allowed to register and, in Section 8, neither political parties nor other
organizations are allowed representation in registration boards, boards
of inspectors and canvassers and similar bodies. Section 6 expresses
the general principle: "A free and open party system shall be allowed to
evolve according to the free choice of the people, subject to the provi-
sions of this Article." For this reason too the constitution deliberately
did away with the concept of "turn-coatlsp."tes
The concept of "registration," however, remains important.
A political party or organization acquires juridical personality by
registration. A political party or organization can choose to register or
not to register. If it is duly registered, it acquires juridical personality;
if it does not register, it is a simple aggrupation of discrete individuals
l,,t RECORD 62',1 -628, 652-653.
rq28.s., Peralta v. COM[]I,EC,82
SCRA 30,6tt (March ll,
1978); LABAN v. COMELEC.
ll2 s('R A I 96, 2(x)- lo (March 2.5, I 971i ); BrurN,rs, pnt trnNc Cor,tsrrnnroN^t. brw 7t){)-7o5 (19g4).
J
rqr(,/'('.'.8,, Arliclc VI, Scctions l7
and ltt on thc Fllcc:toral Tribunals and (irmmissirm on
Appoirrltrrcnl s.
('()MIll l1(', r"{Atxrrrl lt('('rc(lilltl i()n, st'c llt,tN,ts, Irtu
trnNt. ('r tN.s t.til n t( rN^t ! ,aw 102 705 ( l ()tt4).
r"rl Rli('( )Rl) (ilr I
IO9O THE 1987 CONSTITUTION Sec.2
OF THE REPUBLIC OF THE PHILIPPINES
exercising the right of association, but the association does not enjoy the
benefits deriving from possession of juridical personality. Moreover, an
unregistered party or organization cannot participate in the party-list
system.re6 It should also be added that the power of the Commission to
register includes the power to de-register."?
Registration, aside from conferring juridical personality, serves
other purposes as well. It informs the people of the party's or organi-
zation's existence and of its ideals, and it identifies the parties and its
officers for purposes of regulation by the Commission on Elections.
Because of this last purpose, and as a corollary to the right to form as-
sociations, every political party or organization should be allowed to
register. Section 2(5) makes four exceptions: (1) religious denomina-
tions and sects, (2) those which seek to achieve their goals through vio-
lence or unlawful means, (3) those which refuse to uphold and adhere
to this Constitution, and (4) those which are supported by any foreign
government.
The prohibition of registration of religious denominations and
sects means just that; that is, it refers to religious organizations like the
Catholic church, the various Protestant denominations and non-Chris-
tian religions. It does not refer to political parties which draw their in-
spiration from religious beliefs, such as the Christian Democrats or the
Christian Social Movement. These are not religious sects or denomina-
tions.res Nor is the prohibition intended to prevent priests or religious
leaders from registering as candidates.'ry But an amendment of Bishop
Bacani to balance this limitation on religious denominations by also
prohibiting registration of agnostic groups was not approved.'*
Refusal to uphold the Constitution as a ground for denial of regis-
tration must involve espousal of violent or unlawful means. Moreover,
it is broad enough to include subversion, if it remains a crime.2nt But
the Commission deliberately avoided the use of the word subversion
because of the confused meaning it tended to be given under the Marcos
regime.2o2
t%Article VI, Section 5(1).
'9?I
RECORD 636.
te8ld. See alsoid. at646-647,649
tqld. at 634.
t:nld. at64'l_648.
lt
'?orld. 633-634.
lor/r/. tt (r5 I -652.
Sec.2 ART. IX _ CONSTITUTIONALCOMMISSIONS IO91
The Commission on Elections
Finally, foreign support which can be a ground for denying regis-
tration must come from foreign governments or their agencies.2l3
It is obvious therefore that, because there are some basic pre-req-
uisites set down for registration which can be grounds for dispute, reg-
istration is not a mere ministerial duty of the Commission.re
7. Section 2(6): Prosecution ofelection offenses.
Section 2(6) authorizes the Commission to investigate and pros-
ecute violations of election laws. This power has been recognized as
exclusive and is evidently intended to enable the Commission to in-
sure free, orderly and honest elections. Thus, Fiscals or prosecutors
can file information charging an election offense only when they have
been deputizedby the Commission.2's Nor can the Tanodbayan on its
own prosecute election offenses.rft However, this does not mean that
the COMELEC has the obligation to search for the evidence needed.
"The task of the COMELEC as investigator and prosecutor, acting upon
any election offense complaint, is not physical searching and gather-
ing of proof in support of a complaint for an alleged commission of an
election offense. A complainant, who in effect accuses another person
of having committed an act constituting an election offense, has the
burden, as it is his responsibility, to follow through his accusation and
prove his complaint.'20'
When Fiscals or Prosecutors are deputized by the COMELEC,
f they come under the authority of the COMELEC in the performance
i
of the prosecutory function. However, disciplinary authority over such
i
Fiscals and Prosecutors remain with the Secretary of Justice. The most
: the COMELEC can do is recommend disciplinary action.2o8
I
When the Commission acts as prosecutor, its actions and decisions
are subject to the authority of the trial judge. Even after the Commis-
sion has decided that an information be filed, a trial judge before whom
the information is filed may still order reinvestigation. The provision in
""/r/. at 656-660.
2r!/r1. at 633.
r"ll'crrgrlc v. .luclgc Inting, lltT
S('RA 7t1t1,794-795 ( 1990); Kilosbayan v. COMELEC, G.R.
i
No. l2tt054. Octohcr l(r, 1997.
I '!""( irrJrus v. 'liuttxlhrryurr, 149 S('R A 2lt I ( I 9tt7).
r"/Kikrshtylrr v. ('( )Mlil.l i(', ( i.l{. No. l 2lt054, ( )ctotrcr 6, 997.
J
1 1
"'*'liur v ('( )Mlll
u
,l('. ( i l(. No. I Ll()t) t. ( tt tohcr'4, I()()4.
lo92 THE 1987 CONSTITUTION Sec.3
OF THE REPUBLIC OF THE PHILIPPINES
Article IX, A, Section 7 which says that decisions of the Commissions
may be brought to the Supreme Court on certiorarl refers to decisions
rendered in actions or proceedings taken cognizance of by the Com-
mission in the exercise of its adjudicatory or quasi-judicial powers such
as decisions in election contests. It does not refer to the prosecutory
function of the Commission. Once the Commission files an informa-
tion, the trial court acquires jurisdiction over the case, may review the
prosecutory action taken by the Commission and may order whatever
is appropriate.'?@
The power of the Commission under Section2(6) covers not just
criminal cases but also administrative cases. Thus, where the Commis-
sion has deputized a City Prosecutor as election canvasser, such Pros-
ecutor cannot claim immunity from the power of the Commission on
the argument that he comes under the executive department. The Com-
mission has power over all persons required by law to perform duties
relative to the conduct of elections. However, under Section 2(8), thc
Commission may merely issue a recommendation for disciplinary ac-
tion to the President.2'o
8. Section 2(7),(8),and (9): Recommendatory powers.
Section 2(7),(8), and (9) enumerate some specific recommenda-
tory powers.'?l'
Snc.3. Tnr CorrurssroN oN Er,rcrrons MAy srr rN aArvc oR
IN TWO DMSIONS, AND SHALL PROMULGATE ITS RULES OF PROCEDURE
IN ORDER TO EXPEDITE DISPOSITION OF ELECTION CASES, INCLUDINC
pRE-pRocLAMATroN coNTRovERsrEs. Ar,r, sucn ELECTIoN cAsns
SHALL BE HEARD AND DECIDED IN DMSION, PROVIDED THAT MOTIONS
FOR RECONSIDERATION OF DECISIONS SHALL BE DECIDED BY THE
Couurssrox EN BAN'.
1. Commissiondecisions.
Whether the Commission sits en banc or in division, decisions rxr
any case or matter are reached by majority vote. The rules <lf thc (\rrrr
xe People v. Delgado, 189 SCRA 715, 720-'122 (1990).
'"'Tan v. COMELEC,237 SCRA 353, 35tt-359 ( 1994).
2rrlt would seem fiom Section 2(7) thtt thc rrttter o{'limiting pltces fbr prt4rnglnrlrr rrrnle r I
tls is frrr (irrrgrcss nnd not lirr thc (irnrruissiort kr rlccidc.'I'hc (krmmission's lurrctiorr lr rrrornly
rccrrrrrrncrllutory. Id. trl 662.
Sec.4 ART. IX CONSTITUTIONAL
-The COMMISSIONS
Commission on Elections
mission may not require unanimity.2', But Section three suggests that
the Rules should expedite disposition of election cases. Moreover, sec-
tion 257 of the omnibus Election code says that the GOMELEC shall
decide all election cases brought before it within ninety days from the
date of submission. This, however, is not a hard and fast rule. The court
has recognized that, considering the tribunal's manpower and logistic
limitations, it is sensible to treat the procedural requirements on dead-
lines realistically. overly strict adherence to deadlines might induce the
commission to resolve election contests hurriedly by reason of lack
of material time. In the view of the court, this is not what the framers
of the code had intended since a very strict construction might allow
procedural flaws to subvert the will of the electorate and would amount
to disenfranchisement of voters.2r3
The last sentence of Section 3 prescribes two important rules.
First, motions for reconsideration are decided en banc; but, a decision
en banc is required only when the subject for reconsideration is a "deci-
sion," that is, a resolution of substantive issues. Thus reconsideration of
a dismissal based on lack of interest may be heard in division.2ra More-
over, the requirement that motions for reconsideration must be heard
en banc coupled with the requirement of Rule 65 that reconsideration
must precede certiorari in effect limits certiorari to decisions of the
COMELEC en banc.2ts
The second rule is that election cases are decided in division. For
this reason, Any decision by the commission en banc as regards elec-
tion cases decided by it in the first instance is null and void.,r6
Src.4. Tnr CouurssroN MAy, DURING THE ELEcrroN pERroD,
SUPERVISE OR REGULATE THE ENJOYMENT OR UTILIZATION OF ALL
FRANCHISES OR PERMITS FOR THE OPERATION OF TRANSFORTATION
AND OTHER PUBLIC UTILITIES, MEDIA OF COMMUNICATION OR
TNFORMATION,ALL GRANTS, SPECIAL PRMLEGES, OR CONCESSIONS
cRANTED By rHE GovnnnunNt oR ANy suBDrvIsIoN, AGENcy, oR
INSTRUMENTALITY THEREOT', INCLUDING ANY GOVERNMENT.OWNED
oR coNTRoLr,ED coRpoRATIoN oR ITS suBsIDIARy. Sucg suprnvrsroN
'rrArticlc lX, A, Scction 7; Cun v. Commission on lllections, I 56 SCRA 5lt2 ( l9g7).
rilAlvtrrz v. ('()Mlil.li(', (i.R. No. 142527, March
l,2(X)1.
1r'Sitltrzur,.lr. v.(irnrrrrissionon
lilcctions, llt4SCRA43S,44l (lggo).
'r'Reycs v. Regiourl l'rinl (irrrrt,(i.R. l()lllltt(r, Mny 5, l()95.
"nSollcr v. ('( )Mlll .ll('. ( i l{ No. I l(fll5 t. ga1111111[pr 5,2(XX).
lO94 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
OR R,EGULATION SHALL AIM TO ENSURE EQUAL OPFORTUNITY, TIME,
AND SPACE, AND THE RIGHT TO REPLY, INCLUDING REASONABLE, EQUAL
RATES THEREFOR, FOR PUBLIC INTORMATTON CAMPATGNS AND FORUMS
AMONG CANDIDATES IN CONI\ECTION WITH THE OBJECTIVE OF HOLDING
FREE, ORDERLY, HONEST, PEACEFUL, AND CREDIBLE ELECTIONS.
1. Regulation of public utilities, media, franchises.
Transportation and other public utilities as well as mass media
play a very important role in elections and can be used to disrupt free,
orderly and honest elections. During election periods therefore they
may be supervised or regulated by the Commission. Constitutional
problems can arise from this power of the Commission principally in
the areas of due process, equal protection, and freedom of speech and
press. These are treated in their proper place under the Bill of Rights.
Jurisprudence under the 1973 Constitution, moreover, has established
that the power of the Commission subsists not just during the period
of voting for public officers but also during referenda and plebiscites
especially if constitutional amendments are at issue. As the Court said
in UNIDO v. COMELEC''zq
Be it born in mind that it has been one of the most steadfast
rulings of this Court in connection with such plebiscites that it is
indispensable that they be properly characterized to be fair sub-
mission. ... We are of the firm conviction that the charter's refer-
ence to honest elections connotes fair submission in a plebiscite. It
cannot be otherwise, for ... nothing can be of more transcendental
importance than to vote in a constitutional plebiscite.
The Supreme Court under the peculiar circumstances of the 197-l
Constitution likewise ruled that when the President speaks over radio
or TV he speaks not as representative of his party but of the people antl
that therefore opposition parties have no right to demand equal timc.,,'
It was against this background that the 1986 Constitutional Commis
sion inserted the phrase "equal opportunity, time, and space, and thc
right to reply, including reasonable, equal rates therefor.'t'e
rr?l(M SCRA 17,37 (April 3, lgttl).
trr/r/. at 38-39.
'll'gl RIIC]ORD 632,662-66f
.
Sec.4 Sec.4 ART. IX _ CONSTITUTIONAL COMMISSIONS
The Commission on Elections
The leading case on the subject under the 1987 constitution is Na-
tional Press Club v. Commis sion on Electi6ns.22o Section I 1 (b) of R.A.
No. 6646, the Electoral Reforms Law of 1987, makes it unlawful "for
any newspapers, radio broadcasting or television station, other mass
media, or any person making use of the mass media to sell or to give
I
free of charge print space or air time for campaign or other political pur-
i
poses except to the commission as provided under Section 90 and 92
I
of Batas Pambansa Blg. 881." Batas pambansa Blg. ggl commands the
I
COMELEC to procure print space and broadcast time to be allocated
I
impartially among the candidates. The National press club challenged
the validity of the provision on the argument that it offended against
freedom of expression.
The objective of the law was the equalization, as far as practi-
cable, of the situations of rich and poor candidates by preventing the
former from enjoying the undue advantage offered by huge campaign
"war chests." No one found fault with the objective especially since
it had been given constitutional status by Section 4. The major issues
raised against the law, however, by the various oppositors were based
on the Bill of Rights. These are discussed under Article III. For the
purpose of this Section suffice it to cite the following observation made
bY the Q6ult'zut
The technical effect of Article IX(C) (4) of rhe constiturion
may be seen to be that no presumption of invalidity arises in re-
spect of exercises of supervisory or regulatory authority on the part
of the COMELEC for the purpose of securing equal opportunity
among candidates for political office, although such supervision
or regulation may result in some limitation of the rights of free
speech and free press. For supervision or regulation ofthe opera-
tion of media enterprises is scarcely conceivable without such ac-
companying limitation. Thus, the applicable rule is the general,
time-honored one that a statute is presumed to be constitutional
-
and that the party asserting its unconstitutionality must discharge
the burden of clearly and convincingly proving that assertion.
In'207S('RA l(1992)
"r/r/. ttl {) lO.

1096 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
For this reason, when the law was again challenged in Osmefia v.
COMELEC ]22 the Court asked petitioners to rebut the presumption of
validity. No rebuttal evidence was presented.
The 1995 case of Philippine Press Institute v. Commission
Elections,223 however, ruled that print media may not be compelled to
allocate free space to the Commission. Such would amount to a prohib-
ited taking of property without just compensation.
It should be noted, however, that the power to regulate media
is given to the COMELEC. Section 4 is a delegation of rule-making
authority. Hence it is submitted that, should the law be repealed, the
COMELEC would still have the power to impose similar regulation.
Other important decisions on media and on public opinion sur-
veys relating to elections are discussed under Article III, Section 4."a
SBc. 5. No
tLnnoN, AMNESTv, pARoLE, oR suspENSIoN
OF SENTENCE FOR VIOLATION OF ELECTION LAWS, RULES, AND
REGLJLATToNs SHALL BE GRANTED By rIrE PnpsInpNr wITHour rHE
FAvoRABLE REcoMMENDATToN oF THE Couurssrox.
1. Pardonsretc.
This provision is the same as that in the 1973 Constitution except
for the specification that the recommendation of the Commission must
be "favorable."
Snc.6. A rnnr AND opEN pARTy sysrEM sHALL BE ALLowED
TO EVOLVE ACCORDING TO THE FREE CHOICE OF THE PEOPLE, SUBJECT
To rHE pRovrsroNs oF TIrIs Anrrcr-n.
Src.7. No vorns cAsr IN FAvoR oF A IoLITICAL pARTy,
ORGANIZATION, OR COALITION SHALL BE VALID, EXCEFI FOR THOSR
REGISTERED UNDER THE PARTY.LIST SYSTEM AS PROVIDED
CoNsrrrurron.
Src. 8. Por,rrrcll IARTIEs, oR oRGANIZATIoNs oR coALITIoNs
RI]GISTERED UNDER TIIE PARTY.LIST SYSTEM, SHAI,I, NOT III:
REpRESENTED IN THE votpnst REGISTRATION B()ARl)sr BoARt)s ()t,'
?22G.R.
No. l3223l,March 31, 1998.
223G.R.No. 1 19654, May 22, 1995.
z4ABS-CBN v. COMEI-EC, (i.R. No. lll,lll(r,.l:urrr:tly ltt. l(XX): SWS
G.R. No. 147571, May 5,2(X)1.
Sec.8 ART. IX - CONSTITUTIONALCOMMISSIONS l09"l
Sccs.5-lJ The Commission on Elections
ELECTION INSPECTORS, BOARDS OF CANVASSERS' OR OTHER SIMILAR
BoDrES. Howovrn, THEY sHALL BE ENTITLED To APPoINT PoLL
WATCIIERS IN ACCORDANCE WITH LAW.
on 1. From two-party, to multi'party, to one-party' to multi'
party system.
The 1935 Constitution and Philippine election law up to the 1971
Election Code gave a preferred position to the two major political par-
ties. The 1935 Constitution gave representation in the Commission on
Appointments to the various parties proportional to the membership
strength of the parties in the Senate and House of Representatives- But
in both the Senate and House Electoral Tribunals only the two major
parties enjoyed representation.
Under the l97l Election Code only the two major parties were
represented in the Election Registration Board, in the Board of Election
lnspectors, in the Committee on Printing of Official Ballots, and in the
provincial body charged with the duty to verify the official ballots sent
to the provinces by the tsureau of Printing.
These constitutional and statutory advantages resulted in the stran-
gle hold which two major political parties had on the electoral process.
The original 1973 Constitution had wished to liberate the elec-
toral process from this stranglehold.It was hoped that the abolition of
the Commission on Appointments and of the Electoral Tribunals would
contribute to this liberation. But the abolition of the Commission on
Appointments merely placed appointments completely in the hands of
the President who represented the party in power. Likewise the aboli-
tion of the multi-party Senate and House Electoral Tribunals, where
party representation was balanced by the presence of three Supreme
Court Justices, merely made possible the transfer of the Tribunal func-
IN THIS
tions to a one-party Commission on Elections.
It was also hoped that the provision on accreditation, with pos-
sibility for accreditation on the local level, would help strengthen other
political parties. But the l98l amendments removed the possibility for
accrcditation on the local level and tightened the requirements for na-
lional accrcditation. Moreovcr, thc rule on accrcdit:ttitln was amendcd
in lgtll irr rlrdcr to hroadcn thc privilcgcs ol'itcc:rc:tlitctl pirrlics.'fhis
v ('()Mlrl .li( lirrthr:r tlirttiltisltctl lhe: chitttccs ttl'sttrvivitl tll'tllltcl' pitt'liers.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Sec.9 Sec' I ARr' IX - ?r:H':f)*T?'yMISSIONS 10ee

Finally, the provision for regional instead of district or province ,,campaign period" refers to the period of active solicitation
The
representation in the Batasan diminished even more the chances for
of votes. This may be set by the legislature for a period less than the
growth of small parties.
"election period" in Section 9."6
The clear impression, therefore, which had emerged from the con_
stitutional scheme prior to the 1987 constitution was that the electoral Snc. 10. BoNt rnn cqTNDIDATES FoR ANY PUBLIC OFFICE sHALL

system planned and plotted to insure the perpetuation of the party in BE FREE FROM ANY FORM OF HARASSMENT AND DISCRIMINATION.

power. The ideal of a multi-party system which it was hoped in l97l-

1972 would take the place of the two-party system had given way to a
one-party system.
The 1987 Constitution once again makes afi at promoting a
multi-party or open party system. As commissioner ople said, a free
and open party system means "a disengagement from the sterile two-
party system of the past and the multi-party system will be allowed to
develop.'.^ The "party-list system," already discussed underArticle VI,
is meant to be an instrument for fostering the multi-party system. And
once again no political party or group is given representation in elec-
toral bodies. some have observed that this will only result in a preferred
position for the party in power; but the answer to this can be a vigorous
implementation of that part of section 8 which says that all parties and
organizations "shall be entitled to appoint poll watchers in accordance
1. Equal protection of candidates.
Section 10 is nothing more than a specification of the equal pro-
tection clause of the Bill of Rights. Report No. 1 of the Commission on
Elections Committee of the 1971 Constitutional Convention explained
the provision thus:
This provision is to be understood as having special reference to
unaffiliated or partyless bona fide candidates. Extending to them the
equal protection of the law is but a matter of elementary justice. If the
State guarantees equal protection to groups of individuals such as po-
litical parties, it is but logical that the same protection be made available
to individuals, separately, without discrimination in any form'
Src. 11. Funos cnnrrrlED BY TIIE CouurssroN AS NECESSARY

with law." TO DEFRAY THE EXPENSES FOR HOLDING REGULAR AND SPECIAL
ELECTIONS, PLEBISCITES' INITIATIVES' REFERENDA' AND RECALLS'
9. SHALL BE PROVIDED IN THE REGULAR OR SPECIAL APPROPRIATIONS
Snc. UNr,rss orHERwrsE FrxED By rnr CouurssroN rN
SPECIAL CASES, THE ELECTION PERIOD SHALL COMMENCE NINETY AND, ONCE APPROYED' SHALL BE RELEASED AUTOMATICALLY UPON
DAYS BEFORE THE DAY OF ELECTION AND SHALL END THIRTY DAYS CERTIFICATIoN By rHE Cnnnlrl.tl oF TI{E Coulrrssrox.
THER.EAFTER.
1. Fiscal autonomY.
1. "Election period." This provision, together with the exemption of the Commission
The "election period" must be distinguished from the ,.campaign from pre-audit, should help towards strengthening the independence of
period." The fbrmer refers to the period of time needed for administer- the Commission.
ing an election. It can thus go beyond the date for the casting of ballots.
section 9 sets it at ninety days before the day of the election to thirty D. The Commission on Audit
days thereafter. In special cases, however, the commission is autho-
SncrtoN 1. (1) THnnB SHALL BE I Colrlrrssron oN Aunrr
rized to fix a different period.
coMposnD on I CnntnlrAN AND rwo CoulrlssloNERsr wHo sHALL
Br,) NATUttAt,-BoRN cITIzENs oF THIt Pult-tpptrltns ANDr AT THlt rIMn' oF

rrl RIICORD irt rllso at 63(r. r"'l'crtltt

66O. i
v. ('()Mlil.li('. lt2 li('RA.l().75 (Mrrreh I I' l97lf)

J
 1100 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
THEIR APPOINTMENT, AT LEAST THIRTY.FIVE YEARS OF AGE, CERTIFIED
PUBLIC ACCOUNTANTS WITH NOT LESS THAN TEN YEARS OF AUDITING
ExrERIENcE, oR MEMBERS oF THE Pnnrpprxr Ban wno HAvE BEEN
ENGAGED IN TI{E PRACTICE OF LAW FOR AT LEAST TEN YEARS, AND
MUST NOT HAVE BEEN CANDIDATES FOR ANY ELECTIVE POSITION IN
TIIE ELECTIONS IMMEDIATELY PRECEDING THEIR APPoINTMENT. AT
No rIME sHALL ALL Mrunnns oF THE CovrurssroN BELoNG To rIrE
SAME PROFESSION.
(2) Tur Cna.rnulN AND rHE CoulrrssroNpRs
ApporNTED By rHs PnBstnrNT wITH THE coNsENT oF THE
oN ApponrMENTs FoR A TERM oF SEVEN yEARS wrrHour
REAPPOINTMENT. OT THoSE FIRST APPoINTED, THE CHAIRMAN
SHALL HoLD OFFICE FoR sEVEN yEARs, oxc CoultssIoNER
yEARs, AND TrrE orsen CouuIssroNER FoR THREE yEARs, wrrHour
REApp0INTMENI. AppoInruENT To ANy vACANCy sHALL BE oNLy
FOR THE UNEXPIR.ED PORTION OF TI{E Tf,RM OF THE PREDECESSOR.
IN to casn sHALL ANy Mplrnrn BE AppoINTED oR
TEMPORARY OR ACTING CAPACITY.
1. Purpose, organization, composition, appointment.22T
Congress, through its power to tax, raises public funds and,
through its power to appropriate, authorizes the expenditure of pub-
lic funds for specific purposes. various administrative officials collect,
keep and expend these public funds and are required to keep accurate
financial records. It is the function of the commission on Audit to ex-
amine the accuracy of the records kept and to determine whether expen-
ditures have been made in conformity with law and to take corrective
action when necessary. It is therefore through the commission on Audit
that the people can verify whether their money has been properly spent.
The Commission is composed of a Chairman and two Commis-
sioners. These must be (l) natural-born citizens of the philippines, (2)
at the time of their appointment, at least thirty-five years of age, (3) cer-
tified public accountants with a minimum of ten years of auditing expe-
rience, or members of the Bar with a minimum exposure of ten years in
the practice of law
profession
- but at no time shall all of them belong to the same
and (4) they must not have been candidates for any elec-
-
tive position in the elections immediately preceding their appointment.
rtl,trr I Rli('()Rl) 5.12 5.13 lir1 t,6rry1ris6n wilh l()7.t
'r.visirrrs.
Sec.2 ART. IX - CONSTITUTIONAL COMMISSIONS 1101
The Commission on Audit
The Chairman and the Commissioners are appointed by the Presi-
dent with the consent of the Commission on Appointments, and their
terms of seven years each, like those of the members of the Commission
on Elections, are staggered. Reappointment and temporary appointment
or designation are absolutely prohibited.
Snc. 2. ( 1) Tun ConarurssroN oN Auorr sHALL lrAvn rHE PowER t
AUTHORITY,AND DUTY TO EXAMINE'AUDIT'AND SETTLE ALL ACCOUNTS
SHALL BE PERTAINING TO THE REVENUE AND RECEIPTS OF' AND EXPENDITURES
Couurssroru OR USES OF FUNDS AND PROPERTY' OWNED OR HELD IN TRUST BY' OR
PERTAINING Tor THE GovnnNwnrr oR ANY oF rrs suBDlvrsloNst
AGENCIES, OR INSTRUMENTALITIEST TNCLUDING GOVERNMENT-OWNED
FoR FIvE AND CONTROLLED CORPORATIONS WITH ORIGINAL CHARTERS' AND ON
A posr-AUDIT nlsls: (l) coNSTrrurIoNAL BoDIEST coMMISsIoNs AND
OFFICES THAT HAVE BEf,N GRANTED FISCAL AUTONOMY UNDER TIIIS
ConsrrrrrrroN; (n),luroNoMous srATE coLLEGES AND UNIvERSITIES ;
DEsTGNATED IN A (c) ornrn covERNMENT-owNED oR coNTRor,LED coRPoRATIoNs AND
THEIR suBSTDIARIES; mn (o) sucH NoN-covERNMENTAL ENTITIES
RECEIVING SUBSIDY OR EQUITY' DIRECTLY OR INDIRECTLY' FROM OR
TIIROUGH THE GOVERNMENT' WHICH ARE REQUIRED BY LAW OR THE
GRANTING INSTITUTION TO SUBMIT TO SUCH AUDIT AS A CONDITION
oF suBsIDy oR EQUITY. Howrvnn, wHERE THE INTERNAL coNTRoL
sysrEM oF TrrE ATJDITED AGENCIEs Is TNADEQUATT, tne ColturssroN
MAY ADOPT SUCH MEASURES' INCLUDING TEMPORARY OR SPECIAL
PRE.AUDIT, AS ARE NECESSARY AND APPROPRIATE TO CORRECT TIIE
DEFTCIENcIES. Ir snnr,r, KEEP THE GENERAL ACCoUNTS oF THE
GovnnnturNr AND, FoR sucH PERIoD AS MAY BE PRovIDED BY LAwt
PRESERVE THE VOUCHERS AND OTHER SUPPORTING PAPERS PERTAINING
THERETO.
(2) Tun CouurssloN sHALL HAvE ExcLUSIvE AUTHoRITY,
SUBJECT To rHE LIMITATIoNS IN THIS Antlcr-o, To DEFINE THE
SCOPE OF ITS AUDIT AND EXAMINATION' ESTABLISH THE TECHNIQUES
AND METHODS REQUIRED THEREFOR' AND PROMULGATE ACCOUNTING
AND AUDITING RULES AND REGULATIONS' INCLUDING THOSE FOR THE
PREVENTION AND DISALLOWANCE OF IRREGULAR' UNNECESSARY'
EXCESSIVE, EX'TRAVAGANT' OR UNCONSCIONABI,E EXPENDITURES' OR
TJSES OF GOVERNMENT FUNDS AND PROPERTII]S.
l. Powers and functions.
Scclion 2 givcs a hroad oullinc tll'thc powcrs attcl lilnctions <ll'
thc ('6nlrrissirln.'Ihcy rniry lrc clirssilicrl tlrus: (I) lo rrxittttittt: ittttl ittttlil
 THE 1987 CONSTITIJTION Sec.2 Sec,2 ART. IX - CONSTITUTIONAL COMMISSIONS r 103

OF THE REPUBLIC OF THE PHILIPPINES The Commission on Audit

all forms of government revenues; (2) to examine and audit all forms The provision on post-audit is a recognition of the fact that there
of government expenditures; (3) to settle government accounts; (4) to are certain government institutions which can be hampered in their op-
define the scope and techniques for its own auditing procedures, (5) to eration by pre-audit requirements. However, in recognition of the ef-
promulgate accounting and auditing rules "including those for the pre- fectiveness of pre-audit, the Constitution also provides that, even with
vention and disallowance of irregular, unnecessary, excessive, extrava- respect to these institutions, pre-audit may be imposed when found to
gant, or unconscionable expenditures," and (6) to decide administrative be necessary.232
cases involving expenditure ofpublic funds.
The power of the Commission on Audit to settle government ac-
It should be noted that the power of the Commission to define the counts has reference only to liquidated claims and not to unliquidated
scope of its audit and examination and to establish the techniques it will claims. In this regard, the power of the Commission is no more than
follow is exclusive. This is intended to prevent conflict.22s These mat- that of Treasury officials under the Jones Law, which was merely to
ters, after all, require special expertise. settle accounts and not claims. As explained in Compafiia General de
Tabacos v. French and Unson:233
The auditing authority of the Commission over government-
owned corporations extends only to those "with original charter."22s An account is something which may be adjusted and liqui-
Moreover, it has authority not just over accountable officers but also dated by an arithmetical process . . . But no law authorizes Trea-
over other officers who perform functions related to accounting such sury officials to allow and pass in accounts a number not the result
as verification of evaluations and computation of fees collectible, and of numerical computation upon a subject within the operation of a
the adoption of internal rules of control. An Evaluator/Computer, for mutual part of a contract. Claims for unliquidated damages require
instance, is an indispensable part of the process of assessment and col- for their settlement the application of the qualities of judgment and
lection and comes within the scope of the Commission's jurisdiction.r3o discretion. They are frequently, perhaps generally sustained by ex-
traneous proof, having no relation to the subjects of the contracts,
The Commission, however, has only post-audit authority over: which are common to both parties. ... The result to be reached in
"(a) constitutional bodies, commissions and offices that have been such cases can in no just sense be called an account, and are not
granted fiscal autonomy under this Constitution; (b) autonomous state committed by law to the control and decision of Treasury account-
colleges and universities; (c) other government-owned or controlled ing officers.
corporations and their subsidiaries; and (d) such non-governmental en-
On this basis, the Supreme Court said in Phil. Operations, Inc. v.
tities receiving subsidy or equity, directly or indirectly, from or through
Auditor General:8.
the government, which are required by law or by the granting institution
to submit to such audit as a condition of subsidy or equity. However, Having come to the conclusion that under the Jones Law
where the internal control system of the audited agencies is inadequate, and the laws in force up to the time of the adoption of the Con-
the Commission may adopt such measures, including temporary or spe- stitution the Auditor General has no jurisdiction or power to take
cial pre-audit, as are necessary and appropriate to correct the deficien- cognizance of claims for unliquidated damages, we now come to
cies." Moreover, even in cases where pre-audit is allowed and pre-audit the question as to whether under the provisions of the Constitution
has already been performed, the Commission is not estopped from mak- and the laws enacted thereafter by Congress, such power may not
ing a post-audit.r,' be considered as having been lodged in the Auditor General. An
examination of the provisions of the Constitution fails to disclose

"81d. at 533.
2r')Davatl Watcr Districl v. Civil Scrvicc (bnrrrrission and Cornnrission on Audit, (i.R. Nos ),rl RIi('ORI) at (r02 (){xr. An amenrlmcnt to prohihit private auditors frorn attditing ac
95237-13, Scptcnrbcr I l,
1991. corrnts ol govcrtrntcttl ittstitrttitltts wils n()t approvetl. /r/. at 614-615-
l0Miurluil v. l)onrilgo,227 S('ltA 2O6 (l()()l). rr'}) I'hil. 14.42 ( l9l9).
rrrl)cvt'lttplttt'ttl llttnk ol llrt' l'hilillgrrrrt's rutt)4 I'lril tl()tl. l{7() ( l()5'l).
v. (irrrrrrrissiorr orr Arrtlit,:l II S('RA ,)().r ( I9()4).
 1104 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
any power vested in or granted to the Auditor General to consider
claims. All that is vested in the Auditor General is the settlement of
accounts. "Accounts," because ofthe absence ofany reasons to the
contrary, must be deemed to have the same meaning as accounts
under the laws in force before the approval of the Constitution.
The Constitution does not grant the Auditor General the right to
consider claims. After the promulgation of the Constitution, the
power was granted under the provisions of Commonwealth Act
No. 327. We have examined this law, and we find nothing there-
in to show that the term "moneyed claims," the jurisdiction over
which is granted the Auditor General, should not be interpreted in
the same sense that it was understood prior to the adoption of the
Constitution.
It is this same power of the Auditor General which has been
passed on to the Commission on Audit. Succinctly, Insurance Co. of
North America v. Republiclis put it thus: "stated otherwise, where the
existence of a specffic and fixed debt is the issue, the Auditor General
has power to act on the claim; but when not only the existence but also
the amount of an unfixed and undetermined debt is involved, said of-
flcial has no competence to consider such claim."
But while the COA can decide money claims based on law, if a
money claim is denied by a law, COAhas no authority to pass judgment
on the constitutionality of ft1e Iny7.z:o
The duty to settle an account and order payment may also come
from an order of the civil Service commission that backwages are due
a person who has been illegally dismissed. The COA may not counter-
mand such order. Back wages are not an irregular, unnecessary, exces-
sive or extravagant expense.237
In Polloso v. Gangan,zl8 the National Power Corporation hired the
services of a lawyer without complying with a circular requiring prior
written approval of the solicitor General. when the coA disallowed
payment to the lawyer, it was argued that the circular requiring approval
by the Solicitor General was unconstitutional because it restricted the
practice of law. The Court said that the circular was merely a safeguard
1520 Phil. Law Decisions
70 I , September 15, l96j .
2r6Parrefr
o c. COA, G.R. No. I 62224, Jun e'1, 2001
']ut.ly,ct al. v. ('()A. (i-R. No. l.l06tt5, March 2t. 2(XX)
r'8(;.11. N(). l4056.l,.luly
14, .l(XX).
Sec. 2
Sec.2 ART. IX -_ CONSTITUTIONAL COMMISSIONS ll05
The Commission on Audit
to prevent irregular, unnecessary, excessive and extravagant or uncon-
scionable expenditures.
Another way of looking at the authority of the Commission on
Audit, stated in terms of the authority of the Auditor General, was ex-
pressed, under the 1935 Constitution, in Guevarra v. Gimenez thus:23e
Under our Constitution, the authority of the Auditor General,
in connection with expenditures of the Government is limited to
the auditing of expenditures of funds or property pertaining to, or
held in trust by, the Government or the provinces or municipalities
thereof (Article XI, Section 2, of the [1935] Constitution). Such
function is limited to a determination of whether there is a law
appropriating funds for a given purpose; whether a contract, made
by the proper officer has been entered into in conformity with said
appropriation law; whether the goods or services covered by said
contract have been delivered or rendered in pursuance of the pro-
visions thereof, as attested to by the proper officer; and whether
payment therefor has been authorized by the officials of the cor-
responding department or bureau.
Guevara continues:
If these requirements have been fulfilled, it is the ministe-
rial duty of the Auditor General to approve and pass in audit the
voucher and treasury warrant for said payment. He has no discre-
tion or authority to disapprove said payment upon the ground that
the aforementioned contract was unwise or that the amount stipu-
lated thereon is unreasonable. If he entertains such belief, he may
do no more than discharge the duty imposed upon him by the Con-
stitution (Article XI, Section 2[1935]),*to bring to the attention of
the proper administrative officer expenditures of funds or property
which, in his opinion, are irregular, unnecessary, excessive or ex-
travagant." This duty implies a negation of the power to refuse and
disapprove payment of such expenditures, for its disapproval, if he
had authority therefor, would bring to the attention of the afore-
mentioned administrative officer the reasons for the adverse action
thus taken by the General Auditing office, and, hence, render the
irnposition of said duty unnecessary.
This sccond part of thc Guevaru pronouncement no longer
applics. Whcrcas undcr Articlc Xl, Scction 2, of the 1935 Constitution
'',(rS('l{Al{O7.ttll1ltl(r.)) ,St,rrlv,Villctrusv Artrlilot(it'ttct:tl. lt'lS('l{Al{//(l()((r)
 I 106 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
the Auditor General could not correct "irregular, unnecessary, excessive
or extravagant" expenditures of public funds but could only ..bring
[the matter] to the attention of the proper administrative officer,"
under the 1987 constitution, as also under the 1973 constitution, the
commission on Audit can "promulgate accounting and auditing rules
and regulations including those for the prevention and disallowance
of inegular, unnecessary, excessive, extravagant, or unconscionable
expenditures or uses of government funds and properties." Hence,
since the commission on Audit must ultimately be responsible for the
enforcement of these rules and regulations, the failure to comply with
these regulations can be a ground for disapproving the payment of a
proposed expenditure. The court therefore has upheld the authority of
the commission to disapprove payments which it finds "excessive and
disadvantageous to the government."24. Likewise, the Supreme court
has upheld the authority of the commission to determine the meaning of
"public bidding" and when there is "failure" in the bidding.2ar Moreover,
where an expenditure is found to be unnecessary according to the rules
issued by the commission, the commission has authority to disallow
it, such as a contract for a foreign consultant, even if disallowance will
mean discontinuance of foreign aid.ro, The authority of the commission
to disallow a contract exists even after it has been executed and goods
have been delivered;2a3 in such case, the official entering into the contract
is personally liable.,*
The constitutional competence of the commission on Audit, how-
ever, relates solely to the administrative aspect of the expenditure of
public funds. The commission has no competence relative to the crimi-
nal aspect of irregular expenditures. Hence, the commission's approval
of vouchers does not preclude an enquiry by a provincial fiscal to deter-
mine whether criminal liability has been incurred.24s
2aDingcong v. Guingona,
Jr., 162 SCRA 782 (19gg); Caltex philippines v. Commission
on Audit, G.R. No. 92585, May 8,1992; Sambeli v. province of Isabela, G.R. No. 92279, June
t8, t992.
2arDanville Maritime
Inc. v. Commission on Audit, 1 75 SCRA Z0 l ( 1 989).
2a2National
Housing Corporation v. Commission on Audit, 226 SCRA -55 ( l9g3).
2arSambeli v. Province
of Isabcla, G.R. No.92279, Junc ltt. 1992.
2{Osnrcfra v. (bnrmission orr
Audit.2:tO S('RA 5tj5 ( 1994).
r'"Rirrrxrs v. Ar;rrino, .]9 S('Rn 64 (
I l()7 | ).
Sec.2 Sec.2 ART. IX - CONSTITUTIONAL COMMISSIONS
The Commission on Audit
2. Private auditors.
The case of Development Bank of the Philippines (DBP) v. Com-
mission on Audifou presented the novel issue of whether the coA has
exclusive authority to audit government banks. The controversy arose
from DBP's hiring of private auditors. COA contended that its power to
audit under the first paragraph of Section 2 was exclusive in the same
manner that its power in the second paragraph was explicitly made ex-
clusive. The Court, however, pointed out that the 1986 Constitutional
Commission had deliberately made the auditing power of the COA non-
exclusive. The Court cited the reason given by Commissioner Monsod
for this non-exclusivitY:
For the record, we would like to clarify the reason for not in-
cluding the word [exclusive]. First, we do not want an Article that
would constitute a disincentive or an obstacle to private invest-
ment. There are government institutions with private investments
in them, and some of these investors - Filipinos, as well as in
some cases, foreigners - require the presence of private audit-
ing firms, not exclusively, but concurrently. So this does not take
away the power of the Commission on Audit. Second' there are
certain instances where private auditing may be required, like the
listing in the stock exchange. In other words, we do not want this
provision to be an unnecessary obstacle to privatization of these
companies or attraction of investments'
In the words of the Court:
Manifest, the express language of the Constitution, and the
clear intent of its framers, point to only one indubitable conclu-
sion COA does not have the exclusive power to examine
- thegovernment agencies. The framers of the Constitution
and audit
were fully aware of the need to allow independent private audit of
certain government agencies in addition to the COA audit, as when
there is a private investment in a govemment-controlled corpora-
tion, or when a government corporation is privatized or publicly
listed, or as in the case at bar when the government borrows money
from abroad.
In thcse instances thc government enters the marketplace
anrl compctcs with thc rcst of the world in attracting investments
lru(;.1(. N(), llll.l l5,.lrrrrtrrtry l(r, l(X)2
 I108 THE 1987 CONSTITUTION Sec.2 Secs.3-4 ART. IX - CONSTITUTIONAL COMMISSIONS
OF THE REPUBLIC OF THE PHILIPPINES The Commission on Audit

or loans. To succeed, the government must abide with the reason_ vails over that of the Central Bank since the COA is the constitutionally
able business practices of the marketplace. Otherwise no inves_
mandated auditor of government banks. And in matters falling under
tor or creditor will do business with the government, frustrating
the second paragraph of Section 2, Article IX-D of the Constitution,
government efforts to attract investments or secure loans that may
the COA s jurisdiction is exclusive. Thus, the Central Bank is devoid of
be critical tcl stimulate moribund industries or resuscitate a badly
shattered national economy to meet these exigencies. Any attempt authority to allow or disallow expenditures of government banks since
to nullify this flexibility in the instances mentioned, or in similar this function belongs exclusively to the COA."
instances, will be ultra vires, in the absence of a statute limiting or
In the same DBP v. COA, COA also attempted to base its claim
removing such flexibility.
to exclusive auditing power on various statutory provisions. In none of
While the conclusion clearly reached was that the power of COA them, however, did the Court find either express or implied affirmation
is not exclusive, the court nevertheless also affirmed that "the coA's of exclusivity.
findings and conclusions necessarily prevail over those of private au-
ditors, at least insofar as government agencies and officials are con- 3. Review of Commission's decisions.
cerned." This conclusion also finds support in the deliberations of the The review power of the Supreme Court over decisions of the
Constitutional Commission. And in the words of the Court: Commission is the same as that over the Commission on Elections -
the limited certiorari power under Rule LXV of the Rules of Court.
The findings and conclusions of the private auditor may
Moreover, the jurisdiction of the Supreme Court over the Commission
guide private investors or creditors who require such private au-
is on money matters and not over decisions on personnel movements.247
dit. Government agencies and officials, however, remain bound by
the findings and conclusions of the COA, whether the matter falls
Neither is it the task of the Supreme Court to review a Commission
under the first or second paragraph of Section 2, unless of course "opinion" on tax liability.''
such findings and conclusions of the COA are modified or reversed
by the courts. Sec.3. No uw sHALL BE pASSED ExEMpTING ANY ENTTTY oF
rgr GovrnxMENT oR ITs sUBSIDIARv IN ANY GUISE wHATEvERT oR
The non-exclusivity of the COA s power is further indicated by ANY INVESTMENT OF PUBLIC FUNDS, FROM THE JURISDICTION OF THE
the constitutional power of the central Bank found in section 20 of CouurssroN ox Aunrr.
Article XII: Snc.4. TuB ColruIssloN sHALL sUBMIT To rHE PnnsronNr
Ar\D THE Concnrss, wITITIN THE TrME FrxED BY LAw, AN ANNUAL
The Congress shall establish an independent central mon_
REPORT COVERING THE FINANCIAL CONDITION AND OPERATION OF THE
etary authority, the members of whose governing board must be
Govrnnurnr, ITS suBDrvrsroNs, AGENCIES, AND INSTRUMENTALITIES,
natural-born Filipino citizens, of known probity, integrity, and pa_
INCLUDING GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS,
triotism, the majority of whom shall come from the private sec-
AND NON.GOVERNMENTAL ENTITIES SUBJECT TO ITS AUDIT' AND
tor. They shall also be subject to such other qualifications and dis_
RECOMMEND MEASURES NECESSARY TO IMPROYE THEIR EFFECTIVENESS
abilities as may be prescribed by law. The authority shall provide
AND EFFrcIENcv. Ir srr^c.I,r, SUBMIT sucH orHER REPORTS AS MAY BE
policy direction in the areas of money, banking, and credit. It shall
REQUIRED BY LAW.
have supervision over the operations of banks and exercise such
regulatory powers as may be provided by law over the operations
of finance companies and other institutions performing similar
functions."
Ia?Srligurrrlxr v. ('rxrrnrissiorr on Audit, I l7 S('ltA (rfi().
But thc court also al'lirrrrcrllhat "dcspite the ccntral lJank's con- t'nPhr lippinc 'l'clcgruplr & 'lt lcplxrnr: ( irrlxrlrrtiorr v. ( i rnrrniss iott ort Atulit , I 4(r S( 'R A I 90
c:urrcrnt .jrrristliction ovcr' g()vcnrrucrrl banks, lhc CoA's urrclil slill prc-

Anucr,n X
Locar, GovTnNMENT
General Provisions
Sncrrox 1. Tnr TERRTToRIAL AND poLrrICAL suBDIvrsIoNS
oF THE Rnpunr,rc oF THE Pnrr,rpprnns ARD THE pRovINcES, cITIEs,
MTJNICIIALITIES, AND BARANGAvs. Tnrnn SHALL BE AUToNoMous
REGIoNs rx Musr,ru Mrxn,lnlo AND THE Corunlrn.q,s ,l,s
HEREINAT"TER PROVIDED.
1. Units of local government.
"Local govemment" has been described as "a political subdivi-
sion of a nation or state which is constituted by law and has substantial
control of local affairs."' In a unitary system of government, such as the
government under the Philippine Constitution, local government can
only be an infra-sovereign subdivision of one sovereign nation. It can-
not be an imperium in imperio. Local government in such a system can
only mean a measure of autonomy and decentralization of the functions
of government.,
Section 1, Article X, identifies these political and territorial sub-
division as "provinces, cities, municipalities, and barangays" and the
"autonomous regions in Muslim Mindanao and the Cordilleras." In ad-
dition to these, Article XVIII, Section 9 also recognizes the existence
of sub-provinces which, however, may eventually be either converted
'U.P. LAW CENTER CONSTITUTION REVISION PROJECT, p artlt, j t2 ( 1970), citing
seou, Iurnoveur*r or I'octL Govnnnunnr eno AoutNtsrntnoN ron DrvstoputNT punposr, JoUR-
NAL OF LOCAL ADMINISTRATION OVERSEAS 135 (July, 1962).
'?For a brief sumrnary of the history of local govemments in the philippines, from the
autonomous barangays ofpre-Spanish times, through the pueblos, cabildos, and provincias of the
Spanish times, to the provinces, cities, municipalities, and barrios of today, see U.p LAW CEN-
TER CONSTITUTION REVISION PROJECT, P art I, 7 O2-7 O9 (t 97 O).
I
'X -General
Sec. ART. LOCALGOVERNMENT
Provisions
to provinces or reverted to the mother province.3 Both from the lan-
guage of Section 1 and from the context of Philippine legal history, it
is evident that Section I does not create these political subdivisions as
legal concepts or as operative institutions. Provinces, cities, municipali-
ties, and barangays were in existence as statutory creations when the
counterpart of Section 1 in the 1973 Constitution was passed, although
under the original 1973 document barangays were called barrios.o As
to the "autonomous regions," they do not come into existence until the
conditions of Section 18 are fulfilled. The existence of "provinces" and
"municipalities" was already acknowledged in the 1935 Constitution.s
Section 1, however, when first enacted in 1973, went a step further than
mere acknowledgment of their existence and recognized them, together
with cities and barrios, as "(t)he territorial and political subdivisions of
the Philippines." Thus, the constitutional significance of Section 1 is
that provinces, cities, municipalities, and barrios (now barangays) have
been fixed as the standard territorial and political subdivisions of the
Philippines. To these the 1987 Constitution has added the "autonomous
regions." But the Constitution allows only two such regions: one for
the Cordilleras and one for Muslim Mindanao. The creation of other
autonomous regions, whether by dividing the Cordilleras or Muslim
Mindanao into two or by creating others outside these two regions, can
be accomplished only by constitutional amendment.6 As of this writing
in 2008, the only autonomous region that has been created is the Au-
tonomous Region of Muslim Mindanao.
This manner of subdividing the Philippines into the various politi-
cal subdivisions cannot go out of existence except by a constitutional
amendment. In other words, although Philippine public law is heir to
the American principles that the right to local self-government is not an
inherent right and that the power conferred upon a municipal corpora-
tion cannot become a vested right as against the state,T under Section 1
the right of autonomous regions, provinces, cities, municipalities and
barangays to exist as the political and territorial subdivisions of the state
is no longer just a statutory right but a constitutional right.
'Thc "sub-provincc," an extcnsion ol'the nrother province, is not considercd a separate
political unit. lll RECORD 401. But sae Articlc XVIII, Section 9.
a"Rurrilts" wcrc rcnurrtcd "banugu.ys" by Arrrcnrlnrent I ol 1976.
'1,.g., Ariiclc V, Sccliorr I ("rrrunicipality"), antl Articlc VI, Scctiorr I ("plovinccs").
"lll l{li('()l{t) t7l V6.
/M('(Jtlll.l .lN l16, l4ttllrrl ctl.).
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Neither Section l, however, nor any part of the constitution pre-
scribes the actual form and structure which individual local government
units must take. These are left by Sections 3, lg, and 20 to legislation.
As constitutional concepts, therefore, they are very general. An auton-
omous region is a body corporate consisting of provinces, cities and
municipalities. A province is a political and territorial body corporate
consisting of several municipalities and cities. cities and municipalities
are political and territorial bodies corporate composed of barrios
and
are subordinate to a province. Highly urbanized cities, however,
can be
made independent of a province.'
A barangay, finally, is the basic political and territoriar self-gov-
erning body corporate and is subordinate to the municipality or city
of
which it forms a part.e ln spite of the association of the term with the au_
tocratic rule of Mr. Marcos, the 19g6 constitutional commission chose
to retain it because of (l) its historical significance in Asian history, (2)
existing laws which use the term, and (3) contemporary references to
in political news reports.ro
The designation by the 1973 constitution of provinces, cities, mu-
nicipalities and barangays as the political and territorial subdivisions
of the Philippines effected a measure of institutional stability. To this
extent' it was a move in the direction of real local autonomy. The l9g7
constitution moved farther forward by authorizing the creation of au-
tonomous regions. These are the passive aspects of local autonomy.
dynamic and more important aspect of local autonomy must be mea-
The
sured in terms of the scope of the powers given to the local units.
Spc. 2. Tnn rpnnIroRIAL AND pot,rrrcAr, suBDrvIsroNS sHALL
ENJOY LOCAL AUTONOMY.
1. Local autonomy.
The purpose of section 2 is to give the assurance that local auton-
omy will not be only for Muslim Mindanao and the cordilleras but lirr
all local units. Local autonomy means more than just decentralizati<ln:
"Article X. Section 12.
')'l'he lt:rtn "lnunicipalitics" as lirund in thc
Constitution is untlerst<xxl gcncricrlly:rrrtl
t ltttlcs ''rrrrrnit.ipirl tlislrit.ls." Sessiorr ol Noverrrbcr 25_ lg1-2
r"lll l{l('( )l{l) }8() t()l
Sec.2 Sec.2 ART. X * LOCALGOVERNMENT
General Provisions
There is decentralization of administration when the central
government delegates administrative powers to political subdivi-
sions in order to broaden the base of government power and in the
process to make local governments 'more responsive and account-
able,' and 'ensure their fullest development as self-reliant com-
munities and make them more effective partners in the pursuit of
national development and social progress'' At the same time, it
relieves the central government of the burden of managing local
affairs and enables it to concentrate on national concerns. . . .
Decentralization of power, on the other hand, involves an
abdication of political power in favor of local government units
declared to be autonomous. In that case the autonomous govern-
ment is free to chart its own destiny and shape its future with mini-
mum intervention from central government authorities. According
to a constitutional author, decentralization of power amounts to
'self-immolation,' since in that event, the autonomous government
becomes accountable not to the central authorities but to its con-
it
stituency.rr
But the concept of autonomy is relative. Autonomy for local gov-
ernments in general will be less than for the autonomous regions.''?
The meaning of local autonomy for local government under the
1987 Constitution, however, was effectively thrown down to the level
of autonomy under the 1935 Constitution by Magtaias v. Pryce Proper-
ties.t3ln Magtajas, the government of cagayan de oro city contended
that, under its authority to prohibit gambling, the city could prevent the
Philippine Games and Amusement Board (PAGCOR) from operating
a casino in the city. PAGCOR, however, had authority under P.D- No.
1869 to centralize and regulate all games of chance under the territorial
jurisdiction of the Philippines. In ruling that cagayan de oro city could
not curtail PAGCOR's authority the Court in no uncertain terms said:'o
The rationale of the requirement that the ordinances should
not contravene a statute is obvious. Municipal governments are
only agents of the national government- Local councils exercise
lll.inrhona v. Mangclin, 170 SCRA786,794-795 (1989),citing Brnues, "Bnrwmc Sronu
()w n Atrtttt'tttut," Munikt ('lnmitle.
irr rrlr/. ;rt ,l l5 .l l(r.
I
'l l,l :i( 'l{ A .r55 { | t)().1 )
ttll.;rl 't I'' .t ll
 1ll4 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
only delegated legislative powers conferred on them by Congress
as the national lawmaking body. The delegate cannot be superior
to the principal or exercise powers higher than those of the latter.
It is a heresy to suggest that the local government units can undo
the acts of Congress, from which they have derived their power in
the first place, and negate by mere ordinance the mandate of the
statute.
Municipal corporations owe their origin to, and de-
rive their powers and rights wholly from the legislature. It
breathes into them the breath of life, without which they can-
not exist. As it creates, so it may destroy. As it may destroy, it
may abridge and control. Unless there is some constitutional
limitation on the right, the legislature might, by a single act,
and if we can suppose it capable of so great a folly and so
great a wrong, sweep from existence all of the municipal
corporations in the State, and the corporation could not pre-
vent it. We know of no limitation on the right so far as to
the corporation themselves are concerned. They are, so to
phrase it, the mere tenants at will of the legislature.r5
This basic relationship between the national legislature and
the local government units has not been enfeebled by the new
provisions in the Constitution strengthening the policy of local
autonomy. Without meaning to detract from that policy, we here
confirm that Congress retains control of the local government units
although in significantly reduced degree now than under our previ-
ous Constitutions. The power to create still includes the power to
destroy. The power to grant still includes the power to withhold or
recall. True, there are certain notable innovations in the Constitu-
tion, like the direct conferment on the local government units of
the power to tax, which cannot now be withdrawn by mere statute.
By and large, however, the national legislature is still the principal
of thc local government units, which cannot defy its will or modity
or violate it.
The Magtajas case offered the Court the opportunity to delvc nxrr.c
deeply into the national policy implications of local autonomy as a c()n,
stitutional principle especially since the national law at stake was nol
rcally an act of a collegiate legislature but of one man at a tirnc whclr
thc totality of legislative power was concentrated in his hands. But lhc
r'('littlort v. ('t.rlirr Rirpirls, ctc., l{rrihortl ('rr ,l.l krw:r ,155
, 16.
Scc.2 Sec,2 ART. X LOCALGOVERNMENT
-General Provisions
Court preferred to take the easy route of falling back on American juris-
prudence. A similar conclusion was reached in Lina, Jr.v. Pafio,t6 which
involved an attempt by the provincial government to prohibit lotto.
While indeed the Constitution has expanded the autonomy of lo-
cal governments, they have not been thereby made imperium in impe-
rlo. Congress may still impose limits on their powers. Thus they may
not violate the statutory limits on the number of cockpits in a locality.''
Nor do they have authority to grant franchise to operators of CAIV
systems.'8
However, the Commission onAudit may not reduce the allowance
given to judges by local governments. The Local Government Code
authorizes local governments to give allowance to judges and decide
how much this should be.',
An earlier case, San Juan v. Civil Service Commission,2. was more
cognizant of local autonomy. In San Juan the Court said:2'
The exercise by local government of meaningful power has
been a national goal since the turn of the century. And yet, in spite
of constitutional provisions and as, as in this case,legislation man-
dating greater autonomy for local officials, national officers cannot
seem to let go of centralized powers. They deny or water down
what little grants of autonomy have so far been given to municipal
corporations.
At issue in San Juan was the authority to appoint a Provincial
Budget Officer (PBO). By Executive Order No. 112 the authority had
been given to the Secretary of Budget Management "upon recommen-
dation of the local executive concerned." The person recommended by
the Provincial Governor, however, did not possess the necessary quali-
fications. Hence, the Budget Secretary appointed somebody else of his
own choice. In reversing the Budget Secretary's decision, the Court
ruled that if the recommendee of the local executive is not qualified, the
'nG.R. No. 129093, August 30, 2001.
r7'lan v. Perefra, (i.R. No. 149743, February
I 8, 2005.
rsllallngas ('AI'V v. ()A & Batangas City, G.R. No. 138810, September 29, 2004.
r"l)atkrlc, ct al. v. ('()A, (i.R. No. 1253.50, I)cccmber 3,2(X)2; l,eynes v. COA, G.R. No.
14.1.59(r, l)cccrrrhcr I l, 2(X).1.
r',1(xr s(.RA ()r) ( l(ri) I )
:tll. il
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Secretary must ask for new recommendees with the necessary eligibil-
ity. Moreover, San Juan was aware that there are factors about life in
a local community about which the central government is not the best
judge. The Court said:"
The PBO is expected to synchronize his work with DBM.
More important, however, is the proper administration of fiscal af-
fairs at the local level. Provincial and municipal budgets are pre-
pared at the local level and after completion are forwarded to the
national officials for review. They are prepared by the local offi-
cials who must work within the constraints of those budgets. They
are not formulated in the inner sanctums of an all-knowing DBM
and unilaterally imposed on local governments whether or not they
are relevant to local needs and resources. It is for this reason that
there should be a genuine interplay, a balancing of viewpoints, and
a harmonization of proposals from both the local and national of-
ficials. It is for this reason that the nomination and appointment
process involves a sharing of power between the two levels of gov-
ernment.
Concluding, the Court said:23 "Our national officials should not
only comply with the constitutional provisions on local autonomy but
should also appreciate the spirit of liberty upon which these provisions
are based."
More recently, in Laguna Lctke Development Authority v. Court
of Appeals,24 the Supreme Court denied to the municipalities around
Laguna Lake the power to authorize the construction or dismantling ol'
fishpens, fish enclosures, fish corrals and the like in Laguna Lake. The
municipalities claimed the authority under general provisions of thc
1991 Local Government Code, specifically Section 149. The Laguna
Lake Development Authority (LLDA), however, claimed power undcr
Republic Act No.4850 as amended by Presidential Decree No. 813.
Applying principles of statutory construction, the Court ruled that thcr
specific power of the LLDA must prevail over the general power of lo-
cal governments. Moreover, the Court pointed out that the power givctt
by the Local Government Code to local governments was a revcnuc
generating power and not a regulatory power. Hence, the Court, whilc
221d. at'79.
'?1ld. at80.
ra(i.R. Nos. l20tt65.7l. l)ccerrrhcr 7, l()()5
Sec.2 Sec.3 ART. X LOCAL GOVERNMENT
-General Provisions
denying regulatory authority to the municipalities, recognized their au-
thority to impose fees for purposes of generating revenue.
Snc.3. Tnn Concnrss sHALL ENAcr A LocAL GovERNMENT
CODE WHICH SHALL PROVIDE FOR A MORE RESPONSIYE AND ACCOUI{T.
ABLE LOCAL GOVERNMENT STRUCTURE INSTITUTED THROUGH A SYS.
TEM OF DECENTRALIZATION WITH EFFECTIVE MECHANISM OF RECALL,
INITIATIVE, AND REFERENDUM, ALLOCATE AMONG THE DIFFERENT
LOCAL GOVERNMENT UNITS THEIR POWERS, RESPONSTBILITTES, ANI)
RESOURCES, AND PROVIDE FOR THE QUALIFICATIONS, ELECTION, Ap_
PiOINTMENT AND REMOVAL, TERM, SALARIES, POWERS AND FUNCTIONS
AND DUTIES OT LOCAL OFFICIALS, AND ALL OTHER MATTERS RELATING
TO THE ORGANIZATION AND OPERATION OF THE LOCAL UNITS.
1. Local Government Code.
The structuring of local governments and the allocation of pow-
ers, responsibilities, and resources among the different local govern-
ment units and local officials have been placed by the constitution in
the hands of congress. The present structure consists of an executive
distinct from the legislative body. This is different from the form of
government under the old Metro Manila Commission where a commis-
sion exercised both legislative and executive powers.
Section 3 contains a catalogue of the elements which must enter
into the code. The 1973 constitution also commissioned the Batasang
Pambansa to enact a Local Government code and in fact there was one
in existence at the time the L987 constitution was drafted.,5 This code
enacted under the 1973 constitution, to the extent that it did not con-
flict with provisions of the 1987 constitution, continued to be in effect
until congress enacted R.A. No. 7160,the Local Government code of
l99l:u
The principal guidelines given to Congress for structuring local
government units are that the structure must be "responsive and
accountable" and "instituted through a system of decentralization." The
25Butas
Parnbunsa Blg. 337. Thc 1973 Constitution, Article Xl, section 2, had a special
methtxl fbr lmcnding thc l-<rcnl (;ovcrnment (\xle. T'he l9tl6 Constitutional Comnrission con-
sidcrecl thut tncth<xl ttrl cumhcrsomc. Untlcl thc l9ll7 ('ttnstitution, the ('odc is just atr orrlinury
stlltutc. lll Rl('ORl) 4(X) 40l
'nStnchczv.(irrrrrrlssiortorrIilectrrrrs,(i.lt.Not.94,15r)(r(),.lrrrrrrrrly?.,1,199l:
Altrrirrrrltlo
,i v. Sttttlrls.(i.ll No. (),1 I 11, Altl|urt,)1. lr)tt,'
I 118 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
structure, therefore, must be both sensitive to the needs of the locality,
accountable to the electorate of the locality, and freed as much as
possible from central government interference.
The sensitivity to the needs of the locality will be helped by a
provision on "initiative and referendum."" The 1991 Local Govern-
ment Code now provides for initiative and referendum on the local level
which it defines as "the legal process whereby the registered voters of a
local government unit may directly propose, enact, or amend any ordi-
nance." The Court has ruled that, even as worded, the statute authorizes
initiative and referendum notjust on ordinances but also on resolutions
arguing that to narrow the meaning to only ordinances would subvert
the intent of VI, Section 32 which includes "any act... passed by ...
local legislative body."*
One instrument of immediate accountability is "an effective sys-
tem of recall."" "Recall," as an instrument for effecting official account-
ability, means a device or procedure by which a public official's tenure
may be terminated by popular vote. It is encompassed in the notion of
popular sovereignty. It may be applied to both elective and appointive
officials. Section 3 tells Congress that in formulating a system of recall
the system formulated must be "eft-ective."'o
The current law on recall is now found in the Local Government
Code of 1991. The constitutionality of one method of recall adopted by
the Code was tested in Garcia v. Commission on Elections.3t Sectitln
70 of the 1991 Local Government Code authorized provinces, cities,
legislative districts and municipalities to have a "preparatory recall as-
sembly" authorized to initiate the recall of an elective official. The con-
tention of Governor Enrique Garcia was that "the right to recall drrcs
not extend merely to the prerogative of the electorate to reconfinn or
withdraw their confidence on the offlcial sought to be recalled at a s;rc-
cial election. Such prerogative necessarily includes the sole and cxc:ltt
sive right to decide on whether to initiate a recall proceeding or nol."'l
21|d. at394-397.
2sGarcia v. COMELEC,237 SCRA 2?9,29O (1994).
2"Sce id. at39l-392:
roPhilippine Experience with "recall," until Batas Pambanst lllg..l37, wus ttlttto:l tttttt
cxistcnt. S.,? Festin Act, C.A. No. 560. The [Jnited States has had a rturrc cxtcnsiv(: cx l)cri('tt('r wlllt
"rccull" as applied to local govcrnnrcnls. lirr thc pros und cons ol thc Alttcrictttt cxlx'nrtt(r, tr.
A.l;.Mntrxrrunt.tt,AumrtnStttt(;ot'tRNMINt/tNt,AtrMtNtslRAttolv(19(rl).1(l.l
,r227 S('RA t(X) ( t99:i).
'rlr/.rrl ll2.
Sec.3 Sec.4 ART. X LOCALGOVERNMENT
-General
Provisions
In deciding against Garcia, the Court said:33
We do not agree. Petitioners cannot point to any specific pro-
vision of the Constitution that will sustain this submission. To be
sure, there is nothing in the Constitution that will remotely sug-
gest that the people have the "sole and exclusive right to decide
on whether to initiate a recall proceeding." The Constitution did
not provide for any mode, let alone a single mode, of initiating
recall elections. Neither did it prohibit the adoption of multiple
modes of initiating recall elections. The mandate given by Sec-
tion 3 of Article X of the Constitution is for Congress to ..enact a
local government code which shall provide for a more responsive
and accountable local government structure through a system of
decenffalization with effective mechanisms of recall, initiative,
and referendum. ..." By this constitutional mandate, Congress
was clearly given the power to choose the effective mechanisms
of recall as its discernment dictates. The power given was to select
which among the means and methods of initiating recall elections
are effective to carry out the judgment of the electorate. Congress
was not straight jacketed to one particular mechanism of initiat-
ing recall elections. What the Constitution simply required is that
the mechanisms of recall, whether one or many, to be chosen by
Congress should be effective. Using its constitutionally granted
discretion, Congress deemed it wise to enact an alternative mode
of initiating recall elections to supplement the former mode of ini-
tiation by direct action of the people. Congress has made its choice
as called for by the Constitution and it is not the prerogative of this
Court to supplant this judgment. The choice may be erroneous but
even then, the remedy against a bad law is to seek its amendment
or repeal by the legislative. By the principle of separation of pow-
ers, it is the legislative that determines the necessity, adequacy,
wisdom and expediency of any law.
Snc.4. THs PnEsDnNT oF THE Pnrr,rpprNns sHALL EXERCTsE
cENERAL SUpERvISIoN ovER LocAL GovERNMENTs. pnovrNcns wrn
RESPECT TO COMPONENT CITIES AND MUNICIPALITIES, AND CITIES AND
MUNICIPAT,ITIES WITH RESPECT TO COMPONENT RARANGAYS SI{ALL
ENSURN THAT THE ACTS OF THEIR COMPONf,NT UNITS ARE WITHIN THE
s(:oPFt ot'THETR pt{t;SCRtBHI) POWI']RS AND FUNC'|.IONS.
.167.
"/r/ltIItIl,l

THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
1. The President and local governments.
The first sentence of Section 4 prescribes the relation between the
President and local governments. Under the 1935 Constitution, Article
VII, Section 10(1), the President was authorized to "exercise general
supervision over all local governments as may be provided by law."
Thus, not only was the President given merely supervisory powers
(not control), but he also possessed only so much supervisory power as
might be given to him by statute. This was the power relation that came
out very clearly in the leading case of Hebron v. Reyes.3a Moreover, the
inference could be drawn from Pelaez v. Auditor General, that Con-
gress could not expand the power of the President to one of control."
A similar power relation has been restored by Section 4. Gen-
eral supervision was seen during the deliberations of the Constitutional
Commission as meaning no more than ensuring that laws are faithfully
executed or that subordinate officers act within the law.r6 Thus, when
Section 187 of the Local Government Code authorizes the Secretary
of Justice to pass judgment on the constitutionality or legality of a tax
ordinances or revenue measures, he does not thereby exercise the powcr
of control but only supervision. He does not thereby dictate what thcr
law should be but merely ensures that the ordinance is in accordancc
with law."
The 1987 text has removed the phrase "as may be providcd hy
law." Because of such removal it was argued in Ganzon v. Courl ttl
Appeals," that no law could be provided regarding the power ol' lltc
President over local governments and that therefore the removal <ll'lllt'
clause divested the President of the power to investigate, suspcnd, tlis
cipline or remove local officials. The Court said:3'
It is the considered opinion of the Court that notwithstantling
the change in constitutional language, the charter did not intcntl lrt
divest the legislature of its right or the President of her prcrogit
- making the same." The power is limited to ensuring that the acts of the
vl04 Phil.
175 (1e58).
3s15 SCRA 569,5?6 (1965).
rIII RECORD 4-S l-4.52.It was als0 cxplairrod, i./., tlurt urrtlcr lhc l().15 ( i)nslllillr()rr r uillIrl
gver lgcal governmcnts bekrngctl to ('ongrcss. lly not ct4ryirrg l915's "irs tttity lx' ;lrrvttkrl l'1
law," k) that cxfcnt, iut(l l)rtrsuiull lo llx' ;rirrtiplc ol krcrtl attlottonty, lltc ;xrwt'l ol ( itttf'tt'rr rtvlt
Irral g.ovcrnlncnls is tlirrrirrishctl. '\t't' tl.vt irl. rtl 451 45tt.
()(11
'71)t ilon v. l.irtr. 2 l5 S('ltn I l5, l'l I ( I ).
r'l(x) s('ltA I ( l()l)l)
.17
r'/,/ tl .)l{ | .)ll.)
Sec.5 ART.X
- LOCALGOVERNMENT lt2t
Sec.4
General Provisions
tive as conferred by existing legislation to provide administrative
sanctions against local officials. it is our opinion that the omis-
sion (of "as may be provided by law") signifies nothing more than
to underscore local government's autonomy from congress and to
break Congress'"control" over local government affairs. The Con-
stitution did not, however, intend, for the sake of local autonomy,
to deprive the legislature of all authority over municipal colpora-
tions, in particular, concerning discipline.
... Autonomy, in the constitutional sense, is subject to the
guiding star, though not control, ofthe legislature, albeit the legis-
lative responsibility under the Constitution
sion clause" itself suggests is to
- and as the..supervi-
wean local government units
-
from over dependence on the central government.
It is noteworthy that under the Charter, .,local autonomy', is
not instantly self-executing, but subject to, among other things, the
passage of a local government code. ... It is also noteworthy that
in spite of autonomy, the Constitution places the local government
under the general supervision of the Executive. It is noteworthy
finally, that the Charter allows Congress to include in the local
government code provisions for removal of local officials, which
suggest that Congress may exercise removal powers, and as the
existing Local Government Code has done, delegate its exercise
to the President. ...
2. Hierarchical relation among local units.
Section 4 also provides the general guidelines for the relations
among local government units and sets up a hierarchy of supervisory
relations. But the supervisory power of the superior local government
unit is limited to ensuring "that the acts of their component units are
within the scope of their prescribed powers and functions." This power
is similar in nature to the power given by Section 2233 of the Revised
Administrative code (1917) to the provincial board to annul an act that
is "beyond the powers conferred upon the (municipal) council or mayor
inferitrr local government unit are not ultra vires. Section 4 does not
authorizc thc supcrior unit to substitute its judgment in discretionary
rnattcrs lirr thal ol'thc inf'crior unit.
Slr'.5. l,l,r<'tt t,rX',rt. t;()Vt,tRNMt,:Nt UNr't'SltAt,l, ilAVl,t .t,llt,)
l{)Wl,:R'llt('Rl,tA'll,: t'tS0WNS(,lrR(.t,]S(,l,,Rl,:Vt,]Nt1l,:SANt) tr)t,t,:Vy t,AXt,tsr
l,l,:t,tsiANtrt'IARt;1,:ssUtr.lt,r"t t()sl(.ltt;Ilt)1,:t.tNl,:sANl)t,lMt.tA,lt(tNsAs
ll22 THE 1987 CONSTITUTION Sec.5
OF THE REPUBLIC OF THE PHILIPPINES
THE CONGRESS MAY PROVIDE'CONSISTENT WITH THE BASIC POLICY OF
LOCAL AUTONOMY. SUCH TAXES' tr'EES' AND CHARGES SHALL ACCRUE
EXCLUSIVELY TO THE LOCAL GOYERNMENTS.
1. Sources ofrevenue.
It is established Philippine jurisprudence that municipal corpora-
tions possess no inherent power to tax.40 At the time of the ratification
of the 1973 Constitution, which had a provision similar to Section 5,
the taxation powers of municipal corporations were principally found
in the Local Autonomy Act of 1959,^ the Assessment Law,42 the Barrio
Charter,43 and the respective charters of cities. These laws consisted of
broad grants of power to tax, but they also carried an extensive enu-
meration of revenue powers expressly withdrawn from municipal cor-
porations. Although the trend was towards broadening the fiscal powers
of municipal corporations, the fact still remained that the legislature had
absolute discretion to expand or contract these powers.
Aside from municipal powers of taxation, the other sources of
revenue of municipal corporation include internal revenue allotments
from the national government, lease of public utilities, direct national
aid, and miscellaneous sources like tuition fees.
What is the effect of Section 5 on the fiscal position of municipal
corporations? Section 5 does not change the doctrine that municipal
corporations do not possess inherent powers of taxation. What it does is
to confer on municipal corporations a general power to levy taxes and
otherwise create sources of revenue. They no longer have to wait for a
statutory grant of these powers. Moreover, in construing the extent of
the power of local governments to levy taxes, it is important to look into
the meaning of the two clauses "subject to such guidelines as the Con-
gress may provide, consistent with the basic policy of local autonomy."
The meaning of this clause may be gathered from the delibenr-
tions of the 1986 Constitutional Commission.oo The original proposrtl
did not intend to authorize Congress to impose "limitations" but only
aE.g.,Icard v. City of Baguio,83 Phil. 870 (1940); City of Iloilo v. Villanucvn, lo5 Phll
337 (1959); Santos v. Municipality of Caloocan, 7 SCRA 646 ( 1963).
arR.A. No.2264.
a'?C.A. No.470.
arR.A. No.35{).
4llll RFI(()RI) 46(1 4611.47o 4l'1.41,1
Sec.5 ART. X LOCALGOVERNMENT
- 1123
General Provisions
"guidelines." This was in response to the appeal of the League of Gov-
ernors and City Mayors who argued that "limitations" would tie their
hands and effectively deny them autonomy. Commissioner Ambrosio
Padilla, however, argued that unless Congress had the power to impose
"limitations," Congress would be powerless to reverse actions taken
by local government even when it uses the power to tax as a power to
destroy. Commissioner Nolledo, however, pointed out that the Supreme
Court had already rejected the notion that the power to tax was the
power to destroy. He said:45
I do not believe that if we just put 'guidelines' there, the
local executives can impose taxes that are unnecessary or beyond
the capacity of the taxpayer to pay because there are settled limita-
tions recognized in all republican governments that the power to
tax shall be subject to certain conditions; namely that the tax must
be for a public purpose; that it must be uniform within a locality;
that it must not infringe upon accepted national economic guide-
lines; and that it must not be confiscatory. Those principles are
deeply embedded in every constitutional government.
The tenor of Padilla's position, however, was that all he wanted
was the assurance that traditional limitations applicable to Congress
would also apply to local governments. It was on this understanding
that his amendment inserting the word "limitations" was approved.ou
Moreover, because of the approval of the word "limitations," Commis-
sioner Davide proposed the addition of the phrase "consistent with the
basic policy of local autonomy." The amendment was also approved.a? It
is understood, however, that taxes imposed by local governments must
be for a public purpose, uniform within a locality, must not be confisca-
tory, and must be within the jurisdiction of the local unit to pass.48
Early jurisprudence on the matter of "limitations" did not go be-
yond the mere assertion that Congress has the power to impose limita-
tions. Thus in Basco v. PAGCOR, where the exemption of PAGCOR
a\ld. irt 4'12-477.
a('ltl
. irt 474.
'ttl<1. itl 171\. A ltrrthcr :ultcrt(lrncnl rtl (irnrnrissioncr Cuingona saitl: "No
guidclincs rnay
bc cltitclctl by (irttgrcss rvhit'h in iury lniulrer wrxrltl dirrrirrish thc trutonorrry alrciuly cnjoycd hy
Itiglrly rrrhlnizcrl cilics rrrxl cilics ittrlt'1x'rrrlcnt ol lhc provincc hy virtuc ol prcvirnrs crrtgr.cssi6ntrl
gtrirlclittcs, ttttlt'ss ttl4rtrtvctl by llx' inlrrrhilrrrrls llrcrcol."'l'lris wts not tcccl)lc(|. /r/. rrt 4tl().41{ I .
a\hl n,ll(r'l'l-l
n24 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
from tax conferred on it by P.D. 1869 was challenged as an impairment
of the power of local governments to create sources of revenue, the
Court simply said: "The power of local government to 'impose taxes
and fees'is always subject to 'limitations'which Congress may provide
by law. Since P.D. No. 1869 remains an'operative'law until'amended,
repealed or revoked (Sec. 3,Art. XVIII, 1987 Constitution), its 'exemp-
tion clause'remains as an exception to the exercise of the power of local
governments to impose taxes and fees. It cannot therefore be violative
but rather is consistent with the principle of local autonomy."o'What
this pronouncement means, in effect, is that Section 5 has no effect on
P.D. No. 1869.
Later jurisprudence has clarified the scope of the taxing powers of
local governments vis-ti-vis the power of Congress .ln Manila Electric
Company v. Province of Inguna,'o the Court said:
Under the now prevailing Constitution, where there is nei-
ther grant nor a prohibition by statute, the tax power must be
a ernment unit." But somewhat conversely, Section 5(b) then proceeds to
deemed to exist although Congress may provide statutory limita-
tions and guidelines. The basic rationale for the current rule is to
safeguard the viability and self-sufficiency of local government
units by directly granting them general and broad tax powers.
Nevertheless, the fundamental law did not intend the delegation to
be absolute and unconditional; the constitutional objective obvi-
ously is to ensure that, while the local government units are being
strengthened and made more autonomous, the legislature must still
see to it that (a) the taxpayer will not be over-burdened or saddled
with multiple and unreasonable impositions; (b) each local gov-
ernment unit will have its fair share of available resources; (c) the
resources of the national government will not be unduly disturbed;
and (d) local taxation will be fair, uniform, and just.
Another case dealt with R.A. No. 7160 which removed the tax
exemptions of some corporations thus placing them under the taxing
authority of local governments. Since, however, the power of local gov-
ernments to tax is subject to limitations imposed by Congress, exemp-
tions granted by Congress after R.A. No. 7160 bind local governments.'l
4197 SCRA 52,65 (1991).
5oG.R. No. 131359, May 5, 1999.
5rSmart Corntrtunicatiotts v. ('ily rtl l)ttvrrr. ( i.R No. 1554()1, Scplcttttrer 16, l(X)lt
Sec.5 Sec.5 ART. X - LOCAL GOVERNMENT tt25
General Provisions
Moreover, while indeed local governments are authorized to im-
pose business taxes, they can do so only ifthe entity being subjected to
business tax is a business. Thus, for Makati to impose a business tax on
a condominium, the city must prove that the condominium is engaged
in business.'2
Moreover, the Supreme Court has also ruled that limitations im-
posed merely by administrative order promulgated by a provincial gov-
I
ernment are inconsistent with Section 5.53
Another clarification was made later. Earlier decisions had said
that "in interpreting statutory provisions on municipal fiscal powers,
doubts will have to be resolved in favor of municipal corporations."
This is also echoed in Section 5(a) of the Code, which states that "[a]
ny provision on a power of a local government unit shall be liberally
interpreted in its favor, and in case of doubt, any question thereon shall
be resolved in favor of devolution of powers and of the lower local gov-
assert that "[I]n case of doubt, any tax ordinance or revenue measure
shall be construed strictly against the local government unit enacting it,
and liberally in favor of the taxpayer." And this latter qualification has
to be respected as a constitutionally authorized limitation which Con-
gress has seen fit to provide. Evidently,local fiscal autonomy should not
necessarily translate into abject deference to the power of local govern-
ment units to impose taxes.54
Briefly, therefore, the power of local governments to tax is liber-
ally interpreted in its favor against the state, but it is strictly construed
against the local government in favor of the taxpayer.
However, an exception in favor of a taxpayer must be clear and
unequivocal. Thus, Section 8 of R.A. No. 7966 in imposing on ABS-
CBN a franchise tax equivalent to three percent (37o) of all gross re-
ceipts of the radio/television business transacted under the franchise, it
added that the franchise tax shall be "in lieu of all taxes" on the fran-
chise or earnings thereof. The Court said that the "in lieu of all taxes"
provision in the franchise of ABS-CBN did not expressly provide what
kind of taxes ABS-CBN is exempted from. It was not clear whether the
')Y:rrrrirrrt'v. llAl.clrirllo('orrtkrrrrilrirrrrr,(i.lt.No. 15499.1,()cklbcr25,2(X)-5
''l'ltili|;rirrt' I'etrolcrrrrr ( irrP. v. Mrrn. ol l,ililll. lgti S('RA tt2. tlg (l99l).
'{l)elnrrt v Mrryor. ( i ll No 11t188 I . ,^lxtl l(r, ,){X)ll.
1126 THE Ig8TCONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
exemption would include both local, whether municipal, city or provin-
cial, and national tax. Whether the "in lieu of all taxes provision" would
include exemption from local tax was not unequivocal. "The right to
exemption from local franchise tax must be clearly established and can-
not be made out of inference or implications but must be laid beyond
reasonable doubt. Verily, the uncertainty in the "in lieu of all taxes"
provision should be construed against ABS-CBN. ABS-CBN has the
burden to prove that it is in fact covered by the exemption so claimed.
ABS-CBN miserably failed in this regard.""
Src.6. Loct
covERNMENT uNlrs sHALL HAvE A JUST SHARE'
AS DETERMINED BY LAW, IN TI{E NATIONAL TAXES WHICH SHALL BE
AUTOMATICALLY RELEASED TO TIMM.
1. Share in the national taxes.
A share in the national taxes collected by the national govern-
ment is another source of revenue for local units. The amount will be
"as determined by law." This is distinct from the taxes which the local
government itself might impose.
The automatic release of the share of local governments in nation-
al taxes was the subject of Pimentel v. Aguirre}u Administrative Order
No. 372 of President Ramos said:
SECTION 1. All
government departments and agencies'
including state universities and colleges, government-owned and
controlled corporations and local governments units will identify
and implement measures in FY 1998 that will reduce total expen-
ditures for the year by at least 257o of authorized regular appro-
priations for non-personal services items, along the following sug-
gested areas.
SECTION 4. Pending the assessment and evaluation by thc
Development Budget Coordinating Committee of the emcrging
fiscal situation, the amount equivalent to loo/a of the intcrnal lcv-
enue allotment to local government units shall be withhcltl.
t'1.2(' v. AllS-('llN, (i.R. Nrt. l(r(r10ll, ()ctohcr'6,2(Xltt
'r'( i.R. No. l.l29lttl, Jtrly l(,. 2(XX).
Sec.6 ART. X _ LOCALGOVERNMENT
General Provisions
The Order was challenged as an attempt to control local govern-
ments and to encroach on their autonomy. The Court, however, ruled
that Section I could be read as merely advisory and therefore not an
attempt to exercise control over local governments. But section 4 was
found to be "in contravention of section 286 of the Local Government
Code and of Section 6, Article X of the Constitution, providing for the
automatic release of the share of local governments in national rev-
enues.
In another case the Court ruled that where the local government
share has been determined by the General Appropriation Act, its release
may not be made subject to the condition that "such amount shall be
released to the local government units subject to the implementing rules
and regulations, including such mechanisms and guidelines for the eq-
uitable allocations and distribution of said fund among local govern-
ment units subject to the guidelines that may be prescribed by the Over-
sight committee on Devolution." To subject its disffibution and release
to the vagaries of the implementing rules and regulations, including
the guidelines and mechanisms unilaterally prescribed by the oversight
Committee from time to time, as sanctioned by the assailed provisos in
the GAA of 1999,2000 and 2001 and the OCD resolutions, makes the
release not automatic and a flagrant violation of the constitutional and
statutory mandate that the'Just share" of the LGUs "shall be automati-
cally released to them.""
Moreover, neither Congress nor the Executive may impose con-
ditions on the release. As the Constitution lays upon the executive the
duty to automatically release the just share of local governments in the
national taxes, so it enjoins the legislature not to pass laws that might
prevent the executive from performing this duty. To hold that the execu-
tive branch may disregard constitutional provisions which define its du-
ties, provided it has the backing of statute, is virtually to make the Con-
stitution amendable by statute - a proposition which is patently absurd.
Moreover, if it were the intent of the framers to allow the enactment
of statutes making the release of IRA conditional instead of automatic,
then Article X, Section 6 of the Constitution would have been worded
to sity "shall be [automaticallyl released to them as provided by law.'t*
'/llltrurgus v. llxctutivc Secrrtlry,(i.R. No. 151774, Mly 27,2(X)4.
'*Allctnrrlivc('r.lttct v.Zrrrrrorrr.(il{ Nrr l.l,l,)5(r,.lrrrrr'll. l(X)5.
I 128 THE 1987 CONSTITUTION Secs.7-8 Sec. 8 ART, X - LOCALGOVERNMENT
OF THE REPUBLIC OF THE PHILIPPINES General Provisions

In order to maintain a fair and equitable distribution of national The meaning of the three-term limit on local elective officials was
to be
taxes, the local units must be created according to uniform and non- explained in Boria, Jr. v. Commission on Elections.u'For service
discriminatory criteria prescribed in the Local Government Code. For counted as one term for the purpose of the three-term limit, two essen-
this reason the creation of cities following criteria in Cityhood Laws tial elements are required. First, the official must have been elected to
served
passed by Congress and not those in the Local Government Code was the position three consecutive times, and second, he must have
nullified in League of Cities v. COMELEC.5' three full terms.

Snc. 7. Loc.lr- covERNMENTs sHALL BE ENTITLED To AN The court explained the first requirement thus: "To recapitulate,
the term limit of elective local officials must be taken to refer
to the
EQUITABLE SHAR-E IN THE PROCEEDS OF THE UTILIZATION AND
DEVELOPMENT OF THE NATIONAL WEALTH WITHIN THEIR RESPECTIVE right to be elected as well as the right to serve in the same elective
AREAS, IN THE MANNER PROYIDED BY LAW' INCLUDING SHARING THE pisition. Consequently, it is not enough that an individual has served
SAME WITH THE INHABITANTS BY WAY OF DIRECT BENEFITS. ihr"" terms in an elective local office, he must also have
"orrr"cutive before
been electedto the same position for the same number of times
1. Share in proceeds from natural resources. the disqualification can apply." Thus, if a vice-mayor succeeds a mayor
that pe-
Section 7 gives yet another source of revenue for local govern- who dies and completes the deceased mayor's unfinished term,
riod of service is not counted against the mayor-successor for the
pur-
ments: share in the proceeds from the exploitation and development to the position
pose of the three-term limit because he was not elected
of natural resources found within the locality. This can take the form T.
of flnancial benefits for the local units coming from a share in fees, of *uyor when he first assumed the position. In the Borja case,Jose
There-
charges, and other incomes coming from development, and it can also capco succeeded to the office of mayor upon the mayor's death.
after, he was elected mayor two more times and completed the
two
take the form of direct benefit for the population coming in the form,
terms. The court said that he was still qualified for another term say-
for instance, of cheaper electric power rates for energy sourced in the .,First, to prevent the establishment of political dynasties is not the
locality, or priority in employment. This can be effected through either ing:
national or local laws.* oniy policy embodied in the constitutional provision in question. The
people.
other^policy is that of enhancing the freedom of choice of the
Snc.8. Tnr rrnu oF oFFICE oF ELECTIvE LocAL oFtr'ICIALS, To considei, therefore, only stay in office regardless of how the official
EXCEPT BARANGAY OFFICIALS, WHICH SHALL BE DETERMINED BY LAW' concerned came to that office - whether by election or by succession
of the
SHALL BE THREE YEARS AND NO SUCH OFFICIAL SHALL SERVE FOR
by operation of law - would be to disregard one of the purposes
MoRE THAN THREE coNsEcurlvE TERMS. Voluxrnnv RENUNCIATIoN
constitutional provision in question."
OF THE OFFICE FOR ANY LENGTH OF TIME SHALL NOT BE CONSIDEREI)
AS AN INTERRUPTION IN THE CONTINUITY OF HIS SERVICE FOR THI.] The second requirement, service during three full terms, was elab-
FULL TERM FOR WIIICH HE WAS ELECTED. orated on by the court through three hypothetical situations:

Case No. I ' Suppose A is a vice-mayor who becomes mayor

1. Term of local officials.
by reason of the death of the incumbent' Six months before the
Section 8 not only sets the term at three years but also prohibits ltl nlxt election, he resigns and is twice elected thereafter' Can he run
cal officials from serving for more than three consecutive terms.'l'ltelr' again for mayor in the next election?
two limitations, however, do not apply to barangay officials whosc le t lll Ycs, because although he has already first served as mayor
and number of ailowable terms may be set by law.n' hy succcssion and subsequently rcsigned from office before the
l'r,ll rcrrD cxllit'ctl. hc has not actually scrvcd thrce full terms in all
5eG.R. No. 178056, Novembcr lll
ilt
ld. at 466-461 , 4212-4u5 .
t'l
ld. tt 406-4tll
.
,,'( i l{ Nil | l l,lrr\,:iflllilillx'r l. l()()tl
I13O THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
for the purpose of applying the term limit. UnderArt. X, gg, volun_
tary renunciation of the office is not considered as an intemrption
in the continuity ofhis service for the full term only ifthe term is
one "for which he was elected." Since A is only completing the
service of the term for which the deceased and not he was elected,
A cannot be considered to have completed one term. His resigna_
tion constitutes an intemrption of the full term.
Case No. 2. Suppose B is elected mayor and, during his first
term, he is twice suspended for misconduct for a total of I year. If
he is twice reelected after that, can he run for one more term in the
next election?
Yes, because he has served only two full terms successively.
In both cases, the mayor is entitled to run for re-election be_
cause the two conditions for the application of the disqualifica_
tion provisions have not concurred, namely, that the local official
concerned has been elected three consecutive times and that he
has fully served three consecutive terms. In the first case, even
ifthe local official is considered to have served three full terms
notwithstanding his resignation before the end of the first term, the
fact remains that he has not been elected three times. In the second
case, the local official has been elected three consecutive times,
but he has not fully served three consecutive terms.
Case No. 3. The case of vice-mayor C who becomes mayor
by succession involves a total failure of the two conditions to con-
cur for the purpose of applying Art. X, g8. Suppose he is twice
elected after that term, is he qualified to run again in the next elec-
tion?
Yes, because he was not elected to the office of mayor in the
first term but simply found himself thrust into it by operation of
law. Neither had he served the full term because he only continued
the service, intemrpted by the death, of the deceased mayor.
To consider C in the third case to have served the first term
in full and therefore ineligible to run a third time for reelection
would be not only to falsify reality but also to unduly restrict the
right of the people to choose whom they wish to govern them. If
the vice-mayor turns out to be a bad mayor, the people can remedy
the situation by simply not reelecting him for another term. But ii,
on the other hand, he proves to be a good mayor, there will be no
way the people can rcturn him to office (even if it is.iust thc third
time hc is standing lirr rcclccti.n) il'his scrvicc.l'thc lirsr rcrm is
counlcd as onc lirr lltc llrrrposc ol'applying thc tcrnr lintit.
Sec.8 ART. X LOCALGOVERNMENT
Sec.8 -General Provisions
To consider C as eligible for reelection would be in accord
with the understanding of the Constitutional Commission that
while the people should be protected from the evils that a mo-
nopoly of political power may bring about, care should be taken
that their freedom of choice is not unduly curtailed.
whilethese hypothetical cases are obiter dicta, they are not with-
out persuasive force. However, the second hypothetical case is less than
persgasive. When an official is suspended, he thereby shortens neither
hir t".- nor his tenure. He is still considered the rightful holder of the
office and therefore must be considered as having served a full term
during the period of suspension. To reward him with another full term
would seem to be to reward wrongdoing.
The facts in the two cases which followed Borja do not support
the conclusion in the second hypothetical case above. ln LonZanidn v.
1)MELEC,63 the case was about a mayor who was proclaimed elected
three consecutive times. However, his third election was declared in-
valid by the COMELEC and he had to step down. He therefore was
not elected three times nor did he serve three full terms. The facts in
Adormeo v. c)MELEC* were similarly different from those of the sec-
ond hypothetical case. The case was about a mayor who was elected
two consecutive times and served two full terms, lost the succeeding
election but won in a recall election during the third term. The non-
completion of three full terms was not due to suspension.
Decisions on the term of office of elective officials since the lead-
ing case of Borja maybe summarized thus:
1. Lonzanida was elected Mayor to a third term. His election
was challenged, however, and he lost and had to abandon his office. He
could still run in the next election year because he did not serve three
full terms.u5
2. Talaga lost when he ran for a third term. The winner, how-
ever, lost to him in a recall election and he served the rest of the former
winner's term. At the end of this term he could run again because he had
not served three full terms.66
d!(i.R. No. l35l5O,.lrrly 2tt, 1999.
*(i.R. No, 147()27, lrchrrrlry 4, 2tX)2.
n'l.ortztutitlu v.('()Mlil ,li('.(iR. No. 115 150'Jtrly 21{' 1999
''Arkrnnco v ('( )Mlil.li(', ( l.l{. No I 47()i17, lrcbrrrlry 4. 2(X)ll
 tr32 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
3. Hagedorn served as Mayor for three full terms. In the first
year after the end of his third term, he ran in a recall election.
eualified?
Yes, because between the end of his third term and the recall election
there was an intemrption thus breaking the successiveness.6T
4. During the third term of a Mayor of a municipality, the mu-
nicipality was converted to a city. The Mayor was allowed to finish the
third term. could he run as Mayor of the city in the next election? No.
There has been no change in territory nor in constituency. Thus, the
three term limit applies.6'
5.
When a municipal councilor assumed the office of Vice-
Mayor his assumption of office as vice-mayor in January 2004 was by
operation of law. It was an involuntary severance from his office as
municipal councilor resulting in an intemrption in the service of his
2001-2004 term. He did not serve the full2001-2004 term.6e
6. After serving a full three year term, Alegre was declared to
have been invalidly elected. should that term be counted for purposes
of the three term limit? Yes. The decision declaring him not elected is
of no practical consequence because he has already seryed.'o
Ssc. 9. Lrcrsr,.lrrvr BoDTES oF LocAL GovERNMENTs sHALL
HAVE SECTORAL REPRESENTATION AS MAY BE PRESCRIBED BY LAW.
1. Sectoralrepresentation.
The main objection against this provision was difficulty in im-
plementation. It was reported, however, that this represented a strong
clamor of the people as perceived in the public hearings conducted by
the Commissioners. It was also pointed out that in fact this was already
an "earned right" in that sectoral representation was already a reality in
local legislative bodies.T' The qualifications of sectoral representatives
are determined by law." sectoral representation is now provided for in
the Local Government Code.
6TSocrates v.
COMELEC, G.R. No. 154512, November 12,2X)2.
6slatasa v. COMELEC,
G.R. No. 154829, December 10.2003.
6eMontebon v COMELEC,
G.R. No. 180444 , Aprit 8, 2008.
70ong v. Alegre,
G.R. No. 163295, January 23,2fi)6; Rivera III v. Mornlcs, G.R. No
167591, May 9,2007.
ltld. at 403-406,451.
T2Supangan,Jr. v.
Snntos,(i.R. No. tl4663,August 24, 1990.
Sec.9 Sec.10 ART.X LOCALGOVERNMENT
-
General Provisions
Ssc. 10. No pnovrNcnt cITYt MUNTCIPALITYT oR BARANGAY
MAY BE CREATED' DIVIDED' MERGED' ABOLISHED' OR ITS BOUNDARY
SUBSTANTIALLY ALTERED' EXCEPT IN ACCORDANCE WITH THE CRITERIA
ESTABLISHED IN THE LOCAL GOVERNMENT CODE AND SUBJECT TO
APPROVAL BY A MAJORITY OF TIIE VOTES CAST IN A PLEBISCITE IN THE
POLITICAL UNITS DIRECTLY AFFECTED.
1.Creation, division, merger, abolition, substantial change
ofboundary.
Prior to 1965, there was a certain lack of clarity with regard to the
power to create, divide, merge, dissolve, or change the boundaries of
municipal corporations. The extent to which the executive may share in
this power was obscuredby Cardona v. Municipality of Binangonan',3
Pelaezv. Auditor General subsequently clarified the Cardona case when
the Supreme Court said that "the authority to create municipal corpora-
tions is essentially legislative in nature'"'4 Pelaez, however, conceded
that "the power to fix such common boundary, in order to avoid or settle
conflicts of jurisdiction between adjoining municipalities, may partake
of an administrative nature-involving as it does, the adoption of means
and ways to carry into effect the law creating said municipalities."'s
pelaezwas silent about division, merger, and dissolution of municipal
corporations. But since division in effect creates a new municipality,
and both dissolution and merger in effect abolish a legal creation, it may
fairly be inferred that these acts are also legislative innat:ure.T6
Section 10, which is a legacy from the 1973 Constitution, goes
further than the doctrine inthe Pelaez case. It not only makes creation,
division, merger, abolition or substantial alteration of boundaries of
provinces, cities, municipalities and barangays subject to "criteria es-
tablished in the local government code," thereby declaring these ac-
tions properly legislative, but it also makes creation, division, merger'
abolition or substantial alteration ofboundaries "subject to approval by
a majority of the votes cast in a plebiscite in the political units directly
7136
Phit.547 (19t7).
14|5 SCRA 569, 576 ( 1965).
1',|d.
fnScc.
-1, R.A. No.2.170 (196{)) h$tl cnrlicr tleclarcd that "barrios shall not be created
or
lhcir hrrrrrrlrrrics rrltcrcrl 16r lhcir nurnr's clrnrrgtrtl (:xc(:pl trn(lcr thc prttvisions rll this Act or by thc
Act sl ('1trg,resr." Ser' .tO ol llrc l)ctrnlrrrlizution n(1, R.A. Nrt. 51135 (1967) ttlsrt tlcclarul lhc
r.r'crtlion ntxl rtlletttliott rtl lxxttxlttttcr ol ttttttttt ilxtlilics lr k'gislrrtivc Itlttrllirltt

THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
affected." Tan v. COMELEO' explained the scope of the required plebi-
scite to mean that, if what is involved is a barangay, the plebiscite should
be municipality-wide or city-wide, and if a municipality or component
city, province-wide; and that if a portion of a province is to be carved to
form another province, the plebiscite should include the mother prov-
ince. This again is a step in the direction of fuller local autonomy and a
consequent diminution of the legislature's power of control.
The initial step in the creation of local units, however, belongs to
Congress. Moreover, the legislative bodies of Autonomous Regions do
not have the authority to create a province. This is because the creation
of a province necessarily involves the creation of a legislative district
and only Congress can create legislative districts.?8
As to the creation of cities, League of Cities v. COMELEC,'9 ruled
that Congress must follow the criteria established in the Local Gov-
ernment code and not in any other law. This decision resulted in nul-
lification of the creation of sixteen cities where congress used criteria
different from those in the Local government Code.
Snc. 11. Tne CoNcnpss MAy, By LAw, cREATE spEcrAL
METROPOLITAN POLITICAL SUBDIVISIONS, SUBJECT TO A PLEBISCITE
As sET FoRTH rN SscrroN 10 nrnnor. Tnr colrpoNrNT crrrEs AND
MUNICIPALITIES SHALL RETAIN THEIR BASIC AUTONOMY AN'D SHALL
BE ENTITLED TO THEIR OWN LOCAL EXECUTIVES AND LEGISLATIVE
ASsEMBLIES. Tnn' JunrsnrcrloN oF THE METROpoLITAN AUTHORITy
THAT WILL TIIEREBY BE CREATED SHALL BE LIMITED TO BASIC SERVICES
REQUIRING COORDINATION.
1. Metropolitanpoliticalsubdivisions.
Section 11 authorizes Congress to create metropolitan political
subdivisions. The area ofjurisdiction of such subdivisions is not the to-
tality of the concerns of municipal government but only basic services.
As such it will be a juridical entity with municipal powers, police, emi-
77l42SCRA727 (July ll,l986),aposrrevolutiondecision,followingthcdisscntirrgqrrr
ion of Justice Abad Santos in Lopcz, Jr. v. L')MELEC, 136 scRA (r]]l (May -]1, 1985). srt til,ttt
Padilla, Jr. v. COMELEC, 214 SCRA'135 (19921. Note, howcvcr, thal thc principlc is nlt prrslctl
to apply to a plebiscite tbr rittilying itn autoll()rlous rcgion, irr/irr, Sccliorr I lj.
rtSema v. COMlil.li(', (i.R.
No. t775()7, July 16, 2(X)8.
")(i.R. No. l7l{05(r, Novcrnhcr ltt. ?(X)ll.
Sec. 1 I ART, X _ LOCAL GOVERNMENT l 135
Sec. 1 I
General Provisions
nent domain, and taxation powers exercised by a legislative assembly
to the extent needed for providing basic services. Congress
- but only
supplies the details. The cities and municipalities which compose such
subdivisions retain their basic autonomy and their own legislative and
executive powers.
Prior to the passage of this provision, the Metropolitan Manila
Authority was in existence and had broad municipal powers. The new
Constitution put an end to such broad powers especially after the mu-
nicipal officials of the cities and municipalities within Metropolitan
Manila were elected by authority of Article XVIII, Section 1. However,
in order to rescue the basic services functions of the Metropolitan Ma-
nila Authority, Article XVIII, Section 8 said: "Until otherwise provided
by the Congress, the President may constitute the Metropolitan Author-
ity to be composed of the heads of all local government units compris-
ing the Metropolitan Manila area."
Today what is the status of the Metropolitan Manila Development
Authority. As a body, it is composed of several local government units
cities and five (5) municipalities, namely, the cit-
- i.e., twelve (12)
ies of Caloocan, Manila, Mandaluyong, Makati, Pasay' Pasig, Quezon,
Muntinlupa, Las Piflas, Marikina, Parafiaque and Valenzuela, and the
municipalities of Malabon, Navotas, Pateros, San Juan and Taguig' With
the passage of Republic Act (R.A.) No.7924 in 1995, Metropolitan Ma-
nila was declared as a "special development and administrative region"
with authority to render basic services "metro-wide." Seven basic ser-
vices are enumerated by the law: (1) development planning; (2) trans-
port and traffic management; (3) solid waste disposal and management;
(4) flood control and sewerage management; (5) urban renewal, zoning
and land use planning, and shelter services; (6) health and sanitation,
urban protection and pollution control; and (7) public safety. In MMDA
v. Bel-Air Village,'o the Court was careful to point out that the powers
given by R.A. No. 7924 were limited to "formulation, coordination,
regulation, implementation, preparation, management, monitoring, set-
ting of policies, and instillation of a system of administration." The law
contains no grant of general police powers nor legislative power. Metro
Manila Development Authority, therefore, is not a resurrection of the
Metropolitan Manila Authority under thc previous Constitution. Thus it
il'( i R No. I l5()(t,1, Mlrt lt ,)7. .l(XX)
 I 136 THE 1987 CONSTITUTION tt37
Sec. l2 ART. X LOCALGOVERNMENT
OF THE REPUBLIC OF THE PHILIPPINES
Secs.13-14 -
General Provisions

was that, when MMDA, attempted to compel Bel-Airvillage to open to vote

the public Jupiter Street, which the village owned, the court ruled that
MMDA was not a municipal government endowed with police power,
nor of eminent domain power, and was therefore without authority to
order the Village to yield its property for general public use.
The MMDA thus is not the metropolitan political unit contem_
plated in Section 11. Rather it is an administrative agency of the gov-
ernment and as such it does not possess police power. It may exercise
only such powers as are given to it by law. Hence, where there is atraf-
fic law or regulation validly enacted by the legislature or those agencies
to whom legislative powers have been delegated (the city of Manila in
banized,, ,or, they may be demoted to component cities qualified to
in provincial elections. The second category therefore may eventually
disappear altogether. Moreover, changes in the conditions of highly
urbanized cities may necessitate their demotion to a lower category.
Conversely, component cities might rise to the level of highly urban-
ized cities.83
UNITS MAY GRoUP THEMSELvES'
Snc. 13. Locu, covERNMENT
CONSOLTDATE OR COORDINATE TITEIR Etr'FORTST SERVICEST AND
RESOURCES FOR PURPOSES COMMONLY BENEFICIAL TO THEM
IN
ACCORDANCE WITH LAW.

this case) empowering the MMDA to confiscate or suspend licenses of

erring drivers, it may perform such acts. without such law, however, the
MMDAhas no such power.8r
Src. 12. Crrrns rHAT ARE HIGHLv uRBANTzED, AS DETERMTNED
BY LAW, AND COMPONENT CITTES WHOSE CHARTERS PROHTBTT THEIR
voTERS FROM VOTTNG FOR PROVINCTAL ELECTTVE OFFICIALS, SHALL
BE rr\DEpENDENT oF THE pRovrNcn. THn vorERS oF coMpoNENT
CITIF,S WITHIN A PROVINCE, WHOSE CHARTERS CONTAIN NO SUCH
PR.oIIIBITION, SHALL NOT BE DEPRMD OF THErR RIGHT TO VOTE FOR
ELECTIVE PROVINCIAL OFFICIALS.
1. Common efforts, services, and resources'
Section 13 authorizes local government units to "group them-
selves, consolidate or coordinate their efforts, services, and resources
for purposes commonly beneficial to them in accordance with law." It is
important to note that the authority to decide whether to enter into group
efforts with local government units is given to the units themselves.
This is another guarantee of local autonomy. Moreover, the consolida-
tion contemplated is merely in "their efforts, services, and resources,"
and not in their corporate personality.8o This is therefore distinct from
the subject of Section 12 and is useful for local units which have not

been formed into a special metropolitan subdivision' The resultant con-

1. Classification of cities. solidation would not be a new corporate body. The creation of corporate
Section 12 classifies cities into three kinds: (l) highly urbanized bodies is an essentially legislative function and the language of Section
13 does not lend itself to the interpretation that it is a constitutional
del-
cities as determined by law, (2) cities not raised to the highly urbanized
egation of authority to create a super-municipal corporation merely by
category but whose existing charters prohibit their voters from voting in
provincial elections, and (3) component cities, i.e., cities which still are agreement among separate corporations.
under a province in some way. Since the first and second categories do
Snc. 14. TnB PnrsronNr sHALL PRoVIDE FoR REGIoNAL
not vote in provincial elections, they are independent of the province.
DEVELOPMENT COUNCILS OR OTHER SIMILAR BODIES COMFOSED OF
Since they are independent ofthe province, residents of such office are
I,OCALGOVERNMENTOFFICIALS'REGI0NALHEADSoFDEPARTMENTS
not qualified to run forprovincial positions.82 But since those in the third
AND OTHER GOYERNMENT OFFICES' AND REPRESENTATIVES FROM
category are under a province, they cannot be denied a vote in the elec- NON.GOYERNMENTAL ORGANIZATIONS WITHIN THE REGIONS FOR
tion of provincial officials. PURPOSESoFADMINISTRATIVEDECENTRALIZATIONToSTRENGTHEN
'T.HEAUTONOMYoFTHEUNITSTHEREINANDToACCELERATETIIE
The second category is envisioned as an ad-hoc category to take
I.](]()N()MICANDsoCtALGRowTHANDDEVEL0PMENToFTHDUNITSIN
care of existing charters; but these cities can become either "highly ur-
'illl,: Rl](;loN.

SrMMDA v. Garin,G.R.
No. l3O230,April 15, 2(X).5. N'/r/.
*rAbclla v. ('orrrrrrissirxr orr ll 447 450
lilt:t.tions,2Ol S('Rn 25.1, .170 (l99l) xr/,/ ,l5l{ ,1(rl
;1t
 1138 THE I98TCONSTITUTION
Sec. 15
OF THE REPUBLIC OF THE PHILIPPINES
1. Regional development councils.
The purpose of this provision is to foster administrative decentral-
ization as a complement to political decentralization. This is meant to
allow bottom-to-top planning rather than the reverse.
It will be noted that the power to form these development councils
is given to the President. He does not need to wait for authorization
from Congress.s5
Autonomous Regions
Sec. 15. Trnns
sHALL BE cREATED Ar.rroNoMous REGToNS
rx Musr,ru MrNo.lN,q,o AND rN rnr Conprr,r,ERAs coNsrsrrNc or,-
PROVINCES, CITIES, MUNICIPALITIES, AND GEOGRAPHICAL AREAS
SHARING COMMON AND DISTINCTIVE HISTORICAL AND CULTURAL
HERITAGE, ECONOMIC AND SOCIAL STRUCTURES, AND OTHER RELEVANT
CHARACTERISTICS WITHIN TITE FRAMEWORK OF rrUS CONSrrrUrrOX
AND THE NATIONAL SOVEREIGNTY AS WELL AS TERRITORIAL INTEGRITY
oF THE Rmunlrc oF THE Pnrlppnns.
1. Why and how many autonomous regions?
section 15 says that the autonomous regions shall consist of
"provinces, cities, municipalities, and geographic areas sharing com_
mon and distinctive historical and cultural heritage, economic and so-
cial structures, and other relevant characteristics within the framework,'
of one sovereign nation. The understanding is that there are such prov-
inces, cities, municipalities, and geographic areas in Mindanao (i.e.,the
Muslim part of Mindanao) and in the cordilleras, but that between the
areas of Muslim Mindanao and of the cordilleras there is a more or less
homogeneous culture. Thus, only the cordilleras in the extreme North
and Muslim Mindanao in the South are given the distinctive privilege of
forming autonomous regions. To the question whether congress could
create autonomous regions other than for Mindanao and the cordil-
leras, the clear and categorical answer was that any other area which
wishes to become an autonomous region "should seek a constitutional
amendment."Eu
8r/z/. at 46 I -466.
*"/r/. rrt 37.1.
.174 :177
Sec. l6 ART. X _ LOCALGOVERNMENT l r39
Autonomous Regions
Forming autonomous regions is in fact more than just a ques-
tion of privilege for these two regions. It is a question of right. one of
the riches of the Filipino nation is the diversity of cultures found in it.
These diverse cultures, as a matter of right, must be allowed to flourish.
No one culture should be allowed to crush any other. Thus, the basis
for the establishment of autonomous regions is diversity of cultures and
not just geographic accident. Any movement towards autonomy which
is not based on identity of culture (such as Minsupala seemed to be)
is of suspicious motivation. Autonomy based on geographic consider-
ations can be inspired by motivations no less ignoble than what inspires
gerrymandering!8'
The phrase "Muslim Mindanao" occasioned some dispute. Com-
missioner de Castro argued that the expression could be construed to
mean that all of Mindanao was Muslim, contrary to the fact that Mus-
lims are not found in substantial areas of Mindanao. But Muslim Com-
missioners Abubakar and Alonto answered that the phrase precisely was
limitive and meant only those areas of Mindanao which were predomi-
nantly Muslim." Thus the phrase Muslim Mindanao is said in much the
same way that the phrase Christian Philippines does not suggest that all
of the inhabitants of the Philippines are Christian.
The creation of the autonomous regions, however, does not mean
the establishment of sovereignties distinct from that of the Republic.
These autonomous regions can be established only "within the frame-
work of this Constitution and the national sovereignty as well as territo-
rial integrity of the Republic of the Philippines.""
Snc. 16. Tnn PnesronNr SITALL EXERCTSE GENERAL sUPER-
VISION OVER AUTONOMOUS REGIONS TO ENSURE THAT LAWS ARE
FAITHFULLY EXECUTED.
1. The President and autonomous regions.
The power of the President over autonomous regions is the same
as his power over local governments - only one of "general super-
vision," th:rt is, the power to ensure that subordinate officers execute
xrliil tlrc tliserrssions 0n thc lalitxtirle 0l itulOnttlrtous rcgions, scc irl. lrt I(r9- I7.1
Ni/r/. ttl tl()2-4()(r.
r"l.l.iltltt7 4ttt).
 r 140 THE 1987 CONSTITUTION
OF THE REPUBLIC OFTHE PHILIPPINES
and act within existing laws. The commission deliberately dropped the
phrase "as may be provided by law" in order to deny to Congress the
authority to expand the nature of the power of the President over au-
tonomous regions beyond general supervision.In effect, therefore, and
in the spirit of greater autonomy, the provision also curtails the power
of Congress over autonomous regions.m
Src. 17. Alr- rowrns, FUNcrroNs, AND REspoNsIBILITIEs Nor
GRANTED By rIIIs CoNsrrrurroN oR By LAw ro rHE AUToNoMous
REGIoNS sHALL BE VESTED rN rrm N,lrrox.q,L GovnRNIvInxr.
Snc. 18. THE CoNcnnss srrALL ENACT AN OnclNrc Acr ron
EACH AUTONOMOUS REGION WITH THE ASSISTANCE AND PARTICIPATION
OF THE REGIONAL CONSUI]TATIVE
COMMISSION COMPOSED OF
REpRESENTATTvES AppoINTED By rHE Pnnsropxr FRoM A LIsr oF
NoMTNEES FRoM MULTTSEcToRAL BoDrf,s. Tnp Onclxtc Act sn.q,LI,
DEFINE THE BASIC STRUCTURE OF GOVERNMENT FOR THE REGION
CONSISTING OF THE EXECUTIVE DEPARTMENT AIID LEGISLATIVE
ASSEMBLY, BOTH OF WHrCH SHALL BE ELECTM AND REPRESENTATM
oF THE coNSTITUENT poLITrcAL unrrs. Tnr Onc.tNrc Acm srur,r,
LIKEWISE PROVTDE FOR SPECIAL COURTS WITH PERSONALTFAMILYTAND
PROPERTY LAW JURISDICTION CONSISTENT WITH THE PROVISIONS OF
TTTTS COI.CSTTTUTION AND NAIIONAL LAW.
Tnr cnn.lrroN oF THE AlrroNoMous REGToN sHALL
EFFECTIVE WHEN APPROVED BY 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 FAYORABLY IN SUCH PLEBISCITE SHALL BE INCLUDED IN THE
AUTONOMOUS REGION.
Src. 19. Tnr Fmsr Concnnss ELEcTED uNDER THrs Coxsrr-
TUTION SHALL, WITHIN EIGHTEEN MONTHS FROM THE TIME OF
oRGANrzATroN oF BorH Housrs, pAss rHE Onc.lmc Acrs ron
AUToNoMous nrcroNs rn Musr,nr Mrnnlx.q,o fi{o rHr CoRDILLER.As.
1. Enactment of Organic Acts and creation of autonomous
regions.
Sections 17 ,18, and 20 set down the delineation of the powers of
the autonomous regions and the process of establishing these regions.
A cardinal principle enunciated in section l7 is that these autont)mous
'x)/d. at 5 l4-5 I (r
Secs. l7-19 Secs. 17-19 ART. X _ LOCALGOVERNMENT
Autonomous Regions
regions are local units which are given "enumerated powers." Powers
not included in the enumeration and not implicit in those enumerated
remain vested in the national government. The subject over which the
autonomous regions may have authority are enumerated in Sections 18
and 20. Notably not included in the enumeration are powers over: na-
tional defense and security, foreign relations and foreign trade, customs
and tariff, quarantine, culrency, monetary affairs, foreign exchange,
banking and quasi-banking, external borrowings, posts and communi-
cations, air and sea transport, immigration and deportation, citizenship
and naturalization, and general auditing.el
As a preliminary step towards the establishment of the autono-
mous regions, Congress is commanded to formulate an Organic Act
for each of the two. In the formulation of the Organic Acts, Congress
is to be assisted by "regional consultative commission[s] composed of
representatives appointed by the President from a list of nominees from
multi-sectoral bodies" of the regions affected. The clear intention was
to give participation to the regions from the very beginning through the
consultative commissions. But how will the commissions be created?
The initial draft did not call for the creation of any particular body
but merely provided that the elective officials of the region would be
consulted. Later, however, Commissioner Ople moved that a "regional
BE
constitutional commission" be created to draft an organic act for pre-
sentation to Congress. This was abandoned as too cumbersome and the
Commission settled for the "regional consultative commission com-
posed of representatives to be appointed by the President from a list of
nominees from multi-sectoral bodies."e'
Section 19 commands Congress, with the assistance and participa-
tion of the regional consultative commissions, to pass the Organic Acts
rxr "within eighteen months from the time of [its] organization." Congress
is deemed organized upon the election of its offlcers and the forma-
tion of the different committees. The relatively short period of eighteen
months was deemed sufficient and was meant to emphasize the urgency
of creating the autonomous regions as a means towards solving existing
serious peace and order problems and foreclosing secessionist move-
ments.e3
ur/r/. at 55.1,559-56()..!ee Sct:tion 4, P.l). No. l6ltl.
"r/ri. lt 5(X)'50.1,5otl, ittlics ttltlcd.
0r/1/. x1 5.1 I 54 L
 Il42 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The approval of the organic Act does not yet create the autono-
mous region. The creation of the autonomous regions takes place only
when the organic Act is ratified "by majority of the votes Cast by thl
constituent units in a plebiscite called for the purpose.,' But since the
affected regions must have participation in the formation of the organic
Acts, it becomes necessary to make a preliminary administrative deter-
mination of what areas will form the region. Representatives appointed
by the President from these preliminarily determined areas will form
the regional consultative council. These representatives will have an
influence not only on the determination of the structure and powers of
the autonomous regions but also in the determination of the ierritories
which the organic Act will cover, although the territorial determination
does not become final until ratified in a plebiscite.
The organic Ac t contains the structure of govemment for the au-
tonomous region and the powers of the autonomous region. But its ef-
fectivity as an instrument creating the autonomous region does not take
place until it is ratified in a plebiscite. Thus, by a single plebiscite the
autonomous region is created and at the same time the boundaries are
set because "only provinces, cities, and geographic areas voting favor-
ably in such plebiscite shall be included in the autonomous region.,'The
decision to have only a single plebiscite was arrived at by thi approval
of an amendment proposed by commissioner Azcuna which udd"d to
the second paragraph of section 18 the proviso which allows provinces,
cities and geographic areas to include or exclude themselvei from the
autonomous region.e4
The Organic Act itself will in legal category be a statute.e, How_
ever, it is more than an ordinary statute because it enjoys affirmation by
a plebiscite. Hence, its provisions cannot be amended by an ordinary
statute. An ordinary statute, whether general or special, cannot amend
any provision of the organic act. Its creation or amendment can only be
through a plebiscite called for the purpose.e6 This, in fact, is affirmed by
Section 3 of Article xvIII of the organic Act of l9g9 for the Autono-
mous Region of Muslim Mindanao. Which says:
Any amendment to or revision of this Organic Act shall
become effective only when approved by a majority of the votes
')ald.at 489-492.
at I 82- I tl3.
'g5/ri.
"nl)lndi v. (irurt ol Aplurls,(i.l{. No. I ti8S0,April I l, 2(X)2.
Secs. l7-19 _
Secs. l7-19 ART. X LOCALGOVERNMENT 1143
Autonomous Regions
cast in a plebiscite called for the purpose, which shall be held not
earlier than sixty (60) days or later than ninety (90) days after the
approval of such amendment or revision.
But matters not covered by the Organic Act are governed by the
provisions of the Revised Administrative Code.n' These matters are: (a)
foreign affairs; (b) national defense; (c) postal service; (d) coinage and
fiscal and monetary policies; (e) administration of justice; (f) quaran-
tine; (g) customs and tariff; (h) citizenship; (i) naturalization, immigra-
tion and deportation; O general auditing, civil service, elections; (k)
foreign trade; (1) maritime,land and air transportation and communica-
tions affecting areas outside of the ARMM; (m) patents, trademarks,
tradenames, and copyrights.
Should the plebiscite, however, be a local or a national plebiscite?
It will be recalled that, in Tan v. COMELEC,e8 the Supreme Court ex-
plained that, if what is involved is the creation of a barangay, the plebi-
scite should be municipality-wide or city-wide, and if a municipality or
component city, province-wide; and that if a portion of a province is to
be carved to form another province, the plebiscite should include the
mother province. If, however, provinces and cities and municipalities
are to form an autonomous region which is a local government unit,
should the plebiscite be nation-wide since the creation of the autono-
mous region will have an effect on the entire nation? In answer to this
question the Committee on Local Government deliberately departed
from the implications of Tan v. COMELEC and said that the plebiscite
would only be within the region affected.'
Concretely, therefore, in the process of determining the territory
that will comprise the autonomous region, there are three steps. First,
there is a preliminary administrative determination of what areas should
be considered for inclusion in the autonomous region. This is neces-
sary for purposes of determining the composition of the regional con-
sultative council. Second, Congress through the Organic Act makes a
determination of what areas might be included and therefore should
participate in the plebiscite.In this step, some areas included in the first
step can already be excluded. Finally, the plebiscite can further modify
(i.R No. ll(rli5o,
"7l'antli v. (irurt ol Appcals, April I l,2(X)2.
qf
42 S('RA 727 (JtrlY ll, letl(r)
"'lll Rl,l('()Rl) ll,ll llt l.
,.i
 X _ T,OCALGOVERNMENT
Secs. l7- l() Sec.2O
THE 1987 CONSTITUTION ^I{T. Autonomous Regions
OF THE REPUBLIC OF THE PHILIPPINES
Mindanao is smallcr
Autonomous Region of Muslim
the determination made by the Organic Act because Section 18 says thal ry covered by the the Tripoli
the Autonomous Region under
..only provinces, cities, and geographic areas voting favorably in such than the territory covered by the manner
delineating
plebiscite shall be included in the autonomous region." And it is this fi-
;;;;;;i. ir," prouisons of the constitution Region supersedes the
nal vote which creates the autonomous region.'ou Moreover, it is enough
of determining the extent of the Autonomous were a valid treaty'*
even if the latter
rerms of the Tripoli ag."L-*,
that some "provinces, cities and geographic areas" vote favorably.
For an effective ratification, it is not necessary to achieve a "dou-
- which it is not. region
The Organic Act for the autonomous
only"lone pfovrnce ap-
:1"--t^:ililleras
ble majority," that is, a majority in individual political units and a ma- necessary number of votes.
failed to obtain the
jority of the total votes cast. The political units which vote against thc region must have at least two
proved the Organic Act' An autonomous
autonomous region remain under the administration of the original ro- possible for an Organic Act for the
Cor-
provinces.roT ,, ir, no*"u"'''titt prov-
gion to which they belongeal.ror However, since the Constitution speaks future date' For that matter' too'
dilleras to be approved at some
of "prOvinces," an autonomous region has to consist of more than onC the Organic Act for Muslim
Mindanao may
inces which did not
pronin"". Hence, if only one province ratifies the Organic Act drafled "*"p' an amendment of the Organic
Act
eventually join such t"gion through
Ly Congress, the creation of an autonomous region does not succeed'"''
submitted to another referendum'
should be noted that not only provinces and cities can vote t()
It
AND suBJEcr
exclude themselves from the autonomous region but also "geographic SBc.20. WrrmN ITs TERRIToRTAL JURIsDIcTIoN
AND NATIONAL LAwst
areas." Initially the provision simply said that only "constituent units" To rHE PRovISroNs oF THIS Coxsrrrurrox PROYIDE FOR
REGIONS SHALL
voting favorably would be included. And this was explained to meun, THE ORGANIC ACT OF AUTONOMOUS
,.as presently worded," that exclusion could only be province-widc LEGISLATIVE POWERS OVER:

or city-wide and that therefore a cluster of towns could not exclutlc 1) ADMINISTRATIVEORGANIZATION;
themselves.rm Eventually, howevef, when Section 18 was approved. thc 2) cREATToN or souRCEs oF REVENUES;
wording was changed to "provinces, cities, and geographic areas," thtls NATURAL RESOURCES;
3) ANCESTRAL DOMAIN AND
legitimating the interpretation that a cluster of towns could be exclutlcd
RELATIoNS;
even if the rest of the province should vote to be included.r'* How tl 4) PERsoNALT FAMILYT AND PRoPERTY

"geographic area" which votes against inclusion will be handled cittl bc 5) REGIONAL URBAN AND RURAL
PLANNING DEVELOPMENT;

piovided for by law. It was pointed out, however, that for a prtlvittcc. ECoNoMrcr socIALt AND TouRIsM
DEVELoPMENT;
6)
or geographical area to succeed in excluding itself from thc tttt
"ity,
tonomous region, that area must not merely boycott the plebiscitc lttlt 7\ EDUCATIONALPOLICIES;
oF TIIE cULTURAL
must express its wish bY vote'ros 8) PRESf,RvATIoN AND DEVELoPMENT
HERITAGE; AND
As of this writing, only one autonomous region, that ol' Mttslittt
MAY BE AI]THORIZED BY LAW
9) SUCH OTHER MATTERS AS
Mindanao, has been established. Noteworthy is the fact that thc tcrt'ilrt WELFARE OF TI{E PEOPLE
OF
FOR THE PROMOTION OF THE GENERAL
THE REGION.

roThe creation ofthe autonomous region is reversible ifovcr thc ycars' thtrxtglt lltf ttrtvr'
(l('illly rlr!llrx I
ment of people, it happeirs that the region no longer forms a culturltl cottttttttltily
from the rest of the nation. Id. at 214.
rotAbbas v. Commission on Elections, 179 SCRA 2tt7' l(X)-'lOl ( l()ttq)
Io2Ordillo v. Comntission on lllectirtns' 192 S('RA l(X) ( l9(X))
otr lllceliorts' 179 S('RA 2U7 '
294 ( l9tl9)
rorft/. ar 490_491 . ;ffi;;J;trtttissiott
r(!/r/. ltt 5 l.l. l,i,it,, ('()rrrrrrrssr(rll ilr lilu lrrts' l9l S('RA l(X) ( l99O)

'(''/r/. itl,l()l
"'a "
1146
THE 1987 CONSTITUTION Sec.20
OF THE REPUBLIC OF THE PHILIPPINES
1. Legislative power of autonomous regions.
Section 2O,in its first eight paragraphs, enumerates the irreduc-
ible legislative powers conferred by the Constitution on autonomous
regions. The grant of power, however, is "subject to the provisions of
this Constitution and national laws." Conceivably, therefore, legislative
enactments covered by the local legislative body of the autonomous re-
gion can come into conflict either with the Constitution or with national
laws. In such eventuality, what should prevail?
Clearly, when the conflict is between a local law and the Constitu-
tion, the Constitution should prevail. Thus, for instance, although reli
gious considerations may be one of the major foundations for the cre-
ation of an autonomous region, the region cannot be exempted from the
provisions on free exercise and non-establishment of religion found in
the Constitution.r0s When, however, the conflict is between a local law
and a national statute, the question is not easily answered. And indeed
conflicts will almost naturally have to be expected because national
laws are generally a reflection of the nationally predominant culture.
But, although Section 20 says that local legislative power should be
subject to national laws, national laws themselves are subject to the
Constitution one of whose state policies is to ensure the autonomy of
local governments.roe
Conflicts can also arise in the application of local laws. This can
be particularly crucial in the case of personal and property laws for
those belonging to autonomous regions but acting outside the autono-
mous territory and also for those who do not belong to autonomous
regions but are acting within autonomous territory.
As conflicts arise and are recognized, Congress will be compellcd
to re-examine national laws and to make sure that they reflect the Colt-
stitution's adherence to local autonomy and, in concrete instances, thc
Supreme Court may have to be dragged in to resolve the conflicts. Ottl
of these conflicts and the efforts to resolve them will arise a bocly ttl'
internal conflict of laws doctrines.'r0 But it is important that thc undcrly
ing spirit which should guide the resolution of conflicts is the Constitu
tion's desire for genuine local autonomy.
tttl
l d. at 524-525. .554-555.
r'r'Arliclt: ll, Scclion 25 lrttl tll ol Artie lc X 'rrScrnn v. ('OMtil.li(',
rr",Sr'r'lll Rl('()ltl) 54() 55 l.
Sec.2l ART. X LOCAL GOVERNMENT
-
Autonomous Regions
Nevertheless, in Sema v. COMELEC,T" the Court ruled that an
autonomous region cannot create a new province. only congress can
create provinces and cities because the creation of provinces and cit-
ies necessarily includes the creation of legislative districts, a power
only congress can exercise under section 5, Article vI of the constitu-
tion and section 3 of the ordinance appended to the constitution. The
ARMM Regional Assembly cannot create a province without a legis-
lative district because the constitution mandates that every province
shall have a legislative district. Moreover, the ARMM Regional As-
sembly cannot enact a law creating a national office like the office of
a district representative of congress because the legislative powers of
the ARMM Regional Assembly operate only within its tenitorial juris-
diction as provided in section 20, Article X of the constitution. Thus,
the court invalidated MMAAct 20l,enacted by the ARMM Regional
Assembly and creating the Province of Shariff Kabunsuan.
Src.21. Tnn pnrsrnvlrroN oF pEACE AND oRDER wrrHrN
THE REGIONS SHALL BE THf, R,ESPONSIBILITY OF TI{E LOCAL POLICE
AGENCIES WHICH SHALL BE ORGANIZEDT MAINTAIIYEDT supERvISED,
AftD UTILIZED IN AccoRDANcE wITIr AppLIcABLE r,lws. Tnr
DEFENSE
AND SECURITY OF TIIE REGIONS SHALL BE THE RESPONSIBILITY OF TIIE
N^rtrow, Govrnnunxr.
1. Peace and orderrdefense and national security.
section 21 makes a distinction between the problem of intemal
peace and order and the problem of national defense and security. The
former, understood as the problem of ordinary criminality which should
normally be the concern of police authorities, is the responsibility of the
local police agencies. However, the organization, maintenance, and su-
pervision of police agencies may in certain circumstances be beyond
the capabilities of local governments. In such instances, the president,
as commander-in-chief may order the armed forces into the autono-
mous region to perform whatever may be necessary. As to national de-
fense and security, that is, as to dealing with threats to the stability, in-
tegrity, and survival of the nation, this clearly is the primary
responsibil ity of the national government.r r 2
(i.R. No. l7?5()7, July 16,2(X)8
rrrlr/. lt 527 5.1.1.

AnrrclB XI
AccouNTABILrrY oF Pusl.rc Orprcnns
SncuoN 1. Puruc
oFFICE IS A PUBLIC rRUSr' Purr'rc
OFFICERS AND EMPLOYEES MUST AT ALL TIMES BE ACCOUITTTABLE TO
THE PEOPLE, SERVE THEM WITH UTMOST RESPONSIBILITY' INTEGRITY'
LOYALTY, AND EFFICIENCY' ACT WITH PATRIOTISM AND JUSTICE' AND
LEAD MODEST LIVES.
1. Public office a Public trust.
This provision sums up the high sense of idealism that is expected
of every officer of the government. As expressed by Justice Malcolm
\n Cornejo v. Gabriel,'the basic idea of govemment in the Philippines
"is that of a representative government, the officers being mere agents
and not rulers of the people, one where no one man or set of men has
a proprietary or contractual right to an offlce, but where every officer
accepts office pursuant to the provisions of law and holds the office as
a trust for the people whom he represents'"'
The notion of a public trust connotes accountability. The provi-
sions of this article are designed to exact accountability from public
officers.
Except for the phrases "act with patriotism and justice, and lead
modest lives," the whole section has been lifted from the 1973 text.
,,lead modest lives" means to live within one'S means, and, if one's
To
means are generous, not to flaunt them in conspicuous display''
'41 Phil. 188
(1920).
2ld. at 194.To the extent, however, that security of tenure is protected by thc duc prrx elr
22 S('RA
clause, the right to office in that limited sense is analogous to property. Mort'e v. Mutuc'
424,43'7 (1968).
rII RECORD 274-275.
Sec.2 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS
In 1995 RA 9335, the Attrition Act, authorized the Bureau of In-
ternal Revenue (BIR) and the Bureau of Customs (BOC) to give awards
to those who surpass the BIR and Boc targets and to impose sanctions
on those who fall short. The awards were to be taken from the excess
over target as set up by a Board. The validity of the law was challenged
on the ground among others that the law transformed officials into mer-
cenaries and bounty hunters contrary to the concept ofoffice as a public
trust thus encouraging comrption.
In upholding the law the Court said that, although public service
is its own reward, nevertheless, public officers may by law be rewarded
for exemplary and exceptional performance. A system of incentives for
exceeding the set expectations of a public office was seen as not anath-
ema to the concept of public accountability. In fact, the law recognized
and reinforced dedication to duty, industry, efficiency and loyalty to
public service of deserving government personnel.o
Src.2. Tnn PnnsronNT, rHE Vrcn-pnrsronNT, THE Mnunnns
oF TrrE Supnpur Counr, rHr Mnvrnnns oF TrrE CoNsrrrurrox,Lr
Colrurssrons, AND THE OllnuoslrAN MAy BE REMovED FRoM oFFIcE,
oN IMPEACHMENT FOR, AND CONVTCTION OF, CULPABLE VIOLATTON OF
rnn CoxsrrrurloN, TREASoN, BRIBERv, cRAFT AND coRRUprIoN,
orHER HIGH cRrMEs, oR BETRAvAL oF puBLIc rRusr. Ar,r, ornnn
PUBLIC OFFICERS AND EMPLOYEES MAY BE REMOVED FROM OFFICE AS
PROVIDED By LAW, BUT NOT By IMPEACHMENT.
1. Impeachment as '.political justice.',
A corollary to the principle of judicial independence is the claim
that courts must have a monopoly of the exercise of judicial functions.
Such judicial monopoly is in fact ordained by the constitution with
only two exceptions. The first exception is the power of the Commis-
sion on Electionss and of the Electoral rribunalsu to be judges of elec-
tion contests, and the second is the power of impeachment of Congress,
the exercise of which the French call an act of "political justice.',
Impeachment is of British origin. Ironically, however, in the Brit-
ish system neither the king nor the Prime Minister is subject to im-
j
I oAbukudu Curo v. lrurisimr,
O.R. No. l6(17l5,August 14, 2008
J
rArticlc lX, (', Sectiorr 2(2).
dArticlc Vl, Scction I 7.
II5O THE 1987 CONSTITUTION Sec.2
OF THE REPUBLIC OF THE PHILIPPINES
peachment. Not the king, because the only way to be rid of an unwanted
monarch is by revolution or assassination. Not the Prime Minister, be-
cause the Prime Minister is essentially a legislative creature who may at
any time be replaced by parliament through a no confidence vote. The
reasons for ouster of a Prime Minister theoretically can be as trivial as
the quality of his sartorial preferences.
When the American Founding Fathers were formulating the Con-
stitution, they had no intention of setting up a monafch who could rule
for life. But they did want to give him security of tenure. At the same
time, however, the Founders were aware that, human nature being what
it is, it might become necessary to rid the presidency of one who has
been found unworthy of the office' They were, moreover, also aware
that any president would have innumerable enemies who would only
be too glad to oust him. What the Founders did therefore was to make
the president virtually immune from legal action but at the same time
removable in extreme cases when the only way of protecting the public
is by removing him. The method set up was the impeachment process'
This has been transplanted into the Philippine Constitution.
The object of the process is not to punish but only to remove
a person from office. As justice Storey put it in his commentary on
the Constitution, impeachment is "a proceeding, purely of a political
nature, is not so much designed to punish an offender as to secure the
state against gross political misdemeanors. It touches neither his persttn
nor his property, but simply divests him of his political capacity'" Pul
differently, removal and disqualification are the only punishments that
can be imposed upon conviction on impeachment. Criminal and civil
liability can follow after the officer has been removed by impeachmcnt.
Prosecution after impeachment does not constitute prohibited doublc
jeopardy.
Up until the year 2000 when President Joseph Estrada was int-
peached, Philippine experience showed impeachment to be an inell'cc"
tive means for removing an unwanted President. In the three earlicr
instances where there was a move to impeach a Philippine Prcsitlt:ttl,
first in 1949 against President Quirino and again in 1963 against Prc:si
dent Macapagal and in 1986 against President Marcos, thc nrovc ttcvt't
reached the initiation stage because of failure to mustcr thc rcqttirctl
number of votes in the legislature. But the 1987 Constitutiort rcitl'lirtttctl
thc nation's laith in thc irnpcachmcnt proccss. At thc tilltc rll'ils tllrrlt
ART. XI ACCOUNTABILITY OF PUBLIC OFFICERS
- I 15 I
ing, it had already been seen that the threat of impeachment was enough
of a motivation for President Richard Nixon to relinquish his office
voluntarily.
2. Officers subject to impeachment.
Section 2 enumerates the officers who are removable only by im-
peachment: the President, the Vice-President, the Members of the Su-
preme court, the chairmen and members of the commission on civil
service, the Commission on Elections, and the commission on Audit,
and the ombudsman. The provision closes the list by saying: "All other
public officers and employees may be removed from office as provided
by law, but not by impeachment." In prohibiting the legislature from
increasing the number of impeachable officers, the intention was to pre-
vent the creation of a special class of statutorily protected officials.?
The right to be removed only by impeachment is the Constitu_
tion's strongest guarantee of security of tenure. The guarantee effec-
tively blocks the use of other legal ways of ousting an officer. Thus,
for instance, in In re Gonzales,s the suggestion that a Supreme Court
justice may be subjected to disbarment proceedings was dismissed by
the Court thus:
A public officer who under the Constitution is required to
be a Member of the Philippine Bar as a qualification for the office
held by him and who may be removed from office only by im-
peachment, cannot be charged with disbarment during the incum-
bency of such public officer. Further, such public officer, during
his incumbency, cannot be charged criminally before the Sandi-
ganbayan or any other court with any offense which carries with it
the penalty of removal from office, or any penalty service of which
would amount to removal from office.
But the Court made an important qualification:,
It is important to make clear that the Court is not here saying
that its Members or the other constitutional officers we referred to
above are entitled to immunity from liability for possibly criminal
?n RECORD
356-357.
8I60 S('RA 77 I, 774 ( leEtr).
ekl. at776-777.lntcrestingly,
howcver, thc ('ourt tlirl not concede the samc right tg u sp-
cial prrx.ct:rling lo tt ( irngrcsstturn wht'rr it uphckl lhc srrspcnsion of Rcprcscntltivc ('ritcrino plrc-
rlcsbythcsrrrulignrrhnynnI'urcrlcsvsrrrrligurrhrryrrn,(i.R.No.IIlllt{r4,Arrgrrslll, I(xrJ.
 THE I987 CONSTITUTION Sec.2 Sec. 2 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS I 153
tt52
OF THE REPUBLIC OF THE PHILIPPINES

acts or for alleged violation of the Canons of Judicial Ethics or life or orderly working of the government.r4 "Misdemeanors," a ground
other supposed misbehavior. What the Court is saying is that there for impeachment found in the American constitution, was deliberately
is a fundamcntal procedural requirement that must be observed omitted in the 1935 constitution. Delegate Manuel Roxas explained the
before such liability may be determined and enforced- A Mem- elimination by saying that "if we include misdemeanors which in the
ber of the Supreme Court must first be removed from office via meaning of the law are no more than faults or failures to observe minor
the constitutional route of impeachment under Sections 2 and 3 of ordinances, then high officials of the government could be needlessly
Article Xl of the 1987 Constitution. Should the tenure of the Su- molested."',
preme Court Justice be thus terminated by impeachment, he may
then be held to answer either criminally or administratively (by Roxas' interpretation of misdemeanors as a ground for impeach-
disbarment proceedings) for any wrong or misbehavior that may ment may indeed have drawn too broad a view of the concept. Never-
be proven against him in appropriate proceedings. theless, his and the Convention's rejection of the concept as explained
by Roxas definitively narrowed the grounds for impeachable offenses
should also be noted that resignation of an impeachable offi-
It in the 1935 Constitution.
cer does not place him beyond the reach of impeachment for offenses
committed during his tenure. This is because one of the two penaltics The 1973 Constitution, however, added "graft and comrption" as
another ground, and the 1987 Constitution added the broad concept of
which may be imposed by Congress includes "disqualification to hold
"betrayal of public trust." The phrase was intended to be a catch-all
any office under the Republic of the Philippines."'o Whence, it may bc
phrase to cover any violation of the oath of office. Commissioner de
inierred that when a person has committed an offense warranting im-
peachment it may be to the public interest that such person be forever los Reyes, who had been responsible for the insertion of the phrase,
said that it referred to all acts, even if not punishable by statute as pe-
tanned from holding Public office.
nal offenses, which would render the officer unfit to continue in office.
3. Grounds for imPeachment. He enumerated "betrayal of public interest, inexcusable negligence of
duty, tyrannical abuse of power, breach of official duty by malfeasance
The grounds for impeachment in the United States Constittttiott
or misfeasance, cronyism, favoritism, etc. to the prejudice of public
31e "Treason, Bribery, or other high Crimes and Misdemeanors."" interest and which tend to bring the office into disrepute.,, To which
The i935 Constitution, on the other hand, enumerated the followirrtrl Romulo added "obstruction of justice."'o But "profanity, obscenity, ha-
..culpable violation of the Constitution, treason, bribcry, .;t
srounds: bitual drunkenness while performing official duty" were not meant to
Ither high crimes."12 Treason and bribery must be understood accgrtlittg be included.''
to their meaning in the Revised Penal Code. Culpable violation ol'llr
Constitution, a ground not found in the American constitution, mttsl lr With these 1973 and 1987 additional grounds for impeachmenr,
understood to mean willful and intentional violation of thc Coltsliltt has the process been trivialized? The way the full provision is worded is
tion ancl not violations committed unintentionally or involuntarily
ot ttt significant. It enumerates the grounds for impeachment as ..culpable vi-
judgment "
.tt Higlr crintr't"
cood faith or through an honest mistake of olation of the constitution, treason, bribery, graft and comtption, other
iefer to those offenses which, like treason and bribcry, arc ilttlit'lttlrlc high crimes, or betrayal of public trust." The word "other,'is significant.
.f1enses and are of such enormous gravity that they strikc at lltc vety Under the ejusdem generis rule, when the law makes an enumeration
of specific objects and follows it with "other" unspecified objects, those
1-
roArticle XI, Section 3(7).
raRcyrort ol thc Spccial Committoc on thc Impeachment of president euirino, fu/.
rrArticle II, Scction 4, U.S. Constitution.
r2Article lX, Scction I (1935). 't('u,rolRuo, 'l-ttt l''ntwNt; ot ttn: cousunrnoN ()r, 'nn: ptttt.rpattns 99. (iru! in lV C()N,
( il{l rSSlONAl. Rli( \ )Rl), I l( )tlSlt ( )lr Rl:l'ttliStiN't'NI'tVliS
r,l Atut;t;o, 'l'ttt; 1,'n,tutur; ttt Lttt: (ovsttttrtoN ()t" tut: I'ttturt'rtl..s.5t)O ( l() tr)): l(oltrrtl ttl lhts I 553.
r"ll lil('( )Rl) .t7.).
srr.e irrl ('plrrtrilcc (,r llrc lnrl)clclttttcrtl ol ltt'csitlcnt Quilirn, lV ('ON(;l{lislil( )NAl,l{l'('( ll(lI ttltl iil )lllt
(
I l{,t rslr )lr RIll'Rl:liliN Al lVI:li I ss t ( I()'lt))
l
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
unspecified objects must be of the same nature as those specified. Thus,
for "graft and comrption" and "betrayal of public trust" to be grounds
for impeachment, their concrete manner of commission must be of the
Same severity aS "treason" and "bribery," OffenSes that strike at the very
heart of the life of the nation.
Src.3. (1) Tnn Housr or Rnpnnssr'lrArlvEs sHALL HAvE THE
EXCLUSIVE POWER TO INITIATE ALL CASES OF IMPEACIIMENT.
(2) Avnnlrmn coMPLAINT FoR IMPEAcHMENT MAY BE FILED
By ANy Mrunrn oF TIIE Housn or RnpnnssNTATIvES oR BY ANY
A oF ENDoRsEMENT BY ANY
CITIZEN uPoN REsoLUTToN
TITEREoT', wHrcH sHALL BE INCLUDED IN THE Ononn or
Bustnnss
wITI{IN TEN sESsIoN DAYSr AND REFERRED To rHE PRoPER CoilaMrrrnE
wrrHIN TITREE sEssIoN DAYS TIrEREArrnn. Tnr Comvnttrn, lrrrn
HEARTNG, AND BY A MAJoRITY vorE oF ALL ITS Mnunrns, snlr-l
suBMIT rrs REFoRT To rHE Housr WITHIN slxrY SESSION DAYS FRoM
SUCH REFERRAL' TOGETIIER WITTI THE CORRESPONDING RESOLUTION.
Tnr nrsor,urroN SHALL BE cALENDARED FoR coNSIDERATIoN BY THE
Houss wITI{rN TEN sEssIoN DAYS FRoM REcEIPT TITEREoF.
(3) A vorB oF Ar LEAsr oNE'rrIrRD oF ALL rrrr MnMssRs
otr'THE Housp sHALL BE NEcESSARY EITITER To AFFIRM A FAvoRABLE
REsoLUTIoN WITH TIIE Anrrcr,ns on IlrrnlcnMENT oF
Couurrrnn, oR ovERRIDE ITs cONTRARY REsoLUTroN. Tnn vorn
rlcn MnMsnn sHALL BE REcoRDED.
(4) Irq csB THE VERIFIED coMPLAINT oR RESoLUTIoN oF
rnp MnurBns
IMpEACITMENT Is FILED BY AT LEAST oNE-TITIRD oF ALL
oF THE Housr, THE SAME SHALL coNsTITUTE THE Anrrcr,rs or
ftvrpn^Lcnunnr, AND TRIAL By TIIE snxlrn sIIALL FORTIIWITII
PROCEED.
(5) No rMpslcHMENT PRocEEDINGS sHALL
AGAINST TIIE SAME OFFICIAL MORE THAN ONCE WITHIN A PERIOD
ONE YEAR.
(6) Tnr SsNlrn sITALL HAvE THE soLE I''owER To rRY
AND DECIDE ALL CASES OF IMPEACHMTNT. WHNU SITTING FOR THAT
puRposE, rnn SrNATons SHALL BE oN OATH oR AFFIRMATIon. Wnnn
rnn PnnsrnnxroF THE Pmllpprxns Is oN TRIAL' Tnn CuIrr Jusrlcr:
oF THE SupnrvIr Counr sHALL PREsIDET BUT sHALL nor volr' Ntl
PEN,SON SHALI, AN CONVICTT]D WTTHOUT THE CONCURITEN(-'I) OI..
'tHrr{r)s or At,r, r'rl: Ml;rrlnl:ns <irrsl: Snll'rn.
Sec.3 Sec.3 ART.XI -ACCOUNTABILITYOFPUBLICOFFICERS ll55
(7) JunclreNr rru cASES oF TMpEACHMENT sHALL Nor EXTEND
FURTHER TIIAN REMOVAL FROM OFFICE AND DISQUALIFICATION TO
HoLD ANy OFFICE UNDER THE Rnpunr,rc oF THE ptulnlnns, nut
THE PARTY CONVICTED SHALL NEVERTHELESS BE LIABLE AND SUBJECT
TO PROSECUTTON, TRTAL, AND PUNISHMENT ACCORDING TO LAW.
(8) Tnr CoNcnnss sHALL pRoMULGATE rrs RTJLEs oN
IMPEACHMENT TO EFFECTIVELY CARRY OUT THE PURPOSE OF THIS
SECTION.
1. Nature and initiation of impeachment.
MrMsnn The impeachment proceedings begin with a complaint filed with
the House of Representatives either by a member of the House or by
any citizen supported by a resolution of endorsement by any member.
The complaint is thereafter referred to the proper committee which pre-
pares a report for the House. The report of the committee can either be
favorable or unfavorable to the complaint. But whichever may be the
tenor of the Committee report, the House by a vote of one-third's of all
its members decides whether the complaint should be given due course.
Referral to the Committee, however, and decision by the House need
not be resorted to if the complaint is filed by at least one-third of all
the members of the House. Either a favorable recommendation of one
THE third-of all the members of the House or a complaint filed by one-third
or of all the members of the House sends the complaint to the senate for
trial. However, no impeachment proceeding may be initiated against
the same individual more than once within a period of one year. This is
intended to prevent impeachment from becoming an instrument of mere
harassment.re
The impeachment President Estrada reached the trial stage through
the new provision allowing impeachment to proceed on the endorse-
BE INTTIATEI)
ment of one third of the House.. " In case the verified complaint or reso-
OF'
lution of impeachment is filed by at least one-third of ail the Members
of the House, the same shall constitute the Articles of Impeachment,
and trial by the senate shallforthwith proceed." But it came about in a
controversial manner. when the impeachment complaint was first filed
rHThis is a sharp
drop front thc intpossihlc two-thinls rcquirement ofthc 1935 C6rrstilulir4
1'W()' :tntlitnirrcrcirst.orrlhcouc.liltlrrr(luit.('ntentol'tlrc 197.1(ilrrslitution.llisohviorrslyilcotnl)r()
tttisc. ll Rli('( )Rl) tr l./ I 174
r''lr/ rtl.)ll(l
1156 THE 1987 CONSTITUTION Sec. 3
OF THE REPUBLIC OF THE PHILIPPINES
with the House of Representatives, it had the support of less than one
third of the members of the House. Eventually, however, more Rep-
resentatives added their endorsement until the one-third requirement
was surpassed. But the House Rules said that the one third support re-
quired uy ttre constitution must be satisfied at the time of filing. . .
iatching on to this Rule, the defenders of Estrada argued that the Rule
reflecteJ what the Constitution meant. But others saw the Rule as a de-
parture from the constitution. In the end, the House committee voted to
send the complaint to the plenary House body. when it finally reached
the plenary, Speaker Manuel Villar, instead of asking for a vote of the
House, simply announced that he was sending the Articles of Impeach-
ment to the senate.
No attempt was made to override the decision of the Speaker. It
was obvious that the House was eager to pass on the problem to the
and in
Senate. Thus, there was cheering and rejoicing both on the floor
the gallery. There followed a long period of recess. Objections to thc
journey of the Articles of Impeachment to the Senate were withdrawn
and the impeachment managers were chosen without debate'
There followed the politically logical next step. The minority
had won the impeachment phase. It was time for the majority to do
what only a majority can do. Without fanfare, the majority declared thc
speakership vacant and forthwith elected a new Speaker'
2. Tbial and Penalties.
The senate tries the impeachment case and can convict only by tt
vote of two-thirds of all its members. The penalty which the Senate muy
impose shall be limited to removal from office'o and disqualification lrt
troiO any office under the Republic of the Philippines. This penalty
in
htll
beyondihe reach of the President's power of executive clemency,'r
dols not place the officer beyond liability to criminal prosecution lirl
the same offenses.r, when criminally prosecuted, therefore, for the ol
fense or offenses which warranted his conviction on impeachment.llrr
officer cannot plead the defense of double jeopardy'
2olhe words "of honor, trust, or profit" found in previous Constitutions werc tloctttetl rll
perfluous. /d. at 306.
2rA(icle Vll, Scction lt).
rzArticlc XI, Scction .l(7)
Sec. 3 ART.XI-ACCOUNTABILITYOFPUBLICOFFICERS I15?
3. The Estrada impeachment trial.
Impeachment has two phases: the House of Representatives phase
and the Senate phase. The responsibility of the House is to ,,initiate',
impeachment. The responsibility of the Senate is to try the case. For the
purpose of the proper running of the two phases of the impeachment
process the Constitution says: "The Congress shall promulgate rules on
impeachment to effectively carry out the pu{pose of this section.,' ,,Ini-
tiation" of impeachment is governed by the rules of the House; ..trial',
is governed by the rules of the Senate for the purpose.
An important thing about an impeachment trial is that it is not
any ordinary trial. What is sought to be discovered is not just guilt or
innocence in the criminal sense but a public official's worthiness or
unworthiness of the solemn trust that has been conferred upon him.
"Public office is a public trust," so the Constitution proclaims. ,,public
officers and employees must at all times be accountable to the people,
serve them with utmost responsibility, integrity,loyalty and efficiency,
act with patriotism and justice, and lead modest lives."
A public officer is accountable to the people. Impeachment is the
only formal proceeding through which a President can be called to ac-
count. In an impeachment proceeding, the President must be willing to
tell all to the people who elected him. The crucial point in the Estrada
impeachment trial was reached when the prosecution tried to present
evidence contained in a sealed envelope. The defense objected to the
opening of the envelope on the ground of immateriality and irrelevance.
The presiding officer, Chief Justice Hilario Davide, Jr. allowed the Sen-
ate to decide the issue. When the Senate voted 11-10 against the open-
ing of the envelope, the prosecution walked out of the trial.
Thus ended the Estrada impeachment trial. Thereafter followed
massive public demonstrations demanding Estrada's resignation until
he finally left Malacafrang Palace.
4. Only one impeachment in a year.
The Constitution prohibits the initiation of more than one ..im-
peachment proceeding" within one year. But when is an impeachment
proceeding deemed to be initiated? The answer was given in the deci-
sion on thc attempted impcachment of chief Justice Hilario Davide.2l
Ilirtttr'isto.ct trl.v lkrrrscS;x.rrhcr.ct trl,(i.R.No. l({)26l,Novt_.mhcrl0,2OO3.

Sec.3
1158 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The "impeachment proceeding" is not initiated when the complaint is
transmitted to the Senate for trial because that is the end of the House
proceeding and the beginning of another proceeding, namely the trial.
Neither is the "impeachment proceeding" initiated when the House de-
liberates on the resolution passed on to it by the Committee, because
something prior to that has already been done. The action of the House
is already a further step in the proceeding, not its initiation or begin-
ning. Rather, the proceeding is initiated or begins, when a verified com-
plaint is filed and referred to the Committee on Justice for action. This
is the initiating step which triggers the series of steps that follow.
5. Prosecution after impeachment.
The Constitution says: "But the party convicted shall nevertheless
be liable and subject to prosecution, trial, and punishment according
to law.,,The impeachment Estrada did not end in conviction, Could he
nevertheless be prosecuted when no longer a sitting President? Estrada
contended that since impeachment was not terminated, he still enjoyed
the immunity of a President. This matter was taken up in Estrada
Desierto.24 The Court concluded:
We reject his argument that he cannot be prosecuted for the
reason that he must first be convicted in the impeachment proceed-
ings. The impeachment trial of petitioner Estrada was aborted by
the walkout of the prosecutors and by the events that led to his
loss of the presidency' Indeed, on February 7,2001, the Senate
passed Senate Resolution No. 83 "Recognizing that the Impeach-
ment Court is Functus Officio." Since the Impeachment Court is
now functus fficio, it is untenable for petitioner to demand that
he should first be impeached and then convicted before he can be
prosecuted. The plea if granted, would put a perpetual bar against
his prosecution. Such a submission has nothing to commend itself
for it will place him in a befter situation than a non-sitting Presi-
dent who has not been subjected to impeachment proceedings and
yet can be the object of a criminal prosecution' To be sure, thc
debates in the constitutional Commission make it clear that whcn
impeachment proceedings have become moot due to the resigna-
tion of the President, the proper criminal and civil cases may al-
ready be filed against him, viz.:
r'r(i.R. Nos- l467lO-15, Mtrch 2,2(X)l
Sec.4 AR'I"XI ACCOUNTABILITYOFPUBLICOFFICERS II59
"xxx xxx xxx
Mr.Aquino. On antllhcr poinl, il'itlt itnpcachnlont pro-
ceeding has been filed against thc Prcsident, firr cxamplc'
and the President resigns beforejudgment ofconviction has
been rendered by the impeachment court or by the body,
how does it affect the impeachment proceeding? Will it be
necessarily droPPed?
Mr. Romulo.If we decide the purpose of impeachment
remove one from office, then his resignation would ren-
to
der the case moot and academic. However, as the provision
says, the criminal and civil aspects of it may continue in the
ordinary courts'"
This is in accord with our ruling in In Re Saturnino Ber-
mudez's that "incumbent Presidents are immune from suit or from
being brought to court during the period of their incumbency and
tenure" but not beyond. considering the peculiar circumstance that
the impeachment process against the petitioner has been aborted
and thereafter he lost the presidency, petitioner Estrada cannot
demand as a condition sine qua non to his criminal prosecution
v.
before the Ombudsman that he be convicted in the impeachment
proceedings.
Src. 4. TnB pnnsrNr ANTI-cRAFT couRT KNowN AS THE
SANnrcaNs.{vlN sHALL cONTINUE To FUNCTIoN AND EXERCISE ITS
JURISDICTION AS NOW OR IIEREA-FTER MAY BE PROVIDED BY LAW.
1. TheSandiganbayan.
Article XIII, Section 5 0f the 1973 Constitution commanded the
Batasang Pambansa to create a special court to be known as Sandigan-
bayan which shall have jurisdiction over criminal and civil cases in-
volving graft and corrupt practices. The Batasang Pambansa, however,
was anticipated by President Marcos in P.D. No. 1606 which created
the sandiganbayan. In upholding the validity of the various provisions
of P.D. No. 1606, the Supreme Court observed in Nufiez v. Sandigan-
bayan26 that the provision on the Sandiganbayan was a constitutional
recognition of the continuing need to combat graft and comrption al-
ready recognized in earlier anti-graft laws.
Il45 S('RA l(il1( l('tt())
r"lllS('RA4ll,,l,l.)(.lrl|rrruryi0, l9tl2).'l'hcspccilicissuesraisctlinthiscascaretaken
up ttttrlt'r lhc llill ol l{rpilrtr
 Secs.5-6
ART. XI - ACCOUNTABILITY OF PUI]I,I(' OITFICERS 116I
1160 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES

of the tablish an independent Office of the Ombudsman is to rcmain meaning-

Section 4 of this article feaffirms the continuing existence
the authority to fix the juris- ful and significant. The Civil Scrvice Commission has no power over
Sandiganbayan. Moreover, Congress has
dictioi of the Sandiganbayan.zT Generally, the jurisdiction of the Sandi- this.'zn

ganbayan is over pouti" officers. However, "In case private individuals SBc. 7. Tnr nxrsrlNc Taxonn,lvnx stlAl,t, HERFI'AFTER BE

ire chlged as co-principals, accomplices or accessories with thepublic KNowN AS THE Ornrcn oF THE Spnclll Prosr:crtrtx. I'r sHll-l
officers or employees, ihey shall be tried jointly with said
public of- CONTINUE TO FUNCTION AND EXERCISE ITS POWERS AS NOW OR

ficers and (Section 4, P'D' No' 1606) ''' Private persons HEREATTER MAY BE PROVIDED BY LAW' EXCEPT THOSE CONFERRED ON
"tttploy"".
may be ctrargeo logether with public officers to avoid repeated and un- TrrE OFFICE oF rnri OrunuostlAN CREATED UNDER THIS Co|qsururroN.

n"."rr*y prlsentaiion of witnesses and exhibits against conspirators in

different venues, especially if the issues involved arc the same'28 1. The Tanodbayan (Ombudsman) and the Special Pros'
ecutor.
Snc. 5. TnBnn IS ITEREBY cREATED THE INDEPENDENT oFFICE
Under P.D. No. 1487, as amended by P.D. No. 1607, the Thnod-
oF THE Ounuosl'tltt, OlrnunsulN To BE KNowN
coMPosED oF THE
Dnpurv AND AT LEAsr oNE Dnpurv bayan was both prosecutor and ombudsman. The separation of the two
ls TmoonlvlNr oNE ovER-lr,r-
lNo Mnnaxlo' A snplrurE DEPUTY FoR functions necessitated some changes in the function of the then existing
Blcn non LuzoN, VtslYls,
TITE MILITARY ESTABLISIIMENT MAY LIKEWISE BE
APPOINTED' Tanodbayan. The intention was that the Tanodbayan would be essen-
tially a prosecutory arm whereas the Ombudsman would be the champi-
SBc.6.TrrnoFr'ICIALsANDEMPLOYEESoFTHEOTTTcnoFTIIE
on of the citizen and would not be bound by legal technicalities. Since,
OununsulN, orHER THAN rnr Dnpurrnst sITALL BE APPoTNTED BY
Llw' however, the name Tanodbayan would be retained by the Ombudsman,
rxn OlrsuosN{AN AccoRDING To rHE Crvrr- Snnvrcn
a name had to be found for the prosecutory office. The unimaginative
name Special Prosecutor was chosen.30
1. IndePendentbodY.
The harmonization would then be thus: the court would be San-
Under the Constitution, the office of the ombudsman is an intlc'
diganbayan, the "people's champion" function, or the strictly Ombuds-
pendent body. As a guarantee of this independence' the Q1ludsnrittt
office ol'tlrt' man function, of the Tanodbayan would belong to the Ombudsman who
has the power to appoint all officials and employees of the
would also be called Tanodbayan and would not have prosecutorial
ombudsman,excepthisdeputies.Thispowernecessarilyincludcslltc
function; the prosecutorial function would belong to one to be called
powerofsetting,prescribingandadministeringthestandardslbrllrc
Special Prosecutor.3' For this reason, the critics of the new Ombudsman
officials and personnel of the Office.
said that it would be a "toothless tiger.".'But the reason for not giving
Tofurtherensureitsindependence,theombudsmanl"'u.fptlll the Ombudsman prosecutorial function was that such function would be
ol'tlrt;
vested with the power of administrative control and supervision contrary to the intention that the Ombudsman rely on good will.'3
lirr tttl
office. This includes the authority to organize such directorates
as may be necessary fbr the cl'l'cctivc Where did this leave the Special Prosecutor? The answer given
ministration and allied services
illttl was that the Special Prosecutor would continue to exercise the powers
discharge of the functions of the office, as well as to proscrihc
Nece.ssarily. it ills* the former Tanodbayan had except those which were passed on to the
upp.ouJ its position structure and staffing pattern.
in"tuAer the authority to determine and establish the qualilicalions'
rltt Ombudsman or new Tanodbayan.In Zaldivar v. Sandiganbayan, the
antl rrllictl
ties, functions and responsibilities of the various directorittcs
intcttl lrt ctr
services of the Office. This must be so if the constitutionitl "'Onrhudsman v. CSC, G.R. No. 162215, July 30,2007.
"'ll l{li('( )RI) :rl r(t7'l()ll. I I 1.
'r/r/. irt l1.l,\t't' rrl,ro ?61(, 2Kl. 2u5.
2'SeeBalmadritlv.sandiganhayan'(iR No'5lt'127'M:rrth22'l()()l;A/rtttottv Stttt'ltpntt lt .l(rt{ l(}(), l7().
"/r/.
bayan,G.R. No. I16O33' l'tbrulry 26,199^7,26t\ l'i('RA 747' 751t
"h|. il ) Ill .t.ll .

t^hl.
 THE 1987 CONSTITUTION Sec.8 Secs.9-12 ART. XI _ ACCOUNTABILITY OF PUBLIC OFFICERS
OF THE REPUBLIC OF THE PHILIPPINES

Court said that since the power to investigate had been given by Section Soc. 9. Tnn OnrnursMAN AND nIs DBputrrs sHALL BE
13(1) to the Ombudsman, the Special Prosecutor could neither investi- AppoINTED By rHE PnnsronNr FRoM A LIST oF AT LEAST slx
gate nor prosecute unless authorized by the Ombudsman:* NoMINEEs IREIARED By rHE Juorcr,q.L ,q.No Bln Couucrr-, AND FRoM
A LIsr oF THREE NoMINEES FoR EvERy vAcANcY THEREAFTBn. Sucn
Now then, inasmuch as the aforementioned duty is given to APPOINTMENTS SHALL REQUIRE NO CONFIRMATTON. AT,T, VACANCIES
the Ombudsman, the incumbent Tanodbayan (called Special Pros- SHALL BE FILLED WITHIN THREE MONTHS AF"TER THEY OCCUR.
ecutor under the 1987 Constitution and who is supposed to retain
powers and duties NOT GIVEN to the Ombudsman) is clearly 10. TnB OlrnunsMAN AND nIs Drpurrrs SHALL HAvE
Snc.
without authority to conduct preliminary investigations and to di- THE RANK or CnltrulN lrun MBUBERs, RESPECTIvELYT oF THE
rect the filing of criminal cases with the Sandiganbayan, except CoNsrrrurrollll- ColrurssroNs, AND TIrEy sHALL RECEIvE THE sAME

upon the orders of the Ombudsman. This right to do so was lost SALARY, WHICH SHALL NOT BE DECREASED DURING THEIR TERM OF
effective February 2, 1981 . From that time, he has been divested OTFICE.
of such authority. Src. 11. Tun OlrnuosMAN AND HIS DBpurrBs sHALL sERVE FoR
A TERM oF sEvEN yEARS wITHour REAppoINTuBur. Tnnv sHALL Nor
As can be seen, the Court did not distinguish between preliminary
BE QUALIFIED TO RUN FOR ANY OFFICE IN TIIE ELECTION IMMEDIATELY
investigation and investigation for purposes of the functions special to
SUCCEEDING TIIEIR CESSATION FROM OFFICE.
the Ombudsman. Acop v. Ombudsmanrs would later reaffirm that there
is no proof that the power of investigation given to the Ombudsman by
the Constitution is distinct from the power of preliminary investigation.
1. Qualificationsrappointmentrterm.
l
Thus in the mind of the Supreme Court there is this strange phenome- The Ombudsman and his deputies are appointed by the President
non: the Special Prosecutor created by the Constitution has no authority from a list of nominees presented by the Judicial and Bar Council'u and
to prosecute unless authorized by the Ombudsman who himself under they have the rank of Chairman and Members respectively of the Con-
the Constitution was not meant to be a prosecutor! Now, however, since stitutional Commissions.3'They serve for a term of seven yeats.38
Section 13(8) says that the Ombudsman shall also exercise "such other
The qualifications of the Ombudsman and his deputies are set
powers or perform such functions or duties as may be provided by law,"
down in Section 8. Section 8 also imposes on the Ombudsman and his
the OmbudsmanAct of 1989, R.A. No. 677O,has also given prosecuto-
deputies the disqualifications and prohibitions imposed on Chairmen
rial functions to the Ombudsman.
and Members of Constitutional Commissions found in Article IX, A,
Section Z.The Constitution does not prescribe the qualifications for the
Src. 8. THr OiusuDsMAN AND nrs Drpurres sHALL BE
Special Prosecutor.
NATURAL-BORN cITIzENs oF THE PnIlrnxns, AND AT THE TIME oF
TIIEIR APPOINTMENT, AT LEAST FOR,TY YEARS OLD, OF RECOGNIZED
pRoBITy AND INDEeENDENCE, AND MEMBERS or rIrE Pnrr,rrrrnr Bln, Src. 12. Tna OunuusMAN AnD tus Dlpurrnsr AS PRoTECToRS

AND MUST NOT HAVE BEEN CANDIDATES FOR ANY ELECTIVE OFFICE IN OF THE PEOPLE, SHALL ACT PROMPTLY ON COMPLAINTS FILED IN ANY

THE TMMEDIATELy pRECEDING ELEcrIoN. THr OlrsunsMAN MUST FORM OR MANNER AGAINST PUBLIC OFTICIALS OR EMPLOYEES OF THE

HAVE FOR TEN YEARS OR MORE BEEN A JUDGE OR ENGAGED IN THE AGENCY oR TNSTRUMENTALITY
GovnnxlrnNt, oR ANy suBDIvISIoN,
pRACTICE oF LAw rN rrtn Pnrr-rpprxns. THEREOF, INCLUDING GOVERNMENT-OWNED OR CONTROLLED
CORPORATIONS, AND SHALL, IN APPROPRIATE CASES' NOTIFY THE
Dunrnc rHEIR TENURE, THEv sHALL BE SUBJECT To rHFr, sAMr.l
COMPLAINANTS OF THE ACTION TAKEN AND THE RESULT THEREOF.
DISeUALIFICATIbNS AND rRoHIBITIoNS As pRovtDED Ron lN Sr,:t:u<ln
2 or Anrrcr-r IX-A or rnrs ConsrrrurroN.

().
r4160 scRA 843, ti46 (tglilt). 'nScclion
]1C.R. No. 120422. Scptcnrht:r 27. l{)()5 'fSt'ctiorr lo
'rSt't tiott I I
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
1. Procedure.
There is no constitutionally prescribed form for complaints before
the Ombudsman can act. The present Ombudsman, as protector of the
people, is mandated to act promptly on complaints filed in any form or
manner against public officials or employees of the government or any
subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations, and to notify the complainants of the
action taken and the result thereof.'n
Src.13. Tnn Onnrcn oF THE OununsulN sHALL HAvE rHE
FOLLOWING POWERS, FUNCTIONS, AI\'D DUTIES:
(1) Invrsrrcrrr oN rrs owN, oR oN coMpLAINT By ANy
PERSON, ANY ACT OR OMISSION OF ANY PUBLIC OFFICIAL, EMPLOYEE,
OFFICE OR AGENCY, WHEN SUCH ACT OR OMISSION APPEAR,S TO BE
ILLEGAL, UNJUST, IMPROPER, OR INEFFICIENT.
(2)
Dmncr, upoN coMpLAINT oR AT ITs owN INsrANcE,
ANY PUBLIC OFFICIAL OR EMPLOYEE OF THE GOVERNMENT, OR ANY
SUBDIVISION, AGENCY OR INSTRUMENTALITY TIIEREOF, AS WELL AS
OF ANY GOVERNMENT-OWNED OR CONTROLLED CORPORATION WITH
ORIGINAL CHARTER, TO PERFORM AND EXPEDITE ANY ACT OR DUTY
REQIIIR.ED BY LAW, OR TO STOP, PREVENT, AND CORRECT ANY ABUSE
OR IMPROPRIETY IN TIIE PER}'ORMANCE OF DUTIES.
(3) Drnrcr rHE oFFrcER coNCERNED To rAKE AppRopRIATE
ACTION AGAINST A PUBLIC OFFICIAL OR EMPLOYEE AT FAULT, ANI)
RECOMMEND HIS REMOVAL, SUSPENSION, DEMOTION, FINE, CENSURE,
oR PROSECUTION, AND ENSURE COMPLTANCE THEREWITH.
(4) Drnrcr rHE oFFrcER coNCERNED, rN ANy AppRopRIATE
CASE, AND SUBJECT TO SUCH LIMITATIONS AS MAY BE PROVIDED BY LAW,
TO FURNISH IT WITH COPIES OF DOCUMENTS RELATING TO CONTRACTS
OR TRANSACTIONS ENTERED INTO BY HIS OFFICE INVOLVING THE
DISBURSEMENT OR USE OF PUBLIC FUNDS OR PROPERTIES, AND REPON,T
ANy TRREGULARITy ro tru Couurssron on Auorr
ACTION.
(5) Rneupsr.lNv covERNMENT AGENcy
INFORMATION NECESSARY IN THE DISCHARGE OF ITS RESPONSIRII,I'TI1:ST
AND TO DXAMINE,IF NECESSARY, PERTINENT RECORDS AND DO(]TIMI.:N'I'S.
")l ly v. Suntlig:utb:ryln, ( i.R. Nos. lO5()()5 /0, M:rrt h 2O,'.1(X) l
Sec. l3 Secs.13-14 ART.XI-ACCOUNTABILITYOFPUBLICOFFICERS
(6) Pusr,rcrzr MArrERs covERED By rrs rNvESTrcATroN
WHEN CIRCUMSTANCES SO WARRANT AND WITH DUE PRUDENCE.
(7) Dprrnurxr rHE cAUsF^s oF rNEFFrcrENCy, RED TArE,
MIsMANAGEMENT, FRAUD, AND coRRUprIoN IN tnn GovnnnunNt,
AND MAKE RECOMMENDATIONS FOR TIIEIR ELIMINATION AND THE
OBSERVANCE OF IIIGII STANDARDS OF ETIIICS AND EFFICIENCY.
(8) Pnomur,c.rrr lrs RULES oF pRocEDURE AND ExERCTsE
SUCH OTHER, POWERS OR PERFORM SUCH FUNCTIONS OR DUTIES AS MAY
BE PROVIDED BY LAW.
Src. 14. Tnn OrTrcn oF TrrE OvrnuosulN sHALL ENJoy
FrscAL AUToNovrv. Irs AppRovED ANNUAL AppRopRrATroNS sHALL BE
AUTOMATICALLY AND REGULARLY RELEASED.
1. Powers and responsibilities of Ombudsman and Depu-
ties.
Sections 12 and 13 spell out the duties and responsibilities of the
Ombudsman and his deputies. They function essentially as a complaints
and action bureau. As Commissioner Colayco explained, "The Com-
mittee is proposing the creation of an office which can act in a quick,
inexpensive and effective manner on complaints against administrative
inaction, abuse and arbitrariness of government officials and employees
in dealing with the poople."ao He added:ol
One of the principal functions of the officer contemplated
in this section is the capability to attend and act immediately on
complaints not leading to prosecution but to correction or imple-
mentation of the request, either phoned in, or simply made orally
or even in writing. What we wish to cure is the despair of the com-
mon people with our government officials. We have entrenched
the administration with public officials who are beyond the reach
of common people. It is a very common and sad spectacle to see
people going from one government office to another, trying to se-
FoR AppRopRIATIt
cure redress for their common complaints of inaction, abuse arbi-
trariness on the part ofpublic officials. In other places like Nassau
FoR ASSISTANCU ANt) County, the United States, Singapore and Japan, people are free to
call in, to use the telephone simply. For instance, when going to
an office, they are made trl return day after day, either becausc the
{'ll RIi('()Rl) 2(r5. Srr rrlso olht'r sl)ons(rrshil) rr:rrrrrlks, irl. rrl 2(r5 2(rtl
ar/r/. trt 1(r() 1'/O.
1166 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
official concerned did not come to work or simply they are told, "I
am very busy. Will you please come back this afternoon?" These
are common complaints of our people.
Thus, the persons envisioned for the office are people who by rea-
son of their prestige are able to cut through red tape in order to obtain
immediate government action. They can commence investigation with-
out having to wait for a formal complaint.4'zMoreover, in order to ensure
the independence of the office it is given fiscal autonomy by Section 14.
Although as empowered by the Constitution the action the Om-
budsman can take is short of prosecution, the Constitution itself has
authorized Congress to expand the power of the Ombudsman. This
Congress did by enacting the Ombudsman Act of 1989 which, among
others, authorized the Ombudsman to conduct preliminary investiga-
tions and to prosecute.43
The power of the Ombudsman to investigate is very broad es-
pecially as it has been given by R.A. No. 6670 and expanded by thc
Ombudsman Act of 1989. He can investigate "any illegal act or omis-
sion of any public official" even if the offense committed by the official
is not related to the performance of his functions.a Even the claim ol'
confidentiality will not prevent the Ombudsman from demanding thc:
production of documents needed for the investigation.ln Almontc v.
Vasquez,a'the Court said that where the claim of confidentiality docs
not rest on the need to protect military, diplomatic or other national sc
curity secrets but on general public interest in preserving confidentiul
ity, the courts have declined to find in the Constitution an absolute privi
lege even for the President. Moreover, even in cases where matters tll'c
really confidential, inspection can be done in caeara. Howevcr, tttttlct
the Bank Secrecy Law, before an in camera inspection may be allowcrl.
there must be a pending case before a court of competent jurisdictiorr
Further, the account must be clearly identified, the inspection lirrrilcrl
to the subject matter of the pending case before the court of conrpclcttl
jurisdiction. The bank personnel and the account holder ntusl bc rtoli
fied to be present during the inspection, and such inspection lttuy covrt
a2Rarov.Sandiganbayan,G.R.No. 10843I,July14.2000:Uyv.Santlig;rrthrtyltt,(il{
105965-70. March 20, 200 L
orAcop v. Ot'tice ol'the ()trtbtldstttan.24tl S('RA 5(r(r ( 1995).
ooDcloso v. Dontingo, l9l S('RA 545,550 ( l99O).
'r'(i.R. No. t)5i(r7, Miry 22. 1995.
Secs.13-14
Secs. 13-14 ART. XI - ACCOUNTABILIIY OF PUBLIC OFFICERS 1167
only the account identified in the pending case. If these conditions are
not fulfilled, the Ombudsman is bereft of authority.ou
Where the Ombudsman has the power to investigate a complaint,
he necessarily also has the authority to dismiss the complaint. In the
absence of grave abuse of discretion, the Court will not interfere with
the action of the Ombudsman. As the Court has said:a?
The Ombudsman may dismiss the complaint if he finds it
to be insufficient in form or substance, or if he otherwise finds no
ground to continue with the inquiry; or he may proceed with the
investigation of the complaint if, in his view, it is in due and proper
form. In fact, the Ombudsman has the power to dismiss a com-
plaint outright without going through a preliminary investigation.
We said that the prosecution of offenses committed by pub-
lic officers is vested in the Ombudsman. To insulate the Office
from outside pressure and improper influence, the Constitution as
well as R.A. No. 6770 has endowed it with a wide latitude of in-
vestigatory and prosecutory powers, virtually free from legislative,
executive or judicial intervention. We consistently refrained from
interfering with the exercise of the Ombudsman's powers, and re-
spected the initiative and independence inherent in the Ombuds-
man who, beholden to no one, acts as the champion of the people
and the preserver ofthe integrity ofpublic service.
Broad as the Ombudsman's power is, however, to look into every
form of malfeasance, mis-feasance or non-feasance, he has no authority
to substitute his judgment for the discretion of an agency which has the
expertise on a subject matter. Thus he may not reverse a decision of the
Board of Trustees of the Metropolitan Waterworks System awarding
a contract for the choice and laying out of water pipes.48 Nor may he
dismiss an erring official. All he can do is recommend dismissal to the
appropriate officer.on
While the Ombudsman's power to investigate is primary, it is not
exclusive and, under the Ombudsman Act of 1989, he may delegate it
adMarquez v. Ombudsman, G.R. No. 135882, June27,200l .
a7'l'hc Presidcntial Ad Hrrc Fact linding Committec v. f)esierto, C.R. No. 136192, August
t4. 2(X) I .
{N('onccrnt'rl()llicirrlsv.()nrlxrtlsrnun,(i.R.No. l(X)II3,Januury25, I995.
i'nlirpiurlor v. ( )rnburlsrruur. ( i.R. No. 1 29 24 , March 5, 2(X)2.
1 1
I168 THE 1987 CONSTITI]TION
OF THE REPUBLIC OF THE PHILIPPINES
to others who have power to investigate and take it back any time he
wants to.so
Because the power of the Ombudsman is broad and because the
Deputy Ombudsman acts under the direction of the Ombudsman, the
power of the Military Deputy to investigate members of the civilian
police has also been affirmed.''
The power to investigate also includes the power to impose pre-
ventive suspension. This is different from the suspension referred to in
Section 13(3). This latter is suspension as a penalty; preventive suspen-
sion is not a penalty."
In sum, over the years the scope of the powem of the Ombudsman
under Section l3 has been clarifled thus settling various disputed issues:
1.The Ombudsman can investigate only officers of govern-
ment owned corporations with original charter. PAL, even when still
owned by the government, did not have original charter."
2. The jurisdiction of the Ombudsman over disciplinary cases
involving public school teachers has been modified by Section 9 of R.A.
4670, otherwise known as the MagnaCartafor Public School Teachers,
which says that such cases must first go to a committee appointed by the
Secretary of Education.5n
It is erroneous, thus, to contend that R.A. No.4670 confers an ex-
clusive disciplinary authority on the DECS over public school teachers
and prescribes an exclusive procedure in administrative investigations
involving them. R.A. No. 4670 was approved on June 18, 1966. Olt
the other hand, the 1987 Constitution was ratified by the people in rt
plebiscite in 1987 while R.A. No. 6770 was enacted on November 17,
1989. It is basic that the 1987 Constitution should not be restrictcd in ils
meaning by a law of earlier enactment. The 1987 Constitution and R.A.
No.6770 were quite explicit in conferring authority on the Ombudstttittt
to act on complaints against all public officials and employces, witlt lltt:
sNatividad v.Felix,229 SCRA 680,688 (1994), which also traccs tlrc slilluloly lttslot y ol
the powers of the Ombudsman.
5rAcop v. Ombudsman, G.R. No. 12O422. September 27, 199-5.
52Buenaseda v. Flavier, 226 SCRA 645 ( I 993).
5'Khan, Jr. v. Ombudsman, C.R. No. 12529(r. Jttly 2(),2(X)6.
'oC)nrhutlsrnln u. 1;s1nn1l11fltr, (i. R. No. l6tt(r70, Aptil 1.1,2tX)7.
Secs. 13-14
Secs. 13-14 ART. XI ACCOUNTABILITY OF PUBLIC OFFICERS lt69
-
exception of officials who may be removed only by impeachment or
over members of Congress and the Judiciary.
3. The Ombudsman Act authorizes the Ombudsman to impose
penalties in administrative cases.s' Section 21 of R.A. No. 6770 vests in
the Ombudsman "disciplinary authority over all elective and appoint-
ive officials of the Government," except impeachable officers, mem-
bers of Congress, and the Judiciary. And under Section 25 of R.A. No.
6770, the Ombudsman may impose in administrative proceedings the
"penalty ranging from suspension without pay for one year to dismissal
with forfeiture of benefits or a fine ranging from five thousand pesos
(P5,000.00) to twice the amount malversed, illegally taken or lost, or
both at the discretion of the Ombudsman x x x." Clearly, under R.A.
No. 6770 the Ombudsman has the power to impose directly administra-
tive penalty on public officials or employees.'6
Note, however, that according to the Local Government Code,
elective officials may be dismissed only by the proper court. "Where
the disciplining authority is given only the power to suspend and not
the power to remove, it should not be permitted to manipulate the law
by usurping the power to remove.""
4. The Special Prosecutor may not file an information without
authority from the Ombudsman. Republic Act No. 6770,by conferring
upon the Ombudsman the power to prosecute, likewise grants to the
Ombudsman the power to authorize the filing of information. A dele-
gated authority to prosecute was also given to the Deputy Ombudsman,
but no such delegation exists to the Special Prosecutor. Nor is there an
implied delegation. The Special Prosecutor prosecutes only when au-
thorized by the Ombudsman."
5. The Ombudsman has been conferred rule making power to
govern procedures under it.'n One who is answering an administrative
complaint filed before the Ombudsman may not appeal to the proce-
dural rules under the Civil Service Commission.6o
"Ornhutlsnran v. CA, November 22,201\6; Ombudsman v. Lucero, November 24,2OO6.
('A, (i.R. No. July ,2Ul'7.
"'Orrrhurlsrtrart v. 16t1079, 11
'/Slrrgguniarrg llarangly v. l'urxurg llirrlnguy, (i.R. No. 170626, March 3,2(X)tl.
(
'*f 't'rcz v. Surxligrrhuylrr, i.R . No. I 6(il)62, Scptcnthcr 26,20(b.
('A, ( i.l(. No. -/5tl()5,
'"llttt'rrt lrrrirto v. l APlil,l, 2(X) /.
'r'Mcrlrrrrr v ('()n.(i l{ No I /(rllt(,li'lxrr;uv,l..r(Xlll

THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
6. The power to investigate or conduct a preliminary investiga-
tion on any Ombudsman case may be exercised by an investigator or
prosecutor of the Office of the Ombudsman, or by any Provincial or
City Prosecutor or their assistance, either in their regular capacities or
as deputized Ombudsman prosecutors.6l
7. A preventive suspension will only last ninety (90) days, not
the entire duration of the criminal case like petitioners seem to think.
Indeed, it would be constitutionally proscribed if the suspension were
to be of an indefinite duration or for an unreasonable length of time.
The Court has thus laid down the rule that preventive suspension may
not exceed the maximum period of ninety (90) days, in consonance
with Presidential Decree No. 807, now Section 52 of the Administrative
Code of 1987."
Snc.15. Tnr mcnr oF THE Surr ro RECovER pRopERTIES
TJNLAWFULLY ACQUIRED BY PUBLIC OFFICIALS OR EMPLOYEES, FROM
THEM OR FROM THEIR NOMINEES OR TRANSFEREES, SIIALL NOT BE
BARRED BY PRESCRIPTION, LACITES, OR ESTOPPEL.
1. Prescription.
Section 15 raises to the level ofa constitutional provision Section
11 of Republic Act No. 1379 which says: "The laws concerning acquisi-
tive prescription and limitation of actions cannot be invoked by, nor
shall they benefit the respondent in respect of any property unlawfully
acquired by him." What the Constitutional Commission approved was
the following:
The right of the State to recover properties unlawfully acquired
by public officials or employees or their co-principals, accomplices or
accessories or to prosecute offenses in connection therewith shall not bc
barred by prescription, laches, or estoppel.
The Commission's intention, therefore, was to make imprescrip-
tibility applicable to both the civil and criminal aspects of a case.o'Thc
Commission on Style, however, deleted the clause "or to prosccutc
6rHonasanIIv.Panel of lnvestigatorsof thcDOJ,C.R.No. l59747,April 13,2(X)4
"2Villasenor v. Sandiganbayan, G.R. No. ltloT(X), Murch 4.2(X)lt.
6rlt RI-tc()RD t46- 148.
ART. XI - ACCOUI{TABILITY OF PUBLIC OFFICERS
Sec. 15
offenses in connection therewith."* This found application in Presiden-
tial Fact Finding Committee v. Desierto65 and in Republic v. Desierto:66
It has already been settled in Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto that Section 15 of Article XI
of the Constitution applies only to civil actions for recovery of ill-got-
ten wealth, and not to criminal cases such as the complaint against the
respondents in OMB-0-90-2808. Conversely, prescription of criminal
cases is governed by special laws on prescription.
Furthermore, to construe Section 15, Article XI of the 1987 Con-
stitution in order to give it retroactive application to the private respon-
dents will run counter to another constitutional provision, that is, Sec-
tion 22,Article III which provides that "No ex post facto law or bill of
attainder shall be enacted." An ex post facto law is defined, in part, as a
law which deprives persons accused of crime of some lawful protection
of a former conviction or acquittal, or of the proclamation of amnesty;
every law which, in relation to the offense or its consequences, alters the
situation of a person to his disadvantage. A construction which raises
a conflict between different parts of the constitution is not permissible
when by reasonable construction, the parts may be made to harmonize.
Src. 16. No r-o.lx, cuARANTy, oR orIrER FoRM oF FINANCIAL
ACCOMMODATION FOR ANY BUSINESS PURPOSE MAY BE GRANTED,
DIRECTLY OR INDIRECTLY, BY ANY GOVERNMENT.OWNED OR
to rnn PnESIDENT,THE
coNTRoLLED BANK oR FTNANCIAL INsTITUTIoN
VrcB-PnnsmnNT, THE Mrunrns oF THE C.lnrxnt, tur Coucnoss,
nm Supnrun Counr, AND THE CoNsrrrurroNlr- Couutsslol*s,
rnn OMsLDsMAN, oR To ANy FIRM oR ENTITv IN wHIcH TIrEy HAvE
CONTROLLING INTEREST, DURING THEIR TENURE.
1. Financialaccommodations.
The list of government officials in Section 16 includes only those
of high rank. The intention is to prevent such officials from making use
of their positions for purposes of obtaining financial accommodations
fiom government institutions and from firms wherein they have a con-
trolling interest. By limiting the list to high ranking officials, avenues
'rv l{t('( )l{l) t10 t.-802.
"'(i.R. No. I l(rl()2, Atrllrrst 1,1. 2(X)l
""(i l{. No I }(r5(Xr,Art1'.rrsl .' l,.l(X)l
rt72 THE 1987 CONSTITUTION Secs. 17-18 Sec. l8 ART. XI - ACCOUNTABILITY OF PUBLIC OFFICERS
OF THE REPUBLIC OF THE PHILIPPINES

for financial relief are not denied to officials of lower rank. Thus, for Where they are seen as already preparing refuge or safety outside
instance, although the original list included judicial officials in general, their own country because of lack of faith in the stability of their
the list was later trimmed to exclude judges of lower courts.67 government and of their own society, the effect on citizens is de-
moralizing and unsettling. It is also divisive because it flaunts a
pusr,rc oFFrcER oR EMpLoyEE sHALL upoN class privilege since only a few can afford at any time to buy secu-
SBc. 17. A
rity on foreign shores.
ASSUMPTION OF OFFICE AND AS OTTEN THEREAFTER AS MAY BE
REQUIRED BY LAWTSUBMIT A DECLARATION UNDER OATH OF HIS ASSETS,
LIABILITIES, AND NET woRTII. In rnn CASE oF rnn Pnrsronnr, THE
VrcB-PnasronNT, THE Mnlrnnns oF TIIE Clrwrt, ntr CoNcnrss,
rnn Supxrno Count, rrrn CoNsrrrurIoNAL Courrrssroxs lxo
OTHER CONSTITUTIONAL OFFICES, AND OFTICERS OF TIIE ARMED
FORCES WITII GENERAL OR FLAG RANK, THE DECLARATION SHALL BE
DISCLOSED TO THE PUBLIC IN THE MANNER PROVIDED BY LAW.

1. Disclosure of assets.
There are two commands in Section 17. The flrst prescribes the
filing of a declaration of assets and liabilities. This is applicable to all
public officers and employees regardless ofrank. The second prescribes
public disclosure of assets and liabilities in the manner provided by law.
This is applicable only to the President, the Vice-President, members of
the Cabinet, the Congress, the Supreme Court, and the Constitutional
Commissions, and other constitutional offices. However, the legislature
may also require public disclosure of the assets and liabilities of other
officials.u'

Src. 18. Pusr,rc oFFrcERs AND EMpLoyEEs owE rnn Smre

AND THrs CoxsrrrurroN ALLEGIANCE AT ALL TIMEs, AND ANy puBLIc
OFFICER OR EMPLOYEE WHO SEEKS TO CHANGE HIS CITIZENSIIIP OR
ACQUIRN, THE STATUS OF AN IMMIGRANT OF ANOTHER COUNTRY DURING
HIS TENURE SHALL BE DEATT WITH BY LAW.

1. A public officer's allegiance.

The rationale for this provision was given by Commissioner Ollle
thus:6e

Public officers are expected to set the example or standartl

of single-minded allegiance to the nation and to the public intcrcsl .

flII RECORD 362-365

('8/r/.
at 320..124.
*,1al.nl l,).4.

AnrrclE XII
N,trroNAL EcoNoMY AND PlrnruoNY
SscrroN 1. Tno co.rr,s oF THE NATIoNAL EcoNoMy ARE A MoRE
EQUITABLE DISTRIBUTION OF OPPORTUNITIES, INCOME, AND WEALTH;
A SUSTAINED INCREASE IN THE AMOUNT OF GOODS AND SERVICES
PRODUCED BY THE NATION FOR THE BENEFIT OF THE PEOPLE; AND AN
EXPANDING PRODUCTIYITY AS THE KEY TO RAISING THE QUALITY OF
LIFE FOR ALL, ESPECIALLY THE UNDERPRIVILEGED.
Trtl SrnrB SHALL pRoMorE II\DUSTRIALIzATIoN AND FULL
EMPLOYMENT BASED ON SOUND AGRICULTURAL DEVELOPMENT AND
AGRARIAN REFORM, THROUGH INDUSTRIES TIIAT MAKE FULL AND
EFFICIENT USE OF HUMAN AN'D NATURAL RESOURCES, AND WHICH ARE
coMpETITIvE rN Borrr DoMESTIC AND FOREIGN MARKETS. Hownvnn,
rnn Smrn sHALL pRorEct Frlrprxo ENTERpRISES AGAINST UNFAIR
FOREIGN COMPETITION AND TRADE PRACTICES.
IN rnn puRsuIT oF
THESE G0ALS, ALL sEcroRs oF THE
ECONOMY ANDALL REGIONS OF TIIE COUNTRY SHALL BE GIVEN
oFTTMUM oppoRTuNrry ro DEvELop. Pnlvlrn ENTERIRISES,
INCLUDING CORPORATIONS, COOPERATIVES, AND SIMILAR COLLECTIVE
ORGANIZATIONS, SHALL BE ONCOURAGED TO BROADEN THE BASE OF
THEIR OWNERSHIP.
1. General economic policy of the Constitution.
From the first day of the debates on the national economy dur-
ing the deliberations of the 1986 Constitutional Commission, one could
already sense the direction the discussions would take. It would bc u
struggle between a group adhering to a liberal economic policy bal-
anced by concern for social justice and another group desirous tlf tt
more protectionist constitution because of distrust of foreign and locttl
business magnates.' The debates were for the most part sober and politc.
But insults and even ash tray throwing did manage to creep in.
tSee e.9., the debates on August l3 and 14, 1986
ART. XII - NATIONAL ECONOMYAND PATRIMONY r 175
Section 1 can be seen as expressing some general economic poli-
cies of the Constitution. Commissioner Villegas introduced the section
saying that it is "packed with principles that shall serve as constitutional
guidelines for the various branches of government for the promotion of
the common good in the economic sphere."z Consonant with the gen-
eral tenor of Article XII, it is repetitive and verbose; but three basic
directions may be gleaned from it. First, it sets the dual goal of dynamic
productivity and a more equitable distribution of what is produced. Sec-
ond, it seeks complementarity between industrialization and agricultur-
al development. Thfud, it is protective of things Filipino. Commenting
on the original draft, and before the elements of agriculture and indus-
trialization and other amendments were introduced, Commissioner Vil-
legas put things in a different order:3
The three traditional goals of every national economy are
... enumerated. The usual order, however, is reversed; economic
growth is mentioned last, with equity being given prominence as
the first objective of national economic development. The goal
of reducing inequality is reiterated in an explicit statement of the
emerging concept in social philosophy: the preferential option or
love for the poor flaterreworded to "underprivileged]. ... The ref-
erence to the national product being for the benefit of the Filipino
people tries to guarantee that national development efforts shall
give priority to the needs of the local population rather than for-
eign consumers.
The dynamism of the economy that is envisioned is expressed in
the words "sustained increase in the amount of goods and services pro-
duced" and "expanding productivity." The equity goal is expressed in
various ways: "a more equitable distribution of opportunities, income,
and wealth," "for the benefit of the people ... especially the under-
privileged," and "to broaden the base of ownership." It should also be
pointed out that the equitable distribution refers not just to distribu-
tion among people and sectors of the economy but also to distribution
among geographic regions.
The balance between industrialization and agricultural develop-
ment is untrlrtunately expressed in language that is not totally clear:
,ilt Rt('0Rt) 112
tl.l.
 THE 1987 CONSTITUTION Sec. 1 Sec.2 ART. XII - NATIONAL ECONOMY AND PATRIMONY II7'7
OF THE REPTIBLIC OF THE PHILIPPINES

"industrialization and full employment based on sound agricultural de- to Philippine interests. The Court saw BOI's decision as constituting
velopment and agrarian reform." It gives the impression that industri- grave abuse of discretion saying: "In the light of all the clear advan-
alization cannot take off until agricultural and agrarian development tages manifest in the plant's remaining in Bataan, practically nothing
has been achieved. However, the intent of the Commission was clear. is shown to justify the transfer to Batangas except a near-absolute dis-
What is envisioned by the provision is not necessarily agriculturally- cretion given by the BOI to investors not only to freely choose the site
related industrialization but rather industrialization that is the result of but to transfer it from their own first choice for reasons which remain
releasing locked up capital through agrarian reform. This therefore is murky to say the least."'
necessarily related to the subject of social justice.a Moreover, the policy The directions set down in Section 1 must also be complemented
does not mean a hard-bound rule that agricultural development must by Section 19 of Article II, which commands the development of "a
have priority over industrialization. What is envisioned is a flexible and self-reliant and independent national economy," and Section 20 of the
rational relationship between the two as dictated by the common good.' same article, which "recognizes the indispensable role of the private
The policy of protecting things Filipino was a subject of intensc sector."
debate. It is clear that the intent is to protect both the Filipino consumcr
Src. 2. All LANDs oF THE PUBLIC DoMArNr wATERST MTNERALSt
and the Filipino producer. The Filipino consumer must be protected coAL, PETROLEUMT AND OTHER MINERAL OrLSr ALL FORCES OF
against a flood of low quality products. For this purpose, a healthy dc- POTENTIAL ENERGY' FISIIERIES' FORESTS OR TIMBER' WILDLIFE' FLORA
gree of competition, even foreign competition, is allowed. The Filipino AND FAUNA, AND OTHER NATURAL RESOI]RCF,S ARE OWNED BY TIIE
producer, in turn, must be protected from "unfair foreign competitioll Smrr. WrrH rrn ExcEFTIoN oF AGRICULTURAL LANDST ALL orIrER
and trade practices." This phrase is not to be taken in a legal technical NATURAL RESouRCEs SHALL Nor BE ALIENATED. Tnn nxnonltroxt
sense, that is, not in the sense of the definitions found in existing laws DFJVELOPMENT, AND UTILIZATION OF NATURAL RESOURCES SHALL
BE uNDER THE FULL coNTRoL AND suPERYISIoN oF rnn Surn'
but in the sense of anything that is harmful to Philippine enterprises. As
Tnn Sr.lrn MAY DIREcTLY TNDERTAKE sucH ACTTYITIEST oR IT MAY
Commissioner Villegas put it: "it is very clear on record that we said thc
ENTER INTO CO-PRODUCTION' JOINT VENTURE' OR PRODUCTION-
government can declare as unfair anything that hurts Filipino enterpris sHARING AGREEMENTS wrrn Frr-Irno cITIZENST oR coRFoRATIoNs
es and that the word 'unfair'in Section 1 does not partake of any uniqrrc OR ASSOCIATIONS AT LEAST SIXTY PER CENTAM OF WHOSE CAPITAL IS
economic or legal interpretation given by international organizatiorrs owNED BY sucH crrIZENS. Sucn lcnrnuENTs MAY BE FoR A PERIoD
since we can declare as unfair anything that hurts Filipino enterpriscs."' NOT EXCEEDTNG TWENTY'FM YEARST RENEWABLE FOR NOT MORE
The protection can come in the form of tariffs, quantitative restricliorrs, THAN TWENTY-FIVE YEARS' AND UNDER SUCII TERMS AND CONDITIONS

or even total ban of imports in certain cases. At the same time, howcvcr. As MAy BE pRovIDED BY LAw. Ix csns oF warER RIGHTS FoR
IRRIGATION, WATER SUPPLY' FISHERIF-S' OR INDUSTRIAL USES OTIIER
there is no intention to protect Filipino industries from foreign cornpclr
THAN THE DEVELOPMENT OF WATER FOWER' BENEFICIAL USE MAY BE
tion at the expense of consumers.'
THE MEASURE AND LIMIT OF THE GRANT.
The decision of the Supreme Court in Garcia v. Brnrtl tll' lrtt't'.rt
ment (BOI) was based on its assessment that the order of IlOl nllowittp s191 SCRA 288,296 (1990). The dissent in the case, however, was not without weight:
..The petitioner's contention that the BOI abused its discretion in approving the transfer ... in ef-
Luzon Petrochemical Corporation to transfer from Bataan to llullur;',tttr
fect, yielded to the investor's choice, is not well taken. The record shows that the BOI approved
merely followed the wishes of the foreign investors evcn il'corrllruy (p.
rhe transf'er because "the BOI recognizes the justification given by the proponent" of the project
30, Rollo). The fact that the petitioner disagrees with the BOI's decision does not make it wrong.
'fhe pctirioner's recourse . . . is by an appeal to the President (Sec. 36,1987 Investment Code)' not
ald. at 335. tothis(ilrrl." I'ht:rlisscntaddedthattheCourt"isnotthejudgeofthewisdomandsoundnessof
5IV RECORD 210-2121V l{tsCORD ttlT-lJ39,lttls t3tt6. thc iteti(trls 0l tlrt. lwo r)lhcr c() cqual branches of the government, but only of their legality and
6IV RECORD 2 I6. t.'rrstitrrli1rrrlity." llrt.rt'isnollrirvrlrbuseofdiscretionbecausegraveabuseofdiscretion"implies
TFor the protr:rclctl rlt'hitlc rrt lltis. rvltit lt involvt'rl krhltit's trrrrrntg lr()nr ( lurcnlly srrt.1 eirplrt iprrs irlrl rvlrrnrsrt irl t'xert isc ol .jutlgmcnt as is equivalent to lack of jurisdiction." Id.
;rtrrllr l:'rl
inrluslrit's,.ra'|rr.r,rirrlll l{l('()ltl)ll} lllt..lll.lt.l: lVltli('()ltl),)l)(),)18 rrt l(X) lOl.
 THE 1987 CONSTITUTION Sec.2 Sec.2 ART.XII_NAIIONALECONOMYANDPATRIMONY IL79
OF THE REPUBLIC OF THE PHILIPPINES

SHALL pRorECT THE NATIoNts MARrr\E wEALTH

Tns Srlrn claiming ownership of a portion of the public domain must be able to
IN ITS ARCHIPELAGIC WATERS, TERRITORIAL SEA, AND EXCLUSIVE show title from the state according to any of the recognized modes of
ECONOMIC ZONE, AND RESERVE ITS USE AND ENJOYMENT EXCLUSTVELY acquisition of title."
To FILIPINO CITIZENS.
It is importqant to note, however, that when the regalian doctrine
Tne Coxcnnss MAy, By LAw, ALLow sMALL-scaLE urtLtzy-
was introduced into the Philippines by colonizers, the colonizers did not
TIoN oF NATURAL REsouRCEs ny Fntrno cITIzENs, As wELL
intend to strip the natives of their ownership of lands already belonging
AS COOPERATIYE FISH FARMING, WITH PRIORITY TO SUBSISTENCE
FISHERMEN AND FISH WORKERS IN RMRS, LAKES, BAYS, AND LAGOONS.
to them. As Carifto v. Insular Governrnenr'2 said, "when, as far back as
testimony or memory goes, the land has been held by individuals under
Tsn PnnsnrNT MAy ENTER rNTo AcREEMENTS wITH FoREIGN-
a claim of private ownership, it will be presumed to have been held in
OWNED CORPORATIONS INVOLVING EITHER TECHNICAL OR FINANCIAL
the same way from before the Spanish conquest, and never to have been
ASSISTANCE FOR LARGE-SCALE EXPLORATTON, DEVELOPMENT, AND
UTILIZATION OF MINERALS, PETROLEUM, AND OTHER MINERAL OILS
public land."
ACCORDING TO THE GENERAL TERMS AND CONDITIONS PROVIDED BY
One significant application of the regalian doctrine is that, if a
LAW, BASED ON REAL CONTRTBUTIONS TO TIIE ECONOMTC GROWTH
person is the owner of agricultural land in which minerals are discov-
AND GENERAL wELFARE oF THE couNTRy. Ix sucn AGREEMENTs,
ered, the person's ownership of such land does not give him the right to
THE STATE SHALL PRoMoTE THE DEYELoPMENT AND UsE oF LoCAL
SCIENTIFIC AND TECHNICAL RESOURCES.
extract or utilize the said minerals without the permission of the State.
The minerals belong to the state. Thus, once minerals are discovered
THB PnnsDsNT sHALL NorrFy rnn Coxcnrss oF EvERy in the land, whatever the use to which it is being devoted at the time,
CONTRACT ENTERED rNTO IN ACCORDANCE WrTH THIS PROVTSION,
such use may be discontinued by the State to enable it to extract the
WITIIIN THIRTY DAYS FROM ITS EXECUTION.
minerals therein in the exercise of its sovereign prerogative. The land is
converted to mineral land. For the loss sustained, the owner is entitled
1. Jura regalia and limits on dominium. to compensation under the Mining Law or in appropriate expropriation
In public law a distinction is made between imperium and do- proceedings.'3
minium. Imperium is the government authority possessed by the statc
expressed in the concept of sovereignty. Dominium is the capacity ol 2. Limits on dominium.
the state to own or acquire property. Dominium, which was the foundt
While dominium necessarily includes the power to alienate what
tion for the early Spanish decrees embracing the feudal theory of .junt
is owned, Section 2, following the lead of earlier constitutions, limits
regalia that all lands were held from the Crown, is also the foundatiorr
the power of the State to alienate the natural resources of the public
of the first sentence of Section 2.
domain. Only agricultural lands of the public domain may be alienated.
As adopted in a republican system, however, the medieval corr All other natural resources may not be.
cept of jura regalia has been stripped of royal overtones: ownorship
The prohibition of alienation of natural resources dates back to at
is vested in the State., Section 2 says: "All lands of the public dorrruiu,
XIII, of the I 935 Constitution. Much of the I 934
least Section l, Article
waters, minerals, coal, petroleum, and other mineral oils, all lilrccs ol
Constitutional Convention debate on this provision, which took place
potential energy, fisheries, forests or timber, wildlife,r,, florer and lirrrrrn,
on January 31, 1935, centered around the prohibition of the alienation
and other natural rbsources are owned by the State." Hencc, ilny l)ct sun

rr4E SCRA ut 379.

"Lee Hong Hok v. l)avitl,4ll S('RA .172. "117 (1912',.
rt"Willlil"' rt4l Phit.935 (1909).
is tlrclrly ittclttrlctl irt "lintnir" hut thc w(n'(l is rtttrincrl irr rlnlcr to clnplt6tlrF
IRcpuhlic v. (irurt ol'Appculn, l6O S(IRA 22tl (lgtlll)
llrc rtt't'rl l() l)r()l('('l cs;x'r'irrlly llrrcrrlt'rrtrl s1x'r'ics. lll Rl('( )Rl) l5l{.
I180 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
of the natural resources. The arguments in support of the provision were
summarized by Aruego thus:'4
[u]nder the leasehold system, the government could di-
...
rect better the development and exploitation of the mineral re-
sources; that monopoly would be eliminated; and that it would be
easier for the government to collect the dues that should go to it.
They added that the natural resources, particularly the mineral re-
sources which constituted a great source of wealth, belonged not
only to the generation then but also to the succeeding generations
and consequently should be conserved for them. They expressed
the fear that, if the freehold system was adopted, some of the min-
eral lands after they had become private property through the grant
of a patent might eventually get into the ownership or control of
foreigners to the prejudice of Filipino posterity; for there was no
prohibition in the draft against the transfer or assignment to aliens
of private mineral lands.
3. Exploration, development and utilization of inalienablc
resources.
With regard to natural resources other than agricultural land, twtt
questions need be answered. First, who may pafiicipate in their explgru
tion, development and utilization? Second, if natural resources, exccpl
agricultural land, cannot be alienated, how may they be explored' dc
veloped, or utilized?
The answer to the first question is that only Filipinos and Filipittrt
corporations may engage in the development and utilization of thcttc
natural resources. The rational for this reservation, also found in hullt
the 1935 and lg73 Constitutions, was earlier summed up by Vicentc (J,
Sinco thus:15
It should be emphatically stated that the provisions tlf otrr
Constitution which limit to Filipinos the rights to develop thc
natural resources and to operate the public utilities of the Philip-
pines is one of the bulwarks of our national integrity. The Filipirrtr
people decided to include it in our Constitution in order that it ttttty
have the stability and permanency that its importance rcquircs. ll
is written in our Constitution so that it may neithcr bc thc strbict'l
rtll l'tttttrrtNt ( irrusrlttilrr,v ({)-l
lall Anuttxl, 'l'ttti !ia,tutttt; tn.
t'('ired irRepublit' v. ()ttrtslrrt. 4(r S('ltA I60, I70 ( I9/?)
Sec.2 Sec.2 ART. XII - NAIIONALECONOMYAND PATRIMONY 1181
of barter nor be impaired in the give and take of politics. With
our natural resources, our sources ofpower and energy, our public
lands, and our public utilities, the material basis of the nation's ex-
istence, in the hands of aliens over whom the Philippine Govern-
ment does not have complete control, the Filipinos may soon find
themselves deprived of their patrimony and living as it were, in a
house that no longer belongs to them.16
There was extensive debate on what proportion of capitalization
should qualify a corporation as Filipino. First of all, it was made clear
that capital meant subscribed capital, or its equivalent, if the corpora-
tion is non-stock.li The Committee report had initially recommended
sixty-six and two-thirds Filipino capitalization.'8 Then followed a se-
ries of amendments which, starting from one hundred per cent Filipino
capitalization, to seventy-five percent, to two-thirds, were all defeated.
Forty percent foreign capitalization was successfully defended on the
ground of the need for capital in an area of high risk.', Similarly, pro-
posal to make governing boards 1007o Filipino was voted down mainly
on the argument that there would be no point in giving foreigners a40Vo
share if they cannot share in governing the corporation.,o
The answer to the second question departed from earlier provi-
sions which had prescribed that natural resources could be explored,
developed or utilized only by "license, concession, or lease." The 1987
Constitution no longer speaks of "grant, lease, or concession" but of
either direct undertaking of activities by the State or "co-production,
joint venture, or production-sharing agreements" with the State and all
"under the full control and supervision of the State." How this is to be
achieved may be seen from the following exchange:2r
'6With the 1946 Ordinance Appended to the 1935 Constitution or the Parity Amendment,
the same right extended to Filipino citizens and corporations was extended to citizens of the United
States and business enterprises owned or controlled, directly or indirectly, by citizens ofthe United
States. The Parity Amendment, however, extended only until Ju'ly 3, 1974. The requirements for
an American business enterprise to qualify under the implementing Laurel-Langley Agreement are
discussed in Palting v. San Jose Petroleum, lnc., 18 SCRA 924 (1966).
r?lII RECORD 255. And the grandfather rule applies. Id. Also at 357,583-584,590-591.
tt
Id. at 253 .
r'q/d. at 3(10-365, 3(r7-36t,l.'l'hc rlclcterl podions of 367-368 were
those which preceded the
wulkout ol scvcrrl ('orutnissioncrs.
2('/r/.
ul .|(r'.1 l(r].
rrlr/. nt ,l(r(1.
 THE 198TCONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
MR. DAVIDE. Under the proposal, I notice that except for
the [inalienable] lands of the public domain, all the other natural
resources cannot be alienated and in respect to [alienable] lands
of the public domain, private corporations with the required own-
ership by Filipino citizens can only lease the same. Necessarily,
insofar as other natural resources are concerned, it would only be
the State which can exploit, develop, explore and utilize the same.
However, the State may enter into a joint venture, co-production or
production-sharing. Is that correct?
MR. VILLEGAS. Yes.
MR. DAVIDE. Consequently, henceforth upon the approval
of this Constitution, no timber or forest concessions, permits or
authorization can be exclusively granted to any citizen of the Phil-
ippines nor to any corporations qualified to acquire lands of the
public domain?
MR. VILLEGAS. Would Commissioner Monsod like to
comment on that? I think his answer is "yes."
MR. DAVIDE. So, what will happen now to licenses or
concessions earlier granted by the Philippine government to pri-
vate corporations or to Filipino citizens? Would they be deemed
repealed?
MR. VILLEGAS. This is not applied retroactively. They
will be respected.
There are therefore two levels of control that must be considered.
The first level is the control over the corporation which may engage
with the State in "co-production, joint venture, or production-sharing
agreements." If individuals, they must be Filipino citizens; if corpora-
tions, the ownership must be 607o Filipino.
The second level is control ofthe "co-production,joint venture, or
production-sharing" operation. This must be under the "full contrcll antl
supervision of the State." In this regard the question was raised whethcr
"full control" meant that the State could reverse decisions made by thc
entity running the "co-production, joint venture, or production-shitr-
ing?" The question was posed thus:22
)'
ful . ul 255
Sec.2
Sec.2 ART. XII NATIONAL ECONOMY AND PATRIMONY I I83
-
MR. NOLLEDO. Suppose a juridical entity is given the
power to exploit natural resources and, of course, there are deci-
sions made by the governing board of that juridical entity, can the
State change the decisions of the governing board of that entity
based on the words "full control."
MR. VILLEGAS.If it is within the context of the contract,I
think the State cannot violate the laws of the land.
Nolledo evidently posed his question thinking in terms of the
President's power of control over the executive department. Villegas'
reply, however, indicates that "control" in this regard meant control as
it operates in the corporate world. Nolledo, apparently satisfied with the
answer, did not pursue the topic. In another exchange, in fact, Villegas
had indicated that what he had in mind was actually not I00Vo control
of the operation by the State. He said that even a 40Vo interest of the
State could already amount to control.'?3
What appears from these levels of control is that the 1987 rule
is more strict than the 1935 and 1973 rules. What the new rule says is
that whenever natural resources are involved, particularly in the case of
inalienable natural resources, the State must always have some control
of the exploration, development and utilization even if the individual or
corporation engaged in the operation is Filipino.In the words of Davide
already quoted, "no timber or forest concessions, permits or authoriza-
tion can be exclusively granted to any citizen of the Philippines nor to
any corporations qualified to acquire lands of the public domain."
The new rule, however, is not retroactive. The non-retroactivity of
this rule is respected in the Executive Order No.2ll issued by President
Aquino in the exercise of legislative powers and Executive Order No.
279 authoized the Secretary of Natural Resources to conclude joint
venture, co-production, or production sharing agreements for the ex-
ploration, development and utilization of mineral resources applicable
to contracts entered into after the effectivity of the 1987 Constitution.
In upholding the administrative regulations issued by the Secretary of
Natural Resources, Miners Association of the Philippines v. Factoran,
Jr.'?a recognized the new Constitution assumes a more dynamic role in
relation to natural resources "No longer is the utilization of inalienable
"ll. tt '254.
"r24O S('RA l(X). l(14 l(Xr ( l()95)

THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
lands of public domain through 'license, concession or lease' ..." "The
options open to the State are through direct undertaking or by enter-
co-production, joint venture, or production sharing agreements.
T:,t*"
Further clarification of the rule was made in La Bugal B'laan Trib-
al Assoc. v. DENR3 The Court ruled that financial and technical agree-
ments are a form of service contract. Such service contracts may be
entered into only with respect to minerals, petroleum and other mineral
oils. The grant of such service contracts is subject to several safeguards,
among them: (1) that the service contract be crafted in accordance with
a general law setting standard or uniform terms, conditions and require-
ments; (2)the President be the signatory for the government; and (3) thc
President report the executed agreement to Congress within thirty days.
The service contract can necessarily include foreign contractors
providing not just capital, technology and technical know-how but als<r
managerial expertise in the creation and operation of the large-scalc
mining/extractive enterprise, and government through its agencics
(DENR, MGB) actively exercises full control and supervision over thc
entire enterprise.In other words, management authority may be grantcd
to foreigners to the extent necessary for the performance of the financiul
or technical agreement.
It should also be recalled that in the past,limber licenses, permits
and license agreements were the principal instruments by which tltc
State regulated the utilization and disposition of forest resources to lhe
end that public welfare was promoted. They were not deemed contr:l('ls
within the purview of the due process of law clause. Even assuming rrt'
guendo that an Industrial ForestManagementAgreement (IFMA) coultl
be considered a contract or an agreement, the alleged property righlri
that may have arisen from it were not absolute. It was subject to llte
power of the state to protect the ecology.'z6
4. Other limitations.
Agreements for the exploitation of the natural
have a life of only twenty-five years. This twenty-fivc ycar-lintil rlttlce
251,a Bugal B'laan'l'rihal Assoc. v. I)l'lNR . (i.R. No. l27tJtl2, l)ct'urrlrr l, .l(Xl,l. (( hr l{r'
consitlcralion) and licbrrraly l, 2(X)5.
r"l(eprrhlit v. I'itprrlirttt ('ily 'l'irrrlx'r, ( i ll. No. I5() l0tt, Scplcrrrlrct l(r. .l(X)lt.
ART. XII - NATIONAL ECONOMY AND PATRIMONY
Sec.2
back to the 1935 Constitution and is considered to be a "reasonable
time to attract capital,local and foreign and to enable them to recover
their investment and make a profit."' The twenty-five year limit on
the exploitation of natural resources is not applicable to "water rights
for inigation, water supply, fisheries, or industrial uses other than the
development of water power." In these cases, "beneficial use may be the
measure and the limit of the grant." But in the case of water rights for
waterpower, the twenty-five year limit is applicable.
The 1987 Constitution introduced other limits still. First, a more
strict rule is imposed regarding the use and enjoyment of the nation's
"marine wealth in its archipelagic waters, territorial sea, and exclusive
economic zone." These are reserved for the exclusive use and enjoy-
ment of "Filipino citizens," that is, Filipino natural persons. Thus, aliens
would not be allowed even if they paid rent or fees for fishing rights."
But since the economic zone is part of the high seas, this is subject to
general principles of international law.'n
Second, a special provision is made in favor of subsistence fisher-
men and fish workers: "The Congress may, by law, allow small-scale
utilization of natural resources by Filipino citizens, as well as coopera-
tive fish farming, with priority to subsistence fishermen and fish work-
ers in rivers, lakes, bays, and lagoons." The reference to subsistence
fishermen and fish workers harmonizes the provision with that in the ar-
ticle on Social Justice. The spirit of this rule is that "small-scale" should
refer to single proprietorships, with "camote mining" in the coal mines
of Cebu given as an example.3o
Third, a limitation on service contracts is imposed: "The President
may enter into agreements with foreign-owned corporations involving
either technical or financial assistance for large-scale exploration, de-
velopment, and utilization of minerals, petroleum, and other mineral
oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare
of the country. In such agreements, the State shall promote the develop-
rcsotlrccs ('llll rTSession of November 25, I 972.
]8III RR,CORD 6tI6.
r"/r/. A spcc:ial problem might arise with respect to Japan because of the Treaty of Amity,
(irnrrncrcc anrl Navigation hetwcen Japan and the Philippine in I 960. But there should be no diffi-
errlly il .lirp:rr is ir signatrx'y t() thc rcccrrl (irnvcntion on thc Law of the Sca which sr:ls an cxclusive
ccorronrit zont ol 2(X) nrilcs.,\rl lV Rl,)('()Rl) 2.17.
"'lll lili('( )Iil ) 155.
I 186 THE 1987 CONSTITUTION Sec.2
OF THE REPUBLIC OF THE PHILIPPINES
ment and use of local scientific and technical resources." Further Sec-
tion 2 prescribes that: "The President shall notify the Congress of every
contract entered into in accordance with this provision, within thirty
days from its execution." "Foreign-owned corporation" here means a
corporation owned by foreigners."
Under the 1973 Constitution service contracts were more gener-
ously allowed. Section 9 of Article XIV said: "The Batasang Pambansa,
in the national interest, may allow such [Filipino] citizens, corporations,
or associations to enter into service contracts for financial, technical,
management, or other forms of assistance with any foreign person or
entity for the exploration, development, exploitation, or utilization of
any of the natural resources.""
XIV of the 1973 Constitution did not specify
Section 9, Article
how the blessing of the Batasang Pambansa could be obtained, that is,
whether through franchise or by some other expeditious form of ap-
proval. Presidential Decree No. 1 5 l, dated March 13, 197 3 implement-
ed it thus:
1. Citizens of the Philippines or corporations or associa-
tions which have acquired lands of the public domain or which
now own, hold or control such lands under the Public Land Act or
any other law, are hereby allowed to enter into service contracts
for financial, technical, management or other forms of assistance
with any foreign person or entity whenever and wherever such
contracts are vital to achieve sound and more expeditious explora-
tion, development, exploitation or utilization of such lands owned'
held or controlled by such citizens or corporations'
2. For purposes of this Decree, a service contract with
a foreign citizen or entity for financial, technical, management
and other forms of assistance shall be considered vital to national
interestif, consistent with requirements for national security the
exploration, exploitation or utilization of land subject thereof is
\tld. 167-168.
32The^toriginal idea behind these provisions was
to authorize the gttvemmcnt, n()t ptiv0l.r
entities, to enter into service contracts with tbreign entities. Thc idca wus borrowctl, nccotrltttg
to Delegate Valera, from the methods firllowed by lndia, Pakistan and cspccillly lndoncrin ltl
the exploration of petroleum and nrineral oils. As linally appnrvtlrl, howcvcr, u cilizctt ol ltl lvlllo
cntity could be allowed by tho Natirlrrll Asscrrrbly to cnt(:r into such scwicc e(nltlllcl.'l'he pthl
lpproval ofthc National Asscnrhly wts tlccrrcrl sullicicnt t() l,R)tccl lhc ttttlioltttl illtcrcll. Scrrltttt
<rl' Ntrvcnrhcr 25 - 191 2.
Sec.2 ART.XII-NATIONALECONOMYANDPAIRIMONY
necessary for carrying out agricultural, industrial and commercial
development projects such as the development of export oriented
indusffies, import substitution and other dollar saving industries,
cottage industries, cooperative development, land reform, research
projects, and such other activities which may be certified by the
President upon recommendation of the National Economic and
Development Authority as vital to national interest.
3.
No service contract for financial, technical, manage-
ment or other forms of assistance shall be valid without the prior
approval of the Secretary of Agriculture and Natural Resources.
The Secretary of Agriculture and Natural Resources shall promul-
gate such rules and regulations as may be necessary to carry this
Decree into effect.
4. Service contracts for financial, technical, management
or other forms of assistance that are valid and existing as ofJanu-
ary I7,1973, shall be recognized and the terms and conditions
thereof remain in full force and effect unless modified by the par-
ties thereto.
Service contracts under the 1973 Constitution and the implement-
ing decree were generally regarded in the Constitutional Commission
as means of circumventing the prohibitions of the Constitution. For
this reason the new provision avoids the use of the phrase "service
contracts."33 It has also put in stronger safeguards against circumven-
tion. Thus, any agreement entered into must be "according to the gen-
eral terms and conditions prescribed by law, based on real contributions
to the economic growth and general welfare of the country." To make
this always effective, the President must report to Congress every con-
tract he enters into. This will allow Congress to keep the law abreast
of the needs of the country.34 Furthermore, agreements can only be for
"technical and financial assistance" and only in relation to "large-scale
exploration, development, and utilization of minerals, petroleum, and
other mineral oils." These are the areas where local technical and finan-
cial resources are inadequate. Thus, beyond the reach of such agree-
ments are the development and utilization of timberlands, forests, ma-
rine resources, fauna and flora, wildlife and national parks."
"ilt Rl('()Rl) 27tt.
''r/r/. rrt .15 I .
lt
"r./. 155 l5(r. "l .rrrgc.st rrlt"' rrsrrully rcllrs lo vcry cirpitirl intcnsivc activitics likc pctro-
It'rrrrr rrrirtirrg, ( ol11tr'r nrnrtrll, clr'. /r/. rrt .155.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Src.3. LlNos oF THE puBLIc DoMAIN ARE cLASSIFTED INTo
AGRICULTURAL, FOREST OR TIMBER, MINERAL LANDS, AND NATIONAL
PARKS. ACNTCU TUNAL LANDS OF THE PUBLIC DOMAIN MAY BE
FT]RTHER CLASSIFIED BY LAW ACCORDING TO THE USES TO WHICH
TIIEY MAY BE DEVOTED. AT-TNNANLN LANDS OF TIIE PUBLIC DOMAIN
SHALL BE LIMITED TO AGRICULTURAL LANDS. PNTVITB CORPORATIONS"
OR ASSOCIATIONS MAY NOT IIOLD SUCH LANDS OF THE PUBLIC DOMAIN
EXCEPT BY LEASE, FOR A
NOT EXCEEDTNG TWENTY-FMPERTOD
YEARS, RENEWABLE FOR NOT MORE THAN TWENTY-FM YEARS, AND
NOT TO EXCEED ONE TIIOUSAND HECTARES IN AREA. CTTTZNNS OF THE
PutlrpplNps MAy LEASE Nor MoRE TIrAN FIVE HUNDRED HEcrAREs, oR
ACQUIRE NOT MORE THAN TWELVE HECTARES THEREOF BY PURCHASE'
HOMESTEAD, OR GRANT.
T^c,xn\c INTo ACcouNT THE REeUIREMENTS oF coNsERvATIoN,
ECOLOGY, AND DEVELOPMENT, AND SUBJECT TO THE REQUIREMENTS
oF AGRARTAN REFoRM, rnn CoNcnBss SHALL DETERMINE, BY LAwt
THE SIZE OF LANDS OF THE PUBLIC DOMAIN WHICH MAY BE ACQUIRED'
DEVELOPED, IIELD, OR LEASED AND TI{E CONDITIONS TIIEREFOR.
1. Classification of lands of the public domain.
Land is the single biggest major resource of the nation. This Sec-
tion deals with the classiflcation of lands.
The 1935 Constitution did not contain a specific provision the sole
purpose of which was to classify lands of the public domain. Article
XIII, however, mentioned "agricultural," o'timber," and "mineral" lands
interpreting
v. Register of Deeds|6
in Section 1. According to Krivenko
the provision, "all lands of the public domain are classified into said three
groups, namely, agricultural, timber, and mineral." It appears therefore
that Krivenko did not consider "lands adapted to grazing" mentioned in
Section 2 of the same Article as a separate category. In fact the context
of Section 2 (1935) did suggest that the category "lands adapted to graz-
ing" was merely a sub-classiflcation of agricultural lands.
Section 10 of the 1973 Constitution classified lands of the public
domain into seven separate categories: agricultural, industrial or com-
mercial, residential, resettlement, mineral, timber or forest, and grazing
land. A final clause authorizcd thc Batasang Pambansa to make ttthcr
classifications.
rn?()
I'lrrl. ,,16 l . 468 ( | ()'17 )
Sec.3 Sec.3 ART. XII - NATIONAL ECONOMYAND PATRIMONY I 189
The 1987 Constitution has returned to the classification of 1935
- agricultural, forest or timber, and mineral
- but with the addition
"Agricultural
of national parks. Moreover, Section 3 adds: lands of the
public domain may be further classified by law according to the uses to
which they may be devoted."
The prerogative of classifying public lands pertains to administra-
tive agencies which have been specially tasked by statutes to do so and
the courts will not interfere on matters which are addressed to the sound
discretion of government and/or quasi-judicial agencies entrusted with
the regulation of activities coming under their special technical knowl-
edge and training.3T
When President Aquino issued M.O. No. 415 conveying the land
covered by the Smokey Mountain Dumpsite to the National Housing
Authority as well as the area to be reclaimed across R-10, the convey-
ance implicitly carried with it the declaration that said lands are alien-
able and disposable. Otherwise, the NHA cannot effectively use them
in its housing and resettlement project. President Ramos made similar
conveyances to the NHA.
Apropos the requisite law categorizing reclaimed land as alienable
or disposable, R.A. No. 6957 as amended by R.A. No. 7718 provides
ample authority. While R.A. No. 6957 as modified by R.A. No. 7718
does not expressly declare that the reclaimed lands that shall serve as
payment to the project proponent have become alienable and dispos-
able lands and opened for disposition; nonetheless, this conclusion is
necessarily implied, for how else can the land be used as the enabling
component for the Project if such classification is not deemed made?r*
In brief, therefore, the present law is that lands of the public do-
main are classified into agricultural, forest or timber, mineral lands and
national parks. But who classifies lands? In Director of lnnds v. Court
of Appeals)' the Court said: "The classification of public lands is an
exclusive prerogative of the Executive Department of the Government
and not of the Courts. In the absence of such classification, the land
remains as unclassified land until it is released therefrom and rendered
open to disposition. This should be so under time honored Constitu-
"ltcptrhlit v. Mcnrkrz:r.(i.lt. No. 151727, March 2tt, 2fi)7
rn('lutvcz v. NllA,(i.R. No. l(r45?7,Arrgrrsl 15,2(X)7.
Dl?() s('l{A (rll()..lrrnc .1.t. l()ll,l.
1I9O TTIE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
tional precepts. This is also in consonance with the regalian doctrine
that all lands of the public domain belong to the State, and that the State
is the source of any asserted right to ownership in the land and charged
with the conservation of such patrimony." However, although the ex-
ecutive's power is exclusive, it is not inherent. The executive's power
to classify lands is delegated power given to him by C.A. No. 141. The
President exercises it upon the recommendation of the pertinent depart-
ment head.
As to forest lands, the President has been given the power to with-
draw forest reserves found to be more valuable for their mineral con-
tents than for the purpose for which the reservation was made and con-
vert the same into non-forest reserves. Unlike under earlier laws which
required concurence by the legislative body, all that is required now is
the recommendation of the DENR Secretary.{
The classification, moreover, is descriptive of the legal nature of
the land and not of what it looks like. Hence, for instance, the fact that
a forest land has been denuded does not by that fact mean that it has
ceased to be forest land.o' Classifications, besides, must be categori-
cal: that is,land is either completely agricultural or completely mineral
or completely forest or park. "The Court feels that the rights over the
land are indivisible and that the land itself cannot be half agricultural
and half mineral. The classification must be categorical: the land must
be either completely mineral or completely agricultural. In the instant
case, as already observed, the land which was originally classified as
forest land ceased to be so and became mineral and completely mineral
the mining claims were perfected. As long as mining operations
-wereonce
being undertaken thereon, or underneath, it did not cease to be so
and become agricultural, even if only partly so, because it was enclosed
with a fence and was cultivated by those who were unlawfully occupy-
ing the surface."o2
Finally, agricultural lands may be further classified by law accord-
ing to the uses to which they may be devoted.
In 2008, controversy arose over the classification of portions of
Boracay. The main issue in the Boracay land controversy was whether
4Apex Mining v. Southeast Mindanao Gold, G.R. No. 152613 and No. l-52628, Junc 23,
200/6.
arDirector of Londs v. Judge Aquino,'192 SCRA 296 ( I 990).
{?Rcpublic v. Court of Appcnh, l6o S('RA 22tt (l9tl8).
Sec.3 Sec.3 ART. XII - NATIONAL ECONOMYAND PATRIMONY 1l9l
private claimants had a right to secure titles over their occupied por-
tions of Boracay. The argument of the claimants was that earlier cases
had declared the lands agricultural and alienable. They relied mainly on
Ankron v. Government of the Philippine Islands,o3 a I9l9 case which
had declared the land being claimed as alienable. The reliance on the
case, however, was mistaken. Akron had been decided at a time when
judges had authority to decide on the nature of a land in dispute. But the
authority of the judge was only over land in dispute. Hence the deci
sion did not affect other lands even if their occupants could also go to
court and ask for a similar judgment. The claimants in the Boracay case
had not done that and they were overtaken by the law which gave the
authority to classify lands to the President. Hence the land they were
claiming was still unclassified public land.* (At the time of this writing.
December 2008, the case was still on appeal.)
2. Disposition of lands of the public domain.
The first rule established by Section 3 is that only agricultural lands
of the public domain may be alienated. All others are inalienable and
may be developed and utilized only according to the rules established in
Section 2. Until public land is classified into alienable land, it remains
inalienable. Thus, for instance, reclaimed foreshore and submerged ar-
eas in Manila Bay are inalienable until classified as alienable.o'
The second rule is that only public corporations and qualified indi-
viduals may acquire alienable lands of the public dom.rin. Corporations
can hold alienable lands of the public domain only by lease. This will
be discussed below.
The third rule establishes the size of the land which may be ac-
quired by individuals or leased by individuals or corporations.
The fourth rule limits the discretion of Congress to open public
lands for lease or acquisition.
0,4{) I'hil. to ( t9l9).
r{l)liNR Sccrctlry v. M:ryorYap, (i.R. No. 167707, October 8,200tt.
'r'('huvt:z v. l\rhlic listutcs Aullxrrily lnd Amari (irastal Bay (i)rporation, (i.R. No.
1.1.1250,.luly 9, l(X)1. Srr trl.vt l.lrrrt'l v. (ilrciir, Itl7 S('RA 797 ( |990) on lhc allcrn;rlcrl sulc ol
thc Roplxrrrgi l)r{rl)('r1y rrr lrrgrrrrr
lt92 THE 1987 CONSTITUTION Sec. 3
OF THE REPUBLIC OF THE PHILIPPINES
3. Disqualification of private corporations.
A radical departure from the 1935 Constitution made by the 1973
Constitution was the provision disqualifying private corporations from
acquiring lands of the public domain. This has been retained in the 1987
Constitution.
It should be noted that the ban on acquisition of alienable public
lands applies to private corporations.It does not apply to public corpo-
rations. The acquisition of alienable public lands therefore is now open
only to public corpoations and qualified natural persons. [t has been
said by Justice Aquino in lttuson Ayog v. Judge Cusia6 that one purpose
of this constitutional prohibition is to equitably diffuse land-ownership
or to encourage owner cultivatorship and economic family size farms
and thereby prevent the recurrence of huge land holdings by corpora-
tions or private persons. Or, as Justice Teehankee suggested in Republic
v. Judge Vllanueva and lglesia ni Kristo,aT it was aimed against undue
exploitation of our public lands and natural resources by large corpora-
tions. Apparently, however, these are not the only reasons, because the
same lglesia ni Kristo case and a companion MERALCO caseo8 refused
to corporations the right to acquire even small pieces of land.
4. From public agricultural land to private land.
While corporations cannot acquire land of thepublic domain, they
can acquire private land. Hence, it becomes important to determine
when land ceases to be of the public domain and commences to be pri-
vate. The answer to the question has evolved in recent years.
The first case to deal with this question was Manila Electric Com-
pany (MERALCO) v. Judge Bartolome.a' MERALCO, a private Fili-
pino corporation, had asked for confirmation of its title to two lots it
had acquired from private individuals. The land had been possessed
by MERALCO's predecessors before 1941 and was transferred to
MERALCO in 1976 after Section 3 [Section I I of the 1973 Constitu-
tionl took effect. MERALCO contended that since its private prede-
46118 SCRA492 (November 19, 1982).
rl 14 SCRA 875, 898 (June 29, 1982).
4 I 14 SCRA 799 (June 29, I 982).
4ll4 SCRA799 (June 29, l9tl2). Rcpuhlic v. Villanucvt, ll4 S('RA t{75 (.lrrrrc l(). l()tll)
antl Republic v. Judge (;onong. llll
S('RA 729 (Novcnrbcr 25, 198.f ). rrrsul lhe surrrt' rssut's :rrrl
wirs dccitlctl thc s:rrnc wrty.
Sec. 3 ART. XII NATIONALECONOMYAND PATRIMONY 1 193
-
cessors had possessed the property in concept of owner for more than
thirty years, the land had become private land and therefore segregated
from the public domain. The government, however, citing a long line of
cases, answered that since MERALCO's predecessors could show no
composition of title from the Spanish government nor possessory infor-
mation title nor any other means of acquiring public land such as pat-
ents or grants, there was no proof that the land had ceased to be public.
In upholding the position taken by the government the Court said:'o
This conclusion is supported by the rule announc ed in Oh
Cho v. Director of I'ands,75 Phil. 890,892, which rule is a com-
pendious or quintessential precis of a pervasive principle of public
land law and land registration law, that "all lands that were not
acquired from the government, either by purchase or by grant,,
belong to the public domain. Anexception to the rule would be any
land that should have been in the possession of an occupant and of
his predecessors-in-interest since time immemorial, for such pos-
session would justify the presumption that the land had never been
part of the public domain or that it had been a private property
even before the Spanish conquest." (Cariflo v. Insular Govern-
ment,212u.5.449,53 L. Ed. 594,41Phil. 935 and 7 Phil. 132).
Hence, the Court pointedly concluded that the act which segre-
gates the lot from the public domain is the actual grant of title: "hasta
que el titulo se expida no tenian el concepto juridico de ser los verdade-
ros duefios del terreno. ..."tt
The dissent of Teehankee, however, was persuasive. Citing a long
line of cases from 1909 to 1980 he showed the teaching of the Court
that pursuant to the Public Land Act'2
held the open, exclusive and unchallenged
[w]here a possessor has
possession of alienable public land for the statutory period pro-
vided by law (30 years now under the amendatory Rep. Act No.
1942 approved on June 22,1951),the law itself mandates that the
5o/d. at 806.
5tkl..dt807,citinguyUnv.Perez,7l Phil.508,5l0-ll.AbadSantosconcurredinthere-
sult arguing thar, while the land had been acquired by prescription, since the petitioners had relied
6n thc Plhlic l.an<l Act, thcy nrust bc k)ld that the use ofthe Public LandAct was not available
lo thcrn. ljt:rrrirnrlo. howcvcr. sairt that irr such casc, in ordcr to savc litigatitln time, let the suit be
consitlt'rt'rl rrs il lilcrl rrrt by Mlll{Al,('() lrrrt hy lltt'prctlcccssots-
'r/r/. rrt ll I I
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
possessor "shall be conclusively presumed to have performed all
the conditions essential to a Government grant and shall be en-
titled to a certificate of title" and "by legal fiction [the land] has
already ceased to be of the public domain and has become private
property...."
In fact the 1980 case of Herico v. Danhad said:53
As interpreted in several cases when the conditions as speci-
fied in the foregoing provision are complied with, the possessor is
deemed to have acquired, by operation of law, a right to a grant, a
government grant, without the necessity of a certificate of title be-
ing issued. The land, therefore, ceases to be of the public domain,
and beyond the authority of the Director of Land to dispose of.
The application for confirmation is a mere formality, the lack of
which does not affect the legal sfficiency of the title as would be
evidenced by the patent and the Torrens title to be issued upon the
strength of said patent.
In other words, the document, be it patent or Torrens title, which
evidences ownership is precisely that, evidence of ownership; it does
not grant ownership. The acquisition of ownership, from the tenor ofju-
risprudence, antedates the issuance of the evidence of ownership; else,
what would be there to evidence?
The latter case of Lauson Ayog v. Judge Cusiso can be read as ac-
cepting this position.In Inuson Ayog, the sales patent was issued in
August 14,1975, after the effectivity of the 1973 Constitution. In up-
holding the validity of the issuance the Court relied on a 1973 opinion
of then Secretary Abad Santos that where the applicant, before the con-
stitution took effect, had fully complied with all his obligations under
the Public LandAct in order to entitle him to a sales patent, there would
seem to be no legal or equitable justification for refusing to issue <tr
release the sales patent. The Court said that the corporation had alrcatly
acquired a vested right to the land and the 1973 prohibition was not
meant to be retroactive. It was perhaps for this reason that Justice Abarl
Santos, in MERALCO, concurred merely in the result on the tcchlricll
ground that the corporation could not appeal to the Public Larrtl Act
under the 1973 Constitution, thereby suggesting that thc corporlliorr
'\)5 S('RA 4.t7. 44.t 44,1.
1{lltt S('RA492 (Novt'rnhcl l(). l()tt,r)
Sec.3 Sec. 3 ART- XII - NATIONAL ECONOMY AND PATRIMONY
could look for other avenues of protecting its right. It was also for this
reason that both Justice Fernando and Justice Teehankee suggested that
if filed by
the Court consider the prayer for confirmation of title as the
predecessors of MERALCO.
MERALCO had also argued that it had acquired its predecessor's
right to perfect the title and that in effect it was the predecessors and
not MERALCO who were seeking perfection of the title. The argu-
ment would hold should the issuance of the title be understood merely
as the issuance of evidence of ownership and not as the operative act
which grants ownership. The predecessors of MERALCO could not by
contract confer on a private corporation a right which the constitution
withholds from private corporations.5s
The Court had occasion once more to examine the problem in
Director of Lands v. Intermediate Appellate Court.s6 After reviewing the
line of decisions on the subject, the Court concluded:s7
55It should be noted, however, that what is prohibited is acquisition of ownership; it does
not prohibit private corporations from holding alienable lands of the public domain by lease. The
constitution says that "private corporations or associations may not hold lalienablel lands of the
public domain except by lease." ln light of this, it is strange that Justice de Castro should argue
in his concurrences both in MERALCO and in lglesia thal even if the land were private, apivate
corporation could not acquire it because Section 14 [now Section 7] limits the right to acquire
privatelands to those "qualified to acquire or hold lands ofthe public domain." De Castro does
not seem to see that corporations, although not qualified to acquire lands of the public domain, are
qualified to hold lands of the public domain, by lease, and are therefore qualified to acquire private
lands.Id. at 812 and 884.
Finally, in his dissent in the lglesra case, id. at 885-886, Femando argued that the Iglesia ni
Kristo should be allowed to acquire the lot since denial would run counter to the prefened position
which the constitution gives to freedom ofreligion. He argued that freedom ofreligion has been
recognized in Victoriano v. Elizalde Rope Workers,59 SCRA 54 (1974), as superior even to the
obiectives of social justice and protection of labor also proclaimed by the constitution. But the Wc-
toriano case was not a simple case oflabor versus religion. It was a case ofa union's right to insist
on a closed shop agreement against an individual laborer's right both to work and to act according
to his belief. In effect, religion was used to bolster the individuat worker's right to work and right
to be protected in the spirit of social justice against a stronger union. What gives Femando's argu-
ment appeal, however, is that the land in question was a mere 313 square meters on which stood a
chapel. Perhaps what Fernando wanted was the reversal of the ruling in Register of Deeds v. Ung
Siu Si Temple,97 Phil. 58, to the effect that ownership of land is not essential to worship.
Fcrnando also argued that since Iglesia ni Kristo was a corporation sole and since the
Catholic church in Davao, another corporation sole, had been allowed to acquire private land in
Roman Cutholit' Administrator of Davao v. Innd Registration Commission, 102 Phil.596 (1957),
lo dcny thc samc right to lglcsia would constitute violation ofequal protection. It would indeed
hc 1 violaliorr ol'cqual l)rotccti()n il thc (lirtholic church were given such right today; but the cited
cilsc wils rlccirlctl in 1957 unrlcr il dillbr(rnl litw atrtl a dillercnt C'onstitution.
"'146 S('Rn 5O() (l)ctetttlx'r .l(), l()tl()).
'//r/. rrl 5.1.t.
lt96 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The Court, in the light of the foregoing, is of the view, and
so holds, that the majority ruling in Meralco must be reconsidered
and no longer deemed to be binding precedent. The correct rule, as
enunciated in the line of cases already referred to, is that alienable
land held by a possessor, personally or through his predecessors-
in-interest, openly, continuously and exclusively for the prescribbd
statutory period (30 years under The Public Land Act, as amended)
is converted to private property by the mere lapse or completion of
saidperiod, ipsojure.
5. Area limits on leases and acquisitions.
Private corporations are allowed to lease no more than one thou-
sand hectares. When it was asked what could be done about existing
leases in excess of the allowable limit, the answer given was that the
Transitory Provisions should contain a provision on reversion proceed-
ings.58 Nothing, however, is said about reversion proceedings in the
Transitory Provisions.
The allowable limit for lease by individuals is five hundred hect-
ares.
Acquisition by individuals is limited to twelve hectares.
Section l l,Article XIV, of the 1973 Constitution had provided that
no individual may acquire "by purchase or homestead falienable public
landsl in excess of wenty four hectares." This already was a modifica-
tion of Section 2, Article XIII, of the 1935 Constitution which provided
that no individual may "acquire such lands by purchase in excess of one
hundred and forty four he ctare s,. . . or by home stead in excess of nuenty
four hectares." The reduction had been made for the purpose of allow-
ing greater diffusion of land ownership. The 1987 Constitution has fur-
ther reduced allowable acquisition, whether "by purchase, homestead,
or grant" to twelve hectares. The addition of the word "grant" was in-
tended to take care of every mode of disposition of land.'o The radical
reduction in the allowable size is meant to open acquisition to as many
beneficiaries as possible. But applications for larger areas, if ovcrtakcrr
by the ratification of the new lirnitation in size, woulcl not be alTcctctl il'
'8lll Rli('()Rl) 51{l{ sll()
t"/(/. ill 5ll().
Sec. 3 Sec. 3 ART.XII_NATIONALECONOMYANDPATRIMONY II97
already perfected.6o Such a rule will conform with the decision in the al-
ready cited case of Director of Lands v. Intermediate Appellate Court.6l
Once title to alienable public land passes to a private individual, it
is segregated from lands of the public domain and becomes private land
subject to the rights of private ownership. Nevertheless, for reasons of
public interest, the state may follow such lands into private hands and
impose limitations on them. One such limitation is found in Section 122
of the Public Land Act, passed prior to the 1973 Constitution, which
says:
Except in cases of hereditary succession, no land or any
portion thereof originally acquired under the free patent, home-
stead, or individual sale provisions of this Act, or any permanent
improvement on such land shall be transferred or assigned to any
individual, nor shall such land or any permanent improvement
thereon be leased to such individual, when the area of such land,
added to that of his own, shall exceed one hundred and forty-four
hectares. Any transfer, assignment or lease in violation hereof shall
be null and void.
The purpose of this limitation, which harmonized with the maxi-
mum area allowed under the 1935 Constitution, was to insure the attain-
ment of the constitutional objective of preventing the concentration of
large tracts of land in the hands of a single individual. What effect did
the 1973 Constitution have on the maximum limit found in Section 122
of the Public Land Act?
The answer of the Supreme Court in Guiang v. Kintanar,6'? adopt-
ing the opinion of the Director of Lands, was that the maximum al-
lowed in Section 122 was amended by the 1973 Constitution and corre-
spondingly decreased to twenty-four hectares. (Following such ruling,
the law must once again be deemed amended by the 1987 Constitution.)
The case was decided in division and carried the support of only four
Justices. One took no part and Abad Santos in a single paragraph con-
cunence was not prepared to say that the Constitution had amended the
statutory limit.
i
Htld. at 596. There was no satisfactory answer to the question about those whose applica-
tions were not yet 1rcrlbctcd.'Ihere was nrention of having a transitory provision on the subject, but
I rxr such trnnsilory pnrvision was inclutletl.
J
nr
I 46 li( 'R A 5(X).
^tlO6 li('RA 4t).61 61 (.luly 25. l(fltl).
 1198 THE 1987 CONSTITUTION Sec.3
OFTHE REPUBLIC OFTHE PHILIPPINES
Agrarian reform laws may also further affect the allowable sizes.
Section 6 of Article XIII says: "The State shall apply the principles
of agrarian reform or stewardship, whenever applicable in accordance
with law, in the disposition or utilization of other natural resources,
including lands of the public domain under lease or concession.suitable
to agriculture, subject to prior rights, homestead rights of small set-
tlers, and the rights of indigenous communities to their ancestral lands."
Thus, even under the 1973 Constitution, a twenty-four hectare land ac-
quired from the public domain could be reduced to a smaller size if it
comes under limitations imposed by land reform laws.63
6. Discretion of Congress in development of alienable lands.
The second paragraph of Section 3 says: "Taking into account the
requirements of conservation, ecology, and development, and subject
to the requirements of agrarian reform, the Congress shall determine,
by law, the size of lands of the public domain which may be acquired,
developed, held, or leased and the conditions therefor." Thus, the dis-
cretion to determine how much of alienable public land may be opened
to private acquisition or lease is given to Congress
- but subject to the
"requirements of conservation, ecology, and development, and subject
to the requirements of agrarian reform."
7. Citizenshiplimitation.
The impression might be given that Section 3 opens utilization of
alienable lands to foreign individuals or foreign corporations because
Section 3 makes no mention of citizenship qualification. But alienablc
lands are part of the natural resources and the general rule on the uti-
lization of all natural resources can be found in Section 2. "With thc
exception of agricultural lands, all other natural resources shall not bc
alienated. The exploration, development, and utilization of natural re-
sources shall be under the full control and supervision ofthe State. Thc
State may directly undertake such activities, or it may enter into co-
production, joint venture, or production-sharing agreements with Fili-
pino citizens, or corporations or associations at least sixty per centunr
of whose capital is owned by such citizens. Such agreements may bc
for a period not exceeding twcnty-five years, renewable for not nrrlrc
than twenty-five years, and undor such terms and conditit)ns as lnly
ART. XII - NATIONAL ECONOMY AND PATRIMONY 1 I99
be provided by law." Thus, utilization of alienable land is open only to
those qualified under Section 2 andin the manner prescribed by Section
2. However, as already indicated in the discussion of Section 2, while
corporations may not lease inalienable lands, the tenor of the discus-
sion of Section 2 was that alienable lands are open to lease to qualified
corporations. The text of Section 3 clearly states that corporations may
hold alienable land by lease.
Src.4.Tnr CoNGRESS sITALLTAS sooN AS roSSIBLETDETERMINE
BY LAW THE SPECIFIC LIMITS OF FOREST LANDS AND NATIONAL PARKS'
MARKING CLEARLv rHEIR BoUNDAR.IEs oN THE cnouNn. TnsREAFfERt
SUCH FORFfT LANDS AND NATIONAL PARKS SHALL BE CONSERVED
AND MAy Nor BE TNCREAsED NoR DIMINISHED, Exccpr nv r,.lw. Tnr
Coxcnnss SHALL pRovIDE, FoR sucH rERIoDS As IT MAY DETERMINET
MEASURES TO PROHIBIT LOGGING IN ENDANGERED FORESTS AND IN
WATER.SHED AREAS.
1. Forest lands and parks.
This section deals with two classes of public land: forests and
parks. It reflects a concern about forests and the preservation ofnational
parks. Discretion, however, is given to Congress about what should be
done in terms of delimiting areas and time limits for exploitation. At-
tempts to fix the limits in the Constitution itself were resisted.s
That these two classes of land are dealt with together here should
not be understood to mean that logging may also be allowed in parks.
Once forest lands are converted into parks, logging may no longer be
permitted in the area.6s
Reclaimed land is public land. Before it can be registered as pri-
vate property it must be classified as alienable.66
Src. 5. Tnn Surn, suBJEcr ro rHE PRovISIoNS oF THIS
CoxsttrurroN AND NATIoNAL DEvELorMENT poLIcIEs AND PRocRAMst
SHALL PROTECT THE RIGHTS OF INDIGENOUS CULTURAL COMMUNITIES
TO THEIR ANCESTRAL LANDS TO ENSURE THEIR ECONOMIC, SOCIAL,
AND (]UIJTTIRAL WEI,L-BEING.
-.lar lll Rli('ORl) 25tt-259, 26(), 5|4-5tt5, 592'596.
"'/r/. rt 2-5t1.
*Rcprblic v. lirtt rso, ( i.l( . No l(r{) 145, Novt'tttlx't I I , l(X)5
l2m THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Tnn CoNcnESS MAy pRovrDE FoR THE AppLTcABILITy oF
CUSTOMARY LAWS GOVERNING PROPERTY RIGHTS OR RELATIONS IN
DETERMINING THE OWNERSHIP AND EXTENT OF ANCESTRAL DOMAIN.
1. Ancestral lands and ancestral domain.
There are two concepts used in Section 5: "ancestral domain" and
"ancestral land." The two concepts are distinct from each other and they
are defined by Section 3(a) and (b) of the Indigenous People's Rights
Act (IPRA), R.A. No. 8371, thus:
SECTION 3. a) Ancestral Domains.
- Subject to Section
56 hereof, refer to all areas generally belonging to ICCs/Ips com-
prising lands, inland waters, coastal areas, and natural resources
therein, held under a claim ofownership, occupied or possessed by
ICCs/IPs by themselves or through their ancestors, communally or
individually since time immemorial, continuously to the present
except when intemrpted by war,force majeure or displacement by
force, deceit, stealth or as a consequence of government projects
or any other voluntary dealings entered into by government and
private individuals/corporations, and which are necessary to en-
sure their economic, social and cultural welfare. It shall include
ancestral lands, forests, pasture, residential, agricultural, and other
lands individually owned whether alienable and disposable or oth-
erwise, hunting grounds, burial grounds, worship areas, bodies of
water, mineral and other natural resources, and lands which may
no longer be exclusively occupied by ICCs/IPs but from which
they traditionally had access to for their subsistence and traditional
activities, particularly the home ranges of ICCs/IPs who are still
nomadic and/or shifting cultivators;
b) Ancestral Innds.
- Subject to Section 56 hereof, re-
fers to land occupied, possessed and utilized by individuals, fami-
lies and clans who are members of the ICCs/IPs since time im-
memorial, by themselves or through their predecessors-in-interest,
under claims of individual or traditional group ownership, continu-
ously, to the present except when intemrpted by war,force majeure
or displacement by force, deceit, stealth, or as a consequcncc ol'
government projects and othcr voluntary dealings cntered into by
government and privatc inrlivicluals/corporati<lns, inclutling, hul
not limitcd to, rcsidcnli:rl klts, ricc lcrracers rlr parklics, priv:rlc firr-
csts, swidrlcn lirrrns irrll llct' krts.
Sec.5 Sec.5 ART.XII-NAIIONALECONOMYANDPATRIMONY I2OI
The phrase "ancestral domain" is thus a broader concept than an-
cestral lands. Ancestral domain is an all-embracing concept which re-
fers to lands, inland waters, coastal areas, and natural resources therein
and includes ancestral lands, forests, pasture, residential, agricultural,
and other lands individually owned whether alienable or not, hunting
grounds, burial grounds, worship areas, bodies of water and other natu-
ral resources. They include lands which my no longer be exclusively
occupied by indigenous cultural communities but to which they have
traditionally had access for their subsistence and traditional activities.
Ancestral land is a niurower concept. It refers to those held under the
same conditions as ancestral domain but limited to lands that are not
merely occupied and possessed but are also utilized by cultural com-
munities under the claim of individual or traditional group ownership.
These include but are not limited to residential lots, rice terraces or pad-
dies, private forests, farms and tree lots.
The ancestral lands referred to in Section 5 of the Constitution
include both those outside and those inside autonomous regions. For
the purpose of protecting indigenous cultural communities, the provi-
sion in effect authorizes Congress to prescribe how priorities are to be
determined in case of conflict between civil law and customary law.67
The law passed by Congress. R.A. No. 8371, was assailed as un-
constitutional on the ground that it deprived the State of its ownership
over lands of the public domain and the natural resources in them. The
vote of the Supreme Court on the subject, in Cruz v. Secretary,68 was
equally divided, 7-7 and therefore meant that validity was upheld.
The opinion defending constitutionality held the following: (1)
Ancestral domain and ancestral lands are not part of lands of the public
domain. They are private and belong to indigenous people. Section 5
commands the State to protect the rights of indigenous people. Carifio
v.lnsular Governmenfe recognized native title held by Filipinos from
time immemorial and excluded them from the coverage of iura regalia.
(2) The right of ownership granted does not include natural resources.
The right to negotiate terms and conditions over natural resources cov-
ers only exploration to ensure environmental protection. It is not a grant
of exploration rights. (3) The limited right of management refers to uti-
"/.\er lll RIi('()Rl) ul 257 25tt,
nN(i.R. No. I l5ltl5,l)ucrrrlrr'(r, )(XX)
,02t2 lls.4,19.
1202 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
lization as expressly allowed in Section 2,Arlicle XII. (4) What is given
is priority right, not exclusive right. It does not preclude the State from
entering into co-production,joint venture, or production sharing agree-
ments with private entities.
The opinion assailing the constitutionality of the law held the fol-
lowing: (1) the law amounts to an abdication of state authority over
a significant area of the country's patrimony; (2) it relinquishes full
control of natural resources in favor of indigenous people; (3) the law
contravenes the provision which says that all natural resources belong
to the state.
A significant aspect of the case was that the challengers were two
individuals, former Associate Justice Isagani Cruz and Cesar Europa,
suing as citizens and taxpayers, whereas the defenders of the law in-
cluded Senator Juam M. Flavier, one of the authors of the law, former
Commissiner Ponciano Bennagen of the 1986 Constitutional Commis-
sion and sponsor of the constitutional provision, various members of
indigenous tribes, various tribal associations, the Commission on Hu-
man Rights, and the Haribon Foundation.
Notable too is that Justice Mendoza voted to dismiss the petition
on the ground that the petition did not raise a justiciable controversy
and that petitioners did not have standing to question the constitutional-
ity of R.A. No.8371.
Snc.6. Tnr usr oF pRopERTy BEARS A socrAl FtiNcrroN,
AND ALL ECONOMIC AGENTS SHALL CONTRIBUTE TO THE COMMON
coon. IxnrvrDUALs AND IRIvATE GRoups, TNCLUDING coRpoRATIoNs,
CooPERATMS, AND SIMILAR COLLECTM ORGANIZATIONS, SHALL
HAVE TIIE RTGIIT TO OWN, ESTABLISH, AND OPERATE ECONOMIC
ENTERPRISES, SUBJECT TO THE DUTY OF THE STATE TO PROMOTE
DISTRIBUTIVE JUSTICE AND TO INTERVENE WHEN THE COMMON GOOI)
SO DEMANDS.
1. Lands and the common good.
Section 6 embodies guidelines which are applicable not only to
the utilization of land but to everything which, in an agrarian economy,
has special relevance to land. The Section in general is a rejection ol'
laissezfaire and adopts the principle of solidarity.T,,Thus, where needcd
r(r.Srr
lll R[i('ORl) lt 25?.25 1, )l l )'17,2t{] 21t4, lt5. tl(r
Sec.6 Sec.7 ART.XII-NATIONALECONOMYANDPATRIMONY I2O3
for the common good, the state may intervene in the operation, e.g., of
cooperatives.i'
Snc. 7. Srvr rN cASES oF ITEREDTTARv succEssloN, No PRIvATE
LANDS SHALL BE TRANSFERRED OR CONVEYED EXCEPT TO INDIVIDUALS'
CORPORATIONS, OR ASSOCIATIONS QUALIFTED TO ACQUIRE OR IIOLD
LANDS OF THE PUBLIC DOMAIN.
l. Meaning of "private lands."
For an understanding of Section 7, which substantially reproduces
Section 5 , Article XIII of the 1935 Constitution, and Section 14, Article
XIV of the 1973 Constitution, four questions must be answered: (1)
What is the meaning of "private lands" in the provision? (2) Who may
acquire private land? (3) What is the effect of the Parity Amendment of
1946 on Section 7? (4) What is the status of conveyances made in viola-
tion of Section 7 or its earlier counterparts?
Private land means any land of private ownership. This includes
both lands owned by private individuals and lands which are patrimo-
nial property of the State or of municipal corporations. By using the
term "private lands" as was used in the 1973 text, instead of the term
"private agricultural land" used in the 1935 text, Section 7 avoids the
confusion which occasioned the litigation in Krivenko v. Register of
DeedsJ2ln Krivenko, the Court had to decide whether the term "pri-
vate agricultural land" used in the 1935 Constitution included residen-
tial lands. The Court decided that "private agricultural land" meant any
private land which was neither timber nor mineral land. Section 7,by
modifying the 1935 provision, more clearly reflects the doctrine laid
down in Krivenko]'
2. Who may acquire private land?
The capacity to acquire private land is made dependent upon the
capacity to acquire or holdlands of the public domain. Private land may
be transferred or conveyed only to individuals or entities "qualified to
acquire or hold lands of the public domain."
'rl,a tlniorr l')lt'clric (\xrplitlivc v. Jtttlgc Yitrttn<ltt, (i.R No. ll7(X)l, I)occnrhcr 4, l9tl9
'r79 l)hrl.46l ( 1947).
"Scc lll l{lr('()lll) 5(Xr 5()-/.
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
This technique of making capacity to acquire private land depen-
dent upon the capacity to acquire or hold lands of the public domain
merely copies the language of earlier formulations. Hence, because
aliens were disqualified from acquiring or in any way holding lands
of the public domain (since the 1935 Constitution reserved the right
to participate in the "disposition, exploitation, development, or utiliza-
tion" of all "lands of the public domain" and "other natural resources
of the Philippines" for Filipino citizens or corporations at least sixty
per centum of the capital of which was owned by Filipinos), aliens,
whether individuals or corporations, were also disqualified from acquir-
ing private lands. The landmark case of Krivenko v. Register of Deeds,o
was founded on this constitutional dogma. Krivenko, as an alien, could
not "acquire" land of the public domain. Neither could he in any way
"hold" land of the public domain either by lease or concession, unless
such lease or concession was existing "at the time of the inauguration
of the Government established under this [1935] Constitution." Hence,
private land could not be transferred or conveyed to him.
The prohibition applies even to a regime of conjugal partnership
in a marriage. Thus, when husband and wife decide to buy land and the
husband is an alien, he does not have the right of a conjugal partner to
consent or not to consent to the disposition of the land. In Cheesman v.
Intermediate Court of Appeals,'5 the Court said:
... [a]ssuming that it was [the husband's] intention that the
lot in question be purchased by him and his wife, he acquired no
right whatever over the property by virtue of that purchase; and
in attempting to acquire a right or interest in land, vicariously and
clandestinely, he knowingly violated the Constitution; the sale as
to him was null and void. In any event, he had and has no capacity
or personality to question the subsequent sale ofthe same property
by his wife on the theory that in so doing he is merely exercising
the prerogative of a husband in respect of conjugal property. 1b
sustain such a theory would permit indirect controversion of thc
constitutional prohibition. If the property were to be declared con-
jugal, this would accord to the alien husband a not insubstantial
interest and right over land, as he would then have a decisive volc
as to its transfer or disposition. This is a right that the Constitution
does not permit him to have.
TaSupra, note 52
7t193 S('RA 93.
Sec.7 Sec.7 ART. XII - NAIIONALECONOMYAND PATRIMONY
... [e]ven if it were a fact that said wife had used conjugal
funds to make the acquisition, the considerations just set out mili-
tate, on high constitutional grounds, against recovering and hold-
ing the property so acquired, or any part thereof.
The time to determine whether the person acquiring land is quali-
fled is the time the right to own it is acquired and not the time to register
ownership. Thus, a foreign national who, while still A Filipino citizen,
acquired land from a vendor who had complied with the requirements
for registration under the Public Land Act (C.A. No. 141) prior to the
purchase, can validly register his title to the land.'u
Section 7, moreover, contains an exception: aliens may acquire
private land "in cases of hereditary succession." In Ramirez v. Vda. de
Ramirez, the Court had occasion to say: "We are of the opinion that the
constitutional provision ... does not extend to testamentary succession
for otherwise the provision will be for naught and meaningless."zz The
exception thus applies only to intestate succession. Thus, in hragoza
v. Court of Appeals,,8 where partition of the properties had been done
inter vivos, the Court ordered the collation of all properties in order to
determine whether a daughter who had become an American citizen
had been unlawfully deprived of her legitime.
When, however, an alien acquires land by hereditary succession,
such alien cannot renounce the right to inherit in favor of one who is not
qualifled. Thus in Halili v. Court of Appeals,,n S, an American citizen,
died leaving real properties in the Philippines. His forced heirs were his
widow, H, and his son, D, both of whom were American citizens. The
widow executed a deed of quitclaim conveying to D all her rights, titles
and interests in 6 parcels of lands she inherited from S. The Court held
that the quitclaim in favor of D was invalid. D could acquire land only
by hereditary succession.
T6Republic v. Court ofAppeals,235
SCRA 567 (1994)
'l I I SCRA 704,714 (February 15, 1982).
78G.R. No. 106401, September
29. 2000. See Art. 1080 of the Civil Code. The legitime of
compulsory heirs is determilred only afier collation. Article l06l says: "Every compulsory heir,
who sttccccds with othcr cotttpulsory hcirs, must hring into the mass of the estate any property or
right wlticlt ltc lttay ltavc tct:civcrl lrorn lhe rlccotlerrt, tluring thc lifctinrc of the latter, by way of
tlttttatiott, or rttty rtlhcr grirllril()us lillc irr orlcr lhnl it rrriry hcr conlputcd in thc detcrrrrirur(ion ol thc
lcgilrrrrc ol clt h lrt:ir, rrrtrl ilr llx. rrcrrrrrnt ol tlrt prulilion."
/'t i.lt. No. I I l5 lt). Mrrrt lr l'). lt,trlJ
r206 THE 1987 CONSTITUTION Sec.7
OF THE REPUBLIC OF THE PHILIPPINES
The story, however, did not end there. D eventually sold the lot to
C, a Filipino citizen. When the validity of the sale to C was challenged,
the Court reiterated an old doctrine to the effect that "if land is invalidly
transferred to an alien who subsequently becomes a citizen or transfers
it to a citizen, the flaw in the original transaction is considered cured
and the title of the transferee is rendered valid." The Court also rdpeated
the rationale behind this rule: Since the ban on aliens is intended to
preserve the nation's land for future generations of Filipinos, that aim is
achieved by making lawful the acquisition of real estate by aliens who
became Filipino citizens by naturalization.
It should be noted, also, that what is proscribed by the Constitu-
tion is the vesting of title to lands in favor of aliens. Hence, the prohi-
bition of Section 7 does not extend to lease of private lands to aliens.t,,
Similarly, a usufruct over land, although it is a real right, does not vest
title to the land in the usufructuary. Hence, usufructuary right over land
may be conveyed to an alien.s'
Moreover, the prohibition in the Constitution on aliens and alien
corporations applies only to ownership of land. It does not extend to all
immovable or real property as defined under Article 415 of the Civil
Code, that is, those which are considered immovable for being attached
to land, including buildings and construction of all kind attached to thc
soil.tu Thus, a foreigner may own a unit in a condominium because thc
prohibition on aliens is only from acquiring land. The land on whiclr
the condominium stands is owned by the condominium corporation.',
As to corporations, a foreign corporation may buy shares in cx.
cess of 407o of the shares of the corporation, but the effect would be tlurt
the corporation would lose its capacity to hold private land.*o
Finally, it should be remembered that the Ordinance appendctl to
the 1935 Constitution said that until final withdrawal of United Stntc;
sovereignty, Americans and American corporations enjoyed thc sirrrrc
civil rights as Philippine citizens. Americans and Amcrican corp()nt
tions therefore could validly acquire private land until July 4, 194(r."
899 Phil at 481.
811l
1 SCRA at 714.
8'?J.G. Summit v. C.A.,
G.R. No. 124293,Ianuary 31,200.s.
83Hulst v. PR Builders, G.R. No. 156364, Scptemher 25,2(X)lJ.
8aJ.G. Summit v. C.A., G.R. No. 1242()3, Jlnuary 3l 2(X)5.
,
ssMossv.Directorof Lands, ItOSC'Rn 2(rt)(l)cct:rrtllcr22,1977).lnl)irrttor ttl !.x,l.t,
Buyco,C.R.No.9llU9,Novcnthcr27, l()()2,thchcirsolirrrAnrcricrrrrcitizerrlrrilcrl toxlruwl16l
thcir prcdcccssor hatl ircqrrircrl titlc to tltt. lirrrtl.
Sec.7 ART. XII _ NANONAL ECONOMY AND PATRIMONY I2O'1
3. Can a Filipino corporation acquire land?
A Filipino citizen may acquire private land through any of the
modes of acquiring private property. May a Filipino private corpora-
tion, however, acquire private land? Under the 1935 Constitution there
was no doubt about the capacity of a Filipino private corporation to
acquire land because under the 1935 Constitution a private corporation
was capacitated to acquire alienable land of the public domain.s6 Under
Section 3, however, as also under Section 1 1 , Article XIV of the 1973
Constitution, private corporations can hold alienable lands of the public
domain only by lease. Does this mean that private corporations do not
have the capacity to acquire private land?
The answer must be that private corporations can still acquire pri-
vate land since Section 7 makes capacity to acquire private land de-
pendent on capacity to "acquire ar hold lands of the public domain."
The provision uses the disjunctive conjunction "or." Either capacity
to acquire lands of the public domain or capacity otherwise to hold
such land confers capacity to acquire private land. Private corporations
can "hold" lands of the public domain, albeit only "by lease." They are
thus not in the same position as aliens who cannot even "lease" land of
the public domain. Incidentally, when Justice de Castro suggested in
MERALCO and lglesia, already discussed under Section 3, that Section
7 [then Section 14] bars acquisition of private lands by corporations,
none of the other Justices noticed him except Teehankee, and only to
contradict him. Moreover, to date, sale of private lands to and between
private corporations is a thing of common occurrence.
Needless to say, the corporation must be a Filipino corporation.
In the absence of capital stock, the controlling membership should be
composed of Filipinos."
If it
be said that this reading of Section 7 can nullify the purpose
of the prohibition in Section 3 inasmuch as there is nothing to prevent
qualified citizens from transferring their private land to private corpo-
rations, suffice it to say that the historical purpose of Section 7 was to
close "the only remaining avenue through which agricultural resources
rnArliclcXlll, Scclion 2 ( l9l5).
rrllcrnturhrv.(irullol A;4nrls, I55S('RAll, I7(I9tl7).r'llingRcgistorol l)ccdsv.[Jng
Siu Si 'li'rnplc, r)7 I'hil 5tl, (r I
 1208 THE 1987 CONSTITUTION Sec.7
OF THE REPUBLIC OF THE PHILIPPINES
may leak into aliens'hands."" Or, as was held in phitippine Banking
Corporation v. Lui She,se it "is an expression of public policy to con-
serve lands for the Filipinos." Put negatively, it is not the purpose of
section 7 to prevent private land from leaking into the hands of private
Filipino corporations. Hence, a change in constitutional policy,on the
capacity of private corporations to acquire land of the pubtic domain
should not be construed to mean a change in the constitutional policy
on the capacity to acquire private land.The letter of the constitution
does not yield such a conclusion. Furthermore, to borrow the rhetorical
question of Quasha, which treated the parent provisions of Section 3
and Section 7 as expressions of distinct policies, when the text of Sec-
tion 3 was submitted for popular ratification, did the voters understand
that two sections of the Constitution were to be modified?{
4. Effect of Parity Amendment on Section 7.
The background of the question posed in the landmark case of
Republic v. Quashael was the Parity Amendment of 1946, which gave
to American citizens and corporations at least sixty per centum of the
capital of which was owned by Americans, participation in the dispo-
sition, exploitation, development and utilization of agriculture, timber
and mineral lands of the public domain and other natural resources of
the Philippines and in the operation of public utilities. Did this amend-
ment also give to Americans capacity to acquire land? The Supreme
Court handled the question thus:
Respondent Quasha argues that since the amendment per-
mitted United States citizens or entities controlled by them to ac-
quire agricultural lands of the public domain, then such citizens
or entities became entitled to acquire private agricultural land in
the Philippines even without hereditary succession, since said Sec-
tion 5 of Article XIII only negates the transfer or assignment of
private agricultural land to individuals or entities not qualified to
acquire or hold lands of the public domain. Clearly, this argument
of respondent Quasha rests not upon the text of the Constitutional
8879
Phil at473.
8e21
SCRA 52,65-66 (1967).
q)46
SCRAat 169. lt nray also bc pcrtincnl lo notc that thc changc rnadc irr Scctiorr I I 1l tlrc
1973 Constitutit)n was otlc ol thc lasl nrinrrlt'tlrarrgcs in thc linal tlrali ol thr: (\lrstittrtion wlir.lr
were never disctrsscd on thc (\rnvcnliorr llxrr.
"t ld.
Sec.7 ARI'. XII NAIIONAL ECONOMY AND PATRIMONY I2O9
Amendment but upon a lncrc inference therefrom. If it was ever
intended to create also an exception to Section 5 of Article XIII,
why was mention therein made only of Section I of Article XIII
and Section 8 of Article XIV and of no other? When the text of the
amendment was submitted for popular ratification, did the voters
understand that three sections of the Constitution were to be modi-
fied, when only two sections were therein mentioned?
5. Consequences of conveyances made in violation of Sec'
tionT.n'
The sale of private land made in violation of section 7 is null
and void. of this there is no doubt. Thus, an alien who buys a lot but,
knowing that he could not acquire land in the Philippines, registers it in
the name of his wife, may not, upon the dissolution of the community
of property, claim ownership of the land and reimbursement in equity
on the theory that the wife merely held the property in trust. To claim
equity the must come with clean hands.e3
Much of the litigation on this subject has centered around the
question whether the Filipino vendor may annul the sale and recover
the land sold. Jurisprudence on this subject has evolved two conflicting
lines of action.
The first line of action, established in Rellosa v. Gaw Chee Hun,"o
applied the pari delicto rule and disallowed a Filipino vendor from re-
covering land sold to an alien. The Court explained its position thus:es
The doctrine above adverted to is the one known as In Pari
Delicto. This is well known not only in this jurisdiction but also
in the United States where common law prevails. In the latter ju-
risdiction, the doctrine is stated thus: "The proposition is universal
that no action arises, in equity or at law' from an illegal contract;
no suit can be maintained for its specific performance, or to recov-
er the property agreed to be sold, or delivered, or the money agreed
to be paid, or damages for its violations. The rule has sometimes
been laid down as though it were equally universal, that where the
,,rsr? Scopa mo ErrrcTS oF THE QUXAT DtCtStON OU PnrvtrB Acnt'
Iit vn. " ANNrtrf.roN: Tnt
I ur.u tkAr. ! .tltt* At 1n trxt tt nt Aut:nn'tNs IJnnt:x rnt. Pmnv AutNoumr," 46 SCRA 180-259 (1972)'
"'Mullcr v. Mrrllcr, (i.l{. No. l'l()6l5,August 29,2006.
,r9 i I'lril t{.r7 ( l{)5 I )
'"/,/ rrl ll l l t.
I2T2 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
It should also be noted that the reversal of Rellosa in Lui
not couched in terms that sweep in all cases of sale to aliens. The Court
said: "To the extent that our ruling in this case conflicts with that laid
down in Rellosa v. Gaw Chee Hun and subsequent similar cases, the
latter must be considered pro tanto qualified."ee Lui She singled out two
reasons for not applying the pari delicto rule: (1) the original parties
guilty of the violation had already died and had been succeeded by ad-
ministrators to whom it would have been unjust to impute guilt, and (2)
recovery would enhance the declared public policy of preserving lands
for Filipinos. Hence, in the case of sales to aliens other than Ameri-
cans, Lui Slle does not exclude the possibility of barring recovery by
the Filipino vendor where the buyer has acquired Philippine citizen'
ship or where the land has come to the hands of a qualified transferee
in good faith.'oo Thus, where the Chinese buyer subsequently became a
Filipino citizen, the seller was not allowed to recover because in such
a situation the aim of keeping land in the hands of Filipinos would not
be thwarted.ro' Using the same argument, the Court did not allow the
original seller to recover where the Chinese buyer had sold the land to
a Filipino.'o' Moreover, because of res iudicata,the Lui She rule cannot
be applied to final judgments before Lui She;03
The Court has reiterated the doctrine that the transfer to a Filipintr
of land illegally acquired by an alien cures the prior illegality.'* As held
in Chavezv. Public Estates Authority:
Thus, the Court has ruled consistently that where a Filipino
citizen sells land to an alien who later sells the land to a Filipino,
the invalidity of the first transfer is corrected by the subsequent
sale to a citizen. Similarly, where the alien who buys the land sub-
sequently acquires Philippine citizenship, the sale was validated
since the purpose of the constitutional ban to limit land ownership
to Filipinos has been achieved. In short, the law disregards the
constitutional disqualification ofthe buyer to hold land if the land
is subsequently transferred to a qualified party, or the buyer him-
self becomes a qualified party.
eId.
lmSee Annotation,46 SCRA 186,232 3.
rorVasquez v. Giap, 96 Phil. 447 ( I 955 ).
'0zSarsosavda.deBarsobiitv.('ttcncrr, ll.lS('Rr\547,551(Aplil l(), l()ttrl)
l"'[,ee Bun'Iing v. Aliglcn, ?6 li('ltA 4l{r (M:ry 4, l9'l]\.
"'altt'public v. Rcgisler ol l )cctls, ( i.ll No. l Sltll lO, .lrrly l 6.
Sec.7 Sec.8 ART. XII - NAT'IONALECONOMYAND PAIRIMONY 1213
'Sfte
was Snc.8. NorwrnsuNuNc rHE pRovrsroNs
or SncrroN 7 or
tgls Anucr,B, A NATURAL-BORN crrrznN oF TIIE Pnrr,rpprNns wHo
HAs Losr nrs Pnrr,rpprxn' cITIzENsHIp MAy BE A TRANSFEREE oF
PRIYATE LANDS, SUBJECT TO LIMITATIONS PROVTDED By LAW.
1. Exception for former Philippine citizens.
A 1981 amendment to the 1973 Constitution created another ex-
ception in favor of "a natural-born citizen of the Philippines who has
lost his citizenship." He or she "may be a transferee of private land, for
use by him as his residence, as the Batasang Pambansa may provide."'o'
This is now embodied in Section 8. The 1987 provision, however, no
longer contains the phrase "for use by him as his residence." Has this
changed the meaning of the law?
The original Committee report on the subject put down the excep-
tion as being "solely for residential purposes, not to exceed an area of
one thousand square meters."r06 In response, however, to clamor from
former Filipinos who were living abroad and who expressed a wish now
not only to own residential land but also to participate in the develop-
ment of the country, the strict requirement that the exception be only
for residential purpose and up to an area not exceeding one thousand
hectares was deleted. Instead, the matters of both purpose and area were
left for the discretion of Congress to determine.'.7
The cunent law on the subject is Section 5 of R.A. No. 8179,
amending Section 10 of the Foreign Investments Act, says:
"Other Rights of Natural Born Citizen Pursuant to the Pro-
visions of Article XII, Section 8 of the Constitution. Any [for-
merl natural born citizen who has the legal capacity to enter into
-
a contract under Philippine laws may be a transferee of a private
land up to a maximum area of five thousand (5,000) square meters
in the case of urban land or three (3) hectares in the case of rural
land to be used by him for business or other purposes. In the case
of married couples, one of them may avail of the privilege herein
granted: Provided, That if both shall avail of the same, the total
area acquired shall not exceed the maximum herein fixed.
r"'Arliclc XlV, Scction l5
( 197 l)
r(rlll lil('( )l{) :t5 | .
i)(X)tt. r'r'lr/. rtl .15(r, ,15(r, (rO t (rO4
l2t4 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
case the transferee already owns urban or rural land for
"In
business or other purposes, he shall still be entitled to be a transfer-
ee of additional urban or rural land for business or other purposes
which when added to those already owned by him shall not exceed
the maximum areas herein authorized.
"A transferee under this Act may acquire not more than two
(2) lots which should be situated in different municipalities or cit-
ies anywhere in the Philippines: Provided,That the total land area
thereof shall not exceed five thousand (5,000) square meters in the
case of rural land for use by him for business or other purposes' A
transferee who has already acquired urban land shall be disquali-
f,ed from acquiring rural land area and vice versa."
During the debates of the 1986 Constitutional commission com-
missionerAmbrosio Padilla vigorously argued for making an exception
in favor of foreign investors engaged in the manufacture of products
for export. The strong objection to the proposal was that there was no
demonstrated correlation between the influx of foreign investors and
their capacity to own land, and that the preservation of natural resources
for Filipinos should not be compromised. The proposal was rejected by
a vote of 27-8.16
aliens cannot acquire private land, may they lease private land?
If
A division of the Court in Lantino v. Co Llong Chongt\e said that a lease
for a reasonable period of time is valid. Then the Court in an obiter
dictum added:"0
The only instance where a contract of lease may be consid-
ered invalid is if there are circumstances attendant to its execu-
tion which are used as a scheme to circumvent the constitutional
prohibition.
If an alien is given not only a lease of, but also an option to
buy, a piece of land, by virtue of which the Filipino owner cannot
sell or otherwise dispose of his property, this to last for 50 years'
then it becomes clear that the arrangement is a virtual transfer of
ownership whereby the owner divests himself in stages not only of
the right to enjoy the land (ius possidendi, jus utendi, jus .fruendi,
and ius abutendi) rights, the sum of which make up owncrship'
- added thc powcrs and functions vested in the NEDA by the Integrated
'08/d. at 598-6Oj.
r(e
I 88 ccRA 592 ( l9q))
rr"/r/. at 5()7.
Sec' 8 Sec.9 ART.XII - NATIONALECONOMYANDPAIRIMONY rzts
It just as if today the possession is transferred, tomorrow the use,
is
the next day disposition, and so on, until ultimately all the rights of
which ownership is made up are consolidated in the alien.
SBc. 9. Tsr CoNcnEss MAy EsrABLrsH AN TNDEpENDENT
EcoNoMIc AND ILANNING AGENCv HEADED By rHE Pnrsmrnt,
WHICH SHALL, AI-rER CONSUI_:IATIONS WITH THE APPROPRIATE PUBLIC
AGENCIES, VARIOUS PRTVATE SECTORS, AryD LOCAL GOVERNMENT
uNITs, RECoMMEND To CoNcnrss, AND IMILEMENT coNTINUING
INTEGRATED AND COORDINATED PROGRAMS AND FOLICIES FOR
NATIONAL DEVELOPMENT.
Ur.iru, CoNcRESS pRovrDEs orHERwrsE, rrm Narron.ll,
Ecor.lourc lNn Dnvnr,opurnr Atrrnonrry SHALL FUNCTIoN As rHE
INDEPENDENT PLANNING AGENCY OF THE GOVERNMENT.
1. The National Economic and Development Authority
(NEDA).
Section 1, Article XIY of the 1973 Constitution commanded the
Batasang Pambansa to establish a national economic and development
authority, chaired by the President, which would be the central plan-
ning agency of the government and. Such a body was empowered by
the Constitution to recommend to the legislature, "after consultation
with the private sector,local government units, and appropriate public
agencies, continuing, coordinated, and fully integrated social and eco-
nomic plans and programs." Eventually the present National Economic
and Development Authority, NEDA, was created by Presidential De-
cree No. 107 issued on January 24,1973. Section 1 of the decree said
that the body shall "be composed of the President as Chairman, the
Executive Secretary, the Director General of the Authority, the Secre-
tary of Finance, the Secretary of Agriculture and Natural Resources, the
Secretary of Trade and Tourism, the Secretary of Public Works, Trans-
portation and Communication, the Secretary of Labor, the Secretary of
Education and Culture, Governor of the Central Bank, Commissioner
of the Budget and Chairman of the Board of Investments as members,
and who shall hold office at the pleasure of the President." To the pow-
ers vested in the NEDA by the Constitution, Section 3 of the decree
Rcorganizati<ln Plan "antl such othcr functions as may be provided in
inrplcnrcrrtilrg prcsitlcrrliirl tlcerccs or ordcrs to thc cxtcnt that thc same
lnity tx)l trr: ittcotttpitlihlc rlr in conllicl with thc corrstiluli<lnirl lrrirntlllt:."
1216 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The new Constitution has made the creation of such an agency
optional. Commissioner Villegas explained that there was "a consen-
sus in the committee that an economic planning agency should not be
constitutionalized since formal economic planning is not an indispens-
able part of managing the national economy.""' Commissioner Monsod
added that "if we are going for less government and more private sec-
tor initiative, later on it [might] not be necessary to have a planning
agency.',l:2 It was for these reasons that the provision on the subject
*ur ."l"gut"d from its prominent position in Section I under the 1973
Constitution to Section 9 of the present document.
until congress provides otherwise, the present NEDA will con-
tinue as the central planning agency which is recommendatory to Con-
gress. While it is independent of Congress, it is under the President and
dependent on the President who chairs the body."3
Snc. 10.
TnB Coxcnnss SHALLT uPoN RECoMMENDATIoN
OF THE ECONOMIC AND PLANNING AGENCY' WHEN THE NATIONAL
TNTEREST DICTATEST RESERVE To crrIzENS oF THE Prm'pprxrs on
TO CORPORATIONS OR ASSOCIATIONS AT LEAST SIXTY PER CENTUM
oF wHosE CAPITAL rS OWNED BY SUCH CITTZENSt OR SUCH HIGHER
rERcENTAGE as Coxcnsss MAY PRESCRIBET cERTAIN AREAS oF
TNvESTMENTs. Tnp CoNcnEss sITALL ENACT MEASURES THAT wILL
ENCOIIRAGETHEFORMATIONANDoPERATIONoFENTERPRISESwHoSE
Fllrpnos.
cApITAL IS wHoLLY owNED nv
In rnB GRANT oF RIGHTST PRTvILEGEST AND coNCEssIoNs
covERrNG THE NATIONAL EcoNoMY AND PATRrMolv, nrn Smrr
sITALL GIvE PREFERENCE To QUALTFIED Frr,rprnos'
Tnn Surr sHALL REGULATE AND ExERCISE AUTHoRITY ovt'lR
FOREIGNINVESTMEI{TSWITHINITSNATIONALJURISDICTIONANDIN
ACCORDANCE WITH ITS NATIONAL GOALS AND PRIORITIES.
1. Filipinization of areas of investment.
That particular areas of business may be Filipinized without tkr
ing violence to thg equal protection clause of the Bill of Riglrts is u
principle which was definitively recognized in the llndmapk c:tsc 1l
Sec. 10 ART. XII - NATIONALECONOMYAND PAIRIMONY 121'I
Ichong v. Hernandez.llo T\e Ichong case upheld the Filipinization of
the retail trade. Ichong recognized the discretionary authority of Con-
gress to Filipinize areas of investment provided that the traditional re-
quirements for valid statutory classification are observed. In the 1935
Constitution, there was no executive check on this area of legislative
discretion beyond the possibility of a veto. The 1973 counterpart of this
provision read: "The Batasang Pambansa shall, upon recommendation
of the national economic and development authority, reserve to citizens
of the Philippines or to corporations or associations wholly owned by
such citizens, certain traditional areas of investment when the national
interest s6 dig121gs."tts
The first sentence ofthe present Section 10 essentially repeats the
1973 provision. The 1987 provision has deleted the adjective "tradi-
tional." The adjective was deleted because it was considered ambiguous
and could unduly limit the discretion of Congress in the choice of areas
of investment to limit to Filipinos. Moreover, the rule was also intended
to govern the conversion of foreign debt into equity."u
Can Congress move in the direction of Filipinization without the
recommendation of an executive economic planning agency. When
Commissioner Davide inserted the phrase "upon the recommendation
of the economic and planning agency," he intended to make the clause
a limit on the power of Congress. Commissioner Villegas, speaking for
the Committee, accepted the amendment and its intent.'7 But both Da-
vide and Villegas said that the agency referred to was the economic
and planning agency in Section 9. It should be noted, however, that the
agency in Section 9, as already explained, may be dispensed with by
Congress! Hence, the conclusion must be that the discretion of Con-
gress on this subject is as broad as that sanctioned inthe lchong case.
The second sentence ofthe first paragraph ofSection 10, after an
initial tie vote, and although the sentence is unnecessary, was accepted
by the sponsoring Committee "for the soke of unity.""'
The second paragraph commands the state to give preference
to qualified Filipinos in the grant of rights and privileges and this,
-
"4tol l,hit. I I55 (t957).
r''Arliclc XlV, Scctiorr ,l ( 197])
lr"lll Rli('()Rl) )6t).218 27.).
r!r/r/. rrl
({)ll (r{l()
rrNlV Rlr('()Rl).t l,l .) llr
1218 THE 1987 CONSTITUTION Sec. I I ART. XII - NAIIONAL ECONOMYAND PATRIMONY t2t9
OF THE REPUBLIC OF THE PHILIPPINES

provided that the Filipino is "qualified," even if a foreigner is "more The third paragraph ofSection 10 has reference both to the regu-
eu&lified."ttq lation of the entry of foreign investments and to regulation of foreign
investments already in place. The regulation of foreign investments al-
This provision became the deciding factor in Manila Prince Ho-
ready in place can take the form, for instance, of divestment schemes
tel v. Government Service Insurance System.l2o In the bidding for the with due regard for just compensation.r22
purchase of the GSIS shares in Manila Hotel, a Malaysian corporation
guu" u higher bid. The Malaysian corporation argued that, since the
Src. 11. No rn*lcrnsn, cERTrFrcATE, oR ANy orHER FoRM
first and third paragraphs of Section 10 were clearly no self-executory, OF AUTHORIZATION FOR THE OPERATION OF A PUBLIC UTILITY
the second paragraph should also be understood as not self-executory. sHALL BE GRANTED ExcEpr ro crrlzrNs oF TIrE Pnrr,rpprxns on ro
The sale, however, was given to a Filipino corporation. The Court said: CORPORATIONS OR ASSOCIATIONS ORGANIZED UNDER THE LAWS OF
.,A constitutional provision may be self-executing in one paft and non-
rnn Pnrr,rpprNEs AT LEAST slxry pER 1ENTUM or wHosr CApITAL Is
self-executing in another." The Court said that the second paragraph owNED By SUCH CITIZENS, NOR SHALL SUCH FRANCHISE, CERTIFICATE
was ,.a mandatory, positive command which is complete in itself and OR AUTHORIZATION BE EXCLUSIVE IN CHARACTER OR FOR A LONGER

which needs no further guidelines or implementing laws or rules for its

pERIoD THAN Flrry yEARs. Nrrrnrn SHALL ANy sucH FRANCHISE oR

enforcdment. From its very words the provision does not require any
legislation to put it in operation. It is per sejudicially enforceable."
When, however, the General Agreement on Tariffs and Trade was
challenged in Tafiada v. Angaratzt as an unconstitutional treaty for plac-
ing foreign investors on the same level as Filipinos, the Court attempted
RIGHT BE GRANTED EXCEPT UNDER THE CONDITION THAT IT SHALL BE
To AMENDMENT, ALTERATION, oR REIEAL By rHE Concnrss
SUBJECT
wHEN THE coMMoN GooD so Rrqurnns. Trm Smrt su.l,r,r, pNcouRAGE
EQUITY PARTICIPATION IN PI,JBLIC UTILITIES BY THE GENERAL PUBLIC.
Tno plnttcplrroN oF FoRErcN TNvEST0RS IN THE GovERNING BoDy
OF ANY PUBLIC UTILTTY ENTERPRISE SHALL BE LIMITED TO THEIR

to distinguish the two cases saying that the provision was mandatory PROPORTIONATE SHARE IN ITS CAPITAL, AND ALL TIIE EXECUTIVE AND
MANAGING OFFICERS OF SUCH CORPORATION OR ASSOCIATION MUST BE
and enforceable "only in regard to 'the grant of rights, privileges and
cITIzENs oF TIIE Pnrr,rpprnns.
concessions covering national economy and patrimony' and not to ev-
ery aspect of trade and commerce." The suggestion was that there are
,*" urp""ts of trade and commerce which do not form part of the 1. Public utilities.
national economy! No reason was given for the attempted distinction. Iloilo lce and Cold Storage Co. v. Public Utility Board},, defined
The Court simply sidestepped the issue saying: "The issue here is not a public utility as a utility corporation which renders service to the gen-
whether this paragraph of Section 10 of Article XII is self-executing or eral public for compensation. Its essential feature is that its service is
not." That, after all, had been settled in Manila Prince. But the Court not confined to privileged individuals but is open to an indefinite public.
continued: "Rather, the issue is whether, as a rule, there are enough The public or private character of a utility does not depend on the num-
balancing provisions in the Constitution to allow the Senate to ratify ber of persons who avail of its services but on whether or not it is open
the Philippine concurence in the WTO Agreement. And we hold that to serve all members of the public who may require it. It is "a business
there are." In other words, the Senate may play around with a manda- or service engaged in regularly supplying the public with some com-
tory provision through a balancing of values. It is difficult to avoid the modity or service of public consequence such as electricity, gas, water,
.urpLion that this was the Court's "infallible" way of distancing itsell' transportation, telephone or telegraph service."r24 Definitions of "public
from the sharply divided decision in Manila Prince.
frtlV Rll('()Rl) 226-2.10.hr Gun'ia v. Fl-ret.utive Secretury, G.R. No. l(X)83, Dcccmbcr 2.
1991,thctottslilttliotutlilyol lt.A.No.7042,thclrorcignInvcstmcn(Lawwaschallcrrgcrl. lkrw
ilqilt RECORD 616. cvcr, tlrc tltrlrrrlr wrrs lrrrllcly orr tlrr. wrsrkrrrt ol lhc luw. lt wus uphcld irs vtlid.
tr('(i.R. No. 12215(r, l;ebrrrirry I' l()()'7 rr',14 I'lril.111 ( l9l l).
rrr(i.R. No. llt{2()5, Mrry l, lt)()./. rrr l /1 {('lt A trt,t,l0. lrxrtnote l, tltlrtt,tli Anr. Jur, 2tl V. 64, 1r. 54r).
1220 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
utility may also be found in statutes. Section 13(b) of the Public Service
Act, implementing the counterpart provision in the 1935 Constitution,
says:
The term "public service" includes every person that now
or hereafter may own, operate, manage, or control in the Philip-
pines, for hire or compensation, with general or limited clientele,
whether permanent, occasional or accidental and done for general
business pulposes, any common carrier railroad, street railway, ...
and other similar public services. ...
And R.A. No. 387, the Petroleum Act, in Section 7 says:
Petroleum operation a public utility. - Everything relating
to the exploration for the exploitation of petroleum which may
consist naturally or below the surface ofthe earth, and everything
relating to the manufacture, refining, storage, or transportation by
special methods of petroleum, as provided for in this Act, is hereby
declared of public utility.
Thus, a public utility under the Constitution and the Public
Service Law is one organized "for hire or compensation" to serve
the public. Under this definition, PETRON, the refining company
of the government, was not considered a public utility coming un-
der Section I I because it does not engage in oil refining for hire or
compensation.t25
Section 13(b) of C.A. No. 146 defines a public utility thus:
The term public service' includes every person that now
or hereafter may own, operate, manage, or control in the Philip-
pines, for hire or compensation, with general or limited clientele,
whether permanent, occasional or accidental, and done f<lr general
business purposes, any common carrier, railroad, street railway,
traction railway, sub-way motor vehicle, either for fieight or pas'
senger, or both with or without fixed route and whether may hc
its classification, freight or carrier service of any class, cxprcss
service, steamboat or steamship line, pontoons, fbrries, ancl wit'
ter craft, engaged in the transp<lrtation of passengers or frcighl ol'
both, shipyard, marine railways, ntat'itte repair shop, lw:ttchottscl
wharf or dock, ice plant, icc-rcliigcration plant, citnitl, irrigitliorr
r)rRlgntsing v. ('otrrrrillcc on llrvrti/lrtior ;rrrl I'lrilippirtc Ntliottrtl ()il
No. I l2 !()(),.luly 14, l()95.
Sec. I I Sec. l1 ART. XII - NAIIONALECONOMYAND PATRIMONY t22l
system, gas, electric light, heat and power water supply and pow-
er, petroleum, sewerage system, wire or wireless communications
system, wire or wireless broadcasting stations and other similar
public services: Provided, however, That a person engaged in agri-
culture, not otherwise a public service, who owns a motor vehicle
and uses it personally and/or enters into a special contract whereby
said motor vehicle is offered for hire or compensation to a third
party or third parties engaged in agriculture, not itself or them-
selves a public service, for operation by the latter for a limited time
and for a specific purpose directly connected with the cultivation
of his or their farm, the transportation, processing, and marketing
of agricultural products of such third party or third parties shall
not be considered as operating a public service for the purposes
of this Act.'26
Article XII, Section 11 does not determine who may grant public
utility franchises.It is only about the capacity to acquire a public utility
franchise. As to the authority to grant franchises, Congress certainly has
it but Congress may also delegate the authority to government agencies.
As the Court said in Albano v. Reyes:t27
Franchises issued by Congress are not required before each
and every public utility may operate. Thus, the law has granted
certain administrative agencies the power to grant licenses for or
to authorize the operation of certain public utilities. (See E.O. Nos.
172 and2O2)
That the Constitution provides in Art. XII, Sec. 11 that the
issuance of a franchise, certificate or other form of authorization
for the operation of public utility shall be subject to amendment,
alteration or repeal by Congress does not necessarily imply, as
petitioner posits, that only Congress has the power to grant such
authorization. Our statute books are replete with laws granting
specified agencies in the Executive Branch the power to issue such
authorization for certain classes of public utilities.r28
r2oUnder this definition a shipyard
is considered a public utility. J.G. Summit Holdings v.
Court of Appeals, G.R. No. 124293, November 20,2O0O.
,,t75 SCRA 264,27t (19t19\.
rr8l,)xarnples ol'such agencies are: l.
The Land Transportation Franchising and Regula-
klt'y lltxrrtl crcrrttxl rrnrlt:r'Ii.(). No.2O2, which is enrpowered kr "issue, amend, revise, suspend
ot't':tttt:t'l ( i'ttilieitlcs ol l\rblit ( irnvcrrierrt't' or' perrnits aulholizing thc operation of, public land
('orrrlttrtry, (l l{ lr:urslx)rlirli()n scrvirt's prrvitk'rl lry rrrolorizt'rl vclrielcs. rrrul lo lllcscriht: tht: appn4rrialc lt:rrns anrl
t tttrliltotts lltcttlot " lScr' \tlr)l .) I ltt' llrrlrl ol llttt.t'1.1y, rrcolslilrtlerl irrtg l11. llncrgy Rctr'.rrllrlgry
1222 THE 1987 CONSTITUTION Sec. 10
OF THE REPUBLIC OF THE PHILIPPINES
Except for the substitution of "common good" for the "public in-
terest" in the second sentence, and except for the last clause about ex-
ecutive and managing officers, Section 11 is the same as Section 5 of
Article XIV of the 1973 Constitution. In turn, the t973 provision sim-
ply restated Article XIV Section 8 of the 1935 Constitution, except for
the provision on equity participation of the public and that on foreign
participation in the governing body.
This Filipinization provision is one of the products of the spirit
of nationalism which gripped the Constitutional Convention of 1935.''n
It provides for the Filipinization of public utilities by requiring that
any form of authorization for the operation of public utilities should
be granted only to "citizens of the Philippines or to corporations or as-
sociations organized under the laws of the Philippines at least sixty per
centum of the capital of which is owned by such citizens." The provi-
sion is a recognition of the sensitive and vital position of public utilities
both in the national economy and for national security."o
For the purpose of this provision, a corporation or association is
considered Filipino if (l) it is organized under Philippine laws and (2)
at least sixty per centum of its capital is owned by Filipino citizens. In
defense of the retention of the 60-40 proportion of the 1935 Constitu-
tion Delegate Siguion-Reyna explained: "We acted on the recommen-
dation of the Committee on Foreign Investments. It was the feeling ol'
the committee, after we took up the Committee on Investments, that it
will be healthier for the country to attract foreign investments. We havc
the feeling thatT|% is already equivalent to t007o anyway'"r3r
Efforts in the 1986 Constitutional Commission to reduce allow-
able foreign participation in public utilities to less then forty perccnt
failed after much warm debate, which included the hottest emotionitl
outburst ever in the entire course of the Commission deliberations."l
Board created under E.O. No. 172, is empowered to license refincrics and rcgula(c tlrtrit t'ttplttt
tics and tg issue certificates of public convenience for the operation ol elcctric prlwcr rrlililics lrxl
scrviccs, except electric cooperativcs (Scc.9ltll and [el, P.D. No. l2(]6).
rr"Bt:nrvns.A Htstttnrcn.nvoJttttttttt'tv.sttutvot rurltnntrnutlJtt.t.ot Rtt;ttrs4l(lt)lll.
I'osrnith,llcll and(ir.v.Nutivitlltl,,l0 l'lril. I.16, l4tl(l9l());l,ttzottSlcvctkrtittg(ittltottt
tron v. Anti-l)urrtmy lloard,4(r S('RA 474.49O ( 1972).
rrrScssiott
ol Nttvctttlx:r 15, 197.1.
r''lll l{l('( (r5O O(r5.
)RI)
ART. XII - NATIONAL ECONOMYAND PATRIMONY 1223
It should be noted, however, that the Constitution does not pro-
hibit the mere formation of a public utility corporation without the re-
quired proportion of Filipino capital. ln People v. Quasha,t33 the Su-
preme Court said:
What it does prohibit is the granting of a franchise or other
form of authonzation for the operation of a public utility already in
existence but without the requisite proportion of Filipino capital.
This is obvious from the context, for the constitutional provision in
question qualifies the terms "franchise," "certificate" or "any other
form of authonzation" with the phrase "for the operation of a pub-
lic utility," thereby making it clear that the franchise meant is not
the "primary franchise" that invests a body of men with corporate
existence but the o'secondary franchise" or the privilege to operate
as a public utility after the corporation has duly come into being.
The Court also added: "The moment for determining whether a
corporation is entitled to operate as a public utility is when it applies
for a franchise, certificate, or any other form of authorization for that
pufposs."t:+ The more recent case of Thtad v. Garcia, "/r.'3s said the same
thing when it held that a foreign corporation could construct and own
the facilities for a light rail transit system but it may not be given the
franchise to operate the system.
Does the statement in Quasha mean that subsequent loss of the re-
quired 60-40 proportion through transfer of shares can no longer affect
the validity of the original franchise? It is submitted that this srarement
of the Court must be taken in the context of the case. Quasha was a
criminal prosecution for falsification in that the accused filed the arti-
cles of incorporation of Pacific Airways Corporation without revealing
that its capitalization was less than sixty per centum Filipino. The deci-
sion therefore was not concerned with facts arising after the grant of the
secondary franchise but only with the antecedents required before the
grant of such franchise. And it is only in this context that the statement
is binding. It is submitted, however, that to allow a public utility corpo-
ration to dilute Filipino interest in it to a level below 6OVo could defeat
the intent of the provision.
r,,()tI'htl ilt. tilt i)(l(t5t)
r'rll rrl l.l(l
r"(i.R. No ll.l,t,),t,Alntl (r. l(),r\
1224 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Franchises granted by the government cannot be exclusive in
character. Thus for instance, "the mere fact that [a] petitioner possesses
a franchise to put up and operate a radio communication system in cer-
tain areas is not an insuperable obstacle to the ... issuing [of a] proper
certificate to an applicant desiring to extend the same services t9 those
areas. The Constitution mandates that a franchise cannot be exclusive
in nature nor a can a franchise be granted except that it must be subject
to amendment, alteration, or even repeal by the legislature when the
common good so requires.""u
The second sentence of Section 1l became a necessity because of
the holding in Fletcher v. PeckBT and Dartmouth College v.Woodward,"r
that whenever a corporation is chartered by a statute and certain rights
are granted to it and accepted, the charter constitutes a contract, be-
tween the State and the corporation, protected by the contract clause. In
his concurring opinion in Dartmouth, however, Justice Story suggested
that the law of the charter as contract would be the terms of the charter
itself and, hence, the implication of the ruling in Dartmouth cotidbe
avoided by a reservation made in the legislative grant itself. Since, how-
ever, the law of the land is part of every contract,'3e the reservation may
be made in a general law which then becomes a part of every charter.
Such is the reservation made in the second sentence of Section 5.roo
The third sentence which enjoins the State to encourage equity
participation by the general public is of no constitutional significance.
The first part of the last sentence, which authorizes foreign in-
vestors to participate in the governing body of public utilities to thc
extent of their proportionate share in the capital, is a reversal of tht'
Filipinization trend which had found support in King v. Hernaezta' and
Luzon Stevedoring Co. v. Anti-Dummy Board;o'ln Luzon Stevedoring,
the Supreme Court held that under the Anti-Dummy Law'03 -
rs6RCPI v. NTC, 150 SCRA 450, 459 (1987).
r376
Cranch 87 (U.S. 1810).
(U.S. 1810).
'384 Wheat 518
r3eSee
Article 1306, Civil Code of the Philippines.
r4For application of this provision in Philippine .iurisprutlence, srr lltttrns, strlrzr, ttolt'
at 95-6. 102-3.
r4r4 SCRA 792 ( 1962).
1446 SC'RA 474 ( I 972).
r''('.A.No. lOtt(l()]6),:tsittttt'trltrl hy('A.No.4.ll(l(tlr,)lrrrtl RA Nrr ll'l (l()'lll
Sec. 12 ART.XII - NATIONALECONOMYANDPATRIMONY 1225
[t]he alien stockholders who own 4OVo of the capital stock of a
public utility corporation or association cannot elect an alien direc-
tor, much less demand the employment of aliens in the manage-
ment, operation, administration or control of the corporation or
business whether as officer, employee, or laborer, with or without
compensation. If the Corporation Law can be invoked to justify
the employment of non-American aliens in public utilities, then
the Anti-Dummy Law, as amended, would be a useless attempt to
penalize violations of the nationalization laws and the constitu-
tironal provision reserving the operation of public utilities to Fili-
pino citizens or Filipino dominated corporations or associations
would be nullified as a consequence.ra
It is evident that the 1971 Convention did not believe that foreign
participation in the governing body of public utilities would nullify the
thrust of the present Section 11. The 1987 Constitution has preserved
the 1973 rule but has added that "all executive and managing officers
of such corporation or association must be citizens of the Philippines."
Thus, while foreigners may be members of boards of directors, they
may not be executive or managing officers.
Src.12. Tnn SrurB sHALL PRoMorE THE PREFERENTIAL usE
or Frr,rprNo LABoR, DoMEsrIc MATERTALS AND LocALLY PRoDUCED
GOODS, AND AIX)PI MEASURES THAT IIELP MAKE THEM COMPETITIVE.
1. Filipino First Policy.
The provision enshrines in the Constitution the Filipino-first poli-
cy enunciated in CommonwealthAct No. 138, dated November 7 ,1936,
giving native products and domestic entities preference in government
purchases, Republic Act No. 9l2,dated June 30, 1953, prescribing the
use of Philippine-made materials, Republic Act No. 5183, dated Sep-
tember 8,1967 ,governing procurement contracts of the government, as
well as the Flag Law which gives Filipino contractors a fifteen percent
advantage in government contracts. The policy, however, can extend
beyond Filipino-first in government transactions and into private trans-
actions.r45
l( l
r4i4(r ((.RA ill ;lr),)
'4'lll Rl('( )Rlt (t/O ()7 t
 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Ssc. 13. Tnn Smrn snALL puRsur A TRADE FoLICy rHAT SERvES
THE GENERAL WELFARE AND UTILIZES ALL FORMS AND ARRANGEMENTS
OF EXCHANGE ON THE BASIS OF EQUALITY AND R"ECIPROCITY.
1. Forms and arrangements in economic exchange.
The forms and arrangements of economic exchange referred to
can be any number of those which are in practice, e.9., counter-trade,
common market arrangements, multi-country arrangements, etc. The
idea is not to tie down the country to any one form. As to the quality of
these arangements, first, they must serye the general welfare
- which
includes not just health, safety, security but also the idea of protection
of local enterprises found in Section 1. Secondly, these must be char-
acteized not only by reciprocity but also by equality which imports
mutual benefit.'ou
Sec. 14. Trn susu.rr.mD DEvELopMENT or A RESERVoIR oF
NATIoNAL TALENTS coNsIsrING or Frr,rprNo sclnNTrsrs, ENTRE-
PRENET]RS, PROFESSIONALS, MANAGERS, HIGH-LEVEL TECIIMCAL
MANPOWER AND SKILLED WORKERS AND CRAFTSMEN IN ALL
sHALL BE pRoMorED By rHE Srarr. Tnn Smrn sHALL ENcoURAGE
APPROPRIATE TECHNOLOGY AND R,EGULATE ITS TR,ANSFER FOR TIIE
NATIONAL BENEFIT.
TnB pnLcrrcE oF ALL pRoFEssIoNS rx rnn Pnrr,rpplNEs sHALL
BE LIMITED ro Frr,rprxo cITIzENs sAvE IN cASFs pREscRTBED By LAw.
1. Care for Filipino professionals and skilled workers.
Section 14 reflects the desire not only to develop a ready reser-
voir of Filipino professionals, scientists and skilled workers but also
to protect their welfare. The limitation on the practice of professions,
however, is subject to exceptions found in reciprocity laws. The pro-
vision also encourages technological independence and regulation of
technology transfers for the welfare of the nation.'o'
Snc.15. Tnn Coxcnrss sHALL cREATE AN AGENCy ro pRoMorE
THE VIABILITY AND GROWTII OF COOPERATIVES AS INSTRUMENTS FOR
SOCIAL JUSTICE AND ECONOMIC DEVELOPMENT.
ta6
Id . at 641 -645 .
r{7/</.
at 6110-685.
Secs. l3-15 Sec. 16 ART, XII - NATIONAL ECONOMYAND PATRIMONY
l. Development of cooperatives.
Discussion of this provision indicates that what was contemplated
was a line agency under the Office of the President and outside the
jurisdiction of the Department of Agriculture. The purpose would be
to promote the growth and viability of cooperatives in the private sec-
tor.'48 The text, however, as finally approved does not reflect that narrow
view. After all, the Department of Agriculture is under the control of
the President.
Src. 16. TnB CoNcnrss sHALL Nor, Excrp/r By cENERAL
I,AW, PROVIDE FOR THE FORMATION, ORGANIZATION, OR REGULATION
oF pRIvATE coRpoRATroNs. Govpnnn'mNT-owNED oR coNTRoLLED
CORPORATIONS MAY BE CREATED OR ESTABLISHED BY SPECIAL
CHARTERS IN THE INTEREST OF THE COMMON GOOD AND STJBJECT TO
THE TEST OF ECONOMIC VIABILITY.
1. Privatecorporations.
Section 16 is essentially a re-enactment of Article XIV Section
FIELDS
7 of the 1935 Constitution and Section 4 of Article XIV of the 1973
Constitution. Its purpose is to insulate Congress against pressures from
special interests. "To permit the law making body by special law to pro-
vide for the organization or formation or regulation of private corpora-
tions, it was believed in the committee, would be in effect to offer to it
the temptation in many cases to favor certain groups to the prejudice of
others or to the prejudice of the interests of the country."r4e
The second sentence was added by the 1986 Constitutional Com-
mission. The significant addition, however, is the phrase "in the interest
of the common good and subject to the test of economic viability." The
addition includes the ideas that they must show capacity to function
efficiently in business and that they should not go into activities which
the private sector can do better. Moreover, economic viability is more
than financial viability but also includes capability to make profit and
generate benefits not quantifiable in financial terms.''o
r''*/r/. at 6.14-63t|.
'nul ARrrlr;o, I'ttt.. lix,rwtnl; rtt tttt. l'tttt.tt,t,tut: ('rtN.sttttrnn 67ll (1937). An example of a
l)rivirlc (a)rporirliorr rrrrcorrstilrrtiorrirlly r'rtrrtr'rl hy sllccirrl ltw, I).1). No. 1717, was Ncw Agrix,
lrrc., Nirtiolrtl l)t.vclt4rnrcnl (ir. rrrttl Nt'w Ag.r'ix v. l'hilipllittc Vcrlcrrns llunk,(i.R. Nos. ti4132-33,
I)t't't'rrrhcr IO, I ()tX)
ru'lll Rl('( )lll) (r.r I (r tO. lV llli('( )l{l).t l(} .l I I.
1228 THE 1987 CONSTITUTION Sec'
OF THE REPUBLIC OF THE PHILIPPINES
Src. 17. Ilr rrMps oF NATIONAL EMERGENCYT wHEN THE PUBLIC
INTEREST SO REQUIRES, THE STATE MAY, DURING THE EMERGENCY AND
UNDER RDASONABLE TERMS PRESCRIBED BY IT' TEMPORARILY TAKE
OVER OR DIRECT THE OPERATION OF ANY PRIVATELY OWNED PUBLIC
UTILITY OR BUSINESS AFFECTED WITH PUBLIC INTEREST.
1. Temporary state take over of business affected with pub'
lic interest.
Section 17 deals merely with the temporary state take over of "the
operation of any privately owned public utility or business affected
with public interest." The provision was first introduced as Section 7
of Article XIV in the 1973 Constitution.It read: "In times of national
emergency when the public interest so requires, the State may tempo-
rarily take over or direct the operation of any privately owned public
utility or business affected with public interest."
The provision, when first introduced, was a product of the "mar-
tial law" thinking of the 1971 Constitutional Convention. In effect at
the time of the approval of this provision was Letter of Instruction No.
2 of President Marcos dated 22 September 1972, instructing the Sec-
retary of National Defense to take over "the management, control and
operation of the Manila Electric Company, the Philippine Long Dis-
tance Telephone Company, the National Waterworks and Sewerage Au-
thority, the Philippine National Railways, the Philippine Air Lines, Air
Manila (and) Filipinas OrientAirways ... for the successful prosecution
by the Government of its effort to contain, solve and end the present
national emergency." This letter of instruction was among the execu-
tive acts which the Convention wanted ratified by Section 3(2), Article
XVII of the 1973 Constitution. It was thus clear that in the mind of the
Convention the power, as granted under the 1973 Constitution, could
be exercised by the executive arm of the government. And it was ftlr
the executive arm to decide whether "national emergency" and "public
interest" demanded the temporary take over. Moreover, unlike Sectiott
23(2),Article VI, authorizing Congress to delegate by law emergency
powers to the President, which powers cease upon the next ad.iournmcnl
of Congress unless sooner withdrawn by the same, Section 7 Inow Scc
tion l7l put no time limit on tho duration of the emergcncy takt: ovct'.
While the takeover woultl lo hc te:nrporary, the tltlritl i<ln tlf' lhc litkc tlvcr
woultl bc cliscrctirtrtirry witlt lltc I'rcrsitlcrttl.
l7 ART. XII - NATIONAL ECONOMY AND PATRIMONY 1229
When the provision was introduced in the 1986 Constitutional
Commission, "national emergency" was explained as encompassing
threat from external aggression, calamities, or natural disasters, but
not strikes.'s' The duration of the emergency is the measure of the du-
ration of the takeover. Moreover, the phrase "under reasonable terms
prescribed by it" was added upon the instance of Commissioner Jamir.
When asked, moreover, what "it" referred to, Jamir said that it referred
to the state. When pressed whether he meant Congress or the Presi-
dent, Jamir said: "I suppose it will be through an appropriate agency."
Section 17 does not require, as does Article VI, Section 23(2), that the
authorization be "by law."r52 The impression that is thus given is that the
authorization can come from the President.
However, an obiter dictum in David v. Ermita,ts3 the Court said
that the power of the President to take over the operation of public utili-
ties is activated only if Congress grants emergency powers under Ar-
ticle VI, Section 23. Section 17 must be read with Article VI, Section
23. Section 17 gives the power to the State not to the President. The
President acquires emergency powers when given to her by Congress
in a state of emergency declared by Congress.
It should be recalled, however, that the provision was enacted dur-
ing martial law and was used during the martial law period. Hence, the
power given is a martial law power.
It is also interesting to note that Section 17 uses the celebrated
phrase "business affected with public interest." Does the use of the
phrase have the effect of limiting the type of business that may be sub-
jected to Section 17 or is it a phrase that is without special significance?
In American Constitutional jurisprudence, the phrase "business
affected with a public interest" has a significant history and it had a
special significance especially in the heyday of laissezfaire. Even at the
time of American constitutional history when governmental regulatory
power was deemed drastically restricted by laissezfaire inthe extreme
form, there was an area which was not allowed to escape the regulatory
power of the state. This was the area of "business affected with a public
interest." The doctrine on this subject was formulated in Munn v. Illi-
r1l
III RIiC()RI)
tltSu il. trt 647
266-26',1
.
r''l)lvitl v. lirrritl,(i.R. No. l7l4o(), Mrry.l,2(X)6
I23O THE 1987 CONSTITUTION Sec. l7
OF THE REPUBLIC OF THE PHILIPPINES
nois.t54Prior to Munn,when jurists spoke of business affected with pub-
lic interest, they meant businesses where special privileges have been
granted by the government (such as railroads and public utilities,lot-
teries, billiard parlors, liquor stores, ferries, wharves, carriers)."t It was
thus a restricted concept. Munn expanded the concept: "Property does
become clothed with a public interest when used in a manner to make it
of public consequence, and affect the community at large. When, there-
fore, one devotes his property to a use in which the public has an inter-
est, he, in effect, grants to the public an interest in that use, and must
submit to be controlled by the public for the common good, to the extent
of the interest he has thus created."r56 In this sense, a business affected
with a public interest is nothing more than a business where the public
has come to have an interest. And, as Justice Field said in his dissent
in Munn, "indeed, there is hardly an enterprise or business engaging
the attention and labor of any considerable portion of the community,
in which the public has not an interest"rsT and "it would seem from its
opinion that the court holds that property loses something of its private
character when employed in such a way as to be generally useful."'*
Decisions immediately subsequent to Munn were not receptive to
the broad view enunciated in Mu,nn and continued to give "business af-
fected with a public interest" a restrictive sense.rse It was not until 1934,
inNebbiav. New York,'ffi thatthe high court finally rejected the restricted
meaning of business affected with a public interest and returned to the
broad view of Munn. "[t is clear that there is no closed class or category
of business affected with a public interest," said Justice Roberts.'u' What
does the phrase mean then? "The phrase 'affected with a public inter-
est' can, in the nature of things, mean no more than that an industry, for
adequate reason, is subject to control for the public good."tez Or again:
,,Thus understood, 'affected with a public interest' is the equivalent ol'
.subject to the exercise of the police power."'Thus was vindicated Hol-
f 5494 U.S. lt3, 126 (1877).
rssSee the classification made by Chief Justice Taft in Wolf Co. v. Industrial Court, 262 tJ.S '
522,535-536 (t923).
rs94 U.S. at 1J6.
ts1ld. at l4l.
ts\Id. at 139.
rseSee the U.S. jurisprudencc on pricc lixing ol'thc It)20's'
r"'291 u.s. 502 ( 19.1.1).
16r/r/. at 536.
t6:
ltl .
ART. XII _ NATIONAL ECONOMY AND PATRIMONY I23I
mes' remark that "the notion that a business is clothed with a public
interest and has been devoted to public use is little more than a fiction
intended to beautify what is disagreeable to the sufferers."'u3
In the deliberations of the 1986 Constitutional Commission, an
explanation was sought for the phrase "business affected with public
interest" as used in the provision. The answer given reflects the restrict-
ed view in Munn. The phrase means "business that has a lot of reper-
cussion on the public, whether it be public utility or other businesses
which may partake of the characteristics of public utility but which is
not yet considered public utility" or any business "which concerns a
mass-based consumer group" and especially among "the low income
groups."'*
Snc. 18. Tnn SrlrB MAy, rN THE TNTEREsT oF NATIoNAL
WELFARE OR DEFENSE, ESTABLISH AND OPERATE VITAL INDUSTRIES
AND, UPON PAYMET{T OF JUST COMPENSATION, TRANSFER TO PUBLIC
OWNERSHIP UTILITIES AND OTIIER PRIVATE ENTERPRISES TO BE
OPERATED BY TIIE GOVERNMENT.
1. Nationalization of industries.
Section 18 reproduces Article XIII, Section 6 of the 1935 Consti-
tution and Article XIV, Section 6 of the 1973 Constitution.
Section I 1 deals with Filipinization or Filipino ownership of pub-
lic utilities and Section 10 with Filipinization of "certain areas of in-
vestment." Section 18 deals with nationalization or state ownership of
industries and public utilities. While Filipinization and nationalization
are two different concepts, the former meaning Filipino ownership, and
the latter state ownership, nationalization as authorized by the Consti-
tution should be regarded more as an instrument toward Filipinization
rather than as an expression of an option against private ownership.
Private ownership remains one of the protected institutions.
Does Section 18 authorizetotal nationalization or merely partial
nationalization? If Section l8 is to be understood as authorizing only
partial nationalization, it would only mean authority for the state to en-
gagc in business. But this can be done and has been done even without
j r"rl)isscnt rrr'llson & llrrrthcrs v. lllrrton, 27.l l l.S. 4 l tt, 446 ( 927)
1
I r'{lll Rl('( lRl) (r47 (rllt.
T
1232 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
express constitutional authorization. For Section 18 to mean anything,
it should mean authority to impose total nationalization or at least near
total. While it may be said that even total nationalization does not need
constitutional authorization, nevertheless total nationalization would be
such a drastic move that, even if only for clarity's sake, it is best"to have
explicit constitutional authorization. This, it is submitted, Section
gives.
The decision to nationalize may be made by the state through
Congress, on the broad grounds of "the interest of national welfare or
defense." If nationalization should entail expropriation, Section 18 re-
quires that transfer of ownership can only be "upon payment of just
compensation." Discussing this provision in connection with the Bill
of Rights, the Supreme Court said, in City of Baguio v. NAWASA''' that
"one has to bear in mind that no person can be deprived of his propeny
except for public use and upon payment of just compensation."
It should be noted, therefore, that in NAWASA, the Court equated
expropriation under Section l8 with the inherent power of eminent do-
main as limited by the Bill of Rights.Is the power granted in Section l8
really nothing more than the power of eminent domain already inher-
ent in government or is it an expansion of the inherent power? As far
as the requirement of just compensation is concerned, Section 18 does
not differ from Section 9 of the Bill of Rights. While, however, the
purpose required by the Bill of Rights is "public use," Section 6 speaks
of the "interest of national welfare or defense." Are the two concepts
interchangeable?
It is submitted that Section 18 is a textual acceptance of the equn-
tion of the concept of "public use" with the broader concept of "puhlic
welfare" or "national welfare."'* Thus, Section 18 has also been usetl
as justifying compulsory inter-connection of a private telephone com
pany with a government telephone system. "If under Section 6, Articlc
XIII, of the [1935] Constitution, the State may, in the interest ol' ntt
tional welfare, transfer utilities to public ownership upon paymcnl ol
just compensation, there is no reason why the State may not rcquint
a public utility tO render services in the general intercst, provitlctl .ittlt
165106
Phil. 1,14, 155 ( 1959).
r6,1'12,, r,.,ri., thc.iurisprrxlcncc on cxprt4rriirlirrn ol lttnrl lirr te'snlt'ttnrlcr Sct'lttttt 4, Arlh
XIII
Sec.18 ART.XII-NATIONALECONOMYANDPATRIMONY 1233
compensation is paid therefor."'67 More recently, in PLDT v. Eastern
klecommunications Philippines, Inc.t68 Eastern was not allowed to in-
terconnect with PLDT on the ground that Eastern had no franchise to
operate a telephone system. On reconsideration, however, in PLDT v.
N at i o nal Te I e c ommunic at ion C ommi s s i o n' 6e reversed E as t e rn.
18
Snc.19. Tne Stlru sHALL REGULATE oR PRoHIBTT MoNoPToLIES
wHEN THE puBLIC INTEREST so REQUIREs. No counrnATIoNS rN
RESTRAINT OF TRADE OR UNFAIR COMPETITION SHALL BE ALLOWED.
1. Monopolies and combinations.
Section 19 is a restatement of Section 2 of Article XIV 1973 Con-
stitution. However, the new provision now speaks simply of "monopo-
lies" and not "private monopolies." The change was made in order to
include public monopolies within the compass of the policy.'7o
The provision is a statement of public policy on monopolies and
on combinations in restraint of trade. Section 19 is anti-trust in his-
tory and spirit. It espouses competition. Only competition which is fair
can release the creative forces of the market. Competition underlies the
provision. The objective of anti-trust law is "to assure a competitive
economy based upon the belief that through competition producers will
strive to satisfy consumer wants at the lowest price with the sacrifice of
the fewest resources. Competition among producers allows consumers
to bid for goods and services and, thus matches their desires with soci-
ety's opportunity costs." Additionally, there is a reliance upon "the op-
eration of the 'market' system (free enterprise) to decide what shall be
produced, how resources shall be allocated in the production process,
and to whom various products will be distributed. The market system
relies on the consumer to decide what and how much shall be produced,
and on competition, among producers who will manufacture it.'7'
It should be noted that, as the provision is worded, monopolies
are not necessarily prohibited by the Constitution. The State must still
decide whether public interest demands that monopolies be regulated
rn'Rcpublic v. I'l.l)'l'. 26 S('RA 620, 62tl ( 1969). See also III RECORD &5-646-
l's(i.R. No. ()4.174, Arrgust '27, l1)()').
ril24 I S( 'R A 4tl(r ( I r)r)5 ;
le r'r'lll Rli('( )Rl ) (rll)
"rl,lrrcrgyRcgulllrryllrrtrl v (ixrrtrrl A14rrtls.(i.R.No. lllOT().AUil 20,:l(X)l
t234 THE 1987 CONSTITI,]TION Sec.20 ART. XII _ NAIIONALECONOMYAND PATRIMONY 1235
OF THE REPUBLIC OF THE PHILIPPINES

or prohibited. Thus contracts requiring exclusivity are not per se void. SUCH REGULATORY POWERS AS MAY BE PROVIDED BY LAW OVER
Each contract must be viewed vis-ti-vis all the circumstances surround- THE OPERATIONS OF FINANCE COMPANIES AND OTIIER INSTITUTIONS
ing such agreement in deciding whether a restrictive practice should be PERFORMING SIMILAR FUNCTIONS.
prohibited as imposing an umeasonable restraint on competition.rT2
Uurrr, tun CoNcnnss orHERwrsE pRovrDES, rnn CnNrn.ll,
On the other hand, combinations in restraint of trade ahd unfair B,qux or rgr Pnrr,rpprl'es, orERATING UNDER EXISTING LAws, sHALL
competition are prohibited by the constitution. "The simplest form of FUNCTION AS THE CENTRAL MONETARY AUTHORITY.

monopoly exists when there is only one seller or producer of a product

or service for which there are no substitutes. In its more complex form,
monopoly is defined as the joint acquisition or maintenance by mem-
bers of a conspiracy, formed for that purpose, of the power to control
and dominate trade and commerce in a commodity to such an extent
that they are able, as a group, to exclude actual or potential competitors
from the field, accompanied with the intention and purpose to exercise
SUch powe1,"tr:
The existing penal law on monopolies and combinations in re-
straint of trade is Article 186 of the Revised Penal Code.
ln Tatad v. Secretary of Energy, R.A. No. 8180, the first Oil De-
regulation Act, was struck down as invalid because three key provi-
sions intended to promote free competition were shown to achieve
the opposite result. More specifically, the Court ruled that its pro-
visions on tariff differential, stocking of inventories, and preda-
tory pricing inhibited fair competition, encouraged monopolis-
tic power, and interfered with the free interaction of the market
forces. An amended version, R.A. No. 8479,avoided the mistakes in R.
A. No. 8180 and was upheld in Garcia v. Executive Secretary.n4
1. A central monetary authority.
Section 20, except for the composition of the contemplated body,
is a reproduction of Article XV, Section 14 of the 1973 Constitution.
The important concept is "independent." The main concern in the
formulation of this provision was to assure independence of the cen-
tral monetary authority from all sectors, local or foreign, but especially
from the executive department. Thus the majority of the body would
come from the private sector.r?s It was envisioned that Congress would
fix the term of the members and give them security of tenure to enhance
their independence.r?6 But the board would not have the same status as
the Constitutional Commissions. r7'
In the end, however, much will depend on the quality of the peo-
ple who will compose the monetary board. Hence the constitutional
requirement that they be "natural-born Filipino citizens, of known pro-
bity, integrity and patriotism, the majority of whom shall come from the
private sector."ri8 Moreover, they shall be subject to such other qualifi-
cations and disqualifications as may be prescribed by law.

Under current law, the board of directors of the Bangko Sentral ng

Src. 20. Tnn Concnrss sHALL EsrABLrsH AN TNDEpENDENT
Pilipinas is the monetary board.
CENTRAL MONETARY AUTHORITY, TIIE MEMBERS OF WHOSE
covERNING BoARD MUsr BE NATURAL-Bonn Fruprxo cITIzENs, or,
KNOWN PROBITY, INTEGRITY, AND PATRIOTISM, THE MAJORITY OF
Snc.2l.FonucNLoANs MAyoNLyBETNCURREDTNACCoRDANCE
WITH LAW AND THE REGULATION OF THE MONETARY AUTHORITY.
wlroM sHALL coME FRoM THE pRIvATE sECToR. Tnu,y sH,tLL Al_so
BE S[JBJECT TO SUCH OTTIER QUALIFICATIONS AND DISABILITTf,S AS
INronunrroN oN FoRErcN LoANS oBTAINED oR GUARANTEED By rHE
MAy BE PRESCRIBED By LAw. Tnr aurnonrry SHALL pRovIDE poltcy
GovnnNurxr SHALL BE MADE AvAILABLE To rHE puBl-rc.
DIRECTIoN IN THE AREAS oF MoNEy, BANKINc, AND cREDtr. Ir sHnl,l,
n,lvp suprnvrsloN ovER THE OPERATIONS ol' BANKS ANt) Exfilt(:tsl:

l"lll Rti('oRl) 261 269

lT2Avon v. Luna,G.R. No. 153(174, l)occmbcr 20,2006 tt"ll. il 612.
t1tld.
t'tll. il 6.16.
r?a(i.R.No. I3245 I,l)cu:nrlrl 17. l()r)(). trAStt i,l ({)() (rl,l
*l
 THE 1987 CONSTITUTION
OFTHE REPUBLIC OF THE PHILIPPINES
1. Foreign loans.
This provision was introduced mainly upon the initiative of Com-
missioner Garcia. Two things are covered: (1) foreign loans, whether
private or public, can be obtained only in accordance with laws and reg-
ulations, and (2) information on public foreign loans and gove'rnment
guaranteed loans must be made public. The provision was introduced
as a reaction to the centrality of the foreign loans problem during the
deliberations of the Constitutional Commission in 1986. As Commis-
sioner Garcia said, the provision treats as serious matters the nation's
ability to pay and the fact that foreign borrowings are matters of interest
to the majority who have to shoulder the actual payment. The country
must learn to rely on itself.t1e
It should also be recalled that the President may incur or guarantee
foreign loans only with the concurrence of the Monetary Board.r8o
Snc.22. Acrs wnrcn crR.cuMvENT oR NEGATE ANy oF THE
pRovrsloNs oF TIrIs Anrrcr,n sHALL BE coNSIDERED IMMTcAL To rHE
NATIONAL INTEREST AND SUBJECT TO CRTMINAL AND CML SANCTIONS,
AS MAY BE PROVIDED BY LAW.
1. Penal sanctions.
The provision, at first blush, might look like a presumptuous dec-
laration on the part of the 1986 Constitution Commission that no one
should dare act against what the Commission has decreed. But what it
says is really not that ambitious. It simply says that Congress should
penalize acts which seek to circumvent the goals set down by the ect>
nomic provisions of the Constitution.rsl
r7e/d. ut 639. Saa
irl. 63t,t,64 I
ru'Articlc Vll, Scction 20.
trtSer id.ll (r74 (rllo.
Sec.22
Anrrcr,E XIII
Socral JusrrcE AND HuuaN Rrcnrs
Snctrox 1. THB Coucnnss sHALL GrvE trrcHEsr pRroRrry
TO THE ENACTMENT OF MEASURES TIIAT PROTECT AND ENHANCE
THE RIGHT OF ALL THE PEOPLE TO HUMAN DIGMTY, REDUCE SOCIAL,
ECONOMTC, AND POLTTTCAL INEQUALITIES, A]\'D REMOVE CULTURAL
INEQUITIES BY EQUITABLY DIFFUSING WEALTII AND POLITICAL POWER
FOR THE COMMON GOOD.
To rnrs END, THE Smrp srul,r, REGULATE THE ACeuIsITIoN,
owNERSHIp, USE, AND DISPOSITION OF pROpERTy AND ITS INCREMENTS.
SBc. 2. Tun pnouorroN oF socrAl JUSTTcE sHALL TNCLUDE
THE COMMITMENT TO CREATE ECONOMIC OPPORTUNITIES BASED ON
FREEDOM OF INITIATIYE AND SELF.RELIANCE.
1. Socialjustice.
As already explained under Article II, Section 10, social justice
in the Constitution is principally the embodiment of the principle that
those who have less in life should have more in law. It commands a le-
gal bias in favor of those who are underprivileged. The import of social
justice that has developed in various decisions is that when the law is
clear and valid, it simply must be applied; but when the law can be in-
terpreted in more ways than one, an interpretation that favors the under-
privileged must be favored.' There have been decisions, in fact, where
on social justice grounds, the Supreme Court has awarded separation
pay to workers even when dismissal was for cause.2
lFederation of Free Farmers v. Court of Appeals, I 07 SCRA 3 52-362 (1987).
'zF.'.g., l)e Vera v. NLRC, G.R. No.93212, November22,1990; PLDT v. NLRC, 164 SCRA
671,6112 (l9lltil), irr instances "where the employee is validly dismissed for cases other than seri-
otts rttiscottrlttcl or thosc rcllcctitrg ott his nroral character." Sez rulso Caraan v. NLRC, October 2l,
l()9.1, wlrcrc tlrc Srrlxr:nrc (\rrut crctliltrl ltrc labtxcr lirr grxil lirith and honcst intent.
.,' L
 1238 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
For all its liberality to the underprivileged, however, it does not
tolerate behaviour that is contrary to law.. But as will be seen, the 1987
Constitution advances beyond what was in previous Constitutions in
that it seeks not only economic social justice but also political social
justice.
When one speaks, however, of the protection of the right to social
justice and of the body of social rights which the expression capsulizes,
the meaning, in terms of effectivity of protection, is not the same as
when one speaks of the protection for the right, for instance, of free
speech. The guarantees of the civil and political rights found princi-
pally in the Bill of Rights are self-executory and ready for use. One
can assert those rights in a court ofjustice. Social rights are a different
phenomenon. Except to the extent that they prohibit government from
embarking in activity contrary to the ideals of social justice, they gener-
ally are not rights in the strict sense that the rights in the Bill of Rights
are. Social rights are latecomers in the development of law and came
about through the efforts of social philosophers and through the social
teachings of Popes. In legal effectiveness they are primarily in the na-
ture of claims or demands which people expect govemment to satisfy,
or they are ideals which government is expected to respect. Thus, in the
nature of things, the satisfaction of these demands must for the most
part depend on legislation.
Section 1 translates the principle of more in law for those who
have less in life into a duty of the state to attend "to the enactment of
measures that protect and enhance the right of all the people to human
dignity, reduce social, economic, and political inequalities, and remove
cultural inequities by equitably diffusing wealth and political power for
the common good." It should be noted that one goal is to "reduce,"
and not remove, inequalities, because inequalities by themselves arc
not evil. Cultural inequities, however, are evil and therefore must bc
"removed."o And since the goals embodied in the command are to bc
achieved through legislation, the task is given to Congress.It is, morc-
over, given as a task of the "highest priority." The choice of the cxJrrcs-
sion "highest priority" is deliberate. It communicates the messagc thl(
what is expected of Congress is not just the exercise of day to day policc
3E.g.,socialjusticedoesnotlegalizc"squatlirrg."Astutlilkrv.
Ibartl ol l)ilctlorsol
L-28066. Septemhcr 22, l9'7 6.
ill RFI('oRl) 7.17-7:r8
Secs. l-2 ART. XIII - SOCIALJUSTICEAND HUMAN RIGHTS 1239
power but of powers needed to achieve radical social reform of critical
urgency.5
The route to achieving social justice is presented as consisting of
two principal tracks: first, according to the second paragraph of Sec-
tion 1, there must be regulation of the acquisition, ownership, use, and
disposition of property and its increments, and second, according to
Section 2, Congress should create economic opportunities based on
freedom of initiative and self-reliance. The ideas of freedom of initia-
tive and self-reliance are placed in Section 2 in order to convey the
message that these should not be allowed to impede the creation of a
just social structure through regulation.u Moreover, the task of creating
wealth is made to follow the task of diffusing wealth because even now,
in the present economic state of the nation and quite independently of
the need to create more wealth,T there already is the urgent need for
diffusion of existing wealth. The sequencing thus follows the order of
priorities established in Section 1 of Article XII.
It should also be noted that, while Section 1 puts down a dual goal
of diffusing economic wealth and political power, the second paragraph
of Section 1 and all of Section 2 deal only with wealth. This is a recog-
nition of the reality that, in a situation of extreme mass poverty, political
rights, no matter how strongly guaranteed by the Constitution, become
largely rights enjoyed by the upper and middle classes and are a myth
for the underprivileged. Without the improvement of economic condi-
tions there can be no real enhancement of the political rights of all the
people. However, other provisions of Article XIII, especially Sections
l5 to 19, deal more explicitly with civil and political rights.
The rest of the article goes in some detail into the areas to which
Congress must give highest priority: labor, agrarian and natural resourc-
es reform, urban land and housing reform, health delivery systems, pro-
tection of women, voluntary people's organizations, and structures for
the protection of human rights.
'Irl. tl (rll4, 7.16, 7.I)-740.
l'llll('
"lrl. nt 61i5.
tSrr hl.tt l44,'l4l 'l4ll
 lz$ THE 198TCONSTITUTION Sec.3 Sec. 3 ART. XIII _ SOCIAL JUSTICE AND HUMAN RIGHTS t24l
OF THE REPUBLIC OF THE PHILIPPINES Labor

LABOR the public and private sectors.e lt will be seen, however, that, although
all workers are protected, the rights guaranteed are not necessarily the
Snc.3. Tsr Surr snlrl AFFoRD FULL pRorEcrroN To LABoR,
same for all. Distinctions can arise either from the public or private
LOCAL AND OVERSEAS, ORGANTZED AND UNORGANIZED, AND PROMOTE
character of the employment or from the nature of the work that is per-
FULL EMPLOYMENT AND EQUALITY OF EMPLOYMENT OPPORTUNITIES
formed.
FOR ALL.

Ir sn,lrt, The second paragraph enumerates the rights that are guaranteed.
GUARANTEE TrrE RIGHTs oF ALL woRKERS To sELF-
0RGAMZATION, COLLECTM BARGAINING AND IYEGOTIATIONS, AND The first cluster includes the rights to "self-organization, collective bar-
PEACEFLJL CONCERTED ACTMES, INCLUDING THE RIGHT TO STRIKE gaining and negotiations, and peaceful concerted activities." These are
IN ACCORDANCE WITH LAW. TTTNY STT.IT,T, BE ENTITLED TO SECURITY OF rights which are exercised and enjoyed by workers collectively. The
TENURE, HUMANE coNDITIoNS oF woRK, AND A LIvINc wacE. TIrEy right to self-organization and unionization is also guaranteed by Sec-
SHALL ALSO PARTICIPATE IN P1OLICY AND DECISION.MAKING PROCESSES tion 8, Article III, and by Section 2(5\,B,Article IX and is subject to
AFFECTING THEIR RIGHTS AND BENENTS AS MAY BE PROVIDED BY LAW. the jurisprudence on the right to form associations as developed under
Tnr smrn SHALL pRoMorE THE pRTNCIpLE oF sHARED the Bill of Rights. The right to bargain collectively, enjoyed by union-
R,ESFONSIBILITY BETWEEN WORKERS AND EMPLOYERS AND THE ized workers, is paired with the right to negotiate collectively which
PREFERENTIAL USE OF VOLUNTARY MODES IN SETTLING DISPI-rTES, has been placed as a guarantee for non-unionized workers.'o The right
INCLUDING CONCILIATION, AND SHALL ENFORCE THEIR, MUTUAL to engage in "peaceful concerted activities" includes everything short
COMPLIANCE THEREWITH TO FOSTER INDUSTRIAL PEACE. of strike which is treated separately in the next phrase.
Tnn smtr sITALL REcuLATE THE RELATToNS BETWEEN The right to strike was first recognized statutorily in 1953 with
woRr(ERs AND EMPLOYERS, RECOGNIZING THE RIGHT OF LABOR TO
the enactment of the Industrial Peace Act. Under the 1987 Constitution
ITS JUST SHARE IN THE FRUITS OF PRODUCTION AND THE RIGHT OF'
it has gained constitutional staturerr but it is qualified by the phrase "in
ENTERPRISES TO REASONABLE RETURNS ON INVESTMENTS, AND TO
EXPANSION AND GROWTH.
accordance with law." That this phrase is separated by a comma from
the other rights first mentioned does not mean that the exercise of those
other rights is beyond the reach of regulation by law. The phrase "in ac-
1. Rights of labor.
cordance with law" as appended to the right to strike is simply a recog-
The basic constitutional statement on labor is Section 18 of Article nition that the law has traditionally denied the right to strike to certain
II and has been discussed in its proper place. Section 3 of Article XIII sectors of the working force, such as peace-keeping forces or firemen,
elaborates on the provision in Article II by specifying who are protected because of the nature of the work they perform. It has also sometimes
by the Constitution, what rights are guaranteed, and what positive mea- been denied to government workers performing constituent functions.
sures the state should take in order to enhance the welfare of labor. But this does not mean that the constitution prohibits the state from
Under the Constitution,labor and management are not completely free granting them the right to strike.''? The constitutional provision does
to decide between themselves how their relationship should go even in not invalidate existing laws on the subject and does not prohibit the
the matter so personal as wages.s enactment of other reasonable laws which might diminish the right to
The first paragraph extends the protective mantle of the Constitu-
tion to all of labor local and overseas, organized and unorganized, in
-
"ll Rl('ORI) (r14, (r().1,14ll 741).
"'/r/. :tl (rl.l 615, (il0.
I'llisig trg Mitnglqitl;:twit v. Nl.R(',226 S('RA 499, 5l l-512 ( 1993).
"Umploycrs (irnt'ctlcrul iotr v. Nutiorrul .Wirgc antl ltrxltrclivity (irrnrrrissirxr, (i.R. No risrt Rr'ptthltc v. (irttrl ol A;tqrnls, (i.R. No. 117676, l)cccmhcr 20, l9lt9. wht:tc llrc Stt
9619, Scplcnrtx:r 24. l()91. prt.rrx. ( i rrrrl srrrv rr r r llil rl lo sl r rlc lxtl lx't rtttsc "thcrr: is ls yct no lttw lrrnlitt irrg lhclll l() sl rikt!."
 1242 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
strike.rs For instance, the denial of the right to strike to employees of the
Social Security System'a and to public school teachers is recognized."
But there is no intention to increase the valid grounds for strike beyond
the traditional ones of unfair labor practice and bargaining deadlocks.'6
Nor for that matter is the constitutional guarantee a ban on injunctions
against strikes. However, without denying that injunctions might be
necessary in order to arrive at speedy solutions to disputes that work
against the general welfare, the constitutional recognition of the right to
strike does serve as a reminder that injunctions should be reduced to the
barest minimum." Moreover, although lockout is not mentioned in the
Constitution, there is no intention to ban lockouts.ls
The next cluster of rights guaranteed in the second paragraph are
the right "to security of tenure, humane conditions of work, and a living
wage." Again, although these have been set apart by a period (.) from
the next sentence and are therefore not modified by the final phrase "as
may be provided by law," it is not the intention to place these beyond
the reach of valid laws. But the right to "participate in policy and deci-
sion-making processes affecting their rights and benefits" has been ex-
pressly modified by "as may be provided by law" in recognition of the
fact that labor and management do have distinct rights and responsibili-
ties in production. The right is not a guarantee of labor's membership in
boards, although the Constitution does not prohibit labor membership
in boards.'n The guarantee does not empower labor to participate in the
charting of corporate programs and policies. What it does guarantee is
for labor to have participation in arriving at those decisions which af-
fect their rights and benefits through grievance procedures, conciliation
proceedings, voluntary modes of settling disputes, and collective bar-
gaining and negotiations.2oIt should be noted, however, that the scopc
of what can be bargained for could be less for workers of the public
r3II RECORD 690.749.
raSocial Security System v. Court of Appeats, G.R. No.
ti5279, July 2U, l9tl9.
rsManila Public School Teachers Association v. Secretary of Education, C.R. No. 95441,
August 6, 1991. The dissenting justices argued that the right to strikc could bc dctlucctl Irorrr
f'rcodorn of speech.
'|(il RITCORD 75.5-7-56.
t1
ld. al 694-695.
18k|. itt 66J.75'I .
"'/r/. lt (r I 5.
tt'|il. irl'159 7({}.'lirulitlortrrl hctrclils li.kc crlttcirlion lrc n()t guiu'rnl('trl lrul urc
$(.cn
lcrs lirr otrlittitry neg()lillli('n or lcprslrrlrorr. /r/ ut /5O '/5 L
Sec. 3 Sec.3 ART. XIII - SOCIALruSTICEAND HUMAN RIGHTS 1243
Labor
sector than those of the private. For instance, the matter of compensa-
tion of government workers is in the hands of legislators and not of
administrators.'?'
The third paragraph contains an enumeration of elements of a
healthy labor atmosphere which the state is commanded to promote:
"The principle of shared responsibility between workers and employers
and the preferential use of voluntary modes in settling disputes, includ-
ing conciliation" and to "enforce their mutual compliance therewith to
foster industrial peace." The paragraph establishes a preferential bias
for voluntary modes of settling disputes. It is a recognition that, espe-
cially in the present state of the economy, strikes can be too costly for
the nation. However, although the Constitution no longer makes any
mention of "compulsory arbitration," thus departing from the text of
both the 1935 and 1973 Constitutions, the Constitution does not ex-
clude compulsory arbitration but merely expresses a preference for vol-
untary modes of settling disputes. In fact, both the 1935 and the 1973
provisions also merely allowed compulsory arbitration.r, Thus, because
voluntary conciliation is favored,labor cases should normally not reach
the courts. Moreover, because the right to strike is now of constitutional
stature, injunctions should be reduced to the barest minimum.23
Aside from these, the state is also commanded in the first para-
graph to "promote full employment and equality of employment op-
portunities for all."
Finally, the last paragraph commands the state to regulate the re-
lations between workers and employers. At the same time, the state is
reminded that, in formulating regulations, it should seek a balance be-
tween "the right of labor to its just share in the fruits of production
and the right of enterprises to reasonable returns on investments, and to
expansion and growth." The right to a just share in the fruits of produc-
tion does not mean mandatory profit-sharing but a voluntary sharing
that is born of the acceptance of the social function of the means of
production.'?4
rr.\t' Arlit lc IX, B, Scctiorr 5. For that matter. although the Constitution favors voluntary
rrrotlcs ol sclllirrg rlisprrtcs, il (locs not prrlhibit government from tixing minimum wages.
'rArlit lt XlV. Sccliorr 6 ( l() l5): Articlc ll, Scction 9 ( l9?3).
ni nltt I'lltsrg rrg Mrrrlllirrp:rwir v Nl,l{(', .2?(, S('Rn 499, 5 I I 5 I 2 ( l99l).
rrll llli('( )ltl ) ('{l')
1244 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The court continues to affirm its protection for labor while at the
same time balancing it with the right of employers. Thus a retirement
plan imposing automatic retirement after 35 years of service before the
statutory retirement age of 65 is valid if voluntarily entered into by the
employee."
A company policy banning employees from marrying employees
in a competitor company must be judged on the basis of the standard
of reasonableness. Thus, a policy based on the right of the employer to
guard its trade secrets, manufacturing formulas, marketing strategies
and other confidential programs and information from competitors is
reasonable.'u Where no such situation exists the ban is unreasonable.
The sole contention that "the company did not just want to have two (2)
or more of its employees related between the third degree by affinity
and/or consanguinity" is lame.z'
AGRARIAN AND NATURAL RESOURCES RBFORM
Snc.4. Tnn Smrn SHALL, BY LAwr UNDERTAKE AN AGRARIAN
REFORM PROGRAM FOUNDED ON THE RIGHT OF FARMERS AND
REGULAR FARM WORKERS, WHO ARE LANDLESST TO OWN DIRECTLY
OR COLLECTIYELY THE LANDS THEY TILL OR' IN THE CASE OF OTHER
FARM WORKERS, TO RECEIVE A JUST SHARE OF THE FRUITS THEREOF.
To rnrs END, THE Smrr sulr,r, ENCoURAGE AND UNDERTAKE THE
JUST DISTRIBUTION OF ALL AGRICULTURAL LANDS, SUBJECT TO
PRIORITIES AND REASONABLE RETENTION LIMITS AS THE CONGRESS MAY
PRESCRIBE, TAKING INTO ACCOUNT ECOLOGICAL' DEVELOPMENTAL'
OR EQUITY CONSIDERATIONS, AND SUBJECT TO THE PAYMENT OF JUST
COMPENSATIOI"I. IN OBTTNUINING RETENTION LIMITS TTTN STIT'r STTNT,T-
RESpECT THE RIGHT oF sMALL LANDowNERs. Tnn Srarr snar,r,
f,.TJRTHER PROYIDE INCENTIYES FOR VOLT]NTARY LAND-SHARING.
1. The foundation of agrarian land reform.
The 1987 Constitution contains a much more expanded treatment
of the subject of land reform than was contained in past Constitutions.
25Jaculbe v. Silliman University,(;.R. No. 1569.14, March l(r,2(X)7.
261)uncan Assrriatiorr of I)etnilnran-l/l'( iW( ) rrrrrl I'txlrtt'l'ccsott v. ( ilitxo
pirrcs. lrtt.
r/Slirr('ot'potitlirxrv.()tl!,sil((),(il,l No l(!l /'/4,Aplil l.t,^l(XXr.
Sec.4 Sec.4 ART. XIII _ SOCIAL JUSTICE AND HIJMAN RIGHTS 1245
Agrarian and Natural Resources Reform
The various aspects of land reform are discussed and, in separate provi-
sions, agricultural land, urban land, and other natural resources (that is,
other lands of the public domain) are singled out for treatment as being
all subject to the general sweep of regulations governing "acquisition,
ownership, use, and disposition."
The first sentence of Section 4 founds the mandate for agrarian
reform on"the right of farmers and regular farm workers, who are land-
less, /o own directly or collectively the lands they till or, in the case of
other farm workers, to receive a just share of the fruits thereof." As
originally formulated, this right was characterized as a basic one. But
Commissioner Bacani saw no necessary and self-evident bond of own-
ership between the tiller and the exact same piece of land he tills. He
pointed out that not in all instances does it follow that a tiller is entitled
to the land he tills, as for example when such land falls under the reten-
tion limits. His own suggestion was to found the right of ownership
upon the exigencies of the common good in the concrete circumstances
of the nation.2s Commissioner Villegas shared the bishop's fears. He
cited the example of Taiwan where agrarian reform involved not the
parceling out of land but the consolidation of small farms for greater
productivity. He warned: "We cannot constitutionalize certain provi-
sions which are requirements of the common good today which may
not be an exigency of the common good in the year 2000."r' Hence, the
adjective "basic" was discarded. Summing up, Commissioner Aquino
SUCH
put it thus: "the polar star
reform
- when we expound the principle of land
is that the farmer has a right to the land he tills, but this is
-
not an immutable right.In other words, his claim of ownership does not
automatically pertain or correspond to the same land that he is actually
and physically tilling.It would yield to the limitations and adjustments
provided for in the second sentence of the first paragraph, specifically
the 'retention limits'. ..."r0
Moreover, subjection to land reform does not depend on the form
of ownership. The laws on agrarian reform simply speak of the "land-
owner" without qualification as to under what title the land is held or
what rights to the land the landowner may exercise. There is no dis-
t
Wcllttrlrx' l'lrrlrlt t|lll Rli('( )l{t) 6 lt
t )"/r/. ul tl.
r"/./ rrl lo
t
1246 THE 1987 CONSTITUTION Sec.4
OF TTIE REPUBLIC OF THE PHILIPPINES
tinction made whether the landowner holds "naked title" only or can
exercise all the rights of ownership. Thus the contention that church
property is exempt simply because the Archbishop holds only naked
title is not tenable. Such contention would seek to create an exemption
not stated in P.D. No. 27 and R.A. No. 6657, and would frustrate the
revolutionary intent of the law, which is the redistribution of agricul-
tural land for the benefit of landless farmers and farm workers.3r
But the choice of the area to be retained by the owner under the
Land Reform Law belongs to the owners.32
2, Holders of the right to own land through agrarian land
reform.
The first sentence of Section 4 sees the right to own the lands
they till as belonging to "farmers and regular farm workers, who are
landless." Thus, the beneficiaries are classified into farmers and farm
workers. Farmers are those who have a tenancy relationship with the
landowners, which relationship may be present or historical.33 Commis-
sionerAquino, while not denying that the owners of retained lands need
not be owner-cultivators themselves, reiterated the "one basic principle
which should be respected" and which is the "basic principle of all land
reform codes presently in effect"
- "that the tenancy relationship be
abolished."'o Indeed, it might be true that there can be a "beneficial
would ben-
tenancy"
- as for example where an agriculturalifworker
efit more from certain tenancy arrangements than he were to receive
the mere minimum wage; but tenancy is generally looked upon as and
develops into a situation which is a source of many inequities. At any
rate, in a situation of owner-cultivatorship, those who are not regular
farm workers have the right to receive a just share of the fruits of pro-
ducticn."
Farm workers are sub-classified into "regular" and "other." Tltis is
a recognition of the substantial differences in the situations of the vitri-
ous farm workers. The right to claim the lands they till is recognizctl
only in the regular farm worker, and only the right to a just sharc in
rlArchbishop v. Secretary, C.R. No. ll92tt5, December 2l,2|J/.17
rrl)anan, et al. v. C.A.. C.R. No. 132759, October 25,2(X)5.
"/r/. at 12-15.
'r/r/. lt l().
''/r/. :rt I l-12.
*l
Sec.4 ART. XIII - SOCIAL JUSTICE AND HIJMAN RIGHTS 1247
Agrarian and Natural Resources Reform
the fruits of production is conceded to the non-regulars. Commissioner
Tadeo himself, undoubtedly the most versed on the agrarian situation
among all the Commissioners, conceded that, in determining the scope
of regular farm workers, "hindi kasama ang mga farm workers sa hasy-
enda at iyong mga nanggagapasan ... [at hindi rin kasamal iyon lang
mga ftemporary workers nal nasa plantasyon, korporasyon, d/ pasture
leases or concessions.",u
With respect to the qualification "who are landless," this phrase
may appear to be clear on its face, but the deliberations show that it
does not mean absolute landlessness. In the course of his interpellation
of Commissioner Tadeo, Commissioner Davide was able to elicit the
response that a farmer who already owns some land, but who works
on the land of another who is a non-tiller, may still be entitled to own
this last-mentioned parcel on the principle of "land for the tiller."37 But,
clearly, this should be on the understanding that what the tiller already
owns is less than the allowable retention limit.
The scope of the right of ownership of an agrarian reform benefi-
ciary can be made subject to limitations. Congress has the right to limit
the beneficiary's right to sell, dispose, or even mortgage the property.
Congress may also take measures to prevent fragmentation resulting
in uneconomical or unproductive sizes. Even the rights of the benefi-
ciary's heirs can be effectively limited. The overriding idea is the pres-
ervation of the concept of an "economic family-size farm" as embodied
in past land reform laws, notably Republic Act No. 3844:"
Can the right of farmers and farm workers be waived? Commis-
sioner Bacani posed the question. The theoretical question divided the
house.re But then, as CommissionerAquino pointed out:oo "The element
of compulsion works against the landowner, but not against the farmer
or the intended beneficiary of the program. The right to waive is not rec-
ognized when it amounts to a waiver in favor of another. Surely, we will
recognize the freedom of choice pertaining to the worker, on whether
or not he is willing to assume the obligation." Commissioner Lerum
put it more simply: "As a member of the Committee, my understanding
v'lt REC()Rt) 624.
I '/lll RI('()Rl) 5 (r.
ull Rl(\)Rl)6()t{; lll Rli('()ltl) l4 l5
Qll.nt?I 'lI
;
'rr'/r/ rtl J,)

1248 THE 1987 CONSTITUTION Sec.4
OF THE REPUBLIC OF THE PHILIPPINES
is that the provision does not contemplate a waiver but that the tenant
may not want to exercise his right."u'And that was the last word on that.
Finally, it should be pointed out that ownership by beneficiaries
can be either individual or collective. But does every kind of collective
ownership satisfy the constitutional mandate? It should be remembdred
that the agrarian reform program is based on the right of farmers and
regular farm workers to own the lands they till.It is therefore essentially
a land-to-the-tiller program. Hence, although collective ownership is
mentioned by the Constitution, it is submitted that only that kind of col-
lective ownership which preserves control of the tiller over the land he
tills satisfies the constitutional mandate.
3. Priorities and reasonable retention limits.
While the Constitution subjects "all agricultural lands" to the en-
visioned agrarian reform program, it also prescribes that the implemen-
tation of the program should be "subject to such priorities and reason-
able retention limits as Congress may prescribe, taking into account
ecological, developmental or equity considerations." Moreover, in de-
termining retention limits, the state is asked to "respect the right of
small land owners."
Priorities refer to various factors which can affect the pace and
scope of implementation and which can make implementation more
manageable. One could, for instance begin with big landholdings, ill-
gotten lands, idle or abandoned lands. Priorities could also refer to crops
or to the location of the land.o'?
As to retention limits, that is, the size of land an individual owner
will be allowed to keep, whether he is a cultivator or not, the general
guideline is that these should be "reasonable."
The term "small landowners" jurisprudentially refers to "teach-
ers, clerks, nurses and other hardworking and frugal people who, in
a lifetime of sacrifice, [have] gathered their pitiful little savings and
purchased small farms to supplement the inadequate pension fiom thc
Government Service Insurancc Systcm or the Social Security System.'!'
'tt Il. rl 23 .
tt
ltl . irt 24'2.
|il l{l('()l{l)
/01
Sec.4 ART. XIII , SOCIAL ruSTICE AND HUMAN RIGHTS
Agrarian and Natural Resources Reform
1249
But it was conceded that Congress would be in the best position to de-
termine just how small such landorvners should be and just how small
the retained lands would be.{ However, "reference to small landowners
does not necessarily mean that they should be owner-cultivators."o'
The important constitutional consideration in all this is that Con-
gress is given discretion to set priorities and retention limits. Various
factors will have to be evaluated in arriving at the proper limitations,
but such factors would to a large extent be matters of wisdom and not of
constitutionality. The over-riding guideline for Congress is that flexible
concept "reasonableness."
But what if Congress sets neither priorities nor retention limits? It
should be noted that the mandate to implement an agrarian land reform
program is addressed to the State
- an entity larger than Congress. And
the parameters for an agrarian land reform program are set down in the
Constitution for the State to follow. Thus, absent priorities and retention
limits set by Congress, but provided that money has been appropriated
for a program, the executive department can proceed with implementa-
tion either in cooperation with landowners voluntarily participating in
the program or through judicial expropriation.
Lands not devoted to agricultural activity are outside the coverage
of Comprehensive Agrarian Reform Law (CARL). These include lands
previously converted to non-agricultural uses prior to the effectively of
CARL by government agencies other than respondent DAR.In its Re-
vised Rules and Regulations Governing Conversion of Private Agricul-
tural Lands to Non-Agricultural Uses, DAR itself defined "agricultural
land" thus
-
... [A]gricultural lands refers to those devoted to agricul-
tural activity as defined in R.A. No. 6657 and not classified as
mineral or forest by the Department of Environment and Natural
Resources (DENR) and its predecessor agencies, and not classified
in town plans and zoning ordinances as approved by the Housing
and Land Use Regulatory Board (HLURB) and its preceding com-
petent authorities prior to l5 June 1988 for residential, commercial
or industrial use.
{{lll Rld'( )l{l) to
I I
{r/r/ nl lo
r250 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
The deliberations of the Constitutional Commission confirm this
limitation. "Agricultural lands" are only those lands which are "arable
and suitable agricultural lands" and "do not include commercial, indus-
trial and residential lands."'u
The CARP statute also requires a notice of coverage to be fur-
nished and sent to the landowner. Notice is part of the constitutional
right to due process of law. It informs the landowner of the State's in-
tention to acquire a private land upon payment of just compensation
and gives him the opportunity to present evidence that his landholding
is not covered or is otherwise excused from the agrarian law. However,
where one who claims to be landowner is such in virtue of a void sale
which was entered into to avoid expropriation, notice to the real owner
satisfies the law's requirement.4T
4. Just compensation.
To the extent that agrarian reform will mean govemment acquisi-
tion of land, whether voluntary or forced, for distribution to agrarian re-
form beneficiaries, there is need to compensate landowners justly. The
agrarian reform program mandated by the Constitution is not a land
confiscation program.
"Just compensation" is a concept that has become the subject of
extensive jurisprudence under the Bill of Rights. Clearly, the jurispru-
dential literature on the subject is relevant to the implementation of an
agrarian reform program. Side by side with this extensive jurisprudence
is the undeveloped jurisprudential area of just compensation under a
land reform program. Literature on this subject, very limited at that,
focuses on a novel mode of measurement devised by President Marcos
in Presidential Decree No. 76, among others, where it was stated that
the measure ofjust compensation is the assessed value of the land or the
value declared by the owner in his tax-declaration, whichever is lower.
Another notion was one which appealed to R'A. No.3844 and the sug-
gestion that just compensation depends on the farmer's ability to pay
and not on the standard of fair market value.o'
a('Remman Entcrprises v- C.A., G.R. No. 132073, Scptcrntrcl 26, 2(X)6.
'17St. Monica lnrlustri:tl v. l)AR, (i.R. Nrt .l (r4tl4(r. .lttttc I ll. 2(X)lJ
.
r*ll RIi('()Rl) 621 .
Sec.4 Sec.4 ART. XIII SOCIAL JUSTICE AND HUMAN
- RIGHTS I25I
Agrarian and Natural Resources Reform
The debates on the subject were long and involved.oo Much of it
was a search for a way of understanding just compensation which at
once would not do violence to Bill of Rights jurisprudence and at the
same time would not make just compensation an insurmountable ob-
stacle to a successful agrarian reform program. In an attempt to find
such a way, Father Bernas made the following observations:s.
FR. BERNAS. In trying to determine just compensation for
purposes of agrarian reform, we must remember that we have to
look at this in the context of the Article where it is. It is in the
Article on Social Justice, and the thrust of this Article is precisely
to make it easier for the disadvantaged to be able to obtain land.
Now, we have P.D. No. 76 about which, in previous remarks I
made,I said that its definition of 'Just compensation" is aprimafa-
cie determination made by the legislative authority of what is just
compensation; namely, the assessed value or the tax declaration of
the owner, whichever is lower. ltis a primafacie declaration. It is
still within the authority of the Supreme Court to take a look at this
in every instance, whether this, in fact, is the just compensation.
But if it comes to agrarian reform, the Supreme Court must look at
this in the context precisely of the Article which is for the benefit
of the disadvantaged. Thus, even if, let us say, the Supreme Court
were to say that this assessed value or tax declaration, whichever
is lower, is not in this particular instance equivalent to the market
value dictated by the market forces, what we are saying here is
that the farmer or farm worker who is obtaining [the land] will
not be forced to pay more than that; but if more has to be paid to
the owner, then the State will carry the burden. This is an effort to
reconcile whatever differences there may be.
There were, however, those who felt that when a word or phrase
appears in more than one place in the Constitution, such word or phrase
should be given a uniform meaning. To which Commissioner Bernas
replied:''
FR. BERNAS: It is true that when one phrase appears in a
constitution, we should try to give it the same meaning as much as
possible. But I think what we are entering into here is sontething
new -just compensation for purposes of land reform.
-
i".lrr lll Rlr('()l{l) l(r l(). )44-247
J
"'/r/. ttt .145.
't ltl. ul ).16.
 THE 198? CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
I would like to discuss this in the context of the three inher-
ent powers of the government; namely, the police power, the pow-
er o1 hxation and the power of eminent domain' When the State
exercises any one of these three powers, it involves always some
loss on the part of the citizen. When it exercises police power,
it can involve the destruction of property without compensation'
When it exercises the power of taxation, again, the citizen, the
taxpayer, incurs some loss because he has to pay a tax' When the
State Lxercises the power of eminent domain, no matter how much
we say that it will be just compensation - the market value - in
effect and in reality, the owner never really gets the value of what
the market forces dictate. It is a necessary contribution which a
citizenmust give to society precisely because society is valuable'
In this particular case, what we are trying to do is work out a
formula for determining just compensation in the context of agrar-
ian reform, which is for the benefit of the underprivileged' And the
starting point we have is the formula given under President Mar-
cos. If the assessment or the tax declaration, whichever is lower,
is not challenged by the owner, then that is the just compensation.
But supposing it is challenged by the owner and then the Supreme
Court iays, "In fact, it is not just compensation," then what hap-
pens? The state makes up for the difference' But I think what we
Le saying is, in a situation where the state cannot make the dif-
ference because the state does not have the money, then we are
authorizing the state to impose on the owner the duty to make the
sacrifice of accepting less than what is normally known as the mar-
ket value.
Summing it all up Fr. Bernas finally said:'2
FR. BERNAS: Mr. Vice-President, I think we have come
to some solutions on this. The main principle is we do not want
the traditional definition of "market value" to be an obstacle to
the implementation of land reform. so, let us say that the actual
markef value of a piece of land is P 1 million, but its assessed value
or its tax declaration is P800000 and that is all that the farmer can
afford, then, as far as the farmer is concerned, he will be bound
only to pay less, but we leave it to the state to try to make up for
the difference in anY waY it can.
171d. il 246-241
Sec.4 ART. XIII - SOCIAL JUSTICE AND HUMAN RIGHTS 1253
Agrarian and Natural Resources Reform
I
i
I But does all that really solve the problem? The explanation of-
I fered satisfied the intent of the Committee that the owner should not
I
receive less than just compensation. Commissioner Rodrigo put it very
li well when he said that "'just compensation'here is not the amount paid
\ by the farmers. It is the amount paid to the owner, and this does not nec-
essarily have to come from the farmer."53 But how much is really due
in justice to the landowner? Put differently, how much of the increase
in the value of the land is due in justice to the landowner so that, if the
farmer cannot pay for it, the State must?
Moreover, it might be asked whether expropriation under Article
XIII is expropriation pure and simple. When pursuant to an agrarian
reform mandate that is intended to reduce inequalities, as social justice
commands, land is taken for redistribution, is the action taken by the
state pure eminent domain or is it not eminent domain mixed with the
exercise of police power? But it is established jurisprudence that loss
incurred due to the state's exercise of police power is not compensable.
It would seem therefore that compensation in expropriation for land
reform should be approached differently than under the Bill of Rights
when property is taken for traditional public purposes.
On this subject,jurisprudence on land reform in Japan can be in-
structive. Just compensation for land reform in Japan was dictated by
law and amounted to less than the market value. It embodied recogni-
tion of the reality that expropriation for land reform was not eminent
domain pure and simple but also exercise of police power which neces-
sary entails loss on the part of those regulated.s4 Perhaps the most obvi-
ous example of this is price control on essential commodities which can
be imposed by the state for the benefit of the public but at the expense
of sellers.
Constitutional Commission debates, however, do not yield this
meaning.In fact, radical departure from traditional eminent domain ju-
risprudence on just compensation could have jeopardized the provision
on agrarian reform itself. The idea of having government make up for
I
that portion of market value which the land owner beneficiary cannot
i
,1
aftord to pay is obviously a compromise. And the fact that the Supreme
i
''/r/. ll I'l Il(.
,ler, 'l'rrrnxn, 'l'tu .lttxutst.
-177
''l liurirhir v .lirlrirrr. / Mrrrslrrrr l5.l I ( l()5'l). l,t,t;tt Sy.sn.u
1254 THE 1987 CONSTITUTION
OFTHE REPUBLIC OFTHE PHILIPPINES
Court declared Marcos legislated just compensation laws unconstitu-
tional, rather than merely declare them prima facie assessment of just
compensation, is indication of the prevalent thinking on the subject."
It is clear then that just compensation also applies in agrarian re-
form. section 4, Article XIII of the 1987 Constitution mandates that the
redistribution of agricultural lands shall be "subject to the payment of
just compensation." The deliberations of the 1986 Constitutional Com-
mission on this subject reveal that just compensation should not do vio-
lence to the Bill of Rights but should also not make an insurmountable
obstacle to a successful agrarian reform. Hence, the landowners'right
to just compensation should be balanced with agrarian reform. It is the
duty of the court to protect the weak and the underprivileged, but this
duty should not be carried out to such an extent as to deny justice to the
landowner whenever truth and justice happen to be on his side.
Since land acquisition under either Presidential Decree No. 27 and
the Comprehensive Agrarian Reform Law is an extraordinary method
of expropriating private property, the law must be strictly construed.
Faithful compliance with legal provisions especially those which relate
to the procedure for acquisition of expropriated lands, e.g.,Ihe need for
notice, should be observed.'u
The Constitution requires just compensation. As a concept in the
Bill of Rights, just compensation is defined as the fair or market value
of the property as between one who receives, and one who desires to
sell. R.A. No. 6657 requires that just compensation should be the full
and fair equivalent of the property taken from its owner by the expro-
priator, the equivalent being real, substantial, full and ample.57
The concept of just compensation, however, embraces not only
the correct determination of the amount to be paid to the owners of
the land, but also payment within a reasonable time from its taking.
Without prompt payment, compensation cannot be considered 'Just"
inasmuch as the property owner is made to suffer the consequences of
being immediately deprived of his land while being made to wait for a
decade or more before actually receiving the compensation.
S('RA.lO5 (l9tt7); Ignttcio
'llixpert l,rocessing Zonc v. l)uliry, 149
36() ( t 987).
"'Jugttlhot v. (lA. (i.R. No. l70.l4(r, Mtrrelt 12,2(X)7.
'/l .rtttrl liitttkv. l)tnrrirtgtt,(i,R.No l(rt{5}}.li'lrrrrlrly'l'.1(X)l{
Sec.4 ART- XIII - SOCIAL JUSTICE AND HUMAN RIGHTS 1255
Agrarian and Natural Resources Reform
Put differently, while prompt payment of just compensation re-
quires the immediate deposit and release to the landowner of the provi-
sional compensation as determined by the DAR, it does not end there.
Verily, it also encompasses the payment in full of the just compensation
to the landholders as finally determined by the courts. Thus, it cannot
be said that there is already prompt payment ofjust compensation when
there is only a partial payment thereof.5'
5. Voluntary land sharing.
The proponent of the provision on voluntary land sharing, Com-
missioner Rosario Braid, explained her proposal as follows:'n
I think we are all concerned that the govemment should take
the primary responsibility in agrarian reform and that we should
put more teeth in the implementation of the program so that we
can redress present imbalances and inequities. But 10 years from
now, we would like the government to assume a lesser role. We
would like to see more initiative from the people. We would like
to encourage efforts like what is happening in Negros in terms of
voluntary land sharing. We would like to be able to help reori-
ent the middle class, the landlords, the employers so that we can
change adversarial or confrontational strategies to cooperative and
harmonious relationships.
For voluntary sharing to be attractive, the state must offer incen-
tives such, for instance, as tax incentives. However, in no way should
voluntary land sharing be allowed to become a mode of circumventing
agrarian reform.6o
6. The Comprehensive Agrarian Reform Law: R.A. No.
6657.
The comprehensive Agrarian Reform Law, Republic Act No.
6657 implements the agrarian reform provisions of the Constitution.
No sooner than it came into effect, however, some of its key provisions
were immediately challenged as an unconstitutional form of expropria-
tion of private lands. The challenge gave the Supreme Court the oppor-
tunity to set to rest some of the problems raised.
(iucrrcto, S('RA
v. 1.50
'tl.lrxl llirnk v. S;xrtscs ()r'illrr, (i.R No. I 57206. Junc 27. 2(X)R
'"hl.2ll.
('r./. ?tl ().
,).1 |
1256 THE 1987 CONSTITI,]TION Sec.4 Secs.5-6 ART. XIII SOCIAL JUSTICE AND HUMAN RIGHTS
- 1257

OF THE REPUBLIC OF THE PHILIPPINES Agrarian and Natural Resources Reform

Association of Small Inndowners v. Secretary of Agrarian Re- in the Similarly, Natalia Realty v. Department of Agrarian
records.65

form,t characterized the law as an exercise both of police power and of Reformuu explains that the Constitution has excluded mineral, forest,
eminent domain. The extent that it sets retention limits, it is an exercise residential commercial or industrial lands.
of police power. But the taking of private lands for redistribution is
an exercise of the power of eminent domain revolutionary in character Snc. 5. TUB Srnrn sHALL RECocNIZE THE RIGHT oF FARMERS'
in that it "affects all pivate agricultural lands wherever found and of FARM WORKERS, AND LANIX)WNERS, AS WELL AS COOPERATMST AND
oTHER INDEPENDENT FARMERS'ORGIXIZITIONS TO PARTICIPATE IN TIIE
whatever kind as long as they are in excess of the maximum retention
PLANNING, ORGANIZATION, AND MANAGEMENT OF THE PROGRAM, AND
limits allowed their owners. This kind of expropriation is intended for
SHALL PROVIDE SUPPORT TO AGRICULTURE THROUGH APPROPRIATE
the benefit not only of a particular community or of a small segment of
TECHNOLOGY AND RESEARCH, AND ADEQUATE FINANCIAL, PB,ODUCTION'
the population but of the entire Filipino nation, from all levels of our MARKETING, AND OTHER SUPPORT SERVICES.
society, from the impoverished farmer to the land-glutted owner. Its
purpose does not cover only the whole territory of this country but goes
1. Right to participate in management of program.
beyond in time to the foreseeable future, which it hopes to secure and
edify with the vision and the sacrifice of the present generation of Fili- The right to participate, more than just the right to be consulted,
pinos." In this sense too it honors the constitutional requirement of pub- in the planning, organization, and management of an agrarian reform
lic use. Moreover, the discretion to determine which lands to take for program is already implicit in Section 16 of this article. The repetition
early distribution is something that is given to the wisdom of Congress. here is for emphasis. It parallels a similar right recognized in workers
in Section 3.67 This, however, is a right only of farmers and regular farm
The decision also defends the compensation and land transfer workers to participate in the program itself. The right of non-regular
scheme. Administrative authorities initially determine what is just com-
farm workers is that of laborers under Section 3.u' It should be noted,
pensation; but this is subject to review by the courts. The fact, more-
moreover, that what is referred to is participation in the management
over, that compensation may be in the form of financial instruments and
of the land reform program, not participation in the management of a
not money is also justified by the revolutionary character of the scheme
privately-owned farm.6e
and the need to allow government time to raise the money needed. Mad-
dumba v. G,SIS,'2 would later add that government owned corporations The second clause of Section 5 is an indispensable component of
and financial institutions are required to accept such financial instru- any successful land reform program. It must include adequate support
ment at full face value.It has also been explained that title to the land, services.
even if already transferred to the beneficiary, does not pass to the latter
until the farmer has complied with his obligations.u3 Src.6. Tnr Smrr sHALL Appr-y rHE pRINCIpLES oF AGRARTAN
REFORM OR STEWARDSIIIP, WHENEVER APPLICABLE IN ACCORDANCE
Luz Farms v. Secretary of Agrarian Reformu clarifies further that WITH LAW, IN TIIE DISPOSITION OR, UTILIZATION OF OTHER, NATURAL
the inclusion of land devoted to the raising of livestock, poultry and RESOURCES, INCLUDING LANDS OF THE PUBLIC IX)MAIN UNDER LEASE
swine in the coverage of the Comprehensive Agrarian Reform Law is oR coNcBssloN surrABLE To AGRrcuLTIlR.E, SUBJECT TO PRIOR
unconstitutional. This judgment was based by the Court on what it con- R.TGHTS, HOMESTEAD RIGr{TS OF SMALL SETTLERS, AND THE RIGHTS OF
cluded was the intent of the drafters of the Constitution as revealed INDIGENOUS COMMTJNITIES TO THEIR. ANCESTR.AL LANDS.

6rSee ll RFI('ORD 621.III RRCORD 13.

6rG.R. No. 7 87 42, 7 93 I O, 7 97 44, 19117, Jrt ly I 4, I 91t9. 'n'Augrtsl 12, 199]. Srr lll Rli('ORl)32-34,156-160.
62G.R. No- 6129 t, February 15, l9q). "tld. il 7 l0 7 I 2. Notc. hrwt'vcr, thirl ht:re landowners are mentioned and included
6rVinzrtns-Magana v. Flslrt'lln, (i.R..No. (l{)25(), St'plctttht'r I l. l()() I
nrll Rl('()Rl) (rll (rll
'i( i.R. No. ll(rlll{(). I )ecutthcr' 4, |
()(X). ""ll. ti 641 .

lJ
l2s8 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
TtlN SUTN MAY RESETTLE LANDLESS FARMERS AND FARM
WORKERS IN ITS OWN AGRICULTURAL F.STATES WHICH SHALL BE
DISTRIBUTED TO THEM IN TIIE MANNER PROYIDED BY LAW.
1. Agrarian reform and natural resources'
Section 6 extends the principles of agrarian reform to the disposi-
tion of other natural resources. At the heart of agrarian reform is the
principle capsulated in the phrase "land to the tiller." It is this which
must be applied, mutatis mutandis,to the utilization of natural resourc-
es. Thus one may speak of "natural resources reform"'
The nation's principal natural resource is land of which, constitu-
tionally, there are two basic kinds: alienable and inalienable. Section 6
refers io utilization of lands of the public domain. Applying the prin-
ciple to alienable land, Commissioner Monsod had this explanation:'o
[I]t is the intention of the Committee that the principles of
agrarian reform be practiced by the state itself when it does dispose
oi alienate lands of the public domain. The example is the Guthrie
palm oil plantation of which 8,000 hectares were initially declared
ty Oecrei to be alienable and disposable, but were disposed of in
fivor of the NDC. The NDC then went into an agreement with
Guthrie on a 60-40 basis. This is an example where, perhaps the
State should at first have thought of the people who were there,
that they should have been given an opportunity to have the own-
ership of this land since it was going to be alienated and disposed
of anyway. The principal thing is that the State should start with its
own backyard, if it is serious about agrarian reform'
Applied to other natural resources, commissioner Monsod had
this explanation:"
In the case of other natural resources' let us say, forestry or
mining, the intent of this provision is merely to say that in applying
the principle of agrarian reform, the chief beneficiaries should be
the people in the areas. So, instead ofhaving absentee logging con-
owned by people outside the area, the people in the area
""ttiotti
and the communities themselves should be considered, too, as the
principal bbneficiaries. The people may be entrusted with the land
Lut [these lands] need not be given to them by title. It can be the
1ttld. at7O2.
1t
Id.
Sec' 6 Sec. 6 ART. XIII - SOCIAL JUSTICE AND HUMAN RIGHTS 1259
Agrarian and Natural Resources Reform
same kind of concession or rights that are now given under the law.
lfthey are the ones given that right, we expect that they will take
better care of the area because their children and grandchildren
will still be there and, therefore, they would undertake activities
like reforestation.
But what of the word stewardship? This was introduced by Com-
missioner Romulo who, when asked for an explanation of its legal
meaning, said that "the individual would have free use or free occu-
pancy but he would not be given a legal title to the land. That is what
we call in law a usufructuary."t'Commissioner Nieva understood this
to apply to inalienable lands. She added, moreover, that the principle
of agrarian reform would expect that "the State shall give them all the
support and assistance that they would need to be successful in their
utilization of these natural resources."73
Briefly, then, what Section 6 has done is to go back to what Com-
missioner Tadeo always adverted to when speaking of the scope of land
reform. Tadeo always had recourse to the broad definition of lands ar-
ticulated by Dr. Mahar Mangahas: "In principle, the term 'lands'would
include all forms of natural resources, including mineral, forests and
water resources, whether public or private, whether titled or untitled,
whether presently controlled by Filipinos or non-Filipinos, over which
there is social conflict induced by an unjust distribution."zo Thus miner-
al and forest resources, including timber concessions, water resources,
and pasture concessions, although covered by existing valid contractual
and vested rights, come under the principle of agrarian reform in one
way or another but short of alienation."
The second paragraph of Section 6 owes its existence to the ad-
vocacy of Commissioner Ople, joined by Commissioner Nolledo. Ople
reminded the Commission that resettlement in the government's agri-
cultural estates was the preeminent form of agraian reform under the
Magsaysay administration and was used in other nations as well. The
"farmers" and "farm workers" here mentioned are not to be consid-
ered as agricultural employees of the state, but rather as resettlers and
eventual owners of the land once these estates are dissolved.'u The term
,TIII RECORD 40.
t'ld. ,rt 4l .
r{il Rli('()Rl) ({A. 67?.
t'll. tt 66,1.
I'lll Rl('( )l{l) 17 lll
t2ffi THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
"farm workers" in this Section, moreover, also includes laid-off indus-
trial workers who might want to return to the provinces and engage in
farming."
SBc. 7. Tns srATr sHALL pRorECT THE RIGHTS oF s{JB-
SISTENCE FISHERMEN, ESPECIALLY OF LOCAL COMMUNITTES, TO
TIIE PREFERENTIAL USE OF THE COMMUNAL MARINE AND FISHING
RESouRcES, BorH INLAND AND oFFsHoRE.Ir sn.Lr,r, pRovIDE sllppoRT
TO SUCH FISHERMEN TIIROUGH APPROPRIATE TECHNOLOGY AND
RESEARCH, ADEQUATE FINANCIAL, PRODUCTION, AND MARKETING
ASSISTANCE, AND OTHER SERVICES. TIIE STATE SIIALL ALSO PROTECT,
DEvELop, AND coNSERvE sucH REsouRCEs. Tnn pnorncrloN sHALL
EXTEI{D TO OFFSHORE FISHING GROUNDS OF SUBSISTENCE FISHERMEN
AGAINST FoREIGN INTRUSToN. Frsx wonxrRs SHALL RECEIvE A
JUST SHARE FROM THEIR LABOR IN THE UTILIZATION OF MARINE AND
FISHING RESOURCES.
1. Special rights of subsistence fishermen and fish workers.
Another first in Philippine constitution-making is the inclusion of
Section 7 which makes specific reference to the rights of small fisher-
men. Committee Chairperson Commissioner Nieva, in her sponsorship,
manifested the Committee's sentiment that "this is a very important
provision in view of the fact that the sea area is six times bigger than the
land area in our country."78 The Committee Report had originally styled
the envisioned program as "Aquatic Resources Reform" but the provi-
sions ended up instead subsumed under the present heading of Agrarian
and Natural Resources Reform.
The provision was formulated principally against the background
of two problems: the problem created by the privatization of large por-
tions of the Laguna de Bay area and the problem of foreign flshing
vessels allowed by treaty to conduct trawl fishing within seven kilo-
meters from the Philippine shotes, both of these effectively depriving
subsistence fishermen of their livelihood. The Commission deemed
the protection given by the Fisheries Act, Republic Act No. 4003, tts
amended, inadequate when face to face with interests backed up hy
political patronage.Te
77|d. at 39 .
ilII RECORD 607.
7eld.
trtJ06.
Sec.7 Sec.7 ART. XIU _ SOCIALJUSTICEAND HUMAN RIGHTS 126I
Agrarian and Natural Resources Reform
The first sentence states the basic protection. The objects of pro-
tection are "subsistence fishermen." Although who these are will ulti-
mately have to be defined by Congress, Commissioner Ople already
gave the broad guidelines:8o
[T]he phrase 'subsistence fishermen' should be used liber-
ally in the sense that it should not be restricted to the poorest fish-
ermen who are on the edge of existence day to day and who will
perish if they do not fish tomorow. Some fishermen may be a little
bit more affluent than the others, but by the standard of the really
big commercial fishing vessels, they are all subsistence fishermen.
And so, the intent of the proposal is almost all-encompassing with
respect to real and actual fishermen in the area who fish for a liv-
ing.
And once identified as such, they would carry the right given them
by the Constitution wherever they might choose to fish, but subject to
rights of community subsistence fishermen.8'
The right given to subsistence fishermen is the preferential, but
not exclusive, use of communal marine fishing resources, both inland
and offshore. What these communal areas are is to be left to legislative
declaration, although an attempt was made to have all marine and fish-
ing resources considered a priori communal.t2 These, however, do not
include "municipal fishing grounds" which are considered propios of
the municipality in the exercise of their proprietary functions. These
municipal fishing grounds are unique in the coastal towns of Bulacan.
Nor are the fishponds outside of lakes and rivers counted as communal.
These are private properties.s3
Section 7 also specifies protection against foreign intrusion in off-
shore fishing grounds. Originally, Commissioner Ople had proposed
that such protection should extend over the whole of the national ter-
ritorial waters
- thus embracing the territorial sea, the internal waters,
the archipelagic waters (to the extent that these belong to our territorial
waters), as well as the Exclusive EconomicZone (to the extent that this
is part of internal waters).8a Later he chose to be more modest:85
K'ld. at 68.
srlll RFtcoRD 49-50.
Nlld. ut 4f-44,4t1.
8\
Id . n. 43-44.
N'Irl. ut 55.
Nt/r/. ttl 5(r.
t262 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
[W]hen we speak of the territorial sea, this can extend, I
understand, to about 300 miles from the nearest base lines under
the archipelagic theory. This may modify the scope of the article
which is meant to be an article on social justice, in support of so-
cial justice for fishermen to something like a policy on national se-
curity and foreign relations. So I want to be more modest - keep
the idea of this protection within bounds and to an extent that the
State, without arousing false hopes and expectations, can actually
endeavor to carry out. And I feel safer when for purposes of de-
termining the intent of this Commission, we really want to confine
ourselves to protecting the territorial waters of the Philippines.
Maybe someday when we have a real navy and a coast guard capa-
ble of policing the entire length and breadth of the country which
is twice the coastline of the United States, then the construction of
this paragraph can rise to a new level; it also means that the State
has a duty to protect our marine resources and the rights of our
small fishermen from foreign intrusion in the territorial sea.
Interpellated by Commissioner Davide who wanted to know
Ople was in fact referring to "internal waters," Ople replied: "Yes, with-
out prejudice to any other section of the Constitution, raising its sights
higher with respect to the protection of our territorial seas for purposes
of national security." In the end, the final text was even more modest,
referring as it now does only to "offshore fishing grounds." Moreover,
foreign intrusion refers principally to foreign fishing vessels, but also
to foreign capital.* But all this must be read in conjunction with Article
XII, Section 2, whose second paragraph says: "The State shall protect
the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively
to Filipino citizens." This sentence of Article XII in fact originated from
the social justice discussions in connection with subsistent fishermen."
Subsistence fishermen shall also have the right to expect support
from the government by way of appropriate technology and research,
adequate financial, production, and marketing assistance, and other
support services. The state, moreover, is enjoined to take steps towards
the protection, development, and conservation of the communal marine
and fishing resources.
8"/r/. at 55.
*'/r/. itl 57"5()
Sec.7 Sec.8 ART. XIII SOCIAL ruSTICE AND HUMAN
- RIGHTS 1263
Agrarian and Natural Resources Reform
Finally, as in the Labor and Agrarian Reform portions of Article
XIII, fish workers are assured the right to a just share from their labor in
the use of marine and fishing resources. This last sentence of Section 7
was authored by Commissioner de los Reyes who pointed to a category
of workers who did not seem to be covered by existing labor laws.
This includes bugadores or fish-haulers, maniniklis or fish sorters, and
pescadores or fish-haulers and sorters. These do not seem to have an
identity in law and are at the mercy of employers, and are exploited by
owners of motorized bancas and trawlers. Their remuneration generally
comes in the form of a share in the catch such that if there is no catch,
they earn nothing.88
Snc. 8. Tnn Surn SHALL pRovrDE rNCENTrvf,s ro LAND-
OWNERS TO INVEST TIIE PROCEEDS OF THE AGRARIAN REFORM
PROGRAM TO PROMOTE INDUSTRIALIZATION, EMPLOYMENT CREATION,
AND pRrvATrzATIoN oF pUBLIC sncroR ENTERpRISEs. FrNnr,{cr,lt,
INSTRUMENTS USED AS PAYMENT FOR THEIR LANDS SHALL BE HONORED
if AS EQTIITY IN ENTERPRISES OF THEIR CHOICE.
1. Agrarian reform and total development.
Section 1 of Article XII dictates the need to establish a dynamic
relationship between agricultural development and industrialization.
Section 8 sees agrarian reform as a unique instrument for releasing
capital locked up in land for use in industrialization in particular and
economic development in general. For this purpose, government must
create an atmosphere favorable to investment by, among others, provid-
ing landowners with incentives to investment, and by placing usable
capital in the hands of landowners subjected to agrarian reform. But,
almost certainly, full payment in cash would not be possible and, even
if possible, might not be economically wise. At the same time, however,
the memory of the almost useless Land Bank bonds used in the agrarian
reform program of the former regime was very much in the conscious-
ness of the Commission. For this reason, the last sentence of Section 8
places a constitutional guarantee on both the value and negotiability of
government bonds. The guaranteed negotiability, however, is only in
transactions with government and government financial institutions.s,
^*ltl. rt'I l '16
r"/r/. ttl ll(r lJ7
t2& THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
Moreover, an observation made by the Court is important: "Admittedly,
the compensation contemplated in the law will cause the landowners,
big and small, not a little inconvenience. As already remarked, this can-
not be avoided. Nevertheless, it is devoutly hoped that these country-
men of ours, conscious as we know they are of the need for their for-
bearance and even sacrifice, will not begrudge us their indispensable
share in the attainment of the ideal of agrarian reform. Otherwise, our
pursuit of this elusive goal will be like the quest for the Holy Grail."*
URBAN LAND REFORM AND HOUSING
Src. 9. THs SrATe sHALL, By LAw, AND FoR THE coMMoN
GOOD UNDERTAKE, IN COOPERATION WITH THE PRIVATE SECTOR, A
CONTINUING PROGRAM OF URBAN LAI{D REFORM AND HOUSING WHICII
WILL MAKE AVAILABLE AT AFFOR,DABLE COST DECENT HOUSING AND
BASIC SERVICES TO UNDERPRIVILEGED AND HOMELESS CITIZENS IN
uRBAN CENTERs AND REsETTLEMENT AREAS. Ir sHlr-r, ALso pRoMorE
ADEeUATE EMpLoyMENT oppoRTUNrrrES To sucH crrlzENs.
IMpLEMENTATToN oF suclr pRocRAu rne Smrn SHALL REspECT THE
RIGHTS OF SMALL PROPERTY OWNER,S.
1. Program of urban land reform and housing.
The problem which this Section and the next seek to answer was
described by Commissioner Nieva thus:e'
We are an ill-housed nation with a high percentage of our ur-
ban population estimated at five million squatters living in subhu-
man conditions. This concern was the target of the 1984 plebiscite
and is now provided for in Article XIV Section 12 of the 1973
Constitution. However, efforts in implementing this program have
been far from satisfactory. An example of these are the BLISS
programs which are certainly not within the reach of the poor
majority.
To this, Commissioner Sarmiento added that President Marcos
promulgated decrees on the subject, such as P.D. Nos. 1517 and 1640,
as well as Proclamation Nos. 1767 , 1893, and 1967 , and still tfie prob-
qlSantos (l.R No, Ll74.l
v. l,and llank, Scptcrnhcr 7, 2(XX)
I.
,'il REC()RD fi)7.
Sec.9 Sec.9 ART. XIII - SOCIAL JUSTICE AND HUMAN RIGHTS 1265
Urban Land Reform and Housing
lems remain.n'Commissioner Villegas added that housing programs in
the country address different kinds of markets. "Open market housing
program" is addressed to those of the higher income sector who can
afford to choose the kind of houses they want. "Economic market hous-
ing program" addresses the lower income bracket who are in search
of affordable housing. Finally, the "social housing program" addresses
those who cannot afford even low cost housing and therefore need some
form of subsidy. This third is the principal object of concern of the con-
stitutional mandate.e3 Moreover, the objects of concern of this Section
are not just the underprivileged in general but the "underprivileged and
homeless," because there are underprivileged people who enjoy inher-
ited homes.*
Section 9 recognizes the magnitude of the problem and therefore
considers it a matter that should receive the attention not only of the
government but also of the larger society. Hence, urban land reform and
housing are to be undertaken "in cooperation with the private sector."'5
Ix nrp And since what is envisioned is not open market housing or even eco-
nomic housing but principally social housing, what is needed is not
just regulation of "urban land use" but urban land "reform." Sr. Tan
observed that the use of the word "reform" indicates that there has been
an unjust utilization of land which therefore needs reformation.e6 Nec-
essarily, therefore, police power would have to come into place and,
where necessary, together with eminent domain.eT Commissioner Foz
e2ld. at652.
e3
Id . at 7 16-7 l'l .
qIII RECORD 92.
%ld. at9O,92.
%ld. at9l.
eCommenting on the "no-two families in one lot rule" in Forbes Park, Justice Hugo Guticr-
rez, Jr. says: "I believe that the zeal with which the private respondent enforces the disputed single
family restriction is intended to insure that Forbes Park real estate values remain higher - much,
much higher * than the values in any other residential area in the whole country. In other words,
what the Court is protecting are not sanitation, peace and order, comfort, or aesthetic surrounding
which would not in the least bit be affected by two families sharing one big house in Forbes Park,
but inflated land values and an elitist life style. Under the disputed provision, one family could
hire a battalion of servants, driverc,yayas, gardeners, butlers, fbotmen, gr<xrms, cooks laundresscs
and other lackeys without violating the single family rule. It is not overcrowding which is sought
to be avoitftd but something else.
"Metro Manila has run out of availablc rcsidcntial land lbr its huge and still cxpl<xling
populution. l,und usc has to hc nrtiorralizcd. Without sacrilicing thcir currrlirrt and security, thc rich
huvc to yicltl u littlc. I crxrsitlcr it u wustc ol sc:rrec rcsolrrccs il prt4trty w(n'llr scv(:ntl millions of
lxsos is linritctl in ils usc io onc vrlilrrly lrrrrrily, rxr rrilllcr lr()w stttall, wltctt il cotrld urtntirrttbly
Irousc lwo rx rrrrlc lirrrr ilrcs nr llrt' I rul oI cr rrr loll rrrxl lrr x rrry wlrrt lt is uttdrt'ttttnl oI ('vclt l( ) ultlrcl
1266 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
enumerated the goals of an urban land reform program:e8
First, to liberate human communities from blight, conges-
tion and hazards to promote their development and modernization;
second, to bring about the optimum use of land as a national re-
source for public welfare rather than as community [sic] of trade
subject to price speculation and indiscriminate use; third, to pro-
vide equitable access to and opportunity for the use and enjoyment
of the fruits of the land; fourth, to acquire such lands for public
welfare; and finally, to maintain and support a vigorous enterprise
system responsive to community requirements in the use and de-
velopment of urban lands.
Important elements of the program therefore should be "basic ser-
vices" and "adequate employment opportunities." The use of the word
"basic" is deliberately chosen as a signal that the program does not call
for unnecessary amenities such as community swimming pools.'And
in order to avoid the impression that what the provision contemplates
is merely the continuation of existing identifiable unsatisfactory urban
land reform programs, Section 9 does not capitalize the initial letters in
"urban land reform and housing."r.' Finally, lest this social justice pro-
vision should work against those who have less in life, Section 9 adds
the final caution: "In the implementation of such program the State shall
respect the rights of small property owners."
Snc.10. UnnaN oR RURAL PooR DwELLERS sHALL Nor
EVICTED NOR THEIR DWELLINGS DEMOLISHED' EXCEPT IN ACCORDANCE
WITH LAW AND IN A JUST AND HUMANE MANNER.
No nnsnrrr,rMENT oF URBAN oR RURAL IIwELLERS sHALL BE
UNDERTAKEN WITHOUT ADEQUATE CONSULTATION WITH THEM AND THE
COMMUNITIES WHERE TIIEY ARE TO BE RELOCATED.
middle income people. The very rich have the right to enforce their exclusive life styles through
voluntary compliance but when the Courts step in to validate and enforce an unreasonable restric-
tion, I am constrained to dissent.
"I am not suggesting that affluent suburban enclaves should be allowed to deteriorate into
monotonous boxJike government housing projects or, worse, into slums or squatter colonies. My
only concern is with this Court's validating restrictions whose obvious purpose is to jack up pmp-
erty value to heights which are incongruous against [sic] the grinding poverty and hand-to-mouth
subsistence of the overwhelming masses of our people." Cariday Investment v. Court of Appcttls,
G.R. No. 83358. August 2,1989.
e8ld.
at90.
eld.
r(r)/r/. at 7lll. llttt thc l9tl7 (iltstitrrlion rkx's rrrll nt'ccssrtrily ittvttlitlltttr lttr:vitltts ttrlrtttl lttntl
/z/. nl 659, (r7(r.
rctbrnt lttws.
Sec. l0 Sec. l0 ART. XIU _ SOCIAL IUSTICEAND HUMAN RIGHTS 126',7
Urban Land Reform and Housing
1. Dealing with "squatters."
The phrase "urban or rural poor dwellers" refers principally to
squatters. The intent ofthe provision is to prevent the recurrence ofpast
abuses when law enforcement agents would move in, bulldoze dwell-
ings, and even inflict violence on persons.r0' As Commissioner Garcia
observed:'02
Our historical experience precisely refers to urban poor
communities occupying unused lands or abandoned lands where
they have been living for a long time. In the past, whenever there
was an excuse for the government to evict them, it would bring in
the military or police to drive the people out by force without any
kind of consideration as to the historical circumstances and to the
rights of these inhabitants who, after many long years, have been
residents ofthat area and have foundjobs nearby.
The protection given by the provision extends to both those who
have valid claims to stay on the land and to those who do not.'03 But
evictions are not prohibited. The constitutional command simply says
that, if evictions there must be, these must be conducted "in accordance
with law and in a just and humane manner." Due process must be ob-
served. But due process does not necessarily mean judicial due pro-
cess.ro4 In every case the law must be carried out "in a just and humane
manner." Even violators of the law are entitled to humane treatment.
BE
The second paragraph commands that every relocation process
must be preceded by consultation with the dwellers to be relocated and
also with the communities where they are to be relocated. This, how-
ever, "does not mean that the validity or legality of the demolition or
eviction is hinged on the existence of a resettlement area designated
or earmarked by the government." Rather, it means that "the person
to be evicted be accorded due process or an opportunity to controvert
the allegation that his or her occupation or possession of the property
involved is unlawful or against the will of the landowner; that should
the illegal or unlawful occupation be proven, the occupant be sufficient-
ly notified before actual eviction or demolition is done; and there be
rlrll Rli('()Rl) 625. 642.
ttttIl. tl (t7 .1.
r"'/r/. ll 7 l.l; lll l{l('( )lll) () I
i |x/r/. ttl () l, ()(r,
..i
1268 THE 1987 CONSTITUTION
OF THE REPUBLIC OF THE PHILIPPINES
no loss of lives, physical injuries or unnecessary loss of or damage to
properties."'05
The law on eviction and demolition is R.A. No.7279 (1992)
SECTION 28. Eviction and Demolition. - Eviction orde-
molition as a practice shall be discouraged. Eviction or demoli-
tion, however, may be allowed under the following situations:
(a) When persons or entities occupy danger areas such as esteros,
railroad tracks, garbage dumps, riverbanks, shorelines, waterways,
and other public places such as sidewalks, roads, parks, and play-
grounds; (b) When government infrastructure projects with avail-
able funding are about to be implemented; or (c) When there is a
court order for eviction and demolition.
In the execution of eviction or demolition orders involv-
ing underprivileged and homeless citizens, the following shall
be mandatory: (l) Notice upon the effected persons or entities at
least thirty (30) days prior to the date of eviction or demolition;
(2) Adequate consultations on the matter of settlement with the
duly designated representatives of the families to be resettled and
the affected communities in the areas where they are to be relo-
cated; (3) Presence of local government officials or their repre-
sentatives during eviction or demolition; (4) Proper identification
of all persons taking part in the demolition; (5) Execution of evic-
tion or demolition only during regular office hours from Mondays
to Fridays and during good weather, unless the affected families
consent otherwise; (6) No use of heavy equipment for demolition
except for structures that are Permanent and of concrete materials;
(7) Proper uniforms for members of the Philippine National Police
who shall occupy the first line of law enforcement and observe
proper disturbance control procedures; and (8) Adequate reloca-
tion, whether temporary or permanent: Provided, however, That
in cases of eviction and demolition pursuant to a court order in-
volving underprivileged and homeless citizens, relocation shall
be undertaken by the local government unit concerned and the
National Housing Authority with the assistance of other govern-
ment agencies within forty-five (45) days from service of notice
of final judgment by the court, after which period the said order
shall be executed: Provided,further,That should relocation not be
possible within the said period, financial assistance in the amount
IoiPcople v. Jutlgc l,cuchort, (i.R. Nos. lOll725 2(r, Scptcrtrlrcr'25, l()qtl
Sec. l0 Secs. 11-12 ART. XIII - SOCIALJUSTICEAND HUMAN RIGHTS t269
Health
equivalent to the prevailing minimum daily wage multiplied by
sixty (60) days shall be extended to the affected families by the
local government unit concerned. This Department of the Interior
and Local Government and the Housing and Urban Development
Coordinating Council shall jointly promulgate the necessary rules
and regulations to carry out the above provision.
SECTION 29. Resettlement.
- Within two (2) years from
the effectivity of this Act, the local government units, in coordi-
nation with the National Housing Authority, shall implement the
relocation and resettlement ofpersons living in danger areas such
as esteros, railroad tracks, garbage dumps, riverbanks, shorelines,
waterways, and in other public places as sidewalks, roads, parks,
and playgrounds. The local government unit, in coordination with
the National Housing Authority, shall provide relocation or reset-
tlement sites with basic services and facilities and access to em-
ployment and livelihood opportunities sufficient to meet the basic
needs of the affected families.
A person occupying land may be relocated and the improvements
on land demolished by the National Housing Authority (NHA) authori-
ties as part of its mandate to improve blighted areas. The NHA, as the
decree's designated administrator for the national government, is em-
powered to take possession, control and disposition of the expropriated
properties with the power of demolition of their improvements. There
is no violation of social justice.,ft
HEALTH
Snc. 11. Tnt smrn sHALL ADopr AN INTEGRATED ANI)
COMPREHENSIVE APPROACH TO IIEALTH DEVELOPMENT WHICH SHALL
ENDEAVOR TO MAKE ESSENTIAL GOODS, HEALTH AND OTIIER SOCIAL
SERVICES AYAILABLE TO ALL TIIE PEOPLE AT AFFORDABLE COST.
Tnrnn SHALL BE pRIoRITy FoR TI{E NEEDS oF THE uNDERpRTVTLEGEn
SICK, ELDERLY, DISABLED, woMEN, AND CHILDREN. Tne Smrn snAI r,
ENDEAVOR TO PROVIDE FREE MEDICAL CARE TO PAUPERS.
Snc. 12. Tnr Smrn SHALL EsrABLrsH AND MATNTATN AN
ET'IIECTIVE F(X)D AND DRTIG REGTILATORY SYSTEM AND UNDERTAKE
APPR0PRIA-I'I.] TIIIAIJI'II MANPOWI]R I)DVF]I,OPMENT AND RESEARCH,
RttsP()Nstvt)'t'()'r'Ht,r rrltrN't'tryts HllAtiIH Nlillt)s ANt) PROBL,EMS.
"'Mrtgkttlrtr v NllA. ( i.l{. Nrr I tBt(,r l,1i''t)tcntln'r I /, .r(Xltl
,*.i
t2'10 THE 1987 CONSTITUTION Secs. I 3-14 Secs. 15-16 ART. XIII - SOCIAL JUSTICE AND HUMAN RIGHTS l27l
OF THE REPUBLIC OF THE PHILIPPINES Role and Rights of People's Organizations

Snc. 13. Tnn SrATr sHALL ESTABLISH A spEcIAL AGENCy FoR OPPiORTUMTIES THATWILL ENHANCE THEIR WELFARE AND ENABLE
DISABLED PERSONS FOR THEIR REHABILITATION, SELF.DEVELOPMENT THEM TO REALIZE THEIR FULL POTENTIAL IN TI{E SERVICE Of,'THE
AND SELF.RELIANCE, AND THEIR INTEGRATION INTO THE MAINSTREAM NATION.
OF SOCIETY.

l. Special protection for women.

1. Integrated and comprehensive heatth delivery system.
While Section 14, Article II asserts the fundamental equality be-
As already seen under Section 15, Article II, the Constitution tween women and men, this Section 14 implicitly acknowledges that
recognizes a right to health. The Philippines is party to the Universal between women and men there are distinctions which make for real
Declaration of Human Rights and the Alma Conference Declaration of differences. Wve la dffirence!
1978 which recognize health as a fundamental human right. Health is
defined as the state of complete physical, mental and social well-being, ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS
and not merely the absence of disease or infirmity.'o'
SBc. 15. Tne Smrr snlr,r, REspEcr rr{E RoLE oF TNDEpENDENT
The key concepts in Section 11 are "integrated and comprehen- pEopI,Ets oRGAMzATIoNs ro ENABLE THE pEopLE To puRsuE AND
sive" and "affordable." Integration connotes a unified health delivery PROTECT, WITHIN THE DEMOCRATIC TRAMEWORK, TIIEIR LEGITIMATE
system, a combination of public and private sector, and a blend of AND COLLECTIVE INTERESTS AND ASPIRATIONS THROUGH PEACEFUL
western medicine and traditional health care modalities. Comprehen- AND LAWFUL MEANS.
siveness includes health promotion, disease prevention, education, and Ptoplnts oRGANrzATroNs ARE BuNA FrDE ASSocIATroNs oF
planning. These are premised on the understanding that the high level CITIZENS WITH DEMONSTRATED CAPACITY TO PROMOTE THE PUBLIC
of health of a people and of a country can be achieved only through a INTEREST AND WITH IDENTIFIABLE LEADERSHIP, MEMBERSHIP, AND
combination of social, economic, political and cultural conditions.'08 An STRUCTURE.

effort in the direction of making affordable health measures available is
the Generics Law whose constitutionality was put to rest in Del Rosario
v. Bengzon.ton
Free medical care should be extended to paupers, a concept which
means those who have no source of livelihood, or, even if they have
sources of livelihood, live a hand-to-mouth existence.'ro It should be
noted that, although the right to health should be enjoyed by all, Sec-
tions 11 to 13 express a clear bias for the underprivileged.
WOMEN
Src.14. TnB Srarr sHALL pRorECT woRKING woMEN
PROVIDING SAFE AND HEALTHFUL WORKING CONDITIONS, TAKING lNTo
ACCOUNT THEIR MATERNAL FUNCTIONS, A
SBc. 16. Ttrn Rrcr{T oF THE pEopLE AND TrrErR oRGAMZATToNS
TO EFFECTIVE AND REASONABLE PARTICIPATION AT ALL LEVELS OF
socIAL, POLITTCAL, AND ECONOMIC DECISION-MAKING SHALL NOT BE
lnnrncpn. Tnn Srlrr snLr,r,, By LAwT FACILITATE THE ESTABLISHMENT
OF ADEQUATE CONSULTATION MECHANISMS.
1. Independentpeople'sorganizations.
As was pointed out in Section 1 of Article II, the Philippines is
called a "democratic" state by the new Constitution because of the ele-
ments of direct democracy which have been introduced into the Charter.
Section 15 of Article XIII embodies one of those elements: a recogni-
BY
tion of the direct role which people have played and will play in setting
the directions the nation will take. Commissioner Garcia put it thus:r"